Chambers ordered to pay barrister £20,000 in costs after tribunal claim

Bailey: Immense gratitude to crowd funders

Garden Court Chambers (GCC) has been ordered to pay former member Allison Bailey costs of £20,000 following her successful employment tribunal claim against it.

The tribunal decided to make the order – the most it could make by way of summary assessment – because of the set’s “unreasonable conduct” in the preparation of the bundle.

In several respects, the tribunal said, “it went well beyond normal disagreement”.

Last year, Ms Bailey was awarded damages of £22,000 for injury to feelings over the way GCC handled complaints about her gender critical views. The tribunal found she was discriminated against or victimised in two out of five alleged detriments.

However, it rejected Ms Bailey’s claim that LGBT charity Stonewall had directed GCC’s investigation process, although she is appealing this.

The substantive ruling, which followed a 23-day hearing, explained how the main hearing bundle was “exceptionally difficult to work with”, saying “it seemed to have been randomly thrown together”.

Sections were not OCR readable, the tribunal explained, while over 600 pages of GCC disclosure were not in the main index but in a 13-page sub-index inserted between pages 374 and 375.

Among other problems were that pagination from earlier bundles had not been removed, pages had been inserted sideways, “email exchanges could be 2,000 or 4,000 pages apart”, and there was “frequent duplication of the same emails or tweets”.

In the costs ruling last week, the tribunal went into what went wrong with the bundle in more detail and placed most of the blame at GCC’s door.

“We concluded that the process started well, but that the respondent for whatever reason did not recognise the difficulty of some of the points the claimant was pointing out,” it said.

At several stages, GCC’s “accusations and attitude to the claimant’s solicitor was unmerited and unhelpful, though for a time the claimant’s team kept going with stoic goodwill”.

There was one occasion when the claimant’s solicitor accused GCC’s solicitor of having a tantrum. “We did not consider that this was insulting to women, rather than men, and moreover was the only example of a failure of courtesy of which she was repeatedly guilty,” the tribunal found.

“Some derogatory language under pressure, though deplorable, is not of itself unreasonable conduct, but it tends to underline what was (not) going on, which in our view was unreasonable conduct.

“There were some real problems in how the bundle was being put together. The respondent’s solicitor was not prepared to address them in a constructive way, sometimes not at all.”

The tribunal could not say whether this was caused by a lack of resources or personality. “The latter comment is prompted by her complaints that she should not have to be putting the bundle together followed by stubborn refusal to allow the claimant to take over.”

It concluded that a costs order was justified because of the “serious impact” the bundle had on the claimant’s preparation for the hearing.

Ms Bailey sought costs of nearly £123,000, plus £65,000 for the costs of the costs hearing. Her total costs for the liability hearing were £766,000, compared to £676,000 for GCC.

To award costs of more than £20,000 would require a detailed assessment and the tribunal decided not to do so.

Its reasons included that “summary assessment will provide a clean break and an end to litigation, at any rate for Garden Court” and that Ms Bailey did not succeed in a large part of her claim against GCC.

It noted that, “judging by the publicity surrounding the claim, her particular target in this litigation was Stonewall”.

The task of preparing the bundle was “complicated by the number of different claims and extra parties, not all of which have been successful”, and so it would be “disproportionate to hold that all the extra costs of putting the bundle together should be paid by Garden Court”.

The tribunal also rejected GCC’s application for costs in relation in relation to two of the three parts of the claim on which Ms Bailey did not succeed.

Ms Bailey, who retired from practise at the Bar in March, wrote on her personal website: “This [£20,000] was less than the amount that I had sought, and a lot less than the total amount Garden Court’s unreasonable conduct cost me, but I am pleased nevertheless that the tribunal recognised that blame for the bundle did not lie with me…

“As with the damages I received for Garden Court’s discrimination against me (including aggravated damages), the legal costs I have had to incur are more than the amount that I have received. But this case has never been about financial awards.

“If that were the case, I would never have been able to pursue it, because I would never have the resources to match Garden Court and they could have just outspent me to a point way beyond the maximum level of damages that any tribunal could award any claimant.”

Ms Bailey raised £551,000 in crowd funding from 9,043 backers. She said: “It is extremely difficult to adequately express the immense gratitude I feel to everyone who made a contribution, or to express the sense of responsibility and duty I have to ensure that those contributions result in a meaningful and important conclusion to this case.

“I believe I have fulfilled that duty so far with what we have achieved to date, and I hope that the costs judgment will allow people to see some of the behind-the-scenes work that my lawyers and I have had to do in order to achieve it.

“Going forward, I will not need to reopen the crowd fund again thanks to the immense generosity of a dear friend.”

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