Defamation


Civil procedure - health - confidential information - disclosure and inspection - General Medical Council - libel - medical records - public policy - conflicts between undertakings of confidentiality and principles of public policy - balancing exercises

Andrew Wakefield v (1) Channel Four Television Corporation (2) Twenty Twenty Productions Ltd (3) Brian Deer: QBD (Mr Justice Eady): 21 December 2006

The applicants (T) applied to inspect confidential documents in the hands of the respondent gastroenterologist (W) that had been served on him by the General Medical Council (GMC) in the course of preparation for disciplinary proceedings against him.



The first applicant had broadcast a programme produced by the second applicant about the controversial combined measles, mumps and rubella vaccine. The programme included serious criticisms of W. Before the broadcast, the third applicant presenter had complained about W to the GMC, which commenced an investigation into W's conduct.



W brought proceedings against T for libel, but T sought to justify their allegations. There was considerable overlap between the subject matter of the pending disciplinary proceedings and the allegations in the programme.



W had listed the documents at issue in accordance with rule 31.6 of the Civil Procedure Rules and opposed T's application only because of objections raised as a matter of policy by the GMC, which, while not a party to the litigation, was represented at this hearing. The GMC maintained that it should be able to assure patients and others that their information would be used only for the purposes of fitness-to-practise proceedings.



The GMC submitted that principles of public policy required that documents obtained under compulsory powers should be used only for the purposes intended, that documents disclosed for one purpose should not be used for another, and that disclosure should not interfere with operations of public investigative bodies; there was a clear conflict between those principles and the inspection sought, which, if granted, would show that the assurances given by the GMC were worthless, and undermine co-operation by the public, the medical profession and institutions.



Held: where undertakings of confidentiality had been given, there might be overriding requirements that other considerations be given priority, the matter being determined ultimately by where the interests of justice lay (Taylor v Director of Serious Fraud Office [1998] 3 WLR 1040 applied). No absolute assurance could be given by the GMC. What was required was a balancing exercise between competing policy considerations.



T were not intending to use the documents to launch defamation proceedings, but to defend themselves against them, and under the standard disclosure provisions they appeared to have a prima facie right to do so. It was inherently undesirable that T should be prevented from access to relevant information. That was not only a matter of protecting their own interests and reputations, but because it was in the public interest that, as far as possible, claimants in defamation actions did not obtain false or misleading vindication.



It was also an important aspect of public policy to have regard to article 6 of the European Convention on Human Rights 1950. If the defamation and GMC investigations proceeded on the basis of different materials, there was a possibility of inconsistent outcomes. It was no part of T's purpose to reveal any confidential information and there was no reason why any of it should become public.



On the evidence, a significant proportion of the patients had no objection or was indifferent to disclosure and inspection. The GMC's assurances might well have been too sweeping, and had to be regarded as subject to the CPR and their implementation by the court.



The assurances would not be worthless as every effort would be made to maintain confidentiality. Assurances had to be accurate and not over-stated. In cases where co-operation was not forthcoming, the statutory powers to require disclosure of information existed under section 35A of the Medical Act 1983.



Furthermore, the facts of this case were unusual. The usual criteria of relevance and, ultimately, of necessity and proportionality had to be applied. What mattered was that any truly confidential material requiring to be disclosed and inspected should be subject to an effective and secure regime, so that it came into a limited number of hands.



Application granted.



Adrienne Page QC, Matthew Nicklin, Jacob Dean (instructed by Wiggin) for the applicants; Desmond Browne QC, Jonathan Barnes (instructed by Radcliffes Le Brasseur) for the respondent; Timothy Dutton QC (instructed by Field Fisher Waterhouse) for the GMC.





Tax



Appeals - capital gains - connected persons - control - findings of fact - gifts - holdover relief - acting together to secure or exercise control of companies - foreign-controlled companies

(1) Brian George Foulser (2) Doreen Ann Foulser v David MacDougall (HMIT): CA (Civ Div) (Lords Justice Chadwick, Longmore, Mr Justice Lindsay): 17 January 2007
The taxpayers (F) appealed against a decision ([2005] EWHC 2958 (Ch), [2006] STC 311) that disallowed claims to holdover relief under section 165 of the Taxation of Chargeable Gains Act 1992 in respect of gifts of shares made pursuant to a tax avoidance scheme.



F had entered into a scheme to avoid a charge to capital gains tax on a sale of their shares in a company (B). F had established Isle of Man settlements, and the trustee (M) had acquired Manx companies that were held as assets of the settlements. F took out insurance bonds with an Irish company (L) and assigned the bonds to the Manx companies.



L then acquired UK companies (the underlying companies) that were held by L for the purposes of the bonds. F gifted their shares in B to the underlying companies which were then sold to an independent third party.



