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Sunday, 18 April 2010

BCA v Singh: Did the Skeptics *really* make a difference?

"Jack of Kent, pleased to meet you, love your writing."

And with that introduction, I am tossed into Nick Cohen's wonderful and heart-warming article today, agreeably titled: "Now charlatans will know to beware the geeks".

At least I am presented as having some social skills.

(A geek, of course, is a nerd with social skills.)

But is it correct to emphasise the role of skeptic bloggers, geeks, nerds, and the rest of the internet-based enthusiasts and Skeptics in the Pub attendees who have clamoured and campaigned over the last two years?

Well, in narrow terms, such an emphasis is incorrect.

The case ended within a matter of days of a highly adverse ruling of the Court of Appeal. This is not unusual. Not even those who inhabit the alternative reality of alternative medicine could realistically maintain a legal case in such circumstances.


However, the case - and Simon Singh's defence - needed to have got that far.

And this is where I would contend that the emphasis Nick places on the various forms of skeptic activism is in large part correct.

In particular, I would highlight the following points where it seems to have made a difference.


First, from the news emerging of the libel suit to the preliminary hearing (August 2008 to May 2009), it was on-line volunteer sources - bloggers - who shared, analysed and collated all the available information. There was almost no mainstream media interest at at all; indeed, there was no formal campaign behind Simon beyond a Facebook group.

Simon could have given in then, but chose not to: in part because of the moral support he was obtaining - internationally - from well-wishers, scientists, and bloggers.


Secondly, after the preliminary hearing - with its astonishingly illiberal ruling - it was this internet-based support and awareness which helped convert a good cause into a major outrage.

When I organised the meeting in Penderel's Oak last May (at which point Simon was still very undecided about whether to apply to appeal), it was via blogs and Twitter that word was passed that a perhaps important event was about to take place.

Indeed, both Dave Gorman and Professor Brian Cox kindly came to speak at that meeting having heard about it through Twitter.

The huge support Simon received at that meeting made a real difference; and not only to Simon's resolve.

The meeting was also the first time that the mainstream media became interested in the story; it was when Simon's campaign hooked up with Nick Cohen's longstanding critique of English libel law generally and one judge in particular; and it was when it became clear that there was a coalition, ranging from figures in popular culture to eminent science publishers, from politicians like Evan Harris (who also spoke) to bloggers, who had simply had enough.

And it was a meeting organised in a few days and which would not have occurred but for blogs and Twitter.

Then, following that meeting there were wide-ranging internet-based discussions about which course of action to take. The so-called Heresiarch Manoeuvre - of Simon apologising for a meaning he didn't intend just to bring a silly case to an end - was analysed from every angle.

It was almost "wiki-litigation".

However, this did not force Simon into his decision to apply to appeal: there was a range of other, more important factors, from the support of his wife to the funding arrangements of the lawyers. But the on-line support and rigorous examination of his options played a significant part in his decision-making.


Thirdly, from Simon's decision to apply to appeal (May 2009) to finally obtaining permission on his third attempt (November 2009), it was the skeptics and others whose ongoing and loud support kept Simon as as cheerful as possible. At any point in this period - especially when the Court of Appeal refused permission - no one would have thought badly of Simon if he had just brought the case to a halt. Again, the ever-growing on-line support helped keep him soldiering on.


But in the meantime, the skeptics were making a crucial difference to the case elsewhere.


For, fourthly, a concentrated effort by bloggers had forced the BCA to disclose its evidence into the public domain. Famously, the "plethora" of evidence was then destroyed utterly in less than a day.


And, fifthly, Alan Henness and Simon Perry - and others - had set about an internet-based campaign (which I dubbed the "quacklash") to force hundreds of chiropractors to actually abide by their professional obligations, and with the rules of advertising and trading standards.

This campaign, which is still on-going, not only had an incredible effect on the promotional activities of chiropractors; it meant that many chiropractors were stopped from making the very claims which the BCA were litigating over before the High Court.


The dual effect of the destruction of the "plethora" and the impact of the "quacklash" was to destroy the credibility of the BCA.

This adverse consequence the BCA's scientific credibility, combined with the moral support, the enthusiasm, and the "wiki-litigation", all helped ensure that Simon maintained his defence - and allowed the world to see why he should maintain his defence - all the way until 1 April 2010, when the Court of Appeal handed down its judgment.

(And there is of course a delicious irony that a process which commenced in "Chiropractic Awareness Week" in 2008 effectively ended two years later on April Fools' Day.)


However, it is crucial not to overstate the effect of the skeptics.

It was the magnificent legal work of Adrienne Page QC and William McCormick (also now a QC), supported by Robert Dougans, which enabled Simon to obtain permission to appeal and then to succeed before the Court of Appeal.

In my view, Simon would simply not have won without these lawyers; indeed, he would been highly unlikely to have got to a full Court of Appeal hearing.

It was Sense About Science which converted a pub meeting of a few hundred people into the outstanding Keep Libel Out of Science campaign and a petition of 25,000 people; and it is now on this solid foundation which the wider Libel Reform Campaign is partly based.

It was the British Medical Journal which subjected the "plethora" to a peer-reviewed and formally-published demolition of the claims of the BCA for their supposed "evidence"

It was the readiness of Trading Standards officers and the Advertising Standards Authority to take seriously the "quacklash" complaints which effected a reformation in the professional practices of chiropractors such that their own professional body had never bothered to try and achieve.

And it was Simon Singh and his wife Anita who made it all possible. No words can express the admiration which his example in this case inspires.


I have now been asked to write a book over the summer about the campaign and the case, which will have a lengthy preface by Simon.

And in the book I will of course not deny that skeptics and geeks, nerds and bloggers, played an important role in the case, and one which should be emphasised.

But an evidence-based approach is more important, and so I think we will find that it was a little more complicated than that.


If you have not done so, please sign the Libel Reform Petition.



