Ms C Langtry v Thomas Roofing (NW) Ltd: 2400261/2019

EMPLOYMENT TRIBUNALS

Case No 2400261/2019

Between

Ms C LangtryClaimant

Thomas Roofing (NW) Ltd The claimant has made an application dated 20 August 2020 for reconsideration of the judgment sent to the parties on 6 August 2020.Respondent

Date 5 January 2023

JUDGMENT

The claimant’s application is dismissed. This means that the judgment still stands.

REASONS

Background

[1]By a claim form presented on 14 January 2019, the claimant raised a number of complaints which depended for their success on the claimant establishing that she was either a worker for or an employee of the respondent. I had to decide on the claimant’s employment status. The claimant and respondent subsequently made reciprocal strike-out applications which I also considered.

[2]In a reserved judgment sent to the parties on 6 August 2020, I decided, amongst other things: 2.1. that the claimant had been an employee of the respondent under a contract of employment for at least the period 26 September 2018 to 31 October 2018; but 2.2. that the claim should be struck out for the claimant’s unreasonable conduct in forging an important document (which I called “the Disputed Document”) and attempting to cover up the forgery.

[3]The judgment was accompanied by written reasons (“Reasons”). At paragraph 151 of the Reasons, I recorded my finding that the claimant had forged the Disputed Document. I explained the rationale for my finding in a series of subparagraphs.

[4]One point I made at paragraph 151.6 related to a video called CL CT1.mp4. The video was significant. It showed a visual image of the Disputed Document. Mr Thomas was not shown on the video, but the transcript of the video included words from Mr Thomas, which would tend to support the claimant’s contention 1 of 11 that the Disputed Document existed at a time when the claimant and Mr Thomas were in a relationship. If that contention were true, it would have had some force in relation to the question of the Disputed Document’s authenticity. This was partly because, whilst they were still in a relationship, it is less likely that they would have been concerned with obtaining evidence to support future tribunal claims. It is also partly because some of the respondent’s arguments in relation to forgery stemmed from the fact that the claimant did not mention the existence of the Disputed Document until a late stage in the proceedings. The respondent asked me to infer that the reason why the claimant did not mention the Disputed Document when she presented her claim because it did not exist at that time. That inference would be impossible if there were video evidence establishing that, by the time of presentation of the claim, the Disputed Document had in fact existed for many months.

[5]At paragraph 130 of the Reasons I found that the video did not match the transcript. Mr Thomas could not be heard speaking. Without Mr Thomas’ voice, the visual image of the Disputed Document could not be placed reliably into the timeline in the way that the claimant would have had me believe. At paragraph 151.6, I mentioned this discrepancy as a factor in support of my finding of forgery. The application

[6]On 20 August 2020, the claimant applied for reconsideration of the judgment. Her application ran to 33 pages. The video

[7]Separately she posted a memory stick to the tribunal with a covering e-mail explaining that the memory stick contained a video. In her reconsideration application she explained that the new video was an enhanced version of CL CT1.mp4. The tribunal administrative staff replied to her that they were not permitted to insert memory sticks into the tribunal’s computer systems. The claimant was asked to upload the video onto a shared platform, but the claimant replied that she could not do so. Unfortunately, the sticking point over the playing of the video caused the reconsideration application to be delayed. The hearing on 23 March 2021

[8]Ultimately, in order to break the deadlock, I listed the reconsideration application for a hearing. This was not a reconsideration hearing under rule 72(2). The hearing was solely for the purpose of enabling the claimant to play the video to me on her own equipment, so I could then give preliminary consideration to the application under rule 72(1). The respondent was not required to attend and did not do so.

[9]In advance of the hearing, the claimant sent a number of e-mails to the tribunal. Attached to the e-mails were the following documents: 9.1. A document headed “Reconsideration Hearing Applicant 2nd Statement” and dated 19 March 2021; 9.2. A written application to rely on the contents of the bundle used in the Family Court proceedings, with the Family Court’s permission attached; and 9.3. The index to the bundle used in the Family Court. 2 of 11

[10]The claimant brought to the hearing a large black lever-arch file marked, “Reconsideration Bundle”. After some initial confusion about what had happened to it (for which I ought to apologise on behalf of the tribunal administration), the bundle was delivered to me. The Reconsideration Bundle ran to over 400 pages, of which the main bulk was the Family Court bundle.

