Whistleblower Dr Chris Day’s appeal: Has Judge Andrew Burns KC ruling made it impossible for him to get open justice?

Posted on April 7, 2024 by davidhencke

UPDATE: In a further twist in this long saga, High Court judge Dame Jennifer Eady, President of the Employment Appeal Tribunal initially took a decision not to read Dr Day’s letter complaining about the injustices in the procedure of his tribunal case against Lewisham and Greenwich NHS Health Trust . Now it has been decided that another judge will rule whether she should read the letter. Such a move has been opposed by the trust, who are represented by Old Square Chambers.

Superficially the ruling by Deputy High Court judge Andrew Burns looked like a victory for the long campaigning whistleblower Dr Chris Day to get a fair hearing at his forthcoming Employment Appeal Tribunal. He was granted an appeal on six of the ten grounds presented to the hearing and he was publicly commended by the judge for restoring the employment rights of 54,000 doctors which had been taken away in a sleight of hand by the now merged Health Education England.

But a closer look at the judgement gives a rather different picture. Instead of allowing a full appeal of employment judge Ann Martin’s flawed hearing he introduced caveats and blocked the re-examining of crucial issues. These include examining whether MPs and the press have been misled by the NHS and their lawyers, whether deliberate concealment has occurred and such startling behaviour as a Lewisham and Greenwich health trust communications director destroying mid hearing 90,000 emails that could have helped Dr Day’s defence and subsequently declining to appear as a witness.. It also allowed the health trust’s lawyers to to traduce Dr Day’s public reputation and misrepresent his motives without fear of being dragged before the libel courts or even being properly cross examined about this at the tribunal.

Three Wise Monkeys – a rather good print by Swedish musician and artist Andreas Magnusson see https://printler.com/en/poster/167372/

In short Andrew Burns judgement is a ruling equivalent to the infamous “three wise monkeys” carving at a Japanese shrine. He ” sees no evil, he hears no evil and speaks no evil” at that flawed tribunal. And he has been given by Dr Day a chance to review his findings to take account of these omissions.

Dr Day’s points requesting a review are here.

To put it simply he is blind to Ann Martin’s mishandling of that tribunal, he is deaf to Dr Day’s arguments to put this right, and he is silent about the outrageous behaviour of the trust’s employees and their lawyers, particularly Ben Cooper, KC on traducing Dr Day’s reputation and it being broadcast to MPs, the public and other trusts.

As Dr Day puts in an email accompanying his crowd justice website ” which goes into all the legal details “The Judge has allowed me to have an appeal but taken all my weapons and has blocked key issues being explored.”

The language used against Dr Day by Old Square chambers lawyer Ben Cooper would be defamatory outside a court room. He is described as ” having an obsessive belief in his victimhood”, accused of an “elaborate rewriting of history by him to fit in with his narrative” and condemned his evidence as ” dishonest and underhand.”

When pressed on this by Dr Day’s barrister Andrew Allen KC at the June 2022 Mr Cooper conceded he had no example of what he meant from Dr Day’s witness statement and Mr Allen was then prevented from cross examining Mr Cooper on Dr Day’s supplementary statement rebutting Mr Cooper’s insults and allegations.

My Statement on Ben Cooper KC – DrChrisDay

To make matters worse Ben Cooper’s attack on Dr Day’s character has been picked up by a lawyer defending lawyers Hill Dickinson against Dr Day in another case. Dijen Basu, KC from Sergeants Inn Chambers, in a skeleton argument in a case still to be heard said of Dr Day ” The diagnosis of whistleblowitis is a pithy way of describing a man who had developed an obsessive belief in his own victimhood to the point of being prepared to dishonest and underhand in pursuit of what he saw as the virtue of his cause as Mr Cooper described him.”

The irony of this attack is the case revolves around Hill Dickinson depriving 54,000 junior doctors of their whistleblowing rights whilst not revealing key commissioning contracts in disclosure the firm were paid to draft. Now who was really being dishonest and underhand!

As Dr Day purchased the transcript of Ann Martin’s tribunal he has been able to point out that cross examination of Ben Cooper’s claims was halted by the judge but she went on to allude to Ben Cooper’s argument against Dr Day in her public judgement. Dr Day argued that this a breach of court procedure but the judge did not agree.

Judge Andrew Burns did agree he had made a mistake in describing Dr Day’s withdrawal in a previous hearing in this long dispute as being caused by duress rather than misrepresentation.. This was when his lawyer Chris Milson, without his instructions, tried to negotiate a settlement which included a confidentiality clause. Dr Day was able to get Judge Burns to accept that his case was not one of duress but one of serious allegations of misrepresentation from a number of lawyers whose accounts of the infamous settlement of the Day Case in 2018 do not add up.

Dr Day has now written to Judge Dame Jennifer Eady, President of the Employment Appeal Tribunals, asking her to intervene.

Letter to Dame Eady President of the Employment Appeal Tribunal – DrChrisDay

He writes: “It may come as no surprise that I and large numbers of doctors feel deeply let down by the way the EAT has handled my case over the last 10 years. I believe its decisions have not been logical and have ignored evidence, pleadings and important appeal points. I believe the most likely explanation for
this is the EAT’s failure to manage properly the conflicts of interests and human factors that have come into play when Judges have dealt with certain issues in my case affecting their legal colleagues.”

He goes on: “The destruction, concealment and ignoring of large amounts of evidence at the June 2022 ET hearing of my case and the obstruction of 2 of our proposed cross examinations was widely reported and shocked people. Many were expecting these obvious issues to be dealt with decisively by the appeal tribunal. Instead, I have had to get into an argument with the EAT about whether such extraordinary conduct is enough for me to advance procedural unfairness as a ground of appeal”

He adds: “I am seriously considering whether I can proceed with an appeal in this court whilst the EAT refuses to answer” these points.

