Parris v Ajayi & Ors [2021] EWHC 285 (QB)

“Re: Catherine Parris I sent CP an email on Tuesday 13th September requesting she attend a meeting with me on Wednesday 14th September to discuss the following: Ongoing treatments plans New service users at The Grange Ongoing clinics Feedback on Chailey visit Sling Audits Physiotherapy cover for Rapkyns Care Home Physiotherapy visit for VG as PL on annual leave JM exit interview On Wednesday the 14th September at 9.25am I met CP in the corridor at The Grange and we exchanged greetings. I went to the office and CP went to the bathroom before joining me in the office. I was sitting directly opposite CP. CP had a notebook and some paperwork in her hands and the paperwork was folded underneath her notebook which seemed to me to be unusual. I started the meeting but noticed that CP was fidgeting a lot and her demeanour was out of character. I asked CP if she was OK and she replied she was. I asked her some more friendly questions regarding her family to relax the atmosphere. I noticed that she continued to fidget throughout the meeting and I asked again if she was fine. She replied she was. About 45 minutes into our meeting, I asked CP to telephone JM to attend her exit interview with me. As CP got up she placed her paperwork and notebook down in an unusual manner and left the room. I heard a beep from her papers and was curious so got up and went over to open up the folded paperwork where I found a digital recording device paused at 43 minutes and 17 seconds. I looked at my watch and realised that it had been about 45 minutes since our meeting began. I took a photograph with my phone of the recorder, placed it back into the paperwork and resumed my seat. When CP came back into the room I composed myself and continued with the meeting to its conclusion. I then saw JM was waiting outside the office and ended the meeting. On Thursday 15th September, I sought advice from SHC’s HR department regarding the recording of staff during meetings without their consent.”

“Thursday 15 September 2016 14:00 at Beech Lodge Present: Olan Ajayi (OA) Chair David Gayler (DG) HR Manager Catherine Parris (CP) Physiotherapist DG to open the meeting and explain that, at this stage this is an informal conversation and is not part of any wider process. DG to hand over to OA to conduct the meeting. OA to tell CP that during the meeting with her on 14 September 2016 he noticed that a recording device was being used. - at this point OA to show CP the picture he took. OA to ask CP the following: • Why was the device being used? • Was she aware that she can not record a business discussion covertly? • Has she shared the content of the recordings with others? • Has she used this in any other meetings? • Has she taken photo’s as well as recordings? • Does she think that her actions reflect well on her professionally? • Does she think this affects the mutual bond of trust and confidence between OA and her? Adjourn meeting and say we will get back to her within 24 hours (we will be considering if further action needs to be taken)”

“Meeting held at Beech Lodge at 14:00 Present: Olan Ajayi (OA) Head of Quality David Gayler (DG) HR Manager Catherine Parris (CP) Physiotherapist DG introduced the meeting and informed CP this was an informal management meeting and followed on from OA’s previous meeting with her. OA asked CP if she had a recording device CP said she didn’t but did have her phone which could record - is that what was meant? OA said do you have a Dictaphone CP said she didn’t think so DG said so you haven’t got a Dictaphone CP said actually yes I have got one I think it’s in my bag or my car OA showed CP a copy of a picture of a Dictaphone that clearly shows paused at 43 minutes. CP said she wasn’t recording anything at the time but uses the device to record patient notes prior to writing them up. CP then said she felt ambushed and did not wish to continue with the meeting, she stood up to leave. DG asked her to remain seated and said that there were only a few other questions. CP remained standing. OA asked CP why she was apparently recording their previous meeting CP said she wasn’t DG asked if she had the Dictaphone with her and if she could show there was no recording form [sic] the meeting. CP said she thought she might have the Dictaphone in her car and said again she wanted to leave to go to the toilet. It was agreed she could leave and come back afterwards CP left the room at 14:02 and did not return until 14:26 CP came back into the room and asked why pictures of the Dictaphone had been taken. OA said he saw it on the chair and wondered why it was in the room CP said it was not illegal to record conversations but hadn’t don’t [sic] so in this case. DG corrected CP and said that while it was not illegal to record conversations between private individuals it was illegal to then play them to a third part [sic] with out the express agreement of the individuals - however this was a work situation and there was an issue of trust and confidence being broken. CP then said that OA was bullying and harassing her. DG said the meeting she [sic] stop there and CP should leave. CP said I suppose I’m suspended now and should leave. DG said yes she would be suspended with immediate effect and should leave. DG said he would write to CP with the details.

“14. The next day on 15/09/2016, I was asked, at approximately 13:40hrs, by the Deputy Home Manager Jisha Paulose, to attend a meeting with Mr Ajayi at 14:00hrs in a meeting room at Beechlodge care home. This was an unscheduled meeting. When I went into the meeting, I was surprised to see a participant who was not introduced to me. This person I subsequently found out was the Human Resources Manager, David Gayler. He was sat next to Mr Ajayi and he asked me to sit down telling me that this was an “informal management meeting”

“Hi Olan I would like to get the letter out today inviting Catherine to a Disciplinary next Tuesday. Please could you send me your statement from the meeting so that I can include it with our evidence? Many thanks

“On or about 15th September 2016, the First Defendant acting in the course of his employment wrote and published to David Gayler (Human Resources Manager) of the Corporate Defendants and various other employees and officers of the Corporate Defendants (and/or other entities trading as Sussex Health Care) whose names are at present unknown to the

