Merelie v Newcastle Primary Care Trust

This is the pre trial review of two actions brought by the claimant against the defendant Newcastle Primary Care Trust (“the Trust”) which are due to be tried in March of this year. The first action was issued on 10^th November 2003 and includes claims for damages for defamation and harassment. Mr Wolanski appears for the Trust in that action. As originally issued there were, in addition to the Defendant Trust, twelve personal Defendants. The second action was commenced on 12^th June 2003 naming only the Trust. The claim in that action, as set out on the claim form, is “for personal injuries and losses arising out of the actions of her employer (the Defendant) which occurred on or around 21^st June 2000. The injuries and losses were caused by the negligence of the Defendant and/or their servants and/or their agents”. Mr Brown appears for the Trust in that action.

The background to the matter is set out in a judgment of Eady J dated 11^th November 2004 neutral citation number [2004] EWHC 2554 (QB). This judgment of mine is concerned with the points raised in the Application Notice dated 23^rd January 2006 in the personal injury action. That is an application for summary judgment on two issues, together with an application for abridgment of time because of its late service.

The first issue relates to causation and injury. It is an application for summary judgment for the defendant under CPR Part 24 because, so it is said, the Claimant has no real prospect of succeeding in her claim in the light of the joint statement of the medical experts. That statement was signed on 10^th and 11^th January 2006 by Doctor A M Reveley, instructed by the Trust, and Doctor P Tayler, instructed by the Claimant, following discussions between them on 5^th January 2006. They had each reported on the Claimant previously, Dr Reveley on 30^th September 2005 and Dr Tayler on 13^th June 2004. The experts agreed a diagnosis that the Claimant “has the rigid pattern of thinking and lifestyle which is in keeping with an obsessive-compulsive personality disorder”, and that she has associated symptoms of anxiety. They also agreed that she has had episodes of low mood, but they doubt whether this has ever met criteria for a full depressive episode. As to causation, they agreed that the Claimant’s problems are likely to have been life long and innate, and are not likely to have arisen on account of events at her workplace. Following discussion as to what Dr Tayler in particular intended to convey by this statement, in the light of his earlier report, I adjourned this part of the application until 10^th February in order to give the Trust an opportunity to clarify the matter. I then heard argument on the second issue, and reserved my judgment to 10^th February.

The second issue relates to the foreseeability of any injury or damage. It is an application for summary judgment under CPR Part 24 on the ground, so it is said, that the Claimant has no real prospect of succeeding in her claim, because it was not foreseeable to the Defendant that she would suffer any injury as a result of any breach of duty on its part.

Since the two proceedings arise out of very closely related facts it is with gratitude that I adopt the account of some of those facts given by Eady J in his judgment as follows:

“1.

The Claimant relies on a number of causes of action to seek remedies in connection with the dismissal from her post as a dentist employed by the Newcastle Primary Care Trust (the first Defendant). These tend to overlap not only with one another but also with other proceedings brought, respectively, for unfair dismissal in the Employment Tribunal and for personal injury in the Newcastle County Court.

2.

In the proceedings before me there are no less than thirteen Defendants. Apart from the Trust itself, there are twelve individuals. Defendants No. 6, No. 7, and No. 8 are dentists with the Community Dental Service and Defendants Nos. 9 to 13 are dental nurses. The second Defendant is Mr Bob Smith; former Chief Executive of the Primary Care Trust, the third is Judith Smith, the fourth Jill Prendergast, and the fifth Paula Whitty. Those were all involved at various stages in investigating complaints made by or concerning the Claimant. No defence has yet been served.

3.

The Claimant was employed from 1975 to 2001 by the Trust (or its predecessors in title) although there was a period of absence through stress between February and August 1999. The problems to which I have referred appear to have had their origin in the troubled relationship between the Claimant and Miles Ferguson (Defendant No. 6), who was at the material times responsible for day to day management of the Community Dental Service and was, in that capacity, also largely responsible for determining the work load among dental nurses. The Claimant says that she had been concerned about the way in which Mr Ferguson carried out his duties, which she claims had often adversely affected patient care. She also claims that he had harassed her in various ways over a number of years, including sexually.

4.

The Claimant and Mr Ferguson lodged complaints against one another. His was first in time, and was based upon the proposition that she had taped an interview between them without his consent; her complaint was based on an allegation of bullying, harassment, and unfair treatment. The complaint against Mr Ferguson was resolved by Defendant No. 4 in January 2000. It was acknowledged that the relationship between the two was troubled, and recommendations were made in an attempt to improve matters. Unfortunately, the disposal of the Claimant’s complaint does not seem to have cleared the air.

5.

