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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 285 (QB)
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Judge of the Queens Bench Division)
| CATHERINE MARY PARRIS
|- and -
|(1) OLANREWAJU AJAYI
(2) SHC CLEMSFOLD GROUP LIMITED
(3) SHC RAPKYNS GROUP LIMITED
Christina Michalos QC (instructed by IRH Solicitors) for the Claimant
Hearing date: 4 December 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to Bailii and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am on 12 February 2021.
Richard Spearman Q.C.:
"The Employment Tribunal proceedings were originally brought against "Sussex Health Care" and there was considerable correspondence about the correct identity of the Claimant's employer, culminating in a Preliminary Hearing on 20 November 2018, following which the two current Respondents, trading as Alpha Care, were found to be the Claimant's employers."
(1) Ms Parris consented, and/or granted leave and licence, to the publication of the words complained of, and the claim therefore fails in accordance with the principle established by the Court of Appeal in Friend v Civil Aviation Authority  IRLR 253 ("Friend").
(2) The claim is barred by the principle in Johnson v Unisys Ltd  1 AC 518 ("Johnson") (hereafter "the Johnson exclusion principle"); alternatively, Ms Parris' claim for loss as a result of her dismissal is so barred; in the further alternative, Ms Parris has been compensated for her dismissal in the Employment Tribunal Proceedings and cannot seek compensation for the same loss in the present claim and/or such claim is an abuse of process in accordance with the principles set out in Jameel v Dow Jones  QB 946 ("Jameel").
(3) The claim for special damages alleged to flow from the nature of the employment reference which was in fact provided by SHCC for Ms Parris, which is set out in §29.5 and §30 of the POC, has no real prospect of success.
(1) The Defendants have already made one application for summary judgment and/or to strike out the claim. That application was dismissed by Master Davison in March 2019. That decision was not appealed. The current application should not be entertained given that the principle in Henderson v Henderson  3 Hare 100 (that a party should not be twice vexed) applies to interlocutory applications.
(2) The claim form was issued on 14 September 2017. This is a very late application to amend, and the Defendants need to satisfy the "heavy burden [that] 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": see Quah v Goldman Sachs International  EWHC 759 at §38(b).
(3) There is no real prospect of the defence of leave and licence succeeding as: (a) in Friend, consent turned on contractual agreement to a disciplinary process, whereas in the present case the process was expressly stated to be non-contractual; (b) Friend concerned republication to a disciplinary tribunal, whereas what is in issue in the present case is the primary publication which started the disciplinary process; (c) the factual evidence is far from clear; and (d) Friend pre-dates the Human Rights Act 1998, and it would be incompatible with Article 8 of the ECHR for (in effect) absolute privilege to be accorded to allegations made by co-employees where malice is alleged and for a claimant to have no remedy at all.
(4) The Johnson exclusion principle is of no application in the present case because (a) the defamation claim is brought against different parties: judgment in the employment proceedings was against the Partnership (which employed Ms Parris), and neither of the individuals who were members of the Partnership is a party to the present claim, which are brought against Mr Ajayi and, vicariously, his employer (admitted to be SHCC); and (b) the claim in the present case is not for losses flowing from the manner of the dismissal, but is instead for losses flowing from a defamatory publication which is said to have caused the dismissal.
(5) There has already been an attempt to strike out the special damages claim which was dismissed; there has been no change of circumstances; and there is no basis to re-open this argument. In any event, there are substantive factual disputes about the extent to which clinical (as opposed to factual) references were provided, and it would be wrong to grant summary judgment in the face of that factual dispute.
"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
Feedback on Chailey visit
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."
(1) The device was in a pocket in Ms Parris' bag. If Mr Ajayi found it by searching her bag when she was out of the room, he could have had no real basis to believe that a small handheld Dictaphone inside a bag would be actively recording a meeting. It would be very unlikely to be adequate to record voices at a considerable height above where it was placed and he must have known that.
(2) Mr Ajayi's account that the machine was left in a loose sheaf of papers on Ms Parris' chair and that it beeped is, on the face of it, implausible. If she were recording a meeting unlawfully, it is obvious that leaving the Dictaphone behind in a loose sheet of papers would be very conspicuous.
(3) Mr Ajayi did not challenge Ms Parris when she returned to the room about the Dictaphone, which is inconsistent with a genuine belief she was recording the meeting or to hear her account. It is far more consistent with a desire not to wish to hear the truth (that she was not recording the meeting) or any real explanation.
(4) Mr Ajayi stated that he based his belief on the fact that Ms Parris had been recording the meeting due to the time shown on the Dictaphone screen because this mirrored the approximate length of the meeting at the point when she was out of the room. There is extrinsic evidence of Jane Medhurst that this was untrue and that Ms Parris had left the meeting to speak to her after a considerably longer period of 1 hour and 30mins. If this evidence is accepted, he could not have honestly believed she had been recording the whole meeting.
(1) First, a "Meeting Outline" which they say was produced by Mr Gayler, which states:
"Thursday 15 September 2016 14:00 at Beech Lodge
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)"
(2) Second, some "Notes from meeting with Catherine Parris" which the Defendants say is a document which was prepared by Mr Gayler. Although this document is dated "Friday 16 September", the papers before me contain a version in which that date has been changed in manuscript to "Thursday 15 September" and which additionally bears Mr Gayler's signature and the date "15.9.2016". In any event, it seems clear both from other contemporary documents and from Ms Parris' own evidence that the date of 16 September is a mistake for 15 September. These "Notes" state as follows:
"Meeting held at Beech Lodge at 14:00
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.
The meeting ended at 14:32"
"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". I had no idea what the meeting was about, but it was apparent that Mr Ajayi was running this meeting. In a Subject Access Request disclosure in 1/09/2017, I found out that he was the chair of the meeting and he was following an outline provided to him by Mr Gayler. I refer to an exhibit of this outline marked as "CMP1" page 22.
15. Mr Ajayi briefly showed me a photograph of a Dictaphone on an A4 paper sheet, but quickly withdrew it before I had a chance to study it. I was asked by Mr Ajayi if the Dictaphone that was shown in photograph belonged to me and if I had recorded the conversation of my meeting with him the previous day. A copy of the photograph was subsequently provided to me by SHC and I refer to a copy that is annexed to the exhibit bundle of Mr Ajayi's statement marked as "OA1" page 10. I confirm that this is a true copy provided to me by SHC as their evidence for my disciplinary hearing which is alongside Mr Ajayi's unsigned and undated statement (to go with the image) and I refer to what is exhibited by him and marked as "OA1" page 4.
16. I was a bit taken aback and surprised by the line of questioning and I was unsure if it was my Dictaphone as the photograph was shown to me very quickly, but I acknowledged that I did have a Dictaphone. I was not sure what the meeting was about, and I was guarded. I said something like I felt I had been ambushed and I did not want to continue with the meeting. I was not sure where the meeting was going and I asked if was being accused of something, because if so, I was not going to remain without a companion present. I had not recorded the meeting that I had with Mr Ajayi, and I told him and David Gayler that I had not recorded the meeting. I was feeling very uncomfortable and so I excused myself and said I had to have a comfort break. I then left the meeting, and on my return, I asked Mr Ajayi "when the photograph was taken". Mr Ajayi was a bit evasive about this and started to say that he found the dictaphone in my bag but was immediately corrected by David Gayler and he then said that "he saw it on the chair and wondered why it was in the room".
17. I was finding the meeting distressing and said to Mr Ajayi something like "You do not know what you have done to me but I will go now". Olan's manner was angry, he was leaning forward on the desk, his hands clenched and shoulders tense. His eyebrows were raised and his eyes were wide open and staring. I decided to leave …"
"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?
(1) Ms Parris' case on publication is pleaded as follows in §18 of the POC:"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 Claimant the following words … [the Statement is then set out in its entirety]"
(2) The Defence, which is dated 16 January 2018, pleads at §9 and §12:"9. As to paragraph 18:9.1 It is admitted that the First Defendant wrote the words complained of set out in paragraph 18. The First Defendant does not recall precisely when he did so, although to the best of his recollection it was on 15 September 2016.9.2 It is admitted that on the 22 September 2016 the First Defendant sent the words complained of to Mr David Gayler, the Human Resources Manager of the Corporate Defendants, by way of attachment to an email of the same date. It is averred that attached to the same email was the Photograph …9.3 It is denied that the First Defendant published the words complained of to anyone else whomsoever, whether as pleaded in paragraph 18 or at all.…12. The words were published on an occasion of qualified privilege."
