Hassan v Sandwell & West Birmingham Hospital NHS Trust [2006] EWHC 2407 (QB)

[2006] EWHC 2407 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue (BIRMINGHAM DISTRICT REGISTRY)

Friday, 29 September 2006

Before

THE HONOURABLE MR JUSTICE SILBER

Between

HASSANClaimant

SANDWELL & WEST BIRMINGHAM HOSPITAL NHS TRUSTDefendant

The claimant appeared in person. for in person

Jack Mitchell (instructed by Higgs & Sons) for defendant.

Hearing Hearing Date: 29 September 2006

JUDGMENT

Date 2006-09-29

I. Introduction

[1]Dr Rashid Quazi Hassan ("the claimant") claims damages from Sandwell & West Birmingham Hospitals NHS Trust ("the defendant") on the grounds that two consultants employed by them in the Accident and Emergency Department ("the A&E Department") at the Sandwell Hospital namely Mr Colin Holburn FRCS and Mr Jonah Rizkalla FRCS (who I will refer to collectively as "the two consultants") gave inaccurate and untrue references in relation to him in and after June 1997. The case of the claimant is that he has not worked since August 1997 because of the inaccurate and untrue references relating to him and which were given by the two consultants. His claim is founded on allegations of breach of contract, of negligent misrepresentation and of breach of his human rights. These claims are denied by the defendant.

[2]The claimant has quantified his loss at more than £ 2,000,000 but quantum will only be considered after liability and causation have been determined and these are the two issues with which I am now concerned.

[3]The claimant had originally brought in this action similar claims not only against the defendant but also against the two consultants in which he had also claimed damages for defamation and malicious falsehood not only against the defendant but also against the two consultants. On 24 March 2004, Mitting J struck out the claims for defamation and malicious falsehood against these three defendants as well as striking out all the claims against the two consultants. At the start of the hearing, the claimant, who appears in person, applied for permission to amend his pleading so as to claim damages for negligent misrepresentation against the defendant. Mr. Jack Mitchell, counsel for the defendant did not oppose this application, which I granted. The claimant also sought permission to re-amend his claim so as to reinstate his claims against the two consultants which Mitting J had struck out in this action. I will return to consider this application in paragraph 150 below as this application as against the two consultants is opposed.

[4]The claimant has also brought proceedings against the defendant in the Employment Tribunal but they have been stayed. More recently, the claimant issued fresh proceedings not only against the defendant in the present action but also against the two consultants, the solicitors and the counsel, who represented the defendants as well as against four employees of the Court Service, who work in the Birmingham District Registry. I am not concerned with resolving that claim or various other claims brought by the claimant against various different hospitals at which he has worked. At the end of the hearing, I reserved judgment. Because of the impending court vacation and the unavailability of counsel, it was unfortunately not possible to fix a hearing date so as to hand down this judgment until 29 September.

II. An Overview

[5]The claimant, who was born on 19 September 1961, studied medicine at the Nishtar Medical College in Pakistan and he graduated in 1987 after completing his internship. The claimant worked in various hospitals in Pakistan until mid-1989 when he then undertook various post-graduate courses and qualifications in Karachi before arriving in Edinburgh in 1990. In Scotland, he completed the first part of his examination for the qualification of Fellowship of the Royal College of Surgeons ("FRCS") before returning to carry out various placements in Pakistan until 1993.

[6]In September 1993 the claimant returned to Edinburgh to participate in the Overseas Doctor Training Scheme ("ODTS") in order to complete the FRCS examinations at the Royal College of Surgeons of Edinburgh ("the Royal College"). Unfortunately, according to the claimant, there were problems with the paperwork and this delayed the commencement of his training. During this period, the claimant had been advised to try for the second part of the Royal College examination in Edinburgh even though he considered that he had not been prepared for it.

[7]According to the claimant in March 1994, an employee of the Royal College in Edinburgh told him that he was not going to get a training placement and that he should seek any jobs that he could obtain. The claimant then became a Senior House Officer in the Accident Emergency Department at Brook General Hospital in London from 18 April 1994 until 30 September 1994.

[8]On completion of this assignment, the claimant went to Wick in late 1994 as there was a well-known tutor there called Mr Dutta. It was hoped by the claimant that he would relieve a Senior House Officer, who was then working there, as this would provide a suitable job for him. Unfortunately, this job did not materialise.

[9]The claimant then returned to Edinburgh and had various interviews. He did, however, obtain a job at the Victoria Hospital in Blackpool where he was a Senior House Officer from the 2 January 1995. Unfortunately, the claimant was dismissed from this job after two weeks and when he brought a claim for unfair dismissal, this was held by the Employment Tribunal to be time-barred. I will have to return to consider the circumstances in which the claimant's employment in Blackpool terminated as it is a subject of some controversy and of some importance in understanding the case for the defendant.

[10]The claimant did not work as a doctor for the rest of 1995 but between February and August 1996, the claimant was employed as a Senior House Officer ("SHO") in the Department of Surgery at Hammersmith Hospital. This job came to an end in August 1996 when according to the claimant after the hospital had been inspected by the Royal College of Surgeons of England, it was recommended and decided that the claimant's post should be abolished. On 24 February 1997, the Royal College wrote to the claimant stating that it had received a report from the Hammersmith Hospital and that Mr. Newsam of the Royal College "would now be quite happy to support you in the surgical post ...in Dunfermline". As I will explain in paragraph 144 below, the claimant attaches great importance to this letter and the date on which it was sent as well as the fact that the Royal College continued its sponsorship of the claimant after it knew that the claimant had been dismissed by Victoria Hospital.

[11]In March 1997, the claimant applied for a fixed-term position of "Locum Senior House Officer" in the A & E Department of Sandwell Hospital which was a hospital run by the defendant. He obtained this job and he worked there from 11 April 1997 until 5 August 1997, which was when his contract expired by effluxion of time. He was not asked to continue working in that position and I should explain that it is common place for positions of SHOs to be for non-renewable periods of six months.

[12]The supervising consultants of the claimant in the A & E Department at Sandwell Hospital were the two consultants, whose conduct in writing references relating to the claimant is the subject of the present claim. It is clear that in and after June 1997 onwards, each of the two consultants gave references on the claimant especially to the General Medical Council ("GMC") in June 1997 ("the GMC references"), which, according to the claimant, contained statements which "were not true and accurate". The claimant's evidence is that he has not been able to obtain employment as a doctor since August 1997 on account of these untrue and inaccurate statements made by the two consultants in references relating to the claimant. There are major disputes which I must resolve relating to the truth and accuracy of the references given by the two consultants and in particular the GMC references as well as the effect of such references on the claimant's ability to obtain subsequent employment as a doctor.

[13]As I have explained, the claimant was seeking to pass the examinations required to become a FRCS. The exams comprised of three parts, namely Part A, Part B and Part C. The claimant had passed Part A before he was employed by the defendants. In order to pass Part B, the claimant needed to have done various Senior House Officer jobs in different disciplines. During the period of time covered by the present claim, the claimant was hoping to pass Part B.

[14]Unfortunately, the claimant failed to pass the Part B examinations of the FRCS examinations set by the Royal College on eight occasions from October 1993 until about the beginning of January 1998.

[15]In order to obtain employment, the claimant as with any other medical practitioner had to be registered by the GMC. The claimant as an overseas qualified doctor properly claimed limited registration for the jobs which he obtained as a result of being a participant in the ODTS with the Royal College. As the claimant's sponsors, the Royal College had to sponsor and support him as otherwise he could not have obtained limited registration with the GMC and any job that he might have been offered. Without this sponsorship, the claimant as a doctor qualified overseas would have been unable to obtain registration with the GMC unless he had obtained approval by the Professional Linguistics Assessment Board ("PLAB").

[16]This form of approval by the PLAB was an alternative way by which the claimant would have been able to obtain registration as a doctor. In other words, to obtain registration, the claimant needed either PLAB approval or to be sponsored by a Royal College under the ODTS. The claimant chose the latter course and indeed that was how he obtained limited registration to act as the SHO in the A & E Department at Sandwell Hospital and in the other earlier posts to which I have already referred. Even after the Royal College decided that it would not continue to sponsor the claimant, he did not try to obtain approval by the PLAB.

[17]While still employed by the defendant in the A & E Department at Sandwell Hospital, the claimant a saw an advertisement by the defendants for the post of SHO in Plastic/General Surgery at Sandwell Hospital placed. This post was to commence on 6 August 1997, which was after the end of the claimant's employment in the A &E Department. On or about 15 July 1997, the claimant applied for the post.

[18]According to the claimant, at or about the time of this application, he had an informal interview with the prospective employing consultant at Sandwell Hospital, who was Mr Michael Porter FRCS. At this informal interview which had been arranged at the claimant's request, a discussion took place about the post and about the claimant's experience and training interests. In answer to a question from Mr Porter, the claimant explained that the two consultants would be his referees.

[19]The claimant did not obtain this job and there is a substantial dispute as to why his application was unsuccessful but he considers the reason why he was unsuccessful was because of the oral inaccurate and untrue reference of Mr. Holburn.. According to the claimant, this oral reference given to Mr. Porter by Mr. Holburn was inaccurate and untrue. Mr Porter's evidence is different and, as I will explain in paragraphs 133 and 134 below, he stresses that the claimant would not have been offered the post because his experience and aspirations were much inferior to those of the doctor who was subsequently appointed.

[20]On 10 June 1997, the GMC wrote to each of the two consultants asking each of them for a reference of the claimant and to address certain specific points. The two consultants each sent the GMC references on the claimant to the GMC. The claimant contends that each of these references was untrue and inaccurate with the consequence that he has been unable to obtain any employment since he ceased to work for the defendant.. This contention is strongly disputed and I will return to consider this issue in sections V and VI below.

[21]On 14 August 1997, the claimant wrote to Mr JE Newsam, who was the Director of ODTS at the Royal College, stating (with my emphasis added in bold) that: "My recent contract [with] Sandwell Healthcare terminated on 05/08/97 and I decided not to continue with them. My consultants at Sandwell General were being selfish and instead of supporting me for a surgical job wanted me to continue in A & E. Surgeons at Sandwell, who had some awareness about my work, visited department of casualty, along [with] medical staffing in order to ask for me for a vacancy that had arisen in surgery. Colin Holburn, who is a graduate of Edinburgh, told them that my services were required in A & E. Clinical tutor of the hospital and admin also conveyed me similar messages. I refused to continue and they had to advertise the job of A & E, very recently".

[22]In that letter, the claimant stated that he would need: "...a certificate of limited registration in order to probe jobs on my own".

[23]Mr Newsam replied by a letter dated 19 August 1997 explaining that this letter from the claimant together with the reports of the claimant's supervising consultants, who were the two consultants, would be placed before the ODTS sub-committee, "who will decide if you should be granted further sponsorship". The claimant, of course, required sponsorship by the Royal College in order to obtain the limited registration from the GMC, which was a pre-requisite for him obtaining and accepting the hospital jobs, which he sought.

