Who is responsible for the cost to the public purse of Peggie v NHS Fife and Dr Upton?

Introduction

In this blog we try to answer the question of who is responsible for the decisions and costs to the public purse incurred in the case of Peggie v NHS Fife and Dr Upton. We look at the roles played by different parts of the NHS in Scotland, and the formal lines of accountability each has.

To do this we look at:

1. What creates costs in a legal case
2. The key players in a legal case, as background for anyone not familiar with that
3. Who is playing these roles, in relation to NHS Fife
4. The Central Legal Office for the NHS in Scotland in more detail
5. Who is funding NHS Fife’s defence
6. The formal accountability for the spending
7. Who is responsible for decisions made in relation to the case

We conclude that the question of who is responsible for the costs being incurred cannot be fully answered using publicly available sources, but that alongside NHS Fife, as the employer and therefore key player, the Central Legal Office also appears to be an important part of the decision-making process, and that the Scottish Government is also connected, through its involvement with the funding arrangements and the Accountable Officer system.

1. What creates costs?

Key concepts here are the claimant (the person bringing the case, here Sandie Peggie) and the respondent(s) (the employer and any individual employees cited, here NHS Fife and Dr Upton).

Costs will arise from decisions. The key ones for the employer side in a case like this will be:

• whether to attempt mediation when the claim is first made, or simply to contest it;
• as the case continues, whether to carry on contesting it, or to offer a settlement good enough to persuade the claimant to drop the case. This is an ongoing decision that can be made at any point in the proceedings;
• if an individual employee is also named as a respondent, whether to represent that employee, and as the case continues, whether to carry on doing so;
• which lawyers to engage. The cost of lawyers will vary, as will the input they can make;
• how to argue the case: different approaches will carry different risks, legally, financially and reputationally;
• whether to appeal, in the case of a loss.

How far the first two of these can be pursued will depend on what the employer is willing to offer and the reaction of the claimant to that.

2. Who does what in a legal case: a beginner’s guide

The basic structure of a legal case starts with the person or organisation who is either taking or defending the case, who is the client. Both the claimant and the respondent are clients.

If they are able to afford legal advice, or obtain that “pro bono” (for free), the client chooses a solicitor and gives them “instructions”, which explain what they want to achieve. Some large organisations (such as the Scottish Government) employ their own lawyers, who automatically cover the solicitor work involved in at least some court cases.

The solicitor then engages an advocate (or barrister), called counsel. This is a lawyer who is qualified to conduct the case in the courtroom, on behalf of the client. The decision of which counsel to engage is the client’s, taking advice from their solicitor.

The solicitor and counsel will work closely together: both will be involved in giving the client legal advice. They may tell the client some things are unachievable, or suggest things the client has not thought of. They understand the law in depth and make decisions about how to construct the detailed legal arguments, but the client will need to agree those. They will advise on the risks of different strategies, and the chances of success.

Lawyers are bound by professional rules about how they can behave, but as long as those will not be breached by the client’s instructions, significant decisions about how to take the case forward are expected to rest with the client. Sometimes a client and their legal team may end up in conflict: there has been one recent high-profile example of this involving the Scottish Government. This is exceptional, however, in public sector cases: in most cases involving public bodies, the client and the lawyers work together as a team.

In court, only counsel can question witnesses or speak to the judge. They may sometimes tell the court they need to “take instructions” from their client on something, if an issue comes up where they are not sure what the client would want them to do. This may done through the solicitor, who would usually be expected to consult the client.

3. The respondent roles in Peggie v NHS Fife and Dr Upton

Client(s)

An employment tribunal allows the person bringing it (in this case, Sandie Peggie) to raise complaints separately about her employer and about specific members of staff, and to have those heard together.

Here, NHS Fife is the employer, and so is the lead respondent, but Ms Peggie has also been raised claims directly against Dr Upton. This creates two clients on the respondent side.

Ultimate responsibility for the client-side relationship in NHS Fife should rest with the Chief Executive, Carol Potter, and the Chair of the NHS Fife Board, Patricia Kilpatrick.

Beneath them, the Director of Nursing appears to be the member of the NHS Fife senior management team charged with specific responsibility for the oversight of how legal cases are handled, and how NHS Fife is exercising its client function. From most recent information we can find, from 2021, NHS Fife’s small Legal Services Department (LSD), which is headed by a paralegal or equivalent, reports to her.

