Ashford Disputes Alleged Failure to Comply

A tribunal hearing has heard that the former chief executive of health and social care chose which documents were relevant during the initial disclosure process.

This week saw the continuation of hearings into the unfair dismissal of Dr Rosalind Ranson.

During Tuesday’s hearing, Oliver Segal QC, representing Dr Ranson,read from a sworn affidavit from a civil servant which revealed that Ms Magson had personally checked the emails being supplied to the tribunal before they were submitted to the Attorney General’s Chambers.

Mr Segal outlined that during the disclosure hearing, when both sides submitted evidence, files from the DHSC and Manx Care systems were collated by Government Technology Services and sent to then DHSC CEO Kathryn Magson in a One Drive (online) folder. 

According to the affidavit, Ms Magson then carried out a review of these documents to determine whether they were relevant or not. The relevant files were then sent to the Attorney General’s Chambers, with the ones deemed irrelevant being left in the file. 

However, while these documents were not revealed at this time, Dr Ranson, believing that the department was withholding documents, later submitted a subject access request which did then lead to them being released and submitted to the tribunal. 

Yesterday, Jonathan Wild, representing the DHSC, said that, having checked this overnight, he could confirm that the files were sent to the AG’s Chambers after being reviewed by Ms Magson. 

Mr Segal summarised this as saying that the documents had been ‘filtered out’ by Ms Magson. 

Looking at the position of the AG’s Chambers when it represented the DHSC, Mr Segal said that the department had failed to disclose what he called the ‘most relevant’ documents with its own lawyer, which would leave any legal representative in a ‘very, very difficult position’.

He added that ‘some explanation’ around what happened and why still needed to occur. 

Dr Ranson and Mr Segal said that it was also of little defence to say that the benefit of hindsight had allowed for further documents to be brought forward as the same terms of reference were used for the disclosure and the subject access request processes. 

David Ashford

Mr Segal, again reading from a sworn affidavit, told the court that a civil servant confirmed they had asked former DHSC minister David Ashford for permission to access his emails and documents that may be relevant to the tribunal. 

That civil servant said that Mr Ashford replied to say that the only correspondence he had regarding Dr Ranson were with Ms Magson, which meant they were already available to the tribunal. 

The tribunal heard, that a subsequent future check of his documents revealed that Mr Ashford had failed to disclose emails between himself and two other people, one a Dr Crellin, in which he spoke highly of Dr Ranson and the other from Douglas East MHK Claire Barber, who asked him ‘have I missed something?’ when Dr Ranson was not announced as the new MD for Manx Care.

However, on Wednesday Mr Ashford delivered a letter to the tribunal, which chairman Douglas Stewart referred to as a ‘reasoned protest’ against these allegations. Mr Stewart, while not further detailing the contents of the letter, said it ‘does materially change things’. 

Since the hearing, Mr Ashford has supplied a copy of this letter to Gef, which can be seen below. In the letter he said: ‘As stated under oath every single document that was in my possession was disclosed at the time of disclosure’.

His letter reads:

Mr Wild also told the hearing that ‘it appears that what has been said in these submissions is incorrect anyway’.

This came after he said he had received information that said Mr Ashford had complied with the procurement procedure and that the documents had in fact been submitted in October 2021. 

He told the tribunal: It is in everyone’s interest to say that if what has been sad is right it is pointed out and if it is wrong, it is corrected.’

However, Mr Segal later countered this by saying that a list of documents that Dr Ranson believed hadn’t been disclosed had been sent to the DHSC in January 2022, almost eight months ago, with the department being ‘expressly invited’ to say if the list was wrong. 

The documents which Mr Segal claims include Mr Ashford’s emails were, according to him, on that list. 

Mr Segal further added that emails between Mr Ashford and Clare Barber MHK, who at the time was a political member of the DHSC, were supplied in supplementary documents. 

Looking at whether the scope of the procurement would have included Mr Ashford’s emails as he was no longer DHSC minister at this time, Mr Segal said his client ‘didn’t assume’ that it wouldn’t be. 

He accepted that the documents, as said by Mr Wild, could have been disclosed and missed and said if that was the case ‘so be it’ but added that ‘we don’t believe it so’. 

Looking at the wider issue of failure to disclose documents, Mr Segal noted that the tribunal panel itself has expressed concerns about this, hence the need for the hearings. He said that since the DHSC had never challenged this, the tribunal’s ruling was an ‘unappealed judgement as a matter of fact’.

Mr Wild closed his response to Mr Segal’s submissions by saying that the AG’s Chambers has made itself available to assist with answering some of the questions raised throughout the hearing but that it was ‘difficult to see the relevance’ in the context of the remedy hearing or level of damages that will be awarded to Dr Rason.

While the tribunal is eventually heading towards a remedy hearing, scheduled for January 2023, there is still the matter of the investigation being undertaken by private investigators Expol into allegations that documents were concocted by the DHSC ahead of, or during, the tribunal process.

Panel chairman Mr Stewart said that the tribunal expects to receive at least a summary of the findings of that investigation. 

Mr Wild told the hearing that the investigation is expected to take up to three months, having been appointed in July. However, Mr Segal said that from his discussions with Expol, it could be concluded sooner. 

It isn’t yet clear whether another hearing will be required as a result of the Expol investigation.