“… This is my own statement about my claim for damages made under the Defamation Act 2013 against the Defendants for malicious falsehood arising from a statement made by the First Defendant, Mr Olanrewaju Ajayi (Mr Ajayi). The statement was published by Mr Ajayi to his employers on the afternoon on Thursday 22/09/2016. Prior to the statement being published, Mr Ajayi also published two emails that were sent to SHC staff on the 19/09/2016 …”

“I am the husband of [Ms Parris] and I am also her employment tribunal lay representative. I am a consultant engineer and I work from home. I provide this statement in my own words in support of Ms Parris’ claim for damages made under the Defamation Act 2013 against the First Defendant, Mr Olanrewaju Ajayi (Mr Ajayi). The claim arises from a statement Mr Ajayi published to his employers on the afternoon of Thursday 22/09/2016 …”

“3 I was very surprised at the hearing on 4 December 2020 to hear that, even though the Claimant’s case as set out in her evidence for the application is that the only publication of my statement which she is suing on in this action is the email sent by me to David Gayler on 22 September 2016 (to which my written statement was attached as a Word document), she is now suggesting that I might have shown a written statement to Mr Gayler at some time between my meeting with him on the morning of 15 September 2016 and my meeting with him and the Claimant at 2pm later that day, i.e. before Mr Gayler suspended her. 4 I can state categorically that this is not the case. As at 15 September 2016 I did not have a written statement of my meeting with the Claimant, and I only had the photograph I had taken of the Dictaphone. When I went to see Mr Gayler, there was no written statement of any kind which I could show him and as I had to go to another meeting immediately after seeing Mr Gayler, I would not have had the time to create a written statement between finishing my meeting with him and setting off with him to meet the Claimant at 2pm that day. It was only after our meeting with the Claimant on 15 September that Mr Gayler told me that I would have to prepare a written statement, which as far as I can recall I started to do later that day. 5 I can also categorically confirm that I did not send my statement to anyone else other than Mr Gayler. I understand that Laura Fehilly is making a further statement to confirm from her searches of SHC’s systems that this is correct. 6 As for Mr Gayler’s email on 22 September, when he refers to “your statement from the meeting”, while I can’t speak for Mr Gayler, I of course presumed he was referring to the statement he had asked me to write on 15 September, and I emailed it to him later that day. I note that the original electronic version of the Word document that was attached to my email of 22 September has been located by Ms Fehilly and that its file ‘properties’ show that it was created by Dawn Goodes on 22 September 2016. Dawn Goodes was my PA, and I did what I would normally do which is to jot down handwritten notes myself of the main points, which I would then hand to Dawn to convert into a Word document. I am therefore absolutely sure that there was no written version of the statement in existence before my meeting with Mr Gayler and the Claimant on 15 September 2016.”

“6 I have located the email of 22 September 2016 in its original electronic form as stored on SHC’s servers. 7 I attach, in printed out form, an exact copy of: 7.1 the email itself in the form in which it is stored on SHC’s servers … 7.2 the Word file attached to it which constitutes the statement (entitled “OA - 14.09.16.doc”) … and 7.3 screenshots of the ‘properties’ that are stored along with this version of the email and the Word file … 8 The properties for the Word file show that it was created on 22 September 2016 at 14:03 (according to the time clock on the computer on which the document was created). 9 I discovered this electronic copy of the email by manually searching through the documents we had gathered in response to the subject access requests which the Claimant had made of the SHC group. These are stored together in one folder on our system. This email was included in that set of documents. 10 However, having noted that this email was sent from the First Defendant’s Gmail account, to which I do not have direct access, on 9 December 2020 I also asked Jason Bury, SHC’s IT Technical Manager, to undertake searches on SHC’s servers for any emails sent from the First Defendant’s Gmail account to any SHC email address in the period 1 September to 30 September 2016 inclusive, and also asked him to search for emails sent from the First Defendant’s SHC account in that period. This former search (emails from his Gmail account to SHC addresses) produced a list of 289 items (including the 22 September email), and the latter search (emails sent from his SHC account) generated 44. I have manually searched through all of these. I can confirm that other than the email of 22 September to Mr Gayler, I have not seen any email containing or attaching any kind of statement relating to the allegations made by the First Defendant which are complained of in these proceedings. 11 I should add, as an aside, that the fact that there are more emails sent from the First Defendant’s personal email account than his work account is not unusual – many employees, including the Claimant, used personal email accounts extensively. 12 More generally, as a result of various Data Subject Access Requests made by the Claimant from about August 2016 onwards, exhaustive searches were made of SHC’s electronic and manual records. My predecessor, Olive Jones, organised this for the SHC group together with Brethertons, our lawyers at the time who assisted us in undertaking this exercise. These searches were made not only of SHC’s computer and email systems, but also of all paper records. Following one court hearing, an order was made (which I understand to be in the bundle for the recent hearing) requiring SHC to undertake even more searches, including for documents containing any of the words Catherine, Parris, and CP. 13 I attach … a copy of the response of Donna Bates to the Part 18 request made by the Claimant in the data protection proceedings. Donna was the IT manager who did the searches at the time. This document demonstrates the extent of the searches she carried out, including going into individual care homes to do searches on local machines. 14 As a result of all of this, I understand from Brethertons that the Claimant was provided with many thousands of documents, and also received 10 lever arch files of hard copy documents. 15 I am confident, bearing in mind the extent of those searches and the searches I have now done, that there does not exist anywhere on SHC’s servers or local computers at individual care homes any other email or document dated prior to the start of the disciplinary proceedings involving the Claimant, in which the First Defendant’s allegations concerning the Claimant are contained. If any such document existed, it would have been located by now. It is utterly fanciful to suggest that the First Defendant sent the statement to anyone at SHC other than Mr Gayler.”