Following this outcome, it is the Claimant’s case that Mr Ferguson proceeded to launch a campaign of harassment against her. The conduct seems to fall into three categories, according to paragraph 4.3 of the particulars of claim. He is said to have falsified information he was obliged to provide, by way of returns to the Trust, by omitting work carried out by the Claimant over the four-month period between April and July 2000. He is also said to have written to some of her patients to inform them, falsely, that they could no longer receive treatment from her. But the allegation which looms largest in her pleaded case is that “extremely serious allegations about the Claimant’s professional and personal conduct were repeatedly made”. Mr Ferguson is said to have encouraged, in particular, Defendants Nos. 7 to 13 to “lodge grievances” against her. For them, the Claimant suggests, the incentive to do so was that Mr Ferguson would bring about improvements in their workloads. Although reliance is placed by the Defendants on the absence of any express allegation that Mr Ferguson encouraged the people concerned to lodge false grievances, so far as I understand the Claimant’s case this would appear to be implicit. Certainly, it seems that a litigant in person should be given the benefit of any lack of clarity in the pleaded case in that respect.

6.

The Claimant places considerable weight on the timing of Mr Ferguson’s ‘encouragement’. Four of the dental nurses (Defendants Nos. 9 to 12 inclusive) lodged their written complaints in March 2000. It followed, she says, shortly after the outcome of the complaint she had made against him and could thus be accounted for by spite or revenge. Moreover, she states that she had not worked with Defendant No. 9 for three years prior to her raising the allegations or with Defendant No. 10 for two years or with Defendant No. 11 for one year. She no doubt wishes to invite inferences as to the concerted nature of these complaints and their apparent lack of spontaneity. Also, in view of the general nature of some of the allegations, she points out that she only worked with Defendant No. 10 for one and a half days in the whole of their employment and with Defendant No. 12 for two days.

7.

Excerpts from the Defendants’ various complaints are set out in the particulars of claim which are said to be defamatory, but since the current proceedings were only commenced on 10^th November 2003 it is apparent that they are well outside the one-year limitation period now governing claims in defamation and malicious falsehood.

8.

On 20^th June 2000 there was a meeting between the Claimant and the fourth Defendant, when according to the particulars of claim she was a told that the March complaints about the dental nurses were not going to be investigated. Yet she was warned in a letter from Defendant No. 4 that she would be formally disciplined if any further complaints were made against her. This sounds grossly unfair, but it should be pointed out that the Defendants do not accept that this is an accurate interpretation of what she was told. Lest there be any doubt in the matter, therefore, I set out the terms of the letter, which was dated 21^st June 2000:

“Dear Denise

Further to our meeting today, I am writing to confirm that I shared with you the issues raised by certain dental nurses within the community dental service (you were provided with a personal copy of the information).

We discussed your perception that there were some discrepancies in the detail but acknowledge that in fact what we were focussing on was the over arching issue of working relationships.

I advised you that Newcastle City Health Trust has a very stringent approach to allegations of harassment and bullying and that should any such allegations be made in the future, that there will be no alternative but to use the formalised process.

I am sure we both hope this will never be necessary and that we can recognise this as an opportunity to draw a line between the past and the future.

I explained that I must now meet with the nurses and their union representative and agree the way forward. I will share with you the outcome of that meeting and as you are aware dates have been set for the management meetings where we can take forward the work started with yourself and Miles to create/restate agreed departmental processes which will be expected to be adhered to by all.

Yours sincerely

Jill Prendergast

Programme Manager”

9.

It is not necessary for me to comment upon the letter save, perhaps, to say that she was being warned that she would be subject to the ‘formalised’ disciplinary process if any allegations were made in the future (although the outcome was not expressly prejudged).

10.

At all events, the Claimant received advice from her trade union (the British Dental Association) to take preparatory steps to protect herself by obtaining statements refuting the allegations about her behaviour from other potential witnesses. Between 21^st June and 31^st August 2000 the Claimant, in accordance with that advice, approached members of staff with a view to obtaining such statements. Some of them suggested that this constituted bullying or harassment. It is difficult to see how a mere request for information could be so classified; much would turn on evidence as to the nature or number of approaches. She was instructed by Defendant No. 4 in July 2000 to stop making approaches, in any event, but the Defendants complain that she nevertheless continued to do so.

11.

On 1^st September 2000 the Claimant was suspended with a view to an investigation taking place into the allegations of bullying by members of the staff. Statements were taken in or about October of that year from the Defendants Nos. 7 to 13. On the face of it, whatever they said in those statements would appear to be privileged and, in any event, any compliant of defamation or malicious falsehood in respect of them would be time-barred.

12.

Defendant No. 5 was responsible for investigating the complaints made against the Claimant, who had meetings with her on 30^th January and 6^th February 2001. On 30^th January the Claimant also lodged a formal grievance against Defendants Nos. 9 to 12.

13.

