Thread by @tribunaltweets

Bird vs the Liberal Democrats will continue this morning, scheduled for a 10:30 am start. Reading over yesterday's coverage, it provides an accurate account of proceedings. Additional background may be a useful aid to understanding.

Ms Bird claimed that the Liberal Democrats (both of the United Kingdom and of England) had discriminated against for her gender critical beliefs, including removing her as a Parliamentary candidate.

The Liberal Democrats admitted Ms Bird’s claims just before the trial was due to begin in July 2024. The explanation from LDs was that this was to save time and costs. A subsequent hearing for damages and costs was scheduled for 16 & 17 December 2024.

Ms Bird made an application, subsequent to the admission from the LDs, to increase the amount of damages. Thus the 2 day hearing is addressing 3 matters: the application (resisted by the LDs), the amount of damages and costs.

The judge has indicated that she will rule on the application and on damages (implied for today) and then move on to costs. This morning (Tuesday, 17 December) Emma Walker, barrister for Ms Bird will conclude her submissions.

Proceedings yesterday were a mixture of submissions by both sides and cross examination of Ms Bird by Nathan Roberts (NR) for the LDs. Matters are further complicated by the two claims for the same events that have not been consolidated.

The admission by the LDs to all claims means that the judge has not heard evidence or examined the relevant documents but needs to make a damages award, based on injury to feelings. Thus, there were frequent questions about what happened and when.

We are expecting to begin at 10:30.
Abbreviations:
NB/C - Natalie Bird, claimant
LD/R - Lib Dems, respondent
EW - Emma Walker, barrister for claimant
EH - Elliot Hammer, solicitor for claimant
NR - Nathan Roberts, Matrix Chambers for the respondent

GC - gender critical, sex realist
I/x - investigation
disci - disciplinary

J - Judge, Her Honour Judge Evans-Gordon
RA - Radical Association
PPC - prospective parliamentary candidate
AHF t-shirt - t-shirt with the dictionary definition of woman
MLF - my learned friend, barristers referring to opposing counsel

Additionally, we used D for the LDs and respondents.
Court begins.
J - EW, please start.
<<EW said yesterday she will need 10 minutes to finish submissions today. Some discussion if that is actually 10 minutes in real time or barrister time>>
EW - I asked for 10 minutes

I may need an additional 3-4 minutes to address the case you asked us to address.
EW - NB's ws was for the purposes of the evidentiary hearing. Every para does not conclude with 'this made me feel x or y', thus speaking to injury to feelings. I've done a x-ref to related the

claims of direct, indirect discrim and victimisation. We don't have all of the evidence that would have been produced in a full trial of fact.
J - her ws should have covered everything; both what happened and how it injured her.
EW - the paras I have brought to your attention

describe what happened and also describes the emotions that she felt. It does seem that the reason the D admitted liability because they didn't want the documents to appear in the public
J - on what basis do you make that assertion? You are saying they are misleading the court.

EW - Explains the potential litigation strategy of the LDs.
J - proportionality is very important in this matter. Do you have any documents to support this allegation?
EW - No, I don't have any documents and I take it back.
EW - the ws needs to be considered as a snowball

effect, with each incident adding to the one before.
Now moving on to discuss the case suggested by the court.
J - it was my clerk that brought it to my attention because he happened to be clerking on it.
EW - not directly on point because person was not reinstated

J - I meant it for you to consider it re your submissions on NB's possible progression in the LDs. In a political party, they may well choose to advance those members who's views align with party policies. That is not in itself discriminatory.
EW - Ali is interesting in that

it is the first case about a political party and discrimination.
J - SA was removed as spokesperson because his views didn't accord with the views of the party.
EW - NB was removed (suspended) and not allowed to stand, like SA. If the Greens had followed their policies

they would have properly removed Ali as spokesperson, it wasn't about discrimination.
J - but there was a finding of a discrimination in that case. <<judge reading out conclusion>>
EW - yes, but the discrimination related to how they removed not what they removed him for.

