NO DUTY OF CARE OWED BY A JOINTLY INSTRUCTED EXPERT (ON THE FACTS OF THIS CASE): EXPERTS GIVING EVIDENCE ABOUT BEING EXPERTS: MUCH TO READ HERE

The judgment of Mrs Justice Lambert in Radia v Marks [2022] EWHC 145 (QB) is essential reading for anyone who instructs experts in litigation. It is also essential reading for experts.  The judge dismissed a claim in negligence against a medical expert who gave evidence, as a joint expert, in Employment Tribunal Proceedings.  She found that there was no duty of care owed in relation to the allegation made, there was no breach and, in any event, causation was not established. The judgment also deals with the role of the expert witnesses called in the current case.  Their reports went far beyond the limited scope that directions allowed, further the medical experts were not in a position to give “expert evidence on giving expert evidence”, the determination of those issues were for the trial judge.

“… just as it is no part of the role of the expert to seek to support the credibility of a witness or party. The critical duties and responsibilities of an expert, consistent with the overriding objective, include objectivity and independence: expert evidence should be and should be seen to be the independent product of the expert uninfluenced by the exigencies of litigation; an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise”

THE CASE

The claimant brought earlier proceedings in the Employment Appeal Tribunal.  Those proceedings had concluded unsuccessfully with the claimant being ordered to pay costs in relation to those proceedings.

“The Tribunal found that in a number of respects the claimant had not told the truth and that he had intentionally misled the Tribunal. There was no appeal from that judgment. As threatened by Jefferies in pre-action correspondence, the dismissal of the claim was closely followed (in March 2017) by an application by Jefferies for its costs incurred in defending the claim. This application succeeded. In a further reserved judgment (“the costs decision”) the Tribunal found that the claimant had acted unreasonably by telling lies which were “deliberate, serious and central to the case” concerning his weight following chemotherapy and concerning a holiday in Mexico in May 2011 which he had alleged he had been “forced to miss.”

The claimant had been ordered to pay the costs of the proceedings, these totalled £606,672.66.

THE CLAIMANT’S ACTION AGAINST THIS DEFENDANT

The defendant is a consultant in haematology and stem cell transplantation.  He was instructed in the tribunal proceedings as a single joint expert to report upon Acute Myeloid Leukaemia.

THE CLAIMANT’S ALLEGATIONS AGAINST THE DEFENDANT

The primary allegation was that the defendant failed to read the medical notes with care and notice the discrepancy between the claimant’s recorded weight at a key time in his medical treatment and the weight that the claimant reported in the medical examination. This, it was alleged, led to the claimant’s credibility at the hearing being undermined.

The judge noted that there were three issues to be considered.

1. 1. There are three central issues for my determination.

a. The first is whether the loss alleged (however characterised) falls within the scope of the duty owed by the defendant to the claimant. This issue raises the question of what harm (or what risk) the defendant was under a duty to protect the claimant from.

b. The second issue is whether the defendant acted in breach of that duty. It is worth noting at this stage that the defendant accepts that he made a mistake by not picking up the references to the claimant’s weight on discharge when reviewing the hospital records. The question for me is whether that mistake (and the other allegations) amount to a breach of duty. To my initial surprise, the parties deployed expert evidence on this point in order to assist me on the standard of care of an expert witness. I return to this later.

c. The third issue, putting it broadly, is one of causation. Both factual and legal causation.

THIS ACTION COULD NOT BE USED AS A COLLATERAL ATTACK ON THE TRIBUNAL FINDINGS

The judge made it clear that these proceedings could not be used as a collateral attack on the earlier findings of the tribunal.

1. I start by clearing the decks of an important issue. This action cannot be used as a means of mounting a collateral attack upon the findings of the Tribunal, either the liability decision or the costs decision. Such an attack would be an abuse of the court process. The liability decision was not appealed. The costs decision was appealed but that appeal failed in the Employment Appeal Tribunal and permission to appeal was refused in the Court of Appeal. A significant element of the reasoning of both appellate decisions was that the Tribunal had been entitled to reach the findings of fact which it recorded. No appeal lies from the orders of any of the bodies previously involved in this case to the High Court. The case is not advanced by Dr van Dellen as an attack upon the findings and it is implicit in the way in which he argues the case that he respects that, on the material before the Tribunal, its findings were unimpeachable. However, in his evidence, Mr Radia came, at times, perilously close to arguing that some of the Tribunal’s findings were wrong, even setting aside issues of credibility. I make it clear that the only basis upon which I can approach this claim is that the Tribunal had been entitled to reach its factual conclusions on the evidence before it and that given those factual conclusions its decisions were lawful. Any suggestion to the contrary I put to one side.