(3) The Reply, which is dated 21 February 2018, pleads at §§8-10:"8. As to Paragraph 9.3, the First Defendant is put to proof that "he did not publish the words complained of to anyone else whether as pleaded in paragraph 18 [of the POC] or at all" in particular that he did not publish the words complained of to, inter alia, Dawn Goodes (the First Defendant's personal assistant) and/or Josephine Njie (Care Centre Manager) and Geanina Patru (Physiotherapist) including disclosing to the latter two the photograph.9. Paragraph 12 is denied. It is averred that if the First Defendant had no honest belief in the words, he therefore had no duty to publish the words and therefore the occasion did not attract qualified privilege. The First Defendant was under no duty whether moral and/or social and/or otherwise, to make a defamatory attack on the Claimant nor was he furthering or protecting any legitimate interest by so doing. Mr Gayler and any other employees of the Corporate Defendants to whom the words or similar words were published had no interest, whether corresponding or otherwise, in knowing the content of the First Defendant's false and damaging publications.10. Further or alternatively, in publishing the words complained of the First Defendant was actuated by malice …"
(4) The Defence pleads at §§24-26:"24. On 22 September 2016, Mr Gayler sent an email to the First Defendant informing him that he wished to invite the Claimant to a formal disciplinary meeting the following week. The email contained a specific request that the First Defendant 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.25. The same day, the First Defendant replied by email attaching his statement ("the Statement") and the Photograph. It is the Statement in respect of which the First Defendant is now sued.26. In the circumstances set out above, the words complained of were published in the context of a pre-existing relationship and in response to a specific request. The First Defendant was under a legal, social or moral duty to publish the words complained of and had a legitimate interest in doing so, and Mr Gayler was under a reciprocal duty to receive them and indeed had a common and corresponding interest in doing so. The words complained of were published on an occasion of qualified privilege."
(5) The Reply does not plead to §24 of the Defence, but pleads at §§21-22 as follows:"21. Paragraph 25 is admitted. It is averred that Mr Gayler took no steps to independently investigate the First Defendant's statement and no formal statement was taken from the Claimant, from Ms Medhurst or any other person than the First Defendant. Mr Gayler accepted without question the First Defendant's statement as being true.22. Paragraph 26 is denied and Paragraph 9 above is repeated."
"… 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"
"25. On 28th October 2016, following a disciplinary hearing chaired by Paul Macken (Area Manager) and Co-Chaired by Ms Chris Trott (Area Manager) of [SHCC and SHCR], [SHCC] dismissed the Claimant on the grounds of gross misconduct with effect from 2nd November 2016 with 12 weeks' notice.
26. On 8th March 2017, the Claimant's appeal from the disciplinary hearing was heard by Andrea Potter (HR Advisor) and James Greene (Area Manager) of [SHCC and SHCR] and her appeal was refused."
"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". Finally, she sought an uplift of 25% pursuant to section 207A Trade Union and Labour Relations (Consolidation) Act 1992 for failure to follow the ACAS code. Added together, these amounts total £57,591.24. The schedule acknowledges that the applicable cap is £50,045.16. The relevant section ends with the words: "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." …"
APPROACH TO THE ARGUMENTS
THE RELEVANT LEGAL PRINCIPLES
"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."
"i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success …
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable …
iii) In reaching its conclusion the court must not conduct a "mini-trial".
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial.
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction".
"(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  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  EWCA Civ 266;  PNLR 35 . 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". Like all parts of the rules, that phrase must be interpreted and applied in the light of the overriding objective of dealing with a case "justly and at proportionate cost". The previous rules, the Rules of the Supreme Court, allowed the court to strike out all or part of a statement of case if it was "scandalous", a term which covered allegations of dishonesty or other wrongdoing that were irrelevant to the claim. The language is outmoded, but … the power to exclude such material remains. Allegations of that kind can easily be regarded as "likely to obstruct the just disposal" of 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  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 PROPOSED AMENDMENTS
"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 to which 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."
(1) In §41, the Defendants seek to add the following plea:"Alternatively, if the Claimant's claim is not barred in its entirety by the Johnson exclusion principle then her claim for loss as a result of her dismissal is barred by that principle. Alternatively, the Claimant has now been compensated for her dismissal in her Employment Tribunal claim and it is denied that she can seek compensation for the same loss in this claim and/or such claim is an abuse of process."
(2) In §42, the Defendants seek to add the following plea:"As the First Defendant (who is now pursuing a career in academia) and all of the managers involved in the Claimant's dismissal have left the Second and Third Defendants, and the Claimant has been successful in her unfair dismissal claim, it is denied that there is any reasonable prospect of any repetition of the words complained of, or any reasonable ground for the Claimant to fear the same."
(3) In §43.4, the Defendants seek to add the words which are underlined below:"Paragraph 29.4 is not a proper particular of loss or damage. Insofar as it purports to complain of a separate defamatory publication of different words, it is denied that this is a permissible matter to raise in support of a claim for damages in respect of the publication of the words complained of. Insofar as it purports to make any case in support of an allegation of malice different to that pleaded in the particulars of malice the Defendants decline to plead to it pending clarification or amendment. In any event, it is denied that the facts alleged provide any support for such a case."
(4) In §43.5, the Defendants seek to delete some words and add others as set out below:"Paragraph 29.5 is denied, save that it is admitted that the Claimant was provided with a reference confirming the fact and duration of her employment. This is the Second Defendant's policy as regards all references, as was expressly stated in the Claimant's reference itself and so would have been clear to any prospective employer. As such, publication of the words complained of had no effect on the Claimant's reference. The First Defendant had no involvement in the Claimant's reference and it is in any event denied not admitted that the Claimant was handicapped in the labour market as a result of the reference. The Claimant successfully obtained and accepted an offer of employment, and would never have obtained any other form of reference from the Defendants regardless of the words complained of. Further, the Claimant has now been compensated in respect of the damage caused to her on the labour market by the circumstances of her dismissal, and it is denied that she can claim for the same loss in this claim."
(5) In §43.6, the Defendants seek to add the words which are underlined below:"No admissions are made in relation to paragraphs 29.6 or 29.7. Paragraph 29.6 relates to an alleged consequence of the Claimant's dismissal, any claim in respect of which is barred by the Johnson exclusion principle; and in any event, the Claimant has now been compensated for that dismissal and it is denied that she can seek compensation for the same loss in this claim."
(6) Amendments to similar effect are sought to be made to §§44-45A under the heading "Special Damages".
"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". Pursuant to ss.(1) and 3(1)(aa) of the Employment Rights Act 1996 (as amended), the contract was accompanied by a statement giving particulars of the Claimant's employment.
11C. Paragraph 23(d) of the statement provided that "You are required to read the staff manual containing policies, procedures and guidelines on commencement of your employment and at regular intervals thereafter as may be required to ensure you remain familiar with the Employer's policies, procedures and guidelines."
11D. The applicable "Disciplinary Procedure" set out in the staff manual at the time of the publication of the words complained of ("the Procedure") made clear that the investigation of disciplinary matters would include taking information, including written statements, from witnesses. It included that "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… At the hearing, the employee will be allowed to set out their case and answer any allegations and will also be given a reasonable opportunity to ask questions, present evidence, call relevant witnesses and raise points about any information provided by witnesses."
11E. Further, and irrespective of the content of the Contract and the Procedure, the Claimant knew and accepted that allegations of misconduct against her (or any other employee) would be investigated, and that such investigations would involve the publication of statements by witnesses about such alleged misconduct (such publications being a necessary part of any fair and proper investigation). In further support of this contention the Defendants will rely upon:
(a) The 'Acas Code of Practice on disciplinary and grievance procedures', issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, which provides minimum standards for employers to follow, and provides that:
(i) "Employers should carry out any necessary investigations, to establish the facts of the case."
(ii) At paragraph 5: "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 wide-ranging plea of malice set out under paragraph 22."
(1) The individual amendments have no real prospect of success and/or do not clear the summary judgment hurdle.
(2) The Defendants have failed to discharge the "very heavy burden" which lies on them to show the strength of the new case and why justice to them, Ms Parris and other court users requires them to be able to pursue it.
