ZC v Royal Free London NHS Foundation Trust

Factual and Procedural Background

The Plaintiff commenced proceedings against the Defendant, a NHS Foundation Trust, seeking damages for libel based on an email sent by a solicitor employed by the Defendant. The Plaintiff also claimed damages for misuse of private information and breach of Article 8 of the European Convention on Human Rights. The hearing was listed in open court with parties’ names publicly available initially, but the Plaintiff applied for anonymisation of the judgment, which was opposed by the Defendant and the Press Association.

The Plaintiff’s case arose from an incident involving her General Practitioner ("GP") in December 2015. She attended the Defendant’s hospital’s accident and emergency department (A&E) using false names, including "SC" and "MD," to avoid her real identity being disclosed to the GP. She sought a private prosecution against the GP and was instructed by a magistrate to obtain a medical report from a hospital doctor. The Plaintiff made various attempts to obtain this report, including telephone calls and emails to hospital staff, during which she maintained false identities and admitted altering an email purportedly from the court to expedite the request.

The Defendant’s solicitor, concerned about the authenticity of the request and the Plaintiff’s identity, investigated and contacted the magistrates’ court. It was established that the Plaintiff had falsified the court email and used multiple identities. The Defendant’s solicitor sent an email to the court’s administrative officer containing statements about the Plaintiff’s conduct, including that she had used multiple identities and falsified the email, and that the Defendant would not provide a statement. The Plaintiff alleged this email was defamatory and a breach of her privacy.

The trial included witness evidence, cross-examination, and consideration of relevant legal principles including the Defamation Act 2013 and Article 8 and 10 of the European Convention on Human Rights. The Supreme Court’s decision in Lachaux v Independent Print Ltd was also considered.

Legal Issues Presented

1. What was the natural and ordinary meaning of the email sent by the Defendant’s solicitor?
2. Did the email cause or was it likely to cause serious harm to the Plaintiff's reputation under section 1 of the Defamation Act 2013?
3. Did the Defendant succeed in the defences of truth or honest opinion under sections 2 and 3 of the Defamation Act 2013?
4. Was there a reasonable expectation of privacy in relation to the information disclosed in the email?
5. If so, did the Plaintiff’s privacy rights under Article 8 yield to the Defendant’s freedom of expression rights under Article 10?

Arguments of the Parties

Plaintiff's Arguments

• The email meant the Plaintiff was fraudulent, dishonest, and suffering from a mental illness (multiple personality disorder).
• The email was defamatory and caused serious harm to her reputation, including preventing a summons against the GP and affecting her employment prospects.
• The Defendant’s conduct was malicious, part of a conspiracy by a group of Jewish people within the Defendant’s staff to obstruct justice and protect the GP.
• The email disclosed private and confidential medical information without consent, breaching privacy rights under Article 8.
• The Plaintiff denied falsifying the court email or intended to deceive, asserting she only amended it to show ongoing court proceedings as requested.