THE SCOPE OF THE EXPERT’S DUTY

The judge considered the scope of the expert’s duty.  Her judgment also considers the role of the two experts instructed by the parties in the current litigation.

1. 1. The first issue which I address is whether the harm alleged falls within the scope of the duty of care owed by the defendant to the claimant. Although the point was not explored by either party in submissions, I accept that the claim falls outside established categories of negligence and is therefore a novel claim to which the six-point plan identified in Meadows v Khan [2021] UKSC 21 and its linked case Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 should be applied. Applying that six-point plan therefore, the scope of the duty owed by the defendant to the claimant is the first substantive issue with which I must grapple, there being no dispute that a claim for pure economic loss is justiciable.

1. 1. It is not contentious that the defendant owed the claimant (and Jefferies) a duty of care as a single joint expert in his assessment of the claimant’s medical condition and in his reporting upon his condition to the Tribunal. See Lord Dyson in Jones v Kaney [2011] UKSC 13 at [95]: “it is not in dispute that an expert who acts in civil litigation owes his client a duty to act with reasonable skill and care. He owes this duty in contract … and in tort … He holds himself out as a skilled and competent person. The client relies on his advice in determining whether to bring or defend proceedings, in considering settlement values and in appraising the risks of trial. The client also relies on him to give the court skilled and competent expert opinion evidence“. It had been, observed Lord Dyson, “rightly acknowledged” by Lord Chadwick in Stanton v Callaghan [2000] QB 75 at 88E that an expert was a professional man who undertook for reward to provide advice within his expertise. In Jones Lord Dyson found there to be no conflict between the duty owed by an expert to his client and his overriding duty to the court in CPR 35(3). He said at [99]: “His duty to the client is to perform his function as an expert with the reasonable skill and care of an expert drawn from the relevant discipline. This includes a duty to perform the overriding duty of assisting the court. Thus, the discharge of his duty to the court cannot be a breach of duty to the client“.

1. 1. The question for me therefore is not whether the defendant owed the claimant a duty of care but whether the harm or loss claimed falls within the scope of that duty. Causation does not answer that question: it does not follow that every element of loss which would have been avoided but for the breach of duty would have is actionable. See Lord Oliver in Caparo Industries plc v Dickman [1990] 2 AC 605 at 651: “the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach: it is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained“. In determining whether the loss is of a kind for which the defendant must take care to protect the claimant, the court should consider the purposes for which the information was given and the circumstances in which it was given, see Lord Roskill in Caparo at 629B. It is necessary to see what risk the duty is supposed to guard against and whether the loss represents the eventuation of that risk. This must be judged objectively.

1. 1. I must first therefore identify the nature of the loss or harm asserted by the claimant. On this point I agree with Ms Whittaker that the harm alleged is the Tribunal’s finding that the claimant was a dishonest witness and had been dishonest in his interactions with Jefferies. As pleaded, the defendant’s mistake “caused the Employment Tribunal to find that the claimant had been dishonest“. It is alleged that this finding then led to the financial losses sustained by way of the costs order made by the Tribunal: “the costs of Jefferies in the ET awarded against the claimant on the basis that the claimant had been found to be dishonest following the evidence of the defendant“. The issue therefore is whether the scope of the defendant’s duty to the claimant extended to protect the claimant from the risk of an adverse credibility finding, or a finding of dishonesty. Without hesitation, my answer to that question is that it did not.

1. 1. I reach this view for the following overlapping reasons.

i) My starting point is the letter of instruction. The defendant was instructed to provide expert evidence on three matters: the course of the claimant’s illness from its onset; an explanation of the treatment which he had received and its side effects and the effect of the cancer upon the claimant’s condition during two time-periods. Those were medical matters which were within his expertise as a specialist in blood cancer. He had a duty to report on those matters, following assessment of the claimant, for the purpose of assisting the Tribunal in its decision making and assisting the claimant and the defendant in their respective evaluations of the merits of the disability discrimination claim and claim arising from the alleged failure to make reasonable adjustments. It was no part of his retainer by either party to advise or assist on issues concerning the credibility of the claimant or the reliability of the claimant’s evidence. Nor was it part of his retainer to advise upon the credibility of the Jefferies witnesses. This was not the purpose of his instruction.

