Badrul Huda v Lorraine Wells and Others

JurisdictionEngland & Wales
JudgeThe Honourable Mr Justice Nicklin
Judgment Date16 October 2017
Neutral Citation[2017] EWHC 2553 (QB)
Docket NumberCase No: HQ17M01661
CourtQueen's Bench Division
Date16 October 2017

[2017] EWHC 2553 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA & COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Nicklin

Case No: HQ17M01661

Between:
Badrul Huda
Claimant
and
(1) Lorraine Wells
(2) Mary Campfield
(3) Gavin Hendricks
(4) Susan Turnbull
(5) States of Jersey
Defendants

John Stenhouse (instructed under direct public access) for the Claimant

Timothy Atkinson (instructed by Kennedys Law LLP) for the Defendants

Hearing date: 6 October 2017

The Honourable Mr Justice Nicklin
1

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.

2

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.

3

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.

4

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.

5

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.

6

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.

7

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.

8

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.

9

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

10

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

11

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.

12

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, 1032per 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.

13

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.

14

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.

15

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).

16

The only viable basis on which the Court could grant permission to serve out in this case is Ground (9).

17

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]

18

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...

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