Dr Rohit Sharma v University Hospitals Derby & Anor

This case concerns overlapping proceedings in the Employment Tribunal, County Court and High Court, raising interesting questions about the ‘exclusion area’ for Common Law claims about employee disciplinary proceedings, Issue Estoppel and Abuse of Process. It is the application by the Claimant, who represents himself, for an interim injunction restraining the Defendant, his employer, from pursuing disciplinary proceedings against him. The Defendant not only resists that but cross-applies to strike out the Claimant’s claim.

The Claimant is employed as a Consultant in the Ophthalmology Department of the Defendant Trust, based at Queen’s Hospital in Burton-upon-Trent, who started employment on 1^st April 2014. Whilst I have not been shown a copy of his contract of employment, I understand it includes an express term requiring the parties to co-operate with each other and maintain mutual trust and confidence and another express term stating:

“Wherever possible, any issues relating to conduct, confidence and behaviour should be identified and resolved without recourse to formal procedures. However, should we consider that your conduct or behaviour may be in breach of our Code of Conduct, or that your professional competence has been called into question, the matter will be resolved through disciplinary or capability procedures, which will be consistent with the maintaining of high professional standards in the modern NHS framework [‘MHPS’] and subject to the appeal arrangements set out in those procedures.”

I shall proceed on the basis, consistent with other cases involving Consultants and other doctors, e.g. West London Mental Health Trust v Chhabra [2014] IRLR 227 (SC), that the MHPS policy is also incorporated into the Claimant’s contract of employment - certainly, for the purposes of an interlocutory application such as this, it is arguably incorporated. The question is whether there is an arguable breach of contract justifying an injunction as the Claimant says, or whether the claim should be struck out under CPR 3.4(2) as the Defendant says: either lack of jurisdiction, or as an abuse of process duplicating a County Court claim.

The factual background is complex, but in summary, in February 2021, an external investigation was commissioned by the Defendant to review the working relationships amongst Consultants in the Ophthalmology Department at Queen’s Hospital, Burton and to investigate various cross-grievances raised there. That investigation was conducted by an external solicitor, Mr Hodge, who reached the conclusion in 2022 there were difficulties with working relationships, but he did not attribute blame solely to the Claimant. However, Mr Hodge did say the Claimant’s communication style was damaging and that he was ‘weaponising’ the Defendant’s clinical governance reporting process, called ‘Datix’.

The outcome of the investigation was then shared with the Claimant in July 2021 by his Deputy Medical Director, Dr Crampton. The Claimant formally appealed against the Hodge Report findings and asked for his response to it and his complaints relating to patient safety to be considered as ‘protected disclosures’ under the Defendant’s ‘Whistleblowing Policy’, which as I understand it was done. The Claimant’s appeal against the Hodge report was dismissed in December 2021, but he remained aggrieved.

The General Manager of the Claimant’s unit was Mr Littler and in October 2022, he raised a wider concern raising concerns about relationships within the team involving various Consultants, in particular the Claimant. Mr Littler alleged the Claimant’s behaviour posed a ‘substantial risk to both patient care and department reputation’ and he felt that the Claimant was trying to undermine the conclusions of the Hodge report and had not learned the lesson of the need for more constructive working relationships with his colleagues.

Dr Crampton, who by then was the Executive Medical Director, then sought advice in November 2022 and initiated the Maintaining High Professional Standards in the Modern NHS (‘MHPS’) disciplinary policy. He appointed the-then Deputy Medical Director, Dr Gisella Robinson, as case manager of the Claimant’s MHPS investigation in January 2023.

In May 2023, the Claimant’s clinical practice was temporarily restricted, but those were then lifted in June 2023. The investigation continued, but in August 2023 the Claimant raised further concerns about various matters with NHS England, including patient safety and alleged conflicts of interest amongst some of his colleagues. NHS England recommended in September 2023 separate investigation of the Claimant’s grievance and MHPS investigations. It also recommended that Dr Robinson be replaced as case manager under the MHPS process given the Claimant’s allegations against her. This led to the appointment of Dr Arne Rose, the new Deputy Medical Director of the Defendant Trust.

At that stage, in November 2023, the Claimant issued Employment Tribunal proceedings alleging he had been subjected to detriments for raising protected disclosures and alleging race and disability discrimination (which are ‘protected acts’ under the Equality Act 2010). During initial Employment Tribunal proceedings, the MHPS process continued, which in turn generated further concerns for the Claimant. In September 2024, he presented a second Employment Tribunal claim alleging further whistleblowing detriments which he alleged were in retaliation for his initial Employment Tribunal claim, but also referring to the protected disclosures that he had continued to make in relation to various clinical matters.

In Autumn 2024, the Claimant also initiated proceedings in Nottingham County Court and sought an injunction restraining the Defendant from continuing its MHPS investigation until the conclusion of his Employment Tribunal proceedings. There was some delay, but the Claimant eventually produced self-drafted Particulars of Claim. They alleged breach of contract both of express and implied terms in relation to many of the matters that I have already summarised. Most relevantly, at paragraph 14 of his Particulars he pleaded:

“In breach of the express term of mutual trust and confidence at clause 3 of the contract of employment and further and alternatively implied terms of mutual trust and confidence, the respondent had already subjected the Claimant to detrimental treatment either because of his protected disclosures and/or because he has done acts protected by the Equality Act 2010. These are being litigated to the Employment Tribunal, and the Claimant has submitted two Employment Tribunal claims, and a final hearing has been listed in December 2025.

