Thread by @tribunaltweets

We're joining the afternoon session of R Meade vs WCC and SWE

Copies of 3 additional authorities referenced in SC's written submission being distributed to the panel members.

J: Proceed
NC: You've read my remedy submission. Going thru SC's submission now. Start w 1st couple of his pages which are uncontroversial in nature and not disputed. Only extent damages shld be punitive is if make exemplary damages against SWE. No issue w para 678

NC: But where he says [reads re exemplary damages] but we are doing so against SWE as discriminatory. These are joint tort but exemp can only be against one. SWE's is a paradigm case on which E damages shld be awarded, as a stat regulator with terrifying power over individuals

NC They have violated her human rights and shld not silence dissent in the way they have. Argument is as compelling as it cld be for E damages. E damages against WCC as well as SWE for tort.
NC Open to view that C generous in not seeking E damages against WCC which is also an

agent of the state and has been coercive. But view is distance between behaviour of employer and regulator. If u think SC is right I'd suggest to also award against WCC if u feel is pressing need for E damages against SWE. Ask u not to let the argument get in the way for E damage

NC They are partly to punish but also for benefit of other state bodies tempted to act in a sim way. If persuaded re wider context and this partic FoE this example is needed. A teachable moment for any LA or other regulator tempted to behave as SWE have done. So upmost importanc

NC to do this. Later SC says re joint wrongdoers, so please look at Goodus & Leicester CC. This was a claim against Chief Officer of Police and vicarious responsibility for an employee framed: [reads no discussion in case law re exemp payments in vicarious liability and joint]

NC liability....] That is not this case as isnt joint wrong doers for the same wrong doing. Neither Rs is vicariously liable for the wrongs of the other. Tribunal has found separate wrongs w separate consequences by each respondent [details where they're listed]

NC SWE wrongs began several months before WCC did any discrim acts at all. So that case and statement of principle has nothing to do with this case. Is separate and distinct acts of discrim. The 2 claims are in the same story but they're not responsible for each others wrongs.

NC In Broom & Castle, these joint tort visas [?] re a libel claim. Head note [reads re multiple defendants and liability]. Body of Lord Hailsham's judgment awards of punitive damages follows the lowest possible. Only one sum can be awarded for a joint tort.

NC You see separate distinct torts. SWE had causation for WCCs act which I'll come to later. Re para 10, exempl damages if oppressive and arbitory action and as a deterrent. I say these conditions are met in this case.

NC Under divisibility, SC is wrong as each R has caused separate injuries with some overlap, with each causing damage. The proportionate may be difficult to untangle but this is sim to case where an individ has had two personal injuries in succession. Two separate torts and

NC injuries. This analysis shldnt be affected by two claims being heard together.
NC Quotes Simminandrum [?] concurrent tort visas and each having liability, but this isnt a joint act or causing the samr damage together. Each performed own wrongful acts.

NC Spitefull statement of case by one and not the other, and SWE didnt restrain her FoE nor punitive actions. They're separate. SWE was on own until July 21 for 8 months outside of WCC actions. SC says the C doesnt want to divide her distress but this is wrong.

NC The C has set out in detail her specific evidence re suffering from the various acts by the 2 Rs against her. Turn up those two statements please.
NC Remind yourself re a number of the paragraphs: [reads re RMs understanding of first Forstater judgment and mark as relevent]

NC [continues naming various multiple paragraphs to be considered] [still naming paragraphs to be considered]
NC In her second statement, paragraphs [lists relevant paragraphs]

NC [still reading out relevant paragraphs]. In all those places the C gives ample evidence on which to attribute injury to feelings by the separate Rs. SC suggests getting aggregate amounts that unjustified by tribunal findings but a classic paradigm of assuming the Q.

NC He assumes he's correct and considering a global award against both Rs in the round, in order to say it's too much. It wld be contrary to vento bands against one but these are separate torts. In 1st instance consider it as if only suing one of the tort. Cld have been separate

NC against each but I'd suggest high on the bands for each. But being heard tog by one trib doesnt mean they shld be awarded differently as are 2 distinct claims. SC says re C feeling like a criminal, cant 2nd guess how she felt after 20 yrs exemp service. It's how she felt

NC and her evid shld be accepted. Obvs not a criminal case tho. Minor relevance that irt damages against WCC that DB has apologised to the C, but in absence of any practical assurance re what the R is going to do to correct things, and how to deal w similar issues in future

