Dr Harding v British Medical Association

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMrs Justice May
Judgment Date10 Jan 2017
Neutral Citation[2017] EWHC 5 (QB)
Docket NumberCase No: HQ15X03495

[2017] EWHC 5 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice May DBE

Case No: HQ15X03495

Between:
Dr Harding
Claimant
and
British Medical Association
Defendant

The Claimant appeared in person

Stephen Innes (instructed by Gateley Plc) for the Defendant

Hearing dates: 8 December 2016

Mrs Justice May

This Appeal

1

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:

Whether, in relation to the allegation of failure to include a claim of "whistleblowing" in the ET1 form lodged on 6 January 2009:

(i) The cause of action in tort accrued more than 6 years before the claim for in the present action was issued on 15 January 2015; and

(ii) It is an abuse of process, as a collateral attack on the findings of the Employment Tribunal in its judgment dated 7 June 2010, for Dr Harding to allege that his "whistleblowing" claim could have succeeded in the Employment Tribunal.

2

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.

Background

3

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

4

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.

5

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.

6

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.

7

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.

8

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.

9

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.

10

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.

11

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.

12

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

(i) Limitation.

(ii) Collateral attack/abuse.

(iii) Whether the claim is fanciful with no chance at all of success, as advanced by the BMA in its Respondent's notice.

New evidence

13

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.

14

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.

The proper approach when considering the issues on this appeal

15

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.

16

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.

Limitation

17

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.

18

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.

19

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.

20

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.

21

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...

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