A GP falsely condemned by Kelvin Mackenzie in an article in the Daily Mail as “a foreign doctor” who subjected a patient to “a year of hell” by having his driving licences taken away for no good reason was awarded substantial libel damages by the High Court.
The claimant brought a libel action in respect of an article, headlined “A whole year of hell, thanks to a foreign doctor”, which appeared on 21 April 2012 in the Daily Mail and on MailOnline. It told how a bus driver patient, Mr Jones, had gone with foot and ankle pain to Hastings GP Dr Serrano, who had diagnosed gout. The patient claimed that he had told the Spanish-born doctor that he was just “a social drinker” who drank a pint or two after work and perhaps a couple of spirits at weekends but that, due to a “language barrier”, Dr Serrano had misunderstood him and then refused to listen when the patient tried to put him right. The article suggested the gout diagnosis had been wrong and claimed that, because of the misunderstanding and without any research or tests or any evidence whatsoever, Dr Serrano had misdiagnosed the patient as alcohol dependent and reported him to the DVLA, with the result that he lost his driving licences for a year and was “robbed” of his livelihood. The article additionally claimed that the doctor had tried to avoid commenting prior to publication, saying first that he could not speak for reasons of confidentiality, then that he would speak if he received written permission from the patient, but then, when provided with the patient’s written permission, making further bogus excuses to avoid answering questions.
The publishers of the Daily Mail raised defences of justification and fair comment. The trial took place over eight days in July 2014.
The article had 5 defamatory meanings:
- The patient had suffered a nightmare when he wanted treatment for swollen legs because the claimant GP had written to the DVLA to have his licence revoked for persistent abuse of alcohol when it was wrong and inappropriate to do so: (a) because the GP had been told the patient might have a pint or two after work, and a couple of spirits if he went out with his wife and friends at the weekend; (b) because of the language barrier the GP had wrongly understood that the patient drank that amount every night and then refused to listen; and (c) without any research into whether the patient persistently abused alcohol such as liver or blood tests, and without any other evidence whatsoever. The DVLA had relied on the GP’s report and revoked the patient’s bus and personal driving licences.
- The GP reported the patient to the DVLA and was it was wrong and inappropriate to do so because it was a breach of patient confidentiality.
- The GP unreasonably refused to persuade the DVLA to revoke its decision in circumstances where blood, liver and kidney tests, when carried out by another doctor, showed that the patient did not persistently abuse alcohol, and where tests subsequently carried out by an independent doctor brought in by the DVLA showed no trace of persistent abuse of alcohol.
- The GP pretended not to be able to talk about Mr Jones’ complaints on the basis of patient confidentiality, when an appropriate consent form had been sent through
- The GP’s conduct was shocking.
None of the article’s defamatory meanings were true. The patient had in fact told Dr Serrano he was drinking half a bottle of Bacardi at night on some nights (as well as beer with colleagues after work). Dr Serrano had not misunderstood him to say he drank that amount every night. There had been no language barrier. Dr Serrano had not refused to listen. He had carried out relevant research into the patient’s persistent abuse of alcohol by looking at previous reports of excessive drinking, by noting elevated Gamma GT readings and by diagnosing gout, which had been caused by excessive alcohol intake. There was considerable evidence to justify the doctor’s actions. It was not wrong or inappropriate to write to the DVLA: the doctor had been entitled to do so under guidance issued by the DVLA and the GMC. Dr Serrano had not unreasonably refused to persuade the DVLA to restore the patient’s licences. Tests had not shown the patient did not persistently abuse alcohol. Tests after the licences were revoked had confirmed, not contradicted, persistent alcohol abuse. The decision by the DVLA to revoke had been correct and sound. Nor had Dr Serrano been “generally uncaring” to the patient after revocation of his licences, as alleged. There had been nothing he could properly do to change the outcome for the patient given the evidence about his drinking. Dr Serrano had not been at liberty to disclose the patient’s confidential medical details to Mr Mackenzie (or to his researcher Charles Rae) or the Daily Mail: the written consent provided had not been adequate to permit it. Dr Serrano had been genuinely and properly concerned about patient confidentiality.
The statement that Dr Serrano’s conduct had been “shocking” was comment. But the defence failed: it was based on statements of fact that were not privileged and “facts” that had not been shown to be true, or sufficiently true.
The claimant was awarded £45,000 general damages, stated by the Judge to serve the recognised threefold purpose of (a) compensating for distress and hurt feelings. (b) compensating for actual injury to reputation, proved or reasonably to be inferred, and (c) serving as “an outward and visible sign of vindication”.
The court heard evidence of several distressing events and incidents with patients resulting from the article’s publication. The Judge accepted the evidence of the claimant’s wife, close friend and the senior partner of the new practice to which he had since moved that he had been caused a great deal of stress and strain and distress by publication of the article. He had been genuinely hurt and upset, particularly by the parts relating to his language skills. The incidents with patients showed that the article had had a continuing effect on his reputation, even if others, including professional connections, realised it had been unjustified. The Judge accepted that Dr Serrano had lost confidence because of the article and that this had played a part in his decision to leave his Hastings practice, where he would have become senior partner, to become a less senior member of his new practice in Bexhill.
Matters proved true and vindication by the judgment
The court found that in course of its failed defence of justification, the defendant had proved that Dr Serrano had failed to include in his letter referring the patient to the DVLA information obtained at the consultation and later that should have been included to comply with a reasonable standard of medical practice. These omissions had made no difference to the correctness of the DVLA’s decision to revoke the patient’s licences. Nor did they seriously undermine Dr Serrano’s reputation. Nevertheless, the court took them into account in arriving at its award of damages, together with the vindication of Dr Serrano provided by the court’s judgment rejecting the defence of justification.
No award of aggravated damages
The Judge said he was asked by the claimant to make an award of aggravated damages in respect of the way in which the defence had been conducted and because the defendant had persisted in a justification defence. However, his judgment was that “the proper defence of an action” was not to be taken into account in aggravation of damages in libel proceedings, relying on the dictum of Lord Neuberger in Blakeney Williams v Cathay Pacific Airways Ltd  HKCFA 61 in the Hong Kong Court of Final Appeal that it is “wrong in principle to award aggravated damages to a plaintiff in a defamation case, solely because the defendant has decided in good faith to raise a defence of justification, which is then run in a reasonable way” as being consistent with the common law.
The Judge noted that the defendant had accused the claimant of lying on a number of occasions in the proceedings. However, the Judge expressly held that Dr Serrano had not lied: he had done his honest best to give accurate evidence about all the relevant matters. Where his evidence had not been right, he had been honestly mistaken.
In these circumstances, the Judge declined to make an award of aggravated damages.
Harvey Starte, instructed by Taylor Hampton solicitors, acted for Dr Serrano.
The judgment is available here.