Thread by @tribunaltweets

Morning session resumes.

J - with preliminary matters we will give decisions but not extensive reasons. Is that okay?
NC - may depend on the outcome
J - the tribunal will use preferred name and pronouns, C has pc of GRA. As to the Intervenor and witness we understand their position and accept that we

cannot compel witness to use specific pronouns, we ask the Intervenor as far as possible to use gender neutral language, we appreciate that this will be difficult, accidental slips may happen, but deliberate use of the wrong term or misgendering will be seen

as inappropriate.
NC - can I be completely clear. My witness can use correct pronouns but I cannot?
J - we are asking you and the witness to use gender neutral language,
NC - so is that they/them
J - so they/them and C
NC - I may need to take instruction, can I have your

reasons.
J - will give full reasons at the end of the hearing.
J - pausing for a minute.....
J - so, the second issue is I think, the application to amend the list of issues to include section 9.2.
HH - I have hard copies if that would assist.

J - am I right to say that C has withdrawn the complaint of direct gender reassignment discrimination, when and how was that done
HH - I believe that was April, I wasn't involved earlier
J - the list of issues in the hearing bundle does not reflect that, there is no amended list

of claim, we have spent some time thinking about dir discrim, how did this happen.
HH - I can take instruction on this,
J - I just want to know how this happened
HH - I'll take instructions......
<HH & solicitor discussing>

HH - I understand the dir discrim claim was withdrawn on 26 April, there was an amended version of partic of claim that was circulated
AL - I have seen an email as of that date, but I haven't seen a formal withdrawal.
J - if someone is withdrawing a claim, it needs to be done

clearly and categorically. We have been proceeding on the grounds of claims that are not being made but have disappeared in some mysterious way. that's no way to run a railroad.
HH - my apologies judge.
J - are you happy for us to dismiss that claim.

HH - yes
J - are there any other amendment that have been made
AL - the obligation to amend is Cs
HH - I wonder if I might ask the Tribunal for a 5 or 10 minute adjournment to get clarity rather than give piecemeal answer
J - yes, we will take a 10 minute break and then resume.

Expecting to resume at 11:55.

We resume. There was a hearing, at page 111 para 7 there's reference somewhat cryptically to a number of paras in the original claim..the following amendments are permitted on the grounds either clerical or withdrawal, including para 117, which was the reference to pleaded

HH speaking - direct discrimination. And there is an amended part of claim in the amended hearing bundle.
J - may I make a point about the bundle, it's not indexed or the index is separate so we have to scroll at length, would it be possible for someone to index the bundle

HH - it was prepared by Rs
J - well, we are having to scroll to page numbers, so if it's page 500 we have to scroll all the way there, which is frustrating and we don't want any frustration....
HH - the direct discrim claim is removed in the update part of claim, it would appear

that .
J - it seems that there was no direction to file an updated part of claim, are you happy for us to do that now,
HH - yes, some other minor amendments but nothing substantive
J - so going back to where we started, you've made an app to amend the list of issues

HH - the C's application is for a correction of the list of issues
J - a correction of what
HH - the deletion I've referred to in 2024
J - deletion of what, you've made an application to amend the list of issues, am I correct
HH - yes you're right

J - it's an application to amend the particulars of claim that is before
HH - I can't invite the tribunal to amend the list of issues when there was an erroneous deletion, I'll expand that
J - AL any comment
AL - well I dont' see how they can get around an application to amend

I don't see that she can do it. It's a defective approach, because it does not address the pleadings.
J - it's very confusing, when I first saw this, I wondered if it had been done properly. Are you saying that you now want to attend the part of claim and the list of issues.

Amend not attend (auto correct)
HH - yes I think MLF is right and I need to do that. With that background, liability was expressly pleaded, there has been a number of amendments to pleading since then, there was an amended part of claim provided in June 2024, had 2 crucial

changes. 1st change was that indiv Rs, Mueller and Wrigley were removed as respondents. In the intro to the amendment that stated it reflected withdrawal of the claim against those two respondents. The 2nd change was that it expanded on the allegations of conduct against those

former Rs. The C contends that 1st R & 2nd R are liable for conduct of former 3rd and 4th Rs. Now that para was redlined - struck through. It was a composite paragraph that referred to 3rd and 4th Rs and the liability of of 1st and 2nd Rs. It was an over deletion not a

withdrawal of those claims. It makes no sense to withdraw individual claims against AM, EW, include additional allegations against them and then abandon the liability question of 1st and 2nd Rs. When you look at this application, please look at this in context, not an

or withdrawal of that basis of liability. I do accept the confusion that has been generated by that earlier deletion of the entire paragraph. I hope you can see how and why that has happened. Because it was a mixed para, the deletion of it is consistent with no claims against

AM and EW but not abandonment of corporate liability. Equally there hasn't been a strike out. My primary position - this was an over deletion and the balance of prejudice favours the C, it's not simply sufficient for Rs to plead prejudice where none exists. That is the situation

in this case.
J - I think, may I call her Elspeth, may I ask what you are doing, are you using your phone to record
EW - I'm not recording
J - not making any accusation just want to be clear what's happening, no recording
NC - EW is a government lawyer, I'm sure she's aware of

that.
J - yes thank you just reminded
HH - back to question of prejudice, Rs have taken no issue with section 109.1 liability, addition of 109.2 involves same acts, same network, same moderation, and witnesses have completely covered this. Even if prejudice does exist, it

could be dealt with by additional questions in chief. We are dealing with whether the Rs are responsible for AM, EW. There is no prejudice to Rs. However, there is significant prejudice to the C if these claims cannot be pursued. The balance of prejudice favours the C.

