David v Gabriel & Ors

These proceedings were launched by the Claimant on 23 November 2015. His claim as originally formulated was based on a variety of causes of action. These included defamation, the Equality Act 2010, the Protection from Harassment Act 1997, the Data Protection Act 1998, the law of privacy, and malicious falsehood. On 24 March 2016, the first and third Defendants issued an application to strike the claims out under CPR 3.4 or, alternatively, for summary judgment under CPR Part 24. The second Defendant followed suit on 13 April.

Since the Claimant acts in person it is not surprising that his claim form is in certain respects unorthodox; nor that the Defendants have found it confusing and difficult to follow.

The defence of the second Defendant was served on 21 March 2016. The first and third Defendants combined in one document dated 24 March their defences and the grounds for their present applications. It is fair to say that they have to a large extent made common cause in their criticisms of the claim and its formulation. (Accordingly, I will generally refer to “the Defendants” save where it is necessary to distinguish between them.) Because their primary focus was upon the deficiencies in the Claimant’s pleading, the first and third Defendants chose initially not to support their application with evidence. The second Defendant served a witness statement on 13 April.

The Claimant served a reply dated 8 April 2016 which the Defendants thought did little to clarify his case. Nevertheless, in view of factual disputes which had emerged, the first and third Defendants then served brief witness statements dated 30 June 2016 from the first Defendant herself and from Mason Fitzgerald (head of corporate affairs at the Trust). Indeed, I was told that it was only after the first day of the hearing that counsel understood how the case was being put against them in certain important respects: they then responded with further written material on 15 July. (This judgment was ready in draft before the Long Vacation but, for one reason or another, the parties were unable to foregather until now.)

It is necessary to summarise the factual background. The Trust concentrates primarily on the provision of mental health services and is governed in part by a Council of Governors chaired by the first Defendant. She is also the chair of the Trust’s board. The Claimant served as a voluntary governor from October 2009 until he resigned in 2015. It is common ground that there is a code of conduct which applies to all governors.

Problems began when a fellow governor called Zara Hosany (“ZH”) complained to the first Defendant, orally, about the Claimant’s conduct towards her in a number of respects. This took place on 22 and 23 January 2015. There followed a written complaint on 3 February, which alleged intimidation, bullying, sexual harassment and other conduct said to be contrary to the code. It is important to note that the allegations of sexual harassment related to events outside the work place and it was recognised, therefore, after due consideration, that these fell outside the scope of the Trust’s disciplinary jurisdiction and procedures.

The first Defendant concluded that she had no option but to set up an investigation into ZH’s complaints, for which purpose it would be necessary for her to communicate the nature of the allegations to a limited number of other people. (There is a dispute between the parties as to whether she passed on this information more widely than was appropriate.) Also, by way of “holding the ring” meanwhile, she asked the Claimant not to attend certain meetings where he and ZH would otherwise both be present. She formally suspended him from so doing with effect from 24 February 2015.

The allegations were then put before the appropriate body (the Nominations and Conduct Committee of the Council of Governors or “NCC”) on 3 March. The decision was taken shortly afterwards that the NCC would go ahead and consider the complaints – apart from that of sexual harassment because, although it formed part of a pattern or continuum so far as ZH was concerned, it related to what had taken place in a jazz club and thus outside the work context.

The second Defendant was asked to conduct an independent investigation and to report to the NCC. Obviously, the Claimant was given an opportunity to explain his side of the case in the course of her enquiry. By early May 2015, the investigation was complete and the second Defendant concluded that he may have breached provisions of the code. In other words, she felt unable simply to dismiss the complaints out of hand and thought they merited further consideration. A meeting then took place (on 12 May) at which the Claimant was again given a chance to put his side. By 1 June, the NCC had decided that “in light of the seriousness of the misconduct and [the Claimant’s] attitude towards [the first Defendant], the investigator and the process, the Committee could not proceed informally and would need to recommend to the Council that it lay a formal charge before the Council”. A further recommendation was made that he should, meanwhile, be suspended from his duties as a governor. He was notified that on 16 July the NCC would report to the Council proposing a formal charge for failing or refusing to comply with parts of the code.

In readiness for the forthcoming meeting, the Trust provided those entitled to attend with relevant papers, which included a document summarising the NCC decision and explaining the significance of laying a formal charge; that is to say, that it meant only that there was “a case to answer”. The day before the meeting was due to take place, the Claimant resigned his post as a governor (although continuing with another voluntary role as an associate hospital manager).

It is against that background that the Defendants make their current applications. I shall first address the formulation of the claims based on defamation. He has cited seven alleged “statements” (of which those numbered 3 and 4 concern only the second Defendant). A fundamental criticism made by all the Defendants is that he has not identified the precise words complained of. This is vital in any defamation claim, since it is the publication of those words that is supposed to give rise to the cause of action: see e.g. Gatley on Libel and Slander (12^th edn), at 26.11. Without those basic ingredients, it is difficult to see how a claim can reach first base. It will not suffice for a claimant to provide merely the gist. Indeed, in many libel actions one of the most important tasks is to determine whether the words bear the meaning or meanings attributed to them. Here, that cannot be done since the words themselves are not there to assess. Nevertheless, I shall address his seven “statements” as they appear in his pleading.

