England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISON
Gray J.

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

Lord Justice Keene :

1. This appeal raises the issue of the degree of precision required when a defamation claim is pleaded, especially in the new regime of the Civil Procedure Rules. The appellant, Dr. Best, is a consultant psychiatrist who, until March 1998, practised at the Charter Nightingale Hospital ("CNH") in London NW1. He resigned in that month and has since gone to work elsewhere.
2. The CNH is owned by the first respondent. The second respondent, Dr. Isaacs, is the Deputy Medical Director of that hospital. In April 1999 the appellant issued proceedings against the respondents and certain other individuals, who are no longer involved in the action, for slander published in April 1998 "and thereafter". Regrettably the writ was not then served until mid-August 1999. The original Particulars of Claim were clearly defective, but permission was granted to amend. When the respondents appealed against that order, re-amended Particulars of Claim were served, and before the judge the issue was whether those re-amended Particulars of Claim disclosed a reasonable cause of action. Mr. Justice Gray on 20 June 2000 decided that they did not. He allowed the appeal and struck out the Particulars of Claim. Dr. Best now appeals against that order.
3. It is impossible to deal with this appeal without setting out substantial parts of the re-amended Particulars of Claim. The crucial part is paragraph 3 and its sub-paragraphs. Paragraph 3 begins thus:

"3. On dates and at times presently unknown to the Claimant pending disclosure of documents and/or an application to the Defendants for further information and/or exchange of witness statements, from about 21 April 1998 onwards the Defendants and/or individuals acting on behalf of the Defendants orally published words defamatory of the Claimant calculated to disparage him in his profession as a medical doctor and psychiatrist. Pending the taking of the aforesaid procedural steps, (i) unless a publisher or publishee is expressly referred to by name, his or her identity is as yet unknown to the Claimant, and (ii) the best particulars of publication which the Claimant can give are as follows"

4. There then follows a total of nine separate allegations of slander. Some of those Mr. Nicklin, for the appellant, did not seek to defend in the course of argument. The case really centres on six of the nine pleaded allegations. Sub-paragraphs 3.1 to 3.4 read as follows:

"3.1. On or about 21 April 1998, Mrs. Hodgkinson and other managers and/or administrators of CNH acting with her authority and/or on her behalf orally published to doctors at CNH, including the Second Defendant, Dr Stonehill, Professor Cawley and/or Dr Silvio Benaim, a consultant psychiatrist at CNH, and/or nurses and/or other hospital staff at CNH words to the effect that the Claimant might be mentally unwell.

3.2. On 21 April 1998, the Second Defendant, Dr Stonehill and Professor Cawley held a meeting at CNH at which each of them orally published to one another words to the effect that the Claimant's mental health was impaired; that his mental health was so seriously impaired as to warrant concern that he presented a safety risk to himself and to patients; that he required immediately a period of sick leave and urgent medical attention in respect of state of his mental health; that he was unfit to continue practising as a doctor; that in these circumstances, he would be relieved of the care of his two remaining in-patients at CNH with immediate effect, his admitting privileges at all hospitals owned by the First Defendant would be suspended forthwith, and he would be excluded from the CNH.

3.3 On or about 22 or 23 April 1998, Mrs Hodgkinson and/or other managers and/or administrators at CNH acting with her authority and/or on her behalf orally informed members of hospital staff at CNH, including doctors, members of the nursing staff and counsellors, that the Claimant no longer worked at CNH and was unable to see any in- or out-patients at the hospital because he was mentally ill. In particular, a counsellor at CNH named Maree Cary was informed that the Claimant was "too unwell to consult anywhere ... not having in-patients anywhere". It is properly to be inferred from the aforesaid conduct of Mrs. Hodgkinson that the Second Defendant and/or Dr Stonehill and/or Professor Cawley had orally published or caused to be published to her the words or words of like effect to those set out in paragraph 3.2 above

3.4. On or about 22 or 23 April 1998, Carol Ball of CNH and/or other managers and/or administrators at CNH acting with her authority and/or on her behalf orally communicated to therapists working at CNH the information set out in paragraph 3.3 above. It is properly to be inferred from the aforesaid conduct of Ms Ball that Mrs. Hodgkinson and/or the Second Defendant and/or Doctor Stonehill and/or Professor Cawley had orally published or caused to be published to her the words or words of like effect to those set out in paragraph 3.2 above."

