Thread by @tribunaltweets

Part 2 of morning session of remedies hearing in RM vs SWE and WCC.
J - we have a hard stop at 1 pm, so if we don't finish we need to stop.
NC - my estimate of 30 minutes was generous.
Now on to costs, responding to SC's written submission.

NC - costs are inherently compensatory, the conduct of the Rs is unreasonable, they had no genuine defence for their conduct. This proceeding should not have happened.
Please read para 16, and passage from BNP Paribas employee quoted there (don't have in front of us).

NC - the test for costs is completely met. Mr C says that the tribunal cannot look at complaint as a whole, but must look at each ground and whether it had a chance of success. I accept that so lets look at our schedule of loss, and look at the successful contentions.

Which had no reasonable chance of success for R to defend.
These are:
- length of disc process, R should have been able to see that there was no reasonable process of success
- same for length of suspension
- hostile environment; reasonable process of success
- attending

a meeting - also reasonable prospect of success
- the transphobic nature of Facebook posts was weak but could be defended,
- but the final written warning had no reasonable chance of success.
- in the case SWE, I say that all 4 aspects of points on harassment they had no

reasonable chance of success.
- the first portion of the investigation was in the period before Forstater, and gc beliefs were not NWORIADS.
They had more excuse at the time to treat C as they did; but by the time the proceedings had started the EAT decision in Forstater

had been handed down. It should have been clear to them by the time that proceedings had commenced that they had been misled in their actions that her actions were not WORIADS.
So I agree with SC that not all were proved but it's not a numbers game.

All of her most serious claims were upheld. There should have been no regulatory or disciplinary procedures against C for these reasonable views. It is fanciful to think that there should ever have needed to be a hearing on this matter on the remaining 'reasonable'

NC - now taking panel to the liability judgment in this matter.
In particular 'we consider it to be self evident that R considered that C's views were not acceptable and she was not allowed to express them privately or in the workplace'
And 'evident from contemporaneous

documentation that it was her views that were unacceptable, not manifestation'.
NC conts - C is seeking retribution in this heated and contentious debate. Not true, C is seeking her costs that should have never been incurred if R had not so injured her.
Now on to the amount of

costs. I will say, it's a substantial sum, it's not an outlandish amount. The length of proceedings, the manner in which R has responded to the proceedings, their attempt to strike out, is evidence of their aggressive approach to this proceedings.
The bundle as prepared

by SWE's solicitors was unusable and C's solicitors and I were required to invest a lot of time in making it useful.
NC - we know nothing about the costs incurred by Rs but you can see by the size of their legal team today, its indicative of their aggressive defence of this

claim.
NC - on crowd funding. We are on virgin territory. I submit that there is no difference in principal between be insured by the crowd and being insured by an insurer.
Why costs? Both Rs proceeded to defend a case that had no reasonable basis of success.

But also the threat of costs, the first R had generated nightmare terrors as hyperbole, C & her husband saw the reference to WCC's costs as a threat that they would have to pay those costs. Costs were mentioned in that letter to put pressure on her to settle without admission

of liability by WCC. R was making a deliberate attempt into intimidating C into settling her claim without any admission of liability, any tribunal against WCC, SWE. And no ability to overcome the chilling effect on her freedom of speech.
Mr C says that cost threats are

routine in these matters - maybe they are but that doesn't mean they should be. And cost threats against a body like SWE or WCC can be expected to be dealt with in a hard nosed manner and no one is at risk of being made homeless if they don't settle.

These types of threats were intended to persuade her to settle without any genuine remedy.
J - asking about when did conduct become unreasonable, say Forstater, and how that impacts a financial loss
NC - Forstater predates this proceeding
J - the question would be if we are not

with you on financial loss what are you seeking
NC - it self evidently absurd that the tribunal has jurisdiction over the costs of earlier proceedings
SC - that's not what I suggested at all
NC - its only those costs that can't be recovered as part of the proceedings

can be recovered as part of damages. I'm not going to suggest that you can award the whole of costs incurred by C as costs of this proceeding.
J - thank you,
SC - Miss C has identified those allegations that are defensible, I agree it's not a numbers game, fewer than half of

the allegations were hopeless, the tribunal is not in a position to say that the claim had no reasonable basis of success. That is clear from the judgment.
More on unreasonable conduct - RMW's tweeting has nothing to do with either of the Rs.
I accepted that the

acceptance came late in the day. It wasn't unreasonable conduct on the part of Rs, we aren't privy to the advice the parties were given, they came along to the hearing having changed their position.
SC - I don't understand the point being made that they reformulated

their reasons for defending the action. I don't understand this argument that somehow the witnesses were attempting to change their decision to defend.
SC - on the total of costs. If you get over the threshold and decide to order costs, on what basis could you order that

the whole of the costs could be due? It's very difficult to say that these Rs should not have responded to this claim. They should not have defended this claim, they should not have entered the game, it was wholly without merit.
If you don't award the whole of costs then how

do you apportion? You can award £20k and if you don't award that then how can you choose a point at which both Rs should have been aware that they had no reasonable prospect of defending this action. When it became aware that it was 'doomed to failure'. There was not

a interlocutory submission on this matter. And there are 2 separate Rs, (I will say there are only 2 of us on payroll today) each had separate counsel, making their own decisions etc.
Finally on the without prejudice point, it was WCC that offered to settle and the claim

could have gone ahead against SWE, even if the WCC proceedings had been settled.
Those are our submissions.
J - thank you, no further questions.
J - we are thinking 2 separate decisions on costs,
NC - no strong feelings
SC - any thoughts on timing of judgment?

J - we have a day booked for deliberations at the end of February and probably a judgment within a couple of weeks thereafter.
Ends.

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