ZC v Royal Free London NHS Foundation Trust

The Claimant’s pleaded case in libel as to the meaning of the words complained of in the Email is as follows (Particulars of Claim, [17]):

“In their natural and ordinary meaning, the above publication meant and are understood to mean that I am fraudulent and under the investigation by the defendant’s Fraud team.”

In her trial Skeleton Argument the Claimant asserted at [1]:

“In the whole context of the statement it meant that the claimant has a history of dishonesty that she is fraudulent and that was under investigation of the defendant’s fraud team.”

In her oral submissions the Claimant expanded on and amended her pleaded case to allege that to the ordinary and reasonable reader the Email conveyed the following meanings, none of which were substantially true:

Notwithstanding that these were not the pleaded meanings in the Particulars of Claim, the Defendant was content to meet the Claimant’s case on this basis and it did so in its Closing Written Submissions.

In her post-Lachaux submissions of 5 July 2019 the Claimant sought to expand her case by alleging that there were other defamatory emails (see at [2]: ‘It is disputed there is only one defamatory email in this case.’) However, her pleaded case relates only to the Email, and it is obviously not open to the Claimant to try and expand her case after the trial has concluded.

At [18] of her Particulars of Claim the Claimant pleaded that:

“By reason of the publication of the said words, my reputation is tarnished, my feeling is badly injured and this potentially can bring me into contempt and odium. The said words have also meant to assist and protect the defendant GP to escape from being prosecuted hence, the words deliberately and maliciously meant to obstruct and pervert the course of justice.”

The Claimant’s case is that the Email was sent as part of a conspiracy against her, and specifically a conspiracy by a group of Jewish people, or ‘a group of jewish conspiring’, as she put it. A number of Trust and NHS staff are identified as Jewish by the Claimant in her Particulars of Claim including Dr X; Dr Costello; Mr Pohle; Mr Tennant; Ms Katy (a radiologist whom the Claimant alleges in [28] of her Particulars of Claim x-rayed her 16 times ‘for fun’, and about whom she has complained in a separate complaint); and Ms O’Sullivan.

The Claimant adduced no evidence about the religious beliefs (if any) of the persons whom she alleged are Jewish.

The Claimant’s case on this alleged conspiracy is as follows. At [31]-[32] of her Particulars of Claim she pleaded that:

“31.

The defendant has no defence and cannot plead qualified privilege nor absolute privilege. The publication was made out of grudge, revenge, hate of Muslims, selfishness, fear from being sued for the wrongdoings and was in complete disregard of human dignity and the law.

32.

The publication was against my wishes and it was without my knowledge or permission. I did not give my permission to the defendant hospital to make such publication of the said words to the defendant GP’s solicitor and in the situation whereby it was either me getting justice for the harm I suffered or have group of jewish conspiring and obstructing the course of justice to save the skin of another jewish. There is no special or privileged relationship between the two bodies and no communication between the two especially of this kind and in circumstances is allowed.”

At [22-]-[24] of her Reply to Defence the Claimant pleaded:

“22 Paragraph 8(i) (ii) and (iii) of the defendant’s defence are disputed. The defendant is well aware that the all the defendant’s employees involved in these proceedings are Jewish except Dr Soliman who is Egyptian. The defendant is well aware that Mr Nicholas Tennant is Jewish the same as Ms Joanne O’Sullivan.

23 It is well understood that the top floor of the defendant’s hospital is occupied by Jewish and exclusively for Jewish only and this is understood to be a matter of fact and the rest of the defendant’s floors are mixed.

24.

Even if the claimant is mistaken in her paragraph 22 of her reply as shown above, the issue is not that all of the defendant's employees involved are Jewish. The claimant believes this is a matter of fact that the defendant's employees involved are Jewish, but even if it is not a matter of fact and that she is mistaken in this particular fact, having a group of people conspiring to obstruct the course of justice to save the skin of another in such circumstances where the claimant was a victim of very serious crime and was seeking justice it is very abominable crime, which should be punished by prison. Therefore the claimant believes that being a group of people conspiring to achieve common objectives is more serious than having a group of Jewish people conspiring to save the skin of another Jewish.”

This allegation was repeated by the Claimant in her evidence at [11] of her witness statement of 27 July 2018:

“The defendant trust through own in-house solicitor, Ms Joanne O’Sullivan, voluntarily disclosed strictly private and confidential information about the claimant which was false and seriously defamatory of her to Mr Tennant, and as a matter both Ms

O’Sullivan and Mr Tennant are Jewish. They are not only ones who are Jewish some other individuals involved are also Jewish.”

At [39] of her witness statement of 7 November 2018 the Claimant said:

“The publication was against my wishes, without my knowledge and without my permission. I did not give my permission to the defendant Trust or to Ms O’Sullivan to make such publication of the said words to [Dr X’s] solicitor and in the circumstances whereby, it was either me getting justice for the harm I suffered or have a group of Jewish people working for the NHS conspiring and obstructing the course of justice to save the skin of another Jewish. There is no special or privileged between the two bodies except they are all Jewish and no communication between the two, especially or this kind and in such circumstances is allowed.”

In her opening, the Claimant said of Ms O’Sullivan:

“You can ask her later under cross-examination, you can ask her and she will tell you she is Jewish or not. I’m judge she is Jewish. She is a bloodline, her father is a Rabbi and I have no dispute with that.”

I asked Ms O’Sullivan if she was Jewish. She told me that she is a Roman Catholic, as are her parents. I accept her evidence.

