Mr S Murly-Cleves v University Hospitals Sussex NHS Foundation Trust: 2305679/2023
EMPLOYMENT TRIBUNALS
Case No 2305679/2023
Between
Mr S Murly-ClevesClaimantUniversity Hospitals Sussex NHS Foundation TrustRespondent
Before
Employment Judge AbbottMr Christopher Edwards (instructed by barrister) for respondentDate 22 July 2024
JUDGMENT
[1]The Respondent’s application for a costs order under Rule 74 of the Employment Tribunal Procedure Rules 2024 succeeds. The Claimant is ordered to pay the Respondent the sum of £18,000 in respect of costs.[2]The Claimant’s application for a costs order in respect of Dr Natarajan’s fee for attending the hearing is refused.
REASONS
[1]On 7 November 2024, this claim came before the Tribunal for a public preliminary hearing primarily for the purposes of determining whether the claimant was disabled for the purposes of the Equality Act 2010. There is a full account of that hearing in the “Record of a Preliminary Hearing” produced that day, but it suffices for present purposes to summarise.[2]It was not possible to determine the question of disability at the hearing because the Respondent had raised genuine concerns over the reliability of a large amount of the medical evidence before the Tribunal that needed to be further explored, in particular by questions being put to the purported author of that evidence: Dr Raja Natarajan.[3]After lengthy discussions with the parties as to how to proceed, I directed that the Respondent prepare, and the Claimant then sign, a consent form allowing Dr Natarajan to answer questions posed and provide documents requested by the Respondent. Given concerns that Mr Cleves had raised about the Claimant’s mental health, I regarded this to be the minimum direct involvement necessary from the Claimant in order to allow things to move forward.[4]Having explained that was the direction I was going to make, Mr Cleves stated that, if such a direction was made, he would wish to withdraw the claim because requiring the Claimant to sign such a consent would involve him taking active involvement in the proceedings, which was contrary to the medical advice. Having given Mr Cleves time to reflect and take instructions, he confirmed that the Claimant wished to withdraw the entire claim. I approved a dismissal judgment on 7 November 2024 confirming the same.[5]On 4 December 2024, the Respondent applied for a costs order. The initial contention was that the Tribunal should conclude that the Claimant withdrew his claim because he had forged certain medical evidence (in particular, a Report dated 6 May 2024 (the May Report)) and, had he not withdrawn, that would have become apparent because of my direction. It was submitted that forgery of a key document is inherently vexatious, abusive, disruptive or otherwise unreasonable behaviour for the purposes of Rule 74(2)(a).[6]After the application, emails were received by the Respondent and the Tribunal purportedly from Dr Natarajan and from colleagues of his at The Private Therapy Clinic. These appeared, on their face, to confirm Dr Natarajan’s authorship of the May Report. The Respondent raised doubts as to the veracity of the correspondence. Further and in any event, the Respondent submitted that even if the communications were genuine, they indicated that the Claimant must have consented to Dr Natarajan sending these emails, which was contrary to the asserted basis upon which the claim had been withdrawn. The Tribunal was invited to find that the deliberate withholding of the wider consent I had indicated that I would direct by withdrawing the claim on 7 November 2024 was done in order to avoid the revelation of wider dishonesty on the Claimant’s part in the pursuit of this claim, and conclude this was a freestanding act of vexatious, abusive, disruptive or otherwise unreasonable behaviour for the purposes of Rule 74(2)(a).[7]The Claimant resisted the application, maintaining that the medical evidence relied upon was genuine and that the reason for withdrawing the claim was as stated at the hearing on 7 November 2024.