BCA v Singh: What the Court of Appeal Said

[I have now provided a brief lay summary of this blogpost.]

The Court of Appeal judgment in British Chiropractic Association v Dr Singh [2010] EWCA Civ 350 is the most complex decision we have so far encountered in this litigation, and it repays careful study.

(Comparing the judgment with the transcript of the hearing is a particularly enlightening exercise. I also note that the Court of Appeal made a point of using Simon Singh’s academic title in its case title.)

The Court of Appeal's decision follows the previous decisions in this case: the astonishingly illiberal ruling of the High Court in May 2009, the terse one paragraph refusal of Simon’s application for permission to appeal in July 2009, and Lord Justice Laws’s wonderful granting of permission to appeal.

(And even a hardened English lawyer must admit it is rather splendid for a Lord Justice Laws to grant permission to appeal to a court headed by a Lord Chief Justice Lord Judge.)


For the reasons I set out below, I think the judgment is significant as it appears that the Court of Appeal has extended the defence of “fair comment” – or “honest opinion” – to all contentions about evidence in any debate (and not only those to relating to science or medicine) “concerned with the establishment of dependable generalisations about cause and effect”.

However, to provide my analysis of this complex judgment, I will have to resort to use two technical terms, well-known to lawyers but not more widely.

The first term is ratio. This means the basis of the court’s decision: the reasoning on which the order made by a court is based.

(The order made here by the Court of Appeal was to allow Simon's appeal.)

In Court of Appeal cases, it is the ratio of the decision which will have the binding effect of precedent both on lesser courts (such as the High Court) and indeed (in most circumstances) on the Court of Appeal itself.

It is thereby important to work out exactly the ratio of any Court of Appeal case.

The second term is obiter dicta. What is said obiter by a court is not essential to the order made by the court.

A court may set the background to the case, or make observations on the conduct of the parties, or remark on the state of the law generally; but unless the order made by the court can only be explained by reference to these statements, they can be said to have been obiter.

Insofar as obiter statements are about law, they do not bind other courts, though they can be of “persuasive” effect: that means a court can adopt such a statement as having effect should that court be persuaded that the statement be relevant in case before it.

But with the ratio, a court may have no choice: it is a binding precedent.

The task for those analysing an appellate case is to try and sort the ratio from the obiter dicta, though such analysis is provisionally academic until its soundness is tested in actual future cases.

For me, the ratio of BCA v Dr Singh consists of the Court of Appeal’s reasoning on jurisdiction and on meaning.


Ratio – jurisdiction

The first hurdle for the Court of Appeal was the extent they could actually hear the appeal. This is a dry-ish point about jurisdiction, and so feel free to now scroll down to the really interesting part of the ratio on meaning.

The BCA contended that the Court of Appeal should only disturb the ruling of Mr Justice Eady if, in effect, it was outside the range of rulings available to him; that the ruling may perhaps be wrong, but not so wrong that the Court of Appeal should intervene and overturn it.

Here it is significant that Mr Justice Eady was, with the agreement of the parties, determining the question of meaning which is usually left to juries in defamation cases. Normally the judge would rule on whether the words were capable of carrying a certain meaning.

The Court of Appeal’s reasoning on this point is in paragraphs 13 to 15, which I now set out:

13. What the words in issue in a libel action mean is subject to two controls: a decision, reserved to the judge, as to whether the defamatory meaning alleged by the claimant falls with the range of possible meanings conveyed by the words in their context; and a decision, traditionally reserved to the jury, as to what they actually mean. The former is regarded as a question of law, the latter as one of fact, with the result that the meaning eventually decided upon by the jury is shielded from attack on appeal save where it has crossed the boundary of reasonableness.

14. Heather Rogers QC for the BCA accordingly submits that we cannot interfere with Eady J's decision on meaning simply because we may disagree with it: we can only do so if we are quite sure that he was wrong. Adrienne Page QC for Dr Singh submits, first, that we are free to retake that decision if, as she submits is the case, it is vitiated by an error of law; but she submits in any event that the deference accorded on appeal to what is ordinarily a jury's verdict has no equivalent where the finding in question is the speaking decision of a judge.

15. Ms Page draws our attention in this connection to Slim v Daily Telegraph [1968] 2 QB 157, an appeal from a decision of Paull J who, as is to happen in the present case, had tried a libel action without a jury. Diplock LJ (at 174) explained the two functions in this way:

"The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact."

The purpose of this careful explanation becomes apparent when, having held that the trial judge had failed to direct himself adequately as to the true meaning of the words complained of, Diplock LJ (at 177) asks "What then is this court to do?" and answers:

"I do not think we need send it back for a retrial …. This court is in as good a position as the judge to determine what is the natural and ordinary meaning of the words…."


In other words, the BCA’s case on the jurisdiction point was rejected.

The Court of Appeal could decide meaning for itself.

This means it should be easier for losing parties to appeal adverse rulings of the High Court on meaning in defamation cases when the parties elect not to have a jury trial, as – because of significant additional cost of jury trials – parties may increasingly do.

(In view of what the Court of Appeal then say about meaning, it is arguable that this point on jurisdiction is obiter - the Court of Appeal seems to go on to say that the meaning adopted by Mr Justice Eady was outside the meanings available to him – and so the appeal could have been allowed even if the BCA’s submissions on jurisdiction had been correct. However, I regard the jurisdiction point as ratio as it seems to me to go to the jurisdiction the Court of Appeal is exercising in ordering that the appeal be allowed.)

