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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> McNally v Saunders  EWHC 2012 (QB) (16 July 2021)
Cite as:  EMLR 3,  EWHC 2012 (QB)
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
| LISA McNALLY
– and –
RICHARD MUNDEN (instructed by Patron Law) for the Defendant
Hearing dates: 21 June 2021
Crown Copyright ©
Mr Justice Chamberlain:
Mr Saunders' blog
The context of the claim
Dr McNally's video
The tweets, posts and emails complained of
"Noting your video outburst @Lisa_McNally1 did you make #sandwell council aware of your significant mental health issues at interview?"
"Dr McNally in not the sort of doctor who asks gentlemen to cough whilst holding their balls – at least not in a diagnostic context but is a 'Chartered Psychologist'. [I am not medically-qualified and, whilst not wishing to denigrate a fellow scribbler, I found her articles 'lightweight' to say the least. Stripped of the psycho-babble they constituted little more than the fare of countless newspapers and magazines ie we will be healthier if we eat less, stop smoking, take exercise etc. Yes, these are important messages - including for a lardarse like me - but this is hardly ground-breaking stuff. Do I detect a whiff of narcissism about this output? Who can say?
But churning out this 'we'll all be better if we go jogging' guff does get one noticed to the extent that she boasts of appearing regularly on local radio down south and The Grauniad (no less) did a 'day in the life' feature on her in which she described 'dressing-up' to publicise various public health messages.
It has been a relatively good thing in recent years for many of us to be able to air mental health issues in public although this has unfortunately led to a stream of our pathetic 'royals' and other 'celebrity' figures saying how they once got a bit depressed when the cat died etc. There are many though who think the very public disclosure of mental health issues outside a 'controlled' context can be postively [sic] harmful - witness the suicides linked to 'Love Island' and the like. There are also many of us who approach health professionals for help and not to empathise with them in respect of their own medical issues.]
But McNally has now produced and made public a video about HER mental issues. How she thinks this seemingly extreme egotism 'helps' fellow mental-health sufferers is beyond me but there have been the usual suspects who have saluted what is supppsed [sic] to be her 'bravery' for coming out with this solipsistic slop. And to use the word again - what a time to release this narcissistic garbage - right in the middle of the biggest public health crisis in living memory and at a time when she herself has said the Covid death toll in Sadders has been rising and bucking the national trend! Even if you are the peculiar type of moron… who likes this sort of whimpering confessional navel-gazing, the timing is a monumental misjudgement. She has placed self very firmly before selflessness.
Of even greater concern is the very serious nature of McNally's own professed mental illness. She states that her problems started when she was only '4 or 5' and that she was a self-harmer as a child. She makes the astonishing claim that she was 'nearly' sectioned onto a psychiatric ward in a hospital but that she was only allowed to go home because she was supposed to be working as a professional on that same ward the next day! WTF?
She says nothing in her video about her current state of health (she does tweet that she 'manages' her mental health by, yes you guessed it, jogging) and has yet to answer my query whether she actually disclosed the extent of her mental health problems when she applied for her £100k a year job at Sadders? Would that have rung alarm bells or not? We don't know.
Yes we must get folk who have been ill for whatever reason back into employment but they must be fit enough to do the job and handle the pressure. Indeed it is frequently inspiriting [sic] when we hear genuine tales of triumph over adversity. But simply spieling one's own sad medical history when large numbers of people are dying of a new and hideous disease is, in my humble opinion, simply not appropriate for a public health 'professional'.
THE SKIDDER SAYS:
You are very well paid person in a professional position in the middle of a major emergency McNally. Please shut the f*ck up about yourself and concentrate on the very real public health crisis engulfing Sandwell! That's your job."
"A couple of days ago I wrote a piece which included comment on Lisa McNally's public video…
[There was then a link to the earlier post.]
Lisa McNally is the Director of Public Health at bent Sandwell and you might well imagine that Covid_19 was taking up rather a lot of her attention. But she took time out from a mere global pandemic to inform the world about her own seemingly very serious mental health issues. If you don't want to read the article now, I questioned whether this was (a) appropriate and relevant, (b) appropriate for a public health official in the middle of a major crisis and (c) whether she had informed Sandwell Council of her health record when applying for her £100k (plus) job."
"Meanwhile Super Mc [Dr McNally] has been blocking loads of people on Twitter including myself. This hitherto assiduous self-publicist (who took time out from Covid duties to 'courageously' make a video about her own seemingly very serious mental health history) appears to have a thin skin..."
