Merelie v Newcastle Primary Care Trust

This is an application for permission to appeal against the judgment of Underhill J dated 20 June 2006 by which he dismissed claims by Denise Lynn Merelie (“the applicant”) against the Newcastle Primary Care Trust (“the Trust”) and, in a separate action, the Trust and a large number of individual employees or officers of the Trust. The two actions were tried together. The applicant is a dentist. She also has a law degree. Between 1975 and her dismissal in 2001, the applicant was employed as a Senior Dental Officer in the Community Dental Service (“the service”) in Newcastle. The Trust became her employers in 2001 and succeeded to all relevant obligations of earlier employers.

In the first action, against the Trust alone, the applicant alleged breach of the contractual duty of trust and confidence. She further alleged that the Trust owed her a duty of care as employers and were in breach of that duty by unreasonably exposing her to a foreseeable risk of injury. What survived in the second action, following a judgment of Eady J mentioned below, were claims under Section 1 of the Protection from Harassment Act 1997 against many of the defendants, and claims in defamation and malicious falsehood. At a pre-trial review in the first action in February 2006, Tugendhat J dismissed a claim for psychiatric injury. Parts of the claim in the second action were struck out by Eady J in a judgment dated 11 November 2004 [2004] EWCH QB 2554. The applicant sought permission to appeal against the judgment of Eady J. That was refused by him, and by Buxton LJ in this court. Nothing helpful to the applicant emerges from that refusal.

Proceedings in an employment tribunal for unfair dismissal have been stayed pending the outcome of the present proceedings. The applicant appeared in person at the trial. Separate counsel appeared for the defendants in the first action and the second action. Having dismissed the actions, Underhill J refused permission to appeal stating that his decisions had been based essentially on findings of fact.

There are detailed grounds of appeal and these have been supported by voluminous written submissions. The applicant has summarised the reasons why she should have permission to appeal as follows. (The grounds are set out in somewhat ways in different places in the documentation):

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Mr Justice Underhill has made an error of law for he has not correctly interpreted and applied the Protection from Harassment Act 1997;

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Mr Justice Underhill has not even referred to the Judgment of Mr Justice Eady and the Order of Lord Justice Buxton in the court of Appeal although he is bound by the Court of Appeal and Mr Justice Eady’s Judgment;

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Mr Justice Underhill has not referred to any case law with regard to the defamation claim and the claim for harassment;

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Mr Justice Underhill has made an error of law for not correctly applying case law in the breach of contract claim;

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Mr Justice Underhill has made an error of law in failing to resolve issues central to the claim;

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Mr Justice Underhill has made an error of law in making perverse findings of facts;

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Mr Justice Underhill has made an error of law in misunderstanding or misapplying undisputed facts so he has made findings of facts without any evidence to support such findings;

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Mr Justice Underhill has made an error of law in making findings of facts without evidence to support those findings;

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Mr Justice Underhill has made an error of law in failing to give reasons for his findings of facts;

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Appeal against findings of facts for failing to take into account material matters and probabilities;

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Procedural irregularities

The oral hearing of the application for permission to appeal was listed for 30 minutes on 12 October 2006. The applicant appeared in person. I heard her for about two and a half hours (with a short break), it being fortunate that there were no other surviving cases in my list for that day. Subsequently, it was represented to me in writing that the applicant had not been well enough on 12 October to conduct her hearing. She submitted a medical report from a general practitioner who stated: “In retrospect she should have asked for the court case to be adjourned on that day”.

I received a very considerable volume of written submissions. I agreed that there could be a further oral hearing, limited to 30 minutes, at which it was hoped that the applicant would be legally represented. In the event, a date was fixed for the further hearing but I agreed that it should be adjourned until this term, at the applicant’s request. Further written submissions, signed by the applicant’s daughter, were submitted on 3 November 2006. The hearing took place on 17 January 2007. The applicant appeared in person and also submitted further written submissions and addressed the court as courteously as she had done on the earlier occasion. I have subsequently received more written submissions, dated 18 January 2007 and 5 February 2007, with reports of cases.

