Harding v British Medical Association

On a strike-out or summary-judgment application, the court must not conduct a mini-trial or determine disputed facts. The question is whether the claim has any real prospect of success, not whether success is probable. Limitation issues may depend on facts that cannot fairly be resolved before evidence is collected. A claim alleging collateral attack on an earlier decision is abusive only where relitigation would be manifestly unfair or would bring the administration of justice into disrepute. In a loss-of-chance negligence claim, the prospects of success of the underlying claim ordinarily bear on valuation of the loss rather than demonstrating that the negligence claim is fanciful. The appeal was allowed because the limitation, abuse-of-process and fanciful-claim arguments were unsuitable for summary determination.

Dr Harding, a consultant psychiatrist, was dismissed by Berkshire Healthcare NHS Foundation Trust in 2008. The British Medical Association assisted with lodging an Employment Tribunal claim, but the ET1 omitted any whistleblowing claim. The Employment Tribunal later found that the dismissal was procedurally unfair, while also finding serious misconduct and reducing compensation by 100%. Dr Harding’s appeal to the Employment Appeal Tribunal was dismissed.

He subsequently sued the BMA in negligence, alleging that the omission of the whistleblowing claims caused him loss. Deputy Master Hill QC struck out the claim or entered summary judgment, holding that it was time-barred and an abuse of process. On appeal, the central questions were whether the limitation issue and alleged collateral attack could be resolved summarily, and whether the claim had no reasonable prospect of success.

The appeal was allowed. The parts of the Deputy Master’s decision concerning limitation and abuse of process were reversed, and the BMA’s application was dismissed to that extent.

1. Summary-judgment approach. The appeal was, in substance, a rehearing of the summary application within the grounds for which permission had been given. At this stage the court must not resolve disputed facts by conducting a mini-trial or decide probability. Under Part 24, the relevant question is whether there is an absence of reality or any reasonable prospect of success, as explained in [2003] 2 AC 1 and [2003] EWCA Civ 472.
2. Limitation. The date on which loss occurred was not unarguably the date on which the ET1 was lodged. The date of notification of dismissal and the acts potentially amounting to whistleblowing detriments remained matters requiring fuller evidence. Limitation questions are critically dependent on the circumstances of the particular case, as explained in [2013] EWCA Civ 640. The limitation defence might ultimately succeed, but it was not suitable for resolution at this stage.
3. Collateral attack. The governing principle, drawn from [2002] 1 AC 615, was that relitigation may be abusive where it would be manifestly unfair to a party or bring the administration of justice into disrepute. The relevant considerations included whether the claimant had a proper opportunity to present the case previously and whether the earlier findings could have been challenged on appeal. The Employment Tribunal had not adjudicated a whistleblowing claim, particularly a claim for detriment. The negligence action therefore could not properly be characterised as an abuse on the material then available.
4. Prospects of the underlying claim. The Employment Tribunal’s findings about misconduct and the reasons for dismissal did not establish that a whistleblowing detriment claim would have failed. In any event, the prospects of success of the underlying Employment Tribunal claim were relevant to valuing a loss-of-chance claim, rather than to showing that the negligence claim itself was fanciful, following [1958] 1 WLR 563. The court made no finding that Dr Harding’s claim had merit or substantial value. It held only that summary determination was premature.

• High Court (Queen’s Bench Division): Appeal allowed. The limitation and abuse-of-process rulings were reversed, and the BMA’s summary application was dismissed to that extent.
• Deputy Master Hill QC: The negligence claim was struck out or summarily dismissed on limitation and abuse-of-process grounds.
• Employment Appeal Tribunal: Dr Harding’s appeal from the Employment Tribunal decision was dismissed on 30 September 2011.
• Employment Tribunal: The Tribunal found unfair dismissal because of procedural failures, but found serious misconduct and reduced the compensatory award by 100%.