Allison Bailey v Stonewall

[impossibletoday]

https://x.com/BluskyeAllison/status/1979480101474443398?t=Sg3wz-Pq2S7lpQ2rTpJZ2g&s=19

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.

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

Ben Cooper is stunningly good - so eloquent and clear.

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!

@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!!!!

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

[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.

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

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

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.

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

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

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

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.

... not a direct threat ...

So was it an indirect threat?

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

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

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?

From TT2

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

From TT2

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

From TT2

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?

From TT2

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.

From TT2

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

From TT2

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.

From TT2

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.

From TT2

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