IN THE HIGH COURT OF JUSTICE Case Nos: U20040178QUEEN'S BENCH DIVISION BM312260BIRMINGHAM DISTRICT REGISTRY [2004] EWHC 1485 (QB)

Sitting atThe Combined Court Centre

Northgate South SideWarwick

CV34 4RB

Thursday, 27th May 2004

Before:

HIS HONOUR JUDGE CHARLES HARRIS QC(Sitting as a Deputy High Court Judge)

B E T W E E N:

DR RITA PAL Claimant

- and -

(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 LimitedOfficial 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(As approved by Judge)

JUDGE HARRIS:

This case comes before me in somewhat unsatisfactorycircumstances. In February this year, the defendants applied forsummary judgment before Judge McKenna. On that occasion, theclaimant, a doctor, was acting in person. The defendants wererepresented by Miss Collier, as now. After more than a day and atthe end of the defendants' application, the matter was adjourned partheard, it seems at the claimant's request for further disclosure.

It was relisted for hearing before Judge McKenna on 18thMay. Between February and May the claimant at some stage obtainedlegal representation and Mr Jay QC now acts for her. He consideredher 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 inhis skeleton.

Mr Jay also considered her particulars of claim andredrafted 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'ssolicitor, arriving, I understand, on 14th May.

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

On commencing the hearing, I was told that the case was infact half way through and that one party, the defendants, wished toawait a further date before Judge McKenna in June and did not wantto continue. I canvassed the question of a compromise or some formof ADR since the matter seemed apt for compromise, and costs - atleast the defendants' costs - were clearly out of hand. In February,they stood at something over ,40,000, but the schedule now beforethe court is seeking some ,84,000. This, on a strike-out/summaryjudgment application, is a sum which must, in my judgment, bedifficult to justify.

It seemed not unlikely that there could be a settlement.The first defendant, however, was unable to take instructions fromits Chief Executive, without which it was unprepared to agreeanything and only indicated that some form of mediation might wellbe acceptable.

If the matter was further adjourned, the costs of 18th Maywould have been wasted. The claimant asked me to proceed with thehearing, the claimant being very anxious to know where she stood and

anxious to avoid the defendants spending yet more money.

I allowed the claimant to amend her particulars of claimon the basis that it was just to do so to enable a former litigantin person to get her house fully in order. I acceded to the claimant'srequest to proceed to hear the defendants' application. Thedefendants wanted an adjournment to investigate the possibility ofobtaining evidence about the claimant's damages claim (largely theextent to which her work prospects had been damaged), but, in thelight of the fact that this was a summary judgment or strike-outhearing and such evidence would be difficult to obtain and veryunlikely to be determinative, I did not grant that adjournment.

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

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

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

Authorities upon the test to be applied in cases of thissort were cited and referred to in detailed skeletons, but bothcounsel agreed that the issue was whether it could be demonstratedthat the claimant had no real prospect of succeeding on the claimor issue. There is a different, and somewhat higher, test indefamation which I will deal with later in this judgment.

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

She corresponded with the GMC and its solicitors. Thesolicitors wanted to interview her. On 12th June 2000, she wrotethat she had already provided a comprehensive account which shouldbe 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 yourselfon a one-to-one basis as I quite simply do not trust eitheryou or the GMC."

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

"I realise you need to interview me but this does not stop you fromprogressing with the complaint as you have not covered manyareas so far apart from reading the dossier. I have writteneverything I can remember from notes I have made. Theinformation you have is thus all the information I know andit is up to you to do with it what you wish...

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

When you have done some preliminary investigations then you arewelcome to interview me which will have a number ofstipulations you agreed to already:

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

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

(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 for0900 in the morning];

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

There were various other stipulations made.

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

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

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

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

"I understand from your letter that you do not wish to correspondwith us further. While I acknowledge your position, you

should appreciate that, in the light of the very seriousallegations you make, I must now consider how best toproceed."

The complaint was closed at the end of October 2000.

A little over a month later, the fourth defendant wrote aninternal memorandum as follows:

"Those of us who have dealt with the case in Conduct are concernedthat the correspondence on file suggests that Dr Pal mayhave an underlying health problem. There is of course adilemma between the rights of someone to bring a complaintwithout action being taken against them and the need toprotect the public if Dr Pal does have a health problem.

