Thread by @tribunaltweets2

Good morning. The appeal of Allison Bailey v Stonewall re-starts this morning at 10.30am. The proceedings will also be live-streamed here:
youtube.com/@RoyalCourtsof…

Our substack page for the case can be found here: tribunaltweets.substack.com/p/allison-bail…

Allison Bailey’s skeleton argument: allisonbailey.co.uk/wp-content/upl…
Stonewall’s skeleton argument will be added to our substack should it become publicly available.

Abbreviations for today's hearing:

AB - Allison Bailey, the appellant is also referred to as ‘C’ for claimant
SW - Stonewall Equality Ltd, the first respondent, also referred to as ‘Stonewall’

GC - ‘Garden Court’ will be used to refer collectively to the second and third respondents: Garden Court Chambers Ltd and Rajiv Menon KC and Stephanie Harrison KC sued on behalf of all members of Garden Court Chambers

BC - Ben Cooper KC, Barrister for AB
IO - Ijeoma Omambala KC, Barrister for SW
J - Judge (if unidentified which judge)
LB - Lord Justice Bean, Vice President of the Court of Appeal, Civil Division
LN - Lord Justice Newey
LW - Lady Justice Whipple

Our live tweeting is not a verbatim transcript. We attempt to report as much of what we hear in court as possible. We make every effort to report accurately and do so in good faith. We make frequent use of abbreviations: see the Substack page if meaning is not obvious.

We will correct any substantive inadvertent factual errors that are brought to our attention promptly. Our reporting is best understood when read as a whole.

Please note this session may be split across several threads for ease of roll up and archiving. I will indicate last tweet on a thread so you can find the next one.

We begin.

LW asking a question of IO.

IO: I had taken you through the tribunal reasons. The directions in relation to s111 and made the point it accorded with suggested approach from the parties below. We then looked at how the tribunal had weighed it

We had looked at KM email and paras in the judgment. The balance of paras 373 to 379 indicates the weighing of evidence to test its conclusions. My sub is that all of those matters were legit considerations. They formed the basis of the conclusion in para 390.

LB: Tribunal dont say what the sentence "I trust you will do what is right" meant. Any evidence on this?
IO: R position was that is wasnt a direct threat. Parties were polarised. The ET in dealing with the email dont focus on a partic. passage. See para 367 to 368.

They discuss one reading that she could be expelled but the ET appear to have concluded that it wasnt a threat. I say that by omission. In my subs its implicit by the balance of the judgment.

C told the tribunal that the email told GC to expel her. That was the position advanced by C. She also said SW used their immense power to try to detroy her. She called it a dangerous and vicious org.

LB: Was there evidence below as to how the recipients understood it?
IO: All I can properly say is that the claim iro the complaint and its outcome were rejected. The ET made findings that the investigator has not allowed herself to be directed by anyone.

The ET identify in their reasoning the extent to which GC engaged with KM email. They dont say how received.

In para 376 one sees some exploration of how GC saw the SW complaint. But that is the extent of the consideration by the ET

LW: ET says mere protest rather than threat. How does mere protest fit in with 360 and 361?
IO: The way C advanced her claim was explicit intention. Therefore in considering what KM did and the rationale one has to view it through that lens.

They are asking what was actually the cause of the basic contravention.
LW: They seem to be asking whether any wrongdoing by SW in 377
IO: They are looking at alternative bases of how put...
LN: So in terms of causation youve got the first two sentences
IO: Yes its the occasion

of an now more.
LW: Is your case that that was a sufficient conclusion ?
IO: Yes bc in the round one understands why C did not succeed. Bc the ET look at seq. of events and in their view causative matters did not relate to SW.

LW: In legal terms there was an intervening act by GC?
IO: Yes by the discriminatory investigation and decisions they made. The outcome of the investigation not the investigation itself that was the contravention

LN: They probably say KM didnt intend any consequence. Is it accepted by ET that ignoring KM intentions it was forseeable that the email would cause AB detriment?

IO: It is not reasoned out but implicit
LN: Which way round?
IO: They didnt think it was reasonably forseeable that the investigation outcome would be discriminatory
LN: However can you say they didnt think there would be no detriment to AB?

