Attempting to Recover Costs For the BMA For Supporting My Whistleblowing Case
A few weeks ago (26 April 2023) we were sent the Judgment of our application to recover costs for the BMA in my case.
It was the same Tribunal that ruled against me in the June 2022 hearing of my whistleblowing case (Ms Edwards, Ms Forecast and chaired by Judge Ann Martin), that has also ruled against our application to recover a proportion of the BMA’s costs that funded my legal team for the June hearing. It seems to me that this decision is hugely unfair to the BMA given the conduct of my opponents at the June hearing that plainly prolonged and obstructed the hearing with a clear cost to the BMA.
The conduct of Lewisham and Greenwich NHS Trust included several instances of destroying and concealing evidence. It also involved withdrawing their main witness at the last minute, then re- instating them before withdrawing them again. This witness happened to be the Director responsible for destroying an archive of relevant emails the morning before he was due to give evidence to the Tribunal. It was also found that another director (who happened to be the instructing client for the case between 2014-2018) had their NHS email permanently deleted during the litigation. These are frankly extraordinary actions but none are referred to in the costs Judgment refusing our application for costs.
The full costs Judgment can be read below this article or here. In this article, I will take you through our application for costs and will also raise some points to ponder about the analysis in this recent costs Judgement.
Our Basis For Recovery of the BMA’s Costs
My position is that the Judgment of the June/July 2022 hearing of my whistleblowing case records instances of Lewisham and Greenwich NHS Trust destroying, failing to disclose and concealing evidence. This was not a one off event but occurred on several occasions during the June 2022 hearing and in the years before it. The June 2022 Hearing Judgment states in particular at [83];
According to the June 2022 hearing judgment, the Tribunal state that they had the above examples of destruction and concealment of evidence in their minds when they made the decision that I would lose the case. The Tribunal might state that they had these outrageous actions in their minds (whatever that means) but they do not analyse the effect of such actions on the fairness of the hearing nor do they take any action in response to hold the Trust to account.
My application for costs says, at the very least, the BMA deserve their costs back for the days of disruption caused by Lewisham and Greenwich NHS Trust’s antics during the June hearing of my whistleblowing case. Destroying evidence and also disclosing documents during the hearing that they had spent 2 years denying the existence is typical of the way the NHS have fought this case. Withdrawing a witness, re-instating that same witness and then withdrawing them again when that witness is the NHS director that destroyed 90,000 emails during the hearing speaks volumes.
Although these antics were left out of the cost judgment they did not go unnoticed by the press that were in the public gallery.
A collection of the press coverage for the June 2022 hearing can be read here. Several professionals have objected to what they observed from the public gallery at my June hearing at the London South Tribunal.
Local people including NHS staff also objected to what they observed from the public gallery at my June hearing. This video shows a local GP, Dr Bob Gill, challenging the Board of Lewisham and Greenwich.
What confidence can people have in the London South Employment Tribunal and the wider legal system if it continues to turn a blind eye to such brazen actions?
The Lewisham and Greenwich NHS Trust Response To Our Cost Application
The Lewisham and Greenwich response to our cost application does not really engage with the destruction and concealment of evidence issue beyond just vaguely claiming that we have exaggerated the problem. I am not sure how you can exaggerate getting up at 5am and deleting 90,000 emails mid-hearing, followed by refusing to be cross examined, all in the same morning. This is just one of several examples of the destruction and concealment of evidence that occurred in my case.
Instead of dealing with the facts, the Trust decided to attack and smear me which is what they often do when challenged with the objective facts of my case. The Tribunal seem all too happy to go along with such tactics. My lawyers responded to the latest Lewisham and Greenwich smear, which involves this time, accusing me of being absurd and offensive for basically challenging the legal conduct in this case. The letter my lawyers sent to the Tribunal on this can be read here.
The Tribunal’s Approach to Our Cost Application
Instead of engaging with our position and arguments, Judge Martin has just copied out much of the Lewisham and Greenwich position into the costs Judgment and has ignored the robust rebuttal of this position by my lawyers . The Tribunal does not even make reference to many of the arguments advanced by my legal team.
The Tribunal has adopted a similar position to that of the Trust in this case. Like the Trust, the Tribunal does not want to analyse the significance of the destruction and concealment of evidence (or even mention it in the cost judgment). The Tribunal also ignores and then declares as irrelevant any evidence relating to the significance and substance of my whistleblowing disclosures in the case and the way the NHS investigated and dealt with them.
The whole point of the June 2022 case was to test whether Lewisham and Greenwich NHS Trust lied to the press, the public and MPs about my whistleblowing disclosures, how they were investigated and whether this was to my detriment. This was the thrust of over 7 of the pleaded whistleblowing detriments in the case. How can that content now just be dismissed as irrelevant to the case?
This observation on the relevance of evidence was used to get the Trust off the hook in the cost application. The Tribunal has ruled that the evidence that I and others submitted to the Tribunal about the substance of my whistleblowing disclosures, their seriousness and the NHS response to them is supposedly irrelevant. The cost judgment not only says this evidence is irrelevant but also says that providing such irrelevant evidence was unreasonable litigation conduct that wasted both Tribunal and NHS resources.
