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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Wissa v Associated Newspapers Ltd [2014] EWHC 1518 (QB) (14 May 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/1518.html Cite as: [2014] EWHC 1518 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| DR ATEF HALIM WISSA |
Claimant |
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| - and - |
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| ASSOCIATED NEWSPAPERS LIMITED |
Defendant |
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Clare Kissin (instructed by Wiggin) for the Defendant
Hearing date: 7 May 2014
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Crown Copyright ©
Mr Justice Tugendhat :
"1. The claim is for libel.
2. The Defendant is the author of a publication on its website titled, "Patient 34 died from a brain tumour the size of a tennis ball after THREE doctors mistook symptoms for depression".
3. The publication is defamatory in (a) claiming that the diagnosis of depression was wrong (b) that the General Medical Council which is the professional regulatory body found that the care given by the Claimant was below the standard of a reasonably competent general practitioner".
Parties
"1. The Claimant is a general practitioner at the Robert Frew Medical Centre in the Wickford area of Essex. He is a Black British Citizen of African Origin. The Claimant obtained his Primary medical qualification in Egypt in 1975 following which he obtained his postgraduate qualification in Obstetrics and gynaecology in the United Kingdom.
2. The Claimant has been a medical doctor for more than 35 years and has worked 30 years in the NHS at various levels and became a Partner at the Robert Frew Medical Practice in 1996.
3. The Defendant is a National Newspaper and Website publishing company in the UK. The Defendant is the publisher of the Daily Mail Newspaper and its online version called Mail Online.
Publication
4. Since on or about 05 July 2013, the Defendant has published the following words which referred to and were defamatory of the Claimant on its website at www.dailymail.co.uk/news/article-2356636/Chris-Buckley-34-died-brain-tumor-THREE-doctors-mistook-symptoms-depression.html with a caption 'Patient, 34, died from a brain tumour the size of a tennis ball after THREE doctors mistook symptoms for depression'.
5. Within the publication are statements such as '…..inadequate care was provided by the GP" and "in its report, the GMC concluded that the overall standard of care was seriously below that of a reasonably competent GP'.
6. The publication and particularly the statements were read within the jurisdiction. If necessary, the Claimant will rely on the fact that the Defendant's websites are popular in the United Kingdom and in particular within the Essex regional area and on the fact that he is aware of a number of individuals including colleagues and patients who read the statements complained of, within the jurisdiction.
References
7. The statements complained of referred to the Claimant. If necessary, the Claimant will rely upon the fact that a significant but unquantifiable number of publishees of the statement complained of within the jurisdiction knew of the Claimant as the subject of the statements.
Meaning
8. The natural and ordinary meaning of the statements complained of was that:
a) The Claimant's diagnosis of depression in the patient was wrong and has no rational clinical basis thereby causing the unnecessary death of the patient and;
b) That the General Medical Council, the professional regulatory body of the Claimant and doctors found the treatment provided by the Claimant to be inadequate and the Claimant incompetent as a general practitioner thereby fuelling the unjustified criticism faced by doctors from foreign countries or ethnic background.
Conduct
a) The said statements were untrue. The Defendant did not carry out any due diligence required of a national organisation, and knew or was reckless in not caring whether its publications were true or not.
c) The Claimant will say that the Defendant knew or ought to know that the GMC did not find the Claimant's treatment and conduct to be below that expected of a reasonable competent general medical practitioner. The Claimant will say that the only reason for publishing a false statement is to sensationalise the publication and to encourage racial baiting.
d) The Claimant will rely on the racial abuse opined by readers on the website as evidence of the Defendant causing or permitting to be caused racial abuse and suggestion that the Claimant was incompetent as a result of his foreign sounding name.
e) The Claimant will say that the Defendant would not have published the wrong statements had the subject been a white GP of whom the General Medical Council had found not culpable.
f) In the circumstances, the Claimant will say that the Defendant has treated him differently because of his race, and the Defendant is put to strict proof of.
Damage
a) By reason of the publication of the said words, the Claimant has been seriously injured in his reputation and has been brought into public scandal, odium and contempt and has suffered injury to his feelings.
b) Furthermore, the Claimant will rely on the following facts and matters in support of his claim for damages, including aggravated damages.
(a) Despite the fact that the Claimant wrote to the Defendant as part of the Pre-action protocol, the Defendant has refused to remove the article and asserted that the Claimant was cherry picking.
(b) The Defendant justified its actions and averred that the publication was fair and the Claimant was given a right to reply.
(c) The Claimant will say that he did not speak to the Defendant or its agents and he was never approached by the Defendant for comments.
