Thread by @tribunaltweets

Hearing expected to resume at 2 pm. Allison Bailey is back in court today, seeking costs from Garden Court Chambers. Bailey prevailed in an employment tribunal against her chambers. Submissions from respondent, GCC this afternoon.

EJ - employment judge Goodman
JR - Jane Russel, barrister, for Garden Court Chambers (GCC), Respondent - R.

Hold on, submissions are challenging to live tweet, apologies for any errors.
JR - BC and I are both lovers of philosophy. Discussion of sunk costs and assuming that correlation means causation.
JR - AB spent £765k to bring litigation to recover £22k. Now the costs of today.

I want to emphasise 4 points.
1. Just because the court can exercise discretion doesn't mean it must do so. That's the law.
2. Context is everything.
3. And has C acted unreasonably.
4.?

Now siting a particular authority, must consider the whole picture before deciding to award costs. We will come back to the figure sought. Authority claim for costs is criticised as exorbitant.
That's the situation that we've got here.
She's seeking £228K here, taking

a very broad brush an exorbitant figure.
Another citation: reference to need to factor in the significant criticism against the conduct of the claimant. All I'm going to say on the law.
(JR continuing until otherwise noted)
Must look into the detail to understand what

has happened from January through April. BC referred to 'original sin'. GCC was more sinned against than sinning.
A deceptively simple device that he's presenting, it's not a key, you need many keys rather than his master key.
If I'm forced to be reductive lets see where

the problem actually lays. That lies with C's solicitors. It wasn't an all or nothing approach, rather a 'nothing then all' approach. GCC had control of the bundle and was entitled to make decisions about the bundle.
What was required was cooperation.

Stonewall and junior members of Doyle Clayton were cooperative, PD was not cooperative. There were two relationship breakdowns - PD and Ms M, then PD and his own team.
Going back to 'nothing then all', quoting 'Waiting for Godot'. GCC sent first bundle index on 10 Jan.

Nothing seemed to happen in the month of February. Only 8 emails from PD to M. There was some justification of accusing him of being missing in action in February. Stonewall also thought this and emailed the tribunal.
BC - interjects, having problems will log out and in.

BC - now back in.
Panel member - page number please
JR - referencing Stonewall email. C was not engaged with the bundle process in early February. PD was otherwise engaged on Forstater in February, I don't criticise him for doing other work but he didn't engage with the

process and didn't want to talk with Ms M. He wanted others in his team to deal with her. GCC had to chase him, and I counted 20 occasions where she was asking him for documents. It wasn't just M's impression it was the impression of Stonewall.

'X has been chasing for C's outstanding documents for a week'. Stonewall thought the fault was with DC (Doyle Clayton).
Another email from Stonewall to M, and also to DC. "It looks like there is a fair bit of work to do".
JR - sorry I've given you the wrong reference.

JR - no it is the right one. 'Quite candid the problem is from your side, and the bundle was due to have been agreed 2 1/2 months ago'
'A fair bit of work to do, Jackie has been chasing for documents'
JR - that was the nothing approach now for the all approach.

Two aspects; they wanted to take control and then dumping large numbers of documents.
First trying to have a type of negative control by way of refusing too engage with the naming convention, she asked him nicely to use my format going forward. That would be helpful to us.

PD did not disagree with that approach. Cites several emails where is not objected to.
In four emails after this request, he doesn't object. I agree with BC it's unhelpful when you have to rename documents. There were at least 3 occasions when he refused to rename docs.

Ms M - I had to rename hundreds of pages, because you refused to do so and then he refused to renamed the 274 emails threads that he had sent. Finally, another 32 documents that had to be renamed. I'm grateful that BC admitted he did not rename docs on 1 occasion.

He refused on more that 1 occasion. M's naming convention was not weird, it was sensible. Reading out an example email. Perfectly straightforward way of describing a document.
Example of PD convention deemed not clear.
It is an example of a way in which PD refused to

engage with the process and produce the bundle on a timely basis.
This name convention is not the problem, the problem is PD and DC was required to cooperate with GCC to prepare the bundle and respectfully assist.
Now referring to another email from Stonewall in support of GCC.

It was said that the index was difficult to navigate. PD said this to her. She asked for his help, he did not help. Eventually resolved by creation in separate pdfs.
My learned friend also said that there was a loss of grit and practicality in preparation of the bundle.

There was a lack of consistency in approach and I don't criticise the use of a team. But when using a team all should be singing from the same hymn sheet. And Ms M had to deal with a number of different people at DC.
Then we come back to the attempt to take control of the

bundle by DC and PD and this was not what was discussed and not consistent with the order.
JR - now reading out email from PD, saying we will come back to you on missing documents later. But same day PD attempted to take control of the bundle. PD applied to the tribunal.