A 2021 job advert describes the LSD as follows:

The Legal Services Department provides a comprehensive and specialist service in the management of legal matters arising out of NHS Fife activities, including litigation and claims management; processing of Court Orders, Procurators Fiscal, Police Scotland and Solicitors’ requests for documentary evidence purposes; contracts and legal agreements; and the provision of advice, support and training on legal matters to staff at all levels in the organisation.

A separate document on Information Governance states:

The Legal Services Department is the principal point of contact within NHS Fife for the provision and sourcing of advice and assistance on the legal implications and requirements of the broad range of activities and services undertaken within NHS Fife, including data protection and freedom of information.   The Legal Service Department will seek expert legal advice and support from NHS Scotland Central Legal Office where necessary.

The current Director of Nursing, Gillian McAuley took up her post on 1 July, when the previous postholder retired. The Director of Nursing sits on the Board of NHS Fife, but main NHS Fife site has not been updated for the change in postholder, at the time of writing.

Solicitors for NHS Fife and Dr Upton

NHS Fife does not directly employ its own solicitors. The solicitors acting both for NHS Fife and Dr Upton are in the Central Legal Office (CLO) which serves the NHS in Scotland, described further below. According to Audit Scotland “There is a protocol that any Board which receives a legal claim passes this on to the CLO.”

Representing two clients and potential conflict of interest

NHS Fife agreed from the start that its lawyers should also represent Dr Upton as an employee. This is not unusual in NHS litigation. The argument is that the staff member has only become exposed to any risk of liability of being sued through doing their job.

Sometimes, however, there is separate legal representation; it happened in cases involving NHS Tayside and surgeon Muftah Eljamel, for example. This would be the expected approach when there is a risk that the interests of the staff member and the employer could conflict.

Before making the decision to have joint representation with Dr Upton, NHS Fife would be expected to have assessed the risk of a conflict of interest, presumably in consultation with the CLO.

According to Audit Scotland, each solicitor working for the Central Legal Office is a member of the Law Society of Scotland and is bound by the Society’s code of professional ethics. The Law Society of Scotland (LSS) explains:

It is a well established principle that solicitors should not act for clients where there is a conflict of interest between them. This is codified in rule B2.1.2 which states that “You shall not act for two or more parties whose interests conflict.” That statement is entirely unqualified and is the guiding principle which governs the rest of rule B2.1. Conflict of Interest is amplified in rule B1.7 which states that:

“1.7.1 You must not act for two or more clients in matters where there is a conflict of interest between the clients or for any client where there is a conflict between the interest of the client and your interest or that of your practice unit.

1.7.2 Even where there is only a potential conflict of interest you must exercise caution. Where the potential for conflict is significant, you must not act for both parties without the full knowledge and express consent of the clients.”

Even without this, it would be basic due diligence for a public body to assess the risk of a conflict of interest with a co-respondent before agreeing to share the legal team.

Counsel for NHS Fife and Dr Upton

The barrister acting for both respondents is Jane Russell KC of Essex Court Chambers, based in London. She will have been contracted through the CLO. As her biography notes, she represented Garden Court Chambers in Bailey v Stonewall and Garden Court. She also acted for CGD Europe in Forstater v CGD Europe et al, and more recently the Defence Science and Technology Laboratory in Wilkins v Defence Science and Technology Laboratory.

Russell is qualified in England, but employment tribunals operate as a UK-wide function, as a branch of the Ministry of Justice rather than the Scottish courts, so she can appear before employment tribunals in Scotland. The same is true of Sandie Peggie’s barrister, Naomi Cunningham. Russell will be taking instructions for both respondents, presumably through CLO solicitors. As a practising barrister qualified in England, Russell is regulated by the Bar Standards Board, including for any issues related to conflicts of interest.

4. The Central Legal Office

Across Scottish health boards, the solicitor function has been centralised into the Central Legal Office (CLO). The CLO is part of one of Scotland’s national-level health boards, National Services Scotland (NSS). The CLO recovers its costs by charging NHS Boards fees for its work, in a similar way to a private solicitor. It is the exclusive provider to the NHS for litigation, employment and property disposal work.

The CLO is headed by the Legal Adviser to NHS Scotland, Jennifer Thompson, who is head of the legal profession in the Scottish NHS. Ms Thompson reports to the NSS Director of Finance, Corporate Governance and Legal Services, Carolyn Low. Ms Low reports in turn to the NSS Chief Executive, Mary Morgan. Morgan and Low both sit on the NSS board.

