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.
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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