News: El Naschie v MacMillan – science on trial? – Gervase de Wilde
Egyptian academic Mohamed El Naschie’s libel claim against prominent scientific journal Nature continues in the High Court in London this week. Nature and their publishers Macmillan are represented by Andrew Caldecott QC and Aidan Eardley of One Brick Court, while El Naschie is a litigant in person.
The Claimant was editor-in-chief and founder of Chaos, Solitons and Fractals (‘CSF’), which is a journal “in the interdisciplinary field of Nonlinear Science, and Nonequilibrium and Complex Phenomena” and is published by Elsevier, the dominant force in the publication of scientific journals.
In 2008, after his retirement as editor-in-chief, the Defendants published a story about his departure written by Quirin Schiermeier under the headline “Self-publishing editor set to retire“. The article alleged that the Claimant had published his own research papers in CSF without subjecting them to the process of peer review which plays a vital part in establishing the robustness and credibility of academic work. It also referred to affiliations and honorary professorships claimed by the Claimant which the writer was unable to verify.
The interim judgment
The problems which can arise from a claimant representing themselves in the context of a complex High Court action are highlighted in an interim judgment ( EWHC 1468 (QB)) handed down by Eady J on June 10 2011 in response to a number of applications by the Defendants. These were made in an attempt to narrow the number of issues in the case (both in the pleadings and in witness statements), and to resolve problems surrounding inadequate disclosure of documents on the part of the Claimant.
Much of the evidence introduced in the Claimant’s amended pleadings which the Defendants sought to exclude related to what he referred to in the course of the hearing as “a form of conspiracy” involving the Defendants and others. This appears to have largely revolved around what the Claimant referred to as “the despicable blog” El Naschie Watch [O_o], whose author is highly critical of him. The judge agreed with the Defendants’ submission that the blog has no true relevance to the issues in the case; further allegations made in highly colourful terms connecting the blog to the Defendant publisher via a journalist at German newspaper Die Ziet (who had also written about the Claimant) were also dismissed as irrelevant.
A number of restrictions applied for by the Defendants in relation to the Claimant’s witness statements were also granted by Eady J. In particular he excluded references to a range of publications in print and online republishing the material in the Nature article, which the Claimant introduced for the purpose of aggravating damages. On this point, the judge referred to Clarke v Bain  EWHC 2636, a decision relied on by the Defendants for their submission that it would be disproportionate for them to have to deal with these further publications where some had not even been clearly identified. In Clarke, Tugendhat J considered, in relation to further publications, whether
“the cost of pleading, proving and contesting the allegations…could be proportionate to any benefit that the Claimant could expect to obtain if he were to succeed in establishing his case.”
He balanced this consideration against the detriment to the parties and the public of continuing proceedings. Eady J accordingly excluded the references to these further publications on the grounds of proportionality, along with eight other topics raised by the Claimant’s witness statements.
The Claimant was refused an application for another adjournment and, from these inauspicious beginnings, started his action in the High Court before Sharp J on Friday, 11 November 2011. Both sides have adduced expert evidence, although the Claimant was described at the interim stage as being
“somewhat dismissive of the relevance of expert evidence in this case, largely on the basis that his field of special scientific knowledge is so narrow and fluid that it is difficult for him to conceive of anyone qualifying as having sufficient “expert” knowledge of the field”
As reported in The Guardian, the Defendants called Professor Neil Turok, a cosmologist and director of the Perimeter Institute in Canada, who described himself as applying unified theories to “the most difficult questions in cosmology”, to assess the value of the Claimant’s work. Turok questioned the logic and clarity of presentation of some of the Claimant’s ideas and, in response, the Claimant said that even Albert Einstein had made mistakes in his publications:
“Einstein is the most sloppy scientist ever. He never defined his quantities, he doesn’t put in references and he made so many mistakes of mathematics and concepts.”
He went on to accuse Turok of having “no idea” about mathematics and of lacking the qualifications necessary to assess his work. His cross-examination had to be kept on track by Sharp J who reminded him that the question and answer format did not allow for long statements on his part.
Earlier in the week, as reported in New Scientist, the Claimant also had the opportunity to cross-examine Schiermeier, who stood by the content of the 2008 article, saying
“We wrote the article because you published 58 papers in one year in a journal where you acted as editor-in-chief. That is unusual and potentially unethical.”
The Claimant responded that it was not unheard of for journals to publish non peer-reviewed work (a point which is discussed at some length on this Economics forum, with reference to the case). The Claimant explained that he feared theft, saying
“We published my work to secure it. Senior people are above this childish, vain practice of peer review.”
The case seems to offer ammunition to libel reformers. Even in the absence of the ill-advised and incoherent aspects of his case which were excluded before trial, and of the implicit comparisons of his work to Einstein’s made during the first five days at the High Court, his claim against a venerable and highly respected scientific journal seems a poor substitute for meeting their allegations head on in some form of correspondence or public debate. Moreover, the journal had published the Claimant’s own defence of his methods in running CSF, that he sought to emphasise scientific content above impressive affiliations, in the original article.
A spokesperson for the Libel Reform campaign, speaking to the Guardian, commented that reform can’t come soon enough, since
“Scientists expect publications like Nature to investigate and write about controversies within the scientific community. The threat of libel action is preventing scientific journals from discussing what is good and bad science.”
However, the public interest defence argued for by campaigners is one which is already being employed. The BBC reports that Andrew Caldecott QC’s opening statement for the Defendants described their defence as relying on the article being “true, honest opinion and responsible journalism on an issue of public interest”.
As the choice of witnesses indicates, the case does touch on the seemingly incomprehensible branch of physics in which the Claimant has made his academic career. In this respect there is a threat of a libel action stifling academic debate, and a similarity to BCA v Singh 2010 EWCA Civ 350, where opinions expressed in a controversy on what was essentially a scientific matter were at issue. But it is also about the methods he employed in running a publication in the context of a widely recognised system of accreditation and review, and about allegations regarding the professional affiliations which feature on his website. These are the kind of criticisms that might be made about any professional person, and would not necessarily come under scope of a scientific exception for “rigorous debate” on good and bad science urged by campaigners.
Gervase de Wilde is a former journalist at the Daily Telegraph and a student barrister.