BCA vs Singh
Case Reference: A2/2009/1196
Title: British Chiropractic Association v Singh
Appeal/Application: from the order of Mr Justice Eady The High Court Queen''s Bench
Division dated 07-May-09
Hearing Status: Float on 22-Feb-10 or 23-Feb-10
Constitution: THE LORD CHIEF JUSTICE OF ENGLAND & WALES
THE MASTER OF THE ROLLS
LORD JUSTICE SEDLEY
Current Status: Awaiting result of a reserved judgment
This case reminds me of the discussions I have with theists sometimes over their use of the word 'evidence'. They have to be reminded quite often that the plural of 'anecdote' is not 'data'. The fact that 30 billion flies find shit appealing does not in the least tempt me to try it on toast. Nevertheless, it is still not certain that the appeal will go Simon's way, although I take some encouragement from reading the judges responses to BCA counsel.
If the case is lost, it will be a horrible blow to upholding the rights to freedom of expression and the right to comment critically in the press and elsewhere against vested interests which have the financial muscle to bring libel cases.
My view is that if counsel for the BCA is correct in her implication that [if] Simon (in his Grauniad article) had written the words 'there is no reliable evidence' rather than 'there is not a jot of evidence' then the case would not have come to court is true, then I impute vindictive motives and a desire to supress fair comment on to the BCA in their bringing this libel action to court.
My sincere hope is that the BCA live to regret the day they ever took this to law. For all our sakes, it is important they lose this case.
So, if you're bored one day and it's pouring down and you don't feel like digging the weeds, here is the whole transcript of the appeal.
This post supercedes my previous post on this matter :-)
See also this article on how this action has backfired on chiropractice.
"The aim of science is not to open the door to infinite wisdom, but to set a limit to infinite error" - Bertolt Brecht
Simon Singh (appellant/defendant) v
British Chiropractic Association (respondent/claimant)
THE LORD CHIEF JUSTICE (Lord Judge), THE MASTER OF THE ROLLS (Lord Neuberger) and
LORD JUSTICE SEDLEY
MS ADRIENNE PAGE QC and MR WILLIAM McCORMICK
(instructed by Bryan Cave Solicitors) for the Appellant
MS HEATHER ROGERS QC for the Respondent
Simon Singh's Case
THE LORD CHIEF JUSTICE: Yes.
MS PAGE QC: May it please your Lordships. In this appeal I appear with my learned friend, Mr William McCormick, for the defendant appellant, Simon Singh. My learned friend, Ms Heather Rogers, who I think is in the process, unfortunately, of only just receiving her papers, appears for the claimant respondent, which is a company limited by guarantee by name of the British Chiropractic Association (and I shall refer to it as "the BCA").
I propose to briefly introduce the parties and move on from there. In terms of time and how we apportion time between the two sides, Ms Rogers and I have had a chat about that. I proposed to her that I will try and sit down - obviously subject to what questions your Lordships have, which may be numerous on one side or the other - at about quarter to one in order to apportion the time fairly. For her part, she is content if I sit down at 1.00 and thinks that she would have time in the afternoon to deal with that. As I say, it is very much down to what questions ----
THE LORD CHIEF JUSTICE: We will do our best not to hinder that plan.
MS PAGE QC: So long as it does not hinder an understanding of anything I say which needs assistance, and I hope that interruptions will be forthcoming. I do not propose to slavishly follow the skeleton argument.
THE LORD CHIEF JUSTICE: No.
MS PAGE QC: But take the skeleton argument as read.
THE LORD CHIEF JUSTICE: Thank you very much.
MS PAGE QC: And as to be read again, in particular because I want to pick on particular topics and I want to incorporate in my opening a response to some of the points made by Ms Rogers in her skeleton argument.
THE LORD CHIEF JUSTICE: Yes.
MS PAGE QC: Starting with the parties, Dr Simon Singh is a writer journalist and television producer on matters of science, maths and medicine. He is known in the publishing world for promoting an evidence-based approach to scientific matters and he has co-authored a book on alternative medicine with a Professor Edzard Ernst, who is a professor of complementary medicine, and that was a book that was being published at about the time of the events that lead to this libel action.
The BCA is a professional association, a trade association, representing approximately half of the registered chiropractors in the UK. Amongst other functions, it performs a PR role for chiropractic and chiropractors on behalf of its members. Details of what it performs in that capacity are to be found in their reply (at paragraph 4, pages 98 - 102). That outlines some of their activities and the nature of their role.
The BCA has a website which, as they describe in their reply, is intended to promote chiropractic to the public and also to health care professionals. The BCA describes chiropractic in its reply at page 92 as:
"A health profession concerned with the diagnosis, treatment and prevention of mechanical disorder of the musculoskeletal system and the effect of those disorders on the function of the nervous system and general health."
This case is proceeding against a background of a public debate of longstanding (and it requires no introduction; it is very familiar to the public) concerning the merits of, or role of, complementary or alternative medicine, as against what, for convenience, I would refer to as "orthodox medicine". The debate is so well known and so well participated in that even the heir to the throne from time to time enters the public arena to contribute to that debate.
There is an annual event that in recent years has been promoted by the BCA. In 2008 it was in April. It is described as an annual project, entitled "Chiropractic Awareness Week", of which is an aim to bring the benefits of chiropractic, or chiropractic members of the BCA, to the attention and awareness of the public.
On 19th April 2008 ----
THE LORD CHIEF JUSTICE: Just before you get there, what is the relationship, if any, between the Association and the General Chiropractic Council established under the Act?
MS PAGE QC: The General Chiropractic Council under the Act is the regulator. The BCA is a trade body or a trade union, if you like, for the chiropractors. It has no regulatory function. It defines its aims and objects as being to maintain interests and standards of the chiropractors it represents. It in fact represents approximately half of the registered chiropractors. It has no function in terms of regulation or of establishment.
THE LORD CHIEF JUSTICE: Thank you.
MS PAGE QC: On 19th April the Guardian, in its Saturday comment and debate pages, and also on line, published an item by Simon Singh which carried the title "Beware the Spinal Trap", and was subtitled "Some practitioners claim it as a cure-all, but research suggests chiropractic therapy can be lethal".
The article was stated by Dr Singh in terms to be prompted by, and it drew attention to, Chiropractic Awareness Week. Two sentences only from that article form the subject matter of this action. This is a libel action which has now been ongoing for some 19 months, and it has generated so far statements of case running to about 80 pages. The action had only so far reached close of statements of case when the rulings of Eady J, the subject of this appeal, were made on 7th May 2009.
The defences raised to the action remain, on the face of the record, fair comment on a matter of public interest and justification. Those defences were directed towards lesser defamatory meanings than those relied upon in the particulars of claim (and I shall be coming on in more detail to those).
In response to the defence, a reply was served. The reply makes no plea of malice against Dr Singh or any other challenge to his good faith in what he wrote. The rulings, the subject of the appeal, were a final determination by the judge as to the actual defamatory meaning of the two sentences selected for complaint; and a final determination as to whether those words were susceptible in principle to the defence of fair comment or, as it should perhaps be known now, honest comment.
It arose that the judge was able to make determinations of a final nature because, by the time of the CMC after the statements of case were closed, the parties both acknowledged that this was a case that was suitable for trial by a judge alone - in fact only suitable for trial by a judge alone - because it involved a detailed examination of the evidence and the nature of the evidence as to what constitutes evidence to support the claims by the BCA as to chiropractic as a treatment for childhood disorders.
That is not of course the way in which things proceed in every case. It is the way in which matters proceed increasingly, but there are various possibilities as to how it may come about, or the way it may come about, and determinations of fact are made. If the parties agree or the court rules that there shall be trial by judge alone, then it is quite common, but not invariable, that either one of the parties, or the court of its own motion, will propose that it would, or may, shortcut matters and save costs if the judge, sitting hypothetically as the trial judge, were to decide at that point the true meanings of the words and any other matters such as whether in principle they are capable of being comment where they do not depend upon evidence.
In the context of meaning, or natural and ordinary meaning which we have here, no evidence is admissible in the sense (and in the sense only) that it is not permissible to either party to say what the party understood by the words complained of or what anybody else understood by the words complained of. That is wholly separate to whether or not the judge has to take a broad look at what has been published, including the context of what was published, when it was published, what prompted its publication and who the parties are who respectively were the authors or the complainant in relation to what was published. That is separate from the issue about there being no admissible evidence.
If there is going to be a jury trial, then there can be, unless the parties agree, no such determination as a fact of what the words mean, unless the judge can rule out a meaning on the basis of capability; in other words, as a question of law that is not capable of varying meaning, and that a jury would be perverse to conclude that meaning.
Outside that situation, the case would proceed down to the jury trial. It would be a question to put to the jury to determine what the words mean and whether or not the words were fact or comment, but only in very very rare cases has a jury ever been asked to determine, or actually to state, what their conclusion is as to meaning. Therefore in many cases it is wholly academic, or may be wholly academic, as to what the outcome is. Because, when the jury retires to decide, to go through the directions from the judge and to consider, as they are directed, what the meaning is if there is an issue as to meaning and whether it is defamatory, they do that having heard the totality of the evidence, including the evidence that would go to truth or falsity, even though the jury might conclude there is no meaning.
The reason why I go into that detail about this is really for this reason, and I hope I shall be forgiven for introducing this. The Secretary of State for Justice has appointed a working party to look at reform of libel law, and there is also an independent working party chaired by Sir Charles Gray, to look into the question - in the case of Sir Charles Gray's working party and one of the questions being looked at by the Secretary of State for Justice's working party - of whether or not there should be a change of procedure whereby in every case there will be an early determination of the meaning of the words on the ground that that may lead to an early resolution of cases and save the costs. At the moment that cannot be done unless the parties agree in a case of a jury trial, unless there was primary legislation which altered the right to jury trial.
Going back now to the case in hand, the two sentences selected for complaint in this article form part of the third paragraph of the article. Your Lordships have the article, no doubt, to hand - tab 3. I think what your Lordships have been provided with is merely the hard-copy version. We have copies of the on-line version. It is the same text.
THE MASTER OF THE ROLLS: It is the same text but, as you have mentioned, this text is on a page headed "Saturday Comment" and a date. Is that (inaudible) or said to be found on the website?
MS PAGE QC: On the website it is headed "Simon Singh: Beware the Spinal Trap. Comment is free. The Guardian."
THE MASTER OF THE ROLLS: That is on the right-hand side. It is not on the left-hand side - what is in the newspaper?
MS PAGE QC: What is on the newspaper, exactly, yes.
THE MASTER OF THE ROLLS: I would quite like to see that, if I may, please.
MS PAGE QC: I do not know if it has "Comment" on the … On the "Comment is free" section of the website.
THE LORD CHIEF JUSTICE: It does say "Guardian Comment".
LORD JUSTICE SEDLEY: It seems to have the same top left as well.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: On the copy we have got, underneath the black thing at the top "Guardian UK". Then underneath "Guardian" there is the word "Comment".
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: Is there any word that has been obliterated between "Comment" and "The Guardian"?
MS PAGE QC: No; not that I can see. I have got a larger and clearer copy, and it appears to say "Comment" "The Guardian".
THE MASTER OF THE ROLLS: Thank you.
MS PAGE QC: The two sentences complained of form part of the third paragraph of the article. We have emphasised in argument, we say, the need to look at those, not only in a much wider context, but at least in the immediate context of the paragraph from which they are taken and the paragraph that follows. That is agreed as follows:
"You might think that modern chiropractors restrict themselves to treating back problems, but in fact they 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. 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.
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 complaint was made in accordance with the Defamation Pre-action Protocol by letter which your Lordships have at tab 19 of the core bundle. I would like to invite you to go to that at page 142. Their solicitors on 28th May 2008 introduced the British Chiropractic Association and its role in representing ----
THE MASTER OF THE ROLLS: What are we looking at this letter for exactly?
MS PAGE QC: The reason why I am looking at this letter is for a number of reasons. Ms Rogers submits as her case in paragraph 3 of her skeleton argument that the attack on the BCA's reputation in the article was unwarranted, disproportionate and unnecessary. BCA brought this action to vindicate its reputation and set the record straight publicly.
What I wish to draw attention to in the early correspondence is that the complaint was a complaint about the assertion that there was not a jot of evidence, and the complaint was that there is in fact a substantial body of evidence. In other words, that is the very subject-matter of the public debate. One sees that it is alleged in the second paragraph of the letter, the second sentence:
"The letter is part of a publicity campaign orchestrated by yourself and Professor Ernzt to promote your recently published co-authored book, to denigrate the profession of chiropractic and those who practice it."
In what follows after they set out the words, what is complained of, as one sees, are:
"It is libellous to allege that the claims by our client happily promote bogus treatments where there is not a jot of evidence, there is, as you are or should be well aware, a substantial body of evidence to support these claims."
It goes on to say that there has been unjustifiable damage to the client's professional reputation.
Now there was no complaint there -- there was no complaint at any stage in the correspondence prior to the issuing of the claim form -- that the allegation was one of dishonesty or knowledge of absence of evidence on the part of the BCA. What was sought was a public acknowledgement of the falsity of the claim - in other words, as one clearly sees later, that there is not a jot of evidence - and its withdrawal; an undertaking not to repeat; damages and costs.
Now in the response, and the response to the complaint was fielded by The Guardian legal department, although no complaint was ever pressed to The Guardian. It was argued of course that it was a comment piece, but what was offered was the opportunity for the BCA … Well, first of all, the BCA were invited by The Guardian to indicate the substantial body of evidence to support the claims which in fact was repeated, but it declined to do, in order that whether or not there had been an inaccuracy could be corrected.
The Guardian offered the BCA an article of its own of equal prominence opposite the column, in the response column of The Guardian, of similar prominence and length to set out what they say is the evidence. That was also declined. In addition to that, in later correspondence they were offered the publication of a clarification which would record the BCA informing The Guardian of substantial evidence to support the claims on their website.
LORD JUSTICE SEDLEY: Ms Page, I understand how all this would go to damage and to injunction if it got to that stage, but your endeavour was to prevent it getting to that stage. I do not see how this helps us on that.
MS PAGE QC: I am so sorry, I cannot quite ----
JUSTICE SEDLEY: I do not see how this helps us in relation to whether there is a libel. I can see it goes very much to the heart of what relief, if any, would be justified. How does it help us about whether there is a libel?
MS PAGE QC: I submit it does help you about whether there is a libel for this reason. One of the things that the court must always be cautious to do is to ascertain what is the real dispute between the parties - what is the essential dispute between the parties. Is it in fact a dispute as it is characterised here about the honesty and about an allegation of dishonesty on the part of the BCA, or is this really about asserting a claim as a vehicle to engage in or respond to a public debate on a matter of public interest?
Until one gets to the claim form, this is not in any way put as a claim in which there is an allegation of knowledge on the part of the BCA. If what has been published, and if what those representing the BCA or the BCA concluded had been published, was an allegation confined to whether or not there was evidence rather than confined to an attack on dishonesty of the BCA, then there is no defamatory meaning disclosed.
THE MASTER OF THE ROLLS: You told us a moment ago that it was (inaudible) the judge as to whether or not they had a certain meaning and whether fair comment was a defence, and what the parties understood or intended or believed was not relevant. So I still do not see why we are looking at what the parties said. We ought to be looking at what the judge said and what you say about it.
MS PAGE QC: The judge has to decide what the actual meaning is. He is of course not bound by what either side argues is the meaning.
THE MASTER OF THE ROLLS: Quite.
MS PAGE QC: But it is significant that what was argued as the meaning was an argument directed at the weight of the evidence - not directed at a state of mind in relation to ----
LORD JUSTICE SEDLEY: Surely it would be a jury point, if only you had a jury.
MS PAGE QC: Well, I have made that point, and do make that point. When we get to the complaint, as it appears in the claim form, as I would put it, the claim is navigated into an area which makes it into a defamatory allegation of the BCA; that is to say, an allegation imputing knowledge of absence of evidence.
The meanings complained of we have in paragraph 6 of the particulars of claim, tab 12, page 61. 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, by making those claims, knowingly promotes bogus treatments.
THE MASTER OF THE ROLLS: You ultimately say the vice is this - that it is attributing the word "knowingly".
MS PAGE QC: Absolutely. There are two vices or two aspects of attributing knowing. First of all, "knowing" is no part of the actual words used. "Knowing" only arises if it arises, not from the words used, but it is said as an inference. But it is said to be the reader's inference. It is not the implication of the author: it is the inference of the reader. Moreover, "knowledge" is a problematic word to introduce. It is a helpful word to introduce from the point of view of the claimant, but it is an artificial word to introduce in this context because a view about what constitutes evidence in the medical science context and whether or not there is sufficient is not a subject of knowledge other than in the sense of what constitutes medical knowledge, which includes evidentiary and non-evidentiary material.
It does not follow, if you are ascribing a state of mind to the BCA in the context of how it approaches its claims, to treat this as a question of knowledge. It is clearly a question of assessment or evaluation or belief or faith, if you like, and that of course, as we seek to draw attention to, is the language that we get in the earlier part of paragraph 3.
In other words, the conclusion that one draws from the way in which the meanings are cast in the particulars of claim are that what Simon Singh wrote precluded a number of possibilities. It precluded the possibility that the BCA took a different view to Dr Singh on whether there was evidence to support the website claims, all of these being possibilities that may arise in the reader's mind. It precludes the reader speculating that perhaps the BCA had access to research that Dr Singh did not have access to - perhaps more up to date research.
It also precludes the possibility that the reader may have inferred or speculated that the making of the website claims took place in circumstances which involved no dishonesty on the part of BCA's officers, such as that the BCA relied upon its 1400 membership to decide what should be said to the public. Because of course what one must also focus on here is that this is not, nor would it be, permissible to bring a class action on behalf of 1400 chiropractors. The question is the BCA and its knowledge in its capacity, not as chiropractors, but as a trade body publicly promoting chiropractic on behalf of its members.
All of the possibilities that I have just suggested and many more are entirely realistic explanations for a difference of view over the website claims. The least likely explanation, as would have been obvious to anyone reading this, is that the BCA, on behalf of half of the chiropractors in this country, was cynically and dishonestly engaged on behalf of its registered UK chiropractors in peddling to the public remedies in which they had no belief or which they knew were worthless.
LORD JUSTICE SEDLEY: Do you accept that, if that were the meaning, it would take you beyond the bounds of comment?
MS PAGE QC: I would not say it would take it beyond the bounds of comment. It would still be a comment.
LORD JUSTICE SEDLEY: Would you have to justify?
MS PAGE QC: No; I would say that whatever level of attribution, state of mind, this truly should be determined at, it is still susceptible to the defence of comment. What would then be the question would be whether or not this was a comment which an honest person on the facts could come to.
LORD JUSTICE SEDLEY: So your first argument is that, even if the meaning is what the judge found it to be, which is the paragraph 6 meaning ----
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: - accepted it wholesale - it would still be susceptible in the defence of comment?
MS PAGE QC: Yes, I would say that.
LORD JUSTICE SEDLEY: But you are going on to say that this is an exaggerated meaning.
MS PAGE QC: Yes, exactly. In fact, in a way the claimant's side cannot have it both ways. Insofar as they say that they argue that their meaning is an inference that would be drawn by the reasonable reader, if there are claims being made which is fact, and if there is no evidence of those claims, therefore this means peddling quack remedies, dishonestly doing so. If that is a reasonable inference for the reader to draw, then it must be something which an honest person could conclude for himself on those facts. Therefore it would be very difficult at the same time, when you are relying on an inference which has an extreme result, to say that your reasonable readers would draw that inference, but no honest person defending that inference could honestly hold that comment - could honestly come to that conclusion. The two must equate to each other.
Whatever the meaning is (and that is clearly established by the authorities; it is well established obviously in Strasbourg and it has been accepted in the Court of Appeal in this court), attribution of a state of mind or attribution of motive may very well be and usually is a value judgment. And whether or not it is a value judgment is one where you obviously have to look at the words themselves in order to evaluate it as a value judgment.
Since Dr Singh did not write literally what is set out in paragraph 6 but juxtaposed two pieces of information, it is clearly obvious that, whatever implication there is to be found in his words, it was an inference, deduction, conclusion, observation, remark or whatever, on his part.
In the Strasbourg cases (and Nilsen is a particularly strong example, and also in the cases of Branson Bower and Keays v. The Guardian, involving in both cases first instance decisions of Eady J, and in the case of Branson also the Court of Appeal) the subject matter there was writing which made a direct attribution of motive, or made a direct attribution of impropriety or disingenuousness or dishonesty.
Those cases, therefore, are a fortiori to the principle because it is not suggested here -- well, I suppose it is suggested her. But this is a case in which Ms Rogers asserts that this arises directly from the words used, but arises by way of inference. In fact, I think it is fair to say she puts her argument a little more cautiously than the way in which it was expressed by the judge, and I would like to come back to that as well.
As my Lord, Lord Justice Sedley, has pointed out, the judge upheld the BCA's defamatory meanings in their totality, which means that not only the attribution of knowledge, but also (and this is not the most central point, but it is a point that we seek to make) the paraphrase of "not a jot of evidence", which is clearly a figure of speech, into a literal statement of "although it knows there is absolutely no evidence to support its claims". I say that is not central because it will be a matter, if the case goes further, for a judge to conclude what that means in terms of scientific evidence.
It is common ground between the parties that what constitutes evidence and whether or not it is right to say there is not a jot of evidence, in the context of medical science is something that would have to be determined by the court on receipt of expert evidence.
LORD JUSTICE SEDLEY: Is that what is seriously in prospect if this goes to trial?
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: The court turns itself into a forum for epidemiological expertise and pronounces on it?
MS PAGE QC: Yes.
THE LORD CHIEF JUSTICE: Is one allowed to ask how much all this is going to cost?
THE MASTER OF THE ROLLS: Why isn't whether there is evidence on something of this kind a matter of opinion rather than fact?
MS PAGE QC: Because the way in which the argument develops on the pleadings, if you are ----
THE MASTER OF THE ROLLS: No; not as pleading; just as a matter of principle - why it is, on something of this nature, you say it is a matter of fact and not a matter of opinion whether there is evidence to support something?
MS PAGE QC: Why do I not say it is a matter ----
THE MASTER OF THE ROLLS: Why do you say it is a matter of fact?
MS PAGE QC: I say it is a matter of opinion.
THE MASTER OF THE ROLLS: Oh, you do.
MS PAGE QC: I am sorry.
THE MASTER OF THE ROLLS: Whether there is a jot of evidence is a matter of opinion.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: Sorry, I thought you said it was ----
MS PAGE QC: So, sorry.
LORD JUSTICE SEDLEY: Is that a general proposition or a proposition in this particular field?
MS PAGE QC: In this particular field.
