Noordeen v Hill & Anor [2012] EWHC 2847 (QB)

Case No HQ12X00770[2012] EWHC 2847 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/10/2012
Before
MR. JUSTICE MALES
Between
Mr. Hilali NoordeenClaimantMrs. Joyce Rosemary HillDefendantHealth Research AuthorityDefendant
Oliver Hyams for ClaimantRory Dunlop (instructed by Capsticks) for DefendantHearing Hearing date: 11 th October 2012
JudgmentMr. Justice Males :Introduction
[1]This is an application by Mr Hilali Noordeen, a consultant orthopaedic and spinal surgeon at the Royal National Orthopaedic Hospital (“the Royal National”), for a Norwich Pharmacal order against the first defendant, Mrs Rosemary Hill, who is the chair of the London Stanmore Research Ethics Committee (“REC”). Mr Noordeen’s case is that he has been or may have been defamed by a person unknown who said something to Mrs Hill, which caused her to say something to Sheila Oliver of the National Research Ethics Service (“NRES”), which in turn led to a letter being written by Dr Janet Wisely the director of NRES to the joint medical directors of the Royal National Orthopaedic Hospital Trust, the content of which was defamatory of him. By this application Mr Noordeen seeks to find out the identity of the person(s) who spoke to Mrs Hill and what it was that he, she or they said, so that he can bring proceedings for defamation. He accepts that what was said would in all probability attract qualified privilege, but suggests that such privilege would be lost because the statement was made, or at any rate may have been made, maliciously.[2]Mrs Hill resists disclosing the identity of the person in question to Mr Noordeen on the grounds, in essence, that there is no realistic prospect of the claimant succeeding in an action for defamation against the person concerned, and that in any event the application should be refused as a matter of discretion. The second defendant, the Health Research Agency, is the body with responsibility for Research Ethics Committees and has been joined as a party at its request as it accepts responsibility for any costs which may be ordered against Mrs Hill, but has not otherwise played any part in the proceedings.[3]At the conclusion of the hearing I announced my decision that this claim would be dismissed, with reasons to be given later. These are my reasons.

The Facts

[4]Mr Noordeen is a very experienced spinal surgeon. From 1995 until July 2010 he worked both at the Great Ormond Street Hospital and at the Royal National. Since July 2010 he has only worked at the Royal National. He has been a pioneer, and it seems a very successful pioneer, in the use of “growth rods” in children with scoliosis – i.e. rods which are inserted into the spine, in order to assist the patient’s spine to grow straight rather than curved. Until recently such growth rods have needed to be lengthened every six months as the patient grows, which requires repeated open surgery with all its attendant hazards.[5]In 2009 a new kind of growth rod was developed – a magnetic growth rod, which could be extended without surgery by means of an external magnet. This was, at least potentially, a major breakthrough, not only because it avoided the need for repeated operations at six month intervals, but also because patients who would not have been able to have growth rods implanted into their spines because they could not have withstood repeated major operations would now be able to benefit from the treatment. These magnetic growth rods received a CE (Conformité Européene) mark in Germany after testing, albeit on pigs and not on human beings, which meant that it would also be possible for them to be used in this country.[6]Mr Noordeen was an enthusiastic advocate of the new magnetic rods and obtained the appropriate clinical governance approval to carry out operations using this new kind of growth rod at Great Ormond Street. By 1 July 2010 when he ceased to have any formal sessions at Great Ormond Street he had used the new magnetic growth rods in 26 patients. It was and is his view that the new magnetic rods represent such an advance on the previous technology that it is not now in the best interests of patients for the old fixed rods to be used.