Can a signed and sealed Order from the Court of Appeal really just be revoked as a clerical error ? (It can when it's my whistleblowing case)

From agreeing to remove the nation's junior doctors from legal whistleblowing protection, to a signed and sealed Court of Appeal order suddenly becoming a clerical error and now more recently a Judge turning a blind eye to 90,000 emails being destroyed during a tribunal hearing hearing (See Computer Weekly coverage).

The judicial actions in my 10 year long whistleblowing case are getting more and more unbelievable and with them so are the explanations that seek to try and explain them. The way my NHS whistleblowing case has been handled by the legal system has now led to even the most conservative of eyebrows being raised. But what is behind it?

Increasing numbers of people have suggested institutional corruption is a problem within the employment tribunal system. Such a suggestion tends to be met with anger and outrage from employment lawyers and Judges. The basis of resisting such a suggestion when its logical tends to go something like this;

We’ve seen nothing to suggest there is any type of corruption or systematic wrongdoing going on. But many people who go through the system are left deeply unhappy and with the sense that it has failed them. Some conclude that it is corrupt. It seemed worth addressing this explicitly — and explaining what we mean when we say the tribunal isn’t corrupt. At the most basic level, you can’t bribe an employment judge. Admittedly we’ve never heard of anyone trying. Yet we’re absolutely sure anyone who did would be immediately reported to the police by the outraged judge.

I don't think for one minute anyone accusing employment lawyers or Judges of corruption are seeking to paint a picture of brown paper bags of money being dropped round the back of courts or at the front of barristers chambers in return for court room favours. It is convenient to say the least for the legal system to interpret allegations of corruption in this way.

The independent panel report on the murder of Daniel Morgan found that the Metropolitan Police was institutionally corrupt but set out a description of corruption that was slightly more sophisticated than brown paper bags of money being dropped off at New Scotland Yard.

"Concealing or denying failings, for the sake of the organisation's public image, is dishonest on the part of the organisation for reputational benefit and constitutes a form of institutional corruption"

It is this definition of institutional corruption that clearly comes into play when one considers the way NHS and other public sector whistleblowing cases are handled by the legal system and certainly applies to my NHS whistleblowing case and my forthcoming appeal being heard in the EAT on 27 February.

So what about that signed and sealed court order in my whistleblowing case that was suddenly revoked as a clerical error. Is that just one of those things that happens in a busy under-resourced system or something more sinister. It seems to me either answers is a possibility.

Can a signed and sealed Court Order just be revoked and dismissed as a clerical error?

There are various legal arguments on this that I am not going to get into. As someone who is a doctor not a lawyer often working in busy and under-resourced circumstances, I can understand the concept of a professional signing something important in error. However, if I did such a thing, I would have to accept the consequences of this as a doctor and couldn't go around calling it a mere clerical error. The other issue would be that such an error would indicate to my patient for whatever reason, that I was not able to give enough thought and attention to what I was doing for them. If they wished to complain I could not just go off in a huff.

When I make this perfectly valid point this is the sort of thing I am met with by the legal system.

The above is Dijen Basu KC in action in a skeleton argument for an unrelated case management hearing of all things that was supposed to focus my wasted cost application on this.

If that particular KC ever puts something like this to me, It will be met with the simple fact that Lady Justice Simler signed the order, so it's her fault and it also indicates the care and attention that she gave my appeal. It can't just be blamed on an office worker.

I accept that what I have set out above might be all there is to the Lady Justice Simler revoked order but the angry and arrogant response from legal system to being challenged on it is not appropriate.

But what was the signed and sealed order about?

The signed and sealed order, before it was revoked, granted me permission to appeal the settlement that brought an end to my whistleblowing case in October 2018.

Any lawyer or Judge knows that a NHS Trust Board and a whistleblowing doctor cannot just be lied to by the lawyers involved in a whistleblowing case in order to get them to agree to a settlement.

It should also be uncontroversial that a whistleblowing doctor when agreeing to a settlement should not be under duress and must have access to impartial legal advice.

After I had settled the case, the NHS Trust Board put into the public domain and to local MPs that I had settled the case freely and that they had made clear to me before I settled the case that the NHS Trust and their lawyers would not pursue me for cost even if I ended up losing the case. They emphasised this point because it was a whistleblowing case.

I responded by providing details of multiple proposed cost applications and a wasted cost application against my former lawyers that I say were used to force me to settle the case and then make an agreed statement saying the NHS acted in good faith.

The NHS responded by denying the cost threats and stating what I said was simply untrue.

Application to set aside the settlement on the grounds of mistake/misrepresentation

In December 2018, I made an application to set aside the settlement on the basis of a mistake/misrepresentation as the NHS were denying that multiple cost threats were used in my case. I also made the point that the NHS was going further and stating that they made clear to me before I settled that they would not pursue me for costs.

The Judge that was allocated in 2018 to deal with my application to set aside the settlement was the now well known, Judge Ann Martin of the London South Employment Tribunal. In June 2022, Judge Martin was reported in the press for turning a blind eye to 90,000 emails being deleted during the main hearing of my whistleblowing case on Jun 2022.

