Dr Riccardo Frati v Karen Bowen-Carter

JurisdictionEngland & Wales
JudgeLewis
Judgment Date22 March 2023
Neutral Citation[2023] EWHC 627 (KB)
Docket NumberClaim No. QB-2021-002600
CourtKing's Bench Division
Between:
Dr Riccardo Frati
Claimant
and
Karen Bowen-Carter
Defendant

[2023] EWHC 627 (KB)

Before:

HIS HONOUR JUDGE Lewis

(sitting as a Judge of the High Court)

Claim No. QB-2021-002600

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

David Sherborne (instructed by Brabners LLP) for the Claimant

John Stables (instructed by Shakespeare Martineau) for the Defendant

Hearing date: 28 November 2022

Approved Judgment

This judgment was handed down remotely at 10:30am on 22 March 2023 by circulation to parties or their representatives by e-mail and release to the National Archives

HIS HONOUR JUDGE Lewis

Lewis
1

The claimant is a plastic surgeon practising mostly in London and Manchester. He features regularly in national broadcast and print media.

2

The defendant is an art dealer and gallery director. She was a patient of the claimant, having undergone plastic surgery procedures in London on 28 November 2020.

3

On 20 May 2021, the defendant posted a “Google Business Review” (“GBR”) on the Google search website in respect of the claimant's Harley Street surgery (“the Review”). The words complained of by the claimant are shown in bold:

“The worst experience of my entire life ! Mr Frati was late on my first consultation and spent the whole time scrolling through his phone while he left he silver tonged [sic] assistant to talk to me. At the hospital my operation was 4pm I was kept waiting from 12 noon until 9.30 at night with not even an apology. I was out of surgery at 2.30am! I have never felt so ill in my life, the hospital is not a private hospital it is run by National health staff mixed with private nurses. The nursing left a lot to be desired with many of them. Then you have to deal with a heavy handed Mr Frati which caused me anxiety every time I had to see him. After care with this practice is always met with waiting for up to an hour after your appointment on many occasions. My results are terrible I looked better before in many areas. I am now suing this surgeon as he doesn't seem to care less what he has done to me and communication is not one of his strong points that's for sure. I am disgusted with how I have been treated and the whole 5 star rating is clearly fake as there is no way in the world this man can be called professional. Most are celebrities that have had a half price nose job or breast implants to post out and promote him. Gemma Collins brought him to my attention on a program I was watching, she clearly has no moral compass either! I have written to her to inform her to be careful who she promotes as one day someone could die from being drawn in by people such as her. I could go on but I will leave it there!”.

4

At 23.33 on Thursday 20 May 2021 the claimant received a notification that the Review had been posted on his Harley Street GBR.

5

On Monday 24 May 2021 at 09.55, the claimant's then solicitors sent the defendant a letter of claim. Later that day, the defendant changed the Review, removing the words complained of. She says she did this at 11.15. The claimant does not know if this is correct but accepts that the Review had been taken down by 12.45 that day.

6

On 6 July 2021, the claimant issued proceedings against the defendant for libel and harassment. The claimant seeks damages up to £100,000 and an injunction preventing republication of the words complained of, or similar words defamatory of the claimant. A claim for malicious falsehood is pleaded in the particulars of claim, but not in the claim form. For the purposes of today, I have proceeded on the basis that if such a claim were viable, permission to amend the claim form would be granted.

7

The claimant says that he does not take issue with the defendant expressing negative opinions of the treatment she feels she received, whether unfounded or not. His complaint is that the Review included false and defamatory allegations of fact, namely that he had been perpetrating a fraudulent scam whereby he provided half price cosmetic surgical procedures to celebrities in exchange for them posting false social media reviews promoting his services to the general public.

8

The defence served in relation to the libel claim disputes the claimant's pleaded meaning and denies that what was published was defamatory at common law, or that it caused serious harm. The defendant does not rely on a defence of truth, and instead pleads a defence of honest opinion.