ii) Nor could a medico-legal expert in these circumstances give evidence about the credibility of the claimant (or any party). The expert’s opinion is admissible only to the extent that it addresses issues which are within his or her expertise and not matters of common knowledge which the Tribunal would be competent to address for themselves. Although a question was posed of the defendant by counsel instructed by Jefferies inviting him to agree with her that a person who is unreliable in one part of his evidence is likely to be unreliable in another, this question was impermissible. As well as inviting speculation, it was not within the defendant’s expertise to comment on the point. The defendant was in no better position than the Tribunal (or anyone else for that matter) to give an opinion upon whether the claimant was telling the truth. Putting it succinctly, the scope of the defendant’s duty of care in this case cannot extend to the protection of a party from a risk upon which the defendant was not competent to give an opinion.

iii) I accept that one of the effects of a medico-legal expert’s evidence may be to highlight an oddity or inconsistency or discrepancy in lay evidence which may then inform a Tribunal’s judgement on matters of credibility and reliability of parties and witnesses. This happens frequently. But the fact that this is, or may be, a side-effect of the expert evidence does not extend the scope of the duty of such an expert to protect a party or witness from the risk of adverse credibility findings, just as it is no part of the role of the expert to seek to support the credibility of a witness or party. The critical duties and responsibilities of an expert, consistent with the overriding objective, include objectivity and independence: expert evidence should be and should be seen to be the independent product of the expert uninfluenced by the exigencies of litigation; an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within their expertise (see “The Ikarian Reefer” [1993] 2 Lloyds Rep 68). To extend the scope of the expert’s duty to the protection of a party from the risk of an adverse credibility finding would create a real conflict between the expert’s overriding duty to the court and his or her duty to the party. Lord Dyson in Jones aligned the duties on the basis that by complying with the overriding objective of independence and objectivity, the expert was fulfilling his duty to the client. But such an alignment would be unsustainable if the scope of the duty to the client was extended in the way proposed by the claimant in this case. All the more so, when, as here the expert is instructed jointly by both parties.

1. 1. Dr van Dellen’s submissions do not address the issue of the scope of the defendant’s duty, at least not head-on. In his questioning of the defendant however he sought confirmation that the topic of the claimant’s weight at any particular time was a relevant if not important factor in the defendant’s assessment of the claimant’s fatigue and that weight was therefore an issue within the scope of the defendant’s instructions. In his closing submissions Dr van Dellen put it this way: that it was trite law that he needed to establish that “reporting on weight was within the scope of the duty of care“. But this submission misses the point. It ignores the need, when determining scope of duty, to take into account the harm claimed and ask whether the type of harm falls within the scope of the duty. This is not a new ingredient in the tort of negligence although its location in the analysis may have been elevated as a result of the judgment in Meadows. Dr van Dellen’s approach does not seem to me to take it into account at any stage.

1. I therefore find that the harm asserted does not fall within the scope of the defendant’s duty of care. This is dispositive of the claim in tort. However, the claim in tort and contract falls at each of the other hurdles also.

THERE WAS NO BREACH OF DUTY

The judge commented on the expert evidence, in particular the fact that both experts went far beyond the scope of the court order allowing expert evidence.

1. 1. The parties relied upon expert evidence addressing the defendant’s standard of care in reporting upon the claimant’s medical condition. I was surprised that permission had been granted for this purpose until I was shown the order of Master Yoxall which limited the terms of the instruction to the topic of “weight loss during oncological treatment“. I understand why it might have been thought appropriate to make such a case management order given that the claimant challenged the accuracy of the weights included in the defendant’s report and sought to underscore the importance of weight loss when an assessment was made of his post-treatment condition. I can see how it may have been thought, out of an abundance of caution, that the court would be assisted by expert evidence on, for example, whether a weight of 50 kg was ever a realistic weight following treatment. However, the expert evidence ranged far beyond the confines anticipated by the Yoxall order.

1. 1. The claimant relied upon the expert evidence of Professor David Dodwell. He is a consultant clinical oncologist at Oxford Cancer Centre which is a site-specialized breast oncology practice associated with Churchill Hospital in Oxford. As he acknowledged in the pre-amble to his report he had no expertise in haematological cancer (including AML) and his advice was therefore confined to the “generic issue of the content, completeness and accuracy of the medical expert input about weight provided to the employment tribunal and the conduct of the medical expert involved in relation to that discrete issue“. The Defendant relied upon the evidence of Dr Robert Marcus a consultant haematologist and a specialist in cancers of the blood. Both provided reports, dealt with questions posed in a joint expert meeting and gave evidence to me.