"I wrote about the publicity-seeking chartered psychologist who is Sandwell Labour's 'Director of Public Health' and questioned whether Lisa 'Me, Me, Me' McNally might spend less time publicising herself and more on the Covid crisis. Since then she has gone into overdrive and has been plastered (unquestioningly) across the mainstream media…
After my article appeared Super Mc blocked me on Twitter. But this sensitive soul has also started blocking anyone who follows me too. Thus lots of Twitter users have been posting that they have never had any contact with her whatsoever but have now been blocked by her! And so if you too want to join the 'Blocked by Super Mc Club' please follow MY twitter account 'lol' @SandwellSkidder!
Meanwhile, under Super Mc's boastful stewardship, Sadders has become a major Covid hotspot..."
"This is a media-craving chartered psychologist at a bent @UKLabour Council opening taking on the government. Who is funding and operating McNally's 'scheme'?"
"The Rise and Rise of Lisa McNally!
Since Covid started one figure in bent Labour Sandwell has been ubiquitous in the media - the Director of Public Health, 'Dr' Lisa McNally. [This blog raised questions some time ago whether she could walk the walk as well as she talked the talk. The local media and the Labour comrades certainly think so as they have lionised her at every opportunity. She has major media rimmers... Certain Councillors cannot stop shrieking about what a 'great' job she is doing despite the statistics for Sandwell suggesting the exact opposite. This crew include the usual idiots… although even the sensible end of the market… have joined in.
Such was the hubris of these Labour Councillors they boasted last August that they had Covid licked!
The adulation of Super Mc extends to the wider Labour membership and she has a major and vocal group of supporters in Sandwell's schools (many of which are 'below average'). There has been a stream of teachers and even head teachers bigging her up and doesn't she love it!
The Dr's love affair with the media does not extend to this blog and myself.] She has been unable as yet to supply me with a short CV and has strangely declined to say whether she is one and the same person as Lisa Marina McNally (more on this anon but there is another Dr Lisa McNally currently practising in Ireland and I am trying to disentangle their respective histories).
McNally's frequent media comments and appearances usually state her position as being an employee of bent Labour Sandwell Council but, on the face of it, she appears to be puffing her own ego and political bias on these occasions and it is not clear whether what she says as a Council representative is actually the view of the Council (if, indeed, the moronic and bitterly divided Labour 'comrades' are capable of forming an opinion on anything). She always refers to herself as 'Dr' McNally (and she does hold a PhD) but my belief is that she has had very limited clinical experience - and her medical 'expertise' is as a Chartered Psychologist…
[It may be coincidence given that she has a cohort of teachers praising her every utterance but just recently she started arguing - specifically in her capacity as an employee of Sandwell Council - that teachers (who have done their utmost not to teach in schools duing [sic] Covid) should get priority for vaccination.
The roll-out of the vaccines has been agreed by very high-level scientists and real medical specialists via the Joint Committee on Vaccines and Immunology (JCVI).] Ok it's at least supposed to be a free country and a Chartered Psychologist should be able to say that she knows better than these top experts but is it right that she does so on behalf of the bent Council? And was she doing this for the benefit of the people of Sandwell or to get yet more media coverage for herself?
Having had her say, Super Mc went further and started actively pushing her/Sandwell Council's view on teachers getting priority vaccinations and even circulated a petition supporting it!
Maybe a person like McNally with, seemimgly [sic], so little clinical experience and expertise in this field does actually know best [but this is what Chief Medical Officer Chris 'Next Slide Please' Whitty said in last night's Downing Street briefing…
At present Sandwell Council have declined to say whether they share the view of their outspoken employee and, if so, when they agreed with her recommendation that teachers should be prioritised over other groups…"]
"The 'Dr' Lisa McNally Mystery!
I believe that Dr Lisa McNally, the Director of Public Health in bent Labour Sandwell, is not a medical doctor and, if she ever was, that was only for a very short period of time. Strangely, this assiduous cultivator of media coverage has suddenly lost her tongue and refuses to answer questions about this. Hang-on you may say, she calls herself 'Dr' so she must be a medic musn't [sic] she? Well let's start with a little discussion about the term 'doctor' - which, of course, we also came across with the hapless Alison Knight - now, mercifully, no longer a Director at the corrupt Authority…
In the case of Dr McNally she is a Chartered Psychologist (which one can become with a lowly-graded first degree only) but she did go on and undertake a PhD. And so… she can properly call herself 'Dr'. A problem arises, however, in that every single person I have been in communication with believes that McNally is some sort of actual medical doctor. And, of course, her ego is such that she takes every media opportunity to pronounce on medical issues always using the title 'Dr'.
