Privacy in the Public Eye – Disgraced Surgeon Fails to Block Disclosure in Mass Litigation
Dixon v North Bristol NHS Trust [2022] EWHC 1871 (QB) – The First Judgment
Dixon v North Bristol NHS Trust [2022] EWHC 3127 (KB) – The Second Judgment
References to paragraphs in the first of the above cases are in the form [X], and to the second in the form {X}.
Background
The Claimant, a general, laparoscopic and colorectal surgeon had been employed by the Defendant until 2019. In that role, he had performed a large number of laparoscopic ventral mesh rectopexy surgeries (‘LVMRs’) – over 200 women in total had received the surgery – in circumstances where less invasive treatments could have been offered. This much had already been subject to significant media coverage [7]-[8].
In the face of actual and threatened litigation, the Defendant Trust informed the Claimant in May 2022 that it intended to make various disclosures to actual and potential claimants in clinical negligence cases arising out of the LVMR procedures. The Claimant objected to these disclosures, and indicated his intention of bringing proceedings to prevent the proposed disclosure [13]-[15]. This he did, bringing an application for an interim injunction.
Prior to those proceedings, he made the application seeking to require anonymity for the parties and reporting restrictions [16]. The essence of the underlying claim was that the disclosure proposed would be a breach of confidence. The alleged basis of the breach of confidence was that the investigation which formed the basis of the disclosure was subject to an implied term of confidence in the Claimant’s employment contract with the Defendant [21], and would also be a breach of the GDPR {6} and a misuse of private information.
The Anonymity & Reporting Restriction Application – the First Judgment
The basis of the application was twofold: first, that without anonymity and reporting restrictions, the claim would be self-defeating. The litigation process would destroy the very confidentiality that it was supposed to protect ([29]). Second, the Claimant argued that the effect that further media attention would be detrimental to the Claimant’s mental health, including the risk of suicide [33], [40], [63].
Exceptions to the general position – that court proceedings are not anonymous – are set out in CPR 39.2, and include circumstances where publicity would render the proceedings self-defeating, and the involvement of confidential information. Reporting restrictions are covered by s. 11, Contempt of Court Act 1981. Each of these is a derogation from the principle of open justice, and requires justification. They are available only where strictly necessary, in exceptional circumstances [52].
Drawing together the case law, Nicklin J identified the following principles (paraphrased) applicable to derogations from open justice on the basis of articles 2 and 3, ECHR [58]:
- Where there is a real and immediate risk to life, the article 2 positive obligation is engaged;
- These rights are unqualified, and require that proceedings be organised so they are not unjustifiably imperilled;
- In a conflict between articles 2/3 and open justice, the latter cannot ground derogation from the former, but the extent of the interference with open justice must be no greater than necessary.
In cases where the article 2/3 thresholds are not met, the question is one of balancing between articles 8 (private and family life) and 10 (freedom of expression) [59]. This is a balancing exercise in which neither takes priority inherently, and the facts of the case and proportionality must be considered; that said, open justice is inevitably a weighty principle [60]-[61].
The Defendant argued that sufficient information was already in the public domain, and procedures could be adopted much less invasive than anonymity and reporting restrictions (e.g. confidential schedules to statements of case) that would still prevent the claim being self-defeating. On the article 2 risk, the Defendant simply argued that the evidence was insufficient [69].
The Court ruled that the measures sought were not necessary to avoid the claim being self-defeating [72]; [78], and that the evidence fell “a long way short” of what was required to engage article 2 [79]. Nor could article 8 assist the Claimant [88]; the extent of the interference with open justice would be profound, and the Claimant’s identity was of central importance to the public interest in reporting [94].
The Application to Prevent Disclosure – the Second Judgment
The Claimant relied on the confidential nature of the investigation process from which the documents sought to be disclosed had originated {11}, the privacy of the information contained in the documents {13}, and the alleged inaccuracy of the information and extent of planned disclosure {17}. The latter two were the basis for an argument that disclosure was processing of the Claimant’s personal data contrary to the GDPR.
The Defendant admitted that the documents were confidential but argued that the confidence was outweighed by both public interest and the legal duties of disclosure {18}. On the data angle, the Defendant admitted that the disclosure would amount to processing under the GDPR but resisted the characterisation of it as unlawful either due to content or manner {22}.
On breach of confidence, the key issue was justification {91}. The disclosure was to a limited category of people (potential claimants in cases against the Defendant) and was limited to the purpose of litigation {95}. The Defendant was furthermore likely to demonstrate that it would be required to disclose the documents in due course {97}-{98}. Breach of confidence could not ground the injunction sought {100}. Nor could misuse of private information, for essentially the same reasons {103}.
The Court also accepted the Defendant’s argument that it was likely to be able to demonstrate a legal basis, namely compliance with a legal obligation (which was not to be narrowly construed), for processing the Claimant’s personal data {105}. Not was the data inaccurate; it was the outcome of a process involving judgment and analysis and recorded the outcome of that process accurately {106}.
Having made the above findings, the Court concluded no injunction could be awarded {107} – {109}.
Comment
An interesting aspect of the first judgment is the “paradox” identified by the Court [75], arising out of what counsel for the Defendant referred to as “jigsaw identification” [69(iii)]. Anonymity for the Claimant would not permit proceedings to be carried out in open court at all, because as soon as details were reported, the Claimant’s identity would, by combination with facts publicly available, be evident.
An anonymity order would itself be self-defeating unless backed up by draconian reporting restrictions, leading the Claimant to seek a restriction on reporting “any information that may lead to the subsequent identification of the Claimant or the Defendant” [77]. This illustrates the importance of thinking through the practical consequences of anonymity where the subject of the order has already received media coverage.
The second judgment highlights the importance of careful pleading when seeking to protect confidential or private information; the balancing processes which both require are compromised by failures to specify clearly when information is sought to be protected {16}, {92} and {103}. Where this is not done, the Claimant makes their job much harder.
