Court of Appeal: at what cost?

You might think that our time at the Court of Appeal would be taken up with the issue of greatest public interest; namely the fact that managers of a major UK hospital have seriously and repeatedly misled even Parliament about the scope and findings of safety investigations.

On six-figure salaries, the managers knew of failings such as in the death of Caitlyn Parry but used public funds to instruct their QC to submit falsely that their denials were “without falsehood”. To distract from this mess, their QC attacked me on side issues, claiming I’d never been offered a six-figure sum (without irony) and that gagging had never been discussed.

In fact, the hospital had offered to pay me from 2012 to 2014 (not to work), and contribute also to my legal costs [04.12.12]. Privately, their HR director had already admitted to the BMA that they were prepared to be “generous” and pay me up to 2 years [19.10.12]. In the event, BMA-appointed lawyers drafted a counter offer of 3 years’ pay [11.12.12]. Presented with these three items of evidence, two High Court Judges have already said this “offer amounted to a six figure sum” (Mr Justice Soole) or “substantial compensation” (Mr Justice King).

At the time, a senior BMA-appointed lawyer told me “gagging” was a “common part of any settlement, not just WB [whistleblowing cases]” and that the hospital was insisting  documentary evidence be destroyed. Helpfully, her junior solicitor noted down the gagging discussion.

Paying whistleblowers years of salary (to e.g. sit on a beach) may avoid the hospital having to declare pay-offs to journalists and Treasury alike. Likewise, gagging is officially banned, but there are ways to achieve the effect. Requiring the destruction of evidence may leave a whistleblower unable to evidence concerns, and at risk of being sued for defamation instead.

For medics, it’s becoming clear that what some lawyers say in settlement discussions, and what they’ll admit later, may be two different things. Dr Chris Day has had a similar experience when it comes to cost threats in his own whistleblowing case.