Matters seem to have dragged on and, in May 2001; further statements were communicated orally to those investigating by Defendants Nos. 9, 10, 11, and 13. On 3^rd May of that year a full disciplinary hearing took place and the Claimant was dismissed because she was supposed to have bullied and harassed staff. An appeal panel dismissed her appeal the following September. Further statements were made about her during that month by Defendants Nos. 8, 9, and 13 (also obviously outside the relevant limitation period for defamation and malicious falsehood).

14.

The Claimant has sought to overcome her limitation difficulties by relying upon other causes of action (where a longer period of limitation would apply) and also upon later republications of some of the allegedly defamatory allegations.

15.

It is now conceded by Mr Wolanski on the Defendants’ behalf that there is an arguable claim for defamation based upon a publication in January 2003 by the second Defendant to Mr Flory (Chief Executive of the Northumberland Tyne and Wear Strategic Health Authority) of a copy of a letter dated 14^th January, which had been sent originally to the Claimant herself. In order to understand the nature of her complaint I should set out three paragraphs from that letter which refer back to the earlier investigations:

“I have carefully considered the information provided to you, and the previous investigations undertaken under the Grievance Procedure, Disciplinary Procedure and the referral of Mr Ferguson to the General Dental Council for your information I enclose a chronology of these events.

Having considered the remit of these investigations and the evidence presented therein, I cannot accept that there was evidence indicating that allegations made against you were false. The issues raised by you have been raised and considered by these previous investigations. Therefore, I do not believe that any further investigation is either necessary or appropriate. Accordingly, I cannot accept that the Trust has failed to consider and investigate the various issues raised.

Whilst you have referred to gross irregularities with the original investigation, you have not stated which investigation you are referring to nor have you advised what gross irregularities you believe to have occurred. Having considered the various processes which have been followed, I am satisfied that the matter was the subject of full and thorough investigations and you were given the opportunity to be involved in these processes and put your views forward for consideration. In particular, you had the opportunity to question witnesses on two occasions in the course of the disciplinary process and these witnesses remained clear about their evidence”.

…

17.

I am conscious of the fact that, if this matter is permitted to go forward, it is likely to involve enormous inconvenience to those playing a part in the litigation whether as witnesses or parties, and that valuable time and public resources will be diverted from other important activities. That has caused me considerable concern in weighing up the evidence and the discretionary factors I have to bear in mind. Despite this, however, I have come to the conclusion that the Claimant should be allowed to pursue her case in relation to this particular publication despite the potentially wide ambit of the inquiry and, in particular, with regard to malice. I cannot leap to conclusions on paper when so many events and motives fall to be investigated. It follows that the first Defendant must remain in the action as being potentially liable vicariously in respect of the second Defendant’s publication.”

Eady J concluded that the defamation action on the letter dated 14^th January should be permitted to survive against the First and Second Defendants to that action but not against any of the other Defendants.

Eady J then turned to the claim based upon harassment. He permitted that claim to go forward as well. He said this:

“31.

Naturally, I recognise that there is a certain implausibility about the scenario put forward by the Claimant, involving as it does so many people combining (almost conspiring) to do down a professional person. As was observed, however, by Simon Brown LJ in Spencer v Sillitoe [2003] EMLR 10 at [31], a litigant should not be deprived of a hearing merely because the case seems to a judge implausible on paper. In any event, the implausibility is not all on one side. The Defendants’ case involves the hypothesis that the Claimant was behaving rudely, unprofessionally, and irrationally on an apparently habitual basis despite the fact that no one appears ever to have raised a complaint against her over the previous quarter of a century. It would also appear from the material gathered together by the Claimant that this contention is contradicted by a number of other persons who had worked closely with her, and indeed more closely, and over a longer period, than some of those raising complaints. It is dangerous for judges to shut out claimants from having their grievances properly explored in such controversial circumstances.

32.

There is much to be said for the view that the adoption of statutory or domestic disciplinary procedures should not be characterised as harassment because of the scope for duplication of issues and costly satellite litigation. Yet I must bear in mind the decision of the Divisional Court in Baron v CPS, 13 June 2000 (unreported). There, harassment had been found proved in respect of the appellant’s conduct which consisted partly of abusing officers of the Benefits Agency in letters and partly, more specifically, in threatening to abuse his rights as a cross-examiner and to serve witness orders on people in person. The harassment took place therefore, in part, within the framework of legal procedures. Yet it is important to note that it was the abuse of those procedures which constituted harassment. That is essentially the Claimant’s case here with regard to the grievance and disciplinary procedures instituted against her. Morison J made the following general observation:

“Equally, citizens have an unfettered access to the Courts to resolve disputes and to conduct those proceedings forcefully, causing legitimate aggravation to the other party within the procedural rules. Persons will or may feel harassed as a result of the lawful conduct of forcefully conducted litigation. On the other hand, if proceedings are being used for an ulterior purpose, namely not to air legitimate grievances but to cause distress to those involved in the process, then the line may be crossed and the acts may become unlawful under the Protection from Harassment Act 1997”.