The applicant is well aware that the trial judge was the fact-finding tribunal. During a long hearing, he had the opportunity to assess the credibility and reliability of each of the witnesses, including the applicant. The judge referred to the voluminous written statements and extensive oral evidence and said that he had “tried to deal with incidents in proportion to the importance attached to them by he parties.” (para 26)

The judgment of Underhill J is in great detail and extends to over two hundred paragraphs, some of them being very long and sub-divided for ease of reference. A summary of the facts is followed by a description of the claims and a section headed “Structure of the Judgment”. That includes a consideration of general matters, one of which is a detailed assessment of the applicant’s personality and of the applicant as a witness and as dentist. The judge stated that there was no issue about the applicant’s technical abilities as a dentist; she was highly regarded. Some of the dental nurses were critical of her manner towards patients; Mrs Fawcett (who worked extensively with the applicant for the period up to September 2000), Mrs Falkus (her regular dental nurse from 1993 to 1997), and Ms Smith are listed. Their evidence was considered in detail. The judge noted that other witnesses, Ms McBride, Ms Davison, Ms Young and Mrs Dalton (in an interview note) praised her attitude to patients. Colleagues had asked her to treat them and their families and patients followed her from surgery to surgery.

Formal complaint, by way of what the judge described as grievance statements, was made by dental nurses in March 2000 about the applicant’s conduct. The judge’s assessment was:

“It is important to emphasise that the main thrust of the statements read overall is, as one would expect, concerned with the Claimant’s working relationships and not with her “professional conduct”, in the sense of how she behaved in her treatment of patients. There are indeed criticisms of her attitude to patients (though not of her competence), but they are secondary. This is something which the claimant – focusing as she does on the unfortunate wording of the opening paragraph of Mrs Smith’s statement – has found hard to appreciate.”

This part of the judgment is followed by a long chronological account of events, in enormous detail, in the course of which findings of fact are made. The applicant was suspended in September 2000 and disciplinary proceedings followed. Conclusions based on the findings of fact are then set out. A general conclusion is stated at paragraph 201:

“I dismiss the claims in both actions. I regret that this outcome will be a great disappointment to the claimant. I can only hope that she may find some consolation in the fact that I have found no basis for some of the most serious allegations which she believes (albeit in my view wrongly) to have been made against her, in particular about her treatment of patients”.

There has been a great deal of repetition in the submissions and I will try to extract the main strands of the applicant’s case. She has throughout stressed that serious allegations of professional conduct have been against her and that she should be given a sufficient opportunity to challenge them. The right to practise as a dentist is involved. Matters of general interest and importance to the public and to the profession arise out of them. The applicant has referred to cases in which the test to be applied to applications for permission to be appeal has been considered. I have had regard to those cases. The applicant needs to show that an appeal would have a real prospect of success (CPR 52.3(1)(6)). I do not consider that there can be said to be any other compelling reason why an appeal should be heard.

It needs to be kept in mind that this was not a claim for unfair dismissal or a general inquiry into the conduct of the Trust or its employees. It was a claim under discrete heads, essentially, harassment, breach of duty of trust and confidence and defamation, each of which the applicant sought to establish. The first and second of those heads did, however, require a consideration of the conduct of the Trust’s employees, particularly Mr Ferguson and the dental nurses, towards the applicant.

An important part of the application is the submission that the judgment was flawed from the outset because the judge expressed views on the applicant’s personality without first considering the evidence. The judge has created a vicious circle, it is submitted, in which the Trust’s allegations have been used to make an assessment of the applicant’s personality and findings on that assessment are then used when considering the Trust’s allegations. It is submitted that the judge was not qualified to make a judgment about the applicant’s personality.

It is further alleged, in the most recent written submission, that the judge has greatly exceeded his area of expertise. Findings of fact in highly specialised areas of psychiatry and dentistry are central to the whole claim and the judge has greatly exceeded his area of expertise. To make findings outside the appropriate area of expertise can lead to gross injustices, it is submitted. Reference was made to the decision of this court in Meadows v General Medical Council [2006] EWCA Civ 1390.

A central theme of the application is that the judge’s findings of fact are perverse, that, in considering credibility of witnesses, the judge has failed to consider inconsistencies and other vital evidence, and has rejected unchallenged evidence without giving reasons. Insufficient attention, it is submitted, was given to the probabilities arising from circumstances or as to the likely motive of witnesses. Further, once the judge had rejected the most serious allegations against the applicant, he could not properly accept the lesser ones.

I refer to particular matters on which submissions have been made to me. Stress has been placed on the judge’s finding as to what happened at South Benwell Primary School. The applicant submitted that this was the most important part of the judgment. Specific allegations were made against the applicant about her conduct towards the infant patients there. This issue was fully investigated at the trial. The judge considered Mrs Falkus, Mrs Tavari and Mrs Irvine to be honest witnesses. The applicant refers to other witnesses, including Mrs Kathryn Wright, the school secretary, who gave evidence to a different effect. It is submitted that Mrs Irvine and Mrs Tavari were totally implausible. Their allegations were completely fabricated to discredit the applicant. The head teacher had received no complaints and said she would know about them if they had been made.

