Susan Linda Kramer v Bedfordshire and Luton Community Nhs Trust
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 2000 |
| Judgment citation (vLex) | [2000] EWHC J0706-15 |
| Date | 06 July 2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | 1997 K No. 264 |
[2000] EWHC J0706-15
IN THE HIGH COURT OF JUSTICE
QUEEN BENCH'S DIVISION
1997 K No. 264
John Foy QC, instructed by Park Woodfine, for the Defendants
Frederic Reynold QC, instructed by Dean Wilson Laing, for the Claimant
Hearing: 14 June 2000
The application
This is an application by the defendants, Bedfordshire and Luton Community NHS Trust, (i) to strike out all or part of the amended statement of claim as an abuse of the court's process pursuant to Part 3.4(2) (b) of the CPR and/or (ii) for summary judgment pursuant to Part 24 of the CPR.
The defendants' principal contentions are: (1) that the claimant is precluded from re-litigating issues already litigated, or which could or should have been litigated, in earlier proceedings; (2) that the doctrine of issue estoppel precludes the claimant from relying on the matters alleged in paragraph 6B (a), (b) and (d) of the amended statement of claim; (3) that in any event the claim for damages pleaded in paragraphs 6 to 6C of the amended statement of claim is bound to fail in the light of Johnson v. Unisys Ltd [1999] I.C.R. 809; and/or (4) that the entirety of the claimant's case has no realistic prospect of success.
Factual background
The claimant was appointed as a consultant in child and adolescent psychiatry in the service of the North West Thames Regional Health Authority in 1987. The defendants succeeded that Authority as the claimant's employer with effect from 1 April 1992. It is common ground that difficulties arose from the beginning of 1994 when the claimant was Consultant Team Co-ordinator of the Child and Family Psychiatry Service based at the Liverpool Road Health Centre.
According to the claimant, these difficulties were caused, principally, by (i) the failure of the defendants to resolve the problems caused by poor working relationships and the absence of clear lines of responsibility within the Team; (ii) the failure of the defendants to provide sufficient staff or assistance to enable the claimant to cope with her workload; and (iii) harassment of the claimant by the management of the defendants over a period and specifically at a meeting on 8 August 1994.
According to the claimant, these matters caused her to suffer a stress related illness in August 1994. It is common ground that she was off work for 5 weeks in October 1994.
On 24 November 1994, some three weeks after her return to work, the defendants suspended the claimant from her duties on full pay with immediate effect.
In a letter of 29 December 1994 Dr Pinto of the Defendants invited the claimant to attend a meeting with him the following month "to respond to evidence that [her] person conduct [was] in question", but this letter did not give details of the misconduct alleged. An investigation report was in fact completed on 30 December 1994, and a summary of the allegations against her was apparently sent to the claimant shortly afterwards. However, she declined to attend an interview with Dr Pinto on the ground that she had not been sufficiently informed of the content of the conduct complained of.
On 9 February 1995 the Chief Executive of the defendants wrote to the claimant preferring charges of serious personal misconduct in the following terms:
"Dear Dr Kramer
I have received an investigation report from Dr R Pinto which raises the following points about your personal conduct.
Regular and frequent absences from the department. It would seem that you were almost invariably absent on Thursday afternoons and the whole of Fridays for many months. There were other frequent absences with mention of 'meetings' though it has been difficult to find evidence of your attendance at these.
An exploration of the numbers of patients that you have dealt with in relation to other members of the Team suggest that you have dealt with substantially fewer than any of the others and that your waiting list, which on occasion amounted to several months, was very significantly longer that other members of the Team. There was no evidence that this was necessary given your absences from the department.
The secretarial staff at Liverpool Road have described a number of areas which I would wish to explore with you. These include:-
a. The view that matters of a personal nature took up considerable amount of your time and theirs and the pre-eminence that you allocated to personal matters in contradistinction to matters of a professional nature.
b.In-appropriate and indecisive instructions which included your instructions to secretaries to back date letters, exclude passages that you had dictated and alter messages and instructions in a manner that left them confused and resentful.
c.The rude and peremptory manner in which you addressed them on occasion.
