Abstract
The Claimant, a consultant orthopaedic surgeon employed by the Trust, sued for defamation in respect of two e-mails sent by the second Defendant, a consultant in obstetrics and gynaecology who was also employed by the Trust. Tameside had been joined because Mr Pena contended that the e-mails were published in the course of Dr Hanna's employment.
This case came before Eady J on the Claimant's application to strike out two paragraphs in the Defence, and on the Defendants’ application for summary judgment.
Mr Pena had for several years served as Chairman of the Senior Medical Staff Committee (SMSC) at Tameside General Hospital. This body represented the interests of consultants and other senior doctors. At the last election on 18 June 2010, the sole rival candidate had been Dr Hanna.
It was undisputed that Mr Pena had for many years expressed concerns about the standard of care at the hospital. On 24 September 2010, he circulated an e-mail to senior medical staff, which was headed ‘Confidence in the Trust Board…’, and which (1) expressed his view that he had no confidence in the Board; (2) recorded his recent public statement that he supported a campaign agitating for the Board's resignation; (3) claimed that a number of staff had asked him to arrange a vote of no confidence in the Board; and (4) asked those recipients who did have confidence in the Board to indicate that support by e-mail.
That communication provoked a good deal of e-mail traffic and heated debate. Dr Hanna joined in, sending the first of the two e-mails which were the subject of this action. This contained the following comments:
‘This vote of confidence in the Trust issue came out only due to the fact that a few people including the Chair of the HSMSC are angry that the Trust has decided to stop the [waiting list initiative] which was much better than doing private practice, and not because of issues of patients’ care being compromised. All the recent figures and facts indicate that the patients’ care, the number of nurses per patient and mortality figures are improving. SO WHY HAS THIS ISSUE COME OUT NOW? You are all clever and educated people, THINK!!!!! And tell me if I am wrong?’
Mr Pena, a couple of weeks later, sent a further e-mail to colleagues claiming that the majority of senior doctors appeared to have no confidence in the Trust Board and suggesting that he would organize a secret ballot. That proposal likewise met with considerable criticism.
Dr Hanna joined in once more, and published the second of the two e-mails complained of:
‘These meaningless e-mail debates are a waste of our time. Mr Pena is a bitter person with a personal vendetta against the Trust Board. Whatever all of say [sic] will not make him change his view.
I think we should be calling for a vote of no confidence in his leadership of this SMHSC because all he has done in the last few years as a chair was to try to get rid of the Trust Board. He has not done one positive thing to benefit us…
I rest my case by saying I have every confidence in the Trust Board and have no confidence in the chair of SHMSC as he is abusing his powers as a chair.’
The Claimant pleaded that the natural and ordinary meaning of Dr Hanna's two e-mails was that Mr Pena's motivation in initiating the debate was his own remuneration and that he was not concerned with issues of patient care and the improvement of standards at the hospital. He further maintained that there was an innuendo to the effect that curtailment of the waiting list scheme (which had actually been brought about by government cuts) prompted his concerns about the Trust Board.
Held: publication of the e-mails from Dr Hanna could not be legitimately regarded as being closely connected with the discharge of any of the functions he was employed to perform, whether clinical or administrative. Whilst the subject matter was clearly concerned with the way in which the hospital was run, and the way the claimant was behaving, that did not mean that Dr Hanna was acting in any sense on the Trust's behalf in giving vent to his personal views. Furthermore, it would not be just that the Trust should be held liable for anything said by Dr Hanna in this debate, and accordingly the claim against the Trust would be struck out.
Turning to Dr Hanna's defences of qualified privilege and fair comment, the court accepted that the debate was between those who had a legitimate common and corresponding interest in the subject matter. That was a classic case of traditional qualified privilege. It was reinforced by the fact that the Claimant had himself generated the exchanges, and to that extent created the occasion for a free and frank exchange of views. The remarks of Dr Hanna were typical of the cut and thrust of grumpy debates of this kind.
As to fair comment, any reasonable reader of the exchange of e-mails would appreciate immediately that Dr Hanna was commenting about the Claimant's recent conduct rather than making verifiable assertions of fact. It was therefore clear, in the light of the modern authorities, that the relevant parts of Dr Hanna's e-mails must be classified as comment rather than fact.
Even in the context of the defence of qualified privilege, it was appropriate to regard an allegation of malice as tantamount to one of dishonesty. At the pleading stage, it was necessary to identify and set out the particulars of malice. Mere assertion would not do. The pleaded particulars contained nothing of substance and amounted to no more than bare assertion. They did not pass muster in accordance with the strict tests now applied to what is effectively a plea of dishonesty.
Accordingly, the pleas of qualified privilege and fair comment on behalf of Dr Hanna were sound. Further, there was no adequate plea of malice which had any realistic prospect of defeating either of those defences.
Accordingly, the Defendants’ application for summary judgment succeeded.
Mark Simeon Jones (instructed by Harold Stock & Company) appeared for the Claimant. Jonathan Crystal (instructed by Hill Dickinson) appeared for the Defendants.
Comment
It is relatively uncommon for one NHS consultant to sue another in defamation. Whilst the e-mail exchange was quite heated, with very firm opinions expressed on both sides, the judge took the view that both qualified privilege and fair comment had been made out. The former applies to situations in which the person who makes the communication has an interest, or a duty, to convey it to the person to whom it is made, and the recipient has a corresponding interest or duty to receive it. The latter defence involves comment on matters of public interest, even if that comment is highly opinionated or exaggerated. The judge also accepted that the Trust did not have a vicarious liability for the contents of Dr Hanna's e-mails, because whilst they were written in his capacity as a consultant at the hospital, they did not arise out of or in the course of any function for which he had been employed by the Trust, e.g. caring for patients or delivering babies.