The Claimant elaborated on her case in her written closing submissions, as follows. The Defendant’s allegation that she had used false names ‘was taken out of its real context’ because the Defendant deliberately failed to specify the circumstances the Claimant used these false names (which the Claimant says in her evidence was to obtain proper treatment which would have been denied if she gave her real name) and the Defendant’s statement was calculated and planned to mislead the reader to believe that the Claimant had used false name to defraud the Defendant and this was confirmed by the Defendant statement that the Claimant was the subject of investigation by the D’s fraud team.

Further, the Claimant argues that it is substantially untrue that there was any criminal conduct or behaviour by the Claimant which could have justified any suspicion on the part of the Defendant that she was guilty of dishonesty and fraud.

The Claimant did not lie to make the Defendant believe there were court proceedings. Moreover, the Claimant:

“… did not falsify email of Mr Cadogan in order to make D believe there were Court Proceedings. It is true C re-used an email sent to her on 6 September 2016 to confirm the genuine existence of Court proceedings. It was D’s dishonest implication without consent or knowledge of C to attack C in retaliation to C having made three complaints, which D failed to investigate and in order to boycott Dr [X]’s prosecution.”

This is a reference to separate complaints by the Claimant against the Defendant in relation to other matters.

The Claimant says that the Defendant lied to her, ‘trapped’ her, and misled her to believe that once she emailed court papers to the Defendant, it would expedite Dr Suliman’s statement.

The Claimant also says that there were no reasonable grounds for the Defendant suspecting the Claimant of dishonesty and fraud. She says that the words complained of bore accusations of dishonesty and fraud which were not warranted and untrue.

In her witness evidence the Claimant alleged that the Email has the potential to cause her serious harm including by being used to defeat her civil claim for compensation; and that it will be used (or have the effect of) to prevent her from getting a job. In her written submissions following Lachaux, supra, the Claimant maintained that the Email caused her serious harm because it was the reason the district judge declined to issue the summons against Dr X.

The Claimant’s case on breach of confidence (which I will treat as a claim for breach of privacy for the reasons given in Campbell v Mirror Group Newspapers [2004] 2 AC 457, as the Claimant rightly identified in her closing submissions) and Article 8 is that the Email constituted or resulted in the unauthorised disclosure of private information because it was, in essence, the unauthorised disclosure of medical records or medical information about her.

Overall, the Claimant alleged that she has suffered harm as a result of the Defendant’s conduct going beyond the damage to her reputation which she alleges as a consequence of the Defendant’s libel. She seeks ‘compensatory and aggravated damages’, the particulars of which are pleaded at [27]-[33] of her Particulars of Claim. They include, but are not limited to, the allegation I have already set out that she has been the victim of a Jewish conspiracy.

The Defendant’s case as pleaded in its Defence is that:

The Defendant further denied (per [18] of the Particulars of Claim) that there had been any intention or attempt to assist the GP from being prosecuted or that the Email amounted to an attempt to pervert the course of justice.

Further, the Defendant pleaded that the Claimant was required to show that the Email caused or was likely to cause ‘serious harm’ to her reputation within the meaning of s 1 of the 2013 Act and that she could not discharge this burden. In its Closing Written Submissions and its post-Lachaux submissions the Defendant elaborated upon this argument as follows.

Lord Sumption, who gave the only judgment in Lachaux, supra, made it clear that the Claimant has the burden of proving that the publication complained caused serious harm to her reputation, or that serious harm was likely to be caused. The Defendant denies that the Email had this effect.

The Defendant asserted that neither in her witness statement, nor in crossexamination, could the Claimant evidence, to the civil standard, serious harm to her reputation in the eyes of the recipients of the Email, or anyone else. It said that there was no written evidence, other than her own, showing her reputation had been seriously harmed (e.g. from the Magistrates Court, the Defendant or the Medical Defence Union), that there was no evidence that anyone had initiated or threatened a civil or criminal suit against her as a result of the Email’s publication.

Overall, on the question of serious harm, the Defendant said the Claimant’s case is synonymous with the example given by Lord Sumption in [16] of his judgment, namely that the Email was published to a small number of people among whom the Claimant had no reputation to be harmed given her own conduct.

The Defendant noted that the Email was published only to the four people whom I identified earlier. Of these, Mr Cadogan and Mr Tennant already knew about the private prosecution and thus they would have known, or been bound to find out, that the Claimant had used the name of SC whilst attending the Defendant’s A&E department, and therefore the medical notes of that attendance were under that name, and yet the private prosecution was brought under the name of ZC. They therefore knew she had used a false name at the hospital. For the same reason, both would have found out about the Email being ‘doctored’. Also, Ms O’Sullivan said in her written and oral evidence that she had already spoken to Mr Cadogan before she sent the Email so the information contained within it had already been shared beforehand. Ms

In relation to the Claimant’s three asserted defamatory meanings of the Email:

In relation to the defence of truth, the Defendant said that evidence establishes, and the Claimant admitted in evidence, using false names, and hence the second paragraph of the Email, whilst potentially defamatory, was substantially true. As to the third paragraph, whilst this paragraph was partly incorrect, (for which the Defendant raises the defence of honest opinion), the mistake was rapidly corrected and so any factual inaccuracy in this paragraph could not have caused serious harm to the Claimant’s reputation.

The allegation in the third paragraph of the Email, namely that the court email had been falsified, was true, and the Claimant admitted as much in her evidence.

