Dear British Chiropractic Association,
I know we have had our differences, but I felt the need to write to you.
The time has come for the BCA to bring the claim against Simon Singh to an end.
On 1 April 2010, the dynamics of the case changed profoundly.
Until then - even with all the controversy and the campaigning and the discredit brought by the "plethora" - the BCA was procedurally on top.
Before the preliminary hearing last May, the BCA had the natural advantage of any libel claimant, given the woeful state of English libel law.
And after the preliminary hearing the BCA was in possession of an incredibly helpful ruling by the High Court.
From a procedural perspective the BCA had the upper hand.
However, the procedural situation is now different.
A very strong Court of Appeal has ruled in favour of Simon Singh. And they did so in terms which were directly and starkly critical of the BCA's conduct of the case.
Furthermore, the Court of Appeal has provided a detailed critique of the "jot of evidence" point which always lay at the heart of the case.
And the BCA cannot sensibly rebut Simon Singh's "honest opinion" defence.
Of course, it is possible that the BCA can proceed to apply to the Supreme Court, or that the case can go back to the High Court for trial. But, in either case, the BCA's position is now the weaker one.
Even if there was some reason for the BCA to hang on until the Court of Appeal decision, that reason has just gone away.
I have always regarded the BCA case as misconceived. This was for two reasons.
First, the substantial issue in dispute - the soundness of the evidence base for chiropractic for certain children's ailments - was simply not something which is amenable to a court trial.
One did not need to be a Court of Appeal judge to see this.
Second, the evident tactical reason for bringing the claim - to get a "quick win" of an apology and retraction - was always likely to backfire.
And on this I cannot be accused of hindsight.
Back in August 2008, in a post listing ten questions members of the BCA should be asking (which, if I may say so, still reads very well), I shared the following insights:
"A decision to sue anyone should indeed never be taken lightly, and usually it should not be made at all.
"A misconceived libel action can be an incredible financial and reputational disaster of the very first order.
"It can be the maddest, saddest decision any person ever makes"
And:
"Any decision to litigate should always be on the assumption that it will go all the way and that you could lose.
"It cannot just be assumed that the defendant will settle or surrender."
The BCA clearly did not prepare for litigation on this sensible basis.
Well, I did try.
However, all that said, it was not until last Thursday that the BCA was procedurally overtaken by Simon Singh, even if the case was misconceived all along.
Now Simon Singh is quoted today as saying "the BCA would have to pay my costs before being allowed to walk away".
It will be painful and expensive, but this is what needs to be done by the BCA.
And if the decision is made by the BCA to go through the motions of going to trial or the Supreme Court just to somehow "maximise their negotiating position" for settlement, I think they should instead get prepared - and resourced - to go through with the trial or the appeal in full.
So please no more bluffing.
Please no more legal manoeuvring on the stupid assumption that Simon Singh will not go through with what the BCA threatens to do.
One hopes the BCA will have learned their lesson on this.
The claim should never have been brought, but one can see why the BCA hung on until the Court of Appeal decision.
The BCA can still extract itself with some dignity now the procedural advantage has been lost.
It really should take this opportunity to bring this wretched business to a close.
The time has come to settle.
And, as I did back in August 2008, I offer this insight for free.
Yours sincerely,
Jack of Kent
(This blogpost was inspired by an excellent blogpost on Thinking Is Real.)
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Wednesday, 7 April 2010
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37 comment(s):
Well, if I was a member of the BCA I would hope that the leadership would listen to your sound advice.
There is no doubt that the trial against Singh has been costly not only for the BCA but also for its members, who have found them in the spotlight, much to their disadvantage.
I think we can all probably hear the tumbleweed rolling past at BCA central whilst they try to think of a way to get out of this and save face.
What if, though, this giant bluff is now in a hope that they could still win? What if the total court costs would bankrupt the BCA? In for a penny...
sg
If the BCA do decide to walk away, are they legally obliged to pay Simon Singh's costs, or would Simon have to sue to recover those costs?
Martin - the costs position could be complicated. Will write on it in due course.
Wise words indeed. Pity the BCA didn't take heed from someone with your insights before they set out on this misconceived action. Especially contemptible was their decision to sue Simon personally: this could only ever serve to make him a hero (in the event of him winning) or a martyr (if he lost), whilst simultaneously casting themselves as the bullying villains.
The rational course of action for the BCA now is to drop the case no matter how painful, but whether they will be able to see it that way remains to be seen. Certainly if they choose to persist, it seems it will only be an even greater disaster for them in the long run...
