The Honourable Mr Justice Nicklin:
- This is a libel and malicious falsehood action. The Claimant is a practising osteopath, registered colonic hydrotherapist and acupuncturist. He has lived in Jersey since 1977. He practises in Jersey and Guernsey and has recently opened a practice in Cornwall.
- The First to Fourth Defendants are also resident in Jersey. They are said to be employees of the Fifth Defendant, which in turn is alleged to be vicariously liable for their actions. It does not matter for present purposes, but the First to Fourth Defendants have submitted that their employer is the States of Jersey Employment Board not the States of Jersey. If correct, that is something that would be capable of being corrected by amendment.
- The First Defendant, Lorraine Wells, is employed as a Clinical Team Leader at Jersey Adult Mental Health Services. The Second to Fourth Defendants all work for Jersey Health and Social Services. The Second Defendant, Mary Campfield, is a Team Manager in the Safeguarding Agency, the Third Defendant, Dr Gavin Hendricks, is a Consultant Psychiatrist and the Fourth Defendant, Dr Susan Turnbull, is the Medical Officer for Health, which I am told is the equivalent in Jersey of the UK's Chief Medical Officer.
- I will need to go into more detail, but in summary, the Claimant complains that the Defendants have published libels (or malicious falsehoods) about him from on or around 26 June 2016 concerning his treatment of Patient A.[1] The principal complaint is that the Defendants sent communications to the Claimant's regulator, the General Osteopathic Council ("GOC") which defamed him.
- It is common ground that, as the Defendants reside in Jersey, the Claimant required the Court's permission to serve the Claim Form upon them. On 15 May 2017, the same day that he issued the Claim Form, the Claimant made an application and was granted that permission by the Master. As is usual, the application was made without notice to the Defendants.
- The Defendants contend that permission should not have been granted by the Master. By Application Notice issued on 21 June 2017, they seek to set aside the permission granted to the Claimant to serve the Claim Form on them in Jersey. They contend: (a) that insofar as the Claimant's Particulars of Claim contain claims relating to alleged publications outside England & Wales, inclusion of such claims is not permitted where permission to serve the Claim Form out of the jurisdiction is required; (b) that the Claimant's claims relating to alleged publications to the GOC are all protected by absolute (or at the very least, qualified) privilege and that these claims have no real prospect of success; and (c) that Jersey, not England & Wales, is plainly the most appropriate place for the Claimant to bring his claims.
- The issue to be determined at this hearing is therefore whether the grant of permission should be set aside. The Master directed that the application be heard by a Judge.
- This judgment deals, necessarily, with allegations about the professional conduct or competence of the Claimant. In fairness to him, it is important that I record at the outset that they are allegations. The Claimant has not yet had an opportunity to answer those charges. If he is to face charges before the GOC, then he will have the opportunity to defend himself in those proceedings. In the meantime, the Claimant, like everyone else facing charges of wrong-doing, is entitled to the presumption of innocence.
- Before turning to the detail of the claims advanced by the Claimant in the Particulars of Claim, I should set out some of the relevant legal framework.
Relevant Law on Jurisdiction
Publication in the torts of defamation and malicious falsehood
- In defamation claims, the tort is committed by publishing words that are defamatory of the claimant to a third party. Publication takes place where the statement complained of is heard or read by the publishee: Bata –v- Bata [1948] WN 366. The same principle applies to the publication element that is required in malicious falsehood, albeit that the claimant is additionally required to prove the falsity of the statement complained of, that it was published maliciously by the defendant and that it causes special damage. A claimant can be relieved of the requirement to prove special damage if the claim falls within s.3 Defamation Act 1952.
Service Out
- To obtain the Court's permission to serve a claim form out of the jurisdiction under CPR Part 6.36, a Claimant must demonstrate that at least one of the grounds set out in Paragraph 3.1 of Practice Direction 6B applies. The Court will not give permission unless satisfied that England & Wales is the proper place in which to bring the claim.
- If permission to serve out is granted in a defamation or malicious falsehood claim, the claimant must limit his claim to alleged publications within England & Wales: Berezovsky –v- Michaels [2000] 1 WLR 1004, 1032 per Lord Hope citing with approval Diamond –v- Sutton (1866) LR 1 Ex 130. The justification for this rule is that it is the alleged publication in England & Wales by the defendant that justifies the English Court in exercising jurisdiction over him in relation to that publication. It is abusive for a claimant who has obtained jurisdiction over a foreign-domiciled defendant on that basis then to subject him to claims for foreign publication(s) for which the Court would not otherwise have accepted jurisdiction.
- In support of his application before the Master, the Claimant relied upon the following to justify the grant of permission to serve out:
General Grounds
(3) A claim is made against a person ("the defendant") on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and
(a) there is between the claimant and defendant a real issue which it is reasonable for the court to try; and
(b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim
(4A) A claim is made against the defendant in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts
Claims in tort
(9) A claim is made in tort where –
(a) damage was sustained or will be sustained, within the jurisdiction
(b) damage which has been or will be sustained results from an act committed or likely to be committed, within the jurisdiction.
- Reliance upon Ground (3) was misplaced. Ground (3) applies to a situation where there are two or more defendants, at least one of whom is properly served with the claim form without needing permission to serve out ("the anchor defendant"). If the claimant can satisfy (b), then the Court can grant permission to serve the Claim Form on the other co-defendant(s) out of the jurisdiction (see discussion in the White Book §6HJ.6). In the current case, none of the current Defendants could have been served with the Claim Form without the Court granting permission to serve out; they are all domiciled in Jersey. There was therefore no "anchor" Defendant upon whom the Claimant could rely to justify service out on the other Defendants.
- On the particular facts of this case, Ground (4A) adds nothing. As made clear in the White Book (§6HJ.12):
"… [t]he object of this head of jurisdiction is to make it possible for the court to give permission for the service out of the jurisdiction of a claim form making a claim ancillary to the claim made against the defendant under one or more of the head of jurisdiction created by the subparagraphs enumerated where that ancillary claim itself does not fall within any of the heads of jurisdiction in para 3.1." (emphasis added)
Such claims as the Claimant is making concerning the publication of alleged libels or malicious falsehoods in England & Wales are not ancillary to other claims; they are claims for tort that (if well-founded) will fall under Ground (9).
- The only viable basis on which the Court could grant permission to serve out in this case is Ground (9).
- A claimant seeking permission to serve out has to satisfy two initial requirements:
i) the claimant must show that in relation to the foreign defendant there is a serious issue to be tried on the merits; the test is the same as for summary judgment, namely whether the claim has a real prospect of success; and
ii) the claimant must show that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given (i.e. falls within one of the Paragraph 3.1 Grounds in Practice Direction 6B).