The purchase price was received by L as the beneficial owner of the companies, but the terms of the bonds were such that F became entitled as against L to benefits of an equivalent amount. The object of the scheme was that the chargeable gain arising on the disposal of the shares would be reduced by a claim for holdover relief under section 165.



The special commissioner held that holdover relief was not available by virtue of section 167(2), as F and L were connected persons because they acted together to secure or exercise control of the underlying companies within section 286(7). On appeal, the judge decided that section 167 did not unlawfully restrict the right of establishment of L, contrary to article 43 of the EC Treaty (Nice).



F submitted that section 286(7) was a deeming provision, with a specific and limited purpose to assist in the interpretation and operation of the two immediately preceding sub-sections, and could not be relied on to establish a relevant connection between L and F for the purposes of section 167(2); that on the proper construction of the phrase 'secure or exercise control' in section 286(7), the commissioner had erred in law in finding that L and F were acting together to secure or exercise control of the underlying companies; and that the judge had erred in failing to hold that section 167 was incompatible with article 43.



Held: there was nothing in the language of section 286 as a whole, or section 286(7) in particular, that led to or supported the conclusion that the only purpose of section 286(7) was to assist in the interpretation and operation of the two immediately preceding sub-sections. On its true construction, section 286(7) could be relied on to establish a relevant connection between L, as the controller of the transferee companies, and F, as the persons making the disposal of the shares in B, for the purposes of section 167(2) (Steele v EVC International NV [1996] STC 785 considered).



It was not open to F to challenge in the Court of Appeal the commissioner's finding that L and F were acting together to secure or exercise control of the underlying companies, because it was impossible to be confident that the commissioner had made all the primary findings of fact that would be needed to decide the point on what F put forward as the correct view of the law (Pittalis v Grant [1989] 40 EG 149 considered). Permission to appeal on that issue was refused.



In any event, the commissioner had not erred in his approach. The word 'secure' in section 286(7) could be construed in the sense of 'safeguard' or 'obtain' and was not confined to either sense to the exclusion of the other (Steele considered). Furthermore, there was no reason why the concept of two or more persons acting together to exercise control of a company should necessarily be confined to cases where each of the persons acting together had less than a controlling shareholding, so that none would be able to exercise control individually in the absence of the combination between them. The concept was sufficiently wide to include cases where one person who had shareholder or voting control agreed to exercise that control in accordance with the wishes of another. The article 43 point had been raised before the commissioner who had rightly refused to entertain it on case management grounds. Given that the judge did not treat the article 43 point as a pure point of law, not dependent on the evidence, he should have refused to entertain it.



The argument that the exclusion of tax relief constituted a restriction on the freedom of establishment of L was clearly fact specific. Therefore, the point could not be entertained on appeal and permission to appeal on that issue was discharged. It was neither necessary nor appropriate to decide the article 43 point, and there was no need for a reference to the European Court of Justice.



Appeal dismissed.



Kevin Prosser QC, Andrew Hitchmough (instructed by Moore & Blatch (Southampton) for the appellants; Timothy Brennan QC, Ingrid Simler QC, Jemima Stratford (instructed by the Revenue & Customs Solicitor) for the respondent.





Professions



Administration of justice & appeals - doctors - jurisdiction - misconduct - jurisdiction of Court of Appeal - following guidance of privy council

Fatnani v General Medical Council; Raschid v General Medical Council: CA (Civ Div) (Lords Justice Chadwick, Laws, Sir Peter Gibson): 15 January 2007
The General Medical Council (GMC) appealed against decisions that quashed orders erasing the first respondent (F) from the medical register and suspending registration for 12 months, and ordering a review hearing in relation to the second respondent (R).



F and R had been disciplined for serious professional misconduct. On appeal, the judge ruled that the test that had to be applied was whether the panel decision was clearly wrong. He held that it was and quashed the orders, substituting a one-month suspension with no review hearing for R, and 12 months' suspension in relation to F.



In the two conjoined appeals, the issue arose as to the proper reach of the High Court's discretion on appeals to overturn sanctions under section 40 of the Medical Act 1983.



Held: this appeal was the first time the Court of Appeal had been required to consider the jurisdiction of the High Court, as prior to 1 April 2003 appeals lay to the Privy Council.



It was clear that guidance from council case law should be followed as the council was high authority, and was also considering an identical regime. Prior to 1 April 2003, there were two strands that had to be considered that could be discerned from the council. First, the different function of the panel, which was concerned with the reputation of the profession and not with retributive punishment as the courts were (Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691 applied); second, the special expertise of the panel (Marinovich v General Medical Council [2002] UKPC 36 applied).



