Law Reform,  Lawfare,  Libel

Judge Judge gets on the bus

This is a guest post by Amie

During the hearing last week of the BCA v Simon Singh, there were a plethora  of vexed issues for the three heavyweight Justices to grapple with.

 As light relief  they also batted around the exercise, as the law requires them to do,  of  getting behind the eyes of the likely reader of the offending words. We are all familiar with the Man on the Clapham Omnibus as the epitome of the reasonable wo/man.

 Singh’s article was published in the Guardian, so the average Guardian reader was the person in the spectacle frame.  Searching for a synonym for “happily” as in “happily promotes bogus treatments”,  Sedley LJ  came up with “insouciant” to reflect the defence meaning. (Eady had ruled that it meant knowingly, and this is one of the meanings being appealed.)

 Quipped another of the judges:

“Interesting that the average reader of The Guardian, whom my Lord represents, speaks in French!”

Murmured Sedley: “I shall try to resist the temptation to talk about Guardian readers as a sub-species of humanity.”

And later,  Sedley twinkled:  “One of the more comforting legal fictions is that when we apply the test of what a reasonable person would think, we always find they bear a remarkable resemblance to one of Her Majesty’s judges.” As we will see,  their Lordships, especially Chief Justice Judge, did a pretty good job speaking for Clapham Man.

But first: by the time we broke for lunch, something more than the sparring over word meanings was bothering me. I bent the ear of whoever would listen (including Nick Cohen) about how I had been struck by a  logical dilemma which  I propose to dub the Singh Perplex.

The problem is this: There are two potential  lines of defence which are in focus in this defamation case

  1. If the statements complained of are categorised as fact, Singh has the heavy burden of proving all the offending statements are true.
  2. If they are categorised as comment, (or value judgement, in the European Court) then “fair comment on a matter of public interest” is the defence. It would come into play if the Guardian reader would consider it to be an expression of opinion. This the slighty less onerous defence.

Judge Eady has ruled out the comment defence, and this hearing is an appeal against the narrowing of Singh’s defence to having to prove the truth of the statement that:

 the BCA happily (which Eady has ruled means knowingly) promotes bogus (which Eady has ruled means dishonestly) treatments for certain childhood conditions, despite their being “not a jot of evidence” for these.

The analysis of what is fact plunged  into deep philosophical waters. Singh’s QC argued that the attribution of a state of mind to the BCA must be treated as comment, to avoid the necessity of proving the unproveable. If it is not proveable, not susceptible of verification it must be comment.  The judges would later pose the question to  the claimant’s QC: Are all facts, by virtue of being facts, verifiable, or is there such a thing as an unverifiable fact?

Most of this centred on the impossibility of proving as  fact the “knowing” state of mind of the BCA, which is a company limited by guarantee.

But the source of my unease was the defence QC’s “Yes” in response to the judge’s question: Are you saying that whether there is a “jot of evidence” is opinion?

As I commented on the HP post on the day of the hearing:

Singh is in the ironic position  that when he says there is no evidence, (by which he means, no scientific evidence), he has to convince the court  that the statement that scientific evidence is what is required, is comment i.e  merely a matter of opinion. He is pushed into the position, for the purposes of running his defence under fair comment,  of having to  relativise, and subjectivise, the value of the scientific method. Whereas the BCA  perversely, has to take the position that there is an objective truth that is not merely Out There, is not only capable of being ascertained, but must be nailed down, here in the court room.

As Sedley put it to Singh’s QC: You will be arguing that once a  court has to pronounce definitively as to what constitutes acceptable evidence, rather than leave it to the arena of scientific debate,

 it ceases to be a free country? The QC agreed.

Being neither a scientist nor a philosopher,* I wondered if I was manufacturing a false dilemma, but after a week of intense debate on the meaning of  happily, bogus and jot, the estimable Jack of Kent has, to my relief picked up on this larger point:

[*This is the go- to blog for the most authoritative background and debate on the Singh case, and as from  yesterday, even the entire transcript of this hearing.]

Singh’s QC pointed out it will mean that the libel courts are used, at great expense, inconvenience and time, to litigate the fundamental scientific debate between the Dr Singhs of this world and the chiropractors of this world. The judges expressed their alarm at the costs this would involve.