At paragraph 15 of his Particulars of Claim, the Claimant pleaded:

“In further breach of clause 3 of the Claimant’s contract of employment, and/or the implied term of mutual trust and confidence, the Defendant subjected the Claimant to an MHPS investigation purely on the basis of Daniel Littler’s complaint…..

Further or alternatively, the trust has not acted rationally or with reasonable and proper cause in instigating this investigation or for the improper purpose of marginalising or discrediting or attempting to discredit a whistleblower in concealing actions not conducive to patient wellbeing and safety. That is reinforced by the Defendant’s actions before and since implementing the investigation.

(1)

The Claimant is the only Consultant to be subjected to investigation, despite not being singled out for criticism in the Hodge report.

(2)

The Defendant has failed to satisfactorily investigate the Claimant ’s grievances and/or protected disclosures.

(3)

The Defendant has accused the Claimant of not adhering to a new behavioural code resulting from recommendations of the Hodge report, but no such code has been agreed.

(4)

The Claimant was criticised for his continued use of Datix despite its use being encouraged by the Hodge report and was told his Datix reports would not be investigated or accepted.

(5)

The Claimant has not been interviewed as part of the MHPS investigation.

(6)

The Defendant has repeatedly ignored occupational health advice. [in respect of the Claimant’s health concerns]

(7)

“The Defendant appointed a Dr Robinson as case manager, despite the close connection between her and against those the Claimant made complaints and protected disclosures.

(8)

The Defendant has corresponded with the Claimant at times the Claimant believes to have been designed to cause distress and exacerbate his ongoing health issues.

(9)

The Defendant refused to rescind the appointment of Dr Robinson for a period of nine months despite the clear conflict of interest in named as a respondent to Tribunal proceedings.

(10)

The Defendant then replaced Dr Robinson as case manager with someone who reports to a Dr Rose Arne [sic] who has a chequered disciplinary past, apparent history of having to be moved out from another trust due to behavioural issues not declared by the trust; therefore is vulnerable to pressure from superiors, and has made personal relationships with those against whom the Claimant has made complaints besides now being a respondent to the Employment Tribunal claim.

(11)

The Defendant has resolutely refused to rescind Dr Arne Rose’s appointment as case manager, despite a conflict of interest and/or the appointment giving rise to a perception of bias, as if deliberately to retain control.

(12)

Even in these proceedings, the Defendant has incorrectly asserted that the MHPS investigation had concluded when it had not and cannot be trusted to act in a fair and truthful way.”

The MHPS process involved the appointment of an independent investigator, who issued a report on 7 November 2024. I have not seen that report because it is not in the bundle, but I am told by the Claimant that it made two recommendations: the first for him to have further communications training, to which he has agreed; and the second for him to be the subject of a verbal warning, which he hotly contests. Dr Rose has invited him to a meeting to implement the recommendations of the MHPS report, but the Claimant has declined as he does not accept he should receive a verbal warning. Instead, he has sought, initially through the County Court proceedings and latterly, as I shall explain, through these High Court proceedings, to seek an injunction he described in his County Court Particulars:

“The Claimant therefore seeks an injunction restraining the Defendant from continuing with his MHPS investigation in the alternative until the claims in the Employment Tribunal have been determined.”

That said, as I have said, the only uncompleted step in the MHPS process is a meeting between the Claimant and Dr Rose, who wishes to implement the two recommendations: the further training which is agreed and the verbal warning which is not. So, in reality the real nub of the injunction application is to restrain the verbal warning until the Employment Tribunal proceedings, which the Claimant clearly hopes will prevent it from being imposed.

In March 2025, the Claimant amended his Particulars of Claim in the County Court to include damages for loss. He has limited his claim for financial loss to the Employment Tribunal, but in the County Court also seeks losses for reputational damage, which the Claimant contends he continues to suffer and is the focus of his desire for an injunction.

The Claimant also applied in the County Court for the case to be transferred to the High Court, which prompted a hearing to determine whether the County Court had jurisdiction to deal with the claim, the interim injunction and case management. The Defendant’s position in its Defence is that the County Court (and now the High Court) do not have jurisdiction to adjudicate the claim, essentially because it is effectively a reiteration of the claim currently in the Employment Tribunal for whistleblowing and discrimination.

The hearing of those cross-applications on jurisdiction and for an injunction was listed for 23^rd June 2025, but on 16^th June the Claimant applied to adjourn it due a health problem. That was refused on 16^th June by HHJ Owen on the basis that the material submitted by the Claimant, an experienced Consultant, was inadequate to show why he could not attend at Court. In any event, the matter came on before HHJ Owen himself on 23^rd June. The Claimant did not attend the hearing, and HHJ Owen gave a detailed judgment explaining why the material he had did not justify a medical adjournment and addressing the substance of the case. He noted that the Employment Tribunal had effectively converted the final hearing listed in November 2025 to a two-day preliminary hearing in relation to various matters in October 2025 which, as I understand, it is the latest word from the Tribunal. I should say that the Claimant has since produced additional medical information which explains that he had to attend an appointment on 23^rd June, which he considered to be a clinical emergency. But he did not properly put that material before HHJ Owen either on 16^th June in the original adjournment application, on 23^rd June, or indeed since then.

