KB-2025-001016 - [2025] EWHC 2023 (KB)

It is not strictly speaking necessary for me to consider this issue as it is premised on the Court finding against Dr MN on the contractual question that I have answered above. That is, if it is a breach of the express terms of the contract – incorporated from E27 – for Ms Y to serve as Case Manager, it does not add anything if her continuation in that role is a breach of the implied terms as a result of things that she has done. I will, however, address the question as it was argued in full before me.

I do not consider that the allegation of breach of the duty of trust and confidence as a result of Ms Y’s conduct is made out. It is submitted by Mr Sutton KC that Ms Y’s involvement with and evidence to the Thirlwall Inquiry demonstrates that she could not carry out the key function of Case Manager – to determine the next steps once the investigation was completed – in a detached and fair way. I disagree.

First, I do not consider what Ms Y has done so far demonstrates that she could not, let alone will not, take a decision once the investigation is complete in a detached and fair way. What Ms Y said to the Thirlwall Inquiry does not indicate bias or hostility towards Dr MN; nor does it indicate that she has come to a firm view as to Dr MN’s actions or omissions, or as to the option that has to be pursued in his case, before the completion of the investigation. Ms Y may have taken umbrage at the various challenges to the investigation process, but this does not mean that she cannot keep an open mind about what option to take once the investigation has been complete. Similarly, the fact that Ms Y expressed a view to the Thirlwall Inquiry as to the necessity for them to seek evidence from BK does not mean that Ms Y cannot keep an open mind once the investigation has concluded.

Second, in any event, it is far too early in the investigation process for this to be considered. Fairness must be looked at in the round, and at the time that the key decision is taken. Merely because Ms Y may have indicated certain views at this stage does not mean that she will maintain these views once the investigation has been completed.