Thread by @SafeSchools_UK

Day 2: preliminary hearing #AllisonBailey v Stonewall

We are expecting the hearing to recommence at 9.30 am.

We will do our best to live tweet proceedings, technology permitting!

@ALLIANCELGB are also live tweeting from the court.

Background to @BluskyeAllison’s case can be read here. You can also support the crowdfunder if you would like.

allisonbailey.co.uk

#AllisonBailey

#AllisonBailey

It is an important case to follow for any #schools & #teachers working with Stonewall. The CPS ‘hate crimes’ schools pack, produced in conjunction with #Stonewall has now been permanently withdrawn, but the judicial review of the relationship between CPS...

and Stonewall did not go ahead. Stonewall’s relationship with and influence on public bodies still needs to be tested in the courts. @BluskyeAllison’s case will do this.

#WomenEd #edutech #edutwitter #SLTchat #safeguarding #LGBT #RSE #PSHE #pastoralthings #teacher5oclockclub

#AllisonBailey

Stonewall started with the laudable aim of ensuring equal rights for lesbian, gay & bisexual people. They used to do good work in schools challenging homophobic bullying & the use of ‘that’s so gay’ as a slur. Sadly they have now morphed into a highly political...

organisation, pushing contentious viewpoints and campaigning for controversial law changes. As such they are unsuitable for use in schools. More from @Transgendertrd here:

#AllisonBailey #WomenEd #SLTchat #edutwitter #teachertwitter #teacher5oclockclub

https://mobile.twitter.com/Transgendertrd/status/1359949651965861896

#AllisonBailey

Yesterday we heard from Ben Cooper QC for the claimant (@BluskyeAllison) and today we should hear from Robin Moira White & Mr Johnston for the defendants (@gardencourtlaw & @stonewalluk ). We are hoping to start at 9.30 with Robin Moira White.

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We are back in the hearing.

Anthony Johnston starting. Addressing points from yesterday. Is claim against GCC or GCC Ltd under section 47.

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Mr Johnston making points about claimant failing to identify individuals who have discriminated against her.

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Mr Johnston disputing that GCC seeking to limit equality act

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Mr Johnston: allegations from claimant are ‘fundamentally objectionable’. Denying that claimant unable to name individuals. Allegations tar all members of GCC.

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Mr Johnston: presently no claim against GCC

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Mr Johnston: referencing previous discussion re identifying individuals.

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Mr Johnston: Claimant ought to be in position to identify specific individuals. She has failed to do this.

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Judge Stout: acknowledging point

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Mr Johnston: saying claimant has conflated strikeout with amend in their arguments yesterday

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Mr Johnston: It is ‘inherently problematic’ that claimant has failed to identify individuals. In order for organisation to be liable under section 57. Individuals still need to be identified.

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Company liable under section 57.

Individuals liable under section 47.

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Mr Johnston: senior individuals are incontrovertibly the decision makers. No opaque decision making at GCC.

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Mr Johnston: Therefore claimant must know individuals she suspects of involvement.

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Mr Johnston: claimant issued SAR against a number of individuals.

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Judge Stout: We’re SAR only made to individuals or to GCC.

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Mr Johnston: SAR made to GCC but each individual member of chambers is their own data controller so SARs were made to individuals.

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Mr Johnston: Claimant did all this and hasn’t found ‘smoking gun’.

Michelle Brewer was identified yesterday.

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Mr Johnston: Claimant must know who individuals are as she was copied into some emails regarding dinner with chair of Stonewall.

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Mr Johnston: emails discussing what was to be posted to GCC website bear no resemblance to what was actually posted. The ‘strident’ language of the emails was not used.

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Mr Johnston: disputing if Michelle Brewer was at a meeting on behalf of GCC. She worked there at the time but wasn’t representing them.

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Mr Johnston: TELI is a coalition. The fact that Michelle Brewer was a founder is not connected to GCC.