NC She must be free to manifest her belief that bio sex is real and sometimes matter. She deals w highly vuln adults in hospital and she might need to advocate for a vulnerable client wanting SS care. A SW must be free to advocate for actual SS intimate care and not someone

of the opposite sex who feels as traumatic. FoS and freedom to manifest belief. Cld be fundamental aspect of ability to do job properly. But nothing In DBs answer that shows he's thought about this. This isnt about workplace mediation but low paid employee down the hospital

NC hierarchy has been discrim against and her managers also punished for failures to escalate. A serious problem in this org that goes to the top. No thought yet re retraining or disc action against those who discrim against the C. He only mentions a mtg between C and those she

NC still feels angry with. And then there's the failure to attend trib to answer Qs about how this will never happen again. Showing that GC beliefs are fully protected in law. Something profound needs to happen at WCC so they feel free to act in their workplace, incl with gender

NC distressed children. Which points out the requests of the C about WCC. In para 19.4, SCC says is difficult to understand re C's fear by R1 costs. I say the R must take the C as it finds her so how can u doubt her evidence. More importantly this shld not happen in most cases

NC Cost threats the case was self evid hopeless shown by the doc evidence known at the time. Her support of GC goals was mainstream polit engagement in a heated debate. It shld have been obvious to a well advised client that there was no case. I will rely on these comms as

NC they are relevant. They should, if they'd been properly advised, have known that they had no basis for their claims. Neither of the respondents.
NC Re emails [reads re £30K and implication of refusal and cost applications] The R the day before the hearing and refusing liabil

NC It was clear happy to settle but intransigent on liability. If C has been discrim against is entitled to that declaration. Even if failed financially is extraordinary to get costs but no liability. The public admission is of profound importance to a C like this who's had HRs

NC violated. She's left uncertain re her FoS and future going forward and doesn't deliver practical benefits of admitting liability. In circumstances to threaten costs applic against the C if failed to beat the offer or didnt win was wholly unfounded and improper. Unreasonable

NC conduct with a predictable effect. Was inevitable the advisors wld tell her v low risk of order being made. So was to generate what if terrors which is what happened. Nightmare what if terrors shldnt be used as threats - is wholly improper to terrify a C in this way.

NC In para 20 SC talks about comparable cases, of discrim on protected belief but no reason why limit to beliefs. MF was awarded £25K for injury to feelings which is a good benchmark and she lost work. But she wasnt a clear employee, but no long suspension and separation

NC from colleagues, public shaming by regulators or threatened fitness to practice so not the same threat to make her unemployable. But still got £25K. Each R has subjected C to protected process caused shame embarrassment and I say proposed of £30 K by each R is proportionate

NC Suggesting a risk to vulnerable clients (the C) but nothing similar for MF.
NC [reads re SC's damages] I say the existing findings do go far enough to support exemplary damages. They are sufficient. But open to tribunal to find from Rs conduct now & the findings at tribunal

NC Extraordinary for WCC to not attend todaty to explain a witness statement. Really shocking is SWEs failure to call any evidence, total silence and no comms with the C. The only comms re the liability judgment is on SWEs website to acknowledge judgement [reads]

NC No change on website since 9th January and said nothing further since. Takes me to New European article from this am. They are wholly unimpressed by tribunals judgement and feel they are right in this case. Their intention is to minimise impact of judgement and will continue

NC to silence SWs on this issue. They shld have sent SWEs CE CC today to explain the orgs position, and I cld have asked him about freedom of SWs ability to express these views in public, and vigourously engage in public debate. I ask u to infer that SWE wld have been unwilling

NC to give that assurance. Writer Sam Fowles of a reputable chambers describes as part of a campaign to roll back trans rights.
J Are u asking us to join a connection?
NC nO I'm asking u to draw from this. Protection of belief isnt new but we didnt know it was there prior to

NC to June 21. That was preceeded by NWORIADS earlier so both Rs wholly unashamed and felt able to push down GC beleifs. Even After June 21, commentators said u can hold these toxic beliefs but not manifest them. Went thru 3 stages, hold beliefs but dont express them. See that

NC in SWEs position. Onto we can get you if you express them in an objectionable manner. Suggesting this article is part of and the tweet in our costs applic by Robin White, a telling data point, to minimise impact of this case.

NC Tog w this kind of commentary is saying this is bad law and GC activists hiding in loops of law. SWE conduct today and this article and RWs tweet, this commentary influences its activity and actions
J Its not immed obvs to me how to take this.

India Willoughby is v vocal in this debate as we know.
NC I'm asking u to draw inference in the context of esp this twt by the former counsel for the Rs. The conduct of SWE in response to liability and these data is instit GC phobia. They've not called any evidence here.