It became gratifyingly clear that Chief Justice Lord Igor Judge, in particular, Gets It:

Singh’s QC had pointed that The Guardian offered the BCA an article of its own of equal prominence to set out what they say is the evidence. That was also declined. In addition to that, in later correspondence they were offered the publication of a clarification which would record the BCA informing The Guardian of substantial evidence to support the claims on their website.

The Lord CJ said to the BCA QC: Well it does not make any difference whatever to the outcome of the case, but, speaking entirely for myself, I think it is rather surprising that your clients did not take the opportunity to say “What Dr Singh has written is a load of rubbish for these reasons”.

And later, with great force and passion, the LCJ added:

I want to come back to something I raised before lunch which is still troubling me and it still has nothing to do with the outcome of the case, but here we are. Your clients are very steamed up at what they perceive to be a very serious libel. It has been said about them that they have indulged in happily promoting bogus treatments. Your case is – their case is: “That is absolute nonsense. We don’t. That’s not what we are running our professional lives for.”

It is now two years on, jolly nearly, since the matter that caused all this umbrage was published. The opportunity to put it right was not taken. The end of this litigation will not be for another how long – another twelve months?

… So all the opportunities to put this right – to make it clear to the public that these allegations are nonsense – simply have not been taken, and yet it matters. I quite understand that it matters to your client that they should not have to put up with defamatory statements. I am just terribly troubled about the entire artificiality of all this and all of the huge expense. Somebody at the end of this litigation – somebody – is going to pay a vast amount of money. It will either be Dr Singh out of his funds or it will be your clients out of the contributions made by the subscriptions paid by their members. I am just baffled.

If there is reliable evidence, goodness gracious, why isn’t somebody publishing it?

To which the BCA QC muttered somewhat reticently about the debate goes on…expert journals… the “blogosphere”. I don’t blame her for not being more specific:  said expert  journals and blogosphere, have (imho of course) demolished the now notorious “Plethora” of evidence the BCA claimed to have.

Yes, Judge Judge gets what we have always argued on HP: that for individual spats, it is far preferable to respond  to allegations by way of   debate, in whatever forums, from expert journals to blogs. But when it comes to  matters of  public interest, it is more than preferable: it is  vital for the free exchange of ideas without hindrance and intimidation. To drag it into court  is to distort  this  debate within  the “entire artificiality” in the Judge’s words, of the libel process.

Perhaps encouraged by the LCJ’s words,  Singh’s QC wrapped up the day by quoting a famous US case (pace Lord Hoffman, with his loathing of  the imperialism of imposing US thinking in libel matters )  often cited in the US courts when looking at subjects of medical, scientific or academic controversy. 

“Scientific controversies must be settled by the methods of science rather than by the methods of litigation … More papers, more discussion, better data, and more satisfactory models — not larger awards of damages — mark the path toward superior understanding of the world around us.”

A Coda on Companies:

The court noted that the BCA could not have brought this case had it not been  a company. BCA’s QC acknowledged that an unincorporated association cannot bring a claim for defamation, and mentioned the libel case of the London Central Mosque against Policy Exchange. Eady struck out the case on the grounds that a charitable trust cannot sue. But the QC thinks the appeal against this ruling is in the pipeline.  So just when we thought it was safe…

Although jurisprudence has long grappled with the problem of how to punish companies in areas like corporate manslaughter (no body to kick, nor soul to damn, as the old legal saying went) it up to now has had no problem with considering that a company has  feelings to hurt when its reputation is impugned. However, the Culture media and sports committee report on press standards, media and libel which  came out last week, addresses the problem of powerful corporations intimidating individuals with libel actions. It recommends changes in the law such as to require companies to prove actual economic loss to its business rather than the general damages which like individuals , it can currently get, or even to look to the recent change in Australian law, which excludes any but small not for profit companies from suing at all. Over to you, new  government, whoever you are…

*disclaimer: I am not a libel lawyer either, but had perforce to develop an interest and working knowledge to render first line assistance to kin whose work makes the ubiquitous threat of libel an occupational hazard.