White v Southampton University Hospitals NHS Trust

[2011] EWHC 825 (QBD)

This case confirmed that a letter to the Fitness to Practise Directorate of the General Medical Council (GMC) which expressed concerns about Dr White's fitness to practise was protected by absolute privilege.

Professor Roche, the medical director of the hospital where Dr White worked, wrote to the GMC setting out his concerns, which were based on her attitude, probity, behaviour and, potentially, her health. 

Dr White sued the NHS trust and Professor Roche for libel in relation to the letter. She claimed that:

  • there was no reason why the privilege which attached to the letter written by Professor Roche   should be absolute;
  • there was no public policy reason why qualified privilege, which could be defeasible by malice,   should apply instead;
  • there was no express reference to absolute privilege in relation to fitness to practise proceedings   in any relevant medical legislation.

Dr White's claim was struck out and summary judgment was granted to the trust and Professor Roche. Dr White appealed.

The appeal was dismissed.

It was held that there was a public policy reason why absolute privilege should attach to the letter, namely that people should be able to speak freely and without fear of being sued, when complaining to a professional body, even if this meant that a malicious informant went unpunished. It was also important that the person who provides information to a professional body should know in advance that absolute privilege would apply to their communications.

Given the long common law recognition that absolute privilege attaches to the proceedings of tribunals recognised by law, it was not surprising that there was no explicit reference to absolute privilege in the medical legislation.

Alongside the claim relating to the letter to the GMC, Dr White sought to refer to a further letter written by Professor Roche to another hospital as an additional cause of action. Dr White had obtained the letter during the disclosure process in employment tribunal proceedings. This application also failed at first hearing and at appeal.