KB-2023-003510 - [2025] EWHC 1755 (KB)

Just briefly to complete the narrative of how these matters have unfolded, the Claimant then made an appeal against the rulings of the Tribunal, and in support of that appeal he made an application to admit fresh evidence dated 24 December 2020. That, essentially, I think, relies on the fruits of data subject access requests that the Claimant had by this time made which he sought to say was evidence that satisfied the Ladd v Marshall tests to the effect that it could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing, was relevant and would probably have had an important influence on the hearing, and was apparently credible.

However, the Claimant expressly withdrew that application. That is recorded in an email dated 18 January 2023 from, if my understanding is correct, his then solicitors including the words “The application to admit fresh evidence with witness statements … will not be pursued at the hearing” - that being a hearing, I infer, for permission to appeal, although it is possible that it is a reference to the substantive appeal itself.

Finally, when counsel produced detailed amended grounds of appeal, which I have referred to in the course of a previous ruling, that item does not appear as one of the grounds.

Mr Laddie submits, and I accept, that if was anything in this point about the Tribunal having been misled or doctored evidence having been put in front to the Tribunal on the basis of what other (i.e. data subject access request) material now demonstrates, and the Tribunal having reached incorrect findings on that basis, the proper way to raise that complaint is by way of appeal against the Tribunal’s ruling supported, in this particular instance, by an application to adduce further evidence. The fact that has been withdrawn demonstrates that the Claimant has elected not to pursue the only available route to him if there was any substance in these allegations. Mr Laddie invites me to reject the Claimant’s statement made in court yesterday that the reason why that was withdrawn was for costs considerations. Although I understand Mr Laddie’s submission that this is implausible in light of the costs that would need to be incurred in pursuing other aspects of the appeal in any event, I am not going to make any finding about that. However, the simple fact remains that it has been withdrawn.

Not only are the Tribunal’s findings clear, but, to the extent that this is relevant, from looking at the documents that I have been invited to look at it appears to me that the foundation for their findings is manifestly sound. The suggestion that a lot of emails would have been manually transcribed including down to repetition of the very last “m” in a long list of “mms” in an email seems to me to be one that the Tribunal was fully entitled to reject as implausible.

Mr Dowding’s evidence before the Tribunal is also contradicted, although I suppose there would also be a contradiction if he had retained emails, by a statement that he made in 2017 in connection with a dispute about the extent to which he had delivered back electronic equipment and copy documents which the employer company said contained its confidential information, as to whether he retained any of that confidential information. In that witness statement, he said that he retained nothing. It is a witness statement of 27 November 2017, and includes the statement: “I do not have in my possession or under my control any confidential information or other property belonging to the company”. The Claimant goes on to say that he hasn’t passed such information to anybody else except a memory stick he had sent to Blake Morgan, who were as I understand it his then solicitors. If, in fact, he had transcribed a number of emails (he suggested today in answer to a question from me perhaps 25 or so) verbatim before he returned the electronic or hard copies of them, he could not possibly, honestly, have made that statement. It is a manifestly ridiculous suggestion to suppose that if somebody has in their possession an email containing confidential information and they copy it, whether by a photocopy or by writing out a verbatim note, that somehow the copy does not contain the same information as the original document. As I said to him, quite frankly in the course of his submissions, it does him no credit whatsoever, whether he retained the emails as the Tribunal found and as it is not my function to second guess, or whether he retained verbatim notes, that he made a witness statement in those terms.

All this was supplemented by further material placed in front of me this morning including a letter dated 8 November 2023 from IT experts commissioned by Allenby which found: “There is no evidence of email tampering as emails were directly received securely by Mimecast servers. There is no evidence of man in the middle alterations as all the emails were protected by TLS (transport layer security) meaning they were protected by encryption in transit. All emails were protected by encryption, using storage level encryption so they cannot be altered. This is a key feature of Mimecast”. All of that was said after these experts had explored the email system of Allenby. Also, there is the fact that Mr Dowding was offered the chance himself through his own IT expert to look for the relevant emails on Allenby’s server. A letter from Allenby of 17 August 2023 rehearses the making of the offer to permit Mr Dowding’s appointed IT expert to inspect on Allenby’s Mimecast servers, and repeats that offer on an open basis, and suggests there is no good reason for rejecting it.

Mr Dowding tells me that the reason that this offer was rejected was because it was an offer for his appointed IT expert to inspect and that was regarded by him as unsatisfactory because what he wants is a joint expert to be appointed by the court to inspect on grounds that if his expert carries out an inspection it would be said that the inspection is somehow invalid or tainted. I find that a very surprising stance for him to adopt, especially given that he showed me himself letters from his solicitors at a much earlier stage in which they had asked for inspection. The suggestion that an IT expert should not take the opportunity to go in because of the fear that such IT expert’s views would later said to be suspect strikes me as a deeply unsatisfactory answer to that offer.