[24]On 2 February 1998, the claimant wrote to Mr Newsam explaining that he, that is the claimant, had spoken to the surgical tutor of the Royal College of Surgeons of England at Hammersmith Hospitals "who agreed that I can explain to you the matters under question without mentioning the names of the individuals or the patient under question". The claimant then dealt with the matters, which had caused concern.

[25]On 26 February 1998, a meeting took place of the Training Committee of the ODTS of the Royal College and the following entry appears in its minutes with my emphasis added: "Mr Newsam gave brief reports on complaints against the two doctors. One doctor was dismissed for gross misconduct but the General Medical Claimants had... left it to the College as to whether they wished to continue his sponsorship or not. Mr D A D Macleod had interviewed this doctor and recommended to him that he went back home. He, however, is applying for jobs at the moment. The other doctor had also been guilty of misconduct of a similar nature and Mr Newsam sought advice as to what action should be taken. It was unanimously felt that sponsorship should be withdrawn. It was decided that a brief report should be prepared for Council for a final decision. RESOLVED: The Training Committee recommended unanimously that sponsorship should be withdrawn from Dr R Hassan and Dr. ...".

[26]On 5 March 1998, Mr Newsam on behalf of the Royal College wrote to the claimant explaining that his file had been considered at the Training Committee Meeting and "after a long discussion it was decided that a decision on continued sponsorship should be made by the Council of the College. Their next meeting will be on 3 April and your case will be presented then".

[27]By another letter written to the claimant on the same day, Mr Newsam explained that the Training and Standards Committee of the Royal College: "will probably send the Council a summary of the reports given on you after the post you have held. Although we have already had several letters of explanation from you I think it would be very helpful if you could prepare a summary, amounting to not more than one side of A4, listing your version of the events since you came to this country. This will enable the Council to look at the problem from both sides".

[28]The claimant duly sent this document to the Royal College and the claimant was informed by the Royal College that its Council at its meeting on 8 May 1998 had resolved that the claimant: "should not be readmitted to this College's [ODTS] and that the General Medical Council, the Home Office and the [ODTS] Directors in the other Royal Surgical Colleges should be made aware of this resolution" .

[29]In the course of the hearing in front of me, the claimant has made a series of serious allegations against the Royal College, which I will have to consider later. He was asked in evidence why he did not take the PLAB, which, as I have explained was the alternative way in which he as an overseas trained doctor could obtain registration. The claimant explained that such a course would not be of practical use to him because it would take one or two years to prepare for it as he would be tested in basic subjects. The claimant believed that in any event preparing for such exams was not as beneficial for him as obtaining practice as a doctor working in hospitals. He also stated if he had done the PLAB course, there would have then been a gap of two years on his curriculum vitae when he would not have on any practical experience, which he regarded as being of particular or of crucial importance to him.

[30]The claimant contends that the two consultants each wrote separate references for him each of which was "not true and accurate" but this criticism of the references is strongly denied by the defendants. The two consultants each gave references to the GMC and if they gave any further references on the claimant they would have been along the lines of the references given to the GMC. There are many disagreements between the parties. The issues which have to be resolved by me in this case can be summarised as falling under the following headings:(a) the reliability of the evidence of the main witnesses, namely the claimant, the two consultants and Mr. Porter;

(b) whether the references given by Mr. Rizkalla relating to the claimant was true and accurate;

(d) whether the references given by either consultant relating to the claimant had "racial overtones and/or was racially motivated and discriminatory";

(e) whether any aspect of the references given by either consultant relating to the claimant was a negligent misstatement;

(f) whether the remarks made by the two consultants in the references relating to the claimant violated the claimant's human rights;

(g) whether anything said or done by either of the two consultants relating to the claimant was the effective cause of the claimant not getting the job for which Mr. Porter was advertising in the Plastic Surgery Division;

(h) if either of the references prepared by the two consultants relating to the claimant was untrue or inaccurate, what significance did these references have for the Royal College in resolving to end the claimant's sponsorship?

(i) whether the defendant has breached the implied term of trust and confidence owed to the claimant; and

(j) whether the claimant should be given leave to re-amend his claim so as to reinstate the claims made against the two consultants.

(i) Introduction

[31]Apart from Mr. Porter, the only witnesses who gave evidence were the claimant and the two consultants. Both the claimant and Mr. Jack Mitchell, counsel for the defendant, contend that only their side's evidence was reliable and that I should reject the opposing sides evidence.

[32]The claimant and the three consultants were cross-examined. They were all questioned about events which occurred in the main in 1997 and the relevant references were all written at about that time. None of them would or could have realised in 1997 that they would be questioned about these matters in court almost nine years later. The present proceedings were not started until April 2003. A further difficulty is that many of the defendant's documents were destroyed in an extensive fire at Sandwell Hospital, which occurred in about 2002.

[33]The claimant contends that as early as June 2000, the defendant knew that the accuracy of the references of the two consultants was "actively in question". Even if that is correct, a professional man could not in my opinion be expected in June 2000 to recall all the information which caused him to write a reference three years earlier especially if at the time of writing the reference, the writer of it had no particular reason to keep it in his mind. The hospital documents would only record the dealings of the medical professionals with their patients as well as the treatment given to them but they would not relate to matters such as the need for supervision for a particular doctor. Even if there were documents relating to the matters set out in the references of the two consultants, there was the extensive fire at Sandwell Hospital to which I have already referred. (ii). The Claimant

[34]As I have explained, the claimant has not been employed as a doctor since he completed his contract with the defendant in 1997. He is totally convinced that the reason why he has been unemployed is the contents of the references on him supplied by the two consultants, which he regards as being inaccurate, negligent and the result of discrimination against him. In considering the reliability of the evidence of the claimant, I have not drawn any conclusions or inferences adverse to the claimant from complaints made to the defendant about the claimant after he had left the defendant's employment. These complaints were made after the two consultants had written their references to the GMC relating to the claimant and furthermore the claimant had no opportunity to comment on the complaints at the time when they were made

[35]In appraising the evidence of the claimant, I have taken into account the facts that he appeared in person and that this is clearly a very important and stressful case for him. I gave him regular breaks when he was cross-examining and also when he himself gave evidence. I also impressed on him repeatedly that he must not regard himself as being under any time pressure. When he raised irrelevant matters, I tried to focus his attention on the issues raised by the pleadings. The claimant had obviously gone to great lengths to prepare his case, which he presented carefully, clearly, courteously and comprehensively. He also produced a particularly impressive closing written skeleton argument which he then supplemented with oral submissions.

[36]At the end of the day, I reached the very clear conclusion that the claimant was so convinced that he was the victim of grossly unfair and inaccurate references written by the two consultants which he considered had led to the end of his medical career that he was and has in the past been prepared to say anything which he thought would help his case. For example, he made serious criticisms of those who he held responsible for his problems even though it became very clear that he simply could not justify those strictures.

[37]For example, during the hearing, the claimant called the Royal College a "factory of fabrication" and he said that it was made up of "Mr. Holburn's uncles". He also made allegations of racial and religious discrimination against the two consultants which, as I will explain, could not be and were not substantiated in any way whatsoever. A significant theme of the claimant's case and of his evidence was that the Royal College had an agenda of its own to end its sponsorship of him. The claimant was unable to call or even point to any reliable evidence whatsoever to justify these very serious allegations, which formed the basis of his case. I consider that the Royal College very properly went to great lengths to ensure that the claimant was given every opportunity to put forward his case.

[38]The claimant stated that the minutes of Royal College's Training Committee were "totally unfounded and incorrect" even though he was neither present at the meeting nor did he adduce evidence from anybody who was present at the meeting. I will explain why I unhesitatingly reject these complaints, which have no evidential basis whatsoever.

[39]Unfortunately, the claimant in the past gave seriously incorrect information to his sponsors, the Royal College, at a time when he must have appreciated that the truth would jeopardise or harm his career. I refer to the equally disturbing feature of the claimant's evidence which related to how he incorrectly reported to his sponsors, the Royal College, on different occasions, very important information on the circumstances in which his employment with the Victoria Hospital in Blackpool ceased. He now accepts that he was summarily dismissed but that is not what he told the Royal College on earlier occasions when he put forward totally inaccurate accounts. The claimant initially wrote to the Royal College on 14 March 1995 explaining the circumstances in which his employment with the Victoria Hospital in Blackpool ended when he stated (with my emphasis added) that:

[40]On 27 April 1995, the Honorary Secretary of the Royal College wrote to the claimant about the circumstances in which the claimant's employment with Victoria Hospital in Blackpool terminated stating (again with my emphasis added) that:

"The reason given by you was that you resigned on account of a painful foot which prevented you working. I have however heard from the Director of Personnel at Blackpool Victoria NHS Trust that, following a complaint made against you, a formal disciplinary hearing was held, which resulted in your immediate dismissal without notice on the grounds of gross misconduct. I understand that your letter of resignation was handed into the Trust after their letter of dismissal had been delivered to your residence. It was noted that your resignation letter has been pre-dated. I would be very grateful if you would let me have your reactions, as it would clearly be extremely difficulty (sic) for this College to continue to sponsor you in the light of this information."

[41]The claimant duly replied to the Royal College by a letter dated 3 May 1995 in which he explained that there was a disciplinary procedure about which he explained his "irrelevance, dissatisfaction and mistrust". He stated in that letter (with my emphasis added) that: "I am unaware of any dismissal granted at all... As this situation did not challenge my professional competency or conduct and apparently did not pose any serious threat to my career either so I remained decided to keep quiet and get out of the situation smoothly to avoid any confrontation with the system".

[42]The Royal College responded in a letter dated 18 May 1995 in which it was said that the Royal College had received a copy of the letter of dismissal from the Chief Executive of Victoria Hospital in Blackpool dated 7 February 2005 and (with my emphasis added) that the Blackpool Victoria NHS Trust:

".. have also indicated that you have continued to attempt to contact the medical student in question until at least a week ago, although you stated to me that you had only met the girl, subsequent to your leaving Blackpool Victoria Hospital , on one occasion, and that was by accident in London. At present, I cannot recommend to our [ODTS] that they continue to act on your behalf, but I am, of course, prepared to hear what further explanation you may have"

[43]The claimant responded in a very lengthy letter explaining that the complaint against him was that he had harassed a medical student and that he was negotiating with the Blackpool Victoria NHS Trust. Mr. I.B. Macleod responded in a letter to the claimant dated 19 June 1995 explaining that: "the College is still in difficulties regarding continuing sponsorship in view of your earlier departure from the post in Blackpool and would like to be kept informed of your negotiations with the Blackpool Victoria NHS Trust".

