Ma v St George's Healthcare NHS Trust

In a defamation claim concerning communications made by hospital staff to safeguarding personnel, substantial truth is assessed by reference to the circumstances existing when the words were published. Later events cannot retrospectively undermine justification. Descriptive terms such as aggressive, loud or confrontational may involve an evaluative impression, but remain capable of substantial truth where a reasonable observer could use them. In assessing conflicting evidence, seriousness affects the cogency required, but the court must avoid treating witness numbers as decisive. Communications made through an appropriate safeguarding channel may attract qualified privilege where there is a genuine duty or interest to communicate and receive the information. The protection depends on necessity and proportionality and may be defeated by malice.

The claimant brought libel proceedings against a hospital trust over two communications made after her four-year-old daughter attended the hospital’s A&E department. The communications, sent to a hospital social worker and a health visitor liaison officer, described the claimant’s conduct as confrontational, aggressive and disruptive, and stated that she had assaulted a member of staff. The defendant relied on justification in respect of both publications and, for the communication to the liaison officer, qualified privilege. The claimant alleged malice. The central issues were the meanings conveyed, whether the allegations were substantially true, whether the second communication was privileged, and whether malice defeated that defence.

1. Meaning and justification. The publications conveyed that the claimant had behaved confrontationally, demanded immediate treatment unreasonably, shouted at and acted aggressively towards staff, attempted to remove her daughter before examination, and struck a member of staff. Those meanings were substantially true. Flexible descriptive terms must be assessed by asking whether a reasonable onlooker could have described the conduct in those terms. The relevant circumstances were those prevailing at publication; the later closure of the safeguarding file did not show that the concerns were irrational when expressed.
2. Evidence. The civil standard remained the balance of probabilities. Where an allegation appeared particularly serious or unlikely, correspondingly cogent evidence was required, applying the approach illustrated by Re D [2008] UKHL 33. The court scrutinised the witnesses individually and did not decide the issue by counting witnesses. It accepted the staff evidence that the claimant had behaved erratically and had struck a nurse twice, rejecting the allegations of fabrication and conspiracy.
3. Qualified privilege. Genuine concerns about a child’s safety gave hospital staff a duty to communicate with appropriate safeguarding personnel. The liaison department had a corresponding interest or duty to receive and act on the information. Applying Clift v Slough Borough Council [2010] EWCA Civ 1171, wider publication to persons without direct responsibility might fall outside the privilege, but these limited communications were necessary and proportionate. The defence therefore applied to the second publication.
4. Malice and disposition. The claimant failed to establish that any staff member acted dishonestly or for an improper purpose. The claim was dismissed.