The Public Hospitals Authority v Dr. Paul Ward

• Jurisdiction: Bahamas
• Judge: Sir Brian Moree, JA
• Judgment Date: 15 May 2023
• Neutral Citation: BS 2023 CA 70
• Docket Number: SCCivApp No. 62 of 2022
• Court: Court of Appeal (Bahamas)

BETWEEN

The Public Hospitals Authority

First Appellant

and

Dr. Paul Ward

Second Appellant

and

Dr. Theodore Ferguson

Respondent

BEFORE:

The Honourable Mr. Justice Jones, JA

The Honourable Mr. Justice Evans, JA The Honourable Sir Brian Moree, JA

SCCivApp No. 62 of 2022

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Civil Appeal — Defamation — Qualified Privilege — Honest Belief — Malice — Express Malice — Pleading Malice — Onus in Proving Malice — Dominant Motive — Pleadings

Dr. Paul Ward (“ Dr. Ward”), at the material time was employed as Medical Chief of Staff at the Rand Memorial Hospital and Grand Bahama Health Services at Grand Bahama. The Public Hospitals Authority (“PHA”) manages public hospitals in The Bahamas, including the Rand Memorial Hospital in Grand Bahama (“the Rand”) and the Princess Margaret Hospital in New Providence (“PMH”). In March 2013, the Respondent sent a letter to the Chairman of the Surgery Department of PMH requesting a transfer from the Rand to PMH; the letter was copied to Dr. Ward, the Managing Director of PMH, the Medical Advisor for PHA, the Medical Chief of Staff of PMH and Miss Catherine Weech (“Ms. Weech”), who was the Hospital Administrator at the Rand.

In June 2013, Dr. Ward sent a letter (“the Response Letter”) to Ms. Weech regarding the request by the Respondent for a transfer to PMH; the Medical Chief of Staff of PMH; the Chief of Surgery of PMH, the Medical Advisor for PHA, the Chairman of Medical Affairs of PHA, the Managing Director of PMH and the EMC-GBHS were copied in the letter. The Respondent sued the Appellants alleging that the letter contained defamatory statements. The Appellants' primary defence was that the Response Letter was published by Dr. Ward on an occasion of qualified privilege regarding the Respondent, under a sense of duty and without malice towards the Respondent, and in the honest belief that the statements therein were true. The Appellants further pleaded that the recipients of the Response Letter had a common interest in the subject matter and they had a duty to receive it. The judge upheld most of the grounds advanced by the Respondent as constituting defamation. The Appellants appealed that decision.

Held: Appeal allowed. The judge's finding of malice against Dr. Ward is set aside. The Respondent will pay the costs of the Appellants of both the proceedings in the Supreme Court and in this Court, to be taxed if not agreed.

The defence of justification must be specifically pleaded with full particulars of all the facts and matters relied on. The Appellants did not plead the defence of justification in their Defence and thus the judge erred in considering that issue. The judge's divagation into the defence of justification and her related analysis of the statements in the Response Letter and findings on that basis were extraneous to the issues raised in the Defence and, therefore, no reliance can be placed on those findings.

The judge also erred in making a direct nexus between the defence of justification and the issue of Dr. Ward's honest belief in the truth of the statements in the Response Letter. The judge erred in conflating the defence of justification with the issue of honest belief in the truth of the statements in the Response Letter; there is a discernible difference between a statement being true or false on the one hand (i.e. the common law defence of justification) and, on the other hand, the honest belief of the maker of that statement that it is true in the context of the defence of qualified privilege.

An occasion will enjoy qualified privilege at common law where the defendant makes the statement in pursuance of a legal, social or moral duty, or in protection or furtherance of a legitimate interest, to a person with a like duty or interest to receive it. The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. Dr. Ward, as Medical Chief of Staff in Grand Bahama and a member of the EMC, had a duty to candidly express his views on the transfer application to the recipients of the Response Letter who had a duty to receive it. The judge held that the Response Letter was published by Dr. Ward on an occasion of qualified privilege.

Once it is established that a publication attracts qualified privilege, judges must consider whether the qualified privilege is defeated by express malice. Express malice defeats the defence of qualified privilege when the desire to injure is the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The court should be very slow to draw the inference that a defendant was actuated by improper motives so as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that “express malice” can properly be found. Plaintiffs have a heavy onus to discharge to establish malice and thus findings of malice are in fact very rare.

