Lord Jackson’s Review of Civil Litigation Costs was published in January 2010 . It applied to legal costs across the board, which obviously included costs in libel cases.

Recently, there was an open consultation. However, I did not make a submission to the consultation on the Jackson Review, which closed on Monday 14th February, because I had been focusing on preparing for the draft defamation bill (which will be published before the end of March).

However, having just read the submission made by Media Standards Trust to the Jackson Review consultation, I did want to correct one point relating to my own case.

As background, you should know that the Media Standards Trust submission argues that the current CFA system has played an important role in providing access to justice in many libel cases. While I accept that CFAs are important, I believe that the beneficial role of CFAs is exaggerated and that the chilling effect of CFAs is understated. I also feel that the 100% success fee is unnecessary and damaging to free speech.

Personally, the most worrying aspect of the Media Standards Trust submission is that it names me in a list of people described as “…some of those who successfully sought protection for freedom of speech through a CFA.” The report states:

Simon Singh – the author was sued (unsuccessfully) by the British Chiropractic Association over criticisms he made about scientific claims made by the BCA in 2008. He too was able to fight his case thanks to a CFA.

In fact, CFAs offered me very little support, and potentially had a very negative impact on my freedom of speech. The reality is that I was threatened with libel in May 2008, but I did not receive an offer of a CFA until February 2009. At this stage, only one out of three members of my legal team was on a CFA. In other words, I had already run up enormous legal bills before the prospect of a CFA became a reality, and thereafter it applied only to a fraction of my costs.

A second member of my legal team adopted a CFA arrangement towards the end of 2010, but by this stage I had already had to bear a massive financial burden.

On the other hand, the British Chiropractic Association (BCA), the organization suing me for libel, adopted a CFA arrangement with its legal team at a very early stage. This had a terrifying impact on me, because I faced the possibility of having to pay double the BCA’s costs if I lost the case. Thinking back to that time, the existence of a CFA for the claimant came very close to forcing me to back down. The BCA’s CFA came very close to ending my willingness to defend my right to free speech.

I hope that this helps to clarify the situation regarding my own case and my very partial CFA. This explanation should dispel any notion that CFAs were a boon to free speech in the case of BCA v Singh.

Moreover, the Media Standards Trust submission includes a reference to Hardeep Singh, who was sued for libel by his Holiness Sant Baba Jeet Singh ji Maharaj. The submission claims: “Singh pursued his case thanks to a CFA.” However, having spoken to Hardeep, my understanding is that the offer of a CFA came only at a late stage, and that he had already run up legal bills of about £100,000 prior to the CFA. Hence, the CFA clearly did not allow him to pursue the case, but rather it was Hardeep’s own determination and resilience that enabled him to stand up for what he believes to be true. He took a major financial risk, and it is not clear how much of his money he will ever recoup.

It is quite possible that many other examples that claim to show that CFAs support free speech are not as they seem.

For a more detailed explanation of my views on CFAs, please read my previous blog on this subject. I should stress that my overall view is not to abandon CFAs or make them unworkable, but to reduce the success fee to 25%. I believe this would retain access to justice, while driving down costs and the chilling effect of CFAs.

Originally posted on slsingh’s posterous

James Delingpole criticised me in this blog (“The curious double standards of Simon Singh”) after an exchange on Twitter. He then asked: “Can you answer reasonably, fairly, honestly?” Yes, I can.

To make it interesting, I tried to find 10 flaws in the article in 10 minutes. In fact, it took me only 5 minutes to find the flaws, but 20 minutes to write corrections. (There are other flaws, and you can find them pointed out in other comments on Delingpole’s blog.) Quotes from Delingpole’s blog are in blue.

1.      “Yet in the opinion of Singh, the worldwide Climate Change industry is the one area where the robust scepticism and empiricism he professes to believe in just doesn’t apply.”

No – where I have said this? Climate change is an area that requires extreme skepticism, i.e., questioning and challenging. However, despite all the challenges, the climate change consensus remains solid. (By the way, I thought Professor Nurse explained this to you quite clearly and slowly.)

2.      “Apparently, the job of a journalist is just to accept the word of “the scientists” and take it as read that being as they are “scientists” their word is God and it brooks no questioning or dissent.”

