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Wednesday, 19 May 2010

Guest Post: Simon Singh on the BCA and Dishonesty

I am delighted to publish a guest blogpost by Simon Singh.



Last week the British Chiropractic Association (BCA) hosted one of the world’s biggest gatherings of spinal manipulators, namely the European Chiropractors’ Union Convention in London.

During the coffee breaks, there was probably lots of discussion about the BCA’s decision to sue me for libel over an article I published in the Guardian back in April 2008.

The contentious part of the article questioned whether chiropractors should be treating childhood conditions such as ear infections, asthma and colic.

Last month, after two years of legal wrangling, the BCA backed down and withdrew its libel action. It now has to foot its own legal bill and my legal costs, which I estimate will come to £300,000 in total.

I am sure that the members of the BCA are annoyed that their subscriptions have been wasted on a horrendously expensive libel suit, but at least they can be reassured by some of the comments made in a press statement issued by the BCA last month.

The BCA pointed out that the motivation for its legal action was that it believed that my article alleged that the BCA was a dishonest organisation.

Hence, the BCA attempted to justify its decision to sue me by stating:

“Simon Singh has said publicly that he had never intended to suggest that the BCA had been dishonest. The BCA accepts this statement, which goes some way to vindicating its position”.

This baffles me.

Of course, I publicly stated that I never intended to call the BCA dishonest, because it is completely obvious that the article makes no such allegation. Moreover, and this is the really crucial point, it appears to me that the BCA failed to see any accusation of dishonesty in my article, or at least its solicitor failed to raise the issue when we first exchanged letters.

I must stress at this point that I am not saying that the BCA fabricated the dishonesty allegation at a later stage, but I am saying that the BCA have a very unclear way of communicating their concerns.

This began with its very first letter to me, which was sent on 28 May, 2008 via its solicitor.

The letter does not mention the word “dishonesty” or raise concerns over an allegation of dishonesty, but instead the letter states:

“It is untrue and grossly libellous for you to allege that the claims made by our client happily promotes bogus treatments for which there is not a jot of evidence. There is, as you are or should be well aware, a substantial body of evidence to support these claims”.

In my opinion, the initial letter threatening legal action raises concerns over allegations of a lack of evidence, not dishonesty.

Essentially, the dispute seems to be that the BCA says there is “a substantial body of evidence”, while I maintain that “there is not a jot of evidence”.

This is itself a defamatory interpretation, but one that I would have been delighted to defend at trial; I have examined the evidence and there is indeed “not a jot of evidence”.

By the way, when I use the word “evidence”, I mean reliable/worthwhile/reasonable/good evidence, as opposed to unreliable, unworthy, unreasonable/bad evidence.

There is of course a wealth of bad evidence to support the BCA’s claims, but I assume that anybody with any scientific training (or indeed common sense) would not be interested in bad evidence, because bad evidence is often worse than no evidence.

So why didn’t the BCA raise the question of dishonesty at this stage?

After all, this letter was not sent off in a rush, but rather it was posted over a month after my article was published.

Indeed, a second BCA letter sent to me on 2 June, 2008, also failed to mention dishonesty.

A week later, a Guardian lawyer sent a letter on my behalf to the BCA, which also did not raise the issue of dishonesty, but instead focussed on evidence. After all, evidence seemed to be the crux of the BCA’s complaint:

“We [the Guardian] would therefore be prepared to publish a response from the British Chiropractic Association to Simon Singh’s article in which it, or a representative, could set out the evidence relating to the childhood conditions mentioned above.”

The BCA replied on June 17 and did not accept the offer of a right of reply.

Instead, its solicitor added to the discussion over evidence, but again failed to raise any concern over allegations of dishonesty!

The Guardian responded by offering a clarification, which stated:

“The British Chiropractic Association have told us they have substantial evidence supporting the claim they make on their website that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying. (Beware the spinal trap, page 26, April 19).”

Again, there is no mention of dishonesty from our side, because we still had no inkling that the BCA would ever express any concern over an allegation of dishonesty.

Indeed, had the BCA raised this problem, then it would have been simple to have added a line to the suggested clarification, i.e., “The Guardian and Simon Singh would like to confirm that the article did not intend to imply that the BCA is acting dishonestly”.

