, Simon says: part 3: leadingcounsel.co.uk
Skip to main content.

Simon says: part 3

The last two articles have set the context against which the libel claim by the British Chiropractic Association against Mr Singh has to be viewed. Although in fact the parties to this libel action are British and British-based, use of the libel jurisdiction here could have affected written scientific comment emanating from virtually anywhere if there was sufficient transmission to this country or access to it by downloading to websites here. Thus the significant point for the effect on scientific comment is that provided there had been more than a minimal number of copies sold or downloaded in England and Wales, and provided the claimant could show a genuine reason for wanting to protect its reputation within the jurisdiction, one could equally well have had a foreign claimant pursuing a libel action here against someone who did not intend or want the article to be particularly distributed or downloaded in England. Indeed there could have been positively against the idea. However online retailers can still sell on copies of books or articles, and it is difficult to prevent anything on the Internet being downloaded anywhere.

The relevant piece was written in the Guardian on 19th of April 2008, during chiropractic awareness week. It was also available online.

For those who do not know, chiropractors are principally involved in the treatment of back complaints although they do seek to treat other ailments. Chiropractors in practice actually giving treatments would be registered under the Chiropractors Act 1994. The British Chiropractic Association is the principal body to which apparently about half of registered chiropractors belong.

Chiropractors operate what would be referred to as "alternative medicine". I should declare at the outset that personally I use "alternative medicine" remedies and therefore do not regard myself as someone hostile to them. I once had chiropractic treatment for my back, which worked, and as part of that received some which I would have been inclined to think could not possibly have the impact claimed for it but did. Subsequently, I have received Bowen therapy, (which will probably be regarded as at an even more "alternative" end of the spectrum) and found it most effective. I originally tried it when consistent physiotherapy over a prolonged period had failed to resolve a condition. I was extremely sceptical about Bowen therapy working, because as described to me it seemed a load of nonsense, but I agreed to give it a go. Much to my surprise, it was extremely effective for that condition and has been subsequently for a number of other joint/disc/sprain conditions. I would be very surprised if this could be ascribed to any "placebo" effect because I was not expecting it to be effective, and had expected the physiotherapy to be effective when in the event it was not.

The relevance of this is that I certainly do not start from the viewpoint that "alternative" remedies are necessarily ineffective when I have direct experience which appears to show the contrary. It is also to my mind possible that treatments can operate or be effective in ways we do not presently fully understand.

Having said that, that is no reason for the full rigours of scientific analysis not to be deployed in order to ascertain whether any type of treatment is effective, and if it is effective why it is effective. Those using particular treatments should also be able to "fight back" with their own statistics and studies and any evidence from people who have found the treatment beneficial.

Some alternative treatments will or may be effective. Even when they are effective, there may be an issue as to what types of condition they will be effective in respect of. Other types of treatment may be ineffective. Open free speech and comment is the best way of allowing the truth ultimately to be demonstrated. Whilst I appreciate that those advocating certain "alternative" forms of treatment (and as will have become clear I am a big supporter of Bowen therapy on the pragmatic ground that I had seen it work both for myself and a number of others, and my only experience of a chiropractor has been positive) may feel that scientific attacks will destroy belief in their treatments without the public giving them a fair hearing, that is one of the risks which has to be taken to allow free speech and the cut and thrust of debate which ultimately allows the truth to come out.

I am therefore anything but unsympathetic to alternative medicine but am even more sympathetic to the importance of free speech and the need for genuine scientific comment to be able to be as vigorously expressed as may be appropriate in the circumstances.

The hearing which took place in the libel action by the British Chiropractic Association against Mr Singh was dealing with certain points which arose as to the impact of what Mr Singh had written. In a libel action a claimant will allege that the words complained of have a particular meaning. That meaning may be the obvious meaning of the words, but sometimes the parties will disagree fundamentally as regards the interpretation which the claimant seeks to put upon the words used. Therefore one matter that the judge, Mr Justice Eady, was deciding was what defamatory meaning or meanings the words complained of had (so that one knew, if the allegation was being made that the words used were true, exactly what it was that Mr Singh had to prove in order to make out the defence of justification: justification is the defence where you say that the allegation is not defamatory because it is true, so that for example although it would undoubtedly lower the view that right thinking people would have someone (and hence be defamatory) to describe them as a rapist, so describing them will not be defamatory if in fact they truly are a rapist so that a defence of "justification" would work. The law of defamation requires a defendant to prove the truth of what is said, so that if the defence is that someone is a rapist, so that it was not wrong to call them so, it is for the defendant in the libel action to prove that the claimant was a rapist, not for the claimant to prove that he was not a rapist. Having decided what the defamatory meaning of the words were, having regard to that ruling the judge was then to go on to decide whether the words complained of made and/or contained allegations of fact, or whether in contrast they constituted comment. That again is critically important because one potential defence to a libel action is fair comment. However this can only arise if what is being stated is comment rather than an assertion of fact.

Next week we will look at the actual words of the article and see how the judge approached and decided these issues.

Michael J. Booth QC