Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE TUGENDHAT
Between :
DR ATEF HALIM WISSA | Claimant |
- and - | |
ASSOCIATED NEWSPAPERS LIMITED | Defendant |
Oluwaseyi Ojo (Solicitor Advocate from Taylor Wood) for the Claimant
Clare Kissin (instructed by Wiggin) for the Defendant
Hearing date: 7 May 2014
Judgment
Mr Justice Tugendhat :
On 6 March 2014 the Defendant issued an application notice asking for an order that the claim in this libel action be struck out pursuant to CPR 3.4(2)(a) and/or (b) on the grounds that the statements of case disclose no reasonable grounds for bringing the claim and/or it is an abuse of the court’s process.
The background to the action is the tragic death of a young man who was the patient of the Claimant and of two other GPs with whom he practised.
The claim form was issued on 31 January 2014. The brief details of the claim as stated on that form are:
“1. The claim is for libel.
2. The Defendant is the author of a publication on its website titled, “Patient 34 died from a brain tumour the size of a tennis ball after THREE doctors mistook symptoms for depression”.
3. The publication is defamatory in (a) claiming that the diagnosis of depression was wrong (b) that the General Medical Council which is the professional regulatory body found that the care given by the Claimant was below the standard of a reasonably competent general practitioner”.
The Particulars of Claim are dated 27 January 2014. It is necessary to set them out in full:
Parties
“1. The Claimant is a general practitioner at the Robert Frew Medical Centre in the Wickford area of Essex. He is a Black British Citizen of African Origin. The Claimant obtained his Primary medical qualification in Egypt in 1975 following which he obtained his postgraduate qualification in Obstetrics and gynaecology in the United Kingdom.
The Claimant has been a medical doctor for more than 35 years and has worked 30 years in the NHS at various levels and became a Partner at the Robert Frew Medical Practice in 1996.
The Defendant is a National Newspaper and Website publishing company in the UK. The Defendant is the publisher of the Daily Mail Newspaper and its online version called Mail Online.
Publication
Since on or about 05 July 2013, the Defendant has published the following words which referred to and were defamatory of the Claimant on its website at www.dailymail.co.uk/news/article-2356636/Chris-Buckley-34-died-brain-tumor-THREE-doctors-mistook-symptoms-depression.html with a caption ‘Patient, 34, died from a brain tumour the size of a tennis ball after THREE doctors mistook symptoms for depression’.
Within the publication are statements such as ‘…..inadequate care was provided by the GP” and “in its report, the GMC concluded that the overall standard of care was seriously below that of a reasonably competent GP’.
The publication and particularly the statements were read within the jurisdiction. If necessary, the Claimant will rely on the fact that the Defendant’s websites are popular in the United Kingdom and in particular within the Essex regional area and on the fact that he is aware of a number of individuals including colleagues and patients who read the statements complained of, within the jurisdiction.
References
The statements complained of referred to the Claimant. If necessary, the Claimant will rely upon the fact that a significant but unquantifiable number of publishees of the statement complained of within the jurisdiction knew of the Claimant as the subject of the statements.
Meaning
The natural and ordinary meaning of the statements complained of was that:
The Claimant’s diagnosis of depression in the patient was wrong and has no rational clinical basis thereby causing the unnecessary death of the patient and;
That the General Medical Council, the professional regulatory body of the Claimant and doctors found the treatment provided by the Claimant to be inadequate and the Claimant incompetent as a general practitioner thereby fuelling the unjustified criticism faced by doctors from foreign countries or ethnic background.
Conduct
The said statements were untrue. The Defendant did not carry out any due diligence required of a national organisation, and knew or was reckless in not caring whether its publications were true or not.
c) The Claimant will say that the Defendant knew or ought to know that the GMC did not find the Claimant’s treatment and conduct to be below that expected of a reasonable competent general medical practitioner. The Claimant will say that the only reason for publishing a false statement is to sensationalise the publication and to encourage racial baiting.
d) The Claimant will rely on the racial abuse opined by readers on the website as evidence of the Defendant causing or permitting to be caused racial abuse and suggestion that the Claimant was incompetent as a result of his foreign sounding name.
e) The Claimant will say that the Defendant would not have published the wrong statements had the subject been a white GP of whom the General Medical Council had found not culpable.
f) In the circumstances, the Claimant will say that the Defendant has treated him differently because of his race, and the Defendant is put to strict proof of.
