An employment tribunal has refused to strike out a claim that a chambers discriminated against a pupillage applicant even though it has “little reasonable chance” of succeeding.
Judge Moore in Norwich said striking out discrimination claims was only appropriate “in the very clearest circumstances” but she ordered that the claimant, D Warburton, pay a deposit of £150 to continue his claim against 5 Essex Court and Jeremy Johnson QC.
The chambers has since confirmed that the claim was then withdrawn.
Mr Johnson represented Hertfordshire police in a disability discrimination claim brought by Mr Warburton after his application to join the force was turned down.
Mr Warburton subsequently unsuccessfully applied for pupillage at 5 Essex Court, where Mr Johnson chairs the pupillage committee. Only two out of 250 applicants succeeded that year (2019).
He is claiming victimisation and disability related discrimination on the basis that Mr Johnson ensured that his application did not succeed.
The set anonymised all applications and for an initial paper sift sent Mr Warburton’s to Georgina Wolfe, a member of the pupillage committee.
Mr Johnson’s evidence was that, as chair of the pupillage committee, he received a reply from Mr Warburton to the acknowledgement of receipt of his application and recognised his name. He told the chambers administrator not to allocate the application to him and then emailed the Bar Council ethics enquiries service (BCEES).
Explaining that he considered Mr Warburton “thoroughly unsuitable” for selection as a pupil on the basis of what he learned in the case, he asked whether there was any reason why he should not draw Ms Wolfe’s attention to what he knew.
The BCEES replied that there was not. However, Mr Johnson said that in the end he decided it was better not to have any involvement and did not contact Ms Wolfe.
Ms Wolfe marked the claimant as only partially meeting criteria in respect of mini-pupillages, clarity and presentation, and genuine interest in chambers, while he had not identified any mooting, debating or advocacy experience, all of which had to be marked as fully met to proceed to the next stage.
Ruling on the chambers’ strike-out application, the judge said that while there was no rule prohibiting doing this in discrimination cases, “the authorities are clear that that course of action is only appropriate in the very clearest circumstances, such as where the claim is entirely fanciful or entirely speculative and there is no reasonable prospect of the facts required to establish liability from being established at trial”.
This was not the case here. The judge said Mr Warburton would have to show that Ms Wolfe permitted – or was persuaded by Mr Johnson to permit – the claimant’s dispute with Hertfordshire Constabulary “to taint her decision-making in circumstances where is there is no evidence she was aware of those issues”.
However, Mr Johnson’s exchange with BCEES potentially undermined this. “Given the e-mail evidence that [he] sought advice about doing precisely the thing he says he did not do, the witness statements cannot simply be assumed to be impregnable and the claimant is entitled to the opportunity cross-examine [him] and Ms Wolfe in respect of them.
“While I regard the claimant’s reasonable chances of proving his case as highly doubtful, I am not satisfied that he has no reasonable chance of doing so.”
But deciding Mr Warburton should have to pay a deposit, the judge said she saw “little reasonable chance of either of his claims succeeding”.
He would have to establish that both Mr Johnson and Ms Wolfe’s evidence was untruthful and that her marking of the application was tainted.
On the face of her evidence, “the marks do not appear to be without foundation”, Judge Moore continued.
The claimant would also have to show that Mr Johnson’s negative views of him were related to the fact of his having brought a discrimination claim against Hertfordshire Police and/or his disability, “rather than the other credible and non-discriminatory reasons” that the QC said he relied on.
In a statement, 5 Essex Court said: “5 Essex Court takes considerable effort to encourage applications from those from backgrounds that are underrepresented at the Bar.
“We continue to be committed to moving towards a demographic within chambers that is more representative of the wider community, primarily by recruitment at the pupillage stage.
“Our pupils have a broad range of backgrounds and experience, whether recent university graduates or those seeking a second career as a barrister. Chambers Student 2021 observed 5 Essex Court has ‘an impressive commitment to diversity and lots of female QCs’.
“We seek to highlight the diversity in chambers because research shows that it is a powerful factor in the decisions of many highly talented students from groups who are underrepresented at the Bar to apply to us.”