[11]At the hearing, the claimant opened an audio file on her laptop and allowed me to play it out loud in the tribunal room. I cannot remember the file name, but the sound recording corresponded to the CL CT1.mp4 video.

[12]I listened to the recording three times. I paid particular attention to the end of the recording, where (on the claimant’s case) Mr Thomas said the words, “Yeah, I know.” During most of the recording there was loud music playing in the background. At the end of the recording, the music suddenly stopped and an indistinct voice said something inaudible. It was not possible for me to tell from the recording alone whose voice it was, or, indeed, whether or not the voice belonged to someone other than the claimant.

[13]At the conclusion of the hearing, the claimant indicated that she wished to rely on some further evidence in the form of bank statements. I set a deadline for that evidence to be delivered to the tribunal. My written case management order made it clear that my imposition of that deadline would not in any way alter the operation of the Ladd v. Marshall principle (see below). Further evidence

[14]After the hearing, the claimant submitted a further witness statement dated 29 March 2021 and headed, “Applicant Statement & Additional Evidence”. Accompanying that statement were 43 pages of additional evidence. Preliminary consideration on 4 May 2021

[15]I gave preliminary consideration to the application on 4 May 2021. I took into account all the material that the claimant had provided so far.

[16]Unfortunately, due to a further administrative error, the parties were wrongly informed that there would be a hearing on 4 May 2021 and were given a link to join the hearing on the Cloud Video Platform. The claimant connected to the hearing. When it was brought to my attention that the claimant was in the virtual tribunal room, I asked the clerk to inform her that there would be no hearing that day. The clerk passed on that information, whereupon the claimant told the clerk that she had further evidence. She asked, via the clerk, whether it would be possible for that evidence to be taken into account. I declined. The claimant has already submitted evidence and written representations in support of her reconsideration application on three separate occasions. Waiting for further evidence would risk delaying my preliminary consideration to this application which is already long overdue.

[17]If the claimant considers that her latest evidence would make a significant difference to the prospect of the original judgment being reconsidered, she can make a further reconsideration application. I would suggest, however, that she reads these reasons carefully before embarking on that course. Grounds for reconsideration