No – where have I said this? I have been a science journalist for almost two decades and where there are differing opinions it is important to consider the overall evidence. And, having been a scientist for a short time (PhD, particle physics), I realise that nobody should be treated as a god.

3.      “That’s it. Finished. There’s a “consensus” on global warming. It’s immutable and correct.”

No – where have I said this? In fact, you must have seen my tweet this afternoon: “I might be wrong, the climate consensus might be wrong, but the probability that the consensus is correct is +90% on the key points.”

4.      “And anyone who disputes it is a vexatious denier informed by nothing but ignorance.”

No – where have I said this? I accept that there is a very small minority of experts who do not accept the broad consensus, as is the case with every aspect of fairly solid science, from MMR to the Big Bang. As for non-experts, my views are clear from a piece I published previously on climate change: “However, those who continue to deny this conclusion (confirmed climate numpties) may wish to consider my revised version of an observation made by the technology journalist Kenneth Cukier in a different context. I would suggest that people who take part in the climate change debate are all intelligent, honourable and reject manmade climate change, but they never possess more than two of these qualities at once. For example, columnists who regularly reject climate change possess the third quality, which means they cannot be both intelligent and honourable. Next time you read a climate numpty columnist you might want to think about whether he or she is dishonourable or unintelligent. The divide is probably 50/50.”

5.      “What sickens me is the hypocrisy of people who claim to be in favour of speech, claim to believe in empiricism, claim to be sceptics yet refuse to accept room for an honest, open debate on one of the most important political issues of our time.”

No – where have I said this? All I have done is disagree with you, point out your lack of qualifications and mock you. I did not threaten to silence you or sue you. In fact, my approach was quite the opposite – you must have seen my tweet this afternoon encouraging further debate: “V happy for me & climate expert to meet you to discuss consensus, record it & put it in online unedited.”

6. “And just this afternoon, Simon Singh – purported defender of free speech; enemy of junk science – joined the ranks of those disgraceful hypocrites with a message on Twitter. Here’s what he Tweeted:
** Sorry, but @JamesDelingpole deserves mockery ‘cos he has the arrogance to think he knows more of science than a Nobel Laureate*
Is that the message Singh really took from the BBC’s Horizon documentary? When did I ever make that claim?”

First of all, it was not just “a message on twitter”, but rather several tweets, including six messages addressed to you. This included an acknowledgement that nobody is a 100% sure and an invitation to discuss this issue. I think my most insightful tweet alluded to the likelihood that you suffer from the Dunning–Kruger effect (whereby unskilled people reach flawed conclusions, but are not smart enough or knowledgeable enough to realise their mistakes.)

To answer your question and explain my tweet; you denied Nurse’s explanation of the role of consensus in science and you dismissed Nurse’s perfectly valid analogy about consensus … so you do indeed seem to think you are in a better position than Nurse to understand how science operates.

7.      “What I am saying, and I say almost every day, is that the evidence is not as robust as the “consensus” scientists claim”

Okay, that’s what you say. James Delingpole, English graduate. You might be right.

Those who think that the consensus is very likely to be valid include, as far as I know, all of the following and more:
Paul Nurse, Ben Goldacre and myself, who you have come up against this week (but we are very small fry).
Editors of the world’s foremost science journals, Science and Nature.
The most senior science editors in UK national broadsheet newspapers.
The overwhelming majority of science Nobel Laureates.
All the world’s national academy’s of science.
The overwhelming majority of climate scientists.

Also, I must stress that all of the people/groups above will have questions about elements of the consensus and realisethat the models have uncertainties, but they also agree that the broad consensus is very likely (90%) to be correct. In short, the uncertainties are small enough to derive some fairly solid conclusions.

8.  “Yet despite apparently knowing nothing more about me and what I do than he has learned from a heavily politicised BBC documentary, and maybe heard from his mob of Twitter bully chums or read in the Guardian, Singh feels able to decide that Paul Nurse is right on this issue and I’m wrong.”

No – I have followed your rants for quite a while from afar.  I am not saying that Paul Nurse is right and you are wrong. Instead, both Paul Nurse and I are saying that we are not convinced by your views, but we are convinced by the sheer weight of evidence behind the consensus that has gathered over the course of three decades

9.      “But what I can’t abide any more is what has been happening all this week, irresponsibly orchestrated by Sir Paul Nurse, the BBC and their dishonest, ferociously lopsided “documentary”:

No – my tweets were not orchestrated. I doubt Ben’s were either. Do you mean “triggered”?

