Akinleye v East Sussex Hospitals NHS Trust

C worked as an echocardiographer for the Defendant for 2 months being moving to Pennine Acute Hospitals NHS Trust on an agency contract. The Defendant’s medical director was contacted by C’s new employer to be told that his contract had been terminated and a review of his recent employment was being carried out to identify any patient safety issues and to request information about C. The Defendant sent a brief report, copied to a number of its staff members in response. C sued in relation to allegations he possessed limited echocardiology know-how and was suspected of theft and non-payment of rent. D pleaded justification, took points on meaning and duty/interest qualified privilege. C admitted privilege.

Whether the publication took place on an occasion of qualified privilege and whether C had any real prospect of proving that the publication was actuated by malice.

Dismissing the claim,

(1) The publication was a classic occasion of qualified privilege. Although certain statements were not relevant to patient safety they were relevant to an assessment of professionalism and integrity, satisfying a test that those statement were germane to the subject matter of the enquiry; Maccaba v Lichtenstein [2005] EMLR 206 applied.

(2) There was no evidence fit to go to a jury that the Defendant’s medical director had no honest belief in the truth of the statements about C or, that believing them to be true, had included them out of an improper motive. There was no prospect of proving the publication was malicious.

A salutary lesson on the risk of advancing a malice plea without a sound evidential basis.