Pal v General Medical Council

Summary judgment is appropriate only where the claimant has no real prospect of success. In defamation, the threshold is higher: the applicant must show that there is no issue fit for a jury, or that a jury would act perversely in finding for the claimant.

A data controller cannot justify retaining personal data contrary to the Data Protection Act 1998 merely because it is reviewing its retention policy. Where an admitted interference with private life is challenged under Article 8, the defendant must establish a lawful and necessary justification. Whether the relevant statutory or regulatory conditions were met, and whether the interference was properly motivated, may require a trial.

The claimant, a doctor, brought claims against the General Medical Council and three employees under the Data Protection Act 1998, the Human Rights Act 1998 and in defamation. The claims concerned the disclosure and retention of information, enquiries into her mental health, and memoranda describing her as irrational and raising concern about her access to patients.

The defendants applied for summary judgment under CPR 24. The claimant amended her particulars of claim, abandoned some claims and proceeded with the remaining issues. The central question was whether any of the surviving claims had no real prospect of success, applying the ordinary summary judgment test and the higher threshold applicable to defamation.

1. Application dismissed. The defendants failed to establish that the claimant’s surviving claims had no real prospect of success.
2. Under CPR 24, the question was whether the claimant could demonstrate a real prospect of succeeding on the claim or issue. The court declined to adjourn to obtain further evidence about damages because such evidence was unlikely to determine a summary judgment or strike-out application.
3. The data protection claims should proceed to trial. The alleged disclosure was not defeated merely because some information had appeared in a newspaper, since the scope and content of the information were not necessarily the same. The retention claim also required evidence.
4. Principle 5 of the Data Protection Act 1998 required personal data to be kept no longer than necessary. The GMC’s continuing review of its retention policy could not excuse non-compliance with the statutory requirement. The claim therefore had a promising, rather than merely speculative, prospect of success.
5. There were triable Article 8 issues. Although a prima facie breach of Article 8.1 was conceded, the defendants had to justify the interference under Article 8.2. The absence of a written complaint, the possible application of the procedural safeguards in Rule 6 of the GMC Rules of 1987, and questions about who was authorised to initiate enquiries all required determination. The claimant’s motive allegation was also not fanciful and could properly be tested by cross-examination.
6. In defamation, the words complained of were capable of bearing the pleaded meaning that the claimant might suffer from mental illness. A jury could reach that conclusion without perversity. Applying [2001] 1 WLR 1840 and [2003] EWCA Civ 1694, the high threshold for summary judgment was not met.

First-instance decision. No prior appellate decision is stated in the judgment.