1. 1. I intend no criticism of either of the experts, both of whom I am quite satisfied were doing their best to assist me by answering the questions posed by counsel. However, there was at times a sense that they were addressing issues in a different case to the one before me. This is not a re-trial of the issues before the Tribunal which had at its heart the question of whether the claimant had suffered from a significant degree of post AML fatigue such that he was less able to do his job than others.

1. 1. The relevant breach (and linked factual causation) issues for me are quite discrete. They concern: first, what the claimant told the defendant during the consultation on 22 March 2016 and specifically when he said that his weight had been 50 kg; second, whether the defendant’s admitted mistake in not picking up the record of weight in the hospital notes was a breach of duty; and third, what should have been done by the defendant in the event that he had picked up the reference in the records. Whether the expert report should have been more detailed, whether it should have included reference to the claimant’s weight two months before diagnosis or at the time of his return to work are not relevant to the issues before me save to the extent that they impact upon any of the three questions. Likewise whether the report should have sought to reconcile and explain the reference to the weight of 35 kg, is not an issue that I need address. Nor am I concerned with whether the claimant was suffering from post-treatment fatigue or not.

1. 1. The first question is one of fact. The second and third questions are matters for me to judge and to which the expert evidence is, at best, peripheral. Generic issues concerning the standard of care of an expert, for example: whether in general medical records should be checked or re-checked; the structure of a medico-legal report; whether sources of information should be referred to, are not it seems to me matters within the expertise of a medical expert. Putting it bluntly, neither Professor Dodwell nor Dr Marcus were competent to give expert evidence on the provision of expert evidence. Setting aside the difficulty of determining how the expertise of such a person could be judged (whether by the number of reports written; whether the person was a member of the Academy of Experts or had taken a course in expert reporting) these generic issues are ones for the judge to evaluate taking into account CPR 35. The expert evidence has provided me with only marginal assistance in resolving this case.

1. I start with my finding about what, on 22 March 2016, the claimant did or did not tell the defendant concerning his weight at the end of treatment. I am wholly persuaded that the claimant informed the defendant on 22 March 2016 that his weight was 50 kg at the end of his treatment. The claimant’s case before me that he told the defendant that he had weighed 50 kg earlier in his treatment or when his weight was at its nadir is not sustainable and I reject it. …

NO BREACH OF DUTY

In any event the judge found that there was no breach of duty.

1. 1. Both experts gave their opinion upon whether the failure to pick up the weight in the hospital records amounts to a breach of duty by the defendant. Professor Dodwell considered that it was a breach of duty, arguing that because the reported weight loss had been so significant (and the worst ever seen by the defendant) this should have prompted what Dr van Dellen referred to as a targeted search of the records for confirmation. Dr Marcus’s evidence on the point was more nuanced. He considered that a review of the records after the consultation would have been preferable but that a failure to spot the entries did not amount to a mistake of such seriousness as to be a breach of duty. He referred to the volume of notes, the manner in which they had been sent to the defendant and the time constraints in which the defendant was working.

1. 1. I have considered the expert opinions with interest but conclude that the issue of whether the failure to pick up the weight reference in the hospital notes is, essentially, a matter for me. The defendant accepts that it was a mistake. Both experts are in agreement that it would have been preferable. However, I do not find that it was a breach of the standard of care to pick up the references in the notes to the discharge weight. The volume of records was large. As the defendant told me, and I accept, his review of the records could not be limited to only those which concerned the claimant’s weight: there were several hundred pages of blood results which he also had to examine for the purpose of ascertaining whether the claimant’s fatigue could be due to a contributory cause (anaemia, renal impairment). The records were provided to the defendant late in the day. It is clear that they had not been organised, let alone paginated by the claimant or his solicitors which would have made them more time consuming to review. No chronology was provided and no attempt made by either the claimant or the solicitors to help the defendant navigate his way through the emailed tranches of records. As the defendant told me, ultimately, even if he had picked up the weight references in the records it would not have altered the thrust of his report which was that the claimant had suffered from post treatment fatigue. For all of these reasons, I do not find that it was a breach of duty to fail to identify the weight references in the records.