Injunction
c) Unless the Defendant provides a satisfactory undertaking not to further publish the same or any similar words defamatory of the Claimant then he will seek appropriate injunctive relief at the trial of his action.
And the Claimant claims:
1. Damages, including aggravated damages for libel
2. Unreserved apology from the Claimant."
"1.1.1 The Claimant has failed to sufficiently identify the publication of which he complains, and has failed to provide the Defendant with a copy of the publication despite repeated requests. The URL set out in the Particulars of Claim directs to an article which does not concern the Claimant.
1.1.2 Although the Defendant did publish an article about the Claimant on or around 5 July 2013, to the best of the Defendant's knowledge it did not contain the specific words complained of in the Particulars of Claim.
1.1.3 Even if the specific words complained of in the Particulars of Claim had been published by the Defendant, they are not capable of bearing the natural and ordinary meanings pleaded by the Claimant.
1.1.4 In any event, the article published by the Defendant on or around 5 July 2013 was removed from the internet less that a month later, and more than five months before the Claimant's claim was issued.
1.1.5 The Particulars of Claims falsely state that the article has remained online, that a request was made in pre-action correspondence for it to be removed, and that the Defendant refused to comply with this request.
1.1.6 Parts of the Particulars of Claim appear to attempt to litigate matters which are wholly outside of the scope of a defamation action, including an assertion that the Claimant was treated differently because of his race.
1.1.7 The Claimant seeks to obtain remedies, such as an "unreserved apology" which cannot properly be granted by this court; and
1.1.8 Despite being represented, and all the above problems having been set out in correspondence to his solicitor, the Claimant has failed to take steps to address them of his own accord."
"Published: 09:47 5 July 2013 updated: 15:51 10 July 2013".
"A 34-year old man has died from a brain tumour the size of a tennis ball after doctors repeatedly treated him for depression.
Three senior doctors failed to diagnose Chris Buckley's brain tumour, which caused him to lose his speech.
All three doctors have been assessed as part of a year-long probe. Two of the doctors' assessments of Mr Buckley were found to fall 'seriously below that expected of a reasonably competent GP' and were told to reflect upon the expert's findings.
The third doctor failed to consider other causes of the speech problem, the probe found, but no further action was taken. …
Dr Oluwatoyin Ogunsanya, Dr Atef Wissa, and Dr Adegbnoyega Tayo respectively prescribed him 20mgs of anti depressant citalopram and sleeping tablets as his speech progressively worsened to the point of being 'almost mute'.
Mr Buckley Snr raised the complaint with the GMC, but is unhappy with the outcome.
He said: 'When the GMC employed an independent expert I would expect it to give weight to, rather than rely on, experts employed by the doctors being investigated. If a doctor can't examine a patient they should not be in practice or allowed to examine other patients. "…"
"A man who was wrongly diagnosed with depression died after it was discovered that he had a brain tumour the size of a tennis ball.
Chris Buckley, 34, lost his speech as a result of the tumour which was only diagnosed when he went to A&E after he lost use of his hand.
Three doctors were investigated after Chris's father Malcolm, went to the General Medical Council to report what had happened, but they will not face action after independent experts gave conflicting verdicts over the standard of Mr Buckley's care.
However, it was concluded that two doctors had fallen "seriously below that expected of a reasonably competent GP" while the third failed to consider other causes of the speech problem that had set in.
Mr Buckley went to Robert Frew Surgery in Wickford, Essex, in December 2011 because he was struggling to talk and could not remember some words.
He visited the surgery with girlfriend Kelly McCain who had to speak for him because his speech had got so bad and was prescribed with anti depressant citalopram and sleeping tablets by Dr Oluwatoyin Ogunsanya who also referred him for counselling.
His condition worsened over the New Year and he saw Dr Atef Wissa who prescribed more anti depressants.
But by the end of January Mr Buckley was barely able to speak and he was referred to a mental health unit at Basildon Hospital by Dr Adegbnoyega Tayo. …"
"During a year-long probe independent expert Dr Leonard Peter, hired by the GMC, said Dr Ogunsanya's and Dr Wissa's assessments fell 'seriously below that expected of a reasonably competent GP' and Dr Tayo failed to consider other causes of the speech problem.
The doctors could have faced fitness to practice tribunals, which, can lead to doctors being struck off, suspended or facing other action.
However, the regulator closed the complaints after advising Dr Ogunsanya and Dr Wissa to reflect on Dr Leonard's findings with no further action required for Dr Tayo.
