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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Wakefield v Channel Four Television Corp & Ors [2006] EWHC 3289 (QB) (21 December 2006) URL: https://www.bailii.org/ew/cases/EWHC/QB/2006/3289.html Cite as: [2007] 94 BMLR 1, [2006] EWHC 3289 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Andrew Wakefield![]() |
Claimant |
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| Channel Four Television Corporation Twenty Twenty Productions Ltd Brian Deer![]() |
Defendants |
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Adrienne Page QC, Matthew Nicklin and Jacob Dean (instructed by Wiggin LLP) for the Defendants
Timothy Dutton QC (instructed by Field Fisher Waterhouse) for the GMC
Hearing dates: 29th November 2006
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Crown Copyright ©
The Hon. Mr Justice Eady :
Deer
'). Serious criticisms were made of the Claimant in the course of the programme and these proceedings were commenced on 31 March 2005. The Defendants are seeking to justify the allegations in their defence served on 10 October 2005 and have pleaded the following Lucas-Box meanings, namely that the Claimant:
i) had dishonestly and irresponsibly spread fear that the MMR vaccine might cause autism in some children, even though he knew that his own laboratory's tests dramatically contradicted his claims and he knew or ought to have known that there was absolutely no scientific basis at all for his belief that MMR should be broken up into single vaccines;
ii) in spreading such fear, also acted dishonestly and irresponsibly, by repeatedly failing to disclose conflicts of interest and/or material information, including his association with contemplated litigation against the manufacturers of MMR and his application for a patent for a vaccine for measles which, if effective, and if the MMR vaccine had been undermined and/or withdrawn on safety grounds, would have been commercially very valuable;
iii) caused medical colleagues serious unease by carrying out research tests on vulnerable children outside the terms or in breach of the permission given by an ethics committee, in particular by subjecting those children to highly invasive and sometimes distressing clinical procedures and thereby abusing them;
iv) has been unremittingly evasive and dishonest in an effort to cover up his wrong-doing;
v) has improperly lent his reputation to the International Child Development Resource Centre which exploited very vulnerable parents by promoting to them expensive products the efficacy of which (as he knew or should have known) had no scientific basis.
There are extensive particulars of justification running to some 37 pages, and there is also a defence of qualified privilege, itself running to about 52 pages. There is, for good measure, a defence of fair comment to address those aspects of the programme which truly can be classified as comment rather than factual assertions.
Deer
had made a complaint to the GMC about the Claimant. His communications were made on 25 February, 12 March and 1 July 2004. In due course, on 27 August of the same year, the GMC sent the Claimant a letter notifying him of the information against him. Although he has not yet been formally charged with any disciplinary offence, it seems likely that a hearing will take place commencing in July 2007 and lasting for many weeks. There are also GMC proceedings pending in respect of his colleagues Dr Simon Murch and Professor John Walker-Smith. There is considerable overlap between the subject-matter of the disciplinary proceedings and the allegations in the programme and, consequently, with the issues in these proceedings.
i) Those disclosed to the GMC by the Legal Services Commission;
ii) Witness statements and exhibits for the disciplinary proceedings;
iii) Eleven files of documents disclosed to the GMC by University College London.
Wakefield
should disclose in the libel action pursuant to CPR 31.6 should also be available to them for inspection in the usual way.
Wakefield. His objections are encapsulated in the last two paragraphs of his witness statement, headed "Conclusions":
"25. The GMC is concerned that it remains able to offer assurances to patients as well as other providers of information that their information will be used only for the purposes of fitness to practise proceedings. Considerable persuasion is often needed to ensure that patients (and other complainants) make and follow through allegations. If it were not able to offer protections regarding confidential information, there would be a real risk that such people would not do so. This would not be in the public interest.
26. Co-operation with regulators such as the GMC is essential for the carrying out of statutory functions. If information provided to the GMC for its own fitness to practise proceedings was even potentially disclosable in unrelated proceedings, there could well be a failure of that necessary co-operation. In my view, if even one single person is impacted by information provided to the GMC being disclosed to the parties, this is contrary to the public interest. I do not consider that the interests of the parties to the libel litigation in this case outweighs that risk to the GMC's statutory duties and functions. Anything which would jeopardise the co-operation with GMC proceedings is a threat to the public interest in those proceedings continuing".