Damage
By reason of the publication of the said words, the Claimant has been seriously injured in his reputation and has been brought into public scandal, odium and contempt and has suffered injury to his feelings.
Furthermore, the Claimant will rely on the following facts and matters in support of his claim for damages, including aggravated damages.
Despite the fact that the Claimant wrote to the Defendant as part of the Pre-action protocol, the Defendant has refused to remove the article and asserted that the Claimant was cherry picking.
The Defendant justified its actions and averred that the publication was fair and the Claimant was given a right to reply.
The Claimant will say that he did not speak to the Defendant or its agents and he was never approached by the Defendant for comments.
Injunction
c) Unless the Defendant provides a satisfactory undertaking not to further publish the same or any similar words defamatory of the Claimant then he will seek appropriate injunctive relief at the trial of his action.
And the Claimant claims:
Damages, including aggravated damages for libel
Unreserved apology from the Claimant.”
The grounds on which the Defendant seeks the order it does are set out in the Application Notice in 8 sub-paragraphs. These read as follows:
“1.1.1 The Claimant has failed to sufficiently identify the publication of which he complains, and has failed to provide the Defendant with a copy of the publication despite repeated requests. The URL set out in the Particulars of Claim directs to an article which does not concern the Claimant.
Although the Defendant did publish an article about the Claimant on or around 5 July 2013, to the best of the Defendant’s knowledge it did not contain the specific words complained of in the Particulars of Claim.
Even if the specific words complained of in the Particulars of Claim had been published by the Defendant, they are not capable of bearing the natural and ordinary meanings pleaded by the Claimant.
In any event, the article published by the Defendant on or around 5 July 2013 was removed from the internet less that a month later, and more than five months before the Claimant’s claim was issued.
The Particulars of Claims falsely state that the article has remained online, that a request was made in pre-action correspondence for it to be removed, and that the Defendant refused to comply with this request.
Parts of the Particulars of Claim appear to attempt to litigate matters which are wholly outside of the scope of a defamation action, including an assertion that the Claimant was treated differently because of his race.
The Claimant seeks to obtain remedies, such as an “unreserved apology” which cannot properly be granted by this court; and
Despite being represented, and all the above problems having been set out in correspondence to his solicitor, the Claimant has failed to take steps to address them of his own accord.”
The main issue arising on the Application Notice arises from grounds 1.1.1, 1.1.2 and 1.1.4.
Two related matters are to be noted. First, it is now common ground that the URL in paragraph 4 of the Particulars of Claim had ceased to give access to any article of which the Claimant complains at some time before September 2013. An article (or articles) which had been published with that URL had been removed following a complaint by a Dr Ogunsanya. Dr Ogunsanya is a general practitioner who was one of the three doctors referred to in the article which had been published by the Defendant. Dr Ogunsanya is both a colleague of the Claimant in his medical practice and a partner in the firm of solicitors acting for the Claimant.
Second, it is now common ground that the article accessible on the URL identified in the Particulars of Claim was published in a number of different forms. There are two versions of it in hard copy before the court.
The earlier hard copy version includes under the by-line “published 03:47 EST, 5 July 2013 updated 04:00 EST, 5 July 2013”. In the form in which that is before the court it is a print out dated 1 March 2014. The print out identifies it as coming from a website bearing the name “NewsLookup.com”. It is headed with words which describes the article as a “cached copy” of the URL with the address given in paragraph 4 of the Particulars of Claim. The Claimant has not referred to the News Lookup.com website in his Particulars of Claim, and has not alleged that it is a website of the Defendant. The Defendant asserts that it is not a website published by itself.
The later hard copy version of the article which was published by the Defendant on its Mail Online website is in the form of a printout dated 30 July 2013. Under the by-line it includes:
“Published: 09:47 5 July 2013 updated: 15:51 10 July 2013”.
