Harding v British Medical Association

By this appeal the Claimant (“Dr Harding”) seeks to overturn the decision of Deputy Master Hill QC dated 12 February 2016 striking out his claim against the Defendant (“the BMA”). Permission to appeal was given following an oral hearing, by order of Edis J dated 12 September 2016, in respect of two grounds only as follows:

By its Respondent’s Notice, the BMA seeks to uphold the Deputy Master’s decision on the further ground that Dr Harding’s claim is fanciful, having no reasonable ground of success, thus entitling the BMA to summary judgment on its defence.

I take the background facts from the very helpful summary contained in the judgment of Deputy Master Hill QC.

Dr Harding was employed by Berkshire Healthcare NHS Foundation Trust (“BHCFT”) as a consultant psychiatrist from 1987 until his eventual dismissal in 2008. An issue had arisen with his care of a particular patient in 2006 at which time Dr Harding was asked by the Medical Director to step back and hand over care to another psychiatrist. He was unhappy with this and complained by letter dated 23 April 2007. He was suspended from work whilst several internal investigations were conducted by a number of different persons.

On 11 September 2008 there was a disciplinary hearing at which the panel upheld nine allegations of misconduct following which, on 9 October 2008, Dr Harding was dismissed. He appealed but on 19 November 2008 he was informed that his appeal had been dismissed. During these disciplinary proceedings Dr Harding was supported by the Medical Defence Union. Following his dismissal, he approached the BMA for help.

The BMA referred the case to solicitors, Messrs Halliwells, on 29 December 2008 for a merits assessment but in the meantime, since the 3-month time-limit was nearing expiry, a member of staff from the BMA filled out the ET1 claim form and lodged it at the Employment Tribunal (“ET”) on 6 January 2009. The ET1 form did not include any whistleblowing claim.

As result of negative advice from Halliwells the BMA declined to provide assistance to Dr Harding in his claim in the ET. That advice had specifically addressed the prospects of success of any whistleblowing claim.

Dr Harding thereafter pursued his claim in the ET privately. On 1 June 2009 he applied to amend his ET1 to include a whistleblowing claim but this application was refused at a Pre-Hearing Review on 27 August 2009.

Dr Harding’s case was heard in the ET from 19-23 April 2010. By its decision dated 7 June 2010 the ET found that he had been unfairly dismissed by reason of a failure by BHCFT to follow proper procedures, however the ET found that Dr Harding’s compensatory award would be reduced by 100% by reason of the fact that, by his actions which amounted to gross misconduct, he had contributed to his dismissal. In short, they found that the BCHFT’s grounds for dismissal - gross misconduct by failing to keep proper patient records - were made out, but that their procedures had been at fault. Dr Harding’s appeal against that decision was dismissed by the Employment Appeal Tribunal on 30 September 2011.

Dr Harding issued these proceedings against the BMA on 15 January 2015 claiming damages in negligence. He made a variety of complaints of which the only relevant one for present purposes, in the light of the limited permission granted by Edis J, is the allegation of negligence in the completion of the ET1 form in January 2009, specifically by the omission from it of any whistleblowing claims.

By an application dated 20 August 2015 the BMA sought to strike out the claim and/or seek summary judgment dismissing it on various bases, including in particular that the claim was time-barred and/or that it was an abuse of process, being a collateral attack on the findings of the ET. It is from the Deputy Master’s judgment on that application that Dr Harding now appeals.

The issues which I have to decide on this appeal may be summarised as follows:

There was no application before me, as such, to admit new evidence on this appeal; however Dr Harding, appearing in person, drew my attention at the outset of the hearing to a file of documents which, he said, had not been put before the Deputy Master and on which he sought to rely before me. I asked whether the documents were ones which had been in existence and which he had known about at the time of the earlier hearing. On learning that they were, and he had, I asked why he had not put them before the Deputy Master; in response Dr Harding told me that he had thought it was the BMA’s responsibility to put everything which was at all relevant before the court and had only recently appreciated that it was not.

The relevant principles and cases are set out and discussed at para 52.11.2 in the White Book. I concluded that it would be wrong, as contrary to the overriding objective, to permit Dr Harding to rely on yet further material at this appeal hearing, which the Deputy Master did not have before her when reaching her decision on the BMA’s strike out/summary judgment application.