In 2019, Judge Martin dealt with my application to set aside the settlement whilst ignoring our actual ground mistake/misrepresentation and without testing any evidence.

As Judge Martin ignored the actual ground raised to set aside the settlement, I applied for a reconsideration of her decision which Judge Martin has never responded to.

Can appeal courts just make the facts up as they go along?

So without any fact finding or testing of evidence and whilst ignoring the actual ground raised to set aside the settlement you might thing the appeal courts would have something to say about that.

The Employment Appeal Tribunal in the person of Judge Heather Williams KC endorsed the decision of Judge Martin and refused me a full appeal hearing and concluded my settlement was properly made.

As you might expect we didn't accept this for obvious reasons and filed an appeal to the Court of Appeal and it is this proposed appeal that is the context of the signed and seal order granting me permission to appeal that was later revoked as a clerical error.

The significance of the revoked Court of Appeal Order

The mess the lawyers got themselves into settling my whistleblowing case in 2018 is set out in my June 2022 Tribunal statement (more on that hearing here).

The lawyers involved in the tangled web above are household names in the world of employment law. From top KCs to managing partners of big public sector law firms. There is no question that these individuals benefitted from the fact finding process in respect of the settlement of my whistleblowing case being shut down in 2019. Whether it angers Judges or not this is important context to things like court orders becoming clerical errors and 90,000 emails being destroyed during a hearing.

But the truth came out in June 2022

After refusing to scrutinise my settlement in 2018, I was frankly astonished when Judge Martin was the Judge that was in charge of the infamous June 2022 hearing of my case.

The multiple acts of destruction and concealment of evidence that occurred during that hearing puts into context the 'nothing to see here' narrative the legal system is so keen on pushing with my whistleblowing case.

That said embedded in Judge Martin's smeary Judgement of June 2022 hearing are judicial findings that are gold dust in respect of my settlement. When reaching her conclusions, Judge Martin chooses to ignore her own findings in addition to ignoring staggering amounts of evidence and even the deliberate destruction and concealment of evidence.

That said the judicial findings of Judge Martin prove as flawed any suggestion that the 2018 settlement of my case was properly made.

The finding at paragraph 130 on my own former lawyer's conduct;

“Mr Milsom candidly said that some of the emails he sent at the time of the settlement process were not entirely accurate”

The finding at paragraph 123 on wasted costs represents a clear violation of my right to impartial legal advice when agreeing to the settlement. A wasted cost threat is a clear conflict of interest that was hidden from me.

"There was a possibility of wasted costs in relation to the late disclosure of covert recordings the Claimant had made which came out during his evidence."

From paragraph 155, it is clear that the relevant lawyers and NHS managers misled their own Board on what I was saying about costs and my reason for settling my whistleblowing case;

The Tribunal finds that the wording of issue 4.1.(a) (iii) is interesting. The wording is that the Respondent decided not to pursue the Claimant for its legal fees before he withdrew his case. It does not say that legal fees were not discussed in the without prejudice discussions leading to the settlement. However, even taking this into account, the Tribunal finds that it was on settlement that the Respondent decided definitively not to purse costs. The Tribunal considered whether this was something that was substantial or trivial rendering this de minimus and of course, whether this was said because the Claimant made a protected disclosure. The Tribunal finds that in the eyes of the Claimant’s Crowdfunders this would be significant. They inevitably had concerns and questions about why the Claimant settled and did not go on to conclude the case that they had funded. The impression given here is that the Claimant knew that the Respondent was not going to pursue costs when the Claimant was saying that it was the costs matters that meant he settled. The Tribunal finds that this is a detriment.”

Lastly at paragraph 83 there are astonishing judicial findings of the multiple acts of destruction and concealment of evidence that occurred in my case;

We had in our minds the criticism of Judge Kelly as set out above, the admission by the Respondent that there was no instruction to preserve relevant documents, that all emails of Ms Lynch (who was the instructing client in the 2014 litigation) were apparently deleted when she left the organisation, that despite it being categorically stated both in the preliminary hearing and in Mr Travis’s evidence that there were no note of the board meeting that took place to discuss possible settlement of the 2014 claims, a note has now been belatedly produced. Also, the late destruction of documents that may have been relevant, by Mr Cocke.”

The fact Judge Martin and the wider legal system has ignored the significance of the above judicial findings does not change the reality of them in the real world (outside of the closely net community of employment law).

Whilst I am not suggesting the exchange of brown paper bags of money as an explanation for these extraordinary actions, I am sure what I have described is no way to handle an important NHS whistleblowing case.

I will end this article with repeating the definition of institutional corruption offered to the Met by the independent panel report on the murder of Daniel Morgan. This should offer food for thought to lawyers and Judges involved in whistleblowing cases.

"Concealing or denying failings, for the sake of the organisation's public image, is dishonest on the part of the organisation for reputational benefit and constitutes a form of institutional corruption"

More on my appeal to the EAT 27 Feb 2024