Seconded, Jack!
I wonder if the BCA really will take it to the Supreme Court?
I am so excited that Simon has won his appeal. But in a sense he has been censored, because the case is preventing him from writing his Guardian articles and books. All the same, his bravery and his self-sacrifice is a gift and an example to us all. As is your writing, Jack - keep it coming!
Hi Jack
I have linked to your excellent post here http://grayee.blogspot.com/2010/04/open-letter-to-you-know-who.html
I will declare an interest!
The BCA may feel "forced" to appeal to the Supreme Court (even though that would cost me a pint of beer).
If they had just left Simon's article they could have waved any mention of it aside with "Oh! He's just got a book to promote". This would have been accepted by most who were not already against Chiropractic.
If they had accepted the offer of a reply in the Grauniad they could have printed "Oh! He's just got a book to promote". Face it, how many of us would have really gone into the detail? How many of us would not just write it off as some little debate we weren't, really, interested in?
But, even though it doesn't legally follow, in people's minds a libel case asks the court to come down on one side or other of the argument. It's no longer, in the "public mind" a question of "he says this, we say that" but "he says this, we say that and the court says..."
If Simon wins the perception will not be that Simon has an "honest opinion" that the BCA blithely promote treaments for which there is not a jot of evidence but that the court has decided "the BCA blithely promote treaments for which there is not a jot of evidence" is true. This will carry over to other aspects of Simon's pleaded meaning: that the court has decided that the BCA are negligent etc.
If the BCA were to fold at this point the perception would be that the BCA do so because they think the court would decide that they were a negligent organisation which blithely.....
These two scenarios, in the "minds of the public" represent either an admission of guilt or a court decision of guilt.
It seems massively unlikely that a decision to pursue the case would not result in a victory for Simon. That is unless the meaning was, once again, changed. There only hope to avoid the perception that it has been legally established that they are negligent etc. is to appeal to the Supreme Court.
(BTW you should put your earlier warning to the BCA on your CV. I said before that there seems to be a reluctance on the part of lawyers to say "I will follow your instruction but for crying out loud what you are doing is not just misconceived but idiotic. For pity's sake reconsider!". If you will do that then people ought to hire you).
This court case has done a power of good, inasmuch as it has brought attention to the lack of evidence for chiropractic. When the case began, when the first ruling on meaning was made, when the permission was granted to appeal that ruling, when the appeal overturned the original ruling on meaning, not only has the case gained media attention, but the lack of evidence for chiropractic has gained media attention. A fringe alternative treatment has had its veneer of veracity peeled back again and again.
The BCA's case has been so wrong-headed it makes you wonder what the BCA is actually for - it certainly does not seem to be in support of chiropractic.
Very sound advice, I sincerely hope that the BCA heed it and put this misconceived case to an end.
You neglected to say that your services include a 0% CFA uplift in case of success.
If the BCA's PR agency were any good - and they certainly seem to get paid plenty of money - then they could easily try and "spin" pulling the plug as follows:
(i) we genuinely thought Simon Singh had accused us of being dishonest, which we took MOST SERIOUSLY
(ii) we still think this was meaning the original words conveyed, BUT we reluctantly accept Appeal Court's view... and we are MOST GRATIFIED Singh has stated publicly that he didn't mean we were dishonest (quote Simon's public statements to this effect)
(iii) given protracted nature of legal proceedings... we are persuaded that the financial burden on our members... need the money to do important work promoting chiropractic... etc etc.
All done by press release w/out taking questions.
Arguably outside the Skeptosphere it will all be a storm in a teacup.
Of course, notwithstanding their large tab, the BCA's PR team seem thus far to be as sharp in their judgement as the BCA's lawyers.
@twaza (@wassabeee on twitter)
Ha!
According to the CFA industrial-libel claimant firms, a libel lawyer needs the "incentive" of a 100% uplift to give advice!
I thought Dr Aust was a scientist but I think in fact he might be a lawyer.
His is an excellent proposal.
Intermittent scientist, lecturer and full-time professional talker, Stephen... Though one of my former bosses did describe me several times as a barrack-room lawyer.
Of course, re the BCA, they could have taken broadly the course of action I recommend nigh-on two years ago and likely saved themselves several hundred grand.
Reading your 10 Questions Article back you really hit the nail on the head back then.
Hopefully the BCA will see sense and back off, paying Simons fees to boot.
