Health’s email loss branded “extremely serious and inexcusable”

Tuesday 26 January 2021

The Health Department has been criticised by the Royal Court for failing to retain emails from ex-employees relating to a complaint about a local osteopath, after they became aware he was likely to take legal action against them.

It said that in failing to protect the email accounts - which may have been used as evidence in Badrul Huda’s legal battle to prove that a patient’s allegation against him was mishandled - not only did the department breach its own policies on the preservation of documents, but also broke a court order.

Master of the Royal Court, Matthew John Thompson, described the breaches as “extremely serious” and “inexcusable” and ordered that the department pay part of Mr Huda’s costs earlier this month.

Central to Mr Huda’s legal claim is his argument that the department believed what he says were unfounded allegations made by a patient in relation to the treatment they were receiving; and that the complaint was referred to his professional body without either consulting him, or conducting a full investigation.

Due to the particular patient’s vulnerability, the complaint triggered an adult safeguarding process which resulted in a referral to the regulatory body for osteopaths in the UK.

Pictured: Central to Mr Huda’s argument is his belief that the department believed what he says were unfounded allegations made by a patient.

When the patient’s allegations were referred to the General Osteopathic Council (GOC) – where Mr Huda is registered as a medical practitioner – the case was dismissed due to a lack of evidence, but he maintains that his reputation and mental health have suffered due to the way the department handled the process. 

Last year, Advocate Thompson found what he described as “an arguable claim of misfeasance in public office on the basis of untargeted malice”, naming a number of Government employees who had acted in such a manner.

In April 2020, he issued an Act of Court, which required the Health Minister, Deputy Richard Renouf - who is the defendant in the case, despite former Senator Andrew Green having been the one in the post at the time of the initial complaint - to search a series of email accounts for the period between the patient’s complaint on 29 June 2016 and the General Osteopathic Council’s ruling that there was 'no case to answer' on 20 July 2018.

After the original deadline was extended by a month, at the request of the Minister, he produced a statement from a Legal Services Manager who revealed the email archive system used, only retained data from two years prior, and that any email sent before May 2018 was therefore not available.

Pictured: The original deadline was extended by a month at the request of the Minister.

In addition, 10 individuals listed in the court order had since left the Health department and their inbox deleted after three months. This included the account of the former Health Minister, as well as that of one of the individuals most closely involved with Mr Huda's case.

Mr Huda’s lawyer, Advocate Ian Jones, suggested the Minister had breached the Court’s order by failing to search the missing email accounts, and asked for his answer to be struck out. 

He also suggested the Court had been misled because, when the Minister had sought an extended deadline, he knew he could not comply with the order in full.

Advocate James Rondel, who was defending the Minister, argued that his client had searched for what was in its possession at the time, and had therefore not breached any order.

He added that the missing emails were only “a small number” and that a fair trial could still take place. 

Advocate Thompson eventually concluded that the Health department had committed “extremely serious and inexcusable breaches."

He cited the department’s failure to preserve some of the email accounts involved in the case, despite its own policy to do so as soon as litigation was likely, which in the present case could have been done as early as 20 November 2016 when Mr Huda had written to Senator Green to complain about how his case had been handled.

Pictured: The case was heard by Advocate Matthew John Thompson, Master of the Royal Court.

Advocate Thompson also pointed out that the department’s policy to only preserve emails for two years was “difficult to understand” since relevant limitation periods exceeded that.

He also criticised the absence of a process that would ensure documents are retained, noting policies only stated individuals needed to be notified of their obligation to preserve documents.

“Writing does not avoid the risk of individuals involved removing relevant but damaging or unhelpful documents or trying to do so. Unless the concerns referred to in this paragraph are addressed, in future cases involving the Minister of Health or indeed the government of Jersey, similar breaches of practice directions on discovery might well occur. This would not be acceptable,” he wrote.

He went on to say that the department was in breach of the order as soon as it had been issued and that matters had been made worse because it had then taken three months before attempting to obtain any of the email accounts, losing some in the meantime. 

Advocate Thompson said he should have been told which accounts had been irretrievably lost before allowing to extend the deadline, which he described as “a very serious failing."

He also concluded the Minister had no excuse for the failings in the case, adding a second order shouldn’t have been necessary to produce the information required, which he said was “particularly troubling” for a Minister.

Pictured: Advocate Thomspon ordered the Minister to pay the costs Mr Huda incurred in applying for the Minister’s answer to be struck out.

Advocate Thompson eventually decided not to strike out the Minister’s answer, saying the discovery exercise had produced more documents than those provided under Mr Huda’s subject access request from 2016.

Although he said he was “extremely troubled” by the Minister’s “conduct and its failure to prevent documents”, Advocate Thompson said he wasn’t convinced it was proof of an “unwillingness to engage in the litigation process on an equal footing with other parties”. 

He added, however, that he had come very close to striking out the Minister’s answer and urged him to amend the department’s procedure to ensure they comply with relevant court practice directions in the future.

He also added that “as the price for being allowed to continue to defend the claim”, the Minister would have to answer a series of queries raised by Advocate Jones, as well as a list of documents listing each document produced in the discovery in chronological order, at its own expense. 

He also ordered the Minister to pay the costs Mr Huda incurred in applying for the Minister’s answer to be struck out, going on to express his “displeasure at the serious breaches that have occurred and the failure to draw these to my attention prior to the last hearing. Had that occurred, the hearing would have proceeded on a very different basis.”