The fourth paragraph was substantially true, and to the extent that it carried the imputation that the Claimant had been dishonest, that was also substantially true based on the Claimant’s admitted use of a false email and multiple identities.

The Defendant also said that the defence of honest opinion in s 3 of the 2013 Act is made out.

In relation to the Claimant’s claim regarding breach of privacy (in other words, misuse of private information) and breach of Article 8, the Defendant’s case is that the information contained in the Email was not private and therefore was not protected by Article 8.

The issues which fall for determination are as follows.

In relation to the libel claim:

In relation to the privacy/Article 8 claim:

The approach to meaning in defamation actions was recently re-stated by Lord Kerr in the Supreme Court in Stocker v Stocker [2019] UKSC 17, [25]:

“Therein lies the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement. That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made.”

The essential principles that apply in relation to this approach were set out by Nicklin J in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [11-12] (internal citations omitted):

Adopting this approach, I have no hesitation in rejecting the Claimant’s case that the ordinary reasonable reader could have read the Email as meaning that she was mentally ill with a multiple personality disorder, or at all. The use of false names is commonplace and done for a variety of reasons and does not begin to support the inference that anyone doing so must be mentally ill. To draw that inference would be utterly unreasonable.

As for the other two alleged meanings, in relation to the imputation of dishonesty, the Defendant denies that it intended to suggest the Claimant was dishonest. The intention of the publisher is irrelevant, however: Koutsogiannis, supra, [12(ii)]. The Defendant is right to accept that the Email could, to the ordinary reasonable reader, be read as imputing that the Claimant had behaved dishonestly. That arises from the allegation she had used false names, falsified an email, and been reported to NHS Protect and the Trust’s Counter Fraud Team.

The Defendant denied that the Email could to the ordinary reasonable reader be read as imputing that the Claimant had been fraudulent. I disagree. The dictionary definitions of the two terms ‘dishonest’ and ‘fraudulent’ may be subtly different, at least to lawyers. But to approach the matter in this way would be to fall into the trap identified by Lord Kerr in Stocker, supra. In determining meaning, over-elaborate analysis should be avoided and the court should certainly not take too literal an approach to the task. I am satisfied that the ordinary reasonable reader could read the Email as imputing that the Claimant had been fraudulent as well as dishonest, the two terms meaning essentially the same thing: see Blackstone’s Criminal Practice 2019, [B7.12].

I therefore uphold two out of the three allegedly defamatory meanings asserted by the Claimant.

Section 1 of the 2013 Act states:

“(1)

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

Section 1 was very recently considered by the Supreme Court in Lachaux, supra. Lord Sumption’s judgment can be summarised as follows.

Lord Sumption said that s 1 was to be interpreted in the light of the common law background, which he summarised as follows [6-7]:

“6.

[A] working definition of what makes a statement defamatory, derived from the speech of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, 1240, is that ‘the words tend to lower the plaintiff in the estimation of right-thinking members of society generally.’ Like other formulations in the authorities, this turns on the supposed impact of the statement on those to whom it is communicated. But that impact falls to be ascertained in accordance with a number of more or less artificial rules. First, the meaning is not that which other people may actually have attached to it, but that which is derived from an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to it. Secondly, in an action for defamation actionable per se, damage to the claimant’s reputation is presumed rather than proved. It depends on the inherently injurious character (or ‘tendency’, in the time-honoured phrase) of a statement bearing that meaning. Thirdly, the presumption is one of law, and irrebuttable.

7.

In two important cases decided in the decade before the Defamation Act 2013, the courts added a further requirement, namely that the damage to reputation in a case actionable per se must pass a minimum threshold of seriousness.”

The case on behalf of the Respondent (Mr Lachaux) was that the common law presumption of damage remained unaffected by s 1(1) but that its effect was ‘that the inherent tendency of the words must be to cause not just some damage to reputation but serious harm to it’ ([11]). In other words, the argument was that the presumption of harm remains, and all that s 1 did was to ‘raise the bar’ so that the claimant has to show a tendency to cause serious harm to reputation. This is the approach which was endorsed by the Court of Appeal: [2018] QB 594.

The Appellants, who were two news organisations, submitted that s 1(1) had effectively abolished the common law presumption of damage. They argued that it introduced a new hurdle to be satisfied before a statement can be regarded as defamatory. This is that the words complained of must not only be inherently injurious but ‘must also be shown to produce serious harm in fact’, which may require extraneous evidence to be submitted. This was the view taken by Warby J in his judgment on the trial of preliminary issues ([2015] EWHC 2242 (QB)).

The Court of Appeal favoured Mr Lachaux’s interpretation of s 1, and found in favour of him.

The Supreme Court disagreed with the Court of Appeal and upheld Warby J’s interpretation of s 1 (although it, too, found for Mr Lachaux on the facts). Lord Sumption gave four main reasons for favouring the Appellant’s construction of s 1(1) which Warby J had also favoured.

First, he said it took into account Parliament’s objective as stated in the preamble to the 2013 Act, which was to ‘amend the law of defamation’ ([13]). In the light of this, he considered that Parliament’s choice to use the wording of ‘serious harm’ could only have represented an intentional departure from the previous decisions in Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 74 and Thornton v Telegraph Media Group [2010] EWHC (QB) 1414.

Second, he considered that the words ‘has caused’ in s 1(1) naturally and necessarily referred to some actual historic harm and that ‘likely to cause’ must therefore refer to probable future harm. He rejected the view that serious harm could be established simply on the basis of the words’ ‘inherent tendency’ to cause harm ([14]).