[18]The claimant has made a great many points in support of her reconsideration application. Many are overlapping and, in some cases, pure repetition. In my 3 of 11 view it would not be proportionate to list each and every argument. I hope that the following list fairly captures the claimant’s essential reconsideration grounds. I have drawn them from the application itself and from the supplemental statements that the claimant has submitted. Forgery 18.1. The enhanced version of CL CT1.mp4 captures Mr Thomas talking at a time when Disputed Document was in existence. This is “powerful evidence” (to quote Reasons paragraph 151.6) that the Disputed Document existed whilst the claimant and Mr Thomas were in a relationship, and therefore less likely to have been a forgery. 18.2. The original bundle shows that CL CT1.mp4 was time stamped 24 May 2018, which establishes that the Disputed Document existed at that time. 18.3. Evidence in the Family Court bundle, together with the size of the bundle itself, shows that the claimant did not send a black file to Levins and that Levins are therefore lying when they deny that the claimant sent them her phone. 18.4. The claimant alleges that she hand-delivered two other documents (Appendices 2 & 3) to Levins, yet they were not included in the bundle. This is further evidence, she says, of Levins’ practice of untruthfully denying having received evidence from the claimant. 18.5. The claimant has produced evidence of money having been paid to Mr Thomas out of the bank account of C&C Roofing (NW) Ltd. The amounts paid to Mr Thomas are, the claimant says, substantially in excess of Mr Thomas PAYE salary. The claimant argues that this evidence undermines my finding (Reasons paragraph 151.1) that Mr Thomas is unlikely to have agreed to the terms in the Disputed Document. He could have agreed to pay the claimant £400 per week plus half the profits and still been financially better off than the claimant. 18.6. At roughly the same time that the claimant first revealed the existence of the Disputed Document, she pointed out a data breach to Levins which, she says, is an indicator that she was acting honestly at that time. 18.7. Levins ignored the claimant’s offer to re-send documents. 18.8. The timing of the respondent’s strike-out application is suspicious, because it was only 46 minutes after the claimant had delivered a bundle to Levins’ offices. 18.9. Mr Heath’s stated that, on receipt of the green sheets of paper, he “immediately suspected that it had something to do with the claimant” – that statement lacked credibility because the claimant had not written a return address on the envelope in which the green sheets were allegedly delivered. 18.10. The claimant challenges my finding (Reasons paragraph 151.7) that Mr Heath had less to gain from lying than the claimant. Her argument is that Levins acted for Mr Thomas in a drugs investigation and the firm was therefore involved with Mr Thomas sufficiently closely to give Mr Heath an incentive to lie. 4 of 11 18.11. Levins wrongly accused the claimant of not complying with court orders in the Family Court. 18.12. The respondent had refused to include in the Family Court bundle the claimant’s investigation report into Royale Scaffolding and C&C Roofing. This indicated that the respondent was concealing damaging evidence. Employment status 18.13. I found that there was an implied contract of employment from 26 September 2018 onwards. There was evidence of the claimant receiving money from the respondent earlier than that date. Therefore, the claimant argues, I should also have found an implied contract existed at that time, too. 18.14. I found (Reasons paragraph 52) that there had been a transfer of an undertaking from C&C Roofing Limited to the respondent. I ought therefore to have found that the implied contract transferred. 18.15. With regard to the claimant’s employment status after 26 September 2018, I referred to the fact that no tax or national insurance was paid on the claimant’s wages. (The claimant singles out paragraph 218 of the Reasons, although I suspect she meant paragraph 219.) The claimant, essentially, argues that I misunderstood the evidence about why the claimant’s wages were not put through the payroll. 18.16. The claimant drew my attention to evidence of the claimant working late on some occasions prior to 26 September 2018. I should, the claimant argues, therefore have been able to make findings about the claimant’s working hours. 18.17. The claimant says that a passage of one of her secret recordings undermines my findings about the claimant’s employment status prior to September 2018. In reply to the claimant saying that she had left her money in the respondent’s account, Mr Thomas can be heard saying, “Whose fault’s that, then?” The claimant’s argument is that my findings must have overlooked this remark. 18.18. The claimant also drew my attention to a point that she made on one of her recordings that it was the respondent who “wanted to grow something”, as an indicator that it was the respondent, and not the claimant, who was looking to expand the business. 18.19. The claimant gave a more detailed account of what happened at and immediately following the Directors’ meeting. As I understand it, the purpose of this account was to explain why I should have regarded her notes of the meeting as reliable. Mr Thomas’ conduct and credibility 18.20. The claimant says that Mr Thomas lied about only using subcontractors. The PAYE records show at least one employee being paid through the payroll. 18.21. The claimant drew my attention to evidence of Mr Thomas reneging on previous oral and written agreements. In particular, she reminded me of Mr Thomas’ evidence that Mr R was an employee, when contemporaneous documents showed that he was a sole trader or a director. 18.22. Appendix 37 shows the claimant complaining at the time about how badly Mr Thomas was treating her. Appendices 41-44 show the claimant’s 5 of 11 interaction with domestic abuse support services. These show that Mr Thomas was engaging in the domestic abuse about which I was unable to make a definitive finding of fact (Reasons paragraph 152). 18.23. Evidence in the Family Court bundle links Mr Thomas to one of his alleged blackmailing messages. In one of the messages the sender mentions that Mr Thomas was not going to marry the claimant. This matches what Mr Thomas said whilst giving oral evidence to me. 18.24. Mr Thomas attempted to mislead the tribunal and the Family Court by relying on the claimant withdrawing her complaint to the police, without explaining why the claimant had withdrawn her complaint. 18.25. Mr Thomas, in the Family Court proceedings, made a false allegation that the claimant had deleted important banking information from his computer. The claimant draws my attention to a perceived inconsistency between this position and Mr Thomas’ reason for not disclosing information on from his personal computer. 18.26. Mr Thomas gave inconsistent evidence about when his relationship with the claimant started. 18.27. Mr Thomas breached the claimant’s data protection rights whilst purporting to demonstrate to the Family Court that it was possible for the claimant to have falsified text messages. 18.28. The Family Court bundle contained evidence which tended to show that the respondent would intimidate people into making witness statements on his behalf. The witness was Mr Thomas’ neighbour, Ms A. The claimant highlights the inconsistency between Ms A’s statement and Ms A’s contemporaneous messages. 18.29. Mr Thomas alleged in the Family Court proceedings that the claimant had engaged in coercive controlling behaviour against him, yet the respondent did not mention this in its response to the claimant’s employment tribunal claim. 18.30. Mr Thomas told the Family Court that the claimant was a “known trouble causer”, but told the employment tribunal that the claimant “communicated brilliantly with everyone”.