The two hard copy versions of the article published by the Defendant are not identical. And I infer that each of the two hard copy versions had been altered at least once, so that the URL address would have given readers access to at least four different versions of the article, depending upon whether they read the article between 03:47 and 03:59, or 04:00 and 09:46 on 5 July, or between 09:47 on 5 July and 15:50 on 10 July, or between 15:51 on 10 July and the date a few weeks later on which it was taken down.
Further confusion has been caused because the statement made in paragraph 5 of the Particulars of Claim is not an accurate statement in respect of either of the two hard copy versions. There is no evidence of the other versions of the article that may have been published, and so no evidence that para 5 of the Particulars of Claim gives an accurate account of any version of any article as published by the Defendant.
The words in paragraph 5 of the Particulars of Claim could be an accurate description of a different article, or they could be an inaccurate description of passages in one or other, or both, of the two hard copy versions of the article which were published by the Defendant as follows.
In the first hard copy version (printed out on 1 March 2014 from the NewLookup.com website, but apparently only ever published on the MailOnline website on 5 July 2013) there are the words in the title as quoted in para 4 of the Particulars of Claim, followed by:
“A 34-year old man has died from a brain tumour the size of a tennis ball after doctors repeatedly treated him for depression.
Three senior doctors failed to diagnose Chris Buckley’s brain tumour, which caused him to lose his speech.
All three doctors have been assessed as part of a year-long probe. Two of the doctors’ assessments of Mr Buckley were found to fall ‘seriously below that expected of a reasonably competent GP’ and were told to reflect upon the expert’s findings.
The third doctor failed to consider other causes of the speech problem, the probe found, but no further action was taken. …
Dr Oluwatoyin Ogunsanya, Dr Atef Wissa, and Dr Adegbnoyega Tayo respectively prescribed him 20mgs of anti depressant citalopram and sleeping tablets as his speech progressively worsened to the point of being ‘almost mute’.
Mr Buckley Snr raised the complaint with the GMC, but is unhappy with the outcome.
He said: ‘When the GMC employed an independent expert I would expect it to give weight to, rather than rely on, experts employed by the doctors being investigated. If a doctor can’t examine a patient they should not be in practice or allowed to examine other patients. ”…”
The corresponding words in the second hard copy version (published on the MailOnline website from 10 July at 15:51), which bore the same title, are:
“A man who was wrongly diagnosed with depression died after it was discovered that he had a brain tumour the size of a tennis ball.
Chris Buckley, 34, lost his speech as a result of the tumour which was only diagnosed when he went to A&E after he lost use of his hand.
Three doctors were investigated after Chris’s father Malcolm, went to the General Medical Council to report what had happened, but they will not face action after independent experts gave conflicting verdicts over the standard of Mr Buckley’s care.
However, it was concluded that two doctors had fallen “seriously below that expected of a reasonably competent GP” while the third failed to consider other causes of the speech problem that had set in.
Mr Buckley went to Robert Frew Surgery in Wickford, Essex, in December 2011 because he was struggling to talk and could not remember some words.
He visited the surgery with girlfriend Kelly McCain who had to speak for him because his speech had got so bad and was prescribed with anti depressant citalopram and sleeping tablets by Dr Oluwatoyin Ogunsanya who also referred him for counselling.
His condition worsened over the New Year and he saw Dr Atef Wissa who prescribed more anti depressants.
But by the end of January Mr Buckley was barely able to speak and he was referred to a mental health unit at Basildon Hospital by Dr Adegbnoyega Tayo. …”
The printout of the first hard copy version of the article covers what are identified as five out of nine pages. The printout of the second hard copy version of the article version of the article which was published on the Defendant’s MailOnline website covers what are described as twelve out of thirteen pages (of which the last page is blank). In the case of the second version of the article the text which relates to the Claimant and to Mr Buckley appears on pages 1 to 5 on the printout. There then follows, on pages 5 to 7 of the printout, text referring to another person who died, a schoolgirl aged 14. That section of the text does not relate to this Claimant or his practice at all. Pages 7 to 10 of the printout of the second hard copy version of the article contain links to videos which appear to have nothing to do with either Mr Buckley or the Claimant. Thereafter pages 11 and 12 contain readers’ comments. All twelve pages are headed “Chris Buckley, 34, dies from a brain tumour after THREE doctors mistook symptoms for depression – Mail Online”.
