Miah v British Broadcasting Corporation (BBC) [2018] EWHC 1054 (QB)

[2018] EWHC 1054 (QB)Case No HQ16D03458IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONMEDIA AND COMMUNICATIONS LISTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2018
Before
Mr JUSTICE WARBY
Between
Dr RINA MIAHClaimantBRITISH BROADCASTING CORPORATIONDefendant
Alexandra Marzec & John Stables (instructed by TT Law) for ClaimantCatrin Evans QC & Clara Hamer (instructed by BBC Legal) for DefendantHearing Hearing date: 26 April 2018
Judgment Approved
[1]This is an application to strike out parts of the BBC’s defence to a claim for libel brought by Dr Rina Miah, a general practitioner who used to run Harbottle Surgery in Northumberland.[2]There is another short issue, namely the precise parameters of the issues which are to be the subject of expert evidence.

The procedural context

[3]Dr Miah sues the BBC for libel, misuse of private information, and breach of the Data Protection Act 1998 (“DPA”), in respect of three publications: two local television news reports broadcast on 6 October 2015 on the BBC Look North programme at 6.30pm and 10.30pm (“the Broadcasts”), and a news article published the same day on the Tyne and Wear page of the BBC News website (“the Article”).[4]The broadcasts were available to view on the BBC iPlayer until 7 October 2015. The Article has remained online in much the same form since first publication, but in February 2017 and May 2017 some additional text was incorporated in a clarifying final paragraph or “Loutchansky notice”, informing readers that the article is the subject of a claim, and giving some information about later developments relating to an NHS investigation into Dr Miah.[5]It is unnecessary to set out the words of the Broadcasts and the Article. They are set out in full in the judgment of Dingemans J, handed down on 12 February 2018 ([2018] EWHC 206 (QB) (“the Meaning Judgment”)) at [7], [8] and [10].[6]Dr Miah originally complained that the Broadcasts and the Article defamed her in the meaning that there were reasonable grounds to suspect and investigate her of defrauding the NHS of public money while she was running Harbottle surgery. The BBC defended all three publications as true, in the meanings that “(1) as at 6 October 2015. … the claimant was the subject of a fraud investigation by the NHS; and/or (2) there were grounds to investigate whether the claimant had committed fraud whilst a GP at Harbottle Surgery”. Paragraph 12 of the Defence set out extensive particulars to support the truth of those two propositions.[7]Alternatively, in paragraph 13, the BBC defended the publications complained of as true in the meaning that “there were reasonable grounds to suspect the claimant of fraud upon the NHS whilst she was a GP at Harbottle Surgery”. In support of that defence, the BBC relied on the particulars under paragraph 12.[8]The BBC was thus defending the claim in reliance on pleas that it was true that there was an investigation, and that the words were true at “Chase level 3” (grounds to investigate whether there was fraud) or alternatively “Chase level 2” (reasonable grounds to suspect guilt of fraud): see Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 [2003] EMLR 11.[9]In the further alternative, the BBC relied on the defence of public interest under s 4 of the Defamation Act 2013. In addition, the BBC denied that the publications had caused or were likely to cause serious harm to Dr Miah’s reputation, the threshold for actionability under s 1 of the 2013 Act.[10]The present application is concerned only with the libel claim. There was an application for the issue of serious harm to be tried as a preliminary issue, but that has since been conceded on the basis that an inference of serious harm can be drawn from the words complained of. There is a pending application to strike out part of the public interest defence, but that is not before me now. I am concerned only with particulars pleaded in support of the defence of truth. It is nonetheless relevant to outline some of the other issues in the case.[11]Dr Miah also claims that the Broadcasts and the Article involved a misuse of information which, “regardless of its accuracy or falsity” was “her private information”, namely “(1) that [she] was being investigated by NHS Protect; (2) the investigation was into allegations of fraud that had been made against her; (3) there were reasonable grounds to suspect and to investigate [her] of defrauding the NHS of public money while she was running Harbottle surgery”. The BBC’s defence to this claim denies that Dr Miah had any reasonable expectation of privacy in respect of any of this information, or that any of it engages her rights under Article 8 of the Convention; alternatively, it is said that publication was in the public interest.