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Friday, 16 April 2010

Orwell Prize Shortlist - and why blogging is *not* the new journalism

This blog has now been shortlisted for the George Orwell Prize for blogging.


However, this is merely one of many blogs which are promoting critical thinking and a source-based approach on matters of public interest.

So, if you are visiting this blog for the first time, I would strongly recommend The Heresiarch, who addresses brilliantly a range of political, cultural, and religious matters, the provocative and sharp Richard Wilson of Don't Get Fooled Again on politics and censorship, and the incomparable Tim Ireland of Bloggerheads on the political use (and misuse) of the internet.

On "Bad Science" and public health matters (where there has been an overlap with my libel interests because of the misconceived and now failed case brought by the British Chiropractic Association against Simon Singh), the best blogs are the simply amazing Gimpy, the wise and incisive Quackometer, and of course David Colquhoun, a distinguished professor and Fellow of the Royal Society who has taken to blogging about bullshit with the fire and deftness of a pharmacological George Orwell.

Other blogs I greatly admire for their promotion of critical thinking and a source-based approach include Vagina Dentata, on science from a feminist perspective, Dr Petra Boynton (my personal favourite) on sex and relationship issues and media reporting, the erudite and charming Jourdemayne covering religion and superstition, and - a useful corrective to my hostility to current English libel law - the legal blogger Lucifee.

And there are many more.

Blogging is the perfect medium for promoting critical thought and a source-based approach on any matter of public interest, from science to Scientology.

Bloggers can write what they want, when they want. They are freed from the relentless editorial and advertising cycles which reduce many hard-working and talented reporters to mere churnalists.

Bloggers can often add value - either as analysts, explainers, or providers of fresh information - just because they are able and willing to do so as volunteers.

Bloggers can help inform emerging debates or undermine conventional wisdom. But they do this not because they are aping journalists; it is that they are being active citizens.

And bloggers can link without reservation.

A blogger can link to a number of competing media outlets in a way which a reporter will never be able to do.

A blogger can link to the source of his or her contentions, allowing the reader to ascertain the veracity of what is being claimed.

And a blogger can happily link to other bloggers who may have different views on the same subject, so that the reader is not reliant on one perhaps fallible source.

For these reasons, I would suggest blogging is not the new journalism.

The occasional, voluntary, generally selfless, and transparent nature of blogging means that it is more about public participation.

Insofar as blogging exposes any deficiencies in journalism - by adopting a more informed, critical, and source-based approach to a given topic - it does so in a way which may not be feasible or commercial for reporters and media organisations to do.

I do not think blogging can ever replace journalism. There is neither the inclination nor the capacity for bloggers to become a network of primary news providers.

It may be that blogging could have an effect on internet-based "opinion pieces" and columns: I always tend to go a respected blogger on any given topic before a weekly columnist.

But even then, blogging can be sporadic, and op-ed pages in the hard-copy editions do need to be filled on a regular basis.

Blogging is not, in my view, a fundamental threat to news reporting.

(Indeed, one point of this particular blog is to make it easier for national and local journalists, as well as other writers, to do their job without needless worry of libel threats.)

Blogging may well be a threat to poor journalism and a welcome gloss on good journalism; but I do not think that is its main focus.

As I have previously noted, Dr Johnson would regard bloggers as blockheads (or, I suppose, bloggerheads).

However, I think George Orwell's own motivation is more akin to why good bloggers do what they do:

"My starting point is always a feeling of partisanship, a sense of injustice. When I sit down to write a book, I do not say to myself, ‘I am going to produce a work of art’. I write it because there is some lie that I want to expose, some fact to which I want to draw attention, and my initial concern is to get a hearing."

So, for me, blogging is not the new journalism; but it is perhaps an emerging form of active citizenship.



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Thursday, 15 April 2010

BCA v Singh Ends Not With A Bang

The British Chiropractic Association has discontinued its case.

(However, it is the substantive case which is discontinued: there may still be further court hearings if costs are not agreed.)

One major effect of the discontinuance is that the Court of Appeal decision in Singh v BCA will not face being overturned by the Supreme Court (the former House of Lords).

The appeal case is, in my view, now binding authority on the High Court that adverse but good faith statements regarding evidence must be treated as having the defence of honest opinion.

This is an real advance, for science writing and beyond.


Another effect is that City libel lawyers touting for "reputation management" work will need to fundamentally re-think their litigation models - both in terms of tactics and strategy - when there is the possibility of internet coverage of their client's case.

BCA v Singh has shown that if a client's reputation is being taken seriously (rather than being used as a pretext for closing down criticism) then the old-style and clumsy approach to libel litigation can instead undermine a client's reputation.


So Simon's victory makes a welcome dent both to the substantive law of libel and day-to-day practice of libel litigation.

But it is only a dent.

Simon's wonderful victory should not obscure how incredibly difficult it was for him to get this far: only since 1 April has he had any advantage in this case. And at times - for example, after the preliminary ruling and at the two refusals of permission to appeal - he has been very much at a very depressing disadvantage.

And the wider problems of libel remain: there is no effective public interest defence; the menace of libel tourism continues; the costs regime is nothing less than obscene; and corporations are allowed to threaten libel suits too easily.

Anyone who had an interest in Simon's case should now follow - just as avidly- the campaign for libel reform, to which Simon is passionately committed.

Visit the Libel Reform website and if you have not signed the petition, please do so - wherever you are in the world.

We are slowly making it safer for writers and publishers in England and elsewhere to make vital contributions to a range of public debates without fear of a libel threat from English lawyers.

Our next moves involve engagement with vested interests far more powerful than the hapless and discredited BCA.

There is some way to go; but, at least, we are now at the end of the beginning.


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The BCA Drops Case Against Simon Singh

According to the website of William McCormick QC, one of the barristers acting for Simon Singh, the the British Chiropractic Association has served a "Notice of Discontinuance".

