England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM DISTRICT REGISTRY
(MR JUSTICE POOLE)

		Royal Courts of Justice The Strand London
		9 June 2004

Wednesday 9 June 2004

LORD JUSTICE SEDLEY:

1. There are before the court this morning two applications for permission to appeal. Both of them arise out of Dr Hassan's litigation against the third defendant, the National Health Service trust which, in 1997, employed him as a Senior House Officer in Accident and Emergency under the supervision of the two consultants who are the first and second defendants.
2. The action is based upon the unfavourable references given by the first and second defendants at the formal request of the General Medical Council, and which Dr Hassan contends (and he may well be right) have blighted his chance of obtaining further hospital appointments.
3. Dr Hassan has appeared throughout in person, and has done so today. His claim advances two causes of action. The first is in breach of contract on the part of the third defendant, who in 1997 was his employer, through the making of inaccurate and unfair comments (as Dr Hassan considers them to be) in the references written by the consultants who were working for the Trust.
4. The second claim is for defamation and malicious falsehood committed by the first and second defendants and vicariously, therefore, the third. To this the defendants jointly have pleaded both justification and qualified privilege. The plea of qualified privilege is plainly viable and will be defeasible only by proof of improper motive, that is to say malice in law, which so far is unpleaded; but if the case goes ahead Dr Hassan tells me that he considers that he will be justified in pleading it.
5. The procedural steps with which I am concerned do not affect the breach of contract claim, nor the separate claim which Dr Hassan has brought in the Employment Tribunal for race discrimination.
6. The defendants applied to strike out the defamation claim essentially on limitation grounds. On 22 March 2004, Mitting J acceded to this application in favour of all three defendants. He also held that the breach of contract claim was viable only against the third defendant, the NHS Trust.
7. The strike-out application had been adjourned by Poole J on 18 December 2003 because of the last-minute service by Dr Hassan of his skeleton argument and supporting documents. Poole J ordered Dr Hassan to pay costs thrown away by the adjournment which he summarily assessed at £3,742.38. The judge also refused Dr Hassan permission to appeal against a district judge's order that Dr Hassan pay costs of £2,354 upon an interlocutory application on 30 October 2003. Against that refusal of permission to appeal no further appeal lies. But Dr Hassan formed the view that Poole J had given him permission to appeal against the costs order. The order, as originally drawn, stated that permission to appeal had been refused, but in its amended form it says neither that it was refused nor that it was granted.
8. Dr Hassan has explained in his witness statement what happened at the end of the hearing before Poole J. It is confirmed by a transcript which has reached Dr Hassan and me only today. At the conclusion Dr Hassan said:

"I will be appealing this costs order in respect of today's application."

The judge said:

"Very well. I am rising."

That appears to me to correspond with the order, which indicates that permission to appeal was neither granted nor refused, because technically it was not applied for. But I will not let Dr Hassan's case slip into that gap. In fairness to him I will treat what occurred as a refusal of permission to appeal and therefore treat the present application as a renewal of the application.