[7]Mr Noordeen was therefore keen to be able to use the new magnetic rods when treating his patients at the Royal National as well as at Great Ormond Street, particularly after he gave up his position at Great Ormond Street. He wished also to carry out a research project on the use of the new magnetic rods. In order to carry out research on patients, those working in the National Health Service are required not only to demonstrate the safety of the proposed research programme, but also to satisfy a Research Ethics Committee that the research is ethical. That is a separate matter from the safety of the research and involves a variety of considerations, including such matters as whether the research is likely to yield useful new information, whether the risks are explained to prospective participants with sufficient clarity, whether appropriate procedures are in place to ensure that patients are not pressurised into agreeing to take part, and whether the researcher has or may have any personal financial interest in the outcome of the research project. Research Ethics Committees are appointed by local NHS health authorities to consider these and other similar matters. Typically they consist of both clinicians and lay people who give their time to sitting on such committees on a voluntary and unpaid basis. Mrs Hill has for some years been the chair of the London Stanmore REC (“the REC”).[8]In January 2010 Mr Noordeen applied to the REC which Mrs Hill chaired for permission to carry out a patient study into the use of magnetic growth rods. He submitted, as part of his application, the details of the study that he wished to pursue. In Mrs Hill’s absence the REC met to consider his application. The committee decided to reject Mr Noordeen’s application for permission to carry out this study and, in a letter dated 11 February 2010, informed him of this decision. There were various points of concern, including the fact that (as was at any rate understood to be the case) Mr Noordeen had a personal involvement in the organisation sponsoring the research which needed to be clarified. The letter of rejection also contained the sentence:
“it was also thought that Dr Noordeen may not need ethics approval if his study is indeed using the device for the purpose for which it already has CE marking.”
[9]In fact, this was a mistake, albeit tentatively expressed, on the part of the REC. In order to carry out a patient study, Mr Noordeen did need ethics approval, which he did not have. However, the CE marking did give Mr Noordeen the right to implant the magnetic rods in patients so long as he did not do so as part of carrying out a patient study into the use of such rods. He did in fact continue to use magnetic rods in treating his patients, including some (it appears only two) at the Royal National. Mr Noordeen indicated, through his counsel, that in view of his position as a consultant at both hospitals, the clinical governance approval for use of the magnetic rods at Great Ormond Street also enabled him to use magnetic rods at the Royal National.[10]In due course Mrs Hill noticed the error in the letter dated 11 February 2010 and, as a result, wrote to Mr Noordeen on 5 May 2010. Her letter included the statement:
“The type of research you are doing must always have ethical approval from a REC. The last paragraph of the letter sent to you refusing approval does not say that you ‘do not’ need ethical approval. The words ‘may not’ were used meaning it was purely a discussion and does not change the ethical opinion of the Committee.”
She went on to explain that the statement in the earlier letter was an error due to the absence from the February meeting of those with experience of relevant legislation.[11]It appears from this letter (“the type of research you are doing”) that Mrs Hill may already by this stage have been under the mistaken impression that Mr Noordeen was actually carrying out his proposed research project without having obtained the necessary ethical approval. In fact he was not. Mr Noordeen responded on 10 May 2010, making clear that he understood the need for ethical approval and that the proposed study was not going ahead:
“1. I completely understand that this type of research must have ethical approval from an REC. 2. I understand that the study cannot be conducted without Ethical Committee approval. 3. The Company that sponsors the study, I believe, do not wish for the study to go ahead either here or at Great Ormond Street.”