1. 1. As to whether there should have been a targeted search of the records for confirmation of what the claimant had told the defendant, both experts were engaged by counsel in the question of whether it was reasonable for an expert to accept what a claimant says at face value or whether it should be cross checked or challenged. Neither expert was, it seems to me, qualified to comment on the point. I am quite satisfied that there was no need for a targeted search for the purpose of confirming the claimant’s account. The defendant was undoubtedly entitled to accept the word of the claimant as to his weight on discharge, particularly a claimant who is highly educated and intelligent and apparently reliable.

1. 1. I accept that, given the significance of the weight loss which was, according to the defendant, the worst that he had encountered, there may be a superficial attraction to the argument that there should have been a detailed review of the records after the consultation. However as the defendant said, and I accept, he did review the records as studiously as he could within the time constraints, including after the consultation. He was also aware that, if there were errors in his report, or there was a need for him to clarify any matter, then both parties would be able to raise questions of him or challenge the accuracy of his report. If, as Dr van Dellen asserts, it was imperative that there was a targeted search of the records after the assessment to cross-check the weights, then this could have been undertaken as well by the lawyers instructed by the claimant as by the defendant himself. I pause to note that just such an exercise must have been undertaken by the legal team instructed by Jefferies. In these circumstances, I do not find that the defendant’s failure to undertake a search of the records after his consultation constituted a breach of duty.

1. Finally on breach, I simply record that the further allegation made by Dr van Dellen that the defendant was negligent because he failed to maintain his opinion when questioned in the Tribunal is unsustainable. The expert’s duty is to answer the questions in a manner consistent with his overriding duty, not to stick to his guns when the underlying basis for that opinion shifts. I need say no more on this point.

CAUSATION

The case also failed on causation.

1. 1. My next finding concerns what would, or should, have happened if the defendant had picked up on the discrepancy between what he had been told by the claimant and what was in the records. The defendant told me that, had he done so, he would not have contacted the claimant directly to seek to clarify matters with him but would have brought the issue to the attention of both sets of solicitors. Given that he was instructed as a single joint expert, he told me that he would have retained the weight reported to him by the claimant in the report but would have added the references found in the records. I accept that this is what he would have done. I have no reason not to accept the defendant’s account. Whether such a course of action would, hypothetically, have amounted to a breach of duty, I deal with below.

1. 1. Both experts gave evidence about what would or should have happened in the event that the hospital weight had been picked up. They suggested that the defendant should have contacted the claimant to discuss the discrepancy with him. I do not accept that this is a question that the experts are competent to comment upon. It is a matter for the court to determine what should have been done in this situation. Again, without hesitation, I find that, if the discrepancy had been picked up, the appropriate course for a single joint expert would have been to have recorded both weights in the report and leave it at that. To omit the claimant’s account of his weight could have been unfair to the claimant whose own account of his weight loss may have been relevant to his own perception of his fatigue. Nor would it have been appropriate for the defendant to have contacted the claimant to “discuss the discrepancy” to reconcile the discrepancy and iron out its significance. Either course would have been inconsistent with the defendant’s overriding duty.

1. 1. I deal now with the claimant’s wider case on causation: that but for the defendant’s failure to record accurately what the claimant had told him and/or his failure to check the medical records, the Tribunal would not have found the claimant dishonest and would not have made the adverse costs order.

1. 1. I reject the claimant’s case. I have no doubt that, even if the Tribunal had not found the claimant’s account to the defendant concerning his weight to be what it euphemistically described as an “untruth” it would still have found him to have been dishonest. In reality, the assertion does not bear even the most scant examination. I reach this conclusion for the following reasons:

i) As the Tribunal made clear, the finding that the claimant was dishonest was based upon a number of different factors, not just his account about his weight. Those factors were his tendency to be evasive in answering questions or, as it was put by the Tribunal in its liability decision, his persistent failure to answer questions put to him; his misleading assertion that he had been forced by Jefferies to miss his Mexican holiday (when in fact he had simply deferred the start by a few days); his misleading account that his knee injury had caused him to remain off work for one third of a year; the shifting sands of his account as to when he had become aware that his treatment potentially represented disability discrimination (end of 2014, June/July 2013, May/June 2010). In its liability decision, the Tribunal also found that the claimant had “behaved cynically” by sitting on serious allegations and choosing to deploy them tactically when it suited him. The Tribunal gave the example of the claimant’s assertion that his involvement with Moneybookers IPO had been blatantly illegal. As the Tribunal found, as a regulated person, the claimant was himself knowingly engaging in such “blatantly illegal conduct” or he had made a false allegation on oath. Either way, he was at serious fault. Although therefore the claimant’s account of his weight upon discharge was undoubtedly a factor informing the Tribunal’s conclusion that the claimant was dishonest, it was only one of many. In these circumstances it is impossible to sustain the argument that, but for one of those examples relied upon by the Tribunal, the claimant’s evidence as a whole would on balance have been accepted.

