British Chiropractic Association v Singh

In this libel action the claimant is the British Chiropractic Association ("BCA"). The defendant is Simon Singh, who wrote a piece in the Guardian on 19th April 2008 during Chiropractic Awareness Week, which was also published online. At the moment I have to decide two questions which have been agreed by the parties. One is to determine what defamatory meaning or meanings the words complained of bear; secondly, to determine in the light of that ruling whether the words complained of made and/or contained allegations of fact, or whether they constitute comment.

The BCA is a company limited by guarantee. It was apparently established in 1925. As Lord Scott pointed out in the House of Lords in Jameel & Anor v. Wall Street Journal Europe SPRL [2007] 1 A.C. 359, para.125, when the court is confronted with a corporate claimant in defamation proceedings it is necessary to focus on its objects.

The BCA's aims are to promote, encourage and maintain high standards of conduct, practice, education and training within the chiropractic profession in the United Kingdom. It is said to represent about half of the chiropractors registered under the Chiropractors Act 1994, which are between about 1300 and 1400 in number.

The words complained of were taken from the third paragraph of the article.

That is the only reference to the BCA in the article. The meanings pleaded on the claimant's behalf are to be found at para.6 of the particulars of claim to this effect: that (a) the BCA 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.

Are those straightforward words defamatory of the corporate claimant or not? If so does the reasonable reader construe them as asserting fact or merely as expressing an opinion? That is an important distinction long recognized in domestic law as well as in Strasbourg. All of us recognize the importance of the freedom to express trenchant and even offensive opinions on matters of public interest.

After some desultory correspondence, the claim form was issued on 10th July of last year together with the particulars of claim. The defence was served on 8th September. At that stage it was being admitted that the article was defamatory of the BCA in the meanings which were put forward by the defendant. There were substantive defences, both of fair comment and justification. There was a reply served on 3rd November.

The principles governing the approach of the court to determining meaning are well known and uncontroversial. See, for example, Skuse v Granada Television [1996] EMLR 278, 285-287 and Gillick v Brook Advisory Services [2001] EWCA Civ. 1263. See also Gatley on Libel and Slander 11th Ed. at para.32.2 et seq.

I turn, in the light of those principles, to my conclusions as to meaning. As part of this exercise it is necessary to focus on the matter of reference. It is suggested by the defendant that the words refer in truth only to the body of chiropractors as a whole; that in so far as criticism was being directed, the ordinary fair-minded reader would understand that it was being directed at a class rather than at any individual person, whether human or corporate.

This is closely related to a submission of Miss Page to which I have not yet been asked to address to the effect that the corporate entity is merely being “put up” when it has no legitimate complaint of its own, purely as a front for an impermissible class action.

As so often in libel cases, it is necessary to focus on what was actually published rather than on what might have been published. It is fundamental to have in mind that the article does not confine itself to a general attack on a class of unidentifiable individuals. The defendant could have written such an article if he had chosen, but he referred expressly to and only to the BCA. The claimant does not rely on necessary implication to suggest that people in the know would have been able to identify the BCA as responsible for the conduct being criticized. There it is on the face of the article.

What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.

It is alleged that the claimant promotes the bogus treatments "happily". What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

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. What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact. That is despite the fact that the words complained of appear under a general heading "comment and debate". It is a question of substance rather than labelling.

Those are the matters on which I have been invited to rule so far.