Jackson v Hampshire Hospitals NHS Foundation Trust

Defamation claims based on a highly limited publication may be struck out as an abuse of process where the proceedings are not a real and substantial tort and cannot achieve any useful vindication. A defendant is not liable for onward publication where the original speaker neither authorised nor reasonably foresaw it. Allegations of misconduct, fraud, dishonesty or bad faith require proper particulars and should not be pleaded as mere assertions. Under the Data Protection Act 1998, an inaccuracy in personal data is not necessarily a breach where the data accurately record information obtained from the data subject or a third party, reasonable steps have been taken to ensure accuracy, and the disagreement is recorded.

The claimant brought multiple claims against a hospital trust arising from a dispute about physiotherapy records and communications with his solicitors. The claims included defamation, negligence, breach of duty, misfeasance in public office and alleged breaches of the Data Protection Act 1998.

The defendant applied to strike out or obtain summary judgment on parts of the amended claim. It also opposed new causes of action introduced without permission and sought costs relating to abandoned claims. The central issues were whether the defamation claims had sufficient substance, whether the pleaded allegations of bad faith were adequately particularised, and whether the alleged inaccuracies breached the statutory data protection principles.

1. Defamation. The slander and libel claims were struck out under CPR 3.4(2)(b). The publication was extremely limited, being effectively to a person connected with the claimant’s legal representatives, and there was no ongoing damage or realistic prospect of useful vindication. Applying the approach in Jameel v Dow Jones & Co Inc [2005] QB 946, the proceedings were not a real and substantial tort. The alleged special damage was also too remote because the claimed loss depended on the relationship with the solicitors having broken down because of the publication.
2. Onward publication. The defendant could not be liable for the recording being heard by another member of the solicitors’ staff. On either possible test identified from Terluk v Berezovsky [2011] EWCA Civ 1534 at [27]–[28], the facts did not establish that the speaker authorised, intended or ought reasonably to have foreseen onward publication.
3. Bad faith allegations. Allegations that the defendant’s employees had misled, concocted or lied required particulars of the facts relied upon, following Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at [51] and [55]. The allegations concerning disputed factual events could not be struck out at that stage, but further particulars were required.
4. Data protection. Summary judgment was granted on the data protection claims. The alleged error in the physiotherapy notes fell within Schedule 1, Part II, paragraph 7 of the Data Protection Act 1998, and the defendant had taken reasonable steps in accordance with official guidance. The alternative defence under section 13(3) also applied. Other alleged inaccuracies were not personal data within section 1(1).
5. Permission was required for the proposed new claims in malicious falsehood and under the Human Rights Act 1998. No ruling was made on their merits. The defendant was entitled to costs relating to claims abandoned from the original pleading, and the misfeasance claim was to be struck out following abandonment.