- Altimo Holdings and Investment Ltd –v- Kyrgz Mobil Tel Ltd [2012] 1 WLR 1084 [71]
- If the Claimant can satisfy these requirements, the Court may grant permission to serve out in the exercise of its discretion. Distilling from the authorities of Altimo Holdings [88] and Ahuja –v- Politika Novine I Magazini DOO [2016] 1 WLR 1414 [21]-[24], the factors the Court takes into account when deciding whether to exercise this discretion will include the following.
i) The task of the Court is to identify the forum in which the case can be suitably tried for the interests of all parties and for the ends of justice.
ii) The burden is on the claimant to persuade the Court that England & Wales is clearly the appropriate forum.
iii) Where the claim is time-barred in the foreign jurisdiction and the claimant's claim would undoubtedly be defeated if it were brought there, practical justice should be done, so that if the claimant acted reasonably in commencing proceedings in England & Wales, and did not act unreasonably in not commencing proceedings in the foreign country, it may not be just to deprive the claimant of the benefit of the English proceedings.
iv) The Court should consider what is the natural forum for the pursuit of the claims, in the sense of being the jurisdiction with which the claims have their most real and substantial connection: Spiliada Maritime Corpn –v- Cansulex Ltd [1987] AC 460, 478.
v) The jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute: Berezovsky 1013D and 1014E.
vi) Where there is an issue as to whether there could be a fair trial in another jurisdiction, depending upon the circumstances as a whole, the claimant must show that there is a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption: Altimo Holdings [95]. However, the Court will be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court, and cogent evidence is required before the Court will make such a finding.
vii) In tort claims, it is enough that some significant damage has been sustained in England & Wales. The Court has to ask whether damage has resulted from substantial and efficacious acts committed in England & Wales regardless (save where s.9 Defamation Act 2013 applies) of whether or not such acts have also been committed elsewhere. But as Lord Hope said in Berezovsky, 1032:
"In a defamation case the judge is not required to disregard evidence that publication has taken place elsewhere as well as in England. On the contrary, this feature of the case, if present, will always be a relevant factor. The weight to be given to it will vary from case to case, having regard to the [claimant's] connection with this country in which he wishes to raise his action… Common sense suggests that the more tenuous the connection with this country the harder it will be for the claim to survive the application of this rule"
- In defamation actions, there is a further consideration. s.9 Defamation Act 2013 provides:
(1) This section applies to an action for defamation against a person who is not domiciled:
a. in the United Kingdom;
b. in another Member State, or
c. in a state which is for the time being a contracting party to the Lugano Convention.
(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England & Wales is clearly the most appropriate place in which to bring an action in respect of the statement.
(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.
- Again, it is common ground that the Defendants are not domiciled in any of the places identified in s.9(1). Therefore, the Court does not have jurisdiction to hear and determine the Claimant's defamation claim unless satisfied that, of all the places where the "statement complained of" (as defined in s.9(3)) has been published, "England & Wales is clearly the most appropriate place to bring an action in respect of the statement".
- Where it applies, the effect of s.9 is subtly to change the test for libel claims. With other torts, and specifically in relation to the current proceedings, malicious falsehood, a claimant only has to show a serious issue to be tried on the merits and a good arguable case that the claim falls within Ground (9) of §3.1 of Practice Direction 6B – see Paragraph 17 above. The question of whether England & Wales is the most appropriate jurisdiction becomes relevant at the discretion stage. In a s.9 case, the Court does not get to the stage of considering whether to grant permission to serve out (and the questions of discretion that would apply to that decision) unless s.9(2) is satisfied. England & Wales has to be "clearly the most appropriate place in which to bring an action" before the English Court can have jurisdiction over the claim. If s.9(2) is satisfied it is perhaps difficult to imagine a case in which it would nevertheless be appropriate to refuse permission to serve out as an exercise of discretion.
Details of the Claim
- The Particulars of Claim were served with the Claim Form. Mr Atkinson, representing the Defendants, contends that they suffer from a number of defects. Rightly, and no doubt recognising that if the claim continues many of these too would likely be capable of being cured by amendment, he has not pressed the many points that could be made.
The Safeguarding Partnership Board Report
- In the Particulars of Claim, the Claimant contends that on or about 26 June 2016, the First Defendant completed a Safeguarding Partnership Board Report relating to Patient A ("the Report"). The Claimant describes Patient A as a "client" of his who had attended his colonic hydrotherapy clinic in St. Helier in Jersey for a course of treatment during 2015-2016. Patient A was a long-term anorexic. Paragraph 5 of the Particulars of Claim gives this narrative and sets out only some of the words from the Report. Given their importance to the libel claim, it is important to set out the actual words from the document itself, which were:
"[A] disclosed during recent admission to [name of place redacted] she was consulting a private alternative doctor (Dr Huda, Meridian Health, Nelson Street, St. Helier) who was performing colonic irrigation approximately fortnightly and prescribing her colon cleansing tablets. Her weight on admission to hospital was below four stone and she was conspicuously thin. Her desire for this procedure was within the complicated context of anorexia nervosa. Discussed with Dr Hendricks and team who believe this risk is further increased by putting the body into shock and could result in cardiac arrest."
Later in the Report in a section headed "Any other information", the First Defendant added:
"This is an unusual case that raises ethical and moral concerns. This lady is deemed to have capacity but often makes informed wrong choices. The wider implication is this practice is being carried out in the face of such high risks as she is conspicuously emaciated and underweight."
The pro forma directs that the Report should be sent to a "Single Point of Referral" and an email address is given for that purpose.
- The Claimant alleges that the Report is defamatory of him and he sets out a large number of meanings that he says the Report bears in its natural and ordinary meaning. Innuendo meanings are also pleaded but no particulars are given of the facts which, if known by the publishee, would convey the alleged defamatory meaning.
- In Paragraph 9 of his Particulars of Claim, the Claimant contends that "in or about August 2016" the First Defendant sent the Report "to a number of people whose identity is not known to the Claimant but including to the General Osteopathic Council of Great Britain". The Claimant contends that the Second Defendant "actively encouraged" the First Defendant to send the Report, and so is also liable for its publication. Although it is contended that the Report was published also to a number of other unidentified people, insofar as that alleges that there was publication to anyone outside the GOC, there is no evidence to support that case; it is purely speculative. That is the pleaded case in relation to publication of the Report.
- At the hearing, however, Mr Stenhouse contended that the Report had, in fact, been sent by the First Defendant to the GOC on 29 June 2016. In support of this, he relied upon an email of 30 June 2016 sent by the First Defendant to the Third Defendant. The Claimant apparently obtained this document after having served a subject access request under the relevant data protection law in Jersey. The copy of the email in the Claimant's possession is heavily redacted. The email is headed "Saeguarding (sic) Alert Form Final.doc". The only sentence not redacted from the email says: "FYI – submitted this end of business yesterday". That is the entirety of the evidence relied upon by Mr Stenhouse to seek to establish publication of the Report to the GOC by the First Defendant on 29 June 2016.
