L v London Borough of Hammersmith & Fulham & Ors

MRS JUSTICE COX: In their five application notices issued on 8 March 2006 the first and second defendants apply for each of the claimant's five separate claims brought against them to be struck out under CPR 3.4 on the basis that the Particulars of Claim disclose no reasonable grounds for bringing the claim, or alternatively for summary judgment to be entered against the claimant under CPR 24 on the grounds that the claims have no real prospect of succeeding. Application is also made for a civil restraint order to be made against the claimant pursuant to CPR 3.11.

Before me the defendants are represented by Mr John Norman of counsel. The claimant, who has at all times been acting in person, has himself issued a number of application notices, four of which are also listed for hearing before me, in which he applies for an order to compel the defendants' solicitors to comply with the CPR and to reply to his letters within a reasonable time, and for appropriate directions in the litigation.

There are one or two procedural irregularities. There appear to be six sets of proceedings involved altogether, claims ending with the numbers 82, 85, 84, 92, 93 and 107, all of which were issued in October 2005. Acknowledgements of service have been filed. Claim number 82, however, has no Particulars of Claim attached to it in my bundle and it appears on its face to repeat a previous claim issued against the same four defendants but which was then discontinued in October 2005. There is no defendant's application notice in respect of that claim. There are also two claims, numbers 85 and 93, where the claim form was served late and for which an extension of time will be required if they are to proceed.

It was, however, agreed at the outset of the hearing that I would deal first with the defendants' applications and in that respect the relevant facts are these: as I have stated, this claimant has acted in person throughout. The claims allege, essentially, defamation arising out of his ill health, including previous mental illness, and his involvement in 2003 and 2004 with health care and social work professionals employed by the first or second defendants and named as individual defendants in the various claims. The first and second defendants alone are before the court in these applications but the claims against them are brought on the basis that they are vicariously liable for the actions of the individual, named defendants. I can, therefore, deal with the matters raised so far as all the defendants are concerned.

The Particulars of Claim all take a similar form, although referring at various points to different personnel and events. The most helpful summary of the relevant medical background, however, is to be found in a report from Dr Andrew Montgomery, Specialist Registrar in Psychiatry, dated 22 November 2004 and his subsequent letter in June 2005, which reports were requested by the claimant himself. These reveal that the claimant first became unwell in May 1999 and was referred by his GP to the emergency psychiatric service where he was found to be suffering from depression.

During 2001 and 2002 he presented on a number of occasions to Accident and Emergency at the Charing Cross Hospital with throat and head pain, which was much later on diagnosed as temporal mandibular joint syndrome, a stress related condition causing pain in the neck and face. He was found to be suffering from depression and anxiety, attempted suicide on two occasions and was referred to the relevant community mental health team and diagnosed in August 2002 as suffering from a major depressive disorder. In autumn 2003 his ill health prevented him from attending his mental health team appointments and he was admitted to the Charing Cross Hospital as a voluntary patient in November 2003. In January 2004 he felt he had been discharged from hospital inappropriately and made complaints against the second defendant, refusing to attend appointments with the consultant psychiatrist, Dr Phelan.

In May 2004 the manager of the flats where the claimant lives wrote to the mental health team alleging that the claimant had been harassing other residents and that the police had been called on two occasions. A Mental Health Act assessment was arranged in June 2004 when it was felt that the claimant was showing signs of hypomania. On 30 June he was admitted to hospital under section 2 of the Mental Health Act 1983. His mood settled after he was given appropriate medication and he was discharged from hospital on 26 July 2004 with a diagnosis of bipolar affective disorder, which is a mental illness within the meaning of the Act. Dr Montgomery stated that between 2001 and August 2004 the severity of the claimant's illness had rendered him incapable of managing his affairs adequately, but when reviewed in clinic on 7 September 2004 the claimant was then showing no symptoms of mental illness.