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Mr Johnston: There are a range of views on gender theory amongst individuals at GCC

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Judge Stout: Why doesn’t a group described as a GCC working group not represent GCC?

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Judge Stout: I can’t tell from this email if this is sanctioned by chambers or Michelle Brewer just got together like minded colleagues

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Mr Johnston and Judge Stout going through bundle.

Judge Stout: Do WhatsApp messages shown to me by Ben Cooper not contradict Michelle Brewers claim she’d not been in contact with people from Stonewall.

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Mr Johnston: she was not in direct contact with anybody actually at stonewall

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Mr Johnston: It is not remotely likely that claimant will be able to identify any individual acting on authority from GCC who has discriminated against her

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Mr Johnston: talking about previous issues of ‘unconscious bias’ in the allocation of work.

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Mr Johnston: Issues uncovered by women’s working party, not issues specific to GCC, these issues go across bar. GCC tried to address this.

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Mr Johnston: some allegations made yesterday ‘grossly unfair’.

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Mr Johnston: ‘extremely serious’ allegation that the point of the course [cotton ceiling workshop?] was to sexually coerce young lesbians.

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Mr Johnston: extremely serious allegations made with an absence of evidence, was the findings made about tweets. This is fair and justified.

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Mr Johnston: several points were just not addressed yesterday by learned friend (Ben Cooper QC)

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Mr Johnston: purported route to liability is unclear

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Mr Johnston: up until last week route to liability was via section 47 & 109. Now being amended to 57.

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Mr Johnston: all hinging on if individuals were acting as agents as chambers. If acting as agents can be personally liable and chambers liable.

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Mr Johnston: the amendment which is being sought to be made is a substantial one

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Mr Johnston: There are individuals who are now members of chambers are going to be found liable when they weren’t members at the time of the incidents

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Judge Stout: there were minimal delays

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Mr Johnston: claimant is herself an experienced barrister and ought to be aware and included GCC originally.

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Judge Stout: This doesn’t stop me granting the amendment tough, does it?

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Mr Johnston: claim even in amended form remains inadequately pleaded

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Judge Stout: Mr Cooper says it’s OK to identify individuals later. Why do you say this is insufficient?

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Mr Johnston: down to if GCC are liable and individuals rights to have individual representation

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Mr Johnston: leaving aside lack of identification of individuals, PCPs are ‘inherently problematic’. No proof respondents treated gender critical beliefs as ‘bigoted’.

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Judge Stout: Mr Cooper did show me emails that seem worthy of cross examination

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Mr Johnston: Members of the bar cannot make allegations of criminal conduct without evidence to back up

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Mr Johnston: talking about alleged detriment

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Judge Stout asking Mr Cooper to clarify.

Mr Cooper: this is an allegation against GCC and not stonewall

Mr Johnston: Which individuals?

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Mr Johnston: individual barristers are there own data controllers, therefore this is a section 47 issue and not a section 57 one

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Judge Stout: the individuals are their own data controllers so chambers cannot be liable

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Mr Johnston: the allegation that GCC allowed stonewall to direct their complaints process simply doesn’t stand up to scrutiny

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Mr Johnston: admits once complaint from Stonewall was received this did become the focus. Only two points of complaint were upheld by joint heads of chambers

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Mr Johnston: expulsion of claimant was never remotely considered. Claimant was requested to remove two tweets, she didn’t do so. No further action was taken.

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Mr Johnston: unless claimant identifies individuals this is an allegation that hangs over all 200 members of chambers

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Mr Johnston: in relation to claims against the clerks, directing judge to Ms Khan’s witness statement

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Mr Johnston: analysis carried out by Ms Khan on opportunities to work is the correct analysis

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Mr Johnston: no further submissions

Judge Stout: short break and then’ll we’ll here from Ms White. Back at 11.

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Robin Moira White: how do I deal with this as stonewalls advisor? When I’m not told who these individuals are?

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RMW: Mr Cooper used ‘influence’ yesterday which is not a statutory word

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RMW: stonewall are alleged to have instructed, caused or induced (statutory language)

My clients are at great difficulty? Who are we to look to? What’s the connection?