33.

Thus, here the central issue would appear to be whether Mr Ferguson stirred up the grievances and encouraged their continuance ‘for an ulterior purpose’. That is exactly what the Claimant alleges; on the basis that he wanted revenge, whether because she had shunned or complained about him in the past, or simply in order to be shot of her.

34.

I am only too conscious of the unusual facts before the Divisional Court in the Baron case; I have little doubt that it would only be in exceptional cases that the Court would feel able to hold that the ‘forceful conduct’ of litigation had crossed the line, so as to constitute abuse and actionable harassment. What I am unable to do, on the other hand, is to rule simply on the papers that no reasonable Court could uphold the harassment claims, on the basis of the facts pleaded, without perversity.

35.

What I have in mind is the possibility, startling though it may seem, that the original complaints made in 2000 and 2001 were prompted and orchestrated by Defendant No. 6. That scenario, although no doubt counter-intuitive, could possibly come within the extended definition of 'harassment’ as it is beginning to emerge in the developing case law. On the other hand, although I am cautious about adopting too robust an approach towards those allegations (especially for the reasons canvassed in Spencer v Sillitoe, cited above), I believe that I should be unduly timorous not to apply the guillotine in the case of the harassment allegations made against Defendants No. 3, 4 and 5. Their roles, as Mr Wolanski points out, were essentially concerned with the conduct of the investigatory process in accordance with their responsibilities. Of course it may be that they are open to criticism as to the way they discharged their responsibilities, but I am not persuaded that there is anything which would amount, in the case of any of them, to such an abuse of power as to fall even arguably within the notion of harassment.

36.

So far as defendant No. 2 is concerned, I believe it would be illogical for me to leave outstanding the claim for defamation against him, along the lines I have already described, without also admitting the possibility that his ex hypothesi malicious conduct could also amount to harassment. It is said that his conduct cannot be considered as “calculated to cause alarm or distress, let alone conduct that is oppressive or unreasonable”. That may ultimately prove correct but I do not, for the reasons I have given, feel able to rule it out on paper.

37.

I have not lost sight of Mr Wolanski’s other submissions about harassment in the context of the particular facts. First, he argues that none of the conduct relied upon “directly” affects the Claimant because allegations were not made to her face. Moreover, even if the allegations against her were false, that would only go to their being unreasonable; it would not be oppressive. So too, if the various dental nurses and Defendant No. 6 were trying to avoid having to work with her, that would be “the very opposite of harassment”. These facts are unusual and I do not believe it would be right, while the boundaries of the concept are still being tested, to conclude that on the Claimant’s case harassment is bound to fail.

38.

Again, the first Defendant will remain in the action also as being potentially liable on a vicarious basis of any finding of harassment in respect of the relevant Defendants.

Eady J did not permit claims formulated in terms of the Human Rights legislation to proceed.

In the personal injury action the Claimant’s Particulars of Claim include, at paragraph 5, the implied terms of the contract upon which she relies. These include a term that “the Defendant would not without reasonable or proper cause conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between itself and the Claimant”. This is a claim referable to Mahmud v. Bank of Credit and Commerce International SA [1998] AC 20. In that case the House of Lords held that, provided a relevant breach of contract was established, financial loss in respect of damage to reputation could be recovered for a breach of a contract of employment. Commenting on this decision, the editors of McGregor on Damages 17^th edition para 28-024 write as follows:

“Although their Lordships decision was concerned with pecuniary loss, much was said about the general applicability today of Addis also to non pecuniary loss. As the law stands, there can be no recovery for mental distress whether regarded as arising from injury to feelings or injury to reputation, even where there is breach of the implied term of trust and confidence. This was initially held in Bliss v. South EastThames Regional Health Authority, then in French v. BarclaysBank and accepted as the law in Gogay v. Hertfordshire County Council. But this could now change.”

The footnote to that paragraph refers back to paragraphs 3-026 to 3-031. After setting out various passages from the authorities, the editors conclude:

“Whether we shall see the limited retreat from the refusal of contract damages mapped out for mental distress followed by any comparable retreat in the field of contract damages for tarnished reputations is unsure. It may turn out that the new thinking will find application only to the contract of employment as the likeliest contract to affect reputation in its breach.”

Turning back to the Particulars of Claim, the Claimant sets out a number of matters. While the Claimant did in 1981 obtain a law degree, she has not practiced law, and she represents herself. The drafting of her Particulars of Claim comes much closer to that which might be expected from a practitioner than the drafting of many litigants in person, but it is nonetheless important to remember that it is by a litigant in person and to interpret it with appropriate latitude.

In paragraph 7 of the Particulars of Claim she pleads that the Defendant owed to her a duty not to expose her to any unreasonable risk of injury by the requirements made of her at work. This is a claim in tort.