A check on social media of Judge Burns X account by 54,000 doctors, a group who campaign for the whistleblowing rights of junior doctors reveals how closely 3 of the lawyers involved on both sides of the Day settlement are connected socially.

Judge Andrew Burns, a former lawyer at Devereux follows and is followed by Chris Milsom – Dr Day’s lawyer in a previous 2018 case that settled ; he follows Old Square Chambers, which has a leading role in pursuing whistleblowers; Martin Hamilton, managing partner, Capsticks who Dr Day alleges misled MPs and the Board of Lewisham and Greenwich about his case and settlement. Other followers include Nadia Motraghi, KC, another Old Square Chambers that was against Dr Day, who also pursued Dr Usha Prasad, a whistleblower cardiologist at Georges and Epsom St Helier NHS trust.

Finally it turns out that judge Dame Jennifer Eady – whom Dr Day is relying on to adjudicate about this – is a former lawyer at Old Square Chambers from 1990 to 2013. During her time at Old Square Chambers, for 13 years from 2000, Ben Cooper KC, and from 2004 Nadia Motraghi were colleagues. It would be amazing if they don’t know each other very well as they practised in the same field.

So how will Dr Day get a fair hearing when three of the lawyers he is accusing of misleading on the settlement are so closely linked to the judge and the final arbiter is their former colleague now in an all powerful position to control the entire employment appeal tribunal system.

My final point from covering a number of whistleblower tribunals is that I am disgusted at the way very senior professional lawyers seem to enjoy denigrating, insulting, and belittling the careers of eminent doctors whose main concerns are to protect the public from bad medical practices which endanger lives.

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Whistleblower Dr Chris Day wins right to appeal in his ten year patient safety battle against Lewisham and Greenwich NHS Trust

Posted on February 27, 2024 by davidhencke

Whistleblower Dr Chris Day won the right to appeal today when a a Deputy High Court Judge Andrew Burns of the Employment Appeal Tribunal granted permission to appeal the November 2022 decision of the London South Employment Tribunal on six out of ten grounds at a hearing in London.

My blog on this judgement is here: Tribunal of the Absurd: My Verdict on the Dr Chris Day whistleblower case | Westminster Confidential (davidhencke.com)

The saga which has now being going on for almost ten years began when Dr Day raised patient safety issues in intensive care unit at Woolwich Hospital in London. The Judge said today this was of the “utmost seriousness” and were linked to two avoidable deaths but their status as reasonable beliefs were contested by the NHS for 4 years using public money.

In a series of twists and turns at various tribunals investigating his claims Dr Day has been vilified by the trust not only in court but in a press release sent out by the trust and correspondence with four neighbouring trust chief executives and the head of NHS England, Dr Amanda Pritchard and local MPs.

This specific hearing followed a judgement in favour of the trust by employment judge Anne Martin at a hearing which revealed that David Cocke, a director of communications at the trust, who was due to be a witness but never turned up, destroyed 90,000 emails overnight during the hearing. A huge amount of evidence and correspondence that should have been released to Dr Day was suddenly discovered. The new evidence showed that the trust’s chief executive, Ben Travis, had misled the tribunal when he said that a board meeting which discussed Dr Day’s case did not exist and that he had not informed any other chief executive about the case other than the documents that were eventually disclosed to the court..

The hearing went on for an extra week because of all these disclosures and the British Medical Association, who are representing Dr Day, asked for their costs to be repaid yesterday because of the additional expense at the hearing. The judge agreed that a separate appeal to recover the BMA costs should also be granted permission to be heard.

Instead of a decision to allow an appeal this hearing was held today to decide whether there was an ” arguable case ” for an appeal.

Dr Chris Day won the right to appeal that some of the findings of the judgement were perverse, that the judgement failed to draw any inferences from the destruction of 90,000 emails and the failure to provide documents that would have helped Dr Day’s case. This in particular followed the disclosure in documents that under oath the chief executive, Ben Travis gave an untrue account about a board meeting and had hidden he had contacted other trust chief executives about Dr Day.

The judge seemed exercised that the trust despite the Care Quality Commission expressing concern about a press release which attacked Dr Day decided to do nothing about it and the judgement appeared to ignore this.

The judge also allowed the right of appeal for Dr Day about the way he had been treated as an employee and how events had unfolded at the trust.

What was not allowed was the right of Andrew Allen, the BMA’s funded lawyer, to cross examine the trust’s lawyer, Ben Cooper, about remarks he had made about Dr Day during the hearing. some of which he was forced to concede were not accurate. Mr Cooper was rescued By Judge Anne Martin from having to respond to Dr Day’s supplementary statement on this point and was further rescued by the EAT today. Coincidently today Mr Cooper was representing the retail giant Asda in a case next door to today’s hearing.

My Statement on Ben Cooper KC – DrChrisDay

The Judge also blocked a ground of appeal relating to factual findings being made on whether MPs and the Press has been misled on Dr Day’s protected disclosures. Also blocked was Dr Day’s and his legal team’s clear request for a formal finding on whether deliberate concealment had occurred as part of Dr Day’s protected disclosures. It was made clear to the Judge these points were what the case was about.

Despite this the decision of a senior judge does call into question the judgement made by Anne Martin who it is now arguable made some poor calls -particularly avoiding the issue of the destruction of emails and withholding documents that should have been disclosed to Dr Day’s lawyers.

The judge also paid Dr Day a compliment saying by raising the dangers for patient safety caused by staff shortages in 2014 he was ” way ahead of his time.” This might suggest that judiciary is becoming increasingly aware about the state of the NHS and its effect on patient safety. Perhaps judges are seeing too many scandals reported in NHS trusts.