(3) There is no good explanation for the delay. The first witness statement of Simon Grant Pedley of the Defendants' solicitors dated 20 November 2020 offers only reasons for delay since the judgment of Employment Judge Ferguson dated 5 December 2019 was sent to the parties to the Employment Tribunal Proceedings on or about 14 February 2020 (following, according to Mr Pedley, determination of a reserved issue on costs). These reasons are inadequate (the substance is that between February 2020 and the date of issue on 21 September 2020 "we have been putting together this application with our clients and their counsel" (see §9)). There is no explanation at all as to why matters first raised in correspondence in May 2017 are now sought to be added by amendment over 3 years later, nor why this was not raised in the Defendants' previous application for summary judgment/strike out. (In this regard, in substance all that Mr Pedley states is that his firm was instructed by SHCC and SHCR "around May 2019 in place of Brethertons LLP" (§5) and that a stay of the present proceedings until after the determination of the Employment Tribunal Proceedings was sought and obtained "because of the various overlapping issues between the two claims" (see §§5-8)).
THE HENDERSON ABUSE ISSUE
"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."
(1) In Johnson v Gore-Wood & Co  2 AC 1, Lord Bingham said at p31:"… 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)  AC 160, Lord Sumption said at :"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  EWCA Civ 1018, Popplewell LJ (with whom Asplin LJ agreed) said at  (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 the principles will often mean that if a point is open to a party on an interlocutory application and is not pursued, then the applicant cannot take the point at a subsequent interlocutory hearing in relation to the same or similar relief, absent a significant and material change of circumstances or his becoming aware of facts which he did not know and could not reasonably have discovered at 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  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 general principle that the applicant in interlocutory hearings is entitled to greater indulgence; nor is there a different test to be applied to interlocutory hearings."
"In Woodhouse v Consignia plc  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 ; 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."
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 . 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 , 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 , 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 ."
"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."
Discussion and conclusion
THE ISSUE OF CONSENT
The decision in Friend
"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."
"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."
(1) Ms Parris' employment contract is contained in the "Statement of Terms and Conditions of Employment" naming her employer as "Sussex Health Care" and signed by her on 11 March 2005. Clause 16 provides "The disciplinary rules and grievance procedure applicable to your employment are attached to this statement as Appendix 2 and are non-contractual". Clause 23(d) provides "You are required to read the staff manual containing policies, procedures and guidelines on commencement of your employment and at regular intervals thereafter as may be required to ensure that you remain familiar with all the Employer's policies, procedures and guidelines". Appendix 2 is contained at pages 11-16 in exhibit "LJF1" to the first witness statement of Ms Fehilly dated 18 September 2020.
(2) The Disciplinary Procedure in force at the material time is that dated October 2013, and it included the following (see Ms Fehilly's first witness statement, §13):"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". The attachments to that email include the relevant extract from the Staff Manual titled "Disciplinary Procedure" which Ms Fehilly referred to in her first witness statement (see her second witness statement dated 20 November 2020, §4). The explanation for Ms Parris' reference to "old copies" is that the copy which she attached had a "Review Date" of November 2014, whereas the version exhibited by Ms Fehilly had a "Review Date" of November 2017. The material wording of the policies is the same.
(4) Similarly, the ACAS Code of Practice and guidance, to which employers and employees were obliged to have regard, required employers to investigate allegations and collate written evidence including statements: see Ms Fehilly's first witness statement, §§15-16. Ms Parris relied on the terms of the ACAS Code of Practice and guidance in her disciplinary appeal, a grievance complaint, and in the pursuit of the Employment Tribunal Proceedings, as appears from her letter requesting an appeal dated 9 November 2016, the "Catherine Parris Appeal Bundle" which she prepared, and her Employment Tribunal Grounds of Complaint. Further, at §34 of her amended second witness statement dated 17 November 2020, Ms Parris states:"Mr Gayler and Mr Ajayi and their line manager Ms Wallace along with the panel members for the disciplinary and appeal hearings had failed to conform to any semblance of the ACAS code nor had they followed the ACAS 'Conducting Workplace Investigation' guidance … There were extensive breaches of the ACAS processes and these had been highlighted in the ACAS documents and provided to the appeal hearing panel in preparation for my appeal hearing held on 08/03/2017. It is particularly relevant for my treatment the part about the duration of the suspension (which was a punitive 6 weeks in my case) and the suspected malicious complaints made by another person and how it should be investigated by an organisation …"
(5) In any event, as the Court of Appeal emphasised in Friend, this is a feature of natural justice. For allegations to be fairly and properly investigated they will inevitably need to be republished during the investigation. It is an implied term of any contract of employment that disciplinary processes will be conducted fairly: Lim v Royal Wolverhampton Hospitals NHS Trust  EWHC 2178 (QB) at .
(6) Ms Parris does not sue over Mr Ajayi's initial conversation with Mr Gayler, or over what Mr Ajayi said in the meeting with both her and Mr Gayler on 15 September 2016. Ms Parris sues only on the Statement, which was sent to Mr Gayler (a) upon his explicit request after that meeting, and (b) at a time when Mr Gayler was collating evidence for Ms Parris' disciplinary hearing. Friend is clear authority that there is a complete defence of consent, or as it was put in that case volenti and leave and licence, to any claim for libel or malicious falsehood in respect of such a publication.
(7) There is no basis for the allegation in the POC (at §18) that Mr Ajayi published the Statement beyond Mr Gayler to "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 Claimant", and the Defendants deny any such further publication. No such individuals have ever been identified by Ms Parris despite the voluminous documentation with which she has been provided ever since the disciplinary process commenced, and there is no evidence to support such wider publication. In her evidence, Ms Parris refers only to the email to Mr Gayler: "Furthermore, Mr Ajayi on the afternoon of Thursday 22/09/2016 published a statement and photograph (a picture that he illicitly and illegally took) … of a dictation recorder that he had removed from my personal bag without my authority or consent" (see her second witness statement at §22). The words complained of in the POC were plainly part of a statement for a disciplinary investigation sent by Mr Ajayi in response to Mr Gayler's request, and self-evidently the email attaching the Statement was sent to Mr Gayler only. In these circumstances, it would be fanciful for Ms Parris to persist in the suggestion that Mr Ajayi published the Statement to others.
(8) On these grounds, the Defendants request (a) that they have permission to amend the Defence to plead this defence; and (b) that the claim is struck out as disclosing no reasonable grounds for bringing the same, or that summary judgment is granted.
Ms Parris' submissions
"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."
(1) In contrast to the facts of Friend, the Disciplinary Code and Grievance Procedure in the present case are non-contractual. The entirety of the rationale in Friend hinged upon the fact that Captain Friend was contractually bound by the disciplinary code of the CAA. The disciplinary code in this case is expressed to be non-contractual: see Clause 16 cited above. This also appeared to Ms Parris to be the position in relation to the un-headed policy documents with which Ms Parris was provided prior to her disciplinary hearing and which "did not appear to be official documents" (see §27 of her second witness statement). Further, the Disciplinary Procedure states (emphasis in the original): "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. In Friend, 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  EWHC 1651at -. 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". Eady J stated:"31. [Miss Addy] invited my attention to the decision [in Friend]. This case provides authority for the proposition, at least, that where someone invokes his employer's disciplinary procedures, provided for in his contract of employment, in respect of an allegation against him, he must be taken to consent to the repetition of that allegation during and for the purposes of the disciplinary proceedings. In some ways, this principle is analogous to the absolute privilege which covers steps taken in court proceedings. Nonetheless, the rationale is not that of privilege but of consent or volenti non fit injuria.32. Miss Addy seeks to argue that this Friend principle would be sufficient to dispose of the defamation allegations from mid-August onwards, after the appointment of Miss Shirley Phillips to carry out her investigation. Miss Addy suggests that the oral communication to her on 15 August, and the provision to her of the typed-up notes of the meeting on or about the 24 August 2000, are properly to be regarded as part of the internal disciplinary proceedings. Mr Spencer should be treated as having given his consent - not in the sense that he invoked the disciplinary procedure himself, as had Captain Friend, but on the basis of having accepted the disciplinary procedures more generally by entering into his contract of employment.33. Various matters have to be considered in testing the validity of this analogy, and perhaps the first issue to address is the point at which the disciplinary proceedings can be regarded as having commenced. I believe Miss Addy accepts that her argument would only prevail after that point in time. She suggests that the relevant procedure was implemented from the moment Mr Sillitoe appointed Miss Phillips to carry out the investigation.34. As the Court of Appeal emphasised in Friend, "in this branch of the law the decision turns on the particular facts". It is thus clear that a judge needs to be wary of deciding matters prematurely if there are facts in dispute, requiring to be resolved at trial, which might affect the outcome. A factor which was clearly thought significant in Friend was the specific obligation upon the investigating officer "to check the motives of any informant". There was thus inbuilt protection against the risk of malicious motivation. Here the investigating officer was a newly appointed employee, answering directly to the initiator of the enquiry process (i.e. Mr Sillitoe). It is he who is accused by Mr Spencer of manufacturing the complaint and, in effect, "stitching him up".35. Against that rather different background, I am not sure that I can rule at this stage that the "Friend doctrine" is dispositive of the claims in respect of the 15 and 24 August publications. I cannot be as confident as the Court of Appeal was that there was adequate protection against malicious instigation. Miss Phillips asked for "tangible evidence" to form the basis for her investigation, and what she received was Mr Sillitoe's note of the June conversation — its origin being controversial at this stage. For the moment, therefore, I do not feel able to strike out the parts of Mr Spencer's pleading which relate to the August publications. It does not seem to me to be clear, beyond argument, that the formal enquiry process had begun prior to the moment when that document reached Miss Phillips' hands."
