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White v Southampton University Hospitals NHS Trust and Roche [2011] EWHC 825 (QB)

Case date: 01/04/2011

Court: High Court

Area/s of law: Libel

Barrister/s: Jane Phillips

Facts

The Claimant was a trainee doctor working for Southampton University Hospitals NHS Trust. She sued her former employer and its former Medical Director for libel in respect of two publications, a letter to the GMC’s Fitness to Practice Panel (the “GMC Letter”) and an employment reference to Lymington New Forest Hospital (the “Lymington Reference”).

At the hearing before the Master, the Defendant was granted summary judgment in respect of the claim concerning the GMC Letter, as the letter was protected by absolute privilege. The Master also ruled that the Claimant should be barred from bringing libel proceedings based on the Lymington Reference under the provisions of CPR r.31.22(2) as she had only learnt about it through disclosure in separate proceedings she was bringing in the Employment Tribunal.

The Claimant appealed the Master’s judgment in respect of both the GMC Letter and the Lymington Reference.

Decision

Mr Justice Eady dismissed the Claimant’s appeal in relation to both publications.

The judge reiterated the public policy rationale behind the defence of absolute privilege. The aim was to allow people to speak freely, without inhibition or fear of being sued, when they made a complaint to the proper regulatory or investigatory body. It was crucial that a complainant in such a situation was able to know at the outset whether he was protected from a libel claim, because otherwise the policy would be undermined if he thought he might be obliged to resist a plea of malice made by a potential claimant.

In this case, the Medical Director of Southampton University Hospital Trust had stated that he felt a duty, set out in GMC guidelines, to inform other organisations such as the GMC if he had concerns about a doctor’s ability to practice which might constitute a potential threat to patient safety.

The test for determining whether a complaint to a tribunal was protected by absolute privilege was whether the tribunal was one which was recognised by law, as opposed to merely a domestic tribunal which derived its authority from consent. The rationale for this distinction was that where a tribunal was recognised by law, it showed that there was a public interest in the matter to be determined by the tribunal.

Concurring with the decision of the Employment Appeal Tribunal in Ahari v Birmingham Heartlands and Solihull Hospitals NHS Trust (dated 1 April 2008), Mr Justice Eady decided that the Fitness to Practice Panel of the GMC was a quasi-judicial body and therefore was covered by absolute privilege. It was a tribunal recognised by law as its procedures were governed by statute, had rules and procedures akin to those applying in a court, had an adversarial approach to its proceedings, and its findings were determinative of an individual’s rights. A letter raising concerns about a doctor which was sent to the Fitness to Practice Panel of the GMC would be covered by absolute privilege; therefore the Defendant’s application for summary judgment was bound to succeed.

Mr Justice Eady also upheld the Master’s judgment not to allow a claim for libel in respect of the Lymington Reference. This was a matter on which the Master had exercised his discretion under CPR r31.22(2). Therefore an appeal would only be successful “where the judge at first instance had exceeded the generous ambit within which a reasonable discretion is possible” G v G (Minors: Custody Appeal) [1985] 1 WLR 647 applied.

The issue for the court was to balance the competing rights of the Claimant and the Defendants under the ECHR without any presumption in favour of one set of rights over the other.

In this case, the publication of the Lymington Reference was not only limited in scope, but as an employment reference it was also protected by qualified privilege. To succeed therefore in a libel claim, the Claimant would have to prove malice. Here there was not the slightest evidence of malice on the part of the Defendants. Moreover, the Claimant only complained of one sentence in the Lymington Reference. It was difficult to see how the Claimant could properly vindicate her reputation when she did not complain about other elements of the reference.

Nor was it relevant that the Claimant might have been able to procure the Lymington Reference by other means, for example by way of a subject access request under the Data Protection Act 1998. The document had been obtained through disclosure, and therefore CPR r.31.22, which applies to documents disclosed during the course of litigation, was engaged. The judge concluded that the Defendants’ rights under Article 10 “not to be vexed with unmeritorious and futile litigation over a confidential document disclosed under compulsion of law” outweighed the rights of the Claimant. The decision of the Master was therefore not only within the range of reasonable options available to him, it was in fact entirely correct.

Comment

This clear restatement of the principles behind the defence of absolute privilege is likely to be welcomed by professional regulators. Bodies such as the GMC and the Solicitors Regulations Authority rely on complaints by consumers and members alike to ensure that they can properly regulate their members and thereby uphold public confidence in their profession.

The significance of public policy to absolute privilege is emphasised by the recognition that while some malicious complainants may escape liability as a result of the defence, the balance of the public interest lies in upholding the principle so as to protect the majority of well-meaning complainants from potentially vexatious litigation.

The decision to prevent documents disclosed in the Employment Tribunal being used to bring a libel claim is also significant, and has a similar public policy rationale, namely that parties to litigation should not be inhibited from giving disclosure of documents, which involves an infringement of their privacy, out of a fear that they will then be threatened with collateral litigation resulting from that disclosure. In such situations, the courts will weigh up the competing rights of the parties before deciding whether it is proper that separate litigation should be allowed to commence from the fruits of that disclosure.

Jane Phillips, instructed by Beachcroft, was counsel for the Defendants.

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