In the case of Huda v Wells ([2017] EWHC 2553 (QB)) Nicklin J held that information submitted to the osteopaths’ regulatory body was protected by absolute privilege and could not be the subject of an action for defamation or malicious falsehood.
Nicklin J dismissed a defamation claim brought by osteopath Badrul Huda, and also declared that he should not have been given permission by a High Court Master to serve the claim on defendants in Jersey, out of the jurisdiction of the courts in England and Wales.
Mr Huda, who is also a colonic hydrotherapist and acupuncturist, had sought to sue four health professionals in Jersey, and the States of Jersey, over a safeguarding report sent to the regulatory General Osteopathic Council (“GOC”) raising concerns his treatment of a seriously anorexic woman, referred to as Patient A.
Mr Huda, who has practices in Jersey, Guernsey and Cornwall, issued proceedings in London for defamation and malicious falsehood, and obtained permission from a High Court Master to serve the papers in Jersey.
The defendants – who all work for Jersey Health and Social Services – applied to set aside the permission to serve the papers outside the jurisdiction, arguing that the alleged publications to the GOC were all covered by absolute privilege, or at the least qualified privilege, and that in any event Jersey was plainly the most appropriate forum for dealing with the case.
They also argued that claims relating to alleged publications outside England and Wales could not be included in a claim for which permission to serve out of the jurisdiction was required.
Nicklin J dismissed Mr Huda’s claim, holding that the communications of which he complained were protected by absolute privilege. The claim of malice was also “hopeless”, he said.
He also held that, had the case been able to go ahead, Jersey was clearly the most suitable forum.
The judge said that a claimant who wanted to serve out of the jurisdiction had to show that there was a serious case to be tried, that he or she had a real prospect of success.
In addition, section 9 of the Defamation Act 2013 meant the court had to be satisfied that England and Wales was clearly the most appropriate forum for the case.
But a claimant in a defamation or malicious falsehood claim who obtained permission to serve out of the jurisdiction had to limit the claim to alleged publications within England and Wales – a principle re-stated by the House of Lords in Berezovsky v Forbes Inc (No.1) ([2000] 1 WLR 1004)
Mr Huda’s only potentially viable cause of action was the publication of the report to the GOC -he had no real prospect of establishing publication to anyone else within England and Wales, the judge said,
adding that publications said to have taken place in Jersey could not be included in the claim, as they were excluded because of the Berezovsky principle.
On the privilege issue, Nicklin J said that in sending the report to the GOC the defendants were acting on a complaint made by Patient A.
Complaints to the GOC were protected by absolute privilege or immunity from suit – absolute privilege applied not only to statements made in court proceedings, but also to those made to regulatory bodies responsible for disciplinary proceedings, as long as those bodies were recognised by law and were operating in the public interest.
The GOC was clearly such a body – it was quasi-judicial in nature, its powers and operations being prescribed by statute and its over-arching objective being the protection of the public.
But even if complaints to the GOC were not protected by absolute privilege, they were certainly protected by qualified privilege, Nicklin J said.
In order to overcome that defence, Mr Huda would have to show a real prospect of establishing that the defendants had acted maliciously – that they published a statement and knew it was false, or were
indifferent to whether it was true or false.
Malice was a serious allegation and had to be pleaded with scrupulous care and detail – but Mr Huda’s pleadings did not reach that standard.
None of the defendants has first-hand knowledge of the facts about Mr Huda’s treatment of Patient A – they were all reacting to the complaint she had made, Nicklin J said.
“A plea of malice against those who are passing on information that they have received or reporting concerns arising from such disclosures has an unpromising foundation. It will be an unusual case in which an individual in such a position will know that the allegations made by the complainant are false.” [75]
There was nothing to suggest that any of the defendants did not believe Patient A was telling them the truth, and even less to give any basis on which to claim that they knew her allegations to be false, said the judge, adding that the evidence tended to prove “the positive absence of malice“.
In any event, Jersey was the most appropriate forum for the case – the parties were based there, Mr Huda had significant business and reputational interests there, and the witnesses were likely to be based there.
All the claims could also have been tried in Jersey, whereas the courts in England and Wales could only have dealt with statements allegedly published in England and Wales.
The judge concluded that Mr Huda should not have been granted permission to serve the claim form on the defendants in Jersey, and the order granting that permission would be set aside. The claim was dismissed.
This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.
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