(5) In this case, Mr Ajayi's allegations and publication initiated the entire disciplinary process. This was not the position in Friend. In this regard, see Spencer v Sillitoe  EWHC 1651 at  "It does not seem to me to be clear beyond argument that the formal enquiry process had begun prior to the moment when the document reached Miss Phillips' hands". In Friend, the Court of Appeal accepted that a cause of action could lie for original publication as opposed to publication to the tribunal itself.
(1) As was emphasised in Friend, "In this branch of the law the decision turns on the particular facts". See, further, Spencer v Sillitoe  EWHC 1651 at .
(2) The Defendants are not even sure which version of the Staff Manual or disciplinary procedures applied and have to give hearsay evidence: see the first witness statement of Ms Fehilly at §11 and §13 stating (emphasis added):"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 that appears 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).
(5) Further, it is far from clear that publication only took place on 22 September 2016 pursuant to the request of Mr Gayler and that earlier publication had not taken place. Mr Gayler's email sent at 8:53 on 22 September 2016 asks (emphasis added) "Please could you send me your statement from the meeting so that I can include it with our evidence". Mr Ajayi's own evidence is that "To the best of his recollection, I wrote these words on 15 September 2016, which was the day after my meeting with [Ms Parris]" (see §6 of his second witness statement dated 17 September 2020). It is clear from the Notes of that meeting that Mr Ajayi had a hard copy of the Photograph at the meeting with Ms Parris at 2pm on 15 September 2016. Yet he sent the Photograph to Mr Gayler by email on 22 September 2016. The reference to the "statement from the meeting" suggests that the Statement already existed and had been shown to Mr Gayler and what he was requesting was a copy of the statement "from" the meeting.
Defendants' submissions in reply
(1) Ms Parris should not be allowed to advance a case which contradicts the evidence in the witness statements of her and Mr Henman served in opposition to the Defendants' application, which, as set out above, make clear that her claim is based solely on the publication of the Statement which took place on 22 September 2016, when Mr Ajayi sent it to Mr Gayler by email in response to an express request from Mr Gayler.
(2) If, contrary to the above, Ms Parris is permitted to advance a different case, it nevertheless has no real prospect of success, particularly in light of the Defendants' further evidence. Among other things, as the Statement was contained in a Word document which was created on 22 September 2016 at 14:03, that document cannot (as suggested by Ms Michalos in her submissions) have been printed out or shown by Mr Ajayi to Mr Gayler on 15 September 2016, in particular before the meeting between Mr Ajayi, Mr Gayler and Ms Parris which started at 2pm that day.
(3) It is "overwhelmingly likely" that the Statement was not published to Mr Gayler prior to 22 September 2016 in any event: (a) although named "OA - 14.09.2016", the Statement attached to Mr Ajayi's email of 22 September 2016 cannot have been created before the end of Mr Ajayi's meeting with Mr Gayler on 15 September 2016, because the last paragraph refers to that meeting; (b) the words "On Thursday 15th September I sought advice …" strongly suggest that the document was created after that date; (c) there is no reference to any such statement (whether in printed or manuscript form) in either Mr Gayler's note of the meeting of 15 September 2016 with Ms Parris or Mr Gayler's Meeting Outline for that meeting; (d) (in contrast to the Photograph) Mr Ajayi had no need to show Mr Gayler a statement, nor did Mr Gayler have any need to see it, prior to their meeting with Ms Parris; (e) if either man had such a statement in their possession at their meeting with Ms Parris, it is highly likely that she would have noticed, and made some reference to it, or asked for a copy of it, then or subsequently; (f) there is no reference to any such statement in any of the large volume of documents which were generated after Ms Parris' suspension on 15 September 2016; (g) if Mr Ajayi had created and shown the Statement to Mr Gayler prior to 22 September 2016, it is likely that Mr Gayler would have retained a copy, and he would have no need to ask for "your statement from the meeting" on 22 September 2016; (h) the fact that Mr Ajayi sent Mr Gayler a digital version of the Photograph on 22 September 2016 does not make it more likely that the Word document he sent on that date is a document that he had already shown to Mr Gayler.
(4) The suggestion that Mr Ajayi may have sent the Statement to anyone other than Mr Gayler is comprehensively rebutted by the Defendants' further evidence.
(5) Accordingly, the Court can be satisfied to the Part 24 standard that the first and only time that Mr Ajayi published the Statement was by the email of 22 September 2016.
(6) Equally, the disciplinary process was under way (a) by no later than the time when Mr Gayler sent his letter of 15 September 2016, recording that Ms Parris had been suspended pending investigation of Mr Ajayi's allegation and (b) probably by the end of the meeting of that afternoon (because the Note of that meeting records that Ms Parris was told she was suspended "with immediate effect", and her own email of the following day records that she thought she had been suspended, and felt that the meeting was a "direct disciplinary meeting").
(7) Ms Parris clearly agreed to submit to the disciplinary procedure identified by the Defendants: the "correct controlled copy of the Disciplinary Procedure" as Ms Parris described it was a document that she insisted on going into the bundle for the disciplinary meeting; that document was in substantially identical terms to the third of the enclosures included by Mr Gayler to his letter of 22 September 2016; and Ms Parris even highlighted the words "This will include the provision of copies of witness evidence, including witness statements where appropriate".
(8) Ms Parris cannot realistically dispute that a Disciplinary Procedure in these terms governed her relationship with her employer: (a) she wrote to Mr Gayler on 19 September 2016 to say that she was employed by Alphacare and asking whether there were "different policies and procedures for Alphacare employees"; (b) in response, she was told by email of 4 October 2016 that "while you are nominally employed by Alphacare this is part of the Sussex Healthcare Group and therefore you are subject to the SHC's policies and procedures"; (c) Ms Parris did not dispute this contention, but instead complained by email of 4 October 2016 that she did not appear to have been given the latest copy of the SHC Disciplinary Procedure and that the version supplied by Mr Gayler was an "uncontrolled document"; (d) in her email to Mr Gayler of 26 October 2016, Ms Parris complained "[you] are supposed to provide a thorough and detailed report (as per SHC disciplinary Procedure). According to ACAS this is based on witness statements and a full investigation of the facts from whatever relevant sources are available" (emphasis added); and (e) no alternative disciplinary procedure has even been suggested by Ms Parris.
(1) The reasoning in Friend does not depend upon the disciplinary procedure being one which is built into the contract. Brooke LJ refers to "the disciplinary process to which he assented when he accepted employment with the CAA". What matters is that the claimant has clearly assented to a process which involves the publication of the accusation or complaint to those involved in disciplinary adjudications, on the basis that (as Hirst LJ put it) "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". The basis of this implied consent is that it is for the benefit of both employee and employer, and to insist on the process being a contractual one would substantially erode the employee's protection.