Relevant law

[19]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”. The making of reconsideration applications is governed by rule 71.

[20]Rule 72(1) states that an employment judge must consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application must be refused. If the application is not refused under rule 72(1), the tribunal must then set a time limit for any response to the application and must seek the parties’ views on whether the application can be determined without a hearing. Rule 72(2) then lays down further procedural requirements for the reconsideration of the original decision. 6 of 11

[21]The rule 72(1) preliminary consideration is a mandatory step and must take place before the respondent is asked to respond and before the reconsideration hearing is listed: T W White & Sons Ltd v. White UKEAT 0022/21.

[22]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.

[23]The old Employment Tribunal Rules of Procedure 2004 required that judgments could be “reviewed”, but only on one of a prescribed list of grounds. One of those grounds was that “new evidence [had become] available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time.” This proviso reflected the well-known principle applicable to civil appeals derived from Ladd v. Marshall

[1954] 3 All ER 745

, CA.

[24]The current 2013 Employment Tribunal Rules of Procedure replaced the old list of grounds with a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. Nevertheless, the “interests of justice” test must, in my view, incorporate a strong public interest in the finality of litigation, even if it is not as inflexible as the proviso in the 2004 Rules. Where a party could reasonably have been expected to rely on the evidence first time around, it would take a particularly good reason to give that party a fresh opportunity to rely on it. Conclusions Admissibility of new evidence Family Court bundle

Conclusions

[25]I accept the claimant’s argument that she could not reasonably have been expected to rely on the contents of the Family Court bundle at the time of the original hearing. At that time, the parties were prohibited by the rules of the Family Court from referring to the documents in that bundle outside the injunction proceedings. It was only when the claimant obtained the specific permission of the Family Court that she could then rely on them.

Relevant law

[26]I therefore considered the documents in the Family Court bundle when giving preliminary consideration to the claimant’s application. Documents relating to Mr Thomas’ injunction applications

[27]For the same reason I accept that the claimant could not reasonably have referred to documents relating to Mr Thomas’ applications against the claimant. Retraction statement to the police

[28]I consider the claimant’s retraction statement to be admissible. Although there is nothing to suggest that she was prohibited from making use of it at the original hearing, I accept that she is only seeking to refer to it by way of cross-reference to an assertion made by Mr Thomas to the Family Court. Further bank statements 7 of 11

[29]In my view, the Ladd v. Marshall criteria are not satisfied in relation to the further bank statements of C&C Roofing (NW) Ltd. The claimant has not explained why she could not have referred to those bank statements at the original hearing. The claimant’s new account of the directors’ meeting

[30]To the extent that the claimant’s version of the directors’ meeting contains any new evidence, I do not think that the Ladd v. Marshall criteria are satisfied. The claimant could have given a more detailed account of the directors’ meeting in her original witness statement had she wished to do so. In any event, I do not think the claimant’s account avoids my essential finding that neither record of the meeting is particularly reliable.