This concerns slanders alleged to have been uttered by the first Defendant between 3 and 6 February 2015 to a member of the Trust’s human resources staff and two directors (following on from ZH’s complaints). Her case is that she did not disclose anything about the Claimant to anyone other than Ms Ehigie (the Trust Secretary) and, later, to the NCC and to the director of corporate affairs (Mr Fitzgerald) – purely for the purposes of carrying out the investigation into the complaints.

There is a further allegation of slander by the first Defendant published to ZH. She is said to have warned her that the Claimant had attended a meeting on Quality Improvement (“QI”) despite having agreed not to do so.

This is concerned with the publishing of the whole of the second Defendant’s May 2015 report without identifying any particular passages. That is unacceptable: see e.g. DDSA Pharmaceuticals v Times Newspapers [1973] QB 21, 26 C-H and Gatley (cited above) at 26.11 and 26.12. Again, one is left to guess at the words complained of and the defamatory meaning(s) (if any) attributed to them.

This is an allegation of slander whereby the second Defendant is supposed to have adopted and affirmed the whole of her report orally. It is subject, therefore, to the same criticisms as the complaint about the report itself (Statement 3).

The complaint this time is about part of the contents of the voting pack published on 22 May 2015 relating to the imminent elections in which the Claimant was standing. As had been explained beforehand, if candidates failed to answer any questions, this would be recorded. The words in this instance are identified as follows:

“Why are you standing for the position given that your tenure ends in October?

Candidate declined to provide a written answer.”

The background is that such office holders are subject to a maximum period of tenure and the Claimant’s was due to expire the following October – part way through the period of tenure for which he was standing. He attributes the meaning that he ignored the electorate on important issues, and/or that he lacked substance and/or had nothing to offer in the role. This seems fanciful, as it merely records the true fact that he had not answered the question.

This relates to item 7(b) on the agenda for the meeting on 16 July 2015. It reflects the recommendation of the NCC that a formal charge be laid against the Claimant in accordance with the proposal of the second Defendant in her report. There are recorded certain provisions of the code which “may have been breached” or “partially breached”.

Complaint is made here of the first Defendant’s oral remark to the meeting of the Council on 16 July that his resignation letter (of the previous day) had contained “inaccuracies about the conduct process”.

There is pleaded (at paragraph 7 of his particulars of claim) an overall or general imputation these statements are said to bear:

“There was gross incompetency as a Governor, a number of breaches of the Code of Conduct and vile behaviour of a severity which merited being struck off the Governors’ register and by implication equally merited an abrupt termination of an entire political career as that is the inevitable result of being struck off any public office in that manner.”

That is somewhat extravagant, especially having regard to the fact that the NCC was not going to consider or adjudicate upon the suggestions of sexual harassment.

One is sometimes inclined to give a litigant in person an opportunity to correct mistakes by amendment. Here, however, it is not a matter of mere technicality. The criticisms go to matters of substance (and of pleading practice founded in fairness and common sense). Moreover, the defects now relied upon by the Defendants were pointed out in correspondence. Yet the Claimant chose not to avail himself of the chance to correct the omissions to which his attention had been drawn (specifically in a letter from Collyer Bristow dated 3 February 2016). He stuck to his guns.

He has failed to comply with the Pre-Action Protocol in identifying the words complained of (and, in the case of the alleged slander, the date and the publishees). Nor has he done so subsequently. The basic ingredients of a claim in defamation are therefore absent.

Also important is the requirement contained in s.1 of the Defamation Act 2013 for a claimant to establish, as a threshold requirement, that the relevant publications have caused serious harm, or are likely to cause serious harm, to his reputation. The publications relied upon are extremely limited and related only to persons connected with the need for ZH’s complaints to be investigated. That is obviously relevant to any plea of qualified privilege, but before that stage it is necessary to consider whether the Claimant even gets to first base. As I have said, “serious harm” is a threshold requirement and without that he stands to have the claim struck out under CPR 3.4. This concept is close to the notion of “real and substantial tort” which proved so important in limiting the scope for libel actions following on from Jameel (Yousef) v Dow Jones Inc [2005] QB 946. Indeed, it is clear from the explanatory notes to the 2013 statute that Parliament intended to build upon the recent disciplines introduced by the judiciary in the preceding decade and, particularly, in the years after the CPR and the Human Rights Act 1998 came into effect (in, respectively, April 1999 and October 2000). I am quite satisfied that the Claimant has not overcome that initial hurdle and that accordingly the right order is to strike out the defamation claims under CPR 3.4.