The section headed Particulars of Breach of Contract consists of paragraph 31. The section headed Particulars of Negligence consists of paragraph 32. Injury is pleaded in paragraph 33 by reference to “the matters complained of.”

Paragraphs 9 to 29 are of a status which is not immediately clear. They relate to matters which occurred before 21^st June 2000, the events of which are summarised by Eady J in paragraph 8 of his judgment. The events of that day are undoubtedly relied on as breaches of contract and duty.

However, paragraphs 9 to 27 could, on one view, be understood as complaints of breach of contract also, alternatively, they are matters which are relevant to the contents of paragraphs 31 and 32 and the loss and damage claimed in 33.

The root of the problem is pleaded in paragraph 9, which relates to Mr Ferguson, who is Defendant number 6 in the defamation and harassment action. It is pleaded that he:

“was responsible for the day to day management of the Community Dental Service harassed and sexually harassed the Claimant on a daily basis for a number of years”.

The following paragraphs complain that Mr Ferguson assigned to the Claimant a dental nurse, Defendant number 11 in the defamation action, who, it is alleged, breached many of the Trust’s rules, which caused the Claimant much concern. It is alleged that Mr Ferguson should have taken some action about this but did nothing. In paragraph 12 it is pleaded that Mr Ferguson made constant unfounded criticisms and complaints on an almost daily basis, which led to the Claimant reaching breaking point, and she felt she could no longer go on. In paragraph 13 it is pleaded that she was advised by Dr Harrison, Consultant in Occupational Health, to take six months off work for work related stress. As already recorded in Eady J’s judgment, she did take this time off. The Particulars of Claim then continue reciting a letter or report sent by Dr Harrison about the Claimant to the Trust describing the effects upon her health of the above mentioned matters. It concludes with Dr Harrison stating: “Denise struck me as someone who had been pushed to the limit because of her working situation”.

It is then alleged, in paragraph 15, that the Defendant ignored a recommendation from Dr Harrison to provide the Claimant with a supportive working environment, and that on her return to work she was stopped completely by Mr Ferguson from treating patients in a clinic. Other complaints are made as well of what was done on her return to work. It is pleaded that the actions of Mr Ferguson caused her distress and that Mr Ferguson hounded the Claimant relentlessly, constantly complaining and criticising everything she did, leering at her and telling the claimant constantly he was “the boss”.

In paragraph 19 it is pleaded that when the Claimant raised this with a manager she was informed that she had to make a formal complaint, which she did, alleging harassment.

The outcome of that grievance is recorded in a letter dated 24^th January 2000 from the Trust, signed by Jill Prendergast, who is Fefendant number 4 in the defamation and harassment action. The position is summarised in the letter as follows:

“With reference to the grievance this was not upheld as there did not appear to be a deliberate attempt by Miles Ferguson to harass you, however, recognition was fully given to the fact that the points raised by you were valid and should have been acted upon and must now become part of some focussed work to address the issues.

It was stressed as important to allow both yourself and the service to move forward that a line must be drawn and that continual reference to the past will not be helpful.

In an endeavour to support this Miles Ferguson decided to withdraw the complaint and with it the investigation regarding the use of tape recordings of conversations. This magnanimous offer was accepted but it was made clear that this type of behaviour could not and would not be condoned.

To ensure that in this fragile stage in the process there was opportunity for routine communications it was agreed for the next month there is to be planned facilitated weekly meetings, any urgent communication from Miles to yourself would be initiated via a fax with an expectation that you phone as quickly as possible. ”

There is then referred to an attachment to the letter setting out a list of issues under the heading “Areas for Action”. The letter concludes “as before I would take this opportunity to thank you for drawing these issues to the attention of the Trust to allow action to be taken”.

Returning to the Particulars of Claim in the personal injury action it is then pleaded in paragraph 21 that:

“Miles Ferguson was furious and carried out a vendetta against the Claimant, with the intention of driving her out of her job in which: 21.1 he again omitted work carried out by the Claimant when submitting his returns to the Defendant 21.2 he again wrote to some of the Claimant’s patients and informed them falsely they could no longer receive treatment from the claimant, 21.3 but most importantly using his position of authority he instigated extremely serious false allegations about the claimants professional conduct”.

This is a reference to the matters summarised in paragraph 5 of Eady J’s judgment. Paragraphs 22 to 27 of the Particulars of Claim in the personal injury action are substantially the matters set out in paragraphs 7 and 8 of the judgment of Eady J.

It is then pleaded in paragraph 31:

“The defendant was in breach of the implied term of trust and confidence referred to in paragraph 5 because it had no reasonable grounds 1. For failing to follow its own grievance procedure, 2. For failing to investigate the allegations made against the claimant; 3. For accepting the allegations as being true without any evidence to substantiate this; 4. For threatening the claimant with disciplinary if further allegations were made; 5. For not allowing the claimant to defend herself; 6. For ignoring the claimants requests for an investigation and the claimants formal grievance; 7. For encouraging those responsible to repeat the allegations despite evidence to show the allegations were false.”

