Allison Bailey v Stonewall

From TT2

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?

From TT2

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

... not a direct threat ...

So was it an indirect threat?

From TT2

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.

From TT2

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

From TT2

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.

From TT2

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

From TT2

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.

Yesterday it started at 10:30 so I expect today will be the same.

Has this started yet? On the YT channel, I can just see yesterday's recording

[I will attempt the impossible and paste Darlington nurses too, so.bear with me]

From TT2

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.

I’ll be missing this morning’s excitement(s) as I’m off to a hospital scan, but will hopefully catch up later.

@fanOfBen yes i agree with you (IANAL)

would add that Ben submitted that he wouldn't even be there if say it was about race for eg.

I got bored with respondents argument as seemed to amount to an issue of free speech on the part of KM,

Oh the irony of that defence!!!!

Having rewatched bits of what I'd dozed through, I think I understand a bit more, though still not that much. At 1:04 in the second yt video, IO starts her presentation by explaining that the respondent's position is that BC's case was "an attempt to challenge the findings of facts made by the ET by dressing them up as points of law". This is important because this court of appeal is not supposed to be considering facts, I think - it's supposed to trust the ET to have determined those, and to be considering law only. At the ET, both sides seem to have been looking for "but for" causation plus "the mental element" in KM's complaint causing a detriment to AB. What that "mental element" needed to be, if anything, seems to be part of what BC was talking about, but I'm legally out of my depth here. It's related to the different requirements in the case where B's discrimination against C is direct vs indirect, and both were at issue at the original ET, so one would have to get that clear to understand fully what's going on here. As a matter of fact, the ET found

377. As for causing, in the “but for” sense it is true that if Kirrin Medcalf had not written, Maya Sikand’s report would have been limited to the original batch referred, which she would have dismissed without investigation. The email was the occasion of the report, no more. Was the letter an attempt to cause discrimination against the claimant? We concluded that it was no more than protest, with an appeal to a perceived ally in a ‘them and us’ debate.

but this seems to be in conflict with their also have accepted KM's evidence

369. Challenged on why he was not more specific about what he wanted, he said he had “had his advocacy hat on”, which we understand to mean that he was writing to protest about her views (stated to come from a member of Garden Court) and put the case for trangendered people. In other words, he wrote without any specific aim in mind except perhaps a public denial of association with her views.

He was, I think, denying that he wanted to get AB ejected from chambers, and the ET accepted that - but a public denial of association with her views would also have been a detriment, so the two passages above do not seem to be consistent. Whether that is fact or law is too deep for me...And if I understood correctly, BC was arguing that in fact it doesn't matter what KM's intentions were anyway, or indeed whether they were accomplished - it's enough, he argued, to read the complaint objectively and see that it is, in fact, most naturally read as an attempt to induce GCC to act against AB.

Looking forward to hearing lawyers' interpretations of all this at some point!

Just watching in YT right now ahead of deciding which tribunal to tune into later.

Ben Cooper is stunningly good - so eloquent and clear.

Very different approaches from the 2 barristers today. Ben all about the law - statutes, authorities, arguing for specific readings. And on the other side almost entirely restating the evidence put before the original ET and what they made of it (surely the reason it's in this court is because their interpretation is disputed, so can't be taken as gospel), with a smattering of 'Kirrin was new and Stonewall wasn't asked to do the the actual investigation' - which seem to be entirely irrelevant points.

Leeches are blood. Dead tissue is maggots.(which have handy anti-gangrene antibiotics in their saliva). Sorry you didn't get any wriggly friends and had to make do with a surgeon with a hosepipe, but I hope it does the trick anyway.

<sends healing sleep vibes to MyrtleLion>

Wishing you well Myrtle and hoping you are home and in a comfy bed very soon. I am both in awe of your ability to post, post-op and enormously grateful. Sending rest & healing powers.

Given the NHS bed shortages they should be trying hard to get you home but with so much to arrange tomorrow is probably too much to hope for. So much better to be in your own bed!

I also wanted leech therapy but they only eat dead tissue. Mine was infected but not necrotic for the first operation on the 10th and was clean today, so they just tidied it up.

It was really minor surgery today and the infection has been very well managed, so I was fine - I did get a little sleepy towards 3.30, though.

Last time I had a raging infection that had progressed beyond the wound into the rest of my body. They had stopped my antibiotics because the metal in my ankle would just reinfect me and become resistant. So I was very unwell and threw up a few times in the first few hours after surgery. There is no way I would have been available to even read the thread.

I've now had 11 days of intravenous antibiotics and a VAC machine keeping the wound clean and nourished so this op was quick and I was stronger.

I now have to wait for the outpatient antibiotics team to be set up to support me at home for the next four weeks. I also need the physiotherapist to assess my mobility needs, taking into account the need to elevate the leg for at least two weeks (back to where we were in August and September) to support the newly stitched wound, and the ongoing ankle fusion. I would like to be home tomorrow, but it may be Thursday or even Friday.

Myrtle I really hope this will solve your problem with the wound but I was rather hoping they'd put leeches onto it and they would appear in the Bluestocking in due course. https://www.woundsource.com/blog/leech-therapy-applications-in-wound-management

The one and only time I've been given morphine and a GA there is no way I could have done what you are doing.

I'm not really following the legal arguments, something to read slowly another day.

He asks IO some interesting questions towards the end.

I have just finished watching the morning session where the lady Judge was praising whoever had prepared the electronic bundle and was commenting on how well put together it was and she had never seen that before. All the while the judge was speaking IO was nodding along and smiling as if she had done it, until BC commented that it was him.

What a CF.

I managed to catch most of BC's session, but I'll need to re-watch Stonewall's barrister as I dipped in and out of that. From what I did catch, she didn't really have the same level of flow or oratory as BC, and didn't seem quite so sure of things in her responses.

IANAL, but it seems quite straightforward to me. I think Ben did a good job of laying it out and the female judge (sorry, I can't remember her name!) appears to be on top of it. I'm less convinced by the central jude (older man), but that may not have been helped by his microphone as I could barely hear his input.