NC Failed to dismiss a malicious compliant re lawful views. So from 1st triage by Jack. Heather and Graham case examiners all way to Berry Rose were unwilling to agree that SWs cld engage in this debate. Have said nothing since to counter this. And this twt minimises the

laibility and inference is SWE has no intention to change course. Which is why exemp damages is so important. This case needs to be seismic for SWE. If its not the work of tribunal is only half done. Something needs to be done to make it seismic for SWE. Needs to get to CEO, risk

NC c'tee and relevant minister. exempl damages are the words that'll have that effect. [Reads RW's tweet].
NC Takes me to financial loss and SC from para 28. Look at Willers and Joyce please. Just before with deliberations plse read Appleby v Tavistock and Reindorf report re

NC institutional issues about GC beliefs, from authorities bundle. They're relevant alongside judgements findings as all tog show a picture of the culture at SWE. Protected GCs beliefs are novel and sense is like early days of sex and race discrim and took a while to convince.

NC Employers more resistant to taking this on board as seen as hate to not beleive these things. look at the no of academics in Jo Phoenixs case and Appleby. Is a widespread problem. Have an industry of advisors telling them how to protect against 'reasonable demands'

NC in the past and we have that again now.
NC Going back to Withers and Dollis [?] re malicious prosecution and wrongful trading. When claim discontinued the C was ordered to pay costs and malicious involvement and seeking difference in costs...

NC Result was claim did proceed so Supreme Court by majority held was a claim for damages and permissible. On p149, re pulling bell cord on bus re malicious prosecution. Struck out at first but Court of appeal accepted decision but excess costs cldnt be recovered.

NC So was a rule but CoA didn't extend to criminal proceedings. Please read Lord Toolsom in para58 [everyone reading].
NC This passage illustrates that not possible to reclaim costs in damages [confused here]. Cant recover as damages her costs as a cost regime in ET

NC Costs only awarded if unreasonable behaviour so v rare. Isn't permissible to go behind the cost regime rule. Costs as damages arent from trib but something separate - costs that reasonable as mitigation against damage threatened by Rs before the tribunal.

NC Costs to overturn possible reg loss. Prep for disc hearing and appeal. Drafting for fitness to practice proceedings. They're related as linked by discrim but not costs of fighting claim in the ET. Is not an attack on the principle. Demonstrated by not being able to claim as

NC part of pre-action claims. Eg pre-action letter. But internal disc proceedings etc - none are part of costs of the hearing needed to head off threat to Cs job at WCC and ability to earn her living as a SW. In that context, and her need to incur these costs,

NC Id u say she hasnt behaved reasonably here it's up to the R to dispute these costs, which havent done. Take the C at face value - she was terrified by these proceedings and poss of losing her ability to earn her living. Plse look at her feeling of threat which is credible and

NC reasonable for her to be fearful. Intention re fitness to practice etc was very likely to create fear, the ultimate threat to her livelihood. So crowdfunded and drew on husbands savings.
J Of the £42K, how much post dates tribunal starting?
It straddles the starting of the

J case?
NC Yes, it does. Not sure of the dates [looking now] Dates Jan 2022.
J Potentially comes more difficult to untangle the costs and dont necess have a demarcation.
NC Yes, ppl have done their best and its hard to do

J Yes, we're looking at costs around a demarcation and solicitors arent going to be setting a line in their work before and after
NC The best my solicitors have done is on these pages [lists]
J This is in principle as SC may say is not approp to pay any of this

J Not an assessment but something analogous to this.
NC But she has ability to be reinbursed for what she spent, whether reasonable costs or not. It cld be argued she shld have been cannier but this hasnt been put to the C

J It's not an insubstantial claim
NC But costs as damages are relatively modest. She's reasonably incurred these and had grounds to incur them, so her evidence shldnt be discounted unless good reasons to not believe her.

NC On para 58, SC refers you to para 145. Comes from Lord Hance [?] re recovering extra costs re Elliot proceedings and normally costs being unrecoverable. The majority of Supreme court did say was reasonable but even so, we're not talking about extra costs in earlier proceding

NC We're not going behind costs regime. Recover same costs by damages, altho in this case u cld. But in general u cant. But it's nothing to do with this case.

NC SC make point that ET has own costs regime. But C not trying to [?]. She's saying I need damages in mitigation for

NC damages that stat wrongs did to me. Are costs she cldnt have claimed as costs under an ET. SC seems to seek to rely on a broader than accurate description of claimable costs, by ref to DRC locums [asking for the case papers]

NC May be an argument to break here as I want to discuss it.
J Can we have a comfort break? How much longer do u have?
NC Not much on recommendations but cld finish by 4.30pm
J Then SC in the morning then costs?
Break for 10 mins

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