I have a note, helpfully prepared by the Defendant’s solicitors, of HHJ Owen’s judgment of 23^rd June. He refused the Claimant’s application to stay the County Court proceedings until the conclusion of the Employment Tribunal. The note records that HHJ Owen said:

“I am satisfied the County Court has jurisdiction to consider a claim brought by the Claimant. It seems to me the pleading is a contractual claim, breach of contract seeking to restrain. That is a matter the County Court has jurisdiction to consider under section 15 County Courts Act 1984. The Court has general jurisdiction in relation to any action founded in contract. I do not consider the matter needs to be transferred to the High Court or should be transferred to the High Court. If my conclusion were otherwise, I would strike out the claim rather than transfer. The parties choose where to issue. The Claimant chose to issue in the County Court rather than the High Court.”

I note there HHJ Owen there actually rejected the Defendant’s jurisdictional argument, which nevertheless Mr Keen renews before me for the High Court (although unsurprisingly does not suggest the High Court’s jurisdiction is narrower than the County Court’s).

Turning to the Claimant’s injunction application itself, HHJ Owen reminded himself of the test for making an interim injunction in American Cyanamid v Ethicon [1975] AC 396 (HL): namely whether there was a serious issue to be tried on the merits of the claim; whether damages would be an adequate remedy for it; and where the balance of convenience lay. HHJ Owen refused to grant the interim injunction to suspend the MHPS process pending the Employment Tribunal proceedings. His main reason was that he was not satisfied there was a serious issue to be tried, because the MHPS process appeared to have been followed and proposed a straightforward and fairly minor outcome of agreed training and a disputed verbal warning, which HHJ Owen did not see even arguably to be a breach of contract. Moreover, HHJ Owen went on to say that even if there were a serious issue to be tried on the merits and indeed even if the Claimant won, he could be adequately compensated in damages for reputation that would also vindicate him; and HHJ Owen added that even if he was wrong about that too, the balance of convenience pointed in favour of the status quo and against an injunction. I will elaborate a little on the last point later. HHJ Owen went on to make further case management directions, allocating the case to the Intermediate Track, providing for disclosure, witness and a trial window between February and April 2026, which of course would be after the Employment Tribunal had dealt with the preliminary hearing, because it would be sensible for the County Court to have the benefit of the Tribunal’s decision on issues of whistleblowing, whatever it turned out to be.

Shortly before HHJ Owen’s decision, on 21^st June 2025, the Claimant issued this claim in the High Court in Birmingham by an application dated 19^th June seeking to set aside HHJ Owen’s order of 16^th June to adjourn a hearing on 23 June. He relied upon the Particulars of Claim filed in the County Court and his Skeleton Argument in support of an application for an interim injunction to restrain the Defendant from concluding an MHPS investigation; in other words, precisely the same injunction that he had sought before the County Court. But he also submitted a ‘Supplementary Consolidated Submission’ in support of an application for interim relief and judicial intervention and various other documents.

HHJ Kelly on 1^st July 2025 directed the Claimant to provide by 4^th July written confirmation as to what pre-action remedies he was seeking, a draft of the interim remedy order he sought and in so far as he was applying for an interim remedy before a Claim Form was issued, a witness statement explaining why the matter was that urgent. This appears to have prompted the Claimant to file a Claim Form in this High Court claim, which states that he seeks:

(1)

“Urgent interim injunctive relief restraining the Defendant from conducting, progressing or relying upon any MHPS process pending final determination in the Employment Tribunal claim. No MHPS process or its possible consequences or its possible consequences, including any subsequent GMC process against the Claimant shall proceed until the GMC has fully investigated the Claimant ’s referrals.

(2)

Setting aside the County Court’s order dated 23 June.

(3)

Orders compelling the Defendant to investigate and report on various matters to do with Dr Rose.

(4)

A declaration protecting whistleblowing rights.

(5)

Removal of Dr Rose as MHPS case manager.

(6)

What further alternative relief as the court deems just.”

In reply to Mr Keen’s Skeleton Argument for this hearing the Claimant’s ‘Consolidated Master Supplementary Reply Statement’ clarifies the relief he seeks, which I summarise:

(1)

An interim injunction to stay and suspend all MHPS-related processes, investigations, interviews or adverse actions and to refrain from initiating continuing conduct in breach of the Equality Act and Employment Rights Act.

(2)

To set aside the costs order of HHJ Owen on 23^rd June made in the Claimant’s absence.

(3)

To require the Defendants to file statements by Dr Rose, Dr Robinson and others dealing with various matters.

(4)

To restrict the departure of various people from the Trust.

(5)

To provide disclosure in relation to various matters.

(6)

To refer the Claimant’s concerns to external authorities.

(7)

To make case management directions.

Therefore, (1), (2), (5) and (7) overlap exactly with the orders HHJ Owen either has made or declined to make in the County Court proceedings, whilst (3), (4) and (6) seek additional relief, although as I explained to the Claimant as a litigant-in-person, none of the latter is the sort of relief the High Court would typically order, or arguably even could order.

