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White v Southampton University Hospitals NHS Trust & Professor William Roche, High Court, 1 April 2011

8 April 2011
The issues

Libel – disclosure – fitness to practice

The facts

The Claimant sued the Trust and Professor William Roche for libel. The claim arose out of the publication of a letter by the Defendants to the Fitness to Practice Directorate of the General Medical Council in March 2009. The Claimant also relied upon a letter dated 23rd February 2009 from Professor Roche to Dr Pascual, who was the Medical Director of the Lymington New Forest Hospital.

In March 2011 the Master directed that the Claimant’s claim be struck out and Summary Judgment entered against her and in addition that the Claimant be prohibited from using the Lymington reference in these proceedings on the basis that she had originally obtained by way of disclosure in the course of Employment Tribunal proceedings she had brought against the First Defendant.

Permission to Appeal was given from that decision in January 2011.

The decision

The GMC letter
The Master had found that the GMC letter was the subject of absolute privilege pursuant to Professor Roche’s duty to report a doctor to the GMC if he had serious concerns that a doctor’s conduct, judgment or ability was a potential threat to patient safety. The letter written by Dr Roche dealt with five separate issues and contained nothing extraneous, that is to say nothing not germane to the legitimate purpose to which the law for reasons of public policy afforded the protection of privilege. In a decision of the Employment Appeal Tribunal dated April 2008 Ahari v Birmingham Hartlands and Solihull Hospitals NHS Trust, the Court had specifically addressed the question of whether the Fitness to Practice panel was to be classified as a quasi judicial body. First it was recognised by law; its powers and procedures were governed by the Medical Act 1983 and the General Medical Council (Fitness to Practice) Rules. The nature of the issue, ie whether or not the doctor concerned was fit to practice, was akin to a civil issue between adversarial parties before the Courts. Its rules embodied a procedure to that applying in the Court of law. Its findings would generally provide a binding determination of the parties rights. Accordingly all the criteria of the Trapp v Mackie test were fulfilled and the Tribunal held the Fitness to Practice panel to be a quasi judicial body and that its proceedings were therefore protected by absolute immunity. The Master had been right to conclude that Professor Roche was bound to succeed in respect of immunity from suit relevant to the GMC letter.

The Lymington Reference
This came into the Claimant’s possession through the process of disclosure in her Employment Tribunal proceedings. The issue had to be considered in the light of CPR 31.22 :- namely, a party to whom a document had been disclosed might use that document only for the purposes of the proceedings in which it was disclosed, except where the document had been read to or by the Court or referred to at a Hearing which had been held in public or where the Court gave permission or where the parties agreed. Even so, the Court might make an Order restricting or prohibiting the use of the document which had been disclosed. In this case the Court would assume that the Lymington reference had been referred to at a Hearing to which there was public access. Even so the Court had a discretion to restrict or prohibit the use of it. The Master had exercised a discretion in this context.

In applying the provisions of CPR 31.22 had to consider the competing rights under the European Convention of Human Rights. It was well established that it was for the Court to carry out a balancing exercise in the light of an “intense focus” on the facts of the particular case. Following the decision in Harman v Secretary of State for the Home Department in 1983, the European Court of Human Rights concludes that the domestic rules then operative in relation to the implied undertaking in the context of discovery were not consistent with Article 10 of the convention. The law was therefore changed so that the implied undertaking would no longer apply where the document had been referred to in open Court, unless the Court otherwise ordered.

When exercising the discretion or carrying out the balancing exercise between competing convention rights, the Court would wish to have regard to public policy considerations which underlay the traditional implied undertaking, amongst other matters. The compulsory disclosure of documents in accordance with CPR 31 would almost always involve a prima facie infringement of privacy. Equally, public policy required full disclosure of relevant documentation to be encouraged but it was clearly appropriate to take account of any threat of collateral litigation against a party who disclosed any particular document. It had been recognised in Re: S (A Child) that the Court should not accord automatic priority to any one right over another. It was a question of balancing private and public competing interests.

It was an important factor that the publication in question in this case was not only limited in scope but the subject of qualified privilege. Were the Claimant permitted to sue upon it, she would have the burden of producing evidence that was more consistent with the presence of malice than with its absence. It would not be sufficient for her to make a bear assertion of malice, but would have to set out a case which raised a probability of malice. There was not the slightest evidence of malice on Professor Roche’s part. There was no prospect of showing that he knew that anything he wrote was untrue. The Master had taken all these factors into consideration in the exercise of his discretion and observed rightly that findings of malice were very rare.

Appeal dismissed in both respects.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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