Thread by @tribunaltweets

This is the second morning session of Sandie Peggie v NHS Fife and Dr Upton.

JR Want to make clear re report to Lottie Miles that C called medical dr a Paki - Miles evidence that dr could not recollect. But again, absence of evidence not ev of ab.
Email c R primary position that amendment not required. C email received by us last Tuesday and no

oral supplements until yesterday. Reason we mention is cos C has known c it for 8 months. Not in the pleading but doesn't need to be
J Don't apply same rules here as in civil.
J/JR discuss cases.
JR Rules c pleadings in tribunal - I said McPhane {sp} cos that's a higher bar.

C can't be surprised that's the way R putting their case - been obvious since Jan. General denial in pleadings re harassment and goes to victimisation and objectionable manifestation. Scottish tribunal pleadings follow a table setting side by side factual allegation and response.

R didn't need to set out full case re harassment. And couldn't cos Higgs not finished.
J But EAT decision
JR Before Higgs wasn't inappropriate manifestation. That is development of idea. R case has been acted as it did cos of inappropriate way C spoke to DU at Xmas Eve

JR You have heard why R witnesses felt what C did went too far and why they felt what they did was appropriate. R1 response was proportionate and justified. You will need to include Higgs analysis, cos this is a Higgs type case. That's why we don't think we need to amend.

Cos not necessary in Scottish tribunals. But if so, is in Mr Watson's email.

If any actions in case found to relate to C belief, these are to do with manner C expressed. Issue 6A to be added, if inappropriate actions are related to manifestation of C belief.

JR Need to deal with all legal arguments. C has been aware of argument we have been running since Jan but has also responded to it orally and in writing and in qs put to our witnesses c if their actions proportionate etc.
Not granting it would cause prejudice to the R in not

dealing with important part of their defence and thus not dealing with the case justly if important relevant legal feature of case not addressed and analysed. All I have to say on amendment application.
J NC?
NC Re if R needs permission to amend. R now seeks to argue defence

along lines of not what she said it's the way that she said it. They seek to add two factual assertions:
This is factual - objectionable way C manifested her belief, but we still don't know the detail of that.
And to add that that's the reason for the acts of which the C complain

NC We still don't know with clarity - R proposed additions [ reads c manner expressed]. We are not told on what occasions this was objectionable, or in what way. There are a number of potential occasions that this could have arisen. Obvious one, which appears to be JR focus,

is with DU conversation, or might it be using pronouns for DU in conversation with managers/in meetings/ etc.

Application not accurately formulated but is attempt to amend facts on which R replies. Should have been clear to R legal team - by January, when disciplinary

against C formulated, in 2023. I think yes, they need your permission to amend. As to factors to guide exercise of discretion: how substantial is amendment, timing and manner of application, balance of prejudice - that R have been respresented throughout by experienced

team including one who is now a KC.

This is an amendment of v great substance and affects the legal argument in the case.

As to timing: hard to envision how application to amend could be made at a later date. Last poss minute. The ET3 was presented in June 24 and that's when

case should have been properly pleaded. [NC goes through meetings with judges] Two day prelim hearing in Nov with J Tinnion - R must have been in stage of formulating disciplinary charges by then. J Tinnion order in January reflects GoR - nothing in that suggesting

objectionable manifestation of C beliefs. Most peculiar point for R to fail to raise these points was in a meeting with me/JR, and now at the beginning of this session, no application. And when our long written closing was delivered on 26 August - the eleventh hour.

Application should have been made on 27/28 - but still not. And yesterday when you Judge raised matter, even then JR didn't say I should make application now, even if I don't think I'm wrong. Then light seemed to have finally flamed in the hours - 23.20 last night - that such

an application might be necessary.
It has been make without any explanation of the delay. JR hasn't explained to tribunal why so late, even though application for tribunal's considerable indulgence. And comes with not explanation or apology. Should have come with candid

acknowledgment and didn't. Suggest this should be taken into account in your decision - that you haven't had candid explanation and apology.

Ask you to look at Mervin and BBC 2020 - you may not have it. [NC summarises - deals with list of issues, when put in, when/how changed

etc]. Your task is to determine the application and manner that best serves justice between parties. Not J task to smooth out things arising between parties and representatives. Where party seeking to amend is acting in person, tribunals may stray to accommodate litigant.

But here R throughout by seasoned experienced legal team. They agreed the list of issues at various dates. First part of hearing concluded in Feb but R still didn't apply to amend. Apparently didn't decide to apply after reading our subs last week. And finally they faced reality

late last night. All decisions except the last are inexplicable.
A statement of case can't be amended by skeleton argument. Parties need to agree.

A party is entitled to run case to meet issues set down in list. List of issues is the map and compass, guides every

aspect on both sides. Goes through list to make sure all covered, and if not in list is likely to be missed.
Finally - it's an extraordinary unattractive aspect of R application that in the very first point they make at para 1 of application

is to seek to blame the C. Not acceptable for R to say it's the C job to warn them of that error. Parties don't have to warn the other.
That takes me to prejudice. Amendment now pleads objectionable manifestion in all aspects, but no details, so difficult for C to know what

this entails.
Taking of evidence didn't include objectionable manifestation throughout. Evidence re Xmas Eve was about what was said, cross-exam wasn't pursued with a view to objectionable manifestation. We proceeded on basis that not part of R case. We were allowed to do so.

Unlike sex, knowledge is not binary. It really is a spectrum. In January there were many other claims on our attention - move to Dundee cos of threats made on me and Judge Kemp, concerns c security here, efforts to persuade R to comply with J Tinnion's orders, tussles c

open justice, further request for material from R and adding that in to the information we had, multiple technical issues with CVP - cross-exam and exam in chief were structure according to the list of issues. Something not in list, even if foreshadowed to some extent

in skeleton argument and evidence, when MC and Louise [?} said was manifestion of C belief. C would be irremediably prejudiced either way - if not called for further exam on this defence she hasn't had fair opportunity to deal with allegations; and also prej if not recalled.

Would need to adjourn and recall ED, DU etc for 2/2.5 days evidence plus days for C and other evidence. Would be at least 3-4 days further hearing. Then further written subs, then tribunal days for deliberations - I think you said you hadn't much time for rest of year.

So may well be into next year before
C still employed by R. Is on sick leave atm. Impact on her having to give more evidence and have it all put off to next year can be expected to be severe. And all that is on R's either incompetence or deliberate choice to plead case properly

and in the usual manner.

Bearing in mind that the list of issues was agreed as part of tribunal order, (discussed in Mervin) - is application an application to revoke a tribunal order. If so, R has to apply to do this - no attempt made to persuade you of this.

Timing is deplorable. Manner of application is even more deplorable - attempt to blame C for R fault. Balance of prejudice is all one way. And any difficulty on R can't be laid on C at this stage.

JR Objectionable manifestation isn't factual, it is a legal one.

eg objectionable manifesto wasn't in list of issues for Bailey.
JR C did put to ED if actions had gone too far. Aspect also covered in DU evidence. So these have been addressed and no need to recall witnesses.
[Judge and panel leave to discuss]
J Back in ten minutes.

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