The principal purpose of the panel's jurisdiction was maintaining public confidence in the profession, and respect should be given to any decision of the panel (Ghosh v General Medical Council [2001] UKPC 29, [2001] Lloyd's Rep Med 443 applied). The test that the judge applied was neither helpful nor adequate, unless understood in the context of the two strands identified. While the judge acknowledged the need for deference to the panel, the exercise he undertook in each case came close to an exercise in resentencing. The judge's conclusion was not justified, and there had been no basis on which to overturn the sanctions imposed by the panel. The sanctions imposed by the panel would be restored.



Appeals allowed.



Robert Englehart QC, Ivan Hare (instructed by the GMC) for the appellant; John Hardy (instructed by Stokoe Partnership) for the first respondent; the second respondent appeared in person.





Civil Procedure



Administrative law - enforcement - foreign judgments - freezing injunctions - permission - service out of jurisdiction - setting aside - issuing of proceedings to enforce judgments obtained in Turkey - no requirement to show assets present in jurisdiction

Tasarruff Mevduati Sigorta Fonu v (1) Yahya Murat Demirel (2) Merrill Lynch International Bank Ltd: ChD (Mr Justice Lawrence Collins): 21 December 2006
D applied to set aside the grant of permission to serve him outside the jurisdiction in relation to a claim brought by the respondent (T) to enforce at common law three judgments entered in its favour by the Turkish courts, and in relation to a worldwide freezing injunction granted in support of proceedings against him abroad.



T was a Turkish public legal entity with authority to restructure and administer banks and banking institutions in Turkey whose banking licences had been revoked. The judgments against D had been obtained in civil actions commenced following the collapse of three Turkish banks, one of which had been owned by a group of companies controlled by D.



The grounds set out in D's application to set aside were: he had no assets within the jurisdiction, so that no judgment obtained against him in Turkey could be enforced against him within the jurisdiction; it was inexpedient for the court to grant any interim relief against him in England in aid of any judgment obtained against him in Turkey; T had failed to discharge the burden of proof resting on it to show that England was clearly the proper place in which to bring a claim against him; and T was seeking to enforce directly or indirectly a public law or laws of Turkey.



T submitted that the suggestion that it must identify assets within the jurisdiction to issue proceedings to enforce a judgment was without foundation. T argued that there was no requirement in relation to litigation generally that the defendant must have currently identifiable assets; and that there was equally no such requirement in relation to an action at common law to enforce a judgment, which was simply put as a claim for the amount of the judgment debt and costs.



D argued, among other things, that the claim fell within the rule that the court had no jurisdiction to enforce foreign public law.

Held: if it were necessary for T to establish the presence of assets in England, on the evidence it would fail. D had no assets in the jurisdiction.



However, the presence of assets was not a pre-condition to the exercise of jurisdiction under rule 6.20(9) of the Civil Procedure Rules (CPR). There was no reason for applying a requirement that there be assets in the jurisdiction. There was nothing in part 74 of the CPR procedure for registration that required the presence of assets within the jurisdiction, and it would be odd if rule 6.20(9) were so interpreted (Societe Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2003] UKHL 30, [2004] 1 AC 260 considered). England was clearly the appropriate forum for enforcement in England.



Rule 3 in the 14th edition of Dicey, Morris & Collins on the Conflict of Laws (2006), which stated that English courts had no jurisdiction to enforce foreign public law, was not a rule relating to jurisdiction. It was a point that went to the justiciability or admissibility of the claim.



Accordingly, on an application to set aside service out of the jurisdiction, the test should be whether T had a real prospect of succeeding on the claim, or whether there was a serious issue to be tried. At the very least, T had a real prospect of success in obtaining judgment in England on one of the three judgments. Even on the evidence of Turkish law, it had a strongly arguable case that the claims remained private law claims. The relevant claim was pursued to judgment in Turkey as a private law claim in the civil courts, not as a public law claim in the administrative courts.



The freezing injunction was rightly granted, but there was no point in it continuing. D had made the relevant disclosures, he had no assets in England, and the effectiveness of the injunction as regards foreign assets was doubtful.



In relation to one of the judgments, proceedings would stand. The order granting permission to serve out of the jurisdiction in relation to the other two judgments was set aside, and the freezing injunction was discharged.



Application granted in part.



Edward Cohen (instructed by Cartier & Co) for the applicant; Stephen Moverley Smith QC, Alexander Pelling (instructed by Berwin Leighton Paisner) for the respondent.





Legislation



Criminal law - road traffic - amendments - directives - failing to stop - implementation - primary legislation - public places

R (on the application of Parker) v Bradford Crown Court: QBD (Admin) (Lord Justice Waller, Mt Justice Lloyd Jones): 20 December 2006
P applied to quash his conviction for the offence of failing to stop following an accident, contrary to section 170 of the Road Traffic Act 1988 as amended.