(By the way, I am sorry if this is getting boring, but imagine what it was like for me dealing with this sort of tedium for two years, and having to pay for the experience.)

The offer of a clarification was not accepted, but instead a couple more letters went to and fro until 2 July, when the BCA became even more obsessed about the issue of evidence.

The BCA went into great detail about the question of evidence, citing various pieces of research, including the research I discussed in my original article.

The BCA’s solicitor reiterated: “At the heart of our client’s complaint is Dr Singh’s assertion that ‘there is not a jot of evidence’ for the claims made by our client that chiropractic ‘can help treat children with colic’ and other conditions listed by him”.

Eventually, on July 10, the BCA decided (for whatever reason) to suddenly raise the issue of dishonesty.

It formally issued a writ against me, which meant crossing the legal Rubicon.

A legal document called the Particulars of Claim stated that my words clearly implied that the BCA “knowingly promotes bogus treatments”.

It seemed ludicrous to me that anybody could interpret my article in this way, and to base an entire legal action on such an interpretation struck me as mind-boggling, especially when dishonesty had not previously been mentioned in any correspondence.

Many people have asked me why I did not settle the case at this point by clarifying that I had never intended any implication of dishonesty.

Unfortunately, the situation was not quite so simple.

First of all, I am confident that the BCA would have demanded that I pay its legal bills and probably some damages on top. I am guessing, but I think I would have ended up with a bill for £20,000, purely to clarify a sentence that I had always thought was obvious from the very beginning, and which the BCA had not previously framed as an accusation of dishonesty.

Moreover, the issue of evidence, or lack thereof, would have been left hanging.

It is impossible to work out what was going on at BCA HQ, because we now have statements that contradict actions.

For example, this year the BCA issued a press release that stated:

“The motivation for this action was always to clear our good name, particularly in respect of the implication that we acted dishonestly”.

Well, it wasn’t always clear to me! It took three months after my article was published for the BCA to indicate that it interpreted my article as an attack on its honesty. If anything, it appears that the issue of dishonesty was an afterthought.

This paradoxical behaviour was raised by my barrister Adrienne Page QC in the Appeal Court hearing earlier this year:

"What I wish to draw attention to in the early correspondence is that the complaint was a complaint about the assertion that there was not a jot of evidence, and the complaint was that there is in fact a substantial body of evidence… Now there was no complaint there -- there was no complaint at any stage in the correspondence prior to the issuing of the claim form -- that the allegation was one of dishonesty or knowledge of absence of evidence on the part of the BCA".

The Appeal Court went on to rule in my favour, with the three appeal court judges being equally perplexed by the interpretation of dishonesty that was being pushed by the BCA.

They agreed with me that my article accused the BCA of being reckless, but not dishonest.

It was soon after this Appeal Court decision that the BCA dropped its libel action, thereby allowing my accusation of recklessness to go unchallenged.

However, I remain befuddled by the contrast between the BCA’s recent press release (focussing on dishonesty) and the BCA’s original letter (focussing on evidence), so I asked the BCA why it did not raise the allegation of dishonesty in its initial letter.

Unfortunately, the BCA declined to offer an explanation.

So I asked my solicitor, Robert Dougans (Bryan Cave LLP), about the BCA’s sudden and belated obsession with supposed accusations of dishonesty:

"When the BCA’s letter before action came in, it did not mention dishonesty. The first mention of this came with the Particulars of Claim, after they actually commenced proceedings. My thoughts were that this was a common pleading trick in defamation law - that you plead as serious a meaning as you can. This means that if the Defendant tries to deal with the case quickly and honourably under the Offer of amends procedure, they will be bound by the more serious meaning. In my mind then, this meaning and the fact that the BCA made an early offer to settle with a short deadline, meant that they were playing hardball from the start".

Is it possible that the BCA threw in the interpretation of dishonesty merely as a tactical trick?

Or, is it possible that the BCA was right (albeit late) in arguing that my article contained an accusation of dishonesty?

Do the words “happily promote bogus treatments” imply dishonesty?

It depends on the context, and for me the context clearly points towards an organisation that is naïve and reckless in promoting treatments that I believe are ineffective.

For example, earlier in my original Guardian article I had written about chiropractors who have “quite wacky ideas”, which implies eccentricity or stupidity rather than dishonesty.