THE MASTER OF THE ROLLS: What makes this field one which renders the question of whether there is evidence a matter of opinion rather than a matter of fact? What is it about this field?
MS PAGE QC: I will show you what it is about it. Could I just show you one paragraph in the defence and one paragraph in the reply.
THE MASTER OF THE ROLLS: Thank you.
MS PAGE QC: If your Lordships go to tab 13 in the defence, it is page 67.
THE LORD CHIEF JUSTICE: Page 67, did you say?
MS PAGE QC: Page 67, paragraph 17.
THE LORD CHIEF JUSTICE: Thank you.
THE MASTER OF THE ROLLS: This is your defence?
MS PAGE QC: This is our defence. This is what sets the scene for what follows when it goes through all the evidence cited on the website for the claims.
"To be evidence/scientifically reliable evidence" - it is treated as the same thing - "material suggesting that a treatment effectively treats a condition should comprise a body of reliable published trials supporting such effectiveness. Such trials should include …"
And then it goes through -- we know what RCTs are - randomised, blinded, placebo and so on. It then goes further on to say:
"Published trials vary enormously in their quality and reliability so it is important to base any conclusions on high quality trials in order to minimise biases and avoid misleading results."
Then it sets out the criteria for those over the page. That is responded to ----
THE MASTER OF THE ROLLS: If we look under letter D - what is said before paragraph 18 - "Evidence from poor quality trials is not scientifically reliable."
MS PAGE QC: Yes, "Evidence from poor quality trials is not scientifically reliable and may be worse than no evidence at all."
LORD JUSTICE SEDLEY: Could you just go back to the first line of paragraph 17 before you move on, Ms Page, to the "Evidence/scientifically reliable evidence". What does the stroke signify?
MS PAGE QC: The stroke signifies that when one is talking about evidence in a medical context, one is talking about something, as one is in a court of law, that has a tendency to prove the efficacy of the treatment.
THE MASTER OF THE ROLLS: So the slash means "i.e."
MS PAGE QC: "i.e.", yes. Thank you.
LORD JUSTICE SEDLEY: Well, that is what I presumed, because merely individual anecdotes are evidence. "I went to the doctor and got better" - evidence that it works.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: "I went to the doctor and didn't get better" - evidence that it does not work. It is worthless evidence.
THE MASTER OF THE ROLLS: That was in your sentence at 17. That is why I thought we should look at 17.
LORD JUSTICE SEDLEY: Yes.
THE MASTER OF THE ROLLS: "Case studies, case reports, etc" (inaudible).
LORD JUSTICE SEDLEY: Your case, as I understand it, is going to be that when Dr Singh says "not a jot of evidence", he does not mean that there are not people who have individually been able to give anecdotal evidence either way. There always will be. He is saying there is no scientifically worthwhile evidence.
MS PAGE QC: Absolutely, and he goes on to explain that in the fourth paragraph of the words complained of, because he makes it clear that the reason why he labels ----
THE MASTER OF THE ROLLS: Sorry, where are we looking now?
MS PAGE QC: Sorry. If you could just go back to the article for a moment and leave the pleadings. If one proceeded on the assumption that "bogus" means something for which there is no evidence, in paragraph 4, the paragraph that the judge took no account of, he says:
"I can confidently label these treatments as 'bogus' because I have co-authored a book about alternative medicine".
He talks about Ernzt; that he learned chiropractice.
"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 …"
And Dr Singh is saying "That is why I say there is not a jot of evidence". It is perfectly clear to the readers that he is talking about the quality of the evidence. The anecdotal evidence that one goes to a chiropractor and feels better afterwards is not trial evidence. Trial evidence means something that is properly planned and has all the appropriate ingredients from which probative quality may be assessable, or at least if a number of trials are done it may be assessable.
The response to this in the reply is at page 111. It starts off with the opening that "The Defendant's approach to 'evidence' is wrong in principle and fundamentally misguided". It comments on the reliance on RCTs by Dr Singh, and then at C:
"… the proposition that 'evidence' is meaningful" (so, in other words, they accept it must be meaningful) "only if it comes from RCTs is wrong and not supported by good scientific practice.
(i) RCTs are one form, but by no means the only form, of evidence. Other forms of evidence include: historical control trials, non-randomised contemporaneous controlled trials, case control studies …" and so on.
The case reports is someone saying "It worked for me". It is not trials. All of these constitute evidence, as is recognised by various systems that have been devised to rate or grade forms of evidence in a medical context.
LORD JUSTICE SEDLEY: You are going to say that, once a court has to pronounce on that, it ceases to be a free country.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: Because nobody could have an opinion about it.
MS PAGE QC: Absolutely. Then in D:
"… in chiropractic, as in conventional medicine or other forms of treatment where there is no or insufficient evidence in the form of RCTs, there can still be best practice. Chiropractors and physiotherapists operate to some extent, in the same way as there is often insufficient RCT evidence for interventions that are central to their professional practice. In the absence of evidence from RCTS, other forms of evidence are assimilated, to give the best available answer at the time; a BET (best evidence topic report) may be useful to assess the best evidence that can be obtained and used to inform best practice. Otherwise, no admissions are made."
If your Lordships then go to tab 19 as to how this issue will be resolved, there is a letter which starts at page 168 in which proposals were made by BCA's solicitors as to how the divergence of view on what constitutes evidence in this context -- how it should be dealt with.
At page 169 one sees paragraph 5, expert evidence. BCA's solicitors wrote this:
"It appears to us that expert evidence will be required in this case. Subject to clarification of the issues, it appears to us that the court would be assisted by the appointment of a single joint expert on the question of evidence. The terms of reference would need to be agreed between us. Essentially, the expert's brief will be to determine what types of material constitute evidence as a matter of general principle and to consider the evidence upon which both parties rely. From this it will be seen whether the defendant was right to contend that there was not a jot of evidence. Clearly the expert will need to be independent and impartial", and so on. "We hope it is possible to agree."
So, in other words, what is envisaged here, so far as the claimant is concerned, is that at trial there will be a thorough investigation into the existence, nature and quality of the evidence conducted with the assistance of expert opinion as to whether or not "not a jot of evidence" was a comment, was a remark -- or was a statement, perhaps I should say, in order not to prejudice the issue of the meaning -- which it was permissible to make or whether it was a statement which imputed dishonesty to the BCA.
It will mean that the libel courts are used, at great expense, inconvenience and time, to litigate the fundamental scientific debate between the Dr Singhs of this world and the chiropractors of this world.
THE MASTER OF THE ROLLS: If that were to happen, is it said that there would be a right answer as to whether or not there was "not a jot of evidence" or whether the correct test is whether an honest, reasonable person could believe that there was "not a jot of evidence". What is the test?
MS PAGE QC: Well the problem -- if you characterise what has been written as pure statements of fact, ----
THE MASTER OF THE ROLLS: Yes.
MS PAGE QC: - what you have to prove, or the judge has held, is that the BCA knew that there was no evidence. How you arrive at that on the basis of an expert opinion as to what constitutes evidence and the findings by the judge as to which expert he agrees with, does not contribute in any way to the question of the knowledge of the BCA.
This is why I said earlier that knowledge is a wholly inapt characterisation, if there is an attribution of motives, of what is being said about the BCA; because, if you consider that best evidence from case studies is evidence and the person who is criticising you considers that evidence is RCTs, then how can you say, if the judge agrees with you that RCTs is the best evidence -- you still do not establish that the BCA knew that there was no evidence. All you do is establish that the BCA knew that there were no RCTs, but that does not shed any light on the state of mind of the BCA.
LORD JUSTICE SEDLEY: This is all premised on what I can call "the strong version" of your case; that is to say, that, even if the words did mean BCA knew that there was no evidence, this was still a matter of comment. Is that right?
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: Because you are going to come on, as I understand it, to make a submission that that is not the true meaning?
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: That the word "happily" connotes irresponsibility and recklessness.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: That is what you have pleaded, but not knowing fraud.
MS PAGE QC: Yes, precisely.
LORD JUSTICE SEDLEY: So this is all premised on a meaning you do not accept?
MS PAGE QC: Absolutely. This has to be obviously a fall-back position, but, on any view, this is a case ----
LORD JUSTICE SEDLEY: One does not usually start with a fall-back.
MS PAGE QC: No, no.
THE MASTER OF THE ROLLS: A fall forward, surely.
MS PAGE QC: It is the way I say that the discussion has developed.
LORD JUSTICE SEDLEY: Don't blame us!
MS PAGE QC: My arguments may be bogus, but I have to come back just on that point to remind that, if one reaches a position that the meaning is one of dishonesty, it is knowledge that there is no trial evidence, because that is what paragraph 4 defines as being the "known evidence" - no trial evidence.
That is probably -- it may even be common ground, although I think there is actually one trial relied upon but as a misuse of its quality. But in fact the consequences of the judge's rulings in this case go beyond just how this trial is going to be conducted and why this trial is being conducted as a debate about science.
It is much more serious than just that, and that is for this reason. To begin with, if one just lists what the consequences are of the rulings as they stand, in the first place, the defence of fair comment is now dead. It falls to be struck out in its entirety. Second, the defence of justification will also inexorably be struck out unless Dr Singh can place on the record by way of amendment a properly particularised plea of dishonesty.
In libel no less than in any other context in these courts, in order to allege dishonesty, you must particularise it as if it was an indictment. That is the expression that is commonly used in the context of defamation. You would have to identify in your pleadings the individuals within the BCA who were those responsible for the claims being placed on the website, and whose state of mind can properly be attributed to the company so their knowledge can be attributed to the company.
Ironically, in a Part 18 request Mr McCormick actually asked for the identity of the individual or individuals on behalf of the BCA who performed the task of reviewing the state of the published literature, and that was refused in the response as disproportionate and unnecessary. The fact is where would Dr Singh start? He does not know anything about who within the BCA would have been responsible for this or their state of knowledge. But if you are going to impute knowledge -- if you have to defend knowledge, then you have to meet the very high burden. So it is not just about the science. It is about placing an impossible, disproportionate and completely unnecessary burden upon Dr Singh, simply as the price to pay for what he has written here.
If Dr Singh cannot prove dishonesty on the part of the BCA, or identified individuals in the BCA, he will lose the case. No doubt it will be struck out before then. No matter that the judge, if the whole thing went down for trial, agreed with him that the evidence was worthless. Because, if the evidence is worthless but those responsible at the BCA believe that the approach to evidence that the judge adopts at trial after hearing expert evidence is wrong and they have faith that these claims work, then dishonesty will not be proved. Knowledge of absence of worthwhile evidence or absence of evidence -----
THE LORD CHIEF JUSTICE: So in those circumstances their honest opinion would avail them.
MS PAGE QC: Would avail them, yes.
LORD JUSTICE SEDLEY: Perhaps it would not matter. You would never get to the question of whether their opinion was honest or not.
MS PAGE QC: No.
LORD JUSTICE SEDLEY: Because you would never get your case on its legs.
MS PAGE QC: No.
LORD JUSTICE SEDLEY: This is a very powerful plea ad misericordiam, but again it is the consequence of alleging that somebody has been dishonest. You have got to prove it. That is what libel law is about. Your case is that you have not made such an allegation.
MS PAGE QC: Yes. Well, I am going to come on to what the principles are in relation to meaning, and obviously of course what the Strasbourg jurisprudence requires. But one has to understand what the implications are here and whether the rulings -- what they in fact do is take the most exaggerated meaning possible and are beyond what a reader would take away from those meanings. It is only when you look at the consequences that you can see that this is a disproportionate interference with freedom of expression.
The court has to take that overview, and the way in which it takes that overview in the context of English domestic law is not by deciding what the meaning is and then standing back at the end and saying, "Well, do the consequences comply with the balance between Article 10.1 and the restrictions under Article 10.2 and are they proportionate and do they meet a pressing social need?" You build them in to the way in which you apply the principles of meaning and you apply the principles of comment. So, for example (and I have mentioned this already and I will try to put this again), attribution of motives is generally treated as a comment. Attribution of state of mind is generally treated as a comment, and that is the way in which you avoid the sort of consequences that one has in this case where someone is required to prove the un-provable.
The reason why it is treated as comment in the modern authorities is precisely because it is not provable. In other words, the court does to some extent look down the line and ask the question, "Is this something which is provable and, if it is not provable, then it would obviously strike the reader as being comment". It is a slightly tortuous way of looking at it, but it is a way of doing it. I am just trying to find where Eady J dealt with it in the Sarah Keays case.
THE LORD CHIEF JUSTICE: Shall we come to that at a later stage? Does it tell us any more than you have submitted to us?
MS PAGE QC: No. I think at paragraph 49 … This is in the context of the journalist describing the complainant as having said something that was disingenuous, and this was complained of as being ----
THE MASTER OF THE ROLLS: Basically, if it is self-evident that you cannot know something is a fact - like what somebody you know about thinks - then it must be comment. It cannot be fact.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: That is what he is saying.
MS PAGE QC: The way it was put here was:
"[The journalist] was obviously drawing an inference from the subject-matter of her observations, namely the media coverage promoted by Miss Keays. Where a journalist draws such an inference about a state of mind which she cannot, in the nature of things, verify, then it will generally be clear to any reasonable reader that it does not purport to be an objective statement of fact capable of verification. It was clear in this case, and anyone who was to classify the defamatory imputations as factual, and as requiring objective verification, would indeed be perverse."
Sorry I did not actually find the direct passage where Eady J engages with the way in which it is put in numerous cases in the Strasbourg court, but it is an interference with Article 10 rights to require an author to prove the truth of something which is not capable of verification.
THE MASTER OF THE ROLLS: That is paragraph 43, is it not?
MS PAGE QC: Oh, it is paragraph 43. I am sorry.
THE MASTER OF THE ROLLS: "It is clear that the European Court regards it as a very important safeguard for journalists' rights under Article 10 that they should not be required by domestic law to attempt to prove 'value judgments' as being objectively valid."
MS PAGE QC: Thank you very much. I have already drawn attention to the fact that in those cases these were direct attributions of motive; not indirect at best. I have described what the consequences would be in terms of this knowledge being an unverifiable fact, if fact it is. That this would be the consequence of the judge's rulings appears not to be accepted or recognised by Ms Rogers. I want in that context, if I may, to make some observations on paragraph 13 of her skeleton argument on page 7. She says about the cri de coeur ----
THE LORD CHIEF JUSTICE: I am terribly sorry, Ms Page. It is my fault entirely, but I am afraid that I have left both skeleton arguments in my room. Can I please be supplied with them? I have had them and I have read them, but I have left them in my room. Is there a spare, please? (Same handed) Thank you very much. Yes.
MS PAGE QC: In paragraph 13 she says this:
"If Singh faces a difficulty in defending this claim, it is a difficulty of his own making. The statement at the heart of the words complained of, and at the heart of this case, is that there is no evidence - 'not a jot' - nothing at all. That statement is wrong. Otherwise, Singh's position would have been straightforward: he could have relied on two basic facts: (i) that the claims made by the BCA on its website (admitted) and (ii) the absence of any evidence for those claims (which, if correct, could be proved). Those facts could have been used to support a plea of justification."
I pause there. What I understand her to be saying here is that he does not face a difficulty about defending the claim on the knowledge meaning that the judge has upheld. His only difficulty is in proving "not a jot". She seems to be saying that the inference of dishonesty could be proved, or the case of dishonesty could be proved, simply by proving that the claims were made (which is admitted) and by proving the absence of evidence. And that, of course, is, in essence as I understand it, her argument as to why there is an inference of dishonesty to be drawn from the words "at all".
So it seems to be her case that, if there is no evidence for the claims, then the necessary inference is dishonesty. That in fact, although it is not used for dishonesty, is exactly what the justification plea consists of, and of course it is directed at a lesser defamatory meaning. But that would never be accepted by the court. No judge is ever going to infer -- if he agrees there is no evidence, he is not then going to go on and infer dishonesty on the part of the BCA. It is simply untenable. Therefore there is no recognition here that that is the true difficulty. It is a difficulty that arises from the need to prove as a fact an attribution of state of mind.
LORD JUSTICE SEDLEY: Is the last sentence of that paragraph correct - not sought to rely on the Reynolds defence?
MS PAGE QC: It is true he has not sought to rely on the Reynolds defence.
LORD JUSTICE SEDLEY: I have some difficulty in distinguishing the Reynolds defence, with a situation like this, from the fair comment defence. What is the distinction?
MS PAGE QC: The distinction is that Reynolds defends statements of fact. Comment defends comments.
LORD JUSTICE SEDLEY: Yes. I can see that, but again it is the fuzzy line between fact and comment that has brought about the Reynolds defence.
MS PAGE QC: That is the judgment that the pleader makes when they plead the defence. But there is a difference - a lacuna - which makes the two not exactly the 'sides of the coin' comment in Reynolds. Reynolds defends the making of statements of fact which may be wrong but responsibly made. Fair comment defends comments on facts which are accurately made; not on facts which are responsibly ----
LORD JUSTICE SEDLEY: Once you have got both forms of defence on the book, the distinction between fact and comment ceases to the critical, does it not? You may responsibly have made an allegation which, whether it is fact or comment, is not libellous, or rather which, if they are libellous, is protected by either comment or Reynolds.
MS PAGE QC: Not necessarily. In a comment defence your facts must have been accurately stated, but you might, quite responsibly, believe those are the correct facts. If you responsibly believe those correct facts and you defend it as Reynolds, then it does not matter if those facts are wrong. There is not an entire match between the two. They are not indistinguishable, other than whether it is comment or fact.
THE LORD CHIEF JUSTICE: Should they not be? Should there not be a distinction?
MS PAGE QC: I would argue from the standpoint obviously of the defendant in this case that they should be indistinguishable, but it does not ----
LORD JUSTICE SEDLEY: Nobody since Reynolds run a 'rolled-up' plea insofar as fact responsibly researched, insofar as comment there.
MS PAGE QC: No; but the problem is whether the facts on which the comment is based are accurate or responsibly believed. If they are responsibly believed, but not accurate, fair comment fails.
THE MASTER OF THE ROLLS: Yes, but if, as in this case, there is an argument about whether it is fact or comment, then why should not - if there was a real (inaudible) found to be a fact - is there no Reynolds defence, because it is a mirror image, as it were, of fair comment that it is comment?
MS PAGE QC: I did not make the decision about Reynolds here, but I would guess that, if what one is confronted with is an allegation of dishonesty, ----
THE MASTER OF THE ROLLS: Yes.
MS PAGE QC: - you would have enormous difficulty with a Reynolds defence.
LORD JUSTICE SEDLEY: That was what the Reynolds case was about. The libel in Reynolds was that he was acting in ----
MS PAGE QC: (Inaudible), yes. But, if you are going to make a serious allegation -- and this is an extremely serious allegation, as is characterised by the judge ----
THE MASTER OF THE ROLLS: So it was in Reynolds.
MS PAGE QC: As it was in Reynolds and as it was held to be in Galloway. Those are cases that failed. Here it was never put to the BCA that there were individuals within their organisation responsible for these claims who were dishonest. It was not put to the BCA that they were peddling cynically and dishonestly and preying on vulnerable people - quoting from the judgment. That was not put because that was not being alleged so far as Dr Singh was concerned. He was not making that allegation. But, if he was making that allegation, it is an inference. It is inferential. It is deductive. Therefore comment is the only safe resort for writing of this nature. At least as presently interpreted, Reynolds is not going to meet an allegation of this nature.
LORD JUSTICE SEDLEY: Maybe in the light of our (inaudible) think again.
MS PAGE QC: I am surmising that there is no Reynolds defence here. I am surmising, but that is the reason for it. Fair comment no doubt was judged as perfectly adequate, and is indeed perfectly adequate and obviously the right defence for these words.
While one is looking at paragraph 13 of Ms Roger's skeleton argument, going beyond what she says about justification, she says in relation to this cri de coeur so far as comment is concerned that:
"If he had expressed himself differently, presenting a recognisable comment, the same facts could have supported a comment defence."
Now I go back to the point that, if the allegation is one that is made inferentially, then that will generally be recognised as a comment and therefore does tick that box and does have the defence of fair comment.
On a similar topic, can I ask you to then look at paragraph 48 of her skeleton argument, while still on this question of verifiability? This is in the context of whether the judge made an error or principle. I have identified as an error of principle his apparent application of a test that, if it is verifiable, it follows that it is a fact and not a comment. There is no such principle of English law. There is a converse principle in Strasbourg adopted in English law that, if it is not verifiable, then you should not require the journalist to prove it. What she says here is this:
"Whether what is published is 'verifiable' is a relevant factor in the consideration of whether it is fact or comment."
That I completely agree, because that is how the reader would recognise "He can't know. He must be drawing an inference." Or "Therefore it qualifies as comment". So we had comment around there. She then says:
"The judge, rightly, had regard to this question. He took it into account when considering the facts of this case (what had been published on this occasion). It had been submitted by the BCA, and the judge apparently accepted, that the statement that there was 'not a jot of evidence' was presented as a factual statement - being not only a statement that could be verified, but also as a statement that had been verified. Singh established his credentials to readers, as the author of a book … The published literature had been surveyed (fact). There was no evidence - 'not a jot' (fact) - chiropractic treatment for the listed conditions was 'bogus' (fact). The inferences that inevitably follow - that the BCA knew that there was no evidence; that the BCA … ('happily') promoted these 'bogus' treatments - were, in context, also factual. This is, indelibly, not a comment case."
Now it is quite important there to look back at how it was that the judge applied his test of whether or not it was a verifiable fact. Could I at this point ask you to go to his Lordship's judgment at tab 6 of the volume? The relevant section starts at paragraph 12. They are divided up to make my observations upon the process the judge used and how he applied this test, which we say is not a correct test, to his conclusions. It starts off with what the article conveys:
"The BCA itself makes plain 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."
Those are the two facts which Ms Rogers says give rise to the inference and concerns of knowledge of worthlessness, i.e. dishonesty. What the judge concludes is not dishonesty in relation to those two facts. He concludes that that in itself would be an irresponsible way to behave and is an allegation that is plainly defamatory and anyone could be identifiable as the culprit.
LORD JUSTICE SEDLEY: That is not a pleaded defamatory meaning against you.
MS PAGE QC: No, it is not. No, that is correct. It is not. That is the defence.
LORD JUSTICE SEDLEY: Yes. You go no further than that - "and it is not defamatory"?
MS PAGE QC: Yes. I say it is not defamatory, yes, but it goes no further than that.
LORD JUSTICE SEDLEY: Yes.
MS PAGE QC: And, still just dwelling on that for a moment, it is noteworthy that at that point he treats the juxtaposition of the website claims and the 'no jot of evidence' as giving rise, at most, to an allegation of irresponsibility or an inference to be drawn of irresponsibility. Dishonesty comes from something else completely. Obviously within the words, but the simple juxtaposition of those two pieces of information.