The case is over.

There is no news on the costs position.

More information to come...


UPDATES

The BCA has now published a press release.

(Hat tip to The Heresiarch.)


Barrister and skeptic Simon Bradshaw has helpfully pointed out in the comments below aboutCivil Procedure Rule 38.6:

38.6— Liability for costs

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.


We need further information before we know for certain that Rule 38.6(1) applies, but I suspect that this would at least be the starting point.



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Wednesday, 14 April 2010

Shall we arrest the pope?

There would be a certain irony if Joseph Alois Ratzinger, the 265th "pope", was arrested, charged, convicted, and punished in controversial circumstances.

For after all, that is what supposedly happened to Jesus of Nazereth, and so led to the various religious movements which we now generally call "Christianity".

Such an irony would in some ways be pleasing, for the Roman Catholic church has long sought arrogantly to put themselves beyond the reach of the civil authorities.

In principle, watching the pope do the "perp walk" - perhaps handcuffed to some surly female police officer - would be satisfying to those, like me, of a strong atheist and anti-clerical temperament.

However, such fantasies must yield to the fundamental liberal requirements of due process and the rule of law.

Of course, Ratzinger should not be immune from arrest or charge, prosecution or punishment, just because he is the pope; but he also should not arrested or charged, prosecuted or punished, just because he is the pope.

A proper secular and liberal approach would be to disregard all the paraphernalia of his papal office.

Instead, it would be to treat Ratzinger simply as any other potential suspect in these sordid circumstances: a perhaps foolish or culpable old man - amongst others - who may - or may not - have been complicit in either horrendous sexual abuse against children or the cover-ups afterwards.

Any arrest would then be because that there was evidence that he had committed an identifiable criminal offence.

It should not be the case that, for vague and well-meaning reasons, we have deemed that somehow he should be arrested or put on trial anyway.

For, unless there is evidence in respect of a specific offence, one would simply be placing Joseph Ratzinger in the place of Josef K.

And so this is where I part company with Richard Dawkins, who has recently stated:

"Why is anyone surprised, much less shocked, when Christopher Hitchens and I call for the prosecution of the pope, if he goes ahead with his proposed visit to Britain? The only strange thing about our proposal is that it had to come from us: where have the world's governments been all this time? Where is their moral fibre? Where is their commitment to treating everyone equally under the law?"

Do read this Dawkins article carefully.

See how he calls not for an investigation but - expressly - for a prosecution.

But see if you can identify under which actual offence Dawkins believes that Ratzinger should be prosecuted, as opposed to a general - and clearly deeply-felt - desire to have such a prosecution.

Dawkins does not identify any offence.

But it would appear that Dawkins wants to prosecute Ratzinger anyway.

One could almost say that the great thing about legal opinions like that is that we should safely ignore them.

For, as Church Mouse sets out in an excellent blogpost, there is not a criminal offence in respect of which there can be an arrest.

(The Heresiarch came to a similar conclusion.)

And in an outstanding piece of legal blogging, Dapo Akande sets out that even the "threshold" issue of whether Ratzinger as Head of State of Vatican can be prosecuted is an extremely difficult one to overcome.

One can sympathise with Dawkins - and also Geoffrey Robertson, who similarly fails to specify the actual offence under which he would like for Ratzinger to be prosecuted - that some grand gesture should be made in respect of Ratzinger's apparent role in all the vile abuses and cover-ups.

But just arresting and prosecuting Ratzinger for the sake of arresting and prosecuting him would, of course, be misconceived.

A more sensible and appropriately secular response to the unfolding scandals would be to insist that criminal investigations are commenced and allowed to run their course without regard to any special or privileged position of Roman Catholic clergy.

And the Roman Catholic clergy should co-operate fully and openly with these investigations.

The whole situation just needs to be thoroughly secularised.

If these investigations lead to there being sufficient evidence to arrest and charge any individual - including Ratzinger - such arrests and charges should be made.

Any attempt by Ratzinger or any other suspect to rely on the doctrine of sovereign immunity or some other privilege can then be squarely addressed.

There is always an impulse to use the coercive power of law as an aid in controversial issues: for example, alternative health practitioners sue for libel just as Christian Evangelicals used to try and bring blasphemy prosecutions.

But it is an impulse one really should resist.

Calling for the immediate arrest and trial of Ratzinger without any attempt whatsoever to identify the relevant offence strikes me as an illiberal and even discrediting exercise.

Instead, stripping the Roman Catholic church of any actual or imagined immunities and privileges, and insisting criminal investigations take their proper course, is the better position.

Then any consequent prosecutions and punishments will have a far sounder and resounding basis: a basis consisting of due process, the rule of law, and an entirely secular view of the world.

So should we arrest Ratzinger?

Yes, but only if that is where the operation of due process and the rule of law actually take the investigating and prosecuting authorities.

And, should this happen, then that really would be the "perp walk" to behold.



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Wednesday, 7 April 2010

An Open Letter To The BCA

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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Guest Post: Stephen Curry on Evidence and BCA v Singh

In the first guest post on Jack of Kent, Professor Stephen Curry of Imperial College writes about the nature of evidence and the Court of Appeal decision on British Chiropractic Association v Simon Singh.

Science: taking a closer look

About a year ago when I became aware of the libel suit brought by the British Chiropractic Association (BCA) against Dr Simon Singh, the first thing that struck me—as someone who is a working scientist—was the unscientific nature of the action.

Last week's ruling on meaning by the Court of Appeal has confirmed me in that view.

Many words have been expended on the Court of Appeal's judgement. I have particularly appreciated the clear legal exposition of my host, Jack of Kent, Heresy Corner's dissenting take and a perceptive examination of the BCA's mindset by Dave Gorman.

I would like to expend just a few more words to consider paragraph 26 of the judgement, which seems to me to go to the scientific heart of the matter. Let us look at exactly what it says:

26. What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be.


There are several interesting points here.

