I have to agree with Andrew's suggestion.  To my mind it clearly ties in with what Lord Judge states at [24]-[26], particularly the last sentence in [26]:

'[BCA's counsel] ... simply relies upon the phrase "there is not a jot of evidence" as a plain assertion of fact upon which the allegation that the BCA happily promotes bogus treatments is founded. And she paraphrases "happily" as meaning "knowingly". Unless, therefore, Dr Singh can make good the assertion, Ms Rogers submits, he cannot begin to defend what follows as fair comment.

We respectfully reject both the premise and the conclusion.

What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be.'

The key thing I think is that there are facts, and then there are facts.  If I said that BCA was promoting chiropractic rememdies for the plague, that would be an false fact.  If I said they were promoting chiropractic remedies for colic, that would be a true fact.  If I said they were claiming that chirpractic works for the plague, I would be making a statement of (incorrect) fact: that fact is that they are making a value judgement based on the available evidence, that plague is cured by chiropractic.  If I said they were claiming chiropractic remedies work for colic, I would be making a statement of (correct) fact: that fact is that they are making a value judgement based on the available evidence, that chiropractic remedies work for colic.  Now what Singh was doing was making a correct fact (he noted that BCA claimed, inter alia, that chirpractic can cure colic).  What he did was question the underlying methodology and conclusions reached thereunder, of that claim.  This is the value judgement based on the available evidence.  Reaching Singh's conclusion, or the BCA's conclusion, 'is as much a value judgement as a contrary viewpoint would be.' If Singh had said there was no evidence, as in the sense of no studies done, that would have been libelous.  It would have been a statement of incorrect fact.  But he didn't: he acknowledged the presence of such studies, and made the value judgement that they are not worth a jot.  Which is opinion, not fact.

Having enraged/bored/confused, I should give the usual caveat: I last did defamation in my first year of law many moons ago, and not really looked into it since.

Dr Sean Thomas
Senior Lecturer in Law
Anglia Law School
Anglia Ruskin University
Cambridge Campus

sean.thomas@anglia.ac.uk
extension number: 2478



-----Original Message-----
From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]
Sent: Wed 14/04/2010 09:52
To: Hedley, Steve
Cc: Neil Foster; obligations@uwo.ca
Subject: [Spam?] Re: [Spam?] RE: [Spam?] Re: ODG- Defamation, BCA v Singh

