, Simon says: part 4: leadingcounsel.co.uk
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Simon says: part 4

In a libel action the claimant will allege what it says the meaning or effect of the words is. It is against that background that each side will approach the issue of proving its factual assertions and deploying its legal arguments. The words complained of and taken from the article and cited at paragraph 4 of the judgement of Mr Justice Eady 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 organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.". In fact what Mr Singh went on to say in the article was as follows: "I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.".

It is plain therefore that this libel action is nothing to do with back treatments or what one might term the "core" chiropractic treatments, but the other areas for treatment of the type referred to in the previous paragraph. Both the article and the discussions must keep that very firmly in mind.

The key issues was what the words meant. The judge summarised the case for the claimant and the impact at paragraphs 5 and 6 of his judgment, where he stated: "5. That is the only reference to the BCA in the article. The meanings pleaded on the claimant's behalf are to be found at paragraph 6 of the particulars of claim to this effect: that (a) the BCA claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and (b) by making those claims knowingly promotes bogus treatments.". Having stated what the claim alleged the judge correctly summarised the issue as follows: "6. Are those straightforward words defamatory of the corporate claimant or not? If so does the reasonable reader construe them as asserting fact or merely as expressing an opinion? That is an important distinction long recognized in domestic law as well as in Strasbourg. All of us recognize the importance of the freedom to express trenchant and even offensive opinions on matters of public interest.".

In other words there were two crucial issues. What the words meant, (was Mr Singh saying that the BCA was happy to promote treatments which were in fact bogus, was he saying that it was promoting treatments which were in fact bogus and for which there was no evidence that they were effective, or was he suggesting that the BCA knew that the treatments were bogus and notwithstanding that still promoted them) and also was this an assertion of fact or an assertion of opinion.

One might have thought from the words used, even more in the light of the other comments stated, that what Mr Singh was doing was expressing his opinion in trenchant terms and making it clear that his complaint was that these treatments were being promoted when they were in fact bogus as opposed to suggesting that the key point was whether in fact the BCA knew that they were bogus and deliberately put them forward notwithstanding that knowledge. No doubt considerable emphasis was placed upon the comment that BCA was the "respectable" face of chiropractors as indicative of an intent to suggest that the words meant that this was being done deliberately because otherwise what was the significance or relevance of using the word respectable? (If they were not being alleged to be deliberately doing something disreputable why did it matter whether they were putting themselves forward as respectable or not?). On the other hand no doubt Mr Singh's position would be that the point was that because it was put forward as a respectable organisation there was a real risk that people would assume that the treatments were effective when in truth there was no evidence to suggest that they were. This in fact would be potentially even more of a risk given that it was not being asserted that all of the treatments were ineffective, merely the ones referred to as the non-back treatments in the article. An association which promotes effective treatments and which promotes others for which it is said there is no evidence may lead to a greater risk of the people assuming that there must be evidence showing effectiveness.

We will look next week at how the judge decided these matters should be viewed and the consequences of that decision.

Michael J. Booth QC