[12]In June or July 2010 Mrs Hill was informed by one of the REC members about a website called “scoliosis support” where patients were raising concerns about the use of magnetic growth rods. She visited that website and saw an exchange of comments where one person, apparently the parent of one of the Mr Noordeen’s patients, advised another in strong terms not to agree to the implanting of magnetic rods, describing this as “the worst decision I’ve ever made in my life” or similar words. Mrs Hill had no knowledge of what lay behind these comments, or whether they were justified, and nor do I. However, not surprisingly, she was concerned about them. The comments in question have now been removed from the website. It would be impossible for Mrs Hill to identify the maker of these comments.[13]At about the same time Mrs Hill was informed by more than one clinician at the Royal National that Mr Noordeen was using magnetic rods and that children who were given these rods needed more x-rays than children who had been given the previous kind of rod. This is what she says that she was told. She does not know, and there is no evidence about it, whether these comments about children with magnetic rods needing more x-rays were correct. (I should say that Mr Noordeen denies vigorously that any of his patients were disadvantaged as a result of being fitted with magnetic rods). Mrs Hill understood (her evidence does not make clear whether this was said expressly) that this information was being given to her in confidence and that the clinicians concerned would not want her to reveal their identities to Mr Noordeen. It is the identity of these clinicians, together with details of what they said, which Mr Noordeen seeks to obtain by the present application for Norwich Pharmacal relief.[14]It was Mrs Hill’s belief at this time that Mr Noordeen was not entitled to implant magnetic rods in patients. She appears to have believed, mistakenly, that because the magnetic rods were so new, they could only be used on patients as part of a study. Thus she believed that Mr Noordeen’s use of the magnetic rods was wrong, in view of the refusal of the research application in February. Understandably, given her mistaken belief, she was concerned about the fact that Mr Noordeen was using magnetic rods without (as she wrongly understood) proper authorisation.[15]Mrs Hill discussed the matter with REC colleagues, including at REC meetings although these discussions were not minuted, and her colleagues were also concerned. In particular, they were concerned about the fact that there was no research evidence demonstrating the safe use of these rods on children, the only research data of which they were aware relating to pigs. Since the REC had no power to take action to deal with what Mrs Hill believed to be unauthorised medical research, she informed Sheila Oliver at the National Research Ethics Service (“NRES”), the body which was then responsible for issuing guidance about how Research Ethics Committees should operate, of her concerns.[16]The concerns that Mrs Hill had expressed were passed up the chain of management to Joan Kirkbride, head of operations at NRES, and then to Dr Janet Wisely, the director of the NRES. This was what would be expected to happen and should happen in the event of such concerns on the part of REC members. The information provided to Dr Wisely was that there was concern at the Royal National that a study which had been refused ethical approval was nevertheless being carried out. This, however, as I have explained, was not correct.[17]Dr Wisely conducted her own investigation and could not find anything to confirm the suggestion that the claimant was carrying out the research study. She also contacted the Medicines and Healthcare Product Regulatory Agency (“MHRA”), which confirmed that no further approval was needed for the use of a new device if it had a CE mark, even if that mark was issued elsewhere in Europe. However, the MHRA indicated that it would be concerned if such a mark had been issued on the basis of non-clinical data.[18]Dr Wisely concluded that she should inform the Royal National so that it could satisfy itself that Mr Noordeen was acting appropriately and that there was no reason for concern about the safety of the magnetic rods. She therefore wrote to the joint medical directors of the Royal National Orthopaedic Hospital Trust by letter dated 16 July 2010. Her letter stated, so far as relevant:
“I am writing to alert you to a potentially serious matter, although I must from the outset emphasise that we have no evidence to support the concerns and no powers to investigate, and as there is no current application to a REC really no available course of action at all. Given the serious nature of the concerns raised, I am forwarding them on to you for your consideration of any appropriate action. … Unfortunately, during the discussion with Mr Noordeen, one member of the committee incorrectly claimed that as the device had a CE mark ethical approval was not required and this comment was captured in the minutes and the letter to Mr Noordeen giving the unfavourable ethical opinion. When this comment came to our attention we wrote again to Mr Noordeen to clarify that ethical approval was required for the research. We were advised by Mr Noordeen that the research study was not progressing. However the concern that has been passed to me in confidence is that there is a belief that the study is progressing and further that it is resulting in poor clinical outcomes for children, as I said at the outset I have no evidence to support this statement but in the circumstances feel I must pass on this concern to the Trust. In the course of our discussions with the committee we have sought clarification from the MHRA that a CE authorisation from Germany does indeed mean that no further authorisation is required by the MHRA for use in the UK. This is a correct position, although the MHRA were puzzled that the documentation submitted to the REC suggested the device was CE marked using data from pigs, as the view was that such a device would need to have clinical data to show that it works and is safe when used on humans before it can be CE marked. Of course there may be such data for the product and it was just not referenced with the REC, but if there are any concerns that this device has been CE marked without relevant clinical data then this would need reporting to the MHRA compliance section for investigation.”