The Defendants have also made submissions about the strength of the plea of qualified privilege and the Claimant’s inability to meet it effectively by pleading and proving malice. The Defendants do not rely on privilege in respect of all the “statements”, although I was rather surprised at this. In particular, Mr Hopkins did not raise it in relation to statement 5. Be that as it may, there is no need for them to rely on this argument, since I have ruled in favour of a strike out. The privilege argument would in my view have gone primarily to supporting summary judgment under CPR Part 24 – if the Claimant had been able to establish a prima facie case in defamation. But he has not.

As to malice, it is not enough to make the assertion. A claimant must be in a position to plead and establish facts that are more consistent with the presence of malice than with its absence. That is to say, he would have to show on the part of some or all of the relevant persons either dishonesty or the presence of a dominant motive of harming his reputation (rather than that of wishing to organise a fair investigation of the complaints made against him by ZH): see Horrocks v Lowe [1975] AC 135, Somerville v Hawkins (1851) 10 CB 583, and Seray-Wurie v Charity Commission of England & Wales [2008] EWHC 870 (QB).

I would certainly have upheld the argument for summary judgment based on qualified privilege if it were necessary, but the Claimant does not get to first base and it is not therefore appropriate.

The Claimant’s case based on the 2010 Act is said to be misconceived in a number of respects. It has certainly shifted a good deal in the course of submissions. As I understood the case, the Claimant was by the end relying solely on s.29 in relation to alleged discrimination regarding the supply of services. Although the Trust does no doubt supply services to the public, those services have nothing to do with his complaints. It is hard to see how he was in any way treated less favourably in relation to the supply of services. He was reduced to suggesting at one point that the Trust was supplying him with a service by way of the preparation of the second Defendant’s May report and that he was treated less favourably in that respect than was ZH as the complainant (because she was given information more promptly than was he). That is artificial, however, and seems to me to have nothing to do with the mischief which the section is intended to alleviate.

In any event, Mr Hopkins invites me not to accept jurisdiction to deal with this because the statute contemplates that the county court alone should deal with such claims. The Claimant seeks to counter this by arguing that the High Court has jurisdiction by implication. That is unreal, however, since the legislature has no difficulty in making it quite clear when the High Court is intended to have jurisdiction, whether alone or in parallel with other tribunals. It seems clear that the county court would be the only appropriate tribunal if such a claim could be coherently formulated.

There was an argument advanced on the basis that there had been discrimination against the Claimant with regard to disability. The ground shifted to some extent here also, but I think the point crystallised on the basis that he suffered from epilepsy, but it was unclear how this was said to be relevant to any unfavourable treatment he had received.

Another argument which surfaced at one point was the suggestion that there might have been victimisation contrary to s.27 of the Act. It was unclear, however, what “protected act” the Claimant was said to have carried out in respect of which he had been victimised. Moreover, where such a claim does arise, it is clear that the county court is once again the appropriate forum in which to resolve it.

I should once again therefore grant the relief sought under CPR 3.4 in so far as the claim is based on the Equality Act.

The primary contention of the Defendants is that the claim under the 1998 Act is inadequately particularised, since it does not specify the relevant private and confidential information or the contraventions of the Act he relies upon. That would justify striking out under CPR 3.4.

Alternatively, however, Mr Hopkins relies on s.35(2) as affording exemption from the non-disclosure provisions. If the third Defendant, being the data controller within the meaning of s.1 of the Act, did disclose any relevant data in the course of organising the investigation into ZH’s complaints, then he would wish to argue that it was necessary to do so “for the purposes of establishing exercising or defending legal rights” in connection with her complaints.

The Claimant submits, however, that the exemption would not apply in the case of “sensitive” data, which would include for example a criminal conviction or a criminal charge. There is no reason to suppose that this would apply here, since the Claimant has neither been convicted in respect of a sexual offence, nor even charged with one. There is no evidence that the Trust ever disclosed anything which could be classified as “sensitive data”, or which would otherwise fall outside the exemption provisions of s.35.

In any event, the claim falls at the earlier stage, because the Claimant has failed to identify what are said to have been the relevant breaches of the Act.

It is clear that for there to be a civil claim under the 1997 Act a claimant must show that there has been a course of conduct on the part of some person which amounts to harassment and which that person knows, or ought to know, amounts to harassment. There is a section of the claim (at paragraph 40 onwards) which is intended to provide the necessary particulars. The Claimant there asserts that there have been monitoring mechanisms relating to his communications and also collusion with a view to having him struck off the register of governors. Yet again, however, there is no flesh on the bones and correspondingly, therefore, no real prospect of his succeeding in this part of the claim.

Since, as I accept, there is no cogent reason to suppose that harassment has taken place, the relevant Defendants are entitled to an order under CPR 3.4.

It is for the Claimant to plead and prove what are said to be the false allegations made about him and also to give particulars of malice. I have already pointed out the difficulties so far as malice is concerned in the context of the defence of qualified privilege. He is in no better position here. Furthermore, he has not specified the supposedly false statements relied upon any more than he has set out the words complained of under the head of defamation. Again the claim falls to be struck out.