Onwude v Dyer & Ors (Rev 1)

A report of disciplinary proceedings is protected by statutory qualified privilege where it is substantially fair and accurate. Minor technical inaccuracies or omissions do not defeat the privilege unless they materially affect the report’s impact on reputation. A request to publish an explanation or contradiction must be objectively reasonable, including as to the proposed medium and whether the substance has already been published. Reporting a professional disciplinary decision is ordinarily a matter of public interest and public benefit.

Under Defamation Act 2013, s 4, the relevant question is whether the publisher reasonably believed publication to be in the public interest, having regard to all the circumstances and allowing for editorial judgment. The former Reynolds defence is abolished, but the Reynolds factors may remain relevant to that statutory inquiry.

The claimant, a consultant gynaecologist, sued the legal journalist, editor and publisher of the BMJ over an article reporting a Medical Practitioners Tribunal decision directing his erasure from the medical register for serious professional misconduct, including dishonesty and an intention to cause distress.

The claimant contended that the article was defamatory because it said that he had been struck off without stating that erasure was subject to a 28-day appeal period. His appeal to the High Court had later quashed the serious findings and remitted limited matters to the tribunal. The defendants relied principally on statutory qualified privilege under s 15 of the Defamation Act 1996, and alternatively on the public-interest defence under s 4 of the Defamation Act 2013.

1. Meaning. The first article and its abstract conveyed that the claimant had been found guilty of serious professional misconduct and that the tribunal had directed his erasure from the medical register. The real defamatory sting lay in the conduct found proved and the seriousness of the sanction, rather than in whether erasure had technically taken effect on publication.
2. Qualified privilege. The Medical Practitioners Tribunal was a statutory tribunal, and its public proceedings fell within paragraph 11(1)(e) of Schedule 1 Part II to the Defamation Act 1996. The article was substantially fair and accurate. Although the direction for erasure was subject to appeal, the claimant had also been suspended immediately and was treated as unregistered. The omission of the appeal period and the use of “struck off” were therefore minor matters of form, not substantial or materially prejudicial misstatements (paras [99]-[120]).
3. The claimant’s proposed statement was not objectively reasonable for publication because it substantially repeated the already published report of the successful appeal. The defendants had not refused or neglected to publish a reasonable explanation or contradiction (paras [122]-[131]).
4. The report concerned a disciplinary decision of high public interest and publication was for the public benefit, particularly in relation to patient safety and professional standards (paras [132]-[135]).
5. Public interest. Alternatively, the defendants reasonably believed that publication was in the public interest. The information came from an authoritative tribunal decision, the claimant’s position was substantially reported, and the omission of the appeal qualification was a permissible exercise of editorial judgment. Reynolds principles remained potentially relevant, but the statutory focus was the reasonableness of the publisher’s belief, not responsible journalism as an independent test (paras [136]-[157]).
6. The claim was dismissed and judgment entered for the defendants. The tribunal decision, rather than the BMJ’s reporting, was responsible for the claimant’s distress.

The judgment records that the claimant had previously appealed the Medical Practitioners Tribunal decision to the High Court, where Collins J quashed the most serious findings and remitted limited matters. That decision was reported in a subsequent BMJ article. The present proceedings were a first-instance defamation claim concerning the earlier report.