Dear Colleagues;

A bit late but thought others may not have noticed yet that the EWCA overturned the trial judge's decision in the very controversial defamation case of British Chiropractic Association v Singh [2010] EWCA Civ 350 (01 April 2010) http://www.bailii.org/ew/cases/EWCA/Civ/2010/350.html. Simon Singh, well-known science writer and broadcaster, had criticised some of the more outlandish claims of chiropractors in a newspaper article, and then been sued by their professional association. A great deal of fear and angst among science writers when the first stage of the litigation was allowed to continue. This very sensible decision of the EWCA  (what seems to me to be a very impressive bench of Lord Judge, LCJ, Lord Neuberger MR and Sedley LJ) overturns the previous decision, and holds that in context what Singh had said about the BCA claims being made "with not a jot of evidence" and "bogus" claims were clearly fair comment and not just statements of fact.

The court also made some telling comments on some of the detrimental consequences of the initial ruling:

"11.              It is now nearly two years since the publication of the offending article.  It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ.  Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic.  If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved.  This would be a surprising consequence of laws designed to protect reputation.   

12.              By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh’s contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics.  Again, if that is where the current law of defamation takes us, we must apply it."

Thankfully the CA ruled that the law did not go there, and that what had been said was a good example of "fair comment". They even concluded their judgment by suggesting that it might be a good idea in future for the English courts to adopt the description of the defence used in some overseas statutes (such as, for example, s 31 of the Defamation Act 2005 (NSW) and elsewhere in Australia under our current uniform laws) of "honest opinion".

Technically the case should now go back to the trial judge for further stages, but I would suspect that there might be a settlement at this point.

Regards

Neil F

 Neil Foster

Senior Lecturer, LLB Program Convenor, Newcastle Law School Faculty of Business & Law

MC158, McMullin Building

 University of Newcastle Callaghan NSW 2308 AUSTRALIA 

ph 02 4921 7430 fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/