The applicant has gone into great detail in Section 10 of her skeleton argument when considering South Benwell School. The judge stated (paragraph 95) that the South Benwell incident was “in itself of very limited importance, he had felt obliged to go into it in detail because of the direct attack made on the truthfulness of Mrs Falkus and Mrs Tavari and because it involved the applicant’s conduct towards patients.” The judge rejected the allegations against those witnesses.

A very detailed attack is made on the judge’s findings about the evidence of Ms Jennifer Smith, a nurse who said, amongst other things, that she found working with the applicant “intimidating”. It is alleged that Ms Smith was inconsistent in her statements and evidence. Complaint is made that the judge relied on the evidence of Ms Smith, with whom she had worked for only two days, and ignored the applicant’s claim that she had an excellent working relationship with Mrs Val Dalton, a dental nurse with whom she had worked for 18 years. (Mrs Dalton did not give evidence and there was conflicting evidence about her relationship with the applicant.) Ms Smith had even asked the applicant to treat a frail, handicapped elderly lady who was a friend of Ms Smith and her mother. The judge’s acceptance of her central evidence was, in the circumstances, outside the reasonable range of conclusions he could reach, it is submitted.

The harassment claim, in the second action, was considered by the judge at paragraphs 182 to 188. It was based essentially on there having been false allegations by the defendants of gross professional misconduct. These are alleged to have been made by many defendants in the course of disciplinary interviews and hearings. Having considered the evidence, the judge expressed doubts as to whether the conduct complained of constituted a “course of conduct”, as required in this cause of action. However, he found it unnecessary to consider such a refinement because he found it impossible to say that the defendants acted either unreasonably or oppressively. It could not possibly be characterised as harassment. While the conduct alleged against Mr Ferguson (against whom the applicant had made a formal complaint) would undoubtedly constitute harassment, the judge found as a fact that he did not commit the acts alleged.

The applicant has, in her written submissions, commented in great detail on the evidence of the defendants involved, in particular Mrs Falkus, Ms Natasha Weisser (her dental nurse from 1997 onwards) and Ms Tere Peart. She describes her relationship with the women, including, for example, a request by Mrs Falkus to receive highly technical dental treatment from the applicant. It is submitted that the judge, in reaching his conclusions, failed to have regard to the material probabilities involved. It is also submitted that the judge failed to deal at all with three of the allegations made under this head.

As already stated, the applicant was suspended in September 2000. The judge considered the evidence about the consequent disciplinary hearing in May 2001, the appeal hearing in September 2001 (at which the applicant was represented by counsel) and the subsequent decision. The conclusion of the disciplinary panel was that the applicant, by her behaviour, had caused an irreparable breakdown in working relationships. Having heard considerable evidence, including that of dental nurses, the appeal panel upheld the applicant’s dismissal. The dismissal was upheld principally on the ground that the applicant’s working relationships had deteriorated to a point at which the Trust could not continue to employ her (paragraph 162).

The judge also considered the applicant’s contractual claim alleging a breach of the contractual duty of trust and confidence. This depended on Mrs Prendergast’s response to the March 2000 complaint against the applicant, described in the judgment, failure to investigate the applicant’s complaint of 30 January 2001 and alleged encouragement of false evidence. The judge made detailed findings on each issue and also concluded that those findings were also fatal to any claim in negligence.

The judge analysed what he accepted was a complex relationship between the applicant and Mr Ferguson, her immediate manager and Clinical Director of Dental Services, in considerable detail. The applicant’s allegations against Mr Ferguson included allegations of sexual harassment. Other forms of harassment over a long period were also alleged. The circumstances are analysed in great detail in the written submissions. The judge’s conclusion was that Mr Ferguson was a truthful witness. There had been no sexual harassment by him. Further, Mr Ferguson never engaged in the kind of persecution alleged by the applicant against him. The judge considered (paragraph 58) that the applicant’s evidence was unreliable on “matters concerning personal relationships”.

The defamation claim (paragraph 189) is based on the copying to Mr Flory, Chief Executive of the Strategic Health Authority, of a letter of 14 January 2003 from Mr Bob Smith, Chief Executive of the Trust, to the applicant. The letter is set out at paragraph 168 of the judgment. The judge found that the words complained of did not bear the defamatory meaning pleaded. He found that Mr Smith was a truthful witness and that, even if the words bore the defamatory meaning pleaded, they were used without malice. He went on to find that, by her conduct over several years, the applicant was the principal author of a state of affairs which created grave difficulties for her continued employment.

