With friends like these we need no enemiesRichard Treadgold | August 3, 2012
John O’Sullivan expressed interest in our court project against NIWA. But some of his comments describe more hope than fact, possibly through a misunderstanding of NZ law and the nature of our court case, and perhaps my inadequate reporting has contributed to that.
This morning my inbox was filling up with requests to explain and I could sense some people becoming distinctly over-stimulated by the imaginary achievements of the brave Kiwi sceptics.
The problem is that the judge hasn’t even made his decision, which my recent posts have made clear. We run a distinct risk of contempt of court if we appear to endorse the wild claims about the state of the case, of legal moves, even of victory, that are beginning to sound around the world.
It’s a shame, for the case contains enough of genuine merit; it can do without being overshadowed by needless exaggeration.
In an attempt to calm emotions, I’ve left a comment at John’s blog which addresses the core misapprehensions that John expresses. Please bring this to the attention of anyone else who misunderstands the state of the case. I’m sorry for any inconvenience this has caused.
Below, I slightly expand some of the comments I made at John’s blog. His original post is quoted in green.
John, it’s been tremendous to have your interest and get your support for the work we’re doing here in New Zealand. But let me try to correct some of your assertions before the blogosphere goes completely out of control. You’ve taken a couple of points a bit too far, perhaps from a misunderstanding of NZ law and the actual case we’ve brought against NIWA.
[My points in square brackets] apply to the single immediately preceding sentence.
New Zealand skeptics of man-made global warming score historic legal victory as discredited government climate scientists perform U-turn and refuse to allow a third party peer-review report of official temperature adjustments to be shown in court. Skeptic lawyers move for sanctions likely to prove fatal to government’s case.
[Incorrect. The application for judicial review is an attempt to persuade the judge to take a look at what NIWA has done in producing the temperature record. If he does, he is at liberty to make any ruling that seems just. We (the "sceptics") haven't asked for any particular sanctions.]
New Zealand’s National Institute of Water and Atmospheric Research (NIWA) are reeling after what may prove a fatally embarrassing admission that it is breaking a solemn undertaking given to parliament. NIWA had assured ministers that it would disclose a third party peer-reviewed report of its science for courtroom verification as part of its defense against a petition in the case of NZ Skeptics-v-NIWA.
[NIWA said only that it would obtain a peer review from the Bureau, not that it would disclose the review, and it didn't mention the court case to the Parliament.]
NIWA’s decision renders an almighty self-inflicted wound to the government agency’s already dire credibility. But worse, the move will be regarded as contempt of court and thus permits the court to grant the plaintiff’s motions for punitive sanctions, including summary judgment.
[Incorrect. No argument was put forward for "punitive sanctions".]
As such, this would bring a swift victory for skeptics with profound legal ramifications around the world. In the sparsely-measured southern hemisphere the New Zealand climate data is critical to claims about a verified global temperature record.
Last year NIWA gave an undertaking to the Kiwi Parliament that it would permit external peer-review by scientists from Australia’s Bureau of Meteorology (BoM). This evidence was to be presented to the court to help resolve a drawn out legal battle to prove whether or not NIWA had cooked the country’s climate books.
[The peer review and our application for judicial review are not connected. It was never announced that the peer review would be presented to the Court.]
Lawyers for the jubilant skeptics are to motion for an adverse inference against the defendants on the grounds that they intentionally have “spoliated” the evidence (spoliation is the withholding/destroying of evidence).
[Incorrect. The "adverse inference" was mentioned by NZCSET counsel: "This claim has no credibility, and I invite the Court to draw an adverse inference from NIWA’s obstructive behaviour. The obvious inference is that the BoM found NIWA’s unprecedented methodology to be fatally flawed." There's no further legal action planned. Does the concept of spoliation apply in NZ law? Maybe that's what our counsel meant in inviting an adverse inference.]
As with the Kiwi case, over in Canada Tim Ball is having a hard time getting his court adversaries to be forthcoming in releasing their hidden data and records. As in any common law jurisdiction, when a litigant refuses to comply with the opposing party’s motions for disclosure then spoliation doctrine comes into play. Persistent refusal by any party in a lawsuit to hand over evidence on request renders them liable to severe sanctions. As with his Kiwi counterparts Ball will be hoping to win the adverse inference.
[Does not apply to the NZ case.]
If granted in these cases the jury will be directed to rule that the party withholding the evidence has done so “from a consciousness of guilt.” In other words, the juries will be directed to rule that climatologists refused to disclose the evidence because to do so would prove they intentionally falsified the climate records to get a predetermined outcome.
A jubilant Richard Treadgold, one of the skeptics involved in the case writes: ”This boils down to a confession to the Court that NIWA has no evidence to show that the BoM approves of NIWA’s review. NIWA does not even bother to present the ineffectual BoM covering letter at page 15 of the Review, for it expresses no approval of the report – though NIWA claims it does.”
But why is this victory in New Zealand so important in the world context?
[No victory in New Zealand is possible until the judge's decision has been made.]
The skeptics took their case to court and the protracted proceedings culminated in a compromise whereby NIWA agreed to allow only scientists from Australia’s Bureau of Meteorology (BoM) to “peer-review” their data in secret. CCG agreed to abide by the BOM findings and have them put before the court.
[Incorrect. The CCG took no part in the court case; there was no agreement or undertaking to bring the peer review before the court. The peer review and the court case are unconnected.]
But the courtroom farce deepened last month (July, 2012) when, at the eleventh hour, NIWA desperately opposed the admissibility of the BOM review they had asked for.
[Incorrect. There was nothing to oppose, as it was up to NIWA to use it or not.]
I hope this helps return some balance to the affair.