Both versions of the article contain further text of an explanatory and exculpatory nature.
In the case of the first hard copy version of the article (printed out on 1 March 2014 from the NewLookup.com website, but apparently only ever published on the MailOnline website on 5 July 2013) that text starts at the bottom of page 4 and reads:
“During a year-long probe independent expert Dr Leonard Peter, hired by the GMC, said Dr Ogunsanya’s and Dr Wissa’s assessments fell ‘seriously below that expected of a reasonably competent GP’ and Dr Tayo failed to consider other causes of the speech problem.
The doctors could have faced fitness to practice tribunals, which, can lead to doctors being struck off, suspended or facing other action.
However, the regulator closed the complaints after advising Dr Ogunsanya and Dr Wissa to reflect on Dr Leonard’s findings with no further action required for Dr Tayo.
GMC investigators said the opinions of three independent expert GPs defending the partners conflicted with Dr Leonard.
And Dr Oginsanya, who said it was his first GMC case in 33 years, stood by his actions but also said lessons had been learnt from the mistake.
He said: ‘It is a big jump to say there was negligence.
‘It was a very unusual presentation. When each one of us saw him there were no neurological problems, no headaches, no vomiting.
‘He (Chris) did not say he could not remember words. There was no loss of limbs and that is why I used the (depression) assessment tool.
‘We are not saying there were no lessons to be learned from this case.
‘We need to be more alert to other causes. Unfortunately he saw three different doctors at different times.
‘If a patient comes back and has not improved we need to vigorously assess why they are not getting better.
He said now if they saw another GP, that doctor would have to seek the opinion of the previous one.
The GPs were prepared to meet Malcolm Buckley to discuss the care, but refused to discuss it publicly.
A practice spokesman spoke for Dr Wissa and Dr Tayo: ‘Even though Mr Buckley has spoken publicly, we are unable to discuss confidential details of patient care.
‘The GMC conducted a thorough investigation and made no recommendations for action.
‘We offer our sincere condolences to the family…’
In the case of the second hard copy version of the article (published on the Defendant’s MailOnline website) the explanatory and exculpatory text includes the following:
“The GMC told Drs Ogunsanya and Wissa to reflect on the findings of independent expert Dr Leonard Peter while it was concluded that there was no further action needed for Dr Tayo.
Malcolm Buckley believes his son may have received better treatment sooner if he had been properly assessed and diagnosed.
He said: ‘It would also have ended the confusion he had about what was happening to him. He was upset he could not speak and trusted the GPs’ advice even thought he was not getting better.
‘I told him to stop the citalopram in the first week, but Dr Wissa told him to go back on it without sending him for any neurological examination.’
Speaking at the conclusion of the investigation he added: ‘If a doctor can’t examine a patient they shouldn’t be in practice or allowed to examine other patients.’
Dr Oginsanya said: ‘It is a big jump to say there was negligence. It was a very unusual presentation. When each one of us saw him there were no neurological problems, no headaches, no vomiting.
‘He (Chris) did not say he could not remember words. There was no loss of limbs and that is why I used the (depression) assessment tool.
‘We are not saying there were no lessons to be learned from this case. We need to be more alert to other causes. Unfortunately he saw three different doctors at different times.
‘If a patient comes back and has not improved we need to vigorously assess why they are not getting better.’
The hospital accepted there had been a prescribing error, but said the drug was sometimes prescribed to tumour sufferers.
A hospital spokesman said: ‘Mr Buckley believes the administration of a drug to his son had a negative effect, but this medication had no ill effects.
‘Sadly the reason for the deterioration in Chris’ health was because his tumour had grown. This has been explained in full to Mr Buckley and the trust has been very open about his son’s care.
A practice spokesman spoke for Dr Wissa and Dr Tayo: ‘Even though Mr Buckley has spoken publicly we are unable to discuss confidential details of patient care.
