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Simon Singh revisited part one

We interrupt the series regarding sentencing to deal with an update on the Simon Singh saga.

Those who saw the series regarding Simon Singh (Simon Says part 1Simon Says part 2 Simon Says part 3 Simon Says part 4Simon Says part 5) will know the outrageous impact that the decision of Mr Justice Eady against him had. I will not recite the background, since it is sufficiently set out in those previous articles. Subsequent to that, he sought to appeal the decision, and firstly he was given permission to appeal, and the appeal to the Court of Appeal was successful. Within a couple of weeks the British Chiropractors Association dropped the libel case against him, so that as of the last few days he no longer has the Sword of Damocles hanging over him. Although the case is no longer proceeding, and although he will recover his costs, given the difference between cost recoverable on assessment and costs actually incurred he is still likely to be substantially out of pocket, and based on figures he has been given he apparently thinks he might be out of pocket to the tune of 60,000 out of his 200,000 legal costs.

This is a crucially important decision not merely as regards the law of libel, but as regards freedom of expression and the ability to allow proper scientific debate and criticism. It is a ruling which no lawyer should be unaware of, regardless of their area of practice. It is a ruling delivered by an extremely strong Court of Appeal, comprising the Lord Chief Justice and the Master of the Rolls and Lord Justice Sedley. They were considering the first instance decision of Mr Justice Eady as to, in respect of the article to which objection was taken, firstly what defamatory meaning the words bore, and secondly whether they constituted assertions of fact or comment. The judge held that the effect of the article was that the British Chiropractors Association claimed that chiropractic was effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knew that there was absolutely no evidence to support its claims, and that by making those claims the British Chiropractors Association knowingly promoted bogus treatments. He then held that these were assertions of fact, not expressions of opinion. This meant that the defendant must prove the truth of what was stated or lose the libel action.

Paragraph 6-8 of the Court of Appeal decision set out the article and the issue at stake as follows:

" Before turning to the arguments of counsel, it is appropriate to set out the relevant part of the article, which, together with the page caption, "Comment and Debate", constitutes the context in which the material words have to be read and judged.
"This is Chiropractic Awareness Week. So let's be aware. How about some awareness that may prevent harm and help you make truly informed choices? First, you might be surprised to know that the founder of chiropractic therapy, Daniel David Palmer, wrote that, '99% of all diseases are caused by displaced vertebrae'. In the 1860s, Palmer began to develop his theory that the spine was involved in almost every illness because the spinal cord connects the brain to the rest of the body. Therefore any misalignment could cause a problem in distant parts of the body.
In fact, Palmer's first chiropractic intervention supposedly cured a man who had been profoundly deaf for 17 years. His second treatment was equally strange, because he claimed that he treated a patient with heart trouble by correcting a displaced vertebra.
You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. 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.
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."
7. The judgment of Eady J, which can be found at [2009] EWHC 1101 QB, concluded with this passage:
12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.
13. It is alleged that the claimant promotes the bogus treatments "happily". What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.
14. I therefore would uphold the claimant's pleaded meanings. It will have become apparent by now that I also classify the defendant's remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification. What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact. That is despite the fact that the words complained of appear under a general heading "comment and debate". It is a question of substance rather than labelling.
The grounds of appeal contend, in brief, that the judge elided the issues of meaning and comment when, though related, they are distinct; he used an unwarranted "verifiable fact" test to eliminate comment as a defence; contrary to the article 10 jurisprudence, his decision placed an onus on the defendant to prove what was in truth a value judgment; in deciding the meaning of the words the judge overlooked their context; he paraphrased them damagingly; his approach marginalised or underrated the value now placed by the law on public debate on issues of public concern."

The ordinary intelligent member of the public reading the article might think that Mr Singh was making comment rather than an assertion of fact, and comment which it was legitimate for the public to hear. Similarly as regards deciding as a matter of fact whether there was evidence to support scientific theory, rather than this being a matter of open debate in newspapers and journals one might have thought that the idea of a court attempting to assess what evidence there was and its justifiability or otherwise was a hopeless task. Nonetheless that was the task which Mr Justice Eady set for Mr Singh. We will see next week what view the Court of Appeal took of that.

Michael J. Booth QC