A July 2022 job description for the Legal Advisor to NHS Scotland provides some information about the CLO and the role. This stated the CLO had 132 staff and a budget of £11m. The Legal Adviser “has to meet challenging monthly fee earning targets (for individual or team)”. It also notes:

The postholder also provides professional leadership and direction to teams of specialist experts who provide the following services:… Employment law claims, Tribunal applications and court actions that often have significant budgetary implications for those clients and their employees and are of long term strategic importance.

The job description states that the Legal Adviser:

Leads and directs the delivery of a professional, high quality, value for money legal service to NHS client authorities to the standard that meets their requirements as the provider of legal services to the NHS in Scotland. The postholder provides assurance to those authorities around the quality and compliance to recognised standards of the legal advice provided by CLO.

In relation to accountability, the job description explains:

The postholder has dual responsibility.  They are professionally accountable to the Law Society of Scotland and to the individual clients rather than to NSS for the legal work carried out on behalf of NHS Scotland and beyond and have the autonomy to interpret and implement UK/Scotland legal policy and strategy with minimal guidance.

The postholder is responsible to the SBU Director [appears to mean the Director of Finance] within NSS for the quality and effectiveness of service provision.

The postholder is professionally accountable for the leadership of all solicitors based within CLO and for the assurance of a professional service being provided…

In relation to dealing with contentious issues, it states:

The postholder is required to demonstrate the highest level of leadership skills and professional legal expertise by use of wide ranging communication skills in highly contentious, confidential and extremely sensitive settings where finance, public perception of the NHS and corporate and individual reputations are at stake. 

The role has also been described¹ as requiring:

a keen eye for political sensitivity and the need to work as a team. It is vital that you espouse the values of NSS with openness, integrity, respect and care being at the heart of those values.

The postholder is also expected to work closely with the Scottish Government.

The head of the CLO’s Employment Department oversees two teams who split the different health boards between them. The role of this department is described as follows:

The Employment Department provides a comprehensive specialist advice service to all levels of NHS Scotland Human Resources and Executive Level staff.  This includes the conduct of mediations and skilled investigation, provision of advice, representation at Employment Tribunals, and drafting, revising, negotiating and agreeing all documentation required…

Relationships with clients and National Services Scotland

A routine Audit Scotland report of the CLO’s work suggests that in practice the CLO takes on much of the client role and is not subject to much oversight from within the NSS.

We were advised that whilst NSS management is interested in CLO performance overall, they take no role in the legal work undertaken by CLO…

As discussed above the CLO is independent from NHS Boards and Boards have limited influence and control over the legal work they carry out on their behalf. Boards do have a role in agreeing to any settlements which would be expected in a normal solicitor/client relationship… 

As discussed above Boards have very little influence over the work of CLO solicitors which enables then to manage cases as they see fit and the experience of the CLO means they are well placed to do this. Boards may push back on recommendations from the CLO but it is the role of the CLO to justify and explain their conclusions, rather than be influenced…

The CLO is not employed by NHS boards and performs independently of NHS NSS. Management has no real basis to influence a case as they don’t have the necessary information and expertise to do so. 

These comments on relationships with health boards may be more true for clinical negligence cases than for employment claims, for reasons we discuss further below. Even so, they suggest that the CLO operates with a degree of relative autonomy, certainly from senior management in the NSS.

That said, Audit Scotland add that “The CLO do interact with Health boards and the Scottish Government and take instructions from them when a settlement is proposed. Boards must approve all settlements and the SG have to approve all settlements over £250,000 for clinical cases or £100,000 for non-clinical cases.” The Scottish Government therefore has a direct decision-making role in relation to what settlements can be offered to claimants in employment-related cases, when these exceed £100,000.

5. Who is funding NHS Fife’s case?

Parties’ funding sources are legally privileged information in Scotland: counsel for NHS Fife was told by the judge to withdraw a question she put to the claimant about that. NHS Fife’s funding is simpler and a matter of public interest, as it is all covered by the public purse. Very little of it, however, will be met by NHS Fife.

Clinical Negligence and Other Risks Indemnity Scheme

Usually, the client pays for the costs of a case, possibly supported by an insurer. If an insurer is involved in funding, then they will have some involvement in the decision-making as they are picking up the costs.

The NHS in Scotland “self-insures”, through its Clinical Negligence and Other Risks Indemnity Scheme (CNORIS). The scheme is a pooling arrangement between Scottish health boards. Under this, each health board meets the first £25,000 of the cost of any case it is involved in. The remaining bill is covered by the scheme.

