Government’s attempt to reduce sacked surgeon’s damages backfires

Friday 09 October 2020

The Government’s attempt to “have another bite at the cherry” in its eight-year court fight against a surgeon it sacked before he’d even started has backfired, leading to a larger legal bill.

The dispute between the States Employment Board (SEB) and Amar Alwitry has been ongoing since 2012, following his dismissal shortly before he was due to start at the hospital.

The Jersey-born Consultant Ophthalmologist has fended off multiple legal challenges from the SEB - which manages all of the Government’s employment matters – first at trial, then in the Court of Appeal and in the Privy Council, which all ruled in his favour.

Pictured: The dispute between the States Employment Board (SEB) and Amar Alwitry has been ongoing for eight years following his dismissal .

Having failed to get Mr Alwitry’s complaint overturned, the SEB applied to the Royal Court earlier this year so that his compensation would be reduced to “de minimis sums."

Mr Alwitry claims he should be owed just under £8 million - a sum comprising losses in terms of salary, private practice income and pension rights, as well as future losses up to the age of 65. 

The Royal Court, however, threw out the SEB attempt to put a cap on the claim, blasting it as a sneaky attempt to open up the whole case again.

In light of the SEB's "unreasonable" conduct, the Royal Court concluded that Mr Alwitry should be entitled to a more generous portion of his legal costs back than he otherwise would have been - pushing up the Government's legal bill when the court proceedings finally come to an end.

The SEB's application to reduce Mr Alwitry's damages relied on the argument that Mr Alwitry’s relationship with his employer had “irretrievably broken down at the point of dismissal” and would not have continued beyond the date of his dismissal, 13 November 2012.

On behalf of the SEB, the Attorney General argued that to grant Mr Alwitry’s damages beyond that date would be in “direct contradiction of the clear finding by the Court of Appeal that the employment relationship had ‘irretrievably broken down’ by that point."

However, the Court of Appeal also found that the SEB was not entitled to terminate Mr Alwitry’s contract on notice for “some other substantial reason” as his contract stipulated. 

Advocate Stephen Chiddicks, who represents Mr Alwitry, said the SEB had neglected those conclusions, which were later upheld by the Privy Council, and therefore could not invoke an ‘Edwards cap’ on damages, which relies on the principle that an employer, although guilty of wrongful dismissal, could have lawfully dismissed an employee on notice.

The lawyer described the SEB’s application as an “abuse of the Court’s process”, which sought to re-litigate matters which had already been decided by the Court. 

Pictured: The Royal Court has once again ruled in Mr Alwitry's favour. 

“This is an attempt to re-open a matter already determined with binding force between the parties, and doubly so when the party had attempted unsuccessfully to appeal the very finding that they now seek to re-litigate,” he submitted to the Court. 

Advocate Chiddicks also described the SEB’s reasoning as “flawed”, noting how the Board had “simply restated the conclusion it seeks, rather than making any argument in support of it."

He concluded that the application was a “brazen attempt by the SEB to seek for the fourth time the same outcome pursued at the first trial, on appeal, and in seeking leave to appeal to the Privy Council."

“Such an abuse of process would be objectionable enough in itself, but it is all the more so in light of the history of this case,” he added.

Presiding Royal Court Commissioner Julian Clyde-Smith concluded that making the order sought by the SEB would be “objectionable” because there had been no lawful dismissal -  a conclusion reached by the Royal Court previously and upheld by the Court of Appeal – and the SEB had no “lawful ground” upon which to terminate Mr Alwitry’s contract. 

The Commissioner added that, whatever the relationship between Mr Alwitry and his employers on 13 November 2012, his contract would have “continued until lawfully terminated by one party or the other."

Pictured: The SEB failed to argue Mr Alwitry should not be granted costs beyond 13 November 2012.

“There was no finding by the Court of Appeal that Mr Alwitry’s contract of employment terminated on the 13th November 2012,” he wrote in his judgment. “Indeed, the finding of both courts was that the SEB had no lawful means to terminate the contract of employment at that date and so it would have continued. 

“When the contract of employment would have terminated will be a matter of fact for the Court sitting with Jurats to assess and is not a matter of law upon which a single judge can make a determination.” 

He agreed with Advocate Chiddicks’s view that the SEB was seeking to “re-litigate an issue that has already been decided against it” and dismissed the application.

Handing down his judgment, the Royal Court Commissioner went on to grant Mr Alwitry’s costs “on an indemnity basis” - meaning he will receive a larger portion of his legal fees back - describing the SEB’s conduct in the matter as “unreasonable."

Advocate Chiddicks had argued in favour of the SEB paying back a larger sum of Mr Alwitry's legal fees, saying the SEB’s latest application had been “an attempt through the back door to have another bite at the cherry”, describing it as “hopeless”, “doomed to fail” and “unreasonable”. 

He said the process had “needlessly added to costs and delay", using the valuable resources of the Court.

Advocate Steve Meiklejohn, however, said the application had been brought to “deal with the matter justly” with proportionate costs, and avoid unnecessary expense. 

The Royal Court will consider the total compensation Mr Alwitry should be granted at a later date.