[44]By a further letter dated 25 September 1995, the claimant informed the Royal College that there had been a hearing in the Employment Tribunal of his claim against Blackpool Victoria NHS Trust on 22 September 1995. At that hearing, the claimant's case had been dismissed on account of his delay in bringing it. The claimant explained that the Employment Tribunal "held the view that I had wasted time by writing multiple letters to the Chairman of the Blackpool Victoria Hospital NHS Trust & hence got out of time"

[45]I will have to return to consider the impact of the claimant's dismissal by the Blackpool Victoria NHS Trust on the Royal College's attitude to the claimant when I consider Issue H but the relevance of this correspondence on the issue of the claimant's credibility is substantial and self-evident. The claimant initially sought in his letter of 14 March 1995 to give the impression to the Royal College that he had resigned because of an accident to his foot and he explained that he enjoyed a "good relationship with my consultants and colleagues" whereas the true position was very different as he had been summarily dismissed after a disciplinary hearing. The second account was given by the claimant to the Royal College was in the letter of 3 May 1995 when in answer to the Royal College's statement that the Director of Personnel at Blackpool Victoria NHS Trust had informed the Royal College that he had been the subject of an "immediate dismissal... without notice on the grounds of gross misconduct". On that occasion, the claimant explained that he was "unaware of any dismissal" and that "this situation did not challenge my conduct". In my view, the claimant had quite deliberately sought to conceal the truth by giving false explanations on more than one occasion to his sponsors as to why he left his employment so speedily.

[46]These statements by the claimant have to be considered against the background that the claimant was reporting matters of very substantial (if not crucial) importance to the Royal College, who were his sponsors and who would have to decide whether to continue his sponsorship. There is no possibility that the claimant could have been mistaken in his recollection as to why his employment in Blackpool was terminated and it is abundantly clear that he knew that he was telling the Royal College something which he definitely knew was untrue. The claimant is intelligent enough to have known that if he told the Royal College the truth (i.e. that he had been summarily dismissed), it is highly probable that he would have lost his sponsorship or at least the Royal College would have been very displeased with him.

[47]I have concluded that the claimant cannot be regarded as a reliable or truthful witness on the issues raised in this action. He was prepared on more than one occasion to give inaccurate evidence to his sponsors, the Royal College, relating to the termination of his employment in Blackpool by the Blackpool Victoria NHS Trust and also to make false and very serious accusations in the present proceedings against the two consultants as well as against the Royal College without having any supporting evidence. He behaved in this way simply in order to further his case. For the purpose of completeness, I should add that if (which is not the case) I had been in any doubt that the claimant was an unreliable witness, I would have reached the same conclusion in the light of:(a) the absence of cogent reasons for his delay in commencing the present proceedings. As Mitting J explained when striking out part of the claims in the present action there was "clear evidence that claimant knew by 2000 at the latest of the gist of the complaint that he wished to make" but he only brought the present claim in 2003 without being able to give a cogent reason for this delay;

(b) the claimant failed to include his placement in Blackpool in his curriculum vitae which he gave to the defendant . His explanations for this serious omission were totally unconvincing and I conclude that he decided to omit reference to his employment in Blackpool as it would or could have led to the discovery by a prospective employer of the claimant of the important and very damaging fact that the claimant had been summarily dismissed for misconduct; and

(c) the evasive way in which he failed to answer questions or was evasive in answering them when he was being cross-examined. (ii). Mr Rizkalla

[48]Mr Jonah Rizkalla explained in evidence that he managed the defendant's A & E Department at Sandwell Hospital jointly with his colleague Mr Colin Holburn, who was the actual Head of the Department. Apart from holding the usual medical qualifications, Mr Rizkalla is a Fellow of the Royal College of Surgeons and a Fellow of the Faculty of Accident and Emergency Medicine. He came to the United Kingdom from his native Egypt in 1974 and his expertise lies in accident and emergency work. He has been employed by the defendant since January 1995.

[49]In his evidence, the claimant contended that Mr Rizkalla discriminated against the claimant on grounds of race, colour and religion. I should point out that the Mr. Rizkalla is a Coptic Egyptian whilst the claimant is a Pakistani Muslim. No evidence was adduced by the claimant to show or even to indicate in any way whatsoever that Mr Rizkalla's judgment of the claimant or his acts towards the claimant was influenced by matters of race, colour or religion. I reject those submissions especially as it is noteworthy that Mr Rizkalla initially selected the claimant for the position in the A & E Department at Sandwell Hospital and then later he also permitted the claimant to be paid at a higher rate than that to which he was entitled as a SHO when he continued to work when she was entitled to be on holiday. When he made those decisions, Mr Rizkalla must have been aware of the claimant's race and colour and he would probably have guessed the claimant's religion in the light of his race, nationality and colour.

[50]Mr Rizkalla gave evidence clearly and fairly. It was suggested by the claimant that as it had been announced shortly before Mr. Rizkalla gave evidence that the defendant was about to make 800 redundancies, Mr Rizkalla must have been very concerned that he might be one of those who would be made redundant with the result that the fear of redundancy would have influenced him into giving evidence supportive of the defendants even though it was untrue I do not regard there to be any substance in that allegation especially as Mr Rizkalla explained that he has already reached the age of 60 when he can retire and that it is only a few years before he reaches the compulsory retirement age of 65. As he said in his evidence, he is not bothered if he is made redundant.

[51]It is very significant that Mr Rizkalla's oral evidence at the trial of this action was in accordance with both his witness statement made in October 2005 and with the pleadings of the defendants which were served earlier. It is not suggested that at these earlier times, there was any threat of redundancy hanging over the head of Mr Rizkalla. I totally reject the suggestion that his evidence was anything other than truthful and that a threat of redundancy might have influenced his evidence in any way whatsoever.

[52]The claimant contends that the reliability of Mr. Rizkalla was undermined by the fact that although he referred to the inadequacies of the claimant in his letter to the GMC in June 1997, he still allowed the claimant to work on the night shift when he would be working unsupervised. The evidence of Mr. Rizkalla and Mr. Holburn both of which I accept was that either of the two consultants would then be on call while they were at home at night so that they could deal with any problems which might arise while the claimant was on night duty either by advising on the telephone or by returning to the hospital. I accepted this evidence as being an adequate safeguard especially as the nurses were instructed to phone either of the two consultants if there were any problems. I do not consider that there was any inconsistency between the contents of the letters from the two consultants to the GMC relating to the claimant and the fact that the claimant was allowed to work night shift when he was being supported by the back-up which I have just described.

[53]Although Mr Rizkalla was cross-examined skilfully and carefully by the claimant from about 10.20am until just after 4pm, he emerged unscathed from the cross-examination and I have no doubt that his evidence was truthful and reliable. I specifically reject the suggestion of the claimant that Mr Rizkalla looked or appeared or was in any way evasive when giving evidence

[54]In reaching this conclusion, I have considered all the claimant's criticisms of Mr. Rizkalla and I have not overlooked the fact that Mr Rizkalla could not produce any documents to support his criticisms of the claimant in the reference written by him which is under challenge in these proceedings. In my opinion, it would be surprising if Mr Rizkalla would have any such documents bearing in mind first that the GMC was asking him for his general impressions and not for documentary evidence, second that there is no evidence that a consultant would have been required to keep such documents relating to the claimant and third that in any event it is unlikely that there would ever have been any documents relating to the matters covered by the reference especially as any notes on any patient did not relate to matters concerning the performance of a SHO like the claimant. (iv). Mr Holburn

[55]Throughout the hearing, the claimant was particularly critical of Mr Holburn and he contended in his closing written submissions that: "during the course of his entire evidence [Mr. Holburn] evaded questions instead of answering questions directly he was tempted to make well rehearsed general statements".

[56]I am unable to accept that submission because I concluded having heard Mr Holborn's evidence that he sought at all times to answer questions clearly, honestly and to the best of his ability. They were not surprisingly occasions when he could not remember in June 2006 what he said or what he did in 1997 and on those occasions he made that point. It must be stressed that in 1997 Mr Holburn would have had no reason to believe or to contemplate that he would be required to recollect in a court case in June 2006 what he had said or done nine years earlier.

[57]The claimant also seeks to draw inferences adverse to the defendant from the fact that although Mr Holburn was born, bred and educated in Edinburgh, he preferred to practice in England. I am unable to draw any inference adverse to Mr Holburn whatsoever from these facts as there is much mobility among professionals within the United Kingdom. Indeed many of the leading members of the legal profession in England are and have been Scots, who have been educated in that country but who have subsequently chosen for some reason or other to practice in England.

[58]I also reject the claimant's contention that Mr Holburn "was animated and agitated" when the redundancy issue was raised or that his evidence was influenced by the threat of redundancy. Indeed he gave evidence in accordance with his witness statements which were made before the proposed redundancies were announced. Mr Holburn satisfied me that he was telling the truth and he gave a reliable account of what he was able to recollect when he gave his evidence.

[59]What was clear to me was that the thrust of Mr Holburn's evidence remained clear, cogent and unchanged on the essential points even though there might be some minor discrepancies in detail. I stress that in the light of the lapse of time, is not surprising that these discrepancies occurred or that Mr Holburn could not give more specific examples of any criticisms that he made. As in Mr Rizkalla's case, there were acceptable reasons why Mr Holburn could not produce documents to support his contentions or to give greater details of the claimant's limitations.

[60]The claimant also sought to derive assistance from the fact that very many years ago Mr Holburn failed some part of his FRCS exams on two occasions but that fact is not of any assistance to me because I have no reason not to regard Mr Holburn as now being anything other than a reasonably competent surgeon. Furthermore I do not consider that any inference adverse to Mr Holburn can be drawn from the fact that he took time to respond to an initial letter from the claimant on 12 October 2000. Mr Holburn explained that it was not an urgent enquiry and that it would have taken him time to retrieve documents from personnel and to assemble the relevant information together in order to respond. These answers seek sensible and correct.

[61]At the end of the evidence, I was left with the clear impression that Mr Holburn, like Mr Rizkalla, was an honest and honourable man, who gave his evidence fairly and accurately on what I regard as the essential issues in this case. I will deal with the allegations of racial bias in section VII below.

(v) Dr Michael Porter

[62]The claimant did not seek to challenge Mr Porter's credibility as a witness or much of his evidence. In any event, I had reached the conclusion that Mr Porter was also a reliable and an impressive witness, who was doing his best to give a fair and accurate account of the matters covered in his evidence. (vi). Conclusions.

[63]As I have explained, I am driven to the conclusion that the claimant cannot be regarded as a reliable witness or one who has given in his evidence an accurate and true account of all relevant events. In sharp contrast, Mr Holburn, Mr Rizkalla and Mr Porter were impressive and clear witnesses. The more I listened to their evidence, the more convinced I became that they were reliable and accurate witnesses whose evidence I should and do accept. V. Issue B. Were the references given by Mr.

(i) Introduction

[64]The claimant contends that many of the statements made by Mr. Rizkalla in his GMC reference were untrue and inaccurate Mr. Mitchell contends that they were both true and accurate.

