Neutral Citation Number: [2004] EWHC 1485 (QB)
Case No: U20040178
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
BM312260
Sitting at
The Combined Court Centre
Northgate South Side
Warwick
CV34 4RB

Thursday, 27th May 2004

Before:

HIS HONOUR JUDGE CHARLES HARRIS QC
(Sitting as a Deputy High Court Judge)
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B E T W E E N:

DR RITA PAL           
Claimant
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(1) THE GENERAL MEDICAL COUNCIL

(2) CATHERINE GREEN

(3) PETER LYNN

(4) SARAH BEDWELL
Defendants
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Transcribed from tape by Marten Walsh Cherer Limited
Official Shorthand Writers and Tape Transcribers
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MR R JAY QC appeared on behalf of the CLAIMANT
MISS J COLLIER appeared on behalf of the DEFENDANTS
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JUDGMENT

JUDGE HARRIS:

1                    This case comes before me in somewhat unsatisfactory circumstances.  In February this year, the defendants applied for summary judgment before Judge McKenna.  On that occasion, the claimant, a doctor, was acting in person.  The defendants were represented by Miss Collier, as now.  After more than a day and at the end of the defendants' application, the matter was adjourned part heard, it seems at the claimant's request for further disclosure.

2                  It was relisted for hearing before Judge McKenna on 18th May.  Between February and May the claimant at some stage obtained legal representation and Mr Jay QC now acts for her.  He considered her case in the week before the hearing on the 18th.  On his advice, she abandoned a number of her claims, as set out and explained in his skeleton.

3                  Mr Jay also considered her particulars of claim and redrafted them to some extent with a view to seeking leave to amend.  His skeleton argument helpfully sets out the case as now maintained.  The skeleton and draft amendments were sent to the claimant's solicitor, arriving, I understand, on 14th May.

4                  On 17th May, listing staff at Birmingham told both sides that the case could not proceed before Judge McKenna on the 18th: he had been double listed.  This tribunal was told that the matter was only modestly part heard and that the parties were content to start afresh before me.

5                  On commencing the hearing, I was told that the case was in fact half way through and that one party, the defendants, wished to await a further date before Judge McKenna in June and did not want to continue.  I canvassed the question of a compromise or some form of ADR since the matter seemed apt for compromise, and costs - at least the defendants' costs - were
clearly out of hand.  In February, they stood at something over ,40,000, but the schedule now before the court is seeking some ,84,000.  This, on a strike-out/summary judgment application, is a sum which must, in my judgment, be difficult to justify.
 
6                  It seemed not unlikely that there could be a settlement. The first defendant, however, was unable to take instructions from its Chief Executive, without which it was unprepared to agree anything and only indicated that some form of mediation might well be acceptable.

7                  If the matter was further adjourned, the costs of 18th May would have been wasted.  The claimant asked me to proceed with the hearing, the claimant being very anxious to know where she stood and anxious to avoid the defendants spending yet more money.

8                  I allowed the claimant to amend her particulars of claim on the basis that it was just to do so to enable a former litigant in person to get her house fully in order.  I acceded to the claimant's request to proceed to hear the defendants' application.  The defendants wanted an
adjournment to investigate the possibility of obtaining evidence about the claimant's damages claim (largely the extent to which her work prospects had been damaged), but, in the light of the fact that this was a summary judgment or strike-out hearing and such evidence would be difficult to obtain and very unlikely to be determinative, I did not grant that adjournment.

9                    Miss Collier, on the defendants behalf, has conducted what has been not an easy application with determination and thoroughness.

10                    The claimant claims against the General Medical Council ("GMC") and/or three of its non-medical employees, for whom the first defendants would be vicariously liable.  The claims fall into three categories: firstly, under the Data Protection Act 1998; secondly, under the
Human Rights Act; and thirdly, in defamation.

11                    The defendants contend that the claimant has no real prospect of success in the majority of these claims and says that there should be summary judgment on the whole claim under CPR 24.

12                    Authorities upon the test to be applied in cases of this sort were cited and referred to in detailed skeletons, but both counsel agreed that the issue was whether it could be demonstrated that the claimant had no real prospect of succeeding on the claim or issue.  There is a different, and somewhat higher, test in defamation which I will deal with
later in this judgment.

13                    The claimant is a young doctor who, in the spring of 2000, raised a number of matters of complaint with the GMC especially in connection with the treatment of the elderly.  She also drew attention to several other matters which concerned her and contends that she was herself victimised.

14                    She corresponded with the GMC and its solicitors.  The solicitors wanted to interview her.  On 12th June 2000, she wrote that she had already provided a comprehensive account which should be adequate and said:

"I am not willing to cover the ground that has already been stated.  In addition, I am not willing to be interviewed by yourself on a one-to-one basis as I quite simply do not trust either you or the GMC."