First, it is pleasing to see that their Lordships have a sophisticated understanding of the nature and variability of what constitutes evidence, even in science. I can only speculate that they have read either or both of Ernst and Singh's Trick or Treatment and Ben Goldacre's Bad Science, which give detailed expositions on the factors that determine the quality of scientific experiments, with particular reference to clinical trials. Not all experiments are equal. Controls—the deceptive application of a mock treatment—are vital. Blinding of the scientists and the participants to whether any given participant is receiving the mock or the test treatment provides the most unbiased way of determining treatment efficacy. But not all investigations adhere to these standards.

Second, their Lordships draw an interesting distinction between "literalists" who are prepared to make facile causal links between observations and those "concerned with the establishment of dependable generalisations about cause and effect". This latter group includes but is not restricted to professional scientists. But, given the use of that word "dependable", it is difficult not to envisage that this group must include those who are willing to apply the scientific method rigorously. Few people, I imagine, would be prepared to submit to treatments developed by "literalists".

Third, by highlighting this distinction, their Lordships draw attention to an unhappy fact about the scientific profession: not all scientists are equal. Some of them are cleverer than others. Some of them are more critical in their interpretation of experimental data. And some of them produce work that is not very good.

As a result of this variability, we have the necessary cut and thrust of scientific debate—the free exchange of criticism that is so important to the method—in which scientists robustly evaluate this or that piece of evidence. (For anyone interested in the technical details, there is an interesting case study here.) Just because an experiment has been done does not mean that useful evidence has necessarily accrued. The good stuff is kept—for the time being—and used as the basis for further investigation. The bad stuff is discarded and left to lie, lifeless and unread, in the scientific literature.

Crucially, their Lordships contend that it is within the context of this scientific rough and tumble that assessments such as "not a jot of evidence" can readily be taken to mean "no... reliable evidence". These argumentative evaluations of evidence are part of the widely understood terms and conditions of scientific debate. It is a blessed relief that they have been thrown out of court and returned to their proper place: the public domain.

Paragraph 26


There is an interesting follow-on to this judicial dissection. In the very next paragraph of the ruling, the Court of Appeal mention a revealing example of the BCA's approach to scientific evidence:

27. ...Dr Singh's defence includes, in §8(25), a survey of controlled clinical trials on the efficacy of chiropractic in treating infantile colic, none of which, he contends, affords objective support for the BCA's claim. The BCA, in §9(23) of its reply, relies (among other studies) on a 1989 observational study of 316 children, of which it is said:


"This... measured the number of hours each child spent in crying. It showed a reduction in crying time from 5.2 hours each day to 0.65 hours each day at 14 days. This was a very substantial improvement. There was no control group. However, the study constitutes evidence."



Their Lordships are careful to point out that this is not the only study cited by the BCA in support of their claims. But it is telling that this paper [Klougart et al. (1989) J. Manipulative Physiol Ter, Vol. 12, p281-8] is cited at all*.

The Klougart study is considered by the BCA to constitute "evidence". But there is no control and therefore no way to gauge the efficacy of the chiropractic intervention.

This is not evidence that a scientist worth their mettle would consider to be of any real value. This is not evidence that I would tolerate in an argument from one of my undergraduates. This is not evidence that a child at primary school learning about science at key stage 1 of the national curriculum would consider to be derived from a "fair test".

The BCA is a professional organisation that represents the interests of chiropractors who claimed to be able to treat non-spinal childhood ailments by manipulating their spines. Those are bold claims given our modern understanding of human physiology. That the BCA is happy to cite the paper by Klougart and colleagues as worthwhile evidence supporting chiropractic treatments tells me they are far less critical, far less scientific, than the public has a right to expect them to be.

 





*This study is the second paper listed in the press release put out by the BCA in June 2009 to demonstrate that there is a "significant amount" of evidence to support the claims that chiropractic could treat childhood ailments such as colic.

The totality of this evidence was subjected to intense scrutiny in the blogoshpere and the pages of the British Medical Journal and found to consist of irrelevant or poor quality trials.


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Monday, 5 April 2010

Why MPs should support libel costs reform this week

There is currently before Parliament a draft statutory instrument on reforming the obscene costs in libel cases.

It may go to a vote of the House of Commons this week after being defeated in committee last week.

Both supporters and opponents contend this draft SI will have a dramatic effect should it be enacted.

The draft statutory instrument (SI) does not have a glamorous title - it is called The Conditional Fee Agreements (Amendment) Order 2010.

Nor is it very long: it has only three paragraphs, of which only one is substantive.

Indeed, one could almost tweet it.

The single substantive paragraph contains a single, simple provision.

The "uplift" for lawyers acting on a "no win, no fee" basis (under Conditional Fee Agreements - or "CFAs") in publication proceedings shall henceforth be 10%.

This means that if a lawyer agrees to act in such a case - for claimant or defendant - and wins, then he or she can claim their legal costs from the losing party plus an additional 10%.

The additional 10% has not been earned, incurred, or billed by the law firm; but it goes straight to them (and not their client) as the reward for taking the risk of such a case.

If the lawyer loses then he or she gets nothing, and the client has to pay the fees of the successful side (which may also include an "uplift").

Why is this controversial?

Why are libel lawyers and others so bitterly opposed to this 10% reward for taking on a case on such terms?

To try and answer these questions, one must look at what is taking place at the moment.


The status quo

The current position is that such lawyers are routinely charging an uplift of 100%, and not the 10% proposed in the draft SI.

They double their fees and charge them to the loser.

They threaten to double their fees and so intimidate the potential defendant.

This is not justice; it an abuse and undermines free expression.

And this is in addition to the substantial "after the event"("ATE") insurance premiums which are also payable by the losing side.

The effect of the uplift and ATE insurance is that the defendant is faced with a legal bill which can instantly be 300% of the actual legal fees incurred by the claimant.

