Pena v Tameside Hospital NHS Foundation Trust & Anor

Vicarious liability depends on a close connection between the employee’s wrongful act and the functions entrusted to him. A doctor’s participation in an internal dispute about hospital management and a colleague’s representative conduct was not sufficiently connected with his clinical or administrative employment for the hospital to be liable.

Communications arising from a debate among colleagues sharing a common and corresponding interest may attract qualified privilege. Criticism of a person’s motives will often be comment, particularly where the writer can only infer the state of mind in question. Malice requires properly particularised facts capable of supporting an inference of dishonest or improper motive; strong criticism, rivalry, or bare assertion is insufficient.

The claimant, a consultant orthopaedic surgeon and chairman of the hospital’s Senior Medical Staff Committee, sued the hospital trust and a fellow consultant over two emails circulated during a dispute about confidence in the Trust Board and the claimant’s conduct as committee chairman.

The defendants applied for summary judgment or strike-out. The Trust disputed vicarious liability. Dr Hanna relied on qualified privilege and fair or honest comment, and contended that the pleaded case of malice could not realistically defeat those defences. The court also considered, but did not need separately to determine, an abuse-of-process argument.

1. Summary judgment. The defendants’ application succeeded and an order for summary judgment was made. The claimant’s application to strike out parts of the defence therefore required no separate determination.
2. Vicarious liability. Applying the close-connection approach in Lister v Hesley Hall Ltd [2001] UKHL 22, the emails were not part of, or incidental to, Dr Hanna’s clinical or administrative functions. Their subject matter concerned hospital management and the claimant’s representative role, but Dr Hanna was expressing personal views and feelings. The Trust was accordingly entitled to summary judgment.
3. Qualified privilege. The email exchanges followed the claimant’s own invitation to colleagues to debate the Trust Board and a proposed vote of no confidence. The participants had a common and corresponding interest. The occasion was therefore a classic case of qualified privilege. Under Horrocks v Lowe [1975] AC 135, allegedly irrelevant defamatory matter does not automatically defeat privilege; the question is whether the circumstances support an inference of disbelief or improper motive. The remarks were connected with the debate and did not meet that threshold.
4. Comment and malice. In context, reasonable readers would understand the allegations about the claimant’s motives as inferences and comment rather than objectively verifiable facts. The defence of fair or honest comment was therefore available. Motivation alone could not defeat that defence; the claimant had to show that Dr Hanna did not genuinely hold the belief expressed.
5. A plea of malice is effectively an allegation of dishonesty. It must identify facts or matters which raise a probability, rather than a mere possibility, of malice. The claimant’s reliance on electoral rivalry, a pattern of criticism, the words complained of, and assertions of spite or lack of belief was inadequate. The additional abuse-of-process argument, based on Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, did not need to be decided.