ZC v Royal Free London NHS Foundation Trust

For the purposes of Defamation Act 2013, s 1, serious harm must be proved as a fact, or shown to be likely as a matter of fact. Limited publication, absence of evidence that recipients’ views changed, and the absence of any wider dissemination may prevent the threshold being met.

An imputation of dishonesty or fraud may nevertheless be substantially true where the claimant has falsified a court document, used false identities and deceived medical staff. Information about attendance at hospital and the use of false names may lack a reasonable expectation of privacy where the claimant has made the matters relevant to public criminal proceedings.

The claimant brought claims for libel, misuse of private information and breach of article 8 against an NHS foundation trust. The claims arose from an email sent by the trust’s solicitor to a magistrates’ court and copied to others. The email stated that the claimant had used several names, falsified a court email and had been referred to fraud investigators.

The claimant alleged that the email conveyed dishonesty, fraud and mental illness, caused serious reputational harm, and disclosed private medical information. The court had to determine the meaning of the email, whether serious harm was established, whether the defences of truth or honest opinion applied, and whether the information was private and protected by article 8.

1. Disposition. The libel, misuse of private information and article 8 claims were dismissed.
2. Meaning. Applying Stocker v Stocker [2019] UKSC 17 and Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), the email could convey that the claimant had behaved dishonestly and fraudulently. It could not reasonably convey that she suffered from multiple personality disorder.
3. Serious harm. Under s 1 of the Defamation Act 2013, the claimant had to prove that serious harm had occurred or was likely to occur as a matter of fact. Applying Lachaux v Independent Print Ltd [2019] UKSC 27, the limited publication to four people, the absence of evidence from the recipients, the lack of grapevine dissemination and the fact that two recipients already knew the substance of the allegations meant that serious harm was not proved.
4. Truth. Alternatively, the defence under s 2 of the Defamation Act 2013 succeeded. The claimant had admitted falsifying an email, using false names to obtain treatment, repeatedly maintaining a false identity and deceiving hospital staff. Applying Ivey v Genting Casinos (UK) Ltd [2018] AC 391, that conduct was dishonest by the standards of ordinary decent people. The error as to the purpose of the falsification did not affect the substantial truth of the sting of the imputation, and was corrected within minutes.
5. Privacy. Applying Murray v Express Newspapers Limited [2009] Ch 481, the claimant had no reasonable expectation of privacy in the use of false names in the circumstances. Any privacy in her hospital attendance had also been lost when she made that attendance relevant to her private prosecution. The claim therefore failed at the first stage of the McKennitt v Ash [2008] QB 73 analysis. If necessary, the article 8 and article 10 balance would have favoured publication because only limited information was disclosed for the purposes of criminal proceedings.

First-instance decision. The judgment records that an interlocutory appeal was refused and that permission to appeal was also refused in relation to the case-management decision of Master Yoxall.