As costs are incurred, claims are submitted by scheme members, such as NHS Fife, to the scheme’s administrators, based in the NSS. We assume this must include fees charged by the CLO for the work of its staff. Claims are paid by Scottish Government through its Health and Social Care Directorate (SGHSCD), which underwrites the scheme.

The scheme’s administrators calculate annually how much has been paid out by the Scottish Government. Each health board is then billed, to reimburse the Scottish Government. The bill is shared out on a basis which aims to reflect the each board’s risk; this appears to take into account factors such as the size of the board and the clinical mix, as this affects the caseload. The amount of use a board has made of the scheme is also taken into account over time, just as an insurer will raise the price of their cover the more often claims are made.

Oversight of the CNORIS pooling scheme

The Scheme’s Director is Carolyn Low of the NSS.

In addition, the July 2022 job description for the CLO Legal Advisor (see above) notes:

As the Legal Advisor to NHS Scotland, the postholder provides the highest level of legal advice and support for the Clinical Negligence and Other Risks Indemnity Scheme (CNORIS), the risk transfer and financing scheme for NHSScotland and participates in the management committee which is chaired by a colleague at Scottish Government Finance Department. 

At one point, a CNORIS Steering Group was established ‘to assist in administration and management’. Membership was drawn from senior staff in the Scottish Government, Health Boards, Special Health Boards and NSS (including CLO). The group met ‘regularly to review the Scheme’s structure and effectiveness and, more generally, to reflect members’ interests’. The most recent reference we can find to this steering group is from 2015, but we assume this is likely to be an earlier version of the management committee referred to in 2022.

Spending under the CNORIS pooling scheme

Most spending is on clinical cases. Non-clinical cases accounted for less than 10% of spending under the scheme in recent years. In 2023-24, the most recent year for which there is a report, total spending on non-clinical cases was £3.7m.

What we know about the costs of this case

Earlier this year, NHS Fife was asked to confirm its legal costs under Freedom of Information (FOI) legislation, and responded that it was unable to do so. Although the rules for CNORIS would suggest that NHS Fife is responsible for submitting the claim for the full costs of the case to CNORIS, not just its own share, in a statement first issued on 16 July, NHS Fife said that at the time it was first asked it believed that it did not hold the figures requested, as the legal fees are managed through the CLO and covered by CNORIS. That is, it suggested it had not been involved in monitoring the cost of the case as it has proceeded, to the point where it was not being kept informed of these costs.

However, it added that it had since made further enquiries and, as of 30 June 2025, £258,831.31 in legal costs have been recorded as expenditure related to the legal services associated with this case. Again, we assume this includes the costs of fees payable to the the CLO for its staff’s work.

With the further two weeks of hearings this month, the total cost will be well in excess of the figure as at 30 June, before any compensation is ordered to be payable, if the board loses. Given the £25,000 limitation, the board will therefore pay less, possibly much less, than one-tenth of the total costs and other health boards will, in practice, pick up the bulk of the cost.

6. Who is accountable for the spending

Most devolved public bodies in Scotland (other than local authorities) are accountable for their spending to the Scottish Parliament through the ‘Accountable Officer’ system. For any specific area of spending there will be a designated Accountable Officer. Accountable Officers will often be allowed to delegate some of the day-to-day work to people who report to them, up to a certain spending limit, for example.

In this case, there appear to be at least three Accountable Officers in the picture. 

Accountable Officer for NHS Fife: Carol Potter

The Accountable Officer for spending by NHS Fife is its Chief Executive, Carol Potter. She appears to have has formal responsibility only for the first £25,000 of spending on any legal case.

Accountable Officer for the Central Legal Office and CNORIS: Mary Morgan 

The Accountable Officer for the vast majority of the spending in the Peggie case appears to be the Chief Executive of National Services Scotland. Mary Morgan is responsible both for the CLO and the CNORIS pooling scheme. She reports to the NSS Board.

The NSS Standing Financial Instructions state that the:

Accountable Officer will be responsible for ensuring the proper stewardship of public funds and assets. For NHS National Services Scotland it will be the Chief Executive.

At paragraph 2.01(a), the Instructions explain that Ms Morgan, and the Board, are answerable to the Scottish Parliament for spending overseen by the NSS:

The Accountable Officer is personally answerable to the Scottish Parliament for the propriety and regularity of the public finance for NSS.