[12]Further, Dr Miah complains that the processing of her personal data which the publications complained of admittedly involved was carried out by the BBC in breach of its statutory duty under DPA s 4(4), and in particular that the BBC failed to comply with the First and Fourth Data Protection Principles. As to the First Principle, her case is that the processing was unlawful (because libellous and/or a misuse of her private information), and unfair; and that the processing of that part of the information which is, by concession, “sensitive” personal data, failed to comply with any of the Schedule 3 conditions. She also complained that the personal data were not accurate in two respects: first, because it was false to suggest that there were reasonable grounds to suspect and investigate her of fraud and/or because from at the latest 23 December 2015 it was false to suggest that she was being investigated by NHS Protect, on allegations of fraud or any other allegations. The BBC’s primary defence to the DPA claim is reliance on the “journalism exemption” in DPA s 32. Alternatively, it maintains that the processing was lawful, fair and satisfied a Schedule 2 and a Schedule 3 condition. It asserts that the data were not inaccurate. Its case is (among other things) that Dr Miah remained the subject of the fraud investigation at the time of the original publication on 6 October 2015.[13]In support of her case that “she has suffered serious harm to her reputation, dignity and autonomy”, Dr Miah alleges (among other things) that the BBC knew in December 2015 at the latest that the investigation into her conduct had been closed with no further action to be taken, yet continued to publish the Article “deliberately misleading readers into believing” that the investigation was still ongoing and that she remained under suspicion.[14]In support of her case that the publication has caused her embarrassment and distress, Dr Miah alleges that the BBC published the allegations she complains of when they “knew, or ought to have known, that the allegations served, and serve, no public interest and that they were published in breach of the Claimant’s privacy and data protection rights… [and] that there was no sufficient basis for them.” Details in support of these allegations are given. These reassert that the BBC published “knowing that the allegations had no substance”, and maintain that letters from Dr Miah’s solicitors should have prompted a “thorough investigation” which “would have revealed” various matters. Dr Miah complains that the BBC did not carry out or even attempt any such investigation.[15]Dr Miah applied for the trial of meaning as a preliminary issue. The trial concerned the unamended Article only. In the Meaning Judgment at [26] and [27] Dingemans J held that the publications complained of bore Chase Level 2 meanings. He held that:-(1) the Broadcasts have the meaning that “there were reasonable grounds to suspect the Claimant of carrying out fraudulent activity against the NHS while running Harbottle Surgery”; and(2) the Article has the meaning “there were reasonable grounds and at the date of publication of the online article there continued to be reasonable grounds to suspect the Claimant of carrying out fraudulent activity against the NHS while running Harbottle Surgery”.[16]The BBC has prepared a draft Amended Defence by which it seeks to defend as true the meanings which the Court has found the statements complained of to bear. That has inevitably meant the deletion of the two meanings which it had previously defended under paragraph 12 of the Defence. The publications complained of conveyed graver imputations than that. But the BBC has proposed only minor changes to the particulars relied on in support of its defence of truth. The issue is whether the BBC’s changes should have gone further.[17]Ms Marzec would say they should have gone much further. Her application to strike out large parts of the Defence was issued as long ago as on 26 October 2017, well before the trial of the preliminary issue. Indeed, it accompanied the claimant’s application for such a trial. Its resolution was sensibly postponed by agreement until after the parties had received and considered the implications of the Meaning Judgment. Encouraged by Dingemans J, Counsel have met and attempted to reach an agreement which would make a hearing unnecessary. But no agreement has been arrived at. The strike-out application 18. The pleaded defence of truth