The claimant applied for and received copies of his medical notes from the second defendant in October 2004. All the claims he now brings arise from what he describes as "maliciously false defamatory allegations in the medical notes that were published by the named defendants." Each of the five claims alleges against the defendants both defamation and an unspecified "tortious conspiracy". At the end of each set of Particulars of Claim the claimant also alleges violation of his rights under articles 3 and 6 of the European Convention on Human Rights as a result of the defamatory remarks. However, it is clear that his primary cause of action is in defamation, which was the only cause of action that the claimant referred to during his lengthy oral arguments before me. The other claims seem to me to add nothing of substance to the issues.

Each claim relates to a separate incident, each derived from documents which form part of the claimant's formal clinical records. Mr Norman took me through the particular pleaded matters in each claim. The basis of the claims appears to be the passing on to other professionals of information by Mental Health Act approved social workers relating to the claimant's mental health. In every case the individual allegedly disclosing the information and the person receiving it are involved in the provision of health or social care. The information disclosed in the reports complained of all consists of observations made in the course of formal records which form part of the assessments and inquiries carried out between 2003 and July 2004 for the purposes of determining whether the claimant should be admitted to hospital under the Mental Health Act, or for investigating his mental health generally with a view to determining appropriate medical treatment or social care.

Prima facie most of the claims appear to be time barred since the claims were issued in October 2005 and the limitation period for defamation is one year by virtue of section 4(A) of the 1980 Limitation Act. However, limitation issues are not the main plank of Mr Norman's submissions in support of the application to strike out. He accepts that such issues are not capable of being resolved at this hearing and that there could in any event be some scope for extending time under section 28 of the Act relating to the claimant's disability.

There is a further relevant factor, namely that the claimant had previously issued very similar proceedings against both defendants and two named individuals (claim number 026754) but then discontinued them on 24 October 2005 so that the defendants' application to strike out that claim, issued shortly before discontinuance, was in fact never heard. These separate claims were then brought, one of which named as defendant one of the individual defendants in the discontinued proceedings, namely, the social worker Cressida King.

Before this hearing began, having read the papers, including the claimant's medical history, some of the correspondence from the claimant to the defendants and his lengthy witness statement and the exhibits attached to it, I raised at the outset the question of the claimant's present mental state and whether there was currently any issue as to his capacity. However, there is nothing in any of the material before me to suggest that the claimant has suffered any further symptoms of mental illness since Dr Montgomery last saw him in September 2004. Further, the claimant was able to articulate his arguments before me in a coherent and sustained manner and to answer questions appropriately throughout the hearing. In my judgment, therefore, there is no necessity to investigate this matter further and I am satisfied that he is not currently under a disability. I therefore proceeded to deal with the applications before me with the claimant representing himself.

Mr Norman's first submission is that section 139 of the 1983 Act is engaged and that the claimant should have obtained the leave of the High Court before commencing proceedings against all these defendants. Proceedings instituted without such leave having been obtained are a nullity. He submits that as a matter of practicality I could now give such leave and permit the claims to proceed but he contends that there are no grounds for granting leave and that the claims should therefore be struck out. Section 139 provides, so far as is relevant, as follows:

In the case of Pountney v Griffiths [1976] AC 314 the House of Lords held that subsection (1) extends to any act, provided it has been carried out in purported pursuance of the Act, and that its scope is not limited to acts done or purported to be done in pursuance of functions specifically provided for in the terms of the Act itself (see the speech of Lord Edmund-Davies, with whom the other members of the House agreed, at pages 335C onwards).

I therefore reject the claimant's argument that section 139 only applies to those who have been detained under the Act and I agree with Mr Norman that the section is engaged, given the nature of the matters complained about by this claimant, to which I have already referred.

The test to be applied under section 139(2) was considered by the Court of Appeal in the case of Winch v Jones [1986] 1QB 296. Donaldson LJ, with whom the other members of the court agreed, referred in his judgment to the fact that Parliament intended by these provisions to provide those who operate under the mental health legislation with some further protection. The section is, as he observes, intended to strike a balance between the legitimate interests of an applicant to be allowed to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process and the equally legitimate interests of the respondents to such an application not to be subjected to the risk of being harassed by baseless claims by those who have been treated under the Acts. In striking such a balance he said at page 305C:

In deciding whether the claimant's complaints appear to be such that they deserve fuller investigation it is necessary to consider Mr Norman's second submission, which is that none of the claims has any reasonable prospect of success and that they should be struck out under CPR 24. He did not rely on CPR 3.4 in his oral submissions, preferring to found his challenge to the claims on the lack of any reasonable prospect of their succeeding.

