Jessica Blackburn: The ambitious Capsticks lawyer with a mission to unsettle whistleblowers

Posted on August 20, 2023 by davidhencke

Jessica Blackburn senior associate Capsticks Pic Credit:London Portrait photographer David Woolfall

Jessica Blackburn is the senior solicitor and driving force behind the bid by Epsom and St Helier University NHS Trust(ESHUT) to get record £180,000 costs against Dr Usha Prasad, the whistleblower cardiologist who was dismissed by the trust for her disclosures.

As reported earlier a hearing like this is extremely rare, as in 99.95 per cent of all employment tribunal cases no complainant pays any of the employer’s costs – much to chagrin of big employment law firms like Capsticks.

She was educated at the highly selective Wallington High School for Girls and graduated from the University of Southampton Law School in 2014. She took two postgraduate legal practice courses at the private University of Law in London and got a distinction. She was a trainee solicitor at RadcliffesLeBrasseur , a law firm now part of Weightmans. She took a job as a qualified solicitor with Capsticks in 2018 and was promoted to a senior associate three years later. A native English speaker, among the languages she has is elementary knowledge is Yoruba, a West African tribal language. She also played a senior role in Capsticks celebrations of Black History Month last year.

Claire McLaughlan ,chairs MHPS inquiries

At Capsticks she specialises in defending health trusts and the police and cites dealing with whistleblowers as one of her specialities. She is also involved in advising trusts running complex doctor cases under the national framework, Maintaining High Professional Standards in the Modern NHS – internal hearings like the one already held by ESHUT over Dr Usha Prasad chaired by Claire Mclaughlan that came to the bizarre decision that she was “unfit for purpose”.( see my blog here and here.)

Her top tribunal case cited on her page is one heard by Judge Auerbach in 2021 between Mr Abgeze and Barnet, Enfield and Haringey Mental Health Trust ( judgement here) over the controversial issue of people’s rights in zero hours contracts. Mr Abgeze, who was on a zero hours contract, was suspended and then reinstated by the trust. But because he was on a zero hours contract he was unable to apply for shifts and claimed compensation. Judge Auerbach threw out his claim.

She writes: “This will be a welcome decision to NHS Trusts, and other organisations that have similar casual worker arrangements.”

Certainly as this week’s cost hearing approaches there is a big stand off between her and Dr Usha Prasad who under increasing stress and suffering health issues and asked for a postponement. But it looks like that either Jessica Blackburn doesn’t believe her (despite a doctor’s note) or does not want to believe her and doesn’t want her schedule for the historic case delayed.

Forensic details of Usha Prasad’s finances demanded by Capsticks for the health trust

This is the letter she sent demanding details of Dr Prasad’s finances to make sure she will be ready to pay the £180,000.

“We write in respect of the hearing to determine the Respondent’s costs application against you listed by the Tribunal for 23 and 24 August 2023. The Trust has incurred in excess of £150,000 plus VAT in legal costs in defending your claims (2 and 3), which were all dismissed.

On 19 June 2023, we wrote to you in the following terms:

“As part of the Tribunal’s consideration of the Respondent’s costs application, the Tribunal may take into account your financial means. Therefore, please can you disclose by 23 July 2023, any evidence of your means if you intend to rely on this at the costs hearing, so that this information can be contained within the costs hearing bundle.”

To date we have received nothing. We are not clear whether this is because, if you are ordered to pay costs, that your position is that you would be financially able to meet any order made by the Tribunal, or, on the other hand that you have elected not to disclose any information.

We remind you that under Schedule 1,  rule 84 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal may (but is not required in all circumstances) take into account a paying party’s ability to pay.

Ability to pay

84.  In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.

If you intend to argue (or might do so, depending on the level of costs awarded) that you would not be financially able to meet the terms of any costs award, if so ordered, the Respondent requests you urgently provide supporting information and evidence of the same.

This should include:

·         information about your present level of income and remuneration as well as of what you have earned since the liability judgment; any property you currently own (whether in whole or in part, whether land, buildings or otherwise), any investments, and the content of any bank / building society or similar accounts and any other information relevant to your ability to pay an award of costs. This information should cover assets worldwide not only in the UK.

·         You should also provide information and evidence regarding your financial commitments such as rent/ mortgage.

·         Evidence to support the information provided should be provided.

·         As regards your employment related earnings, pay slips, P60s, tax returns or record of invoices paid through agencies or similar and any current or recent contract of employment, or for your services.

·         As regards bank accounts, savings and investments, including ISAs, this should include copies of your recent bank (etc) statements. Downloaded statements or screenshots from a bank (etc)’s website are acceptable.

·         The Tribunal will need to understand your current financial commitments, therefore if you have any loans, mortgages, or other regular payments made such as rent or utilities, documents in support of the same (e.g. mortgage statement, loan agreement/payment schedule, rent payments) should be provided.

·         Where you own one or more properties you should identify the approximate current value of the property concerned and the balance of any mortgage.

·         Please can you also confirm your current employment/engagement status, including whether the number of hours worked and whether that if permanent or temporary (and if so on what basis) and your residential address.

Threat judge will be told if she does not provide the information

The Respondent will draw this letter to the Tribunal if the information and evidence requested is not supplied prior to the hearing but where you contend (whether in writing, or at the hearing) that your means should be taken into account by the Tribunal. It is important that the Respondent understands your position in good time prior to the hearing. In addition, we urgently request confirmation of your position regarding your financial means in order to address this issue in written submissions, the absence of which is delaying completion.

We look forward to receiving confirmation of your position, together with the requested documentation where applicable, as a matter of urgency.”

When she sent the doctor’s note Jessica Blackburn ignored it. You can see what detail Capsticks want – and other whistleblowers facing cost hearings say they have not received such detailed demands.

I informed Jessica Blackburn I was proposing to write a profile of her. Capstick’s press office replied that she could not comment at this time.

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Usha Prasad: Whistleblower Consultant cardiologist faces record £180,000 cost claim from NHS health trust

Posted on August 16, 2023 by davidhencke

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.

Epsom Hospital part of the Epsom and St Helier NHS Trust

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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