Huda v Wells & Ors

Permission to serve proceedings out of the jurisdiction should be set aside where the claimant has no real prospect of establishing the relevant publication or defeating an applicable privilege defence. Publications in defamation and malicious falsehood occur where the words are read or heard. A claimant serving proceedings abroad must generally confine the claim to publications within England and Wales. Complaints and witness material submitted to a statutory professional regulator with investigative or disciplinary functions may attract absolute privilege or immunity from suit. Alternatively, qualified privilege applies where the recipient has a legitimate interest. Malice requires proof of knowledge of falsity, recklessness amounting to dishonesty, or, where recognised, a dominant intention to injure. It must be pleaded with particularity. The claim was dismissed because the pleaded publications were either unproved, outside the jurisdiction, privileged, or unsupported by a viable case of malice.

The claimant, a practising osteopath, brought libel and malicious falsehood claims against four Jersey-based health and social-care professionals and the States of Jersey. He complained principally of a safeguarding report, a complaint and witness material sent to the General Osteopathic Council, together with alleged statements and emails concerning his treatment of Patient A.

The defendants challenged permission granted without notice to serve the claim form in Jersey. They argued that claims based on foreign publications were impermissible, that publications to the regulator were privileged, that the claimant had no real prospect of proving malice, and that Jersey was the proper forum. The court determined whether permission to serve out should be set aside.

1. Jurisdiction and service out. Under CPR Part 6.36 and paragraph 3.1 of Practice Direction 6B, the claimant had to show a serious issue to be tried, a good arguable case within a jurisdictional gateway, and that England and Wales was the proper place for the claim. Ground 3 was unavailable because there was no anchor defendant. Ground 4A added nothing. Ground 9 was the only viable gateway.
2. Publications. The pleaded case that the first defendant sent the safeguarding report to the GOC in August 2016 was factually wrong. The alternative allegation of publication on 29 June 2016 had no real prospect of success. The only potentially viable pleaded publication was the second defendant’s transmission of the report attached to her witness statement in December 2016. Alleged slander by the third defendant occurred wholly in Jersey and could not be included in a claim served out on the basis of an English publication. The fourth defendant’s emails were not shown to have been read in England and Wales.
3. Privilege and immunity. The GOC was a quasi-judicial statutory regulator. Applying the principles in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, Westcott v Westcott [2009] QB 407, Vaidya v General Medical Council [2010] EWHC 984 (QB) and White v Southampton University [2011] EWHC 825 (QB), the witness statement and report submitted during the GOC investigation, and the complaint made to the GOC, were protected by absolute privilege or immunity from suit. The malicious falsehood claims were likewise covered.
4. Malice. Alternatively, the publications were protected by qualified privilege. Malice required proof that the defendants knew the allegations were false or were recklessly indifferent to their truth, a state of mind equivalent to dishonesty. The pleaded facts, including the absence of prior contact with the claimant or an independent investigation, did not raise a probability of malice. The defendants were reporting information received from Patient A to the relevant regulator.
5. Forum. It was unnecessary to decide the forum issue, but Jersey was clearly the more appropriate forum. All parties and most witnesses were based there, the claim concerned publications in both jurisdictions, Jersey could determine all the issues, and there was no cogent evidence of an unfair trial there.
6. Disposition. Permission to serve the claim form in Jersey was set aside. There were no remaining defendants against whom the claim could proceed, and the claim was dismissed. Late evidence concerning an email recipient was admitted, but it did not alter the conclusions on privilege, malice, causation or forum.