Even so, just to analyse what this language means, whether or not it is irresponsible, it would still of course be a comment. It would be a comment because that would be an inference that one would draw, or a conclusion or an observation one could make, on the basis of those facts. But, even so, whether or not it is irresponsible would depend upon the reader's view about the possible explanations for it. So it is not irresponsible of itself if you disagree with the fundamental premise as to whether a review of 70 trials tells you anything about the state of evidence to support the website claims. That is a matter upon which there are different opinions, as the reader will appreciate. Therefore it is not an allegation even of fact. It is clearly an allegation. It is a comment and a comment which may not necessarily even be capable of being drawn.
The judge then goes on:
"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" - and I invite you to note the words - "happy to promote bogus treatments."
We draw attention to those words because the words were not "happy to promote bogus treatments", but "happily promotes bogus treatments". This may be a matter for value judgment, but it does potentially signify something different. If you are happy to promote something for which there is no evidence or you happily promote something although there is no evidence, you are quite possibly conveying something different. It is very important therefore not to paraphrase, but to look at the words that were written.
He goes on here:
"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."
That is the point at which we submit the judge goes way outside what would even be a capability ruling, let alone a finding in fact. He has no basis to do so because, in order to even arrive at a very extreme view of "bogus" - the worst possible view of "bogus" - it must depend upon the context in any event. The context is a context in which Dr Singh has explained why he used the word "bogus" and explained it in terms of what he knew from his collaboration with Professor Ernzt.
Therefore clearly this is where the judge's failure to take into account the context led him into serious error and caused him to find a meaning which is way beyond what is a permissible meaning, or the meaning which a reasonable reader would ever have arrived at.
LORD JUSTICE SEDLEY: You are saying that "bogus" means promoting a treatment that does not work or a treatment that is known by its user not to work?
MS PAGE QC: No. I say that I would adopt one of the formulae that Ms Rogers used for it; that "bogus" means a treatment for which there is no evidence to support its use; that doesn't work.
LORD JUSTICE SEDLEY: So there is common ground.
MS PAGE QC: There is some common ground, yes.
LORD JUSTICE SEDLEY: There are three different things: one is a treatment that does not work.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: One is a treatment that there is no evidence that it works.
MS PAGE QC: That the treatment works.
LORD JUSTICE SEDLEY: The third is a treatment whose practitioners know it does not work.
MS PAGE QC: That is another possibility of "bogus".
LORD JUSTICE SEDLEY: You say that the common ground here is that it is the middle one of those three meanings?
MS PAGE QC: It is common ground it is susceptible, the middle one. Perhaps I, in fairness to Ms Rogers, should take you to page 18 of her skeleton argument.
THE MASTER OF THE ROLLS: Yes; I was going to say paragraph 21(5). She says:
"…'bogus' treatment (fraudulent, counterfeit, false or a sham, or to put it another way, treatment for which there is no evidence)".
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: I beg your pardon. You were going to take us to paragraph 18?
MS PAGE QC: It was page 18, the bottom paragraph, where she unpacks "The BCA happily promotes bogus treatments" into the following layers.
LORD JUSTICE SEDLEY: Where are we now?
MS PAGE QC: I am so sorry. Ms Rogers at the bottom of page 18, the last star. She unpacks it into the following layers:
"… (i) the BCA promotes chiropractic treatment (for the listed matters); (ii) the treatments promoted are 'bogus' (that is, treatments for which there is 'not a jot of evidence'; …."
THE MASTER OF THE ROLLS: You would be happy if she stopped there.
MS PAGE QC: Yes, absolutely.
THE MASTER OF THE ROLLS: What you quarrel with is after the semicolon?
MS PAGE QC: That is right. She seems to invest "sham, quack or fraudulent" -- she seems to derive that from "not a jot of evidence", rather than necessarily from the word "bogus". Then (iii):
"… the BCA promotes them 'happily' (in this context, an allegation that it knows that there is no evidence)".
In other words, she derives the knowledge of no evidence from "happily" primarily; whereas the judge derives it from both "bogus" and "happily".
THE MASTER OF THE ROLLS: Well so does she, I think, because "sham", "quack" and "fraudulent" (inaudible) for "bogus".
MS PAGE QC: Yes, she does, but she allows for the possibility, I would suggest (which I would say would be the correct way of looking at it), that there is no evidence. In this case it is that there is no trial evidence. That is the necessary ----
THE MASTER OF THE ROLLS: (Inaudible) in slightly more compressed form than what is in paragraph 12 and 13 of the judgment of Eady J. Subparagraph (ii) is what is in paragraph 12, and (iii) is what is in paragraph 13. One concentrating on "bogus"; the other concentrating on "happily".
MS PAGE QC: On "happily". That is correct. Then, to go back to paragraph 13 in the judgment:
"It is alleged that the claimant promotes the bogus treatments 'happily'".
And then he makes a statement as to what he says that means.
"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."
THE MASTER OF THE ROLLS: When he says "what are known", he means "what are known to them".
MS PAGE QC: "What are known to them", yes. So he adds another layer of dishonesty by interpreting "happily" with another, what I would hope not offensively describe as, "loaded" interpretation as to what that connotes.
LORD JUSTICE SEDLEY: How would you paraphrase the meaning of "happily" in the context in which it appears here?
MS PAGE QC: "Happily"? Really "cheerfully", "perfectly content" to put forward these -- in other words consistent with belief or faith in the rightness of doing so. In other words, not troubled in terms of the state of the evidence.
LORD JUSTICE SEDLEY: You have got as far in your pleading, I think, as saying "recklessly".
MS PAGE QC: We have.
LORD JUSTICE SEDLEY: You would stand by that?
MS PAGE QC: I think -- well, it is not what I think, it is what I argue, is it not?
THE LORD CHIEF JUSTICE: I am just thinking of what the reader of The Guardian on the day this document was published would have thought.
MS PAGE QC: Well, what I would argue is that the judge got it right at the beginning when he characterised this as a responsibility. Even then, as a responsibility, it is still an inference. It is a comment. It is what a reader would say to himself.
LORD JUSTICE SEDLEY: The nearest paraphrase I have been able to come to, trying to cast myself as an ordinary reader, is insouciant.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: Borrowing, but that seems to be the nearest to what is being said.
MS PAGE QC: Yes. "Blithely" was actually one of the ----
THE LORD CHIEF JUSTICE: Interesting that the average reader of The Guardian, whom my Lord represents, speaks in French!
LORD JUSTICE SEDLEY: I shall try to resist the temptation to talk about Guardian readers as a sub-species of humanity.
MS PAGE QC: (Inaudible) the operative word.
THE MASTER OF THE ROLLS: "Blithely", as you said.
MS PAGE QC: "Blithely", yes. "Blithely", "cheerfully".
THE MASTER OF THE ROLLS: It would suggest that it is not worried, or "happily" is basically suggesting that it is not (inaudible) by the fact that there is this lack of evidence, or that it may be bogus.
MS PAGE QC: Well, you have to ----
THE MASTER OF THE ROLLS: It is not concerned because it is happy. If it was unhappy -- if it was (inaudible) unhappily, it would be because it was worried about it. It is not worried about it. It does not, you say, mean that it is therefore being dishonest.
MS PAGE QC: It does not mean "dishonest".
THE MASTER OF THE ROLLS: It just is not worried or concerned.
MS PAGE QC: Yes. They are not troubled as to the propriety of doing it; in other words, they are putting this forward in good faith.
THE MASTER OF THE ROLLS: That may be pushing it a bit. You say it does not connote bad faith.
MS PAGE QC: No.
THE MASTER OF THE ROLLS: That is your point; not that it positively connotes good faith.
MS PAGE QC: No, sorry. I only need to say it does not connote bad faith. We then go on to paragraph 14, where the judge says:
"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."
Just pausing there, that triggers one of our arguments as to where the judge erred: that he did not give separate consideration to whether or not the words were comment. An allegation of dishonesty, an allegation of disreputable conduct - I do not need to repeat it - is capable of being comment. One has to make that decision in the context of the article. One does not take the single meaning of the article as applying the single meaning rule, and then say "Therefore it is a statement of fact and not a comment". You have to look at the context to see whether it is a comment, and the context includes not merely the surrounding words but the other factors such as referred to in, for example, Keays is an example, Branson is an example - the Strasbourg jurisprudence.
The fact that the piece of published in a comment section; the fact that it was headed "Comment"; the fact that it was obviously an opinion piece; the fact that it is responding to the BCA entering the public arena with its website claims and a promoting piece to the public. That makes it also an opinion piece with a comment piece.
THE MASTER OF THE ROLLS: Can I just interrupt you? Sorry, but it is just to make sure I have it right. You take exception and you say the judge was wrong in paragraphs 12 and 13. If he is right in paragraphs 12 and 13, you could still succeed on this appeal by undermining what he says in paragraph 14, and that is what you are doing now.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: I just wanted to make sure I understood that. Thank you so much. I am sorry to interrupt.
MS PAGE QC: The undermining of that is that he still has to separately consider ----
THE MASTER OF THE ROLLS: - whether it's comment.
MS PAGE QC: - as a distinct question whether it is comment.
THE MASTER OF THE ROLLS: Thank you very much.
MS PAGE QC: That is the first error. The second error is what then follows, where he says:
"Miss Rogers reminded me, by reference to Hamilton v. Clifford … that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact."
THE MASTER OF THE ROLLS: Yes.
MS PAGE QC: "Here the allegations are plainly verifiable and that is the subject of the defence of justification."
Then, very importantly, he identifies what it is that he says is verifiable. It is not the "jot of evidence": it is the knowledge of absence of evidence. He goes on to say here:
"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."
So, apart from applying a test which we say is not a test in English law (and I can say no more than that, because I cannot prove a negative other than to invite Ms Rogers to point to the authority), what he identifies as the verifiable fact is the state of mind of the BCA. It would be one thing if he were to say "It's a verifiable fact, 'not a jot of evidence'", but what he is saying is that it is a verifiable fact that the BCA were well aware that there was simply no evidence to support them.
LORD JUSTICE SEDLEY: That is a dual proposition.
THE MASTER OF THE ROLLS: Yes.
LORD JUSTICE SEDLEY: You have got to unpack it, have you not? The first question is was there simply no evidence?
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: And the meaning of "not a jot" is to be calibrated in that context. If that is a verifiable fact, then you can proceed to whether the claimants knew ----
MS PAGE QC: Yes, the claimants knew, yes.
LORD JUSTICE SEDLEY: - that it was so. That, conventionally of course, is a verifiable fact. It is what trials take place about every day of the week, but you have got first to get to the premise - that is, "not a jot of evidence".
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: The heart of your case, as I understand it, is that that is not a verifiable fact. That is a matter of opinion.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: That is your case.
MS PAGE QC: Yes; that is our case, and we have set it out - summarised it - in our skeleton argument at paragraph 67 in terms of the burden of justification. The way I put it is this: that, whether or not there is a "jot of evidence", which is a figure of speech, it is obviously a figure of speech which is directed at saying that these subsequent claims are not justified by the evidence. That is clearly not a matter of objective fact. That is a matter of opinion, and you would succeed at trial if the judge agreed with the approach as to what constitutes evidence and whether the evidence was sufficient to support the claim. It is highly evaluative, and it is common ground that that would have to be determined by a judge on the basis of expert evidence.
So there is no right or wrong. There is no truth or untruth. There is no objective truth or objective knowledge about that; it is an evaluative subject-matter.
THE MASTER OF THE ROLLS: But these arguments to some extent interact with each other. If the judge is right and this is an allegation of dishonesty against the claimant, and if you are right on the question of whether "a jot of evidence" is a matter of opinion, then the issue is whether the claimant believed - even if (inaudible) believed that there was evidence - rather than whether there was or was not evidence.
MS PAGE QC: This is why I am ----
THE MASTER OF THE ROLLS: It is all a question of what the correct issues are.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: If the judge is right that it is dishonesty and you are right that the question of evidence is a matter of opinion, then what you are saying on the judge's finding, and on your analysis of (inaudible), is whether the claimant believed that that was evidence.
MS PAGE QC: Yes. What I cannot do -- knowledge is the wrong concept. If I cannot prove absence of evidence other than as a matter of evaluation and scientific opinion, I cannot prove -- whatever I know about the BCA, I cannot prove that they know there is no evidence. All I could be asked to do, in terms of what might be a litigable fact (if that is the right word) ----
THE MASTER OF THE ROLLS: Yes.
MS PAGE QC: - is whether or not they, in good faith, put forward ----
THE MASTER OF THE ROLLS: What you can say, it seems to me, is that, if you are right on the question of whether (inaudible) matter of opinion, then the interrelation of the two points could be said to support your contention that there is an imputation of dishonesty.
MS PAGE QC: I am sorry. I did not hear that because of the door.
THE MASTER OF THE ROLLS: My mistake. I lowered my voice. What I think you may be able to say is that, if you are right that the question of "jot of evidence" is ultimately an opinion question rather than a fact question, and although it might, if the judge is right, make your case rather more difficult if he is right on imputation of dishonesty, it could be said (a) to strengthen your case both on whether it is an imputation of dishonesty and on the fair comment argument.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: It seems to me there is an interrelation ----
MS PAGE QC: There is a definite interrelationship.
THE MASTER OF THE ROLLS: - at various points between the various issues.
MS PAGE QC: Yes. As McCormick reminds me, and I have mentioned this before, we are then straight into whose state of mind are we talking about? How do you attribute knowledge to the company or a state of mind to the company?
THE MASTER OF THE ROLLS: That is the risk of accusing an organisation of dishonesty, is it not? As my Lord has said, you walk into that one if you have accused them of dishonesty.
MS PAGE QC: I take that point. I think I have probably covered the substantive argument on the article and on the judgment. Can I just say something about legal principles, albeit I am putting perhaps the cart and the horse arguably in the wrong way? But there is inevitably considerable common ground between the parties as to what the legal principles are, but there is also a little bit of divergence, and I would like to just highlight, if I may, where we diverge in order that it is not assumed that there is no difference, if only the difference of emphasis.
Not only is there a slight difference, or difference of emphasis, between the parties applying the legal principles, but it is common ground that there is a difference of approach demonstrated in the Strasbourg jurisprudence on the common law approach. Perhaps the most difficult question that arises always on these cases is where you draw the line between fact and comment, as we would put it, domestically, and fact and value judgment in Strasbourg.
In domestic law you look at the words and you characterise them. In Strasbourg you not only look much more widely, but you also look at the end results and you say "If this is not verifiable, or not provable as a fact, or it is disproportionate to expect it to be proved as a fact, then you characterise it as a value judgment."
LORD JUSTICE SEDLEY: Which is the authority that most succinctly puts that approach? Just remind me of it.
THE LORD CHIEF JUSTICE: I spent some time reading a very interesting article about this. I cannot remember where it is now.
MS PAGE QC: Alison Young's article.
THE LORD CHIEF JUSTICE: That is the one.
MS PAGE QC: Yes, which is in Ms Rogers' bundle, where she looks at whether or not domestic law needs to be refurbished. Tab 6, yes. Very interesting. She illustrates it by reference to ----
THE LORD CHIEF JUSTICE: I was particularly interested in the fact that it said that some Austrian criminal judges are capable of anything. That was a value judgment, whereas "nothing was comparable to the judge's arrogant bullying" is treated as a statement of fact.
MS PAGE QC: Yes. I think "rabid" was also a value judgment on the part of an Austrian judge.
THE LORD CHIEF JUSTICE: That was definitely a value judgment.
MS PAGE QC: Can I defend that article, putting apart those ----
THE LORD CHIEF JUSTICE: I must say, speaking for myself, I found it very useful.
MS PAGE QC: Yes. To some extent, domestically we have moved in the direction of viewing it in the way that Strasbourg views it - (inaudible) in the passage we saw of Eady J in the Keays case. The reconciliation, and it is really a reconciliation of this, can be found in a very good (if I may say so) commentary on the subject matter in the new edition of Duncan and Neill. It is very possible that this may have been a chapter written by Ms Rogers. I do not know, but, if so, let me recite it to her benefit or her detriment.
We have that in volume 2, tab 51. It is a very convenient way of summarising the principles as they now applied in the case. Of course it is very up to date, having been published at the end of last term. I was going to start briefly ----
LORD JUSTICE SEDLEY: I am afraid my arch-binder has been comprehensively wrecked. Training is given to junior clerks on how to do this - unarmed combat.
THE MASTER OF THE ROLLS: (Inaudible) the file always falls to pieces.
LORD JUSTICE SEDLEY: I have managed to wedge it open. What page?
MS PAGE QC: I was going to start at page 134 and just skip to various propositions that obviously may need more study over time. At 13:09 I just draw attention to this:
"Matters which are submitted to the judgment of the public, such as literary or dramatic works, or which take place in public, such as public meetings or processions, or which relate to public affairs, such as the conduct of foreign policy, are plainly matters of public interest and present no difficulty."
Of course falling within that plainly are public claims made on the website on behalf of half of the chiropractors registered in this country. Paragraph 13:10:
"The defence of fair comment is not restricted merely to such epithets as the commentator may apply to the subject matter commented upon, but can include inferences of fact drawn by the commentator. This point was made clear by Palles CB in Lefroy v. Burnside, where he said:
'It was contended during the argument that the statement of one fact cannot be excused as fair comment upon another fact. That proposition is, in my opinion, far too wide, and I cannot concur in it; but I think that when a matter of fact is to be excused as comment on another fact, the fact alleged and sought to be excused must be a reasonable inference from the facts alleged and upon which it is a comment.'"
There may be a question now as to whether "reasonable" is still correct rather than "honest". Then there is the well known passage from Clarke v. Norton which actually, when one looks at it, is really repeating what an argument was, but anyway it has been adopted by this court.
"'[Comment is] to be taken as meaning something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark or observation.'"
They then at paragraph 13:11 highlight just the opening few words:
"It may often be difficult to distinguish between assertions of fact on the one hand and statements which represent the inferences drawn by the commentator on the other hand. The distinction must be made, however, because, though the defence of fair comment may be available to protect a defamatory inference even though untrue, it cannot protect a defamatory statement of fact even though proved to be true unless justification is also relied upon."
Over the page at 13:12:
"There is no comprehensive statement in the decided cases as to how the distinction between a statement of fact and a statement which represents an inference drawn by the commentator is to be made, but the rules set out in the succeeding paragraphs afford some guidance."
The start of paragraph 13:13 is the obvious, well-known proposition that "a 'bare' statement of fact … will often be difficult to defend as comment."
Then at 1314:
"On the other hand, if the commentator
'sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a result, be deemed a comment.'"
That of course is not a reference to inferences which are drawn by the reader, but direct inferences which the writer is making. An example of the direct inference perhaps is the "not a jot". It is derived, on the face of the words in the absence of evidence from clinical trials.
THE LORD CHIEF JUSTICE: Presumably it does not matter, in the context of what we are looking at 13:14, if the commentator sets out his inference and then describes the facts on which his inference is based.
MS PAGE QC: That is right. It does not matter which order, so long as it is apparent.
LORD JUSTICE SEDLEY: Is there a limit to that? I mean, can you set out facts truthfully and then say "Anybody who thinks this is a crook?" Does that then become a comment which does not have to be justified?
MS PAGE QC: Yes. That is ----
LORD JUSTICE SEDLEY: Or "Anyone who says this is a crook".
MS PAGE QC: Yes. Yes; it classically could. But the problem is trying to deduce principles from other examples, and what one has are examples and propositions which are not necessarily easy to teste.
THE MASTER OF THE ROLLS: We have the words "as a rule" in 13:14. As 13:12 says, it is guidance.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: But it is not an absolute principle.
MS PAGE QC: Yes. Everything depends on context and circumstance. Paragraph 13:15:
"The fact that a claimant has sought publicity or submitted works for public consumption may be a relevant factor when assessing whether subsequent statements about the claimant are comment or fact, because by so doing he naturally invites comment: 'that context of "response to published work" would incline the reader towards interpreting what [the defendant] had to say as 'deduction …" and so on.
In paragraph 13:15 that is an example of taking the Strasbourg approach and translating it into our principles. The Strasbourg approach would be to say that, if somebody puts something into the public arena and the impugned statement was a response to what was put into the public arena, then the scope for restrictions on the nature of that response under Article 10.2 are very limited. But we give effect to it by saying "We have a fair comment defence". If it is a response to something that has been put into the public arena, then that will be readily recognised by the reader as a comment.
So that is how we reconcile the principle that Article 10.2 does not allow us very little restriction on freedom of expression in response to something that has been put into the public domain.
THE MASTER OF THE ROLLS: As it is all referring to Strasbourg cases, is this an area where the 1998 Act requires us to have regard to Strasbourg cases, ----
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: - because it is (inaudible).
MS PAGE QC: Yes, absolutely, and I am going to come on in a moment to whether Article 8 has a role, which Ms Rogers has … I will come back to that point.
"Allegations about a claimant which, by their very nature, cannot be verified by another person but only established by inference (for example, statements about a claimant's state of mind or motives) are likely to be classed as comment."
THE MASTER OF THE ROLLS: You have taken us to that in Eady J's judgment.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: The Branson case.
MS PAGE QC: Whereas Strasbourg would say, if by its nature it is impossible or unreasonable or disproportionate to require it to be verified, you classify it as a value judgment. What the English law does now is not to say you cannot … In a sense, it argues that, if it is something that cannot be verified, a reader will recognise that and therefore a reader will not take it as a statement of fact; a reader will take it as comment. So that is the way in which the Strasbourg value is brought into English law in terms of the concept of what the reasonable reader takes away from it.
LORD JUSTICE SEDLEY: Will it not be (inaudible)? Because value judgments cannot be verified, anything that cannot be verified has a value.
MS PAGE QC: That is a Strasbourg ----
LORD JUSTICE SEDLEY: It is a very good way of cutting the Gordian knot. I do not think a magician would think much of it.
MS PAGE QC: Yes. It is not the way in which it is expressed here. Paragraph 13:17:
"Conversely, an allegation which is objectively verifiable, for example, that a claimant has committed a criminal offence, is unlikely to be regarded as comment".
That is the Hamilton v. Clifford case. Then one notes the footnote No. 2 to that:
"Unless the defendant makes clear that the allegation is his inference from a set of other facts."
The highest in the Hamilton v. Clifford example was Max Clifford saying, in relation to the young lady who accused the Hamiltons in that case, that he believed the young lady; in other words, he endorsed her approach. That therefore was a statement of fact, and obviously rightly so.
"Although the use of introductory words such as 'so in my opinion' or 'in other words' is not decisive, they are an indication that the succeeding words are comment rather than independent assertions of fact."
To which I would add of course, as Eady J relied on in Keays, if it is located in a comment section and is expressed to be a comment piece.
