BCA v Singh | tutor2u Law

...is an important recent ruling of the Court of Appeal that has several interesting applications for AS law students. Read on for more!

Singh is a journalist who published an article in the Guardian newspaper that was critical of chiropractors, and in particular of the efficacy of chiropractic treatments for children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying. He was subsequently sued for libel by the BCA.

The judge at first instance, Eady J, made a finding of fact that Singh’s allegation that the BCA “happily promotes bogus treatments” meant, to paraphrase, an allegation that it was a matter of fact that chiropractors were knowlngly dishonest. Libel law requires the defendant to prove the truth of such a statement of fact. Obviously, based on that finding, Singh would struggle to prove his allegation to be true of the BCA. He would have to prove that BCA/its members propagated treatments that they knew lacked any evidence of effectiveness. The judge decided that, where a claim refers to a “verifiable fact” such as this, it cannot be construed as fair comment. It was this decision of Eady J that was appealed as a preliminary issue prior to trial.

However, Singh’s view was that the judge was wrong on this, and he therefore appealed to the Court of Appeal, who agreed that Singh’s words should be taken as comment rather than fact, in a judgment referring to Orwell and quoting Milton! The Court found that, in a scientifically controversial area such as this, Singh’s claim that there was “not a jot of evidence” for the effectiveness of chiropractic treatments was a statement of opinion, that opinion being that there was no worthwhile or reliable evidence. Of course, this would make a successful claim by BCA a lot less likely, bearing in mind the available defence of fair comment, or “honest opinion” to use the preferred term of the Court of Appeal.

Lord Judge in the Court of Appeal , speaking on behalf of all the judges, noted that the decision of BCA to refuse a right of reply offered by the Guardian newspaper, and to sue Mr Singh rather than the Guardian, with its comparatively deeper pockets, “[has created the ]...unhappy impression… that this is an endeavour by the BCA to silence one of its critics”. This reflects the wider concerns of interest groups about the law on libel, with its high costs and burden of proof on defendants, being a tool used by the rich to silence people, with the concomitant effect on freedom of speech.
For students, there are several things to take out of this.

Firstly, the campaign for libel reform is a great example of influcences on law reform - in this case, pressure groups such as the Libel Reform Campaign. Jack Straw has pledged to consider the issue, which has also made the Lib Dem manifesto, which shows the effect of such campaigns. There are also obvious links here to themes such as access to justice (Civil Courts) and legal funding, as well as the rule of law - as it seems that some are more equal before the law than others when it comes to libel!

Secondly, the judge in the Court of Appeal relied in part on an American case, Underwager v Salter [1994]. Students of judicial precedent can be reminded of the persuasive effect of foreign judgments such as this one, and also others such as Australian case The Wagon Mound and Re S, which referred to an American case.

UPDATE: since I began this post, it has emerged that the BCA, following the unfavourable preliminary ruling at the Court of Appeal, have now discontinued their case - which will be seen as a victory for campaigners for libel reform and free speech. Perhaps this also showcases one of the weaknesses of precedent - which is that sometimes businesses may settle rather than have an unfavourable precedent established - although at least we have the Court of Appeal’s preliminary ruling!

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