It is convenient to deal with the Defendant’s strike-out application first, because if it is successful, the Claimant’s injunction application must fall away. The Defendant seeks to strike-out the Claimant’s claim on two grounds. Logically the first is that Mr Keen for the Defendant submits that there are no reasonable grounds for bringing the Claimant’s claim under CPR 3.4(2)(a), as the High Court itself lacks jurisdiction for it, since the claim alleges whistleblowing detriment and victimisation for complaints of discrimination, for which Parliament has provided statutory remedies in the exclusive jurisdiction of the Employment Tribunal. Alternatively, the Defendant’s second ground for striking-out the Claimant’s claim is that his whole High Court claim should be struck out under CPR 3.4(2)(b) as either an Issue Estoppel or collateral attack on HHJ Owen’s decision, or an Abuse of Process in relitigating and/or duplicating his County Court claim in the County Court.

The High Court has inherent jurisdiction which is reflected for injunctions in s.37 Senior Courts Act 1981 (‘SCA’). Indeed, it was recently recognised by the Privy Council in Convoy Collateral v Broad Idea [2022] 2 WLR 703 (adapted by the Supreme Court in Wolverhampton CC v London Travellers [2024] 2 WLR 45), that the High Court even has jurisdiction to make an injunction even if there is not an underlying cause of action, for example a Freezing Injunction to support different proceedings in a different Court. The limitations are only that such an injunction is not restricted by statute and reflects or legitimately extends established practice to protect a legal or equitable interest. But the Claimant need not go that far, as his application to injunct his employer from continuing with a contractual disciplinary process (MHPS) process is well-established e.g. in Chhabra.

Mr Keen’s point for the Defendant on jurisdiction is not that the High Court cannot make an injunction, but rather that it has no jurisdiction for the Claimant’s whole claim. He relies on Johnson v Unisys [2001] IRLR 279, where the House of Lords carved out an exclusion for Common Law claims for damages by former employees against their employers from dismissal, except for wrongful dismissal for breach of notice. The majority considered Parliament had ‘occupied the field’ by statutory unfair dismissal with its strict eligibility and remedy rules, which the Common Law should not outflank. However, the Lords in Eastwood v Magnox [2004] IRLR 733, clarified this ‘Johnson exclusion area’ only related to Common Law claims based on an employee’s dismissal, not those pre-dating dismissal. For example, in Gogay v Herefordshire CC [2000] IRLR 703, the Court of Appeal held a suspension under a disciplinary procedure breached ‘the implied term of trust and confidence’. As explained in Eastwood, that term has two elements: first whether the employer’s conduct is objectively likely to destroy or seriously damage the relationship of trust and confidence between the employee and employer; and second whether there is objectively reasonable and proper cause for it. In Gogay, the suspension did seriously damage trust and confidence and there also was objectively no reasonable and proper cause for it, as it was a ‘knee jerk reaction’. The ‘Johnson exclusion area’ was reaffirmed in Edwards v Chesterfield NHS Trust [2012] IRLR 129 (SC). But in both Chabbra at [39] and Tesco v USDAW [2024] IRLR 998 (SC) at [72]/[75], the Supreme Court pointed out that the Johnson exclusion would often mean that damages would not be an adequate remedy for a Common Law claim, which supported an injunction being granted to restrain breach. In short, the Johnson exclusion only applies to Common Law claims for damages arising from dismissal itself as in Johnson and Edwards. Here, the Claimant’s High Court claim is not for damages and in any event pre-dates the ‘exclusion’: dismissal is not even a threat.

Instead, the Defendant seeks to extend the ‘Johnson exclusion area’ by analogy because the Claimant’s claim relies on his alleged ‘protected disclosures’ (e.g. allegations of breach of legal obligations) under Part IVA Employment Rights Act 1996 (‘ERA’) and ‘protected acts’ (i.e. discrimination allegations to an employer or Tribunal claims against it) under s.27 Equality Act 2010 (‘EqA’). As Mr Keen says, the Employment Tribunal has exclusive jurisdiction for all these claims: ‘whistleblowing’ ‘detriment on the ground of protected disclosures’ (s.47B/48 ERA), or dismissal by reason of such disclosures (s.103A / s.111 ERA); and ‘victimisation’ because of ‘protected acts’ under s.27 and s.114 EqA (the County Court has no jurisdiction for workplace discrimination). Accordingly, Mr Keen submits the claim falls into a different ‘exclusion zone’ for claims in the Civil Courts, but for similar reasons as in Johnson: that Parliament has decided these claims can only be brought in the Tribunal and once again, it is not for the Common Law to provide an alternative remedy for them. However, I do not accept this analysis in principle or indeed in this specific case.

In principle, I accept that if a statutory cause of action is in the exclusive jurisdiction of the Tribunal, the County and High Court have no jurisdiction to adjudicate thatstatutorycause of action. However, it is axiomatic that the same factual situation can give rise to multiple causes of action. It is permissible, indeed commonplace, for an employee to present their statutory cause of action before an Employment Tribunal, then issue in the County or High Court a claim against their employer arising out of the same facts but with a cause of action under their contract of employment and/or in tort provided it does not arise from dismissal within the Johnson exclusion area, most commonly a claim for wrongful dismissal in breach of notice. Indeed, under the Employment Tribunals (Extension of Jurisdiction) Order 1994 Arts.3-6 and 10, employees can only bring a breach of contract claim in the Tribunal if it ‘arises or is outstanding on termination of their employment’; and only then for a sum of money up to £25,000 (not injunctions or other non-monetary remedies). Therefore, the system works coherently: if a cause of action arises out of dismissal, the appropriate venue will usually be the Employment Tribunal (although the Civil Courts share jurisdiction for wrongful dismissal, most obviously if over £25,000). If the cause of action arises prior to dismissal, the Employment Tribunal has jurisdiction for some statutory claims but does not have it for breach of contract or tort at Common Law, as the County and High Courts do.

