16 December 2009 | By Katy Dowell
The fact that the heavyweights of the judiciary are lining up to hear academic Simon Singh appeal a ruling handed down by Mr Justice Eady demonstrates just how seriously the country’s leading judges are taking the debate around libel laws (see story ).
Lord Chief Justice Lord Judge will chair a panel of three in the Court of Appeal that also includes Master of the Rolls Lord Neuberger and Lord Justice Sedley.
The case centres on a 2008 libel claim issued against Singh by the British Chiropractic Association (BCA) after he wrote an article that criticised the view that chiropractors can cure disease by manipulating the spine. The article, which appeared in the Guardian’s Saturday Comment & Debate pages, said the claim that minor illnesses could be treated by spinal manipulation were “bogus”.
The BCA took exception to the article and sued. Mr Justice Eady upheld the BCA’s claim, ruling that because Singh used the word “bogus” he would have to demonstrate that BCA members were deliberately misleading the public by telling them of remedies that they knew did not work.
The article, Eady J ruled, contained “the plainest allegation of dishonesty and indeed it accuses them [the BCA] of thoroughly disreputable conduct”.
The ruling sparked outrage for appearing to impose yet another restriction on freedom of speech and attempting to curb the freedoms of writers who dared to question the norm.
Granting Singh’s lawyers leave to appeal the ruling, Lord Justice Laws said: “There is, as I understand it, no question as to the good faith of the appellant, no suggestion that he was actuated by malice. […] The litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest.”
Laws LJ made no direct mention of Eady J or his initial ruling. Yet by appointing three of the most senior and experienced judges to the appeal case, which will be heard in February, litigators and barristers alike will be watching for any hint of criticism directed at the High Court judge.
The panel lineup, it is understood, was altered three times as the Lord Justices jostled for a place. Sedley LJ was a mainstay throughout the changes. He was a one-time member of the Communist party, considered to be an intellectual heavyweight with liberal tendencies, a judge who can be trusted to make a balanced ruling.
Originally Lady Justice Arden and Lord Justice Jackson were due to join him. But Jackson LJ became “otherwise engaged” and Master of the Rolls Lord Neuberger was parachuted in.
A final change came when the Lord Judge LCJ replaced Arden LJ.
To contextualise the significance of the panel lineup it is worth noting that the Master of the Rolls and Judge LCJ rarely share a panel.
There are notable exceptions of course, such as the ongoing Binyam Mohamed case, which sees the pair joined by Queen’s Bench Division head Sir Anthony May to oversee a Government appeal.
That case has huge political implications as it centres on the decision by Lord Justice Thomas and Mr Justice Lloyd Jones to order foreign secretary David Milliband to disclose intelligence material relating to allegations of torture involving the CIA.
Should libel now be considered a top political issue?
Certainly there is huge pressure on the Government to address outdated libel laws. In the meantime any judges daring to enter this territory should beware - you are being watched.
The counsel involved on Singh’s appeal:
Bryan Cave associate Robert Dougans instructed 5 Raymond Building’s Adrienne Page QC to act for Singh.
Doughty Street’s Heather Rogers QC has been instructed by Collyer Bristow partner Rhory Robertson to act for the BCA.