According to one Hollywood scriptwriting website: “The courtroom drama, with the help of complex characters and a great storyline, can result in a heart-pumping, sweat-inducing, masterpiece of a film.”

I think we all know deep down that in real life courtrooms bear as much resemblance to sweat-inducing masterpieces as actual dates do to their online dating profiles. As a connoisseur of courtroom drama (in my fantasies, one day John Humphrys will interrogate me ruthlessly from the Mastermind chair on all 154 episodes of The Good Wife), I can state with great authority that the briefs that get hearts racing in televised judicial tussles are invariably not the legal kind.

That said, this week’s David and Goliath battle of grassroots doctors’ campaigning group, Justice for Health, versus the Secretary of State for Health promised to be unusually enthralling. However you try and spin it (the Department of Health’s line was stark and simple: this case is wholly “without merit”), it’s not every day that five public servants challenge the very legality of a Cabinet minister’s actions using a £300k war chest from the most successful example of crowd-funding in UK legal history.

Courtroom Four of the Royal Courts of Justice was packed with press, barristers and junior doctors crammed into every one of the hundred available public seats. The judge presiding over the case, the Hon. Mr Justice Green, began by tartly dismissing the Department’s line with the statement that, “this is plainly a serious case” that “requires full judicial review”.

The essence of Justice for Health’s case is that Jeremy Hunt has acted illegally and beyond his powers by seeking to impose a new contract on junior doctors despite their overwhelming opposition. If successful, Mr Justice Green could next week declare Hunt’s decision unlawful and quash it.

The defence team’s case – that Hunt has never insisted on imposing a contract, instead merely making benign, non-binding, entirely voluntary recommendations to NHS trusts regarding how they employ their junior doctors – is awkwardly offset by the litany of public speeches, media interviews and statements to the House of Commons in which Hunt has described himself unequivocally as imposing his contract. Indeed, on February 11th this year, Hunt chose to inform all 54,000 junior doctors in England of his decision to use his ‘nuclear option’ of imposition through the medium of a detailed statement to parliament.

Extraordinarily, Hunt’s QC argued he should not be held accountable for statements made in the “rough and tumble, hurly burly of parliamentary debate” since those statements are protected by parliamentary privilege and therefore cannot be used in court. Which – of course – begs the question whether that was precisely the reason Hunt decided to lob his imposition grenade from deep within the heart of Westminster. As the Justice for Health QC put it, this was a clear attempt on his part “to seek immunity from public scrutiny”. Disappointing, to say the least, from a man who purports to champion an NHS-wide duty of candour.

But that was merely the warm up. In a defence so audacious it felt more Ally McBeal than To Kill a Mockingbird, Hunt’s QC argued there was not a shred of evidence anywhere at all that Hunt has ever sought to impose his contract, nor that junior doctors had ever believed him to be imposing. And I quote:

“Nobody – least of all junior doctors – understood the Secretary of State to be imposing this contract.”

The collective, involuntary courtroom gasp was so resounding it could be heard all the way along the Strand, down Whitehall and inside Richmond House itself where Mr Hunt, conspicuous throughout proceedings by his absence, was distracting himself – I like to imagine – by obsessively buffing that NHS pin he so prominently displays on his lapel when in public.

There was more:

“There is not a scrap of evidence that ANY junior doctors understood the Secretary of State to be deciding to compel the introduction of the contract.”

In fact, our learned friend went on:

“There is no evidence that ANYONE thought that’s what he was doing.”

By now, my gasps were so overwhelming I found myself longing for some courtside Entonox or, at the very least, a brown paper bag to blow into. When, I wondered fretfully, does a sharp intake of breath become a formal interference in judicial proceedings? Was I on the brink of contempt of court for excessively heavy breathing?

To prevent Mr Justice Green evicting me (and, to be fair, the hundred other junior doctors who were also hyperventilating), I wrestled control of my autonomic nervous system by ‘letting it all out’ in a furious scribble. The resulting doodle looked like this:

doodle.jpg

Words, clearly, had failed me. And in many ways, they still do. However, as someone who has advocated strongly for a strategy of de-escalation and reconciliation to avert next month’s strike, might I suggest to Jeremy Hunt, Danny Mortimer, Charlie Massey and all the other individuals whose actions the Department of Health QCs so cleverly defended this week, that the smartest way to resolve a viciously intractable industrial dispute might – just might – not be to look a High Court judge in the eye and swear blind that the tens of thousands of doctors who went on strike against imposition did not, in fact, believe in imposition.