(2) The argument that consent cannot extend to a malicious publication was considered and rejected by the Court of Appeal in Friend. There is no requirement that the disciplinary process to which the claimant has agreed must contain a specific obligation on the investigator to "check the motives of any informant" before consent can be implied. It is to be expected of any fair disciplinary process (including that to which Ms Parris agreed) that the bona fides of any complainant or informant would be enquired into. Insofar as Spencer v Sillitoe (a case on different facts) suggests otherwise it is wrong in its interpretation of Friend, and in any event not binding.
(3) The argument that consent to the publication cannot extend to the "primary publication" which "initiated the disciplinary process" is unfounded. What matters is whether or not the publication sued upon took place within or outside the ambit of the disciplinary proceedings. The publication complained of in the present case indisputably took place within and for the purposes of the disciplinary procedure to which Ms Parris assented. Nor can any sensible distinction be made on the basis that in Friend the publications sued on were re-publications of pre-existing memoranda. In any event, the publication Ms Parris sues on only came into being after the disciplinary procedure had commenced and for the purposes of that procedure.
(4) The reasoning in Friend is unaffected by the passing of the Human Rights Act 1998. The doctrine of implied consent in this field is based on a legitimate and proportionate balancing of the rights of employer and employee. This submission collapses into a repetition of the complaint that Ms Parris could not consent to a malicious publication, and that if Friend applies she has no other remedy. Both points are bad.
Discussion and conclusion
"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."
(1) The Defendants' current solicitors wrote to Ms Parris' solicitors on 13 June 2019 saying that they had replaced Brethertons LLP as solicitors for SHCC and SHCR and had instructed new Counsel, and (among other things) stating "The entire claim is liable to fail because all the defendants have available to them an unanswerable defence of consent (or more accurately, leave and licence) to the publication complained of, of precisely the same kind as was established in [Friend]", notifying an intention to issue an application for permission to amend the Defence, and asking Ms Parris to agree to a stay pending determination of the Employment Tribunal Proceedings and to the vacation of the CCMC then listed for 21 June 2019.
(2) After Master Davison had vacated the CCMC by Order dated 20 June 2019, Ms Parris' solicitors wrote on 11 July 2019 saying "You have advised that it is your intention to amend your client's defence. The Claimant does not want this to cause any delay and requests therefore that you take steps to amend the Defence if that is your client's intention at the earliest opportunity and provide details to us".
(3) Even if it was reasonable to delay the application for permission to amend the Defence until after the resolution of the Employment Tribunal Proceedings, I do not see why it was either necessary or reasonable to wait to do that until after a judgment which disposed of a reserved decision on costs had been received from Employment Judge Ferguson on or about 14 February 2020. Thereafter, in spite of the disruption caused by the Covid-19 pandemic, I cannot accept that it should have taken the Defendants' solicitors from February 2020 to the date of issue of the application on 21 September 2020 to "[put] together this application with our clients and their counsel".
(4) When considering delay, it is relevant to have regard to its cumulative effects. In this case, 2 years had elapsed (from May 2017 to June 2019) between the time when the Friend argument was first raised and the time when it was revived. A further 6 or 8 months (from June 2019 to the date of the judgment of Employment Judge Ferguson, namely 5 December 2019, alternatively to the date when that judgment was sent to the parties to the Employment Tribunal Proceedings on or about 14 February 2020) elapsed between the time when the Friend argument was revived and the expiry of the stay ordered by Master Davison until after the determination of the Employment Tribunal Proceedings. In light of those earlier periods, it was incumbent on the Defendants to progress their amendment application expeditiously after the stay expired. Making all due allowance for the effects of the Covid-19 pandemic, which lawyers have had to cope with by working remotely, I consider they did not do so.
THE JOHNSON EXCLUSION AREA
The relevant case law
"51. In 1968 the Royal Commission on Trade Unions and Employers' Associations under Lord Donovan recommended a statutory system of remedies for unfair dismissal. The recommendation was accepted by the government and given effect in the Industrial Relations Act 1971. Unfair dismissal was a wholly new statutory concept with new statutory remedies. Exclusive jurisdiction to hear complaints and give remedies was conferred upon the newly created National Industrial Relations Court. Although the 1971 Act was repealed by the Trade Union and Labour Relations Act 1974, the unfair dismissal provisions were re-enacted and, as subsequently amended, are consolidated in Part X of the Employment Rights Act 1996. The jurisdiction is now exercised by employment tribunals and forms part of the fabric of English employment law.
52. Section 94(1) of the 1996 Act provides that "An employee has the right not to be unfairly dismissed by his employer". The Act contains elaborate provisions dealing with what counts as dismissal and with the concept of unfairness, which may relate to the substantive reason for dismissal or (as in this case) the procedure adopted. Over the past 30 years, the appellate courts have developed a substantial body of case law on these matters. Certain classes of employees are altogether excluded from the protection of the Act. Section 108 excludes those who have not had one year's continuous service and section 109 excludes those over normal retiring age or 65. The tribunal may make an order for reinstatement, re-engagement or compensation. The latter consists of a basic award and a compensatory award. The basic award is related to the period of service but, by section 122(2), may be reduced by such amount as the tribunal considers just and equitable on account of the complainant's conduct before dismissal. A compensatory award under section 123(1) shall be, subject to qualifications:
"such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
54. My Lords, this statutory system for dealing with unfair dismissals was set up by Parliament to deal with the recognised deficiencies of the law as it stood at the time of Malloch v Aberdeen Corpn  1 WLR 1581. The remedy adopted by Parliament was not to build upon the common law by creating a statutory implied term that the power of dismissal should be exercised fairly or in good faith, leaving the courts to give a remedy on general principles of contractual damages. Instead, it set up an entirely new system outside the ordinary courts, with tribunals staffed by a majority of lay members, applying new statutory concepts and offering statutory remedies. Many of the new rules, such as the exclusion of certain classes of employees and the limit on the amount of the compensatory award, were not based upon any principle which it would have been open to the courts to apply. They were based upon policy and represented an attempt to balance fairness to employees against the general economic interests of the community.
And I should imagine that Parliament also had in mind the practical difficulties I have mentioned about causation and proportionality which would arise if the remedy was unlimited. So Parliament adopted the practical solution of giving the tribunals a very broad jurisdiction to award what they considered just and equitable but subject to a limit on the amount.
55. In my opinion, all the matters of which Mr Johnson complains in these proceedings were within the jurisdiction of the industrial tribunal. His most substantial complaint is of financial loss flowing from his psychiatric injury which he says was a consequence of the unfair manner of his dismissal. Such loss is a consequence of the dismissal which may form the subject matter of a compensatory award…
56. Part X of the Employment Rights Act 1996 therefore gives a remedy for exactly the conduct of which Mr Johnson complains. But Parliament had restricted that remedy to a maximum of £11,000, whereas Mr Johnson wants to claim a good deal more. The question is whether the courts should develop the common law to give a parallel remedy which is not subject to any such limit.
57. My Lords, I do not think that it is a proper exercise of the judicial function of the House to take such a step. Judge Ansell, to whose unreserved judgment I would pay respectful tribute, went in my opinion to the heart of the matter when he said:
"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."
"20. Both men pursued claims for unfair dismissal. Mr Williams' complaint resulted in a finding of unfair dismissal. Before a remedies hearing took place on Mr Williams' claim, and before any hearing on Mr Eastwood's claim, a compromise agreement was reached. Both men received financial payments. The agreement reserved the men's right to pursue a claim at common law for any claims they might have in respect of personal injuries arising out of their employment.
21. Mr Eastwood and Mr Williams then commenced proceedings in the County Court in July 1999 for negligence and breach of contract. They alleged they suffered personal injuries in the form of psychiatric illnesses caused by a deliberate course of conduct by certain individuals using the machinery of the disciplinary process. Judge Elystan Morgan dismissed both claims on the basis that, as a matter of law, they had no reasonable prospect of success. Johnson's case showed that the development of the common law implied terms, of trust and confidence and the like, cannot proceed further 'in so far as they come up against the buffers, as it were, of the unfair dismissal legislation'. Those terms are excluded from the area within the purview of an employment tribunal, and that area includes acts done from the time the disciplinary machinery starts running.
22. The Court of Appeal  ICR 520, comprising Peter Gibson and Mantell LJJ and Sir Swinton Thomas, upheld the judge's decision. Peter Gibson LJ delivered the only reasoned judgment. Having referred to Johnson's case, he said at paragraph 23:
"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."
