Pena v Tameside Hospital NHS Foundation Trust & Anor

The Claimant in this libel action is Mr Milton Pena, who is a consultant orthopaedic surgeon employed by the Tameside Hospital NHS Foundation Trust, which is the First Defendant. The Second Defendant is Dr Lenzi Hanna, a consultant in obstetrics and gynaecology. He is also employed by the Trust, which is responsible for operating the Tameside General Hospital in Greater Manchester.

The Claimant seeks damages for libel in respect of two email publications sent by the Second Defendant on, respectively, 28 September and 12 October 2010. The reason why the Trust has been joined as the First Defendant is the Claimant’s contention that the emails were published in the course of Dr Hanna’s employment.

There are two applications now before the court, on which I heard argument on 2 November 2011. The first in point of time is the Claimant’s application, dated 1 September 2011, to strike out two paragraphs in the defence. The Defendants responded with an application dated 19 September, seeking summary judgment and/or to strike out the claim. There is something of an overlap because the two passages in the defence that are under challenge reflect the grounds upon which the Defendants, for their part, say that the claim should be struck out.

Both Defendants were represented at the hearing by Mr Jonathan Crystal, notwithstanding the fact that the Trust seeks to extricate itself from the proceedings, on a separate ground, that is to say because it claims that the emails in question could not possibly be viewed as having been sent by Dr Hanna in the course of his employment. It is thus submitted that there is no reason why the Trust should be held liable for those communications and it is entitled to summary judgment for that reason alone.

Alternatively, the Trust relies upon the same arguments as Dr Hanna for the purpose of bringing the proceedings to an early conclusion. It is argued that the claim represents an abuse of process, in the sense that there is no “real or substantial tort”, and no prospect of the Claimant achieving any meaningful vindication of his reputation. The proceedings offer him no legitimate or tangible advantage such as to justify the expense and inconvenience which such a claim inevitably causes to the Defendants and, in particular, to Dr Hanna. It is further submitted that, in any event, the publications are so obviously protected by qualified privilege that the Defendants are bound to succeed unless the Claimant overcomes the very considerable hurdle of establishing malice. There is a plea of malice against Dr Hanna and, if the Claimant were able to establish that the publications took place in the course of his employment, the Trust would be likely to be held vicariously liable for any malice proved. It would be likely to defeat any plea of qualified privilege that would be otherwise available to it. (Obviously, if the publications did not take place in the course of Dr Hanna’s employment, that is the end of the matter so far as the Trust is concerned.)

Having set out the areas of dispute, I should now say something about the background. The Claimant has for a number of years served as chairman of the Senior Medical Staff Committee (“the SMSC”) at the hospital. That is a body the object of which is to represent the interests of consultants and other senior medical staff. He was most recently re-elected to that position on 18 June 2010 when, as it happens, the sole rival candidate was none other than Dr Hanna.

It seems to be undisputed that the Claimant has for many years expressed concerns about the standard of care at the hospital. On 24 September 2010, he circulated an email to those senior medical staff comprising the membership of the SMSC which was headed “Confidence in the Trust Board of Tameside NHS Foundation”. He has attempted to summarise the effect of it at paragraph 8 of the particulars of claim. He says that it:

Not surprisingly, and as he must have contemplated, this communication provoked a good deal of email traffic and heated debate. Some people appear to have felt strongly about the Claimant’s campaign and the way he was going about it. Some members felt pressurised and others thought it inappropriate to give the impression that those who remained silent, or did not positively express confidence in the Board, were to be regarded as favouring a vote of no confidence. It was against this background, and as part of the heated debate which he himself had instigated, that the two emails were sent that are now said to give rise to a claim in libel. It is necessary for them to be read and understood in context.

A Mr Hafiz Rehman joined in on 27 September:

“Bad times come on all, let it be home, workplace, nation or the world. It is unfortunate that our executives have taken a very rigid, rude & kings & Queens kind of attitude which is untenable in this day & age. But if we as consultant body do tit for tat, it will not be good for the patients we are bothered about. I feel if we are unhappy, as we truly are, we should try to engage the executives, one way or the other. Keep some record of the efforts consultant body make to bring a change. If all fails, we should then go for formal No confidence.

