Dr Ranson v DHSC: Why proper disclosure is important during litigation

The Isle of Man Employment & Equality Tribunal handed down a unanimous 202-page judgment which found that Dr Rosalind Ranson, a former medical director at the Department of Health & Social Care (DHSC), was unfairly dismissed by the DHSC as a result of whistleblowing. Following the judgment on liability, and unusually outside of the normal process of a split trial, the Tribunal ordered that before a hearing on remedies to be awarded to Dr Ranson took place, there needed to be a special hearing to investigate the “disclosure issues” that had occurred.

In light of the disclosure hearing being listed by the Tribunal for a public hearing over three days between 30 August and 1 September 2022, dispute resolution Advocate Andrew Langan-Newton reviews the liability judgment in Dr Ranson’s favour and explains why the disclosure hearing has been listed to be heard.

The judgment on liability

Dr Ranson was the Medical Director of the DHSC when the coronavirus pandemic arrived in the Isle of Man in the spring of 2020. Dr Ranson’s claim centred on the response to the outbreak of the pandemic in the Isle of Man and her alleged protected disclosures once she had found that her medical advice was not being relied upon, or, crucially, passed to Government Ministers. These disclosures included raising concerns that the documentation published by the Government identifying an unmitigated / no-intervention pandemic scenario “gave a misleading impression of the reality of the risk of an uncontrolled spread of the virus.”

Dr Ranson’s concern was that the misleading information could be interpreted by the public as supporting restrictions being lifted on a false premise. This would, therefore, have posed a great risk to the Manx public.

The Tribunal concluded that Dr Ranson had made protected disclosures, that she had suffered detriment as a result of being a whistleblower, and, furthermore, had been dismissed from her role as Medical Director as a consequence. As a result of the protected disclosures, the Tribunal described Dr Ranson as enduring “a period of torrid humiliation with stoic dignity until her health suffered as a result of what she had been forced to endure.”

The disclosure issues

Dr Ranson’s claim was heard as a ‘split trial’. This means that a first hearing determines whether a defendant is liable for the claims, and a second head then determines what remedies should be granted. After the Tribunal found that the DHSC was liable, Dr Ranson’s claim would proceed to a remedy hearing.

Exceptionally, the Tribunal ordered that before the hearing to determine remedies, the disclosure hearing would take place. The tribunal determined that “disclosure issues cast a long shadow over the entire Hearing” and which led to a “risk of a serious miscarriage of justice.”

Contrary to the usual procedure of litigation where, at a stage far before trial, both claimant and defendant perform ‘standard disclosure’ of documents for and against their respective cases, the Tribunal found that the DHSC was still disclosing relevant documents right up to, and even extensively during and after, the trial on liability.

The failure of the DHSC to produce relevant documents was particularly highlighted by the fact that Dr Ranson did not obtain many documents until she undertook a data subject access request which is a legal right sitting outside of and separate to the standard disclosure process.

The disclosure hearing

In light of the disclosure issues identified by the Tribunal, it was ordered that the disclosure hearing would take place to investigate the conduct of DHSC in respect of:

• the alleged “concoction” of material documents;
• selective non-disclosure of documents;
• late (and extremely late) disclosure of material documents;
• unavailability through inadvertent destruction of material documents; and
• what documents may never have been produced and why / how.

In determining the above issues at the disclosure hearing, the Tribunal has the power under Rule 20 of the Employment and Equality Tribunal Rules 2018 to refer breaches of disclosure by an individual to the High Court, to be dealt with as if it had taken place within that court. Under the Rules of the High Court of Justice 2009, proceedings for contempt of court may be brought against a person if they have made, or cause to be made, a false disclosure statement without an honest belief in its truth. The High Court has wide powers to punish those who are guilty of contempt of court, which can include imposing a fine, a term of custody or the seizure of assets.

The Tribunal indicated that the disclosure hearing would be the appropriate place to deal with such matters and any application under Rule 20 of the Tribunal Rules.

The importance of proper disclosure

The Tribunal’s lengthy judgment provides an important reminder that ensuring a fair hearing, and the proper administration of justice, depends on the integrity of the disclosure process. Under that process, it is the duty of opposing parties to disclose to the other those documents that are material to the issues whether helpful or a hindrance to their own case.

Of particular importance and caution to lawyers was the Tribunal’s guidance that although a party to a claim has a duty of disclosure, the burden remains with the advising lawyer to probe and question their client where there may have been incomplete disclosure.

If you have any questions on the issues raised in this article, please contact Andrew Langan-Newton.