Thread by @tribunaltweets

Good morning & welcome to Day 3 of #ForstaterTribunal, Forstater v CGD. I'm @Wommando, live tweeting for you today.

Day 1 & 2 were reading days & CGD's application for a Restricted Reporting Order: bit.ly/3KrHQlw & will resume this morning @10AM

bit.ly/3sTmSpB

Abbrevs used:

Maya Forstater (MF) & her counsel Ben Cooper QC (BC), assisted by Anya Palmer (AP)

The respondents: CGD Europe (CGDE), (CGD), & Masood Ahmed (MA), President of CGD.

Counsel for respondents is Olivia Dobbie (OD), Cloisters.

EJ: Employment Judge
P: Panel member

As is the case with live tweeting and the lightening speed we must go, undoubtedly there will be typos, and they will be rectified at the end of the day. We thank you for your support in our efforts of bringing you #OpenJustice. We're here and ready to go at 10am.

We begin. The clerk is asking if there are any other representatives due today and is briefly putting us back into the lobby until we begin.

The clerk is going over the ground rules of connection problems, there should be no eating or drinking and please be on mute. No recording of the court at all. Members of the public must not cause distractions.

EJ: I will mute everyone not speaking. (Does so) Sorry, this is taking a little time. What we have to deal with first is the report restriction requests. There are 4 people and it should be able to refer to them without stating their names

OD and BC agree
EJ: the order made on Monday was varied and for this part there is an order restricting these 4 individuals. We won't say their names in any event. We propose to hear OD and BC on this application.

OD: paragraph one may not come into order with submissions
EJ: if that's in writing we haven't seen it yet
OD: it was a lengthy submission
Bc: yes it was sent yesterday
EJ: it hasn't reached us. Can it be sent again.
BC: yes

OD: given this is an interim basis, we seek a slight expansion to include the individuals job titles. Having taken instructions, if job titles are given, it's easy to work out who they are.

OD: the rules state the tribunal has the power to give restrictive reporting orders, this isn't in dispute with the parties. The Tribunal has to given full weight to freedom if the press and open justice. I ask you to consider [case cited] and Tribunal have to consider the effect

OD: I believe we set out the clear information but if you are to make any step away from clear and cogent evidence there needs to be evidence of harm. There's a reasonable expectation of privacy as in [case cited]

OD: I ask you to also consider [case cited] where the tribunal findings were overturned. The person seeking anonymity had been named but was neither a party nor witness and the tribunal rejected it, which was then overturned and the judge was wrong to conclude that.

OD: in my submission the individuals do have a reasonable reason for privacy. They didn't expect to be referred to in legal proceedings and are not witnesses or parties.

OD: I ask you to note [case cited] about the right to privacy. So again, these individuals fall within private life. With evidence to being a risk to article 8 rights, we sent an email about a tweet from wild women writing club [reads tweets]

OD: Evidence these individuals are being brought into this
EJ: I haven't seen this
OD: We rely on original sources of evidence and this account has over 10, 000 and these individuals are receiving public interest.

OD discusses responses to the requested order, and enforces that identifying referring to these individuals in the context of these proceedings.

OD: @tribunaltweets say it will be impractical to tweet using these restrictions, and they should just pause to do this and it isn't strong enough a reason.

OD: the individuals can be described as, (goes on to give examples) which would help give adequate context to the story.

OD: it is not inevitable these individuals would have been named and had blue known the claimant was going to publish them on a website we may have taken steps.

OD:As for @tribunaltweets being described as partisan. I said their interest lies on the other side and I'm not saying they're partisan and I wanted to correct that.

ID: you've read the witness statements and what the matters were. On a practical point on redacting docs on website publically. 2 of these complainants appears on the docs and one which identifies the 4th complainant. There'd need to be a redaction.

OD: in terms of the work that needs to be done it is limited and won't delay this case. It is a proportionate and reduced application from what we originally sought. I ask you sir to find in favour when you conduct the balancing of this.

EJ: well here fromBC
BC: it'd be useful to know you have the documents I sent
EJ: yes (goes through docs sent)
BC: since you've not had a chance to read it, can I go through it
EJ: yes

BC: I'm astounded OD is not responding to paragraph 1...OD used vaguer descriptions for the respondents
BC: i understand and there is a potential for vague restrictions may nevertheless make the ppl identifiable. We would object to those descriptors.

BC: it's very important 3 of those respondents were Fund raisers and anyone following along will need that to understand and it will be relevant to their status.

BC: When names, numbers and job titles were sought to be anonymous we were neutral. With the addition of the extra category we oppose that bit, we want to our position to be clear.