Next, he explained that s 1(1) must be read alongside (and consistently with) s 1(2), which requires an investigation of the actual impact of the statement ([15]).

Finally, he concluded that Warby J’s interpretation was the only one which could bring about the substantial change to the law of defamation which was clearly intended by the significant amendment represented by s 1(1). It is worth quoting [16] in full as it has a bearing on the issues in the present case:

“16.

Finally, if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment. The main reason why harm which was less than “serious” had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”

However, Lord Sumption went on to conclude that even in light of the higher threshold imposed by s 1 as compared with the common law, the news organisations’ case failed on the facts ([21]-[26]).

The effect of the Supreme Court’s decision on the present case is that in order to satisfy the test in s 1(1), the Claimant must prove on the balance of probabilities as a fact that the Email has caused her serious harm, or that it is likely as a matter of fact to do so in the future (see [12], [21]).

I have reached the clear conclusion that she has failed to discharge this burden, for the following reasons.

The starting point is that the Email was published to just four people, whom I have already identified. I recognise that the question of serious harm does not necessarily depend on whether there has been publication to a large number of people. But, as Lord Sumption made clear in [16] of his judgment where, as here, it can be shown that the publication was only to a small number of people then that is an important factor to be taken into consideration in determining whether, as a matter of fact, serious harm has been caused or is likely to be caused.

Second, there was no evidence from any of the four publishees as to the effect the Email had on their view of the Claimant. There is nothing to suggest that they had any particular opinion of the Claimant which was capable of being affected by the Email. Nor is it pleaded, for example, that the Claimant had a close relationship with any of the publishees, or that their attitude to her is a matter of importance to her personal or professional life. As to the latter, in [1] of her post-Lachaux submissions the Claimant asserted for the first time that she is a ‘legal professional but without a licence to practise’. No evidence to this effect was given at the trial.

Nor was there any evidence that the Email was forwarded or copied by any of the recipients to any other person, save as I explain below. Nor was there any evidence of any ‘grapevine effect’.

In her post-Lachaux submissions the Claimant denied that the Email had only been published to four people and said that it was published more widely. For example, she asserted at [3], [4] and [12] that (sic):

“3.

It is disputed the publication was very limited circulation EMAIL. The EMAIL in C’s particulars of claim was sent to WMC’s generalised email address. The general email address is accessed by court’s staff on daily basis and the court has at least 223 staff most of who are administrative staff with direct access to the generalised email address.

4.

D has around 10,000 staff and at least three more hospital sites in another locations in London with thousands of staff have direct access to information held about C. During cross-examination Ms O’Sullivan insisted all D’s administrative staff have access to information held about C despite it was suggested to her for her ease and assistance that the information is only available to D’s data subject office Ms O’Sullivan disproved this and insisted that all D’s administrative staff have access.

…

12.

The EMAIL and all subsequent communication were distributed to and circulated between individuals and third parties and ended up stored in D’s computer system and data record, it is also in the possession of other people and organisation with at least 420 staff (MUD (sic)) and stored in their computer system and data record and can be accessed by unlimited number of people and exploited in the course of their employment to attack C’s character and integrity it is thus, not fair to C to have to live with such denigration and stigma for the rest of her life, which has the potential of causing her or likely to cause her serious harm.”

There was no evidence to support any of these assertions, and I reject them. There is no evidence anyone read the email sent to the Court’s generalised email address. Moreover, the Claimant’s assertions are inherently implausible. Emails sent to one person in an organisation are not, in general, accessible by anyone and everyone within that organisation, and there would be serious data protection and privacy issues if they were.

In relation to Mr Cadogan and Mr Tennant, there are additional reasons for rejecting the conclusion that the Claimant suffered serious harm as a consequence of the Email. It was Ms O’Sullivan’s evidence that before she sent the Email she had spoken on the telephone to both Mr Cadogan and Mr Tennant: see her witness statement at [12], where she produces her attendance note. I therefore infer that the information contained within had already been shared with them by the time she sent the Email to them. In other words, before receiving the Email, Mr Cadogan already knew as a result of talking to Ms O’Sullivan that the Claimant had falsified the court’s email (indeed, it was he who informed Ms O’Sullivan of that); and he also knew that the Claimant had used one name at the hospital, and begun criminal proceedings in another name. Mr Tennant was also in possession of the information in the Email as a consequence of talking to Ms O’Sullivan. It is impossible in these circumstances to conclude that the Email caused serious harm to the Claimant when the two men already knew the Claimant had falsified the Email. It added little or nothing to what they already knew.

I deal now with the Claimant’s claim that the Email caused the summons against Dr X not to be issued, and thus that she suffered serious harm. The Claimant asserted in her Particulars of Claim at [16] that ‘the email contained among other things his submission from the Magistrates Court not to issue the summons’. She said at [13] of her Reply to Defence that Mr Tennant ‘used the statement to argue his client’s case in attempt to prevent the court from issuing the summons.’ This was echoed in [12] of her witness statement of 27 July 2018. She went on to allege at [13] of her Reply that this was the ‘direct cause’ of the judge not issuing a summons against Dr X. In her evidence I asked why her application for a summons had been refused. She said (sic):

“Because there was no evidence of injury. I said that earlier in my beginning [opening].

