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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> McKeith v News Group Newspapers Ltd [2005] EWHC 1162 (QB) (14 June 2005) URL: https://www.bailii.org/ew/cases/EWHC/QB/2005/1162.html Cite as: [2005] EWHC 1162 (QB), [2005] EMLR 32, [2005] EMLR 780 |
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QUEEN'S BENCH DIVISION
London, WC2A 2LL |
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B e f o r e :
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Gillian McKeith |
Claimant |
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- and - |
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News Group Newspapers Ltd |
Defendant |
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Joanne Cash (instructed by Farrer & Co) for the Defendant
Hearing dates: 6th and 11th May 2005
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Crown Copyright ©
Mr Justice Eady :
"Television health expert Gillian McKeith is today accused of exaggerating her professional qualifications and misleading the public.
The 45-year-old host of hit diet show You Are What You Eat uses the title Doctor Gillian McKeith and describes herself as the 'world's top nutritionist'.
But The Sun can reveal she has NO medical background. She holds a 'worthless' PhD in holistic nutrition gained via a postal course at a backwater US college.
Last night Channel 4 chiefs stood by McKeith, top right, who has earned a fortune advising stars like Demi Moore and selling health products. Her book from the series is a No! bestseller.
But as they vowed to continue with a second series, health experts dismissed her theories and warned her 'advice' could put fans at risk.
Rubbish
Dr Edzard Ernst, professor of complimentary (sic) medicine at Exeter University, blasted McKeith - often seen 'examining' patients and performing medical procedures like colonic irrigation. He said: 'In the show I saw there was a total lack of real medical issues. Her theories on food-combining are perfect rubbish. '
Amanda Wynne, senior dietician at the British Dietetic Association said: 'We're concerned. Some of the things she says just aren't true.'
Management for Scots-born McKeith, who lives in Hampstead, North London, claim she has a PhD and MSc from the American College of Nutrition, among other qualifications.
In fact, her primary nutrition-based PhD is from Alabama's Clayton College of Natural Health. A spokesman admitted: 'This PhD is not comparable to those from other colleges'.
However, the General Medical Council said ANYONE with a PhD can call themselves a doctor - because the title is not protected.
McKeith last night said her management team had supplied an incorrect list of qualifications. She said: '1 think I know who sent this. There was a Spanish guy on work assignment over summer, it must have been him'. She expressed surprise that anyone thought she was a medical doctor, adding: 'I've never claimed to be' .
" ... that [she] is a charlatan since she dishonestly claimed to have a genuine nutritionist degree from a respectable American college, when in truth she has only a highly dubious and inferior nutritional degree that she simply purchased off-the-shelf by post from a worthless US college, and has thereby made a fortune by deliberately deceiving the general public in this way".
i) misrepresenting and exaggerating her qualifications,
ii) performing the diagnosis and treatment of individuals which she IS not qualified to do,
iii) recommending self-diagnosis and self-treatment by individuals at home,
iv) making claims about food and nutrition which have no scientific or medical basis.
Mr Browne submits that the first two of these meanings are severable and distinct. First, they both relate to the Claimant's qualifications and, secondly, on one interpretation they concern allegedly dishonest misrepresentations. By contrast, the third and fourth paragraphs are concerned, in a general and unlimited way, with the merits of her nutritional advice. It is not pleaded even by implication that she has been dishonest in those respects.
"r. The Press Pack for the Channel 4 series of' You Are What You Eat', states ' ... Through a series of sometimes shocking tests YOU ARE WHAT YOU EAT will reveal exactly how a poor diet and obesity lead to health problems, and give practical advice on changing a lifetime of bad habits ... '
s. The Claimant advocates and encourages reliance on her theories and advice, some of which are at the very least questionable and some of which scientifically discredited. Some of her advice and products which are unsafe and unreliable include the following (the Defendant reserves the right to rely on any other procedures, statements or products of the Claimant which may be raised by expert witnesses in the course of this action): -
i. The assertion that foods of the same colour have similar vibrational energies and similar nutrient content.
ii. The assertion that dairy products are toxic and should be avoided.
iii. The claim that each area of the tongue correlates to a different organ.
iv. The recommendation that people assess their health and adjust their diets based on self-assessment of their tongues and faeces.
v. The recommendation and routine use of colonic irrigation.
vi. The elimination of whole food groups from the diet of some people.
vii. The advice that it is necessary to 'food combine' to prevent the destruction of digestive enzymes, attain complete digestion and ensure nutrient uptake.
viii. The diagnosis of enzyme deficiency without specific scientific tests.
ix. The promotion of Living Food Energy Powder retailing at £19.95 in the absence of proper diagnosis of enzyme deficiency.
x. The promotion of the ineffective 'Living Food Love Bar' which lists as one of its ingredients 'unconditional love and light'.
xi. The provision of allergy diagnosis by post.