HH - dealing with points of Rs in objection, if acts are done within agent's authority, the principal is liable even if not aware and did not approve. In the recent authority from Court of Appeal, no exact legal definition of what is an agent,

but that the common law envisages that the agent was acting with the consent of the principal. We can see that was the case. EW and AM both post information as group owners, these things are obvious from the papers and the pleadings. Prejudice to the Rs is nonexistent.

AL - the C must plead their case and advance their case, it is not the job of the tribunal to correct an error of the parties seeking the application. It is not a concern of the tribunal or the parties. The C has made various amendments to pleading through a red line process

approved by a previous judge. The C went through exactly the same process with red line etc, the process that was taken for the direct discrim pleadings is very different from this application. The explanation that was given beggars belief. And we have no evidence from

a solicitor. It's not good enough for C to simply say we didn't mean that, if it was an error, it's still not a good answer. There were further amendments subsequent to that change, there has been discussion at more than one preliminary hearing, there has been so many

occasions for this error to be noted, it's astonishing that it has not be spotted until now. Consistently through the list of issues, a consistent line has been taken with respect to vicarious liability is only through section 9.1, employment. C sent updated combined lists of

on various dates. Following withdrawal against AM, EW, further lists of issues. All of those lists of issues make no reference to section 9.2. This is why I say even if it can be explained away by an error, there have been numerous opportunities over the years to correct it.

The amendment has been proposed today, you have a letter from 10 June that mis-characterised it as an amendment to the list of issues, the list of issues has to reflect the claim. Timing in and of itself, leads into the prejudice point. It's been said against us that Rs cannot

blandly plead prejudice that does not exist. That's an astonishing claim to make. Agency is a distinct concept. The Rs have understood liability under 9.1 was at issue and that is how we have prepared our case. Details of relationship between R and arms length bodies would be

very important. The 2 individuals are not employed by DEFRA. More details would be needed to prove agency, it can't simply be corrected with a few supplemental questions. The Rs have not had the opportunity to consider the point and would have to deal with it on the hoof,

so to speak. The Rs witness statements deal with employment, the Intervenor's witness statement as well. It's said that AM was acting as agent. He's not been called as a witness, he's not a R. We still don't understand what C's case is in this regard. I don't intend to go

into the merits, relying on timing and prejudice. The formal announcement of DEFRA SEEN was announced in December 2023, the formal announcement of SEEN CS was made in the Cabinet Officer. Matters of content and moderation happened later. We say it's not blindingly obvious

that AM, EW are agents. There is a case to be said to that there is prejudice to Intervenor that the AM and EW are agents of DEFRA and RPA. The prejudice is outweighed by the technical, legal problems. The C has other options here. And if solicitors have made an error,

C can have recourse against them.
J - if it is right that AM EW were not employed by Rs, and they cannot rely on 9.2, there cannot be no direct liability. Whether this matters is for us.
AL - needs to look at the claim in its totality, if 9.1 doesn't assist, it might be a

problem. The whole claim however does not rest or fall on that. The Tribunal should not look at this as all or nothing, if the C can't take forward those claims it may be a matter of negligence
J - did the Rs ask the C to explain their contention of vicarious liability,

AL - reads out page numbers, invited to explain how relevant section 9 applies. It's an obvious opportunity for C to explain how this might apply.
J - let me have a look.
<reading>
AL - these are amended grounds of resistance
<it's section 109 being discussed>

AL - the Rs are responding to 109.1, employment and now it goes against the grain to say there is prejudice.
J - do you have anything to say NC
NC - we see a real benefit is seeing all aspects of C's claims being determined in full, our stance remains neutral
J - the Rs might

have an interest in 109.2 being explored
AL - that's not a submission I would take forward.
HH - a brief reply, on the question of prejudice, tribunals are invited to focus on the practical consequences of an application, focusing on reality, whether witnesses remember, have

records etc about the proposed amendments. The Rs had anticipated the issue that the pleading come first, and you can't simply take the list of issues, the issue of prejudice couldn't have been any surprise. He stated that more detailed evidence as to agency cannot be discounted

If that is the height of the objection on prejudice, it falls short. My other point,
J - what is the basis, in it's original form it simply asserts and there is no pleading of the basis on which agency is argued
HH - the factual basis is set out.
J - but it isn't it doesn't set

out the connection to agency
HH - its not clearly x-ref'd
J - there has to be some specific assertions about how agency applies
HH - it would not be uncommon for unwanted conduct to have the proscribed effect, we would invite the Tribunal to assume that an agency relationship

exists. Further, my instructing solicitors strongly resist that this was anything but an error and the junior solicitor would be prepared to give further evidence.
J - we need to consider our decision. But if we were to allow it, what are the consequences for your case.

J - please talk to each other. Don't read anything into that.
AL - not reading anything in to that, disagree with how my submissions were characterised by Cs, I'm now trying to answer the question of how this amendment will impact our case and this hearing.
J - can I ask each

of you to consider what you need, do you understand the question.
J - it's 1 o'clock, we'll adjourn until 2 pm, and we'll ask you to address us on that point.
Court rises.
End of morning session part 2.

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