British Chiropractic Association v Singh

This is a renewed application for permission to appeal against the rulings of Eady J made on 7 May 2009 upon two preliminary issues in a libel action. Permission was refused on consideration of the papers by Keene LJ on 21 July 2009. The proceedings relate to two sentences in an article written by the appellant, the defendant in the action, and published in the Guardian on 19 April 2008. The appellant is a writer, journalist and television producer in the fields of science, maths and medicine. The respondent, claimant in the proceedings, is a professional or trade association representing some 1,350 chiropractors. The respondent runs an annual event called “Chiropractic Awareness Week”. The article complained of was a response to Chiropractic Awareness Week 2008. It was in the Guardian’s Saturday Comment & Debate section under the heading “Beware the spinal trap” and a subheading “Some practitioners claim it is a cure-all but research suggests chiropractic therapy can be lethal”. It was also published in the online edition of the Guardian.

The alleged defamatory words consist as I have indicated in two sentences in the article. They appear at the end of the third paragraph. To set the context, I will set out the whole of the third and fourth paragraph as follows:

“You might think that modern chiropractors restrict themselves to treating back problems, but in fact some still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. [There follow the two sentences complained of]. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

That is the end of the sentences complained of. The next paragraph is in these terms:

“I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.”

The meaning of the words complained of, which is attributed in the respondent’s pleading and upheld by the judge in the first ruling complained of, is as follows:

“…that the claimant:

(a)

claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and

(b)

by making those claims, knowingly promotes bogus treatments;”

That is the pleaded meaning.

The primary defence put forward by the appellant was one of fair comment. The second ruling by the judge was that the words complained of constituted or contained allegations of fact and were not, as the appellant contended, comment and therefore the defence did not run. The judge said this at paragraph 14 of his judgment:

“I therefore would uphold the claimant’s pleaded meanings. It will have become apparent by now that I also classify the defendant’s remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification.”

I propose to grant permission. There is no dispute but that the subject matter of the piece was of genuine public interest. There is, as I understand it, no question as to the good faith of the appellant, no suggestion that he was actuated by malice. But in that case the litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest. Moreover, the meaning attributed by the judge to the words complained of imported a subjective state of mind, although the respondent is a corporate claimant. That may itself be a matter of difficulty, and is adverted to in Miss Page’s argument for the appellant. This view of meaning must presumably have fuelled the judge’s conclusion that he was faced with assertions of fact rather than comment.

It is arguable, and I will stress we are only here dealing with whether permission should be granted, that the judge has conflated the two issues:

The judge’s approach may moreover be said to impose an altogether disproportionate burden on the appellant, requiring him to prove for example that chiropractic treatments for the specified childhood conditions are bogus in the sense of the terms selected by the judge.

There are other points in the grounds. I grant permission to appeal at large, because overall I consider it arguable that the result of the judge’s findings risk striking the Strasbourg balance between the right of reputation and the right of free expression too far in favour of the former and against the latter. I wish to stress that nothing I have said indicates any view as to the final result in this appeal; I have merely assembled the reasons why it seems to me that this case ought to go forward to a full appeal, when of course the matters in the litigation in the preliminary issues will be properly resolved.

As I indicated to Miss Page at the beginning of the hearing, I do feel constrained to add that the 47-page skeleton argument was so voluminous and discursive as to be of very modest assistance in determining this application. A substitute skeleton -- not, I suggest more than 20 pages in length -- should be prepared for the appeal, expressing the material points crisply and clearly and without repetition.