How can a Tribunal rule on whistleblowing detriments that relate to whether the press, public and MPs have been misled on the patient safety disclosures and investigations in my whistleblowing case without first considering evidence about the reality of the patient safety disclosures and investigations in my case?
An Employment Tribunal Cannot Re-invent the Detriments Claimed in a Whistleblowing Case or Ignore Them
In a whistleblowing case, the law gives the Claimant a right to formally claim that certain detrimental acts have occurred as a result of making whistleblowing disclosures (protected disclosures). The Tribunal cannot change or ignore the detriments pleaded by a Claimant. It has to deal with each of them and must rule on each detriment with logical reasons from the evidence presented.
The whistleblowing detriments in my case were broadly that Lewisham and Greenwich NHS Trust attempted to make me out to be dishonest, unreliable and vexatious by misleading MPs, the press and the public about the facts of my whistleblowing case and how the case suddenly settled in 2018. The subsequent detriments related to the Trust’s failure to take back the public statements once they were challenged on them by Sir Norman Lamb and then later the Care Quality Commission.
The Tribunal had an important task at the June 2022 hearing and that was to decide whether MPs, the press, an NHS staff not to mention the public had been misled by Lewisham and Greenwich NHS Trust about the safety issues and investigations in my whistleblowing case and whether this was to my detriment.
It is clear from the evidence that Lewisham and Greenwich NHS Trust were attempting to make out publicly and to MPs that the whistleblowing disclosures in my case were just about a one off staffing issue that occurred one night that related only to medical ward cover. They also stated that the issues had been resolved at the time of me raising them. This was clearly to discredit me and my case in the eyes of the public, MPs and NHS staff.
My case states that my disclosures were about the raising and then concealment of serious and ongoing issues related to one of the Trust’s Intensive Care Units. These issues concerned at least a 12 month period but subsequent reports show the issues had persisted for several years and may still be an issue. The evidence also shows that my disclosures were linked to 2 avoidable deaths. It is clear from the various formal investigations in the case that the issues were not dealt with properly by the Trust (and that is putting it mildly).
It is obvious that the only way for a Tribunal to properly determine who out of me or the Trust is telling the truth about the whistleblowing disclosures and investigations in my whistleblowing case, is for them to analyse the actual reality of my protected disclosures and investigations and compare it to what the public, press and MPs were told by the Trust.
The Tribunal had a duty to analyse this evidence and decide the following 5 pleaded detriments which related to text in a series of public statements and MP/NHS staff briefing documents;
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So Were The Whistleblowing Disclosures In My Case Really Just About a One-Off Minor Issue About Medical Ward Cover That Was Immediately Resolved?
The evidence presented to the Tribunal in June 2022 came from multiple sources and shows the whistleblowing disclosures in my case were about something far more serious than a one off and resolved situation about medical ward cover.
This evidence was spelt out to Judge Martin and the Tribunal at the June 2022 hearing in no uncertain terms by several witnesses. Below is an example of the evidence the Consultant Anaesthetist, Dr Smith gave;
My protected disclosures also linked the Trust’s failure to deal properly or at all with my patient safety concerns in 2013 to 2 avoidable deaths. This was made abundantly clear to Judge Martin and the June 2022 Tribunal in my evidence to the Tribunal. This position was supported by other witnesses and not challenged by the Trust or Judge Martin at the June hearing. It was ignored in the Judgment of the June Hearing and has now been declared as irrelevant and unreasonable in the cost Judgment.
Did Formal Investigations Really Show My Disclosures Were Responded To In rhe Right Way by Lewisham and Greenwich NHS Trust?
The Trust management claimed publicly, to MPs, to their own staff and even their Board that the external investigation in my case found that the Trust had responded to my whistleblowing disclosures in the right way;
The above statement was clearly proved as false by the evidence presented to the Tribunal in June 2022 again from multiple sources. This included the actual investigation findings!
How can the Tribunal dismiss such evidence as irrelevant when the pleaded whistleblowing detriments in my case relate to the Trust misleading on the findings of this investigation in order to make my whistleblowing case seem dishonest and vexatious.
This is the evidence Judge Martin and her colleagues at the London South Employment Tribunal ignored in June 2022 and now claim is irrelevant:
- My evidence on the protected disclosures on serious safety issues linked to 2 deaths and cover up.
- My evidence on the investigations in my case
- Evidence of Consultant Anaesthetist Dr Smith on the serious safety issues and investigations in my case
- Evidence of Consultant Anaesthetist Dr Hormaeche on the serious safety issues and investigations in my case.
- Evidence from Jeremy Hunt, Chancellor of the exchequer on my protected disclosures
I also provided clear evidence to the Tribunal in June 2022 about how misleading on my protected disclosures and the investigations publicly and to MPs has trashed my reputation both personally and as a doctor. My evidence on this was not challenged at the June hearing by either the Trust or the Tribunal. This evidence was simply ignored and now has now been declared as irrelevant.
