England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE MORLAND
At the Royal Courts of Justice

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 17 October 2001

LORD JUSTICE MANTELL:

1. This is an appeal by a consultant, forensic psychiatrist against a finding that she had breached the confidence of a client. There is also a free-standing appeal against the order for costs.

Background.

2. Pamela Cornelius is a married lady in her mid-fifties. She has a degree in social science from Liverpool Polytechnic and for the last eleven years has been a teacher at the Sydney Russell School in Dagenham. So it may be taken that she is reasonably well educated and of at least average intelligence.
3. Mrs Cornelius had been recruited for her present job soon after the Sydney Russell School was formed. According to Mrs Cornelius in its early years the school experienced a number of difficulties which largely came about through staff rivalries and lack of discipline among the pupils. Mrs Cornelius blames the then head teacher. Happily, it seems that most of those difficulties have now been resolved and, again according to Mrs Cornelius, the school is prospering under a new head. However, that was not the position in 1995 and in the first half of that year Mrs Cornelius felt that the conditions under which she was required to work were beginning to affect her health. She contemplated resigning and bringing a claim for constructive dismissal. To that end she consulted solicitors. The firm she selected was E. Edward, Son & Noice of East Ham. The representative attending to her case was a Mr Turner. Mr Turner thought that Mrs Cornelius might be better advised to seek damages for personal injury but he was not for giving up the alternative claim altogether. As he explained to Mrs Cornelius he was a "belt and braces" man. As a first step he suggested that Mrs Cornelius should obtain a report from a consultant psychiatrist with a view to finding out whether Mrs Cornelius' health problems could properly be attributed to her conditions of employment. On 2^nd August 1995 Mr Turner wrote to Dr de Taranto, at that time the Senior Registrar in Forensic Psychiatry at Camlet Lodge Regional Secure Unit at Enfield Middlesex, explaining the concerns felt by Mrs Cornelius and including the following paragraph:

"As our client is a teacher, she is currently on vacation until 4^th September and she would therefore hope to attend for examination before then, as this would preserve her confidentiality."

Dr de Taranto wrote back by return setting out her charges and enclosing a form for Mrs Cornelius' signature giving permission for Dr de Taranto to have access to all relevant medical, psychiatric, probation and social work records. Mrs Cornelius never did sign the form but on 10^th August Mr Turner wrote to Dr de Taranto informing her that he hoped that the records of the general practitioner together with any documents retained by Mrs Cornelius would be available by the date of the consultation which, by that time, had been arranged for 30^th August.

4. On 30^th August 1995 the proposed consultation duly took place at the Royal Free Hospital in London. Mrs Cornelius attended together with her husband. Unfortunately, the general practitioner's records were not available. Indeed, Dr de Taranto did not write to ask for them until 5^th September. It is not entirely clear from the correspondence when the records did reach Dr de Taranto except that she must have had them some time before the preparation of her report, which was dated 29^th September.
5. There is serious disagreement between Mrs Cornelius and Dr de Taranto as to what was said during the consultation on 30^th August. It is a matter to which I shall have to return. For present purposes I need only say that Dr de Taranto rapidly came to the conclusion that Mrs Cornelius was suffering from a psychiatric condition which was likely to respond to treatment and she claims to have obtained the agreement of Mrs Cornelius to her case being referred to a consultant psychiatrist. Mrs Cornelius has always maintained that she agreed to no such thing and that when the matter was raised she made it plain that her purpose in seeing Dr de Taranto was to obtain a medico-legal report and that she had no wish either to be referred to or attend upon another doctor. However that may be, on 29^th September Dr de Taranto sent copies of her report to the Consultant Psychiatrist at Goodmayes Hospital in Ilford and also to Mr Turner and the general practitioner. Because Mr Turner was away on holiday Mrs Cornelius did not get to see the report until 10^th October. When she did she was furious. She considered that in sending the report to the consultant psychiatrist and to her G.P. Dr de Taranto had breached her duty of confidentiality and worse still, by reason of the contents of the report, had libelled her. Also she was not a little displeased with Mr Turner. Her displeasure was eloquently vented in her letter to Mr Turner of 10^th October. It includes the following passage:

"As stated, I do not know exactly where Ms de Taranto has obtained the appalling, distorted and incorrect information. She does state that in part she has consulted full records from my current G.P. Dr Patel. I have not been privy to the "full records" and neither, apparently, have you according to your statement in your letter. I hope there is no professional indiscretion involved here. I find it very disturbing that you state that Dr de Taranto says that she has used this as a part basis to her derogatory, incriminating report. Surely I should have been allowed to see Dr Patel's report before agreeing that it was sent anywhere and such incriminating judgements being made. I would also be obliged to know to which previous practitioner in Liverpool dating back to 1964 she refers to. I have not been privy to such information.

Mr Turner, I must remind you that I came to see you in good faith as a professional mature person for advice concerning legal aspects of my current employment situation. I did not come to you as a mentally deluded person subject to "mood disorder" treatment as Dr de Taranto states in writing her report."

6. The upshot was that Mrs Cornelius withdrew her instructions from E. Edward, Son & Noice and went elsewhere. Eventually on 9^th January 1998 and following the usual letter before action the new solicitors issued and served a writ and statement of claim claiming damages against Dr de Taranto for defamation and breach of confidence. Essential to her case under both heads was an averment that Dr de Taranto had sent her report to the consultant psychiatrist and to the G.P. without first having obtained her consent to do so and which in any event, had it been sought, she would have refused. The response of Dr de Taranto was to say that Mrs Cornelius had agreed to the suggestion that she be referred for treatment in consequence of which the report had been made available both to the consultant and to the G.P. With regard to the libel claim Mrs Cornelius relied upon material in the report recording the fact that she had broken into a chemist shop and stolen drugs when she was about nineteen years of age, that she had deliberately lied to Dr de Taranto during the consultation and that by reason of her mental condition she was unable to conduct her life in a balanced and fully rational way. The pleaded defence was that insofar as those statements were defamatory they were in fact substantially true.

The Trial.

7. The trial of the action took place during May 2000 at the Royal Courts of Justice. The judge was Morland J. Both sides were represented by Leading and Junior Counsel. Two days into the trial the defendant abandoned her defence of justification in relation to the reference in her report to the claimant having been convicted of burglary. That followed the discovery that the record at the relevant court had been misinterpreted by a junior employee of the defendant's solicitors. Instead the defendant relied on section 5 of the Defamation Act 1952. The main battle, however, was fought on the narrow issue of fact identified in the pleadings, that is whether the claimant had agreed to the suggestion that she be referred for treatment. The evidence was heard over six working days with witness statements standing as evidence in chief.
8. Dealing in her witness statement with the consultation the claimant stated:

"At the end of the fifty minutes she stated, to the utter surprise of both myself and my husband, that she considered that I was suffering from agitated depression and that she would refer me to my local psychiatric services. I told her this was neither necessary or appropriate and was not the object of my visit or the interview. When we left, I did not think that Dr de Taranto would actually carry out her stated intentions, in fact this would have been unthinkable, going on past experience of doctors I have met and, given the training received by doctors in Britain, with regard to the strict rules of confidentiality and the rights of patients (although in this case I was not a patient) to refuse treatment, etc."

9. In support of her contention that she had never agreed to being referred for treatment the claimant pointed out that such consent would be wholly inconsistent with her acknowledged reluctance to attend any appointment which might be made and further that her supposed consent was not referred to in any of the contemporaneous or near contemporaneous documents which had come to light in the trial process.
10. Mrs Cornelius was equally emphatic in her testimony. Leading Counsel put the following question:

"We know from Dr de Taranto's witness statement and we get the impression from her defence that you consented – and it may be that you consented reluctantly – but you consented to being referred for further psychiatric treatment at the Goodmayes or some other psychiatric department. Did you express reluctant consent or agreement in any form? Answer: I didn't express any consent whatsoever further or otherwise."