[19]I would make four points regarding this letter:(1) First, it rightly made clear that if the concerns expressed proved to be valid, the matter was very serious. Particularly serious was the suggestion, if true, that the claimant was pressing ahead with a research study in the face of a refusal of ethical approval.(2) Second, there were also concerns expressed as to the clinical effectiveness of the treatment by means of magnetic rods and the clinical data, if any, by which the safety of such devices had been ascertained.(3) Third, however, it was made clear that the use of the magnetic rods was lawful.(4) Finally, the letter was moderately expressed, in terms which made clear that the concerns expressed were merely matters which might need investigation, and were not allegations supported by firm evidence.[20]Dr Wisely has rightly not been criticised for writing in these terms. In my judgment it was exactly what she would be expected and ought to have done in this situation. It would have been irresponsible to ignore the matter. Similarly Mrs Hill has not been criticised, at any rate in the submissions of counsel before me, for passing on the information which was given to her. As Mr Oliver Hyams put it on behalf of Mr Noordeen, this case is not about what Mrs Hill said to the NRES, but is exclusively about what was said to her and by whom.[21]In a letter dated 26 July 2010 the director of the Royal National Trust, Professor Timothy Briggs, wrote to Mr Noordeen, saying that the Trust had heard from the National Patient Safety Agency which was “concerned about the growth rod and possible study that they have heard you have been undertaking” even though ethical approval had been denied and asked to discuss the matter urgently. Mr Noordeen was asked to confirm in writing that he would not carry out any more surgical procedures with the magnetic rods until the matter was cleared up. Reluctantly, because he was firmly convinced of the merits of magnetic rods, Mr Noordeen gave that confirmation. In fact, he made clear that he was so convinced of the benefits of magnetic rods that he regarded the use of fixed rods as no longer appropriate and said that if the Trust insisted on his using only the old technology, he would be unable, consistent with his duty to act in the best interests of his patients, to operate on them at all unless the patient’s family specifically requested the use of fixed rods.[22]It is Mr Noordeen’s evidence that he was outraged by the letter which Dr Wisely had written, a copy of which was provided to him, but that the Royal National had asked him “not to make a fuss” about it and “instead to keep a low profile about it”. He continues:
“They said that they would say to Dr Wisely that they had looked into the matter and that there was no substance to it. They had not made the letter known publicly, they said, and they wanted to put the matter to bed quietly.”
[23]The outcome of the Royal National’s investigation was confirmed in a letter sent jointly to Dr Wisely by the chief executive of the Trust, Mr Rob Hurd, and Professor Briggs on 18 November 2010. They wrote:
“… we are writing to confirm the following outcome of the investigation into the matters raised in your letter:- • The letter states that there ‘is a belief’ that the study is progressing. Our investigation has shown that this is not the case. The relevant research study did not proceed. No relevant activity has taken place in respect of the unsuccessful original request to conduct a trial that was made to ethics committee. Subsequent applications to ethics committee for a prospective trial have been made by another Consultant and are currently being considered. As part of this the relevant MHRA compliance has been confirmed. We consider it highly likely that the trial will be approved. • The letter states that there was a belief that the study ‘is resulting in poor outcomes for children’ but it does recognise that there is ‘no evidence to support this statement’. Given that the trial has not taken place our investigation has shown that this is not the case as no activity has taken place within the trial. Separate to the trial, the investigation noted that the technique received clinical governance approval to proceed in Great Ormond Street Hospital (GOSH) and that, given Mr Noordeen’s move from his joint appointment with GOSH to full-time appointment at RNOH, there were 2 cases carried out at RNOH, independent to the clinical trial, and there remain a number of patients being monitored and followed up at RNOH. RNOH has agreed a process for achieving R&D and Clinical Governance approval before new cases are carried out at RNOH. No evidence of poor outcomes has been indicated in the course of the RNOH investigation although we have to note that there