The General Medical Council (GMC) say quite clearly to me that even someone with a medicine-related PhD must not hold themselves out as being a practising medical practitioner if s/he is unregistered (indeed it is actually a criminal offence). I have not seen evidence of Super Mc doing this but she passively allows people to form their own conclusion - and most people are seemingly coming to the wrong one.
The situation becomes a little complicated in that there are two folk called 'Dr Lisa McNally', one of whom practices in Ireland. But the GMC only have one listed on their books - Lisa Marina McNally. Sandwell's 'Dr' refuses to supply a brief CV for the benefit of Skidder readers and, indeed, refuses to even confirm whether she is Lisa Marina McNally or not. I suspect this is not 'our' 'Dr' McNally (and even if it is that opens a whole new can of worms which I will explain at a later date if it become applicable).
Why might this be relevant? Well our Lisa McNally has frequently put up on social media articles from the likes of The Guardian knocking the Government response to Covid. Without wishing to denigrate the excellent and important work of Chartered Psychologists she is hardly in the same league as the likes of Professors Whitty and Vallance and it is important at this critical time that the public do not get the impression that she is a high-level medical expert. The public need to understand the limits of her medical knowledge and that she is specifically NOT a medical doctor.
You might say, 'oh well she is still entitled to her opinion' but, alas, that is not correct insofar as she chooses to enter into political debate. Firstly, there is the question of whether attempting to undermine the national medical messages against Covid (as she at least gives the appearance of doing with her promulgation of 'knocking' pieces) is proper professional conduct in the midst of an extremely dangerous pandemic. Secondly, she is actually in a politically-restricted post and is specifically not allowed to push her own political agenda.
On her infamous mental health video [post passim] Sandwell's McNally stated, 'I am a psychologist. I trained as a psychologist ... I spent MANY YEARS as a professional offering support for mental health'. As above, she won't elaborate on this for your benefit.
Despite the global pandemic Sandwell's egocentric McNally felt the need to share her personal medical history with us and recounted this weird tale:
'I was nearly sectioned onto a mental health ward, a psychiatric ward in a hospital. One of the reasons they agreed to let me go home and be cared for at home was because I was supposed to be working in that mental health ward the next day.'
It's all me, me, me stuff whereas this must have been terrifying for the poor, vulnerable, folk on the ward and very distressing for her professional colleagues who had to deal with her as well as their existing patients.
And a look at her social media conjures up a curious image of a toddler constantly seeking affirmation. Many people have worked their butts off during Covid and you might imagine that a Director of Public Health would be one. And so she repeatedly tells us, she has. She regularly makes us aware she is working at weekends and a claque of admirers immediately tell her how marvellous she is…
And so the logrolling goes on as McNally praises all and sundry from whom she seeks approbation… There has be a term for this sort of desperate self-regard. If only I knew a Chartered Psychologist!...
… in a pathetic publicity stunt last week, McNally found time from her busy schedule to put up a 'joke' Twitter Poll taking the mick out of Covid-deniers. One of her main local media rimmers… had not one but TWO (metaphorical) orgasms about this 'brilliant' tweet and duly plugged it twice in one day!
If there is a turd floating in the cesspit of local news you can be sure it will be fished out by the world's worst TV 'News Magazine' Midlands Today and, sure enough, McNally was soon boasting how she had been interviewed about this b*llocks…"
The effect of this course of conduct on Dr McNally
"(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section… the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.
(3) Subsection (1)… does not apply to a course of conduct if the person who pursued it shows—
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
"(2) References to harassing a person include alarming the person or causing the person distress.
(3) A "course of conduct" must involve—
(a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person…"
"The principal cases on what amounts to harassment are: Thomas v News Group Newspapers  EMLR 4; Majrowski v Guy's and St Thomas's NHS Trust  1 AC 224; Ferguson v British Gas Trading Ltd  EWCA Civ 46; Dowson v Chief Constable of Northumbria Police  EWHC 2612 (QB); Trimingham v Associated Newspapers Ltd  EWHC 1296 (QB);  4 All ER 717; Hayes v Willoughby  1 WLR 935 ; R v Smith  1 WLR 1399; Law Society v Kordowski  EMLR 2; Merlin Entertainments LPC v Cave  EMLR 3; Levi v Bates  QB 91; Hourani v Thomson  EWHC 432 (QB); Khan v Khan  EWHC 241 (QB); Hilson v Crown Prosecution Service  EWHC 1110 (Admin); and Sube v News Group Newspapers Ltd  EMLR 25. From these cases, I extract the following principles:
(i) Harassment is an ordinary English word with a well understood meaning: it is a persistent and deliberate course of unacceptable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress; 'a persistent and deliberate course of targeted oppression': Hayes v Willoughby ,  per Lord Sumption.