[8]Having considered the Respondent’s submissions (and responses from Mr Cleves on behalf of the Claimant), I directed that a 1-day video hearing be listed to determine the costs application and issued a Witness Order under Rule 34 requiring Dr Natarajan to attend to give evidence.[9]The hearing went ahead on 14 July 2025. Due to some confusion over the mode of hearing, Mr Edwards attended the Tribunal venue in person – he was set up with a video connection in a separate hearing room to the Judge. Mr Cleves attended by telephone – attempts were made to set him up with a video link, but in the interests of time I ultimately decided it was appropriate and just to proceed with him on telephone only. Dr Natarajan attended by video.[10]Most of the hearing was occupied by Mr Edwards’ cross-examination of Dr Natarajan. There was insufficient time to hear submissions, so I directed that these be provided in writing at a later date. I also directed that, by 21 July 2025, the Claimant send to the Respondent copies of his written (email) correspondence with Dr Natarajan in the period February to May 2024 concerning the preparation of the May Report – this is correspondence that Dr Natarajan referred to in his oral evidence. Rather than doing so, Mr Cleves wrote to the Tribunal on 22 July 2025 requesting an Order against The Private Therapy Clinic requiring it to produce those documents. I refused that application: my reasons were set out in a letter dated 21 August 2025 but, in summary, I held it was neither necessary nor cost-effective to make an order against the third-party recipient in circumstances where the documents ordered to be produced were the Claimant’s own emails and attachments.[11]In its final written submissions, the Respondent accepted that the May Report was not a forgery, but argued that Dr Natarajan’s evidence indicated that the Claimant had significantly and unreasonably influenced or altered its content. The Respondent therefore submitted that doing so, using the May Report to advance his claim, and not disclosing the extent of his influence upon its content was unreasonable behaviour under Rule 74(2)(a). The Respondent also maintained its “in any event” submissions as summarised at paragraph 6 above.[12]For his part, the Claimant (through his father) submitted that Dr Nararajan’s evidence was that he stood by the entire contents of the May Report so there was no undue influence from the Claimant. The failure to disclose the correspondence was because of the Claimant’s health condition meaning he could not take an active role in the case. He also sought an order that the Respondent meet Dr Natarajan’s fee (£1,600) for attending the hearing.
The law
[13]Rule 73(1) defines a ‘costs order’ as follows: A costs order is an order that the paying party make a payment to—(a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or(b) another party or witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing.[14]Rule 74 provides for the circumstances where a ‘costs order’ may or must be made. Rule 74(2)(a) is of most relevance here: The Tribunal must consider making a costs order or a preparation time order where it considers that — (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted […][15]There is a three-stage process. First, I must ask whether there is conduct falling within Rule 74(2)(a); if so, I must go on to determine whether it is appropriate to exercise my discretion in favour of awarding costs against the offending party; and if so, I must quantify the order (Rule 77).[16]Rule 82 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.[17]Costs orders in the Employment Tribunal are the exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council and anor [2012] ICR 420, CA at [7]). 18. ‘Unreasonable’ in Rule 74 has its ordinary English meaning and in determining whether to make an order under this ground, a Tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct: McPherson v BNP Paribas (London Branch) [2004] ICR 1398, CA.[19]Matters of causation may be relevant, per Yerrakalva at [41]: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. ...” Discussion Stage 1: Conduct engaging Rule 74(2)(a)?