The applicant relies on the refusal of Eady J, a judge who had specialist knowledge and experience in defamation, to strike out the defamation claim. For the purposes of the strike out application, Eady J found that words in the letter were capable of being defamatory and that “the claimant’s case will be that this defence [qualified privilege] would be defeated by malice”. Reliance is placed on the absence of citation of authority in Mr Justice Underhill’s judgment, on the judge’s alleged failure to take into account material facts and probabilities when finding that Mr Smith was honest and the applicant’s allegation that he was indifferent to the truth or falsity of the latter.

In his description of events, the Judge considered in detail the applicant’s conduct up to March 2000. One issue was her working relationship with Mr Carmichael, Consultant in Dental Public Health, and the applicant’s line manager until 1991. That role was taken over by Mr Ferguson, as dental services manager. A file note dated 20 September 1991 was produced in evidence, apparently written by Mr Carmichael for the benefit of Mr Ferguson as his successor and describing his relationship with the applicant. At the trial (and now) the applicant strongly denied that the meeting referred to in the note ever took place. The applicant alleged that Mr Ferguson had forged it. Having considered the document, the circumstances, and the evidence of Mr Ferguson, the judge rejected that allegation, giving reasons. The applicant seeks to pursue the allegation, relying on lack of entries in an appointment book. Strongly though the applicant has expressed her views, I see no prospect that this court would reverse the finding of the trial judge.

Having considered the applicant’s submissions, and re-read the judgment in the light of them, I see no real prospect of this court reversing the decision of the judge. The judge heard the evidence and had a good opportunity to assess it. He was considering whether the applicant had proved specific claims she made. The judge has considered those claims in the light of very considerable evidence about the applicant’s employment and her working relationship with her colleagues.

I do not consider that the judge can be criticized for including, early in his judgment, an assessment of the applicant’s personality and her reliability as a witness. He has not reasoned circuitously because that assessment is plainly made on the basis of the evidence he heard, both from the applicant and from other witnesses. Allegations and counter-allegations covered a long period of time and many witnesses. Some of the allegations and counter-allegations were very personal. A general assessment was required along with findings on the many detailed issues. The judge rooted his assessment firmly in the many instances he found appearing in the evidence. I do not accept that, in approaching it as he has, the judge has pre-judged, to the detriment of the applicant, the evidence which he heard. In performing their duties, judges have to reach conclusions on a wide range of subjects. These include assessments of the reliability of witnesses, and scientific and technical issues.

The judge was required to form an overall view of the conduct of the applicant and of employees of the Trust, to decide whether there had been harassment of her and/or such lack of consideration for her and her position as amounted to a breach of trust and confidence. The applicant clearly feels aggrieved about some of the findings of fact made in the course of a long judgment. I have already referred to some of the judge’s findings. There is, in my view, no real prospect that this court would overturn his conclusions. The judge has conscientiously addressed himself to the issues and to the evidence and made findings he was entitled to make on the evidence. Undoubtedly there were points in the applicant’s favour which she urged should have led to different findings of fact. Much of her submission amounts to a wish to have the evidence on the factual issues re-heard and re-determined, a discussion, as the applicant put it, of the evidence used by Underhill J to justify his findings of fact. That cannot be done in this court. Further, in my view, the judge’s consideration of the evidence and his findings reveal no error of law which would permit this court to order investigation of the facts be re-opened in the present actions.

As he said he would, the judge has considered events in proportion to the importance attached to them by the parties. Thus the South Benwall incident was considered in great detail because of the importance attached to it by the applicant, particularly because it involved attitude to patients, in this instance child patients. The judge made findings of fact he was entitled to make, following a consideration of the evidence, significant parts of which were undoubtedly in the applicant’s favour.

The judge also concluded, in paragraph 95, consistently with his general view of the case, that the incident was in itself of very limited importance. That was a conclusion he was entitled to reach given the emphasis he considered should be placed in the circumstances on working relationships rather than treatment of patients.

The judge was entitled to make the findings he did on the harassment claim and on the claim of breach of contract. His failure to deal specifically with every single item of harassment does not impugn the general conclusion he reached, and was entitled to reach, which can be taken to cover all instances. As to the claim in negligence, he was entitled to conclude that it fell with his findings on the alleged breach of contract.

As to the defamation claim, the judge’s finding on qualified privilege was fatal to the applicant’s claim. When holding that the claim should not be struck out, Eady J recognised that the circumstances in which the letter was written needed to be considered in evidence, and, until it was, the claim should not be struck out. The judge, having considered the circumstances and the conduct of Mr Smith, was entitled to reach the conclusion he did and there is no real prospect that this court would overturn it. The absence of reference to authorities does not invalidate the conclusion the judge reached. No arguable error of law is established.

I have considered the applicant’s principal complaints both individually and collectively. The application for permission to appeal must be refused.