Allowing the amendments, and striking out the claim in respect of the damages flowing from dismissal but not otherwise:
(1) The principle in Henderson, that “a party should not be twice vexed in the same matter”, applied not only to raising the same issue a second time, but also to one that could and should have been raised previously. However, the Ds’ applications to amend required them to satisfy the Court that the balance of justice favoured allowing them to be pleaded; and the applications to strike out required them to demonstrate that the claim ought not to be tried. In the circumstances, it would be disproportionate and not in the public interest not to permit the application.
(2) The applications were not “very late” so as to require particularly close scrutiny, although the Ds had been guilty of unacceptable delay. The instruction of new counsel was not in itself a good explanation. These were factors that weighed against the Ds.
(3) Applying Friend, the defence of consent to publication as part of the disciplinary procedure had at the very least a real prospect of success, and the amendments would be allowed. However, C also had a real prospect of defeating it, so the claim would not be struck out. There were relevant factual issues which should be left to trial.
(4) The Johnson line of authority had the effect that any claim to recover loss which arises by reason of an employee’s dismissal falls to be dealt with by the Employment Tribunal. If reputational damage is inextricably linked to the fact of a claimant’s dismissal such that the cause of action in respect of that damage did not exist before the dismissal, such financial loss as the claimant may have suffered as a consequence is the result of the dismissal, and compensation for that damage can only be sought as part of an unfair dismissal claim. The parts of C’s claim relating to loss flowing from the dismissal, including her claim for past and future financial loss, fell within the Johnson exclusion area and were struck out.
(5) If the claim for loss alleged to flow from the refusal to provide a positive employment reference had not been within the Johnson exclusion area, it would not have been the subject of summary judgment. Although the publication made no difference to the terms of the reference D2 in fact provided for C, C could rely on the alleged failure to provide a clinical reference, and this was not an issue suitable for summary determination.
(6) It might transpire at trial that the publication to Mr Gayler had been published at a time and in circumstances independent of the dismissal and/or to other individuals, and as such the claim would not be struck out as a Jameel abuse.