As Marcus Partington, Chairman of the Media Lawyers Association, describes:

"Some of the people [...] who act for claimants, they charge £500/£575/£650 an hour; if you then double that with a 100% success fee you are over £1,000 an hour; you then add VAT on top and you are talking about a huge figure per hour. On top of that the premiums for ATE insurance run at roughly £68,000 per £100,000 worth of cover. The claimant does not pay for that insurance; they incur the premium but they then claim it back from the defendant. The vast majority of cases against the media are won by claimants."

And in the words of Ian Hislop:

"If someone comes and says, 'We are suing you, and not only that, we have a CFA, which means we can just make it up. It will be any figure that comes into our head, double it, double it again, and you pay all of it,' that makes you think twice about running a piece."

The barrister Lord Pannick QC in the House of Lords debate on the SI put it in stark terms:

"...a particular and urgent problem needs to be addressed in the context of libel and breach of confidence law. It is an urgent problem because the consequence of the cost regime today is that it is deterring defendants from exercising their freedom of expression. That is a fundamental right for them and a fundamental condition of a free society in which those who are governed are given information about those who govern us, information that people in power, let us be blunt about it, and influential people would much prefer to keep confidential, even if-indeed, often especially if-it touches on matters of public interest".

So how has this situation come to pass?

Why has an uplift designed to be fair to lawyers taking on CFA cases caused such a dreadful situation?

Well, most of the law firms involved do not appear to use the current 100% uplift to actually cover the risk of running unsuccessful cases.

Instead, there is evidence that the firms adopt an approach to risk analysis which means they do not go with unsuccessful cases, but usually with good cases anyway.

Again, in the words of Lord Pannick QC:

"The 100 per cent success fee is a deterrent, whether the journalism is lazy or dedicated. The justification for the success fee of up to 100 per cent, as has been explained, was that it would enable otherwise impecunious claimants to bring proceedings to vindicate their reputation on a conditional fee basis and to compensate lawyers...for the unsuccessful cases in which they act on such a basis. It is a swings and roundabouts approach. This rationale, in my experience, has been undermined by two factors that have not yet been mentioned.

"First, a very large number of the claims in which these success fees are secured have been brought by claimants who were perfectly capable of paying their lawyers a proper professional fee. There is no restriction on these success fees to the impecunious.

"The second problem is that not all but many lawyers operating in the field of libel and confidence choose very carefully the cases in which they act on a conditional fee basis."


Indeed, in evidence to the DCMS select committee, one partner of a law firm stated:

"I think it should be pointed out as well that, of course, when the Conditional Fee Agreement is entered into by a firm of solicitors it can represent a very considerable investment by that firm because you are agreeing to act on a 'no win, no fee'. In my firm we have a very rigorous risk assessment procedure at the outset to decide whether or not we are prepared to take on a case on a CFA. So it is not surprising that the cases we do take on CFAs are ones we expect to win."

Having reviewed the relevant evidence the select committee reported:

"In the matter of success fees, the argument is made that they need to be high to compensate for the risks run by lawyers: they need relatively high fees in cases they win to balance the fees that are unpaid in cases they lose. This view is not, however, supported by the data available on the outcomes of cases of this kind. This data suggests that CFA-funded parties win the vast majority of their cases. The system is therefore tantamount to "always win, double the fee"."

This is the regime which will continue unless the draft SI is implemented.

In the words of Lord Pannick, "there is an urgent and serious problem about freedom of expression".


The proposed reform

The current and urgent predicament for free expression caused by the 100% uplift surely means that the proposed 10% reform should be implemented unless the reform actually makes a dreadful situation worse.

So the key question for those who oppose the 10% reform is whether it would make the current situation worse.

On this, one of the opponents of the proposed, Tom Watson MP, made the following assertions in the last week (emphases added).

An unequivocal assertion in the Press Gazette:

"...this proposal would deny access to many thousands of people".

A more equivocal statement in Liberal Conspiracy:

"It could significantly reduce the chances of people receiving justice."

And in even more equivocal terms in the standing committee debate:

"I must say that the proposals would probably remove every one of my constituents from libel justice".

However, for none of these statements does he provide a jot of evidence.

And if there is no evidence, then it may be that Tom Watson and other MPs are happily promoting a bogus counterargument to the clear and urgent need for reducing the uplift amount.

The correct position is that any reduction in coverage for libel litigants would be entirely in the hands of the current specialist law firms, whom we are supposed to believe will start turning down work.

But many such firms have already separated their risk analysis from their use of CFAs: there is little evidence of the desirable cross-subsidy happening in practice.

The only impact will be on the firm's profit margins.

In the House of Lords debate, Lord Pannick QC correctly observed of the 10% uplift:

"...it will make no difference at all, because the lawyers are understandably anxious to do the work and they will continue to do the work by and large in those cases where they think that they have good prospects of success on a conditional fee basis. If the case is interesting, they may, as many lawyers do, be prepared to do it on a no-fee basis...".

This must be the correct view.

There should be an uplift to reward risk.

But as the standard practice of most libel law firms is already to run the "always win, double the fee" the only disadvantage of the reform will be to the commercial models of those firms.

I would submit that the reason why no evidence has been provided to support the various alarmist statements - both equivocal and unequivocal - about the 10% reform is that there is no evidence.

And, if I am correct in this view, then on the substantial question of the merits of the reform - whether the free speech need for reform outweighs the access to justice objections of its opponents - then the former has to prevail.

With a 10% uplift there will still be access to justice but without the adverse effects for free speech.


Procedural objections

Those opposed to the 10% uplift then resort to two procedural arguments: the lack of consultation and the threat by the government to put the SI to a vote of the House of Commons.

The contention is that the procedures followed in bringing forward the draft SI are flawed.