- This is hopeless. At its highest, the email relied upon might raise a question as to whom the Report was sent. The document itself, as I have noted, includes a direction that the form, when completed, is to be sent to a designated email address. It seems much more likely that, when the First Defendant said in her email that she had "submitted" the Report, she was confirming that she had sent it to the designated "single point of referral". Whether that is correct or not, it is plainly an unjustifiable leap to contend that this email shows that the Report was sent to the GOC. Mr Stenhouse submits that the witness statement from the Defendants' solicitor, John Paul Farrell (dated 21 June 2017) does not say in terms that First Defendant did not send the Report to the GOC. From that, he invites me to draw the inference that it was.
- I reject that submission. The Claimant's case that the First Defendant in fact sent the Report to the GOC on 29 June 2016 does not appear in his Particulars of Claim. It was first raised at the hearing and it is therefore not at all surprising that Mr Farrell's witness statement does not deal with that specific allegation. I am quite satisfied, however, that the Defendants, through Mr Farrell's witness statement have given a full and candid account of what was sent to the GOC, by whom and when. The relevant documents have been exhibited. I asked Mr Stenhouse whether the Claimant accepted the account given by Mr Farrell of the Defendants' communications with the GOC. He told me that the Claimant only accepted it where there was supporting documentary evidence. I do not know whether the Claimant has ever asked the GOC whether it received the Report at the end of June 2016, but there is certainly no evidence that it did.
- As I have noted, the claim that the Report was published to the GOC on 29 June 2016 is not pleaded. He would need permission to amend his Particulars of Claim to advance such a claim. Leaving aside the fact that the limitation period for such a publication has expired, I am satisfied that the Claimant has no real prospect of success of demonstrating at any trial that the Report was published to the GOC on 29 June 2016, so any application for permission to amend to rely on this alleged publication would be refused.
Complaint to the GOC
- The pleaded case is that the First Defendant sent the Report to the GOC "in or about August 2016". As appears from Mr Farrell's witness statement, and from the document itself, it was, in fact, the Second Defendant who submitted the complaint to the GOC. She did not send the Report. She completed a form from the GOC headed "Making a complaint" and sent it to the GOC on 24 August 2016 ("the Complaint"). The document bears a date-stamp on the first page of 6 September 2016. I infer that that is the date on which it was received by the GOC. No complaint about publication of the Complaint is made in the Particulars of Claim. It simply appears as part of the background in Paragraph 19 of the Particulars of Claim (see Paragraph 32 below).
Second Defendant's Witness Statement to the GOC
- In December 2016, the Second Defendant provided two witness statements to the GOC. They are both dated 20 December 2016. The second of these statements exhibited the Report.
- In paragraph 19 of the Particulars of Claim, the Claimant pleads:
"The 2nd Defendant sent a witness statement to the GOC dated 20 December 2016. The Claimant believes that this was sent to the GOC by the 2nd Defendant in or about December 2016. Attached to the witness statement was a copy of the Report. The witness statement and attached copy of the Report were sent to the GOC by the 2nd Defendant knowing that the same would be read by various persons within the GOC and would be used against the Claimant by the GOC in October 2016. The said professional misconduct proceedings were actually commenced as a result of a formal written complaint to the GOC made by the 2nd Defendant against the Claimant dated 24 August 2016."
- In paragraph 22 it is pleaded:
"… in sending the Report to the GOC the 2nd Defendant was expressly adopting and republishing the said statements contained within the Report as if they were made by herself. Therefore the Claimant repeats Paragraphs 6(a) to (h) inclusive in relation to the 2nd Defendant".
- Paragraph 6 (which actually had sub-paragraphs running to (i)) sets out the defamatory meanings the Claimant contends the Report bore.
- In Paragraph 23 of the Particulars of Claim the Claimant contends that the publication of the Witness Statement and the Report by the Second Defendant to the GOC was a malicious falsehood.
Alleged public statements by the Third Defendant
- The claim advanced against the Third Defendant in the Particulars of Claim is set out in Paragraphs 25-33. The relevant parts are as follows:
"25. The Report records that the 3rd Defendant made public statements to the effect that the Claimant's colonic hydrotherapy treatment of [Patient A] put her body into shock or created a risk that her body would go into shock and created a risk that [Patient A] would suffer cardiac arrest…
28. The 3rd Defendant made his said public statements at a meeting between him and the 1st Defendant with others present whose identities are not known to the Claimant at this time, on a date which the Claimant believes was in June 2016, and made these statements well knowing that he did not have any medical or empirical or any other evidence to support and confirm the truth of his statements. Nor did the 3rd Defendant make any attempt to verify the truth of his statements prior to making them…
30. The Claimant believes that the 3rd Defendant repeated his statements about the Claimant's treatment of [Patient A] in later meetings after June 2016 at which other persons were also present…
33. Further or in the alternative the statements made by the 3rd Defendant are malicious falsehoods against the Claimant."
- Ignoring issues about the pleading of what are claims for slander, it is plain that the alleged publications (even if they could be proved) took place entirely in Jersey.
The Fourth Defendant's Emails
- Complaint was made about two emails sent by the Fourth Defendant; one on 25 August 2016 and the other on 21 September 2016. Both documents have been exhibited in evidence.
- In paragraph 34 of the Particulars of Claim it is alleged:
"On 25 August 2016 the 4th Defendant sent an email to 8 (eight) named individuals using the email system operated… in which she made the following statement:-
"… Huda… is registered with the General Osteopathic Council (GOC)… As MOH [sc. Minister of Health] I am very concerned that Huda, left unchecked, is quite likely to be risking the health of other vulnerable (gullible) islanders, possibly believing that he has medical credentials."
- In paragraph 35, the Claimant pleads the defamatory meanings that he contends the words of the email bear.
- It is apparent from the copy of the email that it was, in fact, sent only to six people: Andrew Green, Christine Blackwood, Julie Garbutt, Susan Devlin, Rose Naylor and to a private email address apparently belonging to Glenys Johnson. In paragraph 38 of his Witness Statement, Mr Farrell explains the identity of each of the recipients. Mr Green was the Deputy Chief Minister and Minister for Health and Social Services. Mrs Blackwood was the Head of Professional and Care Regulation. Mrs Garbutt was Chief Executive and Ms Naylor was Chief Nurse of Health and Social Services. Ms Devlin was Managing Director of HSS Community and Social Services. Finally, Ms Johnson was Jersey's Independent Safeguarding Chair.
- All of the recipients were either based in Jersey or, in relation to Ms Johnson, had a role based in Jersey. Mr Stenhouse suggested that there was no evidence that they were in Jersey when they read the email. More germane, for present purposes (and reflecting the burden of proof on the issue of publication) the Claimant has no evidence to suggest that any of the recipients was in England or Wales when s/he read the email.
- In paragraph 36 it is alleged:
"On 21 September 2016 the 4th Defendant sent a further email to 3 (three) other people… in which she made the following statement:-
"I share your concern that the GOC (sic) may not have been provided with sufficient information to trigger the serious concerns they ought to have about their continuing registration of this apparently unscrupulous practitioner who is bringing the GOC and its register of Osteopaths into disrepute… I will wade in if need be. In the meantime, given the gravity of what has happened to [Patient A] Huda seems to me quite likely to be placing other vulnerable clients at risk, continuing with the badge of respectability of being a registered osteopath. Much time has already passed since HSS first became aware."
