Melissa Day , a registered nurse, gave evidence on behalf of her husband yesterday describing the dramatic moment when they were told by his lawyers that he could face £500,000 costs unless he settled the case with Lewisham and Greenwich NHS Trust and Health Education England in 2018.
” I understood if Chris were to lose the case, the respondents would as the conference note states claim for “the costs between now and the end of the hearing (£120,000 or more)” This was a significant amount of money which would have caused severe financial stress for our family.
She went on: “A further cost threat was linked to potential credibility findings relating to Chris’s use of covert audio. ln these circumstances, the potential total cost liability could be closer to £500,000 which was more than the value of our house and clearly would have put it at risk.
“At no point were any of the cost threats linked to the truthfulness of Chris’ evidence and I certainly had no concerns about this. I did have concerns about a potential reaction from the judge on the use of covert audio. This is despite what the audio showed about the way the patient safety issues were investigated and the validation it gave Chris’ claims that the Respondents’ made false accounts of his dialogue.”
“In the conference, when Mr Milsom [Chris Day’s lawyer at the time]was asked by Chris what the potential liability would be associated with the cost threats Mr Milsom listed wasted costs in relation to covert recordings with Chris’ potential cost threat liabilities as the conference note confirm”.
” At the time I did not properly understand how wasted costs differed from what I now know are ordinary costs. I had no previous experience of employment tribunals or the different types of cost threats. As they were listed together and reference was made to covert audio, I assumed that Chris would be liable for the costs Mr Milsom had listed.”
No choice but to settle
The couple went home and decided they had no choice but to settle the case even if Chris Day thought he had a chance of winning.
“Chris consulted me and wanted to discuss our options over dinner, I replied that there was no discussion to be had and I was not prepared to risk our family’s security. Chris decided very quickly in the conference that based on the costs threats and my opinion that he was not prepared to accept the risk to our family home and security that proceeding with the case would involve. Chris withdrew the case as a direct result of the costs threats.
“My stated reluctance for him to continue came also as a direct result of the cost threats. There was no doubt in my mind that proceeding with the case was not an option after hearing about the cost consequences despite the serious safety issues at the centre of the case, the unacceptable NHS response to them and the toll that getting this case heard had taken on Chris and our family over the preceding four years.”
She also described the day long negotiations that followed about an agreed statement to be made by the trust and Health Education England that was to follow settlement of the case.
Both HEE and the trust insisted that it had to say that they and their external investigators, Roddis Associates had acted in good faith – despite Roddis ignoring the two deaths at the Intensive Care Unit and that it was adequately staffed – contradicting Dr Day’s case. Both the trust and HEE diverted the issue on to the employment status of their advisers.
Trust insisted it must say it acted in good faith
She said: “Mr Milsom spent a large proportion of the morning walking up and down Croydon precinct outside Costa on the phone to counsel about the agreed statement. It is clear all these discussions about the agreed statement would not have happened without the cost threats as Chris would not have agreed to the wording that everyone acted in good faith or any similar wording.”
“This statement was particularly damaging to Chris because it gave the impression Chris’ protected disclosures were not about the intensive care unit, focusing only on one situation where there was a problem with medical ward cover on one night and claimed they had decided not to pursue Chris for costs.”
Melissa Day was cross-examined by Dan Tatton Brown, for the trust, over the statement and whether Dr Day’s real reason for settling was because he was going to lose. She completely denied this.
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seems a bit odd….it’s perfectly legal to record people without their knowledge and consent, well g-men and any non g-man directly or indirectly employed by them…and he was on the government payroll at the time? I actually found the cameras above my bed and in my bathroom many years back…it was legalised under RIPA. But g-men were doing it before that….they didn’t even bother to remove the time code on the footage that was broadcast on MSM! Thinking of Stephen Lawrence case in particular…
But fact is judges and lawyers just ignore the law and do whatever they like. In another example recent case young couple goes on holiday. When they return they find that their neighbour has ripped down the fence and stolen a 3 inch strip of their property for his extension. If we had rule of law the guy that did it should be facing several months in prison and forced to pay damages as well as the cost of putting t back to how it was. But no, young couple sue and end up losing their house and everything with 180k of court costs registered against them…and the judge is untouchable as always!