xii. False claims about the nutritional content and effects of certain foods, for example: -
a. Parsley is a good source of vitamin B 12. It contains none.
b. Grapes are high in magnesium. They are not.
c. Berries are high in manganese. They are not.
d. Cabbage is a good source of vitamin E. It is not.
e. Cow's milk is high in fat. It is not.
f. The claim that eating large amounts of meat inflames the stomach lining. "
The only implicit allegation of dishonesty relates to the qualifications and is reflected in the first two Lucas-Box meanings. A reasonable construction of the defence would be that the pleader was intending to accuse the Claimant of being a charlatan in those respects. Miss Cash, appearing for the Defendant, was prepared to recognise what she described as defects in wording as to the third and fourth meanings, although she did not spell out what they were. Yet the problem seems to me to go to substance rather than merely formulation. No revised draft was placed before me at the first hearing, and I thought that I should accordingly deal with the pleading as it stood in the form to which the criticisms were directed. On that basis, the Defendant should be permitted to justify the allegation about "bogus" qualifications, if it can, and introduce evidence in support of the relevant particulars of justification. But a wide-ranging inquiry into the validity of her "theories and advice" should not be allowed. Moreover, it would not be necessary or proportionate to permit such an inquiry for the purpose of resolving the "real issue" and should be precluded on case management grounds in any event. This is in the particular context of a case in which the Claimant is complaining of allegations of dishonesty or "charlatanism" (about qualifications) and the Defendant's pleading alleges dishonesty (if at all) only in relation to qualifications.
"A balance has to be struck between the legitimate defence of free speech and free comment on the one hand and on the other hand the costs which may be involved if every peripheral issue is examined and debated at the trial".
What is or is not "peripheral" must be judged objectively, on the facts of the individual case, having regard to both of those considerations.
"The Claimant has knowingly misled the public by: ... (3) making claims about food and nutrition which have no scientific or medical basis and which she is not qualified to make."
"29. These statements suggest that it may be necessary or at least admissible for a defendant to allege and prove subjective belief in order to establish a defence of Reynolds privilege ....
i) not making clear whether the Defendant is relying upon anyone's "reasonable belief' in the truth of the defamatory allegations;
ii) not identifying the shade of defamatory meaning which was believed to be true (e.g. is it the Defendant's case that there was a reasonable belief that the Claimant had knowingly misled the public and, if so, in what respects?);
iii) the factual basis, if any, supporting the reasonableness of the relevant belief on the part of the journalists.
"The safety of some of the advice and information imparted by the Claimant to the public at large was and remains of real concern. Some of the Claimant's advice and products which are unsafe and unreliable include. the following ... [there then follows a list of claims or recommendations (a)-(m)]".
Mr Browne complains that this simply provides an excuse to repeat verbatim 12 paragraphs contained in paragraph 7(s) of the particulars of justification. There is no suggestion that these were matters known to either of the relevant journalists at the material time. Jane Symons stated in evidence that" ... it is difficult to be precise about exactly when I was aware of each of the examples listed in the sub-paragraph". Once again, the use of the present tense in the pleading is inappropriate. In any event, none of these topics was put to the Claimant prior to publication.
i) Obviously the allegation of misleading the public was serious.
ii) The subject matter of the allegations was a matter of public concern, because the Claimant was making representations in relation to nutrition and health via television broadcasts and published works.
iii) As to sources, this point does not appear to have much relevance in the present
case because the article purports to be the product of the Defendant's own investigations.
iv) It seems from the evidence that some steps were taken to verify the
information, both as to the Claimant's qualifications and as to the validity of the Claimant's nutritional theories and advice.
v) There is no question of the "deceitful doctorate allegation" or the nutritional theories having been the subject of any investigation or findings on the part of "an investigation which commands respect".
vi) There was no urgency, submitted Mr Browne, from the point of view of the public, requiring these allegations to be published forthwith and without a proper opportunity to inquire into and verify them.
vii) No comment was sought from the Claimant in relation to her nutritional theories or advice. As the Defendant's solicitor, Mr Pike, put it in his witness statement: "It is not disputed ... that the specific allegations contained in this article in so far as they relate to the Claimant's advice were not put to her prior to publication". Nor indeed was it put to her that her qualifications were "worthless" .
viii) The article inevitably did not contain, therefore, the gist of the Claimant's side of the story in relation either to her nutritional theories and advice or to the "worthlessness" of her doctorate.
ix) As to the "tone of the article", Mr Browne submitted that it was "stridently
sensational and emotive". There was no question of neutral or impartial reportage, but rather the Defendant chose to make outright assertions. This was so not only in relation to the "deceitful doctorate allegation" but also, by virtue of the comments of Doctor Ernst and Ms Wynne, the nutritional theories.
x) Mr Browne drew attention to the timing of the publication, in the context of the Claimant's relationship with Channel Four and the prospect of a second series of "You Are What You Eat". It was from her point of view critical.