… And the defamatory statement inflamed the whole thing, the submission of Mr Tennant saying that, you know, I’m not fit to be prosecutor because I’m holding myself to be different people and I have falsified this and that, she has a history of dishonesty. That has, you know, very badly affected my integrity. I was seen as not fit to be a prosecutor and I’m not trustworthy, I’m not truthful, I’m dishonest person. And the Judge in his judgment said, ‘This is a matter for the police to investigate’, after the statement of the defendant came to his attention.”

I have already noted that it is the Claimant’s case is that she is the victim of a ‘Jewish conspiracy’ motivated (at least in part) by hatred of Muslims. She said that the sending of the Email was an overt act in furtherance of this conspiracy. That is an extraordinary claim to make, to say the least. It is wholly unsupported by any evidence. Not only that, it is directly contradicted by the fact that Ms O’Sullivan is a Roman Catholic. Whatever the overall merits of the Claimant’s libel and privacy claims, I completely reject her suggestion that she is the victim of any sort of conspiracy.

I also reject the Claimant’s suggestion that Ms O’Sullivan’s intention in sending the Email was to pervert the course of justice and to protect Dr X. I also reject the

As I have already found, the Claimant lied several times to hospital staff on 9 September and she admitted falsifying the email of 12 September 2016. She has also admitted using false names when she feels it is justified in order to receive medical treatment. As I will discuss later, this amounts to a pattern of dishonest conduct by the Claimant. This, together with her incredible and unjustified allegation that she is the victim of a Jewish conspiracy, have led me to conclude that I must treat her evidence with real caution. I therefore decline to rely on it, save where it is against her interests; or is clearly supported by other evidence; or is not disputed by the Defendant.

Paragraph 16 of the Particulars of Claim is a reference to a letter from Mr Tennant to Mr Cadogan at Westminster Magistrates Court dated 22 September 2016 which was copied to the Claimant. She has included an incomplete copy of it in her trial bundle. The letter was headed ‘[ZC] v [Dr X] – Westminster Magistrates Court 7 September 2016 at 2pm for Preliminary Hearing’. That date must obviously be an error. The letter began:

“We would be grateful if this letter could be placed before District Judge Purdy at your earliest convenience. This letter should be read in conjunction with the Skeleton Argument ‘the Skeleton’ and Appendixes served on the Court under cover of our letter 25 July 2016’.”

The letter continued at [2]:

“2.

As per Paragraph 5 of the Skeleton, Dr X seeks the refusal of the summons and/or a stay of the proceedings on the following grounds:

a.

There is no prima facie evidence capable of providing the legal ingredients of the offence alleged.”

The next section of the letter in the bundle stated as follows:

“11.

In addition to the submissions made within the Skeleton, C has further demonstrated her willingness to be untruthful both generally and specifically in respect of these proceedings:

a.

C altered an email from the Court and then presented this to the Royal Free Hospital as though she has received a written instruction to take a statement from Dr Suliman (see attached email).

b.

C has a habit of dishonestly using false names (see email from Royal Free Hospital).

c.

C has a history of making unsubstantiated complaints against other medical practitioners which demonstrate a prejudice towards the profession (see post). This is further supported by her determination to covertly record appointments with medical practitioners.”

Neither this letter, nor anything else relied on by the Claimant, in my judgment amounts to sufficient evidence that the defamatory statements made by Ms O’Sullivan to Mr Tennant in the Email were republished by him in a way which caused the Claimant serious harm. The Claimant has not produced any note or transcript of the hearing and there is no note of the judge’s reasons for not issuing the summons. As the letter itself made clear, those acting on behalf of Dr X supplied a Skeleton Argument and Appendices in July 2016 (two months before the Email) opposing the grant of a summons. It appears that there were a number of grounds of resistance, the first one being that there was no prima facie evidence of an offence. Because, for the reasons I have given, I must approach the Claimant unsupported evidence with caution, in the absence of corroboration, I reject her bare assertion that the Email was the cause, or even a cause, of the district judge refusing to issue the summons. There is no evidence to suggest that it was even specifically drawn to the judge’s attention. Even if it was, there is no evidence that the Email had any impact on the judge at all.

Although not raised by the Defendant, it seems to me that if I had reached a contrary conclusion then difficult issues concerning absolute privilege might have arisen. These may have included whether the deployment of defamatory material in court in criminal proceedings to the detriment of a party can be relied on by that party to prove serious harm in subsequent defamation proceedings.

In [22] of her witness statement the Claimant claims that she could not pursue a job in healthcare because of the Email. I reject this suggestion, which seems to me to be implausible. There is no supporting evidence. Also, the Claimant does not say her prospective employer was aware of the Email.

I turn to the question of whether the Email ‘is likely to cause’ serious harm to the reputation of the claimant. This refers to what may happen in the future. I have considered the Claimant’s assertions at [22] of her witness statement, eg, that the

There is no supporting evidence for any of these assertions. I regard them as remote and speculative in the extreme and I reject the suggestion that the Email would be forwarded on or otherwise published to cause any serious harm to the Claimant.

I am therefore satisfied that the Claimant has failed to show the Email caused her serious harm in fact or that it is likely to do so. In summary, the evidence shows that the number of publishees was very limited; that there was no grapevine percolation; that two of the four publishes knew about the contents of the Email in any event before receiving it; and thus that there is no evidence that anyone thought any the less of the Claimant by reason of the publication of the Email or its deployment to resist the summons. As for the other two recipients of the Email, Mr Pohle is mentioned in passing in the Claimant’s evidence, while Ms Delia is not mentioned at all. In the absence of any evidence that they had any connection with the Claimant, or that they even read the Email, or formed any view about its contents, I decline to find there the Claimant suffered serious harm as a consequence of it being published to them.