At the start of the argument I invited Mr Innes, for the BMA, to assist me with the approach I should take on this appeal. He suggested, and I agreed, that as there are no primary findings of fact or exercise of discretion involved in the Deputy Master’s decision, this appeal is to all intents and purposes a re-hearing of the BMA’s application for summary resolution, but restricted in content to those matters in respect of which permission to appeal has been given.

The other important matter that I bear well in mind when considering the issues raised on this appeal is that they arise in the context of a strike out/summary judgment application. The application has been made before close of pleadings, before disclosure, before witness statements and, by definition, before trial. As the Deputy Master rightly emphasised, the court at this summary stage is not concerned to resolve disputed matters of fact by conducting a “mini-trial”, nor is it engaged in considering probability. In the words of Lord Hobhouse in Three Rivers DC v. Bank of England (No. 3) [2003] 2 AC 1 at para 158: “[t]he criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality”. I was referred also to the decision of the Court of Appeal in ED&F Man Liquid Products Ltd v. Patel [2003] EWCA Civ 472 where the court emphasised that the respondent to such an application is required only to show some prospect of success and that it is for the applicant (here the BMA) to show otherwise.

The Deputy Master decided that Dr Harding’s claim was statute-barred, his cause of action against the BMA having arisen on 6^th January 2009 whilst his claim against the BMA was not issued until 15 January 2015, about 1 week out of time.

One of the points urged by Dr Harding was that I should exercise my discretion to extend time in his case as he had meant to issue his claim earlier but due to a mistake in omitting to send a cheque, together with slow posts over the Christmas and New Year period, it had taken much longer than he intended. The short answer to this point is that I have no discretion to extend time.

Dr Harding then embarked on a series of more technical matters set out very helpfully in a skeleton argument prepared for him by counsel, Giles Powell, in advance of the appeal. I am indebted to Mr Powell for the clarity of those submissions, likewise to Mr Innes at the hearing who, in Mr Powell’s absence (he had not been instructed to appear on the appeal), took me through the points raised, identifying matters both for and against his own case and thereby acting in the finest traditions of the Bar.

The issues raised concern the date on which the damage occasioned by the alleged negligence accrued, and thus when the cause of action in negligence arose. It is to be noted in this respect that permission to appeal was only given in respect of a claim for damage arising from the failure to include a whistleblowing claim on issue of the ET1 claim form and not for any failure to amend the claim thereafter.

Dr Harding emphasised at the outset that there would have been two elements to any whistleblowing claim: first as giving rise to automatic unfair dismissal and second for compensation in respect of “detriments” suffered. So far as the first, automatic unfair dismissal, element was concerned, Dr Harding submitted that, as the BHCFT informed him of his dismissal by letter rather than in person, the date on which he was dismissed was the date he read the letter: GISDA Cyf v. Barratt [2010] UKSC 41. That date, he told me, had not been until 16 October 2008 and it was only then, he argued, that time began to run for the purposes of issuing the ET1 claim form. The 3-month period for issue of the ET1 claim form would not have expired until 15 January 2009 and thus, Dr Harding said, his claim issued against the BMA 6 years later on 15 January 2015 was (just) within time.

Dr Harding next submitted that the 3-month period for a claim to whistleblowing detriment would not have run out until 18^th, alternatively 11^th, February 2009. In accordance with the provisions of s.48 of the Employment Rights Act 1996, he said, the date to be taken as the start of the 3-month period was not until the last of the acts or failures to act by the BHCFT, which was not until the final rejection of his appeal against dismissal, or at least until the final day of the appeal hearing in November 2008.

Dr Harding concluded by submitting that since he could have brought a whistleblowing claim in the ET at any time up to 15^th January 2009 (for an automatic dismissal claim) or 18^th/11^th February 2009 (for a detriment claim), he suffered no actual loss before those dates attributable to the negligent act of the BMA in failing to include such a claim in his ET1 form.