9

In respect of the harassment claim, the course of conduct is said to have started when the defendant sent emails to the claimant in which she threatened to talk to the media about her treatment if he did not refund her fees in full. The claimant applied for an injunction against the defendant to prevent further harassment. On 20 July 2021, Saini J accepted undertakings from the defendant that she will not communicate with or contact or attempt to contact the claimant, or other patients of the claimant, or to intimidate, harass or pester the claimant or his patients and staff. The claimant has brought committal proceedings against the defendant in respect of alleged breaches of those undertakings. Whilst the defendant admits some of the acts relied upon in support of the harassment claim, she says she acted reasonably and was entitled to exercise her right of freedom of expression by discussing her experience of the claimant with other members of the public. She denies that she pursued a course of conduct, or that what she did could be regarded as harassment, or likely to cause the claimant anxiety, alarm or distress.

The application

10

On 4 July 2022, the defendant issued an application form in which she applied for (i) a trial of a preliminary issue on meaning, and whether the meaning of the words complained of was defamatory at common law; and (ii) summary judgment on the libel and malicious falsehood claims, or alternatively for them to be struck out.

11

The applications for summary judgment and/or striking out were put on the following basis:

a. “That summary judgment be entered for the defendant on the claimant's claim for libel, pursuant to CPR 24.2 on the basis that (a) the claimant has no real prospect of establishing that he has suffered serious harm to his reputation or that such harm is likely as a result of the publication sued upon (a requirement of the tort pursuant to s.1(1) of the Defamation Act 2013) and (b) there is no other compelling reason why this issue should be determined at trial; and/or

b. That the claimants libel claim be struck out, pursuant to the court's discretion under CPR 3.4(2)(a), because the Particulars of Claim disclose no reasonable grounds for bringing the libel claim (again because the claimant will be unable to establish that he has suffered serious harm to his reputation or that such harm is likely as a result of the publication sued upon); and

c. That summary judgment be entered for the defendant on the claimant's malicious falsehood claim on the grounds that the claimant's particulars of claim do not advance a reasonably arguable or properly particularised case under section 3(1) of the Defamation Act 1952, including that no mechanism of pecuniary loss is pleaded; and/or

d. That the claimant's libel and malicious falsehood claims be struck out because they are an abuse of the court's process and are otherwise likely to obstruct the just disposal of the proceedings, pursuant to the court's discretion under CPR 3.4(2)(b) and its Jameel jurisdiction (because any harm the claimant may have suffered is so trivial that proceedings would be disproportionate, ie no ‘real and substantial’ torts have been committed)”.

12

On 5 July 2022, Nicklin J directed that the summary judgment and strike out applications should be determined first, after which the court would give directions in respect of the trial of the preliminary issue. The Judge noted that this may require the court to proceed on the basis of a determination of what meaning the words complained of are capable of bearing for the purposes of any assessment of serious harm.

13

On 22 November 2022, the defendant's solicitors confirmed to the court (and the claimant) that they would be limiting their application to the issues of summary judgment and/or strike out, and not pursuing their Jameel application (see Jameel v Dow Jones & Co Inc, [2005] QB 946). The defendant's solicitor also confirmed to the claimant's solicitor in writing that because of this change in position, there was no need for the claimant to serve any evidence in response to the Jameel application.

14

In Mr Stables' skeleton argument, and his submissions during the hearing, the scope of the application has been narrowed further. The application for summary judgment and/or to strike is now made on one ground: that the claimant's inferential case on publication does not allow for a finding of substantial publication, or indeed the likelihood of any publication whatsoever. Mr Stables confirmed that the application is now confined to issues of fact, and whether the facts put forward by the claimant provide a platform for there to be an inference of publication. Mr Stables confirmed that the strike out application does not add anything to his primary application for summary judgment.

15

The defendant does not pursue her application in respect of the libel claim on the basis that the claimant has no real prospect of establishing that he has suffered serious harm pursuant to s.1 of the Defamation Act 2013. Nor does she pursue her application in respect of the malicious falsehood claim on the basis that the particulars of claim do not advance a reasonably arguable or properly particularised case under section 3(1) of the Defamation Act 1952.

16

The defendant has not made any application to amend her application notice. In these circumstances, it could be said...

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