GMC investigators said the opinions of three independent expert GPs defending the partners conflicted with Dr Leonard.
And Dr Oginsanya, who said it was his first GMC case in 33 years, stood by his actions but also said lessons had been learnt from the mistake.
He said: 'It is a big jump to say there was negligence.
'It was a very unusual presentation. When each one of us saw him there were no neurological problems, no headaches, no vomiting.
'He (Chris) did not say he could not remember words. There was no loss of limbs and that is why I used the (depression) assessment tool.
'We are not saying there were no lessons to be learned from this case.
'We need to be more alert to other causes. Unfortunately he saw three different doctors at different times.
'If a patient comes back and has not improved we need to vigorously assess why they are not getting better.
He said now if they saw another GP, that doctor would have to seek the opinion of the previous one.
The GPs were prepared to meet Malcolm Buckley to discuss the care, but refused to discuss it publicly.
A practice spokesman spoke for Dr Wissa and Dr Tayo: 'Even though Mr Buckley has spoken publicly, we are unable to discuss confidential details of patient care.
'The GMC conducted a thorough investigation and made no recommendations for action.
'We offer our sincere condolences to the family…'
"The GMC told Drs Ogunsanya and Wissa to reflect on the findings of independent expert Dr Leonard Peter while it was concluded that there was no further action needed for Dr Tayo.
Malcolm Buckley believes his son may have received better treatment sooner if he had been properly assessed and diagnosed.
He said: 'It would also have ended the confusion he had about what was happening to him. He was upset he could not speak and trusted the GPs' advice even thought he was not getting better.
'I told him to stop the citalopram in the first week, but Dr Wissa told him to go back on it without sending him for any neurological examination.'
Speaking at the conclusion of the investigation he added: 'If a doctor can't examine a patient they shouldn't be in practice or allowed to examine other patients.'
Dr Oginsanya said: 'It is a big jump to say there was negligence. It was a very unusual presentation. When each one of us saw him there were no neurological problems, no headaches, no vomiting.
'He (Chris) did not say he could not remember words. There was no loss of limbs and that is why I used the (depression) assessment tool.
'We are not saying there were no lessons to be learned from this case. We need to be more alert to other causes. Unfortunately he saw three different doctors at different times.
'If a patient comes back and has not improved we need to vigorously assess why they are not getting better.'
The hospital accepted there had been a prescribing error, but said the drug was sometimes prescribed to tumour sufferers.
A hospital spokesman said: 'Mr Buckley believes the administration of a drug to his son had a negative effect, but this medication had no ill effects.
'Sadly the reason for the deterioration in Chris' health was because his tumour had grown. This has been explained in full to Mr Buckley and the trust has been very open about his son's care.
A practice spokesman spoke for Dr Wissa and Dr Tayo: 'Even though Mr Buckley has spoken publicly we are unable to discuss confidential details of patient care.
'The GMC conducted a thorough investigation and made no recommendations for action. We offer our sincere condolences to the family.'…"
THE APPLICABLE LAW
"(1) Particulars of claim must include (a) a concise statement of the facts on which the Claimant relies ;… (e) such other matters as may be set out in a practice direction… ".
"2.1 Statements of case should be confined to the information necessary to inform the other party of the nature of the case he has to meet. Such information should be set out concisely and in a manner proportionate to the subject matter of the claim.
2.2 (1) In a claim for libel the publication the subject of the claim must be identified in the claim form.
(2) In a claim for slander the claim form must so far as possible contain the words complained of, and identify the person to whom they were spoken and when.
2.3 (1) The claimant must specify in the particulars of claim the defamatory meaning which he alleges that the words or matters complained of conveyed, … (a) as to their natural and ordinary meaning…".
"7 The relevant passage in British Data Management in the judgment of the court delivered by Hirst, LJ, reads as follows:
"Having regard to the above authorities, we do not find it possible to accept Mr.Nicol's first submission that it is invariably necessary for the plaintiff to plead or allege verbatim the exact words of which he complains, provided, as stated by Denning LJ in Collins v. Jones, he sets them out with 'reasonable certainty' which is, in our judgment, the correct test.
It is important to bear in mind the purpose of a statement of claim. It is to enable the defendant to know the case that he has to meet so that he can properly plead his case, with the result that the issues are sufficiently defined to enable the appropriate questions for decision to be resolved. In a libel case the first question is whether the words are defamatory of the plaintiff, which depends on their meaning; unless the plaintiff succeeds on this fundamental issue, his action will fail. Next, a number of questions may arise on defences which the defendant may wish to raise, for example, a plea of justification, which depends on whether the words are true or false, and similarly mutatis mutandis in the case of a plea of fair comment.