“Mr Ajayi’s evidence resulted in my forming a view of the Defendants’ organisation that, from a data protection point of view, was chaotic. The written policies were not enforced. The IT system was basic and not controlled by anybody. Each home had a standalone computer. The disclosure that Mr Gayler did give, which was after the disciplinary hearing, did not include his briefing note … I find that it was, in effect, the investigation report, albeit a very poor one, and should have been disclosed and it is an example of the inadequate response of the Defendants. … The Defendants’ response to the SARs request this is Mr Gayler’s response was to send three packs of copy documents, which appear to have been randomly put together, with no index … No one it carried out a thorough search for the Claimant's personal data … The picture of disclosure that I got from Mr Ajayi, albeit that I accept that he was not responsible for the search, was chaotic and piecemeal and it is clear, as Ms McMahon said on behalf of the Claimant, that the Defendants had motivation not to comply … … The Defendants had a duty to preserve the Claimant’s personal data. Mr Ajayi admitted that he deleted all the data on his laptop and his work phone was also given back in a vanilla state, i.e. no data was retrievable before he left the Defendant’s employment in 2018. He said he thought his laptop was backed up. I find it was not and he should have known it was not. I found him to be somewhat evasive and on almost all points relating to the data that he might have known about and I would say that his evidence was given with a view to protecting himself, which is perhaps not surprising given the other proceedings.”

“I am writing to inform you that an allegation regarding your conduct has been brought to our attention, specifically relating to the covert recording of a meeting between you and your Manager, Olan Ajayi. Such actions indicate a severe break down in the mutual trust between employee and employer. As the organisation deems this behaviour as gross misconduct, Sussex Health Care is taking disciplinary action against you. You are therefore required to attend a disciplinary hearing on Tuesday 27 September at 15:00 at Tylden House. The meeting will be conducted by Pauline McCann, Area Manager and Pauline will be supported by Paul Macken, Area Manager. Emma Lees, HR Advisor will also be in attendance to take notes throughout the meeting. This gives you reasonable time to prepare your case. A full investigation of the facts will take place against the following allegation: That during a meeting with your Manager, Olan Ajayi, on Wednesday 13 September, you used a Dictaphone to covertly record the conversation. In the Organisation’s view, this allegation constitutes gross misconduct and could lead to your dismissal. During the hearing we may refer to the following documents: • Minutes of the meeting held at Beech Lodge on Friday 16 September 2016 (1) • Photograph of Dictaphone showing paused state at 43 minutes 17 seconds • Disciplinary Procedure • General Regulations Covering All Staff (ref section 15.1) • Statement from Olan Ajayi • Letter from David Gayler dated 21 September • Email from David Gayler dated 22 September • Letter from Catherine Parris dated Sunday 19 July 2016”

“17 This document records that the Claimant was claiming £12,214.50 in respect of the basic award …As for the compensatory award, the Claimant claimed £45,722.99 for loss of earnings for the period of 25 January 2017 to 11 September 2020 (albeit the document records an incorrect subtotal of £36,796.49) … She also sought £350 for “loss of statutory rights”

“Total loss of Earnings (Compensatory Award) £50,045.16” … 18 Ahead of the Final Hearing, by way of an email from their then solicitors Brethertons LLP to the Employment Tribunal dated 28 January 2019, the Respondents conceded liability on an open basis for both wrongful dismissal and unfair dismissal … 19 On 12 August 2019, Mills & Reeve LLP wrote on behalf of the Respondents to the Claimant’s representative Mr Henman on an open basis making an offer of £70,000 in full and final settlement of the Claimant’s Employment Tribunal claim … Of that sum, the Respondents offered £12,214.50 in respect of the basic award and £49,483.20 in respect of the compensatory award. 20 The Final Hearing took place on 12-13 September 2019 at London South Employment Tribunal before Employment Judge Ferguson. 21 The judgment was as follows: “1. The Claimant was unfairly dismissed and is awarded a basic award of £12,214.50 and a compensatory award of £50,045.16. 2. The Claimant was wrongfully dismissed and is awarded £90.24 in damages. 3. The Respondent made unauthorised deductions from the Claimant’s wages and is ordered to pay the Claimant the gross sum of £237.90. 4. The application for a reinstatement or re-engagement order is refused. 5. The complaint of failure to provide a written statement of reasons for dismissal fails and is dismissed.” …”

“a) Whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted; b) Where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission; c) A very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept; d) Lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done; e) Gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation; f) It is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay; e) A much stricter view is taken nowadays of non-compliance with the CPR and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so.”

“(1) the history as regards the amendment and the explanation as to why it is being made late; (2) the prejudice which will be caused to the applicant if the amendment is refused; (3) the prejudice which will be caused to the resisting party if the amendment is allowed; (4) whether the text of the amendment is satisfactory in terms of clarity and particularity.”

“In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new case and why justice requires him to be able to pursue it. These principles apply with even greater rigour to an amendment made after the trial and in the course of an appeal.”