P's conviction had arisen as a result of an incident in the car-park of a public house. By regulation 2(6) of the Motor Vehicles (Compulsory Insurance) Regulations 2000, there had been inserted into section 170(1) of the 1988 Act after 'on a road' the words 'or other public place', following a decision of the House of Lords in Clarke v Kato [1998] 1 WLR 1647 that 'road' in section 170 should be strictly construed. The regulations had come to be made following a reasoned opinion of the EU Commission addressed to the UK, requiring it to fulfil its obligations under directive 72/166.



P contended that only if those words had been lawfully inserted would he be guilty, since his car had not been on a road but in a carpark, which was a public place. He submitted that the regulations had not lawfully amended section 170 of the 1988 Act because they had not been passed for the purpose of implementing any community obligation of the UK or for the purpose of enabling any such obligation to be implemented, and thus there was no power to pass the same under section 2(2)(a) the European Communities Act 1972.



P argued that the regulations were not passed for the purpose of dealing with matters arising out of or related to any such obligation, and that there was no power to pass the same under section 2(2)(b) of the 1972 Act. Furthermore, P contended that the effect of the regulations had been to create a new criminal offence.



Held: while the Secretary of State for Environment, Transport and the Regions had not been entitled to exercise his powers under section 2(2)(a) of the 1972 Act, and had not purported to do so, he clearly had the necessary power to introduce the regulations under section 2(2)(b).



The UK government had been faced with legislation that had been passed, seeking to implement EC directives. The House of Lords had construed it narrowly and in a way that the commission had suggested had led the UK to be in breach of their obligation (Clarke considered).



What had been required was only a minor amendment, aimed at the same mischief, bringing the legislation into line with what the commission had viewed as fulfilling that obligation. The decision to pass the regulations had arisen out of or been related to the obligation that it had sought to implement. Section 170 of the 1988 Act had therefore been lawfully amended. Furthermore, the regulations had not created a 'new' offence, they had simply sought to expand the definition of 'road' in an already existing offence, having regard to the way in which the Lords had construed the same.



Application refused.



Nigel Ley (instructed by Blackwells) for the applicant; David Pannick QC, Jason Coppel (instructed by the Treasury Solicitor) for the respondent.





Family



Divorce - jurisdiction - matrimonial proceedings - competing concurrent proceedings in two jurisdictions - effect of premarital agreement

Ella v Ella (2007): CA (Civ Div) (Lords Justice Thorpe, Maurice Kay, Mr Justice Charles):

17 January 2007
A wife (W) appealed against a decision that granted a stay to the respondent husband (H) of matrimonial proceedings in English courts. H and W, who both had dual Israeli and British nationality, had married in Israel. Immediately before the marriage, they had entered into a pre-nuptial agreement that the provisions of Israeli law should apply on any question affecting their property. W subsequently petitioned for dissolution of the marriage in London. H was aware of the petition, but issued a competing petition founded in the Tel Aviv courts. W applied to the rabbinical court, in Tel Aviv, for a postponement, and notified the court of the parties' agreement that the first session would be before the rabbinical court and would proceed in England. The application was granted and the court confirmed the parties' agreement. W subsequently instructed new lawyers, changed her case, and made an application that London was the proper court for primary determinations.



Prior to the court's decision on W's application, H made a without notice application for a stay of the English proceedings. The stay was granted, and the judge held that the rabbinical courts had exclusive jurisdiction. W contended that the judge had been wrong to order the stay, and had erred in dealing with the pre-nuptial agreement by elevating it to a major factor in her decision.



Held: there was no misdirection or any flaw in the exercise of the judge's discretion when making the stay. The judge recognised that the family's principal base was in London, but equally correctly concluded that the family's relationship with Israel was a profound one that extended far beyond just holiday periods. The judge considered the juridical advantage in light of the pre-nuptial agreement, and acknowledged that the court would respect orders of the rabbinical court.



At first sight, it looked like a case for the courts in London, but the judge was right to regard the pre-nuptial agreement as a major factor in her decision. This agreement was a contract that, in the jurisdiction of Israel, was of considerable effect.



By convention, where there were competing concurrent proceedings, each party should apply in the unwanted jurisdiction for a stay, and a decision would be made by the jurisdictions. In this case, W had failed to do that. If the judge had refused H's application for a stay, she would have been opening the gate to uncontrolled competitive jurisdictions (De Dampierre v De Dampierre [1988] AC 92 considered).



Appeal dismissed.



Bruce Blair QC (instructed by Freedman Green) for the appellant; Timothy Scott QC (instructed by Levison Meltzer Pigott) for the respondent.