Health’s defence thrown out after “clear breach” in osteopath case

Monday 09 August 2021

The Health Department has had its defence in a legal claim brought against it by a local osteopath thrown out after breaking an "extremely serious" order of the Royal Court.

Health’s answer to Badrul Huda, who accuses the department of mishandling a patient complaint against him, was struck out at the end of last month when the Bailiff overturned a previous decision.

Health Minister Deputy Richard Renouf had been ordered in April 2020 to search a series of email accounts relating to the complaint, but failed to do so. 

After seeking an extension to the original deadline, Deputy 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 – 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.

It emerged that the department had then taken three months before attempting to obtain any of the email accounts, losing some in the meantime.

Pictured: The Minister was ordered by the Court to search a series of email accounts relating to a complaint made by a patient against Badrul Huda.

In total, the accounts of 10 individuals, who had since left the Health Department and had their inbox deleted after three months, were inaccessible, including the former Health Minister’s, as well as that of one of the individuals most closely involved with Mr Huda's case.

Master of the Royal Court, Advocate Matthew Thompson, also found there was no process in place to ensure documents are retained, noting policies only stated individuals needed to be notified of their obligation to preserve documents.

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 said he had come very close to striking out the Minister’s defence but eventually opted not to, considering that a fair trial could still place. He however 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 Mr Huda's legal representative, Advocate Ian Jones, as well as a collection of documents presented chronological order, at its own expense.

Pictured: The Master of the Royal Court, Advocate Matthew Thompson, decided not to strike-out the Minister's answer in January.

Mr Huda - who argues that the Department believed what he claims were unfounded allegations by the patient, and went on to refer him to his professional body without telling him or conducting a full investigation prior to doing so - appealed the Master's decision.

During the appeal hearing in July, Advocate Jones argued that the Minister had breached an “unless order”, which specified that failure to comply with the order would result in his answer being automatically struck-out.

He added that, by not striking out the answer when the breach came to light, the Master had allowed “an abuse of the process of the Royal Court” and that it was no longer possible for Mr Huda to receive a fair trial.

Mr Huda also noted that, at the time he filed his appeal on 9 March 2021, the Minister remained in breach of Orders of the Court, having not answered the additional queries or checked the additional files the Master had required.

Representing the Minister, Advocate James Rondel argued the Master’s decision should be upheld and said that throwing out the Health Department's defence would “drive it from the seat of justice."

Pictured: The Bailiff, Timothy Le Cocq, said a breach of an 'unless order' should be met with its natural consequences.

But the Bailiff, Timothy Le Cocq, rejected that view, saying he didn’t fully understand the argument.

“It would, so it seems to me, very often be the case that where a pleading was struck out because of the failure to comply with orders of the Court (as opposed for example, as disclosing no cause of action) then the consequence would always be substantial for the party whose pleading was struck out,” he wrote in his judgment, which was published last week.

“I cannot see that it is an argument against striking out to say that the other parties case, which contains unwelcome allegations, would thereby succeed.”

He went on to note that the Master had not considered whether there had been a “flouting or disregard of the Orders of the Court”. If he had, he would have “inevitably” concluded that there had been, the Bailiff said.

While he said it was always uncomfortable for a judge to strike out an answer, other than when it is without merit, the Bailiff said Orders the Court are to be followed and a breach of an 'unless order', which he described as an “extremely serious order” that should have put the Minister “on the highest possible alert to comply with it”, must be met with the “natural consequences”.

He therefore concluded, “with reluctance”, that the Master’s decision should be reversed and struck out the Minister’s answer. A judgment will now have to be reached without the Minister's defence against Mr Huda's claims.