The strike-out application

[18]The Particulars of truth under paragraph 12 of the Defence are lengthy, running to 60 sub-paragraphs, comprising some 5,700 words. They can however be summarised, in this way.(1) Sub-paragraphs 1 to 13 appear under the heading “Background”. These include details about Harbottle Surgery, the claimant’s role there, and the role of the practice Nurse, Nicola Hooley. A summary of the NHS Quality Outcomes Framework (“QOF”) is provided, explaining how GPs obtain QOF points and payment for giving advice to patients or undertaking other activities deemed by the NHS to be of value. A code has to be entered, corresponding to the advice given or action taken. Reference is made (at sub-paragraph 10) to guidance given to GPs by their professional body, the General Medical Council, about the accuracy of medical records and the need to ensure these are not false or misleading. A summary of NHS whistleblowing obligations is provided. None of this has been changed in the draft Amended Defence. It remains as originally pleaded.(2) The rest of the Particulars, sub-paragraphs 14 to 60 inclusive, all appear under the same general heading. Originally, the heading was “Grounds to investigate whether the Claimant had committed fraud in her use of the QOF system at Harbottle Surgery and the NHS investigation”. That will not do, now that the meaning has been held to lie at Chase level 2. In the draft Amended Defence, the heading to this section is “Facts and matters leading to the NHS investigation into the Claimant’s use of the QOF system at Harbottle Surgery.” This section of the pleading is broken down into five sub-sections, with the following headings: a) The Claimant’s backdating of entries on the QOF system (14-24) b) Ms Hooley makes her whistleblowing disclosure (25-31) c) The NHS investigation into the claimant (32-52) d) Public statements by NHS England about the fraud investigation (53-55) e) The unfinished investigation is suddenly closed (56-60).(3) A few changes have been proposed to some of the particulars in this section of the pleading, but these are only to add (at 18 and 60) assertions that the pleaded facts gave rise to reasonable grounds for suspicion.[19]Paragraph 13 of the Defence previously contained the alternative plea that it was true that there were reasonable grounds to suspect the claimant of fraud. In the draft Amended Defence, paragraph 13 has been reformulated to read as follows:
“In summary, the grounds for reasonable suspicion againstthat the Claimant had carried out fraudulent activity against the NHS while running Harbottle surgery are: (1) The Claimant’s conduct in relation to her entry of QOF codes as alleged in paragraphs 12.14 to 12.24 above. (2) The fact that NHS Protect and the NHS England fraud team considered the Claimant’s alleged conduct required to be investigated as a suspected fraud matter and/or adjudged there was substantiated material in support of the allegation initially reported to the NHS by Ms Hooley. (3) The fact that the NHS investigation led to the emergence of further evidence supporting the initial suspicion of possible fraud, in particular the post-payment verification data of 40 QOF codes entered by the Claimant and the Claimant’s own admission that she had backdated QOF code entries when she had not in fact given advice and did not know that another practitioner had (such a failure to verify amounting to, as she must have known, a failure to comply with professional standards). (4) The fact that NHS Protect and NHS England fraud team considered the evidence against the Claimant strong enough to justify obtaining evidence from patients as to whether they had received the QOF-qualifying advice claimed by the Claimant and/or the decision to contact the patients strongly indicated that the Claimant’s response to the allegations under investigation had not satisfied NHS Protect and/or NHS England fraud team, otherwise they would not have called for the patients’ evidence. In particular, bearing in mind that the threshold for bringing a criminal prosecution under the Fraud Act 2006 was that there was a realistic prospect of obtaining a conviction and it would be in the public interest, it is reasonably to be inferred that at the stage of directing that patient evidence should be obtained the NHS bodies considered the threshold potentially could be passed subject to assessment of the further evidence. (5) The investigation was closed for reasons unconnected to the merits or a full and/or proper evaluation of the evidence potentially available.”