- Paragraph 37 sets out the defamatory meanings the Claimant alleges the words of that email bore.
- Mr Farrell has identified the three recipients of this email: Mrs Blackwood, the Second Defendant and Ms Devlin. These recipients were based in Jersey.
- Publication of each email is alleged also to be a malicious falsehood in paragraph 40 of the Particulars of Claim.
- I asked Mr Stenhouse during the hearing whether he accepted that the principle identified in Berezovsky (see Paragraph 12 above) meant that claims concerning alleged publications in Jersey could not be included in a claim for which permission to serve out was needed. Surprisingly in light of the way matters were pleaded in the Particulars of Claim, Mr Stenhouse told me that the Claimant was not making any claim in relation arising from the publication of these two emails; these paragraphs were said to be "background".
Conclusion about the claims being advanced
- In light of what I have set out, I can state my conclusions about the Claimant's claims:
i) The Claimant's pleaded case that the Report was published to the GOC in August 2016 is factually wrong. For the reasons I have stated, he has no real prospect of success of demonstrating this factual case.
ii) In relation to the alternative case advanced at the hearing, the Claimant has no real prospect of success of demonstrating, as a fact, that the Report was published by the First Defendant to the GOC on 29 June 2016.
iii) The Claimant has pleaded a prima facie case that the Second Defendant published the Report when she attached it to her witness statement and sent that to the GOC.
iv) The unparticularised slander claims against the Third Defendant (even if they could be pleaded properly) took place in Jersey and the rule from Berezovsky (see Paragraph 12 above) means no claim in relation to them can be included in this claim.
v) Likewise, the Claimant has no real prospect of showing that the Fourth Defendant's emails were published to anyone in England & Wales. As such the (now disavowed) claims arising from the publication of those emails would also be caught by the principle from Berezovsky.
- Therefore, the only potentially viable pleaded cause of action is the publication of the Report to the GOC when it was attached to the Second Defendant's witness statement and sent by her to the GOC in late December 2016.
Amendment of the Claim?
- As I have already observed, the witness statement from Mr Farrell sets out exactly what publications have been made by the Defendants to the GOC (and others). The relevant documents have been exhibited. The Claimant has had that witness statement since the end of June 2017. No application to amend the Particulars of Claim has been made. The expiry of the 1-year limitation period in relation to a number of the publications might now prove to be a significant hurdle in the way of any application to amend. Nevertheless, in fairness to the Claimant, I ought to consider whether there remains any further publication in England & Wales that has a real prospect of success.
- The only potential candidate would have been the sending of the Complaint to the GOC by the Second Defendant on or around 24 August 2016, received by (and therefore published to) the GOC apparently on 6 September 2016. The limitation period for this publication has expired, so any application to amend would now have to satisfy CPR Part 17.4.
- The problem for the Claimant both in relation to the existing claim over publication of the Report to the GOC and the potential claim (if CPR Part 17.4 could be overcome) over publication of the Complaint is that the Defendants contend that both of these publications would be protected by absolute privilege or immunity from suit. Very much as a fall-back, Mr Atkinson contends that if not protected by absolute privilege/immunity they are protected by qualified privilege and the Claimant has no real prospect of demonstrating malice in order to defeat the qualified privilege defence. If those submissions are correct, then neither the existing nor the potential claim has any prospect of success and affirming the grant of permission to serve the Claim Form in Jersey would have no point: the Defendants would have an unanswerable claim for summary judgment based on the privilege/immunity defence. I turn therefore to consider these defences.
Absolute Privilege/Immunity from Suit
- Absolute privilege is a concept from the law of defamation. Immunity from suit has general application. Both have their roots (and justification) in the policy consideration that there is an overwhelming public interest that certain types of claims should not be allowed to be brought. Historically, the two strands developed separately.
- Absolute privilege attaches to statements made in the course of judicial proceedings before a court of justice or tribunal exercising equivalent functions.
"The authorities establish beyond all question this: that neither party, witness, counsel, jury nor judge can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies whether against judges, counsel, witnesses, or parties for words spoken in the course of any proceeding before any court recognised by law and this although the words were written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed" (Royal Aquarium –v- Parkinson [1892] 1 QB 431, 451 per Lopes LJ.
- The rule was founded on the public policy that those participating in court proceedings should not be at risk of being sued for defamation.
"The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty… If such actions were allowed, persons performing their duty would be constantly in fear of actions." (Munster –v- Lamb (1883) 11 QBD 588, 607-8 per Fry LJ).
- In order to safeguard this public interest, absolute privilege was extended to cover not only the proceedings in court, but also the preparatory stages.
"The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson –v- M'Ewan [1905] AC 480, in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford –v- White (1914) 30 TLR 591, the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings." (Lincoln –v- Daniels [1962] 1 QB 237, 257-258 per Devlin LJ
Were the privilege not extended in this way, then it would be easily circumvented by suing a witness on a defamatory publication made earlier in the proceedings (e.g. in a witness statement).
- A similar policy consideration has led to absolute privilege (or immunity from suit) being extended to protect publications to organisations or individuals responsible for investigation of complaints. Insofar as the law of defamation had, in the past, afforded only qualified privilege to such complaints (see Shufflebottom –v- Allday (1857) 5 WR 315; Mahon –v- Rahn (No.1) [1998] QB 424, 450 per Otton LJ; and Mahon —v- Rahn (No.2) [2000] 1 WLR 2150 [178] per Brooke LJ), that was overtaken by developments in relation to the principle of immunity from suit.
- The leading case is Taylor –v- Director of the Serious Fraud Office [1999] 2 AC 177. In the Court of Appeal (pp.198-199), Millett LJ doubted whether qualified privilege was sufficient protection for those participating in the administration of justice. The House of Lords (by 4-1 majority) held that the absolute immunity from suit which applied?to judges, advocates and witnesses in respect of statements made in court extended also to out of court statements which could "fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated" (215a per Lord Hoffmann; 221e per Lord Hutton both approving Drake J. in Evans –v- London Hospital Medical College (University of London) [1981] 1 WLR 184, 192c).
- In Mahon –v- Rahn (No.2), the Court of Appeal extended the principle of immunity form suit beyond criminal investigations to those of financial regulators investigating the fitness of a person to conduct investment business ([194]). Brooke LJ expressly left open the question of whether an originating (ex hypothesi, malicious) complaint by a person to a regulator would be protected by absolute privilege ([195]).
- In respect of initial complaints to the police, the Court of Appeal in Westcott –v- Westcott [2009] QB 407 held that they were protected by immunity from suit. Ward LJ doubted the correctness of the authorities suggesting that such complaints only benefited from qualified privilege ([33]).
