Mr. Hilali Noordeen v Mrs. Joyce Rosemary Hill and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Males |
| Judgment Date | 17 October 2012 |
| Neutral Citation | [2012] EWHC 2847 (QB) |
| Court | Queen's Bench Division |
| Date | 17 October 2012 |
| Docket Number | Case No: HQ12X00770 |
[2012] EWHC 2847 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Males
Case No: HQ12X00770
Oliver Hyams for the Claimant
Rory Dunlop (instructed by Capsticks) for the Defendant
Hearing date: 11 th October 2012
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.
Introduction
This is an application by Mr Hilali Noordeen, a consultant orthopaedic and spinal surgeon at the Royal National Orthopaedic Hospital ("the Royal National"), for a Norwich Pharmacal order against the first defendant, Mrs Rosemary Hill, who is the chair of the London Stanmore Research Ethics Committee ("REC"). Mr Noordeen's asked Mr Hyams whether case is that he has been or may have been defamed by a person unknown who said something to Mrs Hill, which caused her to say something to Sheila Oliver of the National Research Ethics Service ("NRES"), which in turn led to a letter being written by Dr Janet Wisely the director of NRES to the joint medical directors of the Royal National Orthopaedic Hospital Trust, the content of which was defamatory of him. By this application Mr Noordeen seeks to find out the identity of the person(s) who spoke to Mrs Hill and what it was that he, she or they said, so that he can bring proceedings for defamation. He accepts that what was said would in all probability attract qualified privilege, but suggests that such privilege would be lost because the statement was made, or at any rate may have been made, maliciously.
Mrs Hill resists disclosing the identity of the person in question to Mr Noordeen on the grounds, in essence, that there is no realistic prospect of the claimant succeeding in an action for defamation against the person concerned, and that in any event the application should be refused as a matter of discretion. The second defendant, the Health Research Agency, is the body with responsibility for Research Ethics Committees and has been joined as a party at its request as it accepts responsibility for any costs which may be ordered against Mrs Hill, but has not otherwise played any part in the proceedings.
At the conclusion of the hearing I announced my decision that this claim would be dismissed, with reasons to be given later. These are my reasons.
The Facts
Mr Noordeen is a very experienced spinal surgeon. From 1995 until July 2010 he worked both at the Great Ormond Street Hospital and at the Royal National. Since July 2010 he has only worked at the Royal National. He has been a pioneer, and it seems a very successful pioneer, in the use of "growth rods" in children with scoliosis – i.e. rods which are inserted into the spine, in order to assist the patient's spine to grow straight rather than curved. Until recently such growth rods have needed to be lengthened every six months as the patient grows, which requires repeated open surgery with all its attendant hazards.
In 2009 a new kind of growth rod was developed – a magnetic growth rod, which could be extended without surgery by means of an external magnet. This was, at least potentially, a major breakthrough, not only because it avoided the need for repeated operations at six month intervals, but also because patients who would not have been able to have growth rods implanted into their spines because they could not have withstood repeated major operations would now be able to benefit from the treatment. These magnetic growth rods received a CE (Conformité Européene) mark in Germany after testing, albeit on pigs and not on human beings, which meant that it would also be possible for them to be used in this country.
Mr Noordeen was an enthusiastic advocate of the new magnetic rods and obtained the appropriate clinical governance approval to carry out operations using this new kind of growth rod at Great Ormond Street. By 1 July 2010 when he ceased to have any formal sessions at Great Ormond Street he had used the new magnetic growth rods in 26 patients. It was and is his view that the new magnetic rods represent such an advance on the previous technology that it is not now in the best interests of patients for the old fixed rods to be used.