Do you see parallels with the Kitzmiller vs Dover Case?
and we are MOST GRATIFIED Singh has stated publicly that he didn't mean we were dishonest (quote Simon's public statements to this effect)
And this is the really bizarre thing. Singh stated publicly that he never thought them dishonest (is this not better than an apology?) yet they still demanded that he apologise for saying they're dishonest anyway.
That's when it really starts to look like bullying - it's akin to soldiers torturing a confession out of a captive enemy no matter how much he might plead ignorance.
Thanks for the link Jack - but I think by your advice here that you will now ensure the BCA's decision to continue. They've ignored every other piece of advice you've offered in the past.
sadly Jack your advice is likely to fall on deaf ears - at least for now I would have thought.
BCA must be torn over whether or not to proceed to trial, given the overwhelming likelihood that they would lose - question really is whether to pay up now, or to pay up more later.
cracking post!
Has this been sent to them, or has it just appeared here?
I have now sent the BCA an email with a link to this post.
I have also told them that I would be happy to publish any reply.
Since when did JK become advisor to the BCA...Teeky and Andy.
Lets turn this around a bit.....what this blog is about is,the ever hopeful are hoping that the BCA will relinquish its grip on the legal throat of the writer and make nice.......
Why should the BCA even consider such limp wristed action...is it because 3 judges meddle with reality...perhaps the judges need further supervised training.That seems to be the only useful outcome of this appeal.
No, this is a last man standing deal...a jury must decide the fate of the writer. The matter is now so important that it can no longer be left to judges for pronouncement as evidenced by the last bout of legal gerrymandering...
Dr Mike
Dr Mike,
I don't hope the BCA will relinquish its grip. I hope it will tighten it, and continue holding on until the last possible moment, taking itself, its members, and the whole of chiropractic down with it, with just enough money left to pay Simon's costs.
But that's just me.
Could you elaborate a little please, Dr Mike? Specifically, which paragraph of the Court of Appeal ruling do you take issue with and why? I thought the ruling was quite reasonable myself, but I'd like to understand the other side of the argument.
Ah, Dr Mike the spine wizard.
Are you suggesting that three of the most senior, highly respected judges in the UK 'got it wrong'?
I think we all know that the last thing the BCA are going to look forward to now is close scrutiny of the evidence by a jury. If you think this is a good thing then you underestimate the ability of the general public to detect bullshit when it's put in front of them.
sg.
Dr Mike,
I think we're all a little confused by your post. You're saying the 3 most senior judges in the land got it wrong, as opposed to the widely and regularly criticised Justice Eady?
The issue here is that rather than responding with peer reviewed evidence to back up their claims of efficacy, the BCA chose to attempt to gag a critic. Scientists criticise each other's claims all the time, it's how progress is made - the wilder claims that aren't backed by credible evidence are either debunked and discarded or their authors find stronger evidence. Eventually the claims are either backed by a wealth of credible evidence and the critics silenced, or you go away and try again.
If chiropractic genuinely cures the childhood ailments listed by the BCA, then surely it's not unreasonable to expect a wealth of credible evidence to support such claims? it follows then, that in the absence of such evidence it is not unreasonable to criticise such claims?
The BCA were given ample opportunity to present such evidence, they chose to pursue a frivolous and expensive legal proceeding instead. The intent of such a proceeding is clear - it's the Scientology approach to criticism.
No one wants the BCA to make nice with Simon Singh, we want them to stop attempting to stifle scientific debate.
I'm genuinely interested in where you are coming from, did you read the original article for instance?
Regards,
Matt
We all must agree,this is not about scientific debate, as all right thinkers would agree.
The writer essentially called the BCA dishonest and a promtor of fake treatments...that is the essence of it.
The rest is a smoke screen using free speech/debate as justification.
Everybody knows that...as do you.
Any and all research can be debunked by those who have a malign agenda.......drug sponsored medical research can get the same debunking treatment.....Anytime.
The chiropractors have more than a right to be angry........they should be furious.
So lets all join together and ask for justice for the chiropractors and perhaps indicate that re-training may be appropriate for some members of the judiciary.
I can not be more fair than that.
Agreed.
Dr Mike
MattJ wrote:
"If chiropractic genuinely cures the childhood ailments listed by the BCA, then surely it's not unreasonable to expect a wealth of credible evidence to support such claims?
Or indeed any credible evidence.... even a jot?
Matt's comparison with the Church of Scientology seems very apt.