[20]Paragraph 14 of the Defence pleads that insofar as paragraphs 12 and 13 plead facts and matters that post-date the original publications on 6 October 2015 those facts are relevant on two bases:(a) the Claimant claims in relation to continuing publication of the Article, and(b) in any event those facts and matters are relevant to prove or disprove the existence of facts subsisting at the date of the original Publications. Submissions[21]Ms Marzec does not seek to strike out any part of the Background section of the Particulars under paragraph 12, though she does have a few criticisms of some of it. There is no objection, either, to the pleading of the defence case that Dr Miah backdated entries on the QOF system (paras 12.14 to 12.23, and paragraph 13.2(1)). Ms Marzec is content to leave in place two paragraphs dealing with a “whistleblowing disclosure” about Dr Miah, made by Ms Hooley to the practice manager at Harbottle Surgery, and the suspicions which Ms Hooley entertained: 12.25 and 12.26. It is accepted, also, that it is proper for the BBC to rely on the fact that an investigation identified 40 instances of “potentially false QOF codes added retrospectively by [Dr Miah]” (12.44). No objection is taken to the pleading of Dr Miah’s alleged response when informed of this discovery: an admission that 14 of the entries were “incorrect, in hindsight” coupled with a belated explanation that she had backdated entries because she “presumed” that Ms Hooley had given the relevant advice (12.48 and part of 12.49). The corresponding summary in paragraph 13.2(3) of the Defence is not criticised.[22]The application is to strike out paragraphs 13.2(2), (4) and (5), and those parts of the Particulars under paragraph 12 to which they correspond. The main complaints are that the particulars of truth are rambling and discursive, not succinct and clear; that they contain much that has nothing to do with the behaviour of the claimant, and much that cannot contribute to proving the truth of the publications complained of; that this includes reliance on(a) the fact of an investigation and the views of investigators as somehow justifying reasonable suspicion of fraud;(b) the views of other third parties about the claimant’s conduct, which appear to be a vehicle for the introduction of inadmissible third party opinion evidence. Paragraph 14 is also attacked for irrelevance and obscurity.[23]For the BBC, Ms Evans QC expresses surprise that the claimant should seek to strike out a Defence to which, in July 2017, she pleaded a lengthy Reply. That approach is said to risk substantial wasted costs. It is pointed out that the claimant’s attack is on parts of the defence of truth, not the whole thing, so that some of it will be before the Court in any event. Ms Evans’ position is that the claimant’s criticisms are unduly narrow and technical. The particulars that are objected to are relevant and capable of supporting the pleaded meanings; or they are necessary or at least relevant by way of background narrative or context; or they are relevant by way of rebuttal of the case pleaded by the claimant in her Particulars of Claim and her Reply, that the investigation was not looking into suspected fraud but rather into “coding errors”. The right time for this debate is not now but at the PTR, or the trial, it is suggested.[24]Contests of this kind are familiar to libel lawyers. Ms Marzec criticises the Defence in this case for failure to comply with basic principles of pleading, as set out in the Queen’s Bench Guide at para 6.7.4.It will surprise no specialist to learn that Ms Marzec also relies on the general principles of defamation pleading as re-stated in Ashcroft v Foley [2012] EWCA Civ 423 [2012] EMLR 25, coupled with the principles specific to the pleading of Chase Level 2 defences: “the repetition rule”, “the conduct requirement”, and the other “Musa King principles” (Musa King v Daily Telegraph Ltd [2003] EWHC 1312 (QB) (Eady J)). For her part, Ms Evans relies on the principle that “strong circumstantial evidence” can contribute to a case that there were reasonable grounds to suspect a person of some wrongdoing. She also refers to the Draconian nature of striking out, the high threshold imposed by CPR 3.4(2), and the warnings to be found in the authorities against rulings that facilitate forensic jockeying for position, or impinge unduly on the defence of free speech (Gatley on Libel & Slander, 12th ed paras 30.38ff, Hunt v Times Newspapers Ltd [2012] EWHC 110 (QB) [15]-[16] (Eady J)), Mackenzie v Business Magazines (UK) Ltd(CA, 18 January 1996, unreported, Basham v Gregory (CA, 21 February 1996, unreported).[25]These are all well-settled principles of long standing, and the territory is well-trodden. At the level of principle, there is little that is controversial at this hearing. The main focus has been on how the principles apply to the particular facts and circumstances of this case. When libel cases were tried by jury this kind of argument was not only common, it was more important than it is today. Now that defamation is essentially a non-jury jurisdiction, debates of this kind can be arid. A strike-out application may be unnecessary and/or unhelpful, if much of the underlying evidence will be before the Court at trial for some other purpose in any event, and the Court will anyway be able at trial to sift the relevant from the irrelevant. Dingemans J evidently thought that might be so in this case. Hence his encouragement to Counsel to sort things out without a hearing.