It's not the fact we lost, it's the fact the Judge allowed my opponents to destroy all the evidence. Read our 2 BMA backed appeals to the EAT

To skip this article and go straight to read the Notice of Appeals click herethe Notice of Appeals click here

Getting up at 5am to destroy evidence is not even half of it

1. What do you think would make an NHS Trust's Director of Communications get up at 5am, travel to one of the Trust's hospitals and delete an archive of 90,000 emails, the morning before they were due to give evidence in a whistleblowing case? (click here for the Computer Weekly piece covering the astonishing events of the June 2022 hearing of my whistleblowing case)
2. Why would that same NHS Director of Communications choose to admit to permanently destroying evidence, do so in a tribunal statement, not sign the statement and then decline to be cross examined? (Any IT person will tell you that that it is not possible to permanently delete emails from secure NHS systems and that the suggestion that 90,000 emails could be deleted one morning at the touch of a button is laughable. The Judge swallowed the story but took no action to investigate or even question the people involved. There were also no consequences for the Director or the NHS Trust who went on to win the case)
3. Why would another director at the same Trust who also happened to be the person instructing the NHS lawyers in my whistleblowing case have their entire email account deleted whilst the litigation was still live? (Read our mid hearing Strike Out Application)
4. Why would an NHS Trust hide for years the record of a Board meeting that approved the contentious 2018 settlement in my whistleblowing case and then take the further risk of instructing their lawyers to deny the existence of the record to a Judge ?

Unanswered questions

You might think the Tribunal dealing with my whistleblowing case would want to know the answers to the above questions but they don't seem to - quite the opposite in fact.

We are going to see if the appeal courts are more interested than the London South Employment Tribunal in getting these important questions answered.

The obvious answer to the above questions is that the NHS Trust involved wanted to hide/destroy evidence that was extremely damaging to their position in my case. My whistleblowing case sets out evidence of senior NHS people lying to the press, MPs and the Trust's own Board in order to cover up the serious issues in my case and to smear and damage my credibility.

The London South Employment Tribunal took no action in response to the NHS' multiple acts of destruction and concealment of evidence. The Tribunal seemed keen to swallow the idea of permanent deletion of emails, so it could be accepted as a reason for no less than 5 of the key senior people involved in my case having their emails over certain key dates deleted or otherwise made unavailable. This combined well with the Trust also not producing those individuals to be cross examined.

The extent of the destruction and concealment of evidence that has occurred in my case is shown by the text coloured in green in the below disclosure order. This order was made towards the end of the June 2022 hearing once it became clear evidence was being hidden by the NHS.

The order sets out the evidence the Tribunal initially said they needed in order to decide my case fairly. At the time of the Order the Judge did not know evidence had been either hidden or destroyed or was being destroyed.

You don't need to know much about my 10 year long whistleblowing case to appreciate the significance of what I have set out above being ignored by a Judge and the clear obstruction of justice that must have occurred for me to have ended up losing the case in these circumstances. Trying to get the legal system to deal with this obvious injustice has been like banging my head against a brick wall.

We have submitted two appeals to the Employment Appeal Tribunal backed by the British Medical Association challenging the London South Employment Tribunal on their actions and decisions on the June 2022 hearing of my whistleblowing case ( you can read the appeals here). Win or lose these 2 appeals will have implications far beyond me.

What kind of a legal system allows large amounts of evidence from multiple sources to be destroyed in live litigation and countless other facts to be ignored just to get a bunch of senior healthcare and legal people off the hook in an NHS whistleblowing case?

This situation has all come at a huge cost to me, my family and the people living in 3 London boroughs who I imagine, may have wanted the serious issues I raised about patient safety and governance in their local Intensive Care Unit to have been dealt with.

What has my 10 year long whistleblowing case been about?

My whistleblowing case centres on serious patient safety issues that I raised as a junior doctor working in an Intensive Care Unit in Woolwich South East London. The ICU served 3 London boroughs and the disclosures were made all the way back in 2013/14. The whistleblowing or protected disclosures that I made were linked to 2 avoidable deaths. Because of the way this case has been fought the serious patient issues have been covered up, my career destroyed and in an attempt to prevent the case ever being heard damage has been done to legal whistleblowing protection for every junior doctor in the country.

