Sense about Science ? equipping people to make sense of science and evidence
Simon Singh's application turned down by Court of Appeal
Friday 31st July 2009
Simon Singh’s comment on the court’s decision:
“The Court of Appeal’s refusal is obviously disappointing, but I remain in good spirits. I will not be making a decision about my response until I have seen the official letter and the details of the refusal, and I will also need time to discuss the situation with friends, colleagues, supporters and family. In the meantime, while my particular libel case is ongoing, it continues to raise a whole series of arguably more important issues, particularly the appalling state of English libel laws. I am pleased that the Culture Secretary has agreed to meet with signatories of the Keep Libel Laws out of Science campaign statement to hear how the laws affect writers. We are also pursuing a meeting at the Ministry of Justice and with front benchers in other departments to lobby for a change in the law.”
David Allen Green explains the court’s decision:
“The Court Office today confirmed to me that, in an Order sealed on 30 July 2009, the Court of Appeal has refused Simon Singh’s application for permission to appeal (PTA). Letters have been sent to the parties (but there is a post strike in London.) Simon Singh needed PTA because it had been refused at first instance at the preliminary hearing in May. There are no further details yet, including reasons. I understand that this refusal may now mean he can make an “oral renewal” before the Court of Appeal. More information will be provided as it becomes available”
Sense About Science response to the court’s decision:
“It was announced today that the Court of Appeal has denied Simon Singh leave to appeal the preliminary ruling in his libel case with the British Chiropractic Association. Simon now has an option to apply for an oral hearing to try to overturn that decision. If he decides not to or if this fails his case will be tried on a meaning of a phrase he did not intend and is indefensible. This decision highlights the problem of narrow defences that, along with high costs and wide jurisdiction, make the English libel laws so restrictive to free speech.
The Keep Libel Laws out of Science campaign is working with Index on Censorship, EnglishPEN, Article 19 and the legal writer David Allen Green to put together proposals for a solid public interest defence that would affect science and health writing and journalism more widely. Meanwhile, efforts to publicise the poverty of evidence for chiropractic claims, the subject of Simon’s original article, are also continuing and have become prolific in the blogosphere.”
I can confirm today that I have applied for a hearing to ask the Court of Appeal to reconsider its recent denial of permission. For anyone new to the case, here is a brief timeline of events:
2008 April I publish an article about chiropractic in the Guardian.
2008 July The British Chiropractic Association (BCA) sues me personally for libel.
2009 May High Court gives a very negative ruling on the meaning of my article.
2009 June I ask for permission to appeal the ruling on meaning (paper application).
2009 July The application to appeal is rejected.
2009 August I am now asking again for permission to appeal the ruling.
The new application will be oral, as opposed to the previous one, which was on paper. As always, the legal blogger Jack of Kent has been eloquently summarising the developments in my case and you can get up to speed by visiting:
A great deal has happened since my original article was published back in April 2008 and I suspect that the libel case will continue for many more months (or maybe years), so perhaps now is a good time to review the situation and explain my thoughts about the future of the case. In particular, the ‘Heresy Corner’ blog contains an open letter to me, which raises some interesting points, and I will address some of these.
Is it time to give up?
W.C. Fields said: ‘If at first you don’t succeed, try, try, again. Then quit. There’s no use in being a damn fool about it.’ However, as yet I don’t think I am anywhere close to giving up and I don’t think I am behaving like a ‘damn fool’.
Before embarking on this battle I was confident about three key points. First, I believed that I was doing the right thing in standing by my article. Second, I believed that I stood a reasonable or good chance of winning. Third, if I did lose, I knew that the financial loss would not bankrupt me. One year later, I still believe that I am right, that I stand a reasonable (but not good) chance of winning and that I will not be bankrupted.
At each stage of the legal process I have very carefully weighed up the options and discussed the situation with legal experts, friends and supporters. For example, right now, it seems obvious that I should persist with the appeal process - I accept that that an oral application to appeal stands less than a 50% chance of success, but the additional costs are relatively small and the potential rewards are enormous; in the long run, if I can successfully win my case, I could recoup my own costs, force the British Chiropractic Association to pay its own costs and reinforce my concerns about the lack of evidence surrounding some chiropractic treatments.
Of course, the initial ruling on meaning and the recent refusal of my application to appeal are hugely disappointing, but I have no regrets about the path I have chosen. My article is correct, it is about an important health issue and I believe I ought to defend it. Also, as I have said previously, I still have a chance of successfully defending the case and in the worst case scenario I will not be destroyed.