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RMW: we are entitled to know what the case is

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RMW: Mr Cooper said yesterday that discovery isn’t complete. It is as far as we’re concerned. I’m here to represent stonewall, they’ve given the disclosure they feel proper

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RMW: the document is redacted but the claimant was copied into it. This has caused great distress to the organisation I represent

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RMW: both organisations GCC & stonewall are ‘diversity forward’. I’ve got 25 years of practice, the protected characteristics have grown. The PC giving society trouble at the moment is ‘trans’

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RMW: there are a number of people in GCC who have similar opinions to stonewall, how completely normal for them to discuss things by email

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RMW: making hypothetical points about important clients v photocopier employees

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Judge Stout: How can there be a range of service providers? If you’ve discriminated, you’ve discriminated.

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RMW: I rely on the fact that we’ve given discovery. The claimant has been unhappy with discovery at every stage.

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RMW: there is no involvement of Stonewall they have not instructed disciplinary procedures. This should be a strike out point.

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Judge Stout: the essence of Stonewall complaint is the claimants tweets including allegations of Stonewall’s appalling levels of intimidation. Is that not inducement to a detriment?

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RMW: stonewall have no instruction over internal processes

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RMW: talking about hypotheticals again

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RMW: one can have controversial beliefs, but to express them in this way on social media by a legal professional. This is a strike out case.

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Judge Stout: If there’s no liability from GCC there can still be liability from Stonewall if there’s been inducement

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RMW: this discovery point requires some form of evidence. The time for discovery has passed. The claimant should’ve given discovery by now.

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RMW: it’s impossible for time to run backwards

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RMW: the claimant has known for a long time that this is a strike out application

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RMW: We say very clearly that we have given the discovery that we should

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RMW: Michelle Brewer is starting to feature heavily in the claimants case

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RMW: what we have very clearly from GCC is a response saying we’ll follow our processes

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Judge Stout: I suspect this may be the other way round and Miss Brewer is in fact the blue

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RMW: Miss Brewer has been painted as an ogre by Mr Cooper on behalf of the claimant

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RMW: my understanding is GCC remain stonewall diversity champions to this day. Stonewall’s position is clear.

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RMW: stonewall regards itself as a bystander in this matter and recognises the difficulties in being a diversity forward organisation

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Judge Stout: if no one needs a break back to Mr Cooper for reply

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Mr Cooper: You have had closing arguments from opposing counsel when we’ve not got to final hearing. We have NOT completed disclosure.

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Mr Cooper: until Ms Whites submission a moment ago points about the weakness of PCPs has not been made

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Judge Stout appears to disagree!

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Mr Cooper reiterating that disclosure is NOT complete.

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Mr Cooper: with regards to individuals not identified, decision makers have been identified.

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Mr Cooper: claimants position is not everybody can be identified as not had full disclosure, lots of redactions

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Mr Cooper: talking about Reynold judgement, see @ALLIANCELGB thread for further details on this case

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Mr Cooper: As we go to final hearing we need to work out how to get unredacted copies of WhatsApp messages involving Michelle Brewer

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Mr Cooper: GCC are the data controllers for emails sent on their system

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Mr Cooper: it’s not fair to criticise claimant for failing to identify individuals

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Mr Cooper: Reynolds does not address the issues we’re having in this case

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Judge Stout: liability can only be established with GCC once liability has been established with an individual

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Mr Cooper: we have materials that people in chambers were seeking to influence heads of chambers

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Mr Cooper: claimant is entitled to say this was not an individual decision maker

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Mr Cooper: it is proper to infer that those actors were communicating their views to decision makers, this was discriminatory

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Mr Cooper: everybody knows Ms Brewer is in the frame but claimant is not in a position to name others at this stage

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Mr Cooper: the claimant knew about the email at the bottom of thread but not the one at the top. We should not be getting into this level of detail in a hearing of this kind.

