Mr D P Herbert OBE v Secretary of State for Justice and others: 2200411/2016 and others

Case Numbers: 2200411/2016 2206052/2017 2208124/2017 EMPLOYMENT TRIBUNALS Case No 2200411/16 (“Claim 1”) Claimant Mr D P Herbert OBE Respondent: Secretary of State for Justice Case No 2206052/17 (“Claim 2”) Claimant: Mr D P Herbert OBE Respondents: 1. Secretary of State for Justice 2. The Honourable Mrs Justice Elisabeth Laing 3. Lord Thomas (former Lord Chief Justice) 4. Liz Truss MP (former Lord Chancellor) Case No 2208124/17 (“Claim 3”) Claimant: Mr D P Herbert OBE Respondents: 1. Secretary of State for Justice 2. The Right Honourable Lady Justice Gloster 3. Mr S Parsons PRELMINARY HEARING IN PUBLIC Heard at: Before: Leeds On: 12, 13 September 2019 Employment Judge Davies Representation Claimant: In person Respondents: Mr B Cooper QC with Mr R Moretto (counsel) RESERVED JUDGMENT Claim 1 1. The complaint in Claim 1 about declining to respond to an invitation for early conciliation is dismissed on withdrawal by the Claimant. 2. By consent, the Lord Chief Justice is substituted as the correct Respondent to the claims relating to allegations 2 to 4 in the agreed list of issues in Claim 1 and the Claimant withdraws his application to join other named Respondents to those claims. 3. The application to join the Nominated Judge in judicial complaint 22092/2015 and the Judicial Conduct Investigations Office (“JCIO”) as Respondents to the claims relating to allegations 1 and 5 in Claim 1 is refused. 1 Case Numbers: 2200411/2016 2206052/2017 2208124/2017 4. The claims against the Secretary of State for Justice in allegations 1 and 5 in Claim 1 have no reasonable prospect of success because the Secretary of State for Justice is not the correct Respondent under the Equality Act 2010. Those claims are therefore struck out. 5. The application to amend Claim 1 to substitute the Lord Chancellor as Respondent to the claims relating to allegation 7 is allowed. The application to amend Claim 1 to join the Lord Chief Justice as a Respondent to those claims is refused. The application to strike out the claims relating to allegation 7 is refused. 6. Claim 1 will therefore proceed as a claim against the Lord Chief Justice in respect of the claims relating to allegations 2 to 4 and a claim against the Lord Chancellor in respect of the claims relating to allegation 7. Claim 2 7. The Lord Chief Justice is substituted for the Third Respondent and the Lord Chancellor is substituted for the Fourth Respondent to Claim 2. 8. The application to amend Claim 2 to join the Disciplinary Panel in judicial complaints 22092/2015 and 22178/2015 (“the Disciplinary Panel”) as a Respondent to the claims relating to allegations i, ii, and vi is allowed. The application to amend Claim 2 to join the Disciplinary Panel as a Respondent to the claims relating to allegations v and vii is refused. 9. The claims against the Secretary of State for Justice and the Hon Mrs Justice Laing in allegations i, ii, v, vi and vii in Claim 2 have no reasonable prospect of success because they are not the correct Respondents under the Equality Act 2010. Those claims are therefore struck out. 10. The application to join the Lord Chief Justice as a Respondent to the claims relating to allegation viii in Claim 2 is allowed. 11. The application to strike out the claims relating to allegations i, ii, vi and viii in Claim 2 on the basis that they have no reasonable prospect of success is refused. 12. Claim 2 will therefore proceed as: 12.1 Claims against the Disciplinary Panel, the Lord Chancellor and the Lord Chief Justice in respect of allegations i, ii and vi; 12.2 Claims against the Lord Chancellor, the Lord Chief Justice and the Secretary of State for Justice in respect of allegation iv; 12.3 Claims against the Lord Chancellor and the Lord Chief Justice in respect of allegation viii. Claim 3 13. The claims against Mr S Parsons in Claim 3 are dismissed on withdrawal by the Claimant. 14. By consent, the JCIO is joined as a Respondent to the claims relating to allegation (1) in the agreed list of issues in Claim 3. 15. By consent, the Nominated Judge in judicial complaint 25979/2016 is substituted for the Rt Hon Lady Justice Gloster as Respondent to the claims relating to allegation (2) in the agreed list of issues in Claim 3. 16. The claims against the Secretary of State for Justice and the Rt Hon Lady Justice Gloster in respect of Claim 3 allegation (1) and against the Secretary of State for 2 Case Numbers: 2200411/2016 2206052/2017 2208124/2017 Justice in respect of Claim 3 allegation (2) have no reasonable prospect of success because they are not the correct Respondents to these claims under the Equality Act 2010 and those claims are therefore struck out. REASONS Introduction 1.1 This was a preliminary hearing in public to decide the issues set out in the Order made by REJ Robertson dated 1 March 2019. Those issues fell into two categories, which can be summarised in broad terms as follows: 1.1.1 Issues relating to the identity of the Respondents: are the correct Respondents named? If not, should the claims against those Respondents be struck out on the basis that they have no reasonable prospect of success? Alternatively, should the Claimant be allowed to amend the claim to name a different Respondent or Respondents? 