9. I am also prepared for the present to accept that the lateness of the appellant's notice in this case is at least in part due to problems about the drawing up of the order, and I proceed straight to the merits of the applications.
10. In relation to Poole J's costs order, Dr Hassan's first ground is that the judge had no power to award costs because he lacked jurisdiction to hear the applications. Apart from this, he contests the substance of the judge's reasons for making him pay the costs thrown away by the adjournment. These were in essence that, contrary to the district judge's order for service of the skeleton argument by 15 December (three days before the hearing) and for service of evidence by 12 December and documents by 21 November, Dr Hassan had produced his complex skeleton argument and supporting documents only at about noon on 18 December, the very day of the hearing, making an adjournment inevitable. Dr Hassan contends that there was still at least an hour (an hour being the time that had eventually been allotted on the directions hearing), enough to conclude the argument. He submits, too, that some time before, he had given the defendants adequate notice that the time allocation of an hour might well be inadequate. These are two contradictory submissions, but I treat them as alternatives.
11. The allegation that Poole J lacked jurisdiction stumped me when I first saw it on the papers. Dr Hassan explained it today in this way. He says that the section 4A application under the Limitation Act 1980 depended on the single publication rule, which does not apply in England. I am afraid that is a complete misapprehension. Nobody in this case has suggested that the single publication rule does apply. It is the law -- and the defendants have never sought to say otherwise -- that each publication of a libel creates a fresh cause of action and starts time running again. That being so, the argument, which is anyway not one going to jurisdiction, falls away and one turns immediately to the substance of Poole J's decision.
12. It seems to me that, on the facts which I have described, Poole J was entitled to adjourn the hearing because the late delivery of the skeleton argument by Dr Hassan had made it impracticable for the defendants, and probably the judge too, to be adequately prepared for the hearing of the strike-out application that afternoon, particularly given the relatively small time slot. That is why it followed in Poole J's view that it was Dr Hassan who must pay the costs that were thrown away by the adjournment, since the adjournment had been caused by his non-compliance with the directions given for prior service of argument and documents.
13. Dr Hassan has pointed out to me today that by December 2003 the district judge's original three-hour slot had been reduced to one hour and that on 16 December he had e-mailed the defendants in order to suggest that a longer period of time was needed.
14. The problem is that this sort of thing cannot be negotiated in the absence of hard information as to what is at issue. Until the skeleton argument was served neither the court nor the defendants had any sensible way of determining what would be a realistic time allocation. In the event, Poole J's view there was not enough time was fully vindicated by what happened on the adjourned hearing before Mitting J because it took a whole day.
15. The adjourned application was heard on 22 March 2004 by Mitting J. The defendants had elected to rely on Parts 3 and 24 of the Civil Procedure Rules. They sought summary judgment on the ground that the claim had no real prospect success. This was principally, but not solely, because it was shut out by section 4A of the Limitation Act.
16. The alternative available to the defendants would have been to seek summary disposal under sections 8 and 9 of the Defamation Act 1996 and Part 53 of the Civil Procedure Rules, but they had to make their election and it was the former process that they elected to adopt. On the strike-out application the judge found against Dr Hassan on each of the four heads that were argued before him under the Limitation Act.
17. Dr Hassan's proceedings had been issued on 29 April 2003. Section 4A of the Limitation Act creates a primary time-bar of one year from publication to the issue of defamation proceedings. Here the original publication complained of was far more than a year before April 2003 -- it was in 1997. The latest arguable republication on the evidence placed before the judge was in October 2001, which was still more than a year before the issue of proceedings. In the judge's view there was no evidence that the General Medical Council, which still had (and so far as I know still has) the references on the file, had republished them any more recently than this. Even if they had, I suspect that it would be the GMC that would be answerable for it (assuming that they were libellous). The judge refused to draw any inference that the mere presence of the references on the file itself betokened republication. That seems to me not only to be a legitimate refusal, but a refusal which was the only course open to the judge. Any contrary inference would have been pure speculation, and I am satisfied that no Court of Appeal would interfere with the judge's view.
18. Nor did the judge accept, any more than any Court of Appeal would accept, the explanation relied upon by Dr Hassan of what became known as "the rogue fax header". At a relatively late stage Dr Hassan spotted that the pro forma header on faxes coming from the third defendant contained the names of Dave and Elaine Miller -- two people whose identities and roles have been throughout a complete mystery. The judge said this in paragraphs 16 and 17 of the judgment:

"16. The defendants' case on the fax header is that it was stored in the memory of the fax machine on which it was sent to their solicitors on 22nd August 2002 when it was acquired second-hand by them from a dealer, who in turn must have acquired it from the original owners, Dave and Elaine Miller. The presence of their name is, accordingly, an historical accident.

17. The claimant does not accept that explanation. As is apparent from the paragraphs of the particulars of claim which I have recited, he asserts that it affords evidence of publication to the named people and to members of their family. In his skeleton argument, in paragraph 2.7, he rejects the defendants' contention as to the probable cause of the appearance of that name at the top of a fax message and asserts that it is 'much more straightforward to conclude that Dave and Elaine Miller .... are two legally clever, retired professions and have been, along with some others, handling correspondence and documentation in respect of the first defendant."