To take control of the bundle and prepared an alternative bundle. PD asserted that he would use this bundle at trial etc. Ms M then sent a conciliatory email asking PD to call and sort things out. The problem with PD's bundle had far fewer pages, 1000 or so. It must have

omitted documents. Including omitting C's sick note but including other prejudicial and inflammatory documents. Feeling she could not trust PD. There were 7 missing Z documents. The other part of the activity that caused problems was the dumping of many documents at the end.

276 email chains, 1,200 plus pages, it was a deluge. BC said they were just trying to help. They weren't helpful, difficult to insert, not following the naming convention, many duplicates. Spot checks turned up many duplicates. Told PD that she had found 3 of the pdfs in

the bundle already. It doesn't matter that PD disagreed with the single email approach, the email chains were hundred of pages long.
The upshot of all of this unhelpful activity was that the bundle became a moving target. And was late.
The cause of the delay was not GCC but

but rather PD & DC, the claimants solicitors. BC If the delay was attributable to GCC then it is unreasonable conduct. Likewise, if the delay was attributable to C's solicitors then it is also unreasonable conduct.
When C's solicitors should have been helping GCC, they were

busy creating an alternative bundle.
(Some distinction between blameworthy and unreasonable which we do not really understand)
Some allegations in draft complaint were dropped including the most serious ones, those of lying to the tribunal. There is a pattern of conspiracy

allegations being put forward and then dropping them is not a reasonable way to conduct litigation.
The direct attacks are now downgraded to 'confrontational'. I suggest that goes both way. Look at the way he talked to her.
Quoting email, 'it is not your place' 'don't have

another tantrum'. Would he have addressed a male solicitor in this way? Women are often accused of having tantrums when attempting to put their points forward robustly.
And PD routinely ignored requests from GCC, and some suggestions that both email and phone calls ignored.

A comment that appears to be mocking M.
BC - that document was redacted.
JR - whether or not PD agreed with the single email approach agreed, it is a sideshow. The approach taken was not irrational or unreasonable. Single emails reduce the duplication.

In the bundle for this hearing I counted 240 duplications. You said that there is no perfect way to prepare a bundle. And I agree. What she did was unreasonable. It doesn't matter that he did not agree the single email approach - he didn't disagree or object until later.

After that there 7 emails from PD (reading out references & times)
Nothing was said by PD about the single email approach.
She did make it clear that the emails will be separated out.
It is not difficult to match the emails to the disclosure.
All the emails do show addresses

Today's bundle contains a number of severed or truncated emails and I have enumerated them for you.
A cooperative solicitor would have picked up the phone and not produced an alternative bundle.
It is said there is a standard way to prepare bundles - neither BC nor I can

testify to that.
And they are now saying that the understanding of the bundle preparation was an emerging process. He did not sufficiently engage with bundle and delegated it to a junior member of staff.
The fact that there are other ways of bundle preparation does not mean

that R's approach was unreasonable.
Now moving on to another row back. C's hospitalisation was front and centre in the application. Now its focus is on BC's inability to give written advice. He knew exactly what GCC was going to say. Our pleading was the same from

beginning to end.
Another effect was the cost of the alternative bundle. It shouldn't have been done so that's on him (PD). The only other thing is other indices and chronology. The only significant one was paid for by Stonewall.
C's costs allege nearly £250k in costs.

EJ - I have several questions.
JR - yes
EJ - was X using a bundle software tool or the old fashioned way. Why was the draft bundle not sent when PD couldn't make sense of the index? And finally the 1,000 pages not OCR readable.
Are all those in the skeleton?

JR - did TMP use bundle software? Yes, 'bundle docs'.
JR - Yes, TMP is a small operation
JR - when were bundles sent? Appendix E in my skeleton and it has the date when the bundles or index was sent - it was 1 March, some discussion about shared drive on 14 March, and uploaded

another version on 22 March, various further updates and revisions in late March with final bundle on 1 April. 33 times when she either sent an index or a link to the bundle.
EJ - when did they get the actual bundles
JR - I took you through when they did all those things

EJ - now onto the un OCRreadable 1000 page document, plus the subindices.
JR - one big pdf, M asked for PD's help with that document, it was finally sorted out in March. And there was also an extraction error and that was sorted out by mini-indices in Tab 47. I'm not sure why

you were not able to see that.
JR - I'm going to move on.
EJ - hmm.
JR - I'm moving on to my submission and I hope to finish by 15:30. Her pleadings kept evolving, and she was pleading a mass conspiracy. And she was given the opportunity to abandon the 'at the behest of'

(Stonewall) in her evidence and cross examination and she did not. AB also did not abandon her conspiracy allegations against clerks in her chambers. She also presented this conspiracy without context.
She omitted the long period of absence that impacted the

amount of work she was able to do. She asked GCC to disprove allegations that she hadn't proven. AB was asked if there was one document that supported her allegation of an active conspiracy. She might say there was unconscious activity but she agreed that this was

under the influence. This requires proof.
AB knows her practice better than anyone else. She would have known that 2019 was an outlier and she had 5 months absence. Reasonable prospect of success is an ongoing assessment. Citing authorities.

