Law centre volunteer “waived privilege” in advancing claim

CAB: Advice disclosed

A law centre volunteer waived privilege to legal advice he received from a Citizens’ Advice Bureau (CAB) that made it clear his race discrimination claim had “very poor prospects”, an employment judge has ruled.

Employment Judge Grewal said Mr E Mullings acted unreasonably in continuing to pursue the claim when it was clear that Ealing Law Centre was going to run “all the arguments” he had been warned about.

The volunteer complained of race discrimination in a claim form presented to London Central employment tribunal in October 2022, giving no particulars of the complaints against Ealing Law Centre but attaching the first half of legal advice he had received from Barnet CAB.

Judge Grewal said that the CAB’s solicitor set out four incidents which might give rise to “potential employment tribunal complaints”, but only if his voluntary work was protected by the Equality Act 2010.

She ruled last month that the tribunal had no jurisdiction to hear the claim because the relationship between Mr Mullings and the law centre was not covered by the Act.

Ealing then sought disclosure of the full advice and costs of £6,000 on the grounds that the claim had had no reasonable prospect of success and the claimant had acted unreasonably in bringing and continuing the claim.

The judge said Mr Mullings had disclosed part of the email from the CAB “intentionally and selectively to give the misleading impression that he had been given positive legal advice about his claim in general”.

She rejected his assertion that it was actually because he had only been able to upload one document with his claim form.

By disclosing half the legal advice, the volunteer had “waived privilege to the entirety of the advice and that fairness demanded that the other half be disclosed as well”.

The full letter backed up Ealing’s application for costs.

The judge said Mr Mullings was “not a man of limited education” – he had a degree in sociology and an MA in environmental law and sustainable development.

“I considered that having had clear legal advice about the very poor prospects of his claim he acted unreasonably in pursing the claim, and continuing to pursue it when it must have been clear to him that the respondent was going to run all the arguments about which his advisor had warned him and that it would be seeking its costs and that there was a chance that it would be awarded those costs.”

Furthermore, Mr Mullings had acted unreasonably in raising arguments based on section 55 of the Equality Act at the last minute, which led to the law centre incurring additional costs.

The judge said Mr Mullings had limited means and yet he had chosen to pursue the claim knowing there was a risk of costs being awarded against him – the law centre had told him it planned to do so.

“If the claimant’s means had not been limited, I would have made an order for him to pay all of the respondent’s costs.”

Instead, the judge ordered Mr Mullings to pay £1,000.

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