David Cocke – the trust official who destroyed ” potentially relevant” emails – instructs top lawyer and pulls out of cross examination in Chris Day tribunal

Dr Chris Day

Judge Anne Martin says she doesn’t accept Communications Director quit tribunal hearing for medical reasons as the trust provided no medical evidence

Revealed: note of the Board Meeting that approved settlement of Dr Day’s case hidden for 4 years and its existence denied to a judge

The Chris Day tribunal took yet another unexpected dramatic turn today when David Cocke, the director of communications, for the Lewisham and Greenwich NHS Trust pulled out of today’s hearing – he was due to be cross examined this morning.

Instead of defending his two witness statements in support of the Trust, Mr Cocke has instructed Kingsley Napley, ” well-established as one of the world’s leading criminal law firms, largely because of its role in several high-profile cases”.

The implication is that he intends to defend himself from allegations that he deliberately destroyed evidence that were placed in an unsigned statement on his behalf and relied on by the NHS and its law firm Capsticks – maybe Mr Cocke will now be taking on his employer, the Lewisham and Greenwich NHS Trust.

IMr Cocke was due to be cross examined by Andrew Allen, QC for three hours over the preparation of what another witness Sir Norman Lamb, the former health minister described as ” inaccurate, damaging and defamatory” public statements to the press, MPs and other stakeholders attacking Dr Chris Day in 2018. The former minister said the trust owed Dr Day an apology for what they had done.

Dr Day has been fighting the trust for nearly nine years after he made protected disclosures about patient safety and inadequate staffing at the intensive care unit at Queen Elizabeth Hospital in Woolwich. Two people died there including one who had a chest drain inserted by mistake into his liver.

Events at the hearing already took a dramatic turn earlier this week when Mr Cocke volunteered a cache of emails that should have been disclosed to Dr Day four years ago. This was followed by the disclosure of a 2018 board report which discussed how to handle Dr Day’s case among emails held by Ben Travis, the trust’s chief executive, which the trust denied to a judge had ever existed in 2018.

David Cocke then went into the trust’s headquarters at 5.30 am and destroyed 100 emails and an archive which contained ” potentially relevant ” information which should have been disclosed to the tribunal. He claimed the emails had been permanently destroyed.

Last week he cancelled his planned appearance before the tribunal claiming, without providing a medical certificate, that he was ill.

He then abruptly reversed his decision and informed the court at the time the tribunal were deliberating on whether to strike out the trust’s entire response because of Cocke’s ” egregious behaviour ” which could amount to perverting the course of justice.

The tribunal decided to continue and Mr Cocke said he would appear today.

Then last night the tribunal was told he was going to pull out for the second time having instructed Kingsley Napley to fight his corner.

Before that he sent a doctor’s note saying though he was unfit to go to work he was fit enough to be cross examined at the tribunal.

The tribunal was presented with a confusing picture about his health and mental state. Originally the trust had said on July 5 he could stay off work for two weeks because he was ill but he appears to have kept changing his mind about appearing before the tribunal.

Andrew Allen QC

Mr Allen alluded that he was seeking further medical help and may have an appointment with a psychiatrist.

Judge Anne Martin’s statement

In a statement after proceedings had been stopped again Judge Anne Martin said I just wanted to make it clear, that without further medical evidence, the Tribunal can not accept the reason for him [Mr Cocke] not being called to give evidence is medical. It is a decision made by the Respondent.” Or in other words a deliberate step from the Trust to avoid Mr Cocke being cross examined. There is a full statement on Chris Day’s whistleblowing site here and in his crowdjustice newsletter.

IAs a result of Mr Cocke ‘s behaviour Mr Allen concluded that he could not trust whether a revised witness statement from Mr Cocke to the tribunal could be considered to be accurate. His first statement had already been decided not to be an accurate account of the events.

Dr Day, who now is suffering from Covid, did swear two further statements following his reading of Mr Cocke’s statement but Dan Tatton Brown QC told the tribunal he did not plan to cross examine him about them.

Dr Day’s statement, which is unchallenged by Mr Tatton Brown, reveals details of a telephone discussion in October 2018 which the board originally claimed had no record.

He said “It appears that this note recording the Board meeting was included in emails to the former legal client of the Respondent, Janet Lynch; the person who I believe to be the current legal client Kate Anderson (who also wrote the note); the Chief Executive Ben Travis; and perhaps most significantly, David Cocke. It is of concern whether this was one of the documents and emails David Cocke decided to deliberately delete on the morning of 1 July 2022 before the hearing re-commenced.
He goes on ” Someone with the initials LA “confirmed all four Trust Medical witnesses felt strongly that we should agree the proposed settlement. It would be difficult to control media presentation of evidence that may emerge in the second half of the Tribunal” and “JB confirmed agreement to settle, noted potential exposure to the Trust if we didn’t.”.

“This shows to me that a key motivating factor of the Trust Medical witnesses, Janet Lynch, and the Board in their actions in this claim are fears about how the live evidence of the October 2018 hearing of the protected disclosures and the Trust’s response would be viewed by the public, doctors and
journalists in the public gallery.”
“Contrary to what Ben Travis has stated in his witness statement in this case about his preference for the case to run its course, the record does not show that he expressed any doubts to the Board, and it records that: “BT confirmed a view that we should settle”.

Ben Travis wanted to settle but his tribunal statement said the opposite

The Board member AJ stated the Board should attempt to control communications “beyond Chris Day himself”. They are clearly referring to those present in the public gallery observing the evidence and those reading the case papers and how they may disseminate such information. This also confirms my
pleaded case as to the evidence of the Trust’s response to my protected disclosures being the main driving force the Respondents actions.

The tribunal will reconvene on Thursday afternoon to hear final submissions from Mr Allen and Mr Tatton Brown without calling any more witnesses.

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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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