[34] In my judgment the answer is to be found in the Taylor case [1999] 2 AC 177. That establishes that immunity for out of court statements is not confined to persons who are subsequently called as witnesses. The policy being to enable people to speak freely, without inhibition and without fear of being sued, the person in question must know at the time he speaks whether or not the immunity will attach. Because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make. That applies whether they are informants, investigators, or prosecutors. The answer to the argument that immunity should not give protection to a malicious informer was tellingly given by Lord Simon of Glaisdale in D –v- National Society for the Prevention of Cruelty to Children [1978] AC 171, 233:
"I cannot leave this particular class of relevant evidence withheld from the court [sc. the identity of the informant who gave information of ill treatment of children to the NSPCC] without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public interest lies in generally respecting it."
[35] The test proposed by Drake J in Evans –v- London Hospital Medical College (University of London)… received endorsement from their Lordships in the Taylor case. Thus the question is whether the oral statement made by the defendant and her subsequent written statement can each fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated.
[36] The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. Mr Craig's distinction between instigation and investigation is flawed accordingly. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged."
- Two subsequent first instance decisions have extended this reasoning – and the immunity from suit it provided – to the disciplinary proceedings of regulatory bodies. In Vaidya –v- General Medical Council [2010] EWHC 984 (QB). Amongst the Claimant's complaints was a claim that he had been libelled in a letter sent to the General Medical Council ("GMC") concerning the Claimant's conduct. Sir Charles Gray, following Westcott, held that this publication was protected by absolute privilege:
"[51] It appears to me to be clear beyond argument that this letter is protected by absolute privilege since it was written to an official of an investigatory body (the GMC) in order to complain about the conduct of Dr Vaidya. Such communications are also protected by absolute privilege: see Duncan & Neill 3rd [2009] edition at paragraphs 15.29-15.33 and Gatley at paragraph 13.24 and footnote 204. It was held in Westcott –v- Westcott [2009] 2 WLR 838 at [36] and [44] that the privilege was required because any inhibition on the freedom to complain would seriously erode the rigours of the investigation. In Westcott the claimant sued for defamation on a letter written by the defendant to the police in which it was alleged that the claimant had assaulted her and her baby. The complaint did not result in a prosecution. The Court of Appeal held that the immunity from suit which applied to out of court statements which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to prosecution was not confined to persons in a criminal investigation, whether they were informants, investigators or prosecutors. The Court of Appeal further held that the immunity was given from the earliest moment when the criminal justice system became involved, which was when a complaint was first made. The defendant's complaint to the police was, therefore, immune from suit.
[52] Dr Vaidya has failed to satisfy me by reference to authority or principle that there is any reason why members of a properly constituted disciplinary panel such as the FPP of the GMC should not be protected by absolute privilege when communicating the outcome of disciplinary proceedings in a particular case. No distinction can be drawn between an initial complaint to such a body and the communication by that body to someone with a legitimate interest of the outcome of its investigation…"
- The following year, in White –v- Southampton University & Others [2011] EWHC 825 (QB); [2011] Med LR 296, Eady J similarly found that a complaint to the GMC over the conduct of a doctor was protected by absolute privilege/immunity from suit. The Judge identified the policy underpinning the immunity ([7]):
"The public policy objective is to enable people to speak freely, without inhibition and without fear of being sued, whether making a complaint of criminal conduct to the police or drawing material to the attention of a professional body such as the GMC or the Law Society for the purpose of investigation. It is important that the person in question must be able to know at the time he makes the relevant communication whether or not the immunity will attach; that is to say, the policy would be undermined if, in order to obtain the benefit of the immunity, he was obliged to undergo the stress and expense of resisting a plea of malice: see the remarks of Lord Hoffmann in Taylor –v- Director of the Serious Fraud Office [1999] 2 AC 177, 214."
- Eady J rejected the submission that the complaint was protected only by qualified privilege ([13]) before turning to consider the characteristics a tribunal would need to have in order to qualify for the protection of immunity from suit. Referring to Devlin LJ's observations in Lincoln –v- Daniels [1962] QB 237, 255, the Judge held that "what matters is simply that the court or tribunal is recognised by law" ([14]). The distinction is between tribunals operating in the public interest and those that are purely private or domestic, such as a disciplinary body of a private club. Quasi-judicial bodies are to be assessed according to the four criteria identified by Lord Diplock in Trapp –v- Mackie [1979] 1 WLR 377, 379: (1) under what authority the tribunal acts; (2) the nature of the question into which it is its duty to inquire; (3) the procedure adopted by it in carrying out the inquiry; and (4) the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.
- Eady J was satisfied that the GMC met the criteria to be recognised as a quasi-judicial tribunal, the proceedings before which benefited from immunity from suit. In reaching this conclusion, he also relied on a decision of the Employment Appeal Tribunal in Ahari –v- Birmingham Heartlands and Solihull Hospitals NHS Trust (UKEAT/0355/07/CEA, 1 April 2008), in which HHJ Peter Clark held "without hesitation" that the proceedings of the GMC's Fitness to Practise Panel were protected by immunity from suit.
- Mr Atkinson submits that the GOC and its committees meet the Trapp –v- Mackie criteria to be recognised as a quasi-judicial body. He took care at the hearing to go through the Osteopaths Act 1993 ("the Act") and the various Statutory Instruments which set out, in considerable detail, the powers, rules and procedures of the GOC. Unlike some other regulators (e.g. the Bar Standards Board), the operations of the GOC have been prescribed, in great detail, in primary legislation and its rules set out in secondary legislation. Mr Atkinson points to the following features:
i) The over-arching objective of the GOC in the exercise of its functions is the protection of the public (s.1(3A)) and it is to "protect, promote and maintain the health, safety and well-being of the public"; promote and maintain public confidence in the profession of osteopathy; and promote and maintain proper professional standards and conduct for members of that profession (s.1(3B)).
ii) The Act itself provides for the establishment of its "statutory committees" which include "the Investigating Committee" ("IC") and "the Professional Conduct Committee" ("PCC"). The functions of the statutory committees are likewise provided for under the Act (s.1(5)-(7)).
iii) The GOC is required to appoint legal assessors to give advice to the statutory committees (and others) and the Act prescribes the qualifying criteria for appointment as a legal assessor (s.27).
iv) Practising osteopaths must be registered with the GOC and it is a criminal offence for a person to hold him/herself out as an osteopath (or similar) unless s/he is registered. A failure to comply with any requirement imposed by the Professional Conduct Committee is also a criminal offence (s.32).
v) The GOC is required to publish a Code of Conduct, and the failure to comply with any provision of the Code "shall" be taken into account in any proceedings against a registered osteopath under the Act (s.19).