10.  “the frenzied witch-hunt of a journalist and blogger who has done no more than journalists and bloggers should be doing in a free and open society.”

The problem is not that you have “done no more than journalists and bloggers should be doing”, but that you appear to have done substantially less. When writing about a scientific issue, you should have at least worked hard to understand some of the basic science in particular and the scientific method more generally.

Perhaps I can end with a point alluded to by pabloreale on your blog comments. It seems that you respected me until I disagreed with you. It seems that you respected Ben Goldacre until he disagreed with you. And I suspect that you respected Sir Paul Nurse until he disagreed with you. Who is going to the next person to lose your respect? David Allen Green? The Chief Government Scientist? The previous Chief Government Scientist. The Chief Government Scientist before the previous one? The previous President of the Royal Society? Ed Milliband? Nick Clegg? David Cameron? David Attenborough?

Originally posted on slsingh’s posterous

I was interested by @lecanardnoir’s tweet: “That despicable Daily Mail story that linked a tragic death to a flu vaccine has now been changed. http://bit.ly/giMGHG“.

The original tragic story (published online) had made a passing reference in its last line to the flu jab, which might have led some readers to make a link between Leah La Roche’s death and vaccination.

However, by the time the article went to print the next day, the flu jab reference did not appear in the print newspaper and had been removed from the online copy.

So what happened? Did @lecanardnoir’s twitter help the Mail edit its story?

I have never worked as a daily news journalist, but I get the impression that the following series of events is likely to have happened. First, a story arrives on the news desk and is put online quickly, with very little editing. Later in the day, the story is properly edited before going to print (and is also revised online).

Nevertheless, it is quite possible that in this case, @lecanardnoir’s twitter helped the editing process.

Either way, if you spot an error in online story, it is worth politely contacting the publication as soon as possible. You may prompt a correction before going to print, or you may get a correction made online. In terms of the Daily Mail, the people to contact are:

    Fiona.Macrae@dailymail.co.uk (health)

    David.Derbyshire@dailymail.co.uk (science)

It is probably worth writing to whoever is more appropriate, and then copy the email to the other.

Originally posted on slsingh’s posterous

Some time ago you gave a talk to some Science Ambassadors in the course of which you showed the yellow light that emanated from a ‘gherkinator’. I remember asking you if it really was from the sodium or just a yellow hot-carbon flame?

Anyway, I just thought I would let you know that, as you stated, it is indeed from the sodium and I attach a couple of  photographs showing my own gherkinator and hand held spectrometer, and a (rather poor) photograph of the view down the spectrometer. The yellow line comes out pretty close to 589 nm. Enjoy!

All the best

Michael

 

Originally posted on slsingh’s posterous

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Today (18.1.2011), “The European Court of Human Rights today unanimously ruled that the payment of success fees of up to 100 per cent in privacy and defamation cases, under CFA agreements, constitutes a violation of the right to free expression.” (Index of Censorship)

I commented on Twitter that was important and positive news, but others were puzzled. Here is a quick explanation as to why our current CFA arrangements are dangerous for free speech.

First of all, what is a CFA?

“CFAs were brought in under “access to justice” reforms … They enable lawyers to take libel cases under no-win, no-fee deals whereby they are compensated for the risk of failure by being able to charge the losing side a 100 per cent uplift on their normal fees.” (Press Gazette)

The good thing about CFA’s is that they enable defendants and claimants in libel cases to fight on when normally lack of funds might force them to back down.

The bad thing about CFA’s is that (by doubling the stakes) claimants can use them to effectively bully defendants into backing down. The balance of libel law is already in favour of claimants, so a defendant is in a doubly horrendous position when facing a claimant armed with a CFA.

Before discussing whether we need to reform CFAs, it is important to mention two reforms that are fundamental, and therefore even more important. First, the balance of libel law needs to be made fairer – this is being tackled by the Libel Reform Campaign. Second, the core costs of libel need to be reduced, and this is being discussed as part of the Jackson Review.

Should we reform CFAs?