ii) A number of the complaints raised by the claimant in his grounds of claim involved an adjudication upon the relative reliability of the evidence of the claimant on the one hand and Jefferies’ witnesses on the other. As the Tribunal recognised, in the absence of contemporaneous documentation or other extrinsic evidence, where there was a conflict of evidence between the claimant and others, the Tribunal had to make a judgement as to where the truth lay or at least who provided the most obviously reliable account. This involved the Tribunal in making an assessment however, not just of the claimant, but of the witnesses called by Jefferies. In the same section of the liability decision which deals with the credibility and reliability of the claimant, the Tribunal considered the impression given by the Jefferies witnesses. Mr Taylor was “thoughtful and considered” and “careful to tell the truth” and “willing to candidly concede points where it was appropriate to do so.” Unlike the claimant, he gave the impression of giving full answers to questions and was not evasive. His account was backed up often with a “whole succession of documents” to which he was taken in re-examination. Mr Black was not so well prepared as his colleague and more confused but nonetheless candidly admitted where his recollection was imperfect. He was not disingenuous. The third witness, Mr Ions, was straightforward and prepared to admit things which were not necessarily in Jefferies’ interest.

iii) The claimant’s case overlooks that in making its assessment, the Tribunal had to consider not just the demeanour of the claimant but that of the other witnesses. It is clear that there was a striking difference. Just as the claimant appeared shifty and evasive, Jefferies witnesses appeared straightforward and candid, even to the extent that they made concessions against their interests.

iv) Also, I have found that even if the discrepancy had been identified by the defendant upon a review of the records, the report would still (and reasonably) have included reference to the claimant’s own account to the defendant as to his weight on discharge. The point would doubtless still have been explored by counsel instructed by Jefferies and the finding that the claimant had been lying to the defendant would still have been open to the Tribunal. The point may have lacked the degree of force and the claimant may have been forearmed. But the same conclusion is likely to have been reached by the Tribunal given its evident concerns over the veracity and reliability of the claimant’s evidence generally.

1. 1. There is an additional problem for the claimant. He connects the liability findings concerning his credibility with the costs order. However, as Ms Whittaker points out, this submission does not fit with the costs decision. The Tribunal considered that its findings of dishonesty did not justify a whole costs order, only an order for costs limited to two specific allegations. The Tribunal stated in terms that the other costs incurred in defending the claim did not flow from “these findings of unreasonableness”.

1. 1. The whole costs order was made because the multiple claims taken individually and as a whole had no reasonable prospect of success. The Tribunal noted that “many of the large number of complaints in the long list of issues failed on multiple grounds”. In many of the claims, the treatment which was said to have been unfavourable was not established and not one of the alleged treatments was found to be for a discriminatory reason.

1. 1. Most critically, the Tribunal found that the claimant knew when he raised his complaints of discrimination for the first time in 2015 that they lacked merit. As Judge Auerbach observed, the Tribunal had not, in its liability decision, gone so far as to say that the claimant had not believed that his complaints had merit and that they had been raised dishonestly. It had not needed to go so far. However, the Tribunal went on to make that finding as part of its costs decision because the claimant had never, at any stage of his five year post illness employment, raised his allegations of disability discrimination. He only did so when it was tactically advantageous to do so in 2015 when a severance package was being negotiated. It was for this reason that the Tribunal found that the claimant knew from the outset that his allegations lacked merit. It was this finding which was critical to the Tribunal’s decision on costs, not its earlier finding of dishonesty.

1. This claim fails for the reasons set out above. It fails both in tort and in contract. I note that the defendant also invites me to consider the duty nexus question and the legal responsibility question in the Khan six-point plan. The duty nexus question adds nothing to my analysis in this case nor on its facts do the further obstacles raised by Ms Whittaker of remoteness of damage and the defence of illegality.