11. Earlier she had said that treatment had not been the object of the meeting and although it had been offered she had declined and left. Naturally her evidence was challenged in cross-examination but much of Mr Seabrook's efforts seem to have been concentrated on demolishing her credibility and a very good job he made of it too. Mr Cornelius gave general support to his wife. This is from his witness statement:

"Dr de Taranto said that she thought Pam might be suffering from "agitated depression" and that she should attend for treatment with a psychiatrist. Pam said that she thought this was inappropriate and that she had already made it clear that she believed that the source of any stress was her school and that she was against seeing any psychiatrist or taking any form of medication given that the problem was an external rather than an internal one.

I do not know where Dr de Taranto got the idea that Pam had consented to treatment. There was absolutely no suggestion that she would consent to any such treatment or referral. Dr de Taranto has stated herself several times in correspondence, as well as in the report, that Pam was "adamant" that she would not accept psychiatric treatment. Yet Dr de Taranto has also stated elsewhere, in contradiction to this, that Pam and/or myself consented to Pam receiving such treatment. At no time did either of us give consent, verbal or even implied. I would certainly have had no authority, in any event, to consent to Pam receiving treatment that she did not want as she was not a minor and not mentally incapacitated."

12. Mr Cornelius did not resile from that version either in chief or under cross examination.
13. Here is Dr de Taranto's version taken from her witness statement:

"Her husband had expressed significant concern including worries about suicidal ideation. I told Mr and Mrs Cornelius that I wanted to refer Mrs Cornelius to her local psychiatric service for treatment. I told them I wanted to ask the hospital to offer an out patient appointment. I advised her that she should consider taking time off work to go and see a psychiatrist but she initially told me that she couldn't take time off work. I then advised her that perhaps she should take some sick leave in order to obtain some professional help but she said that she could not do this. However, after further discussion and after intervention by her husband, she reluctantly accepted referral to a psychiatrist. Her husband said emphatically that he would encourage her to attend an outpatient appointment. He appeared relieved by the possibility of her receiving help. I did not advise Mr and Mrs Cornelius to which hospital exactly I would refer Mrs Cornelius as I was not yet sure which catchment area she fell within. I did explain that I would be ascertaining which hospital, including full details of her history and my examination. She did not object when I explained this to her and her husband."

14. In giving her oral testimony Dr de Taranto told the court that towards the end of the interview she had put down her pen and turning to face Mr and Mrs Cornelius had explained that she thought that Mrs Cornelius had a psychiatric condition which was susceptible to treatment. She had then gone on to say that she thought that the best way forward would be for Mrs Cornelius to attend a further appointment at her local general psychiatric service as they would be in the best position to make an assessment of what ongoing treatment might help her. She acknowledged that Mrs Cornelius was reluctant to attend any such appointment and had pointed out the difficulty she would have in getting time off work. And then her evidence continued:

"It is quite common, as I have said, that people do not want to attend psychiatric appointments and it is something that happens often. It is very often the case that by talking to the person and their loved ones together you can get them to agree or get them to see that they need to get some help. That was the strategy that I adopted there. I discussed with her and her husband, the three of us discussed together, and her husband eventually, after some minutes, persuaded her that she should agree that she could go…I correct that. He did not persuade her to go, he persuaded her to agree that I could refer her for the appointment. I made it very clear at that point that what I was referring her for was not necessarily any particular kind of treatment and was certainly not any kind of admission to hospital, but was an outpatient assessment to see what could be done. I certainly made that clear to them."

She was then asked in terms

"Would you have made any such referral if you had not believed that you had her consent? Answer: No. Mr Seabrook, I am a forensic psychiatrist and forensic psychiatry is very much involved with the law I have a particular interest in law and have studied law and I am very much aware of legal issues in my day to day work. I am very much aware – and Dr Fisher called our attention to this fact – that doctors are very much aware of issues of consent. I am very much aware of it and was at the time of this interview.