So, whilst Mr Keen points out interim relief for statutory whistleblowing claims is limited to dismissal (see s.128 ERA), it is more likely Parliament assumed injunctions prior to dismissal would be available in the County or High Court for apprehended breaches of contract, than it intended such interim relief be unavailable anywhere to employees. Indeed, if Mr Keen’s submission were right, even in the clearest case of breach of mutual trust and confidence which also involved breach of statutory rights – e.g. suspension on racial grounds, or indeed for whistleblowing - an employee would be unable to restrain that breach before or after dismissal. Parliament cannot possibly have intended that result. Nor would the Common Law countenance such a lacuna in remedies for a clear and serious breach of contract quite aside from a breach of statutory duty. The issue for the County or High Court is simply whether or not such a claim falls within the exclusive jurisdiction of the Tribunal.

In the present case, I accept paragraph 14 of the Particulars of Claim in the County Court, which the Claimant has effectively also adopted in the High Court, refer to his statutory remedies for whistleblowing under Part IVA ERA and for victimisation under s.27 EqA. But that does not mean he pleads statutory causes of action in the County or High Court. The Claimant refers to those statutory rights as relevant to his Common Law cause of action for breach of contract of the (here express and implied) term of mutual trust and confidence. In any event, the position is even clearer at paragraph 15 of his Particulars of Claim. Rather than saying that the instigation of the MHPS investigation was as a result of his protected disclosures as he is arguing in the Tribunal, the Claimant himself pleads that the MHPS process was started ‘purely on the basis of Mr Littler’s complaint’ (against him) and goes on to plead the Defendant has not acted rationally, or for reasonable and proper cause, or has done for improper purpose of marginalising a whistleblower to conceal actions not conducive to patient safety etc. That passing description of himself as a ‘whistleblower’ does not mean the Claimant is bringing an impermissible statutory complaint of whistleblowing in the Civil Courts. If he can prove the Defendant’s MHPS disciplinary process against him is objectively likely to seriously damage their relationship of mutual trust and confidence and has no reasonable and proper cause, that would be enough to prove breach of contract: he would not need to go on to prove it was also a ‘whistleblowing detriment’ or ‘victimisation’. So, the Claimant’s Civil Court claims are not duplicativeof his Tribunal claims, but supplementaryto them, especially the application for an injunction restraining conduct pending the Tribunal’s decision, which the Tribunal itself cannot make.

Therefore, I see no reason whatsoever why the Claimant’s pleaded breach of contract claim could not in principle be the subject of an injunction, like the one preventing certain allegations being investigated in Chhabra; or the injunction restraining parallel disciplinary investigations in Smo v Hywel DDA University Health Board [2021] IRLR 273, on the alternative basis of either breach of an express term of the Welsh equivalent of MHPS or in the implied term of mutual trust and confidence. This would be entirely consistent with Gogay and Eastwood. Indeed, the injunction sought by the Claimant is analogous: seeking to restrain the implementation of disciplinary investigations until the Employment Tribunal has determined whether that investigation is also a ‘detriment’ imposed because of the Claimant’s ‘protected disclosures’ under Part IVA ERA, or ‘protected acts’ of alleging discrimination under s.27 EqA. There is nothing particularly juristically novel about an injunction in these circumstances, certainly nothing like there being no underlying cause of action in the Civil Courts: but even if there were not, Broad Idea would suggest the High Court has jurisdiction to make such an injunction to protect his rights in the Tribunal. In truth, what is novel is the Defendant’s attempt to use the ‘Johnson exclusion area’ for a totally new purpose. For those reasons, I do not accept that the High Court lacks jurisdiction.

Indeed, as I have quoted earlier, HHJ Owen has already decided that the County Court has jurisdiction. That is a judicially determinative decision on the question of the County Court’s jurisdiction and in my judgment, arguably gives rise to an Issue Estoppel. However, since that was not argued, I have explained why I have rejected the Defendant’s jurisdiction argument. To put it another way, HHJ Owen decided the County Court had jurisdiction because it was a claim in contract. I have simply given some additional reasons why I emphatically agree with HHJ’s Owen’s jurisdiction decision for the High Court as well.

Speaking of issue estoppel leads me on to Mr Keen’s alternative argument, which is that the High Court proceedings are duplicative of the County Court proceedings and so give rise to Issue Estoppel or Abuse of Process. It is fairly common for there to be parallel proceedings in the Employment Tribunal (e.g. for whistleblowing or discrimination as here) and in the County or High Court (e.g. for breach of contract as here). In my experience as a former fee-paid Employment Tribunal Judge, any overlap is usually managed by staying one set of proceedings or the other, although only if they are actually concurrent, rather than current proceedings in the Tribunal with Civil Court proceedings intimated but not yet issued: Halstead v Paymentshield [2012] IRLR 586 (CA). However, there does not always have to be a stay in one or other set of proceedings, as sometimes the Court or Tribunal will make case management directions which ‘leave the field’ to the other until after it has had a hearing on an issue relevant to both, which is essentially what HHJ Owen did here. He considered the County Court’s task would be clearer after the Employment Tribunal’s preliminary hearing on whistleblowing in November 2025. What is unusual about this case is that there are not two sets of parallel proceedings, but three: in the Tribunal, the County Court and the High Court. Mr Keen’s submission for the Defendant is the Claimant’s High Court claim is not just parallel to the other two, but impermissibly duplicative of the County Court claim, so the High Court claim should be struck out.

