England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/05/2012

Mr Justice Tugendhat :

1. This judgment is given following the trial of this action for libel. Mr Thour appeared in person. He gave evidence and was cross-examined. The proceedings took about one hour.
2. The claim is in respect of words in an employment reference written on 9 November 2009 by Mr Thour's former manager, Mr Neal Byron. Mr Byron was the Laboratory Services Manager at the Department of Cellular Pathology. The reference was written in response to a request from Barts and The London NHS Trust ("Barts") with whom Mr Thour was seeking employment. The defence is that the publication was on an occasion of qualified privilege. There is a plea of malice, but Ms Palin submitted at the close of Mr Thour's evidence that there is no case in malice to go forward. I upheld that submission. I adjourned to consider the reasons for my decision, which are set out in this judgment.
3. On 30 September 2009 Mr Thour applied to Barts for a position of Medical Laboratory Assistant which Barts had advertised. On 30 October 2009, following an interview, Mr Thour received a letter headed "Conditional Offer for the Post of Medical Laboratory Assistant …" One of the conditions of the offer of employment set out in that letter was as follows:

"References: We will need to receive two satisfactory written references covering a minimum period of three years, which are acceptable to the Recruiting Manager in their absolute discretion. We must receive both satisfactory references before you will be able to commence your employment with the Trust".

4. On the same day Mr Thour telephoned Mr Byron to inform him that he had named Mr Byron as one of his referees. After ceasing to work for the Defendant Mr Thour had completed a course of studies. He then visited Mr Byron in about 2007 and asked Mr Byron if he could give Mr Byron's name as a referee, to which Mr Byron assented. It is not suggested that Mr Byron gave any indication of what he would write by way of reference, and he was under no obligation to Mr Thour to indicate what he might write.
5. The Reference Request was in a standard form. The relevant boxes were completed by Mr Byron with information which included the following: that Mr Thour had been employed by the Defendant from 8 September 2003 to 1 September 2004, that, in his capacity as manager, Mr Byron had known Mr Thour for approximately 6 months, that the reason for Mr Thour leaving was that he had resigned, and that he had a good attendance record, with only four days sickness leave on three occasions in two years. There is no dispute that these details are accurate. Mr Byron also stated on the form:

"I would imagine that he would be able to perform most of the duties outlined in the job description to a high standard. As he was only with me personally for a short time (approx 6 months, as I had a career break during his employment with us) and also given it was so long ago, it is difficult to remember sufficiently to comment fully".

6. The words complained of are the only other information Mr Byron entered on the form (and it is to be noted that these are the only words complained of in this libel action). They are as follows:

"Would you re-engage the applicant? No

(If not, please give details): During his time with us Mr Thor was under investigation following allegations of aggressive behaviour. He resigned during the investigation process and therefore no formal action was taken. As this involved several different members of my staff I would not re-employ him".

7. On 12 November 2009 Mr Thour received a letter from Barts. It was signed by Ms Massaquoi, the Resourcing Officer of the Barts Rectruitment Services. It was copied to Mr Catlett, the Lead Specialist Biomedical Scientist. The letter withdrew the conditional offer of employment. The writer explained that:

"We have received a reference which is not of a satisfactory level to the Recruiting Manager…"

8. On 13 November 2009 Mr Thour telephoned to Mr Byron to complain about the reference, and threatening to sue. At 15.32 that same day Mr Byron sent an e-mail to Ms Massaquoi, with a copy to Mr Catlett, referring to Mr Thour. It included the following:

"I have to apologise. I have also spoken to the candidate today and I was in the process of writing to you this afternoon. Unfortunately I was misinformed as to one aspect of his reference I commented on.

Unfortunately, using this misinformation, I wrote that he was under investigation for alleged aggressive behaviour and resigned before an outcome was reached. This was not the case. I have since gone over his records and in fact an investigation was completed before he left and he received a first formal warning in April 2004. No further incidents were formally investigated.

I would therefore like to withdraw my statement outlined in the box 'if you would not reemploy please state why' and leave this section blank. …"

9. In his witness statement Mr Thour explains his objections to the reference as follows:

"12 … I was indeed investigated and received a first formal warning on 27 April 2004 before I resigned from my job as Medical Laboratory Assistant and no further incident was formally investigated as confirmed by Mr … Byron himself in his e-mail to Ms … Massaquoi … I believe the Defendant deliberately answered No to the question in the reference form that says 'would you re-engage the applicant? (If no, please give details)' to defame my character so as to jeopardise my chance of getting the job I applied for…

13. That first formal warning I received on 27 April 2004 was meant to stay in my file for the period of 6 month only …

14. On 13^th November, I telephoned … Mr … Byron… Mr … Byron's response was very defensive straightaway but later on he agreed to review my employment record and then amends [sic] the reference which he actually did but was still unsatisfactory even after amendment, according to what I was told by Ms … Massaquoi and Mr … Gatlett who said he gave the job to those with better references…

25. I will prove … that Mr … Byron … had actual knowledge that the statement he stated in the reference was false, otherwise he acted in reckless disregard of its truth of falsity, or acted negligently in failing to ascertain the falsity of the statements complained of…".