Another question is whether that is how the BCA want to be seen.
I have been surprised as to Jack of Kent's position regarding the lack of soundness of the BCA's case. He mentions that the BCA "previously had a strong case", but now they apparently don't.
Having read the appeal transcript and the judgement I can see that the appeal judges used an absolutely glaring red herring in their appeal judgement that really, anyone with an elementary grasp of logic should be able to spot. Indeed, the judgement is a study in the evasion of plain english meaning. They also declined to enter into the debate at all, by arguing that the context that the statement "not a jot of evidence" was in was a different one than Eady had decided on. This seems to me to open up the way for activist judges to use the context argument as a magic 'get-out-of-jail-free' card for libel cases, that will really make any libel laws- no matter how necessary, become impotent when it is a journalist making the contested statement. It looks to me that a new standard of 'journalistic privilege' has come into existence in the UK, that the Supreme Court should strike down since it will have such a corrosive effect on the integrity of journalism in the UK.
The judges also made the statement that their court was not the place to decide the validity of the scientific evidence presented by both sides, when the reality is that the judges didn't have to resort to looking at the validity of the scientific evidence in order to determine if Dr Singh's statement was a falsehood, because his statement was clearly unsupportable once the BCA brought forward any published scientific evidence that it had decided in the past that it could rely on. There IS published evidence in medical and chiropractic journals supporting the BCA's claims, and no amount of rebutting the validity of these studies will change the fact that this evidence does exist! The value of a piece of evidence can only be decided for evidence that first has been recognized by the valuer as actually being in existence! Therefore you would have to be brain-dead to argue against this fact. The appeal judges knew this, so they pulled out the magic context card instead.
Also, the appeal to 'context' and 'honest opinion' by the judges seems to me to be entirely hypocritical since the Singh article was a carefully designed bit of rhetoric that first established that Dr Singh was an authority in the field of chiropractic research (with Ernst), in order to set up the falsehood "not a jot of evidence" so that it would inflict the maximum possible damage on the reputation of the BCA. So how could the judges argue that the context of "not a jot of evidence" was that of a journalist entitled to 'honest opinion', and ignore the actual context of the article itself which was just a blatant vehicle that was used to help encourage the reader into believing that Dr Singh's dishonest statement, "not a jot of evidence" was in fact true?
It seems to me that the only question that the BCA need to ask is not whether their case is sound, which it still is, but whether they will meet activist judges on the Supreme Court. Jack of Kent knows that the BCA's case is still strong, and should look at the big picture- the appeal judges have made a judgement that would have negative effects on UK journalism in the long term, so he should encourage the BCA to go to the Supreme Court in order to get a second opinion on this one.
As someone I follow on Twitter said, to paraphrase...
Chiropractors, if you're going to happily promote bogus treatments, just sue anyone who criticizes you. No one will notice.
@Jack of Kent: "According to the CFA industrial-libel claimant firms, a libel lawyer needs the "incentive" of a 100% uplift to give advice!"
I think you probably have that as well. It's just that it's indistinguishable from a 0% uplift.
@ Dr Aust:
”Matt's comparison with the Church of Scientology seems very apt.
Another question is whether that is how the BCA want to be seen.”
A while ago, when I worked in an accountancy firm, a small company client of ours woke up to find a hole in their balance sheet. We helped them negotiate with their largest creditors, asking the creditors to accept a reduced payment and staged payments. We argued that if they were to put the company into liquidation they would get next to nothing off the receiver, at least this way they would receive the bulk of the money owing.
I can’t say they were happy but most accepted the logic and the deal. The landlords didn’t. They accepted the logic alright but told us that they wouldn’t accept the deal because it was worth the loss to send a clear message:
You do not mess with us.
That is how they wanted to be seen.
Now you do not mess with us fits very well with the BCA’s decision to sue, to sue Simon personally and refuse the offer of a right to reply. So what if it is more expensive, so what if it is worse PR? It may have been thought to be all worth it to get the message out that you do not mess with us. Simon’s article was, when all is said and done, a minor slur. A bigger issue was all the other writers that may have a pop at the BCA and chiropractic. The right to reply just fixes the minor slur, you do not mess with us works on everybody. The Guardian have funds to pay for a case, it may hurt them but would not break them. Simon could be broken, sent to beg on the Victoria embankment with a big sign saying “I messed with the BCA, please help”. Of course there may be good reasons other than “you do not mess with us” why the BCA rejected the offer of a right to reply and decided to sue Simon personally but we haven’t heard them.