The reason I took time to persuade her that she needed help and to enlist her husband's help in doing that was because I knew it was important that consent was given. I would not have made a referral if her consent had not been given."

And later

"I would not have referred her without having her consent to referral. What I would have done if I had not got consent is, I would have spent longer, sitting in that room, trying to persuade her to give me the consent. As it was that last bit of the interview probably took five or ten minutes. I may have spent a much longer time trying to do so if I had not got her consent, but if I even after that time had not got it then I would not have made the referral, no."

The Judgment.

15. The learned judge took time to consider his judgment which was eventually handed down at Nottingham Crown Court on 30^th June 2000 to be followed by argument and the judge's order in relation to costs.
16. The judge held that the claim in defamation failed altogether. He found that Dr de Taranto had made good her defence of justification with regard to the telling of lies and Mrs Cornelius' mental state. Although the suggestion that she had broken into and stolen drugs from a chemist shop had not been made out and, indeed, had been abandoned, nevertheless in the light of his other findings the publication of the defamatory words had not done any significant additional harm.
17. On the question of consent to referral and publication of the report he found for the claimant. That, of course, involved the rejection of Dr de Taranto's evidence as to what had transpired at the interview. In reaching his conclusion he relied heavily upon various documents which made no mention of consent having been given when in the opinion of the judge it might have been expected that they would have done so.
18. On the issue of referral the judge's conclusions are first set out at paragraph 26 of the judgment:

"By the end of the interview the Defendant was in a hurry because of family commitments. Although I have no doubt that she did discuss a therapeutic referral, she made no note of the discussion nor of the fact, if it be correct, that the Claimant had given consent albeit reluctantly. In my judgment the Defendant now honestly believes that the Claimant gave consent because as she put it in her oral evidence "I am clear I couldn't have made a referral without consent". The Defendant made no note of the discussion about referral because, she said, she was concentrating on talking directly to the Claimant and her husband. It may well be as the Defendant indicated that Mr Cornelius supported her in her attempts to persuade the Claimant to consent to referral. In evidence the Defendant accepted that she had no direct consent for transmission of the medico-legal report on referral of the Claimant but said to the Claimant and her husband that she would send all the details. In my judgment the probable truth of the matter is that the Defendant, having a genuine and justifiable opinion that the Claimant was in urgent need of psychiatric treatment, had some hope that the Claimant despite her reluctance to consent would attend an appointment if arranged for her in view of her husband's helpful attitude. The Defendant's later perusal of the medical records would have confirmed her opinion that the Claimant was in need of urgent psychiatric treatment. But if the Claimant wished to soldier on without psychiatric help, as she has managed to do and continue teaching, it was not for the Defendant to arrogate to herself the decision. Moreover she was not her doctor."

He then went on to refer to the various documents which she considered to be consistent with his conclusion and inconsistent with consent having been given. At paragraph 37 he said:

"Crucial factual questions arise as to what happened at the end of the interview. Did the claimant agree to referral to a consultant psychiatrist for at least therapeutic assessment? Did the claimant give consent for the medico-legal report, which was not yet in existence and which was to be based substantially on her G.P. records to which she had not consented the defendant having access, being sent to her G.P. or the Consultant Psychiatrist. Having heard and considered the oral evidence in particular of the Defendant in the light of the contemporary or near contemporary correspondence my unequivocal conclusion is that the answers to both questions is NO."

19. More particularly with regard to the transmission of the medico-legal report the judge said this at paragraph 58:

"Even assuming that the Claimant had consented to her referral as a patient to her G.P. or a Consultant Psychiatrist I am entirely satisfied that the Claimant never did nor never would have consented to the medico-legal report being sent to her G.P. or a Consultant Psychiatrist. The defendant never asked claimant for her comments on the report, never showed it to her and without her consent sent out copies to her G.P. and the Consultant Psychiatrist. In my judgment all that the defendant needed to do on a therapeutic referral was to state that she had interviewed the claimant and perused her medical records and had come to the conclusion that she was in urgent need of psychiatric treatment because she was suffering from an episode of agitated depression."