(ii) The behaviour said to amount to harassment must reach a level of seriousness passing beyond irritations, annoyances, even a measure of upset, that arise occasionally in everybody's day-to-day dealings with other people. The conduct must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability under s. 2 : Majrowski  per Lord Nicholls; Dowson  per Simon J; Hourani - per Warby J; see also Conn v Sunderland City Council  EWCA Civ 1492  per Gage LJ. A course of conduct must be grave before the offence or tort of harassment is proved: Ferguson v British Gas Trading Ltd  per Jacob LJ.
(iii) The provision, in s.7(2) PfHA , that 'references to harassing a person include alarming the person or causing the person distress' is not a definition of the tort and it is not exhaustive. It is merely guidance as to one element of it: Hourani  per Warby J. It does not follow that any course of conduct which causes alarm or distress therefore amounts to harassment; that would be illogical and produce perverse results: R v Smith  per Toulson LJ.
(iv) s.1(2) provides that the person whose course of conduct is in question ought to know that it involves harassment of another if a reasonable person in possession of the same information would think the course of conduct involved harassment. The test is wholly objective: Dowson ; Trimingham  per Tugendhat J; Sube [65(3)], , [87(3)]. 'The Court's assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant': Sube [68(2)].
(v) Those who are 'targeted' by the alleged harassment can include others 'who are foreseeably, and directly, harmed by the course of targeted conduct of which complaint is made, to the extent that they can properly be described as victims of it': Levi v Bates  per Briggs LJ.
(vi) Where the complaint is of harassment by publication, the claim will usually engage Article 10 of the Convention and, as a result, the Court's duties under ss. 2, 3 , 6 and 12 of the Human Rights Act 1998 . The PfHA must be interpreted and applied compatibly with the right to freedom of expression. It would be a serious interference with this right if those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that they felt offended or insulted: Trimingham ; Hourani .
(vii) In most cases of alleged harassment by speech there is a fundamental tension. s.7(2) PfHA provides that harassment includes 'alarming the person or causing the person distress'. However, Article 10 expressly protects speech that offends, shocks and disturbs. 'Freedom only to speak inoffensively is not worth having': Redmond-Bate v DPP  HRLR 249  per Sedley LJ.
(viii) Consequently, where Article 10 is engaged, the Court's assessment of whether the conduct crosses the boundary from the unattractive, even unreasonable, to oppressive and unacceptable must pay due regard to the importance of freedom of expression and the need for any restrictions upon the right to be necessary, proportionate and established convincingly. Cases of alleged harassment may also engage the complainant's Article 8 rights. If that is so, the Court will have to assess the interference with those rights and the justification for it and proportionality: Hourani -. The resolution of any conflict between engaged rights under Article 8 and Article 10 is achieved through the 'ultimate balancing test' identified in In Re S  AC 1 593  per Lord Nicholls.
(ix) The context and manner in which the information is published are all-important: Hilson v CPS  per Simon LJ; Conn . The harassing element of oppression is likely to come more from the manner in which the words are published than their content: Khan v Khan .
(x) The fact that the information is in the public domain does not mean that a person loses the right not to be harassed by the use of that information. There is no principle of law that publishing publicly available information about somebody is incapable of amount to harassment: Hilson v CPS  per Simon LJ.
(xi) Neither is it determinative that the published information is, or is alleged to be, true: Merlin Entertainments - per Elisabeth Laing J. 'No individual is entitled to impose on any other person an unlimited punishment by public humiliation such as the Defendant has done, and claims the right to do': Kordowski  per Tugendhat J. That is not to say that truth or falsity of the information is irrelevant: Kordowski ; Khan v Khan -. The truth of the words complained of is likely to be a significant factor in the overall assessment (including any defence advanced under s.1(3) ), particularly when considering any application interim injunction... On the other hand, where the allegations are shown to be false, the public interest in preventing publication or imposing remedies after the event will be stronger: ZAM v CFM  EWHC 662 (QB)  per Tugendhat J. The fundamental question is whether the conduct has additional elements of oppression, persistence or unpleasantness which are distinct from the content of the statements; if so, the truth of the statements is not necessarily an answer to a claim in harassment.