Mr Innes in response argued that the loss to Dr Harding arising by reason of any failure to include a whistleblowing claim occurred on 6 January 2009 when the ET1 form was issued. It was on that date, Mr Innes said, that Dr Harding acquired less valuable rights (if any) than was intended. Mr Innes referred me to Jackson & Powell on Professional Liability, 7th ed., para 5-043 dealing with solicitor’s liability (as being the closest analogy to the role of the BMA here) and to the cases of Bell v Peter Browne [1990] 2 QB 495 (damage accrued when the clamant transferred his house to his wife without a trust deed or charge to protect his share of the proceeds of sale), Pegasus Management v. Ernst & Young [2010] 3 All ER 297 (damage accrued when claimant subscribed for shares in a company incorporated without subsidiaries, with adverse tax consequences) and AXA Insurance Ltd v. Akther & Darby Solicitors [2009] PNLR 25 (insurers’ claim against solicitors responsible for vetting claims under a legal expenses insurance scheme, damage sustained at date of entering into each insurance contract in respect of claim having less than 50% chance of success by reason of fact that insurers were at that point exposed to a greater risk for the premium they were being paid).

The cases cited in Mr Powell’s skeleton included Berney v. Saul [2013] EWCA Civ 640 and Nykredit v. Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627. The essential question was summed up by Lord Hoffman in Nykredit at 1639B:

“Relevant loss is suffered when [the claimant] is financially worse off by reason of a breach of the duty of care than he would otherwise have been”

Mr Innes argued that the point at which Dr Harding was financially worse off was when the ET1 form was issued without any whistleblowing claim. Mr Powell’s skeleton argument, adopted by Dr Harding, suggested that the cases relied upon by Mr Innes were transactional cases whereas the position here was more similar to that in Berney v. Saul, where Gloster LJ held that loss occurred at the date of a disadvantageous settlement of a claim. Mr Powell’s submissions, advanced by Dr Harding, suggested that the time when loss was sustained was at the last date when a whistleblowing claim could have been brought.

In his skeleton argument at para 20(b) Mr Innes set out an alternative case giving 8^th January 2009 as the date of loss, by reason of the fact that this was the last possible date for issuing an ET claim within time (3 months from the date of dismissal on 9 October 2008) and with the benefit of a whistleblowing claim included. This alternative case would appear to be the same, in principle at least, as that being run by Dr Harding, save only that the dates on which Dr Harding maintains a whistleblowing claim could have been brought are later than 8 January 2009. I note, in this respect, that the ET Judge Hill at para 28 of her judgment dated 7 September 2009 referred to the fact that she would have permitted an amendment including a whistleblowing claim as late as 15 January 2009.

Having had the benefit of extensive citation and discussion on the point (which the Deputy Master clearly did not have) I cannot say that Mr Innes is unarguably right in equating date of issue of the ET1 form with occurrence of loss. As Gloster LJ in the Berney case emphasised at para.58 of her judgment, the determination of limitation issues is “critically dependent on the circumstances arising in any particular case”. In other words, such issues are fact-specific. As Mr Innes was at pains to stress, the question of when Dr Harding received notification of his dismissal is in issue, likewise what activities on the part of BHCFT may have constituted detriments.

In my view, therefore, the claim is not susceptible to a strike out as being time-barred at this early stage of proceedings. That is not to say, however, that the BMA’s limitation defence is incapable of succeeding, far from it, merely that the issue is not susceptible of resolution before the evidence has been more fully collected and examined.

The learned Deputy Master held that Dr Harding’s claim against the BMA was in essence a collateral attack on the findings of the ET in 2009. Dr Harding argues that she was wrong to do so.

The principles to be applied where it is said that proceedings amount to a collateral attack on the decision of another court in a civil (as opposed to criminal) matter were discussed by Lord Hoffman in the case of Hall v Simons [2002] 1 AC 615 at 702-3. Having referred to observations of Lord Diplock in the earlier case of Hunter v Chief Constable of the West Midlands Police [1982] AC 529, he concluded:

“I, too, would not wish to be taken as saying anything to confine the power within categories. But I agree with the principles upon which Lord Diplock said that the power should be exercised: in cases in which relitigation of an issue previously decided would be "manifestly unfair" to a party or would bring the administration of justice into disrepute”.

Deputy Master Hill was not referred to Hall v Simons, however as Mr Innes pointed out she was referred to and relied upon the case of Ridgewood v. Kilpatrick Stockton LLP [2014] 2502 where Arnold J reviewed relevant authorities, including the principles from the earlier case of Hunter, being those accepted and set out by Lord Hoffman in Hall v Simons. Thus although the deputy Master did not explicitly refer to or rely upon Hall v Simons, she nonetheless had the relevant principles in mind.

Arnold J concluded that the question of bringing the administration of justice into disrepute resolved itself into two separate questions:

The deputy Master concluded that, applying these principles, Dr Harding’s claim against the BMA was an abuse of process.