Mr Keen targets the whole of the Claimant’s High Court proceedings for strike out as an Abuse of Process, but in the alternative says the High Court cannot or should not make an injunction which the County Court has considered and refused to make, either on the ground of Issue Estoppel or Abuse of Process. These are two of the legal tools to prevent inappropriate re-litigation in the Court’s toolbox still called ‘Res Judicata’, which Lord Sumption unpacked in Virgin Atlantic v Zodiac [2013] 3 WLR 299 (SC) at [17]:

“Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is ‘cause of action estoppel’. It is…a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given on it, and the claimant’s sole right as being a right on the judgment. … Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties…’Issue estoppel’ was the expression devised to describe this principle…Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.”

(In Zavarco v Nazir [2025] 2 WLR 340 (SC) at [29], principle (2) Conquerv Boot was held to be part of principle (3) ‘Merger’, although neither (3) nor principle (1) ‘Cause of action estoppel’ are engaged in this case). However, Mr Keen submits the other three principles are engaged: (4) ‘Issue Estoppel’; (5) ‘Henderson Abuse’; and (6) ‘General Abuse’.

I start with ‘Issue Estoppel’, which Lord Sumption in Virgin at [22] clarified following Arnold v Natwest Bank 1991] 2 AC 93 (HL) applied not only to issues actually decided in previous proceedings, but also to issues not raised but that could have been raised with reasonable diligence (unless there are special circumstances). The Claimant is seeking effectively exactly the same injunction as HHJ Owen considered and refused in the County Court and whilst that was in the Claimant’s absence, that does not itself prevent Issue Estoppel arising. However, the principle does only arise when an issue common to two sets of proceedings either has been or could have been finallydecided. As pointed out by HHJ Waksman (as he then was) in Kinney v Chesterfield Falcon (2012), an interim injunction is by its very nature a provisional remedy, particularly on the question of whether there is a serious issue to be tried, so a refusal or grant of an injunction does not finally decided an issue so as to engage Issue Estoppel. I respectfully agree. HHJ Owen did not finally ‘decide’ whether an injunction was available to the Claimant for the whole claim, he simply refused the application at that point. Moreover, CPR 3.1(7) means such case management decisions can be varied. HHJ Owen’s decision would not prevent another application for an injunction in the County Court if his decision were set aside because the Claimant was not present; or if there were a change in circumstances Tibbles v SIG [2012] 1 WLR 2591 (CA). Alternatively, of course, HHJ Owen’s decision could have been appealed by the Claimant.

However, rather than pursue any of those options, the claimant has not appealed to the High Court (which I could not hear as an appeal from a fellow Circuit Judge like HHJ Owen) but rather brought a fresh claim to the High Court seeking the same injunction but also other relief, including setting aside HHJ Owen’s costs order made in the Claimant’s absence. For convenience, I renumber my summary of the relief which he seeks from the High Court:

(a)

An interim injunction to stay and suspend all MHPS-related processes, investigations, interviews or adverse actions and to refrain from initiating continuing conduct in breach of the Equality Act and Employment Rights Act.

(b)

To set aside the costs order of HHJ Owen on 23 June in the Claimant ’s absence.

(c)

To require the Defendants to file statements dealing with various matters by Dr Rose, Dr Robinson and others.

(d)

To restrict the departure or exit of various people from the trust.

(e)

To provide disclosure in relation to various matters.

(f)

To make a referral to external authorities.

(g)

To make case management directions.

As I said, (a), (b), (e) and (g) overlap exactly with the orders HHJ Owen either has made, or declined to make, in the County Court proceedings, whilst (c), (d), and (f) seek additional relief, but as I explain below, that neither the County Court nor the High Court would order.

Mr Keen submits that the Claimant’s High Court claim is a ‘collateral attack’ on HHJ Owen’s orders (a) to refuse such an injunction; (b) for costs; and (e) and (g) for disclosure and other case management directions in the County Court (and that (c), (d) and (f) are not legitimate remedies). Whilst closely related to the other ‘Res Judicata’ principles discussed in Virgin at [17], a ‘collateral attack’ is one sub-category of the principle of ‘General Abuse of Process’ (i.e. Principle 6). It is different from principles (1)-(5) because it can be invoked by someone who was neither a party to the other litigation nor their ‘privy’ (e.g. an associated person or company to a party). Of course, if the defendant was a party or privy to an earlier final decision, they could invoke Cause of Action or Issue Estoppel or Merger, as Marcus Smith J said at [44(iv)(c)] of Allsop v Banner Jones [2021] 3 WLR 1317 (CA). However, the defendant cannot do so if there was no final decision in the earlier proceedings, but they can invoke ‘Collateral Attack Abuse’, since unlike other aspects of ‘Res Judicata’, Abuse of Process can apply to interlocutory as well as final decisions: see Koza v Koza Altin [2021] 1 WLR 170 (CA) at [42]. But the Court will only exceptionally strike-out a claim for Abuse of Process: indeed only in the circumstances described by Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL) at 539 (as cited in Allsop and in Johnson v Gore Wood [2001] 2 WLR 72 (HL)), calling this power:

