PROVING THINGS 124: “PUT BLUNTLY: THAT EVIDENCE IS WHOLLY INADEQUATE”: DEFENDANT’S EVIDENCE ON AN INJUNCTION APPLICATION
In Jahangiri v St. George’s University Hospitals NHS Foundation Trust  EWHC 2278 (QB) Mr Justice Nicklin observed that witness evidence put forward by the defendant was far from adequate.
“The Court is best assisted when the evidence of someone who is responding to the account of an event given by another witness indicates clearly what is accepted or disputed and provides any other relevant facts. Further, where a centrally important issue is the making of a particular decision, the Court can reasonably expect to be given a clear explanation as to (a) who made the decision; (b) on what material; and (c) why”
The claimant, a consultant surgeon, sought an interim injunction against the defendant’s decision to exclude her from working in a hospital, pending a disciplinary investigation. Both parties filed evidence in support. The claimant’s witness statement was detailed and addressed the relevant criteria in some detail. The defendant’s evidence, the judge found, was – in part – “wholly inadequate”.
THE DEFENDANT’S EVIDENCE
The judge was critical of the evidence that was served by the defendant.
The evidence of Professor Rhodes as to (a) the decision-making process leading up to the decision to exclude; and (b) what took place at the meeting with the Claimant is most unsatisfactory. The Claimant and Mr Leigh’s witness statements were served on 17 August 2018. Professor Rhodes’ statement is dated 22 August 2018. Although Professor Rhodes may not be familiar with the Court’s expectations about witness statements and evidence, the Defendant’s solicitors certainly are. The Court is best assisted when the evidence of someone who is responding to the account of an event given by another witness indicates clearly what is accepted or disputed and provides any other relevant facts. Further, where a centrally important issue is the making of a particular decision, the Court can reasonably expect to be given a clear explanation as to (a) who made the decision; (b) on what material; and (c) why. Professor Rhodes’ evidence fails to do this. Indeed, given that XK’s email was not available until afterthe decision to exclude, and so the references in the quotation above to “this evidence” and “a statement” cannot include or be a reference to the email, it is impossible to ascertain what information or evidence was available to the unidentified decision-maker(s) upon which he/she/they made the decision.
The only other statement provided by the Defendant is from Jacqueline Totterdell, the Chief Executive of the Defendant. She was on annual leave when the material events concerning the Claimant’s exclusion took place, although she states that she was in contact with the hospital during her absence and was “briefed about any developments on this matter“. Ms Totterdell does not explain her role in the decision to exclude the Claimant or what she had been told. That is so despite (a) being identified as one of the people who was involved in the decision-making; and (b) that she bore “overall responsibility for overseeing exclusion procedures and for ensuring that cases are properly managed” (§8 MHPS Policy – see  above). As to her involvement, Ms Totterdell simply says in her witness statement:
“I do not intend to repeat the allegation about the events on 6 August 2018 which led to the Claimant’s exclusion… as these are clearly described in Andrew Rhodes’ witness statement. I do wish to state that I wholeheartedly supported the decision that was made to exclude [the Claimant] on 9 August 2018 which was made after discussion with me.”
i) In what discussions did Ms Totterdell participate?
ii) With whom?
iv) What was she told about what XK had said and what did she understand the Claimant had done?
v) Was she aware of the explanation that had been given by the Claimant and Mr Leigh as to why the Claimant had tried to contact XK?
vi) Did she ask whether XK had been told the Claimant’s explanation for trying to contact her and what XK’s response was?
vii) Did she conclude that the Claimant’s exclusion was necessary? If so, on what basis?
viii) Did she consider alternatives to exclusion?
ix) Why did she conclude that alternatives to exclusion had to be rejected?
x) Did she inquire, or was she told, of the consequences for the hospital (and patients) of an immediate exclusion of the Claimant?
xi) Did she consider these consequences when deciding whether it was necessary immediately to exclude the Claimant?
Criticism can also be made about the lack of similar information, evidence and explanation in Professor Rhodes’ witness statement, but at least he has addressed some of the issues. The Defendant has not provided witness statements from Mr Holt or Ms Low (who attended the meeting at which the Claimant was excluded) or from the Deputy Director of HR, Stephen Jones, who was one of those identified by Professor Rhodes as having been involved in the decision to exclude. Even allowing for the (relatively) limited time before the hearing, these omissions are surprising. No application was made by the Defendant that it be granted further time to put in further evidence.
The judge then addressed the defendant’s decision to extent the period of exclusion. Again there was a dearth of evidence from the defendant.
No evidence has been submitted by the Defendant as to the decision-making process behind this further decision to exclude the Claimant. I recognise that the letter was sent on 24 August 2018, but it would have been immediately obvious to the Defendant (and their advisors) that this second exclusion was likely to be challenged by the Claimant. Mr Quirk has invited me to deal with this second decision to exclude as being embraced by his application for an interim injunction to reinstate the Claimant. Mr Cheetham QC has not objected to that course and it seems to me to be clearly advantageous to both parties to resolve this issue now. The alternative would be that the parties would simply be back in Court, in about a week’s time, on a further application by the Claimant for an injunction in relation to this second exclusion
The judge granted the claimant the injunction.