One hundred “potentially relevant” e-mails and archive deleted by Lewisham and Greenwich NHS Trust in Dr Chris Day tribunal case

But judge refuses to strike out trust’s response saying Dr Day will get a fair hearing

Dr Chris Day

The Chris Day whistleblower tribunal took a new extraordinary turn yesterday when it was revealed how the trust never properly conducted searches to supply his legal team with all the information he was entitled to receive for the present hearing. . It was also revealed the NHS deleted the NHS email account of the Trust Director who was the formal instructing client in the Day case.

Even more extraordinarily David Cocke, the trust’s communications director, this week permanently destroyed 100 emails which could be ” potentially relevant ” and a whole archive – after the trust had been served with an order by the judge to deliver any missing internal communications involved in the case and a statement explaining their disclosure exercise. Mr Cocke apparently confessed in a signed statement that has been referred to in the Tribunal but not published in the live Dr Day Case page.

Dr Chris Day Whistleblowing Case Page – DrChrisDayDramatic late disclosures of trust emails on Chris Day case forces tribunal to pause the hearing | Westminster Confidential (davidhencke.com)

And at 11.0pm last night the trust suddenly released notes of a telephone board meeting which we know was when the Board approved the controversial settlement of Dr Day’s case previous whistleblowing case in 2018. The Trust and their lawyers had previously denied that any records of the meeting existed to Dr Day, his lawyers and a Judge. Dr Day had pressed for a Tribunal Order for release of the record of this document over a 5 month period but Dr Day and the Tribunal was told no such record existed. Now four years later one has suddenly been released last night via the Trust’s solicitors Capsticks.

The information about the release of the board meeting has also sparked off a potential dispute between the trust and the press. Tommy Greene, a freelance journalist writing for the Sunday Telegraph had put in a detailed freedom of information request about the meeting. He was told by the trust ” that a formal meeting of the Trust Board was not held on Sunday 14th October 2018. Board members did have a confidential teleconference that day.” He is looking at raising this reply with the Information Commissioner.

Andrew Allen QC

These disclosures emerged as Andrew Allen QC, Dr Day’s lawyer, applied to strike out the trust’s response to Dr Day’s case which has gone on for over eight years after he complained about patient safety and inadequate staffing at the intensive care unit and Queen Elizabeth Hospital in Woolwich.

He said: “The manner in which the proceedings have been conducted by or on behalf of R [ Lewisham and Greenwich NHS Trust] has been “scandalous, unreasonable or vexatious “and R has not complied with Employment Tribunal rules or with an order of the tribunal and It is no longer possible to have a fair hearing”.

He then cited the witness statement of Andrew Rowland, a solicitor from Capsticks, the trust’s law firm which revealed that two years ago there had been no proper search for documents – known as the discovery process- which Dr Day was entitled to see as part of his case. Mr Allen said:

i. The precise identity of those whose emails were searched has not been revealed but it clearly did not involve all of the relevant people;
ii. No document preservation or retention instruction appears to have been either given or alternatively adhered to – documents that should not have been deleted have been said to have been permanently deleted;
iii. The nature of the exercise does not seem to have been reasonable – were people (perhaps via their PAs) merely asked to search their own emails?
iv. An extraordinary amount of potentially relevant documentation has been said to be permanently deleted. There is no evidence from any IT expert to confirm this and C [ Dr Chris Day]finds it difficult to accept that e.g. emails from Doctors and other NHS staff could be rendered permanently unavailable in the manner suggested;
v. The explanation given for the permanent deletion of Janet Lynch’s emails { the former trust director of workforce and education] is difficult to accept, given that she was the primary instructing client therefore of clear relevance to the matters that C had raised … Ms Lynch’s departure from Lewisham and Greenwich NHS Trust took place after both of those events;”
Then a second email from Capsticks revealed that on Monday morning – said to be about 5.30 am – Mr Cooke went to the trust and started deleting e-mails on his computer which should have been handed over to Dr Day’s lawyers. This was just before he would be giving evidence at the tribunal for the trust.