A little later he referred to the defendant's contemporary hand written note which records Mrs Cornelius as saying that she didn't have good relations with her G.P., wouldn't go to a referral because she couldn't take time off and wouldn't take sick leave in spite of Dr de Taranto's advice. The judge then states:

"This note is of crucial importance both on the issue of whether the claimant consented to referral and also transmission of the yet unwritten medico-legal report to G.P. and Consultant Psychiatrist. In my judgment it is inconsistent with the defendant's case that the claimant agreed to referral and more importantly transmission of the report to G.P. and Consultant Psychiatrist."

20. The judge went on to award damages of £3,750.
21. On the question of costs the judge took account of the fact that Mrs Cornelius had failed in her libel claim. Whilst acknowledging that the claim in libel and the claim in breach of confidence arose out of the same basic facts, that is to say publication without consent and, even had Mrs Cornelius limited her claim to one of breach of confidence, that it was inevitable that much of the evidence in particular relating to the interview would have still have been introduced in the end, after considering all submissions made on both sides he came to the conclusion

"Without being unfair to either side what I should do in the exercise of my discretion is to award a fixed sum by way of costs to the claimant, the effect of which would be that any orders for costs already made in favour of the defendant would be taken into account, and the order that I make is that the claimant shall have costs to be paid by the defendant fixed in the total amount of £45,000."

We are told that £45,000 would represent approximately one third of the claimant's costs.

The Appeal.

22. Dr de Taranto now appeals against the judge's holding on liability on the ground that his rejection of her evidence on the question of consent was unwarranted, not to say perverse, given his assessment of her as a witness. She appeals the order as to costs on the basis that it does not fairly reflect the outcome of the trial or the time expended on resolving the various issues.
23. As at the trial Dr de Taranto has been represented by Mr Seabrook QC and Miss Marzec. Although the Court Office had been informed otherwise, until the first morning of the hearing of the appeal the members of the court were under the impression that Mrs Cornelius would be represented as formerly by Mr Garnier QC and Mr Atkinson. That has not been the case. It seems that Mrs Cornelius has had a difference of opinion with her most recent solicitors in consequence of which she has represented herself. Sadly she has shown little aptitude for the task being unable to focus on the issues or otherwise assist the court in any meaningful way. More happily, and as I would expect, Mr Seabrook has not sought to take advantage of the situation, rather has he brought to the attention of the court those matters which might be thought to be of some help to Mrs Cornelius. And, of course, we do have Mr Garnier's and Mr Atkinson's skeleton argument.

Liability.

24. The judge formed a very favourable view of Dr de Taranto and a most unfavourable one of Mrs Cornelius. Here are some selections from his judgment. Of Mrs Cornelius:

"It is a manifestation of her psychological-makeup that her determination to right the wrongs, as she sees them, done to her has become obsessional with the result that she approaches many aspects of the case with a lack of balance, realism and objectivity. Her obsessional attitude makes it difficult for her to distinguish between right and wrong and truth and falsehood. She is unable to accept in fairness to the Defendant that her mistake was well meaning and not malevolent."

In dealing with the question of costs the judge said

"My judgment that I have handed down is highly critical of the claimant. In that judgment I said that the claimant lied when being interviewed by the defendant for the purposes of a medico-legal report and I also came to the conclusion that she deliberately lied to me."

Of Dr de Taranto the judge said that she was

"A very impressive witness who answered questions fairly, professionally and with dignity. In general where her evidence conflicts with that of the Claimant and her husband I accept her evidence. I utterly reject any suggestion that she has been deliberately dishonest, guilty of concoction of evidence or party to any plot with Mr Turner to have the claimant "sectioned" so as to gain control of the claimant's property."