"(1) For the purpose of assisting the General Council or any of their committees in carrying out functions in respect of professional conduct, professional performance or fitness to practise, a person authorised by the Council may require –
(a) a practitioner (except the practitioner in respect of whose professional conduct, professional performance or fitness to practise the information or document is sought); or
(b) any other person, who in his opinion is able to supply information or produce any document which appears relevant to the discharge of any such function, to supply such information or produce such a document.
…
(4) Nothing in this section shall require or permit any disclosure of information which is prohibited by or under any other enactment.
(5) But where information is held in a form in which the prohibition operates because the information is capable of identifying an individual, the person referred to in subsection (1) may, in exercising his functions under that subsection, require that the information be put into a form which is not capable of identifying that individual.
(6) Subsection (1) shall not apply in relation to the supplying of information or the production of any document which a person could not be compelled to supply or produce in civil proceedings before the court (within the meaning of section 38)
…"
i) The purpose of the statutory power under s.35A is to assist the GMC in performing its function of regulating the conduct, professional performance or fitness to practise of medical practitioners.
ii) It was intended by the legislature that there should be no obstacles to the GMC obtaining disclosure, save for the circumstances identified in the statute (and set out above). The threshold requirements to be satisfied before a request can be made are "minimal"; in that a person authorised by the GMC is permitted to require information or documents from a person who, in his opinion, is able to supply information or documents that appear to be relevant to the regulatory functions of the GMC.
iii) This provision is to be compared with the requirements that are specified for orders under the CPR, which may be thought in some respects analogous to the s.35A powers, but which tend to set higher threshold tests:
a) To obtain a Norwich Pharmacal order, the applicant must have a real and unsatisfied claim against a wrongdoer who will remain unknown unless the respondent reveals the wrongdoer's identity: British Steel Corporation v Granada Television [1981] AC 1096;
b) An order for disclosure of documents by a non-party under CPR 31.17 may not be obtained unless, among other conditions, the documents are likely to support or adversely affect the respective cases of the litigants;
c) The provision within the CPR that most resembles s.35A is that under CPR 25.1(1)(g) for an order directing a party, not necessarily a potential defendant, to provide information about the location of assets which are or may be the subject of an application for a freezing injunction;
d) It is to be noted that even that jurisdiction may not be used by an applicant to determine whether or not there are grounds for subsequently applying for a freezing injunction: Parker v C S Structured Credit Fund Ltd [2003] EWHC 391 (Ch).
iv) By contrast, it is clearly not a requirement of s.35A that it should be used only in support of an intended prosecution of a doctor. It may legitimately be used to investigate whether or not there are grounds for bringing proceedings.
v) The only permitted objections to a s.35A request are that there is a specific statutory objection to disclosure (see e.g. s.35A(4) set out above) or that the request was made in relation to information or documents "which a person could not be compelled to supply or produce in any civil proceedings before the court". The latter provision, contained in s.35A(6), would appear to be concerned with documents which are generically protected from disclosure (e.g. by legal professional privilege). Conversely, once it is established that the document is of a kind that a person could be ordered to disclose in civil proceedings, there can be no further objection to disclosure. Mr Dutton submits that the words of the section preclude the ability to withhold documents on grounds of mere confidentiality, as opposed to legal privilege.
vi) Pursuant to The Medical Act 1983 (Amendment) and Miscellaneous Amendments Order 2006, the GMC is entitled to seek an order for production of documents if 14 days have elapsed from service under s.35A.
i) The documents obtained using compulsory powers should be used only for the purposes for which those powers were conferred by the legislature;
ii) The documents disclosed for one purpose should not be used for another;
iii) That disclosure should not interfere with the operations of public investigative bodies.
"I am not sure that it is right to treat the implied undertaking in civil proceedings merely as an inducement to a litigant to disclose documents which he might otherwise have been inclined to conceal. I think that it is more a matter of justice and fairness, to ensure that his privacy and confidentiality are not invaded more than is absolutely necessary for the purposes of justice. But I readily accept that these considerations do not apply to the Crown as prosecutor with the same force as they apply to an individual litigant. In the case of material disclosed by the prosecution, the main interest in privacy and confidentiality lies at one or sometimes two removes: in the persons who provided the information and in the persons to whom the information refers.
Otton LJ said that the most impressive argument in favour of an implied undertaking was the need to protect informers close to criminals. But in his view sufficient protection was already provided by public interest immunity, which entitled the prosecution to apply for leave to withhold documents which would disclose the identity of a police informer, and by the immunity from suit accorded to statements made for the purpose of litigation, which I shall consider in more detail later.