‘The GMC conducted a thorough investigation and made no recommendations for action. We offer our sincere condolences to the family.’…”
THE APPLICABLE LAW
Since the Claim Form was issued after the Defamation Act 2013 came into force on 14 January 2014 neither party has a right to trial by jury.
There is an issue between the parties in this case as to what is required to be pleaded by a Claimant in his Particulars of Claim alleging libel. This is unusual because it is the invariable practice of lawyers settling such claims to include in the Particulars of Claim the precise text of the words complained of. If the text is short it may happen to consist of the entirety of the words published on the occasion in question. More commonly the text of the words complained of is an extract from a larger text.
Ms Kissin submits that the pleading is not in accordance with the rules because it fails to set out the extract from the much longer articles which at different times were to be found at that URL. Mr Ojo submits that paragraph 4 of the Particulars of Claim is by itself sufficient compliance with the requirements of pleading because it identifies the article by its title and by the URL on which it was published on the Defendant’s website.
CPR 16.4 provides as follows (so far as material):
“(1) Particulars of claim must include (a) a concise statement of the facts on which the Claimant relies ;… (e) such other matters as may be set out in a practice direction… ”.
Practice Direction 53 applies to defamation claims. So far as material it includes the following:
“2.1 Statements of case should be confined to the information necessary to inform the other party of the nature of the case he has to meet. Such information should be set out concisely and in a manner proportionate to the subject matter of the claim.
2.2 (1) In a claim for libel the publication the subject of the claim must be identified in the claim form.
(2) In a claim for slander the claim form must so far as possible contain the words complained of, and identify the person to whom they were spoken and when.
2.3 (1) The claimant must specify in the particulars of claim the defamatory meaning which he alleges that the words or matters complained of conveyed, … (a) as to their natural and ordinary meaning…”.
There is further guidance as to what is required given by the court in Best v. Charter Medical of England Limited [2001] EWCA Civ 1588; (2002) EMLR 18. That was a claim for slander, not libel. Keene LJ said:
“7 The relevant passage in British Data Management in the judgment of the court delivered by Hirst, LJ, reads as follows:
"Having regard to the above authorities, we do not find it possible to accept Mr.Nicol's first submission that it is invariably necessary for the plaintiff to plead or allege verbatim the exact words of which he complains, provided, as stated by Denning LJ in Collins v. Jones, he sets them out with 'reasonable certainty' which is, in our judgment, the correct test.
It is important to bear in mind the purpose of a statement of claim. It is to enable the defendant to know the case that he has to meet so that he can properly plead his case, with the result that the issues are sufficiently defined to enable the appropriate questions for decision to be resolved. In a libel case the first question is whether the words are defamatory of the plaintiff, which depends on their meaning; unless the plaintiff succeeds on this fundamental issue, his action will fail. Next, a number of questions may arise on defences which the defendant may wish to raise, for example, a plea of justification, which depends on whether the words are true or false, and similarly mutatis mutandis in the case of a plea of fair comment.
This purpose will not be achieved unless the words are pleaded with sufficient particularity to enable the defendant not only to understand what it is that the plaintiff alleges that they meant, but also to enable him to decide whether they had that meaning and, if not, what other meaning they had or could have....
This is why there must in all cases be reasonable certainty as to the words complained of, or in the case of a quia timet injunction what words are threatened, and normally this will require the pleading of the actual words or words to the same effect. Only on this basis can the case proceed properly through the interlocutory and pleading stages to trial and then to the formulation of the questions to be put to the jury and a proper answer to them."