has been no review of activity that has taken place outside of the RNOH.” • The letter states that there ‘is a belief’ that the study is progressing. Our investigation has shown that this is not the case. The relevant research study did not proceed. No relevant activity has taken place in respect of the unsuccessful original request to conduct a trial that was made to ethics committee. Subsequent applications to ethics committee for a prospective trial have been made by another Consultant and are currently being considered. As part of this the relevant MHRA compliance has been confirmed. We consider it highly likely that the trial will be approved. • The letter states that there was a belief that the study ‘is resulting in poor outcomes for children’ but it does recognise that there is ‘no evidence to support this statement’. Given that the trial has not taken place our investigation has shown that this is not the case as no activity has taken place within the trial. Separate to the trial, the investigation noted that the technique received clinical governance approval to proceed in Great Ormond Street Hospital (GOSH) and that, given Mr Noordeen’s move from his joint appointment with GOSH to full-time appointment at RNOH, there were 2 cases carried out at RNOH, independent to the clinical trial, and there remain a number of patients being monitored and followed up at RNOH. RNOH has agreed a process for achieving R&D and Clinical Governance approval before new cases are carried out at RNOH. No evidence of poor outcomes has been indicated in the course of the RNOH investigation although we have to note that there has been no review of activity that has taken place outside of the RNOH.”
[24]At the same time as writing to Dr Wisely, the chief executive wrote to Mr Noordeen making clear that the use of magnetic rods did not yet have approval at the Royal National, and that clinical governance approval still needed to be obtained. I understand, however, that in due course this approval was given and that magnetic rods are now successfully in use at the Royal National.[25]It might have been thought that the attitude taken by the Trust, that is to say treating the matter with a low profile, not making the concerns expressed known publicly and assuring Dr Wisely that the matter had been investigated and the concerns expressed had been found to be without substance, was a satisfactory outcome for Mr Noordeen so far as his reputation was concerned, not least in view of the successful obtaining of approval for the use of magnetic rods which has now been achieved. However, Mr Noordeen did not see the matter that way, and was determined to find out who it was that had expressed these concerns in the first place.[26]Accordingly Mr Noordeen wrote to the NRES on 10 February 2011 complaining that the concerns expressed in the letter of 16 July 2010 were defamatory of him and asking for their source to be revealed. Dr Wisely responded that the concerns had been passed to her, through her operational team, from Mrs Hill. That resulted in a letter dated 4 April 2011 from Mr Noordeen to Mrs Hill asking who gave her the information which led her to communicate with Dr Wisely and precisely what had been said. This was the first that Mrs Hill had heard of the matter since the previous July.[27]There followed a series of letters between Mr Noordeen and (first) Mrs Hill and (later) Dr Wisely. In her witness statement Mrs Hill describes Mr Noordeen’s letters to her as “threatening and aggressive”, a description which in my judgment is fully justified. She suggests that they have even been detrimental to her health and indicates that they have made her question at times whether she should continue in her role as chair of the REC. It is in my view a relevant consideration to say that it would be unfortunate if such volunteers as Mrs Hill did not feel able to offer their time and expertise to the National Health Service in this way as a result of being exposed to the writing of such letters.[28]Eventually, in a letter dated 4 August 2011 Dr Wisely wrote on Mrs Hill’s behalf summarising the information which Mrs Hill had received (i.e. that operations with magnetic rods were being conducted when a study linked to them had not been approved) and explaining that Mrs Hill did not wish to reveal the sources of those concerns because the information was provided in confidence and it would breach their rights to disclose their names, particularly their rights under the Data Protection Act 1998.[29]After further correspondence, on 28 February 2012 the claimant commenced these proceedings for Norwich Pharmacal relief, seeking an order that Mrs Hill disclose(1) the identity of the person(s) who told her whatever it was that she was told and(2) what those things were.

