Thread by @tribunaltweets

We are back for Part 2 of the morning session in Bird vs the LD.
Morning session here:
threadreaderapp.com/thread/1868596…

EW - now explaining the number of elected members of the LD federal board, there were 15. But it's unclear that there were 3 elected positions in 2024.
J - there are 3 elected positions of the fed board, many members are ex officio, she is claiming for hurt feelings for not

being allowed to stand for election for the federal board in 2021.
EW - there were 15 elected positions in 2021, not 3.
J - but you're not calling your witness to clarify.
NR - I'm surprised that MLF is making submissions on this. Why are they claiming for £90k not £20

If they are saying that the claim was increased because of this issue (fed board election), because it occurred before the claim was submitted. My submission will be that this was not included and not pleaded.
J - fed board election is not relevant because it occurred before

the claim, and was not included in the claim.
NR - if you're only relying on this in regard to the increased claim, then I don't need the witness to appear
J & EW discussing whether the wit state is relevant and it is important for wit to appear
J - his point is that an event

that occurred in 2019 cannot be relevant to this claim.
EW - but injury to feelings can change and increase over time.
J - the only relevant matters are those that have happened since the claim was made. NR - its up to you.
NR & EW agree that NR can go ahead with subs.

NR - is this application required at all? if they do need to apply should your honour grant this? and then the double claim.
A chronology of the case, I have tried to put this in my skeleton.
J - I don't have a chronology
NR - claim first issued in April 2021, D was misnamed

and the value was pleaded as £10k stated twice in the claim form.
2nd claim - dated October 2021, claimant has worked out she is mis-naming the D and includes Lib Dems of England, plus Alison Rouse, and claims £10k twice. You can see that the claims are exactly the same.

J - I haven't compared on a word for word basis have you.
NR - the only difference I believe is the identity of the defendant. I will admit to not having done a line for line comparison.
Particulars of claim in 2nd claim, only difference, is para 8.
J - worded differently?

NR - new para. Said to have been issued protectively because of limitations.
<judge is reading>
J - AR is D in both claims,
NR - yes, after amendment. The C said, I've reissued the claim for procedural reasons and having misnamed the Rs.

NR - C had done some clearing up by amending names prior to service, and then consolidated into one claim.
By this point, C has corrected name of D, then one D removed by discontiuance. By December the claims had been de facto consolidated and Ds were properly identified.

NR - by this time we have had the claim pleaded by value as £10k four times. In some cases, over 2 years C introduced a statement of loss. Quite a strangely drafted document, beginning looks like claim as pleaded, then ambitiously another go for 2nd claim, and then

the Ventor scale is introduced, in this section in a very strange way. Then says that the claim is worth £45 twice. YH will be aware that £45k is the maximum in very extreme cases.
J - yes. Schedule of loss in 2023?
NR - yes introduced in 2023, our response was 2024.

NR - C has not made any application to amend. I will come back to this. The D plead guilty in an effort (unsuccessful) to avoid further costs. Our application for judgment and costs has been deferred to this hearing. C wanted to claim her costs. C did not reply to this

application.
J - I've never seen one of these before. (application admitted guilt)
NR - normally happily received but was opposed in this case and we've never had a response to that.
J & NR - discuss if he's asking for costs, and he agrees to finish his submission.

NR - after the hearing (PTR), after we had admitted the claims, the C amended the claim
J - did anyone ask me to consolidate the claims?
NR - we did not
NR - first issue, does C need to make the application, should plead the value of the claim on the claim form

the rule the C is relying on is lesser known,
J - essentially that means if that particular head of damage than the court is not limited to the amount on the claim form
NR - if we go to the authority (case) on that, an application to substantially increase value of claim after

further evidence of physical injury emerged. There are rules that C are obliged to follow...
J - can I just read it? what paras?
NR - 49,50
<judge reading>
J - seems to have been a case where there was a new head of loss which was loss of earning, that seems to me that there

is new head of damage. And that can be done. But what is happening in this case is that this is not a new head of loss or damage in this case, they are just asking for more.
NR - yes, the authority says the rule shouldn't be used to bypass the basic rules of the claim,

J - this is about general damages
NR - says that claim must state the value of the damages claimed for
J - including personal injury
NR - it seems that the C is attempting to introduce a personal injury claim via her witness evidence
J - lets not worry about it if we know that

the claim does not include that.
NR - in general the C should be bound by the value of the claim that they pleaded. The court may give a higher award but requires an application. Those effectively would be the circumstances.