The Accountable Officer must ensure that the Board takes account of all relevant financial considerations, including any issues of propriety, regularity or value for money, in considering policy proposals relating to expenditure, or income.

It is incumbent upon the Accountable Officer to combine his or her duties as Accountable Officer with their duty to the Board to whom he or she is responsible and from whom he or she derives his/her authority. The Board is in turn responsible to the Scottish Parliament in respect of its policies, actions and conduct.

The Accountable Officer has a personal duty of signing the Annual Report and Accounts for NSS. Consequently, he or she may also have the further duty of being a witness before the Audit Committee of the Scottish Parliament and be expected to deal with questions arising from the Accounts, or, more commonly from reports made to Parliament by the Auditor General for Scotland.

The Accountable Officer must ensure that any arrangements for delegation promote good management, and that he or she is supported by the necessary staff with an appropriate balance of skills. This requires careful selection and development of staff and the sufficient provision of special skills and services.

Specific responsibilities of this role at paragraph 2.01(b) include:

Ensure that risks, whether to achievement of business objectives, regularity, propriety or value for money, are identified, that their significance is assessed and that systems appropriate to the risks are in place in all areas to manage them)

A document on how formal accountable officer responsibilities are delegated within the NSS suggests that responsibility for the pooling scheme is formally delegated to a member of the NSS senior management team (the Director of Practitioner and Counter-Fraud Services) who has no line management responsibility for the work of the CLO or the operation of CNORIS 

Scottish Government Health and Social Care Directorate Accountable Officer: Caroline Lamb

Sitting above the NSS Accountable Officer is the Chief Executive of the NHS Scotland and Director General for Health and Social Care in the Scottish Government, Caroline Lamb. Ms Lamb is the Accountable Officer for the Scottish Government Health and Social Care Directorate (SGHSCD).

Ms Lamb’s oversight role for the NSS is made clear in its Standard Financial Instructions which state:

If the Accountable Officer considers that, despite their advice to the contrary, the [NSS] Board is contemplating a course of action which they consider would infringe the requirements of regularity or propriety, and that they would be required to take action that is inconsistent with the proper performance of his or her duties as Accountable Officer, they should inform the SGHSCD’s Accountable Officer, so that the Department if it considers is appropriate, can intervene and inform the Scottish Ministers. (paragraph 2.01(d))

However, the Health and Social Care Directorate may not be the only part of the Scottish Government with some responsibility for CNORIS. As noted above, an official in the Scottish Government’s separate Finance Directorate appears to chair a management group for the scheme.

Scottish Government Permanent Secretary: Joe Griffin

Above all this, and the one point where all these strands come together, is the Permanent Secretary of the Scottish Government, Joe Griffin. Mr Griffin can be questioned by MSPs about the oversight of spending in any part of the Scottish Government and its wider network of public bodies.

7. Who has been responsible for making key decisions in this case?

Key decisions about how to run a case should rest with the client. However, in this case the client, NHS Fife, is only meeting a small amount of the cost and has suggested that it has not been kept fully up to speed with what costs are accruing, implying a degree of detachment from at least some aspects of decision-making.

As an example of this confusion, in February, we asked NHS Fife for information about how the choice of counsel to act for NHS Fife was made, how instructions to solicitors and counsel would be managed to take account of both respondents using the same legal support, and any arrangements made for handling any conflicts of interest arising between the respondents. The request was initially rejected by NHS Fife on the basis that it held none of this information. We asked for a review of this response. The information was still withheld, and we were told that “National Services Scotland (NSS) Central Legal Office act on behalf of NHS Fife for all legal matters.”

It is not therefore not clear how far the Board is a decision-making client, in a conventional sense, and how much of this role the CLO is taking on in practice. In a different case, the Head of the CLO Employment team is on record as having responsibility for making exceptional decisions, while comments in the Audit Scotland report strongly suggest that the CLO functions with a high degree of autonomy in conducting cases, with little oversight from higher up the NSS.  

However, in a case like this one, it is hard to see how NHS Fife can be as detached as the Audit Scotland account of relationships suggests, for example when it comes to identifying which staff to involve and how to involve them. It may be that in employment cases, the CLO works more closely with NHS boards than in clinical negligence cases.

Conclusion: responsibility for the cost to the public purse

So who is responsible for the costs being incurred in the case of Peggie v NHS Fife and Dr Upton?