[31]I now address the claimant’s reconsideration grounds in turn. I have grouped them into headings relevant to the parts of my original judgment which the claimant asks me to reconsider. Forgery Enhanced audio from CL CT1.mp4

[32]The audio file to which I listened on 23 March 2021 does not provide the support for the claimant’s reconsideration application that the claimant says it does. At best, from the claimant’s point of view, it shows that somebody was saying something after the music stopped. I could not tell whether that person was the claimant or not and I could not tell what they were saying. That is consistent with the claimant’s case as to what was going on in the video, but it is of only marginal value in establishing whether that version is in fact correct. In my view it does not significantly undermine the other points I made at paragraph 151 of the Reasons. Time stamp

[33]In a case where there were so many allegations of fabrication of entire electronic files, it was hard for me to place significant weight on the time stamp CL CT1.mp4 purported to show. The black file

[34]I dealt with the black file in my original judgment. I always understood the claimant’s case to be that the envelope that Levins received on 13 May 2019 did not contain the black file. In paragraph 116 of the Reasons paragraph I agreed with her. Where I disagreed with the claimant, and still do, is about the significance of this finding when it comes to the genuineness or otherwise of the Disputed Document. As I explained, it did not follow that Mr Heath was lying about what was in the envelope received on 23 September 2019, just because Levins were wrong about what was in the envelope that they received on 13 May 2019. The significance of the allegedly-disappearing phone was that it made it harder for the claimant to explain her actions in sending her best copy of the Disputed Document to a firm whom she believed guilty of disposing of her evidence. This was the point I made in Reasons 151.5. Other points about Mr Heath’s honesty

[35]When making my assessment of Mr Heath’s evidence I was already aware that Levins were acting for Mr Thomas in relation to proceedings in two different jurisdictions. The fact that they were also acting for him in relation to a potential 8 of 11 third branch of the law would not change my view of Mr Heath’s alleged motivation to lie.

[36]I did not find the reliability of Mr Heath’s evidence to have been undermined by his assertion of immediate suspicion of the claimant on receiving the green sheets of paper. Levins had already accused the claimant of fabricating the Disputed Document. The mysterious envelope arrived 6 days after the SRA had written to Levins accusing them of disposing of evidence that had been posted to them. Seven days after discovering the green sheets Levins pointed the finger of suspicion at the claimant in their e-mail to the tribunal (see Reasons paragraph 123).

[37]It is not surprising that Levins turned down the claimant’s offer to resend documents after 23 September 2019. Any mutual trust and cooperation between the claimant and Levins had broken down.

[38]It appears that the respondent had already prepared its strike-out application before the claimant had delivered her bundle to Levins. This does not cause me to doubt Mr Heath’s evidence.

[39]As for Levins’ conduct of the Family Court proceedings, my reading of the Family Court bundle is that there were mutual allegations of failure to provide disclosure and failure to comply with orders. I would not be able to make findings about whether or not Levins’ position was justified without a much more detailed investigation into the facts. Such an exercise would be disproportionate in relation to a satellite issue such as this. Plausibility of Mr Thomas agreeing to the Disputed Document

[40]I have rejected the bank statements as inadmissible, so the claimant is stuck with my finding that Mr Thomas’ salary was £162.00 per week.

[41]If I am wrong about that, and I should take into account evidence that Mr Thomas was separately drawing other sums of money out of the company, I would still conclude that Mr Thomas would have been unlikely to have agreed to the terms in the Disputed Document. At least one of the substantial withdrawals from the company bank account appears to be attributed to a misspelling of “dividends”. If the Disputed Document were genuine, Mr Thomas would have been agreeing to pay half of the dividend to the claimant. As for the regular withdrawals, if they did represent a wage to Mr Thomas, that wage would still have been less than the £400 per week that the Disputed Document purported to promise to the claimant on top of her half-share of the profits. Employment status Implied contract and transfer of undertaking

[42]I found (Reasons paragraph 216) that there was an implied contract after 26 September 2018 because, on the common ground, there was no other explanation for the reciprocal agreement to pay wages and to work in return. Prior to 26 September 2018 there was an insufficient basis for an implied contract. Not least, because the parties’ arrangements could have been explained by the claimant wanting to do her best to build up her fiance’s business in the misplaced expectation that they would get married.