“An inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied… It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power." (italics added)

Nevertheless, whilst the categories of Abuse of Process are not closed or fixed, they cannot be ‘lumped together’: Mueen-Uddin v SSHD [2024] 3 WLR 244 (SC) at [122]: if the Defendant here cannot establish either a ‘Collateral Attack Abuse’ or a ‘Henderson Abuse’ (which is a separate category: see Mueen-Uddin at [40]), it cannot ‘pick and mix’ elements from each to say the High Court claim is ‘abusive in the round’. In Mueen-Uddin, ‘Collateral Attack Abuse’ was called ‘Hunter Abuse’ because the principles of ‘collateral attack’ were developed in Hunter itself, which was a civil attack on a criminal conviction, but as Lord Reed explained in Mueen-Uddin at [44], it also protects civil decisions from ‘collateral attack’ (i.e. not by appeal). In Mueen-Uddin itself, the Court held a man convicted in his absence in Bangladesh in what might be called a ‘show trial’ under the then-regime, could bring defamation proceedings against the Home Secretary for publicising that conviction in the UK. This was not a ‘collateral attack’ on his Bangladeshi conviction because he had no ‘full opportunity’ to contest it at the time nor to appeal it, not simply because he was absent, but because the process was entirely unfair. In this case, I have considered Mueen-Uddin (and indeed Chabbra and Kinney on other topics) as the Claimant represents himself and were he represented, his advocate may have relied on Mueen-Uddin to argue (as the Claimant did argue to be without citing it) that he had no ‘full opportunity’ to make representations before HHJ Owen as he was absent for good reason.

However, even if the Claimant had a good medical reason for being absent from the hearing on 23^rd June 2025 before HHJ Owen, that neither means the hearing was ‘unfair’, nor that he had ‘no full opportunity’ to contest HHJ Owen’s decision in the County Court. As I said, the Claimant has since provided medical evidence suggesting he had a medical appointment on the day of the hearing on 23^rd June, but it does not appear that he put that evidence before HHJ Owen in writing before 23^rd June: even after he had refused to adjourn on 16^th June. So, HHJ Owen’s decisions were not ‘unfair’ and indeed even if they were, the remedy was either to appeal or to apply to set them aside in the County Court under CPR 3.1(7), by analogy with the principles applying to absence from a ‘trial’ under CPR 39.3. The Claimant did neither. Instead, he used the High Court claim (which he had pre-emptively issued on 21^st June after his adjournment was refused on 16^th June) and has since targeted it at seven forms of relief: four seeking to undo what HHJ Owen did (on the injunction, costs, disclosure and other directions) and the other three being misconceived, as I will explain. The fact the Claimant is a litigant in person unfamiliar with Court procedures does not excuse this: in Barton v Wright Hassall [2018] 1 WLR 119 (SC), it was emphasised that litigants in person must follow the same rules as everybody else (provided they are clear, as these are). Unlike in Mueen-Uddin, the Claimant in this case plainly had a ‘full opportunity’ in the County Court to contest HHJ Owen’s decisions of 23^rd June refusing to adjourn or to make an injunction; and then ordering costs. As I have explained, the Claimant could have renewed his adjournment application with proper medical information in writing before or on 23^rd June, or used it to apply to set aside the order HHJ Owen made under CPR 3.1(7), or appealed. Given the Claimant had all these other avenues of challenge, the only thing that is (manifestly) ‘unfair’ is his own decision to try to outflank the procedural rules for an appeal or to set aside a decision in the County Court by issuing yet another claim in yet another Court against the Defendant. Moreover, this ‘forum-shopping’ by the Claimant in issuing duplicative proceedings brings the administration of justice into disrepute. It is one thing to ask a ‘second opinion’ from a different doctor. It is quite another to seek a ‘second opinion’ from a different judge. Moreover, this is not excused by the additional relief the Claimant seeks from the High Court, which as I shall explain, misunderstands the Court’s role. I am entirely satisfied the High Court claim is a ‘collateral attack’ on HHJ Owen’s decision and should be struck out.

Even if I am wrong about that, I also consider the Claimant’s High Court claim is also a ‘Henderson Abuse’. This applies (if less strictly) to repeated interlocutory decisions even in the same litigation as well as later separate proceedings (Koza) and so clearly must apply to simultaneous later proceedings, as well as successive ones. I take the principles for ‘Henderson Abuse’ from Mr Keen’s Skeleton and cases cited: Johnson v Gore Wood and Dexter v Vlieland-Boddy [2003] EWCA Civ 14. In Johnson, Lord Bingham said at pg.90:

“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

In Dexter at [49], Clarke LJ (as he then was) summarised the principles following Johnson:

“ i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

ii)

A later action against B is much more likely to be held to be an abuse of process than a later action against C.

iii)

The burden of establishing abuse of process is on B or C, as the case may be.

iv)

It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.

v)

The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process.

vi)

The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.”