I had also written about some chiropractors being “fundamentalists”, and there is never any question about the integrity of a fundamentalist.

And immediately after writing “bogus treatments”, the article went into the question of evidence in detail, thereby explaining that “bogus” means lacking in evidence, and not fraudulent.

I think it is fair to say that the vast majority of people agree with my interpretation of my own article.

For example, when the article was originally written and edited, neither I, nor the Guardian’s Comment editor, nor the sub-editor, nor the in-house lawyer saw anything that might imply dishonesty.

The article was also given to Professor Edzard Ernst for feedback – Edzard and I had co-authored “Trick or Treatment? Alternative Medicine on Trial” – and he also did not see anything that might trigger a libel suit.

Nevertheless, the BCA’s current interpretation of my article was famously backed by one person, namely Justice Eady, who presided over the case and who gave a very important preliminary ruling on meaning.

By forcing an accusation of dishonesty onto my article, Justice Eady was asking me to prove something that I had never intended to write.

His ruling almost caused me to buckle, abandon my defence, and question my sanity.

Fortunately, three of the most senior judges in the land overturned his ruling in the Court of Appeal. This reassures that (on limited data), 75% of judges agree that the article did not contain any allegation of dishonesty.

I apologise again for the fact that this is a relatively dull blogpost about one small aspect of the whole “BCA v Singh” libel case, but I want to show how some of the BCA’s legal correspondence with me has not been consistent with its more recent press releases, and this should be of particular interest to its members.

So far, chiropractors have been hearing the BCA’s version of events (i.e., Simon is nasty because he called us liars), but they have not seen the initial correspondence which paints a different picture (i.e., Simon is a problem because he is questioning our evidence).

Perhaps these inconsistencies merely highlight the need for the BCA to have a better press officer or a solicitor who more clearly expresses the BCA’s views, or maybe there are deeper problems at the heart of the UK’s biggest professional body for chiropractors.

In the wake of the BCA’s failed libel action, there is an opportunity for the members of the BCA to look at their professional body and re-examine how it could act radically and rapidly to improve itself and the chiropractic profession more generally.

This will only be possible if the BCA is able to publicly acknowledge its own failings and the unacceptable behaviour of some of its own members.

For example, since my article was published and the ensuing libel action, the BCA website has quietly withdrawn from its website claims that its members can help children with colic, asthma and ear infections.

I am glad that I have helped the BCA develop its policy on limiting the ambitions of chiropractors, but I would have liked to have seen a press release on this significant policy change.

Also, it strikes me that the BCA could have issued a press release about the fact that 1 in 4 British chiropractors (including many BCA members) are currently being investigated for allegedly making misleading claims in advertisements and on websites.

Indeed, the misleading claims at the centre of many of these investigations relate to treating the very same childhood conditions that I discussed in my original article. Why did the BCA not deal with this problem five years ago, rather than waiting for bloggers and skeptics to highlight the issue by submitting formal complaints?

The European Chiropractors’ Union Convention is now over, but if there is space for an extra pair of speakers at the next big chiropractic conference, then I hope that the BCA will get in touch.

I would be delighted to tell the chiropractic community more about the libel case from my point of view, and I know that Professor Ernst would be very willing to present an overview of the latest evidence for and against spinal manipulation.

If the chiropractic profession wants to move forward then it is crucial that the BCA engages with its critics in a wide-ranging, public and robust dialogue, as opposed to tackling criticism with a libel action.


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27 comments:

Tracy King said...

I think it's like those wannabe mafia-types who start fights in pubs:

"there isn't a jot of evidence that you go out with Cheryl Cole"

"yeah there is, here's a picture of her"

"that's cut from a magazine and doesn't constitute evidence"

"YOU CALLIN' ME A LIAR?!"

twaza (@wassabeee on twitter) said...

You (and inadvertently the BCA) have done an enormous amount for freedom of speech in general, and for due diligence in chiropractors when they make claims about the effectiveness of thier treatments.

Thanks a million.

Rightwinggit said...

Congrats to everyone involved.

Simon?
Now the pressure's off, how about another book?

I've got quite a few of yours, how about tackling quantum mechanics this time around?

Go on, I dare you...

Harbo said...

Surely "we" can just say
"The now discredited BCA"
at the commencement of all comment, and just get on with our lives.