My first whistleblowing case was about how dishonest investigations covered up the serious patient safety issues that I raised and also made demonstrably false allegations against me in order to discredit me. The allegations made against me were hugely effective at covering up the cover up but were demonstrably false. This case settled in hugely contentious circumstances in October 2018 and resulted in me withdrawing my claims of being harmed through whistleblowing and making a public statement saying that I believed the NHS acted in good faith in this case. I received no compensation in return for doing this. You may wonder why I did this?

The current case being appealed centres on how the NHS misled the press, MPs and the public on the patient safety issues in my case, how they were investigated and how and why the case suddenly settled in October 2018.

Below is one of my Crowdjustice videos that tells the story of my case from 2014-2020. This Westminster Confidential blog by David Hencke covers the most recent updates from the June 2022 hearing. This August, I will have been fighting for justice for me, my family and the public for 10 years.

What was the dramatic June 2022 Tribunal hearing about?

After 10 years of litigation and over 20 hearings, I have still not got to cross examine the people responsible for the destruction of my career and the cover up of the patient safety issues in this case. As stated the progress of the case was terminated by a ?hugely contentious settlement agreement?that occurred in an October 2018 hearing just before my lawyers were due to cross examine the NHS 14 witnesses.

The focus of the June 2022 hearing was on how this October 2018 settlement came about and what the NHS have chosen to say publicly, to the press and to MPs about details of the case and the circumstance of how and why it suddenly settled. The June hearing was observed online by between 80-100 people. You can read the legal papers on the June case page here.

My position in the June 2022 case was that evidence from multiple sources shows clearly that the NHS and their lawyers misled the press, MPs and the public on?the safety issues and?the formal investigation findings in my whistleblowing case.

In respect of how the case settled, the evidence shows that the NHS Trust misled the press, MP and their own Board in?their denial of using proposed cost applications or 'cost threats' to induce the settlement?of my case and to force the wording of an agreed public statement.

The obvious detriment to me of these false statements is that it makes me out to be vexatious and dishonest with what I have said about my case both inside and outside of court. People take these false statements, from a public body like the NHS, at face value and this?continues to have personal and professional consequences for me.

My criticism of the the London South Employment Tribunal is that whilst ruling against me in a whistleblowing case about cover up they have chosen to allow my opponents to destroy large amounts of evidence and ignored the evidence that I and others provided supporting my position.

What does the evidence actually show about my case and how and why it suddenly settled?

At a Board meeting on Sunday 14 October 2018,?the Lewisham and Greenwich Board were asked to approve a settlement agreement in my whistleblowing case. At that time, the case had been hotly contested for 4 years. The timing of the settlement was significant as it came just before my legal team were due to question the NHS’ 14 witnesses on some extremely serious issues that I set out below. Those in the public gallery including some journalists assumed that I had been paid off and started to put that to me which gives you an idea how clear my evidence was on the serious issues in this case. I set this out in my evidence at the June 2022 hearing;

The papers show that that the Lewisham and Greenwich Board were told by NHS managers and their lawyers Captsicks Solictors a number of false statements about my case. Some of which were used to secure the Board's agreement to the settlement agreement. I will now take you through how the Trust Board and later MPs and the press were misled.??

My decision to settle was made freely ????

Firstly, the NHS Trust Board were told that I had decided to freely to withdraw my whistleblowing case and to freely make an agreed statement saying the NHS acted in good faith in my case. The Board were further told that the Trust made it clear to me before and at the time of settlement that they would not pursue me for costs if I decided to proceed with the case. This gave the false impression that the Trust chose not to use the pressure of legal costs to influence my decision to settle and that my decision was made entirely free of this type of pressure.?