Of course most of us hope that things will be the other way round: the BCA will be damaged beyond repair and the message will go out loud and clear:
You do not mess with the nerds.
@ Johnnieboi
“the appeal judges used an absolutely glaring red herring in their appeal judgement that really, anyone with an elementary grasp of logic should be able to spot”
I haven’t been able to spot it, and you haven’t mentioned it. Can you let us know what it is, please?
“There IS published evidence in medical and chiropractic journals supporting the BCA's claims, and no amount of rebutting the validity of these studies will change the fact that this evidence does exist!
No there isn’t. “Evidence” has to be reliable to be “evidence” see paragraph 26 of the judgement, this post http://tinyurl.com/yb9kk7j and here: http://tinyurl.com/ybha385
@Dr Mike: "No, this is a last man standing deal...a jury must decide the fate of the writer."
Sorry, Mike, not going to happen. See paragraph 2 of the Court of Appeal judgment: "the eventual trial of the action ... is to be by judge alone". No jury. This was decided at a very early stage of the case.
JoK, can you please answer the following. Suppose that the BCA decide enough is enough, and they withdraw their case. That leaves Dr Singh with what must be quite a substantial bill from his legal team.
How would he be able to recoup his expenses? Surely the law has some mechanism for this without the need to counter sue?
Were I a financial member of the BCA**, I would be instituting proceedings against the BCA, for single-handedly destroying any shred of respectability that I might have once garnered for my business, and using my money with which to make me unemployed.
It is a puzzle to me as to why the more sentient chiropractors are not already engaged in controlling this damaging folly to their very livelihood.
_______________
** In an alternate universe where I had undergone several lobotomies.
A couple of comments have mentioned that "not a jot of evidence" could be countered by any tiny thing that the BCA claim is evidence. The BCA say there is evidence and we must accept this without question. This of course seems central to the case.
That idea is now thoroughly discredited.
The General Chiropractic Council (GCC) appear to have comissioned a survey into the question of evidence which reported recently.[1] To my untrained eye it seems that this report agrees with Mr Singh. It seems to say - There is insufficient evidence to support public claims that chiropractic treats the childhood ilnesses in question in the Singh case. The report was written by chiropractors.
Courts decide on the "quality" of evidence every day, it is what they do and it seems that the BCA may have erred in neglecting to consider that. They hoped to persuade the court that their superior experience of chiropractic automatically made them the natural arbiter in the determination of what was evidence and what was unsupportable rubbish. The Court of Appeal seem to have disagreed - evidence is expected to be reliable.
The Advertising Standards Authority (ASA) also agrees that unfounded claims are not in the public interest. I understand that a number of cases have been found against chiropractor's bogus claims.[2]
Chiros say "I say there is evidence so there is! So there!". The ASA, the GCC's own report and now the Court of Appeal say "It's not quite as simple as that". The logic of the school playground it seems is not going to hold sway here any longer. Petulant foot stamping seems unlikely to be sufficient to persuade any court otherwise now. Note that the ASA and GCC rulings and report have been triggered by the actions of members of the sceptical blogosphere. Thanks Jack, Zeno, Simon Perry and others.
Finally, I hope that the BCA see sense and call it all off now. It would be of course ideal in some sense for them to pursue the case to the end and damage their reputation and finances further however I am sure that Simon has things he would rather be doing otherwise. I expect that they have already done enough to feature in thousands of university lectures on reputation management for decades hence.
[1] http://www.chiroandosteo.com/content/pdf/1746-1340-18-3.pdf
[2] for example -
http://www.asa.org.uk/Complaints-and-ASA-action/Adjudications/2009/5/Dr-Carl-Irwin-and-Associates/TF_ADJ_46281.aspx
jimjim wrote:
"I expect [the BCA] have already done enough to feature in thousands of university lectures on reputation management for decades hence."
Not just lectures on reputation management, jimjim. I predict that the case will be looming large in healthcare student lectures on "What is and isn't evidence, and how to grade and assess it".
A side-effect of which is likely to be that, for a good few years to come, healthcare grads (inc. medics) will be introduced at some length to precisely what the evidence for chiropractic is/was.
As opposed, of course, to what some chiropractors said it is/was.
jimjim:
"I expect that they have already done enough to feature in thousands of university lectures on reputation management for decades hence."
It seems those responsible for the BCA's reputation management missed the all-important "McLibel" lecture.
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