It is a fact that among the tens of thousands of employment tribunals held every year claimants do not have to pay their employers costs in 99.95 per cent of all cases.

Therefore it is absolutely extraordinary that Dr Usha Prasad, a whistleblower cardiology consultant at Epsom and St Helier University NHS Trust is facing a special costs tribunal next week for an astonishing £180,000 claim from her employer at the London South tribunal in Croydon.

Even in rare cases where costs are sought the maximum is £20,000 and the level of proof has to be very high. The claimant has to be seen to have been acted “vexatiously, abusively, deceptively or otherwise unreasonably” or has brought proceedings deemed to be misconceived.

However it is looking like that where whistleblowers are sacked and go to an employment tribunal more and more judges have agreed to hold cost hearings so the public body can recover some or all of its costs. And lawyers acting for these bodies threaten huge costs against whistleblowers to deter them from proceeding further. This has been used against Dr Chris Day in his decade long battle against the Health Education Executive and Greenwich and Lewisham NHS health Trust over patient safety and , against Dr Duffy, author of ‘Whistleblowing in the Wind’. Non NHS whistleblowers also face this. More recently this involved a case against Alison McDermott, a management consultant, at Sellafield and the Nuclear Decommissioning Authority (NDA), who exposed a raft of bullying, harassment and other grave failings at the nuclear plant.

Alison then faced a £40,000 cost hearing – both bodies sought the maximum figure – with judge Lancaster refusing to accept she was a whistleblower- only to have his decision declared  ” unsafe” by a judge at the high court. He determined that the costs were unsafe and must be ‘quashed.’  HHJ Auerbach also  overruled Judge Lancaster and confirmed that Alison was whistleblower. A FOI has revealed that Sellafield and the NDA have spent an extraordinary sum – £660,000 resisting that she was a whistleblower.

Unbelievably Sellafield and the NDA have just sought to reinstate the cost hearing again with the same judge who made the ” unsafe” costs ruling which has already been thrown out by the higher tribunal. Which of course sends a chilling message to any would be whistleblowers at the most dangerous nuclear site in Western Europe.

In Dr Usha Prasad’s case the trust and its lawyers, Capsticks, have gone one step further by getting a hearing next week wanting the judge to order a £180,000 costs finding against her.

Now in researching whether this has happened before – the only case I found which is highlighted by the Association of Costs Lawyers is Gosalakkal v University Hospitals of Leicester NHS Trust, where the paediatrician who made a series of whistleblowing claims walked out of the costs assessment hearing and ended up being ordered to pay £82,000 to the trust. This went to appeal in 2019 and the judge was criticised for misunderstanding the whistleblowing nature of the case and the initial award was quashed. It turned out there was a breakdown of relationships among consultants there as well, a disciplinary hearing and he was dismissed. He left Leicester and got a new job in the United States.

Judge Heap ruled in April 2017 that she could do this citing rule 78 of tribunal regulations set in 2013 which allows her to exceed the £20,000 limit by having a detailed costs assessment or send it to a county court to decide. I am pretty sure Capsticks will be citing these rules and the case next week.

I am sure the Association of Costs Lawyers would have highlighted any higher settlement than this so this will make the Dr Prasad hearing a new record for tribunals pursuing whistleblowers for costs. The biggest sum ever awarded at an ET tribunal to an employer was £432,001.85 in a dispute between Copthorne Hotels and a Mr Tan who had withdrawn any whistleblowing claims.

The problem for Dr Prasad is that these hearings specifically rule out discussing the merits of previous tribunal hearings in her case. She has had enormous support from other practising colleagues at the Epsom Trust trust. You only have to look at a website to see the appreciation of her work at Pinderfields General Hospital in West Yorkshire to see pages of praise from patients. These were made while the case against her was being pursued by the Epsom and St Helier NHS Trust.

She has still to await the official result of an employment appeal tribunal hearing against her case claiming perversity and bias and error of law by the judge involved ( see below) and the trust has secured a costs hearing in just over five months while the average wait for the overloaded employment tribunal system to hear a case is now 335 days. She has been refused access to the judge’s notes to defend herself and her barrister who appeared for her previously is not available to defend her.

The judge who heard her case Tony Hyams-Parish, threw out all “her allegations of victimisation, sex harassment, and sex and race discrimination” and ignored in his judgement the admission from the trust that it had failed to report to the coroner an ” avoidable death” of a heart patient treated by another doctor and tried to get her to change a report on the incident. My reports of this part of the hearing is the only record that it happened. See it here and here.

Capsticks have seized on this to write to her saying :” The Respondent has incurred very substantial costs indeed in defending the unmeritorious proceedings, of in excess of £150,000 plus VAT. The costs incurred correlate to the Claimant’s unreasonable conduct and the unmeritorious nature of her complaints.”

What is also missing is that the trust put in 43 complaints to the General Medical Council to build up a case against her.. Every one of those complaints was thrown out by the GMC after a highly skilled cardiologist looked at them and she was automatically approved to continue working as a doctor without any further revalidation.

The BMA despite receiving letters of support from her medical colleagues has refused to give her any financial backing to fight this hearing, citing that it did not have a 51 per cent or more chance of success. In my view that is short sighted as far as I can see the hearing is about the costs incurred by the trust in fighting a whistleblower case and if they do not challenge this, they are leaving all their members to be hung out to dry by NHS trusts.

Not to put to fine a point on all this my thoughts are this has all the hallmarks of being a ” Kangeroo tribunal ” next week where a litigant in person, an excellent doctor, is being arraigned by legal heavyweights with little chance of being able to defend herself. Let’s see if this is true next week

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