I hope our executives are sensible & will be keen to listen in the true sense of the word, think about their attitudes & resolve the issues.

Let us not forget, most of the economic pressures are centrally driven, unfortunately our execs have not been able to communicate effectively & have ended up in this mess. Can we give them some suggestions! Can we help them out, I agree we do not need so many of them, but can we come up with some positive suggestions & hope they listen.

Kind regards

hafiz”

It seems to have been in response to this contribution that Dr Hanna sent the first of the two emails complained of the following day:

“DEAR ALL

I totally agree with what Hafiz has said.

We are in a democratic country where our voices count. For the majority of you who are not aware that this vote of confidence in the trust issue came out only due to the fact that a few people including the chair of the HSMSC are angry that the Trust has decided to stop the [Waiting List Initiative] which was much better than doing private practice, and not because of issues of patients care being compromised. All the recent figures and facts indicate that the patients care, the number of nurses per patient and mortality figures are improving. SO WHY HAS THIS ISSUE COME OUT NOW? You are all clever and educated people THINK!!!!! And tell me if I am wrong?

Lenzi Hanna”

A little later, on 11 October 2010, the Claimant, again in his capacity as chairman of SMSC, sent a further email to colleagues under the heading “Survey of Senior Doctors’ Confidence in the Trust Board of THFT”. This claimed that the majority appeared to have no confidence in the Trust Board and the Claimant observed that a “vote of a no confidence will be settled once and for all by a secret ballot which I will be organising over the coming few weeks”.

This again met with considerable criticism. In particular, Elizabeth Shackley commented:

“This survey does not have validity. I give my support to the Board and agree with Andy Watson and David Levy’s comments. I also feel annoyed that I am being pressurised into participating in this unhelpful email debate.”

It was at this point, by way of responding to Ms Shackley’s email, that Dr Hanna published the second of the two emails complained of:

“These meaningless email debates are a waste of our time. Mr Pena is a bitter person with a personal vendetta against the Trust Board. So whatever all of say [sic] will not make him change his view.

I think we should be calling for a vote of no confidence in his leadership of the SMHSC because all he has done in the last few years as a chair was to try to get rid of the Trust Board. He has not done one positive thing to benefit us. Only he has dragged this hospital into the jaws of the media which love gossip and love to see his name and picture in the newspaper (the advertiser).

I rest my case by saying I have every confidence in the trust board and have no confidence in the chair of the SHMSC as he is abusing his powers as a chair.

Lenzi Hanna”

As to the first of the two emails, the Claimant has pleaded the following natural and ordinary meanings:

Mr Crystal’s first argument, specifically on the First Defendant’s behalf, is that the pleaded attribution of vicarious liability to the Trust has no real prospect of success.

My attention was invited to the decision of the House of Lords in Lister v Hesley Hall Ltd [2001] UKHL 22 and, in the light of this, it was submitted that the appropriate test is whether the wrongful conduct alleged was so closely connected with the acts the employee was authorised to do that “for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment”. While it is true that the Trust did not require Dr Hanna to publish the emails, and also that there is no reason to suppose that the Trust was aware of their contents prior to publication, that would not be determinative of the matter.

Mr Simeon-Jones, on behalf of the Claimant, referred to a passage in the speech of Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 266 at [26] in support of the proposition that the general “connection” test to which I have referred is unlikely to offer a simple answer in every case. The issue is likely to arise in a whole variety of circumstances.

I have come to the conclusion that the publication of the emails, in the circumstances I have briefly described, could not be legitimately regarded as being closely connected with the discharge of any of the functions Dr Hanna was employed to perform, whether clinical or administrative. While the subject-matter of the emails was clearly concerned with the way the hospital was run and the way the Claimant was behaving as a representative of the interests of senior clinical staff, that does not mean that Dr Hanna was acting, in any sense, on the Trust’s behalf in giving vent to his personal views and feelings on the subject or that it would accord with justice for the Trust to be fixed with legal liability for what he chose to say.