[43]My finding that there was a transfer of an undertaking is neither here nor there. I did not find that the claimant had a contract of employment that transferred. 9 of 11 No tax or national insurance

[44]The claimant’s argument here appears to be engaging with my analysis of whether or not the unusual tax arrangements were consistent with a contract of employment. The period under scrutiny was from 26 September to 31 October 2018. I found that, despite the non-payment of any tax or national insurance under the PAYE scheme, the claimant was nevertheless an employee. If I were to accept the argument that the claimant now makes, my conclusion on employment status could be no more favourable to her than it was already. Working hours

[45]I found (Reasons paragraphs 83 and 231) that the claimant had worked hard for the business and her typical tasks would have taken up considerably more time than 9 hours per week. Beyond that, I was not able to find precisely what hours the claimant worked. Examples of evenings worked here and there would still not have enabled me to make such a finding. Even if I had been able to quantify the claimant’s hours, I would still have been left with disputes of fact about the nature of the payments the claimant received and the purpose for which they were made. Secret recordings

[46]In general terms I found it difficult to rely on self-serving statements made by the claimant in conversations that she knew she was audio-recording.

[47]As for Mr Thomas’ remark, “Whose fault’s that then?” I was aware of that comment at the time of reaching my original decision. It seemed to be a sarcastic comment in the middle of an argument, and did not appear to be particularly illuminating about the claimant’s employment status. The directors’ meeting

[48]See my conclusion under the heading “Admissibility”. Mr Thomas’ conduct and credibility

[49]I can deal with the claimant’s points about Mr Thomas collectively. I already found (Reasons paragraph 150) that Mr Thomas’ oral evidence was unreliable. One of my reasons for coming to that conclusion was in fact a point that the claimant has repeated in her reconsideration application (namely Mr Thomas’ inconsistent evidence about when the relationship started). My conclusion that the claimant had forged the Disputed Document did not depend on my believing what Mr Thomas had to say about it.

[50]I have considered the claimant’s communications with domestic abuse support networks. This is evidence of claimant’s communications at a time when the relationship had broken down, she was already engaged in parallel proceedings in the employment tribunal and Family Court, and the claimant was accused by Mr Thomas of fabricating evidence. In fact the subject matter of her messages is the ongoing court proceedings. I do not find that it reliably tells me what Mr Thomas’ behaviour was actually like whilst they were in a relationship, or whether Mr Thomas made the threats on which the claimant relied in support of her strike-out application.

[51]The other points that the claimant makes about Mr Thomas’ behaviour towards her all depend, to some extent, on my accepting the claimant’s evidence about what Mr 10 of 11 Thomas did. Because of my finding in relation to the Disputed Document, it is very difficult for me to rely on that evidence. Overall conclusion

[52]Having considered the claimant’s arguments on reconsideration, I consider that there is no reasonable prospect of my original decision being varied or revoked. I must therefore refuse the reconsideration application.

Conclusions

[1]Reserved judgment (“the original judgment”) was sent to the parties on 6 August 2020. By paragraph 2 of that judgment (“the strike-out paragraph”) the claim was struck out. The reasons for the reserved judgment explained that the ground for striking out the claim was that the claimant had conducted the proceedings unreasonably by forging a document (“the Disputed Document”) purporting to be a written contract of employment between the claimant and Mr Thomas.

[2]It is the strike-out paragraph that is the subject of this reconsideration application.

[3]Paragraph 3 of the original judgment (“the employment status paragraph”) determined that the claimant was an employee from 26 September 2018 until 31 October 2018. Nobody is asking for the employment status paragraph to be reconsidered. Relevant procedural history

[4]The reasons for the original judgment relate the procedural history up to August 2020. It was unfortunately necessary for those reasons to explain the history in considerable detail.

