Harding v British Medical Association, Court of Appeal - Queen's Bench Division, January 10, 2017, [2017] EWHC 5 (QB)

Issuing Organization:Queen's Bench Division
Actores:Harding v British Medical Association
Resolution Date:January 10, 2017
 
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Case No: HQ15X03495

Neutral Citation Number: [2017] EWHC 5 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10 January 2017

Before:

MRS JUSTICE MAY DBE

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Between:

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The Claimant appeared in person

Stephen Innes (instructed by Gateley Plc) for the Defendant

Hearing dates: 8 December 2016

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Judgment

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...

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