Then, over the page, at 13:20:
"The words complained of should explicitly or implicitly indicate, at least in general terms, the factual basis for the comment.
As discussed above, the extent to which supporting facts are stated or referred to in the words complained of may be highly material to the question whether the defamatory imputation is to be read as a comment or as a bare allegation of fact. It has been said that the reason why the facts on which the comment is based must be stated or indicated in the words complained of is that the reader ought to be in a position to judge for himself whether the comment is well founded. But this is difficult to reconcile with the balance of authority and is, it is submitted, incompatible with the essential nature of the defence."
I raise that because, if you look at Cheng, for example (which is now treated as the leading, most recent, highest authority on the principles of fair comment), Lord Nicholson in that case says that the facts must be indicated to enable the reader to judge for themselves whether the comment is well founded. We would prefer the approach of Duncan and Neill that that is required and of course Cheng was not set against the European Convention of Human Rights. That was of course a Hong Kong decision.
Then, finally, or not quite finally, paragraph 13:21:
"In Lowe … Eady J, revising the view he had expressed in Branson v. Bower, stated the position to be as follows:
'comment may be made, if the matter is already before the public, without setting out the facts on which the comment is based - provided the subject-matter of the comment is plainly stated.'"
So one thins it right down to a level whereby, if there is something already in the public arena, then your latitude is even greater.
I think, finally, is 13:25, a couple of pages on:
"In the light of the foregoing, it is submitted that, at least where the words complained of make clear that they are commenting upon subject matter that is 'before the public', that will constitute a sufficient compliance with the requirement that the words should indicate, at least in general terms, the factual basis for the comment. For, in such a case, it is the subject-matter itself, and, therefore, by necessary implication, its content, that may properly be regarded as the factual basis for the comment. This would seem to be consistent both with the requirement that a defamatory comment, if it is to be defensible, must appear as a comment, and with the approach of the European Court of Human Rights to defamatory 'value judgments'. Moreover, it is to be noted that, in any case where the words complained of contain significant misdescription of the content or the effect of the subject matter, the defence is likely to fail."
That brings me back to the opening remarks that of course the debate about, and the difference of philosophy in the public debate as between the conventional approach to medicine and alternative approaches to medicine is a well-known subject matter of debate and readily recognised by the reader that this is "the take", if you like, of Dr Singh.
We can put Duncan and Neill away and I want to say something about conventional roles. The principal difference of approach between our argument and that of Ms Rogers is whether Article 8 has any relevance here. Is this a case where the court is, in its ultimate conclusion, balancing one Convention right against another, or is the court looking at whether or not there is a proportionate necessary restriction on the writing of of the material.
LORD JUSTICE SEDLEY: I thought we had sorted this out years ago. A decision of this court, which secured approval in the House of Lords (as it then was), that, if there is an Article 8 value engaged, then it features in Article 10 too. That is how the two are (inaudible), so that you always get the same answer. Even if both Articles are in play - each the mirror image of the other - you must get the same answer, whichever one you are applying. It would be nonsense if you did not. Anyway, your argument presumably is that, but all you need is Article 10.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: Both the right and the answers to the right.
MS PAGE QC: Yes. I think that maybe where the difference lies is that Article 8 guarantees the right to respect for private life, and Article 10 guarantees the right to freedom of expression. The test for restrictions on Convention right are subsidiary to the guarantee of the right. I think your Lordship may have drawn the distinction between Convention rights and Convention values in this context. It may have been (inaudible). I am not quite sure.
There is also that neither Article 10 nor Article 8 has primacy where they are both directly engaged.
THE MASTER OF THE ROLLS: You say Article 8 has no part to play in these proceedings?
MS PAGE QC: It has no part at all because one does not even need to explore whether or not a company has a right to private life to say, since the subject-matter of this speech was a matter ----
LORD JUSTICE SEDLEY: Or family life.
MS PAGE QC: Or family life.
THE MASTER OF THE ROLLS: It could have a subsidiary, I suppose.
MS PAGE QC: It might have been a matter for argument if there had been individuals within BCA who were targeted as having been specifically dishonest.
THE LORD CHIEF JUSTICE: You mean this might have been a very different case if, instead of identifying the British Chiropractic Association, the article had identified John Smith or Jane Brown practising.
MS PAGE QC: Yes, exactly.
THE LORD CHIEF JUSTICE: Yes.
MS PAGE QC: So I will not say any more on that. If one wants an example of the Strasbourg court ruling now that Article 8 is being in competition in that court, in the context of somebody putting something into the public arena, is the case of Bruno Kreisky case of Lingens. You have it at volume 2, tab 35. I will just give you the reference. I think it is page 417, where the Austrian Government had argued that Bruno Kreisky, who had made critical remarks in public about Simon Wiesenthal -- the Government had asserted that the case raised a conflict between the two rights secured in the Convention and, at paragraph 38, the Strasbourg court simply said this:
"On this latter point the Court notes that the words held against Mr Lingens related to certain public condemnations of Mr Wiesenthal by Mr Kreisky … and to the latter's attitude as a politician towards National Socialism and former Nazis … There is accordingly no need in this instance to read Article 10 … in the light of Article 8".
The cases which do involve Article 8 in the context of reputation are all cases involving individuals and they do not therefore trigger it here. This is public interest. If it is a matter of public interest, then the Strasbourg court has said in numerous cases that, where the speech is the subject-matter of politics or other public interest, then they equate the two as being of equal value. There is very little scope, if any, for restrictions under Article 10.2. Recent examples (I will just give the references) are Lindon v. France (which is volume 2, tab 47), Pfeifer v. Austria (tab 48), and then Lombardo v. Malta. Lombardo v. Malta is perhaps worth a little more examination. It is in Ms Rogers' additional bundle at tab 2.
THE MASTER OF THE ROLLS: Are there any particular paragraphs in tabs 47 and 48 that you would ask us to look at? I am not asking you to turn them up.
MS PAGE QC: Oh, right.
THE MASTER OF THE ROLLS: More for our note - any particular paragraphs you rely on. You can tell us later.
MS PAGE QC: I will give you that when Mr McCormick has ----
THE MASTER OF THE ROLLS: Thank you.
MS PAGE QC: If you can have a look at Lombardo v. Malta (tab 2, as I say, of Ms Rogers' bundle).
THE MASTER OF THE ROLLS: Yes.
MS PAGE QC: This is a decision in 2007. It is a case about a political speech, but political speech and public interest speech have been equated in earlier cases. The court's assessment starts at page 568. If your Honour goes to page 567, paragraph 50:
"The Court considers that it is only in exceptional circumstances that a measure proscribing statements criticising the acts or omissions of an elected body such as a council can be justified with reference to 'the protection of the rights or reputations of others'. In the instant case, it is prepared to assume that this aim can be relied on. The main issue is whether the interference was 'necessary in a democratic society'."
Then paragraph 52 "(ii) Application of the above principles in the instant case":
"The Court must weigh a number of factors in the balance when determining the existence of a pressing social need and reviewing the proportionality of the measure complained of. In examining the particular circumstances of the case, the Court will take the following elements into account: the position of the applicants, the position of the plaintiff in the defamation proceedings, the subject matter of the publication and the qualification of the contested statement by the domestic courts".
By "qualification", I think they understand that to mean fact in a value judgment.
Here in paragraph 53, because of the position of the applicants as councillors as well as authors of the article, they say at the top of page 568:
"In this respect the Court recalls that while freedom of expression is important for everybody, it is especially so for elected representatives of the people. They represent the electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with their freedom of expression call for the closest scrutiny on the part of the Court".
And I say the same applies here, where this is a subject matter of obvious public interest when something has been put into the public arena for the benefit of the public. They remind themselves of paragraph 55 in the second sentence:
"The Court recalls that there is little scope under Article 10. 2 of the Convention for restrictions on political speech or on debate on questions of public interest."
Then paragraph 56:
"In view of the above factors the State's margin of appreciation in interfering with the applicants' right to freedom of expression must be construed narrowly in this case in determining whether the reasons given by the national authorities to justify the interference were relevant and sufficient."
Then paragraph 58 is:
"The Court disagrees with the conclusion reached by the domestic courts. It reiterates that it has consistently held that, in assessing whether there was a 'pressing social need' capable of justifying interference with the exercise of freedom of expression, a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof".
That is really as much as one gets from Strasbourg about how you distinguish between them, so they start at the other end of it, as it were, to the way in which we start, and they test it by that means. Essentially a value judgment is something where it would not be reasonable, proportionate or whatever to require it to be proved.
Then in paragraph 59:
"The Court observes that the statement in issue consisted of two allegations: the Local Council (i) did not consult the public, and (ii) was ignoring public opinion on the matter. The first allegation is capable of various interpretations. It is true that even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for that statement, since even a value judgment without any factual basis to support it may be excessive … However, in the present case, the factual basis may be found in the circumstance that the Local Council had rejected a motion presented by the applicants calling for the holding of a public consultation meeting about the HRP. The Court considers that the rejection of the applicants' motion provided a sufficient factual basis for the allegation that the Local Council had not consulted the public so as to allow that allegation to be construed as a value judgment. Moreover, political debate does not require unanimous agreement on the interpretation of particular words. Therefore, even assuming that it was not a value judgment, the interpretation given by the applicants is not manifestly unreasonable. The Court finds that the second allegation cannot but be classified as a value judgment, whose factual basis is indistinguishable from that above, notwithstanding the style used by the applicants which may have involved a certain degree of exaggeration. Furthermore, in the Court's view, nothing shows that the value judgments were not made in good faith."
So an interesting discussion there about whether the words are open to different interpretations and accepting the author's interpretation when deciding whether the interference was justified.
LORD JUSTICE SEDLEY: I do not think it is doing that. It is not giving the subjective interpretation legal weight. It is simply saying that their argument as to what the words mean is a reasonable one.
MS PAGE QC: Yes, sorry; I agree with that. Then in paragraph 60:
"The Court would in any event observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present, where the impugned statement is made in the course of a lively political debate at local level and where elected officials and journalists should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact."
I think that is the furthest ones in Strasbourg go to say that ultimately perhaps you do not even need to dwell too much ----
LORD JUSTICE SEDLEY: That is coming towards Reynolds, is it not?
MS PAGE QC: Yes. Paragraph 62:
"The Court further recalls the chilling effect that the fear of sanction has on the exercise of freedom of expression … This effect, which works to the detriment of society as a whole, is likewise a factor which goes to the proportionality of, and thus the justification for, the sanctions imposed on the applicants …", and so on.
So that is a significant case in the context of a public debate on a subject matter of public interest and reinforces strongly the arguments, we submit, in favour of Dr Singh.
Here one must remember that these cases are not just about a dispute between the parties to the litigation. These cases are of much wider importance than purely to the parties. These cases, as one sees from the way in which (inaudible), are the cases in which the court has decided, on the basis of particular words, whether they are comment or opinion or what the meaning is, that, whether you are the in-house libel lawyer or a writer, you look to these cases, these decisions, on particular facts in order to make judgments about what is safe to be published. Then, if you get a libel complaint, you look at these cases in order to decide whether or not they should be defended.
The very receipt of a complaint in libel, let alone a libel claim of course, is itself an enormous burden on a defendant, or may be an enormous burden unless it can be cut short by a ruling that the words are not capable or they are obviously comment.
I just want to say, finally (and I will sit down unless I have questions put to me), just some observations on the principles of meaning and highlight larger aspects of how the court should approach meaning in English law. Ms Rogers has very helpfully set out an extract from Skuse v. Granado. It was an appeal from the judge's decision of fact. It is at page 9 of her skeleton argument.
THE LORD CHIEF JUSTICE: Is this the passage that warns the Court of Appeal off interfering with the judge's decision?
MS PAGE QC: Yes. If I could invite you to look first at paragraph (2) -- I am not obviously going to go through them all laboriously. Paragraph (2) is very important:
"The hypothetical reasonable reader [or viewer] is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer, and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available."
Just pausing there, reading in an implication and reading between the lines is taking a hint from the author about what it is that he is trying to suggest to the reader. A reader drawing an inference of his own from material that is put before him is something different, and the two must be distinguished.
Leaving aside of course how one interprets "bogus" and "happily", the mere fact of the website claims and the "no evidence" does not create an implication or a reading between the lines that the author is suggesting a state of mind (inaudible) or bad faith. That is not an implication that we take away from it: it is the reader's inference - one of the main inferences the reader may draw. But the reader again must be treated as someone who does not select, and should not select, one bad meaning where other non-defamatory meanings are available.
That clearly does not apply just to the difference between a defamatory meaning and a non-defamatory meaning. It must apply equally to the various grades of meaning, according to what they impute - whether it is dishonesty, irresponsibility, recklessness or whatever it may be. What we say here is that the judge did not apply those principles. He took the highest meaning.
LORD JUSTICE SEDLEY: What do you say should be our approach, Ms Page, because all the judge has done in the traditional trial is determine the range of possible meanings - whether the alleged libel falls within the rational range. It goes to the jury, who come back with a verdict libel or no libel and nobody knows exactly what within that range they have made of the words.
Here, very sensibly, the parties have asked the judge to decide whether there is a sweeping judgment. Are we any worse placed than the judge to decide whether the words do mean what is alleged?
MS PAGE QC: No; in no way at all.
LORD JUSTICE SEDLEY: You do not have to categorise it as law or fact, ----
MS PAGE QC: No.
LORD JUSTICE SEDLEY: - so much as susceptible or not susceptible to re-evaluation.
MS PAGE QC: That is right.
THE MASTER OF THE ROLLS: The trouble is that you therefore do not accept, not agree precisely, with what is on paragraph 8 on page 10, with which (inaudible) which I think, my Lord, the Lord Chief Justice, was inferentially referring to, ----
LORD JUSTICE SEDLEY: Yes, I was.
THE MASTER OF THE ROLLS: - reading between the lines, a minute ago, and in particular the last sentence. What my Lord, Lord Justice Sedley, is putting to you is that, where you are in the position of the trial judge, (inaudible). But this suggests that, on one reading at least of the last sentence, that is what we should not be doing. We should be saying what is the conclusion that we may reach and expect you to (inaudible), even impliedly, if we disagree with it. You say that is wrong?
MS PAGE QC: Two points: first of all, the judge misdirected himself. If he misdirected himself, then of course this is not a question of simply making the same decision that he made. You would be applying, we would say ----
THE MASTER OF THE ROLLS: We would reopen the issue.
MS PAGE QC: You reopen the issue.
THE LORD CHIEF JUSTICE: Let us assume he did not misdirect himself.
MS PAGE QC: But, if he did not misdirect himself, we say he is plainly wrong. These are of course matters of impression, but, as a matter of impression -- I suggest one might take away from reading this to say, "Why on earth in our society should Dr Singh not be able to say this?"
THE MASTER OF THE ROLLS: Are you really saying that ultimately you have the argument he applied the wrong test and he was plainly wrong, but your ultimate point is that either he was right or he was wrong. There is a great fuzzy division on various issues, as my Lord, Lord Justice Sedley, has said. He is saying, "Yes, we have to accept it is fuzzy, but come to our own view and, if we are different from the judge's, then we have got to overturn it".
MS PAGE QC: Yes.
THE LORD CHIEF JUSTICE: On that basis paragraph 8 in the judgment is really intended to discourage appeals.
MS PAGE QC: Yes. I do not think -- if I remember rightly (and you may want to have a look at it), it was surprising that they interfered with the judge's decision. They just took a different view of the words in Skuse and simply substituted their own.
LORD JUSTICE SEDLEY: It takes a good deal of insight and self-restraint to distinguish between thinking the judge below was wrong and being quite satisfied that he was wrong. That is apparently what we have to do.
MS PAGE QC: But if you are satisfied that there he has misdirected himself of course, then you do not ----
LORD JUSTICE SEDLEY: That is another story.
THE MASTER OF THE ROLLS: But the trouble is with that point is that the (inaudible) of this approach that the court might read into paragraph 8, is that to some extent it depends on the appellate judicial gentlemen. Some people if they disagree with somebody cannot see how that person could possibly have reached the view that he did. Other people are very ready to accept that there is (inaudible).
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: It is undesirable (inaudible).
MS PAGE QC: Yes, but perhaps I can ----
THE LORD CHIEF JUSTICE: You are not relying on paragraph 8, are you?
MS PAGE QC: I am not relying on paragraph 8, and I would point out that it was prior to the incorporation of the Human Rights Act and the court was not looking over its shoulder at Strasbourg or looking forward to a possible review by Strasbourg of its decision.
LORD JUSTICE SEDLEY: You say that the Convention may add another layer of criticism to what is said here, or potential criticism.
MS PAGE QC: Yes.
THE LORD CHIEF JUSTICE: The other aspect (I am sorry to keep interrupting you) is that it is possible that what we are looking at in paragraph 8 is the time when increasingly these issues are decided by the judge alone, as opposed to leaving everything to the jury, and it was trying to maintain a proper respect for the findings of the court below, which was obviously always done in the case of a jury. If the judge was replacing the jury, some kind of proper respect had to be maintained.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: Remind me, was and is the judge's determination of the possible range of meanings in a jury trial a question of law?
MS PAGE QC: Yes. It is treated as a question of law.
LORD JUSTICE SEDLEY: Well that is what interests me. We tend to take a somewhat ad hoc view, but range of meanings would feature as a question of law if you draw an analogy with statutory interpretation.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: Which is always a question of law, and the interpretation of contracts, not written by a (inaudible) - also a question of law.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: So it would be an exception to the ordinary approach to meaning to say that it is on fact.
MS PAGE QC: Yes. Well, the way in which it is always put is, because it is for the jury, it is a question of fact.
LORD JUSTICE SEDLEY: So it will be with them.
MS PAGE QC: Yes.
LORD JUSTICE SEDLEY: If it is left to them.
MS PAGE QC: Yes. You remind me of a point that also opens up, as it were, a legal challenge as opposed to simply substituting a different view, which is this. The judge, when he decides, does not formally go through the process that would happen at a jury trial of, first of all, directing himself about what is the range of meanings within which the true meaning … So, in other words, he does not, first of all, conduct the exercise of law and say "What is the range of permissible or capable meanings?" He does not apply the perversity test and then go on to decide. He would elide the two.
But if our argument is right that the judge has gone beyond capability, then he has misdirected himself on capability and that is another legal route in to challenging the decision.
THE MASTER OF THE ROLLS: There is an interesting analysis by Lord Hoffmann in a case, I think, called Carmichael v. National Power as to why some questions of construction of completely oral conversations are questions of fact and why on documents they are questions of law, and it goes back to the fact that questions on what was said in conversations tended to be tried by juries, whereas judges tend to decide what is the meaning of documents.
MS PAGE QC: Yes.
THE MASTER OF THE ROLLS: That rather ties in with what my Lord, the Lord Chief Justice, was saying about the Skuse case being concerned with a time when juries were playing a much larger part.
MS PAGE QC: So if we had never had jury trials, then one might be characterising this as questionable.
THE MASTER OF THE ROLLS: Well it also ties in with what my Lord, Lord Justice Sedley, said about construing the meaning of words being a question for an appellate court to almost start again.
THE LORD CHIEF JUSTICE: And, if we had not had jury trials, we would have been slower to get freedom of expression.
MS PAGE QC: Yes. I have got some references in Lindon and Pfeifer for you. They are both in volume 2 of the authorities. For Lindon, tab 47, paragraphs 45 to 46.
THE MASTER OF THE ROLLS: Thank you.
MS PAGE QC: And Pfeifer is tab 48, paragraph 45.
THE MASTER OF THE ROLLS: Thank you.
MS PAGE QC: I would also commend the Nilsen case. We have referred to it in our skeleton argument, because that is a very good case for illustrating the range of speech that is characterised as value judgment, and a range of speech that would not readily be characterised as comment under the traditional approach in this country.
THE LORD CHIEF JUSTICE: What tab number is that?
MS PAGE QC: Tab 38.
THE LORD CHIEF JUSTICE: Thank you, and the paragraph number that is crucial we have either now or after lunch.
MS PAGE QC: Yes, I will let … Unless there is anything else I can assist you with.
LORD JUSTICE SEDLEY: No. Thank you very much.
THE LORD CHIEF JUSTICE: Thank you very much.
COURT USHER: Court rise.
THE LORD CHIEF JUSTICE: No, no. Thank you very much for everything. Let us see, faced with that, if Mr McCormick wants to follow?
MR McCORMICK: No, my Lord.
THE LORD CHIEF JUSTICE: Now, Ms Rogers, it is entirely up to you. We can start now and do five minutes, or we could start again at five to two. Which would you prefer?
MS ROGERS QC: Five to two.
THE LORD CHIEF JUSTICE: Very well, five to two then.
The BCA Case
THE LORD CHIEF JUSTICE: Ms Rogers, I am sorry we have kept you waiting.
MS PAGE QC: I have risen because I have got the references to Nilsen.
THE LORD CHIEF JUSTICE: Yes, thank you.
MS PAGE QC: If I could give those before my learned friend starts. The statements complained of in that case are set out in paragraph 25. I should say it is at tab 38 of volume 2.
THE MASTER OF THE ROLLS: Paragraph 25.
MS PAGE QC: The statement is made in paragraph 25 on page 90.
THE MASTER OF THE ROLLS: Yes.
MS PAGE QC: And the passages of the court's decision that we refer to are paragraphs 48 to 53, but on pages 911 to 913.
THE LORD CHIEF JUSTICE: Thank you very much. Ms Rogers?
MS ROGERS QC: Subject to your Lordships, I was going to take it as a game of two halves, taking meaning and comment in that order.
THE LORD CHIEF JUSTICE: Yes.
MS ROGERS QC: As part of the meaning exercise, I was going to have a look at the role of meaning in domestic law of defamation. I was going to take Strasbourg in part 2, although there is a bit about Strasbourg on the role of meaning, but I was going to leave that until half time.
I was not going to go through the skeleton argument. Of course, as your Lordships know, our position is that the judge applied the right test and got the right answers and it is a simple as that. I will not repeat the points in the skeleton, but obviously we stick to them.
LORD JUSTICE SEDLEY: Is it going to be your submission that, so long as he applied the right test, we are not concerned with whether he got the right answer?
MS ROGERS QC: Well, unless he was obviously wrong.
LORD JUSTICE SEDLEY: So a right answer then?
MS ROGERS QC: Exactly. Your Lordship may not think it is … It is almost like the setting of the parameters of meaning put by the judge for the jury. If the judge is in an acceptable zone, he then was not obviously wrong. That is a fairly (inaudible) way of putting it, but I will come back to the role of the appellate court at the end of part 1.