The value of the claim sets other things in motion; court fee, what track it is allocated to, the amount of cost budgets. Things are decided based on the amount request.
J - does an increase in the amount of claim require an amendment?
NR - judges can give higher awards in

exceptional cases.
J - I don't think it's only exceptional. This case you ref includes a further head of damages, so it's not that helpful.
NR - the case is not the answer completely,
J - you can't circumvent heads of damages, but in this case we only have one head of damage

in this case. Are the other cases helpful on this point.
NR - refs judge to paras in other cases...
<judge reading>
J - I'm interested in whether the increase in damages was due to another head of damages or other factors
NR - I don't think the case deals with that, I'm not

sure this is terribly helpful.
J - no introduction of a new head of damages
EW - do you want me to address you now on this point. My understanding is that the head of damage didn't change in this other case. The quantum of damages changed.

J - how do you get there?
EW - there was no introduction or discussion of new heads of damages
J - that is absence, doesn't help me.
EW - refers J to bundle submitted (she doesn't seem to have)
J - that begs the question, why did the value increase, its not at all clear to me

J - it may be that if I read the entirety of the case it may become clear to me what has happened. It doesn't sound as if they didn't plead these as a new head of loss.
<J reading out bits rapidly to herself>

J - it seems to be highly unlikely that there would have been an additional award on a new head of loss without pleadings.
NR - I have to agree
J - what about the other case where the increase in value was allowed?
NR - covered briefly at end of judgment

NR - unusual case, defence didn't appear as it was struck out - the reasoning, such as it is, is in para 22.
J - the issue for me is the 'head of damage',
NR - I understand this,
J - it seems to be just one head of damage
NR - it seems to be
J - a very authoritative

defamation judge, sitting in retirement. Are there any authorities?
NR - there are not any authorities cited. I think Fleming is most relevant here, although imperfect. I don't think a claim can be increased,,,
J - what is the principle you are setting out
NR - it would only

acceptable for the court to allow this discretion where an application would be otiose.
J - you can only rely on that provision, if any increase in the value above the pleaded ceiling, does not cause any prejudice to the defendant
NR - yes YH, the value of the claim is req'd

to be claimed. It cannot be allowed if there is not prejudice to the D.
J - what is the prejudice
NR - the amount was increased after we had admitted liability
J - after the admission of the claim they have quadrupled the claim, 4.5 the value of the claim

NR - yes
J - you could have withdrawn your admission.
NR - I was concerned by C's evidence that there was a plan to increase the value of the claim, in October 2021. Either that plan was abandoned as the claim was signed twice at £10. Or it was an abuse of process.

NR - so now I go to should the application (to amend) be allowed.
J - what is the date?
NR - August.
J - was it vacated?
NR - it was listed for a week, but then reduced by YH to 2 days and then vacated for lack of judicial resources

NR - now I want to spend time on the reasons for the application. Thinly explained, what was known to C now that wasn't known to her then, various matters. The first we spent time on, the loss of ppc status in 2019,
J - so known to her
NR - pleaded in fact

NR - the other matters explained are the same, past events and know to them. It gets vaguer and vaguer, C has not introduced evidence, but known to them. C cannot rely on them and the reasons don't make sense to me.
J - that why I wanted to deal with this at the end because

I thought I would have a better view of the merits.
NR - YH can read the application, there is no new evidence here.
NR - Can I move on to timing. By denying the application, you are granting her the remedy she sought in the beginning and on which the D relied upon.

It's not appropriate for her to introduce this now.
J - 2 poss scenarios: one value of claim is <£10k, I would refuse permission to amend or I might grant permission to amend and then award damages higher than £10k, where am I?
NR - if YH refuses the application, we are

prepared to accept the £10k.
J - so you're saying that a relatively small amount of damages would not result in a significant prejudice to the D? I'm trying to figure out the legal test here.
NR - the main prejudice in this case...
J - I'm trying to identify the broad legal

principle that applies here.
NR - the principle is there is no prejudice to the defendant
J - but you're saying even a small increase in damages requires an amendment
NR - its not just the amount, it's that the defendant has acted in reliance on the pleaded value and admitted

guilt.
J - so that section can only be used where this is no change in the heads of damages and no reliance on the pleaded claim by the D.
NR - yes, that's a better formulation. C can't say weren't aware of need for application.