10. The documents identified in his statement include ones referred to above, some documents relating to his claim for damages, and two other references that had been written about him. These were references given to the Defendant and stamped received by them in August 2003. One was from a Senior Lecturer who described Mr Thour as an eager student who had performed well. He had written in response to the question Would you re-employ the applicant? That it was not applicable as he had never employed him. The other reference was from a supervisor who had known Mr Thour for two weeks in August 2003 when he had worked as a packer. She had written that she would re-employ Mr Thour.

MEANING

11. In deciding what meaning that reader would attribute to the words complained of, the court must apply the well known test most recently set out by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paras 14 and 15. It is as follows, so far as is relevant to this action:

"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) ... (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) … (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense".

12. The hypothetical reasonable reader in the present case is a reasonable person in the position of Ms Massaquoi or Mr Catlett. That is to say, persons holding positions within the NHS with responsibility for employing professional people.
13. The meanings that Mr Thour attributes to the words complained of are:

i) "that I was assumed to be aggressive and argumentative given the fact the alleged aggressive behaviour was said to have involved several different members of the Defendant's staff…

ii) was deliberately trying to create uncertainty as to the circumstances that surrounded my resignation, by those words the Defendant wanted my prospective employer namely Barts and The London NHS Trust to speculate about the cause of the disciplinary action that would have been taken by the Defendant if I didn't resigned before the investigation was completed as alleged, what cause of action would have been taken against me, a dismissal or a criminal prosecution?"

14. Ms Palin submits that no reasonable person could understand the words complained of to bear the meanings attributed to them by Mr Thour. She submits that the meanings to be attributed to the words complained of are:

i) That during Mr Thour's employment with the Defendant Mr Thour was suspected of behaving aggressively in the workplace towards several members of staff;

ii) That Mr Thour was suspected of such behaviour on grounds that were cogent or probably true;

iii) Formal disciplinary action may have been warranted had he not resigned;

iv) Having regard to the above matters, Mr Byron would not re-engage Mr Thour".

15. Further, Ms Palin submits that the statement that Mr Byron would not re-engage Mr Thour was obviously an expression of opinion on a question on which the opinions of reasonable people might well differ.
16. In my judgment a reasonable person in the position of the two publishees who read the words complained of would not engage in any speculation, and would certainly not understand that the words imputed any criminal misconduct. They would understand the words to mean that there had been more than one credible allegation that Mr Thour had exhibited aggressive behaviour towards several different members of the Defendant's staff, such that a formal investigation process had been commenced, and that formal action of some kind by the Defendant would or might have been appropriate, if the allegations had been demonstrated during that process.

QUALIFIED PRIVILEGE

17. The defence of qualified privilege is that in the circumstances set out above (which are not in dispute) Mr Byron, acting for the Defendant, was under a moral and/or social duty to communicate to those at Barts and The London NHS Trust the words complained of and that the publishees had a corresponding and legitimate interest in receiving such information. She cited Gatley on Libel and Slander 11^th ed paras 14.4 and following. One example referred to commonly as one of the "off the peg" categories of qualified privilege is the writing of an employment reference.
18. In my judgment there can be no answer to the submission that the words complained of were written on an occasion of qualified privilege. The two bodies, both parts of the NHS, had an obvious reciprocal interest in the giving of an employment reference for a professional person such as Mr Thour.
19. Ms Palin appears against a litigant in person and so drew to the court's attention matters which a litigant in person might not be in a position to submit. In particular she reminded the court that as a public authority the Defendant is under duties imposed by the Human Rights Act 1998 s.6. Specifically in this case she reminded the court of Clift v Slough BC [2011] 1 WLR 1774, and of a number of other authorities.
20. On the facts of this case the fact that the Defendant is a public authority would not make a material difference to its plea of qualified privilege unless, at the least, the effect of the HRA was that a public authority could not rely on qualified privilege if it had been negligent. That is not a reference to negligence which constitutes a breach of a common law duty of care, but of a breach of a public law duty which did not involve the dishonesty which must be proved to make good the plea of malice that defeats a defence of qualified privilege.
21. In his Reply (which he headed "Respond to Defence") Mr Thour pleaded that

"4.7 The truth is that the Claimant was investigated and received a first formal warning following the alleged aggressive behaviour and no more allegations were formally investigated afterward.

4.8 The Claimant denied that the investigation involved several members of the Defendant's staff and he avers that the alleged incident occurred only between him and one member of staff named Mrs Paula who works as a Medical Secretary for the Defendant…

4.15 Mr … Byron did not honestly believe the truth of the statement complained of, as he knew exceptionally well that the Claimant was formally investigated and that he was given a first formal warning, given to his position as the Laboratory Service Manager and the person to whom the Claimant personally handed his resignation letter to, in September 2004.

4.20 Mr … Byron deliberately refused to state the truth that the Claimant was given a first formal warning because he knew that it will not be enough to stop Bart and The London from employing the Claimant, which is why he created unjustifiable lies to make the Claimant look very dangerous to discourage the prospective employer from employing him".