(xii) Finally, where the alleged harassment is by publication of journalistic material, nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment. Such cases will be rare and exceptional: Thomas v News Group Newspapers -,  per Lord Phillips MR; Sube [68(5)-(6)]."
"(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to–
(a) the extent to which–
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code…"
"Section 3 of the HRA requires the court, so far as it is possible to do so, to interpret and give effect to legislation in a manner which is compatible with Convention rights. Section 12 of the HRA emphasises the care which the court must take not to interfere with journalistic freedom unless satisfied that this is necessary… Both these sections are important when considering the ambit of the criminal offence and the civil tort of harassment created by the 1997 Act in the context of publications by the media. Harassment must not be given an interpretation which restricts the right of freedom of expression, save in so far as this is necessary in order to achieve a legitimate aim. When considering that question, the court is required by section 2 of the HRA to have regard to the Strasbourg jurisprudence."
"32. Whether conduct is reasonable will depend upon the circumstances of the particular case. When considering whether the conduct of the press in publishing articles is reasonable for the purposes of 1997 Act, the answer does not turn upon whether opinions expressed in the article are reasonably held. The question must be answered by reference to the right of the press to freedom of expression which has been so emphatically recognised by the jurisprudence both of Strasbourg and this country.
33. Prior to the 1997 Act, the freedom with which the press could publish facts or opinions about individuals was circumscribed by the law of defamation. Protection of reputation is a legitimate reason to restrict freedom of expression. Subject to the law of defamation, the press was entitled to publish an article, or series of articles, about an individual, notwithstanding that it could be foreseen that such conduct was likely to cause distress to the subject of the article.
34. The 1997 Act has not rendered such conduct unlawful. In general, press criticism, even if robust, does not constitute unreasonable conduct and does not fall within the natural meaning of harassment. A pleading, which does no more than allege that the defendant newspaper has published a series of articles that have foreseeably caused distress to an individual, will be susceptible to a strike-out on the ground that it discloses no arguable case of harassment.
35. It is common ground between the parties to this appeal, and properly so, that before press publications are capable of constituting harassment, they must be attended by some exceptional circumstance which justifies sanctions and the restriction on the freedom of expression that they involve. It is also common ground that such circumstances will be rare."
"On my analysis, the test requires the publisher to consider whether a proposed series of articles, which is likely to cause distress to an individual, will constitute an abuse of the freedom of press which the pressing social needs of a democratic society require should be curbed."
"for the court to comply with HRA s.3, it must hold that a course of conduct in the form of journalistic speech is reasonable under PHA s.1(3)(c) unless, in the particular circumstances of the case, the course of conduct is so unreasonable that it is necessary (in the sense of a pressing social need) and proportionate to prohibit or sanction the speech in pursuit of one of the aims listed in Art 10(2), including, in particular, for the protection of the rights of others under Art 8."
"267… It would be a serious interference with freedom of expression if those wishing to express their own views could be silenced by, or threatened with, claims for harassment based on subjective claims by individuals that they feel offended or insulted…
268. One circumstance which might make a course of conduct in the form of speech amount to harassment, when otherwise it would not be harassment, is when it is repeated excessively, so as, for example, to amount to taunting."
"(1) It is for the claimant to demonstrate that the conduct complained of is unreasonable, to the degree required by the authorities cited above; and it is not a question of assessing the reasonableness of any opinions expressed in the publications complained of…
(2) The Court must test the 'necessity' of any interference with freedom of expression by using the well-known three-part test…
(3) In general, the techniques of reporting, including the tone and editorial decisions about content, are matters for the media and not the Court to determine…
(4) The court's assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant…
(5) Applied to the tort of harassment, these principles mean that nothing short of a conscious or negligent abuse of media freedom will justify a finding of harassment...
(6) It will be a rare or exceptional case in which these criteria are satisfied, in relation to media publication."
"Those observations appear to be borne out by history to date. Trimingham was the first claim for harassment by a media publisher to come to trial in England and Wales. It related to the content of 65 articles referring to the claimant's sexual orientation in what were said to be disparaging terms, 152 reader comments, said to taunt and lampoon her over her sexuality and appearance, and the conduct of journalists in gathering information for publication. The claim was dismissed. In the eight years since then there have been cases, such as Hourani v Thomson  EWHC 432 (QB), involving campaigns of harassment using a variety of media. But no other case of harassment by a media organisation appears to have come to trial in this jurisdiction. Two such cases have been brought unsuccessfully in Northern Ireland, relating to series of articles alleging involvement in serious criminal activity: King v Sunday Newspapers Ltd ( NIQB 107, appeal dismissed  NICA 8) and Fulton v Sunday Newspapers Ltd  NIQB 100 (appeal dismissed,  NICA 45)."
