Dr Fatima Jabbar v Aviva Insurance UK Ltd
| Jurisdiction | England & Wales |
| Judge | Master Toogood |
| Judgment Date | 20 June 2022 |
| Neutral Citation | [2022] EWHC 1383 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004608 |
[2022] EWHC 1383 (QB)
Deputy Master Toogood QC
Case No: QB-2019-004608
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Silcock (instructed by Samuels Solicitors) for the Claimants
Adam Wolanski QC (instructed by BLM Law) for the Defendants
Hearing date: 26 May 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and released to the National Archives. The date and time for hand-down is deemed to be 10.00 am on 20 June 2022.
DEPUTY Master Toogood QC
Deputy Master Toogood QC:
Background to judgment
Save for the conclusion, the subsequent sections of this judgment were drafted on 10 June 2021 following a hearing on 26 May 2021. On 11 June 2021, prior to the circulation of my draft judgment, I was informed that the parties had agreed an order whereby the Claimants' claims were dismissed and the Claimants agreed to pay the Defendants' costs of the action. On being informed that my judgment had been drafted, there was a dispute between the parties as to whether it should be handed down. I gave judgment on that issue on 25 June 2021 ( [2021] EWHC 1729 (QB) – ‘the hand-down decision’). The Claimants' appeal against the hand-down decision was dismissed by Chamberlain J on 13 April 2022 ( [2022] EWHC 912 (QB)). By letter of 24 May 2022, the Claimants' solicitors confirmed to the court that no application had been made to appeal Chamberlain J's decision and therefore this judgment can now be handed down.
Introduction
This is my reserved judgment in relation to the Defendants' application dated 2 November 2020 for an order striking out the Claimants' claims for conspiracy to injure, unlawful means conspiracy and tortious interference with contract pursuant to CPR Part 3.4(2)(a) on the ground that the Particulars of Claim disclose no reasonable grounds for bringing these claims, and for summary judgment on the defamation claim pursuant to CPR Part 24.
On 21 May 2021 the Claimants served draft Re-Amended Particulars of Claim on the Defendants. No formal application has been made to amend the claim but both parties have addressed the draft amendments in their submissions and I will consider them further below.
I have been assisted by detailed oral and written submissions from both counsel instructed in this matter and I am very grateful to them both.
Documents considered
I have been provided with a bundle of 1,191 pages which includes the Statements of Case, Orders, Defendants' Application Notice with two witness statements of Timothy Smith dated 2 November 2020 and 27 January 2021 in support, a witness statement of the First Claimant dated 17 May 2021 with 8 further witness statements on behalf of the Claimants and selected inter partes correspondence.
The Statements of Case comprise the Claim Form, Particulars of Claim and three responses by the Claimants to Part 18 Requests by the Defendants. No Defence has yet been filed.
I have also been provided with a bundle of 27 authorities, three extracts from textbooks and Practice Direction 53B. Two further authorities were submitted by the Claimants' counsel on the morning of the hearing. I have considered the submissions of both parties in relation to this material.
Factual background
The First Claimant qualified as a doctor in 2006, according to her witness statement. She states that she opened a practice on Harley Street in 2008 focussing on cosmetic treatment. In the same year, she started providing medico-legal reports as an expert witness and states that by 2013 – 2015 her medico-legal report practice replaced her cosmetic treatment practice. The First Claimant states that she has a wealth of experience in diagnosing, assessing and managing soft tissue injuries but I have not been provided with any details regarding how this experience was obtained and it does not appear that the First Claimant has held any posts within the NHS, at least since 2008.
The Second Claimant is a company that the First Claimant incorporated on 2 January 2019 to collect her fees and perform administrative tasks in connection with her medico-legal practice. At the time that the hearing before me took place the First Claimant was the sole director of the Second Claimant.
The First and Second Defendants are corporate entities which form part of the Third Defendant, a multinational insurance company headquartered in the UK. I will refer to the Defendants collectively unless it is necessary to do otherwise.