23. Peter Gibson LJ then concluded, in short, that the circumstances attending Mr Williams' dismissal began in May 1996. All these circumstances were considered by the employment tribunal. The compensation recoverable in the employment tribunal covers the substance of what Mr Williams is claiming in his court proceedings. There can be no justification for allowing Mr Williams a second bite of the cherry. In Mr Eastwood's case there has been no hearing in the employment tribunal. But on analysis his position is no different from that of Mr Williams."
"The Court of Appeal, comprising Auld, Brooke and Sedley LJJ, allowed an appeal by Mr McCabe on 19 December 2002  ICR 501. Auld LJ, at , with whom the others agreed, identified the essential question as one of determining where on the facts of any particular case the line should be drawn between dismissal, caught by the unfair dismissal legislation, and conduct prior to that causing injury compensatable in damages at common law. The case should be permitted to go to trial to enable the underlying facts to be ascertained."
"27. Identifying the boundary of the "Johnson exclusion area", as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. 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. By definition, in law such a cause of action exists independently of the dismissal.
28. In the ordinary course, suspension apart, an employer's failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. 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.
29. Exceptionally this is not so. Exceptionally, financial loss may flow directly from the employer's failure to act fairly when taking steps leading to dismissal. Financial loss flowing from suspension is an instance. Another instance is cases such as those now before the House, when an employee suffers financial loss from psychiatric or other illness caused by his pre-dismissal unfair treatment. In such cases the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over.
31. … In cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches of the trust and confidence term and loss flowing from the employee's acceptance of these breaches as a repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area. In some cases this legalistic definition may give rise to difficult questions of causation in cases such as those now before the House, where financial loss is claimed as the consequence of psychiatric illness said to have been brought on by the employer's conduct before the employee was dismissed. Judges and tribunals, faced perhaps with conflicting medical evidence, may have to decide whether the fact of dismissal was really the last straw which proved too much for the employee, or whether the onset of the illness occurred even before he was dismissed."
"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 ..."
"… "Parliament has made certain policy choices as to the circumstances in which and the conditions subject to which an employee may be compensated for unfair dismissal. A dismissal may be unfair because it is substantively unfair to dismiss the employee in the circumstances of the case and/or because the manner in which the dismissal was effected was unfair. The manner may be unfair because it was done in a humiliating manner or because the procedure adopted was unfair, inter alia, because the agreed disciplinary procedure which led to the dismissal was not followed. It may be unfair because defamatory findings were made which damage the employee's reputation and which, following a dismissal, make it difficult for the employee to find further employment. Any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal subject to the various constraints to which I have referred. Parliament did not intend that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament for the exercise of this statutory jurisdiction."
55. It is accepted by [his counsel] that Mr Edwards's claim for unfair dismissal falls within the Johnson exclusion area. But she submits that his claim for damages for loss of reputation consequent on the findings of misconduct made by the disciplinary panel does not. She contends that these findings resulted from the fact that (in breach of the contractual disciplinary procedures) the disciplinary panel was not properly constituted and acted in a manner which was procedurally unfair. This breach, she submits, occurred independently of the dismissal.
56. The undisputed facts are that Mr Edwards's disciplinary hearing was held on 9 February 2006. He was notified of his summary dismissal on the following day. The decision was confirmed in a long letter from the chairman of the disciplinary panel dated 16 February which set out in detail the allegations and the panel's findings. The complaint is that the panel's "erroneous" conclusions flowed from these findings. The findings and conclusions were first published in the letter which was sent six days after the decision to dismiss had been communicated to Mr Edwards and were contained in the letter which confirmed his dismissal. In my view, 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.
57. In these circumstances, Mr Edwards's claim for damages for loss of reputation is not one of those exceptional cases to which Lord Nicholls referred in Eastwood's case  1 AC 503 where an employer's failure to act fairly in the steps leading to a dismissal causes the employee financial loss. This claim does not arise from anything that was said or done before the dismissal. It is not independent of the dismissal. It arises from what was said by the trust as part of the dismissal process. It follows that I cannot accept the distinction made by Lord Kerr and Lord Wilson JJSC between the findings or reasons for the dismissal and the dismissal itself. I agree with what Lord Mance JSC says about that.
58. The case pleaded, at para 20 of the particulars of claim, is that as a result of the MOD's breaches of contract, Mr Botham "foreseeably, was dismissed from employment, and was caused (wrongly) to suffer loss and damage to his reputation and to be precluded from further employment in his chosen field and to be placed on the register of persons deemed unsuitable to work with children …" The damages claimed include loss of earnings and other benefits from the date of dismissal. The statement of facts and issues agreed for the purposes of the appeal state that Mr Botham was placed on the register "as a consequence of the dismissal for gross misconduct" (para 5) and the relief sought by him includes damages on the grounds that his "dismissal and his inclusion on the POCA precluded him from further employment as a youth community worker" (para 15(3)).
59. In my view, this case is a fortiori that of Mr Edwards. In Mr Edwards's case it is alleged that the damages for loss of reputation were caused by the erroneous findings made by the panel, rather than the dismissal. Mr Botham goes further and says that the damages he claims for loss of reputation were caused by the dismissal itself. For the reasons already given, it falls within the Johnson exclusion area. That was the view of Slade J  EWHC 646 (QB) and I agree with it. The consent order made by the Court of Appeal on 31 August 2010 [in Mr Botham's favour] should therefore be set aside."
"94. … in the absence of express contrary agreement, the Johnson exclusion area must be taken to cover both loss arising from dismissal and financial loss arising from failures in the steps leading to such dismissal, unless the loss claimed can be regarded as occurring quite independently of the dismissal, as the psychiatric loss claimed by the claimants in the Eastwood cases could be.
95. There are further potential objections to Mr Botham's proposed case. It depends upon the propositions (a) that one alleged breach of contract or duty can be said to have caused the commission of another breach of contract or duty by the same person or entity, and (b) that where recovery for the latter breach is limited, a claim may, by relying on the former breach as causing the latter breach, avoid the limit. Both propositions are in my view open to question. First, so far as the failure to take proper disciplinary steps can be separated from the dismissal, then it constituted not a reason for dismissing, but a reason for not dismissing. The dismissal was a fresh decision, which the employer ought not to have taken and without which there would have been no loss. But, second, assuming the first point in Mr Botham's favour, any loss that he suffered flowed from the wrongful or unfair dismissal, and was recoverable either as compensation for breach of contract or for unfair dismissal, subject in either case to the relevant limits. If the wrongful or unfair dismissal is to be attributed causatively to the prior failure to take proper disciplinary steps, I find it difficult to see why or how the damages recoverable for the prior failure should or could exceed the compensation recoverable for the later dismissal. However, these points were not fully developed in argument, and I express no further view on them."
"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  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."
(1) It contains both of the elements which caused the surgeon and the teacher to fail in Edwards: it seeks to complain of an element of the dismissal process and the reasons for it, for which Mr Edwards' claim was refused; and it seeks to recover for the consequences of the dismissal, for which Mr Botham's claim was refused.
(2) Mr Edwards sought to complain of the defamatory findings of a disciplinary panel dismissing him; Ms Parris seeks to complain about one step earlier in the process, a defamatory statement made as part of a disciplinary investigation which resulted in a panel dismissing her. Both are part of the dismissal, on which Parliament has legislated, and within the Johnson exclusion area. As Lord Dyson said: "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.
(4) Alternatively, even if the Court were willing to find that the publication of Mr Ajayi's statement during the disciplinary procedure resulting in Ms Parris' dismissal could be separated from the dismissal and considered an independent and pre-existing cause of action, her claim would still fail: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  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". It is therefore plain that Ms Parris is seeking the same losses, flowing from the dismissal, in the present claim as she was in the Employment Tribunal Proceedings. Indeed, her solicitor, Mr Huckstepp, explicitly acknowledges that she is seeking "the same loss of earnings" in his evidence, but contends that she "has additional damages for defamation and damages for loss of earnings" because "her claim for loss of earnings is larger than the cap allowed in the employment tribunal proceedings" (see §23 of his witness statement dated 5 November 2020). That is precisely what is prohibited by Johnson: the bringing of a common law claim to subvert the intention of Parliament as to the remedies available in respect of unfair dismissal.
