Dr Rina Miah v British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 08 May 2018 |
| Neutral Citation | [2018] EWHC 1054 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16D03458 |
| Date | 08 May 2018 |
Neutral Citation Number: [2018] EWHC 1054 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ16D03458
Alexandra Marzec & John Stables (instructed by TT Law) for the Claimant
Catrin Evans QC & Clara Hamer (instructed by BBC Legal) for the Defendant
Hearing date: 26 April 2018
Judgment Approved
This is an application to strike out parts of the BBC's defence to a claim for libel brought by Dr Rina Miah, a general practitioner who used to run Harbottle Surgery in Northumberland.
There is another short issue, namely the precise parameters of the issues which are to be the subject of expert evidence.
The procedural context
Dr Miah sues the BBC for libel, misuse of private information, and breach of the Data Protection Act 1998 (“ DPA”), in respect of three publications: two local television news reports broadcast on 6 October 2015 on the BBC Look North programme at 6.30pm and 10.30pm (“the Broadcasts”), and a news article published the same day on the Tyne and Wear page of the BBC News website (“the Article”).
The broadcasts were available to view on the BBC iPlayer until 7 October 2015. The Article has remained online in much the same form since first publication, but in February 2017 and May 2017 some additional text was incorporated in a clarifying final paragraph or “Loutchansky notice”, informing readers that the article is the subject of a claim, and giving some information about later developments relating to an NHS investigation into Dr Miah.
It is unnecessary to set out the words of the Broadcasts and the Article. They are set out in full in the judgment of Dingemans J, handed down on 12 February 2018 ( [2018] EWHC 206 (QB) (“the Meaning Judgment”)) at [7], [8] and [10].
Dr Miah originally complained that the Broadcasts and the Article defamed her in the meaning that there were reasonable grounds to suspect and investigate her of defrauding the NHS of public money while she was running Harbottle surgery. The BBC defended all three publications as true, in the meanings that “(1) as at 6 October 2015. … the claimant was the subject of a fraud investigation by the NHS; and/or (2) there were grounds to investigate whether the claimant had committed fraud whilst a GP at Harbottle Surgery”. Paragraph 12 of the Defence set out extensive particulars to support the truth of those two propositions.
Alternatively, in paragraph 13, the BBC defended the publications complained of as true in the meaning that “there were reasonable grounds to suspect the claimant of fraud upon the NHS whilst she was a GP at Harbottle Surgery”. In support of that defence, the BBC relied on the particulars under paragraph 12.
The BBC was thus defending the claim in reliance on pleas that it was true that there was an investigation, and that the words were true at “ Chase level 3” (grounds to investigate whether there was fraud) or alternatively “ Chase level 2” (reasonable grounds to suspect guilt of fraud): see Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 [2003] EMLR 11.
In the further alternative, the BBC relied on the defence of public interest under s 4 of the Defamation Act 2013. In addition, the BBC denied that the publications had caused or were likely to cause serious harm to Dr Miah's reputation, the threshold for actionability under s 1 of the 2013 Act.
The present application is concerned only with the libel claim. There was an application for the issue of serious harm to be tried as a preliminary issue, but that has since been conceded on the basis that an inference of serious harm can be drawn from the words complained of. There is a pending application to strike out part of the public interest defence, but that is not before me now. I am concerned only with particulars pleaded in support of the defence of truth. It is nonetheless relevant to outline some of the other issues in the case.
Dr Miah also claims that the Broadcasts and the Article involved a misuse of information which, “regardless of its accuracy or falsity” was “her private information”, namely “(1) that [she] was being investigated by NHS Protect; (2) the investigation was into allegations of fraud that had been made against her; (3) there were reasonable grounds to suspect and to investigate [her] of defrauding the NHS of public money while she was running Harbottle surgery”. The BBC's defence to this claim denies that Dr Miah had any reasonable expectation of privacy in respect of any of this information, or that any of it engages her rights under Article 8 of the Convention; alternatively, it is said that publication was in the public interest.
