Free from fear or favour
No tracking. No cookies

‘Extraordinary’ Claims of Evidence Spoliation in NHS Whistleblower Case

NHS doctor Chris Day is set to challenge a tribunal decision in a case where 90,000 emails were destroyed ‘in the middle of the night’ while a hearing was underway

Dr Chris Day. Photo:

Newsletter offer

Subscribe to our newsletter for exclusive editorial emails from the Byline Times Team.

Questions have been raised around court claims of evidence spoliation and recoverability in a high-profile NHS whistleblowing case during which tens of thousands of emails were deleted.

NHS doctor Chris Day has won the right to challenge a tribunal decision about information governance in NHS hospital trusts and the scrutiny applied to attempted evidence destruction at employment tribunals.

Day exposed acute understaffing at a south London intensive care unit linked to two patient deaths in 2013. His decade-long legal campaign has since revealed a lack of statutory whistleblowing protections for nearly 50,000 doctors below consultant level in England.

An appeal tribunal in February refused Day the right to challenge key aspects of an earlier ruling that cleared Lewisham and Greenwich NHS Trust (LGT) of concealing evidence and perverting the course of justice when one of the trust’s directors deleted up to 90,000 emails during a tribunal hearing in July 2022.

That hearing heard that LGT communications director, David Cocke, had attempted to destroy tens of thousands of emails and other electronic archives that were potentially critical to the case.

An unsigned witness statement submitted to the tribunal on behalf of Cocke claimed that the information had been “permanently” deleted. LGT has since claimed that the cache was recovered and submitted to the tribunal, something Day disputes.

Appeal tribunal judge Andrew Burns described Cocke’s conduct during the 2022 hearing as “extraordinary”.

Cocke’s actions followed LGT’s late disclosure of more than 200 pages of documents and, the tribunal heard, suggested that the trust’s CEO, Ben Travis, had given “inaccurate” and potentially misleading evidence to the tribunal days earlier.

Campaigning NHS Doctor Wins Second Appeal in his Long-Running Whistleblowing Claims

Dr Chris Day’s legal campaign exposed a ‘gap in the law’, which deprived 54,000 junior doctors of statutory whistleblowing protections

Day’s barrister, Andrew Allen, told an employment appeal tribunal in February that Cocke went “in the middle of the night and destroyed them… because he was in a panic”.

According to Allen, Cocke “had been observing the case and realised that key evidence had not been disclosed”.

That Cocke “destroyed documentation potentially relevant to the litigation,” Allen argued, “is intimately tied up with” Day’s concealment and detriment claims. 

He added that there was a “failure to make findings” at the 2022 tribunal on the attempted destruction of electronic evidence.

Burns noted in his judgment that “although the employment tribunal has mentioned that it can draw adverse inferences… from the respondent’s deletion of documents, it doesn’t seem to have turned its mind to doing so.” He described Day’s patient safety disclosures as been of “the utmost importance”.

Allen also raised questions about LGT’s destruction of electronic records prior to the 2022 hearing.


Major Law Firm Faces Court Over Withheld Contracts in Landmark NHS Whistleblowing Case

A judge has ordered full disclosure in a case which deprived 50,000 NHS doctors of legal whistleblowing protection

“Documents had not been sought from key personnel,” he said, including from Janet Lynch – an ex-workforce and education director at the trust who, as its instructing client, had been responsible for advising the trust’s solicitors up until late 2018. “And key documents [including Lynch’s emails] were destroyed after she left the trust.”

Five trust directors’ emails – Travis, Cocke, Lynch, and two doctors involved with Day’s whistleblowing case – were either said to have been deleted or unavailable during the key dates being examined by the 2022 tribunal.

The hearing considered whether the trust had caused Day detriment linked to his whistleblowing. His appeal will examine whether public statements the trust issued about the settlement of a previous hearing did so.

The directors whose emails were unavailable at the 2022 tribunal are understood to have been involved in producing the statements, which drew criticism from the Care Quality Commission regulator.

The appeal hearing will not consider Day’s allegations of concealment. He has asked the tribunal to review its decision and applied for a further ground to be added.

Martin Nikel, an expert in e-discovery who heads Thomas Murray’s cyber risk advisory e-discovery and litigation support practice, told Byline Times that a number of key questions regarding the emails’ status had not been answered by the tribunal or LGT.

“It’s very irregular for a director of communications to have the ability to permanently delete emails without administrative privileges,” he said.

“When it’s said that he deleted 90,000 emails, that’s potentially a big task to undertake. In these scenarios, an end user without significant knowledge and access rights, would leave three potential sources of email, which could be explored to see if the email can be recovered.”


Receive the monthly Byline Times newspaper and help to support fearless, independent journalism that breaks stories, shapes the agenda and holds power to account.

We’re not funded by a billionaire oligarch or an offshore hedge-fund. We rely on our readers to fund our journalism. If you like what we do, please subscribe.

The NHSMail system, which LGT has confirmed was in use in 2022, usually retains emails for a minimum of 30 days and up to two years, Nikel said. A forensic discovery request or search of the Microsoft 365 environment could also establish the presence of the emails.

Nikel added that the way LGT board members were asked to provide evidence for the 2022 hearing was “unreliable” and explained that “it appears that board members were instructed to simply search their own emails”.

“This is an obviously unreliable way to perform any collection of evidence in a neutral way,” he said. “The NHS has processes in place for such situations – and organisations like the Counter Fraud Authority – that I am sure could provide better evidence-handling processes in such high-profile matters.

“Legal advisors could appoint external forensic experts, which if nothing else, would help with perception in future situations such as these.”

Robert Maddox, an employment lawyer with Doyle Clayton, told Byline Times that employment tribunals apply the same evidence to disclosure and preservation rules as the civil courts, but don’t have “the same level of rigorous procedure that goes with a High Court matter”.

GPs in England at ‘Breaking Point’ Amid ‘Collapse in Morale’

A significant number of GPs are leaving permanent positions for locum roles or leaving clinical careers altogether, according to a new research by EveryDoctor

“For example, in the civil courts, a party can be obliged to complete a disclosure certificate of compliance confirming where they’ve searched, what they’ve searched for, confirming they’ve disclosed all relevant documents,” he said.

“That’s not necessarily done in the tribunal. There is an obligation on parties to perform a reasonable search and to disclose any documents that are relevant, irrespective of whether they are favourable or adverse for a party’s case.

“But there certainly is an obligation to preserve documents and tribunals will look unfavourably on documents having been lost or destroyed.”

Maddox added that, although it is possible to enlist an IT expert to assess lost or deleted evidence, tribunals can take a party’s statements at face value.

It is more common for a party to make submissions on adverse inferences that can be drawn from missing, lost or deleted evidence, he said, rather than incur costs or risk further delays.

A LGT spokesperson acknowledged the outcome of the appeal hearing but declined to comment further “as legal proceedings are ongoing”.

LGT declined to say if Cocke still works at the trust and whether it paid his legal costs after he enlisted the services of a separate firm during the 2022 hearing. Travis remains the trust CEO.

Written by

This article was filed under
, , , ,