British Chiropractic Association v Singh

This was a permission decision, not a determination of the libel issues. In a fair-comment defence, the court should distinguish the meaning of the words from the separate question whether, on that meaning, they are fact or comment. It was arguable that treating verifiable assertions as necessarily factual, so that only justification was available, was legally erroneous and raised issues under European Convention on Human Rights article 10. The pleaded meaning also arguably imposed a disproportionate burden by requiring proof that treatments were bogus. Permission to appeal was therefore granted at large, without any view being expressed on the eventual merits.

The respondent, a professional association, brought a libel action concerning two sentences in an article published in the Guardian by the appellant. The High Court, on 7 May 2009, upheld the pleaded meaning, which alleged that the association knowingly promoted unsupported and bogus treatments. It also ruled that the words were allegations of fact rather than comment, relying on the distinction between verifiable fact and fair comment and referring to Hamilton v Clifford [2004] EWHC 1542 (QB).

After Keene LJ refused permission on the papers, the appellant renewed the application. The central issue was whether the High Court had conflated meaning with the classification of words as fact or comment, and whether its approach sufficiently respected article 10 rights.

1. Permission. Laws LJ granted the renewed application for permission to appeal at large. The court expressly gave no view on the final result.
2. Meaning and fact or comment. It was arguable that the High Court had conflated two distinct questions: first, the meaning of the words; and secondly, whether, read in that meaning, they constituted fact or comment. The pleaded meaning imported allegations about the claimant’s knowledge and state of mind, which could itself create difficulty because the claimant was a corporate association.
3. Verifiable fact. It was arguable that the apparent use of verifiability as a test which made fair comment unavailable, leaving justification as the only relevant defence, was legally erroneous. The approach might impose a disproportionate burden by requiring the appellant to prove that the treatments were bogus in the sense attributed by the judge.
4. Article 10 and proportionality. The subject matter was plainly of genuine public interest. On the assumed footing that the appellant had written honestly on that subject and without malice, the preliminary rulings arguably risked striking the balance between reputation and free expression too far in favour of reputation. These issues required consideration on a full appeal under article 10 of the European Convention on Human Rights.
5. Procedural direction. A replacement skeleton argument was directed, limited to no more than 20 pages and expressed concisely. The order was: application granted.

• Court of Appeal (Civil Division) [2009] EWCA Civ 1154: Laws LJ granted the renewed application for permission to appeal at large and expressed no view on the merits.
• High Court of Justice, Queen’s Bench Division: Eady J ruled on 7 May 2009 that the pleaded meaning was established and that the words were factual assertions rather than comment.
• Earlier permission decision: Keene LJ refused permission to appeal on consideration of the papers on 21 July 2009.