Discussion
[20]It is at this stage that I need to make findings of fact as to the parties’ conduct. Having considered all of the written materials before me, the oral evidence of Dr Natarajan, and the parties’ submissions, I make the following findings.a. The Claimant first saw Dr Natarajan (by video) on 22 August 2023 (at which time he had been off sick from work for the prior 2 weeks). From that point in time Dr Natarajan became the Claimant’s treating psychiatrist. At that point in time, Dr Natarajan’s impression was that the Claimant was “suffering from post traumatic stress disorder following a traumatic incident in 2017” which then relapsed “following traumatic experiences in the Army”. This impression was maintained following further appointments on 31 August 2023 and 19 October 2023.b. The present proceedings were presented on 11 October 2023.c. Following an appointment on 2 November 2023, Dr Natarajan recorded that the Claimant felt his “anxiety got worse since the day the nurse at work was critical towards you”. By this time, Dr Natarajan was of the opinion that the Claimant’s proper diagnosis was one of complex PTSD.d. By late 2023 / early 2024, it is evident from the correspondence that the Claimant was discussing with Dr Natarajan the possibility of medical illhealth retirement. Dr Natarajan was supportive of that, producing a summary report for that purpose dated 23 January 2024. Dr Natarajan was not, at that time, aware that the Claimant was pursuing a Tribunal claim against his former employer.e. In around February 2024, the Claimant asked Dr Natarajan to prepare a medico-legal expert report for the purposes of the present proceedings. Dr Natarajan agreed to do so notwithstanding the conflict between his role as treating psychiatrist and as an expert witness for the purposes of Court / Tribunal proceedings. The May Report was the result. Dr Natarajan accepted in his oral evidence that, in hindsight, the conflict was an obvious one.f. Dr Natarajan accepted, and I find, that there were several drafts of the May Report prior to the final version that passed between Dr Natarajan and the Claimant by email. That correspondence is not before the Tribunal because the Claimant has not disclosed it despite my direction to do so. I find based on the evidence of Dr Natarajan that the Claimant made extensive efforts to influence the content of the report in order to best support the positions he wanted to adopt in these proceedings, and that he succeeded in doing so with the result that the May Report was not reliable as an ‘expert report’.g. Whilst I accept that Dr Natarajan was genuinely of the opinion that the Claimant was suffering from complex PTSD, I find that large parts of the detailed drafting of the May Report originated from the Claimant himself (most likely using AI technology to assist drafting). This is demonstrated by several egregious examples: i. The drafting in paragraph 30 (page 16) of the May Report which suggests the complex PTSD was caused by issues in the workplace during the Claimant’s employment with the Respondent, contrast to paragraph 31 (page 17) which is consistent with Dr Natarajan’s earlier letters. Note also the different spelling of “characterized” / “characterised” in these paragraphs which is indicative of there being different authors of these sections of text. ii. Forms of phraseology that I find cannot have originated from Dr Natarajan, such as “it is affirmed that there is not a single moment or period when he could sustain any form of employment”. On the balance of probabilities, this is AI-generated text put forward by the Claimant. iii. The incoherent formatting and paragraph numbering of the report which gives it the appearance of a Frankenstein-like document, with different sections deriving from different sources.h. At the hearing on 7 November 2024, I indicated that I would direct that the Respondent prepare, and the Claimant then sign, a consent form allowing Dr Natarajan to answer questions posed and provide documents requested by the Respondent. I find that the reason given by the Claimant (through his father) to withdraw the claim rather than sign such a consent form – i.e. that to do so would risk serious harm to the Claimant’s mental health – was a false one. It is not a credible explanation given, e.g., the very high degree of involvement that the Claimant had in the creation of the May Report and the fact that the Claimant was able to consent to Dr Natarajan corresponding with the Tribunal and the Respondent once it became clear that the Respondent was pursuing a costs application which he needed to defend. Rather, I accept the Respondent’s submission that, on the balance of probabilities, the true reason was because the Claimant knew that more detailed probing would reveal, sooner or later, that the May Report had been written to a significant extent by the Claimant himself.[21]Having made these findings, I must assess whether Rule 74(2)(a) is engaged.[22]In my judgement, a high degree of fault lies with Dr Natarajan. He failed to recognise the conflict of interest that arose in him providing the report at all, at least in the ‘expert witness’ form that the May Report took. Moreover, having agreed to be an expert witness, and purported in the May Report to be aware of what that entails, he should not have allowed the content of his report to be influenced by the Claimant in the way that I have found it was.