The Particulars of Negligence in paragraph 32 plead that the Trust exposed the Claimant to the foreseeable unreasonable risk of injury and that she suffered injury as a result. It is pleaded:

“1.

The Defendant caused the Claimant to work under excessive pressure by accusing the Claimant unreasonably of professional misconduct and refusing to allow the Claimant to defend herself and accepting the allegations as being true. Yet the Defendant knew the Claimant was a conscientious worker whose main concern was for the patients. The Defendants also knew that the Claimant had taken time off for stress caused by the actions of Miles Ferguson and Natasha Weisser. The Defendant could foresee the allegations of professional misconduct made against the claimant would cause the injury to the Claimant.

2.

The Defendant could further foresee that failure on its part to investigate and yet to accept the allegations as true and threaten the Claimant with disciplinary action if further allegations were made would cause the Claimant injury.”

In paragraph 33 the injury loss and damage pleaded is as follows:

“The Claimant’s health was affected by the allegations made and the actions of the Defendant. The Claimant was understandably distressed the Claimant felt depressed and in a state of shock. She had difficultly sleeping. Her blood pressure rose and she had series of blood shot eyes. The Claimant did not visit doctor she was only concerned about her reputation. She had devoted her life to her career and was and still is devastated by the Defendant’s cruelty and high handedness. The Defendant set out deliberately to destroy the Claimant’s career and health after she had been a conscientious employee for 26 years. The Claimant felt as if she was living a nightmare. …

The Claimant suffers from clinical depression and severe clinical anxiety and stress…”

It is to be recalled that an application under CPR Part 24 is not a summary trial: Swain v Hillman [2001] 1 All ER 91. The question is whether the Claimant’s case has sufficient merit to proceed to trial.

Communications were addressed to the experts, and in particular Dr Tayler, by the Claimant and by solicitors for the Trust before the 10^th February hearing resumed. In response to those communications Dr Tayler made his position clear. In a letter of that date to the Claimant he wrote:

“In the report of Dr Revely you gave additional information about your studies in law and also the conflict there had been about the children. This would indicate that there had been disputes between yourself and others for longer than I had been aware at the time of our initial assessment. This and the discussion with Dr Reveley caused me to change my opinion.

I am aware at the great degree of distress that the loss of your employment has caused you and am in no doubt that you feel wronged. The efforts you have put into trying to right the wrong which you feel that you have suffered are not disputed by me.

The difficulty is that of determining the difference between the degree of stress which is not disputed and if there are sufficient criteria to meet the criteria for an “illness”. It was after the additional information from the report of Dr Reveley was considered that I formed the opinion that on balance the criteria for a depressive disorder were not met …

Eversheds have also asked me a question. “Is it my opinion that you suffered a psychiatric injury as a result of events at workplace?

I feel that the answer to this is covered by the opinion given above. While I no longer am of the opinion that you met the criteria for a depressive illness it is clear you suffered a great deal of distress and felt a great deal of anger as a result of the way in which you feel you were treated. This would have been increased as a result of the obsessive personality which Dr Reveley and I agree you have”.

Also on 10^th February, before the resumption of the hearing, Dr Tayler reported to the Trust’s solicitors as follows:

“To specifically answer the question posed in the letter of 6.2.06 ‘is it likely that Mrs Merelie suffered a psychiatric injury or illness as a result of the events in her workplace?’ on the balance of probabilities the answer to this is “no”…. [he then refers to the letter that he had written to the Claimant] I hope it is clear that it is my opinion that Mrs Merelie has suffered a great deal of stress as a result of the litigation but on balance I do not now believe that this had caused her a depressive illness”.

In his submissions on 3^rd February Mr Brown for the Trust argued that in order to succeed in her claim in the Personal Injury Proceedings (by which he meant claim number NE 305480 issued on 12^th June 2003) the Claimant would need to be able to establish (1) that the Trust were negligent and/or in breach of contract; (2) that she has suffered a recognised psychiatric and/or physical injury as a result of such negligence or breach of contract; (3) that it was reasonably foreseeable to the defendant that she might suffer injury as a result of any such negligence or breach of contract.

In support of this submission he cited Hartman v. South Essex [2005] EWCA Civ 06 paragraph 2:

“…Liability for psychiatric injury caused by stress at work is in general no different in principle from liability for physical injury. But, as Buxton LJ put it in Pratley v. Surrey CC [2004] ICR 158 at paragraph 32,

“It is not the act that the consequences on which tortious liability is founded. The defendant will be deemed liable for those consequences, not because he has caused them in the course of some careless or otherwise undesirable activity, but only if they were caused by his failure to take precautions against a foreseen or foreseeable and legally relevant danger”.