[5]Amongst other things, the procedural history showed: 5.1. There were significant stages in the case (such as presentation of the claim form) when one might have expected the claimant to mention the existence of the Disputed Document. 5.2. There was a video showing the Disputed Document. In the audio footage from the video, the claimant could be heard talking, followed by an indistinct voice, which the claimant said belonged to Mr Thomas. The claimant said that the video had been taken on 24 May 2018. She later produced a screenshot displaying creation properties for the video. It was common ground that, on 24 May 2018, the claimant and Mr Thomas had recently reconciled following a temporary breakdown in their relationship. 5.3. The claimant and Levins solicitors (then acting for the respondent) had taken up highly polarised positions on the question of what had happened to the claimant’s phone. Messages and other material on her phone appeared to show that Mr Thomas was threatening and harassing the claimant. In Family Court proceedings, Mr Thomas alleged that the evidence had been fabricated. Levins asked for the phone to be analysed by an expert. The claimant alleged that she had sent her phone to Levins by signed-for delivery. Levins admitted that they had signed for a package, but denied that the phone was inside. That denial was maintained in correspondence with the Solicitors Regulation Authority (SRA). Levins’ position was that the claimant had pretended to send the phone. 5.4. Soon after the claimant sent the Disputed Document to Levins, they asserted that the Disputed Document had been fabricated and asked that that document be examined by an expert. The claimant again sent an envelope to Levins for 2 of 14 which Levins signed to confirm receipt. I accepted the evidence of Mr Heath (solicitor and partner in Levins) that in fact there was nothing in the envelope apart from a few sheets of green paper. 5.5. Throughout the proceedings, both before and after the original judgment, the claimant has made numerous requests for disclosure of information on a USB drive which she claimed to have left on the desk in the respondent’s home office. The claimant consistently argued that the USB drive contained business records and would be evidence of the work she had done for the respondent. She made strike-out applications based, in part, on the respondent’s alleged failure to disclose the USB drive.

[6]In the reasons, I explained why I had come to the conclusion that the Disputed Document was forged: “151.1 First, it is, in my view, inherently unlikely that Mr Thomas would have agreed to pay the claimant 50% of the profits of the business plus a weekly wage of £400.00. For tax reasons, his own salary was only the equivalent of £162.00 per week. The Disputed Document, if genuine, would have given the claimant a considerably better remuneration package than his own. He was the founder of the business and the respondent’s director and sole shareholder. Even allowing for the possibility that Mr Thomas was pleading for the claimant to come back to him in May 2018, I do not think he would have agreed to the terms in the Disputed Document.

151.2 Second, if the Disputed Document were genuine, I would have expected the claimant to have mentioned it before August 2019. I remind myself that I must make allowances for the effect of her depression on her memory. Even so, if she had forgotten that the hard copy was in the boot of her car, she would, in my view, still have remembered:

(a) that the document existed, and

(b) that she had kept a copy of it somewhere. This was, on the claimant’s version, the only signed document recording the claimant’s entitlement to wages, and she had obtained it from Mr Thomas within days of telling him that all financial matters would be sorted out through solicitors. If she was telling the truth, she thought the Disputed Document was so important that she needed to take a photograph of it (which turned out to be a video) and a separate hard copy. She would not have forgotten that she had gone to such lengths to keep such an important document.

151.3 If, as would surely be the case, the claimant had remembered that the document existed, I would have expected her to mention in her claim form that Mr Thomas had agreed in writing that she was an employee. The claimant would, I think, have told me at the first preliminary hearing that her conclusive proof of the employment relationship was a signed agreement and not just an audio recording. I would also have expected her to ask for disclosure of the Disputed Document if she did not think that she had kept a copy. 3 of 14

151.4 If, as I also find would have happened, the claimant had remembered that she had taken a copy, it is highly likely that she would have thought of the Disputed Document as an important piece of evidence at the time she presented her claim. It would have been an obvious candidate for inclusion in the claimant’s lists of evidence in her Grounds of Claim.

151.5 Third, the claimant’s version of events is inconsistent with her own actions. If she is correct, she sent her best copy of the Disputed Document to the respondent’s solicitors, knowing that that particular piece of paper would be needed for forensic testing, and that no other copy would do. In her written closing submissions, the claimant stated that she sent them her copy so that the “ink and print type be confirmed to [the respondent’s] printer”. Her evidence is that, knowing the importance of that piece of paper, she sent it directly to the respondent’s solicitors, whom she already believed had falsely denied receiving another key piece of original evidence. Such was her distrust of the respondent as a reliable custodian of original evidence that she had complained about that precise issue to the SRA. I do not understand, why, if the claimant’s version was accurate, she chose to send the Disputed Document directly to the respondent’s solicitors. The obvious thing to do would have been to send it to the forensic analyst directly.