I therefore find that the Email has not caused the Claimant serious harm within the meaning of s 1(1) of the 2013 Act, nor that it is likely to, and thus that the words complained of were not defamatory of her. The Claimant’s claim in libel therefore fails.

But in case I am wrong in that conclusion, I go on to consider the next issue, which is whether the Defendant is able to reply upon the defences of truth and/or honest opinion in ss 2 and 3 of the 2013 Act.

I begin with the defence of truth in s 2 of the 2013 Act. It is a fundamental tenet of libel at common law that a defamatory imputation is presumed to be false and, accordingly, the burden is upon the defendant to show that the imputation is substantially true: see Gatley on Libel and Slander, 12^th Edn [11.4]. This principle has been enshrined in s 2: Serafin v Malkiewicz and others [2019] EWCA Civ 852, [95]. If the defendant discharges this burden then the claim in libel fails.

Section 2 provides:

“(1)

It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

(2)

Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.

(3)

If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.

(4)

The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.”

In my judgment the Defendant has succeeded in showing that the imputations conveyed by the Email that the Claimant is dishonest and fraudulent are substantially true. The defence of truth therefore succeeds. That is because:

In my judgment this conduct reveals a pattern of dishonest and fraudulent behaviour by the Claimant in relation to the Defendant and demonstrates that the imputations arising from the Email are substantially true. In reaching this conclusion I have

So far as the falsified email is concerned, as I have found (and the Claimant admitted), she did indeed falsify it. As well as the Claimant’s submissions, Ms O’Sullivan said:

“… when I spoke to Mr Cadogan, and I forwarded him a copy of this email, he confirmed that that was not his email, that had been changed and although that was his telephone number, his name had been removed from between the words, regards and administrative officer.”

It is abundantly clear from the recording of the Claimant’s conversation with Ms Gouveia that the reason she falsified it was because Ms Gouveia had requested written evidence that the court was requesting a statement. No such written evidence then existed, so the Claimant simply fabricated it. The Claimant’s words at the end of the conversation following Ms Gouveia’s request are telling:

“Let me deal with this right now because I don’t want to waste any more time.”

The falsified email was sent minutes later.

It is nothing to the point that the district judge might have orally requested the Claimant to obtain a medical report at some stage. I am prepared to assume that he did. But it is obviously dishonest to falsify a court email. Indeed, in some circumstances, it may a criminal offence to do so, although I do not need to make such a finding here. The Claimant’s actions speak for themselves. I conclude that the Claimant well knew that what she was doing was improper. She removed the original sender’s name from the court email so that Ms Gouveia would find it harder to trace the original sender. The Claimant therefore took active steps to make it less likely that her falsification would be discovered. In fact, the Claimant admitted in crossexamination that she knew what she was doing was wrong. She said:

“I didn’t feel, you know, I was supposed to do this but I had no other option but to send this email to show them there is ongoing proceedings.”

In relation to the Claimant’s use of false names, the Claimant accepted in her Particulars of Claim and her evidence that she had used false names when attending at the hospital for medical treatment. In [2] she said that when she attended on 12 December 2015, she gave the name SC because she did not want the hospital to send information to her GP, Dr X (who was the reason she attended hospital). At [19] she alleges that Dr X would have tampered with her notes.

At [20]-[21] of her Particulars of Claim the Claimant explained why she had used a false name on another occasion, not connected with the alleged offence by Dr X. The relevant parts are:

“20.

It was similar story with MD …. [She then describes her symptoms] … I was left to feel hopeless by my GPs and hospital doctors. There was also a culture and a prejudice whereby doctors do not bother to get to the sources of the problem instead they heavily rely on my past history as a matter of convenience for them and they deal and treat my symptoms only. This led to my illness to get worse …

21.

It happened to me when doctors feel okay for them to make same diagnosis by just looking at my past history through my health records, but they were not taking into account that their attitude was preventing me from receiving the right care and treatment. Changing my name was the only option I had in front of me to get a second opinion from doctors without prejudice or bias.”

The Claimant repeated this explanation in [34]-[35] of her witness statement of 7 November 2018. Earlier, in her witness statement of 28 July 2018 the Claimant said at [5]-[7]:

“5.

The claimant attended the hospital of the defendant trust on a number of occasions seeking medical attention and treatment using different names. The claimant used different names first to have second opinion(s) for her ongoing medical condition because if she gave her name the defendant trust would have had access to her GP’s notes and this was likely to have affected the opinion(s) of the doctors at the hospital and second to not to allow her GP against whom she was going to bring a private prosecution to have access to the hospital notes to prevent her from interfering with the notes

…

6.

For the claimant giving different names was a remedy of last resort as she needed to protect herself from further harm. The claimant considered changing her GP this is normally not that easy and the process of transferring medical notes to another GP's surgery normally takes many weeks sometimes months.

7.

At no stage before and even after issuing her claim, the defendant trust showed no interest in knowing the reasons for claimant using different names. There was no express willingness by the defendant trust to sit down with the claimant and go through her ordeal with her to find a way to assist her. However, when the trial at City Westminster Court was going to set a trial date for Mr Nicholas Tennant’s client and claimant’s former GP to stand trial, the defendant trust disclosed private and confidential information about the claimant without her consent or knowledge and made defamatory statemen on purpose to undermine the prospect of successful prosecution of Mr Tennant’s client.”