Did she have reasonable grounds to proceed with her claims? Then withdrew her very serious allegations at a late stage after cross examination. She maintained this right up to the door of court and beyond in the hope that something would turn up on cross examination.

GCC spent significant funds on defending detriments 1 and 3 was unreasonable. And was wasting the courts time. An experienced barrister should not have brought forward unmeritorious and unevidenced claims.
AB sought to destroy the reputations of the clerks in GCC. n

Senior clerk had 40 years service, was advancing the equality agenda, like AB was black. Was very distressed by cross examination and allegations.

All members of GCC named had to deal with the allegations etc. There were hundreds of documents that they had to deal with it. It took a great deal of time. Not evidence enough in AB's witness statement, only inference. Drop in income in February following a December email

is correlation not causation. A handful of barristers in GCC were interested in trans rights, the majority were not. The majority were not on Twitter and had no idea of the toxicity of the debate.
Now discussing being opposed to and being hostile to gender critical views.

JR now revisiting detriment 3; that complaints were procured by GCC employees and Stonewall at an event.
Actions including liaison between Stonewall, members of chambers and working group.
This was a conspiracy theory and the tribunal said so in its decision.
GCC spent £766K

defending these two allegations.
I counted the pages of Tribunal Tweets cross examination, a total of 85 pages of testimony and it was overwhelmingly devoted to detriments 2 & 4. I ask for at least 50% of GCCs costs.

JR - concludes.
EJ - Mr Cooper are you ready to proceed.
BC - Yes. Let me deal with the dates the bundle was made available, earliest date was 1 March. Revisions through out March without an effective index and without reliable pagination.
BC - the main sub index came about

because of the extraction error, and the other sub indices were inserted by M.
BC - JR said she was going to dig forensically into the allegations in fact she flitted from snippet to snippet ignoring relevant correspondence.
She cited Stonewall who are not a

disinterested party and cannot be relied upon as a third party.
Now relaying the dates that documents were provided and uploaded. Documents that were identified as corrupt were immediately replaced.
Turning to the allegation that we are backing away from allegations

PD had asked M to withdraw various statements made to the Tribunal. It is simply not true that he had failed to provide documents. The impression created by those statements and the meaning on their face is that no documents were sent.

There is no volte face is no such thing. It is picking up a problem that the parties have been going around in circles on for weeks and attempting to cut the gordian knot.
EJ - thank you
BC - I'm not going to ask you to adjudicate on today's bundle. It does result in some

duplication, it does result in some truncated emails. The approach in this case was to send the bundle to GCC and they started marking up that one so it was fixed.
BC - moving on to the application against the claimant?
(claim without reasonable prospect of success).

You cannot take into account the testimony you heard to retrospectively address is the claim reasonable to make.
It is not right to say that C had had full disclosure on Detriment 1, she had only partial disclosure of negative reaction to her email. There was apparent

incomplete disclosure at that point.
The mere fact that following trial that the threshold was not met, does not mean it was unreasonable. Discrimination claims often are inferential. If a claimant was required to be able to point to a document no discrimination claim would

ever succeed and costs would always be awarded.
It's ridiculous to assert that. Was it reasonable to think that at an eventual trial when disclosure is complete and evidence has been heard, it might be apparent that the case is met. It is improper to suggest that a primary

document must appear to evidence that discrimination.
Now on R's back of the envelope calculation using Tribunal Tweets work to estimate costs when those have not been produced or included in evidence is not reasonable. A more sensible approach is how the detriments were

documents. All of the witnesses except 4 came within the scope of detriment 1 was because they were already included in the matter for 2 and 4. The vast energies of parties was focused on detriments 2 and 4. By any sensible metric the efforts of the parties

was on those other detriments, not the ones who were unproved. The findings of the Tribunal on the other detriments make it clear how someone who had unpopular views or engages in unpopular actions get transmitted in chambers. Finally there was a strike out application by GCC

against the entire case and that application failed thus it was considered and thought reasonable to proceed.
In the decision on the failed strikeout application
EJ - pause while I find that please.