Let’s look at three options:

1.      Getting rid of CFAs

2.      Keeping current CFA arrangements with 100% success fees

3.      Reforming CFAs by reducing success fee to, say, 25%

1. Getting rid of CFAs

This is not a serious option. CFA’s encourage access to justice, so very few people will argue for this option. You will often hear the phrase “get rid of CFAs”, but this typically means getting rid of or reducing the success fee associated with CFAs, which is more akin to option (3).

2. Keeping current CFA arrangements with 100% success fees

This helps poor claimants with no resources, and it can also occasionally help poor defendants with no resources.

However, CFAs can occasionally backfire and damage the claimants who seek them. Imagine a claimant who has a CFA and wins; so far, so good. However, at the end of the case, the claimant has to pay his or her lawyer double the normal fee! Of course, this money can claimed back from the losing side, but typically only 75% of the costs are ever recovered. Hence, the claimant is further out of pocket than would otherwise have been the case, because of the CFA.

The biggers problem with CFAs is that they are not only used by impoverished clients, but also by the rich and powerful. These wealthy individuals and corporations adopt CFA relationships with lawyers in order to intimidate lone writers or even large media outlets. Adopting a CFA means that the cost of a libel case will double and will almost certainly exceed £1 million if the case goes to trial. This means that defendants back down and apologise even if they are confident that what has been written is correct.

3. Reforming CFAs by reducing success fee to, say, 25%

I think that this keeps the advantages of the current CFA landscape, while reducing the disadvantages. Let’s look at four scenarios.

(i) Claimant with a strong case

I think claimants will still find lawyers willing to work on CFAs even if the success fee is reduced to only 25%. In fact, the 25% uplift is a fairer reflection of the lower risks associated with a good case. Moreover, the marketplace will adapt and lawyers will have to accept 25% uplift or else remain unemployed. And if one lawyer rejects a CFA deal, then another will accept it if the case is strong. Access to justice is thus preserved.

(ii) Claimant with a weak case

I doubt weak claimants will find a lawyer who will work on a CFA with 25%, but that is probably a good thing. Unless a claimant has a strong case, then he or she should avoid pursuing a libel case that might ultimately be self-destructive. Imagine that a weak claimant loses a case with a CFA; the good news is that there are no costs to pay to the claimant’s own lawyer, but there will still be the costs of the other side, which will certainly be in excess of £100,000.

(iii) Defendant with a strong case

I think defendants with strong cases will find lawyers willing to work on a CFA with 25% success fee, for the same reasons outlined in (i). This will certainly be the case when libel law becomes fairer and defendants are more likely to win than they are today.

(iv) Defendant with a weak case

I doubt weak defendants will find a CFA lawyer, which is exactly the situation today, and which is probably not a bad thing, as explained in (ii).

Some other thoughts

What about defendants or claimants with 50/50 cases. On the one hand, I would argue that a 50/50 case is a weak case, i.e., nobody should start suing for libel from such a haphazard and uncertain starting point. On the other hand, I could imagine many lawyers taking on clients with a 50% chance of success with only a 25% success fee bonus. The alternative for lawyers would probably be twiddling their thumbs, which earns zero fee and zero bonus. Also, if the cost of libel is reduced overall and the process is accelerated (thanks to a reformed and clearer libel law), then a lawyer is more likely to take on a 50/50 client; instead of risking several months of income, the lawyer is risking only a few weeks, and over the course of the year there will be some wins and some losses. The losses will be affordable when we bear in mind that each win could mean that a top libel barrister would earn £800 per hour, with a 25% uplift taking it to £1,000 per hour.

I would add only one more suggestion to revising CFA arrangements; I would suggest that a claimant or defendant would have to prove that he or she could not afford to go to court without a CFA. This would immediately prevent powerful corporations from using CFAs to bully writers.

I am not a CFA expert, so I am keen to hear what the experts think of my argument.

