Strike out: Johnson exclusion area
The Claimant’s claims for defamation and malicious falsehood all fell within the Johnson exclusion area and were accordingly struck out:
- Although defamation claims which are independent of a dismissal could fall outside the Johnson exclusion area, this was not such a claim: the libel and malicious falsehood claims related to the letter of dismissal; and the slander claim referred to words spoken on the day that the Claimant was dismissed and to a report of that dismissal.
- Further, the loss claimed for reputational damage was inextricably linked to the dismissal such that the cause of action in respect of the reputational damage did not exist before the dismissal, and therefore any financial loss claimed as a consequence can only be brought in an unfair dismissal claim. The claims cannot be divorced
Notwithstanding that the claims were struck out on the basis of Johnson, the judge considered further grounds pursued by the Defendant, namely strike out and summary judgment.
Summary judgment on the issue of publication to certain publishees
Summary judgment on the issue of publication to Professor Burke of the Defendant Health Authority, the Employment Liaison Officer or others at the GMC would have been entered in favour of the Defendant Health Authority, on the basis of evidence provided by the Defendant’s employees that publication did not take place to these individuals. The Claimant had not provided any positive evidence in response to this evidence. There was no reason to conclude that anything would change if this issue proceeded to trial, nor any inference that could be drawn that they were made aware of the Letter’s contents.
Summary judgment on the issue of publication to the then-Minister for Health and Justice would have been refused. The only evidence that the letter was not published to him was from one individual at the Defendant Health Authority, but there were a number of others who might have provided the letter to him. More evidence may therefore have become available at trial.
Strike out: Jameel abuse
The remaining defamation and malicious falsehood claims would have been struck out on a Jameel basis.
In light of the summary judgment that would have been entered in the Defendant’s favour, the claim would now concern publication to: the person to whom the letter was dictated, the person who transcribed it onto a computer, the persons who otherwise dealt with and filed the letter, the Minister and two of the Defendant’s HR employees.
The Defendant’s solicitor had submitted unchallenged evidence that the HR employees assisted with the preparation of the letter and therefore publication to them was either not actionable or could not be said to have had any impact on their opinion of the Claimant, given their role in the dismissal process.
The same reasoning also applied to others involved in preparing the letter. At best, their roles were secretarial, limited and publication cannot have had any impact to give rise to a real and substantial tort.
The Minister had been present at the meeting during which the decision was taken to dismiss the Claimant and, therefore, subsequent publication to him cannot be said to have had a real impact on his opinion on the Claimant, nor did it disclose a real and substantial tort.
Therefore, publication, at best, would have been to a small number of people. Accordingly, the claim did not give rise to a real and substantial tort in libel and malicious falsehood.
Strike out: Pleading deficiencies
There were a number of alleged deficiencies in the Claimant’s pleaded case. However, the Judge would have been minded to allow the Claimant to remedy these deficiencies had this been the only ground of challenge.