In 2015 an entity called MedCo was established to facilitate the sourcing of medical report providers in claims brought under the Ministry of Justice RTA Small Claims Pre-Action Protocol or the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“RTA Protocol”). The First Claimant was registered with MedCo and provided reports through its system.
There is some evidence available regarding the number of reports produced by the First Claimant. In her witness statement, she states that, prior to receiving instructions via Medco, she undertook around 300 reports per month for a fee between £350 to £550 per report, indicating that she billed approximately £1,620,000 per year if an average fee of £450 per report is applied. After the introduction of MedCo, she states that she produced 280 – 300 medico-legal reports each month for various solicitors at the standard fee of £180 plus VAT per report, of which £60 plus VAT was payable to Orion Medical Services, an agency which assisted her in the preparation of the reports. The First Claimant assigned the rights to collect the sums due to Orion and documents exhibited to her witness statement indicate that the sums due were £509,106 to 31 December 2015, £844,686 to 31 December 2016, £662,668 to 31 October 2017 and £539,232 to 31 December 2018.
The First Claimant has also produced spreadsheets of the number of clinics she undertook to provide these reports, which indicate 50 clinics in 2015, 67 clinics in 2016, 45 clinics in 2017 and 46 clinics in 2018. If her evidence is correct, this suggests that she produced between 50 and 60 reports per clinic. I admit that I struggle to understand how it is possible to identify the subject of the report, take a proper history, consider the medical records if relevant, undertake an examination and reach a conclusion regarding condition and prognosis that many times in one day, but fortunately that difficulty does not need to be resolved as part of this judgment.
Between 21 October 2015 and 1 July 2016, the Defendants sent 7 letters or emails to various firms of solicitors as set out in paragraph 7 of the Particulars of Claim. Five of these communications state that the Defendants have concerns regarding the expert instructed, which was the First Claimant in each case. The other two state that they will not be making any offers and their solicitors are liaising directly with the First Claimant.
On 8 November 2017 Karleen Marshall was unfortunately involved in a road traffic accident. She instructed Knightsbridge Solicitors to bring a claim on her behalf and they duly issued a claim notification form pursuant to the RTA Protocol on 10 November 2017.
On 8 February 2018, the First Claimant examined Ms Marshall and prepared a medical report which states that it was typed on 16 February 2018.
On 12 July 2018, Mr Jerry Xavier, an employee of the First Defendant's claims department who is based in Bangalore, India, sent an email to Knightsbridge Solicitors noting that they had not received a Stage 2 pack in accordance with the RTA Protocol, which he erroneously described as the Pre-Action Protocol for Personal Injury Claims (MOJ), but I do not consider this error to be material.
It appears that the Stage 2 pack was eventually filed by Knightsbridge Solicitors on 12 December 2018 and included the report prepared by the First Claimant.
On 31 December 2018 Mr Xavier sent an email to Mr Shafique of Knightsbridge Solicitors with a letter attached which was headed “Part 35 Questions to Claimant's Medical Expert” and which contained a list of questions including the allegedly defamatory statement pleaded at paragraph 8 of the Particulars of Claim:
“The GMC have confirmed that you can prepare medico-legal reports only if the report does not require her to examine or have contact with patients. Is that true. Was this followed.”
Mr Xavier also confirmed that the case had been taken out of what he described as the MOJ process, by which he was referring to the online portal used by claims proceeding under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.
On 7 January 2019 Knightsbridge Solicitors wrote to the First Defendant notifying them that proceedings were being commenced against their insured, as is required by sections 151 and 152 of the Road Traffic Act 1988.
On 11 January 2019 Mr Shafique forwarded the letter to the First Claimant via an email which states only “ Please see attached letter from TPI”.
I have not been provided with any reply from the First Claimant to this email.
On 28 January 2019 the claim was settled by the acceptance of a Part 36 offer which had been made by the First Defendant on 9 January 2019.
The GMC have never imposed any requirements on the First Claimant nor, so far as I am aware, have they conducted any investigations into her practice.
However the First Claimant has been the...
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