Best v Charter Medical of England Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Robert Walker L.J.,Peter Gibson L.J. |
| Judgment Date | 26 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1588 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: QBENF/2000/2758/A2 |
| Date | 26 October 2001 |
[2001] EWCA Civ 1588
Lord Justice Peter Gibson
Lord Justice Robert Walker and
Lord Justice Keene
Case No: QBENF/2000/2758/A2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISON
Gray J.
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Matthew Nicklin (instructed by Messrs Wiggin & Co. of Cheltenham for the Appellant)
Mr. Richard Parkes (instructed by Messrs Le Brasseur J Tickle of London for the Respondents)
This appeal raises the issue of the degree of precision required when a defamation claim is pleaded, especially in the new regime of the Civil Procedure Rules. The appellant, Dr. Best, is a consultant psychiatrist who, until March 1998, practised at the Charter Nightingale Hospital ("CNH") in London NWHe resigned in that month and has since gone to work elsewhere.
The CNH is owned by the first respondent. The second respondent, Dr. Isaacs, is the Deputy Medical Director of that hospital. In April 1999 the appellant issued proceedings against the respondents and certain other individuals, who are no longer involved in the action, for slander published in April 1998 "and thereafter". Regrettably the writ was not then served until mid-August 1999. The original Particulars of Claim were clearly defective, but permission was granted to amend. When the respondents appealed against that order, re-amended Particulars of Claim were served, and before the judge the issue was whether those re-amended Particulars of Claim disclosed a reasonable cause of action. Mr. Justice Gray on 20 June 2000 decided that they did not. He allowed the appeal and struck out the Particulars of Claim. Dr. Best now appeals against that order.
It is impossible to deal with this appeal without setting out substantial parts of the re-amended Particulars of Claim. The crucial part is paragraph 3 and its sub-paragraphs. Paragraph 3 begins thus:
"3. On dates and at times presently unknown to the Claimant pending disclosure of documents and/or an application to the Defendants for further information and/or exchange of witness statements, from about 21 April 1998 onwards the Defendants and/or individuals acting on behalf of the Defendants orally published words defamatory of the Claimant calculated to disparage him in his profession as a medical doctor and psychiatrist. Pending the taking of the aforesaid procedural steps, (i) unless a publisher or publishee is expressly referred to by name, his or her identity is as yet unknown to the Claimant, and (ii) the best particulars of publication which the Claimant can give are as follows"
There then follows a total of nine separate allegations of slander. Some of those Mr. Nicklin, for the appellant, did not seek to defend in the course of argument. The case really centres on six of the nine pleaded allegations. Sub-paragraphs 3.1 to 3.4 read as follows:
"3.1. On or about 21 April 1998, Mrs. Hodgkinson and other managers and/or administrators of CNH acting with her authority and/or on her behalf orally published to doctors at CNH, including the Second Defendant, Dr Stonehill, Professor Cawley and/or Dr Silvio Benaim, a consultant psychiatrist at CNH, and/or nurses and/or other hospital staff at CNH words to the effect that the Claimant might be mentally unwell.
3.2. On 21 April 1998, the Second Defendant, Dr Stonehill and Professor Cawley held a meeting at CNH at which each of them orally published to one another words to the effect that the Claimant's mental health was impaired; that his mental health was so seriously impaired as to warrant concern that he presented a safety risk to himself and to patients; that he required immediately a period of sick leave and urgent medical attention in respect of state of his mental health; that he was unfit to continue practising as a doctor; that in these circumstances, he would be relieved of the care of his two remaining in-patients at CNH with immediate effect, his admitting privileges at all hospitals owned by the First Defendant would be suspended forthwith, and he would be excluded from the CNH.