What I want to start with is just to review the role of meaning in defamation cases because it has been the subject of some criticism, but it is crucial to the scope of the case in two respects. Firstly, it defines the scope of the claimant's case. It sets the most serious meaning that the claimant can complain of and, at the end of the day, in a case where damages are awarded, it affects the amount of the damages. The gravity of the allegation is one of the key factors in assessing damages if it then gets to that stage.
It also affects the scope of defences. That is particularly clear in relation to the defences of justification and fair comment (and I say parenthetically that the English common law is not the only jurisdiction where that applies; it is also apparent from the Channel Seven case which has been cited by my friends and there is a reference in my skeleton), although the role of meaning does have a slightly lesser role in other defences - principally qualified privilege and the Reynolds defence. I will come on to those in a moment.
Essentially, although meaning has that role, the common law of defamation has always worked on a system of balance. It has always sought to balance the right to reputation and the right to freedom of expression. There has been an adjustment of where the balance is struck in recent years. One sees it, for example, in the Derbyshire case. There are some categories of claimant, or potential claimant, who cannot bring a claim for defamation. Local authorities and governmental bodies cannot sue at all. So the case of Derbyshire County Council v. Times Newspapers established that.
So, for example, when one sees the Lombardo case, which Ms Page referred to earlier on, that would never have happened in English law at all, because the claim in the domestic court was brought by a local authority. So we would never have had to worry about whether it was a fact or value judgment. That claim would have been struck out in our courts, so there would have been no possibility of a violation of Article 10.
LORD JUSTICE SEDLEY: If your clients had not been incorporated, would the individual members have had a right to sue?
MS ROGERS QC: I do not know about individual members. If it had pointed to an individual who was responsible for the making of the statement, ----
LORD JUSTICE SEDLEY: Well, no. If it was an unincorporated association, as many are, the individuals would not have been able to sue.
MS ROGERS QC: No. An unincorporated association cannot bring a claim for defamation. There is a case. In fact I think it is possibly on its way to this court, although I understand that permission has been turned down on the papers in the London Central Mosque case where it was struck out, I think by Eady J. Permission I think has been refused on the papers. I am not sure which judge, but ----
MS PAGE QC: Buxton LJ.
MS ROGERS QC: Thank you. Apparently it is Buxton LJ. It is not the kind of case where you can have a representative action on behalf of all the members.
LORD JUSTICE SEDLEY: The fact of incorporation has made all the difference to your standing in this case.
MS ROGERS QC: Yes.
LORD JUSTICE SEDLEY: The individual chiropractors are members of it in what sense?
MS ROGERS QC: They join.
LORD JUSTICE SEDLEY: What do they join? Do they take out a nominal share each?
MS ROGERS QC: I do not think so. No, they do not.
THE MASTER OF THE ROLLS: It is a proprietary order.
MS ROGERS QC: It is a company limited by guarantee. It is run by a council which has, I think, nine members of the council, which are equivalent to the board of directors, and individuals pay a subscription ----
LORD JUSTICE SEDLEY: You pay a subscription to join, do you?
MS ROGERS QC: Yes. It is a membership organisation. As Ms Page rightly said, it is distinct from the General Chiropractic Council, because of course chiropractic is regulated as a profession in this jurisdiction by the 1994 Act. The chiropractic council is responsible for setting -- you cannot call yourself a chiropractor in this country unless you are registered with the GCC. You cannot register with the GCC unless you satisfy them as to fitness and propriety, qualifying training, continuing education and as a disciplinary function. So it is a regulated profession in that sense.
THE MASTER OF THE ROLLS: As soon as you have something with a corporate entity, picking up my Lord, Lord Justice Sedley's, point, you then have somebody you can sue. There is an exception though for Government, local government, national Government entities.
MS ROGERS QC: Yes.
THE MASTER OF THE ROLLS: But otherwise, if you have a recognisable legal character, legal personality, unlike an unincoporporated association that does not, you can be libelled.
MS ROGERS QC: Unless you are governmental.
THE MASTER OF THE ROLLS: Unless you are governmental.
MS ROGERS QC: I suppose that is because it is not just local authorities, some of which are corporate bodies, nor Government departments, some of which are corporate bodies, but it has been extended to, I think it was, British Coal because, although it was a company, it was so closely connected to Government. Also to, I think, the National Referendum Party, which tried to bring a claim and was struck out because it was, obviously not governmental, but so political in nature that it could not bring the claim.
So there are some classes of company which cannot sue, and that has been limited to that kind of governmental political sphere so far. So yes, as Sedley LJ observed, it is the fact that British Chiropractic Association is a company that means that the reference to British Chiropractic Association in the article is a reference to an entity which can bring the claim.
LORD JUSTICE SEDLEY: Not a legal personality.
THE LORD CHIEF JUSTICE: Yes.
MS ROGERS QC: Yes. So, my Lords, that small class aside -- and that is of course an important aspect of limitation on the operation of the law of defamation is to shut out certain types of claims, although I think that the House of Lords did leave open the possibility of claims by individual members of a local authority and also claims for malicious falsehood because the requirement to prove malice operates as an effective filter.
If you can bring a claim, what then? Sometimes people set out to defame. They may say something that is defamatory which they think they can prove to be true. They target someone. Sometimes they either do not target someone or they produce something which has an unintended meaning. It is important to note that of course one option for somebody faced with that eventuality is that they can seek to settle the claim. Whether or not you can settle it may depend on a number of factors.
I do not want to take your Lordships through the correspondence but it is important, the references in tab 19, to the following letters where the opportunity to have a public statement to resolve this matter was put forward by my clients and discussed in correspondence. Just to give you the page reference at tab 19, ----
THE LORD CHIEF JUSTICE: My impression is that The Guardian offered your clients an opportunity to, in effect, release an article in response to what is now said to be the defamatory article.
MS ROGERS QC: They did. The Guardian offered effectively the chance for the BCA to say that they say that there is evidence. In a sense, that is the kind of statement "Well they would say that, wouldn't they?" Unpicking that, getting to the factual statement if we are right that it is factual ----
THE LORD CHIEF JUSTICE: Well it does not make any difference whatever to the outcome of the case, but, speaking entirely for myself, I think it is rather surprising that your clients did not take the opportunity to say "What Dr Singh has written is a load of rubbish for these reasons".
MS ROGERS QC: Yes. I note your Lordship's observation. But in terms of the claim against Dr Singh (and of course it is Dr Singh who is responsible for the words that he included in the article), the correspondence in respect of Dr Singh and the BCA can be found in tab 19 at pages 153, 172, 174, 182 and 191. Your Lordship says to my client that it is surprising that it does not accept The Guardian's offer. In a sense, I would submit to your Lordship that your Lordship could be equally surprised that Dr Singh did not take up any of the offers put forward by my client in that context. So we are where we are. We are in the Court of Appeal and the parties have not settled.
THE LORD CHIEF JUSTICE: Absolutely.
MS ROGERS QC: But, as to the opportunity to avoid being embroiled in libel proceedings, there are exit routes. Another exit route which has been offered, this time by statute, is under the Defamation Act 1996, and that is the offer to make amends route. That is available to any defendant who accepts that they have made a mistake; that they offer to publish or make a suitable apology and correction and pay compensation, if any. It can apply in a case where there is no compensation. It allows for a quick and easy escape route if something has gone wrong - if there is unintended meaning. You do not have to lock into a defamation fight. That is, since 1996, part of the background.
So far as the defence of justification is concerned, this requires a defendant to prove a substantial truth of what has been published.
LORD JUSTICE SEDLEY: You are still on meaning.
MS ROGERS QC: It is the role of meaning and the role of meaning in the context of the scope of the case. Meaning plays a very important part in the defence of justification because a defendant can only justify a meaning which the words are reasonably capable of bearing.
It is important to have in mind, though, that that is normally the case to trial, because the judge can only set the parameters. The judge does not say what the words mean. So if the meaning is in play, then the defence of justification runs until trial. It is only at trial, at the earliest, that you can have any active case management.
Your Lordship may have noticed that there is a reference to this in my skeleton, page 10, footnote 6, to the Shah case where Hirst LJ observed on the salutary practice that had been adopted in a defamation case where in fact Popplewell J had asked the jury at the outset of the case to determine what the words meant - at the foot of page 10 in the footnote.
The case in question had been the Marks & Spencer libel case in which there was a dispute about meaning between the claimant, Marks & Spencer, and the defendant, Granada Television, about what the words mean. It was a classic dispute in terms of this kind of meaning kind where the claimant said that it means "We know certain things. We are responsible for certain practices. We know them." And the defendant had a lesser meaning. The jury decided the meaning that came in in fact somewhere between the two, but, as a result, the defendant's meaning was too low and there was nothing left and the case settled.
Hirst LJ said that this practice is salutary and he observed in the Shah case that, if there was a ruling on meaning and if it was resolved in the claimant's favour in that case, there would be little left of the defence of justification. So, in other words, it is a consequence that has been acknowledged for a considerable time that, when you have a ruling on meaning, it can mean that defences of justification fall by the wayside entirely, because your meaning - your justification - has to be directed to the complaint in the case.
I would commend to your Lordships that there is a discussion of this in the Channel Seven case, the Australian case (the reference is in my skeleton), where the court said, having said that the meaning was a dishonesty meaning, that a defence directed to a lower meaning effectively missed the point and so it would fall away. So there is nothing odd about that.
There have been complaints that this is unfair to defendants because it places the burden of proof on the defendant. And that is something which has been considered by Strasbourg - whether the presumption of falsity and the placing of the burden of proof on the defendant is incompatible with Article 10 - and Strasbourg has said that it is not. It said that in the McVicar case which is in the files at -- I was not going to take your Lordships to it, but it is in file 2, tab ----
THE LORD CHIEF JUSTICE: I do not think we need trouble you with that.
MS ROGERS QC: The McVicar case is also addressed in the Steel case, but the presumption of falsity and the burden of proof on the defendant is not incompatible, so it is a way in which the common law balance is not incompatible with Strasbourg.
Another route for the defendants which has been mentioned in the course of argument this morning is the Reynolds defence. The emergence of the Reynolds defence is very important again in assessing where the balance falls in any particular case. The Reynolds defence protects responsible publication on a matter of public interest. So, if you have something where the article is on a topic of public interest, then the question is "What are the steps that were taken by the defendant prior to publication", focussing in particular on the information they obtained, the steps that they took to verify and how they chose to publish it - whether they proclaimed guilt from the rooftops or whether they had a more moderate approach.
It has been established in that context that the single meaning rule - the rule that one divines a meaning that the ordinary reader would have found - does not have the same impact. A journalist may be able to say "Well I did not intend that meaning", but the defence will still apply. It will still protect the publication. So, in other words, there is a scope for someone who has an unintended meaning who has said something that perhaps they did not intend to convey - an allegation of dishonesty, say - but they did, they can say, "Well, I am responsible in everything I did and the publication can still be protected".
One of the questions that was raised this morning was whether the defence can cover comment. That is an interesting question. I know that your Lordships have a great deal of reading material already, but there is a short paragraph in chapter 17 of Duncan and Neill addressing this particular point. I do not know whether your Lordships would want to take the chapter and add it in at the same tab at ----
THE LORD CHIEF JUSTICE: I think we would.
MS ROGERS QC: Can I hand up ----
THE LORD CHIEF JUSTICE: Yes, certainly.
LORD JUSTICE SEDLEY: This is which question?
MS ROGERS QC: This is the Reynolds question.
LORD JUSTICE SEDLEY: The Reynolds question.
MS ROGERS QC: Yes.
THE MASTER OF THE ROLLS: Whether the Reynolds defence can apply to comment.
MS ROGERS QC: Whether it can. Of course it arose out of a case where the fact, I think, that the defence of fair comment had been dropped at trial in Reynolds and it was advanced on justification of an allegation of lying in (inaudible).
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: It is at paragraph 17.26. The photocopy is rather poor. The opening words are:
"In many cases where the publisher of an article or other publication wishes to raise a defence of Reynolds privilege the offending passages will contain comment as well as statements of fact. It is at present unclear how far (if at all) comments can be defended under the umbrella of Reynolds privilege. Thus in Galloway v. Telegraph Group Ltd the defendant sought to defend parts of the articles complained of under Reynolds and other parts of them as fair comment. The defence failed because the underlying facts were not proved or held to be covered by privilege. Both before the trial judge and in the Court of Appeal the plea of fair comment was treated as a separate plea. Nonetheless, it is submitted that Reynolds privilege may be capable of protecting both statements of fact and expressions of opinion though the court is likely to evaluate the statements of fact and the expressions of opinion by different criteria. As the European Court of Human Rights ECtHR has frequently pointed out, expressions of opinion, or, in the language of the ECtHR, 'value judgments', are not susceptible of proof."
So, in other words, it is a slightly open question, and Reynolds is still a young defence. It emerged in 1999. It was given new life by the House of Lords in the Jameel case - whether and the extent to which it protects reportage is one area where it has been considered. Strasbourg has already looked at its compatibility with Article 10 in the context of the Loutchansky case finding that there was no violation of Article 10 in requiring the defence to be looked at at the moment of publication. So you look at what the defendant had prior to publication.
THE LORD CHIEF JUSTICE: Have I understood this correctly - that there is no authority binding on us, or, for that matter, binding on a judge at first instance, that says that these two defences are incompatible?
MS ROGERS QC: No.
THE LORD CHIEF JUSTICE: Thank you.
MS ROGERS QC: The focus has been on, as I said, cases of fact because it has been the tolerance for error on factual questions - the publication of a defamatory allegation that is in fact untrue where the need for Reynolds was seen. But one can see that it could play a part in a comment case. Of course that would bring the focus very firmly on what the defendant did and knew prior to publication, and that, when I get on to the Strasbourg section, is what Strasbourg quite often does. It looks at what the journalist, what the publisher, did prior to publication.
Of course it may be that there would be some adjustment in the comments whether or not you have to put a matter to the claimant, because if you are publishing comment you would not normally go to the claimant for comment, but that might be something that the court would take into account in the same way whether you seek comment is a factor, but you do not have to seek comment of the claimant even in a factual case, as the Jameel case demonstrates. On a factual case there may be facts where the claimant cannot help you. The claimant, by definition, would not know.
So that brings us to the defence which we are concerned with, as opposed to defences which we have not been concerned with, and that is the comment question. In a sense, one of the problems, as Dr Singh would see it - or a fact, as we would put it - is that before you can get into the comment defence it has to be recognisable as comment. In order to decide whether or not something is comment we say that meaning plays a part; and that the right way to approach the matter, as has habitually been done, or is being done today, as recognised by Eady J in the Lowe case and I think by the Court of Appeal in the Burstein case is that you ask the question "What do the words mean?" That is why the questions were framed in the way they were for the judge in this case. And "In the light of the ruling on meaning, were they fact or comment?" You do not look at it in the abstract.
So that is why I say that the role of meaning is important. There is nothing odd or aberrant about deciding meaning first and having meaning play a role in whether something is fair comment or not. There is nothing, in our submission, that would be incompatible with the Strasbourg approach to do precisely that, although it may (just as in the case of justification) have the effect that a comment defence falls away. That is the consequence of case management.
In a way, it is our submission that that is entirely desirable - if it be the case - that the BCA is mentioned in the course of something which is meant to be about entirely unrelated matters, meant to be about chiropractice generally and meant to be about chiropractic, but in the course of that an allegation is made which, in our submission, does suggest the BCA is making claims which it knows there no evidence for - then the right course would be that there should be a substantive defence (inaudible).
This is not a case where there was a target. I will come back to that after looking at meaning. This is the point at which we come to what, in our submission, really matters, which is the article itself and what was actually published in this case.
THE LORD CHIEF JUSTICE: Do you want us to come to the article?
MS ROGERS QC: I do. I think it is in tab 3, page 16. What does it mean? I take it Ms Page was identifying areas where there is divergence, and I did not detect her to say that there is any divergence, in a sense, about the Skuse and Gillick principles - the ordinary reasonable reader reading through the lines and so on. So I am not going to take your Lordships to that, because the principles are familiar.
Of course, this does appear on a page which is headed "Comment". That does not mean that everything on the page is going to be comment. Even an editorial can include statements of fact as well as statements of comment.
THE MASTER OF THE ROLLS: The first sentence of the article is claiming a fact.
MS ROGERS QC: Exactly so. And, in our submission, although I have said that the first two paragraphs are general and introductory, they are also factual in nature. They are reciting facts about the origins of chiropractic - or at least they are presented as facts about the origin of chiropractic by Dr Singh.
If one looks at the way it is framed right at the beginning of the article that "This is Chiropractic Awareness Week, so let's be aware". Be aware of what? Surely, we are already into "Be aware of the facts". It is not "Be aware of what I think. Here is what I think." It is "Look out for the facts". So we are into the world of facts.
I think in fact it is pretty much all fact in paragraphs 1 and 2.
THE LORD CHIEF JUSTICE: Are they all facts or alleged facts?
MS ROGERS QC: They are alleged facts. They are presented as fact. The reader would take them to be facts.
THE LORD CHIEF JUSTICE: Yes.
MS ROGERS QC: The same in the opening part of paragraph 3:
"You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas."
THE MASTER OF THE ROLLS: Well, that is opinion, is it not - "quite wacky" is what he says.
MS ROGERS QC: Well, there is an element perhaps of comment about wackiness, but this proposition that "The fundamentalists argue that they can cure anything" is not comment. It is that there are fundamentalists in the chiropractic profession and they argue that they could cure anything. It is a fact that this is what they argue.
THE MASTER OF THE ROLLS: Yes, but again it is so difficult because of the same nuance. "The fundamentalists" - that very word carries with it an opinion - "can cure anything", when you read what he says next, is to some extent maybe hyperbole. It is not clear if the (inaudible) General Medical Council. I see what you mean by fact, but it seems to me this clear dividing line between fact and opinion is simply unreal.
MS ROGERS QC: I think no-one has suggested that there is a clear dividing line, but that there is a dividing line.
THE MASTER OF THE ROLLS: I appreciate that, on the law as it is, you have to find one.
MS ROGERS QC: Exactly. That is the part 2 of my submissions point - fair comment is a defence for comment. Therefore the gateway has to have "Is it fact or comment", because, in a sense, it is a bit of a challenge to try and find a gateway which would be better. But, if your defence is going to be comment, then necessarily you have got to decide where the line is to be drawn, because otherwise ----
THE MASTER OF THE ROLLS: Sorry, I interrupted.
MS ROGERS QC: No, no; it is quite all right. Then we are into:
"[Some of] the more moderate chiropractors have ideas above their station."
That is introductory of what goes next.
THE MASTER OF THE ROLLS: That is opinion, is it not?
MS ROGERS QC: Well, it is not clear what … It is so vague. It does not really express anything, is what I say. It is an introductory in.
"The British Chiropractic Association claims …"
THE LORD CHIEF JUSTICE: And this is the only time your clients are mentioned.
MS ROGERS QC: Yes.
"… that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying".
So it is a fact that these were their claims, and then adjoining words:
"… even though there is not a jot of evidence."
So "not a jot of evidence" has been said to be -- I think Ms Page said it was clearly a figure of speech. Well, in our submission, it is not clearly a figure of speech. What it appears clearly to be is a statement of fact that there is no evidence.
"Not a jot": well, what is "not a jot"? It is a particularly emphatic way of saying "not any".
LORD JUSTICE SEDLEY: Sorry to interrupt you. If it read in this way, would it be actionable?
"The British Chiropractic Association claims that their members have helped to treat children with colic", etc, full stop. "This organisation is the respectable face of the chiropractic profession and yet it happily promotes treatments for which there is not a jot of evidence."
Would that be actionable?
MS ROGERS QC: I am in danger of ----
LORD JUSTICE SEDLEY: Just isolate one -- because, if it is not actionable, as I rather suspect that it is not, it is the word "bogus" which is your real target.
THE MASTER OF THE ROLLS: And "happily".
MS ROGERS QC: And?
THE MASTER OF THE ROLLS: And "happily".
MS ROGERS QC: Yes; I think the trouble is, and I am sorry to hesitate and not give a straight answer to a perfectly straight question, that it is dangerous to stray away from the words that were published.
LORD JUSTICE SEDLEY: But when you try to isolate what it is you really object to ----
MS ROGERS QC: I know.
THE MASTER OF THE ROLLS: You say it is the combination.
MS ROGERS QC: I am afraid to say that it is the combination, and to say "Well, would it be actionable without one element or without the other", I will happily think about this. It would be a separate question of whether or not ----
THE LORD CHIEF JUSTICE: I think you may need to have time to think about it and have a consultation in your chambers in a week's time.
LORD JUSTICE SEDLEY: You can take the Fifth!
MS ROGERS QC: No, no; it is important. I am happy to take it up in the spirit of clemency, but it is important because what brings a claimant to sue is important. There are all sorts of situations in which something is defamatory and it is published - whether it is barely defamatory or seriously defamatory - where a claimant decides not to sue. It is never, or very seldom, a decision taken lightly by a claimant.
THE MASTER OF THE ROLLS: Your point surely is, in answer to my Lord, that, if you have got allegation (a) and allegation (b) (the combination), even though they are both critical, each one on its own might not have been enough, but, taken together, they are, and therefore it is unfair to say "Simply because (a) is not enough and (b) is not enough, it does not mean to say that (a) + (b), where they are together, are not enough".
MS ROGERS QC: I wish I had come up with that answer myself, and I would adopt it if I may.
THE MASTER OF THE ROLLS: Does that deal with it?
MS ROGERS QC: It is important because it is the fact that this (whether we are right is obviously for your Lordships to decide) is taken as being a serious allegation about knowing claims made by what are whether or not Dr Singh meant the word "respectable" ironically or not ----
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: The Chiropractic Association is respectable. Its reputation is valuable to it. It is an expert in the field of chiropractic and its members look to it, and the public looks to its website, so what is said about it does matter to it. We would not be here if it did not matter. There are all sorts of contexts in which one might say, "Well the BCA happily promotes bogus treatments" which may or may not be actionable, but what was said here is that there is no evidence in a context where, in our submission, the clearest implication is that they know there is not.
THE MASTER OF THE ROLLS: The problem is that they say "not a jot of evidence"; then it says "bogus treatments"; and then, if you go to the next paragraph, is it telling you what it really means by "bogus treatments" and it is really saying it means "not a jot of evidence". Because he says "not a jot of evidence"; then he says the organisation "happily promotes bogus treatments" - i.e. it might be thought treatments which do not have a jot of evidence; and then that is confirmed, because he says "I can confidently label these treatments as bogus", which suggests an objective concept in the word "bogus". Because he goes on to describe what happens and says 70 trials with "no evidence to suggest that chiropractors could treat any such conditions".
So it seems to me a powerful argument to say in that context "bogus" simply means "ineffective" or "no evidence that they work". He is not using "bogus" in the sense of "dishonest" - "known not to work"; simply "I know they don't work, and that's why I am labelling them in this way from my knowledge. That's my view based on evidence that I think I have got here with Dr Ernst."