vi) Once an allegation has been made to the GOC or to any of its committees against a registered osteopath that s/he has been guilty of (a) conduct which falls short of the standard required of a registered osteopath; or (b) professional incompetence, it is the "duty" of the Council or committee to refer the allegation to the Investigating Committee (s.20). The Act provides that the GOC may make rules to refer allegations to a screener for preliminary consideration. Such rules have been made and are contained in The General Osteopathic Council Investigation of Complaints (Procedure) Rules 1999 (SI 1999 No.1847). The screener will be a registered osteopath member of the IC (Rule 3). Rule 5 provides that the screener "may seek information about or observations on the case from any person who, in the opinion of the Screener, might assist him in his consideration". The IC can accept for consideration witness statements made by the complainant, the osteopath complained about and "by others submitting additional information" (Rule 9). If the IC considers that it has insufficient evidence on which to make a decision, it can carry out further investigations and can itself seek further information, including from "persons having knowledge of matters to do with the complaint" (Rule 19).
vii) The IC has the power to impose an interim suspension of up to two months on the osteopath complained about (s.21).
viii) If the IC concludes that there is a case to answer, it is required to refer the allegation to the PCC (s.20(12)) which is then under a duty to consider the allegation so referred (s.22(1)). If it upholds the complaint, the PCC is required to take one of the steps prescribed in s.22(4) ranging from admonishing the osteopath complained about to removing him/her from the register.
ix) Hearings before the PCC are required to be held in public unless the PCC decides to hold the hearing (or part of it) in private (Rule 17 of the General Osteopathic Council (Professional Conduct Committee) (Procedure) Rules Order of Council 2000 (SI 2000/No.241) "the Procedure Rules"). Proceedings are required to be recorded so that a verbatim record can be made (Rule 61(1)).
x) The PCC is given the power to summon witnesses to give evidence or to produce documents (Rule 57(2)). A failure to respond to the summons is a criminal offence (by virtue of s.32(2) of the Act which makes it an offence to fail, without reasonable excuse, to comply with a requirement imposed by the PCC under its rules). The PCC has the power to administer oaths and all evidence before the PCC must be given on oath or be affirmed (Rule 56).
xi) At the conclusion of proceedings, the Chairman of the PCC is required to announce the PCC's findings and its reasons for those findings and whether the osteopath has been found guilty of unacceptable professional conduct or of professional incompetence (Rule 31 of the Procedure Rules). The Chairman is also required to announce the PCC's decision as to sanction (Rule 36).
xii) Appeals against decisions of the PCC can be made, as of right, to the High Court (s.31).
- I am quite satisfied from this that the GOC is a quasi-judicial body and that it easily meets the criteria in Trapp –v- Mackie to be recognised as such. Mr Stenhouse has not sought to argue to the contrary.
- Having reached this conclusion, on the basis of the authorities I have identified concerning absolute privilege/immunity from suit, it appears clear that complaints to the GOC (or its committees) are protected by immunity from suit/absolute privilege. However, Mr Stenhouse argues that complaints to the GOC are not protected by any privilege at all, not even qualified privilege. In his Skeleton Argument, he submits:
"The problem here for the defendants at the moment is that they have given no evidence to the Court as to any legal duty acting on any of them, and none of them have given evidence about moral or social duties. The disclosed email communication does not make reference. There is also no evidence as to the basis on which the receivers of the communications in the GOC were acting when they received the communications." (emphasis in original)
- I reject that submission. The only publication the Court is concerned with is the submission by the Second Defendant of the Report to the GOC when she attached it to her witness statement. This witness statement was submitted to the GOC as part of its investigation into the Claimant. It is unarguable to suggest that this is not protected by the well-established immunity for witnesses. As regards the submission of the Complaint, it is plain on its face that it is a complaint about the conduct of the Claimant, a registered osteopath, to the GOC, his statutory regulator (osteopaths practising in Jersey being required under Jersey law to register with the GOC: Health Care (Registration) (Jersey) Law 1995 and the Schedule to the Health Care (Registration) (Prescribed Qualifications) (Jersey) Order 2003). The Complaint was even submitted on a form provided by the GOC for that very purpose. I am satisfied that too is protected by immunity from suit/absolute privilege. The claims of malicious falsehood are likewise covered by immunity from suit.
- Even if I were wrong about that, it is plain that such a communication would be protected by qualified privilege. It is not for the Second Defendant to prove that she was acting from a sense of duty. As the occasion is clearly privileged, it is presumed that the Second Defendant acted without malice (Clark –v- Molyneux (1877) 3 QBD 237, 251 per Cotton LJ). For the claim to be viable, the Claimant would have to demonstrate that he has a real prospect of success of showing that the Second Defendant was actuated by malice when she submitted the Complaint to the GOC. Proof of malice is also an essential element of a cause of action for malicious falsehood. Without it, a claim for malicious falsehood can have no real prospect of success.
Malice
- Malice means publishing a statement that the defendant knew was false, or was reckless (in the sense of complete indifference) as to its truth or falsity. It is tantamount to dishonesty: Alexander –v- Arts Council of Wales [2001] 1 WLR 1840 [18]. It is that state of mind that justifies depriving a defendant of a defence of qualified privilege or makes it just to allow recovery for the publication of a falsehood. The classic exposition of malice is from the speech of Lord Diplock in Horrocks -v- Lowe [1975] AC 135, 149-150.
- I do not understand the Claimant's case in malice to have been advanced on this basis, but for the sake of completeness, I should note that (in theory) malice can also be established by proving that, in publishing the words complained of acted with a "dominant intention" to injure the claimant. This species of malice may still have a legitimate role in malicious falsehood claims (particularly trade libel) but it has a dubious justification when advanced in answer to a well-founded plea of qualified privilege. It has been expressly excluded as a basis for proving malice in answer to a fair comment/honest opinion defence: Albert Cheng –v- Paul [2001] EMLR 777. In 2002, Eady J noted that he could not recall an instance of "dominant intention" malice having been proved and described this form of malice as an "endangered species" in relation to qualified privilege: Lillie & Reed –v- Newcastle City Council [2002] EWHC 1600 (QB) [1093]. I am not aware of any such case in the 15 years since.
- As malice is a serious allegation – the equivalent of fraud – "it must be pleaded with scrupulous care and specificity. … [I]t is quite inappropriate to proceed on the basis that something may turn up (whether on disclosure of documents or at trial)": Henderson –v- The London Borough of Hackney [2010] EWHC 1651 (QB) [40] per Eady J.
- Each of the particulars relied upon by the Claimant is required to be indicative of this dishonest state of mind order to be sustainable. Each particular has to raise a "probability of malice" and each particular has to be "more consistent with the existence (of malice), than with its non-existence": Turner -v- MGM [1950] 1 All ER 449, 455a-e per Lord Porter; Telnikoff -v- Matusevitch [1991] 1 QB 102 at 120 per Lloyd LJ. As made clear in Turner "each piece of evidence must be regarded separately... [I]f the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances" (455b-c).
- The Court will scrutinise the statement of case in order to discern whether the malice plea has any prospects of success: Branson –v- Bower [2002] QB 737 [16] per Eady J.