Sub-paragraphs 3.5, 3.6 and 3.7 are broadly similar to the earlier allegations.

Sub paragraphs 3.8 and 3.9 are the only other allegations which it is necessary to set out. They state:

"3.8. On a date presently unknown after 21 April 1998, at a meeting between Dr Stonehill and Professor Gerald Russell, Director of the Eating Disorders Unit at the Hayes Grove Priory Hospital, at CNH, Dr Stonehill orally published to Professor Russell words to the effect that he and a number of his consultant colleagues at CNH had for some time been concerned about the state of the Claimant's mental health; that he and his consultant colleagues had been so concerned about the Claimant's mental health that they had invoked the "Three Wise Men" procedure; that their conclusion had been that the Claimant was probably unfit to carry clinical responsibility by reason of the state of his mental health; that one of the "three wise men" had advised the Claimant to seek medical treatment and the Claimant had declined to do so; that the Claimant would be reported to the General Medical Council on the grounds of being mentally unwell and unfit to practice.

3.9. On a date presently unknown after 21 April 1998, Dr Adrian Winbow, Medical Director of the Eating Disorders Unit at the Hayes Grove Priory Hospital, was orally informed by an individual employed by and/or acting on behalf of CNH or by a person who had been advised by such individual that the Claimant was suffering from a paranoid illness."

5. The principal issue before Mr. Justice Gray was whether these allegations were pleaded with sufficient particularity. He dealt extensively with the leading authorities on this topic and rejected a submission on behalf of Dr Best that it is enough for a claimant to plead the gist or effect of the words. The judge pointed out that if that argument were right, it would often make it impossible for a defendant to decide whether to plead that the words were not defamatory at all, or to allege that they were either justified or fair comment. So the actual words alleged to have been used by the defendant were of great importance. Mr. Justice Gray said this about the approach to be adopted:

"25. It appears to me that the obligation on a claimant pleading a claim in slander is to achieve the degree of particularity which is referred to in British Data Management in the passage from the judgment of Hirst LJ which I have read; namely, that the words must be set out with "reasonable certainty", by which I take him to mean with "reasonable precision". It is not permissible for a claimant to plead no more than the effect or gist of the words in the hope that disclosure may enable him to cure the inadequacies of the pleading."

The judge rejected a submission that the Civil Procedure Rules P.D.53 intended to alter that approach. However, he acknowledged that a claimant might sometimes be unable, through no fault of his own, to provide at the outset the exact details of what had been said and that the courts had in some instances been prepared to assist such a claimant where they were satisfied that the claim was not merely speculative or guesswork but was based on a sub-stratum of fact. For this reason, the judge looked at such material as the claimant could make available, so as to see whether the claims were more than mere guesswork. He concluded that the pleading was properly to be described as speculative and rejected the suggestion that its deficiencies should be made good by an application for interrogatories or further information at a later stage. Hence he struck out the re-amended Particulars of Claim.

6. The main thrust of the appellant's case before us has been based on the authorities as they stood before the Civil Procedure Rules came into force. It is submitted that those authorities do not require the Particulars of Claim to plead the exact words alleged or even to set them out with reasonable certainty. Mr. Nicklin contends that to treat those authorities as so requiring is a misinterpretation of what was said by this court in British Data Management plc v. Boxer Commercial Removals plc (1996) 3 All E.R. 707 at 717 b-g. When the court there referred to 'reasonable certainty', it was dealing with the nature of the defamatory statement, rather than with the words alleged to have been used.
7. The relevant passage in British Data Management in the judgment of the court delivered by Hirst, LJ, reads as follows:

"Having regard to the above authorities, we do not find it possible to accept Mr. Nicol's first submission that it is invariably necessary for the plaintiff to plead or allege verbatim the exact words of which he complains, provided, as stated by Denning LJ in Collins v. Jones, he sets them out with 'reasonable certainty' which is, in our judgment, the correct test.

It is important to bear in mind the purpose of a statement of claim. It is to enable the defendant to know the case that he has to meet so that he can properly plead his case, with the result that the issues are sufficiently defined to enable the appropriate questions for decision to be resolved. In a libel case the first question is whether the words are defamatory of the plaintiff, which depends on their meaning; unless the plaintiff succeeds on this fundamental issue, his action will fail. Next, a number of questions may arise on defences which the defendant may wish to raise, for example, a plea of justification, which depends on whether the words are true or false, and similarly mutatis mutandis in the case of a plea of fair comment.

