Missing evidence

Allen told the court that Lewisham and Greenwich had made a series of late disclosures of documents and emails in the 2022 tribunal after the trust’s main witnesses had given evidence.

This, he said, meant the NHS directors who appeared in the case were commenting on matters “on the fly”.

Allen was effectively cross-examining them with one hand tied behind his back, given he had not seen, or in some cases was not aware of the existence of, the documents and information to which they were referring.

The trust’s barrister, Daniel Tatton Brown KC, downplayed the importance of these late disclosures, but Allen argued they were of critical importance to the 2022 tribunal case.

Day claimed the trust had, several years beforehand, threatened him with “eye-watering” costs, potentially totalling more than £500,000, were the court to find against him. This, he still alleges, effectively forced him to withdraw his claims in an earlier tribunal hearing in 2018.

Allen also told the appeal tribunal that key information on the alleged threats was “permanently” deleted when Janet Lynch, who up until that point had instructed the trust’s lawyers, left Lewisham and Greenwich for another NHS management role later that year.

Lynch’s emails were “permanently deleted” just “four-and-a-half months” after Day issued his detriment claim, which was eventually heard in June and July 2022.

Public statements were ‘detrimental’

Other important documents disclosed late to the 2022 tribunal included trust records of a meeting with then-MP Norman Lamb over Day’s case and briefing letters it had sent to neighbouring NHS trusts and local politicians.

Allen argued these letters, along with a series of public statements about the case that the trust issued on its website, were “detrimental” to Day, given some of the recipients were potential future employers.

However, Tatton Brown argued it was simply “about the management of litigation” and the “PR battle that ensued” after the 2018 case, given the public commentary it had prompted.

The appeal tribunal judge, Clive Sheldon KC, asked Tatton Brown how the letters to other NHS trust directors could not be considered “vitally important” in the context of Day’s case over alleged detriments. He noted they were “directed at various [potential] employers”, asking, “Doesn’t it amplify the [alleged] detriment?”

Tatton Brown said these letters were not initially disclosed because the trust did not consider they had any serious bearing on the detriment claims it was defending in 2022.

Had some of these letters explicitly stated that Day was “a troublemaker”, for instance, then these documents would have been relevant to the detriment case, Tatton Brown contended. “But there was nothing of that sort.”

Conflicting accounts

Allen argued there were also emails missing for the NHS’s key witnesses over critical periods for the case, including those of trust CEO Ben Travis. Travis was recently named in a “prestigious” list for the NHS’s “Top 50 CEOs”, selected by a panel for the Health Service Journal.

Allen told the appeal tribunal that the trust’s late court submissions in 2022 exposed an important discrepancy in Travis’s position over the disputed settlement of the 2018 case.

Travis told the 2022 tribunal under cross-examination that he had informed an extraordinary board meeting held via videolink – a meeting convened while the 2018 action was in train – that he had “wanted the case to run its course”. Allen pointed out that this suggested he was confident in the strength of the trust’s evidence submissions.

But a note from the board meeting, which Allen said “had been withheld from disclosure, its existence having been denied by the respondent for four years”, actually “showed the opposite”. Travis had in fact “stated to the board that he favoured settlement” and that four doctors who were due to be cross-examined in the case over Day’s whistleblowing had “expressed concerns about giving live evidence”.

Allen raised serious doubts over the completeness of the evidence eventually disclosed to the summer 2022 tribunal.

He said that the initials “CD” were missing from searches for the documents Lewisham and Greenwich disclosed as part of its evidence bundle in 2022. This was significant, Allen argued, given that these initials were how Day had been referred to in the 2018 board meeting note.

Day’s barrister also asserted that the trust “had not ever put any effort into obtaining the [relevant] emails from Mr Travis, Ms Lynch and the other doctors whose emails were said not to be available”.

Only four references to Lynch, who Allen said had been referenced “29 times” in Cocke and Travis’s 2022 witness statements, appeared in the “bits and pieces” of late disclosures by the trust that were submitted to the tribunal, he added.

Tatton Brown said no critical evidence was withheld from the 2022 tribunal, despite the “failure[s]” he conceded in the trust’s disclosure practices. He argued that the case’s long duration – running into more than four weeks, rather than the two weeks initially scheduled – had been down to Day “not answering questions put to him” as opposed to the trust’s controversial disclosure practices.

NHS CEO was ‘credible witness’ despite errors

Tatton Brown conceded that Lynch’s emails “certainly should have” been disclosed by the trust at the outset, but he disputed the significance of other disclosures, arguing that some of the documents provided to the tribunal belatedly were “duplicates”.

He also said Travis was found to be “a credible witness” by the 2022 tribunal, “notwithstanding the fact there are errors in his evidence”.

Tatton Brown said that, despite Cocke’s mass deletion attempt and late court disclosures, the 2022 tribunal had not been deprived of any key evidence. He told the appeal tribunal: “The headline point is that, having previously believed that – as had initially been the instruction – David Cocke’s deletions were irretrievable, that turned out not to be the case.

“And a reasonable search was carried out of the reconstituted archive. That strongly undermines the argument, we say, that there’s a damning cache of documents that were never put before the tribunal.”

Legal saga

Last week’s appeal hearing is the latest in a legal saga stemming from a dispute over the NHS’s response to reports of patient safety issues at a South London intensive care unit.

Former health minister Norman Lamb gave evidence to the summer 2022 tribunal hearing in person, while former health and foreign secretary Jeremy Hunt provided a witness statement.

This prolonged case heard a series of claims from Day’s legal team concerning alleged detriments he claims to have suffered during the fallout of his 2018 whistleblowing claim, which he brought against both the trust and another (now-defunct) NHS body.

Day’s whistleblowing ordeal began in 2013 when he reported acute understaffing levels at Lewisham and Greenwich’s intensive care unit. Day claimed the lack of cover at the unit was linked to two avoidable deaths.

The 2022 hearing raised serious questions of fairness and disclosure practices at tribunals when Cocke’s attempted mass destruction of digital evidence came to light. Day unsuccessfully applied to have the case struck out.

Cocke was ultimately not cross-examined, with an unsigned witness statement citing health reasons for his failure to appear in front of the court.

An expert in e-discovery told Computer Weekly last year that any allegedly destroyed emails were still likely retrievable. He also criticised the 2022 tribunal’s apparent lack of rigour, noting key NHS witnesses “were instructed to simply search their own emails” and assertions made by the trust around electronic evidence were largely accepted at face value.

One key ground of appeal, arguing there had been procedural unfairness in the way the 2022 case was conducted, was not admitted at a preliminary hearing last year and therefore was not considered last week.

Lewisham and Greenwich Trust has been contacted for comment.