The Claimant is a practising osteopath, registered colonic hydrotherapist and acupuncturist resident in Jersey. The Claimant’s practice is primarily based in Jersey and Guernsey; however, he has more recently opened a practice in Cornwall. The First to Third Defendants are all residents of Jersey and work within Jersey Health or Social or Safeguarding services. The Fourth Defendant is the equivalent in Jersey of the Chief Medical Officer in this jurisdiction. The Fifth Defendant, the States of Jersey, was alleged by the Claimant to be vicariously liable for the alleged actions of the First to Fourth Defendants.
The Claimant issued a claim in the High Court for defamation and/or malicious falsehood against the First to Fifth Defendants in respect of statements made in both England and Jersey about him concerning his alleged treatment of an anorexic patient (“Patient A”) in Jersey. The Court made clear that these were allegations and the Claimant was entitled to the presumption of innocence.
Relevant publications in England were a complaint concerning the Claimant’s alleged treatment of Patient A and a Safeguarding Report attached to a witness statement in connection with the investigation of the complaint. The complaint was made to the General Osteopathic Council (“GOC”) (the Claimant’s regulator by virtue of Jersey law, albeit itself based in England). The Defendants argued that the statements complained of clearly attracted absolute privilege and/or qualified privilege.
The Claimant had been granted permission by the Master to serve the proceedings on the Defendants out of the jurisdiction in Jersey. The Defendants applied to the High Court Judge (Nicklin J) to set aside that permission.
Issues before the Court
There were two main issues for the Court to consider:
a) whether the Claimant’s claims in defamation and/or malicious falsehood had any real prospect of success; and
b) if so, whether England & Wales was the proper forum in which to bring those claims.
In addition, the Court considered the applicability in the present case of the Grounds in CPR 6B para 3.1 and rejected two of them (see , - ).
It also referred to the rule in Diamond v Sutton (approved in Berezovsky  1 WLR 1004) on the need to limit the claim to alleged publications in England when permission is granted to serve out (see ).
The first main issue as to real prospect of success was central to the question of whether the Claimant should be permitted to serve the proceedings on the Defendants out of the jurisdiction, in Jersey (see ).
Decision and reasons
Real prospect of success
The Court held that the GOC and its committees met the criteria to be recognised as a quasi-judicial body as set out in Trapp v Mackie  1 WLR 377, 379 (see ). The GOC’s operations had been comprehensively prescribed by primary legislation in the form of the Osteopaths Act 1993 and subsequent secondary legislation, which included the following :
a) the over-arching objective of the GOC in the exercise of its functions is the protection of the public;
b) authority is given to the Investigating Committee to impose interim suspensions in relation to osteopaths complained about;
c) authority is given to the Professional Complaints Committee (“PCC”) to hold public (and private) hearings in relation to any complaints;
d) authority is given to the PCC to summon witnesses to give evidence or produce documents, a failure to respond to which is a criminal offence;
e) the PCC has the power to administer oaths;
f) appeals against decisions of the PCC can be made, as of right, to the High Court.
(Other examples are cited at [65(i)-(xii)] further illustrating the point).
Having considered the relevant authorities and principles (see  – ), the Court held that complaints to the GOC (and its committees) about one of its registered practitioners were clearly protected by absolute privilege/immunity from suit (see ).
In the alternative, the Court held that it was clear that such communications would be protected by qualified privilege (see ). The Court held that, on the facts of this case, there was no real prospect of establishing malice (see ).
Whilst the Claimant had failed to demonstrate that there was a viable claim, the Court nevertheless went on to consider that Jersey would be the appropriate forum to determine the Claimant’s claim (see ) by reference to, among other things, s.9 Defamation Act 2013). In doing so, Nicklin J had regard to a number of matters set out at [85(i)-(vi)], including:
a) the fact that all of the parties were located in Jersey (on which he did not put great weight);
b) the Claimant could claim for publications in England and in Jersey through the Jersey Court but not through the Court in England;
c) the limitation period in Jersey was 3 years;
d) in light of (b) above, the Jersey Court was therefore better placed to assess causation in regard to the Claimant’s claim for special damages;
e) there is no real risk why the Claimant would not receive a fair trial in Jersey and
f) vindication (if successful) could be achieved through the Jersey Court.
In light of the above, the Court set aside the decision granting the Claimant permission to serve proceedings on the Defendants out of the jurisdiction in Jersey and dismissed the claim.
Costs were subsequently awarded against the Claimant on the indemnity basis in a separate decision by Nicklin J.
Timothy Atkinson appeared for the Defendants.
The judgment is available here.