Garcia v Associated Newspapers Ltd, Court of Appeal - Queen's Bench Division, October 06, 2014, [2014] EWHC 3137 (QB)

Resolution Date:October 06, 2014
Issuing Organization:Queen's Bench Division
Actores:Garcia v Associated Newspapers Ltd
 
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Neutral Citation Number: [2014] EWHC 3137 (QB)

Case No: HQ13D00866

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6/10/2014

Before :

THE HONOURABLE MR JUSTICE DINGEMANS

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Between :

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Ronald Thwaites QC and Harvey Starte (instructed by Taylor Hampton solicitors) for the Claimant

Desmond Browne QC and Alexandra Marzec (instructed by Reynolds Porter Chamberlain LLP) for the Defendant

Hearing dates: 21, 22, 23, 24, 25, 28, 29 and 31 July 2014

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63

Mr Justice Dingemans :

Introduction

  1. On Saturday 21 April 2012 Associated Newspapers Limited (``Associated Newspapers''), who are the publishers of the Daily Mail and Mail Online, published an article in the Daily Mail by Kelvin Mackenzie (``Mr Mackenzie'') under the heading ``A whole year of hell, thanks to a foreign doctor''. The article was also published on Mail Online.

  2. The article stated that Kevin Jones (``Mr Jones'') had been reported by Dr Jose Antonio Serrano Garcia (``Dr Serrano'') to the DVLA, an executive agency of the Department of Transport, in respect of alcohol problems when there was no evidence to that effect. This was after a consultation between Dr Serrano and Mr Jones at the Little Ridge Surgery, St Leonards-on-Sea, Sussex (``the Little Ridge surgery'') on 24 January 2011. The DVLA had withdrawn Mr Jones' bus driving and personal licences, as a result of which Mr Jones had lost his job.

  3. It is common ground that the article, set out more fully below, contained meanings defamatory of Dr Serrano. The article was based on Mr Jones' version of events about the consultation and afterwards.

  4. Dr Serrano claims that Mr Jones' version of events is false, and that he has been defamed in the article, and he brings a claim for damages, including aggravated damages, against Associated Newspapers. Dr Serrano said that Mr Jones had confessed to abusing alcohol, that his medical notes showed that he had admitted drinking alcohol up to 70 units per week, and that he was suffering the physical effects of alcohol abuse, namely gout and elevated Gamma GT readings. Associated Newspapers rely on Mr Jones' version of events to justify the article, and also rely on the defence of honest comment in relation to comments made in the article. Mr Jones contends that he did not admit drinking excessive amounts of alcohol to Dr Serrano, that previous entries showing excessive alcohol intake in his notes were mistaken, and that he was a social drinker who did not have any problems with alcohol.

    The Article

  5. I have set out, below, the whole text of the article. Although it was published without paragraph numbers the parties inserted these, and I have adopted them below, for ease of referencing parts of the article.

    ``A whole year of hell, thanks to a foreign doctor''

    (1) Last week, I raised the uncomfortable issue of foreign doctors working in this country, and targeted the offensive behaviour of a Spanish consultant. I have since received, and investigated to my satisfaction, an even more shocking case.

    (2) Bus driver Kevin Jones, ages 53, turned up with his wife Samantha, to see Dr Antonio Serrano, a Spaniard, at his surgery in St Leonards-on-sea, East Sussex.

    (3) Mr Jones was suffering pain from swollen legs. Almost immediately the doctor diagnosed gout and asked how much he drank. He said he might have a pint or two after work and if he went out with his wife and friends at the weekend, a couple of spirits.

    (4) When he discovered Mr Jones drove a bus for a living - and had done for 30 years - his attitude changed and, without any research into any kind of alcohol dependency - such as liver or blood tests - he said he would write to the DVLA to have his licence revoked.

    (5) Mr Jones told me: ``This is where the language barrier hit home. He took it that I drank every night, and when I tried to explain, he wouldn't listen and just spoke over me''

    (6) Several days later, Dr Serrano wrote to the DVLA. Mr Jones asked to see another doctor at the surgery, who agreed to send Mr Jones for blood, liver and kidney test over a six week period, all of which showed that Mr Jones was not alcohol dependent.

    (7) By now, though, Mr Jones had been signed off sick by his employers Countryliner.

    (8) Astonishingly without asking for any evidence, the DVLA took the doctor's word and revoked not only his bus driver's licence but also his car and motorbike licence.

