Thursday, 21 April 2011

Bowker & Bowker v Royal Society for the Protection of Birds [2011] EWHC 737 (QB): scientific grousing

Fun little case, this one, although not for the parties concerned, obviously.  But an early example of the Court following the principles laid down in the British Chiropractic Association claim against Simon Singh, which collapsed amidst much chiropractic angst and scientific rejoicing.

One of the playing-to-the-gallery points in that case was that scientific method was not something suitable for libel law.  Which is fair enough insofar as it goes; scientists will disagree on things and that doesn’t mean one is dissing the other.  Nevertheless that was something of a side-point, in that it wasn’t the dissing that the BCA complained about, it was the imputation that the BCA knew its members were pushing bogus treatments and was content to let that happen.

The Bowker case was slightly different.  In that it pitched scientist against scientist – and this time the allegations included a direct criticism of scientific method.  Calling a scientist’s methods incompetent and almost criminal would obviously be defamatory; impugning someone’s profession.  In this case, the husband-and-wife ptarmigan consultancy firm run studied the population of black grouse in an RSPB reserve and concluded that something was going very wrong, the grouse were dying off.  They had a paper on the subject published in a scientific journal.  The RSPB had to defend its own conservation techniques, and three of its staff compiled a critique of the article, sent it to those inside the RSPB who might have had to deal with the fall-out, and also to the journal itself.  Essentially the RSPB seemed to think it wasn’t the RSPB that was killing off its grouse, but the Bowkers…

Apparently the black grouse is a somewhat sensitive species – not surprising, given the be-tweeded Scots blasting seven shades out of them every August – and does not respond well to being tagged, or handled as a chick.  Which is what the Bowkers had been doing.  The RSPB’s people thought that this may – their emphasis – have had a deleterious affect on numbers and was an untried, untested method of census-ing black grouse.  The RSPB had evidently done its legal homework; the email was marked not for external circulation.

Nevertheless the Bowkers got a copy of the rebuttal via a co-author of the article.  Stung at being accused of following untested methods, they sued the RSPB.  The RSPB countered with a powerful defence; leaving aside the truth, the RSPB said its critique was covered by qualified privilege.  I.e. the RSPB had a right to defend itself, and those who read the RSPB’s grouse paper were those who had an interest in knowing the other side of the story.  If it could nail this, the Bowkers could only win if they showed the RSPB was being malicious.

In the end the RSPB issued a summary judgment application.  Why wait for trial?  There was an obvious win here.  The judge agreed.  The Bowkers claimed the RSPB’s criticisms had been circulated more widely, but couldn’t provide any evidence; those who told them they had seen the paper would not give evidence, for fear of the avian mafia.  Besides which, the Court considered that the RSPB was pitting science against science.  Accusing a technique of being untried was hardly defamatory, every technique that has ever been used was untried once.  That in itself is enough for a win, but the judge went further.  The Bowkers could not show malice; although that’s normally a matter for trial, the judge thought about what evidence could be available, and concluded that, realistically, there wasn’t any and could never be any.  The words themselves were measured and precise, they were based on true facts, the Bowkers had to show the malice and in the three years since the dispute got under way they had not found any evidence of it themselves.

So a quick strike-out from the judge.  Although the real fun in the case isn’t so much the facts, the in-depth investigation of grouse handling, the searches on email archive that the RSPB undertook or anything else.  It was the choice of solicitors for the RSPB.  I don’t know whether it was influenced by the firm’s excellent reputation, or whether there was a client relationship existing, or it picked the name out of the list like a granny choosing her Grand National horse; whatever the reason, it’s surely fitting that the RSPB was represented by Bird & Bird.  

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