The evidence before the June 2022 Tribunal shows the truth to be the exact opposite. Most of this evidence (see red highlights below in a letter to the the legal regulator/SRA) was ignored by the June 2022 Tribunal. Those that misled the Lewisham and Greenwich Board knew that the NHS barristers had used several proposed applications for costs against me and wasted costs against my lawyers to induce the settlement of my case and to force the wording of an agreed statement.

We can dance around debating whether or not this amounts to cost threats which lawyers and Judges seem desperate to do but what this definitely is not is NHS lawyers making it clear to me before I settled that I would not be pursued for costs if I proceeded with the case. That can only mean the Lewisham and Greenwich Board were lied to.??How can it mean anything else?

I am a liar when I say costs were used to put pressure on me to settle

When I stated publicly that the Trust used proposed costs applications to induce the settlement of my case and to force an agreed statement, the Trust Board were told this was simply untrue. The Board were told that the Trust had made clear to me before I decided to settle that they would not pursue me for costs. This false statement was circulated to MPs, the public and the press. The evidence clearly shows the managing Partner of Capsticks Solicitors was responsible for briefing the Trust board.

Capsticks are the panel law firm of the legal regulator (SRA) and so it is no surprise that neither the SRA or the London South Employment Tribunal can bring itself to acknowledge what the managing Partner of Capsticks has written in letters to an NHS Board - so they just ignore this evidence. When you say this might be corruption lawyers and Judges get very angry!

Misleading on the patient safety disclosures and investigations

Evidence from multiple sources showed clearly to the June 2022 Tribunal that the Trust Board were misled about key details relating to my whistleblowing case. The Board were clearly told that the whistleblowing disclosures in my case consisted of only a medical ward cover situation one night and that the situation was resolved immediately by the Trust after being raised by me. They were also told that an external investigation concluded that my whistleblowing disclosures were responded to in the right way by the Trust. This misled the Board and was later used with the false statements about legal costs to mislead the press, MPs and the public making me out to be a liar with what I had previously claimed about my patient safety disclosures and the formal investigations that investigated them .

Far more than a one of situation about ward cover

The evidence at the June Tribunal hearing shows my whistleblowing disclosures were about far more than a one off situation about medical ward cover but were in fact about serious and ongoing issues relating to an Intensive Care Unit that were linked to 2 avoidable deaths. It also shows that the issues had been ongoing for several years. This was spelt out to the Tribunal in June 2022 by the Consultant Anaesthetists Dr Smith and also the Consultant Anaesthetist Dr Hormaeche . Their evidence was disregarded by the Tribunal. Dr Smith told the Tribunal the following;

Misleading on investigations

It was also the case that formal investigations made serious criticisms?of the Trust and did not find (as the Trust Board, MPs and the press were told) that the Trust responded in the right way to my disclosures. This was made clear in June to the London South Employment Tribunal from multiple sources. The Tribunal chose to ignore this clear evidence about my patient safety disclosures and investigations.

It is not plausible that the London South Employment Tribunal genuinely believed that the below investigation findings (made clear in my evidence) really amounted to an NHS Trust responding in the right way to a doctor raising patient safety issues. Have a read of the findings for yourself;

The Board of Lewisham and Greenwich NHS Trust never stood a chance of dealing with my case properly (but they do now)

The Lewisham and Greenwich Board were told a pack of lies by managers and Capsticks Solictors?on 14 October 2018 to secure their approval of the settlement of my whistleblowing case. Describing my case as a doctor freely settling a whistleblowing case concerning only a minor medical ward cover issue that was immediately resolved by the Trust is nothing other than lying to an NHS Board. These lies were then repeated to the press, MPs, NHS staff and the public to my detriment in order to make me out to be a liar. This was made obvious to all at the June hearing.

It should also not be forgotten that by misleading the Board of an NHS Trust, the Board were deprived of any opportunity to rectify the serious patient safety and governance issues affecting their organisation and the populations of 3 London boroughs. The fact that a million pounds of public money has been spent on distorting the reality of this situation is clearly going to be very difficult to justify. This may explain the more recent and extraordinary actions in this case from the relevant senior legal and healthcare people.