In this respect, since the context for publication of the alleged defamatory material is the performance of both statutory and clinical functions by health and social care professionals acting in the course of their duties in relation to the claimant's mental health and treatment for it, it necessarily attracts qualified privilege. The claimant himself fairly accepted that during the course of argument. Accordingly, it is necessary for the claimant to establish malice and in this context, as Mr Norman observes, the requirement to establish malice may be said to mirror the position under section 139(1) and the need for a claimant to prove bad faith on the part of any person accused of misconduct.

In the present claims, having considered the matter carefully, I find myself in agreement with Mr Norman that the assertions of malice made in each set of the Particulars of Claim have no reasonable prospect of success. Though expressed slightly differently in each of the five claims, the allegations consist essentially of the claimant's contention that the statements made are all grossly false, that they were made in a cavalier fashion and that the defendants refuse to withdraw them or to apologise. Some of the allegations are quite extraordinary. In claim number 92 the named defendant, Mr McKorkle, is said, for example, at paragraph 5.7 to have deliberately increased the size of the type face and the font size in his report in order to render the offending forensic paragraph more "eye-catching" for the reader.

The claimant's argument in response was that he still had allegations of express malice that he wished to make and that he was entitled to wait until the defendants had filed their Defences and raised qualified privilege. He did not, however, articulate what those allegations were despite my invitation to him to do so and there would appear to me to be no other basis for establishing malice being advanced by the claimant. Further, whilst he has alleged a general conspiracy between various unconnected individuals, it is a bare assertion which in my view cannot be said to support any allegation of malice. I have already indicated that the alleged violations of the claimant's Human Rights appear to me to be wholly unsustainable.

For these reasons I am satisfied that these claims have no reasonable prospect of succeeding and I would strike them out under CPR 24 on that basis. In the circumstances, however, and for the purposes of section 139(2), the complaints, in my judgment, are such that they do not merit fuller investigation and it would be neither proportionate nor in the interests of justice to permit them to proceed further. The proceedings are therefore a nullity since no leave has been obtained from the High Court and all six claims to which I have referred in this judgment must therefore be struck out on that basis.

I turn therefore to the defendants' application for a civil restraint order. As Mr Norman clarified in his submissions, the defendants seek in this case an extended civil restraint order, the material provisions relating to which are set out in CPR 3.11, 3.4(6) and in the related Practice Direction. The threshold criteria are that: "a party has persistently issued claims or made applications which are totally without merit."

Mr Norman accepted that the circumstances in which this application is made are somewhat unusual. Nevertheless he submitted that not only has the claimant issued previous proceedings but he has then issued the current six claims after abandoning those earlier proceedings. Further, he contends that all these claims are wholly without merit, as were his previous proceedings. The history shows, he contends, that the claimant has effectively dangled proceedings in front of the defendants, has then not proceeded with them and has then issued a multiplicity of claims making essentially the same allegations. It is apparent that, unless restrained, the claimant will continue to pursue claims of this kind and an extended civil restraint order is appropriate.

I have considered Mr Norman's submissions carefully, but I am not persuaded that the threshold criteria for such an order have been met in this case. If it is correct to describe claims found to have no reasonable prospect of succeeding as claims "totally without merit", and I am minded to agree that it is, I do not consider that the claimant's conduct to date can properly be categorised as "persistent". The history shows that there was just one previous claim abandoned in the same month as the six separate claims were issued, all on the same date. Whilst the claimant has issued application notices seeking to extend time for service, that was necessary since the claim form in two cases was served late and if the claims were to proceed an extension of time was reasonably sought.

Whilst I recognise that the defendants have been inconvenienced and put to expense, which, as Mr Norman pragmatically recognises, is unlikely to be recovered, for the reasons I have given the application for a civil restraint order must be dismissed.

In view of my conclusions on the defendants' five application notices it is not now necessary for me to determine the claimant's own applications, which are all therefore dismissed.