In my view, this takes too narrow a view of the interests which require protection and too broad a view of the other rules which may be available for that purpose. Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion, without coming within the category of informers whose identity can be concealed on grounds of public interest. They will be moved or obliged to give the information because they or the law consider that the interests of justice so require. They must naturally accept that the interests of justice may in the end require the publication of the information or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected".
It was there clearly being recognised that no absolute assurance could be given and that there may be "overriding requirements" that other considerations be given priority, but the matter will be determined ultimately by where "the interests of justice" lie.
i) The GMC supplied the documents to the Claimant on the express basis that they were only to be used for preparing a defence in the contemplated disciplinary proceedings. Accordingly, it is submitted, an implied duty arose to treat the documents as confidential and to use them only for the purposes of the GMC proceedings. From this it is said to follow that the Claimant had no right to permit inspection of them.
That seems to me to be a non sequitur, since in general terms it cannot be said that confidentiality will of itself override an obligation to permit inspection. The obligations relating to disclosure and inspection arise by virtue of the CPR. It is true that it is not always necessary under the CPR (any more than was the case under the old Rules of the Supreme Court) to give disclosure or permit inspection of documents which are prima facie relevant. The court may conclude, in any given case, that disclosure or inspection is not necessary or proportionate to the particular requirements of the litigation. The mere fact that the documents contain confidential information, however, will not be a complete answer.
ii) In the case of a public authority, such as the Serious Fraud Office, there will be no personal interest in the continued confidentiality of the material and issues will have to be resolved in terms of public policy. I naturally accept this proposition – so far as it goes.
iii) It has not yet been determined which of the documents obtained by the GMC (whether under s.35A or under the limited consents) will be used in the disciplinary process, as no formal charge has yet been brought. The order the Defendants seek might well have the result, therefore, that the documents would be inspected for the purposes of this libel litigation before they come into play for any of the purposes contemplated by the statute. Indeed, in some cases, the documents might never be used for disciplinary proceedings.
In my judgment, however, that argument misses the point, since it is recognised that the threshold requirements for obtaining documents under s.35A are relatively low. (Mr Dutton himself relies on this point.) The statutory purpose can be fulfilled by obtaining documents purely for the purpose of investigating whether or not there are grounds for bringing proceedings. That limited purpose has already been achieved.
iv) It is said that the passages from the speech of Lord Hoffmann are directly in point here because positive assurances were given by the GMC that the documents would only be used for the purposes of investigating and/or prosecuting the Claimant.
As I have already said, however, such assurances may well have been too sweeping and must be regarded as subject to the CPR and their implementation by the court.
v) Mr Dutton submits that if I order the inspection then the assurances would be shown to have been worthless.
They would not be "worthless", since every effort would be made to ensure confidentiality is maintained. If the assurances were, on the other hand, over-stated, to that extent they were inaccurate and certainly cannot bind the court.
vi) The GMC depends upon co-operation by the public, the profession and institutions in the provision of confidential information. Such co-operation would not be forthcoming, or so readily forthcoming, if assurances could not be given.
That may be so, but obviously any such assurance must be accurate and not over-stated. Moreover, in cases where co-operation is not forthcoming in the light of an accurate assurance, the statutory powers under s.35A are there in the background as Parliament intended.
vii) Reliance is placed on the fact that Mr Swain stated in his evidence that the ability of the GMC to perform its public duties may be endangered. Patients may be reluctant to make complaints against doctors, or to support them, if they have legitimate cause for concern that their confidential medical records might be disclosed in litigation which has no bearing upon their own welfare or interests. Also, public bodies or other institutions with custody of such records might be inclined to resist requests for disclosure by the GMC.
As I have said already, the s.35A powers would be there in the background, but Mr Swain would wish to argue that there is a public interest that the GMC should not be obliged to utilise the s.35A procedure and thereby incur costs which may be unnecessary. While I accept that consensual disclosure may be more convenient, and less expensive, it is only legitimate to persuade by arguments which are accurate rather than misleading. It is not appropriate to give blanket assurances that the documents will never be disclosed for other reasons. As Lord Hoffmann recognised, there may be "overriding" policy considerations.
In any event, it should not be forgotten that the facts of this case are very unusual. It would be a mistake to over-estimate the extent to which the order sought will have wider ramifications.