Full case report
White v Southampton University Hospitals NHS Trust
Reference  EWHC 825 (QB)
Court Queen's Bench Division
Judge Eady J
Date of Judgment 1 Apr 2011
Libel – strike out – summary judgment – absolute privilege – qualified privilege – communications to professional bodies – General Medicial Council – use of material disclosed in the course of proceedings
Dr White appealed against a decision of Master Roberts to (1) strike out her libel claim and enter summary judgment in favour of the respondents, and (2) refuse Dr White permission to amend her Particulars of Claim to include letter of reference.
The libel claim as pleaded in the unamended Particulars of Claim related to a letter written by the second respondent, Professor Roche in his role as Medical Director of the first respondent NHS Trust. The letter was addressed to the General Medical Council (GMC), and communicated to the GMC a number of concerns about Dr White’s fitness to practise. The Master struck out the claim having found that such communications are protected by absolute privilege.
The letter of reference which Dr White sought permission to include in the claim was also written by Professor Roche to another doctor. Dr White complained of the last sentence of the letter only. Dr White knew of the contents of the letter because it had been disclosed in the course of Employment Tribunal proceedings which Dr White brought against the first respondent.
(1) Was the letter to the GMC protected by absolute privilege?
(2) Should the claimant be granted permission to amend?
Dismissing the appeal,
(1) Communications to professional bodies such as the GMC for the purposes of an investigation are protected by absolute privilege. Dr White’s contention that the privilege should instead by qualified had no support in the authorities. There are public policy reasons why people should be able to speak freely, without inhibition and without fear of being sued in such circumstances. That absolute privilege attaches to such communications is settled law: see Vaidya v GMC  EWHC 984 (QB) in relation to the medical profession, and Lincoln v Daniels  QB 237 in relation to the legal profession. The Fitness to Practise Panel of the GMC has been found to be a quasi-judicial body (Ahari v Birmingham Heartlands v Solihull  UKEAT 0355_07_0104). The letter contained no extraneous material and was rightly found to be privileged.
(2) Material disclosed in the course of proceedings is subject to the rules at CPR 31.22. Where that material is referred to in those proceedings, the court has discretion as to whether the material can be used further. The Master had exercised that discretion and therefore his decision should not be overturned simply because the court would have reached a different conclusion (G v G (Minors: Custody Appeal)  1 WLR 647). In considering this matter the court must consider the competing Convention rights in play and carry out a balancing exercise. Forced disclosure will almost always involve a prima facie infringement of privacy, but public policy requires full disclosure of relevant documents. The Master rightly took into account that the letter was protected by qualified privilege, that there was no evidence of malice and that finding of malice are rare. Also as only one sentence was complained of there was no real prospect of Dr White achieving vindication in any case. The Master’s conclusion was correct: any rights Dr White had under Articles 6 or 8 were outweighed by the Defendants’ Article 10 rights and in particular their right not be vexed with unmeritorious and futile litigation over a confidential document disclosed under compulsion of law. That the document could have been obtained through other means (an application under the Data Protection Act) did not matter as the document was obtained through disclosure and so the provisions of CPR 31.22 fell to be applied.
The judgment reaffirms that absolute privilege attaches to communications to professional bodies such as the SRA and GMC for investigative purposes.
Beachcroft LLP for the respondents
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.