As substance should never be the slave of procedure - especially when fundamental issues of free speech are at stake - then it would appear that any alleged procedural irregularity must be sufficiently significant if is to be used to defeat a welcome substantial reform.

In fact there have been no such irregularities.

In the circumstances, the procedural objections are spurious.

The consultation period was indeed four weeks, not three months.

But look at again at the draft SI.

It is not a complex measure.

It is knocking out a zero: reducing the uplift from 100% to 10%.

One does not need an additional eight weeks to work this one out.

All a longer consultation exercise would do - and it appears that the demand is for a fresh three month exercise some time in the future - is to allow the law firms involved to amend their commercial model or to mobilise an even more effective lobby against the change.

There has been consultation; there just has not been needless delay.

(Indeed, when I asked an anti-reform lawyer whether he would object to a consultation period of four weeks had the reform been to make the uplift 200%, he said "of course not".)

As for the potential vote of the whole House of Commons to overturn the MPs at the standing committee, it is difficult to see this as a grand constitutional outrage.

The government is not actually proposing to use some form of sneaky executive action to circumvent parliamentary procedure; instead the government is considering actually following such procedure so as to put the matter before all MPs.

For this fundamental free speech matter to be somehow defeated on the basis of the supposed precious rights of the hitherto obscure First Delegated Legislation Committee would be bizarre, especially if the House of Commons as a whole is minded to overturn that Committee's vote.

So I do not think there is even a need to concede there are procedural flaws in this draft SI; but even if there are, such flaws are certainly insufficient to mean the SI should not be enacted on its merits.


Privacy

The only serious objection to the draft SI is not from Tom Watson MP but the Liberal Democrat frontbencher David Howarth MP.

In the standing committee, he noted that it would cover privacy actions as well as libel actions (both of which are "publication proceedings" for the purpose of the SI).

Having considered this carefully, and as someone in favour of privacy law and who who accepts the importance of Article 8, as well as being a personal fan of Mr Howarth, I am afraid I am not with him.

Privacy actions simply do not need the artificial addition of a 100% uplift to make them effective.

There is no reason why a 10% uplift would limit the readiness of law firms to take on winnable cases, just as there is no reason why they would affect libel cases.

And if a newspaper does not defend a privacy case just because of the 100% uplift that is not giving effect to Article 8 of the ECHR: it is effectively removing the ability of the newspaper to rely on the rights it may have to interfere with privacy rights under Article 8(2).

Therefore a 10% uplift is, in my view, more likely to lead to privacy cases succeeding or being defended on their merits under Article 8.


Jam tomorrow

Finally, there is the promise of better reforms some day if this draft SI is defeated: a vague reform package which may lull one into accepting the do-nothing option.

However, practical politics requires one takes the best reforms one can when they become available.

Wider libel reform may never happen; but this draft SI will take effect in days, subject only to a single House of Commons vote.

One should never hold off an actual possible reform just because a better one is promised.

Governments - for various reasons - may just not get round to them - and ask the hereditary peers still in the House of Lords if you disbelieve me.


Reform today

This is a real chance to break the back of the current unfair costs regime which is undermining free expression.

The proposed reform retains CFAs and provides an appropriate 10% uplift for the lawyers prepared to take the risk of a no-win no-fee case.

The alleged procedural flaws are not such to defeat the merits of the substantial reform which is actually now possible.

The alternative is to continue with the obscene costs regime which is undermining free expression.

On any proper analysis, the draft SI is an improvement to this.

If the government puts the matter before the full House of Commons then MPs should support the enactment of the draft SI.


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BCA v Singh: a brief lay summary of the Court of Appeal decision

This is a brief lay summary of the my blogpost on the Court of Appeal decision in British Chiropractic Association v Dr Singh [2010] EWCA Civ 350.

In essence:

- the Court of Appeal distinguished between evidence and data;

- what evidence means will depend on context;

- however, in matters "concerned with the establishment of dependable generalisations about cause and effect", then contentions about evidence will normally be value judgments not statements of fact;

- matters "concerned with the establishment of dependable generalisations about cause and effect" include but are not limited to scientific debates;

- accordingly Simon's statement "not a jot of evidence" must be a value judgment, and not a statement of fact which he has to justify;

- it follows that Simon's use of "bogus" and "happily" were aspects of this value judgment;

- the meaning of the words complained of is therefore that the BCA was promoting what Simon contends are bogus treatments without regard to the want of reliable evidence of their efficacy;

- it was not open to Mr Justice Eady to equate "happily" with dishonestly - the word instead meant blithely;

- accordingly Simon has the defence of fair comment or "honest opinion", which can be rebutted by the BCA proving he was acting maliciously; and

- the wonderful Easterbrook quotation and the references to Orwell and Milton merely add emphasis to the importance of treating scientific contentions as value judgments.

The BCA now has to decide whether to apply to the Supreme Court (formerly the House of Lords); if the BCA does not, then the case returns to the High Court and can proceed to trial (though there is an outstanding issue as to whether the BCA as a company limited by guarantee (rather than one owned by shareholders) can even sue for libel).


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Sunday, 4 April 2010

BCA v Singh: What the Court of Appeal Said

[I have now provided a brief lay summary of this blogpost.]

The Court of Appeal judgment in British Chiropractic Association v Dr Singh [2010] EWCA Civ 350 is the most complex decision we have so far encountered in this litigation, and it repays careful study.

(Comparing the judgment with the transcript of the hearing is a particularly enlightening exercise. I also note that the Court of Appeal made a point of using Simon Singh’s academic title in its case title.)

The Court of Appeal's decision follows the previous decisions in this case: the astonishingly illiberal ruling of the High Court in May 2009, the terse one paragraph refusal of Simon’s application for permission to appeal in July 2009, and Lord Justice Laws’s wonderful granting of permission to appeal.

(And even a hardened English lawyer must admit it is rather splendid for a Lord Justice Laws to grant permission to appeal to a court headed by a Lord Chief Justice Lord Judge.)