15                On 26th June, she wrote another letter as follows:

"I realise you need to interview me but this does not stop you from progressing with the complaint as you have not covered many areas so far apart from reading the dossier.  I have written everything I can remember from notes I have made.  The information you have is thus all the information I know and it is up to you to do with it what you wish...

I am not here so that you can blame the slow progress of the investigation on me.  There are many things you have not done.  Furthermore it is highly unethical to build a case solely on my statement.  I don't wish to waste my time with questions that have been covered in the dossier...

When you have done some preliminary investigations then you are welcome to interview me which will have a number of stipulations you agreed to already: 

(a) all questions are placed in writing and this agenda is adhered to;

(b) three of my chosen witnesses are present at the time of the interview;

(c) you come to Birmingham on a Sunday to arrive here at 0600 a.m. in the morning [she indicated that that was a misprint for 0900 in the morning];

(d) you can choose any Sunday in September 2000..."

There were various other stipulations made.

16                In a memo to the third defendant dated 14th July 2000, one of the defendant's staff wrote as follows:

"The accusations about victimisation will be difficult to rebut unless we can interview Dr Pal.  I believe we need to rebut these allegations and  proceed with our investigation.  We should not now stop any investigation at Dr Pal's bidding.  For that reason, I advocate a strongly worded letter to Dr Pal advising her accordingly."

Letters were sent to the claimant asking her to arrange a meeting.

17                On 29th September 2000, the claimant indicated, not for the first time, that she did not wish to correspond any further with the GMC.  The defendants acknowledged this on 10th October, saying:

"I understand from your letter that you do not wish to correspond with us further.  While I acknowledge your position, you should appreciate that, in the light of the very serious allegations you make, I must now consider how best to proceed."

18                    The complaint was closed at the end of October 2000.

19                A little over a month later, the fourth defendant wrote an internal memorandum as follows:

"Those of us who have dealt with the case in Conduct are concerned that the correspondence on file suggests that Dr Pal may have an underlying health problem.  There is of course a dilemma between the rights of someone to bring a complaint without action being taken against them and the need to protect the public if Dr Pal does have a health problem.

I have discussed this case briefly with Isobelle and Peter Lynn and they agree that we should seek your advice about whether to formally consider Dr Pal's health.  The claimant advised me that on a previous case we had taken the decision not to act on health information about a doctor who had come to us because the doctor had written to us on another issue."

20                    That was written to one Alan Howes and he replied as follows, inter alia:

"The correspondence on this file shows that Dr Pal has been hostile to the GMC and to other organisations and individuals from the outset.  We do not know why she is so suspicious of us.  She may have had bad experiences or her suspicion may be irrational.  I am not a psychiatrist and cannot tell whether she is ill or just disaffected by a system which she appears to
think is all against her."

21                On 30th November 2000, the third defendant wrote to a person within the GMC known as the "Screener" (whose identity the GMC is unwilling to reveal) in the following terms:

"There is concern that she may be suffering from mental illness but I would be grateful for your expert views on this.  Her correspondence, particularly the documents I have flagged, certainly demonstrates that Dr Pal is extremely irrational and I think there must be some concern about this doctor having direct access to patients.  However, we need to decide whether we should instigate the health procedures and I note Alan Howes's paragraphs.  I agree she would be almost certain to refuse to be medically examined which would mean that we would have to refer her to the Health Committee."

22                    The height of the irrationality apparently relied on was said by Miss Collier to be the stipulation about an interview, especially that suggesting arrival at 6 a.m., which, as I have said, Dr Pal had explained at the earlier hearing was a typing error for 9 a.m.

23                    The "Screener" wrote in the letter of 30th November from which I have just quoted that the claimant's description of events in the ward "rings uncomfortably true in regard to the care of elderly patients", that she appeared to have reacted "intemperately" to her situation and that he would make "discrete[sic] confidential enquiries".  He did make such enquiries, as a note of 13th February 2001 reveals, and found nothing.

24                    Nothing further appears to have been done between February 2001 and October of that year, when the third defendant wrote that "Conduct are taking no further action on the file".  The fourth defendant had asked "whether we wish to consider the health question again".  The
answer came back:

"For my part, and particularly given that we have received no complaint or referral about Dr Pal, I would be extremely wary of initiating health action.  There must be concern about Dr Pal but I do not think that we would be justified in taking a case forward under the health procedures."

25                On this memorandum, the Screener wrote:

"I do think that she could have a health problem.  She is certainly intemperate and possibly paranoid.  But at the present time I do not think we have sufficient evidence of ill health to proceed."