The Law

[30]The House of Lords held in Norwich Pharmacal Co v. Customs & Excise Commissioners [1974] AC 133 that where a person, albeit innocently and without incurring any personal liability, becomes involved in the wrongful acts of others, he comes under a duty to assist anyone injured by those acts by giving him full information by way of discovery and disclosing the identity of the wrongdoers.[31]It was common ground that three conditions must be satisfied for a Norwich Pharmacal order to be granted (see Mitsui & Co Ltd v. Nexen PetroleumUK Ltd [2005] EWHC 625 (Ch), [2005] 3 All ER 511 at [21]): 1) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; 2) there must be a need for an order to enable an action to be brought against the ultimate wrongdoer; and 3) the person against whom the order is sought must: a) be mixed up in the wrongdoing so as to have facilitated it; and b) be able, or likely to be able, to provide the information necessary to enable the ultimate wrongdoer to be sued.[32]Referring to the first of these conditions, Mr. Hyams for Mr. Noordeen emphasised that it is not necessary to prove that a wrong has actually been committed. It is sufficient to show a reasonable basis for claiming that a wrong has been committed.[33]Even if those three conditions are fulfilled, it is a matter for the court’s discretion whether to grant a Norwich Pharmacal. In Totalise Plc v. The Motley Fool Ltd [2001] EMLR 29 at [27], a case concerning allegedly defamatory postings on the internet, Owen J identified the following factors as relevant to the exercise of the court’s discretion:(1) the strength of the claimant’s prima facie case against the wrongdoer;(2) the gravity of the allegations;(3) whether the wrongdoer was waging a concerted campaign against the claimant;(4) the size and extent of any readership and thus the extent of the damage of which the claimant was at risk;(5) the fact that the wrongdoer was hiding behind the anonymity which the website allowed;(6) whether the claimant could identify the wrong-doer by other means; and(7) whether the defendant had a policy of confidentiality for users of the website. While this does not purport to be an exhaustive list, and not all of these factors are present in this case, I respectfully consider that this is a helpful checklist.[34]The European Court of Human Rights has held that Norwich Pharmacal orders which require newspapers to disclose their sources may infringe Article 10 of the European Convention on Human Rights protecting freedom of expression. In Financial Times Ltd v. UK [2010] EMLR 21, the Court held at [63] that disclosure orders in such cases should only be granted where there was a “pressing social need” because such orders:
“have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves...”
[35]In the Financial Times case, the Court of Appeal had granted a Norwich Pharmacal order on the basis that the source’s purpose was “on any view a maleficent one, calculated to do harm whether for profit or for spite”. The European Court at [66] held that in applying Article 10 significant weight should not be put on the source's alleged purpose. It acknowledged that there might be cases where the source’s harmful purpose would in itself constitute a sufficient reason to make a disclosure order, but considered that the Norwich Pharmacal proceedings in that case did not allow the source’s purpose to be ascertained with the necessary degree of certainty.[36]Similar considerations apply in the present context, although obviously there are differences. Disclosure of information to a journalist with a view to publication to the public is very different from disclosure of concern about medical practices in confidence to a responsible person with a view to an investigation being carried out. Nevertheless similar reasoning to that of the European Court also applies here.

Is there an arguable case of defamation?