IO: The ET say it is not clear what KM was seeking
LN: Thats a different point.
IO: The potential outcomes were that all allegations upheld/some/none. No indication by ET to indicate that they thought it was likely that allegations upheld

LW: Lets put stake in the ground re protest. 360 talks about mental element. 1. What is your case on whether SW letter influenced by C's PC?
IO: Not a significant influence
LN: But was on the letter
IO: I dont think operative on basic contravention
LB: Stage 1 was writing of

letter due to PC. After that gets more difficult
LW: Can I pick up then para 361. The notion of SW conduct subjecting AB to detriment. What on your case is the detriment to be attached to the mere protest by SW?
IO: My position is there is no detrimen.
LW: Why?

IO: The email did not add to ongoing situation re AB. Already a consideration of her stance on social media and in public impacting of GC and its DC status. The letter does not add new elements to existing detriment.

LN: Are you back at 377? The reason you say no is one cant treat it in law as a detriment bc of intervening actions.
IO: Yes actors at GC too
LW: Are there 2 strands. 1. If you merely protest your own view that is an insufficent act for detriment. 2. If someone else interrupts

and is really discriminatory it rubs out the protest. Separate or same thing?
IO: Separate things. KM says he was protesting and advocating. I dont want to untether these elements. Those were the findings by ET.

LW: So you say a bit more than protest?
IO: Yes. There are two sides to the coin.
LN: Not sure it helps you. If you are advocating you want a result
IO: Not sure necessarily. Quite a lot of advocacy is just stating position, virtue signalling.

LW: There is this finding in 372. KM and SW werent looking for any action
IO: Yes that is a finding.
LN: Suppose someone makes a protest where it is forseeable that someone will do something detrimental to a 3rd person.

If the 3rd then does the detrimental thing is that alright?
IO: Not necessarily. Depends on nature of what A does.
Appreciate A is a cause of what B then does. Does depend on nature of what A does.
LN: So back to causation. So when you protest but dont intend but it is forseeable

then A is liable?
IO: Yes on causing.
LW: Why?
IO: Bc built into the q is the thing that A did that caused B. Theres a but for, theres a bc of PC and then the causation
LW: What is the damage from a protest w/o intent but is forseeable. Why is A liable?

IO: If there is a detriment to C then C has a cause of action.
LN: You mean the end result?
IO: Yes
LW: Am I looking for detriment caused by A in the actions of A? Then compounded by B's act?
IO: No that doesnt work.

A is not in a position to do damage to C.
LW: Neither sides submission has bought me clarity yet. If you had an innocent C with but for test but innocent then would not come within s112. Why not? Whats the dividing line?

IO: Yes I think that is what para 361 is saying. In terms A action must cause damage to C.
LB: Im not sure about that. I really havent made up my mind either. This is the heart of the case. Can we start with the detriment we are talking about: Detriment 4, the investigation

outcome. We can forget about instruction this is not that case. A must not induce B. Subsection 8 has ref to attempt. Attempt may not be successful but there is still potential liability. So the ET ought to be making findings

on whether causing or attempting to cause
IO: At para 361 that is what they do
LB: For an attempt, state of mind is critical

Its a conscious act. They find KM was not attempting. Whether the email actually induced or caused the contravention doesnt seem to me to require any particular intention on part of KM.

IO: The contravention is to do the thing. So as long as A intends to do the thing then that is sufficient. The causing pathway is less clear than inducement bc you dont need a partic outcome in mind.

LW: The thing here was the mess up of the investigation?
IO: It was the outcome not the fact that she was investigated
LW: Did SW cause GC to do that thing which was the outcome of the investigation?

IO: Yes
LN: Your case is they were entitled to arrive at that conclusion
IO: Yes.

They were 000s of pages of evidence etc for better or worse this is a distillation.
LW: You say its not a q of whether SW are A or not bc they probably do tick the boxes but the point here is the ET view that the cause lay with GC not SW.

IO: In relation to use of language of fault. That helps to shed light on what ET were looking for and what they found.
LB: I think BC will say its not a question of where primary fault lies. The whole scheme of s111 is that B is doing something wrong. Its not an answer to a claim

against A to say B is primarily to blame.
IO: Clearly the provisions anticipate liability for A and B. In practice when you consider what has happened you have to decide what things did and did not contribute to the contravention.

There is not a clear bright line but it is for the ET that hears the evidence to make that evaluation and that is what they have done.

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