Originally posted on slsingh’s posterous

 1 January, 2011
https://simonsingh.net

1. Libel Case Over – a story with a happy ending … almost
2. Future newsletters and twitter
3. Uncaged Monkey Tour
4. Skeptics in the Pub
5. Overseas books
6. Old Competition Winner
7. New Competition Puzzle

1. Libel Case Over – a story with a happy ending … almost

It has been almost a whole year since my last newsletter. As many of you will know, the British Chiropractic Association sued me for libel for an article published in April 2008. The case lasted for a miserable two years, but it had a happy ending in April 2010 when the BCA dropped its case against me – in short, I feel that the last two years have vindicated both myself and my criticism of chiropractors. You can find out more about the case on the web, as there was lots of news coverage, such as this article:
http://www.guardian.co.uk/science/2010/apr/15/simon-singh-libel-case-dropped

My case is over, but other science journalists, scientists and journals are still being sued for libel or being threatened with libel, so the case for libel reform continues. English libel law is incredibly hostile to free speech, and the phenomenon of libel tourism means that it can be used to silence critics and crush scientific debate around the world. The good news is that the UK Government is listening to public opinion and is publishing a draft libel reform bill in March 2011. To make sure that the bill delivers proper reform, it is important that we maintain the pressure for reform. Please sign the petition for libel reform and encourage your friends to do the same:
http://www.libelreform.org/sign

2. Future newsletters and twitter

Now that the case is over and my life is returning to normal, I will probably send out a newsletter three or four times a year, but my main means of making announcements and pointing to interesting things has become twitter. Please follow me on twitter if you want the latest news, etc. My twitter ID is @slsingh

3. Uncaged Monkey Tour

The magnificent Robin Ince is masterminding a touring show featuring geeks such as Ben Goldacre, Brian Cox and myself. There will be other geeks and comedians joining us in what Robin promises will be a mix of “intelligent comedy and comedic intelligence”. We are covering England, Scotland and Wales, and we should reach over 15,000 people in two weeks. You will find a full list of dates and venues here: http://www.badscience.net/2010/12/im-doing-this-awesome-massive-nerd-tour/

4. Skeptics in the Pub

If you cannot make it to the Uncaged Monkey Tour, then do support your local geeks by visiting one the many Skeptics in the Pub venues. The London SitP, which was revitalized by the brilliant Sid Rodrigues, regularly attracts over 200 skeptics/rationalists/geeks/etc, and there are similar events up and down the UK and around the world.
http://skeptic.org.uk/events/skeptics-in-the-pub

In 2010, I spoke at roughly 10 SitP events, and I enjoyed every one of them. Thanks to everyone who organized them, attended them and contributed to the discussion.

5. Overseas books

I have some signed overseas translations of my books (Catalan, Japanese, Serbian), which I am keen to find a good home for in return for a small donation to the libel reform campaign. You can find details at:
http://slsingh.posterous.com/translations-of-my-books-to-raise-money-for-t

6. Old Competition Winner

Last time I explained that my physics teacher played a trick on the class. He rolled a transparent rod over two words. Each word spelt out a colour and was printed in that colour. The first word was apparently flipped when seen through the rod, but the other word was not. The teacher said that this was due to the difference in colours and the way that various wavelengths are refracted. In fact, it was nothing to do with refraction. The key point was that the letters in one of the colours were all symmetrical along the horizontal axis. I asked you to find that colour.

Annoyingly, I cannot remember the symmetrical colour and I am now questioning my recollection of the whole episode, because nobody sent in a truly satisfactory answer. The best answer (in my opinion) was BEECH sent in by Brian Suda from Iceland, who received a signed copy of “Afterglow of Creation” by Marcus Chown.

8. New Puzzle Competition

A personal highlight of 2010 was that one of my books made a cameo appearance in two different TV detective shows on opposite sides of the planet. Can you name the book and both TV shows? This might be an absurdly tricky question, so you might win even if you can name just one of the TV shows.

Please send your answer to competition -AT- simonsingh DOT net – put your answer in the subject header and your address in the body of the email. The closing date for entries is midday on Jan 7. The winner (picked at random from the inbox) will receive a copy of An Ocean of Air by Gabrielle Walker (A Natural History of the Atmosphere).

Cheerio and, remember, please sign up to www.libelreform.org/sign – and if you would like to donate to the campaign for libel reform then you might consider purchasing the 2011 Geek Calendar, which has already raised £15,000 for the campaign.
http://www.telegraph.co.uk/science/picture-galleries/8076285/The-Geek-Calendar-2011.html?image=4 – me and Hari in the calendar
http://geekcalendar.co.uk/p/buy-geek-calendar.html – buy here

Simon.

Originally posted on slsingh’s posterous