And now the really interesting part of the ratio.


Ratio - meaning

Once that the Court of Appeal had satisfied itself as to its jurisdiction, it could then approach the “words complained of” which (of course) were:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

The Court of Appeal was careful, as Lord Justice Laws had done in granting permission, to set out the whole paragraph containing the words complained of and the following paragraph where Simon sets out why he describes the treatments as bogus.

The Court of Appeal starts with the word “evidence” and then construes what “not a jot of evidence” would thereby mean:

26. What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be.

This is an extremely interesting paragraph.

It appears to establish a class of statements (and not just in scientific debates) which are “concerned with the establishment of dependable generalisations about cause and effect” where contentions about evidence are inherently “value judgments” - that is, expressions amenable to the defence of “fair comment” (or "honest opinion" as the courts now prefer to call it).

Accordingly, if a statement is “concerned with the establishment of dependable generalisations about cause and effect” then, following British Chiropractic Association v Dr Singh, there will now be a presumption (which can be rebutted by evidence of malice) that there will be a defence to a defamation suit.

(Unless this case is superseded in some way by a Supreme Court judgment and then the ratio can fall away.)

In my analysis, this reasoning of the Court of Appeal is part of the ratio of the case. And, if I am correct in this, then this will bind the High Court (and effectively the Court of Appeal, but not the Supreme Court) in future cases.

If so, this will have more direct effect than the wonderful Easterbrook quotation, which was clearly obiter.

I have to stress that I may well be incorrect on this; whether I am right or not is subject to the hard reality test of future libel cases.

But it does seem very interesting.

(Here I would like to pay tribute to Professor Stephen Curry who spotted the potential significance of paragraph 26 well before me.)

Having decided this about “evidence” and thereby “not a jot of evidence” - and providing an illustrative example in paragraph 27 - the Court of Appeal goes on to make short work of “bogus”:

28. Ms Rogers has understandably not sought to make a major issue of the word "bogus". In its context the word is more emphatic than assertive. But it is also explicitly supported by the next paragraph of the article, which explains that Dr Singh's co-author Professor Ernst had found in 70 trials no evidence that chiropractic could treat conditions unrelated to the back. It is a paragraph which also underlines the evaluative character of the assertion that there was not a jot of evidence for such claims.

And “happily”:

29. The other assertion to which the BCA takes objection is that it "happily" promotes treatments which, if Dr Singh is right, are bogus. Eady J accepted the BCA's case that this meant, in its context, that the BCA was well aware that there was in reality no evidence to support its claims – "the plainest allegation of dishonesty", as the judge put it.

And the Court of Appeal then construe the words complained of as a whole and provide the Court of Appeal’s own ruling on “meaning”:

30. Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, the word "happily", even if synonymous with "knowingly", loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, "blithely". The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims.

In short, the meaning of the words complained of is that the BCA was promoting what Simon contended were bogus treatments without regard to the want of reliable evidence of their efficacy.

And unless the Supreme Court overturns this, all Simon has to show to defeat this is that he was not acting maliciously.


Conclusions

What the Court of Appeal required to determine the appeal is set out in paragraphs 13, 14, and 15 on jurisdiction and in paragraphs 26, 28, 29, and 30 on meaning.

The judgment could – with some slight modifications - have consisted just of the reasoning in those paragraphs combined with the introductory paragraphs 1 to 9 and paragraph 37 describing the order made.

The remaining literary fireworks of the judgment – the mention of an Orwellian Ministry of Truth, the quoting of Milton on Galileo, the Easterbrook passage, and so on – all fall to be regarded as obiter.

These obiter statements are vivid, exhilarating, heady stuff. In particular, it would be delightful if the Easterbrook passage was seen as an expression of the English legal position.

But these statements will only ever have persuasive effect, if any effect at all, on future English libel litigation.

The eminent blogger The Heresiarch has examined these statements and finds many of them intellectually unsatisfying.

He complains that the Court of Appeal was “engaged in piece of casuistical manipulation to reach its preferred result”: it was the right decision, but for the wrong reasons.

I am afraid I have to differ. The Court of Appeal did not actually need any of these colourful passages for the appeal to be allowed, for none of these statements were part of the ratio.

The Court of Appeal simply did not need them to reach its "preferred result".

So why were these obiter statements made?

In my view, the Court of Appeal is consciously giving a steer to potential claimants and their lawyers, and perhaps even the High Court itself, about the general approach which should be adopted in defamation cases.

In particular, I believe the Court of Appeal is signalling the values which courts should have regard to in dealing with such defamation cases in future.

And a Court of Appeal consisting of the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sedley is in an extremely powerful position to make these signals.

Insofar as these obiter statements do not hang together then this is more because of it being a jointly-written judgment.

In my view, the judgment is tightly reasoned where it matters, that is the ratio on meaning.

Overall, I think the judgment is important and welcome, as well as inspiring and emphatic.

That Simon won this appeal is delightful; to do so in a judgment in such striking and – one hopes – influential obiter terms is uplifting; but to have prompted the Court of Appeal to determine that “fair comment” (or “honest opinion”) can cover all statements “concerned with the establishment of dependable generalisations about cause and effect” may be the most enduring result of this case.

But in no way does this judgment correct the wider manifest faults of English libel law and the campaign for libel reform must press on.

Please go to the Libel Reform website for more information on the libel reform campaign.


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