[65]Mr. Rizkalla wrote and sent the GMC reference in response to a written request to him from the GMC dated 10 June 1997 and this request , which related to the claimant, stated that:

"The above named practitioner holds/has held limited registration with restricted exemption from the PLAB test for the purpose of sponsored postgraduate training in the United Kingdom. Before considering whether to grant further limited registration, the GMC would find it helpful to know of his/her progress whilst working under your supervision. I would be grateful therefore if you would kindly forward, in confidence, your assessment of the doctor's performance and ability, and in this connection I would be grateful if you would address the points listed on the attachment to this letter. The GMC has agreed with the Royal Colleges and other principal sponsoring bodies that copies of reports on doctors sponsored by them, which have been provided by supervising consultants, will be made available in confidence to the sponsor. As this doctor is sponsored by one of the major sponsoring bodies acceptable to the GMC, a copy of the report which you provide will be forwarded to that body. An acknowledgment of your reply will be sent only if specifically requested. May I therefore thank you now for your assistance to the GMC in this matter"

[66]The specific points which Mr Rizkalla was asked to address in this letter from the GMC were set out in an attachment to that letter from the GMC; this attachment stated that: "Reports on the progress of a doctor holding limited registration with sponsored exemption from the PLAB test. It would be helpful if your report could cover the following points about the doctor named in this letter, or analogous points in respect of non-hospital specialties. 1. The dates during which you have supervised his/her work. 2. His/her knowledge of the speciality in which training is being provided, including, if appropriate, his/her mutual dexterity in performing and assisting with operations. 3. His/her command of English in relation to the duties performed and his/her communication with patients. 4. His/her clinical judgment. 5. His/her interpersonal skills including co-operation with other members of staff. 6. His/her competence in dealing with emergencies. 7. His/her suitability for further supervised employment in the hospital service and your assessment as to whether this doctor should continue to be granted sponsored exemption from the PLAB test. 8. Your views on whether he/she is performing satisfactorily and making progress in his or her speciality now and whether you would recommend him/her to a colleague".

[67]In response Mr Rizkalla wrote the GMC reference in the following terms with my emphasis added to show the main words now being criticised as untrue and inaccurate by the claimant : "Dr Hassan has been appointed as a Locum S.H.O. in the Accident & Emergency Department at Sandwell General Hospital for the 11 April to 5 August 1997. So far during his time in the Accident & Emergency Unit his basic knowledge is not too bad, but he requires supervision above average. His English language is reasonable. His clinical skills in the resuscitation room need to be upgraded. He appears very private. His skills in co-operation with other members of the staff should be improved and very rarely he uses the resources available within the senior nursing staff. Because he needs more supervision and to update his skills of co-operation, I find it very difficult to recommend him to a colleague in Accident & Emergency Department. I think he will be better dealing with inpatients in a supervision teaching environment to let him make reasonable progress." (ii). Five general points

[68]The claimant considers that the words underlined are untrue and so I will now focus on them but before doing so, I must make five comments relating to Mr. Rizkalla's references and which also apply equally to the references of Mr. Holburn. As I have explained, I consider that if either of the two consultants gave references concerning the claimant to other parties, they would have been in the same form as the references to the GMC

[69]First, the claimant contends that the criticisms of the claimant by the two consultants in the reference letters are undermined by the fact that notwithstanding these criticisms, the claimant was allowed to do night shifts without a supervising doctor being on duty. As was explained in evidence adduced by the defendant, the nursing staff and the claimant were told that when the claimant or any other doctors were on night duty, they could and should telephone at their homes either of the two consultants, who would then deal with any problems either on the phone or by returning to the hospital. In addition, the capable and experienced nursing staff were available and they too could not only give assistance and advice to a SHO, such as the claimant, but they could also telephone either of the two consultants without the need to seek the permission of the SHO on duty if there were problems when they were on night duty. Thus, there was always help at hand from one or other of the two consultants when the claimant was on night duty. This evidence explains to my satisfaction why the fact that the claimant was allowed to be on night duty does not undermine the evidence of the two consultants that their references were correct when they referred to the shortcomings of the claimant . In addition, in the period up to midnight, Mr. Holburn explained in a witness statement that there were middle grade doctors who could be asked for advice and for supervision by the SHOs, such as the claimant. Thus the claimant was never left in sole charge of the A&E department at Sandwell Hospital without recourse to further guidance and assistance.

[70]Second, the claimant submits that the terms of the references of the two consultants is inconsistent with the fact that when the claimant worked for the defendant at a time when he was entitled to be on leave, he was paid not at the rate for a SHO but he received remuneration at a higher rate, which was the rate paid to clinical assistants. It is important to stress that the references from the two consultants do not state that the claimant could not perform his duties but they stressed the need for supervision. I do not consider the fact that the claimant was paid generously by the defendant when he worked during his leave period undermines or is inconsistent in any way with the terms of the reference of either of the two consultants. Indeed, if anything this act of generosity undermines the claim of racial discrimination against the two consultants, which form an important part of the claimant's case against each of the two consultants and which I will consider in Section VII below.

[71]Third, the claimant contends that the evidence of the two consultants should not be accepted because neither can produce documentary evidence nor give any details of specific episodes to support their criticisms. I have already explained in paragraph 54 why I would not expect somebody writing a reference to be able to recall nine years later precisely what episodes prompted him to reach the conclusions set out in the references. Even if, as the claimant contends to be the position, the defendants had known as early as June 2000 that the accuracy of their references to the GMC on the claimant was in question, professional men -such as the two consultants- with all their other responsibilities could not reasonably be expected at that time to recall all the information which caused them to reach the conclusions in their references written three years earlier especially as at the time when the references were written, they had no reason to believe that they would be called on to recall the material which had led them to the conclusions set out in the references. It is also noteworthy that there was a fire at the Sandwell Hospital in about 2002 .In any event, I would also not expect the two consultants to have documentary evidence to support the conclusions in the reference, which would have been a matter of their impressions of the claimant.

[72]Fourth, on 10 April 1997, which was the day before the claimant started his employment at Sandwell Hospital, Moira Walker of the Royal College phoned Sandwell Hospital to explain to them that they had received references on the claimant from Hammersmith Hospital and the report of the conversation produced by Sandwell Hospital stated (with my emphasis added) that the claimant:

"..sometimes has problems prioritising , sometimes appears more keen to impress consultants than treat patients. Will need close supervision initially. Spoke to [Mr. Rizkalla] who said that he will personally ensure that close supervision takes place-he will do it. Moira [Walker] will write to [Mr. Rizkella] in three to four weeks to see if things ok and cc me into the letter...[Royal College] will sponsor [the claimant]"

[73]This report, which I will call "the Hammersmith report", is important as it shows first that in the view of Hammersmith Hospital's consultants the claimant required close supervision , second that Mr. Riskalla was going to ensure that the claimant was closely supervised and third that Mr. Rizkalla's comments on the claimant would have the benefit of his close supervision of him.

[74]Finally, as I will explain, the two consultants both received similar requests from the GMC and they both wrote very similar references. They sensibly discussed the requests together and I believe that Mr. Holburn must have shown a copy of his GMC reference of 12 June 1997 to Mr. Rizkalla or told him in some detail of its contents as Mr Rizkalla then wrote his GMC reference in fairly similar terms on the following day.

[75]What is significant is that they were both able to give sufficiently cogent evidence during the present hearing to justify what was said in each reference. Notwithstanding the claimant's evidence to the contrary, I am quite satisfied that the two consultants both saw enough of the claimant to reach the conclusions which they reached and which are set out in their respective references to the GMC. (iii). The Claimant's basic knowledge was incorrectly described as "not too bad"

[76]The claimant complains that his basic knowledge was incorrectly described as "not too bad". In my view, there are a number of answers to this criticism. The first is that it is not a critical statement and Mr. Mitchell points out quite fairly that the Cambridge Dictionary of American English states that the phrase "not too bad" means satisfactory and I add that this meaning accords with my understanding of that phrase. Second, Mr Rizkalla explained that the claimant's basic knowledge was good in surgery but in the light of what he saw, Mr Rizkalla concluded that the claimant needed to improve his knowledge in other areas such as resuscitation and he referred to the claimant's lack of experience in those areas. I accept that evidence. Third, no evidence was called by the claimant nor were any references produced by the claimant to show that that at the time when the GMC reference was written, his basic knowledge was better than "not too bad". Fourth, Mr. Rizkalla would have known from his experience exactly what should have been expected of a SHO in the claimant's position while the claimant would not have had this advantage. Fifthly, as I have explained the Hammersmith report required Mr. Rizkalla to observe the claimant's work closely and this is what I am satisfied that he did.

[77]Finally, it must be pointed out that Mr Rizkalla noted in his evidence that on 10 June 1997 which was two days before he wrote the reference, the claimant received his results of his sixth unsuccessful attempt to satisfy the examiners in section B of the Royal College's Fellowship Examination in Surgery. Although Mr Rizkalla did not know the results at the time when he wrote the GMC reference about the claimant, he points out that those results were consistent with what he said in the letter because on practical matters where there were oral examinations, the claimant failed on all three of the practical aspects. This, Mr Rizkalla says correctly in my view, supports his conclusion that the claimant required more supervision than average. It also is consistent with the comments of Mr. Rizkalla about the amount of knowledge possessed by the claimant. I accept this point as correct.

[78]Thus, I do not consider this criticism to be well-founded because Mr. Rizkalla' s comment was true and justified. (iv). "he requires supervision above average" for his clinical work.

[79]The claimant strongly criticises this statement, which he considers to be unjustified. It is common ground that all SHOs are supervised but there are again many reasons why the claimant's complaint that this statement by Mr. Rizkalla was unjustified must be rejected. First, it is clear (and I believe the claimant accepted this to be the case) that Mr Rizkalla would have known from his experience as a consultant how much supervision was normally required by a SHO of the claimant's experience and how much had actually to be given to the claimant. Second, as I have explained in paragraph 72 above, the Hammersmith report was compiled about 2 months before Mr. Rizkalla wrote to the GMC and it stated that the claimant "will need close supervision initially".

[80]Third, Mr Rizkalla was able to explain that because of lack of experience, the claimant needed more training and supervision in his resuscitation skills and how to prioritise different patients with different ailments, who arrived in the A & E Department. This difficulty of the claimant with prioritisation was also set out in the Hammersmith report. Fourth, no evidence was put forward by the claimant to dispute this. Fifth, Mr. Rizkalla explained convincingly, as I have stated in paragraph 77 above, that the results of the claimant in the oral part of his FRCS examinations support his conclusion on the need for the claimant to be supervised.

[81]The claimant did, however, contend that both before and after the reference was written he (that is the claimant) was on night duty without anybody around to supervise him. I have already explained why I consider that there was adequate back-up supervision and this means that the evidence of Mr. Rizkalla on this point is not undermined. Finally, if (which is not the case) I had been in any doubt on this issue, I would have taken into account my finding that Mr. Rizkalla was a reliable and accurate witness whose evidence I should accept and this finding further supports Mr Rizkalla's evidence.