(7) Ms Parris' evidence further demonstrates this. She refers not to any (inconsequential) harm to her reputation in the eyes of Mr Gayler, but rather to the effects of her unfair dismissal for gross misconduct: "The added stigma of being (falsely) dismissed for Gross Misconduct means that I was severely restricted in finding a comparative income in the NHS" and "Nor has the tribunal award eliminate[d] the stain and stigma of Gross Misconduct on my employment record" (see §54 and §57 respectively of her amended witness statement dated 17 November 2020). Moreover, it is clear from Ms Parris' own evidence that she is treating the publication complained of as inextricably bound up with the disciplinary process: see §47 ibid, where it is alleged that "By constructing such a statement in this manner, [Mr Ajayi] knew that this would ensure my dismissal under the Corporate Defendants' disciplinary regime of the day".
(8) Accordingly, the Defendants ask for permission to amend their Defence to plead that Ms Parris' claim falls within the Johnson exclusion area, and for the claim to be struck out and/or for summary judgment to be granted on that basis.
Ms Parris' submissions
(1) The principle in Johnson is that where Parliament has provided statutory redress for unfair dismissal, it would be inappropriate for the judiciary to seek to extend the common law to a wider claim for damages for the manner of the dismissal.
(2) However, in Johnson, primary liability was sought against the same party as in the unfair dismissal proceedings (namely the employer) through a separate cause of action to unfair dismissal. In the present case, the claim is against wholly different parties. Primary liability is sought against Mr Ajayi and his employers are asserted to be vicariously liable. The Defence admits that Mr Ajayi is employed by SHCC. However, judgment in the Employment Tribunal Proceedings was against the Partnership, which is not a party to the present proceedings.
(3) Further, the claim is not reliant on the manner of dismissal, which is the foundation of the rule in Johnson. It is for losses flowing from a defamatory publication which, it is said, caused the dismissal. The Employment Tribunal Proceedings concerned Ms Parris' dismissal by her employer, and whether that process was in accordance with employment law. The defamation claim concerns the statement made by Mr Ajayi, and the consequences that flowed from it that are to be attributed to his actions. This includes a refusal to provide a clinical reference after 18 years of employment, which is wholly separate from the manner of dismissal.
(4) More generally, that Mr Rushbrooke's reliance on Johnson, Eastwood and Edwards was misplaced on a number of grounds. These included, in addition to the "different employer" point summarised above, that the Johnson exclusion area does not apply to a malicious untruth, and that Lord Mance's reference in Edwards at  to "circumstances establishing a claim for defamation" clearly covered the present case.
Defendants' submissions in reply
(1) With regard to Ms Michalos' argument based on "different parties", on Ms Parris' own pleaded case she and Mr Ajayi were employed by the same employer. Ms Parris has made no application to amend the POC, and the Court can only deal with the case in front of it. Further, even if the Court felt constrained to deal with the case on the basis that Ms Parris' employer has been found to be a different entity to SHCC or SHCR, the Johnson exclusion area should extend to claims against all companies within a group. Were that not the case, the availability of the protection which, as the Courts have found, Parliament intended to be available to employers in relation to complaints about their employees' dismissal might depend, arbitrarily, on whether the employer was part of a group of companies and how that group had structured itself.
(2) Insofar as Ms Parris contends that Johnson can have no application in relation to the claim against Mr Ajayi, if that were correct any employee could get around the rule by confining her common law proceedings to a claim against the individual fellow employees or officers whom she alleges were tortfeasors, safe in the knowledge that the employer would be likely (or perhaps even contractually obliged) to indemnify those tortfeasors.
(3) The argument that Johnson can have no application where the employee has a pre-existing cause of action for damages for defamation is wrong, and flows from a misunderstanding of Lord Nicholls' speech in Eastwood. It is clear from the passage at - in that speech that the Johnson exclusion area is a rule about loss, not about causes of action. If before his dismissal an employee has acquired a cause of action for breach of contract or otherwise, he can bring a claim to recover any loss which "flows directly from the employer's failure to act fairly when taking steps leading to dismissal" , but he cannot bring a claim for "loss arising when the employee is dismissed" . If the loss arises when the employee is dismissed and it arises by reason of his dismissal it can only be recovered in the Employment Tribunal irrespective of the existence of any common law cause of action which is alleged to have given rise to it. It is to be noted that both employees in Eastwood had sued for negligence as well as breach of duty (see , ). The reason why Mr McCabe was permitted to pursue his claim for special damages was because following the decision in Johnson he had amended his claim to confine it to the period before his dismissal (see ). It was not because he had a common law cause of action in negligence.
(4) Accordingly, Ms Parris' claim is caught fairly and squarely by the Johnson rule because (a) the causes of action are not 'independent' of her dismissal albeit that in temporal terms they precede it, (b) even if they could be regarded as independent in the sense meant by Lord Nicholls, the serious harm and/or pecuniary loss without which the causes of action are not complete depend upon losses which plainly fall do within the Johnson exclusion area, namely the special damages arising from her dismissal, and/or (c) in any event that special damages claim is plainly caught by the Johnson rule for the reasons given by Lord Nicholls at -.
Discussion and conclusion
"20. The meaning of the words is such that (a) it is to be inferred that they caused serious harm to the reputation of the Claimant by reason of the inherent gravity of the imputation and (b) their publication did in fact cause serious harm to the reputation of the Claimant because as a result she was dismissed by the Second Defendant from her employment as set out further below.
27. The publication of the said words was calculated to cause and did cause pecuniary damage to the Claimant in respect of her employment as she was dismissed as aforesaid.
28. In addition to the serious harm caused to her reputation, the Claimant has suffered considerable hurt, distress and embarrassment. The Claimant's future employment opportunities have been substantially hindered, and she has suffered anxiety due to the fear that the Defendants will continue publishing the allegations about her to employees of the Corporate Defendants, those who work within her field and relatives of service users as to the reasons she left.
29. In support of their claim for general damages and/or aggravated damages the Claimant will rely on the following:
29.2. The First Defendant well knew and intended that the words complained of would or were likely to lead to the dismissal of the Claimant and/or severe disciplinary sanction of the Claimant.
29.3. The Claimant lost her employment with an employer she had been employed by for 18 years.
29.5. As was reasonably foreseeable to the First Defendant, despite the Claimant's 18 years of service without any prior disciplinary issue, the Second Defendant refused to provide the Claimant with a positive or full employment reference and only provided a bare minimum reference confirming the fact of her employment. As a result, the Claimant is and was handicapped on the labour market and in respect of her ability to obtain immediate alternative employment.
29.6. The Claimant was obliged to refer the circumstances of her dismissal to her regulator the HCPC under Section 9.5 of the HCPC Standards of Conduct, Performance and Ethics. The Claimant is suffering understandable distress, anxiety and stress as the HCPC will now have to investigate the matter in order to determine whether there are any fitness to practice concerns in relation to the Claimant's HCPC registration and have opened an investigation.
30. The Claimant has suffered special damage in the form of loss of income caused by the publication complained of
PARTICULARS OF SPECIAL DAMAGE
30.1. The Claimant's annual net salary at the point her employment was terminated was £36,325 per annum.
30.2. From 24th April 2017, the Claimant became employed by the NHS at a lower grade than her employment with the Second Defendant at a lower rate of pay.
30.3. Between 25th January 2017 and 24th April 2017 the Claimant was unemployed.
30.4. Her net loss of income during that period was £5,193.00.
30.6. By reason of the publication complained of, the Claimant's dismissal and the inevitable result that the Claimant was unable to obtain a positive employment reference or a recommendation from the Corporate Defendants, the Claimant is handicapped on the labour market and unable to obtain employment in the private sector at a commensurate salary to her employment with the Corporate Defendants.
30.9. The Claimant's total loss of income from 24th April 2017 until her retirement on 25th April 2027 is £20,771.28 x 10.12 = £210,205.35.
30.10. The Claimant claims: Past loss: £5,193.00 Future loss: £210,205.35 Total loss: £215,398.35"
THE EMPLOYMENT REFERENCE CLAIM
(1) The claim in §29.5 of the POC is the only part of Ms Parris' damages claim at §29 which relates to future loss. It was pleaded on 6 November 2017, after she had found employment with Sussex Community NHS Trust as a Band 6 Senior Physiotherapist. Details of her claim for loss of income are then set out at §30. Above §30.5 is the heading "Future Loss", and §30.6 (among other sub-paragraphs) appears beneath that.
