Noordeen v Hill & Anor

A Norwich Pharmacal order requires an arguable wrong, a need for disclosure to enable proceedings, and involvement by a person able to provide information identifying the wrongdoer. The remedy remains discretionary. Relevant considerations include the strength of the proposed claim, the seriousness and extent of the alleged harm, alternative means of identification, and the public interest in preserving confidential reporting to responsible bodies.

Where communications are made to an appropriate person on a privileged occasion, disclosure should not ordinarily be ordered merely to enable a defamation claim based on malice. Very compelling evidence of malice is required. The chilling effect on confidential reports about medical practice is a material discretionary consideration.

The claimant, a consultant spinal surgeon, sought a Norwich Pharmacal order against the chair of a Research Ethics Committee. He wished to identify clinicians who had confidentially raised concerns about his use of magnetic growth rods and to bring defamation proceedings.

The concerns were passed to the National Research Ethics Service, which informed the claimant’s hospital that an allegedly unapproved study might be progressing and might be producing poor clinical outcomes. The hospital’s investigation found that the study had not proceeded and that there was no evidence of poor outcomes.

The central issues were whether there was an arguable case of defamation against the unidentified clinicians and whether disclosure should be ordered in the court’s discretion.

1. Application dismissed. The claimant had already received a sufficient account of what was said to the committee chair. There was no useful further disclosure to order concerning the substance of the conversations.
2. The three conditions for Norwich Pharmacal relief, identified in Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511, were accepted: an arguable wrong by an ultimate wrongdoer; a need for disclosure to enable proceedings; and involvement by the respondent, who must be able or likely to be able to provide the necessary information.
3. There was no reasonable basis for a defamation claim based on an allegation that the claimant was conducting an unapproved study. The clinicians had merely reported that he was using magnetic rods. The inference that he was proceeding with the refused study was the committee chair’s own mistaken conclusion.
4. Even assuming that comments about additional x-rays or poor clinical outcomes were defamatory, they would be made on an occasion of qualified privilege. Applying the principle in Adam v Ward [1917] A.C. 309, the clinicians and the committee chair had corresponding interests and duties in raising and receiving concerns about medical practice. Under Horrocks v Lowe [1975] A.C. 135, the claimant bore the burden of showing malice, and the evidence did not arguably establish that the clinicians disbelieved what they said or were indifferent to its truth.
5. Independently, the court would refuse relief in its discretion. The proposed claim was weak, the alleged harm was limited and privately communicated, and the evidence of malice was non-existent. Confidential reporting to responsible medical and ethics bodies serves an important public interest. Consistently with the reasoning in Financial Times Ltd v UK [2010] EMLR 21, disclosure could have a chilling effect on confidential sources. The checklist in Totalise Plc v The Motley Fool Ltd [2001] EMLR 29 was helpful, and White v Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB) supported treating the stress and expense of resisting a plea of malice as relevant.