(v) "His English language is reasonable"

[82]The claimant contends that his English was far better than "reasonable". This is not a critical or a derogatory statement especially when it has the meaning given to it by Mr Rizkalla which I accept and which is that the word "reasonable" means "acceptable". No prospective employer of the claimant would in my opinion be deterred from employing the claimant as a doctor because his English was described as "reasonable" and not in more glowing terms. In any event, I am unable to pass any judgment because although I have had adequate opportunity to consider the claimant's knowledge of the English language in 2006 that does not give any guide to what it would have been like in 1996. The claimant did not in any event call any evidence on this point and as I have explained, Mr. Rizkalla was an accurate and reliable witness. (vii). " His clinical skills in the resuscitation room need to be upgraded"

[83]Although the claimant does not challenge this statement in the Amended Particulars of Claim, it is noteworthy that prior to his appointment at Sandwell Hospital, the claimant explained to the Royal College that there were ATLS and ALSS courses run at the defendants, which the claimant does not appear to have attended. It is clear from the evidence of Mr Rizkalla that all the SHOs, other than the claimant took part in the resuscitation training. In my view, there is nothing wrong with the assertion in the statement which might also explain the comment to which I referred in paragraph 76 above that "his basic knowledge is not too bad", and the need for supervision. (viii). "co-operation with other members of staff should be improved"

[84]The claimant disagrees with this comment. It is clear from the claimant's evidence when he was cross-examined that he did not see himself as part of a team and that he rejected (with what appeared to me to be derision) the suggestion that he should take advice from senior nurses. I was very impressed by and accept the evidence of Mr Rizkalla, some of which was in his witness statements which he adopted as part of his examination-in-chief, when he explained that:(a) the need for SHOs in the A&E department to work in a team with the nurses;

(b) there was a great asset in the quality of the nursing staff in the A&E department of the Sandwell Hospital which the SHOs should have used and consulted with;

(c) many of the nurses in the A&E department at Sandwell Hospital had more than 10 years' experience in A&E and were qualified in Advanced Life Support;

(d) he received a number of complaints from senior nursing staff about the claimant's lack of cooperation; and (d) he and Mr. Holburn spoke to the claimant on countless occasions about the need to associate with other members of staff and not to alienate himself from other members of staff .

[85]I am quite satisfied that the claimant did not talk to other members of the staff about what was happening. The claimant did not put forward any cogent answers to Mr. Rizkalla's evidence on this issue, which I accept.

[86]I am fortified in coming to this conclusion by the evidence from Mr Rizkalla which I accept that there was regular weekly teaching sessions which the claimant as an SHO ought to have attended at which there would have been discussion about cases, x-rays so that they could all learn from each other. I accept as correct the evidence of Mr. Rizkalla that the claimant did not attend these weekly teaching sessions apart from one occasion or discuss issues. I consider that the statement under challenge in the GMC reference of Mr. Rizkalla was true and accurate. (ix). He "appears very private"

[87]The claimant takes issue with this but is difficult to see what is critical about the use of the word "private" as it does not reflect adversely on the claimant's ability as a doctor. In any event, the thrust of the claimant's evidence was that he kept himself to himself and that he was rather inconspicuous. That would support the use by Mr Rizkalla of the word "private"; Mr. Rizkalla's evidence, which I accept , was that the claimant rarely initiated contact with other members of the team in carrying out his duties. As I have explained, I also accept the evidence from Mr. Rizkalla in his witness statement that he and Mr. Holburn spoke to the claimant on countless occasions about the need to associate with other members of staff and not to alienate himself from other members of staff. In spite of this, Mr. Rizkalla said that the claimant continued to work in "an incredibly isolated fashion" and I accept this evidence. (x). "Co-operation with other members of staff should be improved"

[88]The claimant disputes this assertion but I am satisfied that the claimant did not seek the advice of other staff. What is clear from the evidence is that whereas Mr Rizkalla and Mr. Holburn saw the SHOs (such as the claimant) and all the other professionals in the A & E department as being part of a team, this was not the view or the approach shared by the claimant.

[89]I am fortified in coming to the conclusion that the statement of Mr Rizkalla was justified by the fact that, as I have already explained, there were regular teaching sessions in which the SHOs talked about cases, looked at x-rays and learnt from each other. These sessions were clearly of use to the SHOs such as the claimant but unfortunately save for one occasion, the claimant did not attend to learn from others or to discuss these issues. Having listened to all the evidence, I have come to the conclusion that Mr Rizkalla was right and that the SHOs and the other professionals were supposed to work as a team but this was not the view and approach of the claimant. So the comment of Mr. Rizkalla, which is under challenge by the claimants, was true and accurate. (xi). "very rarely he used the resources available within the senior nursing staff"

[90]Although the claimant did not take issue with this assertion in his Amended Particulars of Claim, when giving evidence, he rejected with derision the proposition that nurses could be used to assist in clinical decisions or that he should seek advice from them. I was left with the clear conclusion that the claimant saw himself as superior in every way to the nurses. This attitude was surprising and disturbing bearing in mind the evidence, which I accept that the claimant had been told by Mr Rizkalla and Mr Holburn that he should consult with the nurses.

[91]As I have already explained, the claimant only attended one of the weekly teaching sessions organised by Mr. Rizkalla during his employment with the defendants. Again I consider that what was written by Mr. Rizkalla in the GMC reference on this point was true and accurate. (xii). "I find it difficult to recommend him to a colleague in an Accident and Emergency... he will be much better dealing with inpatients in a supervision teaching environment to let him make reasonable progress"

[92]The complaint of the claimant is that these comments mean that "more supervision" was a pre-requisite for continued or further employment. In my view, these comments by Mr. Rizkalla were amply justified for four reasons. First, the evidence of each of the two consultants (which I accept) showed that there were three areas where the claimant required more teaching in order to further the interests of the patients , namely in respect of resuscitation, prioritisation and using the resources of nurses. In each of these areas, the claimant required close supervision. Second, the requirement for supervision was consistent with and corroborative of the comments to the defendants about the claimant by Hammersmith Hospital in the Hammersmith report and which I quoted in paragraph 72 above. Third, Mr. Rizkalla would have had a better idea of the amount of supervision required by the claimant than the claimant especially as he had kept the claimant under close supervision.

[93]Finally, Mr. Razkalla explained in his witness statement, which he adopted as part of his examination-in-chief that "given my concern as to [the claimant's] ability to make timely decisions without supervision, I considered that [the claimant] was not suitable for [an unsupervised position in A&E]". In the light of all the evidence from Mr. Rizkalla to which I have referred and which I have accepted, this is a sensible and accurate conclusion, which cannot be criticised as being in any way untrue or inaccurate.

[94]It follows that I consider that the comments under challenge in the reference sent by Mr. Rizkalla to the GMC were justified as being true and accurate. If I had been in any doubt about them (which I am not), I would have taken into account the cogent evidence of Mr Holburn to the effect that the claimant already spent six months in the A & E Department of a different hospital and a further four months at Sandwell Hospital which would mean that any consultant considering an application from the claimant for a job after he left Sandwell Hospital would have assumed that the claimant had a level of competence, which he had not yet attained. This is a realistic and accurate approach and which would justify the criterion by which the two consultants considered the knowledge and approach of the claimant when the references for the GMC were written.

[95]At the end of the day, my clear conclusion was that the GMC reference from Mr. Rizkalla was true and accurate and I therefore unhesitatingly reject the criticisms of it made by the claimant. VI Issue C Were the references given by Mr.

(i) Introduction

[96]The claimant contends that the words written by Mr. Holburn in his GMC reference were neither true nor accurate. This reference was written by Mr. Holburn in response to a request from the GMC, which was in the same form and was accompanied by the same explanatory document as that sent to Mr. Rizkalla and which I have set out in paragraphs 66 and 67 above .

[97]The GMC reference from Mr. Holburn stated (with my underlining added to show the words challenged by the claimant ) that: "Dr Hassan has been appointed as a locum S.H.O. in the Accident & Emergency Department from 11 April to 5 August. During his time in this speciality, he has attended regularly and although his basic knowledge is sound, he requires more supervision than average. His command of spoken English is reasonable. He appears very private and does not associate with the staff and rarely uses the resources available within the senior nursing staff to obtain appropriate advice. His technical skills under supervision in an emergency are satisfactory but he needs direction in prioritising the management of the acutely ill and injured. I feel that while he had made some progress and is suitable for continued employment, this would be under strict supervision. I would find it difficult to wholeheartedly recommend him to a colleague in accident & emergency although in a supervised teaching environment dealing with inpatients I feel he would be able to make further progress".

[98]The five points to which I referred in paragraphs 69 to 75 above apply equally to Mr. Holburn. It is also noteworthy that Mr. Holburn pointed out in his witness statement, which he adopted as part of his examination-in-chief and which I accept, that:(a) by 1997 , he had assessed the capabilities of about 50 doctors at the stages of their careers which the claimant had reached in 1997; and

(b) by the time he wrote the GMC reference, he had spoken to the claimant on many occasions and not merely on the limited number of occasions as contended for by the claimant. Mr. Holburn like Mr. Rizkalla had adequate opportunities to appraise the claimant and to reach conclusions on his performance and on his capability before writing the GMC reference. (ii). The claimant did not require "more supervision than average" for his clinical work.

[99]Mr Holburn explained that the consultants in the A& E department had to supervise the SHOs and that he was conscious of the need for it in the case of the claimant because on 10 April 1997, he had received the report from Hammersmith Hospital , which I have set out in paragraph 72 above

[100]Mr. Holburn said that he and Mr. Rizkalla had a policy of keeping a very close eye on new SHOs for the first month of their contracts so that the two consultants could monitor their work closely. He explained that in the A & E Department they had an "open door" policy by which all staff could come and speak to them if they had a problem. Mr. Holburn's evidence was that that after the claimant had been working at the defendant's hospital for about one month, he and Mr. Rizkella started to have concerns about him. The picture which he painted of the claimant was first of someone who was the least competent in terms of clinical ability than the five SHOs, who were then working in the A&E Department and second the SHO who was the least prepared to develop his skills to improve himself, such as by asking either or both of the two consultants for advice. I accept this evidence as correct.

[101]Mr. Holburn explained in his witness statement, which he adopted as part of his examination-in -chief, that he had cause to speak to the claimant on a number of occasions about his poor time-keeping and his lack of communication with both the nursing staff and with his other colleagues. His evidence in his witness statement was that while over a period of time most of the SHOs required gradually reducing amounts of supervision as they became more adept at patient management in general and being able to distinguish between ill and well patients so as to know when to call for help, the claimant's need for supervision had not "significantly lessened". The claimant's evidence was that Mr. Holburn was an unhelpful supervising consultant. After having seen the claimant and Mr. Holburn both being cross-examined, I have no hesitation in preferring the evidence of Mr. Holburn, who gave his evidence clearly, carefully and impressively. As I have explained in paragraph 101 above, I concluded that Mr. Holburn was at all times ready willing and able to assist the SHOs , which included the claimant, as much as he could

[102]I accept as true and accurate what Mr. Holburn stated in his GMC reference about the claimant requiring "more supervision than average" for his clinical work. Another reason why I reach that conclusion is that Mr. Holburn (unlike the claimant) would have known the level of supervision, which was usually required of somebody in the claimant's position and he could determine if further supervision was needed for the claimant . (ii). The claimant's spoken English did not fall in the category of being "reasonable"

[103]I do not consider that there is anything derogatory about the use of the word "reasonable" which would be universally regarded as meaning "acceptable". In any event, I cannot believe that any reader of the reference from Mr. Holburn would regard the word "reasonable" as having a derogatory meaning or one which would deter any prospective employer from employing the claimant . (iii). The claimant was not "very private" or unsociable as the letter suggests.