[26]However, that was not achieved. Having heard the arguments, I do not think it would be right to duck the issues or to defer a decision. I have reached some clear conclusions. They do not depend on any feature of the case that could be altered by disclosure or witness statements. Nor do they involve any development of the law. They turn on the application of established principles. My conclusions are largely in favour of the claimant, and will involve the striking out of substantial parts of paragraphs 12 and 13 of the Defence, and the whole of paragraph 14 (and, if it had been sought, permission to amend the relevant paragraphs in the ways proposed would have been refused). But I do not believe that the order I propose to make will grant the claimant any undue tactical or strategic advantage, or in any way unfairly inhibit the conduct of the defence. Indeed, although my order will streamline and simplify the pleaded case of truth, it remains to be seen quite how great an impact it will have on the overall landscape of this litigation. I will return to this point later. Discussion[27]As Ms Marzec points out, any statement of case must be concise, pleading only material facts, and not evidence. or arguments, or reasons, or rhetoric: Queen’s Bench Guide loc cit; Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm) [2015] 1 All E.R. (Comm) 961 [1] (Leggatt J). But although the BBC’s plea of truth is fairly long that is not because it is verbose, argumentative, or rhetorical, or packed with evidence rather than facts, or peripheral matters rather than essentials. The real force of Ms Marzec’s criticisms lies elsewhere. The main reason the particulars are lengthy is that they contain a substantial amount of factual material that is, on a proper analysis, clearly irrelevant.[28]It should not be necessary to cite authority for the proposition that particulars pleaded in support of a case of truth must be relevant, that is to say, capable of proving (or contributing to proof of) the truth of the meaning defended as true. But there is ample authority, including Ashcroft [49]. It is, and has long been, clear law that what has to be proved, in order to establish the truth of a Chase Level 2 meaning, are facts which objectively considered afford reasonable grounds to suspect the claimant. This cannot include the mere fact that someone else believed or suspected the claimant, or that some third party said something that, if true, would cast suspicion on the claimant - for instance, that they had seen the claimant at the scene of some apparent wrongdoing. This exclusionary rule applies, however authoritative or credible the third party may seem, or be said to be. As May LJ observed in Shah v Standard Chartered Bank [1999] QB 241, 269:
“… evidence of this kind would be objectionable because it would introduce irrelevant considerations in purported proof of what the defendant has to establish. The defendant has to establish that there are objectively reasonable grounds to suspect the plaintiff. The evidence under consideration would be directed rather to an essentially subjective judgment of the honesty and credibility of third parties. In human terms, anyone is entitled to believe what third parties tell them. But such belief does not establish that what is reported is objectively credible.”
[29]This is one aspect of the “repetition rule”. Shah is also authority for a related proposition, that a defence that there were objectively reasonable grounds to suspect the claimant of some wrongdoing must “focus” on something that the claimant did or failed to do (“the conduct requirement”). The explanation given for this rule is that the sting of an imputation of reasonable grounds to suspect is that the claimant has by his own conduct brought such suspicion upon himself: Shah v Standard Chartered Bank [1999] QB 241, 261B (Hirst LJ).[30]This does not mean that the defence may not plead other facts, to set the context or to explain by way of narrative where in the picture the claimant’s conduct comes in. As Hirst LJ explained in Shah, the word “focus” was used to avoid any implication that the defence must be exclusively confined to allegations of conduct. “Clearly it will be necessary, particularly in a complicated case like the present, for the defendant to portray in some detail the relevant background, and also to set out material which connects together the main facts relied upon.” But it seems self-evident that an imputation that the claimant has done something to bring suspicion on himself can only be proved true by evidence that establishes some such conduct on his part.[31]Defendants often rely on an exception, or apparent exception, to the conduct requirement, which is said to be found in obiter remarks of the Court of Appeal in Chase. At [50]-[51] Brooke LJ said this:
“There may be cases, of which this is unquestionably not one, in which, depending on the terms of its publication, a defendant may rely on matters which do not directly focus on some conduct on the plaintiff’s part giving rise to a relevant suspicion. A defendant may, for example, rely on strong circumstantial evidence implicating the claimant which might amount, objectively speaking, to the requisite grounds for reasonable suspicion. It is not, however, necessary to explore this possibility on the present appeal.”