My concern with this part of the case, as it has been throughout the hearing of this appeal, is whether the matter is properly susceptible of resolution at this summary stage. The BMA was not a party to the ET proceedings, and those proceedings did not include any whistleblowing claim. It is no doubt right, as Mr Innes pointed out, that Dr Harding’s account of events given to the tribunal is likely to have included the facts and matters which would have formed the basis for a claim to automatic unfair dismissal arising from whistleblowing; to that extent his case would have been tested. However the focus of the ET’s enquiry, and its consideration of such evidence, was directed towards whether Dr Harding could establish that he had been unfairly dismissed.

Again, reading her careful judgment, it is clear that the learned Deputy Master did not have the benefit of full argument such as has now been available to me through Mr Powell’s skeleton, as addressed and examined in argument by Mr Innes at the hearing. Of particular relevance, as I see it, is the distinction between a whistleblowing claim giving rise to automatic dismissal, and one for detriment. The latter could have had no consideration at the ET hearing.

In those circumstances, and applying the principle summarised by Lord Hoffman in the Hall case, I am not satisfied that Dr Harding’s claim against the BMA can properly be said to be an abuse.

In its Respondent’s Notice on this appeal the BMA raises a separate point arising out of the findings made by the Tribunal in the ET proceedings. Mr Innes argues that the consequence of certain specific and conclusive findings made by the ET must be that Dr Harding’s claim against the BMA can have no reasonable prospect of success.

Mr Innes referred me to the following findings, taken from the judgement of the ET in June 2010:

Mr Innes argued that these findings made by the ET would necessarily render Dr Harding wholly unable to establish that he was dismissed by reason of any protected disclosure. Mr Innes accepted that, in the context of a whistleblowing claim, the burden of proof is reversed such that it would have been for BHCFT to show that they dismissed Dr Harding for a reason other than his making a protected disclosure, but he argued that in the light of the ET’s clear findings this requirement would clearly have been satisfied.

There appear to me to be two difficulties with Mr Innes’ argument. First, for the purposes of this claim against the BMA the chance of success of the underlying action against BHCFT is a matter for a court to take into account when setting a value on the “loss of a chance” and not something that can properly determine whether the negligence claim itself can be said to be fanciful: Kitchen v. Royal Air Force Association [1958] 1 WLR 563. I find support for this view in the position taken by Mr Innes for the purposes of his limitation argument, above. There he argued that Dr Harding sustained loss (if any) at the time of issuing the ET claim, by reason of its being less valuable on account of the absence of a whistleblowing element. Mr Innes’s characterisation of the nature of the loss occasioned by any negligence on the part of the BMA is more consistent with a view that the prospects of success of the underlying claim are a matter for an assessment of damage in the event that any negligence is found to have occurred, rather than going to the merit of the primary claim against the BMA.

The second and more straightforward point is that Dr Harding’s whistleblowing claim would not, as he reminded me, have comprised simply his automatic dismissal case, but would have included a further claim to compensation for detriment, such as being “excluded” (as he put it) from his post, prevented from seeing any patients for a period of over a year. There is nothing in the ET judgment which bears one way or the other on the matter of detriment, as whistleblowing detriments formed no part of the issues the ET had to consider.

With the above two considerations in mind, I cannot conclude that Dr Harding would be unable to show other than nominal damage in respect of a whistleblowing case. I am unable to say, therefore, at this summary judgment stage, that Dr Harding’s claim against the BMA is fanciful, or one with no reasonable prospect of success.

For the reasons given above, I propose to allow this appeal. I make it plain that in reversing those parts of the Deputy Master’s decision set out at para 81(i) and (ii) of her judgment and, to that extent only, dismissing the BMA’s application I do so on the basis that the limitation defence and the abuse point are not at this juncture properly susceptible of resolution by way of summary judgment. It remains open to the BMA to argue, once the facts are more fully known, that Dr Harding’s claim is statute-barred and/or that his case amounts to no more than an impermissible attack on the findings of the ET.

Dr Harding should be under no illusions as to the effect of this decision. It is not a judgment in his favour on his claim against the BMA, nor should he take it as any indication that the court takes a favourable view of his claim on the merits as they currently appear, or that the court presently sees any substantial value in what is a “loss of chance” claim. All this decision does is to find that the claim is unsuitable for summary determination at this stage.