The Lewisham and Greenwich Board now certainly know the truth

Now one thing is for sure, the Lewisham and Greenwich Board cannot hide behind being misled any more. The Board have now heard the truth loud and clear when a local GP Dr Bob Gill visited one of their Board meetings and put things in no uncertain terms. Dr Gill then posted the video on Twitter (see below).

The question now is what are the Lewisham and Greenwich Board going to do about it?

Hiding the record of the Board meeting that approved the settlement of my whistleblowing case

It transpired at the June 2022 hearing that the record of the Board meeting that approved the settlement of my case on 14 October 2018 was hidden from the courts and from me for 4 years (another fact the London South Employment Tribunal has taken no action on) . The Trust denied the existence of the record?including to a Judge. The author of the Board meeting record, Kate Anderson was the Director instructing the lawyers in the case at the June/July 2022 hearing and at an earlier hearing where the existence of the record was denied to a Judge. It is also interesting that Ms Anderson is a former senior manager of KPMG as KPMG were paid to conduct the recent independent review into my whistleblowing case. You can just imagine how independent it was!

The content of this hidden Board meeting record was finally disclosed on the last day of the June hearing . This evidence was important as it proved further dishonesty from the Trust but was completely ignored by the Tribunal. It showed amongst other things that the Lewisham and Greenwich Trust CEO Ben Travis, appeared not to be telling the truth in his evidence to the June 2022 hearing with what he said he advised the Board about his view on the settlement. The record shows that during the board meeting, Mr Travis advised the Board that the case should settle. However, Mr Travis stated the opposite in his evidence to the June 2022 Tribunal, stating that he advised the Board that he wanted the case to run its course. At the time of Mr Travis' Tribunal evidence the board meeting record remained hidden from the Tribunal and from me.

The evidence clearly shows that both me and the Lewisham and Greenwich Board were not told the truth about each others positions before agreeing to the settlement. This was was made abundantly clear to Judge Martin in June. However she has concluded the settlement agreement in my case in 2018 was properly made and has taken no action on the plain fact that the Lewisham and Greenwich Board, MPs and the press have been misled on my case.

This decision on my settlement was endorsed by the Employment Appeal Tribunal and Lady Justice Simler of the Court of Appeal. What is interesting -to use a neutral word- is that Lady Justice Simler initially granted me leave to appeal the settlement agreement in a signed and sealed court order. The order was then revoked weeks after. A 'clerical error' was given as the reason for initially granting me permission to appeal the 2018 settlement of my case . The fact a collection of senior healthcare people and senior lawyers would have been exposed by a process to set aside the settlement agreement, and that these people must have breathed a sigh of relief when this order granting an appeal was revoked, is apparently just a coincidence.

Whatever you make of a signed and sealed court order from the Court of Appeal being a clerical error. No Judge is prepared to deal with the simple point that it is clear from the evidence that both me and the Trust Board were told things that were not true by the lawyers involved in order to secure our agreement to the settlement. Any lawyer or Judge knows that invalidates the settlement agreement which makes the 'Lady Justice Simler clerical error' a tough sell. Our application to challenge the settlement was clearly not dealt with properly.

Certain lawyers appear untouchable

Over the years , I and the NHS have been represented by powerful and well connected names in the world of employment law. It seems to me this is responsible for the resistance there is from serial Judges to engage with what the evidence shows about the actions of the various lawyers that have been involved in my case.

The June 2022 Tribunal chose to ignore all the evidence relating to the conduct of the various lawyers involved in settling my case in 2018 ( You can read this evidence here.). Given the level of destruction of evidence that we now know has occurred in my case, paragraph 315-317 of my main June witness statement relating to the NHS barristers has not aged well;

This evidence was completely ignored by the London South Employment Tribunal as dealing with it would clearly have had serious consequences for the lawyers involved.?

It does not take a rocket scientist to realise that the only explanation for the above evidence, is for at least one of the lawyers involved in the settlement to not have been honest with what they have said and written about how the settlement came about (see above). Yet every time these facts come before Judges they are conveniently ignored to avoid such a conclusion usually with a few smears about me added in.