3.3 On or about 22 or 23 April 1998, Mrs Hodgkinson and/or other managers and/or administrators at CNH acting with her authority and/or on her behalf orally informed members of hospital staff at CNH, including doctors, members of the nursing staff and counsellors, that the Claimant no longer worked at CNH and was unable to see any inor out-patients at the hospital because he was mentally ill. In particular, a counsellor at CNH named Maree Cary was informed that the Claimant was "too unwell to consult anywhere not having in-patients anywhere". It is properly to be inferred from the aforesaid conduct of Mrs. Hodgkinson that the Second Defendant and/or Dr Stonehill and/or Professor Cawley had orally published or caused to be published to her the words or words of like effect to those set out in paragraph 3.2 above
3.4. On or about 22 or 23 April 1998, Carol Ball of CNH and/or other managers and/or administrators at CNH acting with her authority and/or on her behalf orally communicated to therapists working at CNH the information set out in paragraph 3.3 above. It is properly to be inferred from the aforesaid conduct of Ms Ball that Mrs. Hodgkinson and/or the Second Defendant and/or Doctor Stonehill and/or Professor Cawley had orally published or caused to be published to her the words or words of like effect to those set out in paragraph 3.2 above."
Sub-paragraphs 3.5, 3.6 and 3.7 are broadly similar to the earlier allegations.
Sub paragraphs 3.8 and 3.9 are the only other allegations which it is necessary to set out. They state:
"3.8. On a date presently unknown after 21 April 1998, at a meeting between Dr Stonehill and Professor Gerald Russell, Director of the Eating Disorders Unit at the Hayes Grove Priory Hospital, at CNH, Dr Stonehill orally published to Professor Russell words to the effect that he and a number of his consultant colleagues at CNH had for some time been concerned about the state of the Claimant's mental health; that he and his consultant colleagues had been so concerned about the Claimant's mental health that they had invoked the "Three Wise Men" procedure; that their conclusion had been that the Claimant was probably unfit to carry clinical responsibility by reason of the state of his mental health; that one of the "three wise men" had advised the Claimant to seek medical treatment and the Claimant had declined to do so; that the Claimant would be reported to the General Medical Council on the grounds of being mentally unwell and unfit to practice.
3.9. On a date presently unknown after 21 April 1998, Dr Adrian Winbow, Medical Director of the Eating Disorders Unit at the Hayes Grove Priory Hospital, was orally informed by an individual employed by and/or acting on behalf of CNH or by a person who had been advised by such individual that the Claimant was suffering from a paranoid illness."
The principal issue before Mr. Justice Gray was whether these allegations were pleaded with sufficient particularity. He dealt extensively with the leading authorities on this topic and rejected a submission on behalf of Dr Best that it is enough for a claimant to plead the gist or effect of the words. The judge pointed out that if that argument were right, it would often make it impossible for a defendant to decide whether to plead that the words were not defamatory at all, or to allege that they were either justified or fair comment. So the actual words alleged to have been used by the defendant were of great importance. Mr. Justice Gray said this about the approach to be adopted:
"25. It appears to me that the obligation on a claimant pleading a claim in slander is to achieve the degree of particularity which is referred to in British Data Management in the passage from the judgment of Hirst LJ which I have read; namely, that the words must be set out with "reasonable certainty", by which I take him to mean with "reasonable precision". It is not permissible for a claimant to plead no more than the effect or gist of the words in the hope that disclosure may enable him to cure the inadequacies of the pleading."
The judge rejected a submission that the Civil Procedure Rules P.D.53 intended to alter that approach. However, he acknowledged that a claimant might sometimes be unable, through no fault of his own, to provide at the outset the exact details of what had been said and that the courts had in some instances been prepared to assist such a claimant where they were satisfied that the claim was not merely speculative or guesswork but was based on a sub-stratum of fact. For this reason, the judge looked at such material as the claimant could make available, so as to see whether the claims were more than mere guesswork. He concluded that the pleading was properly to be described as speculative and rejected the suggestion that its deficiencies should be made good by an application for interrogatories or further information at a later stage. Hence he struck out the re-amended Particulars of Claim.
The main thrust of the appellant's case before us has been based on the authorities as they stood before the Civil Procedure Rules came into force. It is submitted that those authorities do not require the Particulars of Claim to plead the exact words alleged or even to set them out with reasonable certainty. Mr. Nicklin contends that to treat those authorities as so requiring is a misinterpretation of what was said by this court in British Data Management plc v. Boxer Commercial Removals plc (1996) 3 All E.R. 707...
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