EW - LDs have admitted we did discriminate. Whereas as Green Party arguments were we did have basis to remove him as spokesperson.
NR - finds the page reference for SA vs GP.
<<all reading>>
J - procedure was unfair, the discrim caused a procedural unfair way, because of

protected belief.
NR - my understanding, was procedurally unfair, was it because of belief discrimination, yes.
J - he does not exclude the possibility that it was discrimination, and the shifting burden of proof in the Eq Act means that he has to treat it as discrimination.

J - and that is exactly what is happening here. They mistreated him because of his GC views and Ms Bird was mistreated because of her GC views.
EW - he was only successful on one aspect of his claim: removal as spokesperson. We have a number of different acts that have been

admitted to by LDs. The point about the award of £9.1k remedy,
J - not sure how he got to that as a remedy
EW - we are in the dark, I agree. But the award on the single matter, it means that £10k is too little given the number of acts and duration of the process.

EW - we need to look at inflation as well. £10k in 2021, would be £12k+ today. Ali's claim of £9,100 would more.
The £45k that C is seeking (adjusted for inflation) is more than £55k (we are not seeking that amount).

Our coverage of Shahrar Ali vs the Green Party is here.
tribunaltweets.substack.com/p/shahrar-ali-…

EW & J - now discussing duration of discrimination and harassment. Now looking at the particulars of claim for dates. 2018 is date of i/x report.
J - I'm not sure what that means. Less favourable treatment because there was an i/x? Its not helping me.

<<taking instruction>>
EW - it's relevant because a claim they admitted, the i/x and how it took place, the contents of the i/x.
J - how can I assess if I haven't seen the report
EW - I have not seen the report, we did not have a full trial we don't have all the documents to

hand that they would have used.
J - anything relevant to my judgment should be in the bundle. So they appointed an investigator who produced a report that the party rejected.
EW - it's a process that creates an injury to feelings...
J - maybe the process wasn't fair

and I'm proceeding on that basis. But I can't see how that's unfair or discriminatory. Or the fact that their report was unfair or discriminatory. And then that report was rejected by the party because it was wrong.
EW - but an individual can still have an injury to feelings

from the process.
J - how is that an injury
EW - because that person was described as transphobic
J - I can't see how I'm going to give judgment today, given the vast amount of paperwork today and the difficulty of connecting it.
EW - the LD admitted all of claims and didn't

argue any of them, so we have to ask for damages based on all of them.
J - you have been asking for damages at the top of bands as if this the very worst type of discrimination suffered
EW - not technically the very top, which is £45.6
J - that is quite flippant

EW - we suggest that C's depression and her age is a factor that should be taken into consideration, if she loses time on her parliamentary career.
I am going to conclude.
We believe that she should receive the £45k for each claim, different defendants, they have not struck

out or consolidated those claims. We believe the injury to feelings award should be £45k. I am completed.
J - I'm going to need help from both of you, on the Vento bands (awards given in employment tribunals for injury to feelings)
J - where can I find Vento in the bundle

NR - everyone cites it but no one submits it.
J - is it in someone's skeleton.......where does it say 'the public must have respect'
NR - that's Johnson, it is in the bundle, para 73?
J - it doesn't seem to have para numbers in my version
NR - page 81,

J - awards should have some broad general similarity to awards in personal injury cases,.....should bear in mind the need for public respect for the level of awards made. I thought we should look at this. There is psychological and psychiatric damages section that seems

relevant. Does anyone have this?
NR - I mention in my skeleton.
J - it seems to be that this case, in this connection, it's hard to set hurt feelings than psychological or psychiatric damage. We are looking at something less severe or moderate bands.