In addition to ignoring large amounts of evidence, instead of dealing with the multiple acts of deliberate destruction and concealment of evidence, the London South Employment Tribunal has decided to to a blind eye to it. The Tribunal has conducted no investigation nor did they make a referral to the relevant authority. They did not even require anyone involved to be cross examined on how the destruction of evidence occurred.

But there is more, late last year, this Byline Times piece exposed the reality of how the world of NHS employment law allowed and profited from the nation's doctors being argued out of legal whistleblowing protection. This all happened in 2015 and was clearly set out in Parliament in 2019 but has taken until 2023 to be taken seriously by the legal system.

Can you imagine what would have been the legal system's response if I had done a fraction of what my powerful opponents have just got away with it?

The Judgments in this case make no real criticism of my opponents' conduct, it is just me that is smeared for being less than honest, underhand and for being evasive. There is no evidence or examples to back up such assertions, in contrast to the multiple examples that I have provided on my opponent's conduct, which have just been ignored by the Tribunal. Our cost appeal makes this point.

The claims of dishonesty against me in my case come mainly from the Trust's former barrister Ben Cooper KC. They were exposed for what they are in a supplementary statement that I drafted for the June hearing. The statement was devoted to Mr Cooper's allegations of dishonesty against me. The Trust fought hard to stop me submitting the statement to the June Tribunal which is odd if they have nothing to hide. When it was submitted, Mr Cooper was forced to change his signed tribunal statement in material ways before he was cross examined which is quite something for a KC barrister. Quite shambolically, the Judge cut short my barrister's cross examination of Ben Cooper KC on my supplementary statement which speaks volumes. The Tribunal also ignored the content of my supplementary statement before simply inserting Mr Cooper's baseless allegations and smears into the Judgment. Mr Cooper's position was clearly dealt with by my supplementary statement. We are taking this point on appeal as we have the benefit of a transcript and quoting Judge Martin's exact words when she obstructed my barrister's cross examination of Ben Cooper KC.

When you read my Mr Cooper statement, it is not hard to see why Employment Judge Martin wanted to protect Mr Cooper from answering questions on it.

The alternate reality of the London South Employment Tribunal

Protecting Mr Cooper KC and obstructing our cross examination of him is yet another example of the alternate reality the London South Employment Tribunal has created in order to hear and then dismiss my case. In this alternate reality evidence can be destroyed or concealed without consequence, even evidence that has not been destroyed is ignored. Basic IT and legal principles don't seem to apply and you are not even free to cross examine your opponent's witnesses (the ones that show up that is).

The reluctance of the legal system to criticise any of the above would suggest that my case is not the only whistleblowing case to be handled in this way.

This raises serious questions about the world of employment law, how it manages conflicts of interests and whether it is the right place for whistleblowing cases. I have written about the need to change the law here.

People need to be able to trust Judges

It has been suggested to me by a Judge (off the record) that the reputation and public confidence in the legal system is felt by some to be more important than dealing properly with any legal or judicial conduct issues in individual cases. Such a view seems very dangerous to me as it can be spurted out to justify any form of incompetence or corruption.

President of the Employment Tribunal

In March, I provided a briefing to the President of the Employment Tribunal, Judge Barry Clarke, about the concerns that I have about the way the London South Tribunal has turned a blind eye to the serious issues that I have set out above in this article and in my appeals. I was grateful and impressed that on the two separate occasions that I wrote to Judge Clarke, that he responded in less than 48 hours to my concerns with multi-page letters. Ultimately, his conclusion was that these matters did not require investigation by him or his office which is clearly something I don’t agree with. These are not the sorts of issues that should wait for years for appeal courts to sort out. The EAT might even refuse me permission to appeal as they have a habit of doing in my case. However, it was nice not to be ignored or insulted for once when raising these issues.??

Next Steps

We are still awaiting a response from the Employment Appeal Tribunal on whether our appeals have been granted permission for a full hearing.

So we await to hear whether the Employment Appeal Tribunal will endorse the London South Employment Tribunals actions in my case.