EJ: your pinning yourself to the middle version of job titles
BC: this is new to me but OD is right, redaction is relatively easy. You'll be familiar with elaborate jobtitles and not always noted precisely. Using a find and search function you might miss these

BC: I'm broadly content to nail my colours to the wall and we must at least be able to identify function or position for people to follow this.
(Missed) you'll have seen press org has responded and not instructed lawyers to respond today.

BC takes EJ to press association submission. At top of the page they set out restrictions and I want to highlight is the last 3 lines. (Reads out including perishable nature of news) OD suggests its less of a infringement because of its interim character.

BC: with those preliminary remarks...its worth emphasising the tribunal shall give full weight to open justice and the Tribunal must independently come to a decision.

BC takes EJ through the principles of open justice. The principle of open justice is of paramount importance and this principle has the most weight. The purpose is twofold, to enable public scrutiny and also to enable the public to hnderstand how the justice system works

BC: and rulings and so the public can understand these rulings. There 3 sets of people with freedom of expression rights, conventional press, live tweeters and claimant herself. These are all important rights.

BC: these rights are all engaged. They may of course may be restricted when necessary for competing rights and you have to engage in a balancing exercise.

BC: OD says she accepted 'must be established by clear and cogent evidence that harm will be done.. ' and assertion doesn't mean evidence this can't be done on a glib and superficial basis.

BC: this is not one route to establish rights, that is a general application...I accept there are 3 ways these rights may be engaged, 1 a risk of abuse to individuals, 2 the question of whether info itself of confidence should be attached

BC: it is in the public domain these individuals have former or current roles in CGDE. (Missed) also relevant to assessment will be what part they played in the matters discussed in these proceedings

BC: the extent of the involvement of the individuals will be relevant to the importance of their privacy rights. The more they're involved the less weight should be attached. That point is echoed in the 1st proposition.

BC: those are the principles. The context of these individuals is relevant for 2 reasons. 1 their involvement and secondly their degree of involvement has a practical effect

BC: people should be able to follow what people have done and the context. First point the 4 people were employees of respondents and said claimants beliefs were transphobic we will be spending time on that point.

BC: their understanding of that point and how that has a bearing on the acts that they took.
It's not right OD said they set it running and then dropped out. They continued to be involved in correspondence aboutMF in the organisation.

BC: the public will need to understand these roles and how they all fitted together. That covers out written submissions. The short point is they seek significantly in the narrative, properly reporting will need to reflect this

BC: one individual is on record as saying " I've included info that reveals her identity but I have no problem with that" but these individuals now in regards to these proceedings are concerned about their privacy. I reiterate the press association that assertion is not evidence

BC: I'd have expected in a well thought out request, statements from these individuals explaining what concerns they have.. and you don't have any actual evidence explaining these things. Where is the of clear and cogent evidence if harm?

BC: let's start with what we're looking for and we're looking for evidence the 4 individuals receiving or seeing communications that would interfere with their article 8 rights. It wouldn't involve adverse commentary on this case which no way constitutes abuse of these people

BC: we're looking for evidence to or in relation to them that will amount to abuse or harassment...

BC takes EJ through submissions regarding the request stating why the evidence is not substantial. Discussing tweets that did not agree with CGD though were not abusive.

BC takes EJ through mumsnet threads which were commenting know the substance of what respondents were saying.

Finally, The tweet from wild women writing club from yesterday which again is a pretty crude comment but ists a comment on twitter about this case. It may be upsetting to read comments but that is different to comments that are abusive and harassment

BC: adverse comments on twitter is not abuse and harassment. It's acknowledged these msg should be unpleasant to read. It's not my job to defend the msgs. Nothing what people on twitter say should detracts from these proceeding

BC: we have no evidence of direct communication to any individual that amounted to abuse or harassment. We have no evidence of any communication to any individual who was not directly involved in the actual hearing in some capacity.

BC: The highest evidence is a single tweet referring to them in derogatory terms but on public twitter not to them. And so what you have to decide from that if there is clear and cogent evidence that privacy rights will be harmed if reported on in these proceedings

BC emphasises redacting is simple but replacing with ciphers for job titles is much more time consuming and difficult.

BC: Using vague job titles creates a real practical problem for reporters and they may end up breaching by accident.

BC: that's why we oppose the additional info included but remain neutral to names and email addresses.

BC: we offer some observations and though formally neutral we are sceptical of it. The obs are the open justice principle must be given weight as significant public interest. [Cites Miller case]

BC: people who hold GC beliefs are particularly stigmatised and our claimant is far from the only person who is stigmatised for these.

BC: having established the belief is protected we can now find out how valuable this protection is and how it is applied to a practical set of events.