[37]Although Mr. Noordeen’s application seeks not only disclosure of the identity of those who spoke to Mrs Hill, but also details of what they said, the latter information has already been disclosed. Mrs Hill’s evidence, which I have set out at [12] and [13] above, explains clearly the information which she had and from what sources, without naming names, she obtained it. Despite Mr Hyams’ surprising submission to the contrary, there is no reason at all to suppose that Mrs Hill’s account of what led her to express concern to the NRES is anything other than truthful and, so far as possible at this stage, complete. There is no reason to suppose that she would now, more than two years after the conversations in question, be able to give more detailed information and, even if she could, the gist of what she was told is clear. There is therefore no need to order such disclosure and no point in doing so. This claim now is really about disclosure of the identity of those who spoke to her.[38]The wrong of which Mr. Noordeen complains is that he has been defamed. The statement which he alleges to be defamatory is the statement in Dr. Wisely’s letter dated 16 July 2010 that “the study is progressing and further that it is resulting in poor clinical outcomes for children.” When Mr Hyams opened the case, he described the statement of which complaint is made as being to the effect that Mr Noordeen was “carrying out an unapproved research study causing harm to children”, which is a rather more emotive way of describing the sentence in Dr Wisely’s letter. However, as he accepted, there are two components to this statement.[39]The first is that Mr Noordeen was carrying out an unapproved study. I would accept that a statement that the study was progressing would (at least arguably) be defamatory of Mr. Noordeen, albeit subject to a defence of qualified privilege. That suggestion, if true, was rightly regarded by Dr. Wisely as a very serious matter in circumstances where permission to carry out such a study had been expressly refused on ethical grounds. However, it is apparent from the facts as I have recounted them at [13] above that no such statement was made to Mrs Hill. As she has explained, and as there is no reason to doubt, what she was told in this regard was merely that Mr. Noordeen was using magnetic rods on his patients. It was Mrs Hill’s own conclusion, from that information, that Mr. Noordeen was after all going ahead with the study for which ethics permission had been refused, but nobody actually said that to her.[40]There is therefore no possibility of a successful action for defamation against those persons who spoke to Mrs Hill based on any statement to the effect that Mr. Noordeen was going ahead with his study. No such statement by any of them was made. There is not even a reasonable basis for claiming that it was.[41]The second component of the sentence in Dr Wisely's letter is the reference to poor clinical outcomes for the children treated with magnetic rods. I asked Mr Hyams whether it was Mr Noordeen’s case that this statement on its own, without the reference to a study, was defamatory. Mr Hyams’ initial response was that it would be undesirable for such a statement to be made, but that it was not necessarily defamatory. He accepted that the actual statement by clinicians referred to by Mrs Hill, namely that children fitted with magnetic rods had needed more x-rays than children fitted with fixed rods, was not in itself defamatory, but suggested that any conversation could not have been literally confined to this one statement and must have included at any rate some comment to the effect that magnetic rods were an undesirable or harmful form of treatment. In reply, however, after taking further instructions from Mr Noordeen, Mr Hyams indicated that it is Mr Noordeen’s case that the statement that his work using magnetic rods was producing poor clinical outcomes was defamatory in itself.[42]I am very doubtful whether the statement which Mrs Hill says was made, namely that children fitted with magnetic rods had needed more x-rays than children with fixed rods, could on its own be regarded as defamatory of Mr. Noordeen. However, even if I assume that it was defamatory, or even if the conversation did indeed go somewhat further (which is at least a possibility), it is in my view in the highest degree likely that a claim for defamation would be met by a successful defence of qualified privilege.[43]Lord Atkinson explained what this means in Adam v. Ward [1917] A.C. 309 at 334:
“A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.”
[44]The claimant in a defamation action can defeat the defence of qualified privilege if he can prove malice, but the burden is on him to do so. However, the House of Lords in Horrocks v. Lowe [1975] A.C. 135 at 150 has warned judges and juries to:
“be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity.”
[45]What was said by the clinicians concerned to Mrs Hill was said to her in her capacity as REC chair. They had as clinicians an obvious interest, and duty as well, to express their concerns, and Mrs Hill as REC chair had an equal interest in hearing their concerns. In that capacity she was an appropriate person for them to speak to.[46]Mr Hyams accepts that the conversations with Mrs Hill would be subject to qualified privilege, but suggests that there is at least an arguable case of malice so as to defeat the defence. He relies first on the fact that the sources spoke to Mrs Hill, rather than the chair of the Clinical Governance Committee or the chief executive of the Trust, and second on the fact that the clinicians did not want their identity to be disclosed to Mr Nordeen, as indicating malice on their part -- and in particular a desire to undermine Mr Noordeen’s position at the hospital -- so as to defeat a defence of qualified privilege.[47]I do not accept these submissions. The mere fact that there may have been people, other than Mrs Hill, to whom the sources could have reported their concerns, does not begin to indicate that those sources were “so far actuated by improper motives as to deprive them of the protection of the privilege”, nor that the sources “did not believe that what [they] said ... was true or [were] indifferent to its truth or falsity”. Similarly, the fact that they did not want their identities disclosed to Mr Noordeen is completely understandable. It is not evidence of malice. The clinicians would no doubt have needed to continue to work in proximity with Mr Noordeen and it would be much easier to maintain a reasonable professional relationship if they were able to speak to Mrs Hill in confidence, knowing that their names would not be revealed.[48]I conclude, therefore, that Mr. Noordeen’s application for Norwich Pharmacal relief fails at the first hurdle. There is no reasonable basis for concluding that an action in defamation (which in any event is now time barred, subject to the court’s discretion to extend the one year time limit under section 32A(1) of the Limitation Act 1980) could succeed against the clinicians who spoke to Mrs Hill. Even assuming that what was said was defamatory, the defence of qualified privilege would apply and there is no arguable case of malice.