[32]Chase also established authoritatively that post-publication events cannot be relied upon to establish the existence (or non-existence) of reasonable grounds to suspect, which must exist (or not) at the time of publication.[33]This is the background to the Musa King principles, approved by the Court of Appeal in that case ([2004] EWCA Civ 613) and never doubted since. They include the following:(1) “There is a rule of general application in defamation (dubbed the “repetition rule” by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation — not merely the fact that the allegation has been made.(2) More specifically, where the nature of the plea is one of “reasonable grounds to suspect”, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged.(3) It is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed the claimant to be guilty.(4) A defendant may (e.g. in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact — but that in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts.(5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the so-called “conduct rule”).(6) It has recently been acknowledged, however, by the Court of Appeal in Chase at [50]–[51] that this is not an absolute rule, and that for example “strong circumstantial evidence” can itself contribute to reasonable grounds for suspicion.(7) It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.”[34]Further consideration was given to King principle (6) (“strong circumstantial evidence”) by Eady J in Fallon v MGN Ltd [2006] EWHC 783 (QB) [2006] EMLR 19, and by Sharp J and the Court of Appeal in Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB). In Fallon, Eady J observed that this apparent exception “remains theoretical”. There seems still to be no example of its application in practice. That may be because in Miller, at [15]-[16],Sharp J, DBE, held that “strong circumstantial evidence … is merely an adjunct (rather than an alternative) to the conduct rule.” She endorsed the analysis of the New Zealand Supreme Court in APN & TVNZ v Simunovich Fisheries Ltd & Ors [2009] NZSC 93 [34]:
“Circumstantial evidence cannot contribute to reasonable grounds for suspicion unless it gives rise to an available inference concerning the conduct of the plaintiff. The circumstantial evidence suggestion was first made by Brooke LJ himself in Chase [at paragraph 51] where he said that a defendant could “rely on strong circumstantial evidence implicating [the plaintiff]” as grounds for reasonable suspicion. The circumstantial evidence could hardly have any value unless it “implicated” the plaintiff by means of an available inference as to the plaintiff’s conduct. That is why we have said that our elaboration represents something which was already implicit in the sixth principle.”
[35]In my judgment, the application of the above principles leads inevitably to the conclusion that much of what is objected to must be excised from the Defence as incapable of contributing to the proof of any relevant proposition, and hence irrelevant. Originally, the Defence sought to prove the truth of a meaning that the claimant “was the subject of an investigation” at the time of publication. In the circumstances, one can understand the relevance of particulars setting out a narrative of the investigation. That plea was however always vulnerable to being struck out. Conventionally, in the modern law, an allegation that someone is under investigation is only considered defamatory because of what it implies, namely that there are grounds for an investigation or for suspicion of guilt. A defendant is not entitled to defend a libel action by proving the mere fact of an investigation, because proof of that does not establish anything of relevance. Since the Meaning Judgment, the mere fact of an investigation can no longer be said to support the defence of truth.[36]The focus now has to be on what the claimant did or failed to do: her conduct. Parts of the defence – quite significant portions of it - do focus on the claimant’s conduct. Those parts are, rightly, not objected to. Some of the rest is legitimate narrative, or context, or linking material of the kind referred to by Hirst LJ in Shah. But that is not true of much of it; and some of what there is of that nature is at present unnecessarily (and unhelpfully) bound up with material that is objectionable. The particulars exemplify the risk that narrative or context may stray into the impermissible territory of third party opinion.[37]In some respects, the particulars go beyond that, and unequivocally rely on third party opinion as grounds to suspect. This is clear from paragraphs 13.2(2) and 13.2(4) of the Defence. These explicitly present as “reasonable grounds for suspicion” of fraud, “the fact that NHS Protect and NHS England fraud team considered” that the claimant’s alleged conducted needed investigation, and that the evidence was strong enough to justify obtaining further evidence, from patients (emphasis added). The defence relies also on what the NHS bodies “decided”, and what this “indicated” about the state of mind of the investigators. The summary of the defence case in these paragraphs faithfully reflects earlier and more detailed particulars of truth, contained in paragraph 12. Paragraph 12.35 is perhaps the clearest instance. It says this:
“The fact that the NHS saw fit to instigate an investigation into the allegations against the Claimant self-evidently demonstrates there were grounds to investigate, not least given that NHS England would only carry out an enquiry if there was ‘substantiated material in support.’”
[38]The principles I have set out make clear that such an approach is illegitimate. The beliefs, suspicions, decisions, and other evaluations of the NHS investigators in this case are no more grounds for suspicion than those of police or other investigators in other cases. The fact that someone “saw fit” to investigate cannot prove that they had reasonable grounds for doing so. Nor can the existence of a high threshold for investigation alter the position.[39]Ms Evans has valiantly sought to defend this aspect of the Defence, in reliance on the “strong circumstantial evidence” exception. There are several reasons why that argument cannot prevail. The most obvious, perhaps, is that the opinions, decisions, or evaluations of those who carry out an investigation into alleged misconduct are simply not “circumstantial evidence” at all. To characterise them as such would tend to undermine the conduct requirement altogether. Secondly, investigators’ opinions could not be described as “strong” circumstantial evidence without inviting precisely the kind of assessment that was ruled out by May LJ in Shah. Thirdly, of course, no conclusion about the claimant’s conduct is available as an inference from what the investigators thought about the matter.[40]Similar reasoning applies, but with greater force, to paragraph 13.2(5) and its related particulars. These seek to present the closure of the investigation as a reasonable ground for suspicion, relying on the fact that the closure was “unconnected to the merits”. That approach is topsy turvy and illogical. The mere fact that the merits were not relied on as a reason for closing the investigation tells one nothing about what the merits were, or even what they were considered to be. The closure of the investigation is also an illegitimate matter on which to rely as a ground for suspicion because it post-dates the original publication complained of. This aspect of the pleading therefore offends King principle (7). It cannot be justified on the basis pleaded in paragraph 14(a), because the meaning which was identified by Dingemans J (and which is the only one the defendant can properly defend as true) is tied to the time of publication of the unamended article. The justification offered in paragraph 14(b) is not sustainable on the facts.[41]There are other parts of the particulars under paragraph 12 that refer to expressions of opinion or states of mind of Ms Hooley, and Mr Guy (Assistant Medical Director of NHS England), neither of whom was an investigator. Paragraph 12.27 is a particularly striking illustration. It alleges that “Ms Hooley’s unassuaged concerns and suspicion amounted to grounds which objectively justified an investigation …”. Now that the defence is grounds for suspicion, the case would seem to be that the existence of suspicion coupled with the fact that it remains “unassuaged” affords an objective basis for that same suspicion. These parts of the defence are vulnerable to the same objection: what these people said or thought or suspected cannot be probative of grounds for suspicion, and it is not relevant but unhelpful to have it woven into the narrative.[42]That is all the more true of paragraph 12.31, which pleads that some unknown person “who was not Ms Hooley” made a call of unknown content to the NHS Fraud and Corruption reporting line “about the matter”. That is altogether too vague to be a legitimate ground for suspicion, on any view. The section on “Public statements by NHS England about the fraud investigation” is relevant only to proof that there was a continuing investigation and/or the nature of that investigation, and those are not now (if they ever were) facts capable of proving the truth of a relevant defamatory meaning.[43]The case which the claimant has pleaded by way of reply to illegitimate lines of defence cannot be used to justify those very same lines of defence. This is what is sometimes called a “bootstraps” argument. If these illegitimate lines of defence are removed, the claimant’s case in reply will have to go as well.[44]In principle, therefore, Ms Marzec is largely right. I will strike out the following parts of the particulars: 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 – 12.52, and 12.53 – 12.60 inclusive. Paragraphs 13.2(2), (4) and (5) must be struck out, for the reasons already given. Paragraph 14 must go, if only as a consequence of the striking out of all the post-publication facts in paragraph 12.[45]I will not strike out paragraphs 12.28 (first sentence), 12.32-12.34, 12.36, 12.37, 12.39, 12.40, 12.42 (first three sentences), 12.45, 12.46 or the second and subsequent sentences of paragraph 12.49, all of which seem to me to be permissible narrative and context. Paragraphs 12.44 and 12.48 (first six sentences), are not objected to, nor is the remainder of paragraph 12.49.[46]There may be parts of some of the paragraphs I have listed for strike-out that can properly be reintroduced (for instance, if 12.24 pleaded facts rather than Ms Hooley’s beliefs or recollections). Some tidying up may be necessary (for instance, the removal of the word “Accordingly” at the start of 12.28). But I believe this judgment should make clear enough what it is that needs to be done.[47]These conclusions will ensure that a viable defence of truth that focuses on the claimant’s conduct is set out in accordance with principle, in the context of an appropriate and sufficient narrative. It will bring clarity and focus to that part of the case, and eliminate potentially confusing irrelevancies. Those are all worthwhile objectives. But I am not at all sure what if any other benefits this process will have achieved for the litigation overall. The effect of my decision will be to require the re-pleading of both parties’ cases. There will at the very least need to be consequential amendments to the Reply, by way of deletion. But it is possible that the BBC will seek to amend its Defence by reintroducing parts of what I am striking out, by way of legitimate narrative, or in another guise. I am mindful of the other issues which I have outlined at the start of this judgment, at [11] and [12] above. But it is not appropriate to speculate about what might be done in that respect. Perhaps nothing. Ms Marzec may be right to say that this exercise will reduce the scope of disclosure and witness statements, or there may at least be less scope for dispute about those matters. Time will tell.[48]Although the claimant is overall the successful party so far, I am inclined to reserve the costs of the application until after the dust has settled, by which I mean after the disposal of any application for permission to amend the Defence. Any draft amendments the BBC proposes should be formulated promptly and clearly, and any dispute about their legitimacy resolved as swiftly as possible. If that can be done in the wake of this judgment, so much the better.[49]Since the statements of case are to be looked at again in any event, I add that, as I indicated in the course of argument, I am not at all persuaded that the claimant’s case on damage and distress is all relevant or, if it is, that it is necessary or proportionate to investigate such matters as what the BBC would have discovered if only it had engaged in the kind of investigation the claimant says it should have undertaken.[50]As I have held, the process of determining whether there were objectively reasonable grounds to suspect the claimant of fraud does not require an investigation of the actual NHS investigation. A decision on the BBC’s public interest defence may require an assessment of its actual investigation. But what the BBC would have found if it had acted differently is not a relevant consideration for that purpose: Economou v De Freitas [2016] EWHC 1853 (QB)[2017] EMLR 4 [139]-[140]. My present view is that the same is true of the process of deciding what compensation the claimant should receive, if successful. It does not or should not require an evaluation of a hypothetical investigation which the BBC did not undertake. It is hard to see how that process could help the Court decide how much actual damage the claimant has suffered, to her reputation, dignity, standing or her feelings.

Expert evidence

[51]The issue for decision is whether the experts’ reports should address only the first, or both of the following questions:(1) To explain the proper operation and regulation of the QOF programme as it applies to GP practices including the recording and reviewing of QOF codes in patient medical records and the relationship between the operation of the QOF system and remuneration of GPs;(2) Whether the Claimant’s use of the QOF system accorded with the proper operation described in (1) above and with the GMC’s recommended good practice.[52]As I indicated in the course of the hearing, my conclusion is that only the first question should be addressed. That is principally a question of fact, requiring expert knowledge of the system, though the word “proper” means that there is an element of opinion latent within it. But to set the experts the specific task of reporting on the claimant’s compliance with the “proper” operation of the QOF programme would seem to me a clear invitation to them to provide evidence on a question which is, on analysis, a question for the Court. It is a matter for the experts, how they express their opinions on the first issue. They are not prohibited from making reference to the GMC guidance. If the Court requires expert opinion on any issue resembling the second issue it can be relied on to ask for it. But even if such evidence is relevant and admissible, it is not reasonably necessary to seek it now.

Cited in 7 later judgments