This purpose will not be achieved unless the words are pleaded with sufficient particularity to enable the defendant not only to understand what it is that the plaintiff alleges that they meant, but also to enable him to decide whether they had that meaning and, if not, what other meaning they had or could have....
This is why there must in all cases be reasonable certainty as to the words complained of, or in the case of a quia timet injunction what words are threatened, and normally this will require the pleading of the actual words or words to the same effect. Only on this basis can the case proceed properly through the interlocutory and pleading stages to trial and then to the formulation of the questions to be put to the jury and a proper answer to them."
It seems to me to be entirely clear from that passage that, when this court was referring to 'reasonable certainty', it was referring to the words used. It is the words alleged to have been used which must be set out with reasonable certainty, and they must be set out in the Particulars of Claim so that the defendant can decide how to plead his case. The reasons for this requirement are those given by Hirst, LJ in that passage, in particular the fact that in defamation actions the words used or alleged to have been used are basic to the cause of action. As was said many years ago in Harris v. Warre (1879) 4 CPD 125 by Lord Coleridge, CJ:
"In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged which is the fact on which the case depends." (page 128; emphasis in the original)
A crucial question in defamation actions is always whether the words used have a defamatory meaning, and it is therefore impermissible to plead the meaning but not to plead the words used. The words may be capable of bearing more than one meaning, and in such circumstances the claimant must plead the meaning he asserts that the words have. But the defendant may wish to contend that that is not how the words would reasonably be understood. He may also wish to try to justify any defamatory allegation, but he cannot make that decision until the claimant sets out the allegations which it is said he published. It follows that it is not enough for a claimant to plead the gist of what was allegedly said or written; he must set out the words with reasonable certainty, a test long established: see Collins v. Jones (1955) 1 QB 564, per Denning LJ at 571h – 572a.
8 Therefore it will not normally suffice for a claimant to plead that the defendant made a statement "to the effect that" the claimant was a liar or had behaved in a discreditable way. To do that, which is the form of pleading to be found in sub-paragraphs 3.1, 3.2, 3.4, 3.6, 3.7 and 3.8 of the present Particulars of Claim, is to plead the meaning of the words used, and one does not know whether that meaning derives from inference or not. Such a pleading was rejected, rightly in my view, by the court in Rosen v. Alberta Motor Association Insurance Co. (1994) 1 WWR 719."
"a plaintiff is not entitled to bring a libel action on a letter which he has never seen and of the contents of which he is unaware. He must in his pleadings set out the words with "reasonable certainty": and to do this he must have the letter before him, or at least have sufficient material from which to state the actual words in it".
"Part of the difficulty in providing this substantive response is that we have been unable to find the quote referred to in your letter of 16 December in any version of the article published. Would you please provide a hard copy of the article including it.
The article did however include the following: '… it was concluded that the two doctors had fallen 'seriously below' [the standard] expected of a reasonably competent GP'…'
Your client does not apparently dispute that he prescribed drugs to treat Mr Buckley's depression and that he did not consider Mr Buckley may have been suffering from a different condition. Nor does he dispute the GMC told him to 'reflect on the findings of independent expert Dr Leonard Peter'. The quote in the previous paragraph refers to a finding by Dr Peter, which a reasonable reader would understand referred to your client. …"
COULD THERE BE AN AMENDMENT TO CURE THE DEFECT?
"The legal framework for determining meaning and the principles which the court must apply when considering an application under CPR Part 53 para 4.1 are well settled:
i) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article (or viewing the programme) once.
ii) The hypothetical reasonable reader (viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
iii) While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over-elaborate analysis of the material in issue.
iv) The reasonable reader does not give a newspaper item the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.
v) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable reader the court is entitled (if not bound) to have regard to the impression it made on them.
vi) The court should not be too literal in its approach.
vii) The hypothetical reader is taken to be representative of those who would read the publication in question."
"(5) The article must be read as a whole, and any 'bane and antidote' taken together."
"The GMC conducted a thorough investigation and made no recommendations for action. We offer our sincere condolences to the family."
"The GMC told Drs Ogunsanya and Wissa to reflect on the findings of independent expert Dr Leonard Peter while it was concluded that there was no further action needed for Dr Tayo."
"4.1 At any time the court may decide –
(1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case;
(2) whether the statement is capable of being defamatory of the claimant;
(3) whether the statement is capable of bearing any other meaning defamatory of the claimant."
OTHER GROUNDS
CONCLUSIONS