    (9) Mr Jones, who earned £17,000 a year, says: ``It was a living hell. I could not persuade the DVLA that I was not alcohol dependent, and the only person who could get it revoked was Dr Serrano, who refused to do so.''

    (10) By July last year, Mr Jones resigned from the bus company while he battled to clear his name. He had seen other doctors who, although they could not rule out gout, said it was most likely he had arthritis.

    (11) Desperate, Mr Jones returned to his local MP, Tory Amber Rudd, who represents Hastings and Rye. She was appalled at his treatment and contacted the DVLA on his behalf.

    (12) A few months ago the DVLA brought in an independent doctor to carry out tests on Mr Jones, which showed no trace of alcohol dependency.

    (13) As a result, the DVLA returned all his licences to him and at the beginning of the week - having got his job back - Mr Jones restarted work, happily driving his passengers around the St Leonards area.

    (14) He says: ``Doctors talk about patient confidentiality but how is it right that this man could write to the DVLA and, without any evidence whatsoever, suggest I was alcohol dependant, which robbed me of my livelihood?''

    (15) A DVLA spokesman confirmed that Mr Jones's licence to drive a bus and his private licence were revoked purely on the strength of the letter from Dr Serrano. He said: ``In some cases we can do further investigation, but as we had a doctor's letter we felt this was enough justification.''

    (16) I made several attempts to contact Dr Serrano, who said at first he could not discuss the case on the grounds of patient confidentiality, but then said if Mr Jones gave his written permission he would discuss it.

    (17) A copy of this permission was faxed through to his surgery but then Dr Serrano said he could only talk about it in the `framework of a legal medical framework'. When asked what that meant, he claimed he could not hear because of background noise on his phone.

    (18) Its not clear if Dr Serrano's accent was a problem, but Mr Jones has suffered a nightmare, when all he wanted was treatment for swollen legs. I will be grateful if Dr Serrano would discuss the case with me. I won't be holding my breath.''

    Issues

  6. I am very grateful to Mr Thwaites QC and Mr Starte for the Claimant, and Mr Browne QC and Ms Marzec for the Defendant, for their assistance during the trial and submissions. The following matters are in issue:

    (1) What are the defamatory meanings of the article;

    (2) Whether the defamatory meanings of fact can be justified, or sufficiently justified;

    (3) Whether any defamatory comments can be defended as honest comment;

    (4) If not, whether damages, including aggravated damages, should be awarded and if so in what sum. The issue about aggravated damages raises a legal point of some importance.

    Procedural matters

  7. The trial was extremely hard fought on both sides, and there were a number of procedural rulings required to be made. I gave reasons for those rulings at the time, but I have expanded the reasons for some of those rulings in this judgment.

  8. The first relevant ruling related to the Defendant's application to examine in chief its witnesses. Written witness statements had been exchanged in the normal way. The proposed examination in chief was not to be restricted to matters which had arisen since the exchange of witness statements, or a few short questions to enable the witness to become used to the witness box before cross examination began, but an examination of all the critical evidence. The request was objected to by the Claimant. I refused permission for this extensive examination in chief for a number of reasons. First the request was made only when the Defendant was calling its first witness. This was important in circumstances where the Claimant's witnesses had already given evidence, and had not requested an opportunity to give their evidence in this manner, and would not now have that opportunity. Secondly the request was likely to have time implications. The case had been case managed on a number of occasions by Bean J. (as he then was) who had directed the parties to produce a timetable. This had been done, and showed that the case would run up to the last day of term. The timetable did not make allowance for extensive examination in chief. (I should record that the parties did complete the hearing on the last day of term, having had a day to prepare closing submissions, and I am very grateful for their efforts in keeping to the timetable).

  9. The second relevant ruling related to the Defendant's request to adduce a supplementary statement from Professor Paul Wallace MBBS, MSc, FRCGP, FFPHM (``Professor Wallace'') in which he qualified some of the statements that he had made in the joint statement of the experts. The Claimant objected to this evidence being adduced because there was a joint statement. I permitted this supplementary statement to be served because if Professor Wallace had changed his opinion on relevant matters it was necessary to know that as soon as possible, and providing a supplementary statement would provide the Claimant with a fair opportunity to consider that change of evidence before cross examination, where the change of mind would have been revealed in any event.

  10. The third relevant ruling related to the Claimant's request to ask Dr Clare Gerada MBE FRCGP FRCPsych FRCP...

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