“(1) Particulars of Claim must include “a concise statement of the facts on which the claimant relies”, and “such other matters as may be set out in a Practice Direction”: CPR r.16.4(1)(a) and (e). The facts alleged must be sufficient, in the sense that, if proved, they would establish a recognised cause of action, and relevant. (2) An application under CPR r.3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should “grasp the nettle”: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, but it should not strike out under this sub-rule unless it is “certain” that the statement of case, or the part under attack discloses no reasonable grounds of claim: Richards (t/a Colin Richards & Co) v Hughes [2004] EWCA Civ 266; [2004] P.N.L.R. 35 [22]. Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment. (3) Rule 3.4(2)(b) is broad in scope, and evidence is in principle admissible. The wording of the rule makes clear that the governing principle is that a statement of case must not be “likely to obstruct the just disposal of the proceedings”

“In the context of r 3.4(2)(b), and more generally, it is necessary to bear in mind the Court’s duty actively to manage cases to achieve the overriding objective of deciding them justly and at proportionate cost; as the Court of Appeal recognised over 30 years ago, “public policy and the interest of the parties require that the trial should be kept strictly to the issues necessary for the fair determination of the dispute between the parties”: Polly Peck v Trelford [1986] Q.B. 1000, 1021 (O’Connor LJ). An aspect of the public policy referred to here is reflected in CPR r.1.1(2)(e): the overriding objective includes allotting a case “an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”.”

“The Claimant has brought a claim in respect of, and been awarded compensation for, the circumstances of her dismissal in the Employment Tribunal, which has exclusive jurisdiction for claims for unfair dismissal and the resulting loss. The claim brought in these proceedings, as a claim relating to the dismissal and the loss suffered as a result, is barred by the principle in [Johnson] (hereafter “the Johnson exclusion principle”).”

“Disciplinary proceedings had been commenced were thereafter started specifically to investigate and consider the allegation towhich the words complained of related, along with the Claimant’s response to it. The Claimant participated fully in this process and the First Defendant played no further role in it whatsoever.”

“11A. The Defendants have defences of consent and/or leave and licence to the Claimant’s claim. 11B. The Claimant’s employment contract for her position as Lead Physiotherapist (“the Contract”), which she agreed and signed on 11 March 2005, provided that the employer offered employment “on the terms and conditions set out in this statement”, and that the Claimant as the employee “understands the terms and conditions and accepts the offer”

“It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases … the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.” (iii) At paragraph 9: “If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.” (b) Acas’ Guidance on ‘Conducting workplace investigations’, which includes: (i) At page 15 “When individuals might be able to provide information relevant to the investigation, an investigator may interview them and/or ask them to provide a witness statement.” (ii) At page 27: “An investigator should provide a reasonable deadline for completion and ask the witness to answer specific questions or to include in their statement: • their name and, where applicable, job title • the date, place and time of any relevant issues • what they saw, heard or know • the reason why they were able to see, hear or know about the issues • the date and time of statement • their signature” 11F. In the circumstances, the Claimant consented to the provision by witnesses of written statements relating to allegations of misconduct in respect of her employment, made for the purposes of a disciplinary investigation and/or procedure. 11G. The words complained of were published by the First Defendant to Mr Gayler as part of a disciplinary investigation in the circumstances set out in paragraphs 13 to 25 below. In particular, the words were published upon Mr Gayler’s express written request to the First Defendant that he provide a statement summarising what had happened in the meeting with the Claimant of 14 September “so that I can include it with our evidence”; in other words, for the sole purpose of use in disciplinary proceedings involving the Claimant. 11H. In the circumstances the Claimant had consented, and/or granted leave and licence, to the publication of the words complained of, in accordance with the principle established by the Court of Appeal in [Friend]. … 46A. The Claimant’s claim fails to disclose reasonable grounds for bringing the claim and/or is an abuse of process: paragraphs 11.7 and 41 above are repeated. 46B. If, contrary to the Defendant’s primary case, it is not the claim in its entirety but only the Claimant’s claim for special damages that is barred by the Johnson exclusion principle, the remainder of the claim is an abuse of process under the principles set out in [Jameel]and falls to be struck out on that basis. Such remainder relates only to the publication of the words complained of to Mr Gayler during the disciplinary investigation, when he was already aware of the allegation and was under a duty to investigate it: paragraphs 13 to 25 above are repeated. There are no reasonable grounds for fearing repetition of the libel: the second sentence of paragraph 42 above is repeated. Any relief the Claimant might hope to obtain from such a claim would be out of all proportion to the resources necessary to try it, not least having regard to the very lengthy and wideranging plea of malice set out under paragraph 22.”

“There is nothing in this point. The disciplinary proceedings were the direct result of the allegations levelled at the claimant by the first defendant. The outcome was entirely foreseeable and no principle of the law of causation mandates that that outcome was not attributable to those allegations. Subject to the rule against double recovery, the claimant’s losses, as pleaded, seem to me to be prima facie recoverable. At any rate, this is not a strike out point and I dismiss that part of the defendants’ application as well.”

“… Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.” (2) In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160, Lord Sumption said at [24]: “The principle in Henderson v Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before.” (3) In Koza Ltd v Koza Altin Isletmeleri AS[2020] EWCA Civ 1018, Popplewell LJ (with whom Asplin LJ agreed) said at [42] (emphasis added): “… Many interlocutory hearings acutely engage the court’s duty to ensure efficient case management and the public interest in the best use of court resources. Therefore the application of theprinciples will often mean that if a point is open to a party on aninterlocutory application and is not pursued, then the applicantcannot take the point at a subsequent interlocutory hearing inrelation to the same or similar relief, absent a significant andmaterial change of circumstances or his becoming aware of factswhich he did not know and could not reasonably have discoveredat the time of the first hearing. This is not a departure from the principle in Johnson v Gore Wood that it is not sufficient to establish that a point could have been taken on an earlier occasion, but a recognition that where it should have been taken then, a significant change of circumstances or new facts will be required if raising it on a subsequent application is not to be abusive. The dictum in Woodhouse v Consignia [2002] EWCA Civ 275 that the principle should be applied less strictly in interlocutory cases is best understood as a recognition that because interlocutory decisions may involve less use of court time and expense to the parties, and a lower risk of prejudice from irreconcilable judgments, than final hearings, it may sometimes be harder for a respondent in an interlocutory hearing to persuade the court that the raising of the point in a subsequent application is abusive as offending the public interest in finality in litigation and efficient use of court resources, and fairness to the respondent in protecting it from vexation and harassment. The court will also have its own interest in interlocutory orders made to ensure efficient preparations for an orderly trial irrespective of the past conduct of one of the parties, which may justify revisiting a procedural issue one party ought to have raised on an earlier occasion. There is, however, no generalprinciple that the applicant in interlocutory hearings is entitled togreater indulgence; nor is there a different test to be applied tointerlocutory hearings.”

“In Woodhouse v Consignia plc[2002] EWCA Civ 275, a claimant who had unsuccessfully sought to lift a stay applied to do so a second time, and both the district judge and judge held that he could not have a second bite at the cherry. The Court of Appeal allowed an appeal. Brooke LJ, giving the judgment of the Court, said that there was a public interest in discouraging a party from making a subsequent application for the same relief based on material which was not, but could have been, deployed in the first application; that one of the reasons was the need to protect respondents to successive applications from oppression [55]; but that although the policy that underpins the rule in Henderson v Henderson had relevance as regards successive pre-trial applications for the same relief: “it should be applied less strictly than in relation to a final decision of the court, at any rate where the earlier pre-trial application has been dismissed.”[56] He then gave an example where an application for summary judgment under CPR Pt 24 had been dismissed, but a second application was made based on evidence that, although available at the time of the first application, was not then deployed through incompetence, but which was conclusive; the second application ought to be allowed to proceed [57]. The district judge and judge had therefore been wrong to regard the fact that the second application was a second bite at the cherry as decisive [58], and the Court of Appeal proceeded to consider the second application on its merits, regarding the fact that it was a second bite at the cherry as an important factor [61], but in the event decided that it would be a disproportionate penalty for the claimant to lose his right to damages due to a pardonable mistake by his solicitor, and lifted the stay [63].”

“It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen’s right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.”

“Captain Friend had since April 1987 until his dismissal in March 1993 been employed by the CAA as a Flight Operations Inspector… a formal complaint was laid before the CAA’s internal disciplinary panel … the panel recommended that the complaint should be dismissed … The panel’s recommendations were rejected by the head of the Operating Standards Division … the fourth defendant in the second action. As a result Captain Friend was dismissed by letter dated 1 December 1992. Captain Friend next pursued an appeal under the CAA disciplinary procedure, and this was heard on 2 and 10 March 1993 and dismissed on 17 March 1993. He then presented a final internal appeal which was dismissed on 16 June 1993. … Prior to the disciplinary proceedings, a number of senior employees of the CAA, including the five defendants in the second action, had written memoranda, numbering twelve in all, and dated between 1 August 1990 and 8 April 1991, which were highly critical of Captain Friend. These formed the basis of those proceedings, together with two subsequent memoranda compiled in June and September 1992 subsequent to the institution of those proceedings, and also numerous other documents. On 29 September 1995, one month after the conclusion of the EAT proceedings, Captain Friend issued his two libel writs, complaining in each case of the publication of all fourteen memoranda referred to above. The limitation period having started on 30 September 1992, Captain Friend limited his plea to the re-publication of the memoranda on and after 1 October 1992 to the respective members of the various tribunals (i.e. on the fourth day of the original disciplinary hearing before the panel, and thereafter throughout the internal appellate process): he did not claim in relation to the original publication by their respective authors of the fourteen memoranda, which of course fell outside the limitation period.”

“a person cannot consent to a malicious untruth, and, as he put it, natural justice does not include malice; otherwise disciplinary proceedings are in effect clothed with absolute privilege.”

“In my judgment the defendants here are entitled to rely on the defence of volenti and leave and licence in relation to both actions, substantially for the reasons given by [Counsel for the Defendants]. Captain Friend’s submissions seem to me to based on a basic misconception as to the nature of disciplinary proceedings. Inevitably they are launched as a result of some kind of accusation or complaint against an employee, and their essential purpose is to decide whether that accusation is true or false, for which purpose the accusation or complaint must inevitably be re-published to the disciplinary tribunal and those responsible for hearing any subsequent disciplinary or appeal proceedings. Natural justice comes into the picture in order to ensure that their adjudication is fairly carried out. It necessarily follows that an employee who accepts a disciplinary code such as the CAA’s as part of his contract of employment consents to the re-publication of the accusation or complaint as part of that process, otherwise there is no way in which, for his own protection as well for the protection of the interests of his employer, the truth or falsity of the accusation or complaint can be fairly established. … … Captain Friend’s consent to the publication of the accusation or complaint to those involved in the disciplinary adjudications is on the basis that nobody can know for certain whether that accusation is true or false until it has been re-published to, considered by, and adjudicated upon by those persons at the various stages of the disciplinary process.”

