De Taranto v Cornelius

Consent to a therapeutic referral does not, without more, authorise a consultant to send a medico-legal report to third parties. Where the report was prepared primarily for a civil claim, was not yet available to the client, and contained material irrelevant to treatment or potentially defamatory, the client’s express consent was required before transmission. The Court of Appeal therefore upheld liability for breach of confidence, although it disagreed with the trial judge’s finding that the client had not consented to referral. An appellate court may adjust a discretionary costs order where the claimant has lost substantially on a major part of the claim. The court substituted no order as to the costs below and made no order for the appeal’s costs.

De Taranto v Cornelius concerned a consultation between Pamela Cornelius and Dr Nicola de Taranto, a forensic psychiatrist instructed through solicitors in connection with a possible employment or personal injury claim. Dr de Taranto prepared a medico-legal report and sent it to Mrs Cornelius’s general practitioner and a consultant psychiatrist. She maintained that Mrs Cornelius had consented to referral and to the disclosure of relevant material.

Morland J rejected the evidence that Mrs Cornelius had consented to referral or to transmission of the report. He found breach of confidence, dismissed the defamation claim, awarded damages of £3,750, and ordered £45,000 in costs. The appeal challenged the findings on consent and the costs order. The central issues were whether consent to referral had been given and whether it extended to dissemination of the report.

Disposition. The appeal was unanimous. The appeal on liability was dismissed. The appeal on costs was allowed, with no order as to the costs below and no order for the costs of the appeal.

1. Consent to referral. Mantell LJ found it difficult to follow the route by which Morland J had rejected Dr de Taranto’s evidence that Mrs Cornelius agreed to referral. The trial judge had generally formed a favourable view of Dr de Taranto and an unfavourable view of Mrs Cornelius and her husband. The absence of an express reference to consent in contemporaneous documents did not, once the other evidence was assessed, justify the finding that consent to referral had not been given. Latham LJ and Simon Brown LJ agreed.
2. Disclosure of the report. The question whether Mrs Cornelius consented to transmission of the medico-legal report did not depend on the disputed credibility issue. Even assuming that she had consented to referral, that consent did not authorise disclosure of the report. The report had been prepared primarily to assist a civil claim, contained material with no conceivable bearing on treatment, and included statements acknowledged to be defamatory. It had not existed when the consultation took place and had not been shown to Mrs Cornelius for comment. Its transmission to a general practitioner or consultant psychiatrist therefore required the client’s express consent. In the unusual circumstances, specific written consent would have been prudent. Sending the report to Mrs Cornelius’s solicitor at the same time created no professional objection to her being given sight of it.
3. Costs. Although the trial costs order involved a discretionary exercise, the claimant had lost substantially on a major part of the claim. Without interfering with the judge’s discretion, an adjustment was appropriate. The fixed costs order was replaced by an order that there be no order as to the costs below.

Latham LJ and Simon Brown LJ expressly agreed with Mantell LJ’s reasoning and disposition.

• Court of Appeal (Civil Division): The appeal on liability was dismissed. The costs appeal was allowed, substituting no order as to costs below. There was no order for costs on the appeal. [2001] EWCA Civ 1511.
• High Court, Morland J: Breach of confidence was established and damages of £3,750 were awarded. The defamation claim failed. The claimant was awarded fixed costs of £45,000.