I have discussed this case briefly with Isobelle and Peter Lynn andthey agree that we should seek your advice about whetherto formally consider Dr Pal's health. The claimant advisedme that on a previous case we had taken the decision notto act on health information about a doctor who had cometo us because the doctor had written to us on another issue."

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 hostileto the GMC and to other organisations and individuals fromthe outset. We do not know why she is so suspicious of us.She may have had bad experiences or her suspicion may beirrational. I am not a psychiatrist and cannot tell whethershe is ill or just disaffected by a system which she appearsto think is all against her."

On 30th November 2000, the third defendant wrote to a personwithin the GMC known as the "Screener" (whose identity the GMC isunwilling to reveal) in the following terms:

"There is concern that she may be suffering from mental illness butI would be grateful for your expert views on this. Hercorrespondence, particularly the documents I have flagged,certainly demonstrates that Dr Pal is extremely irrationaland I think there must be some concern about this doctorhaving direct access to patients. However, we need todecide whether we should instigate the health proceduresand I note Alan Howes's paragraphs. I agree she would bealmost certain to refuse to be medically examined whichwould mean that we would have to refer her to the HealthCommittee."

The height of the irrationality apparently relied on wassaid 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 for9 a.m.

The "Screener" wrote in the letter of 30th November fromwhich I have just quoted that the claimant's description of eventsin the ward "rings uncomfortably true in regard to the care of elderlypatients", that she appeared to have reacted "intemperately" to hersituation and that he would make "discrete[sic] confidentialenquiries". He did make such enquiries, as a note of 13th February2001 reveals, and found nothing.

Nothing further appears to have been done between February2001 and October of that year, when the third defendant wrote that"Conduct are taking no further action on the file". The fourthdefendant had asked "whether we wish to consider the health questionagain". The answer came back:

"For my part, and particularly given that we have received nocomplaint or referral about Dr Pal, I would be extremelywary of initiating health action. There must be concernabout Dr Pal but I do not think that we would be justifiedin taking a case forward under the health procedures."

On this memorandum, the Screener wrote:

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

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

"The first point is that Dr Pal has made complaints before which wentnowhere and we did consider taking health action againsther. If my memory serves me correctly, we consulted [theperson that would have been the Screener] but decided thatthere wasn't sufficient evidence to invoke the healthprocedures."

At no stage has any patient or other doctor made a complaintabout Dr Pal's fitness to practice. The defendants have confirmedin an e-mail of 30th April 2004 that "in respect of the materialreviewed by the Screener, there can be no question that you arementally ill".

The claimant makes two allegations in connection with theData Protection Act: firstly, under what is pleaded as claim 1(a)

to (c) and (d), that the second defendant wrongly revealedconfidential information about her to Dr Rose, a Medical Directorof North Cheshire NHS Trust; and secondly, that personal data abouther were kept longer than was justified by the Data Protection Act.

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

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

"Personal data processed for any purpose or purposes shall not bekept for longer than is necessary for that purpose or thosepurposes."

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

"Policy on retention of papers. No action cases. Where the doctoris not informed of the complaint dispose of all papers sixmonths 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 thereforeprima facie applicable. There is no dispute that the papers havenot been disposed of and that it is far more than six months sincethe closure of the case.

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

This strikes me as a very curious and ambitious submission.Its policy must be in accordance with the law and the law is thatcontained in the Data Protection Act. It is not open to the GMC toarrive at a policy which runs contrary to the requirements of theAct: either it is acting in compliance with the legislation or itis 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 inthis aspect, it seems that her prospects of success might be quitepromising.

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

I have no hesitation in holding that the Data ProtectionAct claim should not be dealt with summarily but should go for trialfor the reasons given. It can also be observed that this is animportant and developing area of the law and which, according to bothcounsel, there is at present no authority.

The Human Rights Act Claims

The defendants were enquiring about the claimant's mentalstate. There is, it is conceded, a prima facie breach of Article8.1. However, it is urged on the defendants' behalf that thedefendants were clearly "acting in accordance with the law underArticle 8.2 and only in so far as was necessary for the protectionof health".

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

"Where information in writing or a complaint in writing is receivedby the Registrar about any practitioner which raises aquestion whether the fitness to practice of thepractitioner is seriously impaired by reason of hisphysical or mental condition, the Registrar shall submitthe information to the President.