MS ROGERS QC: To unpack it slightly, in the fourth paragraph, where we are into what Professor Ernst thought, there is a statement of reference to what Ernst did -- and again we are into the facts that "Ernst did this; Ernst found this". And of course what Ernst is said to have found is that he found no evidence.
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: Now of course that is a different proposition from the statement one has in the third paragraph, which is "there is not a jot of evidence".
THE LORD CHIEF JUSTICE: But in finding no evidence, as I read it, about the conditions that are referred to in the third paragraph - that chiropractice covers treating children with colic and sleeping and feeding problems, children with frequent ear infections and asthma, and indeed children who cry for prolonged periods (no doubt driving their parents completely scatty) - that is what he is referring to, is he not, in the context that he found no evidence to suggest that chiropractice could treat any such conditions - those conditions?
MS ROGERS QC: We are talking only about the listed conditions. I do not think there is a dispute about that. After the fourth paragraph we go off into back problems and then into the alleged risk of harm, so I was actually going to stop looking at the article because, in a sense, in our submission (and I do not think Ms Page submits otherwise), that does not bear on the question of meaning and it does not bear on the question of fact/comment. It has gone on to different topics.
LORD JUSTICE SEDLEY: You (inaudible) about that. That is an argument.
MS ROGERS QC: That has got nothing to do with the BCA. We are concerned with the part of the article that does concern the BCA. My Lord is right that we are only talking about the listed conditions. But it is important that there is a difference between the proposition "I have found no evidence" and the proposition "There is no evidence".
THE MASTER OF THE ROLLS: Yes, I see.
MS ROGERS QC: If Sedley LJ's question to me had been that "the British Chiropractic Association claims their members can help children with these conditions even though I have found no evidence that they are effective", then that is a proposition where it is highly unlikely ----
LORD JUSTICE SEDLEY: Is this not the really serious debate in medicine generally - and epidemiology in particular - that it may be very difficult to prove that something does not work, but medicine does not proceed on the basis that you can use any treatment until it is proved it does not work. Epidemiology attempts to find out whether there is any evidence that it does work. Failure to do so in one test or two tests may prove nothing. Failure to do so, if it is a failure, in repeated tests with very few, if any, going the other way, may be a very strong contraindication for the use of that treatment. I think everybody would recognise that, and that is why this is an argument about opinion, is it not?
MS ROGERS QC: In our submission, no it is not. The reason it is not is because of the way in which it is expressed in this article, which is not referring to a nuance debate about the nature of evidence. There is a flat proposition that "there is not a jot of evidence". So your Lordship is right that it is difficult (and this is a difficulty which we acknowledge) but one looks for evidence in different categories of weight and value and that there are circumstances where randomised control trials, in the sense that Dr Singh now seeks to say "This is the only evidence". His case is that the only evidence that matters is randomised control trials - double blind, large samples, random selection of people and so on. He says that is the only thing that counts as evidence.
LORD JUSTICE SEDLEY: You may say that is a counsel of perfection and that it is ridiculous, and that is an argument worth having.
MS ROGERS QC: We do. And it is notable of course that Ms Page took you to a letter showing that we had suggested that there be an expert on the question of evidence.
LORD JUSTICE SEDLEY: Yes.
MS ROGERS QC: Of course, in a sense, what my clients were trying to do was to limit the scope of the case. It is our case that the proposition that only RCT (randomised control trials) constitutes evidence is out of line with any accepted medical opinion. And so our contemplation in the letter which Ms Page quoted was "Let's get a single appointed expert by the court to say whether evidence is only RCTs", effectively. And the response to that (which I would like you to turn up - it is at page 172 of tab 19) from the other side is "No; let's not have one expert. We may need more than one expert", although they do, out of fairness, rightly say that that is an issue that we would need to look at after the judge has ruled on meaning and after we have reviewed the scope and the statements of case in this case.
I have drifted off your Lordship's point, but, if Dr Singh had said "There is no reliable evidence", that is again a very different matter. Of course he could have said "There is no evidence that I think is reliable", but let us go a step further: that there is no reliable evidence. Again, it is very doubtful whether we would be here at all, because it would then be apparent -- if it had said "There is no reliable evidence", "The evidence is not good enough", or "There is no sufficient evidence", or something of that kind -- that that would be the kind of proposition which manifestly signals to the reader that we are in the land of debate and we are in the land of opinion. But, contrary, if we are into the land of "There is nothing". That is what "not a jot" means. It is not a figure of speech: "There is nothing". So you have the claims, and I do invite your Lordships to … It is introduced as "The BCA claims even though there is no evidence".
So, if we are looking for the formulation of the meaning in the particulars of claim, we say it is right. "Do the BCA know?" Well, it is there because "There is no evidence. They make these claims even though …" It could have been (and I think it was Ms Page who posited a range of possibilities) that there is some evidence known to the BCA, but not to Dr Singh. That is one possibility to the reader, but actually that is not a possibility, given what Dr Singh wrote in this case. He said that there is "not a jot".
So, my Lords, going on to the next sentence, we have got this similar joining word after the comment that there is not a jot of evidence:
"This organisation is the respectable face of the chiropractic profession …"
Well, whether it is the face of the profession or not, we would certainly submit that the BCA is respectable.
"… and yet it happily promotes bogus treatments."
Well what does "happily" mean. A number of possibilities were canvassed again this morning: "blithely"; I will not attempt the French. But "blithely" is an interesting notion. The real question here is "Do they know and are they happy", or "Are they happy because they don't know?" It is our submission that actually, in the context here, the reader must infer that they do know, because they are the BCA. If there is no evidence, they would know. And "happily" -- yes; it does not say "knowingly" (and of course if it said "knowingly" my case would be beyond argument on Dr Singh's part), but "happily" has, we submit, the connotation of "knowing and doing it anyway"; that they are happy about this. Why do I say that? Because of the context that is put in this paragraph.
"And yet": what does "and yet" signify? If it is respectable, why is it doing this? And, as I said, moving on to the next part of the article (again, in our submission, it does not affect the meaning that the reader would read into paragraph 3), it is Dr Singh establishing his credentials as the author of the book and giving weight to the statements which we say are ----
LORD JUSTICE SEDLEY: What weight do you give the word "bogus"? I would have thought that was going to be your main focus? Do you say that is an accusation of dishonesty?
MS ROGERS QC: I hesitate about the dishonesty because that is not -- we stick with "knowingly"; "We know they are bogus". And, in a sense, what does "bogus" mean? Or what would the ordinary reader of The Guardian think it meant?
LORD JUSTICE SEDLEY: It was originally, accordingly to my OED, a noun; first found in the United States in the early nineteenth century as a noun meaning "a machine for counterfeiting". And all its later meanings in the nineteenth century as an adjective were equivalent to counterfeit; in other words, something that is setting out to deceive.
MS ROGERS QC: Yes.
LORD JUSTICE SEDLEY: Which rather ----
MS ROGERS QC: Well, in a sense, it is the knowingness, so there is that element of deception about it, because, if you are saying, as the website does, that chiropractic can help, then, if you know there is no evidence that it can help and you are saying that it can help, you are promoting something that is bogus.
THE LORD CHIEF JUSTICE: You submitted a few minutes ago that "happily" leads to the inference that they do know that there is not a jot of evidence that the treatment works. If you put "happily" and "bogus" together in the same sentence, that is a better strong submission, is it not?
MS ROGERS QC: What paragraph 3 of the article does is make a point and reinforce it. If we split it into two with the two meanings, it is reinforced in that way.
LORD JUSTICE SEDLEY: Putting it all together, you say there is an accusation of deliberate deceiving.
THE MASTER OF THE ROLLS: If it "happily" promotes treatments or promotes bogus treatments, that is not as effective as factor (a) and factor (b) that we talked about earlier.
MS ROGERS QC: It is the combination, yes.
THE MASTER OF THE ROLLS: "Happily promotes bogus treatments".
MS ROGERS QC: Yes. I am happy to debate it further with your Lordships, but, in a sense, it does not get any cleverer than that as a point. You look at the words. You look at what the words mean. You take the ordinary Guardian reader, or the Guardian on-line reader, and you let them be not unduly suspicious or too naïve and you let them read between the lines, and you look at ----
THE LORD CHIEF JUSTICE: I am sorry to interrupt you because this is important for a sort of summing up of your submission on this point. The Guardian reader will not necessarily stop reading with shock and horror when he finishes, or she finishes, "yet it happily promotes bogus treatments". If we are to reflect on what "bogus" means in this article, we surely have to then take account of the writer saying why he describes the treatments as "bogus".
MS ROGERS QC: Yes.
THE LORD CHIEF JUSTICE: The reader of The Guardian would read on to see "What on earth does he mean by 'bogus'?"
MS ROGERS QC: Well the reader will read on. The words are taken in their context, absolutely. Perhaps that is not Rule 1, but it is a basic part of the test that you look at it in context. So yes, of course.
THE LORD CHIEF JUSTICE: He is giving his own interpretation or his own meaning to "bogus".
MS ROGERS QC: Well he is going on to talk about the label "bogus" and his co-authorship of the book, and he is reinforcing that they are bogus.
THE MASTER OF THE ROLLS: What he is saying is (inaudible) labelled "bogus", and the reason is not that he knows anyone in the BCA is liar, but simply that he knows that, from his own book and Professor Ernst's experiment and surveys, that they do not work, and that is what he means by "bogus".
MS ROGERS QC: Well, no, because he cannot ----
THE MASTER OF THE ROLLS: Or there is no evidence that they do not work.
MS ROGERS QC: Well, not quite, because he is still asserting that there is "not a jot of evidence".
LORD JUSTICE SEDLEY: Should we read that statement in the light of the final paragraph of the article?
MS ROGERS QC: It is an interesting question, because after one goes through to what is said about the treatment of the back in a few paragraphs and then the risks of treatment, what Singh's message is is that it would be taken off the market; that Chiropractic is unsafe. He seems to be making that ----
LORD JUSTICE SEDLEY: Well he draws the two things together, does he not?
MS ROGERS QC: He does.
LORD JUSTICE SEDLEY: He draws together the intervening passage about risk and the initial claim that he makes that there is no evidence at all. It says:
"If spinal manipulation were a drug with such serious adverse effects" (that is risk) "and so little demonstrable benefit" (that is his "not a jot" point), "then it would almost certainly have been taken off the market."
MS ROGERS QC: Well no. I think, to quibble, there is a difference, because "so little demonstrable benefit" -- he is actually talking about the back. He seems to concede that there is some but very little demonstrable benefit for the back.
LORD JUSTICE SEDLEY: You say that is all to do with backs.
MS ROGERS QC: So any demonstrable benefit is back only, and so it does not derogate, in our submission, from what he has said about the bogus treatments; the listed conditions in paragraph 3.
THE MASTER OF THE ROLLS: Except that what he says is "Look, Professor Ernst has carried out an enormous amount of work to see whether there is any benefit, other than on backs, and he has found nothing. And because he has done all this great research, I am saying there is not a jot of evidence because (inaudible)", the implication is, I suggest, possibly, "Professor Ernst would have found it and he did not."
THE LORD CHIEF JUSTICE: Or that in the course of 70 trials something might be revealed.
THE MASTER OF THE ROLLS: Yes. "Bogus" and "not a jot of evidence" and Professor Ernst are all a package, putting the same thing a different way.
MS ROGERS QC: Well there is a package, but what Dr Singh does in paragraph 3 is go beyond that, because the statement (leaving aside "bogus" for a moment because there is a closer package or link between paragraphs 3 and 4 on "bogus") "not a jot of evidence" goes further than what one finds in paragraph 4.
THE MASTER OF THE ROLLS: And "happily".
MS ROGERS QC: And "happily".
THE MASTER OF THE ROLLS: I appreciate that. I think one has to have in mind Diplock LJ's observations in Slim v. Daily Telegraph - what people would have thought reading the article and were analysing every word and treating it like going through a will or a contract rather than reading … We have got to do that because that is our function as lawyers, but we have to be very careful of its risks and drawbacks.
MS ROGERS QC: It is very striking how familiar the complaints - not just of Diplock LJ and the other judges in that case - are when faced, particularly in this court, with an application of this kind. Because one is not meant to apply a process of analysis, but that is of course ----
LORD JUSTICE SEDLEY: One of the more comforting legal fictions is that when we apply the test of what a reasonable person would think, we always find they bear a remarkable resemblance to one of Her Majesty's judges.
THE LORD CHIEF JUSTICE: Or in his case three.
MS ROGERS QC: I like to delude myself that I am reasonable too, but it is of course a difficulty. I have now forgot which of the Lord Justices observed (I think it is Pill LJ) in one of the recent fair comment cases, referring to Eady J's judgment in that case as "Well, it is a short judgment, but necessarily so because it is largely a matter of impression". In a sense, the judge is entitled, when the judge is the person who is making the assessment, to have regard to the matter of impression.
THE MASTER OF THE ROLLS: You cannot win. Either you say it is a matter of impression, in which case everyone says it is unreasonable. How did he get there? Or you set out your reasons in detail, in which case you are accused of adopting precisely the wrong attitude of trying to analyse these things (inaudible) bit of a hurry.
MS ROGERS QC: Yes. And of course that locks into the central fiction about meaning, that all readers are going to have read it in the same way because one has the notion of the ordinary, reasonable reader. But anyway, that is, in a sense, why I started with the role of meaning in defamation. It may be wrong. It may be that that is something that should be addressed. It may be there is a better way of doing it, but that is a fundamental principle of defamation practice which I invite your Lordships to take as a given in this case. If that is to be undone, it is a matter for statute; not, I would respectfully submit, for this court.
LORD JUSTICE SEDLEY: The law of passing-off has got a lower theme - the moron in a hurry.
MS ROGERS QC: Yes, but they get into terrible messes because of having to have surveys about whether or not people have been confused. That of course is a different way of doing it where you do try to work out what most people who saw a representation or saw a product would have thought about it. But then it creates work for people who carry out surveys.
THE MASTER OF THE ROLLS: And for people who criticise people who carry out ----
MS ROGERS QC: Indeed.
THE LORD CHIEF JUSTICE: Ms Rogers, is there anything more on meaning?
MS ROGERS QC: I am done on meanings, with the exception of this: the role of this court. Simply, our submission is that the observation in proposition (a) in Skuse is correct, and I do urge ----
THE LORD CHIEF JUSTICE: Why is it correct?
MS ROGERS QC: Why was it ----
THE LORD CHIEF JUSTICE: I ask the question seriously. I understand it is there, but why is it correct? If we take the view that the judge is wrong, why do we have to apply any other standard?
MS ROGERS QC: Well, in a sense, the standard in Skuse is not far off from what you have just put to me. It is that you should not disturb his finding unless you are quite satisfied that he was wrong.
THE MASTER OF THE ROLLS: Does it come down to this? As you say, there is this fiction that it has one meaning to the average person, but in fact common sense points out that different people will read it differently. If the judge's reading of it, you might say, is how a reasonable and proportionate reader might read it, then we should not interfere with it simply because we think a higher proportion of people might read it in a different way?
MS ROGERS QC: Yes.
THE MASTER OF THE ROLLS: Is that the sort of zone ----
MS ROGERS QC: Yes; it is a bit like -- different levels of different process may not be a helpful analogy. It is a bit like a judge deciding whether or not to grant an injunction on a privacy case. He or she weighs up the factors, and that is a process. The judge then exercises the Article 10/Article 8 justification for interfering with Article 8 justification (inaudible). We then have the balancing test. The judge has that evaluative exercise and, at the end of it, he or she makes the conclusion that the court has said in a number of cases. It is fundamentally a process for the trial judge.
In a sense, the ascertainment of meaning is again a process that should be left to the trial judge. Otherwise, in a sense, whether or not, as it was observed, it is a way of discouraging appeals. A claimant or defendant who loses a meaning application would have absolutely nothing to lose by having a punt to the Court of Appeal on the basis that you might get three judges to take a different view or two judges to take a different view.
So what is the safeguard? I think Ms Page was suggesting that there is something 'un-Strasbourgian' about allowing the trial judge to do it and not the Court of Appeal. In our submission, that is absolutely wrong to think that. This applies to whether it is fact or comment. If the judge had not addressed himself to the question if it is fact or comment, then the court would say, "Well, we have got to do that process because the judge has not done it." If the judge had not looked at the principles in Skuse and Gillick, then the court could say "Well, he has not done that. We have got to do that."
So, if there is something the judge has not done, then the court can do it. But, if the judge has applied the right principle and if he has reached a decision which he is entitled to reach, then, in our submission, this court should not interfere. Whether one calls it a question of fact or law is, in a sense, an interesting one. But it is the evaluative questions that the jury would do. It is a question fact. I cannot say to your Lordships that you are not in the same position as the judge to do it, because you can read the words and you can form a view. That is obviously right. But, as a matter of principle, it should be for the trial court - whether it be judge or jury.
Of course Ms Page referred to the fact that in jury trials it is now much more common, if there is a jury -- jury trials being a creature that has been on the wane -- for a jury to be asked a series of questions, and quite often either the first or second question is "Do the words bear the meaning of …" whatever the meaning is pleaded by the claimant or the defendant.
LORD JUSTICE SEDLEY: What is it in legal principle that distinguishes the judge's ruling as to the limits of meaning, which I think you accept is a question of law for an appellate court, from his determination, if he does determine it, of the actual meaning, which you say is fact that we ought not, on principle, to disturb unless it is fundamentally wrong? What is the distinction between the two things? I mean the prior distinction?
MS ROGERS QC: As to whether there is in fact any real distinction is a very moot point, and the artificiality of the exercise and whether it is said to be fact or law. It has been said to be slightly -- I have forgotten the adjective.
LORD JUSTICE SEDLEY: There may be a rationale which has escaped me. There may be no rationale. It is just the way we do things, and it sounds as if you are saying it is the latter, and nobody knows more than you about it.
MS ROGERS QC: I do not know about that.
LORD JUSTICE SEDLEY: Except Ms Page!
MS ROGERS QC: I take issue about that, but I was listening to see whether the leading -- Gatley may well say something about this. I was always taught not to cite a book for which one is not responsible for unless it is to say it is wrong, and perhaps I should look at Gatley rather than this. But I do not think I can help your Lordship.
LORD JUSTICE SEDLEY: Just the way we do it.
MS ROGERS QC: I think it is just the way we do things, and, if there is a ----
THE LORD CHIEF JUSTICE: Ms Rogers, do not worry about it now. If overnight you think of an answer and if you let Ms Page see it, we will look at it.
MS ROGERS QC: Of course.
THE LORD CHIEF JUSTICE: Shall we move on then to comment?
MS ROGERS QC: Indeed. I am now on to part 2. Again this is a question that the judge of course was asked to decide by the parties, and it has been accepted in too many places to mention that it is hard to draw the line between fact and comment. That has been accepted in domestic cases and in Strasbourg cases, and there are no hard lines. I mentioned in my skeleton the point that there was formerly a hard line about states of minds. State of mind was said to be something that could never be comment on the old kind of Edgington v. Fitzmaurice - that "the state of a man's mind is as much a fact as the state of his digestion", and that was a hard line. If that existed, then domestic law would be in violation of Article 10, but that is not the position any more.
In a sense, anything is capable of being a comment. It depends on how things are expressed. Any of the cases are no more than examples of this, but, that said, I wanted to say one thing about Kemsley v. Foot. In Kemsley v. Foot one of the questions about whether something is fact or comment is whether or not the publisher makes a new statement of their own.
THE MASTER OF THE ROLLS: This is tab 5.
MS ROGERS QC: It is. Thank you. It is on page 356, where Lord Porter … There are no letters, but there is ----
THE MASTER OF THE ROLLS: A short paragraph.
MS ROGERS QC: There is a long paragraph starting "The question therefore …"
"The question, therefore, in all cases is whether there is a sufficient substratum of fact", etc.
Then he finds his view expressed in the remarks contained in Odgers. Then there is a very long citation from Odgers, which I was not going to read, except for picking it up on the penultimate line on the page.
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: "But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact."
That is Lord Porter citing Odgers.
THE MASTER OF THE ROLLS: But he does then carry on to say in his own words that the question whether evidence (inaudible) must depend on (inaudible).
MS ROGERS QC: Yes, exactly, and whether the facts necessary to justify the comment might be implied from the terms of the impugned article, and then the question that he asks towards the end of that paragraph, "Is there subject-matter indicated with sufficient clarity to justify comment being made?"
Now, in a sense, that is slightly different. That is not a problem we have got in this case. That is a separate issue - the extent to which you have to cite facts in an article. That is another of the comment criteria - whether the facts are stated in the article. We are concerned with the gateway. The question is whether or not you are making a statement of your own, and in a sense it goes back to what I say about "not a jot of evidence". That is a statement that Dr Singh makes on his own. It goes further.
So on the question of where Strasbourg draws the line, what I propose to do, if it finds favour with your Lordships, is to give you a top line and just say a little about the cases and give the key passages. In a sense, my fundamental submission is that these are only examples and they are of limited assistance to you. But, that said, they are of some assistance.
So on that, at No. 1 - these come in chronological order. The first is Lingens, which is in file 2 at tab 35. The reason we say this matters is that this is the whole origin of the value judgment. As far as I can tell, this is the first case in which Strasbourg drew the distinction between fact and value judgment. What mattered in that case was that the Austrian law did not recognise a distinction, so it required a journalist to prove the truth that conduct was dishonourable, and, since one can have different views about whether or not conduct was dishonourable, it was incapable of proof; and so the lack of a defence in the domestic law gave rise to the distinction of being acknowledged in Strasbourg. At that stage at least, Strasbourg are saying in pure terms that it is an important distinction - implicitly an important distinction in every case.
Next on my list is the Nilsen case, which Ms Page has given some paragraphs in. I think it may be that we are both citing the same paragraphs, but I do not have my note of her paragraphs to hand. So perhaps I can give you mine.
LORD JUSTICE SEDLEY: Paragraphs 25 and 48 -53.
MS ROGERS QC: I have got paragraphs 43, 44, and 48 - 50. So that is a substantial overlap. Again, what I would observe about this case is that this is a case about allegations of police brutality in Norway, which had been the subject of debate and there had been a report. Someone's response to the report had been published and in the course of their response they made defamatory allegations.
Again I observe that, in terms of English defamation law, this is something which would have fallen squarely within a different defence of (inaudible) which is response to an attack. If somebody publishes a report which makes a defamatory attack, the person who is the subject of that attack is entitled to respond. They are entitled to respond in a way that -- in a sense, meaning has a subsidiary role, because, providing it is directed to the attack and it is not something completely extraneous, they can respond providing they are not activated by malice.