The facts are, of course, far removed from those considered by their Lordships in the Hesley Hall case. They were concerned with the potential liability of the employers of a warden in a boarding house who had systematically subjected a number of the pupils in his charge to sexual abuse. Their Lordships allowed the appeal on the basis that the circumstances of the warden’s employment included close contact with the pupils, and thus inherent risks. There was accordingly a sufficient connection between the work he had been employed to do and the acts of abuse he had committed. Having considered the important decisions of the Canadian Supreme Court in Bazley v Curry 174 DLR (4^th) 45 and Jacoby v Griffiths 174 DLR (4^th) 71, Lord Steyn drew the following conclusion at [28]:

“Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present cases clearly fall on the side of vicarious liability.”

Lord Clyde, in similar vein, made the following observations at [50]:

“ … [H]is general duty was to look after and to care for, among others, the appellants. That function was one which the respondents had delegated to him. That he performed that function in a way which was an abuse of his position and an abnegation of his duty does not sever the connection with his employment. The particular acts which he carried out upon the boys have to be viewed not in isolation but in the context and the circumstances in which they occurred. Given that he had a general authority in the management of the house and in the care and supervision of the boys in it, the employers should be liable for the way in which he behaved towards them in his capacity as warden of the house. The respondents should then be vicariously liable to the appellants for the injury and damage which they suffered at the hands of the warden.”

It seems clear to me, by contrast, that the writing of the emails by Dr Hanna, or for that matter by any of the other senior clinical staff involved, could not be said to be in any way part of or incidental to the performance of the clinical function to which his employment related. Nor do I see it as in any way “just” that the Trust should be held liable for anything said by these doctors by way of participating in the debate.

For these reasons, in my judgment, Mr Crystal succeeds in his first argument and the Trust is entitled to summary judgment.

It is submitted on Dr Hanna’s behalf that his defences of qualified privilege and fair (or honest) comment are bound to succeed on the undisputed facts of the case and, moreover, that there is no realistic prospect of either of them being refuted by malice on the part of Dr Hanna.

The Claimant himself avers in paragraph 9 of the particulars of claim that:

“As a natural consequence of the Claimant’s said e-mail a debate was provoked between members of the SMSC concerning the merits or otherwise of the Board, of levels of confidence therein, and of the merits of the proposed vote of no confidence, which debate was conducted at least in large part by e-mails circulated between the said members.”

I would accept that the debate appears in large measure to have been a “natural consequence” of the Claimant’s own communication with his colleagues. They were, in effect, communicating with him at his invitation on a subject-matter in which they all clearly had a legitimate “common and corresponding interest”. It seems to me a classic case of traditional qualified privilege in that respect. The defence of qualified privilege is reinforced in this case by the fact that the Claimant himself generated the exchanges and, to that extent, created the occasion for a free and frank exchange of views.

One argument raised by Mr Simeon-Jones is that in appearing to criticise the Claimant or his motivation, Dr Hanna has crossed a bright line boundary into irrelevance. I am not sure that such a border can be clearly defined. In modern times, privilege has not been approached in this way. Mr Simeon-Jones himself, very fairly, cited the key passage from Lord Diplock’s speech in Horrocks v Lowe [1975] AC 135 at 151. He was explaining that, generally speaking, it is only where a defendant’s desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that “express malice” can properly be found. He continued:

“There may be evidence of the defendant’s conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true. But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied.

The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this was so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v Ward [1917] AC 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference.”

This well known passage clearly undermines the thrust of Mr Simeon-Jones’s argument on irrelevance. To deprive a participant in this kind of debate of the defence of qualified privilege, the subject-matter of the libel would have to be quite extraneous to and unconnected with the flow of the argument. The passages complained of here seem to me to be very much at the heart of the debate which, after all, was not solely concerned with the Board’s running of the hospital but also with the way in which the Claimant conducted himself in his representative role.

The remarks to be found in this exchange of emails, including those of Dr Hanna, would appear to be typical of the cut and thrust of grumpy debates of this kind concerning management, working conditions and the provision of services, whether in a public or private context.

This brings me to the next argument, which is to the effect that Dr Hanna’s remarks, in so far as they attributed a motive to the Claimant for his activities, should be classified as comment rather than factual in nature – and thus susceptible to a defence of fair (or honest) comment. It is said that they are the sort of remarks which, in the particular circumstances, an honest person could express. Accordingly, the defence should only be lost if there was material on which it could be demonstrated that, on a balance of probabilities, Dr Hanna did not actually believe in what he was saying.

