, Simon says: part 1: leadingcounsel.co.uk
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Simon says: part 1

In May 2009 a preliminary hearing took place in the case of British Chiropractic Association v Simon Singh. This case has aroused strong feelings on both sides of the debate and concerns about the impacts for freedom of speech, especially in relation to scientific matters and comment in respect of the same. It has led to comment in such varied sources as New Scientist and the Jonathan Ross show.

This is a case in which the British Association is suing a British defendant in England. However the potential implications are viewed, particularly in the scientific community, as being much more widespread than that. In order to appreciate why, we have to consider the jurisdictional rules.

Although the courts are well aware of the importance of not allowing jurisdictional rules to be used as a means of circumventing legal rules elsewhere, in practical terms foreign jurisdictions regard England as a libel claimant's paradise. The case which probably did most in the eyes of the foreign press to cement this reputation was the Roman Polanski libel case, where Mr Polanski was allowed to give evidence by way of video link from Paris in order to avoid him having to come to this country to give evidence (since in this country he would potentially be open to arrest and extradition to the United States in respect of criminal charges there, having fled the United States after pleading guilty on 8 August 1977 before a Californian court to unlawful sexual intercourse with a 13-year old girl: in fact he has never been sentenced for this). There was no equivalent extradition treaty allowing someone with French nationality such as Mr Polanski to be extradited. Mr Polanski in fact won his libel action. The libel related to an incident which was alleged to have taken place in a New York restaurant referred to in the July 2002 edition of Vanity Fair. Vanity Fair is an American magazine edited and published in New York and with a substantially larger circulation in the United States than in England. It is also published in France. As was stated in one judgment in the course of the case, "The respondent by contrast has chosen to sue in this jurisdiction when he might more naturally have been expected to issue proceedings either in the United States (where the main publication took place) or in France (where he has lived for the last 25 years). It is, moreover, somewhat ironic that the respondent is suing here in respect of his reputation in this country and yet he has not visited it for 25 years and is still not prepared to come here.".

There was also a relevant principle as spelled out in Cross v Kirkby (Court of Appeal, 18th February 2000, unreported, where the then Lord Justice Judge stated "In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. .......... The medieval concept of outlawry is unacceptable in modern society. An outlaw forfeited the protection of the law. He could not invoke the assistance of the court to enforce non-existent rights. In the United Kingdom today there are no outlaws. However abhorrent the crime, whatever the subsequent conviction, the protection of the law extends to the criminal who enjoys rights not only in theory but enforceable in practice."

To foreign eyes it may seem wrong that the English courts accepted jurisdiction when the level of publication was much less than in the United States and where one might have thought England was low down on Mr Polanski's list of priorities. Of course the effect of this is to mean that articles which for example would not be defamatory under the much more restrictive laws in the United States, can end up being subject to defamation proceedings in England if there is publication here. Some cases show that relatively limited circulation is required for this to occur. For example in the case of Isaac Jehuda Schapira v. Jonathan Ahronson, a 1997 case, the claimant was an Israeli citizen who had lived in England since 1981 and become a British citizen in 1985. His wife (who was English by birth) and children lived here with him. In February 1995 two articles were published in Ha'aretz, a daily newspaper in Hebrew which is printed in Israel. Mr Schapira alleged that both were defamatory of him. He issued proceedings regarding the libel in England, and the defendants applied to stay the action on the grounds of forum non conveniens (that the action should be more conveniently tried in another country). The total circulation of the newspaper was 58,900. The first article was circulated to 141 subscribers in the United Kingdom, the second to only 19, plus one copy to the Israeli Embassy. All those copies would inevitably be read only by those who know Hebrew. The vast majority of the circulation of the newspaper was in Israel. The relevant events argued about also took place in Israel, where many of the witnesses were based. However because the claimant had chosen to sue in respect of the defamation in England and the effect in England the Court of Appeal observed "The Plaintiff is seeking vindication in this country, not in Israel. He has deliberately chosen not to go to Israel to litigate his dispute. He has deliberately chosen only to rely on publication in this country. If he wins here, that is all that he is seeking. ".

Therefore in practice articles published in other countries only need to have a limited circulation in England to risk defamation proceedings here. That means that the ambit of English defamation law can extend very far indeed.

Next week we will continue to consider the implications and how they affect the issues in the case of Mr Singh.

Michael J. Booth QC