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

Paragraph 75 pleads that that request for a meeting was sent by email to both Mr Shah and the Claimant. Paragraph 76 pleads that on 2 August 2017, Mr Shah responded and copied the Claimant in, and that Ms Nahal responded and also copied in the Claimant. Then paragraphs 77 pleads the crucial allegation (emphasis added): “… following this exchange of emails re Tosca, Ms Nahal sent a further email to Mr Shah and the Claimant entitled “Re Tosca - Maybe just you and Mark”, or words to this effect”.

Paragraphs 81 and 82 plead what happened after that and in short, they say that there was a follow-up to the emails on 10 August, and then further emails on 10 and 11 August, and eventually there was a meeting on 16 August. The allegation to which all this is relevant is clear from the end of paragraph 82: “This is further evidence the Claimant was being ostracised by Mr Shah”. That is the material matter of fact that is said to be relevant to substantive issues, both in front of the Employment Tribunal and in front of this court.

The other paragraphs where these allegations are raised are, first of all, paragraphs 196 to paragraph 198. At this stage the pleaded case is moving on from the allegations that relate to the substance of any complaint into the allegations of doctoring or forgery of evidence. Paragraph 196 pleads that the defendants or their agents “submitted into ET evidence a number of documents in an altered form compared to the original documents (“the Altered Evidence”)”. Paragraph 197 pleads that the Altered Evidence was a result of a breach of the Claimant’s data rights and involved unlawful processing of his personal data, contrary to the Data Protection Act and the General Data Protection Regulation. Paragraph 198 pleads that as a result of that allegedly unlawful, unfair and inaccurate processing, the Claimant has suffered direct losses which are put at £220,000 or thereabouts. Pausing there, it is not really clear from the pleading why those losses are said to flow from the alleged altering of documents, if indeed that had happened. I think that what perhaps is being suggested, in light of the reference in paragraph 198 to legal costs incurred by and to legal costs being awarded against the Claimant, is that the Employment Tribunal proceedings went against the Claimant entirely because of this doctored evidence and so he has sustained costs consequences as a result of losing the Employment Tribunal proceedings which he would not otherwise have sustained. That is doing the best I can to see how losses of that magnitude could be said to be attributable to the alleged altering of these emails.

Finally, in the pleaded case, the allegations are picked up at paragraph 214 under the particulars of special damage at items (xiii) and (xiv). They claim damages arising from unlawful, unfair and inaccurate processing of the “fake 2 August 2017 Tosca email”, in breach of data protection principles, in the sum of £220,000, and then damages for distress arising from the same cause (unlawful, unfair and inaccurate processing of the “fake 2 August 2017 Tosca email”) in the sum of £56,200. So the claims that are said to flow from the “fakery” are of a substantial order of magnitude.

I think that perhaps the next logical step is to deal with the primary way the Defendants put their case, which is that this matter has been disposed of by the Employment Tribunal. I will go back and, so to speak, backfill how this all came about in a moment. But for now it is important not to lose sight of the wood for the trees.

The relevant parts of the Employment Tribunal’s detailed reserved judgment start at paragraph 15, dealing with the question of the Claimant’s claim for detriment occasioned to him as a result of being a whistle blower. The fifth bullet point, relevant to whether he suffered such detriment, identifies the following issue: “Mr Shah ostracising the Claimant from the Respondent’s business by excluding him from the important meeting with potential investors in August 2017 …”.

Then the Tribunal’s findings move on to the second aspect to which this email is relevant, namely the issue of who is to be believed and not believed. The Claimant’s case in front to the Tribunal was, as I will flesh out in a moment, that the Tosca email had been doctored and, therefore, that, amongst other people, Ms Nahal was not to be believed; while the Defendant company’s case in front of the Tribunal was exactly the reverse, namely that, in fact, it was the Claimant who lacked credibility, and that his whole case relating to this doctoring was unbelievable and redounded to his significant discredit. The Tribunal picks this up under the heading “Credibility findings”, at paragraph 26 of the Tribunal’s judgment. In order to save time, I will not read all of that paragraph, but it can be taken as being read into this ruling in its entirety.

As part of that consideration, the Tribunal made a specific reference to the question of whether, in fact, the Claimant had retained emails, and perhaps other documents, (which on the face it would have contained the employer company’s confidential information) or whether, as he said in front of the Tribunal, he had not, but had instead kept notes and had used those notes to compile his witness statement before the Tribunal. A specific reference is made to an extract of an email at paragraph 43 of his witness statement which contains a verbatim quote of an email dated 10 July 2017 or thereabouts. The quote it as follows: “Unfortunately, I’m in sunny Majorca. Mmmmm, conference call or sunny Majorca? See you on the 17th, hee, hee”. In this regard, one point made by Mr Laddie before me is that the number of m’s in the quoted “mmmm” are exactly the same as the number of m’s in the actual email.