[104]The claimant regarded himself as being "inconspicuous", which is not really different from being "very private" and in any event the use of the word "very private" does not suggest that the claimant was unsociable. In his evidence, Mr Holburn gave examples of why he considered that the claimant was private such as that Mr. Holburn had not been informed by the claimant that he had failed his FRCS exams. He also said that the claimant did not come to him for guidance in relation to the exams. Nothing was said by the claimant to challenge the truth of the comment of the two consultants that the claimant was "very private". (v). The claimant did not "need direction in prioritising the management of the acutely ill or injured";

[105]Mr. Holburn had ample opportunities of seeing the claimant perform his duties and he kept a close eye on him because it was one of the functions of each of the two consultants to supervise the SHOs. The evidence satisfied me that Mr Holburn spent most of his working day in the A & E Department and that he was able to observe what was happening. He was also in contact with the nurses many of whom had a great deal of experience. Mr. Holburn's evidence was that when compared with the claimant's peers, the claimant's ability to select for himself the appropriate order in which to see the acutely ill and other injured patients was below-average. This is an important matter as any doctor working in the A& E departments is required to have this ability.

[106]The claimant points out that Mr Holburn could not produce detailed evidence on those specific matters. That is correct but professional people who supply references are, in my view, not required to retain detailed information so that they could be questioned about it nine years later.

[107]I have already explained why I have found Mr Holburn to be an accurate and reliable witness and I reject this criticism. In any event, it is noteworthy that this was one of the matters which was raised in the Hammersmith report by Hammersmith Hospital as I explained in paragraph 72 above and this supports my conclusion that Mr.Holburn was correct to make the comment which the claimant criticises.

[108]The claimant submits that the words underlined are neither true nor accurate. These words have to be read in the context in which they are written and they show that Mr. Holburn was not stating that the claimant should or could not be employed in an A&E department but he was explaining the circumstances in which continued employment of the claimant in an A&E department should occur.

[109]I consider that these comments are true and accurate for four reasons. First, Mr. Holburn's statement has to be considered in the light of his experience, which showed that the claimant required more supervision than other doctors at his level and this meant that he could not be recommended "wholeheartedly". Second, these comments of Mr. Holburn are consistent with the conclusions in the Hammersmith report of Hammersmith Hospital, which I have set out in paragraph 73 above and which were incidentally not challenged by the claimant. Third, Mr. Holburn had explained in his letter and in his evidence the shortcomings of the claimant when it came to the priorisation of patients. Finally, Mr. Holburn was a very impressive witness whose evidence and whose opinions. I found to be reliable.

[110]I must reject the case of the claimant that Mr. Holburn's evidence was not true and was inaccurate. On the contrary, the letter from Mr. Holburn to the GMC was true and accurate. (i). Introduction.

[111]The claimant did not make any allegations of discrimination against either of the two consultants or any other employee of the defendant during the currency of his employment with the defendants but he has done so in the present action. The claimant contends that the reference given by each of the two consultants to the GMC was discriminatory on the grounds of "race, colour and religion". The claimant explained that his race was Asian, that his religion was that of a non-practising Muslim and that he has a dark skin.

[112]It is noteworthy that during the claimant's careful and detailed cross-examination of each of the two consultants, he did not claim that any other act or omission of either of them in relation to the claimant during his employment with the defendant or after its determination was motivated by the claimant's colour, race or religion. I must now consider in turn the case made by the claimant against each of the two consultants. (ii). Mr Holburn

[113]The way in which the claimant puts his case was set out in his closing written skeleton argument in this way:

"(a) Mr Holburn has history of racist views and activities; (b) Despite having spent most of his life in England between highly educated English people he stills speaks English in thick Scottish accent; and despite picking salary of English health Trusts for the past 25 years he still supports Scottish Rugby team; (c) He was the subject of well-founded concerns of his Indian colleagues in respect of his racially tainted activities; (d) Despite his own thick accented command of English his recognition of the claimant's command of spoken English as being only "reasonable"; (e) His reputation that he shouts on colleagues and his admission during the evidence that he does so; (f) He adduced no evidence and/or no tangible evidence in support of his views and concerns; (g) He blocked the progress of the claimant by stating to Mr Porter that claimant "was not suitable for a post in Plastic Surgery"; (h) After having written the detrimental and discriminatory letter he voluntarily showed it to Mr Rizkalla in a thinly veiled gesture to invite the latter to follow suit"

[114]The only matter relied upon by the claimant in his closing written skeleton argument which could possibly be relevant on the issue of discrimination is an earlier dispute between Mr. Holburn and Indian doctors,. This dispute arose when Mr Holburn in the course of his duties as head of the department proposed to change the terms and conditions of service for clinical assistants (who all happened to be Indians) but this dispute was settled amicably. Further, the claimant did not call any evidence from any of those doctors or from anybody else to show that Mr. Holburn's attitude to the clinical assistants was or might have been racially motivated and so I cannot attach any importance to it. I am unable to understand the relevance to the case for the claimant of Mr. Holburn's Scottish accent or his speech or how this could possibly assist the claimant's case.

[115]There are a six reasons which individually and cumulatively have driven me to the conclusion that I must reject the complaint of the claimant that the references of either of the two consultants had "racial overtones" and "was racially motivated and discriminatory". First, as I have explained, I regard the reference given by Mr Holburn as being true and accurate. Second, irrespective of whether his reference was accurate and true, I am quite satisfied having seen and heard him give his evidence that Mr Holburn honestly believed that what he wrote in the reference on the claimant was accurate and correct and that finding undermines an allegation of racial discrimination of the kind contended for by the claimant . Third, there is nothing in the reference on the claimant, which shows or suggests in any way that Mr. Holburn was in any way influenced in any way by any racial or discriminatory factor. Fourth, there is no evidence of any other decision made by Mr Holburn in relation to the claimant, which was in any way racially motivated or discriminatory. .Fifth, as explained in paragraph 70 above, Mr. Rizkalla together with Mr Holburn authorised the claimant to be paid at a higher rate than that to which he was entitled when he worked during his unused holiday and this shows kindness to the claimant and not discrimination towards him. Finally, there is not a scrap of evidence to support the claimant's contention that Mr. Holburn has, as the claimant contends to be the position, a "history of racist views and activities". Having heard the evidence relating to the dispute, I am satisfied that no aspect of Mr. Holburn's conduct supports any contention of racial discrimination of any kind in his dealings with the claimant let alone racial discrimination in the writing of the references. Thus I reject this complaint of the claimant. (iii). Mr Rizkalla

[116]The claimant's case as set out in the closing written submissions was that: "(a) Mr Rizkalla is a Copt Egyptian and Copt Egyptians hate Muslims from the very cores of their hearts; (b) Despite his very own heavy accented command of English his recognition of the claimant's command of spoken English as being only 'reasonable'; (c) He adduced no evidence and/or no tangible evidence in support of his views and concerns; (d) He followed the suit of his boss Mr Holburn in making misleading and detrimental statements".

[117]All the factors which I have set out in paragraph 115 above in respect of the claim of racial discrimination against Mr Holburn also apply equally to the claim against Mr Rizkalla and these would lead me to rejecting the complaints of the claimant under this head. Additionally, the claimant has additional difficulties in respect of this complaint because first the claimant was selected for his job in Sandwell Hospital by Mr Rizkalla, and second the claimant had training from Mr Rizkalla . Finally, I totally reject the totally unsubstantiated contention of the claimant that in the words of paragraph 24 of his witness statement "Egyptians are brought up with prejudice against Indians" or if they are, that Mr. Rizkalla had or applied this approach when he wrote the GMC reference or any other reference on the claimant. All these factors are individually and cumulatively inconsistent with a finding of racial discrimination. (iv). Conclusion

[118]I unhesitatingly reject the contention of the claimant that the references of either of the two consultants had racial overtones or were racially motivated. There is no evidence to support these serious allegations, which should never have been made. For the avoidance of doubt, I consider that the reputations of the two consultants and of Mr. Porter have not been tarnished in any way by any of the allegations made in this action by the claimant.

[119]The claimant's case is that each reference taken individually gave a misleading impression to a reasonable recipient as it contained general statements and claims without "citation of all important specific incidents". It is also said that neither of the two consultants produced any evidence in support of their allegations and that they both lacked credibility. For the purpose of completeness, I add that as the references of the two consultants were true and accurate, the claim for breach of contract fails.

[120]Mr. Mitchell contends that:(a) an employer who gives a reference to an employer or prospective employer of one of his former employees owes a duty of reasonable care to the former employee to ensure that the facts stated in the reference were accurate: Spring v Guardian Assurance PLC.

[1995] AC296

;

(b) the reference must be "true, fair and accurate" when taken as a "whole" rather than as a series of separate statements: Bartholomew v Hackney LBC

[1999] IRLR 246

(c) the employer owes no additional duty to the employee to take reasonable care to give a full and comprehensive reference or to include all material facts: Kidd v AXA Equity Law Life Assurance Society plc

[2000] IRLR 301

(d) there must be reasonable enquiry into the factual basis of the statements in a reference; Cox v Sun Alliance Life Limited

[2001] IRLR 448

;

(e) an action in negligence can only be brought where the alleged negligent mistake or reference to it has been made to a third party; Legal & General Assurance Ltd v Kirk

[2002] IRLR 124

[121]In my view, for the reason set out in sections V and VI above, each reference given to the GMC by the two consultants was not misleading but was "true, fair and accurate". It must be stressed that both reports recommended continued limited registration and they were supportive of the claimant while specifying the need for further training and supervision.

[122]Even if, contrary to clear my conclusion, any information in the references was a misstatement, I do not consider that there was anything negligent about them because having heard the two consultants give evidence, I am quite satisfied that each of them exercised the skill and care of a reasonable consultant first in considering how they should answer the specific requests for information on the claimant received from the GMC and second in compiling their response. Thus even if (contrary to my clear conclusion) there were errors in either of the references, they were not negligent.

[123]It is convenient at this stage to mention that the claimant contends that as a result of the references of the two consultants he has been unable to obtain any other jobs. The claimant points out that when he applied for jobs, he gave the names of either or both of the two consultants or either of them as doctors who would give references for him. I am prepared to assume that this is correct but even if the claimant gave the names of the two consultants as referees that does not mean that the references were taken up.

[124]The mere fact that the claimant did not obtain jobs for which he applied does not mean that he can succeed in his claim against the defendants. In order to succeed in such a claim, the claimant would have to show in the case of each hospital that(a) the hospital concerned actually obtained a reference from either or both of the two consultants;

(b) the reference was inaccurate or untrue; and

(c) at least, the claimant would or might have been offered the job if the two consultants had written accurate references.