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Judge Stout: we can’t go into a hearing without individuals being identified

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Mr Cooper: we are going to have to work out how we get unredacted versions of documents

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Judge Stout: you assume a claim is arguable unless there is something that makes it obviously unarguable

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Judge stout: trawling through what someone has done in relation to a SAR is a disheartening process

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Mr Cooper: danger of dealing with these points in a hearing of this kind, on the hoof, without all the proper materials

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Mr Cooper: There was an inadequate response from GCC to the SAR which in itself was an act of discrimination.

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Mr Cooper: there’s no doubt that the tweet out was to distance GCC from the complainant. For ever more when anybody Google’s @BluskyeAllison barrister, they will get that she was investigated by her chambers.

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Mr Cooper: it is clear that the stonewall view is that gender critical views are bigoted and not worthy of respect.

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Mr Cooper: Ms White’s position appears to be that stonewall is so lacking in influence that it can’t be liable. This is not about influence it is about discrimination.

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Mr Cooper: none of this is straightforward, all the more reason we deal with it in a proper context

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Mr Cooper: Ms White is wrong to say that it is not an instruction if someone says to you, you do this or we will do something unpleasant. Indeed it is more than an instruction, it is a threat.

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Ben Cooper QC is checking WhatsApp

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Judge Stout: if there’s nothing else, we will break for lunch and I will give my judgement

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Judge Stout: If Mr Cooper, Mr Johnston, and Ms White could liaise with each other about disclosure to avoid further hearings. Back at 1.45.

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We are waiting for the hearing to resume.

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Hearing is recommencing

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Judge Stout giving judgement now.

Emotional heart, heated public debate on gender ideology.

Sound breaking up.

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Judge stout is trying to adjust internet connections

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Judge Stout: essence of legal case, claimant made clear she objected to GCC association with Stonewall & then helped launch @ALLIANCELGB resulting in stonewall complaining to GCC and claimant suffering detriment.

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Judge Stout running through legal background

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Judge Stout apologising for noise of children in background!

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Judge Stout going over previous hearings and disagreements over disclosures

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Judge Stout tribunal has discretion to allow amendments

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Judge Stout: I must take into account all circumstances

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Judge Stout: timing and manners of application must be considered

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Judge Stout: strikeout is permitted at any stage if there is no reasonable prospect of success

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Judge Stout: moving onto conclusions. Same elements are relevant to both amendment and strikeout.

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Judge Stout: clear section 57 is correct for this case

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Judge stout: In principle claimant can bring claim

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Judge Stout: claimant needs to identify individual for who GCC are responsible for actions.

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Judge Stout: given way PCPs are expressed, claimant will also need to identify individuals who feel her views are not worthy of respect

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Judge Stout: Mr Cooper has produced sufficient evidence to make a ‘reasonably arguable case’

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Judge Stout: There is evidence to suggest that Michelle Brewer was not acting in a purely personal capacity

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Judge Stout: she has a reasonably arguable case, prior to disclosure

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Judge Stout: There is evidence in bundle that suggests collusion between those from GCC and those connected with Stonewall

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Judge Stout: arguable case that work has been effected by views of clerks

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Judge Stout: it is a properly pleaded claim, not prepared to say no reasonable chance of success

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Judge Stout: investigation into claimants tweets appears to me to be measured, reasonably and none objectionable

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Judge Stout: there is evidence that Michelle Brewer may have found the claimants views bigoted & not worthy of respect.

Sound is breaking up again.

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Judge Stout trying to log in and out.

Discussion over who’s muted!!

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Judge Stout: I think I will have to give written reasons for this

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Judge Stout: there is no evidence that heads of chambers deemed claimants views bigoted and not worthy of respect, there is evidence that Michelle Brewer and others thought this. Were they acting as agents of GCC

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Judge Stout: Stonewall complaint plainly seeks to put pressure on chambers and seeks to remove claimant from them.