So, in a sense, the Nilsen case is interesting for the statement of the principles, but, in UK law terms, again it would not have arisen in that way because it would have been in a different quality of defence.
Third on my list is Jerusalem v. Austria, and that is in tab 39. Again, as I parenthetically observe, this is a case where the speaker, who was a member of the local municipal council, would have had a different protection of qualified privilege, so again there would have been a malice standard applied in that case. The passage relating to fact and value judgments is to be found in paragraphs 42 through to 43. What is curious about that is that the domestic court had said it was a factual statement, but then refused to admit any factual evidence in support of it. So they said it was fact, but then refused to allow the speaker to adduce any evidence of fact. That is dealt with at paragraphs 44 through to 46.
In a sense, why Jerusalem matters is that I think it is one of the first cases which says "a value judgment which is not supported by a sufficient factual basis will not attract the protection of Article 10."
LORD JUSTICE SEDLEY: Is that paragraph 43?
MS ROGERS QC: It is. Where I say "sufficient factual basis", in fact the way it is put in Jerusalem is "without any factual basis", although in fact there is a gloss on this in subsequent cases where there has got to be a sufficient factual basis.
But, as your Lordship sees, they shut out the evidence in paragraphs 45 - 46. What one sees in this is that, where the European Court of Human Rights is looking at proportionality, what it is doing is looking at all the facts of the case. So I urge caution on your Lordships in this case in looking at proportionality as though, in a sense, it is a free-standing question. If the words are comment, then to shut out a fair comment defence would be disproportionate. But if the words are fact, then shutting out a fair comment defence is not going to be a disproportionate matter.
LORD JUSTICE SEDLEY: Can you help me with the last sentence of paragraph 43? It seems to have a sort of tautological mistake in it: "… may depend on whether there exists a sufficient factual basis …"
MS ROGERS QC: Sorry.
LORD JUSTICE SEDLEY: You remember it reads:
"The proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive".
I would have thought the sentence should be "may be permissible". That seems to be the sense of it, is it not?
MS ROGERS QC: Yes; I think that is right.
LORD JUSTICE SEDLEY: Anyway, there it is.
MS ROGERS QC: I think it is not felicitously expressed, but the way the principle has gone forward is that, if you have a value judgment which has a factual basis, it would not be excessive and therefore it will warrant protection by Article 10. But, if it does not have any factual basis, then it will be excessive and therefore it does not warrant the protection of Article 10.
LORD JUSTICE SEDLEY: So it is the word "even" that ----
MS ROGERS QC: I think the "even" is slightly unhappy.
LORD JUSTICE SEDLEY: Thank you.
MS ROGERS QC: The next one, and I am up to No. 4, is Chauvy, which is at tab 42. This is where the court was concerned about whether it was having to look at matters of history. In a sense, it is a history book and the question was whether or not the claimant in France had betrayed a comrade, and someone had reviewed some of the evidence and relied in particular on testimony from Klaus Barbie. The book had suggested, or at least inferred, that the named claimant was responsible for effectively betraying a person who is then executed. At paragraph 69, you can see that the court considered:
"… it is an integral part of freedom of expression to seek historical truth and it is not the Court's role to arbitrate the underlying historical issue, which is part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation", and so on.
It is as much as one would expect from the Strasbourg court. But then what the court goes on to say at paragraph 70 … This is the statements of principles which are useful. I cannot remember if the court has looked at the principles which commonly run in the cases:
"In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole …"
And I underline those words. It is in the light of the case as a whole, is what the court does.
"… including the content of the remarks held against the applicants and the context in which they made them. In particular, it must" (this is the Strasbourg court) "determine whether the interference in issue was 'proportionate to the legitimate aims pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient'. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts".
So that is, in a sense, the limit of the jurisdiction. It will look to see whether it was acceptable, i.e. within acceptable limits. Then:
"In addition, in the exercise of its European supervisory duties, the Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in this type of case, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right of the persons attacked by the book to protect their reputation, a right which is protected by Article 8 of the Convention as part of the right to respect for private life."
I stop there just for a moment, because in the earlier cases, cases involving the media in particular would come before the Strasbourg court and only Article 10 would be considered. The emergence of the protection of reputation as an aspect of Article 8 has now become common currency in Strasbourg and Chauvy is important in showing that one takes into account both right.
That is something that again has happened in the domestic court. You look through both sets of spectacles, but, in a sense, it does not matter which spectacles you are looking through: the results should be the same. Of course in Strasbourg it is either going to come to the Strasbourg court under Article 8, or it is going to come to the Strasbourg court under Article 10.
LORD JUSTICE SEDLEY: You cannot come to differential decisions under those two Articles on the same set of facts.
MS ROGERS QC: No.
LORD JUSTICE SEDLEY: You cannot find both a violation of this and a violation of that.
MS ROGERS QC: I would not be surprised actually, but one should not. There should be only one answer, and that is the Karako v. Hungary case, as analysed by the Supreme Court in Ahmed recently. One reconciles them. There is not a conflict in that sense: each accommodates the other.
LORD JUSTICE SEDLEY: Yes.
MS ROGERS QC: Article 8.2 accommodates the right to freedom of expression. Article 10.2 accommodates the right to reputation, whether they are both Convention rights or not. But it just so happens that in the Strasbourg court in the early cases you do not see, except, as Ms Page (inaudible) Article 8 slightly sidelines but focuses on one. It is much clearer that there are two Convention rights in the latter cases - Chauvy being one of the earlier examples of this.
What is interesting then about this decision is that the Strasbourg court looks at (in paragraph 71) the approach of the domestic court, which was the Paris Tribunal, which did three things. It looked at the accusations and the chronological order of the events, compared the text of Barbie's statement and so on. At paragraph 73 the court then carries out effectively its own evaluation but looking at the question of good faith. As the court says in paragraph 73, "the applicants' good faith is of central importance in defamation cases." It looks at what the tribunal in France did. It found:
"… the characteristic features of the applicant's book were the excessive importance given to Barbie's submissions, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac's first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from Antiquaille Hospital in order of importance, insufficient qualification of his remarks on [a certain matter], a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events. It explained" (that is, the domestic court explained) "and gave reasons for each of these assertions and concluded that the author's plea of good faith had to be rejected".
So the question of the "good faith" of the publisher was looked at in the sense of how they treated the historical material. So, in a sense, there is nothing to stop Dr Singh, if he wanted to, seeking to mount some kind of defence that depended on examination of what materials he had prior to publication and what he did with them; and the domestic court examining them and then deciding whether or not it was a matter of good faith.
So the European Court of Human Rights' assessment continues through the following paragraphs through to the end of paragraph 77. Its conclusion, which one finds on page 632, is that there had not been a violation of Article 10.
LORD JUSTICE SEDLEY: There is no finding on Article 8.
MS ROGERS QC: No.
LORD JUSTICE SEDLEY: And that is why - it is subsumed in Article 10.
MS ROGERS QC: Because what had happened was of course the claimant had succeeded in the domestic court so it is the publisher who went to Strasbourg. The publisher relies on Article 10 because the court is considering Article 10, but obviously taking into account Article 8 factors. So the only conclusion is "Is there a breach of Article 10?" But, in a sense, why this matters is because the fact is that sometimes domestic courts do get involved in looking at matters - whether it is history, science or whatever it is - and domestic courts can have to look at it.
The Strasbourg court will review it, but you are looking at all the circumstances of the case, and so in this case one would be looking at the questions of Dr Singh's good faith and the evidence he had and what he did with it when he wrote what he wrote. The disproportionality exercise is done on that basis. It is a striking finding of no violation in that case.
LORD JUSTICE SEDLEY: A very interesting short concurrence by Judge Thomassen.
MS ROGERS QC: Yes. What is striking about a number of these cases in fact is that sometimes there is a very tight distinction or difference of opinion between the Strasbourg judges as to what is a fact or a value judgment and the right approach to be taken.
THE LORD CHIEF JUSTICE: Where do we go next?
MS ROGERS QC: Next is a very brief pitstop at Selisto, which I was not even going to ask your Lordships to turn up, which is at the next tab. This is an example of where the Strasbourg court did not have to decide - paragraph 56. The Strasbourg court was able to determine the question in that case without having to resolve how the Articles would have been interpreted by the ordinary reader. They do not have to decide the question of meaning, but they still do have to look at the overall context of the case. So, in a sense, if this court were to be concerned about Strasbourg's supervision, again it is a question that Strasbourg would be looking at all the facts of the case and not this decision on its own.
The other paragraph simply to note in Selisto -- this is a question of whether or not surgeons had been drunk in Finland. There is a question of the overall matter of public importance. In the context of that case it was important that the individual surgeon had not been named. Writing on matters of public interest without naming or identifying claimants does not give rise to a defamation action. So that is to be found at paragraphs 62 - 64 and paragraph 68 of Selisto.
Coming into the second half of the list, Cumpana is the next case. That is in tab 44. This is again another Article 10 case. This is a case where it was a question of whether or not there were allegations of unlawful conduct and corruption on the part of the award of a contract for towing away vehicles. The remit of the court is explained again in paragraphs 89 through to 91, and again it is a similar question - were the reasons for the interference relevant and sufficient; was the measure proportionate; did the national authority ----
THE MASTER OF THE ROLLS: (Inaudible)
MS ROGERS QC: It reinforces the nature of the supervisory test. In terms of the facts of the case, it is paragraphs 99 - 101, where again the Strasbourg court notes that it can be difficult to distinguish between fact and value judgments. The conclusion in that case was that basically, in paragraph 100, one sees that the court is looking overall at what was published, including a cartoon. It was a cartoon of the particular female claimant going off with a bag of money, and this was said to be an allegation of specific conduct on the claimant's part - of complicity in signing an illegal contract and the suggestion that she was behaving in a dishonest and self-interested manner.
The key words that were likely to lead readers to believe that the fraud alleged, and the bribes allegedly accepted, were established uncontroversial facts. So that in paragraph 100 was the way in which the material was presented that led the court to conclude that it was a question of fact.
THE LORD CHIEF JUSTICE: In the end, is it not always a question of fact and is that not what all these cases tell us?
MS ROGERS QC: They do.
LORD JUSTICE SEDLEY: Each reflecting their own individual facts.
MS ROGERS QC: They do.
THE MASTER OF THE ROLLS: That is true whether one looks at the domestic cases or in Strasbourg.
MS ROGERS QC: Indeed.
THE LORD CHIEF JUSTICE: So what do we get from further analysis of three further decisions?
MS ROGERS QC: It has been put, as I understand it, that, for the court - for the judge - to have decided what he did in this case is disproportionate in Strasbourg terms, or that Strasbourg would find it disproportionate, and the court should be concerned about disproportionality. My submissions are essentially that no, it would not, because that is not how Strasbourg works. Strasbourg looks at the case as a whole. All of the cases in the file, and many cases not in the file, come to the same point about that. Strasbourg cases (inaudible) as a whole.
THE MASTER OF THE ROLLS: I think what you are saying is that there is no real discrepancy between our approach individually and Strasbourg's, as it were, supervisory approach. Is that right?
MS ROGERS QC: Yes. But there is nothing in Strasbourg to worry your Lordships.
THE MASTER OF THE ROLLS: We do not worry (inaudible) Strasbourg.
MS ROGERS QC: Post-Human Rights Act, though, the courts are very very careful to take into account Strasbourg jurisdiction. It is right that you should. In a sense, that is what Eady J has done and, having the role that he has had as judge in charge of the jury list, he has been at the forefront of looking at the bounds between Strasbourg and domestic jurisprudence. In a sense, one sees in Branson and Keays his assimilation of Nilsen effectively as soon as Nilsen came out; and Cheng in Hong Kong - the assimilation of that through recent cases.
I think I have used an expression in my skeleton that it is bred in the bone; that it is a part of the exercise.
THE MASTER OF THE ROLLS: And in the passages we were taken to from your ----
MS ROGERS QC: Exactly, but ----
THE MASTER OF THE ROLLS: The chapter on (inaudible) defence or incorporated in those paragraphs.
MS ROGERS QC: Indeed.
THE LORD CHIEF JUSTICE: May I ask whether you would accept the proposition that the article that we looked at by Ms Alison Young, as at the date when it was written, contains an accurate summary of the issues?
MS ROGERS QC: Yes and no. It is accurate on Strasbourg and inaccurate on domestic.
THE LORD CHIEF JUSTICE: All right, but it is accurate as far as Strasbourg is concerned?
MS ROGERS QC: Yes. It is a good and in fact one of the only guides to this. There is the very old Harvard Law Review, but, in terms of modern law, Alison Young is the best. I was going to direct, or rather ask, your Lordships … First of all, can I just give the references to three more Strasbourg cases.
THE LORD CHIEF JUSTICE: Yes.
MS ROGERS QC: I will not take your Lordship to them at all.
THE LORD CHIEF JUSTICE: No.
MS ROGERS QC: But they do matter. Pederson is in tab 45, and this is where the Strasbourg concluded it was a factual allegation rather than a value judgment by nine votes to eight in the Grand Chamber. So that it is difficult is not surprising. The key paragraphs are 76 through to 78; and 83, 91 to 92. The dissent is a powerful one starting at page 521.
THE MASTER OF THE ROLLS: What are we actually taking from this?
MS ROGERS QC: In a sense, it is the ----
THE MASTER OF THE ROLLS: Is it just demonstrating the difficulty?
MS ROGERS QC: It is further reinforcement that it is difficult, but it is done. It cannot be submitted that the court should not do this exercise.
LORD JUSTICE SEDLEY: What is? The segregation of fact from ----
MS ROGERS QC: Fact from value judgment, yes.
THE MASTER OF THE ROLLS: The European thing is one of them.
MS ROGERS QC: Yes.
THE MASTER OF THE ROLLS: The domestic thing.
MS ROGERS QC: Yes.
THE MASTER OF THE ROLLS: And this case is a very good expression of how difficult it is.
MS ROGERS QC: Yes; it is a very very good ----
THE MASTER OF THE ROLLS: (Inaudible)
MS ROGERS QC: Because the journalists made a television programme about whether or not evidence had been suppressed.
THE MASTER OF THE ROLLS: Sure.
MS ROGERS QC: Questions are asked. But, even though it is in the form of questions, it is still found by the court to be a fact ----
THE LORD CHIEF JUSTICE: I am not sure I would have liked to be the losing party.
MS ROGERS QC: Well, no-one likes to be the losing party.
THE LORD CHIEF JUSTICE: No, but not with eight judges agreeing with you.
MS ROGERS QC: Of course there is nowhere to go after the Grand Chamber, but there you go.
THE LORD CHIEF JUSTICE: Probably the Bankruptcy Court.
MS ROGERS QC: The last two. Lindon is in tab 47 and again this is particularly important in the context of this case because this is where the domestic proceedings are in the context of a novel. So there are two things about it. The passages that are extracted from the novel are very small in number. It is a few lines from a 138-page novel, and it was a novel. But, even in those circumstances, ----
THE MASTER OF THE ROLLS: We were asked to look at paragraphs 45 and 46 by Ms Page. Do you agree with that?
MS ROGERS QC: I would give also paragraph 51.
THE MASTER OF THE ROLLS: Thank you.
MS ROGERS QC: And commend it as a general good read, but your Lordships may not have time for that. Pfeifer is the final one at tab 48. Again, this is a question of whether or not someone was morally responsible for the death of someone who committed suicide. The key passage there is paragraphs 46 to 47. Actually, I would say it goes to paragraph 48 - is it a value judgment or is it not?
And the curious thing now is that there is a further refinement. Strasbourg is not a precedent court and it is a -- I cannot remember the (inaudible) living instrument and there are constant developments about it.
The Dyuldin case, which I cite in my skeleton, indicates that the court is now moving to a position where, in the context of cases where what is going on is a lively political debate, it is saying that actually the distinction between fact and comment may not matter, or it has less importance.
So we may be in for further refinement in Strasbourg as to whether or not or how significant the distinction may be.
THE MASTER OF THE ROLLS: Does that tie in with the point about whether the Reynolds defence applies, as it were, generally and not just to comment.
MS ROGERS QC: Yes. It does - precisely that. But the distinction does matter. You are looking at everything. You are looking at the proportionality of the thing overall. So the kind of gateway defences and how you get there are a different question. But it does not mean that you are not right if you are considering a comment defence in this jurisdiction.
The curious way that they put it is that they say the difference between fact and value judgment may be "the degree of factual proof". Quite what they mean by that may be a further ----
THE MASTER OF THE ROLLS: Which case is that?
MS ROGERS QC: That is Dyuldin. I cited it in my skeleton and I quote the relevant ----
THE MASTER OF THE ROLLS: Do we have it in the bundle or not?
MS ROGERS QC: Yes; it is in file 3.
THE MASTER OF THE ROLLS: Yes, thank you very much.
MS ROGERS QC: I cannot tell you the tab number, but it is file 3.
THE MASTER OF THE ROLLS: Thank you very much.
MS ROGERS QC: In a sense, I am sorry to survey Strasbourg, but it is important because the way it has been put against my clients is that Strasbourg in some way affects the exercise of the judgment in that it makes it all wrong and unfair and disproportionate for the judge to do what he did, and I hope satisfy you that actually it does not help you in where to draw the line in this case; and it does not help you in the question of proportionality because it is different. It is done at a different stage because of the way the court operates.
So, in a sense, this is a point at which my note to myself is "Back to the article. Back to the judgment."
THE LORD CHIEF JUSTICE: Why do we not go back then?
MS ROGERS QC: Is it fact or is it comment? In a sense, when I was making my submissions about what it meant, the points were slightly repetitious because the features that make it an allegation of knowledge on the part of BCA -- the things that make it an allegation of knowledge are the very same things that make it fact and not comment. (I have not even got a copy because mine has disappeared into the usual black hole.)
In a sense, the point about it is that we say that when one gets into paragraph 3, we have come from two paragraphs which are all about fact, albeit introductory. In a sense, this is lining up for what is going to come next. The BCA is dropped into the article here and mentioned by name. We say that these are indelibly factual statements about it. It recites their claims. It says there is no evidence. It says it is respectable and it "happily" promotes the treatment, and these are all factual assertions about the BCA.
It is important to make that distinction because it may well be that, if you are commenting generally, you are commenting about something of an entirely general nature, and you refer to someone specifically within the context of a discussion of a general message, but you then say something about that person which is defamatory but which is not comment because it is not in the same track. Your gist is you are commenting about chiropractic treatment and you want to warn people effectively "Don't go to chiropractors. It would be taken off the market if it were a drug." That is your general message and there may be large elements of comment about that.
But, within it, he refers, first of all, to the founder of chiropractic, long dead, and then to the BCA, and he says specific things about them. It is important to note, again thinking about where common law is and where it might be, it is said at one point in the correspondence (and again I will just give you the reference; it is at tab 19 of page 219) that he BCA was not the target of Dr Singh's article. That is a point that is made in correspondence.
But there is not a defence of an incidental reference, though one can envisage that the common law system might say that, if you are having a discussion in good faith of public affairs or you are commenting on something generally and you have an incidental reference to something else, that you have a defence. It is a bit like, in the context of contempt of court under section 5 of the Contempt of Court of Act, if you are having a discussion in good faith of public affairs and you have a reference to something which creates a risk of prejudice to ongoing proceedings but the risk is merely incidental to your discussion, then you have a defence to a charge of contempt of court. That is section 5 of the1981 Contempt of Court Act. You can envisage a situation where you might say, "If it is a merely incidental reference to someone, you should not be able to sue." But that is not the way English law works.
So is it the main thrust of the piece? Perhaps not, but is the BCA mentioned? Is it mentioned by name? Is it identified? Are specific allegations made against it? Yes. In our submission, they are factual statements. The points are set out in my skeleton. What is curious here is it is not even presented to the reader as something which is potentially verifiable. It is presented to the reader as something that has been verified. "I know. I wrote the book. There isn't any evidence."
LORD JUSTICE SEDLEY: What is the role of the word "verifiable" in the judge's test to verify the fact? Is it that all things that purport to be fact have to be verified or else, or is it that there are some facts which are verifiable and there may be some which are not?
MS ROGERS QC: In the context of this, in our submission, he is referring specifically to what has been published in this case, and one of the factors in determining whether something is fact or comment is the question of whether it is verifiable.
LORD JUSTICE SEDLEY: What I am asking -- perhaps I will put it differently. Do you say that all facts, by virtue of being fact, are verifiable, or do you accept that there is an area of fact which is not susceptible at least of conventional verification?
MS ROGERS QC: Can I put it to the facts of this case? Is it verifiable whether there is any evidence or not? There is a verifiable fact, and whether there is any evidence in this that chiropractic is effective.
LORD JUSTICE SEDLEY: Well ----
MS ROGERS QC: And the second point is "Is it a verifiable fact whether my client knew that there was no evidence?" Again we say that is a verifiable fact.
LORD JUSTICE SEDLEY: You see underlying all this is another area of possibly and possibly not verifiable fact, which is whether homeopathy works for such diseases as colic and asthma.
MS ROGERS QC: Chiropractic rather than homeopathy.
LORD JUSTICE SEDLEY: Sorry. Perhaps it was in this morning's papers. Whether chiropractic works for infantile asthma or colic.
MS ROGERS QC: Yes.
LORD JUSTICE SEDLEY: Now is that a verifiable fact - that it does or does not?
MS ROGERS QC: Well, the question whether … Well it could be verifiable, yes. But the question whether or not there is any -- in a sense, that is not the question, because the question is: is there any evidence. The question of whether there is any evidence or no evidence is verifiable. So, in a sense, it is a different question or a different statement is being made in this article that there is no evidence. Of course ----
THE MASTER OF THE ROLLS: Is it entirely right that it is a verifiable fact? You might produce a survey which shows this does prove that it works, and I might say "No; it doesn't". It is a matter of opinion whether it is statistically reliable or whether it is good evidence.
MS ROGERS QC: Whether it actually works could be a dispute until a certain point. There can be a point at which there either is not enough evidence or there is conflicting evidence.
THE MASTER OF THE ROLLS: The evidence may suggest for some people and not to others.
MS ROGERS QC: Exactly, so of course there can be degrees of that, and then there comes a point, I suppose, of, well, does smoking cause cancer? There was a time at which it was disputed; that there was not any evidence. Then it was still disputed and then you get to the point where it becomes accepted fact. So there is a shifting spectrum on health and medical issues, just as on any other matter.
THE LORD CHIEF JUSTICE: Yes, one wonders how many experts would have turned up at the court of King's Bench for the trial of Galileo to say that he was talking absolute rubbish.
MS ROGERS QC: One does not have to prove that the earth is not flat either, and there have certainly been defamation cases which require more evidence rather than less.
THE LORD CHIEF JUSTICE: There is a constant development of medical knowledge. Sometimes it means "Yes, that is a great discovery" and sometimes it means "Gosh, we thought that was a great discovery but it has had catastrophic consequences."