BC: people who hold these beliefs are liable to face disadvantage because of ready complaints. Whether the respondents can say we didn't take the actions because of her beliefs but because of the conplaints...that's a very important question

BC: live tweeting is an incresingly important and beneficial example of reporting and this will make it difficult. The whole point of open justice it to facilitate wider knowledge and understanding of legal proceedings

BC: and this is a good thing and it's important we dispell any possible suggestion in making these things public that anything remotely improper is being done

BC: you would need to be satisfied any restrictions imposed must explain the role and function and dates of those individuals in the organisation. That is the very minimum and that it can be done effectively and practically

BC: It has to be simple, to reduce the risk of breach to very low. You can read what the live tweeters have said. People may not know about this order and thus the breaching of it. The order needs to be reframed for this hearing

BC: to conclude on RRO, whilst we remain formally neutral, there are some serious issues to be considered. In regards to the expansion we would certainly draw the line at anything more than specific job titles which will be quoted in the order

EJ: yes
OD: can I reply, I only took 20 minutes and BC took an hour
EJ: that's why we'll be taking a break and you can reply. We will also hear from Tribunal Tweets and the press
We will break until 12.50.

During this intermission, I'd like to point you to our concurrent case of Michael Webberly, being reported by @StoatlyL on our second account @tribunaltweets2. Please follow and share.

https://twitter.com/tribunaltweets2/status/1501504556718596099?s=20&t=miwvSVR3ckv-XtMIUoXF-g

We are back.
EJ: as indicated we will hear from Mr. O'Neil from the press
LO: a few observations to do with openjustice and this valuable for public scrutiny. There's a great deal of public interest in this house and justice must be seen to be done

LO: We say the public need to understand the roles these people played fully. If you make the names anonymous and there's no need to make rulings around job titles. There's no evidence of abuse and harrassment

EJ: and from Jenny Smith if Tribunal Tweets
TT: I'd like to stress that the restrictions of reporting during live tweeting is a very big ask. What is said in court should be able to be reported.

TT: We reported RaqualvsBristolUni and it had been agreed in advance that someone should be anonymity in court. You're going to be speaking these names and we have a criminal record over our heads as to whether we report them.

OD: I'll start with relative weight because BC said article 10 is of paramount importance that doesn't mean it takes precedence it's made very clearly [Fallows case cited]

OD: I'll send you a copy. Iys paragraph 50 of Fallows. It says that in the case of proceedings that have been anonymised, and reads Lord Roger quote.

OD: there is a balancing act the court must take in to consideration with the facts of the case. The issue of clear and cogent harm, in cases where there is a reasonable expectation of privacy, the loss of that privacy is the harm

OD: the additional sources are aggravating matters.
OD: four individuals who had cknvos with their HR manager, raised their concerns that touched upon MF tweet behaviour. It can't be said the people would know they'd be raised in this case

OD: I'm very clear they had a reasonable righ to privacy when they aired their concerns and should not lose that right. The loss of that privacy is the harm there's good evidence they can be further harmed

OD: unfortunately this case is highly emotive on both sides and people might want to msg these people online. The tweet from wild women workshop describing them as 'stazi' individuals is evidence. Tweets can be more hurtful than an email sent individually

OD: I have sought instructions these individuals do want to privacy because they are fearful

OD: some people had previously been disclosed by the claimant and that overlooks that loss of privacy they should have

OD: the ability for the public to understand this case will not be diminished by describing their roles into the way I suggested earlier. We can come up with a formula so everyone can understand and lose nothing
EJ: Who is the 'we'
EJ: me and BC

OD: we can give an individual cipher and BC and I can work through that.
EJ: it may be you and BC can't agree on a form of words and if you did, we the tribunal may not agree

OD: I apologise we haven't done that in advance. With a form of wording describing them in context there will be no real loss to those reading this case. Therefore in my submission the level of interference is low level

OD: a further point, apologies for not raising it earlier. There is a individual's document in the Bundle and it's clear what their philosophical belief is and a state authority can not compel someone to give their view. By allowing this persons name it would breach their rights

OD: there is an additional risk to allow the name we are compelling her to express her philosophical belief.
EJ: might be said the individual has already expressed it
ID: they thought it a confidential process, they haven't broadcast it

OD: BC criticised the wording and when we break I will refine the wording of the order 'as having internally complained about the complainant in their work for the respondent' making it more proportionate

OD: this would avoid inadvertent breach and make it clear you cannot say these people's names, emails addresses or job titles. Those were all the points I wanted to reply to

EJ: were going to give this some condlsideration and ask you to come back at 3pm, and whether we will have reached a decision is impossible to predict, but we will at least tell you where we are then. Please leave and rejoin at 3pm.

@threadreaderapp please unroll