This purpose will not be achieved unless the words are pleaded with sufficient particularity to enable the defendant not only to understand what it is that the plaintiff alleges that they meant, but also to enable him to decide whether they had that meaning and, if not, what other meaning they had or could have....

This is why there must in all cases be reasonable certainty as to the words complained of, or in the case of a quia timet injunction what words are threatened, and normally this will require the pleading of the actual words or words to the same effect. Only on this basis can the case proceed properly through the interlocutory and pleading stages to trial and then to the formulation of the questions to be put to the jury and a proper answer to them."

It seems to me to be entirely clear from that passage that, when this court was referring to 'reasonable certainty', it was referring to the words used. It is the words alleged to have been used which must be set out with reasonable certainty, and they must be set out in the Particulars of Claim so that the defendant can decide how to plead his case. The reasons for this requirement are those given by Hirst, LJ in that passage, in particular the fact that in defamation actions the words used or alleged to have been used are basic to the cause of action. As was said many years ago in Harris v. Warre (1879) 4 CPD 125 by Lord Coleridge, CJ:

"In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged which is the fact on which the case depends." (page 128; emphasis in the original)

A crucial question in defamation actions is always whether the words used have a defamatory meaning, and it is therefore impermissible to plead the meaning but not to plead the words used. The words may be capable of bearing more than one meaning, and in such circumstances the claimant must plead the meaning he asserts that the words have. But the defendant may wish to contend that that is not how the words would reasonably be understood. He may also wish to try to justify any defamatory allegation, but he cannot make that decision until the claimant sets out the allegations which it is said he published. It follows that it is not enough for a claimant to plead the gist of what was allegedly said or written; he must set out the words with reasonable certainty, a test long established: see Collins v. Jones (1955) 1 QB 564, per Denning LJ at 571h – 572a.

8. Therefore it will not normally suffice for a claimant to plead that the defendant made a statement "to the effect that" the claimant was a liar or had behaved in a discreditable way. To do that, which is the form of pleading to be found in sub-paragraphs 3.1, 3.2, 3.4, 3.6, 3.7 and 3.8 of the present Particulars of Claim, is to plead the meaning of the words used, and one does not know whether that meaning derives from inference or not. Such a pleading was rejected, rightly in my view, by the court in Rosen v. Alberta Motor Association Insurance Co. (1994) 1 WWR 719.
9. Mr. Nicklin accepted that the respondents in the present case were not in a position where they could plead to the Particulars of Claim as that document currently stands. He also acknowledged that the liberal use of the "and/or" formula to be found in many of the allegations might lead to the court striking out those allegations. That led him to his next submission, which has a more substantial legal basis. It was submitted that in certain circumstances the court will not strike out a defamation claim, even where the claimant cannot state with reasonable precision the words sued on. That exception to the normal rule arises, it is said, where (1) the claimant does not know the exact words and can only ascertain them by extracting them from the defendant; (2) the court is satisfied that he is acting in good faith and not on a fishing expedition; and (3) the court is also satisfied that the claimant does have a legitimate cause of action. In support of that proposition, reliance is placed on Atkinson v. Fosbroke (1866) LR 1 QB 628; Campbell v. Scott (1890) 14 Ontario PR 203; and Russell v. Stubbs (1913) 2 KB 200. In such circumstances, the court will allow the action to proceed, allowing the claimant to administer interrogatories or, under the new Civil Procedure Rules regime, ordering the defendant to give additional information under Rule 18.1. The defendant would not need to plead his defence in the meantime. It is by the time of trial that there has to be a clear pleading of the words alleged to be used, not at this earlier stage.
10. For the respondents, Mr. Parkes accepts that there can be exceptional cases where the court will assist a claimant who does not know with reasonable certainty the words used. It is acknowledged that the courts have to strike a balance between the need to exclude speculative claims and the need to assist genuine claimants who cannot properly formulate their claim. If the claimant can show by uncontradicted evidence that the defendant has on a particular occasion made an allegation of a definite character against him and done so to or in the presence of certain persons, then the court may allow the claimant to interrogate the defendant as to the actual words used or to seek further information from him as to those words. But, submits Mr. Parkes, that is not permissible where the claim is based upon guesswork as to the making of a defamatory statement and that is the situation in the present case.
11. That there is a line of cases establishing an exception to the normal rule was recognised by the Court of Appeal in British Data Management (see page 714g to 715 b), though the court emphasised the "narrow limitations of this principle". Having considered the authorities, it seems to me that the exception is indeed a narrow one which will arise only rarely. In Atkinson v. Fosbroke, it was pleaded that the defendant had said on a particular occasion in the presence of an identified person that the claimant had committed forgery, but the exact words indicating the form of the forgery were not known to the plaintiff. The court allowed interrogatories to ascertain the exact words used, Cockburn, CJ saying that the court would exercise that power.