EW - we were looking yesterday at Herath...
J - that is to do with increasing awards, not looking a proportionality of damages, we can't really compare hurt feelings like physical injury like lung disease or quadriplegic.
EW - we're not trying to do a direct comparisaon

J - looking at mental anguish for example, the award for a parent that knows a child is going to die is £5k. That seems much worse than hurt feelings.
EW - duration is important here and took place over years not months.
J - we are trying to be objective and make an award

that would be seen as commensurate with the injury.
EW - if I may take you to extracts of the Vento this is where we are, top band between £15-£20k (2003) amounts need to be inflated. This harassment happened over a long period of time.
J - but it wasn't the party it was the

activists.
EW - there has been a lengthy process of harassment of C by the party, they admitted this.
J - the party cannot be responsible for actions of every single member.
<<now discussion of how membership works>>
EW - what is relevant is that ND's complaints about

the behaviour of activists over time are ignored and those individuals were not punished that is a campaign by the organisation.
NR - giving a reference to a case,
<<Judge reading>>
NR - now about comparison to personal injury, and stress related injury.

NR - the second point is MLF quite properly withdrew questions about 2024, but then introduced it by way of submissions. This claim is not about discrimination up until 2024, the last pleaded claim until 2021.
J - but the hurt feelings continued.
NR - hurt feelings can

continue until 2024 but only on the acts that were pleaded. Can I take you to the claims that were admitted.
J - I've looked at this a number of times.
NR - there is misunderstanding about what has been admitted, much of this is explanatory and start at para 81.

NR - i say this because MLF handed up a note that included references to paras included 79 onwards.
J - you're going on past what was agreed
NR - but MLF had 3 1/2 hours yesterday and I had 1 1/2, I think this is fair that I can have more time.

NR - the claims are admitted and there are detriments. The detriments then drive the injury to feelings, these are the same. Moving on to how to make the assessment: you have reference to the judicial college guidelines. On that subject, can I address you on Ali.

J - yes
NR - there are many more detriments here than in Ali. I say this case is over pleaded but there is another important distinction. Mr Ali was a spokesperson, essentially a shadow cabinet minister, a loss of real position. This is politics as a career rather than as a

member of a political party.
J - so the injury to feelings is greater because the loss of position is greater, I'm not sure that follows.
NR - you can see that the profile of his role, because of public tweets by party leaders, the scale of his claim was far greater

NR - the profile and the importance of the role is far different than the handling of a complaint of an ordinary member.
J - I want to be clear what you are saying, that was more serious because of the announcement to the public at large and merits public comment that shows

the importance of the role that he held.
NR - this is the problem with trying to compare cases, I accept there are more detriments in this case. Although Ali had other detriments that he lost on, the discrimination was at the heart of the case.

My main caution about Ali, you should address it from first principles. In terms of double recovery, I do not understand MLF's argument. Both claims are against the same party. It can't be said there are two claims.
J - I'm with you there
NR - even if I did understand the

case, I think it is simply wrong.
Now moving onto when an increased claim is allowed; the policy is to prevent the circumvention of the need to plead the case.
J - but you accepted that if the court had awarded damages higher than the amount plead, you would accept that.

NR - the touchstone is the question of prejudice to the D because of the pleading after admission.
It was said that C's feeling have changed, that is not how the application was made and there has been evidence as to the worsening of feelings, certainly not 4x worse.

NR - reading out averages of awards in employment tribunals.
J - Ms W would you like to only respond to NR's points.
EW - yes, there has been a great deal of publicity as in Ali
J - that's not what he was saying, the public profile of Ali was much higher.

EW - Herath demonstrates that there is no law that says an award can only be a certain amount, it is up to the judge.
J - but NR is saying that is appropriate when a new head of damage is introduced, but what takes this case slightly out of the norm, they accepted liability

on the pleaded case at the time.
EW - but it's in the cost schedule
J - this case has been badly pled in a number of areas
EW - they were aware of the potential figure of £45,
J - making an application after the admission of liability is a bit rich
EW - but not against the

rules. Those are my submissions.
J - I'm going to give you a judgment on the two procedural matters; the application and the double recovery. It's going to take me longer to deal with the damages because I haven't seen the underlying material and the case is difficult.

