Full case report
Abdel-Bari v Nottingham University NHS Trust
Reference  EWHC 154 (QB)
Court Queen's Bench Division
Judge Master McCloud
Date of Judgment 29 Jan 2016
Defamation – Libel – Malicious Falsehood – Data Protection Act 1998 – whether to disapply limitation period for claims in libel and malicious falsehood – whether to allow permission to amend to include claim under Data Protection Act 1998
In May 2013 C, a locum registrar, was employed for 4 nights in D’s Obstetrics & Gynaecology department. D terminated his employment a day early and a consultant sought feedback from staff on C’s performance in case of a complaint. A midwife, Susan Brydon, responded by email to say she had been informed that at 7am on 8 May 2013 C had examined a pregnant woman (patient AK) in a way which was very painful and upsetting. A complaint was made to the GMC.
At some later point, Ms Brydon wrote a detailed note. In it she now said that, when she arrived on duty at 7am on 8 May 2013, she had witnessed C performing a vaginal examination on patient AK and she had attended to assist as the noise of the woman crying was alarming. She said the women was very traumatised and that there was no clinical reason for the patient to have had the examination.
This note was passed by D to the GMC and presented as part of the patient’s medical notes.
C denied that the incident occurred at all. Towards the end of the GMC investigation patient AK gave a witness statement confirming that the incident had not occurred and she had not been seen after midnight by C and had no complaint about his care. Subsequently, the GMC investigation was dropped.
C wrote to Ms Brydon in September 2014. In a response, she told him she could not recall the events she had described in her note and nothing he had done had caused her concern.
Acting in person C commenced proceedings for libel once he had received patient AK’s statement. D sought to strike out the claim on the grounds of limitation and C who had obtained advice from Counsel through the Bar Pro Bono Unit and then obtained legal representation sought to disapply the limitation period and amend his claim.
A day before the hearing, D served a witness statement from Ms Brydon. In it, she said she had written a short diary note in May 2013 and when asked by D to prepare a witness statement for the GMC she had refused but had written the note instead. She accepted that her accounts were inconsistent. She now said she did not witness C performing a vaginal examination at 7am on 8 May 2013 and accepted that the examination may not have occurred. She also said she had told D that she had only provided the note to D for its internal purposes and not for the GMC.
- Whether the one year limitation period for libel and malicious falsehood claims should be disapplied.
- Whether C should have permission to amend to include claims in malicious falsehood and breach of statutory duty under the Data Protection Act 1998
- Allowing the application to disapply the limitation period. It was equitable having regard to all the circumstances of the case to allow the claims in libel and malicious falsehood to proceed out of time. The allegation levelled at C in the note was very serious; it was now accepted not to have occurred; it was by no means certain that defences of absolute and qualified privilege would succeed in circumstances where D was a public authority, Ms Brydon had stated her note was not to be sent to the GMC, and it contradicted other accounts she had given. There was no issue over the cogency or availability of the evidence. The reasons for the delay were understandable. C was entitled to wait for the outcome of the GMC investigation and not to launch parallel proceedings.
- Permission would be given to include a claim for breach of statutory duty under the Data Protection Act. The note of Ms Brydon was arguably data about C. If D’s case, based on Ms Brydon’s evidence, was that the note was not part of the medical notes of patient AK then that was relevant to the purpose and manner of processing the data.
Whilst the delay before issuing was relatively lengthy, the reasons for the delay were clear and understandable. What is more, the accusation levelled at C was very serious and D’s shifting case demanded examination.
Simon Burn Solicitors for C; Browne Jacobson for D
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