<we are going on, NR hopes to finished subs before lunch>
NR - on to the matter of the double claim, the 2nd claim cannot add to the original claim because it is zero. It could be refused on that basis alone.
J - if only one set of damages can be good, then that only applies

to the 2nd claim.
NR - yes.
NR - injury to feelings, these bands are the uprated bands at April 2024
J - how does that fit in with the increase of the claim? Why are you limited as of 2021? In personal injury cases, you do that as of the time of the judgment

NR - my understanding is that the way the guidance was drafted
J - can we find that?
NR - it is there, I believe, page 71
<J reading>
J - not increased but its for claims issued in that period but not dates claims are valued.
NR - C has not amended her claim to add any

amendment for further acts of discrim.
J - yes
NR - if the claims was for subsequent acts she would need to identify those.
J & NR now discussing authorities on value of injury to feelings, J reading.
J - compensation, not punitive
NR - agrees

NR - referring to tribunal statistics on awards for injuries to feelings, I've never seen anything in the upper band other than for the most egregious cases.
J - what period does this cover
NR - most recent quarterly average. Normally in ET, it's loss of earnings.

not injury to feelings. And I would say that ET proceedings are much more significant for participants when compared to party memberships. Awards are not typically made anywhere near the level made by the C.
NR - now on injury to feelings. It's difficult to x examine on

this. YH needs to look at the evidence produced. The only evidence produced is about the loss of the chance to run for the Wakefield seat. There were other attempts and all were unsuccessful. I don't think losing the opportunity to run for a highly improbable seat is the end

of a shining political career.
NR - her witness statement is not about her claim. Not about the definition of transphobia. Not about anonymous complaints. Almost all of her answers on x examination included activists. The party is not responsible for the

actions of the members, only for its processes. There is no evidence submitted for this. The process for dealing with complaints is what is submitted, and appeals made by her are what her cases is about.
J - so it's about complaints she made not being actioned and her appeal

not being heard.
NR - 1st i/x - not upheld, then suspended in Dec 2018, then the removal of candidate status, reinstated after Oct 2019 hearing,
J - why was she suspended in 2018?
NR - suspended in spring 2019.
<everyone looking at bundles>
Further discussion of what

happened when.
NR - DaCosta reported on complaints in May 2018, complaint was rejected. A further batch of complaints were made and C was suspended in 2019.
J - when was she reinstated? What happened with these complaints.
NR - some were upheld
J - when was she suspended

NR - before the report.
J - is there another report on the second batch of complaints?
NR - it is not being relied upon as an act of discrim and the rules changed during the process
J - so reinstated in Oct 2019 and then suspended again in 202. Reinstated after the main hearing

NR - her evidence is that she is distressed by the behaviour of other members, not by the LD party. You must take that evidence and dilute it because her reaction to the activists taints everything.
J - there is no complaint that D had a duty to do something about the activists

NR - her claims are about complaints handling. The next point is that C has given evidence about ill health.
J - it's not a personal injury claim, depression is a medical condition. Ms W - what do you have to say? Where's the medical evidence.
EW - We don't have expert

evidence but a letter from her GP
J - that's not sufficient, but you are relying on depression.
EW - yes.
NR - going on -
J - this is much longer than 10 minutes...
NR - I'm about to finish, there is no evidence in her witness statement that she wasn't allowed to appeal

then she says her appeal wasn't ever heard. There's no evidence about the impact on her feelings. Complaints to an expedited panel - no evidence on impact on feelings. Same for being excluded from party conference in Sept 202 - nothing about her feelings,

NR - 3 complaints against her referred to expedited panel in Oct 2020, no evidence of impact on feelings,
J - I'm trying to write this all down.
NR - evidence she does give, simply relays the facts doesn't give evidence or discussion of feelings. That's extremely thin

evidence. The vast majority of her evidence is outside the claim pleaded and matters pleaded in the claim are not addressed in her witness statement.
Can I touch on costs?
J - you can deal with that after lunch, we will come back at 2:30.
Court rises.
End of morning part 2.

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