In cross-examination the Claimant admitted using false names, not in order to commit a fraud, but to access treatment. She said, ‘I went to the hospital to seek treatment.

In my judgment, despite the Claimant’s belief (which I am prepared to accept is genuinely held), ordinary and reasonable people would regard her behaviour in deceiving hospital professionals in the way she did as dishonest, even though she thought she was entitled to do as she did in order to get treatment. The Claimant was not entitled to assume that medical staff would not treat her properly if they knew who she really was. Medical staff have a professional duty to do what is in their patients’ best interests. A patient’s medical history is an important part of the diagnostic process. By giving a false name the Claimant was depriving hospital staff of information which they needed to know in order to give her proper treatment. By acting as she did, there must have been a risk that the Claimant would obtain treatment which was inappropriate, or to which she was not entitled, thereby placing an additional burden on an already overstretched NHS. I do not say that she did, but there must have been such a risk.

Nor do I accept that her reason for giving a false name on 12 December 2015 was a valid one. I have no doubt that if she had asked that details of her treatment not be passed on to Dr X, and explained the reason why, that request would have been honoured and suitable safeguards would have been put in place.

Furthermore, the Claimant did not just use false names to obtain treatment. As I have said, she lied at least three times in the first call on 9 September in order to get Dr Suliman to the phone and (I assume) away from his other duties treating patients. Also, throughout her dealings with hospital staff, she maintained the false identify of SC instead of revealing her true identity. This conduct can only be described as dishonest.

The Claimant’s dishonest conduct did not end there. As I explained earlier, in a telephone call on 2 February 2016 the Claimant tried to trick Dr Costello into sending a confidential medical report to ‘C Zahoor’, who she said was a legal adviser. In fact,

Finally, I have not overlooked that in the Email Ms O’Sullivan wrongly stated that the purpose of the falsification had been ‘to lead us to believe that they relate to an alleged prosecution of a clinician at our Trust’. In my judgment, that does not prevent the imputed meaning that the Claimant was dishonest and fraudulent from being substantially true. The Claimant’s pleaded case on imputation does not include the misstatement by the Defendant of her purpose in falsifying the email. In other words, she does not allege that the imputation of dishonesty was untrue because Ms O’Sullivan misstated the purpose of the falsification. But even if she had, I would still have held that the imputation of dishonesty was substantially true because of the Claimant’s acceptance that she falsified the email. A defendant does not have to prove that every word he/she published was true. He/she has to establish the substantial truth, or the ‘sting’, of the libel. The sting of the imputation, had it been pleaded, was the dishonesty in the falsification of the email rather than the purpose behind it. The Claimant’s purpose was essentially irrelevant to the question of her dishonesty. To falsify a court email in the way that the Claimant did was dishonest, no matter what the purpose of the falsification. In any event, the matter was corrected, as I pointed out earlier, within 27 minutes.

Overall, I find that on a number of occasions including in 2015 and 2016 the Claimant engaged in dishonest and fraudulent conduct towards the Defendant’s staff. For these reasons, I am satisfied on the balance of probabilities that the imputations arising from the Email that the Claimant is dishonest and fraudulent are substantially true. The Defendant’s defence under s 2 therefore succeeds.

It is not therefore necessary for me to consider the defence of honest opinion.

For these reasons, the libel claim fails and is dismissed.

I can deal with this claim altogether more shortly.

Article 8 of the Convention provides:

“Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 156. Article 10 provides:

“Freedom of expression

1.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Where a court is considering a claim for misuse of private information it has to decide two issues, which should be kept separate. In McKennitt v Ash [2008] QB 73, [11] the two issues were described in the following terms:

“First, is the information private in the sense that it is in principle protected by article 8? If ‘no’, that is the end of the case. If ‘yes’ the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10

?”

In Murray v Express Newspapers Limited [2009] Ch 481, [35]-[36] Sir Anthony

If this question is answered positively then the court has to go on to consider the second question. This requires the application of Article 8(2), and when freedom of expression is involved (as it is in this case, because the alleged misuse arose a consequence of the publication of a book), the court must undertake a balancing exercise to decide whether in all the circumstances the interests of the owner of the private information (in this case, the Claimant) must yield to the right to freedom of expression conferred on the publisher (in this case, the Defendant) by Article 10.

How this balancing exercise is to be carried has been explained in a number of cases. In Re S (A Child) [2005] 1 AC 539, [17], Lord Steyn said:

“First, neither article (8 or 10) has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

In PJS v News Group Newspapers, supra, [20], Lord Mance summarised the relevant principles as follows:

“(i)

neither article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied: see eg In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, para 17, per Lord Steyn, with whom all other members of the House agreed; McKennitt v Ash [2008] QB 73, para 47, per Buxton LJ, with whom the other members of the court agreed; and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) at [28] per Eady J, describing this as a ‘very well established’ methodology. The exercise of balancing article 8 and article 10 rights has been described as ‘analogous to the exercise of a discretion’: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 at [8].”

Also of assistance is Baroness Hale’s analysis in Campbell v MGN Ltd [2004] 2 AC

In conducting this balancing exercise, it is clear that it is not sufficient simply to consider whether publication is in ‘the public interest’ in some general sense. I must balance the public interest in favour of publication against the public interest in maintaining the right to privacy by reference to the specific facts in question and the nature of the public interest said to justify publication.