Mr Noordeen was therefore keen to be able to use the new magnetic rods when treating his patients at the Royal National as well as at Great Ormond Street, particularly after he gave up his position at Great Ormond Street. He wished also to carry out a research project on the use of the new magnetic rods. In order to carry out research on patients, those working in the National Health Service are required not only to demonstrate the safety of the proposed research programme, but also to satisfy a Research Ethics Committee that the research is ethical. That is a separate matter from the safety of the research and involves a variety of considerations, including such matters as whether the research is likely to yield useful new information, whether the risks are explained to prospective participants with sufficient clarity, whether appropriate procedures are in place to ensure that patients are not pressurised into agreeing to take part, and whether the researcher has or may have any personal financial interest in the outcome of the research project. Research Ethics Committees are appointed by local NHS health authorities to consider these and other similar matters. Typically they consist of both clinicians and lay people who give their time to sitting on such committees on a voluntary and unpaid basis. Mrs Hill has for some years been the chair of the London Stanmore REC ("the REC").
In January 2010 Mr Noordeen applied to the REC which Mrs Hill chaired for permission to carry out a patient study into the use of magnetic growth rods. He submitted, as part of his application, the details of the study that he wished to pursue. In Mrs Hill's absence the REC met to consider his application. The committee decided to reject Mr Noordeen's application for permission to carry out this study and, in a letter dated 11 February 2010, informed him of this decision. There were various points of concern, including the fact that (as was at any rate understood to be the case) Mr Noordeen had a personal involvement in the organisation sponsoring the research which needed to be clarified. The letter of rejection also contained the sentence:
"it was also thought that Dr Noordeen may not need ethics approval if his study is indeed using the device for the purpose for which it already has CE marking."
In fact, this was a mistake, albeit tentatively expressed, on the part of the REC. In order to carry out a patient study, Mr Noordeen did need ethics approval, which he did not have. However, the CE marking did give Mr Noordeen the right to implant the magnetic rods in patients so long as he did not do so as part of carrying out a patient study into the use of such rods. He did in fact continue to use magnetic rods in treating his patients, including some (it appears only two) at the Royal National. Mr Noordeen indicated, through his counsel, that in view of his position as a consultant at both hospitals, the clinical governance approval for use of the magnetic rods at Great Ormond Street also enabled him to use magnetic rods at the Royal National.
In due course Mrs Hill noticed the error in the letter dated 11 February 2010 and, as a result, wrote to Mr Noordeen on 5 May 2010. Her letter included the statement:
"The type of research you are doing must always have ethical approval from a REC. The last paragraph of the letter sent to you refusing approval does not say that you 'do not' need ethical approval. The words 'may not' were used meaning it was purely a discussion and does not change the ethical opinion of the Committee."
She went on to explain that the statement in the earlier letter was an error due to the absence from the February meeting of those with experience of relevant legislation.
It appears from this letter ("the type of research you are doing") that Mrs Hill may already by this stage have been under the mistaken impression that Mr Noordeen was actually carrying out his proposed research project without having obtained the necessary ethical approval. In fact he was not. Mr Noordeen responded on 10 May 2010, making clear that he understood the need for ethical approval and that the proposed study was not going ahead:
"1. I completely understand that this type of research must have ethical approval from an REC.
2. I understand that the study cannot be conducted without Ethical Committee approval.
3. The Company that sponsors the study, I believe, do not wish for the study to go ahead either here or at Great Ormond Street."
In June or July 2010 Mrs Hill was informed by one of the REC members about a website called "scoliosis support" where patients were raising concerns about the use of magnetic growth rods. She visited that website and saw an exchange of comments where one person, apparently the parent of one of the Mr Noordeen's patients, advised another in strong terms not to agree to the implanting of magnetic rods, describing this as "the worst decision I've ever made in my life" or similar words. Mrs Hill had no knowledge of what lay behind these comments, or whether they were justified, and nor do I. However, not surprisingly, she was concerned about them. The comments in question have now been removed from the website. It would be impossible for Mrs Hill to identify the maker of these comments.
At about the same time Mrs Hill was informed by more than one clinician at the Royal National that Mr...
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