"(i) Civil servants are, of course, open to criticism, including public criticism; but they are involved in assisting with and implementing policies, not (like politicians) making them. As well as in their own private interests in terms of honour, dignity and reputation…, it is in the public interest that they are not subject to unwarranted comments that disenable them from performing their public duties and undermine public confidence in the administration. Therefore, in the public interest, it is a legitimate aim of the State to protect public servants from unwarranted comments that have, or may have, that adverse effect on good administration.
(ii) Nevertheless, the acceptable limits of criticism are wider for non-elected public servants acting in an official capacity than for private individuals, because, as a result of their being in public service, it is appropriate that their actions and behaviour are subject to more thorough scrutiny. However, the limits are not as wide as for elected politicians, who come to the arena voluntarily and have the ability to respond in kind which civil servants do not…
(iii) Where critical comment is made of a civil servant, such that the public interest in protecting him as well as his private interests are in play, the requirement to protect that civil servant must be weighed against the interest of open discussion of matters of public concern and, if the relevant comment was made by a politician in political expression, the enhanced protection given to his right of freedom of expression..."
Submissions for Mr Saunders
(a) In June 2020, the tweet and blog posts commented on the video Dr McNally had produced and posted online.
(b) The blog posts and 7 tweets from July to December 2020 commented on Dr McNally's practice of blocking individuals on Twitter. This was of significance because, as Dr McNally herself says in her evidence, she uses her Twitter account to disseminate public health information.
(c) The January blog posts and communications with the Council related to Dr McNally's use of the title "Dr" in what Mr Saunders considered was a medical context and her making what Mr Saunders considered to be political statements. Both were matters about which it was legitimate to comment and complain.
Submissions for Dr McNally
"The information that is relevant when assessing what a reasonable person would think of the conduct in question includes, of course, any characteristics of the claimant which are known to the defendant: Trimingham -".
The tests for strike-out and summary judgment
"calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should 'grasp the nettle… but it should not strike out under this sub-rule unless it is 'certain' that the statement of case, or the part under attack, discloses no reasonable [grounds for bringing the claim]… Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment."
"(i) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success;
(ii) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;
(iii) In reaching its conclusion the court must not conduct a 'mini-trial';
(iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents;
(v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial;
(vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case;
(vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction."
What Mr Saunders has to demonstrate
(a) there is no real prospect that Dr McNally will establish both:
(i) that the course of conduct complained of amounted to harassment; and
(ii) that Mr Saunders knew or ought to have known that his course of conduct amounted to harassment; and/or
(b) there is no real prospect that Mr Saunders will fail to establish that in the particular circumstances the pursuit of the course of conduct was reasonable.
The complaints emails
"The receipt of repeated complaints from an individual could hardly be regarded as unusual; in public life it might be regarded as an occupational hazard for those that occupy a role of any prominence."
Publication to the world at large
The Sandwell Skidder as journalism
"The Court would also note that given the important role played by the internet in enhancing the public's access to news and facilitating the dissemination of information, the function of bloggers and popular users of the social media may be also assimilated to that of 'public watchdogs' in so far as the protection afforded by art.10 is concerned."
There is no reason why the position should be any different as regards the right to freedom of expression, the primary right guaranteed by Article 10.
Tone and style
"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having".
"To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.
…Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us."
The content of the posts and tweets
The balancing exercise
(a) the complaint letters do not add materially to the course of conduct complained of: see - above;
(b) the course of conduct therefore involved, materially, publication to the world at large and, at least after Dr McNally had "blocked" him on Twitter, there is no evidence that Mr Saunders took steps to bring the posts or tweets to her attention: see - above;
(c) even though Mr Saunders' blog is not part of the "mainstream" or "conventional" media, the posts and tweets were "journalistic material" for the purposes of s. 2(4) of the HRA and attract the enhanced protection given by Article 10 to journalistic expression: see - above;
(d) their puerile and abrasive tone and style did not disentitle them to that protection: - above;
(e) their content was not, on its own, such as to make them oppressive or such as to make it unreasonable for Mr Saunders to publish them: see - above; and
(f) Dr McNally's Article 8 interests were either not engaged at all or the weight to be given to those interest was significantly diminished by her own decision to put her history of mental ill-health into the public domain: see - above.