If I have evidence from multiple sources that proves I am telling the truth about my whistleblowing case and also shows that the Trust and their lawyers are not, then that evidence clearly exposes something very serious. How can such evidence be dismissed as irrelevant when the Trust misleading people on these very issues is literally pleaded as the main whistleblowing detriments in my case.
Below is what the Tribunal rely on in their cost Judgment for ignoring all this evidence, declaring it as irrelevant and accusing me of being unreasonable for presenting such evidence;
If the whole point of the June 2022 hearing was to decide who was lying about the reality of the whistleblowing disclosures and investigations in my case, how on earth can presenting evidence showing the actual reality of the whistleblowing disclosures and investigations in my case be irrelevant or unreasonable?
How Did the Tribunal Rescue Lewisham and Greenwich NHS Trust in the Cost Application?
Judge Martin has used this observation and allegation of my side presenting irrelevant evidence to refuse our application to have costs returned to the BMA. This is despite Lewisham and Greenwich’s destruction and concealment of evidence which does not even get a mention in the costs Judgment. The Judgement effectively asserts that Judge Martin’s view on the relevance of the above evidence relating to my protected disclosures is somehow on par or can cancel out the Trust’s multiple acts of destruction and concealment of evidence. The Tribunal also turns a blind eye to other extremely serious issues which I will now turn to.
The Tribunal Buries Their Finding That Lewisham and Greenwich NHS Trust and their Lawyers Misled MPs, the Press and Their Own Board on Their Use of Costs to Induce me to Settle in 2018
In the June 2022 hearing Judgment there is a powerful finding by the Tribunal on Lewisham and Greenwich NHS Trust’s false statements on how the case settled. Buried in the Judgment is a finding that the below statement from Lewisham and Greenwich NHS Trust which was circulated to the press, MPs and their Board was untrue.
Surely, a Tribunal finding that indicates that an NHS Trust and their lawyers have misled the press, MPs and their own Board in a whistleblowing case is significant. How can a Tribunal fail to mention the significance of this in June 2022 Judgment or at all in the costs Judgment?
Click here to read the evidence put before the Tribunal on the multiple costs threats used by the Respondents in 2018 to induce the settlement of my case and an agreed statement. Much of this evidence has been ignored by the Tribunal it seems, to protect the lawyers involved. The text highlighted in red in the below letter to the legal regulator gives you an idea of the scale of the evidence ignored by the Tribunal on the cost threats used to force the settlement of my case (but then denied by the NHS and their lawyers). This evidence should have resulted in serious consequences for the lawyers involved but instead no one has had to account for anything.
The Conduct of the Lawyers
Clear evidence was put before the Tribunal in June 2022 of serious legal misconduct involving the various lawyers involved in the 2018 case. It was made obvious to Judge Martin and the Tribunal that it was impossible for all lawyers to be telling the truth about how my whistleblowing case settled in 2018.
The June 2022 Tribunal chaired by Judge Martin chose to ignore all the evidence relating to the conduct of the various lawyers involved in settling my case in 2018 ( You can read this evidence here.)
I made my position on the 2018 settlement abundantly clear in my evidence in June 2022. This was also ignored by the Tribunal and the facts not engaged with. Judge Martin confirmed in 2022 as she did in 2018 that the settlement was properly made
Next Steps
These issues set out above in this article are clearly important and cannot just be ignored by the London South Employment Tribunal. This is one of the many points that we intend to make on appeal (see out Notice of Appeal to the EAT). I have had such a poor experience of the EAT in the past so my hopes are not high. We are grateful to have BMA support for the appeal.
Our litigation against the NHS’ lawyers involved is ongoing in the form of a wasted costs application. This is being crowdfunded. For more information, updates and to support click here.
President of the Employment Tribunal
Last month, I provided a briefing to the President of the Employment Tribunal, Judge Barry Clarke, about the concerns that I have about the way the London South Tribunal has turned a blind eye to the serious issues that I have set out above. I was grateful and impressed that on the two separate occasions that I wrote to Judge Clarke, that he responded in less than 48 hours to my concerns with multi-page letters. Ultimately his conclusion was that these matters did not require investigation by him or his office which is clearly something I don’t agree with. These are not the sorts of issues that should wait for years for appeal courts to sort out. However, it was nice not to be ignored or insulted for once when raising these issues.
A Final Thought
The London South Employment Tribunal has avoided commenting on my whistleblowing disclosures, how they were investigated and whether there was a cover up. Multiple acts of concealment and destruction of evidence have been ignored as has serious legal misconduct. I think the public would be very surprised that after 9 years of litigation and nearly a million pounds of public money that these issues have not be dealt with.
Legal Papers
Grounds of Claim for the June 2022 hearing,
June 2022 hearing Case Page.
The Employment Tribunal will see you now doctor | LinkedIn
Read the Costs Judgment