“I accept Captain Friend’s proposition that in most ordinary circumstances there would need to be evidence of a special express consent before a person could be held to have consented to the publication or republication of malicious libels on him/herself. In my judgment, however, the disciplinary process to which he assented when he accepted employment with the CAA necessarily involved the publication to the relevant officers of the authority of the documents that related to a disciplinary charge that was being investigated. Without access to those documents the authority could not conduct a fair inquiry. It is only the publication of the documents for the purposes of the inquiry of which Captain Friend makes complaint, and this publication is covered by his consent. As Hirst LJ has said, there was nothing other than the passing of the limitation period to prevent him from bringing an action for damages against the authors in respect of their original publication.”

“The manager will notify the employee in writing of the allegations against him or her and will invite the employee to a disciplinary hearing to discuss the matter. The manager will provide sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case. This will include the provision of copies of written evidence, including witness statements where appropriate.” (3) Ms Parris was not only required to keep herself aware of this policy, she was in fact aware of it: she sent a copy of it by email to Mr Gayler on 6 October 2016 in which she wrote “I have attached examples of what I would expect to see for the discipliniary [sic] and grievance procedures with the SHC/PP............. header and Sussex Healthcare footers. These are old copies, which is why I need the latest from the manual and they need to be controlled copies as explained previously”

“In order to succeed, a defendant must show that the claimant has unequivocally consented to the publication of the defamatory allegations and with full knowledge. That will generally turn on issues of disputed fact. It must be very unusual, therefore, to find a case where such a defence is so clear that the case can be disposed of at the pre-trial stage.” “It has to be shown that the Claimant’s consent was given with a full understanding of the relevant circumstances and that it was unequivocal.”

“This disciplinary procedure is entirely non-contractual and does not form part of an employee’s contract of employment”. (2) Again in contrast to the facts of Friend, the Statement in the present case is a primary publication which itself initiated the entire disciplinary process. InFriend, the claim was limited to re-publication to the respective members of the tribunal of various documents. In the present case, the publication complained of is not to the tribunal members during the course of an ongoing disciplinary process, but is instead the substantive publication which itself caused the disciplinary process. (3) The present claim concerns an allegation of malice by knowingly lying. It is inconceivable that anyone would consent to a process where there was no redress against a malicious allegation, or that a person would willingly consent to malicious publications. To the extent that is compelled by a contractual disciplinary process, it would only be due to inequality of bargaining power. The Court should be cautious about striking out or granting summary judgment in reliance on Friend in a case where it is not clear that there is adequate protection against malicious motivation. (4) Ms Michalos placed reliance on the decision of Eady J in Spencer v Sillitoe [2003] EWHC 1651at [33]-[35]. In that case, it formed part of the claimant’s case that the first defendant had made up allegations that the claimant had threatened to sabotage the contracts of their employer (the second defendant), and he brought claims for libel based on various alleged publications of those allegations including publications to Miss Shirley Phillips (i) at the time when she was appointed in order to go through the requirements of the employer’s published disciplinary procedures (and in accordance with the ACAS Code of Practice) and (ii) when she subsequently requested “some tangible evidence to serve as the basis for her investigation”

“I exhibit [the Human Resources section] of the staff manual… This is the only staff manual I am aware of and Mr Boghani has confirmed to me that the Staff Manual was applicable to employees across the SHC Group i.e. those working for the Second Defendant, Third Defendant and Alpha Care.” “Having reviewed the SHC Group’s records, the only other disciplinary procedures that I have found were issued in 2018 and 2020. Therefore, this is the disciplinary procedure thatappears to have been in place at the time the email was sent in September 2016.” (3) Ms Parris’ evidence is that even after the disciplinary process started she was sent different versions of the policy (see §12 of her second witness statement). Her access to copies of policies and procedures was limited because they were kept in a locked manager’s office. Employees were not encouraged to photocopy the policies and procedures and had to sit down and read them there and then (see §9 ibid). This does not accord with the requirement for clear and unequivocal consent with full understanding as articulated in Otuo v Morley. (4) It appears that Ms Parris and Mr Ajayi were employed by different employers. In these circumstances, it is difficult to see how Ms Parris can have contractually consented to Mr Ajayi making allegations to a different entity. Ms Parris was held in the Employment Tribunal Proceedings to be employed by the Partnership; whereas it is admitted in this claim that Mr Ajayi is employed by SHCC (see Defence, §5). Mr Gayler’s email sent at 8:53 on 22 September 2016 asks (emphasis added) “Please could you send me your statement fromthe meeting so that I can include it with our evidence”

“For my own part I do not think that the application to amend in this case was made late in the ordinary sense. Although particulars of claim and a defence have been served, there has been no case management conference and directions have not been given for preparation for trial. There has been no disclosure and no exchange of witness statements. In truth the proceedings are still in their infancy and I can see no grounds for thinking that the proposed amendment would be likely to have a disruptive effect on the progress of the proceedings. Accordingly, if I were satisfied that the claim had a real prospect of success, I would not refuse permission to amend on that ground.”