J - I'm going to rise and then come back and give you my judgment on that and then some of the cost points. I am conscious of the dis-proportionality of the pleadings in this case. The documents are not organised chronologically... can I give you a judgment before lunch or

should we come back at 2 pm.
Should we deal with all the costs at the end.
NR - I think it is better to deal with costs in one go.
J - the thrust of that is that I should not give the procedural judgments today but then hear the costs later. I'm happy to hear it now.

<<Judge is going to hear from advocates on costs>>
NR - my clients applied for judgment against themselves.
J - you made an open offer
NR - given the without prejudice correspondence that would have been fruitless
J - am I now disqualified from hearing anymore on this matter?

<<EW takes instructions>>
EW - can we wipe it off the record, can MLF withdraw it.
NR - yes, I shouldn't have said, and yes I withdraw it. On our costs - C did not reply to our application and plowed on, serving her witness statement.
J - this was 9 July,
NR - prior to PTR they

did not respond at all. PTR took place on 23 July. I was handed C's skeleton argument that day. C opposed the application on the grounds that it didn't contain a formal admission of the claims. That should have given rise to an email from C's solicitor to mine.

We would have responded and accepted and then we would not have troubled the court. We should get our costs because our application was successful and because of C's conduct was unreasonable.
J - so application successful, and C's conduct unreasonable

Is there a schedule of costs?
NR - yes, directs J to it.
<<this seems to be for hearing in July only)
J - Ms W?
EW - I was not here for that hearing, so I am bound by your order, I don't see how the D can discontinue a claim in the same way a C could discontinue.

EW - it is not for C to tell D how to draft and pursue an application. And they asked to discontinue without admitting liability.
J - you said the application no admission of liability ,
EW - the draft order does not contain any admission of liability,
J - how do you know

that. The court is declaring that D is in breach of contract and breach of the Eq Act.
EW - it says only to discontinue to save money and not to admit liability
J - you can't say that, they've admitted breach of contract and Eq Act.
EW - I know we are going round in

circles,
J - I hear your argument
EW - it was unclear to C how the application was going to work,
J - yes but the skeleton doesn't say 'we won't oppose if you admit liability'
EW - there is no application for summary judgment
J - that would have been even more bizarre

EW - yes it would. D sent application only 13 days before the 'pre trial review' PTR. We say you should be reading into the fact that the absence of admission of liability for claims,
J - was there any open offer made prior to issuing the application

NR - no open offer
J - no open correspondence? Because before the application there's usually an offer to settle.
<<barristers whispering>>
J - I don't want to hear about any without prejudice offers.
NR - can I speak
J - be very careful about what you are about to say

NR - if we were able to disclose WP (without prejudice) correspondence, we think we would recover all our costs.
J - a hypothetical - if you put that you would admit liability in those WP correspondence, that might be relevant.
NR - in my submission, if MLF says the context is

relevant then both of us can do it without context.
J - what both of you are saying is that there is no WP correspondence that you want to rely on.
EW - the application received only 13 days before the PTR, we have defendants that turn up to court and admit
J - they sent you

an application,
EW - taking it to it's bare bones, to have R provide 2 applications that they want judgment to be entered against them and they are successful in the application to be judged.
J - I see what you're saying. But there must be a way for liability to be conceded

and then it's only about damages.
EW - what we have here is two applications and they were unclear
J - but liability was conceded,
EW - it is not C's responsibility to clarify D's application
J - you're saying we didn't need to engage or respond

