On 1 April, 2010 a strongly constituted Court of Appeal consisting of the Lord Chief Justice, Lord Judge, the Master of the Rolls, Lord Neuberger and Lord Justice Sedley unanimously overruled the earlier decision by Mr Justice Eady that remarks made by Dr Simon Singh about the British Chiropractic Association (BCA) were matters of fact which had to be justifi ed rather than opinion which could fall within the compass of a defence of fair comment – British Chiropractic Association v Singh  EWCA 350.
Dr Simon Singh was an academic who had made a study of the effi cacy of chiropractic medicine. He was co-author of a best selling book, Trick or Treatment, which examined alternative medicine. So it was that in Chiropractic Awareness Week in April 2008 he had been invited to write a piece in a comment column of the Guardian about the BCA. The BCA was set up under the Chiropractic Act 1994 to promote and maintain professional standards.
In his article, Singh did not criticise any particular chiropractitioner. He did, however, say that there was “not a jot of evidence” for the BCA claims to be able to remedy such matters as “children’s colic, sleeping and feeding problems, ear infections and asthma”. He went on to observe that “as the respectable face of the chiropractic profession the BCA happily promotes bogus treatment”.
Mr Justice Eady decided that was an allegation of dishonesty and denoted that the BCA was knowingly peddling false remedies knowing they were ineffectual. Ironically the Advertising Standards Authority had upheld a claim in respect of an advertisement by a chiropractic who made very similar claims, namely that he could treat children with colic and learning diffi culties. The BCA had suffered no fi nancial damage but the implications of Eady J’s ruling were very grave for Dr Singh.
Costs in relation to this ruling on meaning topped £100k before Eady J; by the time of the Court of Appeal hearing they exceeded £200k. If Eady J’s ruling stood, Singh had to prove that what he said was true, which not only would have been very costly but might well have proved impossible as he had never intended to make such an in personam attack on the BCA.
The Court of Appeal had little doubt that Eady J had erred in his approach. There were considerable concerns in the Court of Appeal and, indeed, in the political arena - the case spawned a well-organised libel reform group backed by all political parties - that scientifi c disputes should not be adjudicated in the courts and also that the powerful organisations or drugs companies could use the laws of libel to silence their critics.
The question in the view of the Court of Appeal was whether this was a matter of opinion and whether there was evidence to support the opinion of Dr Singh. Once the court went down that route it mattered not that Dr Singh had expressed himself very forcefully or that others might disagree with his opinion. The question was whether on analysis the words could constitute an opinion which a person might honestly hold.
Interestingly, the Court of Appeal, in the opinion to which all three judges subscribed, felt that the defence was better described as a defence of honest opinion rather than of fair comment and, in so doing, they followed the approach of the courts in New Zealand, Australia and the Republic of Ireland. Describing the defence as honest opinion in the words of Lord Judge “better refl ects the realities”. One of the problems with the term “fair comment” is that it invites a jury to evaluate the merits of the opinion and to form a view as to whether or not the comment was objectively fair whereas in reality the defence is a subjective one overlaid with the much lesser objective threshold of whether a person could honestly hold such an opinion. It is a welcome clarifi cation of language if it is taken up, as the threshold then becomes one of honesty rather than fairness.
On analysis of the language, the Court of Appeal considered that the article meant not that the BCA was promoting what they knew were bogus treatments, but rather that Singh believed the treatments to be bogus, having regard to the want of reliable evidence of their effi cacy. In other words, one looked at the thought processes of Dr Singh in forming his opinion rather than dissecting minutely the words to see if they spelt out an allegation of fact.
In so doing, the court may have weakened the single meaning rule whereby it decides at the outset whether, and if so to what extent, the words are defamatory before considering whether the words constitute fact or comment. The Court of Appeal felt that might not always be the best approach. Instead one should consider the entirety of the article and, in this instance, a court should consider fi rstly was there any evidence to support BCA’s claims about the effi cacy of chiropractic treatment and, secondly, if not, did the personnel of the BCA know this.
The view of the court was that the answer to the fi rst question was a matter of epidemiological debat. When Dr Singh wrote of there not being a “jot of evidence” - that was his evaluation of the epidemiological evidence, that is to say, his opinion. The court approached this from the basis that this was Dr Singh’s assessment of the evidence rather than looking for allegations of fact and imputations of bad faith which then had to be justifi ed. It was in the court’s view a question of opinion whether there was evidence to support the BCA’s claim and Eady J had erred in treating it as a matter of verifi able fact which had to be proved.
The Court of Appeal appears to have strongly felt that such scientific policies should not be litigated in court. The court should not cast itself in the role of a historian or investigative journalist. To use the graphic words of the Lord Chief Justice, otherwise the court would be invited “to become an Orwellian Ministry of Truth”.
Reference was also made at the judgment to the poet John Milton’s visit to the ageing Galileo in 1638. Galileo had grown old as a prisoner of the Inquisition “for thinking astronomy was otherwise than the Franciscan and Dominican licensers thought”. That was a situation the court wanted to avoid in future.
The Court of Appeal did not seek to corrode the distinction between fact and opinion. The court did, however, adopt a rather wider approach to deciding whether something was fact or opinion. The court cited the judgment of Judge Easterbrook, Chief Justice of the Seventh Circuit Court of Appeals in Underwager v Salter 22 Fed 3d 730 (1994) in relation to litigation regarding such scientifi c claims. The plaintiffs “cannot by simply fi ling suit and crying ‘character assassination’ silence those who hold divergent views… Scientifi c controversies must be settled by the methods of science rather than by the method of litigation.”
So how important was the Singh decision? The answer is that although it does not change the law, the approach is signifi cantly different. Such cases will no longer turn on fi ne distinctions and theoretical decisions as to whether there is an imputation of fact which must be justified.
A broader approach will be taken on meaning and the article will be looked at as a whole and in context. Scientifi c controversies are less likely to be litigated in court. If the court accepts that the words complained of are comment, it is a relatively simple matter for the defendant to establish that the opinion was honestly held and it is an extremely diffi cult matter for the claimant to establish that the defence of fair comment is vitiated by proof of malice.
There have been a number of claims recently brought in England in relation to scientifi c matters. Professor Lacerda, Professor of Phonetics at Stockholm University, found that his academic paper Charlatanry in Forensic Speech Science was withdrawn in the face of threats of legal action by the Israeli company, offended by the professor’s criticism of their voice risk analysis equipment.
Dr Peter Wilmshurst has been locked in litigation with NMT Medical, an American company, regarding criticisms of the effi cacy of their device Starfl y for the treatment of holes in the heart and the alleviation of migraine. There may not much enthusiasm for such claims in the future.
GE Healthcare has dropped its lawsuit against a Danish radiologist called Henrik Thomsen of Copenhagen University who had claimed one of their drugs used by kidney patients receiving MRI scans led to a crippling side-effect.
The BCA has now dropped its foolish claim against Singh and will have to pay his costs. Singh may end up £20k out of pocket in regard to irrecoverable legal costs. The BCA can never in its wildest imaginings have anticipated what a determined and charismatic opponent Dr Singh would turn out to be. Additionally he has turned out to be a crucible for the reform of the libel laws.