Bataille v Newland & Ors

Reference: [2002] EWHC 1692 (QB)

Court: Queen's Bench Division

Judge: Eady J

Date of judgment: 31 Jul 2002

Summary: Defamation - Libel - Publication - Strike out - CPR Part 3.1 and 3.4 - No reasonable grounds for alleging publication - Summary Judgment under CRP Part 24.2 - no prospect of proving publication - Mini-trial.

Appearances: Adrienne Page QC - Leading Counsel (Claimant)  Alexandra Marzec (Defendant)  Godwin Busuttil (Defendant) 

Instructing Solicitors: Davenport Lyons for the Claimant; Radcliffes de Brasseur for the second Defendant; Capsticks for the first Defendant

Facts

Both the Defendants were important and respected figures in the world of medicine, and both were employed by Queen Mary and Westfield College as Professors. The Claimant was a medical doctor specialising in skin cancer who was also employed by QMW as a senior lecturer in the Oncology Department which was headed by the first Defendant. The libel action arose out of the publication of a letter sent by the first Defendant to at least three people, regarding the Claimant’s conduct whilst at QMW . The meanings of the words complained of were to the effect that the Claimant was guilty of a breach of ethical standards and a gross dereliction of her duty in that she had transferred patients’ DNA samples without their consent to a commercial company in which she and her husband had a personal financial interest, and that she had dishonestly concealed that interest. The Second Defendant applied to strike out on liability for publication .

Issue

(1) The correct approach the court should take on applications of this kind, where the issue was one of fact which would in the ordinary course be left to the jury to determine on the evidence; and (2) whether the claim against the Second Defendant should be struck out.

Held

On a strike out application the court had to assume that all facts would be established in the Claimant’s favour save in so far as it could be demonstrated on written evidence that any particular factual allegation was indisputably false. The next question was whether on those facts, a properly directed jury could draw the inference contended for by the Claimant namely, that the second Defendant had participated in the publication of the letter. The court could only rule out the Claimant’s case against the Second Defendant if it was satisfied that it would be perverse for a jury to draw that inference. As to the application for summary judgment, the court could also consider the evidence for determining whether the Claimant’s case had no realistic prospect of success. The Court held that it could not rule out the possibility that the Claimant could prove her case against the Second Defendant at trial on the issue of publication.

Comment

The correct approach on applications of this kind was now reasonably clear in light of two Court of Appeal judgments (Alexander v Arts Council of Wales & Anor (2001) EWCA Civ 514 and Wallis v Valentine (2002) EWCA Civ 1034).