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CHIROPRACTORS : FAIR COMMENT : LIBEL : MEANING : OPINION EVIDENCE: SCIENTIFIC UNCERTAINTY : SUFFICIENCY OF EVIDENCE : AVAILABILITY OF EVIDENCE TO SUPPORT STATEMENT

Where the relevant data on the extent of the benefits of chiropractic was heavily and legitimately in contest, an alleged defamatory statement that the British Chiropractic Association had no evidence to claim that its members could treat particular ailments was not a fact but amounted to an opinion that there was no worthwhile evidence to support that claim, and the maker of the statement would be entitled to rely on the defence of fair comment at trial.

The appellant scientist and science writer (S) appealed against the judge’s determination of alleged defamatory words made by him about the respondent chiropractic association. The association, whose objects included promoting and maintaining high standards of conduct and practice among chiropractors in the United Kingdom, had contended that it had been defamed in an article written by S that was published on the “Comment and Debate” page of a newspaper. The article stated that the association claimed that its members could help treat particular ailments, even though there was no evidence. Determining preliminary issues, the judge held that to a reasonable reader the words would mean that the association claimed that chiropractic was effective in helping to treat the stated ailments although it knew that there was absolutely no evidence to support its claim and that by making those claims the association knowingly supported bogus treatments. He also held that the words amounted to assertions of verifiable fact, not expressions of opinion. If so, at trial, S would not be able to rely on the defence of comment, but would have to prove that the meanings were factually true or lose. The issues in the case were whether (i) the instant court was free to interfere with the judge’s decision as to the meaning of the words; (ii) the words amounted to fact or opinion.

HELD: (1) The meaning of the words in issue in a libel action was subject to two controls; a decision reserved to the judge as to whether the defamatory meaning alleged by the claimant fell within the range of possible meaning conveyed by the words in their context, and a decision, traditionally reserved to the jury, as to their actual meaning. The former was regarded as a question of law, the latter as one of fact, with the result that the meaning eventually decided upon by the jury would be shielded from attack on appeal save where it had crossed the boundary of reasonableness. However, the decision that was traditionally reserved to the jury was a question of fact only because it was made by the jury, and it therefore followed that the court was entitled to retake the judge’s decision, Slim v Daily Telegraph (1968) 2 QB 157 CA (Civ Div) followed. (2) The words amounted to opinion. The issue posed by the judge was in reality two distinct issues; first, whether there was any evidence to support the material claims, and secondly, if there was not, whether the association’s personnel knew that. The judge had erred both in conflating those two elements of the claim, and also in treating the first of them as an issue of verifiable fact. The subject matter of the article was an area of epidemiology in which the relationship of primary fact to secondary fact, and of both to permissible inference, was heavily and legitimately contested. In his defence S had set out, ailment by ailment and study by study, his reasons for considering that none of the available epidemiological evidence reliably supported the association’s claims, and the association had replied in kind asserting that there was some dependable evidence for its claims. It was one thing to defame somebody in terms that could only be defended by proving their truth, but it was another thing to evaluate published material as giving no evidential support to a claim, and on the basis of that evaluation to denounce as irresponsible those who made the claim. It was clear therefore that what “evidence” signified depended heavily on context, and whether such evidence amounted to proof was what scientific opinion was there to debate. If in the course of the debate the view was expressed that there was no evidence for one deduction or another, the natural meaning was that there was no worthwhile or reliable evidence for it. That was as much a value judgment as a contrary viewpoint would be. If the judge’s decision was to stand, it would not be open to the trial judge to conclude that what the evidence amounted to was a matter of opinion as it would already have been decided that the existence or non-existence of evidence for the claims made by the association was a verifiable fact. It followed that the natural meaning of the words was not that the association was promoting what it knew to be bogus treatments but that it was promoting what S contended were bogus treatments without regard to the want of reliable evidence of their efficacy.

Appeal allowed

[2010] EWCA Civ 350
BRITISH CHIROPRACTIC ASSOCIATION v SINGH (2010)

CA (Civ Div) (Lord Judge LCJ, Lord Neuberger of Abbotsbury MR, Sedley LJ) 1/4/2010

“Lawtel”: 12.4.10