A Judge turning a blind eye to evidence being destroyed during a hearing must be an error of law (at the very least) says our appeal

We are off to the Employment Appeal Tribunal in the new year. In this article, I attempt to set out what the main issues are from the rather eventful June 2022 hearing of my whistleblowing case. My litigation has now been ongoing for 10 years. There are links in this article to more depth but this is a whistlestop tour.

So did the London South Employment Tribunal really not understand that a key NHS Director destroying 90,000 emails during the final hearing of my whistleblowing case and then withdrawing from cross examination was a serious obstruction of justice?

Did they also not understand the obstruction of justice that came from another NHS Director who happened to be the instructing legal client for the NHS in my case having their entire NHS email account deleted during the live litigation?

Staggeringly that is not all the destruction and concealment of evidence that occurred in my case. It was also blindly accepted by the Tribunal without any probing that the Trust CEO and recipients of my protected disclosures could legitimately have their emails made unavailable for key dates – you did read that right - that's the recipients of the protected disclosures in a whistleblowing case allowed to hide their emails in a hearing of a whistleblowing case that the Claimant goes on to lose!

This is Dr Bob Gill, a local GP's response to what he witnessed at the June 2022 hearing of my whistleblowing case. It illustrates how some doctors feel the legal system is taking the mick with my case and the dangerous message that sends. It is also not a good look for lawyers and Judges that take the rule of law seriously.

You can read more about our 2 appeals that challenge this judicial conduct here.

So what about the evidence (that was not destroyed or concealed) that was before London South Employment Tribunal

So let us focus on the evidence that was not destroyed or concealed and was actually before the Tribunal in June 2022.

Is it really possible that from this evidence that the London South Employment Tribunal did not understand how MPs, the press and even the Lewisham and Greenwich NHS Trust Board had been badly misled about the facts of my whistleblowing case and how it settled. It was also made clear that the alleged misleading was done by the 2 Directors that between them had managed to destroy 90,000 emails and an entire NHS email account.

This is fairly basic stuff. It is not more complicated than me and 4 others alleging that a group of NHS lawyers and executives allowed the the press, MPs and an NHS Board to be misled to cover up their actions in my whistleblowing case. And that this was to my detriment as these false positions were used to publicly call me a liar and accuse me of being vexatious to the press and to MPs.

This excellent article by the professional negligence solicitor Alison Hills takes you through what the evidence clearly showed the London South Employment Tribunal in June 2022 which can be read here.

Could the London South Employment Tribunal really not understand what Miss Hills has understood and set out from the legal papers?

When you read through Ms Hill's article why not ask yourself 5 basic questions;

1.?????When MPs, the press and the Trust Board were told by the NHS and their lawyers that my whistleblowing protected disclosures were about a one off issue one night outside of the Intensive Care Unit were they being LIED to?

2.?????When MPs, the press and the Trust Board were told that investigations in my case confirmed the patient safety concerns were responded to in the right way were they being LIED to?

3.?????When MPs, the press and the Trust Board were told that I decided to withdraw my whistleblowing case under a settlement and make a public statement confirming the NHS acted in good faith and apparently did so freely without cost threats being made were they being LIED to?

4. When MPs, the press and the Trust Board were told that the NHS lawyers had assured me that they would not purse me for costs if I proceeded with the case were they being LIED to?

5. When MPs, the press, and the Trust Board were later told the real reason that I settled was my former lawyers approached the NHS lawyers to imply my evidence was not truthful were they being LIED to?

The clear evidence from me, my wife, my former barrister, 2 consultant anaesthetists, a former health minister and a shadow health minister indicates how badly the press, MPs and the Trust Board were misled on the above 5 questions. So how could the London South Employment Tribunal ignore all this evidence, find that I am wrong about everything and even smear me with the implication that I was not being honest (without any factual basis). Ben Cooper KC's attempt to make me look dishonest backfired on him so badly that the Judge rescued him from his cross examination by Andrew Allen KC on this!

Here are the options for explaining the actions of the London South Employment Tribunal;

1.?????They were not competent enough for a case like this, were overwhelmed by the situation and just sided with the powerful public body;

2.?????They were biased perhaps blinded by the NHS smears and my junior grade and failed to be objective (which would be putting it mildly)

3.?????They were corrupt. If my position is accepted a group of NHS executives and their lawyers would be found to be liars including the managing partner of Capsticks Solicitors who signed off the relevant briefings to press/MP in this case. The way out is to smear me the junior doctor as the liar and hope no one powerful looks at the facts. This is also clearly the most likely reason for for the level of destruction of evidence that has occurred in this case.

You can see what a large hole the various lawyers have dug themselves into with paragraph 315 of my June statement (see below) and the statement that my wife provided to the June Tribunal about all the cost threats. This evidence was all ignored in June 2022

The above evidence from my former barrister was enough to convince the MPs and former lawyers Norman Lamb and Justin Madders that I had been threatened for costs in order to force the settlement of my case. Mr Madders and Mr Lamb put this allegation to the Secretary of State for Health in a letter. The London South Employment Tribunal ignored this evidence and concluded the cost threats did not exist and strongly implied that I had made them up.

The EAT Hearing on 27 February 2024

I am sure you will agree that it is going to be an interesting appeal hearing even if all the EAT do is come up with some explanation why none of the above matters. As things stand the EAT won't even commit to granting me permission to appeal or for that matter to refusing it. I have been offered a preliminary hearing. This is now over 1 year and 8 months after my June 2022 hearing. This is apparently just to work out whether I have any legitimate criticism of how my case has been handled.

I will close this article with the rather defensive paragraph from the London South Employment Tribunal's June 2022 Judgment which we have come to call the without fear or favour paragraph. When you consider the amount of evidence that has been ignored and destroyed in this case the fact the Judge feels they can write something like this in their Judgment is surprising to say the least. My comment to my crowdfunders in an email (and not on a website), that seems to have wound the Judge up, is hardly controversial given the way this case has played out. This is in contrast to the Judge's claim to have acted without fear of favour at the June 2022 hearing of my case which most people just laugh at.

I have lost faith in the legal system and I am almost expecting an EAT Judgment that finds nothing wrong in the multiple acts of destruction of evidence that have occurred in my case or will find some way to explain why basic legal principles like not destroying evidence during hearings don't apply in my whistleblowing case. This has often been the line I have been fed by various Judges to explain anything from signed and sealed court orders in my favour being revoked as clerical errors, settlement agreements clearly based on a pack of lies or failures in disclosure that have made lawyers rich and removed whistleblowing protection from 54,000 doctors (more on this here).

If the EAT agree that the London South Employment Tribunal has discharged its duties in my case properly without fear of favour, as Judge Martin likes to put it, then heaven help us (particularly if you work in the NHS or might need to rely on the NHS as a patient.)