It is foreseeable injury flowing from the employer’s breach of duty that gives rise to the liability. It does not follow that because a claimant suffers stress at work and the employer is in some way in breach of duty in allowing that to occur that the claimant is able to establish a claim in negligence… ”

As to the issue of negligence, while submitting the Trust denied any breach of duty, Mr Brown accepted that that issue could not be resolved without a full trial.

However, in the light of the joint statement, as signed in January 2006 and as now confirmed by Dr Tayler on 10^th February 2006, Mr Brown submits that the Claimant can have no real prospect of establishing that she suffered any recognised psychiatric injury as a result of the matters alleged. He notes that there is evidence in the witness statements that the Claimant was distressed by the allegations made against her, but he submits that that is not sufficient to establish that she has suffered a recognised illness. Alternatively, and this is second ground for his application, Mr Brown submits there is no proper basis on which the court could hold that it was reasonably foreseeable to the Trust that the Claimant would suffer psychiatric injury (or indeed any other injury) as a result of any breaches of duty on its part.

Before 10^th February I prepared and circulated in the usual way a draft of this judgment in so far as it relates to the issue of foreseeability. In it I included the paragraphs, as they now appear as paras 9 and 10 above, referring to Mahmud and to McGregor on Damages. At the hearing on 10^th February, having seen the new documents from the experts a few moments before the start of the hearing, I did not in the event hand down the judgment in the form prepared. I did ask Mr Brown for assistance on the breach of contract claim in the light of those passages in the draft judgment. He accepted that, even if his submissions on foreseeability and causation of injury were successful, his application for summary judgment could not succeed in relation to the entire action, because physical or psychiatric injury is (at least sufficiently arguably for to the purposes of this application) not a necessary condition for a claimant to succeed on a breach of contract claim as advanced by the Claimant in this action.

However, Mr Brown did then advance an alternative submission. He submitted that the Trust should obtain summary judgment in respect of the claim for special damage. This is a claim for loss of earnings quantified in the sums of £121,565 from 3^rd August 2001 to 8^th July 2004, and loss of future earnings quantified at £345,696. The same, he submits, applies to the Claimant’s claim for loss of a pension. The only other claim for special damage is a figure of £12.80 per month for prescription charges.

In response to Mr Brown’s submissions, the Claimant did not submit that she could succeed on her claim in negligence on the basis of the evidence as it now stands from the experts. Instead she indicated that she wished to obtain a statement from a new expert. I shall return to that point later. The Claimant submitted that what she says about her eyes and the permanent effect on her vision and eyelid, as pleaded in paragraphs 34 and 35 of the Particulars of Claim, are physical injury. However, I have seen no expert evidence as to the causation of these.

In my judgment it is clear that the Claimant has no real prospect of success, on the evidence as it stands today, of proving that she has suffered psychiatric or physical injury caused by the breaches of duty, or of contract, which she pleads in her Particulars of Claim. On the other hand, there is no dispute that she has a real prospect of success in proving that she has suffered mental distress and injury to her reputation as a result of these matters. In effect, the consequence of what I have found is that the scope of the action for breach of contract and personal injuries now covers almost exactly the same ground as the action for harassment and defamation.

Mr Wolanski appearing in the defamation and harassment action submits that the consequence of this finding I have made on psychiatric and physical injury is that the claims for that damage in that action also have no real prospect of success. That must follow. Mr Wolanski also submits that the claim for special damages in the harassment and defamation act must also now go, for the same reasons as submitted by Mr Brown.

Given the history of the matter, as set out above, the Trust’s case on the scope of damages for breach of contract, and in particular whether it can now include the claims for special damages, were not fully argued. Following the hearing, on Monday 13^th February 2006 the Claimant delivered to me a document head Additional Information Provided by the Claimant. Upon enquiry, counsel for the Trust indicated that it had no objection to my reading this, and in turn submitted a Note on the Claimant’s document. These documents address issues arising out of Mahmud and other cases.

As noted above, the submission for the Trust that there should summary judgment under CPR Part 24 on the claim for Special Damages is not included as a separate head in the Application Notice, and arose only at the hearing on 10^th February. The Claimant did not therefore have a proper opportunity to address it. The document delivered subsequently is an attempt by her to address it, but in my judgment it is not fair or satisfactory that the point should be argued in this fashion. In any event, given the uncertain scope of damages available in the relatively new legal claims for harassment and for breach of the implied term in a contract of employment relied on here, the procedure under CPR Part 24 is not an appropriate one for deciding whether the Claimant has a real prospect of success in claiming the special damages she claims. The trial is listed to take place in a few weeks starting on 20^th March 2006, the parties have been preparing for that. In my judgment I would be wrong to declare by way of summary judgment that at today’s date the claimant has no real prospect of success in claiming those damages.