Finally, I just want to touch on some of the points that Mr Dowding made in suggesting that the new matters have come to light which show that there are grounds to question the ruling of the Tribunal. I do not propose to attempt to deal with every point Mr Dowding made, but I hope that I can deal with one or two by way of illustration.

Mr Dowding referred to a transcript of part of a telephone call which took place on 11 August 2017 between Ms Nahal and Mr Matt Siebert of Tosca and which, as I understand it, was produced in response to a data subject request made of Allenby. That rehearses that Ms Nahal was saying that she had spoken to Mr Dowding the previous day and that he had said “Look Amrit you know I don't want Matt to come here. There's no one here”. Ms Amrit goes on to say, on the phone call: “Let's just, I'm just, I'm telling you that because we know each other well” and then later: “So basically he [that, I think, is Mr Dowding] is going to get back to me. He should be coming back to me today. I gave him the dates when, you, know suited you”.

Mr Dowding submitted this narrative was to be contrasted with an email sent on 11 August (the same day) just after 10 o'clock from Ms Nahal to Mr Shah in which she says: “As promised Tosca is available on the following dates next weeks”, It then sets out four dates in the week, and ends with the words “Looks forward hearing from you”.

The problem with this is that all that the data subject access request produced, perhaps, in my view, over generously, was documents relating to Mr Dowding’s personal data. It is completely unsafe to assume that this phone call and that email comprise the entire narrative of what was going on between Ms Nahal and Mr Siebert. The phone call does indeed suggest that Ms Nahal was expecting Mr Dowding to come back with dates, but it does not follow that, effectively, an email saying Tosca is available on certain dates sent to Mr Shah is somehow inconsistent with that. It is perfectly possible that further discussions took place and that this led to generation of the email. It is not something obviously that is in front of me to decide, but it is simply an unsound proposition to say that any difference or tension between these two is in some way suspicious or sinister.

Another point that the Mr Dowding made related to a letter from Mr Laddie dated 4 September 2020 written to Mr Naylor at Allenby. In summary, it is saying that the allegation of forgery made against Ms Nahal has been abandoned. The letter is a long letter. The crucial sentence on the second page is: "I'm pleased to report that yesterday on the third day of the trial, Mr Dowding’s counsel, Mr Declan O’Dempsey, informed the Tribunal that the allegation of forgery is no longer being pursued, i.e it is being abandoned”. The letter also goes on to rehearse really what has happened with Ms Nahal. It talks about the fact of her reporting matters to the FCA and it raises the hope that the FCA can be shown that the allegation has now been withdrawn and it is no longer a live matter. Mr Dowding’s complaint about this letter is that it was not disclosed. Ms Nahal gave the evidence, which the Tribunal accepted, about her not being involved in any forgery, I think approximately four days later on 8 September.

That complaint, in my judgment, is completely unfounded. This was not a disclosable document in the proceedings. It was a letter written by Counsel for the opposing party to Mr Dowding reporting to the employer of a witness or prospective witness for that opposing party that (as Counsel at that time apparently believed) a serious allegation of impropriety against that witness had been abandoned. If there was some material in it which later emerged in evidence (e.g. as to the history of Ms Nahal’s response to the allegation) and somehow Mr Dowding felt disadvantaged by that late emergence, he was represented by counsel. If there was a question of an adjournment to deal with Ms Nahal’s evidence or a question of obtaining third party disclosure relating to whether the investigation carried out by her employer had indeed exonerated her, those are matters that could and should have been ventilated in front of the Tribunal. They certainly do not provide any basis at all for a High Court action revisiting all this ground in what would otherwise plainly be a very clear abuse of process.

I do not propose to say anything more about the points Mr Dowding raised because, in my judgment, they are all of a similar weight and calibre to those points, i.e they are misguided. They do not address the fundamental grievance of the Defendants. This matter has already been fully investigated by the Tribunal. If there was an available avenue for complaint it lay by way of appeal, which has been abandoned, and what is sought to do here is to go over again extremely serious allegations with no proper basis whatsoever against somebody who isn’t even a party to this litigation or employed by Mr Dowding’s former employer. It does seem to me to be a transparent and highly regrettable instance of Mr Dowding pursuing, remorselessly, and without any consideration for the offence and upset that these allegations cause to other people, allegations which he must know by now are utterly baseless.

I think that is a matter that reflects extremely badly upon Mr Dowding and certainly bolsters me in the clear view I have that the material issues have been resolved already, and that this is not a matter that should be allowed to be raised again in these proceedings, and that it would be a very plain abuse if it was to be.

Those are my reasons for upholding the Defendants’ strike out application in respect of all the above paragraphs in the Particulars of Claim.