EJ - I have the master bundle, what page?
BC - 150, within the strike out deposit judgement. The claimant knew that detriment 1 was an inferential matter, I had a decrease in my income and work. When I appreciated now negatively GCC reacted to my later tweets, I linked the 2.

The hostility would have been made clear and the clerks would have been aware and influenced directly or indirectly. I started at para 42, because the judge made clear that C could not only present an inferential case in general. C was required to name individuals.

She was required to particularise the case and name people. Then she named those named in respect of the other detriments, I can prove those other ones and of course I need to name the clerks as well because they may have acted because of the protected characteristic.

Or because of the influence. We could have argued that wasn't what the precedent said but it was more sensible to follow the judges instructions. We did not expand the named individuals other than the clerks who would have to be the agents of behaviour.

Judge said that there is evidence of communication between members of Stonewall et al that could be evidence of collusion between them through STAG.
Judge says 'C has a reasonable case to take forward for specific reasons'. Precisely on the basis the claimant has always

relied on, there was a reasonable prospect for success.
On to Detriment 1, more specifically. looking at Tribunal's judgement. GCC seek to rely on your findings in support of their application. You recognise the basis of the discrimination claim. You prefer the evidence of

the clerks on the limited nature of discussion following the December email over the evidence of C. You could have easily preferred the evidence of C that gossip is rife and it would have been widely discussed. We also have evidence that there was a very hostile reaction to

C email and statements. It's not unreasonable. You also have agreed that C described her experience truthfully and accurately and her own evidence. In respect of the reduction of work in 2019, you have found that the drop income could not be clearly explained by time out

of work. You might have accepted this and drawn the inference that the drop in income was on the balance of probability. The case was there to be made, you did not but that's not the issue with regard to costs. Moving to Detriment 3.

3 key points; C was required to name them, authorities actively encourage keeping claims under review throughout and adjust them as the material and evidence develops. C sensibly narrowed her case the core senior people who were most likely to have influenced her income in 2019.

Took proportionate steps and ultimately narrowing it to a core group of individuals. None of that had any influence on costs because the case had to be defended.
EJ - my recollection is that when C reported the drop in income, it was much larger. It might occur to us that she

did not really engage with the evidence about the drop in income. She did engage with that material in her evidence. Let me take you to our closing submissions on that detriment. My recollection was that C made 2 central points: 1 there is a lag in work done and payment

received, and that does not account for my diary not being as busy. 2. She accepted that the change in legal aid meant a reduction in income for all. The case that she made was that her fall was the largest in her cohort. The reasons given are not the full picture.

C's - not withstanding the general fall - her's was among the largest by comparison with her peers it was joint highest by reduction in income and by far the highest in reduction in billings. She did engaged with those points. And it remained the case that there was reason to

doubt the explanations given by GCC for the drop. She never said the discrimination was the only reason for the fall. Para 215 and following of her witness statement. She did recognise those points and dealt with them. It was a reasonable case to make, you did not accept it.

There were explanations by GCC that weren't entirely clear and did not explain the drop had you concluded other on the evidence.
Moving on now to Detriment 3. JR has included a completely hopeless argument that it was unreasonable that complaints were solicited at that meeting.

On the face of it, MB has encouraged him to get people to write to chambers. On the face of it there was direct evidence she had asked K to solicit complaints. The only question is that she was acting as an agent of chambers or not. If I invite complaints against members of my

chambers for their protected characteristics through an intermediary, it doesn't matter if they were an agent for others. That was reasonably arguable and that was what the notes of the meeting said and they were contemporaneous notes. The only question was she acting as an

agent of chambers. It is reasonably arguable even though you reached a difference conclusion on the totality of the evidence.
These claims fail.
Even if you are against me, counting up the pages of Tribunal Tweets is not a reasonable basis for claiming >£300 of costs.

A broad brush is reasonable, but this is completely opaque as a costs application. And what is the basis of their costs?
EJ - it was so opaque it makes me wonder it they have a computerised billing system.
BC - Even if you want a detailed assessment, of the costs, and possibly

to award some percentage of those costs. They have not put the information in front of you to make that assessment. Even if one of the thresholds has been met, you don't have the detailed information to do that. None of this is broken down by topic, date, no chronology.

While it says broad brush, causation is relevant. The claimant was proceeding against her chambers on a serious matter against a background of serious hostility and was defending her reputation and standing.

BC - checking that I haven't missed anything. No, I am finished. Unless you have questions.
EJ - I do not. JR any response?
JR - no questions.
EJ - thank you for those able submissions. we have tomorrow set aside for discussions and I am concluding the hear today.
Ends.

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