“As a result of this maliciously false statement the Claimant was dismissed from her employment and she has suffered losses”), and (d) this amounts to an attempt to sidestep the statutory restrictions on claims for unfair dismissal, and is an impermissible incursion into “the Johnson exclusion area”

“there is not one hint in the authorities that the ... tens of thousands of people that appear before the tribunals can have, as it were, a possible second bite in common law and I ask myself, if this is the situation, why on earth do we have this special statutory framework? What is the point of it if it can be circumvented in this way? ... it would mean that effectively the statutory limit on compensation for unfair dismissal would disappear.””

“… a common law right embracing the manner in which an employee is dismissed cannot satisfactorily coexist with the statutory right not to be unfairly dismissed. A newly developed common law right of this nature, covering the same ground as the statutory right, would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limits for making claims. It would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals, not the ordinary courts of law.”

“The implied term of trust and confidence cannot be used in connection with the way the employer/employee relationship is terminated. There may be cases where the particular manner in which an employee is dismissed or the circumstances attending dismissal is or are confined to events occurring at the same time or immediately before the dismissal. In other cases that manner and those circumstances may include a pattern of events stretching back over a period. It is a question of fact for the trial judge to determine in each case.”

“Held, (1) (Baroness Hale of Richmond JSC dissenting) that damages were not recoverable for breach of contract in relation to the manner of a dismissal even where the breach was of an express term of the contract of employment regulating the disciplinary procedures leading to dismissal … (2) Allowing the appeal in the first case (Baroness Hale of Richmond JSC, Lord Kerr of Tonaghmore and Lord Wilson JJSC dissenting), that it was impossible to divorce the findings on which the claimant founded his claim for damages for loss of reputation from the dismissal itself … (3) Allowing the appeal in the second case (Baroness Hale of Richmond JSC dissenting), that the damages claimed by the claimant for loss of reputation were caused by the dismissal itself … Per Lord Walker of Gestingthorpe, Lord Mance and Lord Dyson JJSC. Provisions about disciplinary procedure incorporated as express terms into a contract of employment are not ordinary contractual terms agreed by the parties to a contract in the usual way, since Parliament, in the unfair dismissal legislation, linked a failure to comply with such procedures with the outcome of unfair dismissal proceedings and could not have intended that the inclusion of such provisions in a contract would also give rise to a common law claim for damages … Per Lord Kerr of Tonaghmore and Lord Wilson JJSC. If a cause of action is in existence before dismissal, it is not extinguished by subsequent dismissal, even if the dismissal is consequent on the state of affairs which gave rise to the cause of action … Per Lord Phillips of Worth Matravers PSC. If the courts in developing the common law principles of measure of damage can exclude a claim for stigma damages for breach of contract which consists of wrongful dismissal, it is equally open to them to exclude such a head of claim for breach of contract which consists of a failure to comply with a disciplinary code, and the chain of causation linking a failure to follow a disciplinary procedure is more tenuous than the chain of causation linking wrongful dismissal with stigma ...”

“The fact is that Mr Edwards was dismissed on the basis of and contemporaneously with the disciplinary findings about which he seeks to complain. In so far as his claim consists of loss allegedly suffered by dismissal, it falls directly within the “exclusion area” which was recognised in Johnson v Unisys Ltd [2003] 1 AC 518 and which I have referred to … above. But, in my opinion, it is quite unrealistic in this context to seek to differentiate any of the loss he has allegedly suffered from his dismissal. Any breach of disciplinary procedure did not cause of itself identifiably separate loss or illness... Where the findings reached in the disciplinary proceedings and the dismissal are, as in the present case, a part of a single process, the remedy for any unjustified stigma lies, short of circumstances establishing a claim for defamation, in the restoration of reputation which may in the ordinary course be expected to result from a successful claim for wrongful or unfair dismissal.”

“It is accepted that the reputational damage which he is alleged to have suffered was inextricably linked to the fact of his dismissal. His cause of action in respect of that reputational damage did not exist before he was dismissed, therefore. Such financial loss as he may have suffered as a consequence is the result of his dismissal. I consider, therefore, that compensation for damage to his reputation could only have been sought as part of his unfair dismissal claim.”

“it is impossible to divorce the findings on which Mr Edwards seeks to found his claim for damages for loss of reputation from the dismissal when they were the very reasons for the dismissal itself.” (3) Ms Parris’ case as to damage is on all fours with that of Mr Botham. As in his case, the damages she seeks are explicitly said to be the result of (and plainly were the result of) her dismissal. They are “inextricably linked” to the dismissal, and as such may only be sought in an unfair dismissal claim. a. In so far as the claim is one in malicious falsehood, it requires pecuniary loss, or the likelihood thereof: that is only the loss flowing from dismissal (PoC §27). As such there is no independent cause of action. b. In so far as the claim is in libel, the allegations of serious harm (PoC §20) and damage (PoC §29.2, 29.3, 29.5, 29.6, 30-30.9) depend upon the dismissal and its consequences. Unlike in McCabe (but like Mr Botham in Edwards), Ms Parris has not sought to amend to limit her claim to remove reliance on the consequences of dismissal. Her claim should be taken as it is pleaded. (5) Nor is this a problem that could be cured by amendment. The dismissal is the core of the claim. Without it, Ms Parris would only be able to complain about the damage allegedly caused to her reputation in the mind of Mr Gayler, by the publication of the Statement. This publication was at a time when Mr Gayler had (i) already heard Mr Ajayi convey his concerns to him, which had led him (ii) to hold a meeting with Mr Ajayi and Ms Parris to discuss the incident; and thereafter (iii) to request Mr Ajayi to set out his account in a statement. Any damage caused by the repetition of the allegation in those circumstances would be so trivial that it would fail to satisfy the serious harm to reputation requirement of section 1 of the Defamation Act 2013 (or if it did, that allowing a libel claim on it to proceed to a full High Court trial would be grossly disproportionate and an abuse of process: Jameel v Dow Jones [2005] QB 946). (6) That Ms Parris is seeking the very same damages for dismissal that she sought in the Employment Tribunal Proceedings has been explicitly recognised by Mr Henman (acting on her behalf), when he stated in those proceedings that “there is an issue of double recovery in the High Court claim”, and, in a passage which he cites in §19 of his witness statement dated 5 November 2020, that she sought “just enough of [her] losses to bring the value up to full compensation – in other words we don’t [reduce] liability claims in other proceedings”

