Neverending Day

Whistle-blower Dr Chris Day’s acrimonious four year legal battle with Lewisham and Greenwich NHS Trust and Health Education England appeared to be over in October when he dropped his claim against them before cross-examining any witnesses, and agreed a settlement agreement declaring that all parties had miraculously acted in good faith all along. As the Eye reported (Eye ), ‘after suffering six days of cross-examination by two tax-funded QCs, Dr Day decided not to risk financial ruin and agreed to drop his claim. In return, Dr Day will not be pursued for eye-watering costs.’ However, Day has now applied to the Employment Tribunal to set aside the settlement agreement and to request a reconsideration of the judgement, after disagreements about whether he was threatened with costs were made public. Day’s lawyers argue that when agreeing to the settle Day was ‘operating under a mistake or pursuant to a misrepresentation’. The application hearing should determine who is telling the truth. 

The discussions surrounding the settlement agreement were supposedly protected by ‘without prejudice privilege’, and Day remained compliant and silent leading some to wrongly conclude he’d received a pay-off. However on November 13, Dr Day was contacted by Telegraph journalist Tommy Greene with evidence that the Trust and HEE may have both disclosed and misrepresented the protected discussions. Greene asked both parties if they had specifically threatened Day with costs. The trust responded ‘Lewisham an Greenwich NHS Trust did not ask its legal representatives in the case to make a significant cost threat to Dr Day when he was under oath, and further, did not make this request at any point…. It is important to be clear that settlement negotiations were initiated by Dr Day himself, firstly through his legal representative while Dr Day was in the course of giving evidence, and then again at the point that Dr Day had concluded his evidence. Dr Day made these approaches to settle with the Trust by withdrawing the claim, not because of any pressure placed upon them by the Trust but because it was apparent to them that Dr Day’s case was not going well. At the point that Dr Day withdrew his claim, the Trust had decided that it would not pursue Dr Day for costs and we have been clear from the outset that the Trust does not want to discourage other colleagues from raising matters of concern.’ Vicki Diaz, Senior Communications Manager at HEE stated ‘Health Education England did not threaten Dr Day in any way at any point during these proceedings.’

The Trust and HEE may be trying to distance themselves from the behaviour of their lawyers, Capsticks and Hill Dickinson, but Dr Day is now free to respond publicly to the ‘no threat’ claims. He is clear that he only agreed to drop the case because of cost threats he received during and after cross-examination, and while the settlement agreement was being negotiated. Day states that at no point in the run up to the hearing were cost consequences referred to. They were only mentioned once he was under oath. On Sunday 7 October, when Day had completed just 2 half days of his 6 day cross-examination, his barrister Chris Milsom requested a telephone conference and told Day that Ben Cooper, QC for the Trust, had proposed a ‘drop hands offer’ to not seek costs if Day withdrew his claims. If he refused to accept and lost his claim, they would seek to recover costs. Day states he was told that the HEE was not then party to the offer but would seek to recover the £55,000 in costs awarded against them in May (Eyes passim). On October 11, at a conference with his barrister and solicitors, Day was told both parties had now adopted the ‘drop hands offer’. If Day refused to accept this and proceeded to cross examine witnesses, the offer would be withdrawn. Day was told that the total cost liability for the October hearing was estimated at £500,000, with the £55,000 claim from HEE for the May hearing on top. 

Day and his wife decided that, on the basis of the cost threats, they were not prepared to accept the risk to their family home and financial security. On October 12, during the settlement negotiations, the Trust and HEE’s counsel Angus Moon QC used the costs threat to insist Day consent to an agreement that stated all individuals employed by the Trust and HEE had acted ‘in good faith’. Day was told this was referred to by Mr Moon as a ‘red line’ for HEE. Day has now alleged three further verbal threats made to his barrister while he was under oath. Two against his lawyers (a wasted costs application and a referral to the legal regulator) and a threat of GMC referral for him. The Trust has issued further public statements denying any threats and Day has responded by tweeting to Ben Travis, the Chief Executive of Lewisham and Greenwich NHS Trust, on December 22; ‘On the cost threats, the only possible options are; I am lying, you are lying or the lawyers are lying. The application hearing will get to the bottom of it.’ Meanwhile an independent report commissioned by Travis has exposed widespread staff bullying and harassment at the trust and ‘a menacing, threatening and heavy-handed culture.’ And over £700,000 has been spent trying to defeat Dr Day.