Complaints from Social Services and other professional bodies. Senior members from Social Services have complained that your delay in seeing clients referred from their service and the negative working relationships with a number of Social Services personnel persuaded that department to refer children and families elsewhere. Other professionals including Dr Eliman and head teachers from school in Luton have expressed concern about long delays and complained about the service you have offered.
Difficulties with team co-operation. Most members of the team at the centre have complained about a general lack of co-ordination and your inability or unwillingness to contribute in a positive fashion to working together. This is despite sustained efforts to help you clarify your role. This culminated in a statement you apparently made on 9th November 1994, that you would not be attending future meetings of the team.
Specific examples of unusual behaviours, eg on one occasion you made yourself unavailable for a meeting with Pete Morris by barricading yourself in an office and then asking the secretaries to push any messages for you under the door.
These matters suggest serious personal misconduct and I have decided to convene a meeting in accordance with the Trust's Disciplinary Procedure to discuss them.
As the meeting may result in disciplinary action you are advised that you are entitled to bring a friend or trades union representative. I have copies this letter to Mr Colson who has been acting on your behalf, for his information.
I enclosed a copy of Dr Pinto's investigation report and statements as well as a copy of the Trust's Disciplinary Procedure.
I would advise you that these matters may be viewed as serious misconduct and could result in dismissal.
I have arranged an all day meeting on Thursday 23 rd February 1995 in the Conference Room at Union Street. Please let me know if this is not convenient for you.
I will be calling witnesses. Please let me know if you will be calling any witnesses.
Yours sincerely
[signed]
Valerie Harrison
Chief Executive"
The disciplinary hearing set for 23 February 1995 was postponed at the request of the British Medical Association, who were then acting for the claimant. There was correspondence between the parties relating to the supply of further information about the disciplinary charges, and the hearing was re-fixed for 6 April 1995.
On 27 March 1995 the defendants' solicitors made a without prejudice offer to settle the dispute, essentially offering the claimant early retirement on the ground of redundancy. The hearing fixed for 6 April was adjourned to 26 April 1995 to give the claimant a chance to consider that offer.
On 20 April the claimant's solicitors indicated that she was willing to accept the offer subject to certain conditions. On 21 April 1995 the defendants' solicitors replied setting out the extent to which they accepted those conditions, and indicating that their offer as thus elaborated was open for acceptance until the morning of 25 April.
On 25 April 1995 the claimant's solicitors sent a fax to the defendants' solicitors stating that "Dr Kramer wishes to accept your client's offer of redundancy on the terms set out in the BMA's letter of 20 April 1995 and your letter dated 21 April 1995. Our client is willing to sign a compromise agreement in accordance with Section 140(2) of the Employment Protection (Consolidation) Act 1978 in full and final settlement of her claim, but excluding any claim for personal injury and accrued pension rights."
Following receipt of this fax, the defendants immediately delivered a letter to the claimant's home confirming that, with effect from 25 April 1995, her contract had been terminated on the ground of redundancy, and setting out the payments due to her. Also on the same day the defendants' solicitors sent the claimant's solicitors drafts of a reference and of a letter to professional colleagues in terms consistent with their earlier letter of 21 April 1995.
The claimant's solicitors replied on 27 April 1995, stating among other things that the claimant anticipated that her employment would not be terminated until the terms of the compromise agreement were finalised. Although they did not expect any great delay, the claimant's solicitors requested and that she should be reinstated until that was done.
On 18 May 1995 the defendants' solicitors sent a draft compromise agreement. On 15 June 1995 the defendants wrote directly to the claimant asking her to sign the compromise agreement and a form relating to her pension rights. The claimant did not sign these documents.
On 30 June 1995 the claimant's solicitors wrote to the defendants' solicitors contending that the defendants' letter of 25 April 1995 terminating her employment on the ground of redundancy amounted to a wrongful repudiation of her contract of employment, that she remained willing to perform...
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