It seems to me to be entirely clear from that passage that, when this court was referring to 'reasonable certainty', it was referring to the words used. It is the words alleged to have been used which must be set out with reasonable certainty, and they must be set out in the Particulars of Claim so that the defendant can decide how to plead his case. The reasons for this requirement are those given by Hirst, LJ in that passage, in particular the fact that in defamation actions the words used or alleged to have been used are basic to the cause of action. As was said many years ago in Harris v. Warre (1879) 4 CPD 125 by Lord Coleridge, CJ:
"In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged which is the fact on which the case depends." (page 128; emphasis in the original)
A crucial question in defamation actions is always whether the words used have a defamatory meaning, and it is therefore impermissible to plead the meaning but not to plead the words used. The words may be capable of bearing more than one meaning, and in such circumstances the claimant must plead the meaning he asserts that the words have. But the defendant may wish to contend that that is not how the words would reasonably be understood. He may also wish to try to justify any defamatory allegation, but he cannot make that decision until the claimant sets out the allegations which it is said he published. It follows that it is not enough for a claimant to plead the gist of what was allegedly said or written; he must set out the words with reasonable certainty, a test long established: see Collins v. Jones (1955) 1 QB 564, per Denning LJ at 571h – 572a.
8 Therefore it will not normally suffice for a claimant to plead that the defendant made a statement "to the effect that" the claimant was a liar or had behaved in a discreditable way. To do that, which is the form of pleading to be found in sub-paragraphs 3.1, 3.2, 3.4, 3.6, 3.7 and 3.8 of the present Particulars of Claim, is to plead the meaning of the words used, and one does not know whether that meaning derives from inference or not. Such a pleading was rejected, rightly in my view, by the court in Rosen v. Alberta Motor Association Insurance Co. (1994) 1 WWR 719.”
Mr Ojo cites Collin v Jones [1955] 1 (QB) 564 at 572 where Denning LJ stated:
“a plaintiff is not entitled to bring a libel action on a letter which he has never seen and of the contents of which he is unaware. He must in his pleadings set out the words with “reasonable certainty”: and to do this he must have the letter before him, or at least have sufficient material from which to state the actual words in it”.
He also cites similar guidance given by Hirst LJ in British Data Management Plc v Boxup Commercial Removals Plc [1996] EMLR 349 referred to in Best.
Ms Kissin submits that those cases relate to circumstances where the claimant does not know the exact words, as is more commonly the case in slander than in libel. That is not the present case. I accept Ms Kissin’s submission.
In my judgment the effect of the CPR 16, the Practice Direction and the guidance given by the Court of Appeal in Best, is that in a claim for libel it is necessary that the Claimant should set out word for word precisely those words which he alleges defame him, whether that is the whole of the text or, as is more commonly the case, an extract from a much larger text.
In the present case, as explained above, the URL does not by itself identify particular words. The first reason it does not do that is because there were at least four different versions of an article referring to the Claimant published on 5 July on that URL. The second reason is that the article(s) published on that URL in the second hard copy version, contain large amounts of text, including readers’ comments, which make it uncertain what it is that the Claimant wishes to complain about. The Defendant needs to know exactly what words are complained of in a long article, so that it can frame its defence appropriately.
I express no view as to whether paragraph 4 of the Particulars of Claim would be sufficient as a complaint only of publication of the title, and not of any other part of any version of the text which had at any time since 5 July been accessible at the URL which is pleaded. I express no view because it is plain that the Claimant wishes to complain of more than the title.
I have no doubt about the conclusion I have reached for the reasons I have given. But if there were doubt, the contents of para 5 of the Particulars of Claim would re-enforce that conclusion. The text that was to be found at the URL identified in paragraph 4 of the Particulars of Claim has, as explained above, been through a number of updatings identified by the dates and times appearing under the by-line of each printout. The form of paragraph 5, containing as it does words which appear in neither of the printouts, raises the possibility that there may have been another version of the text, differing from each of the two printouts, but containing the precise words purportedly quoted in paragraph 5 of the Particulars of Claim. It entirely defeats the function of a statement of case if there should be that degree of uncertainty as to the precise words allegedly published by the Defendant and complained of as a libel.
The Defendant pointed out the source of the confusion on 21 January 2014, ten days before the issue of the claim form. In its letter of that date it included the following
“Part of the difficulty in providing this substantive response is that we have been unable to find the quote referred to in your letter of 16 December in any version of the article published. Would you please provide a hard copy of the article including it.