Dr Aust said...

Oh dear oh dear.

Perhaps the BCA should have hired me to do their PR earlier on, rather than simply adopting my "Exit Strategy"...!

To my way of thinking, the "Smoking Gun" question - at least were I BCA member and wondering whose idea this whole sorry saga had been - is this:

who took the decision NOT to accept the offered right of reply from the Grauniad, and instead to ramp up to the full pursuit of Simon Singh?

RichieRich said...

If the accusation by the BCA that Simon alleged them dishonest was merely tactical as opposed to a genuinely-held (but late-emerging) view, then I'm delighted that their attempt to play hard-ball spectacularly failed.

Andy said...

Any chance you might counter-sue after the implication that you acted maliciously?

I appreciate everything you've done - and been through - but I do like icing on my cakes.


PS
Verification text for this comment: "SUMMON"

Is someone playing games?

Skepticat said...

Far from being dull, that was gripping to the end, thanks.

"...maybe there are deeper problems at the heart of the UK’s biggest professional body for chiropractors."

And maybe the Pope's a Catholic. I could almost feel sorry for the chiros who, through no fault of their own, have such a crap body to represent them. What's stopping me feeling sorry for them is the way some of their number have behaved online since Eady's ruling. Apart from continuing to defend bogus therapies for which there isn't a jot of evidence, many of these people consistently mispresented whatever was happening in BCA v Singh while launching vicious personal attacks on Simon himself, as well as on those bloggers who've played an active part in support such as JoK, Simon Perry and Zeno.

Yes, they do need to engage in honest and constructive dialogue with their critics but, on the evidence I've seen so far, I'm not at all sure they're capable of it.

Squillo said...

The BCA is in desperate need of a new communications department.

Remember when they issued a statement claiming they “had no wish for [their] dispute with Simon Singh to end up in the courtroom”?

Thanks for fighting the good fight, Dr. Singh.

Dr. Brian Blood said...

Do we have good evidence that only 25% of judges believe that Simon's article contained any allegation of dishonesty on the part of the BCA?

I think we might do a little better if we accept Jack of Kent's reading of Laws LJ's observation (see Blog - Friday, 6 November 2009):

".. litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest"

JoK write: "this statement is an implicit rebuttal of the mention of dishonesty in the High Court's original ruling"

So actually only 1 out of 5 of judges (i.e. 20%) take this position on dishonesty.

We might surmise even further - but we now enter the realms of bad science.

The BCA stopped its action because it thought:

1. it would lose in the Supreme Court (another group of judges likely to support Simon's pleaded postion) - Simon's ratio improves!

2. the case returns to Eady LJ, and he is forced to accept that there was no malice at all (in which case we have 100% of judges, after due reflection, finding that Simon's comments did not imply dishonesty).

So did the BCA withdraw from the case with one judge still in support, having not had to test the 'plethora' in a court of law so that it could continue to assert that their action was about their reputation (because Eady did not say it was not) and their evidence is still acceptable (because the courts have not said that it is not)?

It was never about the libel, only about PR?

jimjim237 said...

Well, since the BCA seem to have dishonestly pursued a claim of dishonesty, perhaps an additional descriptive can be justifiably attached to their now widely accepted moniker of "the discredited BCA".

Andy said...

Remember when they issued a statement claiming they “had no wish for [their] dispute with Simon Singh to end up in the courtroom”?

Yes, I remember. I think that was one of those locked pdf media releases.

I've seen a lot of media releases but, until these, I'd never seen a locked one and I still can't understand the purpose of locking something you presumably want republished in the media.

Zeno said...

Simon: It's good to have all this all out in the open at last.

Dr Aust asked: "who took the decision NOT to accept the offered right of reply from the Grauniad, and instead to ramp up to the full pursuit of Simon Singh? "

I can't say, but I note that Companies House registered that the appointment of BCA Director Anthony Metcalfe was terminated in November 2009.

Shell said...

Not dull at all! I'm very interested to read how things progressed as their statement 'bothered' me.

Congratulations again.

AndyN said...

Fascinating insight to the case and your struggle. Not dull at all. Thanks for sharing the details.

lloyd Jenkins said...

Simon,

Well done on having the integrity to fight the good fight.

rjh01 said...