The starting point is to identify what allegedly private information the Claimant is complaining about. At [24] of her Particulars of Claim she asserts that:

“The defendant had breached my confidentiality and my privacy by deliberately and maliciously communicating my confidential and private information to a third party namely the defendant GP’s solicitor when they were not supposed to do so. The

Communication with the defendant GP’s Solicitor was unacceptable, it was without my knowledge or consent and it was legally wrong. The defendant hospital has a duty towards me as being one its patients and should not have breached my privacy in any shape or form.”

Earlier, at [19] and [20] under the heading ‘Particulars of breach of confidence and Art 8 of the ECHR’ the Claimant explained why she had used the names SC and MD.

At [28] of her Reply to Defence she pleaded that:

“The defendant’s GP’s solicitor Mr Tennant did not have the right to know about the claimant’s use of different names to seek medical treatment at the defendant’s hospital this is private information relating to the defendant’s patient and this is a type of information if communicated to a third party without the consent and the permission of the claimant/patient will lead and will amount to a breach of confidentiality.”

Under cross-examination the Claimant said this in relation to her use of false names:

“… those names I have used to seek medical treatment, they form part of my health records, okay? And they are protected. They are private and confidential and protected by Article 8. They form part of my health record. Whatever name I have given to access medical health, to access treatment, it’s part of my medical record, okay?”

It is therefore the Claimant’s case that the Defendant wrongly disclosed that she had used a number of different names, and therefore false, names when accessing medical treatment at the hospital. Thus, the private information in question is her attendance at the Defendant hospital and her use of different names.

Applying the test in Murray v Express Newspapers Limited [2009] Ch 481, [35]-[36] I do not consider that there was a reasonable expectation of privacy in relation to the Claimant’s use of different names when seeking treatment at the Defendant hospital. Having regard to the various factors in [36] of that case (including the nature of the activity in which the Claimant was engaged), this is not information that a reasonable person of ordinary sensibilities would feel was private if she was placed in the same position as the claimant and faced with the same publicity.

The context is all important. I accept that the mere fact of having had hospital or other treatment (without anything more) may itself be private information, for example, if someone has attended at a clinic from which the nature of their illness can readily be inferred. But everything depends on the circumstances. I entertain doubts that the mere fact of a person’s attendance at an A&E department would, without more, constitute private information. But I need to decide that in this case. Here the Claimant cannot have been a reasonable expectation of privacy about mere fact of her attendance at the Defendant hospital’s A&E department because the private prosecution she sought to launch would have had, as part of the evidence, her very attendance at that department in December 2015. She chose to make that fact public when she applied for the summons against Dr X, with the result that the judge asked her to obtain a medical report from the Defendant. Therefore, to the extent that the fact of her attending for treatment in December 2015 at A&E was private (which I assume but do not decide), she waived that privacy when she began her private prosecution. Hence, by the time Ms O’Sullivan sent her Email on 12 September 2016, privacy had been lost.

For the same reason, she cannot have had a reasonable expectation of privacy about her use of the false name SC, because that would inevitably have come out as part of the evidence, given the medical report would have been in that false name. Following on from that, had there been a trial, then the Claimant’s use of other false names would almost certainly also have come out. She would have been bound to have been asked in cross-examination whether she had ever used any other names in her dealings with the hospital and she would have been bound to have answered truthfully. Also, as a prosecutor, the Claimant would have had duties of disclosure during the criminal prosecution. It is therefore possible (I would say likely) that she would have had to disclose to Dr X’s defence lawyers all of the occasions on which she had used different names when seeking treatment. That is because these are matters which would have been relevant to her credibility.

Her use of the name ‘CZ’ potentially falls into a different context. As I have said, she used that name in an attempt to deceive Dr Costello into sending over medical reports in February 2016. There can be no expectation of privacy in relation to an attempt to deceive a hospital professional.

For all of these reasons, she could not have had a reasonable expectation of privacy in relation to the information she complains about.

These findings are sufficient to dispose of the privacy/Article 8 claim.

Although I need not decide it, had I had to go on to consider the second question arising under McKennitt, supra, I would have held that the balance came down in favour of publication. Whilst I recognise that medical information is strongly protected by Article 8 (see, for example, Z v Finland (1998) 25 EHRR 371, [95]), here there was no disclosure of medical information, only the bare fact of the Claimant’s attendance at the hospital using different names without any details of why she attended, and nor could that be inferred from the information disclosed. There was only a modest infringement of the Claimant’s Article 8 rights. On the other hand, the communication of the information was made to the court, and copied to a limited number of people, for the purposes of criminal proceedings in order to explain to the court why the Defendant would not be providing the report which the court had requested.

The Claimant’s claim for breach of privacy/Article 8 therefore also fails.

It follows that the Claimant’s claims are dismissed.

Whilst I was writing this judgment I received correspondence from the parties. In an email dated 21 May 2019 (and again in her post-Lachaux submissions) the Claimant asked for ‘injunctive relief’ in the form of:

So far as the first claim is concerned, for the reasons I have given, the defamatory imputations in the Email are substantially true. The one error in the Email (which, as I have explained, is irrelevant to the outcome of the libel claim) was corrected shortly afterwards. I need not say anything more.

So far as the second claim is concerned, there may be legal mechanisms available to the Claimant by which she can try and access her medical records. It is open to her take legal advice about those if she wishes to do so. However, that is not a matter for me. It formed no part of the libel and privacy claims which I have determined in this judgment.