19. It seems to me incontestable that, even accepting that the defendants' explanation is open to probing and possible challenge, the claimant's explanation is entirely fanciful. It is not an inference which could rationally be drawn so as to give rise to a finding of further publication. Indeed, even if it were, the speculation that Dr Hassan advances would suggest that it is also a republication in privileged circumstances which would again attract a plea of qualified, or possibly even absolute, privilege, since the speculation is that the communication was made in the course of preparing a legal case.
20. It seems to me that there is no way in which it would be possible for Dr Hassan to shake down the finding of the judge that section 4A applied on the face of it to this case, there being no publication of the alleged libel within the twelve months preceding the issue of the writ.
21. The question, therefore, became whether it was appropriate to disapply that time-bar. Logically, the next issue was the issue that arose under section 32(1)(b) of the Limitation Act, namely deliberate concealment. If deliberate concealment is proved, then a right to proceed notwithstanding the time-bar arises.
22. The judge held that there was no evidence of deliberate concealment simply by virtue of the fact that the reference had been kept on a confidential file until they had been produced some time before in the Employment Tribunal proceedings. He also found that Dr Hassan knew by the end of the year 2000 not only the fact but the terms of the adverse references because he had quoted them in the Employment Tribunal proceedings.
23. Dr Hassan, in a supplementary submission which I received this morning and read before coming into court, has reminded me that concealment is a question of fact, and that fact in a libel case is for the jury.
24. This submission misses three important points. First, the jury decide libel or no libel. The present question, by contrast, is a preliminary question of a time-bar, which has to be decided by the judge. Secondly, while it is equally the judge's job to try out disputes of fact, there is no triable dispute about deliberate concealment until and unless evidence can be put before the court that there has been deliberate concealment. Thirdly, the judge's finding of fact that Dr Hassan in any event knew of the reference by the year 2000 is a perfectly tenable finding which by itself stops any concealment running by that date. What is more important is that it is not possible to derive from the fact that a record-keeping body such as the GMC has simply and properly kept a document on file and has not broadcast it, that they have been (in the sense used in the Limitation Act) deliberately concealing it. Deliberate concealment of that kind requires some act of obliquity which suppresses the revelation to the claimant of that which he would otherwise have learnt. Nothing of that sort begins to be demonstrated here.
25. The next question is whether there were good discretionary grounds for enlarging Dr Hassan's time for suing in defamation. He contended that section 35 gave him such grounds. Indeed they gave him in the circumstances a right to build a defamation claim on the same facts as those on which he relied, without demur, for his breach of contract claim.
26. It is right that section 35 has a clear policy which one would expect any judge to follow, subject to any supervening discretionary elements. It is valuably described by Hobhouse LJ in Lloyds Bank v Rogers [1996] EWCA Civ 1277 in these terms, upon which Dr Hassan has, understandably, relied:

"The policy of the section is that if factual issues are in any event going to be litigated between the parties, the parties should be able to rely upon any cause of action which substantially arises from those facts. There is no indication in the drafting of the Act that there should be a further limitation on section 35."

The policy, therefore, is not to stifle purely on limitation grounds a claim arising out of facts which are anyway going to be relied upon to found a different claim. But I have no doubt that the judge was also right to hold that the effect of section 35 is not automatic. It requires an exercise of judgment by the court -- something also acknowledged in Lloyds Bank v Rogers and made concrete in the Civil Procedure Rules 14.4(2), which state that the court "may" allow an amendment.

27. Against the first and second defendants the contract claim was, for reasons I have given, a non-starter. But as against the third defendant there was plainly a contract of employment issue. The allegation made by Dr Hassan was that it was by means of the references given by the first and second defendants that the third defendant had placed itself in breach of his contract of employment.
28. The judge deferred his answer to the question whether he should allow the claim to proceed by virtue of section 35 until he had considered the exercise of his fall-back discretion under section 32A to dispense with the time-bar. To this end he weighed up the balance of disadvantage to the claimant and to the defendants if the claim in defamation were respectively forbidden or allowed to proceed. He noted that while Dr Hassan had apparently known enough to start proceedings in 2000, it was not until August 2002 that he obtained copies of the references. (I note in passing that no objection had been taken by the defendants to the use of documents disclosed in the Employment Tribunal proceedings to launch a defamation action.) But the judge also noted the "considerable disadvantage" in which a trial would place the defendants after all this time. He then said:

"61. I do not, however, wish to pass from the discretionary exercise under section 32A without commenting on a factor which is not specifically listed in the statutory checklist but which is nonetheless encompassed within the words 'equitable' and 'all the circumstances of the case'.