26                On 13th September 2002, the third defendant wrote a
memorandum to one Neil Marshall in the following terms, inter alia:

"The first point is that Dr Pal has made complaints before which went nowhere and we did consider taking health action against her.  If my memory serves me correctly, we consulted [the person that would have been the Screener] but decided that there wasn't sufficient evidence to invoke the health procedures."

27                At no stage has any patient or other doctor made a complaint about Dr Pal's fitness to practice.  The defendants have confirmed in an e-mail of 30th April 2004 that "in respect of the material reviewed by the Screener, there can be no question that you are mentally ill".

28                    The claimant makes two allegations in connection with the Data Protection Act: firstly, under what is pleaded as claim 1(a) to (c) and (d), that the second defendant wrongly revealed confidential information about her to Dr Rose, a Medical Director of North Cheshire NHS Trust; and secondly, that personal data about her were kept longer than was justified
by the Data Protection Act.

29                    The defendants say that there is no real prospect of establishing either of these matters.  As to the first, because damage could not be established since the matters are already in the public domain as a result of a newspaper article, I do not accept that submission.  The scope
of the article and the information are simply not the same.  As to claim 1(d), it is admitted that this is a matter requiring evidence at trial.

30                    The second DPA claim is sought to be defeated in the following way.  Principle 5 of the Data Protection Act provides: 

"Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes."

The GMC had a policy document in 1997 with a six-month retention time limit.  This says:

"Policy on retention of papers.  No action cases.  Where the doctor is not informed of the complaint dispose of all papers six months from the date of closure of the case."

It is agreed that, since there never was any complaint about Dr Pal, she was therefore not informed of one and this provision is therefore prima facie applicable.  There is no dispute that the papers have not been disposed of and that it is far more than six months since the closure of the case.

31                    However, Miss Collier argues that the papers must not be disposed of because the GMC is reconsidering its policy and has indeed been doing so for some four years.  There is a draft new policy document, which also contains a six-month retention period.  It is argued that since such an important body as the GMC is still considering its retention policy, it cannot be right to order it to dispose of documents until it has made its mind up.

32                    This strikes me as a very curious and ambitious submission.  Its policy must be in accordance with the law and the law is that contained in the Data Protection Act.  It is not open to the GMC to arrive at a policy which runs contrary to the requirements of the Act: either it is acting in compliance with the legislation or it is not.  The fact that it may be spending several years deciding when, whether and how to comply cannot excuse or justify non-compliance.  Far from the claimant's case having no real prospect of success in this aspect, it seems that her
prospects of success might be quite promising.

33                    The defendants have a second argument, that the purpose of the material obtained and retained was, besides consideration of the claimant's mental health, a wider concern for the safety of the public. Though why the public should be affected when there is no, or no significant, evidence of there being anything wrong with the claimant's mental health, and it is accepted that she is mentally healthy, is not clear.

34                I have no hesitation in holding that the Data Protection Act claim should not be dealt with summarily but should go for trial for the reasons given.  It can also be observed that this is an important and developing area of the law and which, according to both counsel, there is at
present no authority.

35	         The Human Rights Act Claims                   
The defendants were enquiring about the claimant's mental state.  There is, it is conceded, a prima facie breach of Article 8.1.  However, it is urged on the defendants' behalf that the defendants were clearly "acting in accordance with the law under Article 8.2 and only in so
far as was necessary for the protection of health".

36                    The law in question which is relied on are the GMC Rules of 1987.  Rule 6.1 reads:

"Where information in writing or a complaint in writing is received by the Registrar about any practitioner which raises a question whether the fitness to practice of the practitioner is seriously impaired by reason of his physical or mental condition, the Registrar shall submit the information to the President.

6.2.  Unless the information or complaint has been received from a person acting in a public capacity, the matter shall not proceed further unless and until there has been furnished...one or more statutory declarations or other affidavits in support.

6.3.  On receipt of the information or complaint, the President may cause such enquiries to be made in relation to the matter as he may think fit."

These provisions, say the defendants, so clearly justify what the defendants were doing in inquiring about the claimant as to make it clear that she can have no reasonable prospect of establishing a breach of Article 8.  The onus is of course on the defendants to justify the admitted breach of Article 8.1.

37                    Here there was no complaint in writing at all.  The claimant never has been complained about, and so what is relied on is simply the tone and phraseology of the claimant's own letters as constituting "information".  It seems distinctly arguable that she was, when writing, acting in a private, not a public, capacity, and there has been no statutory declaration or affidavit.  The Registrar himself never appears to have been involved but the third defendant was his deputy.  Nor was the President involved, though it is suggested that his deputy might be the anonymous "Screener".

38                    Many questions arise.  Can the letters from the claimant, of which that of 29th June is said to be the high-water mark, be said to be "information in writing" raising a question about whether the claimant's fitness to practice is seriously impaired by reason of her mental
condition?  It certainly does not raise the question explicitly.