On 14/04/2010 08:40, Hedley, Steve wrote:
>
> Well, it seems to me that we are not disagreeing about much. You agree
> that whether chiropractic techniques can cure certain illnesses is a
> matter of fact, and obviously enough Simon Singh was denying that they
> can effect those cures. The disagreement is that you think that
> statements on such factual matters can sometimes fairly be treated as
> mere opinion. It is this that is an innovation in English law, and it
> is a vague one, hence the scepticism of myself and commentators I
> referred to.
>
> It is very hard to pin down why *this* factual assertion should be
> treated as mere opinion. Points you make: the statement was in broad
> terms (but it was quite precise despite it); Singh referred to sources
> elsewhere to back himself up (but that emphasises that it is a factual
> matter, surely?); and that his remarks were in the "Comment" section
> of the newspaper (are you serious?). The remark was factual - that
> chiropractic doesn't have the effects claimed for it - and this
> judicial innovation seems entirely discretionary in its operation. It
> is not enough that Lord Judge's heart is in the right place. This rule
> will mostly be applied by other judges, who will have a variety of views.
>
> None of that, however, is what I and the other commentators are
> complaining about. It may be that, fairly applied by sensible judges,
> this will yield sensible results.  But that is no way to run a legal
> system. Free speech requires bright lines. This new rule leaves
> commentators such as Singh at the mercy of individual judges, who may
> or may not take an enlightened view. Under this rule, Singh has free
> speech if he comes up before Lord Judge but not if he comes up before
> Eady J. The chilling effect is obvious.
>
>
> Steve Hedley
>
>
>
>
>
> -----Original Message-----
> From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
> Sent: Wed 14/04/2010 01:28
> To: Hedley, Steve
> Cc: obligations@uwo.ca
> Subject: [Spam?] Re: ODG- Defamation, BCA v Singh
>
> Dear Steve;
> Thanks for the very helpful links to discussions of the case. I must
> say I have to disagree with you on your criticism of the decision,
> however. I absolutely agree that the question whether chiropractic
> techniques work or not is indeed a question of fact which needs to be
> evaluated by evidence. But the question still remains whether what
> Simon Singh had actually said was a statement of "honest opinion" (or
> "fair comment") in the sense understood by defamation law. In other
> words, someone should be able to express their honest opinion about
> matters which could be verified, but in certain circumstances the law
> of defamation allows them to do so in way which will not attract
> liability, even if they cannot in the end prove that all that they
> said was true.
> It seems to me that that, in the context of the publication, is what
> Mr Singh did. His comments were made in "broad terms"- "not a jot of
> evidence", "bogus treatments". They were made on a page in the
> newspaper headed "Comment and Debate". In Australian cases at any
> rate, the fact that the statements were made in a context where other
> sources of information were referred to also supports the view that
> these were "fair comment" and the readers could go to the specific
> sources and check for themselves.
> Of course in a different context the remarks may have not been able to
> be seen as "comment" of this sort. If the remarks came in an academic
> publication the denial of "any" evidence to support the claims would
> be very serious and taken as a statement of fact. But in an avowed
> "opinion piece" in a newspaper it seems to me that the remarks can be
> taken by the reader for what they are- Mr Singh's opinion which he
> honestly holds. The law of fair comment is in place to allow the free
> discussion of issues in a way which it is apparent was probably
> stifled by the first instance decision.
> Regards
> Neil F
>
> On 13/04/2010, at 5:11 PM, Hedley, Steve wrote:
>
>
>         While all commentators agree that the result feels right,
> there's considerable unhappiness at the reasoning - the criticism (if
> I can sum up a number of points of view) is essentially that whether
> chiropractic works is NOT just a matter of opinion, and indeed the
> whole point of Simon Singh's criticism is that individual opinions,
> unconstrained by evidence, are not worth very much.  It seems bizarre
> to say that his statement is itself "opinion", even if this leads to a
> result we are happy with.
>
>         For web-based commentary see:
>         Metamagician and the Hellfire Club -
> http://metamagician3000.blogspot.com/2010/04/case-note-on-simon-singh-appeal.html
>         Skepticlawyer -
> http://skepticlawyer.com.au/2010/04/02/nb-lawyers-are-not-scientists-please-stop-trying-to-recruit-us/
>         Cearta -
> http://www.cearta.ie/2010/04/simon-singh-bogus-claims-and-finally-sense-about-libel/
>         MediaPaL@LSE -
> http://lsemediapal.blogspot.com/2010/04/comment-on-singh-case-alls-well-that.html
>
>         Some hint that we should be working towards a theory of which
> issues the courts should involve themselves in - lawyers should not
> pretend to be scientists, doctors or historians - but no such theory
> appears in the CA's judgment, and it's not easy to construct one.
> Would ODG members be happy if the Deborah Lipstat action (Irving v.
> Penguin Books Ltd & Lipstat [2000] EWHC QB 115) had been dismissed on
> the basis that it is mere "opinion" whether the holocaust happened?  I
> don't imagine so. But why is the holocaust "fact" but the inefficacy
> of chiropractic "opinion"?
>
>         So it is good that Simon Singh won this stage of the action -
> but it is very hard to see that there was anything technically wrong
> with Eady J.'s original judgment against him - and it's not enough
> simply that the judges in the appeal court happen to have "the right
> values" allowing them to avoid inconvenient results - more systematic
> reforms are needed.
>
>
>
>         Steve Hedley
>
>
>         -----Original Message-----
>         From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
>         Sent: Tue 13/04/2010 05:52
>         To: obligations@uwo.ca
>         Cc: Charles Douglas
>         Subject: ODG- Defamation, BCA v Singh
>
>         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/
>
>
>
>
>
>
>
>
>
>
>
>  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/
>
>
>
>
>
>
>
I see Steve's point, which is the absolutely sound one that fair comment
applies to opinion only. If you go around stating disreputable facts
relating to other people you've got to prove them, and it's no defence
as such that what you said referred to a matter of public interest
and/or that in your opinion it was true.

But there might be a way round this that leaves Singh intact. Academic
or scientific spats of the kind in evidence here could be regarded as
arguments, not over facts, but over inferences. In Singh, the arguments
is thus: is it or isn't it a fair inference from the evidence in the BMJ
etc that chiropraxy doesn't work? Put that way, there's no difficulty
with allowing in the plea of fair comment.


Andrew

--
Andrew M Tettenborn
Bracton Professor of Law, University of Exeter



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LAWYER, n.
One skilled in circumvention of the law. (Ambrose Bierce, 1906).


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