In an earlier post we looked at the case of British Chiropractic Association v Singh. This was heard by the Court of Appeal on Tuesday 23 February and judgment was reserved. The BCA Skeleton Argument can be found here (we would be delighted to post Mr Singh’s Skeleton Argument and other case papers if these are available).
As we have already mentioned, the legal issue in the case concerned the meaning of the words complained of and whether they were properly described as fact or comment. It is not about the importance of scientific debate. This point is not entirely clear from reading the discussions of the case by Mr Singh’s supporters.
For example, Jack of Kent’s blog post is entitled “A Good Day in Court”. He reports that the BCA’s case “received a sustained battering” and that the judges all “made favourable references to the need for scientific debate”. The blog describes the scene in the court room:
“There were the great and the good of the skeptic world: Wendy Grossman, Professor Richard Wiseman, Dr Evan Harris MP, and so on. The press bench was full, including Nick Cohen and Padraig Reidy; there were famous bloggers and activists, such as Crispian Jago and Alan Henness. And then there were dozens and dozens more, just coming in and crowding in at the back”.
Nevertheless, Jack of Kent provides a useful summary of the argument. Unsurprisingly Mr Singh’s Counsel Ms Page QC argued that the words complained of were clearly comment – an evaluative judgment on a matter of public interest. Jack of Kent (who, as he makes clear is biased as a supporter of Simon Singh) felt that Ms Page had not been thrown by any of the incisive questions. He is of the view that the BCA’s Counsel, Ms Rogers QC, had a much harder time of things – describing various hostile but apparently irrelevant questions (“would happily promoting treatments which had not a jot of evidence be considered by your client to be defamatory?”). He describes this exchange:
“[Ms Rogers QC] compared herself with the BCA, saying that if she was accused as a barrister of promoting a bogus case without a jot of evidence, it would be open to someone to verify whether there was any evidence.
This did not seem to go down well as a serious point.
We can tell whether a case is bogus, responded one judge, we are judges. We can evaluate whether there is an evidence, just as a scientist can evaluate whether there is evidence, and if a scientist says there is not a jot of evidence, surely he means there is not a jot of reliable evidence?”
Once again, the thrust of the questions is difficult to follow: judges can evaluate the question as to whether a legal case is bogus and (if necessary with the help of expert evidence) can evaluate whether a scientific case is bogus – this kind of evaluation happens all the time the courts, for example in intellectual property cases. However, none of this seems relevant to the issue of meaning.
Allen Green (aka Jack of Kent) has also popped up in the Lawyer with yet another discussion of the case (he has an interesting “Bad Law” column – the first instalment of which concerns sentencing remarks by Mrs Recorder Cherie Booth QC).
Meanwhile other commentators are linking the Singh case to the “silencing of science” and “libel tourism”. For example, Sarah Boseley in the Guardian has written a piece under the title “Simon Singh and the silencing of scientists” which complains about companies from around the world using “trying to use England’s libel laws to quash academic critic”. The BCA is not a “libel tourist” and Simon Singh is not an “academic critic”. As we pointed out in our earlier post, the issue in the case is whether he made an allegation of bad faith against the BCA or whether he was just expressing an opinion. If the latter then the BCA has no claim. If the former, then he appears to accept that he has no defence. It appears to us that the issue is simply: what did the words mean? We will see, in due course, whether the Court of Appeal judges agree.