Further, Dr Miah complains that the processing of her personal data which the publications complained of admittedly involved was carried out by the BBC in breach of its statutory duty under DPA s 4(4), and in particular that the BBC failed to comply with the First and Fourth Data Protection Principles. As to the First Principle, her case is that the processing was unlawful (because libellous and/or a misuse of her private information), and unfair; and that the processing of that part of the information which is, by concession, “sensitive” personal data, failed to comply with any of the Schedule 3 conditions. She also complained that the personal data were not accurate in two respects: first, because it was false to suggest that there were reasonable grounds to suspect and investigate her of fraud and/or because from at the latest 23 December 2015 it was false to suggest that she was being investigated by NHS Protect, on allegations of fraud or any other allegations. The BBC's primary defence to the DPA claim is reliance on the “journalism exemption” in DPA s 32. Alternatively, it maintains that the processing was lawful, fair and satisfied a Schedule 2 and a Schedule 3 condition. It asserts that the data were not inaccurate. Its case is (among other things) that Dr Miah remained the subject of the fraud investigation at the time of the original publication on 6 October 2015.
In support of her case that “she has suffered serious harm to her reputation, dignity and autonomy”, Dr Miah alleges (among other things) that the BBC knew in December 2015 at the latest that the investigation into her conduct had been closed with no further action to be taken, yet continued to publish the Article “deliberately misleading readers into believing” that the investigation was still ongoing and that she remained under suspicion.
In support of her case that the publication has caused her embarrassment and distress, Dr Miah alleges that the BBC published the allegations she complains of when they “knew, or ought to have known, that the allegations served, and serve, no public interest and that they were published in breach of the Claimant's privacy and data protection rights… [and] that there was no sufficient basis for them.” Details in support of these allegations are given. These reassert that the BBC published “knowing that the allegations had no substance”, and maintain that letters from Dr Miah's solicitors should have prompted a “thorough investigation” which “would have revealed” various matters. Dr Miah complains that the BBC did not carry out or even attempt any such investigation.
Dr Miah applied for the trial of meaning as a preliminary issue. The trial concerned the unamended Article only. In the Meaning Judgment at [26] and [27] Dingemans J held that the publications complained of bore Chase Level 2 meanings. He held that:-
(1) the Broadcasts have the meaning that “there were reasonable grounds to suspect the Claimant of carrying out fraudulent activity against the NHS while running Harbottle Surgery”; and
(2) the Article has the meaning “there were reasonable grounds and at the date of publication of the online article there continued to be reasonable grounds to suspect the Claimant of carrying out fraudulent activity against the NHS while running Harbottle Surgery”.
The BBC has prepared a draft Amended Defence by which it seeks to defend as true the meanings which the Court has found the statements complained of to bear. That has inevitably meant the deletion of the two meanings which it had previously defended under paragraph 12 of the Defence. The publications complained of conveyed graver imputations than that. But the BBC has proposed only minor changes to the particulars relied on in support of its defence of truth. The issue is whether the BBC's changes should have gone further.
Ms Marzec would say they should have gone much further. Her application to strike out large parts of the Defence was issued as long ago as on 26 October 2017, well before the trial of the preliminary issue. Indeed, it accompanied the claimant's application for such a trial. Its resolution was sensibly postponed by agreement until after the parties had received and considered the implications of the Meaning Judgment. Encouraged by Dingemans J, Counsel have met and attempted to reach an agreement which would make a hearing unnecessary. But no agreement has been arrived at.
The strike-out application
The pleaded defence of truth
The Particulars of truth under paragraph 12 of the Defence are lengthy, running to 60 sub-paragraphs, comprising some 5,700 words. They can however be summarised, in this way.
(1) Sub-paragraphs 1 to 13 appear under the heading “Background”. These include details about Harbottle Surgery, the claimant's role there, and the role of the practice Nurse, Nicola Hooley. A summary of the NHS Quality Outcomes Framework (“QOF”) is provided, explaining how GPs obtain QOF points and payment for giving advice to patients or undertaking...
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