Maybe the BCA is talking about itself rather than anyone else?

This blog makes a good case for dishonesty by the BCA.

Neuroskeptic said...

Completely off topic but you should have won the Orwell Prize, Jack.

Although, I have to say, given the quality of some of the shortlistees and the winners in the past few years... is it really such an honor?

Michael Kingsford Gray said...

It is my very non-legal opinion that the explanation for the sudden appearance of the novel 'dishonesty' exit strategy is a clear and direct acceptance of Dr. Aust's suggested wording in a comment on this very site.
.jackofkent open-letter-to-bca

Even so, there is not a jot of evidence to support my absurd notion of plagiarism.

Andrew MW said...

Fascinating, and congratulations!

I did chuckle at "The British Chiropractic Association have told us...." in the solicitor's letter - classic weasel words.

When I worked as a solicitor I used to use a similar construction when I wanted to distance myself from my client's views (or doubted they were correct). What a surprise!

VMG said...

Hi Simon

Firstly, congratulations on winning the case & thanks you & JoK for the blogpost. The entire case was hopelessly naïve and misguided & I’m sure it has been a very unpleasant experience. It’s very interesting to get your perspective after the case has ended.

Secondly, I’ll declare an interest in that I am a current BCA member.

From my perspective, the whole episode has also been unpleasant – and fascinating - and weird - all in equal measure. Unpleasant because chiropractic has been pilloried & I’ve had a complaint made against me, fascinating because it has created a great deal of discussion within the profession, & weird because I never thought I’d be slagged off by Dave Gorman.

It may have appeared to you that Chiropractors were somehow kept in the dark about what was really going on with ‘nasty Simon calling us liars’. But that seems to assume that Chiropractors were not interested in finding more information on the case or were incapable of making value judgements about it, and also that the BCA press releases represent the feelings of all BCA members.

The latter is a reasonable assumption seeing as how the BCA should represent BCA members, but having not been consulted on any aspect of the legal action from the start, any communication on the case should be viewed from the perspective that it is not necessarily representative of BCA members & more importantly it should never have happened in the first place. Basically - not in my name.

Unfortunately, it has been done ‘in my name’ & the personal/professional repercussions have been significant. I am good at my job, my clinic is busy & I have a good reputation so no problems there. But the perception of my profession has become a caricature & I have had a complaint made against me by someone who I have never met, for treating mechanical/orthopaedic conditions I am well trained to treat & are seen daily throughout manual therapy.

I was UK trained in the early 1990’s & the perception of the lack of training & the dominance of ‘pre-scientific’ concepts is entirely wrong. It is a source of continual irritation to be making regular serious clinical referrals (often for pathology missed elsewhere in the healthcare system) using standard diagnostic techniques as I was trained to do, & at the same time being called a charlatan.

My fear is that you & Prof Ernst seem to be endorsing RCT’s as the exclusive tool for deciding effective treatment protocols in manual therapy. The limitations of both the sensitivity of imaging and clinical diagnosis mean that the application of an RCT to a headline set of similar symptoms is way too blunt a tool and ‘No RCT = No evidence’ is hopelessly simplistic.

From a freedom of speech & a libel reform perspective I am really pleased you won the day. I am less pleased that it has created a bitter, wiki’d up, polarised, shouting match, rather than a 'wide ranging, robust dialogue' - & sadly what ever the skeptik blogosphere is, very little of it is it’s anything like ‘sense about science’.

Chiropractic has been great to me & so has the BCA over the years, but Chiropractic has also been the Cinderella of manual therapies & by getting involved in this absurd case & handling it the way it has, the BCA has caused a major pumpkin crash on the way to the ball.

Jack of Kent said...

@VMG

I would like to make a point of welcoming you to this Blog. Other BCA members are also very welcome.

And thank you for taking the time to post your very interesting comment.

Jack of Kent

amie said...

Simon's analysis, far from being dull, is a very useful case study for the purposes of any reform proposals which attempt to see where the inexorable march to court can be stopped in its tracks earlier in the process.
In this regard, a similar analysis of the Osler case would be welcome, to see how this could have gone on for 2 years without someone in case management being able to ask why this is proceeding, and this only happening when, to his great good fortune, Osler eventually gets decent representation.

Michael Kingsford Gray said...