Moreover, there have already been many positive outcomes emerging from the case. For instance, the legal battle has shone a light on chiropractors and their claims; there have been major articles in magazines such as ‘New Scientist’ and the ‘British Medical Journal,’ and, of course, bloggers have been writing extensively about the lack of evidence for some chiropractic claims.
Moreover, as a result of the media attention given to chiropractic, the BCA seems to have stopped promoting chiropractic in the treatment of various childhood conditions. Moreover, many chiropractic clinics have withdrawn their some of their claims because of pressure from bloggers and threat of action from Trading Standards Offices and Advertising Standards Authorities.
Also, my article and the resulting legal case raise concerns about whether the regulation of chiropractors has been effective or beneficial for patients. Chiropractic is one of only two alternative therapies that have been regulated in the UK and the current question is whether more alternative therapies should be regulated. Indeed, this is discussed in the controversial Pitillo Report, which was written by the ‘Department of Health Steering Group on the Statutory Regulation of Practitioners of Acupuncture, Herbal Medicine, Traditional Chinese Medicine and Other Traditional Medicine Systems Practised in the UK’. Consultation on this report has just opened and it is important to provide feedback on its recommendations, perhaps in light of the disappointing consequences of chiropractic regulation. You can find out more about the Pitillo Report at Professor David Colquhoun’s excellent blog:
I am also delighted that my case has helped galvanise interest in the broader issue of libel reform. This ranges from the Sense About Science Campaign to increased media coverage of the issue. The BBC is currently making a major series on the issue of libel and has already filmed several interviews with figures who have a direct interest in my case.
In summary, I have no regrets about fighting this libel case. I am determined to defend my article. The support and advice from family, friends, bloggers, skeptics and supporters from across the world has been extraordinary. The feedback that I am receiving suggests that I am doing the right thing.
What happens if the oral application to appeal is rejected?
There are a few possibilities if the oral application to appeal is rejected.
The first option, having exhausted the English appeal process on the issue of meaning, would be to take the case to the European Court of Human Rights (ECtHR), probably with reference to Article 10, which is the right to free expression.
Alternatively, I could return to the preliminary hearing, which is currently unfinished. The outstanding aspect of my defence (not covered in the May preliminary hearing) questions whether a corporation without shareholders can sue for libel. The BCA’s reputation is with its members and not the public, because it serves its members and does not trade with the public; my article was aimed at the public and would not have damaged the BCA’s reputation with its members.
From Mr Justice Eady’s previous assessment of my case, I suspect that he will not be convinced by the corporate argument and would rule against me. However, I could apply to appeal this ruling and, if I am not successful in the English courts, take this take this additional point to the ECtHR.
Taking the case to the ECtHR on either one or both points could take years. However, that is absolutely fine by me. For the arguments made earlier, I think this is a perfectly sensible fight, whether it takes months or years. Remember, at the heart of the case is whether or not chiropractic can help children with serious ailments. More broadly, there is the issue of how freely a journalist can speak out on a matter of public interest.
Also, if the case goes to Europe, then my solicitor Robert Dougans and his company Bryan Cave have assured me that they would provide their services pro bono. Bearing in mind the costs and time involved, this is a very generous gesture and I am very grateful.
Why is Simon being so stubborn?
Over the last decade, my main job has been writing books about science (including maths, technology and medicine), but in between writing books I have always got involved in other projects. For example, after writing ‘Fermat's Last Theorem’, I developed and presented ‘Mind Games’ on BBC4. Then, after ‘The Code Book’, I co-founded the Undergraduate Ambassadors Scheme. And, after ‘Big Bang’, I worked with Richard Wiseman on ‘Theatre of Science’ and initiated ‘The Enigma Project’ in schools.
I view my current legal battle as just another in-between-books project. This legal battle is more expensive than initiating an educational project and less fun than Theatre of Science, but otherwise it meets many of the criteria that I look for in a project.
If the court case comes to an end then I hope that I will be able to start writing a new book next year. In the meantime, I have cleared my diary in order to focus on the libel case. And, if necessary, I would delay the start of any new book project in order to properly defend my article in court.
In short, I am not being stubborn. In fact, bearing in mind the issues at stake (ranging from chiropractic to children’s health to the libel laws), I think this is an excellent use of my time.
Those who are close to me have questioned, challenged and ultimately backed me. If I ever get to the point of becoming blinkered and quixotic, then I know that these same friends and wise folk will tell me that I am being crazy. At that point I will be ready to back down and settle the case. Until I reach that point, I am battling on.
Ps. Latest news - oral hearing set for 14th October.