Full case report

Jose Antonio Serrano Garcia v Associated Newspapers Limited

Reference [2014] EWHC 3137 (QB)
Court High Court (QBD)

Judge Dingemans J

Date of Judgment 6 Oct 2014


Summary

Libel- Defamation- Trial- Justification- Honest comment- Damages- Aggravated damages


Facts

The Claimant, a GP based in Hastings, was the subject of an article published by the Defendant in the Daily Mail and on the MailOnline website headlined “A whole year of hell, thanks to a foreign doctor”. The article related to a consultation between the Claimant and Mr Jones, a bus driver, on 24 January 2011.

Mr Jones had attended the consultation because he was experiencing pain and swelling in his ankle, which the Claimant diagnosed as gout. The Claimant asked Mr Jones about his alcohol consumption and there was a dispute as to what Mr Jones said in reply. The Claimant maintained that Mr Jones had disclosed that he drank half a bottle of Bacardi at night”, and Mr Jones claimed that he had merely suggested that he was entitled to drink half a bottle of Bacardi a night if he was not driving on the following day. Following the consultation and blood tests carried out shortly afterwards, the Claimant reported Mr Jones’s alcohol consumption to the DVLA. This resulted in Mr Jones’s bus driving licence being revoked by the DVLA and not returned until over a year later.

The article criticised the Claimant for reporting Mr Jones to the DVLA, resulting in the loss of Mr Jones’s livelihood, and referred to the impact of a “language barrier”. It further criticised the Claimant for being uncaring and for pretending to be unable to discuss the matter with a freelance journalist on the basis of patient confidentiality. 


Issue

(1)    What were the defamatory meanings of the article?

(2)    Could the defamatory meanings of fact be justified, or sufficiently justified?

(3)    Could any of the defamatory comments be defended as honest comment?

(4)    If not, whether damages, including aggravated damages, should be awarded and if so in what sum?


Held

(1)    What were the defamatory meanings of the article?

Applying the Jeynes principles, the judge held that the article bore the following defamatory meanings:

(i) Mr Jones suffered a nightmare when he wanted treatment for swollen legs because Dr Serrano had written to the DVLA to have Mr Jones’ licence revoked for persistent abuse of alcohol when it was wrong and inappropriate to do so: (1) because Dr Serrano had been told that Mr Jones might have a pint or two after work, and a couple of spirits if he went out with his wife and friends at the weekend; (2) because of the language barrier Dr Serrano had wrongly understood that Mr Jones drank that amount every night and then refused to listen; and (3) without any research into whether Mr Jones persistently abused alcohol such as liver or blood tests, and without any other evidence whatsoever. The DVLA had relied on Dr Serrano’s report and revoked Mr Jones bus and personal driving licences.

(ii) Dr Serrano reported Mr Jones to the DVLA and it was wrong and inappropriate to do so because it was a breach of patient confidentiality.

(iii) Dr Serrano unreasonably refused to persuade the DVLA to revoke its decision in circumstances where blood, liver and kidney tests, when carried out by another doctor, showed that Mr Jones did not persistently abuse alcohol, and where tests subsequently carried out by an independent doctor brought in by the DVLA showed no trace of persistent abuse of alcohol.

(iv) Dr Serrano pretended not to be able to talk about Mr Jones’ complaints on the basis of patient confidentiality, when an appropriate consent form had been sent through.

(v) Dr Serrano’s conduct was shocking.

The main sting of the article was that the Claimant reported Mr Jones to the DVLA and it was wrong an inappropriate to do so because of (a) a lack of evidence of persistent alcohol abuse, (b) the language barrier and (c) the report was in breach of patient confidentiality.

(2)    Could the defamatory meanings of fact be justified, or sufficiently justified?

The judge found that the Claimant’s account of Mr Jones’s disclosure as to alcohol consumption at the consultation was correct, and that the Claimant had not misunderstood what had been said. There was no language barrier. Further, there was considerable evidence to justify the Claimant’s actions, and his report to the DVLA was therefore not wrong and inappropriate. The fact that the Claimant omitted relevant information from his letter to the DVLA was not sufficient to satisfy the provisions of section 5 of the Defamation Act.

Further, although the Claimant did not attempt to persuade the DVLA to reverse its decision to revoke Mr Jones’s licence, his refusal to do so was not unreasonable in the circumstances. Nor could the allegation that the Claimant had been uncaring be sustained.

Finally, the Claimant had not pretended not to be able to talk about Mr Jones’s complaints. He was genuinely and properly concerned about patient confidentiality.

(3)    Could any of the defamatory comments be defended as honest comment?

Although the fifth defamatory meaning was a comment, it was based on facts which had not been protected by privilege or shown to be true, or sufficiently true.

(4)    If not, whether damages, including aggravated damages, should be awarded and if so in what sum?

The Claimant was entitled to £45,000 in damages. The article and proceedings had been very stressful and upsetting for the Claimant and his wife, and had partly influenced his resignation from the surgery in Hastings.

The proper defence of an action is not to be taken into account in aggravation of damages in libel proceedings. The cross examination of the Claimant and all of the witnesses was fair and appropriate on both sides, and the defence was properly advanced.

The fact that the Claimant had made several omissions from the letter to the DVLA and that Mr Jones was only told that the letter was going to be sent on the day that it was sent was not sufficient to reduce damages in accordance with Pamplin v Express Newspapers.

Finally, there was no evidence to show that the article would be published again nor was there anything to suggest concern that it might be re-published, so no injunction would be ordered.


Comment

This was a decision based on the facts and the Judge’s assessment of the relative credibility of the witnesses.

The judge’s decision in relation to the plea of aggravated damages is worthy of note, given the frequency of such pleas whenever a justification defence is advanced. The judge was referred in closing to the High Court of Australia’s decision in Triggell v Pheeney and Lord Neuberger’s judgment in the Hong Kong Court of Final Appeal in Blakeney Williams v Cathay Pacific Airways Ltd, and decided to adopt the same approach, namely that a defendant ought not to be penalised by way of damages for a ‘properly advanced’ defence of justification.


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Instructing Solicitors

Taylor Hampton for the Claimant; RPC for the Defendant