6.2. Unless the information or complaint has been received from aperson acting in a public capacity, the matter shall notproceed further unless and until there has beenfurnished...one or more statutory declarations or otheraffidavits in support.

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

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

Here there was no complaint in writing at all. The claimant

never has been complained about, and so what is relied on is simplythe tone and phraseology of the claimant's own letters asconstituting "information". It seems distinctly arguable that shewas, when writing, acting in a private, not a public, capacity, andthere has been no statutory declaration or affidavit. The Registrarhimself never appears to have been involved but the third defendantwas his deputy. Nor was the President involved, though it issuggested that his deputy might be the anonymous "Screener".

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

On one analysis, the response of some of the GMC officialscan almost be said to amount to this: that because the claimant iscomplaining in strong and perhaps not wholly temperate terms aboutthe 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: "Hercorrespondence...certainly demonstrates that Pal is extremelyirrational."

It is of course possible that a letter might be couched insuch outrageous or bizarre terms as to be clear evidence of mentalimpairment, but Dr Pal's letters are a long way from that in myjudgment.

The President is the person authorised by 6.3 to causeenquiries to be made, not the Registrar, whose function is simplyto submit "the information in writing [viz the letters] to thePresident". There is nothing to authorise the Registrar to makeenquiries. Miss Collier argues that he must be entitled to makeenquiries in order to see whether the information in writing doesindeed raise a question about medical condition impairing fitnessto practice. It is at least strongly arguable that the informationmust be such as clearly to raise the question by its terms and notsuch as to require investigation by other people to see if an adverseconclusion about the author might possibly be reached. Thedefendants' contention requires reading in an implication to therules which, sensibly, limit the right to cause enquiries to be madeto the President.

The claimant's case, as Mr Jay made clear, is that the GMCofficials were so annoyed about her complaints and correspondencethat they decided to see if they could not call in question hermedical health. If pique or antagonism was indeed their motive -putatively unlikely, but it is not wholly fanciful to see this insome of the language used - then of course there could be no question

of the defendants establishing the Article 8.2 justification.

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

Defamation

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

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

The amended particulars of claim continue:

"Mr Lynn's words in their natural and ordinary meaning meant and wereunderstood to mean that the complainant was [which is notany longer to be contended] or alternatively might besuffering from a mental illness. His position as anemployee of the medical profession's governing body addsweight and credibility to these words yet he is unqualifiedto make such an assertion. Given the overwhelming stigmaassociated, however unjustly, with mental illness, therecan be no doubt that Mr Lynn's comments would cause theclaimant to be shunned to be right-thinking members of thecommunity and as such are defamatory under section 2 of theDefamation Act.

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

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

"The first point is that Dr Pal has made complaints before which wentnowhere and we did consider taking health action againsther. If my memory serves me correctly, we consulted [namedeleted] but decided that there wasn't sufficient evidenceto invoke the health procedures."

The pleading continues:

"Mr Lynn's words in their natural and ordinary meaning meant and wereunderstood to mean either (a) that he believed that theclaimant was mentally ill but, having investigated the

matter, could not prove it; or (b) that he believed thatthe claimant might be mentally ill but, having investigatedthe matter, there was some evidence to support thatproposition but his belief, which remained unaltered, couldnot be proven to the requisite standard."

In relation to the second passage, the defendants do notin fact now contend that the claimant's claim can be dealt withsummarily.

In relation to the first, it has to be kept in mind thatthe applicant for summary judgment has to be able to show that thereis 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, itneeds to be shown that a jury would be perverse in finding for theclaimant. "It is a high threshold of exclusion...The judge'sfunction is no more and no less than to pre-empt perversity", perSimon Brown LJ in Jamil v The Wall Street Journal [2003] EWCA Civ1694, paragraph 9.

The natural and ordinary meaning of the words for anordinary reasonable reader not giving the words prolonged study iswhat has to be considered. The defendants assert that the wordscomplained of are not capable of bearing the meaning alleged by theclaimant that she was or might have been suffering from mentalillness.

I do not regard it as beyond question that a jury would notor could not conclude that the words could be understood to mean thatthe claimant might be suffering from mental illness and could do sowithout perversity. If she was so extremely irrational as to giverise to concern about direct access to patients, many ordinary peoplemight well conclude that she had some form of mental illness. I donot regard these defamation claims as ones which should be thesubject of summary judgment in the defendants' favour.

Accordingly, the defendants' applications for summaryjudgment fail.

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