1.1.2 Issues relating to prospects of success: should particular complaints be struck out on the basis that they have no reasonable prospect of success? Alternatively, should the Claimant be ordered to pay a deposit as a condition of continuing with them, on the basis that they have little reasonable prospect of success? 1.2 I make clear at the outset that these issues do not raise questions about whether judges, or any group of judges, are above the law. Nor do they raise questions about whether, if someone in the Claimant’s position has been a victim of race discrimination, he or she should have recourse to the law. That is not to deny or undervalue the personal and historic context that the Claimant articulated in his submissions. But it is no part of the Respondents’ case that the Equality Act 2010 does not permit complaints of discrimination such as these to be brought. Rather, the issues before me concern the question whether the Claimant has brought his claims against those who, under the Equality Act 2010, are legally responsible for the acts he complains of and, if not, whether he should be allowed to amend his claims to name those who are legally responsible. 1.3 At the hearing, the Claimant represented himself. The Respondent was represented by Mr B Cooper QC with Mr R Moretto. 1.4 The Claimant has experienced ill-health. I indicated that I would take a break every hour and reminded the Claimant to ask if he needed a break at any other time. He did not identify any other adjustment that would assist him. 1.5 I was provided with an agreed file of documents for today’s hearing. In addition, the Claimant attended with a further file of documents. He referred to some of those documents during the preliminary hearing and the Respondents did not object to his doing so. I was also provided with written skeleton arguments and authorities by both parties. 3 Case Numbers: 2200411/2016 2206052/2017 2208124/2017 1.6 At the start of the preliminary hearing the Claimant made an application for disclosure of documents and emails naming him that emanated from Gloster LJ between April and October 2017. He requested that such documentation be provided by the following day. He suggested that Gloster LJ and the judges the subject of his claims were “social and judicial buddies” and that such correspondence was likely to be significantly damaging. That was relevant to whether the claims should be struck out. I refused the application. It was made for the first time at the preliminary hearing. The Claimant did not identify any particular document or basis for contending that the material he was seeking would support his complaints of discrimination, beyond speculating that it was likely to be damaging because the judges were friends socially and judicially. The nature of a strike-out application was frequently that it took place before full disclosure had taken place. Tribunals are regularly reminded of the need for utmost caution before striking out discrimination claims, in part for that very reason. The fact that full disclosure had not yet taken place would be one of the factors on which the Claimant would no doubt rely in resisting the strike-out application. It would not be consistent with the overriding objective to order disclosure at this stage. 1.7 On the first day of the preliminary hearing, Mr Cooper QC raised an issue about disclosing the identity of comparators named by the Claimant in his discrimination complaints. He indicated that disclosure of their identities might be precluded by provisions of the Constitutional Reform Act 2005. The Claimant said that he did need to refer to those comparators by name. I therefore invited the parties to present full argument about this point on the following day. However, Mr Cooper QC did not pursue the matter. In the event, I did not find it necessary to refer to the comparators by name. 1.8 The file of documents for the preliminary hearing included agreed lists of issues in Claims 1, 2 and 3. Those lists identify seven broad factual allegations in Claim 1, seven broad factual allegations in Claim 2 (numbered i, ii and iv to viii) and two broad factual allegations in Claim 3. Those are the allegations I considered at the preliminary hearing. Different (and multiple) complaints under the Equality Act 2010 are said to arise from each allegation, e.g. direct race discrimination and victimisation. Outline chronology 2.1 In order to set the issues to be decided at the preliminary hearing in context I need to set out an outline of the chronology giving rise to these claims. I have not heard evidence and these are not findings of fact. Rather, they are intended to summarise relevant parts of the chronology. 2.2 The...