Discretion

[49]However, even if I am wrong about that and the three conditions for a Norwich Pharmacal order are satisfied, I would decline to make an order as a matter of discretion. The following matters are relevant.[50]First, even if there is some reasonable basis for thinking that a claim in defamation against the unknown clinicians may succeed, Mr. Noordeen’s case against them is not strong. He would face a heavy burden in proving that the statements were malicious, always assuming that the limitation period would be extended, which seems unlikely given that the supposed defamation was oral and it would be hard for witnesses to recall precisely what was said.[51]Second, although the allegation about going ahead with an unauthorised trial is very serious, the allegation concerning a greater need for x-rays, or even of poor clinical outcomes for patients with magnetic rods, is rather less so, always assuming that this is defamatory at all. Indeed, because the use of magnetic rods was so new, and because the ultimate clinical outcome for patients would necessarily be a long term matter, any such statement as at July 2010 could hardly be much more than a matter of opinion on which different views might be held.[52]Third, the information was only passed on to Mrs Hill, and from her to the REC and the NRES; it was not broadcast to a wide audience. Indeed, it was deliberately given a low profile by the Royal National, who wrote to Dr. Wisely making clear that the concerns expressed were unfounded. So far as the evidence before me is concerned, whatever concerns were expressed have proved to be unfounded and it is only Mr. Noordeen who has refused to let the matter rest.[53]Fourth, and importantly, the information was given to Mrs Hill in confidence and people should be allowed to express their concerns about medical practitioners to responsible people without fear of litigation. I accept that if Mrs Hill were required to reveal her sources, that could have serious repercussions for the work of the HRA and Research Ethics Committees because people would be less willing to raise concerns in confidence about doctors, for fear that their names would later be revealed to those doctors by Norwich Pharmacal orders. In this respect the position of journalistic sources considered by the European Court in the Financial Times case is reasonably analogous. It might also discourage people from volunteering to act on Research Ethics Committees if they thought they would be drawn into legal proceedings simply because people raised concerns with them.[54]Mr Hyams submits that this last factor does not apply because it is sufficient that statements which are prima facie defamatory will have a defence of qualified privilege unless malice can be proved by a claimant. I disagree. In White v. Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB) Eady J referred at [7] to "the stress and expense of resisting a plea of malice” and in my judgment that is a relevant consideration. It is true that Eady J’s comment was made in the context of deciding that a letter written to the General Medical Council expressing concern about the probity and conduct of a doctor was entitled to absolute and not merely qualified privilege, in circumstances where the content of the letter and the identity of the author were known. Nevertheless, it seems to me that in an application for Norwich Pharmacal relief with a view to proceedings for defamation in circumstances such as the present case, there is a public policy against disclosure of a source's identity in a case where qualified privilege would apply, at any rate unless there is very compelling evidence of malice. The public has an interest in such concerns being expressed to appropriate persons so that if necessary they can be properly investigated, and it is no answer to say that a claim for defamation would fail unless malice could be proved. The ready grant of Norwich Pharmacal relief could well operate as a chilling factor. As it is, the evidence of malice in this case is non-existent.

Conclusion

[55]For the reasons given above, the claim for Norwich Pharmacal relief is dismissed.