The article did however include the following: ‘… it was concluded that the two doctors had fallen ‘seriously below’ [the standard] expected of a reasonably competent GP’…’
Your client does not apparently dispute that he prescribed drugs to treat Mr Buckley’s depression and that he did not consider Mr Buckley may have been suffering from a different condition. Nor does he dispute the GMC told him to ‘reflect on the findings of independent expert Dr Leonard Peter’. The quote in the previous paragraph refers to a finding by Dr Peter, which a reasonable reader would understand referred to your client. …”
Unfortunately solicitors for the Claimant ignored this letter and responded on 5 February simply enclosing by way of service the Claim Form and Particulars of Claim.
On 26 February 2014 solicitors for the Defendant wrote a very detailed four page letter setting out what they alleged were defects in the Claimant’s documents. Under the heading “Failure to identify the publication complained of” solicitors for the Defendant reiterated the request for copies of the article from which the words complained of are extracted. There follows a most unsatisfactory correspondence which is not directly relevant to the issue I am now considering.
On 14 March 2014 the solicitors for the Claimant put forward in a letter an amended form of Particulars of Claim. But the amendments do not include any proposed amendment to paragraphs 4 or 5 of the Particulars of Claim.
COULD THERE BE AN AMENDMENT TO CURE THE DEFECT?
This is the question raised by paras 1.1.3 and 1.1.8 of the Application Notice.
It is obvious that the Claimant could, if he chose, comply with what I have held to be the requirements of the law as to the contents of his statement of case. He could identify which version of the article published on 5 July he complains of, and he could quote from that version, or those versions (if he complains of more than one), the precise words he complains of and set them out word for word in his Particulars of Claim. However he would have to do that by amendment and Mr Ojo has not made any application formal or informal for permission to amend.
Ms Kissin submits that an application for permission to amend would be pointless because neither of the two print outs are in her submission capable of bearing the meanings complained of by the Claimant in paragraph 8 of the Particulars of Claim, or any other meaning defamatory of the Claimant.
In order to consider this submission it is necessary for me to apply the law applicable to meaning in a libel action. That is not controversial in this case.
The first requirement is in the Practice Direction 53 para 2.3 as set out above. The guidance of the Court of Appeal was given in Skuse v Granada Television Limited [1996] EMLR 278 and has been repeated in the same or substantially similar terms in the number of subsequent cases. Mr Ojo invites me to take it from the judgment of Sharp J (as she then was) in Patrick Hodgins v Squire Sanders LLP [2013] EWHC 2404 (QB) at para 6:
“The legal framework for determining meaning and the principles which the court must apply when considering an application under CPR Part 53 para 4.1 are well settled:
i) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article (or viewing the programme) once.
ii) The hypothetical reasonable reader (viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
iii) While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over-elaborate analysis of the material in issue.
iv) The reasonable reader does not give a newspaper item the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.
v) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable reader the court is entitled (if not bound) to have regard to the impression it made on them.
vi) The court should not be too literal in its approach.
vii) The hypothetical reader is taken to be representative of those who would read the publication in question.”
Sharp J also referred to other cases, including in particular the one now most commonly quoted, namely Jeynes v News Magazines Limited [2008] EWCA Civ 130. The guidance in that case includes the following further requirement at paragraph 14:
“(5) The article must be read as a whole, and any ‘bane and antidote’ taken together.”
Ms Kissin submits that applying that principle, and reading what I have set out above and referred to as the explanatory or exculpatory material, no reasonable reader (of whichever printout) could understand the article as a whole to mean that it was the GMC that had concluded that two of the doctors had fallen “seriously below that [standard] expected of a reasonably competent GP”. The reasonable reader would have been bound to conclude that it was the independent expert who had reached that conclusion, but that the GMC had not adopted it. For example in the first hard copy version of the article there is the sentence “GMC investigators said the opinions of three independent expert GPs defending the partners conflicted with Dr Leonard… the GMC conducted a thorough investigation and made no recommendations for action”. Both printouts include the quote from the Claimant’s spokesman:
“The GMC conducted a thorough investigation and made no recommendations for action. We offer our sincere condolences to the family.”