22. Mr Thour's resignation letter dated 27 July 2004 is addressed to Mr Byron. It contains no reference to any complaints or investigations. It does include the sentence: "Certainly, I will never ever forget the kindness that I received from you during the time I've spent in your laboratory".
23. I find that the formal warning that Mr Thour admits he received followed allegations of aggressive and intimidating behaviour not only by the lady he refers to as Mrs Paula, but also by another work colleague, a Mrs W. The letter dated 27 April 2004 containing the formal warning was expressly based on both complaints. One related to an incident on 1 March and the second to an incident on 18 March. The letter is not signed by Mr Byron, and his name does not appear in it. The witnesses named are the two complainants, a person described as a trainee, and Mr Stephen Davison, described as "Acting Lab Manager – Histopathology/Cytopathology".
24. The records of the Defendant disclosed on discovery also include six further complaints made against Mr Thour during his employment with the Defendant. Ms Palin asked him about one dated 24 March 2004. Although that complaint does not use the word "aggressive", the conduct described in the allegation is aggressive conduct. The records include a document relating to that complaint headed "Informal Discussion with Bol Thor 31^st March 2004". That document is a note of Mr Thour's response to that complaint. It is signed by Mr Davison, who described himself as "Laboratory Manager (Acting)".
25. In evidence Mr Thour did not say that no complaint had been made. He said he could not remember everything from 2004, and that his own complaint was about the reference in 2009. But he also suggested, without giving any basis for the suggestion, that the documents disclosed might have been fabricated.
26. Following the cross-examination of Mr Thour, I find that Mr Thour's suggestion that the Defendant's records might have been fabricated is without any evidential basis and is unworthy of belief.
27. If Mr Thour can prove malice or bad faith, then he does not need to resort to an argument under Art 8 and the HRA. If he cannot prove malice or bad faith, then a finding of a breach of a public law duty could be based only on the statement that Mr Thour resigned "during the process", being an innocent mistake. And that erroneous statement had been rectified within a few days, and immediately upon Mr Thour asking for it to be rectified. As Ms Palin submits, the inaccuracy in the reference (that Mr Thour resigned while under investigation) is not to the substance and is not material for the purposes of any possible allegation of a breach of Mr Thour's rights under Art 8. There is a strong public interest in employers such as Barts being able to ask for and receive honest employment references. That public interest has long been recognised by the common law defence of qualified privilege. As Ms Palin submits, a public authority is not required in every case to plead and prove that domestic law meets the requirements of Art 8. The courts should in the first instance proceed on the assumption that domestic law strikes a fair balance and that it is compatible with the requirements of Art 8 (see Kay v Lambeth BC [2006] UKHL 10; [2006] 2 AC 465 paras [54] and [55].
28. Accordingly, in my judgment the defence of qualified privilege is made out in this case.

MALICE

29. Malice requires proof that a defendant knew that the words complained of were false, or was reckless as to whether they were true or false. In the present case there is no suggestion of any motive that Mr Byron may have had for wishing to harm Mr Thour. On the contrary, Mr Thour wrote to him a letter of appreciation on his resignation in 2004 and he asked Mr Byron to give him the reference now complained of.
30. In order to prove malice a claimant must prove that it is more likely than not that the defendant knew what he wrote was false or was reckless as to whether it was true or false. Mr Thour has produced no evidence that in 2004, or at the time he wrote the reference, Mr Byron knew the true position relating to the complaints he referred to in the reference. Even if Mr Byron had known the true position in 2004, that would not be a basis for alleging that he knowingly made a false statement five years later in 2009. The fact that the reference contains a number of very precise details gives rise to an inference that Mr Byron must have consulted some records from 2004 before completing the reference. But it gives rise to no probable inference that Mr Byron knew that what he wrote about the investigation was untrue. The more likely inference is that there was an error of some kind.
31. Mr Thour submitted that having corrected the erroneous statement, it was incumbent on Mr Byron to replace his No with a Yes, in answer to the question whether he would be willing to re-employ Mr Thour. That submission is untenable. The question "Would you re-engage the applicant?" is directed to Mr Byron's state of mind. There is no evidence at all that Mr Byron did not answer that question truthfully when he answered No. And there is nothing in the e-mail which Mr Byron wrote on 13 November which supports an inference that as at that date he would have been willing, or ought to have been willing, to re-engage Mr Thour.
32. The case in malice is without any foundation at all. If this case were being tried by jury, I would withdraw the case in malice from the jury.

OTHER MATTERS

33. For the sake of completeness, I should record that Mr Byron and other witnesses made witness statements in this case. But since I had formed the view that there was no case in malice, I did not need to hear them. It follows that this judgment cannot record any explanation that any of them might have given for the events that occurred.
34. At the start of the trial, Ms Palin asked me to give summary judgment or strike the case out as an abuse of process (on the basis that there is no real or substantial tort), for the reasons set out in the Defendant's application notice dated as recently as 18 May 2012. Since the case was listed for trial, and Mr Thour and the witnesses for the Defendant had attended to give evidence, and having regard to the overriding objective, I considered that it was in the interests of justice that I should proceed to hear the trial.

CONCLUSION

35. It is for these reasons that the claim fails and judgment will be entered in favour of the Defendant.