Cilliers v Gibraltar Health Authority

Reference: 2021/GSC/19

Court: The Supreme Court of Gibraltar

Judge: Restano J

Date of judgment: 19 Jul 2021

Summary: Libel – Malicious Falsehood – Slander - Strike out – Jurisdiction of Employment Tribunal - Johnson exclusion area – Summary judgment – Jameel abuse

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Appearances: Julian Santos (Defendant) 

Instructing Solicitors: Kenneth Navas Barristers and Solicitors

Facts

The Claimant is a former employee of the Defendant Health Authority. She was dismissed on 15 May 2017 and, the following day, she received a letter of dismissal (“the Letter”).

Following her dismissal, the Claimant brought a claim for unfair dismissal in the Employment Tribunal against the Defendant Health Authority for damages and loss of earnings based upon breach of contract of employment, breach of duty of care, libel, malicious falsehood, and slander.

The libel and malicious falsehood claims concerned the publication of the Letter to various individuals at the Defendant Health Authority, the then-Minister for Health and Justice and the Employment Liaison Officer at the General Medical Council.

The slander claim concerned (1) allegedly defamatory words spoken to the Minister for Health and Justice by way of a report relating to the Claimant’s dismissal, and (2) allegedly defamatory words spoken to the Employment Liaison Officer relating to the contents of the Letter and the Claimant’s dismissal.

The Defendant made an application for strike out and summary judgment.

Issue

  1. Whether the defamation and malicious falsehood claims should be struck out on the basis that they fall within the “Johnson exclusion area” (Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518) – namely, that the dismissal of an employee is the sole jurisdiction of the Employment Tribunal under the statutory unfair dismissal regime;
  2. Further or alternatively, whether summary judgment should be entered in the libel and malicious falsehood claims on the issue of publication of the Letter to certain publishees;
  3. Further or alternatively, whether the claims in defamation and malicious falsehood should be struck out on the basis of Jameel abuse;
  4. Further or alternatively, whether the defamation and malicious falsehood claim should be struck out on the basis of pleading deficiencies.

Held

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.

Comment

This is another helpful judgment regarding the Johnson exclusion area, following the recent judgment in Parris v Ajayi [2021] EWHC 285 (QB). This was a somewhat straightforward case as the subject of the claim was so clearly linked to the dismissal proceedings, and there may be less obvious circumstances.

Parties should also note the judge’s endorsement of the Defendant’s approach of seeking summary judgment in respect of some, even if not all, of the issues (at [59]-[60]). The Claimant’s criticism that it did not dispose of the entire claim was rejected. CPR 24.2 provides for summary judgment on “a claim or a particular issue” (emphasis added) and, when taken together with the strike out application based on Jameel abuse, it had the potential to dispose of the claims and narrow the issues proceeding to trial.

Further, although obiter, it is notable that the Judge would have been willing to give the Claimant the opportunity to remedy serious pleading deficiencies before he was willing to strike out the claim on this basis alone.