Allison Bailey v Stonewall

[impossibletoday]

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

From TT2

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

@fanOfBen @Bannedontherun
Agree, well summarised, fan.

The free speech point by IO is actually a fair one - I think she was saying that the mere expression of GII views or objecting to GC views can't/shouldn't count as unlawfully discriminatory. Because we should be able to express our views and say we think GII is pure woo.
I think the argument that the discriminatory action is foreseeable given the terms in which the "protest" email was expressed and the relationship between SW and GCC might be the clincher here, despite the finding that it was not explicitly inciting or asking for disc treatment. That there is no necessity for an intention on the part of SW/KM seems to be agreed law. Also seems hard to argue that s111 was meant to be narrowly interpreted, because if it was, what would be the point of it?

From TT2

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?

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.

I think Stonewall tweeting that AB was outrageously transphobic and what are GCC doing is fundamentally different to Stonewall emailing GCC and saying it.

A tweet is a protest, an email is a threat/instruction.

From TT2

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

Did Stonewall actually tweet the same things that appeared in their e-mail to GCC?

I know - I'm saying that the point IO was making was correct, not that it actually applies in this case.

From TT2

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.

////// End of thread

I don't think so.

This is the core of it, here:

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.

(My bold)

If they did - could there be a defense that were just reinforcing or highlighting their public stance?

From TT2

Thread 2 AB vs SW

IO: A diff ET may have made a different decision doesnt mean this ET was wrong
LW: Unless they erred in law.

IO: If the parties had put an approach as to how provisions should be interpreted you cant go back on that
LN: I do follow but its really about the language of causation and its not obvious to me we are helped on that

IO: It would be wrong to suggest every conceivable argument was put by each side
LB: It was a 4 week trial. We are conscious we are focussing on a v small part of the case. Thats not itself an answer
IO: No but it does provide some explanation as to the paucity of detail in the

reasons.
LB: Yes
IO: I know that this court will be very familiar with the caution expressed by appellate courts when looking at first instance decisions. Equally, principles apply that ETs sometimes use inapt language but we do not presume they have got it wrong.

No because there is no attempt or intention in the offence. Either A (Stonewall) did something that B (GCC) followed up on because A did the thing, or B did the thing without influence from A.

IMO and IANAL, if A had just commented publicly it would be much more difficult to say GCC discriminated against AB because of the tweet. But Stonewall emailed GCC about it and if GCC wouldn't have discriminated against AB but for Stonewall's email, then Stonewall is guilty.

From TT2

LN: In this case the key sentence is 'the email was the occasion of the report no more' but its not expanded on.
IO: In context, there were 14 separate allegations
LB: So this sentence means its part of the history but not the cause
IO: Yes.

I thought hard like BC as to whether one could induce and not cause my lady and could not come up with any examples.
Moving on to the meaning of causation in a more structured way. What the test is in relation to these subsections.

The reading in of 'bc of a PC' is not an appropriate or effective solution to the problems we have. BC says the purpose of the EA is to counter evil of discrimination and provide remedy. Its not a remedy for any act or ommission its confined. He has amended his analysis on basis

of stability and cohesion. This is illusory bc did bc of a PC, A do something that caused B to contravene one is till not the wiser as to whether there is liability. Thats bc a court has to assess the nature of the thing that is done. That always has to happen.

From TT2

In criticising the limit Mr Justice Bourne offered in the EAT re the fair, just and reasonable assessment, he said it was too uncertain. My sub is there has to be a weighing up here. That is something that courts are used to its what they do. In terms of the things that might

make a difference then clearly eg racist views would move the dial but its not an answer in and of itself. If it were BC's but for test is elevated above any other test. In the sphere of tort there are a number of diff ways that causation is considered. Not simply but for.

It feels to me that concentrating on KM's email may miss the point that SW were campaigning and pressurising organisations all the time; the email was not isolated from SW's overall actions through the Diversity Champions scheme.