[23]However, the faults of Dr Natarajan do not absolve the Claimant of primary responsibility. It was his actions (or actions done on his behalf) that led to a wholly unreliable ‘expert report’ being put before the Tribunal in an effort to support the positions he wished to adopt in these proceedings. In my judgement, these actions (i.e. knowingly facilitating unreliable evidence being put before the Tribunal in furtherance of his claim) were unreasonable. That distorting purportedly independent expert evidence in furtherance of a Tribunal claim is inappropriate and unreasonable should have been obvious to anyone, but certainly should have been to the Claimant and his father, each of whom have held themselves out in online materials as offering legal services (as the Respondent has pointed out).[24]Further, the actions of the Claimant (through his father) on 7 November 2024 were, I find, also unreasonable. The Claimant refused to sign a consent form allowing Dr Natarajan to answer questions posed and provide documents requested by the Respondent because he knew that more detailed probing would reveal, sooner or later, that the May Report had been written to a significant extent by the Claimant himself. He thought that withdrawing the claim would be enough to avoid that but, because the Respondent has pursued this costs application, that has not proved to be the case. The Claimant did not withdraw the claim because of the risks to his mental health of signing a consent form, contrary to what was submitted to me by his father at that hearing.[25]Rule 74(2)(a) is therefore engaged by the Claimant’s conduct as described above.[26]I can deal with the Claimant’s application more briefly. Given my findings, it cannot be said that the Respondent has acted in any way unreasonably in pursuing its costs application and thereby necessitating Dr Natarajan giving evidence. On the contrary, the Respondent has been proved correct to have done so. There is no basis upon which a costs order can be made against the Respondent under the Rules. Stage 2: discretion[27]I must move now to the second stage: whether it is appropriate to exercise my discretion to award costs in this case against the Claimant, recognising that costs awards are the exception rather than the rule.[28]I consider the following factors to be relevant to the exercise of the discretion in this case:a. The egregious nature of the behaviour - knowingly facilitating unreliable expert evidence being put before the Tribunal in furtherance of his claim.b. The apparent legal background of the Claimant and his father, albeit that neither are qualified lawyers in this jurisdiction and do not have experience of Employment Tribunal proceedings.c. The attempt by the Claimant and his father to avoid detection of the Claimant’s undue influence over the May Report by withdrawing his claim on false pretences.d. The high asserted value of the Tribunal claim that the May Report was relied upon to justify (damages sought were in the region of £1m).e. That a degree of fault lies with Dr Natarajan for failing in his duty as an expert witness and allowing the Claimant to unduly influence the detailed content of the May Report.f. That the Claimant does have a genuine mental health condition.[29]I am satisfied that this is an appropriate case in which to exercise my discretion to make an award of costs. In my judgement, the balance of the factors is overwhelmingly in favour of a costs order being made. Ability to pay can be factored in, as appropriate, at the stage of quantification. Stage 3: quantification[30]The Tribunal can make a costs award of a maximum of £20,000 at this stage (Rule 76(1)(a)) and the Respondent limits its claim to that amount notwithstanding it has incurred costs well in excess of that sum. I am satisfied that £20,000 is comfortably at a level of costs that can be regarded as reasonable and proportionate to be incurred by the Respondent in defending the claim since the production of the May Report.[31]The Claimant’s submission focuses heavily on assertions that the Claimant lives entirely on disability benefits (PIP and ESA), that his NHS ill-health pension is held in a protective trust and is not freely disposable, that he has no savings or assets, and that throughout this case he was under a Debt Relief Order (DRO) and therefore any substantial costs award would almost certainly lead to bankruptcy. These are assertions because the Claimant has not given evidence, although written materials have been provided evidencing the Claimant being in receipt of PIP and ESA and that a DRO was made on 8 August 2024. I have some regard to the Claimant’s financial position, but I accept the Respondent’s submission that this cannot be afforded too much weight given the Respondent is already limiting its claim for costs.[32]I also have some regard to the fact that a degree of fault must be laid at the door of Dr Natarajan, but again this cannot be afforded too much weight since primary responsibility lies with the Claimant. Although I do take account of the Claimant’s mental health condition, that cannot itself justify the unreasonable actions he took.[33]Drawing all of the factors together, in my judgement, an appropriate sum for the Claimant to pay to the Respondent in respect of costs is £18,000.[34]Although this is not a matter for the Tribunal but for enforcement, if the Claimant does not consider that it is possible to pay the costs award as a lump sum, he would be well-advised to seek to agree a payment plan with the Respondent. Approved by: