A Spanish GP based in Hastings, Dr Jose Antonio Serrano Garcia, has won his libel action against the Daily Mail based on an April 2012 column by Kelvin MacKenzie. He was awarded damages of £45,000.
The article had the headline “A whole year of hell, thanks to a foreign doctor’”. In it Mr MacKenzie had written that the DVLA had revoked the licence of bus driver Kevin Jones on the basis of the letter from Dr Jose Antonio Serrano without any further medical tests to check if Mr Jones was drinking heavily.
In a judgment handed down today at the Royal Courts of Justice (Garcia v Associated Newspapers [2014] EWHC 3137 (QB)) Mr Justice Dingemans held that the article bore the following five defamatory meanings
(1) “Mr Jones suffered a nightmare when he wanted treatment for swollen legs because Dr Serrano had written to the DVLA to have Mr Jones’ licence revoked for persistent abuse of alcohol when it was wrong and inappropriate to do so: (1) because Dr Serrano had been told that Mr Jones might have a pint or two after work, and a couple of spirits if he went out with his wife and friends at the weekend; (2)because of the language barrier Dr Serrano had wrongly understood that Mr Jones drank that amount every night and then refused to listen; and (3) without any research into whether Mr Jones persistently abused alcohol such as liver or blood tests, and without any other evidence whatsoever. The DVLA had relied on Dr Serrano’s report and revoked Mr Jones bus and personal driving licences.” [22]
(2) “Dr Serrano reported Mr Jones to the DVLA and it was wrong and inappropriate to do so because it was a breach of patient confidentiality.”[23]
(3) “Dr Serrano unreasonably refused to persuade the DVLA to revoke its decision in circumstances where blood, liver and kidney tests, when carried out by another doctor, showed that Mr Jones did not persistently abuse alcohol, and where tests subsequently carried out by an independent doctor brought in by the DVLA showed no trace of persistent abuse of alcohol“. [24]
(4) “Dr Serrano pretended not to be able to talk about Mr Jones’ complaints on the basis of patient confidentiality, when an appropriate consent form had been sent through“. [25]
(5) “Dr Serrano’s conduct was shocking“. [26]
In relation to the first defamatory meanings, the Judge held that
Dr Serrano was not told at the consultation that Mr Jones might have a pint or two after work, and a couple of spirits if the went out with his wife at weekends. Dr Serrano was told that Mr Jones would drink half a bottle of Bacardi at night on some nights. Dr Serrano had not misunderstood that Mr Jones drank that amount every night, and his contemporaneous notes show that. There was no language barrier. Dr Serrano had not refused to listen to Mr Jones. Dr Serrano had carried out relevant research into Mr Jones persistent abuse of alcohol by looking at his previous reports of excessive drinking in 2006 and 2008, and by noting his elevated Gamma GT readings, and by diagnosing gout which had been caused by excessive alcohol intake. There was considerable evidence to justify Dr Serrano’s actions. In these circumstances it was not wrong and inappropriate for Dr Serrano to write to the DVLA. [184]
In relation to the second defamatory meaning, the Judge held that Dr Serrano was entitled to report Mr Jones to DVLA and it was not wrong or inappropriate for him to do so [185].
In relation to the third defamatory meaning, the Judge held that Dr Serrano did not unreasonably refuse to persuade the DVLA to revoke its decison – which the Judge found to have been a correct and sound decision [223]
In relation to the fourth defamatory meaning, the Judge found that Dr Serrano was genuinely and properly concerned about patient confidentiality [256].
Finally, the fifth defamatory meaning was a comment but was not based on facts which were privileged or shown to be true [258].
As a result, the Judge found that
the article was defamatory of Dr Serrano. The defamatory statements made about Dr Serrano have not been justified, and the facts and matters on which the comment was made, have not been proved [259].
However, the Judge did note that
that there were relevant omissions to include material in the letter dated 11 February 2011 sent to the DVLA, but these findings do not satisfy the provisions of section 5 of the Defamation Act. This is because there are important differences between being wrongly accused of reporting someone without evidence to show persistent abuse of alcohol on the one hand, and it being said that the reporting letter, which was properly sent, should have contained more information. [260]
The Judge accepted Dr Serrano’s evidence as to the effect of the article on him and that his resignation was in part influenced by the article.
The Judge refused to make an award of aggravated damages and took account of the matters which were proved to be true. He concluded
“Taking all these matters into account including the effect of this judgment rejecting the defence of justification and the omissions from the letter dated 11 February 2011, and attempting to avoid the over elaborate analysis which Cairns v Modi disapproved, I come to an award of £45,000 for damages for libel” [306].
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