Miah v British Broadcasting Corporation (BBC)

A defence of truth to a Chase level 2 meaning must identify facts which objectively afforded reasonable grounds to suspect the claimant at the time of publication. The defence must focus on the claimant’s conduct, although relevant narrative, context and linking facts may be pleaded. The beliefs, suspicions, decisions or evaluations of investigators and other third parties are not themselves grounds for suspicion. Strong circumstantial evidence is an adjunct to, not an alternative to, the conduct requirement. Post-publication events cannot establish reasonable grounds existing at publication. Expert evidence should explain technical systems where necessary, but experts should not be invited to decide the ultimate question of the claimant’s compliance.

Dr Rina Miah brought claims in libel, misuse of private information and breach of the Data Protection Act 1998 against the BBC concerning two television broadcasts and an online article about an NHS investigation into alleged fraud in the operation of the QOF system at her surgery.

Following an earlier meaning judgment, the publications were held to convey a Chase level 2 meaning: that there were reasonable grounds to suspect Dr Miah of fraudulent activity against the NHS. The BBC sought to amend its truth defence. Dr Miah applied to strike out substantial parts of the pleaded particulars, including reliance on the fact and conduct of the NHS investigation, investigators’ views, and post-publication events. A further issue concerned the permitted scope of expert evidence about the QOF system and Dr Miah’s compliance with it.

1. Strike out. Substantial parts of the BBC’s defence of truth were struck out, including paragraphs 12.24, 12.27, 12.28 (second sentence), 12.29–12.31, 12.35, 12.38, 12.41, 12.42 (fourth and subsequent sentences), 12.43, 12.47, 12.48 (final sentence), 12.50–12.60, paragraphs 13.2(2), (4) and (5), and paragraph 14. Permissible narrative and context, including parts of paragraphs 12.28, 12.32–12.34, 12.36, 12.37, 12.39, 12.40, 12.42, 12.45, 12.46 and 12.49, remained.
2. For a Chase level 2 defence, the defendant must plead and prove primary facts which, objectively assessed, afforded reasonable grounds to suspect the claimant at publication. The defence must focus on conduct by the claimant, while allowing sufficient background and linking material to explain the context.
3. The fact that NHS bodies investigated the claimant, considered the allegations substantiated, decided to obtain further evidence, or believed the evidence warranted investigation could not itself constitute reasonable grounds for suspicion. Those matters were expressions of third-party opinion or evaluation, not circumstantial evidence implicating the claimant through an inference about her conduct.
4. The strong-circumstantial-evidence qualification recognised in Chase did not assist the BBC. It remained an adjunct to the conduct requirement. The closure of the investigation was also irrelevant to the original publication because it post-dated publication and disclosed nothing about the merits.
5. Only the first proposed expert issue was permitted: explanation of the proper operation and regulation of the QOF programme. Experts were not to be asked whether Dr Miah complied with that operation or with GMC guidance, since that ultimate issue was for the court. Costs of the application were reserved, pending any application to amend.

The judgment records an earlier first-instance meaning ruling in the same litigation by Dingemans J, [2018] EWHC 206 (QB), which determined the meanings conveyed by the publications. This judgment then determined the strike-out and expert-evidence applications.