I’ve had the threats to but you can’t even bring proceedings when you’ve had your identity stolen. WOP for 17 years now. Personally, if I was in Chris’s situation, I think I would insist on a divorce, signing everything over to the wife then give them the finger with a big cheesey grin on my face, if I was able to grin.
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Sounds incredibly similar to my own experience of 2018. I also blew the whistle over safety critical NHS failings, and was unfairly dismissed. Just like the Day’s experience, I was threatened by the NHS with costs of £108,000 if I didn’t drop the case and agree to a gag, being told that I had no real chance of winning the case by the NHS’s lawyers despite them withholding a pivotal piece of evidence that showed that I had a prima facie case against the NHS Trust in question.
In the end, I reduced and weakened my case to protect against costs, only to be taken back to the Tribunal later for costs anyway, on the basis that I’d responded to the original threat of costs by changing my case and had therefore caused unnecessary costs!!
Oh, and despite the assurances from NHS lawyers that I had no winnable case, I won constructive unfair dismissal, in spite the withholding of evidence and despite being forced to weaken my case.
The NHS also lost on its attempts to impose costs.
Good luck to Chris and his family. 🤞
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Thank you, Peter, you are a role model for all committed and dedicated members of health professionals. We salute you for your courage and conviction.
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One hundred members of Justice for Doctors (JFD) have seen the same pattern. The case starts with the caring committed, and dedicated doctor whistle blow on failings that may lead to patient deaths and poor services. By doing so, the good doctor was just doing his/her duty thinking that they are protected. They become a target for bullying, harassment, and a systematic approach by the hospital/health institute to get them out whatever the cost. There is no worry about how much taxpayers’ fund was wasted. The doctor and his family will be destroyed, the medical services will suffer even more all because those in charge want to flex their muscles and stay even longer in that seat that comes with high pay. The public has the right to know about this. The Covid-19 Pandemic has demonstrated without a shred of doubt the importance of the health of the nation. We need all those who put their time and efforts to serve their patients to work in an environment free of bullying, harassment, and intimidation. We thank Mr. David Hencke and all similar courageous journalists for the important work they do in exposing this tragic situation.
On behalf of Justice for Doctors.
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I’ve sat through many hours of this hearing and have heard very little from the respondent’s representatives in support of the quality of the ITU services at the centre of this case. Instead their brief asks meandering clause replete questions to which Chris Day is meant to answer yes or no about the sincerity of the choice of words made by the managers at various meetings or in different emails. The yes or no answers should be directed at those running a discredited service not at the doctor who has the temerity to expose its failings. How many doctors with requisite experience do you have? How many nurses. What are the designated standards in comparable hospitals in UK and for example in Germany. But no, we’ve spent 72 hours asking a young couple the same entrapping questions over and over again in different ways.
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We learn today the Government has agreed a £19.5 million interim compensation package of taxpayers money for sub postmasters following the Post Office Horizon Computer scandal. I hope your further reports on Chris Day’s tribunal eventually show the full truth as to how he has been treated. I will be particularly interested in how, when it is their turn, the Trust’s management rebut the evidence so far presented. No doubt we will eventually hear the well formulated lines such as ‘lessons have been learned’ or ‘we have already changed our procedures’. The country is supposedly short of doctors yet we have senior management quite prepared to hound good ones our of their careers. I would much prefer to see someone like Chris engaged at a high level in the HSSIB or PHSO. The experience of people who have used the latter, as detailed on PHSO Trust Pilot, shows how ineffective that particular organisation is when it is confronted with the health issues making up 80% of its work. When this tribunal is over and hopefully finds in Chris’s favour, the NHS managers involved need to be grilled by the Health Select Committee as to why they are spending such large sums of taxpayers money to supposedly prove a point about one isolated but courageous Doctor.
Furthermore, for such an important case, I am appalled by the lack of mainstream press and TV interest so far.
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What are the chances that these craven cowards who tried to ‘blackmail’ Chris will be prosecuted? That’s what it will take to stop these lowlifes going after the whistlebower, rather than deal with the problems they, no doubt, had a part in creating. I am so disgusted with this country!
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zero 😦
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