QC’s clash on whether trust’s explanation was “tendentious nonsense” or “cock up rather than cover up”
Employment judge Anne Martin has ordered Lewisham and Greenwich NHS Trust to conduct a search of further emails and personal communications between staff and doctors after an extraordinary revelation that it had held back relevant emails on Dr Day’s whistleblowing case which could affect the outcome of his tribunal hearing. The disclosure order is here.
The disclosures came out of the blue over the weekend when at 9.30pm on Friday Capsticks, the trust’s solicitors, sent a cache of emails to Dr Day’s lawyers revealing hitherto undisclosed emails between Dr Dan Harding, an intensive care consultant and Assistant Medical Director for Professional Standards at the trust and Janet Lynch, then director of workforce and education. They were sent and copied to David Cocke, director of communications who was drafting statements in 2018 for Ben Travis, the chief executive, to send out to the trust’s stakeholders and the press which were highly critical of Dr Day.
Dr Harding was one of the first persons Dr Day complained to about patient safety and staffing issues at the Queen Elizabeth Hospital in 2013 – which are at the centre of his whistleblowing case.
The full list of undisclosed material are emails :
a. From Janet Lynch to Doctors Aitken, Patel, Harding, Luce and Brooke, cc’d to David Cocke dated 22 October 2018 at 20:29 attaching a draft of what would become the 24/10/18 statement;
b. From Duncan Brooke to Janet Lynch and Doctors Aitken, Patel, Harding and Luce, cc’d to David Cocke dated 22 October 2018 at 20:28;
c. From Dan Harding to Dr Brooke, Janet Lynch and Doctors Aitken, Patel, and Luce, cc’d to David Cocke dated 23 October 2018 at 8:48
d. From David Cocke to Drs Harding and Brooke, Janet Lynch, Drs Aitken, Patel and Luce dated 23 October 2018 at 12:38.
This morning Capsticks sent another another 13 undisclosed emails mainly involving David Cocke, who should have given evidence today.
Pic credit: Hertfordshire Partnership University Trust where she how works
In his application to the tribunal for any further emails to be produced, Andrew Allen, QC says:
” Janet Lynch refers to her attachment having had input from Capsticks, David and Ben and having “already been through a number of iterations” and “Liz has seen an earlier version”. No previous iterations have been disclosed. No communications between Janet Lynch, ‘David’, ‘Ben’ or ‘Liz’ have been disclosed. The process by which the statement of 24/10/18 was put together is highly relevant to the question of causation, which will be the central issue for the tribunal in this case;“
“These emails are not merely relevant to a specific issue that has arisen during the course of evidence. It is relevant to a core part of C’s case that has not only been evident since the claim was presented to the tribunal but has also been highlighted on a number of subsequent occasions. It therefore casts in doubt the integrity of the whole of the discovery and disclosure exercise by R [Lewisham and Greenwich NHS Trust].
The trust claimed it had decided to release the new emails because Dr Day had changed his case during the hearing.
Trust claimed it didn’t disclose emails because Mr Cocke innocently deleted them
It said: “Mr Cocke made those enquiries as a result of the way in which the Claimant’s case had changed over the course of the hearing, and in particular the Claimant’s questioning of Ben Travis, which made it clear that the Claimant had the concerns about the involvement of clinicians in the preparation of the press statements.”
The trust also said Mr Cocke had trouble with his emails.
” He has historically had difficulties with his emails and has had to delete emails to free up storage space (before the current claim was lodged). He has rechecked his email folders to search for these new documents and has not found them. He infers that they were innocently deleted as part of his attempts to free up storage space. He was not previously aware that any potential emails might have been “lost”. “
Mr Allen described blaming Dr Day as ” tendentious nonsense”.
“The Claimant’s case has not changed. It has always been his case that the statements were detrimental on grounds of his protected disclosures. That no discovery exercise had been carried out on the communications of the recipients of the protected disclosures (Drs Roberts, Harding, Brooke, Luce and Patel) is a clear failure in the disclosure exercise.”
He pointed out that Dr Day had pressed whether any of senior doctors had any input in the statements made by Ben Travis about him and there had been no suggestion then they did -until these emails emerged.
He also pointed out that there was no search at all of Janet Lynch’s emails or of Kate Anderson, director of corporate affairs, who was asked to produce a review of Dr Day’s protective disclosures, but never produced a written report or any paper trail.
He said the non disclosure of the documents had multiple consequences. Among them were: “It puts in serious doubt whether this tribunal at this hearing can come to a fair decision – that is a point that must wait for full disclosure as must any question of whether R’s response should be struck out for abuse of process;”
“It makes clear that the evidence given by Mr Travis to the tribunal was inaccurate (to put it mildly) as is the evidence in the signed witness statement of Mr Cocke. That will be the subject of submissions in due
course if this matter proceeds”
Dan Tatton-Brown, QC, for the trust, said that the non disclosure of the emails were a ” cock up not a cover up”. He said David Cocke’s action is not releasing them because they had been deleted by him was ” entirely innocent.”
” If they had been deliberate he would have deleted a very damaging one where he said Sir Norman’s Lamb’s call for a public inquiry was ” appalling”, he told the tribunal.
He also insisted that the disclosure of the emails would help the respondent’s case and not help Dr Day.
He had to make his initial submission without taking instructions from the trust.
The tribunal is determined to finish this week and will take the final witness on Thursday and submissions on Friday.
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