Attribution of motive can often, depending on context, be properly classified as comment. It is true, of course, that the state of a man’s mind can also, on occasion, be regarded as being as much a fact as the state of his stomach. On the other hand, we can rarely establish definitively what is going on in the mind of another person and are thus dependent on inference. Where it is clear to a listener or reader that someone is drawing an inference as to another person’s motivation, it is reasonable to classify whatever he has to say in that context as comment rather than fact: see e.g. the discussion in the Court of Appeal in Branson v Bower [2001] EMLR 800, 805. The position is conveniently summarised in Duncan & Neill on Defamation (3^rd edn) at 13.16:

“Allegations about a claimant which, by their very nature, cannot be verified by another person but only established by inference (for example, statements about a claimant’s state of mind or motives) are likely to be classed as comment. In Branson v Bower it was held that it would have been clear to any reasonable reader that the author could not have had direct knowledge of the claimant’s state of mind and, accordingly, that he must have been expressing his own views.”

The learned editors also cite a passage from Keays v Guardian Newspapers Ltd [2003] EWHC 1565 (QB) at [49]:

“Where a journalist draws such an inference about a state of mind which she cannot, in the nature of things, verify, then it will generally be clear to any reasonable reader that it does not purport to be an objective statement of fact capable of verification.”

It seems to me to be clear that any reasonable reader of this exchange of emails, and especially those with the relevant local knowledge, would appreciate immediately that Dr Hanna was commenting about the Claimant’s recent conduct, and especially in the context of the proposed vote of no confidence, rather than making verifiable assertions of fact. It is thus clear to me, in the light of the modern authorities, not least the most recent pronouncement on the subject by the Supreme Court in Joseph v Spiller [2010] UKSC 53, that the relevant parts of the Defendant’s emails must be classified as comment rather than fact.

A rather narrower approach towards malice is adopted in the context of the defence of fair comment than is the case with qualified privilege (as emerges, for example, from the passages cited above from Lord Diplock’s speech in Horrocks v Lowe). Whereas, at least in theory, a defence of qualified privilege can sometimes be defeated by establishing that a defendant, even though he believed his allegations to be true, had at the time the dominant motive of damaging the claimant’s reputation, that would certainly not suffice to defeat a defence of honest comment. It emerges clearly from the remarks of Lord Nicholls in Cheng v Paul [2001] EMLR 777 that motivation would not be regarded as a sufficient basis on which to defeat such a plea. It is necessary to go further and to demonstrate, if that is possible, that the relevant defendant did not actually hold the belief he was professing.

It would be unrealistic in my judgment to allow this litigation to proceed on the basis that it could possibly be one of those rare cases in which a court is prepared to hold that the claimant has proved that the defendant did not actually believe what he was saying.

Even in the context of a defence of qualified privilege, it is appropriate to regard an allegation of malice as tantamount to one of dishonesty. Furthermore, at the pleading stage, it is necessary to identify and set out particulars of malice that are more consistent with the presence of malice (i.e. lack of honest belief or recklessness) than with its absence. This has been clear at least since the judgment of Maule J in Somerville v Hawkins (1851) 10 CB 583 and has been reaffirmed in modern times in such appellate authorities as Turner v Metro-Goldwyn-Mayer Pictures Ltd (1950) 1 All ER 449, 445 and Telnikoff v Matusevitch [1991] 1 QB 102, 120.

In the light of these authorities, the modern practice with regard to pleading malice is to be found briefly stated in Duncan & Neill on Defamation (3^rd edn) at 18.20 to 18.21:

“Malice connotes a state of mind. Where malice is pleaded therefore it is necessary to give particulars of the facts or matters relied upon. This is a general requirement, and it is supplemented by the specific provision in CPR 53 PD 2.9 that where a defence of qualified privilege or fair comment is raised the claimant must ‘serve a reply giving details of the facts or matters relied upon’.

An allegation of malice is tantamount to an accusation of dishonesty and should not be lightly made. The court is often called upon to strike out pleas of malice which are vague or speculative. When considering such applications the court applies a test similar to that used in criminal cases in light of R v Galbraith [1981] 1 WLR 1039. The claimant must set out a case which raises a probability (rather than a mere possibility) of malice.”