MS ROGERS QC: Yes; that is true, but that, in a sense, is a false issue for your Lordships, because the question here is not about the quality of the evidence. It is a question of whether there is any at all. Lord Justice Sedley, when being taken to the defence, drew attention to the point that "any, or any reliable" is used throughout.
THE LORD CHIEF JUSTICE: Yes.
MS ROGERS QC: And that is a format that runs through a number of paragraphs for justification - no or no reliable; any or any reliable. But there is a difference. There is a difference between the question "Is this evidence reliable or not? Is it sufficient to prove a point or not?"
LORD JUSTICE SEDLEY: What would your case be if, instead of "not a jot of evidence", the article had said "no reliable evidence".
MS ROGERS QC: I doubt that we would be here.
LORD JUSTICE SEDLEY: Yes.
MS ROGERS QC: Because it makes all the difference in the world to the state of mind of the BCA. The BCA are operating in a world in which some people think that chiropractic does not work at all; dubious as to the back and does not work at all for certain matters. Your Lordships know that Dr Singh co-wrote a book. It is out there. It investigates a number of alternative treatments and that debate is going on. Not a problem. My clients disagree to a greater or lesser extent with some of the points made by Dr Singh, and no doubt with some of the points made by Dr Ernst. That is a process that goes on outside this court. One does not have a defamation claim about the book. One has it about the proposition which was, in our submission, in clear factual terms that "there is no evidence". The snapshot is now. It is not a question of what the position in the future may be. It is now, at the time you make these claims - at the time you make these claims - there is no evidence.
THE MASTER OF THE ROLLS: If you say "no evidence" -- I mean, the claimant could produce somebody who had come to them and said "My baby had terrible colic. I took the baby to a chiropractor for two sessions and the baby got better. I am quite convinced, cause and effect." Is that evidence?
MS ROGERS QC: Whether it is worthwhile evidence is ----
THE MASTER OF THE ROLLS: No; if you had that and that was all you had.
MS ROGERS QC: That is a false -- I am sorry to say that that is on a false premise because that is not the position.
THE MASTER OF THE ROLLS: No, I know. All I am testing is whether really one can say that evidence means anything other than reliable, safe evidence, because that is evidence.
MS ROGERS QC: It has got to have worth as evidence. It has got to be evidence.
THE MASTER OF THE ROLLS: It is a value judgment.
MS ROGERS QC: Well, no. The evaluation of evidence - whether it is good or bad, or strong or weak - is evaluative and there is scope for opinion. But whether there is anything at all is a kind of parameters test. There is nothing that even gets in the zone of evidence - there is "not a jot of evidence".
THE MASTER OF THE ROLLS: He is not suggesting that there are not some people who would come forward and say "It cured me. I am convinced that it did." If you get 10 or 12 people (I am sure you would get a lot more), that would be evidence. It might be said by statisticians and others to be valueless, but other people might find it terribly convincing. But is there not a problem with saying that it is a hard and fast factual question: no evidence means in this context "nothing at all". It just is not realistic to ----
MS ROGERS QC: Sorry; (inaudible) wish to push my case beyond the limit. We are not saying that it would be sufficient if there was one anecdote. That is not the position. There is something, as something is not nothing. It has got to be "there is no evidence". There is a dispute about whether evidence can be said to be only RCTs - randomised control trials. We say that that is too narrow.
THE MASTER OF THE ROLLS: I know, but the point I am making is that, once you accept that it is a value judgment or whatever you like, he must mean, in my view, "no reliable evidence", because otherwise he cannot be meaning anything else. That is what I am suggesting to you.
MS ROGERS QC: Well, in our submission, I am afraid to say that it is because he is saying that there is -- let us put it this way round: "There is nothing worth calling evidence. There is nothing that can be called evidence. There is no evidence." That is the point. He is not saying very much about the BCA. It is dropped there. We have just got those few sentences. They are picked out. Something is said about them and it is said in categoric and clear terms, unfortunately.
Your Lordships have the point in my skeleton, and you can see from Ms Page's skeleton, how she says what Dr Singh is saying, but that is not what Dr Singh said. He said something quite different. And so you are talking about -- I do not know whether it would help to just think of it in a legal context. If it were to be said, for example, of me "Ms Rogers runs defences of justification in libel cases even though there is not a jot of evidence. She is a respectable barrister and yet she happily runs bogus defences." Fact or comment. We say that that is fact, because whether there is evidence is a factual matter. Whether I am "happily" -- I would still say "happily" means "knowingly" in that context.
LORD JUSTICE SEDLEY: The beauty of that example, of course, is that half the world thinks it is true - not of you, but of the whole of the Bar!
THE LORD CHIEF JUSTICE: I want to come back to something I raised before lunch which is still troubling me and it still has nothing to do with the outcome of the case, but here we are. Your clients are very steamed up at what they perceive to be a very serious libel. It has been said about them that they have indulged in happily promoting bogus treatments. Your case is - their case is: "That is absolute nonsense. We don't. That's not what we are running our professional lives for."
It is now two years on, jolly nearly, since the matter that caused all this umbrage was published. The opportunity to put it right was not taken. The end of this litigation will not be for another how long - another twelve months?
MS ROGERS QC: Well that depends on a number of factors.
THE LORD CHIEF JUSTICE: Yes. So all the opportunities to put this right - to make it clear to the public that these allegations are nonsense - simply have not been taken, and yet it matters. I quite understand that it matters to your client that they should not have to put up with defamatory statements. I am just terribly troubled about the entire artificiality of all this and all of the huge expense. Somebody at the end of this litigation - somebody - is going to pay a vast amount of money. It will either be Dr Singh out of his funds or it will be your clients out of the contributions made by the subscriptions paid by their members. I am just baffled.
MS ROGERS QC: If your Lordship thinks that my clients relish spending years and money and time on this litigation, that is not right.
THE LORD CHIEF JUSTICE: I do not think anybody is relishing this. No, forgive me. I am not for a moment thinking anybody is relishing it - plainly nobody is relishing it. But, at the end of the day, as to this issue about whether there is any reliable evidence or not as we speak now, it is either there or it is not. If there is reliable evidence, goodness gracious, why isn't somebody publishing it?
MS ROGERS QC: The question of what the evidence is has been set out in the defence and the reply and there is a ----
THE LORD CHIEF JUSTICE: I am sorry. I keep interrupting. I do not mean in the course of litigation. I do not mean as part of the litigation - just to the public.
MS ROGERS QC: There is a debate going on in the public sphere. It should come as no surprise to the court. There are expert journals in this field. There are newspapers which publish articles on one side or another, including about the merits of this dispute, and if I may call it the "blogasphere". The debate is going on, so that debate is being had. Your Lordship has directed, in a sense, "Why hasn't this been sorted" at my client. I do invite your Lordship again to direct it back to the defendant as well.
THE LORD CHIEF JUSTICE: I am directing it at you because it is a submission you have just made about the difference that there would be in your client's attitudes if the word "reliable" had been used in this article.
MS ROGERS QC: If "reliable" had been used and it would have been signalled, or could have been signalled -- it depends on what else changes in the context. If it is a question of someone saying "There was no reliable evidence", then there is a dispute about reliability. There is a dispute about perspective. There is a dispute about weight of evidence. But saying there is "nothing at all" crosses a line. That is the problem. If Dr Singh wants to say in this court that he accepts that my clients are not operating in a world of, to use a general word, dishonesty; not operating in that world; not challenging their integrity; then he can say it. But your Lordship sees, and I do not want to go through the correspondence, that the fact is that the parties took their stands.
THE MASTER OF THE ROLLS: (Inaudible) offered the other side an offer of a way out and neither side took it. There was an attempt to mediate. It did not work, so here you are.
MS ROGERS QC: Here we are.
THE MASTER OF THE ROLLS: Can I pick up another point that you rather attractively made on the point about counsel putting forward arguments without evidence? It does slightly illustrate the danger of using words in different contexts, because, if you put forward a case with evidence which is a statement that you have told your client the court will not believe and everybody thinks is laughable, you are doing your duty. But, if you are a scientist saying, or a scientific commentator saying, that "There is no evidence", then you are (inaudible) if the evidence is pathetic, but you are entitled to say "I have evidence as counsel, even if you do not think for a moment any court is going to believe it."
MS ROGERS QC: But again that is a difference of whether there is evidence or not - whether there is nothing. It would not be the first time that -- the question of whether or not my defences are rubbish: some defences have been struck out; some of them have been criticised or not. But that is an evaluative exercise, but it goes beyond to say ----
THE MASTER OF THE ROLLS: Well it comes back to "not a jot of evidence".
MS ROGERS QC: It is slightly different; we have got counsel's duty. You can run it to the point that it is just arguable, but, if it is not arguable and if there is no evidence (the client who says "What should I say?"; the client who has no evidence but wants you to make a case) -- that way, effectively, would be professional misconduct and one is then in a different zone. It would be a serious allegation.
THE MASTER OF THE ROLLS: But it is a different thing for a scientist to say "I have looked at 70 tests that were meant to show something and I find they do not. There is no evidence." But you would nonetheless be prepared to run the case even if you did not believe it, on the basis of it being evidence. All I am saying is that it is one of these words which takes its colour inevitably - the context of no evidence takes its colour from (inaudible) circumstances in which the expression is used.
MS ROGERS QC: Of course, but it is important not to gloss. There is a difference between "I have found no evidence" and "There is no evidence".
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: I am sorry to keep going back to that, because one is evaluative -- or one says "What I've done, I found no case", and the other is "There is no case".
LORD JUSTICE SEDLEY: It may sound pedantic, but what do you say "evidence" means? Can I feed you a suggestion? "Evidence" means matter which, if reliable, proves something other than itself, or tends to prove it.
MS ROGERS QC: I have no problem with that.
LORD JUSTICE SEDLEY: Isn't the first question about whether something is evidence whether it is reliable? If it is not reliable, it could be said it is not evidence.
MS ROGERS QC: Well, no. I think that whether it is reliable or not is a separate issue from whether it is evidence.
LORD JUSTICE SEDLEY: That is one view, I can see - the bare assertion, but is it not a legitimate view that, before something is evidence, it has got to be in some measure dependable? Without that, it cannot tend to prove anything.
MS ROGERS QC: I see the way you put it, but, in a sense, it depends how it would be expressed. If it is tantamount to "there is nothing", then what one is probably saying is that there is "nothing, not even anything unreliable". It comes back to ----
THE MASTER OF THE ROLLS: Nothing which somebody could reasonably believe.
MS ROGERS QC: Nothing which anyone could reasonably believe.
THE MASTER OF THE ROLLS: Or in this case nothing that the claimant could believe - an allegation (inaudible).
MS ROGERS QC: Yes. They know there is nothing ----
THE MASTER OF THE ROLLS: That is basically the message in those two paragraphs read together.
MS ROGERS QC: That is what we say about it.
THE LORD CHIEF JUSTICE: Right. Where do we go next? Sorry, were you waiting for Lord Justice Sedley to make a note?
MS ROGERS QC: I was thinking there might be another -- I am not a cricketer, but another googly coming over on the right. All I was going to suggest is that we have reached the end of my list, subject to this. Your Lordship asked me about A.L. Young.
THE LORD CHIEF JUSTICE: Yes.
MS ROGERS QC: I commend her, as I say, on Strasbourg, but her analysis of the domestic law, partly because she says that comment has to be reasonable, which is not right. So treat with some diffidence the way she approaches ----
THE LORD CHIEF JUSTICE: Shall be approach Duncan and Neill as the appropriate authority?
MS ROGERS QC: I do not think it is for me to say, but ----
THE MASTER OF THE ROLLS: (Inaudible) Ms Page to rely on.
MS ROGERS QC: I am happy for Ms Page to rely upon it and it is available in all good bookshops. What I was going to direct you to was Professor Barendt, who I think I can point to as an authoritative source. You will find him in file 3 and there are two extracts. I was not going to take your Lordships to it now.
THE LORD CHIEF JUSTICE: They are very interesting.
MS ROGERS QC: They are very interesting. Professor Barendt wrote an article as part of the OU medium of media law in 2000-2001, so it is about the same time as A.L. Young and I think it was his citation of A.L. Young that took me to that article. But he reviews the cases and principles from Strasbourg at pages 149 to 150. It is a useful discussion.
THE MASTER OF THE ROLLS: There is nothing he says that you quarrel with?
MS ROGERS QC: No. I think not there, at any rate.
LORD JUSTICE SEDLEY: We are looking at Eric Barendt.
MS ROGERS QC: This is Barendt at tab 7 of the article, because then there is Barendt, the book in tab A.
THE MASTER OF THE ROLLS: Is there anything else you want us to look at in tab 7?
MS ROGERS QC: I was going to give you pages 152 to 153.
THE MASTER OF THE ROLLS: Thank you.
MS ROGERS QC: Then he talks about the implications for English law post-Human Rights Act, including on the distinction between fact and comment. He said that basically the decisions must be taken in the light of the Strasbourg judgments with which I agree. He makes the point that the existence of facts can be shown by the difficulty of showing a statement to be true. Then they talk about the criteria for verifiability and maybe its classification as a value judgment. He talks about Nilsen and then he notes that the implications that the Strasbourg court is more likely to treat things as corrupt and disreputable conduct as (inaudible) more inclined is the critical thing.
Then he criticises the dependence of domestic law on meaning at pages 155 to 156, although this is the common law but not only the UK. I would not dream of quarrelling with the professor, but it is important to note that the writing of this article before Strasbourg recognises the protection of reputation as part of Article 8, so at the time he is writing … There is a reference, and I am sorry I am not quite sure where it is in pages 155 and 156.
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: He is commenting on the basis that priority is given to free speech. So he is writing in a climate when Article 8 is downgraded. It is just an exception to Article 10 ----
MASTER OF THE ROLLS: The last sentence over the page on 156. Do not worry, we will find it - priority given to ----
MS ROGERS QC: It is a quibble rather than a quarrel.
THE MASTER OF THE ROLLS: Thank you.
MS ROGERS QC: Then Barendt in tab 8. He considers the importance of the comment defence at page 203, and he suggests that Telnikoff has worrying implications for free speech. My only comment on that is that it is notable that Matusevitch, who was the defendant in the Telnikoff case, actually applied to the Strasbourg court to suggest that the House of Lords' decision in Telnikoff v. Matusevitch was a breach of Article 10. It was not admitted. The court held that it was inadmissible. If your Lordships would like a copy of the admissibility decision, we can add it in. In a sense, you have got so much Strasbourg already, I am not sure that an admissibility decision will help your Lordships.
THE MASTER OF THE ROLLS: Your essential point is that, because it was ruled inadmissible, we should look with caution on the suggestion that the House of Lords' decision is counter to Strasbourg.
MS ROGERS QC: Indeed. And what the Commissioners said as part of its decision was that "The writer of a letter to a newspaper is able to take care to use language which indicates that what he writes is pure comment and does not contain misrepresentations about what he is commenting on." So it is a fact-based point.
Then otherwise in Professor Barendt in the book, the discussion of the English law focusing on Reynolds from page 220, he starts with discussion of Reynolds, which, in a sense, is the most Strasbourg-consistent defence.
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: And he talks about the balance being important at page 222. He does make the point that the Reynolds defence is criticised, not by Professor Barendt, on the basis that it discourages the media from publishing things that they believe but which they have not been able to verify; to which he says that you have got to have a regard to reputation rights. "The public has an interest in the publication of fair and well-researched stories; not in those which are poorly put together with gratuitously destroy the standing of people in public life." So it is the standard of responsibility that he has there.
At page 223 he looks at the approach of the Strasbourg court and makes it clear that it looks at the content. Page 224 is the particular bit where he deals with fact and value judgments. It is interesting that he takes the view that it is the same approach in the two, which we say is right: that the approach to fact comment is consistent with fact value judgment.
THE MASTER OF THE ROLLS: Yes.
MS ROGERS QC: Of course, Eady J is, as I have said, fully conversant with Strasbourg jurisprudence. He is responsible for Branson and Keays, both of which are comment only. And he is also responsible for Hamilton and Galloway, which were fact, not comment, and the Spiller case, which I think was said to be comment and not fact. In our submission he was right to say that this is fact, not comment.
So, my Lords, I have taken longer than I had intended, but unless I can help you with anything further, I ----
THE LORD CHIEF JUSTICE: We are grateful that you have taken it. Thank you very much indeed. Yes?
Simon Singh's Reply
MS PAGE QC: I will endeavour to be as short as possible. Just to pick up a few points, on this question of what is an issue of fact and what is an issue of law, I think the best explanation (for what it is worth) that we get in modern times is that of Diplock LJ in Slim, which we have at tab 8 of volume 1, page 174.
THE LORD CHIEF JUSTICE: Are you inviting us to look it up? I mean, it is referred to just about every time one opens a book. What do we get from it, Ms Page?
MS PAGE QC: What do you get from it? I think this was raised as to what the legal principle was underlying it. The legal principle is nothing more than that, because the decision as to defamatory meaning which the words are capable of bearing is reserved to the judge, for this reason and not other, it is called a question of law; and, because the particular defamatory meaning is a decision for the jury, it is for that reason, and no other, a decision of fact.
LORD JUSTICE SEDLEY: Whereabouts in Slim is that?
MS PAGE QC: It is page 174, between about C and D.
LORD JUSTICE SEDLEY: Thank you.
MS PAGE QC: Secondly, on Reynolds and whether Reynolds provides an answer, if I may just make a few observations upon that.
THE LORD CHIEF JUSTICE: Yes.
MS PAGE QC: Reynolds is a defence established to meet a lacuna in the law for false allegations of fact. So, for example, in particular investigative journalism. There was no lacuna and there is no lacuna in relation to false allegations that are recognisable comment.
If you are going to invoke a Reynolds defence, you have to establish by your defence that you have complied with the ethics of responsible journalism according to the various circumstances which Lord Nicholls set out and which of course were recently reviewed by the House of Lords in Jameel.
If in order to defend comment any author had to comply with the duties, the responsibilities, of journalists as they are imposed upon them in order to defend false allegations of fact, it would be highly chilling. It would mean that no journalist or no author or writer could just sit down and react to events as they occur. In this case chiropractice (inaudible) would be long gone by the time it had gone through the lawyers, by the time there had been putting the gist of the comment, the gist of defamatory sting to the BCA, argued about it, taken account of various other things - verified and so on. It is very onerous and, although we are no longer allowed to call them "hurdles" or "hoops", nonetheless there are a series -- there is a long checklist, as you are aware, which would have to be overcome.
What one does not want to do is to fetter access to a defence of fair comment by requiring journalists or writers to comply with the ethics of responsible journalism when making an allegation of fact which ex hypothesi is false. You can ex hypothesi say something false about somebody in the form of a comment without needing to be in the least bit responsible in doing so.
In that context, can I just remind your Lordships, as you see when we go through the Strasbourg authorities, that comment can be hard-hitting, provocative, offensive, shocking and disturbing, unpalatable, unreasonable and of course irresponsible. You can have your pen dipped in (inaudible). Therefore the width of this has got to be met by the defence as it is.
There is one other distinction that may be of significance also between Reynolds as it stands at the moment and fair comment defence, which is that the single meaning rule does not govern or is not a straitjacket to determine whether or not there is a defence available in Reynolds. That is the Privy Council decision in Bonnick v. Morris. I have got copies and I will hand them to your clerk afterwards, but that explains why the single meaning rule does not apply. So that if the author of something that is defended as Reynolds thought that they were saying something lesser than the court of fact determines was the true meaning, that does not of itself affect the availability of the defence.
In fair comment, the single meaning rule does still double, although that is an area that perhaps might have to come under a review because, if the touchstone of comment is honesty and if a judge or tribunal of fact finds a meaning which is considerably higher than is envisaged as being the meaning of those words by the commentator, he could be held to be malicious because he did not have an honest belief in what he published. This is actually discussed in the Canadian case. The Supreme Court of Canada have recently looked at this and it is in the second volume.
Can I then, penultimately, just take up this question of would we be here if what had been written was "no reliable evidence"? If what had been written was "no reliable evidence", that, on the analysis of what has been written of Ms Rogers, presumably would mean that they know that there is no reliable evidence and that they happily promote claims for which they know there is no reliable evidence. Why would that be any different to what has actually been written here? The very first sentence of the very first chapter of Cross and Tapper reads this:
"The evidence of a fact is that which tends to prove it."
That is what one would understand in the scientific context as evidence. It is not illustration. It is not anecdote. It is evidence and it must have a probative quality. That here is the difference between the parties. If it is really the case that the BCA would not be here if they had been accused of promoting claims where there was no reliable evidence, then it seems extraordinary that we are here at all.
Finally, can I just say this? I know that I was accused of making jury points earlier, but what happened at the beginning is not simply that the opportunity was not taken by the BCA to write their own article setting out their evidence. They were asked to identify their evidence and they declined to do so. They said "it is not for us to do so". I do not know whether they have ever published the evidence, but, in any event, the claims are no longer made on their website.
Then just as one last citation. It was in the original skeleton argument, as it appeared when the application was made. It is a citation often cited in the US courts when looking at subjects of medical, scientific or academic controversy. It comes from Underwager v. Salter. It is Judge Easterbrook who said:
"Scientific controversies must be settled by the methods of science rather than by the methods of litigation … More papers, more discussion, better data, and more satisfactory models -- not larger awards of damages -- mark the path toward superior understanding of the world around us."
LORD JUSTICE SEDLEY: Are you quoting that from something that we have?
MS PAGE QC: No, you do not have that. It was in our original skeleton argument that was complained of.
LORD JUSTICE SEDLEY: Yes. What is the source?
MS PAGE QC: It was paragraph 76 of the skeleton argument put in at the time of permission. Underwager v. Salter is the case, and it is 22 Federal Reports.
THE MASTER OF THE ROLLS: Perhaps you could let us have copies of that.
MS PAGE QC: We could get copies yes, certainly, my Lord.
THE MASTER OF THE ROLLS: With the paragraph highlighted or marked.
MS PAGE QC: Yes, we will do that. Unless I can assist further, I do not propose to say any more.
THE LORD CHIEF JUSTICE: Ms Rogers, we have had cited to us by way of last whisper an American authority. I think, if you want to reserve your position about that, when Ms Page lets you have a copy of it and if you want to make any comment on it or draw our attention to any alternative authorities arising from it, would you do so?
MS ROGERS QC: Of course, thank you.
THE LORD CHIEF JUSTICE: Thank you very much. Thank you all very much indeed for interesting submissions. We will need to take time to consider our decision. We will let you have our decision as quickly as we can in the usual way. When we do, it will be a hand-down. There is no need for counsel to attend if they are otherwise engaged. I think for the time being we will adjourn. Thank you both.