Because really, as you well know, grown ups don’t believe in tooth fairies, Father Christmas or Ally McBeal’s dancing courtroom babies and frankly – on this occasion – you’ve taken Department of Health spinning from the tactically savvy to the utterly ludicrous. Not to mention incited every doctor in the country to view you with contempt and disbelief. Just how, precisely, does such an inflammatory defence assist the one and only thing that matters at this stage, which is resolving this conflict? Does the big picture mean nothing to you?

I await next Wednesday’s verdict with interest.

Posted by:doctoroxford

10 replies on “The curious case of Courtroom Four – or Ally McBeal meets the Tooth Fairy

  1. Thanks for the update. Having spent years in Court listening to people defining exactly what shade of blue is the correct shade for a school shirt, I have no difficulty believing in the spin the other side are using to dissemble and obfuscate their true aims. The British “Justice” system is an appalling joke. The main leverage you have is that the public know this is going on. You have the oxygen of public awareness. In English Family Courts nobody does. They are held in secret hearings. Good luck. I hope for the best, but don’t hold your breath.

    Liked by 1 person

  2. I fully echo Paul’s caution. Actually just posted your blog on FaceBook and made that comment. Adversarial law is a pantomime with the object of winning, not delivering justice. So if you are going to lie, tell big lies and keep on repeating them. I wonder what the sub-conscious effect of this is on the observers. It is almost as if it immunizes people against the truth and the intention is to pull a mask of delusion over the proceedings. So then the work begins in the clubs and dining rooms with expressions of concern from “above”. The independence of the Judiciary? Well you raise the issue tooth fairies! Judges went to school. They have to dine. Relatives might be ambitious on their behalf, knighthoods etc.

    Let us hope that you have a Justice Deeds and not a Sir Monty!!

    Good luck.

    Liked by 1 person

  3. Rachel – interesting post. I presume the fact that such a defence can be run by the Govt relies on ‘imposition’ having a strict legal definition that does not necessarily align with common English understanding! Was there much debate in court on what ‘imposition’ means legally and, if so, what was the gist of that debate?

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    1. Essentially, their argument was that there is no evidence he imposed (compelled, used force etc) the intermediary bodies, i.e. NHS trusts, to adopt his new contract. The fact that it was being imposed upon JDs wasn’t relevant, they argued, because that was a matter for individual trusts, not the SoS. So the only people doing the imposing are trusts, not him. That argument was then offset by the further – more outrageous – argument that actually no junior doctors have ever believed he was imposing either. They didn’t really give much evidence for this extraordinary statement, and it was rubbish most effectively by the J4H QC. I’m not sure from his expression Mr Justice Green was very impressed by it either. Clearly the fact that on multiple occasions, over and over in fact, the SoS has himself referred to his imposition of his contract made the defence seem surreal and ridiculous.

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  4. Well it is unbelieveable, but for ordinary people like me it just increases my distrust of politicians and the establishment.. I have seen with my own eyes Hunt make a statement that the contract would be imposed. Does this mean that any statement made in Parliament, however untruthful, should be taken with a pinch of salt. What a privileged bunch they are. In any other job they would be called to account and possibly be dismissed, but now I am being told that if you stand in a certain place you can lie through your teeth and it will be quite all right because joe public knows you are lying, However, joe public isn’t aware that this is one of the perks of a well paid job, and when he does, after the publication of the results of this case, he is going to insist, if he wants a truthful reply, that the answer is given outside parliament. Kath Jackson.

    Liked by 1 person

  5. Fantastic summary… I would love to counter the ‘no evidence a single junior doctor believed in imposition’ with 5000 consecutive witnesses filing endlessly through the dock … “What is your profession?… Did you believe Jeremy Hunt was threatening imposition?” … Until the defence QCs gave in. In a parallel universe I guess.

    Liked by 1 person

  6. Well written Rachel and in a very amusing manner (you had me laughing oit loud on a flight for which I’d saved your article to read)… perhaps you should become a courtroom commentator if all else fails!

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