For the reasons I set out below, I think the judgment is significant as it appears that the Court of Appeal has extended the defence of “fair comment” – or “honest opinion” – to all contentions about evidence in any debate (and not only those to relating to science or medicine) “concerned with the establishment of dependable generalisations about cause and effect”.

However, to provide my analysis of this complex judgment, I will have to resort to use two technical terms, well-known to lawyers but not more widely.

The first term is ratio. This means the basis of the court’s decision: the reasoning on which the order made by a court is based.

(The order made here by the Court of Appeal was to allow Simon's appeal.)

In Court of Appeal cases, it is the ratio of the decision which will have the binding effect of precedent both on lesser courts (such as the High Court) and indeed (in most circumstances) on the Court of Appeal itself.

It is thereby important to work out exactly the ratio of any Court of Appeal case.

The second term is obiter dicta. What is said obiter by a court is not essential to the order made by the court.

A court may set the background to the case, or make observations on the conduct of the parties, or remark on the state of the law generally; but unless the order made by the court can only be explained by reference to these statements, they can be said to have been obiter.

Insofar as obiter statements are about law, they do not bind other courts, though they can be of “persuasive” effect: that means a court can adopt such a statement as having effect should that court be persuaded that the statement be relevant in case before it.

But with the ratio, a court may have no choice: it is a binding precedent.

The task for those analysing an appellate case is to try and sort the ratio from the obiter dicta, though such analysis is provisionally academic until its soundness is tested in actual future cases.

For me, the ratio of BCA v Dr Singh consists of the Court of Appeal’s reasoning on jurisdiction and on meaning.


Ratio – jurisdiction

The first hurdle for the Court of Appeal was the extent they could actually hear the appeal. This is a dry-ish point about jurisdiction, and so feel free to now scroll down to the really interesting part of the ratio on meaning.

The BCA contended that the Court of Appeal should only disturb the ruling of Mr Justice Eady if, in effect, it was outside the range of rulings available to him; that the ruling may perhaps be wrong, but not so wrong that the Court of Appeal should intervene and overturn it.

Here it is significant that Mr Justice Eady was, with the agreement of the parties, determining the question of meaning which is usually left to juries in defamation cases. Normally the judge would rule on whether the words were capable of carrying a certain meaning.

The Court of Appeal’s reasoning on this point is in paragraphs 13 to 15, which I now set out:

13. What the words in issue in a libel action mean is subject to two controls: a decision, reserved to the judge, as to whether the defamatory meaning alleged by the claimant falls with the range of possible meanings conveyed by the words in their context; and a decision, traditionally reserved to the jury, as to what they actually mean. The former is regarded as a question of law, the latter as one of fact, with the result that the meaning eventually decided upon by the jury is shielded from attack on appeal save where it has crossed the boundary of reasonableness.

14. Heather Rogers QC for the BCA accordingly submits that we cannot interfere with Eady J's decision on meaning simply because we may disagree with it: we can only do so if we are quite sure that he was wrong. Adrienne Page QC for Dr Singh submits, first, that we are free to retake that decision if, as she submits is the case, it is vitiated by an error of law; but she submits in any event that the deference accorded on appeal to what is ordinarily a jury's verdict has no equivalent where the finding in question is the speaking decision of a judge.

15. Ms Page draws our attention in this connection to Slim v Daily Telegraph [1968] 2 QB 157, an appeal from a decision of Paull J who, as is to happen in the present case, had tried a libel action without a jury. Diplock LJ (at 174) explained the two functions in this way:

"The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact."

The purpose of this careful explanation becomes apparent when, having held that the trial judge had failed to direct himself adequately as to the true meaning of the words complained of, Diplock LJ (at 177) asks "What then is this court to do?" and answers:

"I do not think we need send it back for a retrial …. This court is in as good a position as the judge to determine what is the natural and ordinary meaning of the words…."



In other words, the BCA’s case on the jurisdiction point was rejected.

The Court of Appeal could decide meaning for itself.

This means it should be easier for losing parties to appeal adverse rulings of the High Court on meaning in defamation cases when the parties elect not to have a jury trial, as – because of significant additional cost of jury trials – parties may increasingly do.

(In view of what the Court of Appeal then say about meaning, it is arguable that this point on jurisdiction is obiter - the Court of Appeal seems to go on to say that the meaning adopted by Mr Justice Eady was outside the meanings available to him – and so the appeal could have been allowed even if the BCA’s submissions on jurisdiction had been correct. However, I regard the jurisdiction point as ratio as it seems to me to go to the jurisdiction the Court of Appeal is exercising in ordering that the appeal be allowed.)

And now the really interesting part of the ratio.


Ratio - meaning

Once that the Court of Appeal had satisfied itself as to its jurisdiction, it could then approach the “words complained of” which (of course) were:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

The Court of Appeal was careful, as Lord Justice Laws had done in granting permission, to set out the whole paragraph containing the words complained of and the following paragraph where Simon sets out why he describes the treatments as bogus.

The Court of Appeal starts with the word “evidence” and then construes what “not a jot of evidence” would thereby mean:

26. What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be.

This is an extremely interesting paragraph.

It appears to establish a class of statements (and not just in scientific debates) which are “concerned with the establishment of dependable generalisations about cause and effect” where contentions about evidence are inherently “value judgments” - that is, expressions amenable to the defence of “fair comment” (or "honest opinion" as the courts now prefer to call it).

Accordingly, if a statement is “concerned with the establishment of dependable generalisations about cause and effect” then, following British Chiropractic Association v Dr Singh, there will now be a presumption (which can be rebutted by evidence of malice) that there will be a defence to a defamation suit.

(Unless this case is superseded in some way by a Supreme Court judgment and then the ratio can fall away.)

In my analysis, this reasoning of the Court of Appeal is part of the ratio of the case. And, if I am correct in this, then this will bind the High Court (and effectively the Court of Appeal, but not the Supreme Court) in future cases.