Defendant's Arguments

• The email did not allege fraud but stated a referral had been made to the NHS Fraud investigation team, which was substantially true.
• The defamatory imputations were substantially true based on the Plaintiff’s admitted use of false names and falsification of the court email.
• The Plaintiff failed to prove serious harm caused by the email, which was sent to a very limited number of people, many of whom already knew the facts.
• The email was a statement of opinion in part, protected by the defence of honest opinion.
• The information disclosed was not private as the Plaintiff had waived privacy by initiating a public prosecution and the use of false names was not protected information.
• The Defendant denied any conspiracy or malice and asserted the actions were taken to protect patient confidentiality and the proper administration of justice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re Guardian News and Media Ltd [2010] 2 AC 697	Balancing public interest in publication against privacy rights under Article 8.	Used to frame the test for anonymisation and privacy considerations.
Commissioners for HMRC v Banerjee [2009] EWHC 1229 (Ch)	Test for necessity of anonymity or private hearing to protect privacy under Article 8.	Guided the court’s approach to anonymisation application.
Campbell v MGN Ltd [2004] 2 AC 457	Reasonable expectation of privacy; balancing Article 8 and Article 10 rights.	Applied in assessing privacy claim and expectation of privacy.
Murray v Express Newspapers Plc [2008] EWCA Civ 446	Objective test for reasonable expectation of privacy.	Used to evaluate privacy claim and expectation of privacy.
HRH Prince Abdulaziz Bin Mishal Bin Addulaziz Al Saud v Apex Global Management Ltd [2014] 1 WLR 4495	Appellate court’s approach to case management decisions.	Supported refusal of appeal against case management decisions.
Lachaux v Independent Print Ltd [2019] UKSC 27	Meaning of 'serious harm' in section 1 of the Defamation Act 2013.	Guided the court’s assessment of whether the email caused serious harm.
Stocker v Stocker [2019] UKSC 17	Determination of natural and ordinary meaning in defamation.	Applied to assess the meanings imputed by the email.
Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB)	Principles for determining defamatory meaning.	Outlined the approach to meaning applied by the court.
Serafin v Malkiewicz and others [2019] EWCA Civ 852	Burden of proof on defendant to show truth in defamation.	Supported the court’s finding that the Defendant discharged the burden of proof.
Ivey v Genting Casinos (UK) Ltd [2018] AC 391	Test for dishonesty in law.	Applied to assess the Plaintiff’s conduct and dishonesty.
McKennitt v Ash [2008] QB 73	Framework for misuse of private information claims and balancing Article 8 and 10 rights.	Guided the court’s privacy analysis and balancing exercise.
PJS v News Group Newspapers [2016] AC 1081	Balancing competing Convention rights of privacy and freedom of expression.	Applied in the court’s privacy and freedom of expression balancing.
Sim v Stretch [1936] 2 All ER 1237	Definition of defamatory words.	Referenced in explanation of defamation principles.
Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 74	Common law approach to defamation harm.	Discussed in relation to statutory changes by the Defamation Act 2013.
Thornton v Telegraph Media Group [2010] EWHC (QB) 1414	Common law approach to defamation harm.	Referenced in relation to the threshold of serious harm.
Stocker v Stocker [2019] UKSC 17	Meaning of defamatory words.	Reiterated principles for determining natural and ordinary meaning.
Z v Finland (1998) 25 EHRR 371	Strong protection of medical information under Article 8.	Referenced in privacy claim context.
AAA v Associated Newspapers Ltd [2013] EWCA Civ 554	Balancing exercise between Articles 8 and 10.	Used to support the proportionality test in privacy claims.
Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)	Balancing Article 8 and Article 10 rights.	Referenced in privacy balancing exercise.

Court's Reasoning and Analysis

The court began by considering the Plaintiff’s application for anonymisation, applying the test under CPR r 39.2(4) and relevant case law. It concluded the test for anonymisation was not satisfied, refusing the application but temporarily anonymising the judgment pending appeal.

Regarding the libel claim, the court applied established principles for determining the natural and ordinary meaning of the words, rejecting the Plaintiff’s claim that the email imputed mental illness. It found that the reasonable reader could understand the email as imputing dishonesty and fraud based on the Plaintiff’s admitted use of false names and falsification of a court email.

The court then assessed whether the Plaintiff had proved serious harm under section 1 of the Defamation Act 2013, considering the limited publication to four individuals, two of whom already knew the facts. The Plaintiff’s assertions of broader harm and conspiracy were unsupported and rejected. The court found no evidence of serious harm caused or likely to be caused by the email.

In the alternative, the court considered the defence of truth and found the Defendant had discharged the burden of proof. The Plaintiff’s admitted dishonesty, including falsification of a court email and use of multiple false names to deceive hospital staff, made the imputations substantially true. The court applied the legal test for dishonesty from Ivey v Genting Casinos.

The court also considered the privacy claim under Article 8. It found no reasonable expectation of privacy in the Plaintiff’s use of false names when seeking medical treatment, especially as the Plaintiff had waived privacy by initiating a public prosecution where such facts would be disclosed. Even assuming some privacy interest, the court held that the right to freedom of expression and the interests of justice outweighed the Plaintiff’s privacy rights.

The court rejected the Plaintiff’s conspiracy allegations as unsupported and contradicted by evidence, including the Defendant’s solicitor’s religious faith. The court also rejected claims of malice or perversion of justice by the Defendant.

Holding and Implications

The Plaintiff’s claims for libel and misuse of private information (breach of Article 8) are dismissed.

The court held that the defamatory imputations alleged were substantially true and that the Plaintiff failed to prove serious harm as required by the Defamation Act 2013. The privacy claim failed as there was no reasonable expectation of privacy in the information disclosed, and even if there were, the Defendant’s freedom of expression rights and the interests of justice prevailed.

This decision results in the dismissal of the Plaintiff’s claims without establishing new precedent beyond the application of existing legal principles. The Plaintiff is not entitled to damages or injunctive relief sought in relation to the defamatory email or privacy breach. The court’s refusal to anonymise the judgment, subject to appeal, reflects the balance between open justice and privacy rights.