[Apologies, visit from physiotherapist]From TT2

LW: On your case, the just fair and reasonable, that is part of what [inaudible]
IO: My sub is it is what they do look at
LN: Does fair just and reasonable inform?
IO: Yes. I was going to say depends on intervening act but clearly s111 absolutely anticipates intervention

LW: Tort law has its fuzzy edges. We are nosing towards the same basic principles that liability falls where it ought to fall. You accept that this does form part of the analysis?
IO: Yes and in that case they were dealing with remedy issues. So 1st stage and 2nd stage is ahead

of us. But analysis of 2 stages is still helpful. 1 but for 2 weighing.
LB: Sense of what is fair and just?
IO: Yes. Range of factors.

LB: SH part in this story is not an intervening act but is part of what GC did to the C amounting to a contravention
IO: The ET characterises it as additional things that happened. Rightly or wrongly the ET considered the internal debate within GC took away from SW suggestion of

fault. It created an opportunity for harm.
LW: The way the investigation was carried out was problematic according to ET. Though SW action was reasonably likely to lead to investigation it was nothing to do with SW that GC did the investigation unfairly
IO: Yes

Nothing to do with SW and as a conscious decision by GC
LW: And intervention of ppl who should have not got involved with the process that offended the ET?
IO: Yes bc two ppl had views about AB's protected views.
LW: Legal responsibility did not lie bc SW was the occasion and no

more and there were intervenors. But we could use other analyses eg fair and reasoable.
IO: Yes that is the nub of it.

LB: Any other areas you need to cover that you havent?
IO: I should deal with the suggestions re the consequences of this appeal. One moment please. I have been passed a note that para 79 is what you had in mind page 105 my lady.

Turing to grounds of appeal. I hope that the way the respondent has identified its positions laid out are clear. Ive already talked about approach to reasons. Grounds 1 and 5 in part are dispensed with as para 360 tells us what the test is.

From TT2

In relation to KM email, ET conclusions should not be gone behind. Notion ET was preoccupied with KM intentions was bc of C's case which focussed on KM's intent.

So to see ET deal with this in detail in the decision is not evidence of misdirection. Its bc of how she put her case. If there is no misdirection as I submit, then we are left with a bare perversity appeal. I dont need to rehearse what is said about those.

In closing, there is sufficient evidence from what has been placed before you for you to be satisfied that a permissable conclusion has been reached on the evidence. There is no basis to go behind or overturn.

LB: Thank you IO
BC: Im going to focus on what the court has identified as the heart of the dispute.

BC: I will ref back to how C put the case in a nutshell. This might help to understand the structure of para 377. The way I put C's case in closing was two fold.

I said to the ET if they were to find that GC did discriminate by upholding SW complaint then since the complaint was influenced by C's beliefs then that would be sufficient to establish liability. That was on the basis of but for + significant of the characteristics of discrim.

The alternative case was to do with intent. Eg if claim against GC fails then stonewall attempted.

It may be when you come to para 377 that those two things are being reflected.

So we are left with the first two sentences as being the ET's answer to the claim having found GC did discriminate. On any view those two sentences dont answer the self directions at 360 which was consistent with what I had said was the correct approach.

If they were introducing the concept of an intervening act breaking the chain that was off their own back.

The q is whether what they said is an adequate disposal of the claim as a matter of law. In relation to the meaning of final sentence of para 369 we checked our notes and we cant find a passage that reflects that bit of the reasons.

We can only infer that its the ET finding that anything KM said in evidence. As to what it means, it cant be a ref to SW making an association via the complaint bc the whole of the passage is devoted to what KM wanted to achieve via GC. Also this was a private complaint.

Thirdly nothing in the ET findings suggests that SW was associated with AB or that KM thought SW was being associated with her views. He was concered about GC association with AB and t ppl going to GC

As I understand the Stonewall defence, it appears to be 'It doesn't matter that I pushed him, because he was going to jump anyway' with a side order of 'The first tribunal failed to explain their thinking, so we can't say they were wrong'.