Mr Cocke’s action was egregious

Mr Allen described his action as egregious and added in his statement: “Mr Cocke’s actions as described in his witness statement …may amount to a civil or criminal contempt or perverting the course of justice. That is a matter in itself for other authorities. However, if he is to be cross examined, he will need to be cautioned as to his right to remain silent and as to any consequences if he does not remain silent.”

Mr Allen summed up :”The events of this week and the statements supplied on 5 July 2022 have demonstrated that a proper discovery exercise did not take place in 2020 and now it is effectively asserted by R that it cannot take place given the amount of material that is said to have been permanently deleted.”

He argued: “The manner in which clearly relevant material has been disclosed: late, after the drafting of witness statements, after C has given evidence, after two of R’s three witnesses have given evidence)
with the destruction of evidence; and the realisation that a proper discover exercise was not carried out in the first instance, means that it is no longer possible to have a fair hearing of C’s case. It is now well
over 3 years since the matters complained of.”

Dan Tatton Brown QC

Dan Tatton Brown, while condemning Mr Cocke for destroying the emails, defended him for bringing the issue to the tribunal, admitting he had done this in “a panic because he felt he had let down his colleagues” and insisted he was not involved in the deliberate concealment of documents.

He said it was ” absurd ” and “insulting the tribunal” to demand the trust’s response should be struck out because all the issues involved could be raised in the final submissions by both sides to the judge.

At the time David Cocke said he was ill and would not be able to attend as a witness for the trust. But he informed the judges while they were deliberating that he was now better and could give evidence.

The judge ruled in favour of Mr Tatton Brown and accepted Mr Cocke’s decision to inform Dr Day’s lawyers about the missing documents as not deliberately concealing anything. Judge Anne Martin said they had taken that view before Mr Cocke informed them he could give evidence. The hearing continues next Tuesday.

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33 thoughts on “One hundred “potentially relevant” e-mails and archive deleted by Lewisham and Greenwich NHS Trust in Dr Chris Day tribunal case

  1. Mr Hencke
    Thank you for the work you are doing , helping Dr Day bring this to pubic attention. It certainly won’t be appearing on the front page of the Daily Mail or Telegraph anytime soon.

    Like

  2. is he expecting a promotion to the Royal Protection Squad or something?

    Destroying evidence is a serious criminal offence, consequences of include never being able to work at Director level or being self employed ever again. But it is simply standard practice for g-men to do this all the time with zero consequences, other than promotion….

    I’m also still left wondering as to what has happened to what must amount to tens of thousands of surveillance footage and other things that were done to me. Destroyed, or are they still jerking off to the footage after all this time…? Guess I shall never know….

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  3. Once more this bizarre sequence of events seems to be following the pattern of my own employment tribunal and subsequent investigations. Destruction of emails and email accounts; the sudden, miraculous appearance of new and very convenient evidence, witnesses dropping out, statements concealed, costs threats etc etc.
    It simply isn’t possible to get a fair trial with such overt abuses going on, and the fact that no-one is ever held to account simply guarantees that big organisations will continue with such abuses. After all, what’s to be lost if you’re never held accountable?
    Please read my own account of a near identical sequence of events. Amazon. “Whistle in the Wind”, and “Smoke and Mirrors”.

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  4. What I find strange in all of this is that emails are sent and received to different peoples computers. Deleting them from one does not mean they remain unavailable on the other one (unless of course there is an email deletion conspiracy). I wonder what a forensic computer IT specialist would make of the explanations

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  5. The more I hear about such cases the more depressed I become about the number of people working in publicly funded organisations who try and cover their backs instead of fixing things. How many more decent people like Dr Day are out there suffering in silence.

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  6. Thanks for keeping us updated. Whilst I accept the fact that the NHS management is grossly negligent, incompetent and inefficient (not even having effective computer back-up procedures), it stretches all credulity that these emails miraculously ‘disappear’ after the court has told the NHS to produce them and bouts of sickness conveniently come and go as suits the NHS purpose with absolutely no comeback. I find it hard to believe with all these NHS shenanigans that Dr Day will get a full and fair hearing unless the tribunal finds totally in his favour and then what will be done to prosecute the NHS’ dishonesty. Until that is done, they will continue to to behave in this appalling fashion to cover their own backs. If only they put this much effort and ingenuity into doing the job properly in the first place – there would have been no need for a tribunal!

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