The second version of the article contains explanatory words:
“The GMC told Drs Ogunsanya and Wissa to reflect on the findings of independent expert Dr Leonard Peter while it was concluded that there was no further action needed for Dr Tayo.”
Ms Kissin further submits that neither of the print out versions of the article is capable of bearing the meaning that there was “no rational clinical basis” for the Claimant’s diagnosis of depression or that he was “thereby causing the unnecessary death of the patient”. She further submits that there is no basis for including in any meaning which the words are capable of bearing the words “thereby fuelling the unjustified criticism placed by doctors from foreign countries or ethnic background”.
Mr Ojo submits that the articles published on 5 July are capable of bearing the meanings pleaded in paragraph 8 of the Particulars of Claim. He left it unclear as to whether the Claimant is pursuing a claim on the first version of the print out which appeared on the website which is not that of the Defendant.
In my judgment Ms Kissin is right at least to this extent. Neither version of the article is capable of bearing the meaning that there was “no rational clinical basis” for the Claimant’s diagnosis. And the words “thereby fuelling the unjustified criticism faced by doctors from foreign countries or ethnic background” are not part of any possible defamatory meaning. Unjustified criticism could, in principle, be the effect of a defamatory publication. And in so far as the court was satisfied that it was the effect that might be relevant to the measure of damages. But that has got nothing to do with a defamatory meaning. Further in my judgment neither version of article before the court is capable of bearing the meaning that it was the GMC which concluded that the standard of care was below that of a reasonably competent GP. A reasonable reader who read the whole article could not fail to understand that that was the opinion of Dr Leonard alone, and that that is what caused the reaction of Mr Buckley Snr.
Unless and until the Claimant makes clear which version if either (or both) he is referring to, and precisely which words within such version he is complaining of, I think it inappropriate for me to say anything more about the meaning which such words might bear or be capable of bearing.
I bear in mind Practice Direction 53 para 4.1 which reads as follows:
“4.1 At any time the court may decide –
(1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case;
(2) whether the statement is capable of being defamatory of the claimant;
(3) whether the statement is capable of bearing any other meaning defamatory of the claimant.”
While the court must, in accordance with para 4.1(3), decide whether the words complained of are capable of bearing any other meaning defamatory of the Claimant, the court cannot do that in abstract. There is no point in the court determining that the words complained of are capable of a defamatory meaning which a Claimant has made clear he does not which to complain about. And to do so would not assist either party.
If the Claimant were to ask for permission to amend I would be minded to give him an opportunity to do so, notwithstanding that the Defendant’s solicitors have already given him ample opportunity in the correspondence, which the Claimant’s solicitors have chosen to ignore.
But if such an opportunity is given, the Claimant must make clear which version of the article he is complaining of, and set out word for word the precise words he complains of. And if he is complaining of a version published on a website which is not that of the Defendant, he must give particulars of publication.
Paragraph 6 of the Particulars of Claim may suffice for words published on the Defendant’s website, as it is well known that Mail Online is one of the most popular websites in the world. But if the Claimant wished to complain of the version available on the NewsLookup.com website that would be an entirely different matter. Not only would he have to plead the facts from which the court could infer that there were any readers within the jurisdiction who had accessed that website, but he would also have to plead facts from which it can be inferred that the Defendant was responsible for publication on that website. These might be formidable undertakings.
OTHER GROUNDS
The Claimant has implicitly accepted that Ground 1.1.7 is well founded. He has deleted the passage in question in the form of amended Particulars of Claim that he has put forward.
As already noted, the words the subject of para 1.1.6 have no place in the meaning, which is where they are at present pleaded, but I would not exclude the possibility that they might be the subject of an amendment in relation to damages. That would depend on the form of any draft.
CONCLUSIONS
For these reasons the claim will be struck out. I will hear submissions as to whether the Claimant wishes to apply to amend, and if so, then within what time period he should be permitted to consider that and submit a new draft.
In considering what action to take following the handing down of this judgment, the Claimant (and any reader of this judgment) will note that I have held that the Defendant has not alleged that the GMC concluded that the Claimant’s care was inadequate or incompetent. His reputation needs no vindication from an allegation that has not been made.