The morning of Day 9 began not with evidence but with open legal skirmish - each side jockeying to define what the Tribunal should be allowed to hear and when. At the centre of the storm: four unexpected developments. Two surprise witnesses offered by the Respondents, Fiona Wishart and Lindsey Nicoll, whose testimony would reference events, group chats, and hearsay previously undisclosed; and two late-emerging witnesses for the Claimant, who - counsel Naomi Cunningham explained - had come forward under conditions of psychological duress in a "climate of fear" within NHS Fife.
The dispute was sharply framed. Cunningham made clear that had NHS Fife properly investigated or disclosed the Benidorm Party Chat and its participants in earlier proceedings, these individuals would have been called months ago. Instead, the Tribunal now faced a procedural bottleneck. Not only did Peggie herself need to be recalled to answer these belated allegations, but her legal team was asking to call the two new witnesses in rebuttal - one of whom had been party to the same disputed chat. Jane Russell KC, for the Respondents, insisted there was nothing shambolic about their conduct, calling Cunningham’s accusations “hyperbolic.” She objected strongly to recalling the Claimant, objected to testimony via video link, and objected, above all, to the Tribunal being “derailed” just as it neared conclusion. “Momentum matters,” Russell said, “and letting this stall again would undermine the quality of justice.” The judge, however, found the logic on the Claimant’s side more persuasive. He granted, in principle, permission for the two new witnesses and a limited recall of Peggie—on the condition that all examination be “particularly focused” and “short and to the point.” With time running out, the panel would not permit drift.
Then Fiona Wishart took the stand. Her testimony was less revelation than echo. A long-serving emergency nurse practitioner, Wishart described the now-infamous Christmas Eve changing room encounter as uneventful. She said she’d entered with Dr. Upton and another doctor after a shift, exchanged pleasantries, and left. Sandie Peggie was there. Nothing “untoward” occurred. But Wishart’s most damning contributions came not from her own memory, but from social hearsay. She repeated that Peggie had referred to Upton as a “weirdo” and “freak” during a work lunch - words, she admitted, she'd heard from others. She also said she’d heard Peggie had used the word “it,” though couldn’t recall who told her that, or when. More striking still was her claim that Peggie had made derogatory comments about immigrants and a new mosque in Kirkcaldy - again, not from first-hand experience but from second- and third-hand chatter among colleagues.
Cross-examination will be key here. Wishart admitted she couldn’t recall what Upton or Peggie were wearing on Christmas Eve, didn’t know when Peggie entered the room, and wasn’t even sure who else remained when she left. Her one vivid memory was that “Beth always had a bra on” when changing. Wishart’s evidence may have been intended to reinforce the narrative that Peggie harboured animus. But by relying so heavily on back-channel gossip, it may instead undermine the Respondents’ case - raising serious questions about what NHS Fife deemed investigable “evidence” and why Peggie was sanctioned on the basis of workplace hearsay, while Dr. Upton’s own conduct (or credibility) has not been subjected to equivalent scrutiny. The Tribunal broke for lunch with more still to come. But the stakes were now unmistakable: if what’s being adjudicated is not just what Peggie said in a changing room, but who is allowed to speak truthfully about sex and fear, the question of fairness may prove even more determinative than law.