The judge also made it perfectly clear that he regarded Mr Cornelius as being no more than the creature of his wife and had been drilled into following the party line.

25. Given those findings it is said that it is difficult to understand how the judge came to prefer the evidence of Mrs Cornelius and her husband as to what was said at interview. The evidence which Dr de Taranto gave was claimed to based upon a clear recollection rather than "usual practice". That the contemporaneous or near contemporaneous documents nowhere record the fact of consent is perhaps surprising but that circumstance in itself, once the evidence of Mr and Mrs Cornelius is discounted, is insufficient to support the judge's conclusion.
26. For my part I have some difficulty in following the route by which this most experienced judge arrived at his finding. It may be that he intended to say that, whereas in general he preferred the evidence of Dr de Taranto, on this particular question he accepted the evidence of Mrs Cornelius and her husband supported as it seemed to him by what she was saying in writing near to or at the time and what Dr de Taranto was equally failing to mention. However it seems to me that even that approach would be unwarranted in the light of the judge's assessment of Dr de Taranto as a witness. There is no inconsistency between Dr de Taranto's evidence and her omission from the contemporary documents of any mention of Mrs Cornelius' express consent to a referral: rather what she was saying in those documents was that Mrs Cornelius might well not attend her consultant's appointment despite encouragement by her husband to do so. The fact that Mrs Cornelius had consented to an appointment being made was implicit in all that Dr de Taranto was saying in the documents. It follows that somewhat reluctantly I find myself, unable to uphold the judge on that particular finding.
27. However, as the judge went on to say, the matter of crucial importance is not whether Mrs Cornelius consented to her case being referred but whether she consented to the dissemination of the medico-legal report for which she was paying and which she had not yet seen. Unlike the first question this did not turn on credibility. Of course the question of consent to referral was not irrelevant on this matter it being Dr de Taranto's case at trial and her case on appeal that it is implicit in a consent to referral that the patient agrees to the passing on of all relevant material. So the judge was right to approach the issue on the assumption (contrary, of course to his earlier finding) that consent to referral had been given. Even so his reasons for finding that there was no consent to the medico-legal report being made available to the G.P. or Consultant Psychiatrist appear to me to be sound. Here was a document prepared primarily with a view to assisting in the prosecution of a civil claim. Although it certainly included matter which would have been of assistance to any doctor charged with the treatment of Mrs Cornelius, at the same time it contained information which could have no conceivable bearing upon such treatment. It also contained statements which, whether true or not, were acknowledged to be defamatory of Mrs Cornelius. That material had not been available at the time of interview and had not been offered to Mrs Cornelius for comment. In my judgment what was required before the transmission of this report to any third person was the express consent of the client. In deed, in the most unusual circumstances of this case it would have been wise to obtain a specific written consent. There could be no professional objection to Mrs Cornelius having sight of the report because it was sent to her solicitor at the same time that it was sent to the G.P. and the Consultant. Accordingly I would hold that the judge was entirely right in his conclusion on this aspect of the case and the appeal against his finding on liability must fail.

Costs.

28. Although I would uphold the judge on liability I have, with some trepidation, come to a different conclusion as to the resolution of what has been termed the crucial question of fact. Even the most cursory review of the evidence in the case shows, as does the judgment, that the issue occupied a significant proportion of the six days of evidence. Even on the judge's undisturbed findings the claimant lost "substantially in a major part of her claim". It may appear, therefore, that whilst unappealable the original order was somewhat over generous. So without in any way tampering with the exercise of the judge's discretion I would feel that some adjustment to the costs order is called for. In my judgment it would be appropriate to make no order as to the costs of the trial and to that extent I would allow the appeal.

LORD JUSTICE LATHAM: I agree.a

LORD JUSTICE SIMON BROWN: I also agree.

ORDER: Appeal on liability dismissed. Appeal on costs allowed, to the extent that in place of the order for costs below there will be substituted an order that there should be no order for costs below. There will be no order for costs on the appeal. (Order not part of approved judgment)