B v N (First defendant) L (Second defendant)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Eady,Justice Eady |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWHC 1692 (QB) |
| Court | Queen's Bench Division |
| Date | 31 July 2002 |
[2002] EWHC 1692 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Mr. Justice Eady
and
Miss Adrienne Page QC (instructed by Messrs Davenport Lyons) appeared on behalf of the Claimant
MS. Alexandra Marzec (instructed by Messrs Radcliffes De Brasseur) appeared on behalf of the First Defendant
Miss Anna Coppola (instructed by Messrs Capsticks) appeared on behalf of the Second Defendant
HTML VERSION OF JUDGMENT
This libel action concerns a letter sent by the first defendant on 12th January 2000 and a most unfortunate dispute between eminent clinicians engaged in research at St. Bartholomew's Hospital. It is necessary to identify the parties before going any further.
The claimant is B, a doctor of medicine with expertise in skin cancer, particularly the genetic epidemiology of melanoma. Since February 1996 she has been employed by the third defendant, the Queen Mary and Westfield College as a clinical senior lecturer in the Centre for Cutaneous Research and the Department of Dermatology at St. Bartholomew's and Royal London School of Medicine and Dentistry. She has also, since February 1996, held an honorary consultant contract with the Royal Hospitals NHS Trust, which is subject to her continuing employment with QMW. She is an honorary consultant dermatologist at Guy's and St. Thomas's Trust, London Dermatology and Twin Research and Genetic Epidemiology Unit. She is a Fellow of the Royal College of Physicians and a member of the British Association of Cancer Research and the British Association of Dermatologists, amongst other august medical and scientific bodies.
The first defendant is Professor N, who is a Professor of Haematology, and is and was at all material times employed by QMW as Head of Dr. B's Division of Oncology in the School. He also is and was at the material time employed by the fourth defendant, which is the Bart's and London NHS Trust, as Director of Research and Development at the Royal Hospitals NHS Trust Research and Development Office, and holds an honorary consultant contract with the Trust.
The second defendant is Professor Irene L. She is Professor of Cellular and Molecular Medicine and Assistant Warden for Research in the school.
The letter in question was sent by the first defendant to at least three people. Those are identified in the particulars of claim at paragraph 8. The letter was published to Mr. Ray Pett, Chief Executive of the Royal Hospitals NHS Trust, Duncan Empey, Medical Director of the Royal Hospitals NHS Trust, Professor McNeish, Warden of the school, and also to Anne Maclntyre, the Trust's Director of Human Resources, and CB, Director of Personnel at QMW, on each of whose department's personnel databases the letter is said to have been recorded.
It is also Dr. B's case that this would have resulted in the words complained of being continuously published to any and all persons looking at Dr. B's personnel records for as long as the letter remained on the database.
Dr. B will also allege that the letter, or the words complained of in it, were also published to Professor S, Chairman of the Ethics Committee, and to members of the Ethics Committee at about the same time. It may be that she will rely upon other publications in due course.
It is not necessary for me to set out the terms of the letter complained of in this judgment. However, the natural and ordinary or inferential meanings of the words complained of are pleaded at paragraph 9 of the particulars of claim.
They are as follows: (1) that Dr. B deliberately and dishonestly misled the Ethics Committee, QMW and the Trust by withholding from them the true fact that she intended to transfer patient DNA to a commercial company, Gemini, in which she and her husband have a personal financial interest; (2) that she took DNA samples from patients and passed them to Gemini without the patients' consent; (3) that she dishonestly concealed the nature and extent of her relationship with Gemini at the time that QMW entered into an agreement with the company in January 1998; (4) that she is thereby guilty of a most serious breach of ethical standards and gross dereliction of her duty as a doctor.
There are defences pleaded on behalf of the various defendants, including, in particular, as one might expect, a defence of qualified privilege, but also a defence of justification. There are replies alleging malice in some detail.
There is now before me an application by the second defendant which is in the following terms. She is seeking an order that the claimant's claim against her, to the effect that she published the words complained of, should be struck out pursuant to CPR 3.1(2) (k); and/or 3.4(2) (a) and/or 3.4(2)(b); and the claimant's case against the second defendant should, accordingly, be dismissed; and/or that summary judgment be given against the claimant in respect of her claim against the second defendant pursuant to CPR 24.2 and that the second defendant should, consequentially, have her costs of the application.
The grounds of the application are that the claimant's statements of case disclose no reasonable grounds for alleging that the second defendant published the words complained of; and/or the claimant has no real prospect of succeeding in proving publication by the second defendant.
There is an alternative application, namely that the second defendant applies for an order that the question whether the second defendant published the words complained of be tried as a preliminary issue in advance of the trial of this action pursuant to CPR 3.1 and that directions be given for the trial of that preliminary issue. Again, there is a claim for costs consequential upon any such order being made.
The grounds for that alternative application are that trying the question of the second defendant's responsibility for publication as a preliminary issue would be likely, it is submitted, to save time and/or costs.
I must now direct my attention to what is alleged by way of pleading and evidence towards establishing publication of the letter by Prof. L. A good deal of background is set out which, to a considerable extent, overlaps with the allegations of malice. This is because the claimant is alleging that the second defendant was out to do her down and would have been glad to take the opportunity to encourage or participate in any steps which would damage her reputation. That, of course, goes only to a predisposition. Whether she in fact did participate in publication is another question.
There are a number of conversations, documents and incidents spreading over a number of months towards the end of 1999 as to which there is room for conflicting evidence and interpretation. Unless, therefore, this can be ruled out as irrelevant to the issue of publication as pleaded against the second defendant, it does not sound promising territory for the exercise of a summary jurisdiction.
The law in relation to applications of this kind, both generally and for jury cases specifically, is reasonably clear in the light of a number of recent Court of Appeal authorities. I must have regard, in particular, to Alexander v. Arts Council of Wales [2001] 1 WLR 1840 and Wallace v. Valentine [2002] EWCA Civ 1034.
First, it seems that I should address the primary facts relied on by the claimant for establishing the second defendant's responsibility for the publication of the 12th January letter. The burden is upon the claimant to establish those facts at trial. At this stage, I should make all assumptions in favour of the claimant so far as pleaded facts are concerned.
Again, in so far as evidence has been introduced for the purpose of the present application, I should assume that those facts will be established, save in so far as it can be demonstrated on written evidence that any particular factual allegation is indisputably false.
The next question is whether, on the facts assumed, a properly directed jury could draw the inference for which the claimant contends. In this case, of course, the inference is that the second defendant was, in some sense, a participant in the publication of the letter. I should only rule out the case against the second defendant if I am satisfied that a jury would be perverse to draw that inference.
I must focus on the claimant's pleaded case in the first instance. That is all I am permitted to do for the purposes of the strike-out application. If I rule against the plea, then that would be the end of the matter.
As to the part 24 application, however, I can have regard also to evidence for determining whether the claimant's case has no realistic prospect of success.
In this case, it so happens that the second defendant has chosen to introduce evidence herself. That would be relevant, I apprehend, either for demonstrating that one or more of the primary facts cannot be established in the Galbraith sense or to show that an inference which a jury could draw on the claimant's facts cannot properly be drawn in the light of the defendant's additional evidence. In other words, it puts such a different complexion on the primary facts that a jury would, in the light of it, be perverse actually to draw it.
If the defendant's case is so clear that it cannot be disputed, there would be nothing left for a jury to determine. If, however, there is room for legitimate argument, either on any of the primary facts or as to the feasibility of the inference being drawn, then a judge should not prevent the claimant having the issue or issues resolved by a jury. I should...
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