EW - that is between counsel.
J - you're saying we didn't have engage with them and tell them how to draft their application, so we didn't have to respond. You don't always help your case by making bad points Ms W.
EW - I'm instructed to restrict the draft order and am doing

so.
J - are you saying that if they had written to you the language in the application would you have responded, is that not a reasonable way forward
EW - i accept that would have been an acceptable way forward, but that is not what happened, it is an application that I have

never seen before and that didn't admit liability.
J - the claim is for breach of contract, discrimination and victimisation. I don't need to go into the details of that claim for today. At the beginning of July this year, the two claims, against the English membership and

the national Liberal Democrats. The claim at the time was for £10k for each claim. The costs were already rather high. D wished to curtail the costs and as a matter of proportionality and wanted to concede liability. They did so by issuing two applications (one per each claim)

seeking to be held against them and damages to be awarded in the future. This admission is taken to end the case limit the costs. It is hoped that agreement between the parties can be reached on damages. A PTR is scheduled. Applications are identical.
Judgment was entered

against the Ds. The wording of the order had changes made to it. It is common ground that there was no open offer to admit liability and agree damages. Applications are unusual but there was no other way under the rules to bring that claim to a conclusion. Ds were successful

because applications were successful and because C was wholly unreasonable because they did not engage with the applications. Indeed C opposed the application in a skeleton argument was handed to court on the morning of the proceedings. Opposed because they had not requested

summary judgment against themselves and lack of admission of liability.
J cont - what is said in response is that the application was inadequate that there was no express acceptance of liability. There was no obligation on C to point out deficiency of draft order the C

was entitled to wait until the PTR in 10 days and then oppose the order.
It seems to me that D's application has been successful. They were trying to end the matter of liability and they did that - we must look at the substance of what occurred.

Ms W has accepted that if there had been correspondence with the same language, they would have had to respond. This is a distinction without a difference. There was a very short period of time between the application and the PTR. But handing over a skeleton argument is not

effective engagement with the process. The D is entitled in principle to some costs, the issue is how much. There should have been correspondence. Now looking at the costs schedule. The claim is for £5K+, of that £1k is counsel's fees. Minimal documents.

Solicitors appearance at hearing is merely 3 hours. PTR would have gone ahead in any event, scheduling issues, etc. There would have been a hearing in any event. In my view, the Ds should have written this offer in correspondence and this work would not have cost any less.

It does seem to me that this is a genuine attempt to settle at least part of the claim. It should have been engaged with. I'm going to assess the costs at £2k from C to D. I'm reducing it right down because I'm disallowing court fees, counsel would have had to attend the PTR.

It seems to me that the solicitors costs have been claimed for the entire hearing, not just the attendance costs. I'm allowing £1k for preparation and for the first party of the attendances, I'm allowing the work on the documents, and I'm allowing an element of counsel's fees.

He had to deal with matters that he wouldn't have had to deal with had the C engaged with the applications prior to the hearing.
J - that is my decision, do you need any clarifications?
NR/EW - no.
J - what to do with the costs in the interim? I would say no payment

until after I have made final determination on costs. NR - how do you feel about that?
NR - we are okay with offset against costs or damages.
J - what are we going to do next? If I deliver my judgment orally, that will take an hour. How long do you need for costs arguments.

NR - I was surprised by how long submissions have taken.
J - the procedural matters are what took up the time.
NR - I think we need at least a day
J - say we start at 10 am, and allow an hour for judgment, then 45 minutes for costs for both sides,
EW - that's very tight

J - then we need time for the judgement, how about 4 hours? It seems proportionate to me. Thank you very much to both for your participation and help on the technical matters. I am not and will not express any views on the merits of Ms Bird's views. And should not

interpreted as endorsing or opposing her views.
I need a list of dates that you are jointly available.
NR - what period?
J - January as we only 3 days until the Christmas break. Shall we say from 6 January, as many dates as possible. Bear in mind that I'm supposed to give

judgment within 3 months. No one wants this to drag on. It's a disciplinary matter if it drags on. Please give me as many dates as possible.
Thank you.
Court rises.

@threadreaderapp unroll please