- As was made clear during the hearing, none of the Defendants has first-hand knowledge of the facts concerning the Claimant's treatment of Patient A. They were all reacting to the complaint Patient A had made. A plea of malice against those who are passing on information that they have received or reporting concerns arising from such disclosures has an unpromising foundation. It will be an unusual case in which an individual in such a position will know that the allegations made by the complainant are false.
- I need only deal with the state of mind of the Second Defendant, as she is the alleged publisher. But, given the pleaded case of "encouragement" against her, even though it is unsupported by any particulars, I will also consider the state of mind of the First Defendant.
- The evidence contains two important contemporaneous documents recording disclosures made by Patient A. The first is a file note of a meeting on 13 July 2016 when Patient A met the First and Second Defendant. I need not set out its terms. The account is consistent with what was later included in documents sent to the GOC. There is no suggestion that the Second (or First) Defendant misrepresented what Patient A had said.
- The second document is an email from Patient A sent to the Minister for Health and Social Services, Andrew Green on 25 August 2016 (see Paragraph 41 above). Mr Green forwarded the document to the Fourth Defendant on the same day. She responded by email later that day and copied her reply to the individuals I have identified in Paragraph 41 above. Although these email exchanges were not apparently received by either the First or Second Defendant, it demonstrates that, immediately prior to the submission of the Complaint, Patient A was continuing to complain about her treatment; she had not recanted.
- There is nothing in these documents that suggests that any of the Defendants did not believe Patient A was telling them the truth, still less do they provide any basis on which to allege that they knew her allegations to be false. Insofar as they tend to prove anything, it is the positive absence of malice.
- Against that, I turn to consider the pleaded case of malice in the Particulars of Claim. The pleading contains no formal "particulars of malice", so I have attempted to identify them as best I can.
"10. The Claimant avers that the Report was sent to the GOC to actively encourage the GOC to take professional misconduct proceedings against the Claimant…
15. The actions of the 1st Defendant in sending the Report to the GOC were deliberate and were intentionally designed by her and by the 2nd 3rd 4th and 5th Defendants to achieve serious professional and financial consequences for the Claimant including being suspended and/or struck off the GOC's register, alternatively, she and they were well aware that there was a clear risk of such serious professional and financial consequences for the Claimant.
16. Furthermore, the actions of the 1st Defendant and the 2nd 3rd 4th and 5th Defendants in referring the Report to the GOC or encouraging it to be so referred, were carried out in flagrant and knowing breach of the established procedures of the Jersey Health and Social Services Department. In particular the actions were taken without prior reference to the Claimant.
17. Furthermore, the actions of the 1st Defendant in making and publishing the statements in the Report, and of the Defendants in referring the Report to the GOC or encouraging it to be so referred, were intentional, and were done knowing the statements were not true, or alternatively being reckless as to whether those statements were true or false, and were therefore done with malice…
21. The 2nd Defendant sent the Report to the GOC knowing that the statements contained within it relating to [Patient A] were and are untrue and that there was and is no evidence that supported their truth. Furthermore, or alternatively, the witness statement and Report were sent to the GOC by the 2nd Defendant without any care for whether the statements in the Report about [Patient A] and the Claimant were or are true or false. The 2nd Defendant's actions in sending the Statement and Report to the GOC were done with malice…
24. Furthermore, the actions of the 2nd Defendant were carried out in flagrant and knowing breach of the established procedures of the Jersey Health and Social Services Department, in particular without prior reference to the Claimant…
47. None of the Defendants made any attempt to contact the Claimant to discuss or comment on the subject of their defamatory statements and/or malicious falsehoods prior to the defamatory statements and/or malicious falsehoods being published. The Claimant was given no opportunity to challenge the defamatory statements and/or malicious falsehoods before they were published.
48. Further, no investigation of any kind was ever carried out into the Claimant's practice in Jersey or anywhere else. The Claimant was given no prior notice of the complaint and reference to the GOC."
- Paragraph 10 does not raise a probability of malice; it is equally consistent with honest belief. The unparticularised alleged breach of procedure of the Jersey Health and Social Services Department (Paragraphs 16 and 24) is incapable of demonstrating that the Defendants knew that the allegations made by Patient A were false (or that they were reckless as to their truth/falsity). The failure to contact the Claimant and/or to carry out any investigation do not raise a probability of malice (Paragraphs 47 and 48). The Defendants were not the investigators (and even had they been, a failure to contact the Claimant would not have been probative of malice). They were people to whom disclosures were made from Patient A, someone in respect of whose health and welfare they had an interest. They then reported what they had been told to the regulator of the person the subject of the complaint. It was for the GOC to investigate the complaint. If the complaint progressed, in accordance with the GOC's rules, the Claimant would be given an opportunity to comment upon and answer the allegations. Paragraphs 17 and 21 are nothing more than formulaic assertions of malice and contain no pleaded facts that could begin to demonstrate the required state of mind.
- In paragraph 27 of the Claimant's Skeleton Argument, further particulars of malice were set out. None of them is probative of malice.
- In summary, and for these reasons, the Claimant has no real prospect of demonstrating that any of the Defendants were malicious. The malice case is hopeless.
Proper Forum
- In light of my conclusions as to the viability of the Claimant's claims, it is unnecessary for me to consider the issues under s.9 Defamation Act 2013 and issues bearing on the exercise of discretion as to the most appropriate forum within which the Claimant should bring the claim. In case I am wrong, and a decision on this were to become material, I would have held that Jersey was clearly the most appropriate forum or, putting it another way (and in the language of s.9), that the Claimant has not satisfied me that England & Wales is "clearly the most appropriate place in which to bring an action in respect of the statement".
- Given the length of this judgment, I will explain this conclusion shortly. It is to be remembered that assessment of these factors assumes, contrary to my findings, that the Claimant has viable cause(s) of action.
i) All the parties are based in Jersey. Given that publication to the GOC is unlikely, ultimately, to be a matter in dispute, the witnesses are likely also to be Jersey-based. I do not place huge weight on this factor. London is readily accessible from Jersey. No doubt a trial in London would cause some inconvenience, but the factor would be weightier if the competing jurisdiction were, for example, Australia.
ii) The Claimant has made complaint of publications both in England & Wales and in Jersey. It is common ground that all of those claims can be brought in Jersey, whereas only publications in England & Wales could be tried in this action. This represents a significant factor in favour of Jersey. Perhaps more importantly for the Claimant, the limitation period for defamation claims in Jersey is 3 years. It might have been a matter of some significance had Claimant been left in the position that any claim he might now bring in Jersey would be time-barred (see Paragraph 18.iii) above).
iii) The Claimant has included a claim for special damages. Difficult issues of causation are likely to arise. The Court best placed to resolve those issues would be the Jersey Court as it would have all the claims before it.
iv) Although the publication to the GOC took place in England (and this would prima facie be the appropriate forum), this factor is balanced by the fact that there are also publications complained of in Jersey. I accept that the Claimant does have a reputation that is valuable to him in England (by virtue of his practice in Cornwall), but he equally has significant business and reputational interests in Jersey. Given that the Jersey court can also deal with the alleged publications in England & Wales, it is not a competition between jurisdictions on which of these geographical reputations of the Claimant is more important to him.
v) In relation to vindication, any vindication the Claimant might achieve in his claim would be equally valid if it came from a court in Jersey or England & Wales.
vi) I do not accept that there is any real risk that the Claimant will not get a fair trial were he to bring his claims in Jersey. The evidence he has produced falls well short of the sort of cogent evidence that the Court requires to substantiate such a claim (see Ahuja [22]).