(2) As such, Ms Parris' alleged inability to obtain a positive employment reference from SHCC and/or SHRC is crucial to her claim (a) to be handicapped on the labour market, (b) to be unable to obtain employment in the private sector, and (c) thus, to have suffered loss in respect of her employment.
(1) As Ms Parris pleads, SHCC did provide a reference for her, which confirmed the fact of her employment (and its duration).
(2) However, contrary to Ms Parris' case, this accorded with the policy of SHCC (and the group of companies more widely) in respect of all references.
(3) First, this was explicitly stated on the reference itself (which reads "It is our standard response to confirm only the following"), and therefore would have been clear to Ms Parris, as well as to any prospective employer.
(4) Second, this is the evidence of Ms Fehilly, the Director of Human Resources for "the Sussex Health Care Group", which (she says) includes SHCC, SHCR and the Partnership. In her first witness statement dated 18 September 2020, she states:"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". They can be distinguished from references that comment on an employee's performance or the circumstances in which they left the business.22 I have considered the SHC Group's HR records with a view to finding examples of the references that were given before I worked in the business.23 I selected 30 references at random, copies of which I exhibit to this statement … Each reference was entirely factual and in the style referred to above. I did not find a single reference that was non-factual. After carrying out this task, I did however notice that the vast majority of the references that I had selected happened to fall well after the Claimant was dismissed/the reference in question was provided. I therefore selected a further 10 references at random, but this time limited my search to references given in 2016 – 2017. I exhibit copies of those references … Again, the references were entirely factual."
(1) In correspondence, after the Defendants' solicitors had invited Ms Parris to withdraw her case in this respect, her solicitors stated that she herself had given fuller references including for Laura Stonham, and requested the reference which SHCC had provided for Ms Stonham. That reference was duly provided. It is in the hearing papers. It was in the same factual format as the reference which had been provided for Ms Parris.
(2) At §54 of her amended second witness statement dated 17 November 2020, she states:"Mr Ajayi did not provide (as would have been expected of an HCPC registered professional) the clinical reference in the case of Laura Stonham … or provide my clinical reference which would have been done by custom and practice otherwise. Furthermore, the lack of full disclosure of my employment capabilities by way of an accurate and truthful clinical reference showing my extensive clinical experience and skills acquired over 18 years at SHC compromised my employment opportunities. The added stigma of being (falsely) dismissed for Gross Misconduct meant that I was severely restricted in finding a comparative income in the NHS."
(3) The Defendants submit that this (i.e. a complaint that Mr Ajayi had not provided her with a "clinical reference") is not the complaint made in Ms Parris' pleaded case, and is accordingly irrelevant.
(4) However, if this issue is relevant, Mr Ajayi's evidence in response (see §9 of his third witness statement dated 20 November 2020) is "I was simply never asked to provide the Claimant with a reference. If she had asked me for a reference, I would have first checked with HR. Subject to HR's authorisation that I could provide a reference in the first place, I would have given her an honest appraisal".
(5) Further, Ms Parris' evidence in the Employment Tribunal proceedings (see §18 of her third witness statement therein dated 24 August 2019) is that she secured references from managers who knew "the workings of SHC and were well versed with the antagonism that my line manager had shown towards me" and "were also aware of the conduct of SHC towards their staff and that the company had unlawfully dismissed me, and I was now embroiled in Employment Tribunal, County Court proceedings and a future Defamation claim" and provided her with "exemplary support".
(6) Ms Parris' employment contract provided at §23(e): "The Employer has no duty to provide any person or organisation with a reference regarding your employment with the Employer. However, if such a reference is given, all reasonable care will be taken to ensure its accuracy".
"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 …"
(1) It is wrong to say that Ms Parris had no other means of obtaining vindication in relation to the allegation complained of. She chose to complain of the publication of the Statement that she did. By the time she made her legal complaint on 12 May 2017 she and her lawyers knew everything that they needed to be able to include within the scope of her complaint any publications between Mr Ajayi and Mr Gayler that took place prior to the start of the disciplinary process, but they did not. It would have been obvious to Ms Parris by no later than the afternoon of 15 September 2016 that Mr Ajayi had reported to Mr Gayler on the substance of his meeting with her of the previous day, and what the tenor of that report was.
(2) Although it is plainly too late to seek permission to make such a complaint now, Ms Parris is wrong to submit (as she did at the hearing) that it would not have been possible to make a complaint of slander. In a case where a claimant knows that defamatory words have been published about her but does not know the precise words used, the procedure to be followed is set out in Gatley (12th Ed) at para 26.17. As long as a slander complaint is not obviously speculative it will be allowed to go forward.
(3) There is no evidence before the Court as to why Ms Parris chose to confine her complaint to the publication that she did. If that choice was to any extent due to a misapprehension of defamation law and practice, as opposed to a strategic decision, that would be a matter between her and her solicitors.
(4) In any event, judged objectively, Ms Parris has no need of vindication in respect of a publication of the words complained of to one person, within the confines of the workplace, and in circumstances where she cannot point to any reputational damage suffered outside of the workplace and has obtained a judgment in her favour for unfair dismissal.
Ms Parris' submissions
(1) There is no good reason why the new points have not been pleaded before and no explanation for the delay in raising the same.
(2) The suggestion that no clinical references (as distinguished from pure factual references confirming the fact of employment) were ever provided is a factual matter which is disputed and is not suitable for summary judgment.
(3) The evidence of Ms Fehilly as regards the reference practices is also inadequate. What is in issue is the position of Ms Parris in 2017 vis-à-vis the entity by which she was actually employed (i.e. the Partnership, and not either (i) "the SHC Group" generally, or (ii) companies in that Group). Ms Fehilly only joined the corporate defendants in February 2020, and §§20-22 of her first witness statement dated 18 September 2020 comprises "third hand hearsay" and is not a sufficient or reliable basis for a Court to conclude that summary judgment in the Defendants' favour is warranted.
(4) Ms Parris disputes these matters, and her evidence at §53 in her amended second witness statement dated 17 November 2020 is:"As a registered professional following a code of conduct … I did provide clinical references (as did other professionals such as nursing care home managers) for staff taking up new employment and by supporting a former employee who were already registered professionals with the HCPC (or were seeking registration). Several example references and email threads have been provided in the annexed exhibits (with redacted names) that show this custom and practice of clinical references provide for former professionals that were made in full knowledge of HR personnel and the care home administrators … A professional reference … given by Mr Ajayi shows an example of a document he provided as a clinical reference for Maria Rogan …"
(5) Indeed, Mr Ajayi himself admits that he gave clinical references, although he asserts that this was only in the early part of his career with SHC and that these were provided in his personal capacity (see his third witness statement dated 20 November 2020 at §8).
(6) Ms Parris accepts that she is not entitled to double recovery. This is not disputed and there is no basis in law to strike out the claim on the footing that she contends otherwise. The issue of double recovery is a factual matter to be addressed at trial. Ms Parris' claim for special damages is pleaded in total as £215,398.35. The compensatory award in the Employment Tribunal was in the sum of £50,045.16. It is far from clear that Ms Parris will not recover anything for her losses over and above the Employment Tribunal award, if she succeeds on her present case. It would be unfair to her to be shut out from even arguing that element of her claim at this stage.
Discussion and conclusion
"… 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."
THE JAMEEL ABUSE ISSUE
"Keeping a proper balance between the Article 10 right 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."
"46 …. [F]irst … "Serious" is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant's reputation …
47. Secondly, it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious harm has occurred or is likely to do so. However, a Court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence …
48. Thirdly, there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant, compare Ames v The Spamhouse Project  EWHC 127 (QB) at . This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence."
"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."
"72. … serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning … there is no reason in libel cases for precluding or restricting the drawing of an inference of serious reputational harm derived from an (objective) appraisal of the seriousness of the imputation to be gathered from the words used.
73. … The seriousness of the reputational harm is … evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used (for example, in a newspaper article or widely accessed blog).
79. There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no one thought any the less of the claimant by reason of the publication …" (emphasis added).
"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  1 QB 283, 300 per Bingham LJ). In Sloutsker v Romanova   EWHC 545 (QB);  2 Costs LR 321, Warby J said at :
"… 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. The graver the imputation the more likely it is to spread, and to cause serious harm. It is beyond dispute that the imputations complained of are all extremely serious." …" (emphasis added)