The grounds relied on in support of the application for summary judgment on the foreseeability issue are that there is nothing in the evidence which has been served by the Claimant to indicate that the possibility of her suffering such an injury was, or ought to have been, foreseen by the Defendant, or which could properly support such a finding. I do not agree. What is said in the Particulars of Claim about the Claimant taking six months off work, and the statements made about this to the Trust by Dr. Harrison, do appear to me to indicate to the Trust the possibility of the Claimant suffering injury or illness if her problems with Mr Ferguson were not resolved.

Next it is said that, in particular, there is nothing that could properly support such a finding in relation to the allegation that Ms Prendergast was negligent in not investigating the complaints which had been made against the Claimant. Reference is made to the evidence of Ms Prendergast herself at paragraph 42 of her witness statement. The witness statement says this:

“I should also say that it did not occur to me that the decision not to proceed to stage 2 of the grievance procedure was likely to damage [the Claimant’s] health. Although ultimately the final decision as to how the grievance was dealt with lay with the nurses on advice from their Union representative, I thought it would be more likely to be bad for [the Claimant’s health] if a formal investigation had been pursued and the allegations from the past had been aired once again. It was my belief that a mediated way forward would have been best for all parties [including the Claimant]”.

What Ms Prendergast says in that passage in her witness statement may, or may not, be challenged, and either accepted or rejected, if this matter goes to trial. It does not seem to me, on an application for summary judgment under CPR Part 24, that I ought to accept that statement as conclusive in the circumstances of this case. Given that conclusion, I feel that it is inappropriate for me to say more at this stage in the proceedings. I simply note the observations of Eady J in paragraphs 8-11 of his judgment.

Mr Brown for the defendant cites Hartman v South Essex [2005] EWCA Civ. 06 on the need for there to be foreseeable injury, whether physical or psychiatric. He points to the passage which says it does not follow that, because a claimant suffers stress at work, and the employer is in some way in breach of duty in allowing that to occur, that the claimant is able to establish a claim in negligence. It seems to me important to note that in that case it was a claim in negligence alone that was being referred to. No submissions were addressed to me on 3^rd February on the contractual claim by reference to Mahmud, or the authorities referred to in the passages in McGregor, to which I have referred. The Claimant’s own skeleton argument, which is a detailed and carefully drawn document, makes submissions on Hartman and on Hatton v Southerland (2002) EWCA Civ. 76, and not on Mahmud.

The foreseeability point will not arise if I am right in the view that the Claimant has no real prospect of success on causation. But on the footing that I am wrong about that, and given the state of the law, which is developing in stress related claims, and in reputation claims arising out of employment contracts, it seems to me that it would be inappropriate to give summary judgment against the Claimant on the forseeability issue.

Accordingly this application for summary judgment made in the Trust’s Notice is dismissed.

I turn now to the Claimant’s submission that she should be permitted to rely on an expert other than Dr Tayler. She referred me to Cosgrove v. Pattison (unreported) 27^th November 2000 Neuberger J. That was a case where there had initially been joint experts, and the appellant wished to rely on a report, which was already then available, from a new expert who called in to question some of the conclusions reached by the joint experts. After expressing some reservations Neuberger J did allow the new expert to give evidence in that case. However, it is of little assistance to the Claimant in this case because she does not have a report from a new expert which I can consider.

What she points to is a report dated 25^th July 2002 from Dr Dunleavy, Consultant Psychiatrist, who was instructed on behalf of the Trust in relation to different proceedings which the Claimant had brought against the Trust in an Employment Tribunal. In that report he expresses the opinion that the Claimant has a medical impairment consisting of a depressive illness, and that she is a disabled person within the meaning of the Disability Discrimination Act 1995, and that it is his further opinion that she was a disabled person from at least February 1999. That report would of itself be of no assistance in the present case because it was not addressed to the question whether the illness diagnosed was the result of any actionable wrong committed by the Trust. The date of February 1999 may be significant in that it precedes the date of June 2000 referred to in the Claim Form and in paragraph 22 of the Particulars of Claim in the personal injury action.

It does not seem to me that there is any permission which I can give to the Claimant today. I do not express any view as to whether she should or should now seek a further opinion from another expert. She certainly could not rely upon it at trial without the permission of the court. It is hard to see how she could obtain such a report and get permission to rely on it before the trial due to start in a few weeks time. If, however, she chooses to take that course and she obtains a report, and applies for permission to rely on it, that application will have to be considered by myself or some other judge on its merits. Without pre-judging that application, if it be made, it seems to me right to say that I see formidable difficulties in the way of it succeeding.

Mr Brown submitted that, if summary judgment is not given on the Special Damages claim, then at least the Claimant should set out, if she can, how she says that those damages were caused by the acts or omissions she complains of, on the footing that those acts or omissions did not result in any physical or psychiatric injury. I accept that submission and direct that the Claimant do that. The date by which she should do it will be settled, if not agreed, in the Order to be drawn up on this Application.