And I'm not sure all her exasperated sighing helps her.

From TT2

So he had in mind perhaps GC saying they didnt agree with AB but no specific aim
LB: [inaudible] contravention of the act
BC: Depends on terms they said it. If they said AB is tphobic etc that would be a contravention.

LN: How do you fit 369 with 372? When ET says KM had not been looking for any action?
BC: ET is not saying KM expected them to do nothing just that he didnt have a specific action in mind save for a public statement

Moving on to stat interpretation. My submission is not about 'reading in' meanings. Cause has the ordinary meaning in law [refs authorities]. In addition to but for there will need to be additional features informed by fair, just and reasonable.

Additional features to be identified have to have reference to cause of action. So characteristics of discrimination
LW: And the characteristics are the influence point and the damage point. Who has to cause the damage?

Apologies, I've had lunch in hospital and some IV antibiotics.

Fortunately Darlington nurses is in private submissions and Maria Kelly vs Leonardo will be tweeted as a thread.

From TT2

BC: Yes, the influence point I think I can leave. The second aspect of direct disc. is less favourable treatment. Quite obviously KM would not have written this complaint if AB did not have this PC
LW: Thats the influence point. What is less favourable?

BC: He wouldnt have written it at all. Thats the easy bit. It does also entail an aspect of detriment
LW: So whats that? By A not by B to C? The causative act needs to cause damage in and of itself?
BC: No. A's act does not need to damage C. They just need to be in relation to C

LW: Yty we talked about cuplability on part of A but there could be an innocent A as we talked about yty
BC: My fault, I meant innocent as shorthand for actions which consist of discrimination

LW: You are nudging towards strict liability the moment theres a but for if PC etc. If something bad happens that is enough
BC: I am nudging towards that but thats not a strict liability bc of mental element direct disc. This is the fundamental point of dd.

If a person within sphere of Act does something bc of a PC which causes detriment, that is enough to give rise to liability for dd
LW: Ok prob me on a limb. Next question then but what next? Cant be that that creates the liability bc there are test around intervening events

BC: In my sub not in this case. It is enough that A acts bc of a PC. It will generally be necessary for it to be reasonably forseeable and but for causation. Those ingredients are sufficient by themselves.

LN: Thats a core issue, is there a role for intervening acts, novice acts
BC: Yes core issue. Court does not need to say will never be something that breaks chain of caustion but nothing about the intervening acts of B can break the chain of causation
LW: Why not?

BC: Inherent in s111 that B has done something which is culpable in the disc. sense for which B is liable. Clearly both A and B could be liable
LN: Suppose A does something with PC in mind and then it causes B to run in front of car that knocks him over changes his mental

From TT2

state etc.... so does not make sense that but for is good enough
BC: Yes thats why I say I dont need to go so far as to say there may never be an intervening cause. However, there it would not be Bs actions it would be the car.
LN: Yes but no sensible connection btw A and B

BC: There may be a role for intervening acts but still my answer would be a necessary part of the causal chain is an intervening act which has nothing to do with B

LN: Thats quite a novel intro to law of tort. Why should we be restricted to Bs act?
BC: Im not proposing this as a general intro to law of tort. The answer is that this is a specific and entirely unique, novel cause of action

From TT2

LW: You have to persuade us s112 narrows these concepts
BC: It does bc s112 itself contemplates B committing a basic contravention. In order for B to do this in relation to dd means B independently acts to C bc of C's PC.

From TT2

LB: Not the first inducing tort ... been around for years
BC: This provision is an amalgam and development of differing provisions in predecessor legislation. In light of FWS and need to look in EA in its own terms I wont take you through history. This is not like inducing

breach of contract tort etc where intention is important etc. It is a unique tort located in EA.

LW: You say not open to ET to conclude email was the occasion of the report.
BC: Yes
LW: That doesnt seem to be way case was put as ET thought it was open to them