ZC v Royal Free London NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 26 July 2019 |
| Neutral Citation | [2019] EWHC 2040 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17C03429 |
| Date | 26 July 2019 |
[2019] EWHC 2040 (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 Julian Knowles
Case No: HQ17C03429
The Claimant appeared in person
Christopher Loxton (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 8 and 9 April 2019
Approved Judgment
The Honourable
In this action the Claimant, ZC, seeks damages for libel from the Defendant, the Royal Free NHS Foundation Trust (the Defendant/the hospital/the Trust). The words complained of in the Particulars of Claim were contained in an email sent on 12 September 2016 by a solicitor employed by the Defendant. She also claims damages for misuse of private information and breach of Article 8 of the European Convention on Human Rights.
Anonymisation
The hearing before me was listed in open court and the names of the parties appeared on the court list in the normal way. Accordingly, they were available to the public at the Royal Courts of Justice and online. Towards the end of the first day of the trial the Claimant applied for an order pursuant to CPR r 39.2(4) that the judgment be anonymised so that she be referred to by her initials and other potentially identifying information be redacted from the judgment. I made a temporary order that the court list for the second day simply refer to the Claimant by her initials and I indicated I would hear submissions on the issue. On the second day I heard submissions from the Claimant and from the Defendant, and I also heard submissions from the Press Association. Both the Defendant and the Press Association opposed the application. There was no application by the Claimant that the trial be heard in private. Although I indicated a tentative view, I reserved my decision.
CPR r 39.2(4) provides:
“(4) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”
The test to be applied where a party seeks anonymisation is set out in Vol 1 of the White Book 2019 at p1248:
“The power of the court to order that the identity of any party or witnesses must not be disclosed is a broad power and the ‘interests’ involved may include, although they are not limited to, privacy and confidentiality … The question of whether a court should grant an order under r 39.2(4), or any other anonymity order, is not a matter of the judge's discretion, but is a matter of obligation under the Human Rights Act 1998, s 6 and ECHR art 8. The test to be applied is whether there is sufficient public interest in publishing a report of proceedings that identifies the party to justify any resulting curtailment of that party's art 8 rights.”
In Re Guardian News and Media Ltd [2010] 2 AC 697, [52], Lord Rodger said:
“52. In the present case M's private and family life are interests which must be respected. On the other side, publication of a report of the proceedings, including a report identifying M, is a matter of general, public interest. Applying Lord Hoffmann's formulation, the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family's right to respect for their private and family life.”
In Commissioners for Her Majesty's Revenue and Customs v Banerjee [2009] EWHC 1229 (Ch), [26], Henderson J said:
“In determining whether it is necessary to hold a hearing in private, or to grant anonymity to a party, the court will consider whether, and if so to what extent, such an order is necessary to protect the privacy of confidential information relating to the party, or (in terms of Article 8 of the Convention) the extent to which the party's right to respect for his or her private life would be interfered with. The relevant test to be applied in deciding whether a person's Article 8(1) rights would be interfered with in the first place, or in other words whether the Article is engaged so as to require justification under Article 8(2), is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy: see Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, at paragraph 21 per Lord Nicholls of Birkenhead, and Murray v Express Newspapers Plc [2008] EWCA Civ 446, [2008] 3 WLR 1360, at paragraph 24 of the judgment of the court. If Article 8(1) is engaged, the court will then need to conduct a balancing exercise on the facts, weighing the extent of the interference with the individual's privacy on the one hand against the general interest at issue on the other hand. In cases involving the media, the competing general interest will normally be the right of freedom of expression under Article 10 of the Convention. In cases of the present type, the competing interest is the general imperative for justice to be done in public, as confirmed by Article 6(1) of the Convention.”
Having considered the matter further, for the reasons contained in a separate judgment that is confidential to the parties I conclude that this test is not satisfied, and I refuse the application for anonymisation.
However, I have anonymised this judgment on a temporary basis until the time for an appeal against my decision not to order anonymisation has expired, so as not to render an appeal otiose. In the event that no such application is made, or one is made and refused, I will issue a revised judgment identifying the Claimant.
Interlocutory appeal and application to adjourn
On the first day of the trial I heard and refused an application for permission to appeal by the Claimant against the decision of Master Yoxall of 31 January 2019 in which the Master extended time for service by the Defendant of its witness evidence and awarded the Claimant some limited costs following the Defendant's unsuccessful strike-out application. Sir Alistair MacDuff refused permission on the papers saying that ‘[t]he learned Master was correct to permit late service of statements and the costs order was entirely proportionate.’ I agreed with those reasons and for that reason refused permission. Both decisions fell well within the range of reasonable decisions open to the Master and there was no proper basis for interfering with either of them: see HRH Prince Abdulaziz Bin Mishal Bin Addulaziz Al Saud v Apex Global Management Ltd [2014] 1 WLR 4495, [13] for the proper approach by an appellate court to case management decisions taken below. In particular, the Claimant asserted that the Defendant's counsel (not Mr Loxton) had been responsible for altering the amount of costs; further investigation showed that not to be so.
I also heard and refused an application for an adjournment by the Claimant. The principal basis for that application was a supposed failure in disclosure by the Defendant of the Claimant's medical records concerning her admission to the accident and emergency department at the Defendant's hospital in December 2015. It did not appear to me that these documents were capable of advancing the issues to be decided on this claim and so I refused the application for an adjournment. The publication complained of took place in September 2016, the trial had been listed since June 2018, and I was satisfied that the Claimant had had ample opportunity to prepare her case for trial.
Other procedural matters
I received Skeleton Arguments from the parties in advance of the trial. The case was opened by the Claimant, and she gave evidence on oath and was cross-examined. I then heard from Joanne O'Sullivan, who sent the email complained of. At the time she was the Defendant's Deputy Head of Legal Services. I then heard oral closing submissions from the Claimant. Mr Loxton for the Defendant submitted written closing submissions in response, which the Claimant then replied to in writing.
Whilst I was preparing this judgment the Supreme Court gave its decision in Lachaux v Independent Print Ltd [2019] UKSC 27 on the meaning of ‘serious harm’ in s 1 of the Defamation Act 2013 (the 2013 Act). As this is a matter in issue before me, I invited written submissions from the parties, which I received.
Accordingly, I am satisfied that both parties have had a full opportunity to present their cases orally and in writing. In preparing this judgment I have taken into account all of the points that they have made. The fact that I do not mention any particular point does not mean that it has been overlooked.
The factual background
The Claimant's case is that on 11 December 2015 she was involved in an incident with her GP, whom I shall call Dr X. She said she needed hospital treatment as a consequence. On 12 December 2015 the Claimant attended the Defendant hospital's accident and emergency department (A&E). She gave the name SC. That was not her real name. She said that she used a false name because she did not want the hospital to send her notes to Dr X, thereby giving her the opportunity to amend them by way of a ‘cover-up’. She was treated at the hospital. One of the doctors who treated her was a Dr Suliman (spelt in some of the documents as ‘Soliman’).
The Claimant used false names on other occasions in her dealings with the hospital. She said in evidence that she had good reasons for doing this. I will return to this later.
Following the alleged incident with Dr X, the Claimant reported the matter to the police, however they took no action. The Claimant then began a private prosecution against Dr X. She attended Westminster Magistrates Court on 7 September 2016 in order to obtain a...
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