One highlight of the Court of Appeal judgment in British Chiropractic Association v Simon Singh was that the Court of Appeal adopting a passage of the US appellate judge Frank Easterbrook:
"34. We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):
""[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.""
In effect, the Court of Appeal has adopted on behalf of English law the simple yet fundamentally important maxim "scientific controversies must be settled by the methods of science rather than by the methods of litigation".
Those who attended the Court of Appeal hearing will remember that when the Easterbrook passage was read out at the end of the submissions by Simon's QC, it seemed to catch the mood of the court (apart from the BCA, of course).
From the Transcript:
LORD JUSTICE SEDLEY: What is the source?
MS PAGE QC: It was paragraph 76 of the skeleton argument put in at the time of permission. Underwager v. Salter is the case, and it is 22 Federal Reports.
THE MASTER OF THE ROLLS: Perhaps you could let us have copies of that.
MS PAGE QC: We could get copies yes, certainly, my Lord.
THE MASTER OF THE ROLLS: With the paragraph highlighted or marked.
MS PAGE QC: Yes, we will do that. Unless I can assist further, I do not propose to say any more.
I recollect all three judges enthusiastically taking down the citation.
One cannot yet know whether the Easterbrook passage will have any traction in future English libel litigation.
Although one would like it to have the effect of taking libel out of science, it is not a statement which will "bind" either the High Court or future Courts of Appeal.
It was an "adoption" made in passing in a case which was decided on other grounds.
That said, the maxim "scientific controversies must be settled by the methods of science rather than by the methods of litigation" could have what lawyers call "persuasive" effect on future libel litigation.
ADDENDUM
The full credit for the unearthing and the wonderfully effective deployment of the Easterbook quotation must go to Adrienne Page QC and William McCormick (also now a QC) rather than, as I had previously wrongly supposed, Simon's highly Atlanticist solicitor Robert Dougans.
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Friday, 2 April 2010
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10 comments:
I'm sure it won't have escaped the attention of the sharp legal minds here that there is a certain irony at play: the fact that a US case is being cited in an English libel case on one hand, while on the other, US courts are passing laws to limit the reach of the long arm of our libel laws into the US.
Thanks for this background info.
Well done indeed to all of you involved in the case.
I am delighted with this decision. I wonder if the BCA will now take this to the supreme court or decide that the wind is firmly set against them and change tack.
Bravo, Mr Dougans! I love it that you are an Atlanticist. As I said in my HP post on this judgment:
"A moment of schadenfreude for your poster, who wrote previously about Lord Hoffman’s little Englander moment, when he scorned the importation of American principles of libel law as an imperialist neocon move which found no favour over here."
http://hurryupharry.org/2010/04/01/a-good-day-in-court-for-singh-and-science/
http://hurryupharry.org/2010/02/09/tales-from-lennys-tomb/
So, the defamation laws are acceptable and do not need any changes?
If it wasn't for Mr Justice Eady's error, there wouldn't have been a problem. Further, because Eady J's error was shown to be an error in this judgment; there isn't a problem with the defamation law.
Don't you agree?
[S]cientific controversies must be settled by the methods of science rather than by the methods of litigation"
This is a great sound bite, but does it really have any legal effect? In its original context, this quotation summarized a ruling that relied on the "actual malice" standards of Wisconsin and US federal defamation law. Unless their Lordships are imposing something akin to the actual malice standard in English law, I don't see what difference it makes.
Until suits such as BCA v. Singh are routinely dismissed at the summary judgment stage, the libel law will continue to have a chilling effect on scientific discussion.
I hope that this latest ruling will be used as validation for the call for libel reform rather that an excuse for complacency. Simon Singh has noted that this decision, while good for him, is in no way a cure for utterly flawed English libel law.
I have heard that originally English defamation law made defamation a crime regardless of whether the defaming statements were true, and that such laws were originally to spare royalty from any ill words. I hope Jack can comment on this as part of the evolution of English libel law, since that seems to be how English law managed to leave the burden of proof on the libel defendant rather than the more usual burden of proof on the plaintiff. It would seem that for practical purposes, given the ruinous costs of a libel defense in England, that truth is still not a defense against charges of defamation, and that changing that, changing the burden of proof to the plaintiff, is vital to removing England from the tyranny of ancient laws originally penned to protect royalty without regard to the rights of ordinary folk to free speech.
" Further, because Eady J's error was shown to be an error in this judgment; there isn't a problem with the defamation law.
Don't you agree?"
If you are implying that this judgment serves as a band aid which conceals the need for root and branch reform, I do not agree. I think the judges made it clear in several places that they were unhappy at having to apply the law as it is, and by implication that it ought to be amended.
The recognition that the law has no place (or at most a very restricted place) in scientific debate must surely be a vote for common sense.
The Reverend Thomas Burnett (1635-1715) writing in 'Telluris theoria sacra' opined: "Tis a dangerous thing to engage the authority of scripture in disputes about the natural world in opposition to reason; lest time, which brings all things to light, should discover that to be evidently false which we had made scripture assert."
This judgment from the Court of Appeal appears to point up a similar caveat for the authority of the law - that it would be dangerous for any judge, however learned, to determine where in a scientific dispute the 'best' truth lies.
The BCA would be well advised to take careful note of this before continuing their ill-conceived action against Simon Singh.
The judgment would appear also to shift the case from a discussion of the states of mind of Simon Singh and/or of the BCA to an examination of the evidence for and against the efficacy of particular chiropractic procedures.
Apart from airing the opinions of various 'so-called' experts, what more can the BCA hope to gain?
We have seen the plethora and found it wanting!
The arguments advanced by the Court of Appeal appears to have boxed Eady J. into a very tight corner as regards the future handling of this case and the BCA's chance of victory must now be accounted vanishingly small.
Following on Scote's remarks about the truth of a defamation being secondary, in South African common law (descended in part from English common law) there is the idea of 'crimen injuria', defined as "unlawfully, intentionally and seriously impairing the dignity of another". So if you declare someone to be the son of a whore with the purpose of impairing their dignity, proving he really _is_ the son of a whore is no defense.
Recently a student was charged with crimen injuria for allegedly sticking his finger up at the presidential motor cavalcade; evidence perhaps that while the idea of protecting elevated dignity is alive and well, the principles of noblesse oblige are not.
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