If so, this will have more direct effect than the wonderful Easterbrook quotation, which was clearly obiter.

I have to stress that I may well be incorrect on this; whether I am right or not is subject to the hard reality test of future libel cases.

But it does seem very interesting.

(Here I would like to pay tribute to Professor Stephen Curry who spotted the potential significance of paragraph 26 well before me.)

Having decided this about “evidence” and thereby “not a jot of evidence” - and providing an illustrative example in paragraph 27 - the Court of Appeal goes on to make short work of “bogus”:

28. Ms Rogers has understandably not sought to make a major issue of the word "bogus". In its context the word is more emphatic than assertive. But it is also explicitly supported by the next paragraph of the article, which explains that Dr Singh's co-author Professor Ernst had found in 70 trials no evidence that chiropractic could treat conditions unrelated to the back. It is a paragraph which also underlines the evaluative character of the assertion that there was not a jot of evidence for such claims.

And “happily”:

29. The other assertion to which the BCA takes objection is that it "happily" promotes treatments which, if Dr Singh is right, are bogus. Eady J accepted the BCA's case that this meant, in its context, that the BCA was well aware that there was in reality no evidence to support its claims – "the plainest allegation of dishonesty", as the judge put it.

And the Court of Appeal then construe the words complained of as a whole and provide the Court of Appeal’s own ruling on “meaning”:

30. Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, the word "happily", even if synonymous with "knowingly", loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, "blithely". The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims.

In short, the meaning of the words complained of is that the BCA was promoting what Simon contended were bogus treatments without regard to the want of reliable evidence of their efficacy.

And unless the Supreme Court overturns this, all Simon has to show to defeat this is that he was not acting maliciously.


Conclusions


What the Court of Appeal required to determine the appeal is set out in paragraphs 13, 14, and 15 on jurisdiction and in paragraphs 26, 28, 29, and 30 on meaning.

The judgment could – with some slight modifications - have consisted just of the reasoning in those paragraphs combined with the introductory paragraphs 1 to 9 and paragraph 37 describing the order made.

The remaining literary fireworks of the judgment – the mention of an Orwellian Ministry of Truth, the quoting of Milton on Galileo, the Easterbrook passage, and so on – all fall to be regarded as obiter.

These obiter statements are vivid, exhilarating, heady stuff. In particular, it would be delightful if the Easterbrook passage was seen as an expression of the English legal position.

But these statements will only ever have persuasive effect, if any effect at all, on future English libel litigation.

The eminent blogger The Heresiarch has examined these statements and finds many of them intellectually unsatisfying.

He complains that the Court of Appeal was “engaged in piece of casuistical manipulation to reach its preferred result”: it was the right decision, but for the wrong reasons.

I am afraid I have to differ. The Court of Appeal did not actually need any of these colourful passages for the appeal to be allowed, for none of these statements were part of the ratio.

The Court of Appeal simply did not need them to reach its "preferred result".

So why were these obiter statements made?

In my view, the Court of Appeal is consciously giving a steer to potential claimants and their lawyers, and perhaps even the High Court itself, about the general approach which should be adopted in defamation cases.

In particular, I believe the Court of Appeal is signalling the values which courts should have regard to in dealing with such defamation cases in future.

And a Court of Appeal consisting of the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sedley is in an extremely powerful position to make these signals.

Insofar as these obiter statements do not hang together then this is more because of it being a jointly-written judgment.

In my view, the judgment is tightly reasoned where it matters, that is the ratio on meaning.

Overall, I think the judgment is important and welcome, as well as inspiring and emphatic.

That Simon won this appeal is delightful; to do so in a judgment in such striking and – one hopes – influential obiter terms is uplifting; but to have prompted the Court of Appeal to determine that “fair comment” (or “honest opinion”) can cover all statements “concerned with the establishment of dependable generalisations about cause and effect” may be the most enduring result of this case.

But in no way does this judgment correct the wider manifest faults of English libel law and the campaign for libel reform must press on.

Please go to the Libel Reform website for more information on the libel reform campaign.


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Friday, 2 April 2010

That Easterbrook Quote on Scientific Controversies and Litigation

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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Thursday, 1 April 2010

BCA v Singh: An Astonishingly Liberal Judgment

Simon Singh today won in the Court of Appeal.

The Court of Appeal held he was expressing "honest opinion".

It is a stunning judgment, quoting Milton and expressly adopting a US legal maxim that: "Scientific controversies must be settled by the methods of science rather than by the methods of litigation".

You can read the judgment in full here.

And so the British Chiropractic Association - which happily promotes bogus treatments even though there is not a jot of evidence - lost.

The BCA - discredited since the plethora - has announced that it is "disappointed" and that it is "considering its position" in respect of what has always been a staggeringly misconceived libel claim.

The judgment is packed with interesting things and will repay careful study.

So I will blog in detail over the weekend, once I have fully digested the case report.

But so far, on a quick read-through, the following elements seem particularly significant:


[On the BCA's conduct]

"By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics." [from para. 18]


[On the fundamental free speech implications of the case, probably penned by Sir Stephen Sedley]

"...the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

""I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

"That is a pass to which we ought not to come again."
[from para. 23]


[On evidence]

"What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be." [para. 26]


[On the meaning of the words complained of]

"Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, the word "happily", even if synonymous with "knowingly", loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, "blithely". The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims." [para 30]


[On libel and scientific controversy, and note the strong word "adopt", rather than just "note" or "refer to"]

"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.""
[para. 34, emphasis added]


[And the stress which needs to be placed on free expression on the now renamed "honest opinion" defence]

"The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities." [From para. 36]


And there is a lot more besides.

One must pay the highest possible tribute to Simon Singh, whose determination not to be bullied, led to this most pleasing of judgments.

Full case analysis over the weekend.


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