[125]The claimant cannot satisfy requirement (b) for the reasons which I have already explained in sections V and VI above. That means that his claim based on negligent misstatements by the two consultants must fail but there are also other additional reasons relating to requirements (a) and (c) why I must reject this claim. Even if contrary to my conclusions the references from the two consultants were not true and accurate, I do not accept that the claimant would have been offered any jobs if true and accurate references had been supplied. The claimant had the onus of proof on this issue and so he could and should have called any such evidence from the hospital concerned but he did not do so; so he did not satisfy requirement (c). This lack of evidence is not surprising because first there were always many doctors seeking the SHO jobs sought by the claimant and second, as I will explain, a potent if not crucial reason why the claimant could not obtain further work was not because of the references of Mr Rizkalla or Mr Holburn but because of the Royal College's decision to remove its sponsorship of the claimant in1998.. This meant that unless and until the claimant passed the PLAB he would have been unable to obtain permission from the GMC to accept any further post. As I have explained, the claimant has not sought to obtain registration by the PLAB route. An additional reason why the claim must fail is because in respect of requirement (a), the claimant could only show that two hospitals (Pilgrim Hospital in Boston and West Suffolk Hospitals) received references from the two consultants as the claimant has not adduced any evidence that any other hospital had received a reference from either of the two consultants. Of course in respect of those two hospitals which received references from the two consultants , no evidence has been adduced by the claimant from either of those hospitals as to why other candidates were preferred to the claimant. There could have been many reasons- such as performance in the interviews and work experience- why the claimant may have been unsuccessful and those reasons would have nothing to do with the references of the claimant. As I will explain in paragraph 133 below, there were shortcomings in the claimant's curriculum vitae which would have prevented Mr. Porter employing the claimant and these matters would probably have deterred any other hospital from employing the claimant. In any event, it is highly likely that knowledge by a prospective employer of the claimant of the fact that the claimant had been summarily dismissed from his post in Blackpool would have meant that the claimant would not have obtained any further posts

[126]I conclude that even if the two consultants might have supplied reference to at most a few hospitals to which the claimant had applied for jobs, the fact that the claimant did not obtain jobs was in no way caused by the references written by either or both of the two consultants. In other words, the claimant cannot succeed on his claim that he would have obtained other jobs with true and accurate references because he cannot satisfy requirements (b) and (c) even if (which is not the case) he could satisfy requirement (a).In those circumstances, it is not necessary to consider the other reasons why Mr. Mitchell contends that this claim must be dismissed.

[127]The claimant contends that the answer to that question must be in the affirmative because in the words of the claimant's closing written skeleton argument:

"(a) References injured the Claimant's reputation as a Medical professional in contravention of Article 10 (2) of the [European Convention on] Human Rights ("

ECHR"); (b) References in effect took away the claimant's ability to earn dignified living; (c) References in effect took away the claimant's ability to build and/or sustain a family life and/ or build and/or progress and/or sustain private life in contravention of

Article 8 of the ECHR

. The contact and relations that the claimant had as a medical professional have all been lost".

[128]This claim is misconceived because apart from the fact that each of the references was fair and accurate:(a) there is no right under the ECHR to a reputation or "to earn a dignified living";

(b) article 10 (2) of the ECHR, which is relied on by the claimant, deals with the right of freedom of expression but it has nothing to do with a claim to reputation or a right to "earn dignified living";

(c)

article 8 of the ECHR

does establish a right to family life and private life but the claimant has been unable to explain how either of these references would have had any effect on his family life or on his private life about which no cogent evidence was adduced; and

(d) in any event, the Human Rights Act 1998 ("HRA") did not come into force until 2 October 2000. Under section 6 (1) of the HRA, it is provided that "it is unlawful for a public authority to act in a way which is incompatible with a convention right". It is, however, settled law that these provisions only apply in relation to acts which were done after the commencement of the Act : R v Lambert

[2002] 2 AC 545

especially at paragraphs 30, 27-30, 104, 134-136 and 173.. The references were written by the two consultants well before the HRA came into force and in consequence this claim by the claimant brought as it is under HRA must fail for each of the reasons, which I have set out.

[129]The claimant contends that it was what Mr Holburn said to Mr. Porter, which was responsible for him not being offered the job in plastic surgery. In support of this, he relies on the letter written by Mr Porter of 15 August 2000 in which he says that:

"As far as I can remember [the claimant] came to see me, to enquire about a Senior House Office post in Plastic Surgery in Sandwell. A job was being advertised at the time At the time, [the claimant] was working in Accident & Emergency. It was therefore natural that I go and speak to Mr Holburn to enquire how he had done in Accident & Emergency and what Mr Holburn's opinion of him was. Mr Holburn stated he was not suitable for a post in Plastic Surgery. An opinion of that sort would of course proclude (sic) [the claimant] from being short listed..."

[130]It is common ground between the parties first that on about 15 July 1997, the claimant had seen that the defendants were seeking to appoint a Senior SHO in Plastic Surgery and second that the claimant had an informal interview with the interviewing consultant Mr Michael Porter FRCS .During the course of that discussion, the claimant informed Mr Porter that he was then working as a locum SHO in the A & E department at Sandwell Hospital.

[131]As a result of that discussion, Mr Porter walked over to the A & E department where he spoke to Mr Holburn. Both Mr Holburn and Mr Porter gave such evidence as they could about this conversation, which it must be remembered, took place almost nine years before the trial and they would have had no reason to think at the time that they would be asked about it nine years later. Both Mr Porter and Mr. Holburn recollected that the thrust of Mr Holburn's comments, which were that the claimant would not be suitable for the plastic surgery post because of Mr Holburn's concerns about the claimant's performance in the A & E department. In paragraph 18 of the Amended Particulars of Claim, the claimant contends that he "lost the prospective job of plastic/ general surgery as a result of references from defendants..."

[132]I have already explained why I consider that the reference given by Mr Holburn to the GMC to have been true and accurate. In my view, he gave a similar reference to Mr Porter when he asked about the claimant when he was interested in the plastic surgery position. Thus I must reject the claimant's complaint that Mr. Porter received an inaccurate or untrue reference relating to the claimant from Mr. Holburn and that in consequence the claimant was not appointed to the plastic surgery post. In consequence, this complaint must be rejected.

[133]An additional or alternative very powerful and crucial reason why this complaint of the claimant must fail is that irrespective of what had been said by Mr. Holburn to Mr. Porter, the claimant would not have been appointed to the plastic surgery post because of the superior attributes of the successful candidate. In his second witness statement, which he adopted as part of his examination-in-chief, Mr Porter explained that even if Mr Holburn had given him a favourable reference, the claimant would still not have been appointed because the claimant would have been rejected at the initial sift of the approximately 140 applicants for the post on account of problems identified in his curriculum vitae and in particular that:(a) the claimant's curriculum vitae had unexplained career breaks between 1 September 1989 and 12 February 1991, between March 1993 and April 1994 and between September 1994 and February 1996. This contrasts with the curriculum vitae of the successful applicant which showed a steady progression through a variety of SHO posts apart from one career break, which was explained as a period of recuperation following a serious road traffic accident;

(b) a good curriculum vitae should give a clear idea of a candidate's career intentions. The claimant stated first that he was on leave from his regular employment in Pakistan on the basis of permit-free post graduate training in the United Kingdom and he second that he intended to go back and rejoin his job "back home" at the end of the training period. To Mr Porter it was significant that the claimant did not state any ambition to follow a career in a specialist branch in surgery while the successful applicant made an unequivocal statement that he intended to pursue a career in A & E medicine;

(c) it was intended by Mr Porter that the SHO post in Plastic Surgery was to provide an introduction to plastic surgery to a doctor who had no previous experience in this speciality. The claimant did not satisfy this requirement because he had worked as a Registrar in General Surgery/ plastic surgery from September 1991 to September 1992;

(d) there was no mention of advanced trauma life support in the claimant's CV while the successful applicant had undertaken such courses; and

(e) if Mr. Porter had known that the claimant had been previously dismissed for gross misconduct, he would not have been employed in any capacity by him.

[134]I accept this evidence and also Mr Porter's explanation that race, colour and nationality played no part in the selection process for the job in question as none of the candidates were ethnic English. The only issues in the selection process were assessing competency to perform the job and finding a candidate who would benefit from the job. The claimant, who had obviously prepared his cross-examination and preparation of the case with great skill and thought, did not cross-examine Mr Porter on these aspects of his case, which I would in any event have found to be very convincing and correct. I have no hesitation in concluding that this claim must be rejected because of the convincing evidence of Mr. Porter apart from the fact that what Mr. Holburn said to Mr. Porter about the claimant was true.

[135]The case for the claimant is that in the words of the claimant's closing written skeleton argument the letters and actions of the defendant played a "very significant role in removal of the claimant from sponsorship". As I have explained in paragraph 65 above, the GMC informed the two consultants that a copy of their reports would be forwarded to the claimant's sponsors, the Royal College and so the references by the two consultants on the claimant must have been before the Royal College when it decided to end its sponsorship of the claimant.

[136]As I have pointed out in paragraph 26 above, the minutes of the meeting of the Training Committee of the Royal College of 26 February 1998 recommended unanimously that sponsorship be withdrawn from the claimant and they record that: "one doctor was dismissed for gross misconduct but the General Medical Council had... left it to the College as to whether they wished to continue sponsorship or not".

[137]I agree with Mr Mitchell that those statements in the minutes are factually correct in stating - as was the true position- first that the claimant was dismissed for gross misconduct and second that the GMC had not taken any action against the claimant as a result of his dismissal. In addition, those minutes of 26 February 1998 were later approved as being correct at the meeting of the Training Committee of the Royal College on 21 May 1998 by all those present.

[138]Even taking into account the claimant's points, especially the ones set out in paragraph 143 below, I conclude that sponsorship by the Royal College of the claimant was terminated solely on the grounds that he had been dismissed for gross misconduct. I reach that conclusion for a number of reasons which individually and cumulatively drive me to that conclusion. First, there is no credible evidence to suggest that the minutes were inaccurate. The claimant did not call any evidence to support his claim. I unhesitatingly reject the claimant's assertion first that the minutes were manufactured or the product as the claimant contends of "a factory of fabrication" or were produced for an ulterior motive. For the avoidance of doubt, I reject as not supported by any evidence the claimant's contentions that the Royal College had some ulterior motive in removing the claimant's sponsorship. Second, it is noteworthy from the minutes of 26 February 1998 which I quoted in paragraph 26 above that another doctor in the ODTS scheme was treated in the same way as the claimant as that doctor's misconduct or gross misconduct was regarded as sufficiently serious in his case to justify terminating his sponsorship.

[139]Third, there is nothing in the evidence (whether in the minutes of the Royal C0llege or in the oral or the written evidence) to suggest that the reports of the two consultants to the GMC and copied to the Royal College were responsible in any way for the termination of the claimant's sponsorship. Indeed each reference from the two consultants recommended the claimant for further appointment but subject to substantial supervision.

[140]Fourth, the initial reaction of the Honorary Secretary of Royal College to the claimant's dismissal from his post in Blackpool was, as stated in their letter of 18 May 1995 to him, that: "at present, I cannot recommend to our [ODT] Department that they continue to act on your behalf, but, I am, of course, prepared to hear what further explanation you may have".

