Lebrooy v London Borough of Hammersmith & Fulham & Others [2006] EWHC 1976 (QB)

L’s main claim was one of defamation arising out of his involvement with health and social care professionals employed by the first and second defendants.

In the past, L had presented to the Accident & Emergency department on a number of occasions with throat and head pain.  This was later diagnosed as mandibular joint syndrome, a stress related condition causing pain in the neck and face.  He was diagnosed as suffering from depression and anxiety.  He was referred to his local community mental health team.  He was later admitted to hospital as a voluntary patient for treatment for his condition.  After his discharge he was reported to be harassing residents of the flats where he lived and a Mental Health Act assessment was carried out on him.  He was displaying signs of hypomania and was admitted to hospital under s.2 of the Act.  He was given medication and discharged following a diagnosis of bipolar affective disorder.

L applied for and received copies of his medical notes after his discharge.  His claims arose from what he described as “malicious false defamatory allegations in the medical notes that were published by the named defendants.”  At the end of the claims he also alleged violations of his rights under articles 3 and 6 ECHR as a result of the defamatory remarks.

The judge raised the issue of the current state of the claimant’s mental health and the issue of his capacity but was satisfied that L was not under a disability, not having any information before him to indicate that L was currently unwell and because L had been able to articulate his arguments before the court in a coherent and sustained manner.  The basis of the claims appeared to be the passing on of information relating to L’s mental health by Approved Social Workers to other professionals.  This included observations made in the course of formal records which formed part of the assessments to determine whether L should be detained under the Act, or for investigating his mental health generally with a view to determining appropriate treatment for his social  care.

The defendants made a number of submissions in support of their application to strike out L’s claims.  They submitted firstly that s.139 of the Act was engaged and that L should have obtained the leave of the High Court before commencing proceedings against the defendants.  Most of his claims were also time barred under s.4 (a) of the Limitation Act 1980.  They submitted further that there were no grounds for granting leave and that the claims should be struck out.  Section 139 of the Act is intended to strike a balance between the legitimate interest of an applicant to be allowed to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interests of the respondents to such an application, not to be subjected to the risk of being harassed by baseless claims by those who have been treated under the Act.  “The real issue is whether the applicant’s complaint appears to be such that it deserves fuller investigation.”  Winch v Jones 1986 applied.  The defendants submitted that none of L’s claims had any reasonable prospect of success and that they should be struck out under CPR 24.  Since the context for the publication of the allegedly defamatory material was in the performance of statutory and clinical functions by health and social care professionals acting in the course of their duties, it attracted qualified privilege unless L could show bad faith or lack of reasonable care, as required under s139 (1) of the Act.

The court held that the assertions of malice in the claims had no reasonable prospect of success and should be struck out under CPR 24.  The claims did not merit further investigation and it was neither proportionate nor in the interests of justice to permit them to proceed further.  The proceedings were therefore a nullity since no leave was obtained from the High Court.

However the court refused the Defendant’s application for a civil restraint order pursuant to CPR 3.11 for “persistently issuing claims or making applications which are totally without merit.”  The court held that this threshold had not been met by L who had only abandoned one previous claim and his conduct was not “persistent”.

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