This question is not simple to answer from the information available publicly. The emphasis placed by NHS Fife in its statement on its limited financial responsibilities, and its stress on the role of the CLO, suggests a degree of when something is everyone’s job, it is no-one’s.

We can say that NHS Fife has responsibility for how the case arose in the first place and its handling of the incident on Christmas Eve 2023, from which all other events have unfolded. It was presumably NHS Fife’s decision to pursue parallel, unsuccessful, drawn-out disciplinary proceedings against Sandie Peggie.  It did this at the same time as its defence strategy was based on unquestioning acceptance of Upton’s account of events, meaning that in February that strategy anticipated that the disciplinary proceedings would find against Sandie Peggie. Instead they found in her favour, a day before proceedings resumed this month.

Within NHS Fife, the Chief Executive has overall responsibility for all NHS Fife’s work, overseen by the Board, whose Chair has the lead role in holding senior staff to account. Below the level of Chief Executive, the Director of Nursing appears to be the senior staff member specifically charged with oversight of legal activity, if the Board’s small Legal Services Department still reports to her. The widely-reported failure of NHS Fife to disclose documents in a full, timely way has led to lengthy additional hearings, and therefore the case taking much longer and costing more than originally expected. These disclosure failures are the responsibility of NHS Fife staff, although it is possible NHS Fife might point to the searching instructions it was given by its legal team.

Once NHS Fife was advised of legal proceedings, what Audit Scotland describe as a “protocol” appears to have required it bring in the CLO. At some point thereafter, most of the costs became a central responsibility, through the CNORIS pooling scheme. From that point, who has played the lead role, in practice, in making important decisions about the legal case is not clear.

Decisions by the CLO could be variously being taken by a) the junior solicitor who has attended throughout, b) the leader of the relevant geographic team, who has been present in court in Dundee on a few occasions, c) the head of the Employment Department, or d) the Legal Adviser to the NHS, Jennifer Thompson, who is head of the CLO and whose job description suggests that she would be expected to take an interest in how it is performing the function of providing legal advice to NHS Fife, given the high profile of the case. NHS Fife staff do not appear to have attended proceedings in person often, if at all.

It is also impossible to determine how far NHS Fife’s counsel, Jane Russell KC, has been given a free hand over how to conduct its defence, how much she has discussed this with CLO, and how far NHS Fife has been directly consulted. Counsel for NHS Fife has only very rarely mentioned in open court that she requires to seek further instructions from her clients on any issue. The approach taken by counsel has attracted considerable comment. 

Further, NHS Fife’s lawyers are also representing Dr Upton, who is presumably entitled to give them instructions. To the extent that there is any conflict of interest with Upton (and objectively that appears feasible) it is not clear how that is being dealt with, as the case progresses.

While the CLO appears to be the place where legal decision-making and some responsibility for the CNORIS scheme covering most of NHS Fife’s costs come together to some degree, formal delegated responsibility for CNORIS appears to rest elsewhere in the NSS.  There would clearly be a question if cost-generating decisions were being taken mainly by the legal team, with limited involvement beyond that, given that the CLO makes its income by charging for its staff’s time. It is not clear from publicly-available information how the mechanisms for day-to-day cost control of any cases funded through CNORIS address that point. 

Senior oversight of both the CLO and the CNORIS scheme rests with the Chief Executive of the NSS, and her Board. Above her, is Caroline Lamb, Chief Executive of NHS Scotland, whose Directorate makes the upfront payments under the scheme, and may still be involved in meetings about how it is managed. Someone in the Scottish Government’s Finance Directorate may chair a management committee for CNORIS. The Scottish Government has a direct role if any settlement is discussed; its approval would be needed for any negotiated payment to the claimant over £100,000. Above all of this is the Permanent Secretary of the Scottish Government.

Trying to locate who has responsibility in the public sector for the decisions, and so the costs, in the case of Peggie v NHS Fife and Dr Upton brings to mind the Schleswig Holstein question, of which it was said that only three people ever understood it: one was dead, another went mad, and the third had forgotten the explanation.

The decisions which have driven the cost of this case rest formally with NHS Fife, but in practice the CLO also appears to be a relevant decision-maker of some sort, but to what extent and with what oversight from its own more senior management, is very difficult to say. Perhaps the only place it will ever be possible to unpick the full story of who decided what, when and how, will be in front of a parliamentary committee, with the questions asked direct of senior staff and board members for NHS Fife, National Services Scotland and the Scottish Government itself.