[141]Fifth, the claimant appreciated the significance of his dismissal in Blackpool as he wrote to the Royal College on 21May 1995 stating that he wants to "win the confidence of the Royal College back". This shows that he appreciated the significance of his dismissal from Blackpool. Indeed the Royal College made it clear in further correspondence that they regarded the claimant's dismissal as a barrier to continuing sponsorship of him. So they wrote to him on 19 June 1995 explaining that they were "still in difficulties regarding continuing sponsorship in view of your early departure from the post". On 1 November 1995, the Royal College stated to the claimant "you have...let the College down and we do not feel that the College should undertake your further sponsorship". This showed how troubled the Royal College was about the claimant's dismissal and this sentiment was then repeated in correspondence in which the claimant pleaded his innocence over the matters leading to his dismissal from the Blackpool post.

[142]Sixth, the claimant did not call any witnesses from the Royal College or adduce any evidence to suggest that the minutes of the Royal College were incorrect or that the decision to with draw sponsorship was the consequence of or connected in any way whatsoever with the references of the two consultants. In addition, it must not be forgotten that the onus on this issue was on the claimant

[143]In reaching this conclusion that the reason for the loss of the claimant's sponsorship by the Royal College was the claimant's dismissal from his post in Blackpool and not anything stated in the references of the two consultants, I stress that I have not overlooked or failed to attach weight to a matter on which the claimant places great reliance; that is the fact that even after the claimant had been dismissed from Blackpool Victoria Hospital, the Royal College still sponsored him in respect of his jobs at Hammersmith and with the defendant even though it knew by then that the claimant had been dismisses from his post in Blackpool. I have already referred in paragraph 10 to the letter from the Royal College of 24 February 1997. Nevertheless the position appears that when the Royal College decided to consider whether sponsorship of the claimant should continue in 1998, they came to the clear conclusion that it should not because of the claimant's dismissal for gross misconduct. It is not altogether surprising for a body like the Royal College to take a balanced long-term view as to whether sponsorship should continue in 1998 and then to determine (as happened in this case) that the crucial factor for them was that the claimant had been dismissed for gross misconduct. In any event the six points set out in paragraph 138 to 142 above clearly show that the claimant's sponsorship by the Royal College was not terminated because of any reference or any statement made by either of the two consultants. I conclude that the reason why the claimant's sponsorship came to an end was because he had been dismissed by the Victoria Hospital in Blackpool especially as the Royal College had from an early stage been concerned about the circumstances in which his employment in Blackpool had been terminated. I reject the contention of the claimant that either or both of the references of the two consultants were responsible in any way for the decision of the Royal College to terminate the claimant's sponsorship. My conclusion is that the minutes of the Royal College explained accurately why the claimant's sponsorship was terminated.

[144]The consequence of the loss by the claimant of his sponsorship by the Royal College was that he was then unable to obtain registration from the GMC. As I have explained in paragraph 15 above, the claimant could have then sought to use the other route available to foreign doctors to obtain registration which was PLAB but he decided not to do so. In any event even if I am wrong and either or both of the two consultants gave a reference on the claimant which was untrue or inaccurate, the claimant cannot claim that any such reference was the effective cause of any loss for him after the Royal College terminated his sponsorship because irrespective of what was in the references he could not obtain registration by the GMC, which was the pre-requisite to the claimant obtaining employment as a doctor.

[145]The claimant contends that the answer to this is in the affirmative because the defendant acted in breach of this term:

"by making untrue, inaccurate and negligent misstatements about the claimant and conspiring to block the progress of the claimant as a surgical trainee and hospital doctor"

[146]In my view, this contention must be rejected because I am quite satisfied that the references given by each of the two consultants was true and accurate and that there is no evidence of any conspiracy of the kind alleged by the claimant or that they sought to "block the progress of the claimant". At all times, the two consultants have acted honestly and reasonably. They behaved generously to the claimant in making arrangements for him to be paid at the rate for clinical assistants (rather than at the rate for SHOs) when he worked at a time when he should have been on leave ass I have explained in paragraph 70 above.

[147]The claimant contends that the answer to this question must be answered in the affirmative but as I have explained, I reject the contention that the defendant has acted wrongly in any way and in particular that the two consultants wrote references, which were untrue or are inaccurate. In any even if the references of either of the two consultants was untrue or inaccurate, then(a) there is no evidence that the claimant would have obtained a job as a SHO even if the references had been very supportive of the claimant because of his work record and in particular the fact that he had been summarily dismissed by Blackpool Victoria Hospital for misconduct. My conclusion is that this summary dismissal would have been a bar to further employment as explained by Mr. Porter in paragraph 133 (e) above;

(b) the claimant would still not have been able to obtain employment after his sponsorship was terminated by the Royal College; and

(c) the claimant failed to mitigate his loss by obtaining registration by obtaining registration by PLAB as explained in paragraphs 15 and 16 above.

[148]Of course since the Royal College withdrew sponsorship for the claimant in 1998, he was unable to obtain registration and he could not work as a doctor as he had not chose to follow the PLAB route. In respect of the earlier period before the Royal College withdrew sponsorship for the claimant in 1998 , there is no evidence that if the claimant has been unable to obtain any jobs since he ceased to work at Sandwell Hospital that this was the result of a reference or references from the two consultants or either of them. The claimant has failed to discharge the onus on him.

[149]The onus of proving that the references or the conduct of the defendant was responsible for the inability of the claimant to obtain employment is clearly on the claimant but as I explained in paragraph 126 above, he cannot discharge this burden. For the purpose of completeness, I should add that even if the onus of proving that the references or that the conduct of the defendant was responsible for the inability of the claimant to obtain employment was on the defendant, they have discharged that burden in the light of the wording of the decision of the Royal College to which I have already referred. So, I reject the contention that even if, contrary to my conclusion, the references from the two consultants or either of them was untrue or inaccurate, the claimant would still have obtained employment even with what the claimant would regard as true and accurate references. No evidence was called to show that in those circumstances, the claimant would have obtained a job at the defendant's hospital or at any other hospital. So this aspect of the claim falls on the issue of causation as well as because I have already found that the references supplied by either or both of the two consultants was true.

[150]For the purpose of completeness, I stress that I have considered all the complaints of the claimant but I do not consider that there is merit in any of them, whether referred to in this judgment or otherwise. The more I listened to and considered the evidence in this case, the more convinced I became that the claimant's case was without merit. He has sought to resurrect his claim against the two consultants, which had previously been struck out and such a claim is doomed to fail for the same reasons as have caused me to dismiss the claim against the two consultants. Thus, I refuse his application for permission to re-amend his claim so as to make claims against the two consultants.

[151]I cannot end this judgment without expressing the hope that the claimant does not bring any further claims against the two consultants or the defendants. They have all already spent much time and much money defending their actions and I hope that the claimant now accepts that the two consultants and the defendant have not acted wrongfully in the way contended for in the present claim. The claimant would best serve his own interests by considering how he could obtain registration as a doctor rather than by continuing to litigate.

[152]As I have explained, I have concluded that the claim must be dismissed. My principal findings are that:(i) the claimant is not a credible witness not only because he made wild, unsupported and unjustified criticisms of the Royal College but also because of the way in which he gave totally false accounts to the Royal College of how and why his employment at Blackpool Victoria Hospital terminated rather than explaining that he was summarily dismissed for misconduct (see paragraphs 33-47 above) ;

(ii) the defendants' witnesses, namely the two consultants and Mr Porter were accurate and reliable witnesses, whose evidence, I should and do unhesitatingly accept (see paragraphs 47-62 above); (iii). the references given to the GMC by the two consultants were true and accurate (see paragraphs 64-110 above) and the claimant has no claim in respect of them against the defendant or either of the two consultants irrespective of whether such a claim is based on a breach of contract (see paragraph 119 above), negligent misrepresentation (see paragraphs 119-126 above), racial discrimination (see paragraphs110-118 above), interference with human rights, (see paragraphs 127-128 above), breach of the implied terms of trust and confidence (see paragraphs 145-6 above), or any other form of wrongful conduct. These specific findings mean that the claim must be dismissed; (iv) the reason why the claimant lost his sponsorship from the Royal College and could not obtain further jobs was because he had been summarily dismissed by Blackpool Victoria Hospital for misconduct. The references of the two consultants were not responsible in any way for the claimant's loss of sponsorship with the Royal College (see paragraphs 133-147 above); (v) the references written by the two consultants were in no way responsible for the decisions of (a) the Royal College to terminate the claimant's sponsorship (see paragraph 143 above) and (b) Mr. Porter and the defendant not to offer the claimant the job he sought in plastic surgery as even if the claimant had received an excellent reference from the two consultants, he would still not have been offered this post (see paragraphs 129-134 above) ; (vi) even if contrary to my conclusions either or both of the letters sent to the GMC concerning the claimant or the reference supplied to Mr. Porter by Mr. Holburn on the claimant was untrue or inaccurate, the claimant has failed to show that if a true and accurate reference on the claimant had been given, he would or might have obtained any jobs (see paragraphs 125-126 above) or that he would have continued to enjoy sponsorship from the Royal College (see paragraph 141 above); and (vii) In any even if any of the references of either of the two consultants was untrue or inaccurate, then (a) even if the references of the two consultants had been very supportive of the claimant, there is no evidence that the claimant would have obtained another job as a SHO after he had left the defendant's employment. Indeed I do not consider that he would have obtained a further job because of his work record and in particular because he had been summarily dismissed by Blackpool Victoria Hospital for misconduct. (see paragraph 125 and 126 above). My conclusion is that this summary dismissal would have been a bar to further employment as explained by Mr. Porter in paragraph 133(e) above; (b) the claimant would still not have been able to obtain employment after his sponsorship was terminated by the Royal College (see paragraph 15 above for the importance of sponsor ship); and (c) the claimant failed to mitigate his loss by obtaining registration by obtaining registration by PLAB as explained in paragraphs 15 and 16 above.

[153]In other words, the claim fails because: (i) each of the references given by the two consultants was not untrue and inaccurate as contended by the claimant but in fact each of them was true and accurate; (ii)the claimant has no claim in respect of them against the defendant or either of the two consultants irrespective of whether such a claim is based on a breach of contract, negligent misrepresentation, racial discrimination or any other form of wrongful conduct. This specific finding means that the claim must be dismissed; (iii) in any even if any of the references of either of the two consultants was untrue or inaccurate, then the claim would sill have to be dismissed because: (a) even if the references of the two consultants had been very supportive of the claimant, there is no evidence that the claimant would have obtained another job as a SHO after he had left the defendant's employment. Indeed I do not consider that in that event, he would have obtained a further job because of his work record and in particular because he had been summarily dismissed by Blackpool Victoria Hospital for misconduct. My conclusion is that this summary dismissal would have been a bar to further employment as explained by Mr. Porter in paragraph 133(e) above; (b) the reason why the claimant lost his sponsorship from the Royal College and could not obtain further jobs was because he had been summarily dismissed by Blackpool Victoria Hospital for misconduct. The references of the two consultants were not responsible in any way for the claimant's loss of sponsorship with the Royal College (c) the claimant would still not have been able to obtain employment after his sponsorship was terminated by the Royal College; and (d) the claimant failed to mitigate his loss by obtaining registration by obtaining registration by PLAB as explained in paragraphs 15 and 16 above.