Jarmarleos Do Zurius v Secretary of State for Health & Social Care

Hearing dates: 10 – 12 December 2024

Approved Judgment

This judgment was handed down remotely at 10.00am on 17 January 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

DEPUTY HIGH COURT JUDGE Aidan Eardley KC

DHCJ Aidan Eardley KC:

In these proceedings the Claimant alleges that staff at an NHS walk-in centre in Nottingham wrongfully disclosed (or negligently failed to prevent a third party from accessing) his private medical information. This has become known in the proceedings as the First Claim. He further alleges that the Second Defendant wrongfully refused to offer him employment on the basis of unfounded rumours about his character (known in the proceedings as the Second Claim). This is my judgment following a trial of certain preliminary issues which I identify at paragraph 10 below. At the conclusion of the trial, the Defendants invited me to find that, for the purposes of CPR 44.16, the Claimant's claim is fundamentally dishonest. I also address that issue in this judgment.

My judgment is structured as follows:

A. The parties (paragraphs 3–6)

B. Procedural history (paragraphs 7–14)

C. The parties' pleaded factual cases (paragraphs 15–21)

D. Evidence at trial (paragraphs 22–30)

E. Matters no longer in dispute (paragraph 31)

F. Relevant rules of evidence and procedure (paragraphs 32–47)

G. The authenticity of the Claimant's documents (paragraphs 48–81) H. “Breach of duty” (paragraphs 82–93)

I. Limitation (paragraphs 94–101)

J. Loss of employment/loss of a chance (paragraphs 102–106)

K. Heads of damage (paragraphs 107–110)

L. Fundamental dishonesty (paragraphs 111–121)

M. Conclusion (paragraphs 122–123)

A. The parties

The Claimant lives in Mauritius. He was born on 22 August 1985. At certain times in his life, in particular in 2005 and 2006 when he was in his early twenties, he sought employment in the healthcare sector in the UK and spent some time in the UK pursuing that goal. Further details about his employment and immigration history are obscure but it appears that he has been unsuccessful in obtaining long-term employment in the UK. His birth name was Tohendra Ashwin Kumar Ramdhany and this is the name used in respect of many of the documents that are relevant to this case. The Defendants have never formally admitted that Mr Ramdhany is one and the same as the Claimant. However, I accept that this is true. The trial bundle includes a document, the authenticity of which has not been seriously disputed, which records a decision of the Attorney General of Mauritius, dated 24 December 2012, certifying that Tohendra Ashwin Kumar Ramdhany has permission to change his name to Jarmarleos do Zurius.

The Claimant has acted in person throughout these proceedings. He is clearly intelligent, articulate, and familiar with the substantive law of England and Wales: his written and oral submissions were cogent and made appropriate reference to relevant principles of law and authorities. However, he evidently lacks knowledge and experience of civil procedure and this gave me some concern as to whether he really appreciated what was required of him as a claimant. I took various steps to address these concerns, which I detail below.

The First Defendant accepts that he is the appropriate public authority in respect of the acts/omissions of staff at the walk-in centre given that responsibility for the centre has shifted between various NHS entities over time and that the centre no longer exists as such (it is now an “urgent treatment centre”).

The Second Defendant is the NHS body that was responsible for any decision to employ, or refuse an offer of employment to, the Claimant at one or other of its hospitals in 2006.

B. Procedural history

This case has had a convoluted procedural history. I do not need to set it out in full. The essential points are these. A claim was issued on 18 August 2020 attaching particulars of claim dated 3 August 2020 ( the Original Particulars of Claim). The named defendant was “NHS England” and the Original Particulars of Claim advanced not only the First Claim and the Second Claim but also claimed that he had been wrongfully refused employment at a number of other hospitals (including in Norwich, Reading and Leeds) on the basis of the same false and malicious information.

The Claimant then produced amended Particulars of Claim dated 21 January 2021 and was given permission to file and serve them (along with an amended Claim Form) by 4 February 2022. These amended particulars ( the Unfiled Amended Particulars of Claim) named the present Defendants as well as 5 other NHS Trusts. The Claimant's attempts to file these amended statements of case by 4 February 2022 were unsuccessful but Master Dagnall then gave him permission to file by 25 March 2022. The Claimant did this but the version he filed at this point ( the Amended Particulars of Claim) was different from the Unfiled Amended Particulars of Claim: the Amended Particulars of Claim contained only the First and Second Claims against the present Defendants and omitted any claims against the 5 other NHS Trusts. There is no dispute that the Amended Particulars of Claim have been validly filed and served.

The Claimant provided a response to a Part 18 Request dated 19 March 2021 relating to the Original Particulars of Claim. An Amended Defence was served on or about 6 April 2022 responding to the Amended Particulars of Claim and the Claimant filed a Reply dated 23 May 2022.

The Defendants applied for summary judgment but this application was ultimately refused by Master Dagnall following a hearing on 4 December 2023. Instead, the Master gave directions for this trial of preliminary issues, defining the issues as follows in paragraph 3 of his Order:

There shall be determined as preliminary issues:

a. all questions of breach of duty and limitation and primary liability other than primary causation;

b. whether the heads of damages sought by the Claimant are such that can be claimed in relation to any established breach of duty as a matter of law (as opposed to of fact); and

c. whether the Claimant has proved (on the balance of probabilities) that (i) but for any established breach of duty, the Claimant would have been offered employment by the Second Defendant or that (ii) but for any established breach of duty, the Claimant had a real or substantial chance of an offer of employment from (a) the Second Defendant or (b) from elsewhere in the NHS.

The Master's Order also set a timetable for disclosure and inspection and required service of witness statements of fact by 24 April 2024 (later extended by consent to 22 May 2024). The Order included the usual provision (reflecting CPR 32.10) that “Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the Court”.

On Monday 2 December 2024 (so, a week before the first day of trial), I held a pre-trial review ( PTR). At the PTR, the Claimant applied for an adjournment of the trial until late January 2025 on the basis that he had been refused a visa to travel to the UK from Mauritius. He wished to challenge this decision or reapply so that he could attend in person. I refused that application and gave an oral judgment. In brief summary, I was not satisfied that the Claimant would be able to obtain a visa within a reasonable timeframe; I was satisfied that a fair trial of the relevant issues could be held with the Claimant participating remotely; and I considered that the prejudice to the Defendants and the administration of justice that would arise by reason of an adjournment would outweigh any prejudice to the Claimant. I directed that the Defendants should use their best endeavours to courier a hard copy of the trial bundle to the Claimant and the Defendants were able to do this in time for the commencement of the trial.

Also at the PTR, I raised with the Claimant the fact that the witness statements he had so far served did not appear to address a number of important matters in dispute. I was concerned that he had not appreciated the effect of the rules (see CPR 32.4, 32.5 & 32.10), namely that he would be unable to give oral evidence on these matters without my permission. I indicated that if he wished to reconsider, he should file and serve a further witness statement, supported by an application for relief from sanctions, which I would consider on the first day of trial. I repeated this in my Order, giving some examples of matters in dispute on which the Claimant might want to address in evidence.

The Claimant did not file any further witness statement and did not make any application to give oral evidence other than that contained in the witness statements he had already filed. I confirmed that this was his position at the beginning of the trial.

C. The parties' pleaded factual cases

The Claimant's Amended Particulars of Claim (read, where necessary with his Part 18 Response and Reply) puts forward the following case.

The Claimant pleads that he was living in Nottingham between October 2005 and May 2006.

In respect of the First Claim, the Claimant pleads that in around February 2006 he felt unwell and was concerned that he may have contracted HIV-AIDS and so attended an NHS walk-in centre in Nottingham (...