Singh when you’re winning

When Bryan Cave associate Robert Dougans was first introduced to Simon Singh by an in-house lawyer in May 2008, he never thought that together they would become the poster boys for a campaign against British libel laws.

“Usually an injustice happens and nobody really cares,” Dougans remarks.

But this time things were different. To recap: science writer Singh wrote an article in The Guardian’s comment pages in April 2008 criticising the British Chiropractic Association (BCA). The association launched a libel claim against him and, during a preliminary hearing last May, Mr Justice Eady refused Singh permission to use the fair comment defence. It was on this point that Singh’s legal team went to the Court of Appeal.

Earlier this month, Singh and Dougans stepped out of the Royal Courts of Justice (RCJ) into a media scrum that hailed them as heroes of the hour (1 April 2010).

“We walked out of the RCJ and there were flashes, TV cameras exploded into our faces,” recalls Dougans.

The country’s most senior judiciary, Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley had reversed Eady J’s ruling.

“We really didn’t expect anything to come of it,” Dougans recalls, explaining how he felt when he was first approached by Singh. “But this case has become the rallying point for a lot of campaigners.”

Those campaigners have rallied against British libel laws, slamming them for being outdated and unfair to defendants and for attracting so-called libel tourists to London’s courts. The judiciary, critics said, were introducing a damaging privacy law through the backdoor.

Eady J has been in the eye of the storm for some time, thanks to a speech made by Daily Mail editor Paul Dacre to the Society of Editors in November 2008 (18 November 2008).

Dacre claimed the “arrogant and amoral” judgments handed down by Eady J were “inexorably and insidiously” imposing a privacy law on the British press.

When he first spoke publicly of the growing disquiet around libel laws more than a year later Eady J said: “It’s become fashionable to label judges not as independent but rather as unaccountable and as hostile to freedom of speech.” (7 December  2009).

Despite his attempts to quell his critics Eady J remains in the limelight – it was his judgment that led to Singh’s case being heard in the Court of Appeal. When the case came to be listed sources said there was a scuffle for a place on the bench.

Lord Justice Richards and Lady Justice Arden were originally meant to sit alongside Sedley LJ, but were bumped off in favour of Judge LCJ and Neuberger MR.

Dougans himself was surprised by the move, saying it was “highly unusual” to have both a Lord Chief Justice and Master of the Rolls sitting together – especially for a preliminary hearing.

When he first heard the case last May Eady J ruled that that Singh’s article contained “the plainest allegation of dishonesty and indeed it accuses them [the BCA] of thoroughly disreputable conduct”.

If this were allowed to stand, lawyers said, comment could be construed as fact and a lot of people would be in fear of receiving a lawyers’ letter for expressing their views.

The case, Judge LCJ ruled, had had a “chilling effect on public debate” about the merits of chiropractic. “This would be a surprising consequence of laws designed to protect reputation,” he stated. The judges ruled that Eady J had erred in his approach and the ruling should be reversed.

The decision illustrates just how seriously the senior judiciary are taking libel cases. On paper the Court of Appeal refused to hear Singh’s case, but after an oral hearing in October Lord Justice Laws ruled that it should go ahead.

Neuberger MR has set up a committee to examine the issues around the use of injunctions that bind the press and so-called ’super-injunctions’.

Justice Secretary Jack Straw attempted to introduce a 10 per cent cap on success fees, but was defeated in the House of Commons because the plans were considered ill prepared.

Meanwhile, Dougans and Singh wait to hear whether the BCA intends to continue its case against him and the BCA is considering whether to appeal the decision to the Supreme Court.

Counsel:

Claimant: British Chiropractic Association: Collyer Bristow Rhory Robertson instructed Heather Rogers QC of Doughty Street Chambers.

Simon Singh: Bryan Cave associate Robert Dougans instructed 5RB’s Adrienne Page QC to lead William McCormick of Ely Place Chambers.