Baker: Judge rules claim a fishing expedition
A barrister’s claim that hundreds of people accessed details of a complaint about her held by the Bar Standards Board (BSB) has been struck out by an employment tribunal (ET).
Daphne Baker alleged that, as a result, working as a barrister became impossible.
It marks the latest stage in a dispute stretching over 15 years – Ms Baker was previously reported under her maiden name, O’Connor, and used her middle name, Portia.
We have been chronicling her dispute with the regulator since 2012, when five misconduct findings made against her by a disciplinary tribunal – relating to events in 2010 – were overturned by the now-defunct Visitors to the Inns of Court.
Ms O’Connor, who is black, claimed compensation from the BSB and it took the Supreme Court in 2017 to decide that her High Court Equality Act claim was not out of time. The case returned to the High Court in 2019.
She separately brought an ET case concerning the handling of the original complaint – and two complaints that followed it and were dismissed shortly after the Visitors’ ruling – but this was ruled out of time in 2020.
In 2021, the pair reached a settlement under which Ms Baker discontinued the High Court action and withdrew any extant ET applications.
However, in August 2023, she issued a fresh ET claim for direct and indirect race discrimination, race-related harassment and victimisation over the handling of complaints against her; she can sue the BSB in the ET under the Equality Act.
Last year, Employment Judge Smart in Birmingham struck out all the claims of harassment for want of jurisdiction – because they did not relate to “the conferment of a qualification”, in this case the award of Ms Baker’s practising certificate – and one other allegation which he considered res judicata. He upheld the decisions on reconsideration.
The latest ruling saw Judge Smart dismiss some of the claims – about the BSB encouraging and assisting Ms Baker’s neighbours to make complaints about her – on withdrawal and then consider the barrister’s latest effort to properly particularise an allegation that between April 2018 and August 2023, “unknown individuals” accessed the complaints material about her that the BSB held.
In his December 2024 ruling, Judge Smart said this claim appeared to be “hopeless” because it had no date for the causes of action and did not specify any alleged perpetrators. He gave Ms Baker a chance to particularise it or face it being struck out.
In response, Ms Baker said the material had been sent to the BSB “by a malicious complainant, unrelated to the law and the legal profession”.
She went on: “The complaint was treated as without merit, but the letters and documents sent to the respondent by the complainant was kept for five years and was accessed by hundreds of the claimant’s staff, servant, agents, and associates, which includes many serving members of the judiciary and members of the bar.
“As a result, attending court and working as a barrister became impossible for the claimant.”
She argued that this was done because of her race and/or because she had done a protected act.
Ms Baker described her claim as “akin to a file being left in Costa Coffee for anyone to see”, but the judge said in a newly published ruling from November this was just an “assumption”.
He explained: “She does not have any basis for supporting that assumption because she admitted she doesn’t know how the information was stored or by whom or how it was accessed or by whom. The claimant could not provide any reasonably precise dates.”
Ms Baker said the situation could be solved by the disclosure process but Judge Smart considered this a “fishing expedition” – and one she was asking the BSB to conduct for her by going through five years’ worth of documents.
“It is not fair or just that the respondent be used in that way to essentially investigate itself, identify possible complaints against itself and deliver that potentially self-incriminating/implicating information to the claimant to support her in properly pleading a claim against it,” he said.
The judge concluded: “The claim is, in my view, hopeless and a fair trial of it is impossible. It is one of those rare cases where a striking out a discrimination claim is appropriate.”
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