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Judge Stout: I consider claim stands more than a reasonable chance of success

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Judge Stout: Stonewall at least sought to persuade chambers to inflict detriment to claimant, this is arguably no different to inducement

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Judge Stout: There is a service relationship - the champion scheme

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Judge Stout: no threat to fairness by delay

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Judge Stout: the tribunal is not here to punish lawyers for mistakes

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Judge Stout: I therefore permit the amendment and throw out the strikeout

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RMW: trying to arrange a meeting for next week to deal with disclosures. We need to ask each other proportionately for disclosure. Final date for hearing in June.

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Judge Stout: We will have orders now putting deadlines for disclosures so pleadings can be done properly

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Mr Cooper: neither I nor Mr Johnston have firm instructions on disclosure at the moment. We need to try and thrash it out. There will be information on GCC servers.

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Mr Cooper: we need to agree a scope for search terms, rather than just searching GCC servers for ‘Stonewall’

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Mr Cooper: GCC May agree but need an order to get round GDPR or they may oppose it

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Mr Cooper: in everybody’s interest to maintain dates in June

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RMW: as far as stonewall is concerned with regards to alleged collusion we needs some names

Mr Cooper: that will follow disclosure

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Judge Stout: once disclosure has happened there should be further particularisation.

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Judge Stout: is there anything else Mr Johnston or Ms White thought should go on a further list of particulars? Which individuals are alleged to have colluded?

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Judge Stout discussing what evidence will need for PCPs

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Mr Johnston: if section 57 being used claimant will need to prove acting on behalf of chambers

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There will need to be new responses to new pleadings

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Judge Stout: 1st June is the beginning of the trial

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RMW: We want all evidence a month before the trial to be fully prepared.

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Judge Stout setting dates for disclosures, other papers and hearings.

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Discussion on whether Judge Stout will try case again or whether it will be someone else

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Judge Stout: 26th March for preliminary hearing, so disclosure needs to be done by then

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RMW: there will be very little disclosure from Stonewall, this is for Mr Johnston

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Mr Johnston saying disclosure by 5th March won’t be possible

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RMW: We need to know which witnesses to call. This is an important case for all involved, with consequences for all involved, the timetable is too tight.

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Mr Cooper wants to stick to June, 1st day can be used to deal with disputes

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RMW: I’m receiving communications from solicitors this will cause a great deal of pain to get witnesses prepped in time

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Mr Johnston wants to retain June dates

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Sound/technical issues again

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RMW: causing pain need to prep witnesses for April

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Dates still being discussed

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Mr Cooper: tight timetable if we have to get disclosures from third parties, especially if they are still redacted

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RMW: June won’t work if other parties won’t co-operate

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RMW complaining about volume of paper’s received from complainant. This isn’t co-operation. This has cost us £600. My solicitors are Scottish (difference in terminology)

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Mr Cooper talking about counter claim for costs

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Ongoing discussion re disclosures, delays, volume of papers and who is at fault

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Mr Cooper firmly stating that approach of GCC & Stonewall has NOT been co-operative. Characterising some of their previous suggestions as ‘ridiculous’.

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Mr Cooper is still running through examples of Stonewall & GCC ‘inadequate’ & ‘uncooperative’ responses.

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Mr Cooper: the idea that claimant should pay anyone’s costs is ‘ludicrous’ against this background. We would be looking at counter claims.

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Judge Stout: It would be an option to just comply with the tribunals orders

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Judge Stout: Would you like to respond Ms White?

RMW: we should put this matter over until later in the litigation

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Judge Stout: you’ve all set your own timetable which has resulted in additional costs.

I am disinclined to get into this.

RMW: I will take instruction

Judge Stout: I’m not deciding this today and I’m not inclined to want to see it again

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Judge Stout: I think written reasons are going to have to be issued

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Hearing has ended. We would like to thank Judge Stout for her thorough, fair and good natured approach to this case . Total respect on passing judgement with small children (3+?) in the background!

#Shero #workingfromhome #workingmom #WomenEd