“The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area” and “An employee’s remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute”

“If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom”

“Any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal subject to the various constraints to which [he had] referred”

“20 I have made enquiries with staff in my (HR) team, many of whom have worked for within the SHC Group for longer than I have. My colleagues stated that, up and until around February 2019, it was the policy of the SHC Group to only give references that confirm the dates that the employee worked for the employer and the employee’s job title. From around February 2019, references also confirmed the employee’s place of work and contractual hours. 21 References which confirm the dates that the employee worked for the employer and the employee’s job title are commonly referred to in the HR industry as “factual references”

“I had seen two jobs advertised in late January … One advertised job was in Responsive services with the Sussex Community Foundation Trust at Horsham hospital … This service was very similar to some of my experiences at SHC, but rather than treating service users over several years, my interactions would be for weeks before discharging the patients into follow up ‘continuing care services’. I applied for this job on 01/02/2017 a full month before my appeal against dismissal was to be held (although at that time this outcome was unknown but presumed). I requested application information on three part time jobs during February, one in Responsive services, the others in the neurological community team and musculoskeletal services. I completed application forms for the first two … I spoke to the Manager of Responsive services, Karen Perry, and she confirmed with Claire Watts (one of my referees that worked in the adjacent building) that I was a suitable candidate despite my gross misconduct dismissal from SHC … Ms Perry told me if I passed through the NHS formal application process, she would employ me. References were requested from SHC by the NHS but there was no answer. I was advised if there was no response to the reference from SHC, I would not be employed … I contacted my union representative at the Chartered Society of Physiotherapy (CSP) and she then eventually contacted SHC … As a result an inaccurate one-line reference was sent to the NHS from SHC … on 21/03/2017 … After I had been accepted for the advertised post, I then arranged a meeting with my new manager to discuss my starting salary. The advantages of working for the NHS over other commercial or private health care organisations are significant, and I was impressed with the support for new staff as well as future role development offered by the NHS …”

“… there is nothing in the rules precluding an application at a later stage in the proceedings. I do not see why delay, of itself, should be a relevant matter. If there is no “defence to the claim” or the defendant cannot show that there is an “issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim” then delay can make no difference. Of course in some circumstances delay in proceeding summarily, coupled with an adoption of the procedures for full trial, may well suggest a weakness in the plaintiff’s case or may even sometimes suggest some other reason for trial. But it would be that weakness or reason, not the delay itself, which led to refusal of the application. Moreover the plaintiff may well, having indicated an intention to go to full trial and then having both incurred his own costs and caused the defendant to incur his in going down that route, have to suffer a penalty in costs if he brings his Order 14 application late. But otherwise I can see no objection to a late application for judgment under Order 14. Indeed, in some cases, and I think this is one, its use may be commendable as saving both the extra costs and time involved in a full trial. If these defendants truly have no defence it is worse than pointless for them to be present at the trial, which will be complex enough without them. The plaintiffs are right to clear the decks as far as possible before trial.”

“Keeping a proper balance between theArticle 10right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”

“… At the end of the day the trial will determine whether the publications made to the five subscribers were protected by qualified privilege. If they were not, it does not seem to us that the jury can properly be directed to award other than very modest damages indeed. These should reflect the fact that the publications can have done minimal damage to the claimant’s reputation. Certainly this will be the case if the three subscribers who were in the claimant's camp prove to have accessed the Golden Chain list in the knowledge of what they would find on it and the other two had never heard of the claimant. If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick. If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort.”

“Depending on the circumstances of the case, the claimant may be able to satisfy section 1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.”

“In my judgment, the authorities demonstrate that it is the quality of the publishees not their quantity that is likely to determine the issue of serious harm in cases involving relatively small-scale publication. What matters is not the extent of publication, but to whom the words are published. A significant factor is likely to be whether the claimant is identified in the minds of the publishee(s) so that the allegation “sticks” … (ii) A feature of the “sticking power” of a defamatory allegation that has potential relevance to the assessment of serious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees (“the grapevine effect”) (Slipper v BBC[1991] 1 QB 283, 300 per Bingham LJ). InSloutsker vRomanova[2015] [2015] EWHC 545 (QB); [2015] 2 Costs LR321, Warby J said at [69]: “… It has to be borne in mind that the assessment of whether there is a real and substantial tort is not a mere numbers game, and also that the reach of a defamatory imputation is not limited to the immediate readership. The gravity of the imputations complained of… is a relevant consideration when assessing whether the tort, if that is what it is, is real and substantial enough to justify the invocation of the English court’s jurisdiction. Thegraver the imputation the more likely it is to spread, and to causeserious harm. It is beyond dispute that the imputations complained of are all extremely serious.” …”