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"
"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.
Jack of Kent
(This blogpost was inspired by an excellent blogpost on Thinking Is Real.)
No purely anonymous comments will be published; always use a name for ease of reference by other commenters.