39                On one analysis, the response of some of the GMC officials can almost be said to amount to this: that because the claimant is complaining in strong and perhaps not wholly temperate terms about the GMC and placing stipulations upon any interview she might grant, this means that her mental condition must be in question.  Indeed, the memorandum of 30th
November 2000 reads: "Her correspondence...certainly demonstrates that Pal is extremely irrational."

40                It is of course possible that a letter might be couched in such outrageous or bizarre terms as to be clear evidence of mental impairment, but Dr Pal's letters are a long way from that in my judgment.

41                    The President is the person authorised by 6.3 to cause enquiries to be made, not the Registrar, whose function is simply to submit "the information in writing [viz the letters] to the President".  There is nothing to authorise the Registrar to make enquiries.  Miss Collier argues that he must be entitled to make enquiries in order to see whether the information in writing does indeed raise a question about medical condition impairing fitness to practice.  It is at least strongly arguable that the information must be such as clearly to raise the question by its terms and not such as to require investigation by other people to see if an adverse conclusion about the author might possibly be reached.  The defendants' contention requires reading in an implication to the rules which, sensibly, limit the right to cause enquiries to be made to the President.

42                    The claimant's case, as Mr Jay made clear, is that the GMC officials were so annoyed about her complaints and correspondence that they decided to see if they could not call in question her medical health. If pique or antagonism was indeed their motive - putatively unlikely, but it is not wholly fanciful to see this in some of the language used - then of
course there could be no question of the defendants establishing the Article 8.2 justification.

43                    There are, in my judgment, clearly triable issues here about what it was proper to do under the rules and why what was done was done.  Cross-examination might be very revealing.

44                    Defamation

                   The two passages in memoranda written by the third defendant are alleged to be defamatory.  They are set out in the particulars of claim.  The first passage is as follows:

"Her correspondence, particularly the documents I have flagged, certainly demonstrate that Dr Pal is extremely irrational and I think that there must be some concern about this doctor having direct access to patients."

The amended particulars of claim continue:

"Mr Lynn's words in their natural and ordinary meaning meant and were understood to mean that the complainant was [which is not any longer to be contended] or alternatively might be suffering from a mental illness.  His position as an employee of the medical profession's governing body adds weight and credibility to these words yet he is unqualified to make such an assertion.  Given the overwhelming stigma associated, however unjustly, with mental illness, there can be no doubt that Mr Lynn's comments would cause the claimant to be shunned to be right-thinking members of the community and as such are defamatory under section 2 of the Defamation Act.

In relation to the claimant's alternative case, it is submitted that Mr Lynn's words carried with them his belief that the claimant could be mentally ill but there was no reasonable basis for the same."

45                    The second passage alleged to be defamatory is in the memorandum dated 13th September where Mr Lynn said of the claimant:

"The first point is that Dr Pal has made complaints before which went nowhere and we did consider taking health action against her.  If my memory serves me correctly, we consulted [name deleted] but decided that there wasn't sufficient evidence to invoke the health procedures."

The pleading continues:

"Mr Lynn's words in their natural and ordinary meaning meant and were  understood to mean either (a) that he believed that the claimant was mentally ill but, having investigated the matter, could not prove it; or (b) that he believed that the claimant might be mentally ill but, having
investigated the matter, there was some evidence to support that proposition but his belief, which remained unaltered, could not be proven to the requisite standard."

46                In relation to the second passage, the defendants do not in fact now contend that the claimant's claim can be dealt with summarily.

47                In relation to the first, it has to be kept in mind that the applicant for summary judgment has to be able to show that there is no issue fit for a jury (see Alexander v Arts The Council of Wales [2001] 1 WLR 1840, paragraphs 37-39), or, to put it another way, it needs to be shown that a jury would be perverse in finding for the claimant.  "It is a high threshold of exclusion...The judge's function is no more and no less than to pre-empt perversity", per Simon Brown LJ in Jamil v The Wall Street Journal [2003] EWCA Civ 1694, paragraph 9.

48                    The natural and ordinary meaning of the words for an ordinary reasonable reader not giving the words prolonged study is what has to be considered.  The defendants assert that the words complained of are not capable of bearing the meaning alleged by the claimant that she was or might have been suffering from mental illness.

49                I do not regard it as beyond question that a jury would not or could not conclude that the words could be understood to mean that the claimant might be suffering from mental illness and could do so without perversity.  If she was so extremely irrational as to give rise to concern
about direct access to patients, many ordinary people might well conclude that she had some form of mental illness.  I do not regard these defamation claims as ones which should be the subject of summary judgment in the defendants' favour.

50                    Accordingly, the defendants' applications for summary judgment fail.