Conclusion
- For the reasons I have given in this judgment, the Claimant should not have been granted permission to serve the Claim Form on the Defendants in Jersey. The Order granting that permission will be set aside. There being no remaining Defendants against whom the Claim Form has been (or could be) served, the Claim will be dismissed. Given its almost inevitable fate, I consider that it was very unwise for this claim to have been brought.
Further evidence after the hearing
- A first draft of this judgment was provided to the parties in the usual way during the morning of 10 October 2017. I was not aware, when the draft judgment was sent to the parties, that Mr Stenhouse had, at 17.23 on 9 October 2017, sent by email a further witness statement of the Claimant dated 9 October 2017. The email was sent to my temporary clerk, who was absent on leave for the week commencing 9 October 2017. After receipt of the draft judgment, Mr Stenhouse emailed my acting temporary clerk forwarding the email and witness statement that he had sent the evening before. I first saw the witness statement on 10 October 2017 after the draft judgment had been circulated.
- The witness statement provides evidence relating to the publication of the email by the Fourth Defendant to Glenys Johnson on 25 August 2016 (see paragraphs 39-42 above). The material parts of that statement provide:
"6. Until a few days ago I was of the understanding that all of the persons to whom the email dated 28 August 2016 was sent were all resident and based in Jersey, and including Glenys Johnson, and this seemed to be confirmed by Mr Farrell in his witness statement.
7. However, I have now discovered that although Glenys Johnson's role as Jersey's Independent Safeguarding Chair is a Jersey related role, she in fact lives in England & Wales and she runs her business as a self-employed social services consultant through a company called Octavia Associated Limited. Her role is also officially described as 'off-island'."
He exhibits printouts from the Jersey Safeguarding Partnership Board website and further documents that indicate that Ms Johnson's home address is in Stamford, Lincolnshire.
- In light of this new evidence, I asked the parties for their further written submissions. On 11 October 2017, Mr Atkinson, on behalf of the Defendants submitted:
i) The alleged publication of the 25 August 2016 email to Ms Johnson had been an issue in the case from the beginning of the proceedings. The Particulars of Claim did not, however, allege that the email had been published to her in England & Wales.
ii) The Claimant could have obtained the evidence upon which he now seeks to rely at any time before his original application for permission to serve the Claim Form out of the jurisdiction.
iii) In light of that, the Court would be entitled to refuse permission to the Claimant to rely upon the new evidence.
iv) If the statement is nevertheless admitted, the alleged publication to Ms Johnson is plainly protected by qualified privilege and Jersey remains clearly the proper forum (or at least England is not clearly the most appropriate forum).
- Having received these submissions, on 12 October 2017, Mr Stenhouse provided written submissions in response. He submits that the Court can and should consider the new evidence because the Court has not pronounced judgment: Robinson –v- Bird [2003] EWCA Civ 1820 [91]. In answer to the relevant points advanced by Mr Atkinson, he submits: "[The Claimant] does not accept that the email sent to [Ms Johnson] is covered by [Absolute Privilege] or [Qualified Privilege] or that Jersey 'remains the proper forum'". He submits further that the Fourth Defendant published the email of 25 August 2016 in England & Wales and that it was not part of an existing investigation being carried out by either the IC or the PCC of the GOC at the time of publication in England & Wales. It did not institute any such investigation or proceedings, he contends.
- He submits that the loss and damage suffered by the Claimant is "directly and causally connected to" the existing complaints in relation to the Defendants publications to the GOC.
- Shortly after the Court received the Claimant's further submissions, Mr Atkinson emailed the Court to advise of the receipt of further relevant information. He was instructed that Ms Johnson has checked her 2016-17 diary and had it recorded that she was working in Northern Ireland when she received and read the email from the Fourth Defendant. She travelled to Northern Ireland on 23 August 2016 and returned on 26 August 2016.
- Mr Atkinson stated that, if the information were to be challenged, the Defendants would explore the obtaining of a witness statement. However, until challenge was made he suggested it would be disproportionate to do so.
- In answer, Mr Stenhouse emailed the following response on behalf of the Claimant:
"The information that Mr Atkinson refers to in his email below is not in evidence. It is a matter for him whether or not to seek to introduce more evidence. I have already made it clear that Mr Huda does not accept 'evidence' from Mr Atkinson and only accepts evidence that can be established is verified by documentary evidence."
- My conclusions on this new evidence are as follows:
i) I will allow the Claimant to rely upon the evidence he has submitted after the hearing. It is late and could (and probably should) have been provided earlier, but, where possible, the Court should reach a determination on the merits after considering all the evidence upon which the parties wish to rely.
ii) I am satisfied that the publication of the email to Ms Johnson would have been an occasion protected by qualified privilege (wherever she read it). Ms Johnson, as is common ground, is Jersey's Independent Safeguarding Chair. As is apparent from the printouts from its website, the role of the Jersey Safeguarding Partnership Board is to co-ordinate work, in Jersey, "which will safeguard children and adults" and "to monitor and challenge the effectiveness of Jersey's safeguarding arrangements." The contents of the email of 25 August 2016 were directly relevant to that safeguarding role. Ms Johnson had a legitimate interest to receive that information. Mr Stenhouse has not advanced any argument why the publication would not be protected by qualified privilege; he simply says that the Claimant does not accept that this is the case. It is not a requirement for qualified privilege that, in order to be protected, the relevant publication should instigate an investigation.
iii) The Claimant has no real prospect of demonstrating that the Fourth Defendant was malicious when she sent her email of 25 August 2016 to Ms Johnson (see paragraphs 70-83 above).
iv) In light of that finding, it is unnecessary to resolve whether Ms Johnson was in England or, as the information provided by the Defendants suggests, in Northern Ireland when she received and read the email.
v) I reject the claim that the reputational and other damage that the Claimant identifies in his evidence and in the Particulars of Claim was caused by the publication of the email to Ms Johnson. His claim is that this damage has all flowed from the publication to, and subsequent proceedings instituted by, the GOC. Ms Johnson had nothing to do with that.
vi) Further, and in any event, my conclusion that Jersey is the proper forum for the Claimant to bring any claims over the alleged publications, including the one to Ms Johnson, is unaffected by her location when she read it. Even if the publication were not protected by qualified privilege, it would have been absurd to permit a libel claim to be brought in England & Wales against just one of the Defendants on a technical publication to one person in the context of this dispute. Jersey would plainly be the correct place to bring any such claim.
vii) Therefore, the conclusion I reached in paragraph 86 above is unaffected by this new evidence.