"only in favour of a party who really has a case, but is obliged to resort to the other side to make out that case. We ought not, therefore, to allow what have been called mere fishing interrogatories".

He held that it had been shown that the defendant had made a slanderous imputation of a definite character against the plaintiff. (page 631)

12. In Russell v. Stubbs, it seems that the exact words used were known to the plaintiffs, since they were contained in a report in the possession of the plaintiffs. The words were pleaded and a particular instance of publication of the libel was pleaded, specifying the person to whom it had been published. All that was not known was the full extent of publication, and discovery was ordered to ascertain that. The court emphasised that there was prima facie evidence of a cause of action. In Barham v. Lord Huntingfield, (1913) 2 KB 193, that case was distinguished on the basis that in it there had been uncontradicted evidence of publication to persons unknown to the plaintiffs. In Dalgleish v. Lowther (1899) 2 QB 590, interrogatories were allowed, but in that case the statement of claim set out the words sued on. Campbell v. Scott, a decision of a Divisional Court in Ontario, may go somewhat further than some of the English authorities in allowing discovery in a slander action where the plaintiff could not state with sufficient particularity the statements made by the defendant. The court had an affidavit from the plaintiff stating that he knew that the defendant had circulated reports that he had as a medical practitioner caused the death of a named patient through negligence. It seems that that statement by the plaintiff was based on certain evidence set out in the affidavit, but the strength of that evidence is unclear from the report. There may have been powerful evidence indicating that the defendant had made such an allegation about the plaintiff.
13. As a result of this analysis, I conclude that the exception to the normal rule only operates where the claimant can satisfy the court that he has a good cause of action, because there is credible evidence that the defendant on a particular occasion and to a particular person made a defamatory statement about him of a specified nature. Unless there is evidence that there is a good cause of action in defamation, an order for further information under Civil Procedure Rules Part 18 would indeed be a fishing expedition. But if the claimant can meet that test, then the precise words may be ascertained by an order for further information, so that both sides may then have the benefit of a properly pleaded claim.
14. In seeking to show that this is not a fishing expedition, Mr. Nicklin relies on two types of evidence. First, he emphasises that the allegations in the Particulars of Claim are verified by a statement of truth as required by Civil Procedure Rules r.22.1. I do not find that persuasive. Dr. Best has filed a witness statement in these proceedings, and it is clear from that statement that he was not present on any of the occasions in question, so that he is in no position to give direct evidence as to what was said. Nor does his statement indicate that he has in his possession witness statements or even a single witness statement from a person who was present on any of the occasions when it is alleged that defamatory remarks were made. It simply is not enough for a claimant to assert in a claim that words to a particular effect were spoken, even on a specific occasion, when he is not in a position to establish that. That is not evidence of a prima facie cause of action.
15. Secondly, reliance is placed on certain documentary material. There are three documents in all. The first, which was before the court below, is a letter from Professor Russell, the person to whom the words referred to in paragraph 3.8 of the Particulars of Claim were allegedly published. In the letter, dated 17 November 1999, Professor Russell does refer to Dr Stonehill having expressed concerns about Dr Best's state of health and that he had been advised to seek medical treatment. Nowhere in the letter does Professor Russell describe Dr Stonehill as expressing concern about Dr Best's mental health, as is alleged by paragraph 3.8. The expressed concern was about him being "unwell", which is not normally to be regarded as a defamatory statement.
16. During argument Mr. Nicklin put before us two further documents which had not been before Mr. Justice Gray. We looked at these, because we were conscious that this was an appeal against a striking out order. One of them, a letter written by Dr Stonehill to the General Medical Council, dated 22 April 1998, does indicate that Dr Stonehill was concerned at that time about Dr Best's behaviour, because he had (it was said) become arrogant, confrontational and threatening. This letter forms no part of any of the alleged causes of action set out in the Particulars of Claim. It may indicate that Dr Stonehill was concerned about Dr Best's state of mind at that time – he may even have thought that Dr Best had psychiatric problems – but it provides no evidence that Dr Stonehill made oral statements on any occasion that Dr Best was mentally ill. Defamation is not concerned with defamatory thoughts but with the publication, orally or otherwise, of defamatory material.
17. The other document is a letter dated 19 June 2000, from Dr Winbow (the publishee referred to in paragraph 3.9 of the Particulars of Claim) stating that he was told by Professor Russell in April 1998 that Mrs. Hodgkinson had reported that Dr Best was paranoid and unfit to practise psychiatry. That evidence in June 2000 is expressly contradicted by the November 1999 letter from Professor Russell, who refers to his visit to the CNH and to a conversation with Mrs Hodgkinson, but cannot recall any comment by her about Dr Best's health. He describes her attitude as having been one of friendly concern towards Dr Best.
18. For my part, I do not accept that Dr Best can establish that he has a good cause of action, in the pursuit of which the court should assist him so as to ascertain the exact words used. Mr. Justice Gray was right to regard such a course of action as a fishing expedition, designed to discover whether there was a cause of action at all. The situation is akin to that facing the court in the British Data Management case, where it was said that:

"it is not permissible to put forward (as in the present case) a wholly vague allegation in the hope that discovery will later come to the rescue; if the latter was permissible, Collins v. Jones would have undoubtedly been decided the other way" (p. 718b)

19. In the appellant's written skeleton arguments, some weight was attached to the provisions of the Civil Procedure Rules, in particular to paragraph 2.4 of the Practice Direction to Part 53. That provides:

"In a claim for slander the precise words used and the names of the persons to whom they were spoken and when must, so far as possible, be set out in the particulars of claim, if not already contained in the claim form."

The argument presented was that the Civil Procedure Rules was an entirely new procedural code, with the result that the pre-Civil Procedure Rules authorities needed to be revisited. Reliance was placed on Biguzzi v. Rank Leisure plc (1999) 1 WLR 1926. Moreover, the phrase in the Practice Direction "so far as possible" indicated that the traditional strict approach to pleading the words allegedly used no longer applied. Mr. Nicklin has not sought in his oral submissions to press these arguments. He does not suggest that the established authorities are altered by the Practice Direction, and thus he has sought to put forward his case by reference to those authorities.

20. In my judgment, he is right not to seek to argue that the Practice Direction has significantly altered the approach to be found in the pre-Civil Procedure Rules authorities. While the Civil Procedure Rules are indeed a new procedural code, the approach embodied in the long line of authorities before the Civil Procedure Rules came into force reflects matters of substance inherent in defamation actions. As Ward LJ said of Biguzzi, in UCB Bank plc v. Halifax (SW) Ltd (unreported; CA, 6 December 1999):

"When the Master of the Rolls said at page 1934 G-H, 'earlier authorities are no longer generally of any relevance once the Civil Procedure Rules applies', he was not saying that the underlying thought processes that informed those judgments ... should be completely thrown overboard." (paras. 23 – 24)

The realities of defamation actions, including the importance of arguments as to the meaning of the words used and the existence of defences such as justification, have been responsible for the insistence by the courts on the words used being pleaded by the claimant with reasonable precision. Those realities have not been changed by the advent of the Civil Procedure Rules.

21. Moreover, the words "so far as possible" in the Practice Direction were clearly not intended to be interpreted literally. To do that would mean that, if the claimant was unable to plead the words used at all or even the gist of them, he need not do so. Such a revolution in slander proceedings was not intended, since it would have opened the door to utter vagueness in the pleading of slander claims. That phrase in the Practice Direction must be given some more limited meaning. I have no doubt that it was intended to provide a succinct encapsulation of the established legal principles to be found in the earlier authorities on defamation, such as British Data Management. That case in my view remains good authority today.
22. For the reasons set out in this judgment, I conclude that Mr. Justice Gray was right to strike out the re-amended Particulars of Claim. They are too vague and speculative, and this is not one of those rare cases where the court should allow their deficiencies to be made good by orders for further information. That should only be countenanced where a good cause of action can be shown and that is something which the appellant cannot do. I therefore would dismiss this appeal.

Robert Walker L.J.

23. I agree.

Peter Gibson L.J.

24. I also agree.
Order: Appeal dismissed with costs. Permission to appeal refused. (Order not part of approved judgment)