White v Southampton University Hospitals NHS Trust & Anor

A communication initiating an investigation by a professional disciplinary body recognised by law attracts absolute privilege where it is germane to that body’s legitimate functions. The immunity is not defeated by allegations of malice. The distinction in Darker v Chief Constable of the West Midlands Police between protected evidence and unprotected fabrication does not remove immunity from a complaint to the General Medical Council.

Use of a document obtained by compulsory disclosure remains governed by CPR 31.22, even if the document was mentioned in open court or might have been obtained by another route. The court must balance the competing Convention rights, taking account of privacy, the public interest in full disclosure and the absence of a viable claim. An appellate court should not interfere with a discretionary order falling within the reasonable range.

Dr Katharine White brought libel proceedings against Southampton University Hospitals NHS Trust and Professor William Roche concerning a letter sent to the General Medical Council and a reference sent to a medical director.

A Master struck out the claim, entered summary judgment on the GMC letter and prohibited use of the reference under CPR 31.22(2). Permission to appeal was granted on renewal. The appeal concerned whether the GMC letter was protected by absolute privilege and whether the Master had erred in refusing permission to use the reference and amend the particulars of claim.

1. Appeal dismissed. The appeal was by way of review under CPR 52.11. The court could interfere only if the Master’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. The GMC letter was protected by absolute privilege. Absolute privilege attaches to statements made before, and to communications initiating proceedings before, a tribunal recognised by law where the communication is germane to the tribunal’s legitimate purposes. The GMC’s Fitness to Practise Panel and Directorate operated within a statutory and quasi-judicial framework. The common-law immunity therefore did not require an express provision in the relevant legislation.
3. The policy underlying the immunity was to enable complaints about professional conduct to be made freely and without the inhibiting prospect of litigation. The possibility that the rule may protect a malicious or untruthful informant did not justify substituting qualified privilege. Darker v Chief Constable of the West Midlands Police concerned conduct outside the protected evidential process, such as fabrication, and did not apply to this libel claim.
4. The Lymington reference had been obtained through disclosure in employment tribunal proceedings. CPR 31.22 applied notwithstanding the alleged possibility of obtaining it by another route and notwithstanding its assumed mention at a public hearing. The discretion under CPR 31.22(2) had to be exercised against the background of Articles 6, 8 and 10 of the Convention, by an intense and fact-sensitive balancing exercise.
5. The reference was limited and plainly subject to qualified privilege. There was no evidence capable of raising a probability of malice, nor any realistic prospect of vindication. The Defendants’ Article 10 rights and the policy supporting compulsory disclosure outweighed the asserted rights under Articles 6 and 8. The Master’s decision fell within the generous ambit of reasonable disagreement. The particulars of claim were struck out, summary judgment remained in force and permission to amend was refused.

1. High Court (Queen’s Bench Division): appeal from the Master’s order dated 12 November 2010 dismissed; the GMC claim remained struck out, summary judgment was upheld and permission to amend to rely on the Lymington reference was refused.