Mr A Allen, Queen’s Counsel For the Second v Mr D Basu, Queen’s Counsel — 2022

This was a preliminary hearing on a limited issue: whether Dr A Frankel was acting as agent for the second respondent, Health Education England, when he contacted Mr Lamb in December 2018 and met him in January 2019. The tribunal said the merits of the underlying dispute were not relevant to that issue. It heard evidence from the claimant, Dr Frankel, Mr Whitehead and Professor Reid, and considered the parties' email exchanges and the surrounding circumstances.

The tribunal found that the respondent had its own legal and media teams, had previously indicated that it did not want Dr Frankel briefing external bodies directly, and had decided to maintain the agreed public position statement. It accepted that Dr Frankel used mixed language in emails and in his briefing document, including references to "we" and "our", but found that this reflected poor drafting and his personal identification with the subject matter rather than authority from the respondent. The tribunal also accepted that Dr Frankel acted to try to help resolve matters and repair reputational damage, but held that he did so on his own initiative and repeatedly told Mr Lamb and the claimant that he was acting in a personal capacity.

On that basis, the tribunal held that there was no manifestation of assent by the respondent for Dr Frankel to act on its behalf, so the claimant's primary case of express agency failed. It also rejected ratification: Dr Frankel had expressly and repeatedly said he was acting privately and not on behalf of the respondent, so the legal preconditions for ratification were not met. The tribunal further found that the respondent did not know about Dr Frankel's activities until it received the claim form in March 2019. The claim against the second respondent was therefore dismissed; the claims against the first respondent continued as already listed.