62. As I have already recited, this claimant has in this action invited me to draw, and would invite any subsequent court to draw, inferences from the primary facts that are extremely farfetched. I cite as one example the claimant's assertion that Dave and Elaine Miller were two legally clever, retired professionals handling correspondence and documentation in respect of the first defendant. His proposition has only to be stated for it to be realised that it is extremely farfetched.

63. But the matter does not stop there. Because of the conduct of proceedings in this action, the claimant has embarked upon another action issued in the Central Office against not only the three defendants in this action but also the solicitor for defendants, counsel Mr Mitchell for defendants and four named officials of this court. He alleges that the history of the conduct of this action demonstrates, amongst other things, an injurious conspiracy against him by all ten named defendants. To give a flavour of the pleading that he has drafted in that action, I quote only from paragraph 27:

'The judge, District Judge Owen, was so much affected by these incitements by the fourth, sixth, seventh and eighth defendants....'

-- that is a reference to the defendants' solicitor, to their counsel and to two court officials --

'.... that he managed to insert these unfounded and unfair grievances of the defendants into his judgment and order dated 30th October 2003. Ever since the conduct of the fourth, sixth, seventh and eighth defendants has turned spoilt and commanding, with the fourth defendant in particular having princely style, a style that is no doubt a product of collaboration and collusion between various defendants.'

64. The bringing of that action and the extravagant terms in which it is pleaded satisfy me that, in the context of this or any other litigation, this claimant will not conduct his claim in a reasonable manner but, on the contrary, will do so in a vexatious and abusive manner.

65. It seems to me therefore that, in any event, it would not be equitable to permit such a defamation claim to proceed against these defendants."

29. Had the judgment stopped there, I would have had some sympathy with Dr Hassan's application for permission to appeal. Arguably the phrase "all the circumstances of the case" in section 32A(2) does not include the circumstances of a different, and so far undetermined, case. But the judge went on straightaway to say in paragraph 66:

"I add for the sake of completeness that, even without that finding, I would be satisfied that it was not equitable to allow the claim to proceed for the more conventional reasons which I have given. I would principally rely upon the clear evidence that the claimant knew by 2000 at the latest the gist of the complaint that he wished to make, and that the evidence available to the defendants would be substantially less cogent if the matter were to be litigated now rather than within a short period of the cause or causes of action having arisen."

30. Having declined for these reasons to lift the time-bar under section 32A, the judge adopted the same reasons (in paragraph 67 of his judgment), without elaborating them, for declining to let the defamation claim ride on the back of the contract claim under section 35.
31. I realise that it can be cogently said that, since the defendants must anyway deal with the contract claim, their difficulties may well be replicated, but certainly not increased, if they have to answer a defamation claim on the same facts. There seem to me to be two responses to this. One is (and I have canvassed this with Dr Hassan today) that the defamation claim, if it is not to be defeated by qualified privilege, will have to bring in an allegation of malice, and that is something well beyond the reach of the present contract claim. The other response (and this may be of some comfort to Dr Hassan) is that there is not a great deal in his real grievance, namely that his career has been blighted by unjust references, that cannot be canvassed against the third defendant on the continuing claim for breach of contract. I do not say that that claim is going to succeed, but it seems to me to enable Dr Hassan, subject always to the relevant law (including the law of evidence), to contend that nobody could properly have thought that he deserved the poor references that he was given.
32. I have dealt with all the points advanced by Dr Hassan that, in my judgment, require attention as grounds for permission to appeal. I have not overlooked the many other points he makes, but they are not, in my judgment, capable of advancing his case. I therefore propose to dismiss both of these applications for permission to appeal. For the reasons I have given, neither of them has, in my judgment, a realistic prospect of success.