@VMG:
Have you considered suing the BCA for damages?
Seriously.

David said...

Full marks to you Simon, for your determination and tenacity in seeing this through.

I am a BCA member and obviously I would rather not have witnessed the association embarrassing itself in this way. As an ordinary member I was not actually aware of the action that had been brought against you until it hit the media.

It always seemed like an odd fight to pick, as treating childhood disorders such as colic, asthma etc. is hardly the core of chiropractic, especially in the UK. Ask any man or woman on the street why thay might see a chiropractor and, penny to a pound, they'll talk about back pain, neck pain and so on. Musculoskeletal disorders have been the "backbone" of chiropractic for years.

No, I think that the decision to sue was indeed a result of the offence taken by the BCA to the implication of dishonesty. Although the whole thing was rather naive and ill-advised, I believe that the course chosen (that is, the evidence-base for treatment), was largely on the advise received from the lawyers (sorry JofK). Nevertheless, it's I and my colleagues, not the lawyers, that have to live with the consequences.

So, where are we now? Well, whether or not this has advanced the cause of freedom-of-speech I couldn't say. To be honest, I'm not convinced that it ever was a freedom-of-speech issue. I think this came down to a battle of pride, and you won.

What concerns me more, is what it has done to chiropractic. I've seen my reputation damaged as a result of a battle to defend the treatment of conditions I never treat. My profession is now regarded by many as dishonest, and I have a complaint to the General Chiropractic Council against me, without me having ever done any harm to a patient, by someone I've never met.

However, out of this debacle, good will come. Chiropractic will take a long, hard look at itself. The huge majority of chiropractors who spend their time treating musculoskeletal disorders will continue to do so. Those who wish to expand their practices into other areas will need to engeage more in the research to support it.

As for the BCA, I'm sure that lessons have been learnt. In life we sometimes have to put up with people accusing us of things we know not to be true. We now know what a nightmare libel cases are, and that there is rarely a winner.

Let's get back to work.

VMG said...

Jack

Thanks for that. These are purely personal views but I though it might be interesting to give a different perspective and having Simon guest post is a great opportunity to be part of the fabled ‘robust dialogue’.


Dr Aust

I have no idea who took the appalling decision not to take the right to reply but I’m fairly sure it would not have been down to a single individual. The enquiry will be a bit like establishing who just farted in a lift – in the end it doesn’t really matter who it was – everyone just wishes it hadn’t happened. Whoever it was though, really should get off at the next floor.


Michael

Basically, no - I wouldn’t even think of it.

As I said, the BCA has been good to me over the years - even though it has got this so utterly wrong, historically, it’s been a source of great help & advice to me - as a professional association should be. I could, however, seek compensation for the RSI I have developed from continually having to put my head in my hands.

I have never viewed the BCA as a malicious or aggressive organisation - in spite of how it may appear from recent events. Prior to all this, the worst thing it was guilty of was fighting apathy in the profession like an aunty trying to get you to dance at a wedding. It functioned pretty much like most other committee based organisations I have ever been a member of – necessary, slightly dysfunctional, and generally with it’s heart in the right place. I’m just really disappointed that this situation has arisen & then with how it has been handled.

I also think that legal action for something like this would be contrary to the basic principle that the law should not be in areas of life where sensible dialogue & reasoned argument should be instead. I think that’s what a lot of this is all about.

And anyway, in terms of ‘damages’ I can’t really specify what has been ‘damaged’ - other than a metaphorical pumpkin & I doubt even Justice Eady would give me the nod for that.

BillyJoe said...

Thanks for posting this, Simon.

I, and many others, had a long running argument with a certain poster here called Botogol (who seems to have disappeared from the comments section of late) over his insistence that there was an implication of dishonesty in your use of the word "happily".

Although he supported you and hoped you would win, he accused many here of "jumping on a bandwagon", rather than thinking critically, regarding our suggestion that the word "happily" could just as easily have implied "ignorantly" (as in "happy in their ignorance").

He invited us to discuss this further on his blog and, as far as I can tell I was the only one to accept that offer (except for a brief note from Jack of Kent). For this I was rewarded with ridicule and a complete failure by him and several of his supporters to address any of my points.

So, thank you for vindicating our stand.

And shame on Botogol for disappearing instead of facing the music and apologising.