A plea of express malice is generally treated as tantamount to one of dishonesty, and should therefore be treated with the same circumspection as a plea of fraud; it must be pleaded with scrupulous care and specificity/particularity. Each particular of the plea has to raise a probability of malice and has to be more consistent with the existence of malice, than with its non-existence. The onus is on the plaintiff to prove that the dominant and improper intention in making the defamatory publication was to injure him. Even though a defamer may have formed a belief not based on any reasonable grounds, or on inadequate research, or conduct which is hasty, credulous, foolish, involves jumping to conclusions, or is irrational, stupid, pig-headed, obstinate, or the product of ‘gross and unreasoning prejudice, this does not to amount to malice.

The Respondent's pleadings fell short of satisfying the strict requirements for properly pleading express malice. In any event, the bases for the finding of the judge that Dr. Ward was actuated by express malice were not pleaded by the Respondent.

The judge's finding of express malice against Dr. Ward is not sustainable and must be set aside. That being the case, the defence of qualified privilege was successful and therefore it was a complete defence to the Respondent's claim of defamation.

Abdulrazaq and others v Hassan and others [2021] EWHC 3252 (QB); mentioned Bahamas Ferries Limited v Charlene Rahming SCCivApp No. 122 of 2018; mentioned Bartholomew Umeyor v Innocent Ibe [2016] EWHC 862 (QB); mentioned Cambridge v Lockhart [2012] 1 BHS J. No. 24; mentioned Davies v Snead (1870) LR 5 QB 608; mentioned

Greenstein v Campaign against Antisemitism [2021] EWCA Civ 100; applied

Horrocks and Lowe [1975] AC 135; applied

Huda v Wells and Others [2017] EWHC 2553 (QB); applied

Jabbar and another v Aviva Insurance UK Ltd and others [2022] EWHC 1383 (QB); applied Jameel (Mohammed) and another v Wall Street Journal Europe Sprl [2007]1 Bus LR 291; mentioned

Komarek and another v Ramco Energy plc and others [2002] All ER (D) 314 (Nov); mentioned

Reynolds v Times Newspapers Limited and Others [2001] 2 AC 127; applied

Tewari v Khetarpal and others [2022] EWHC 2066 (QB); mentioned

Toogood v Spyring (1834) 1 CM & R 181; mentioned

Ward v Associated Newspapers Ltd [2021] EWCH 641 (QB); applied

Watt v Longsdon [1930] 1 K.B. 130; applied

Webster v British Gas Services Ltd [2003] EWHC 1188 (QB); mentioned Yeo v Times Newspapers Ltd [2015] EWHC 209 (QB); mentioned

APPEARANCES:

Mr. Kirkland Mackey, with Mr. Randolph Dames, Counsel for the Appellants

Ms. Shantelle Munroe, Counsel for the Respondent

Sir Brian Moree, JA

Judgment delivered by the Honourable

Background

1 This is an appeal from the Judgment of Justice Hanna-Adderley dated 1 March 2022 sitting as the trial judge in this case (“the Judgment”) whereby she held that the Appellants were liable to the Respondent for defamation arising from a letter dated 6 June 2013 written by the Second Appellant and published to a third party. The judge ordered the Appellants to pay to the Respondent damages to be assessed and costs.

2 The First Appellant, the Public Hospitals Authority (“PHA”), is a statutory body with responsibility for managing public hospitals in The Bahamas, including the Rand Memorial Hospital in Grand Bahama (“the Rand”) and the Princess Margaret Hospital in New Providence (“PMH”). The Second Appellant, Dr. Paul Ward (“ Dr. Ward”), is a medical doctor and it is stated in the Judgment that at the material time he was “… employed by the Bahamas Government in the Ministry of Health, Public Hospitals Authority as Medical Chief of Staff at the Rand Memorial Hospital and Grand Bahama Health Services at Grand Bahama…”

3 Dr. Theodore Ferguson (“the Respondent”), is also a medical doctor who was said to be, at the material time, “. employed by the Bahamas Government in the Ministry of Health, Public Hospitals Authority as a Consultant Surgeon” and working at the Rand.

4 On 11 March 2013, the Respondent sent a letter to the Chairman of the Surgery Department of PMH requesting a transfer from the Rand to PMH. That letter indicated that it was carbon copied to a number of persons including Dr. Ward, the Managing Director of PMH, the Medical Advisor for PHA, the Medical Chief of Staff of PMH and Miss Catherine Weech (“Ms. Weech”) who was the Hospital Administrator at the Rand. I set out...