I entirely agree with Mr Keen that on a ‘broad merits-based approach’, the Claimant’s High Court claim as a whole is a ‘textbook example’ of a Henderson Abuse, for these three reasons, any one of which shows the High Court claim is ‘manifestly unfair’ and brings the administration of justice into disrepute; and which cumulatively unquestionably do so:

For any and indeed all of these reasons, the Claimant’s High Court claim is a ‘Henderson Abuse’ and I strike it out under CPR 3.4(2)(b). Indeed, whilst Mr Keen did not argue it in this way, even if the High Court claim is not an Abuse of Process, in my view there are no reasonable grounds for bringing the Claimant’s High Court claim under CPR 3.4(2)(a) either. Mr Keen did submit the High Court claim was ‘totally without merit’ as in ‘hopeless’ (which is stronger than simply ‘not arguable’): R(Grace) v SSHD [2014] 1 WLR 3432 (CA). I agree the additional relief the Claimant seeks from the High Court is certainly ‘bound to fail’ in the sense of ‘hopeless’ as I have just explained even if not technically ‘abusive’ (see R(Grace) at [12]-[13]). But I would not go quite so far with the other relief which duplicates that sought in the County Court claim, which HHJ Owen was not asked to and did not strike out. Nevertheless, there are no ‘reasonable grounds for bringing’ the High Court claim as well as the County Court claim to pursue the same relief (and additional relief which is truly hopeless), even if it is not technically an ‘Abuse of Process’. To put it another way, even if the Claimant’s High Court claim is not strictly an Abuse of Process, there is no realistic prospect of it succeeding or giving him any additional practical benefit than the County Court claim and continuance of the High Court claim would waste resources on both sides (see Harris v Bolt Burden [2000] CP Rep 70 (CA), which is a stricter threshold than the ‘Jameel’ ‘not worth the candle’ type of Abuse of Process considered in Mueen-Uddin).

If I am wrong about that too, I also would find that, essentially, for exactly the same reasons as HHJ Owen gave, upon which I cannot improve, this Claimant’s application for an injunction neither gives rise to a serious issue to be tried, nor is damages an inadequate remedy and the balance of convenience squarely points against it for the following reason which is additional to those given by HHJ Owen.

The Claimant’s claim in the County Court will have to proceed and be heard in due course. But insofar as the High Court claim overlaps with it, the reality is that the MHPS process is practically complete and only recommends two things; one of which the Claimant is prepared to do and one of which he is not. In those circumstances, there is not really an ‘ongoing MHPS process’ that is actually worth injuncting pending the Employment Tribunal proceedings. Even if the Claimant is the subject of a verbal warning, which is the recommendation to which he objects, then he will have a right of appeal under the MHPS policy. This is the more appropriate mechanism for adjudicating his complaint rather than an injunction at Court, which should not be asked to ‘micro-manage’ disciplinary processes: Chhabra at [39]. Insofar as the Claimant’s High Court claim goes further and seeks relief which is legally incoherent, it also plainly gives rise to no serious issue to be tried.

For all those reasons, I refuse the injunction application and I strike out the High Court proceedings but I make clear that, in my judgment, not only does both the High Court and the County Court already have jurisdiction in relation to the Claimant’s complaint, my reading of HHJ Owen’s judgment is that he has already decided that the County Court does, and that arguably gives rise to an Issue Estoppel against the Defendant on jurisdiction in this case. However, that will be a matter for the County Court to decide in due course if the Defendant tries to re-open the point. However, the High Court claim is struck out.

I refuse permission to appeal because I do not consider my decision arguably wrong and there is no other reason to grant permission and I will fill out the usual form to that effect.

More specifically, so far as the Claimant has said that it is unfair that I should attach so much weight to HHJ Owen’s decision when he was not there, I make it very clear I did not say he was fit to attend Court on 23^rd June, I said he had not properly evidenced that to HHJ Owen and he could and should have made an application to set the order aside with that evidence if he wanted to challenge it. Indeed, he could still theoretically do so, although the County Court may say he is too late – that is up to that Court, not me. What I have attached weight to is HHJ Owen’s analysis of the underlying merits and his application of the test with which I agree, but I have not just followed HHJ Owen’s decision I have made my own.

The next point is that the Claimant said there were wider points that he wanted to achieve through this litigation. For example, taking it from his recent skeleton his concerns about fraud, dual identity usage, financial misconduct and active concealment of evidence from regulators and so on. However, even in a post-Broad Idea world with an injunction application -- a Court still has to determine legal arguments. Many of the points the Claimant are making are matters which are the subject of protected disclosures that he has made and nothing I have said should be taken one way or the other to make any comment upon those protected disclosures. But the Court is not NHS England or any other organisation to whom whistleblowing complaints can be made. Only recognisable legal complaints can be brought to a Court, whether it is the High Court or the County Court, and so to the extent that Dr Sharma wants vindication as to his wider concerns and complaints, I am afraid the Court cannot give it to him. Of course, that may be something that he will discuss with the Employment Tribunal, but that is a matter for that Tribunal.

The Claimant has lost and clearly must pay the Defendant’s costs of this application (which has been careful to exclude wider costs). Whilst £14,320.50 seems to the Claimant a lot of money, by the standards of a half-day High Court application in a case like this, not unreasonable or disproportionate, and in those circumstances I am satisfied that is the appropriate costs order. I will give the Claimant additional time to pay and direct that he pay those costs within three months. That should be enough time for him to make any applications he wants to make to the County Court in relation to HHJ Owen’s costs order.