Other relevant authorities in this context are Alexander v Arts Council for Wales [2001] 1 WLR 1840 at [37] and Seray-Wurie v Charity Commission of England and Wales [2008] EWHC 870 (QB) at [32].

It is nowadays recognised that, for a claimant to demonstrate that the person alleged to have been malicious abused the occasion of privilege, for some purpose other than that for which public policy accords the defence, mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he will make an admission in cross-examination. In this case, for example, reliance is placed upon the fact that Dr Hanna stood in opposition to the Claimant for the post of chairman of the SMSC. That is an accurate statement of fact, but it does not begin to get a plea of malice off the ground, since no reasonable jury could infer that he had done so out of spite or from some improper motive. One often finds particulars of malice which require to be struck out for the reason that they go no further than asserting that the defendant expressed strong views or feelings in relation to the claimant. That is consistent with sincerity of belief and is not capable in itself of supporting a plea of malice. As Lord Diplock himself observed, in Horrocks v Lowe, cited above, it is very often difficult to hate the sin but love the sinner.

I turn to the particulars of malice pleaded in this case. It is necessary to preface them, however, with a reference to paragraph 2.16 of the Reply. This contains the averment that the Claimant cannot plead to the motivational inspiration of the Second Defendant, “having no direct knowledge thereof”. This would appear, on the face of it, to be somewhat inconsistent with raising a plea of malice. Nevertheless, the particulars pleaded at paragraph 6.3.2 are as follows:

“(i)

The Claimant repeats paragraph 5 of the particulars of claim (i.e. the fact that Dr Hanna was the sole alternative candidate to the Claimant in the ballot for election of the chairman of the SMSC on 18 June 2010).

(ii)

The words complained of formed part of a larger pattern of e-mails from the Second Defendant to various persons concerning the Claimant besides those pleaded in the particulars of claim in which the Second Defendant persistently criticised the Claimant (and examples follow).

(iii)

The Claimant repeats paragraphs 11 and 16 of the particulars of claim concerning publication and meaning of the second defamatory e-mail.

(iv)

The Second Defendant published the first defamatory e-mail knowing the defamatory words concerning the Claimant contained therein to be untrue and/or recklessly indifferent to their truth or falsity and/or without any honest belief in their truth.

(v)

The Second Defendant’s dominant motive in publishing the words complained of was to give vent to his personal animus, spite and ill will towards the Claimant and/or to seek to ingratiate himself with the senior staff of the First Defendant.”

There is nothing here of substance. It amounts to no more than bare assertion. Furthermore, merely to set out the particulars of publication and meaning in relation to one of the alleged libels can hardly afford evidence of malice: see e.g. the observations of Lord Diplock, cited above. In the circumstances, I conclude that the particulars of malice do not pass muster in accordance with the strict tests now applied to what is effectively a plea of dishonesty.

Once again, therefore, I uphold Mr Crystal’s submissions, having come to the conclusion that there are sound pleas of qualified privilege and fair (or honest) comment and, further, that there is no adequate plea of malice which has any realistic prospect of defeating either of those defences.

There was an additional suggestion by Mr Crystal that the Claimant was not using the libel action with a view to its legitimate purpose; that is to say, with a view to achieving a genuine vindication or restoration of reputation. The various participants in the email debate all knew of the Claimant and his methods and their views of him are unlikely to be significantly altered by following the course of a libel action or its outcome. He may be using the claim as a tactic in his ongoing campaign to undermine the Board – not least by seeking to discourage participation from anyone who wishes to express contrary views: if so, that would not be a legitimate use of court proceedings.

This argument is based on the developing jurisprudence since the advent of the Human Rights Act 1998 exemplified by the Court of Appeal’s decision in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, but there is no need for this to be determined as a separate issue, since the Defendants’ other arguments (on vicarious liability, qualified privilege, fair comment and malice) have all succeeded.

In the light of my conclusions, there is no need to address the Claimant’s application to strike out paragraphs 22 and 23 of the defence on the ground that they do not disclose reasonable grounds for defending the claim. They were merely to the effect that the Defendants wished to contend that the claim was an abuse of process and/or that it disclosed “no substantial tort”.

In the light of my rulings, the Defendants’ application for summary judgment succeeds and I shall make an order accordingly.