151.6 Fourth, the claimant has overstated a key piece of evidence supporting her case as to when the Disputed Document was created. That is the video CL CT1.mp4. The claimant’s transcript sets out remarks allegedly made by Mr Thomas on the video. If Mr Thomas had been talking at the time she took the video, it would have been powerful evidence that the Disputed Document was in existence whilst the claimant and Mr Thomas were still in a relationship. But the video footage disclosed by the claimant does not include any of those remarks.

151.7 Fifth, I found Mr Heath’s evidence to be reliable. He would have had just as much to lose by lying to the tribunal as the claimant had to lose by forging a document. But he would have had far less to gain. As soon as I accept that he was trying to be truthful, it follows, I think, that I must also accept that a member of his firm’s administrative team brought him the green sheets of paper as soon as they were received by the firm, and that they were brought to him in the envelope that the claimant had posted. I think it very unlikely that an administrator would have planted the green sheets in that envelope. There is no evidence of any personal link between the firm’s administrative staff and Mr Thomas or his family. Like Mr Heath, the staff would have had nothing to gain by their actions. Once it is established that the green paper, and nothing else, was in the envelope when it was delivered to the firm, it has to follow that the claimant, or somebody on her behalf, put the green paper in the envelope before posting it. That was a strange thing to do. The claimant 4 of 14 had videoed herself putting the Disputed Document and other items into the envelope, then weighed the envelope and paid the postage. Before the envelope was posted, someone must have knowingly removed the contents and replaced them with the green paper. The only explanation I can think of is that the claimant sent the green paper deliberately to the respondent’s solicitors, hoping that they would think of it as worthless and dispose of it. The respondent’s solicitors would be driven to admit that they had received the envelope because they had signed for it. They would be blamed for losing its contents. The claimant would then rely on her video, and the weight of the package, to convince the tribunal that the envelope had contained the Disputed Document. It would appear to the tribunal, she hoped, that she had been willing to have the Disputed Document forensically analysed and had been deprived of that opportunity by the respondent’s solicitors actions. I do not think that the claimant would have gone to such lengths if she believed that the Disputed Document was genuine.

[7]Having concluded that the Disputed Document was forged, and having determined as many issues as I could based on the uncontroversial facts, I came to the conclusion that a fair hearing was not possible. The remaining factual disputes would need reliable evidence to resolve them. The reliability of the claimant’s evidence was fatally undermined by her conduct in forging the Disputed Document. I therefore struck out the claim.

[8]The respondent did not make any application for costs.

[9]On 15 August 2020, the claimant applied for reconsideration of the original judgment. I will call this “the first reconsideration application”. She also appealed to the Employment Appeal Tribunal on 15 September 2020. Her appeal has been stayed pending her reconsideration applications.

[10]Part of the first reconsideration application was based on the video. Unfortunately, due to the tribunal’s data security policies, the only way I could watch the video was to list the reconsideration application for a hearing where the claimant could play the video on her own equipment. That hearing took place on 23 March 2021. The respondent was informed of the date of the hearing, but also informed that there was no need for the respondent to attend.

[11]I refused the first reconsideration application under rule 72(1) of the Employment Tribunal Rules of Procedure 2013. Based on the evidence and arguments put forward at that stage, my view was that there was no reasonable prospect of the strike-out paragraph being revoked. My judgment refusing the first reconsideration was sent to the parties on 11 May 2021.

[12]The claimant then made her second reconsideration application. Among the grounds for reconsideration was that she had discovered an important new source of evidence. According to her application, the claimant discovered an SD card in her mailbox on 29 April 2021. The application was accompanied by a file of appendices. Each appendix was a set of images which the claimant said had been taken from the SD card. The claimant added arrows to some images and redacted others. 5 of 14

[13]At Appendices 1 to 4 there are photographs of a mobile phone. Everyone agrees that this phone is the claimant’s phone and that it is the same phone that is alleged by her to have been sent to Levins in July 2019. The photographs show images on that phone’s screen. These include a still image from what looks to be the video CL CT1.mp4. As shown in Appendix 1, the phone is photographed against a sheet of paper on which someone has written an address. The claimant told me that she has traced this address and that it is linked to the respondent.

[14]Appendix 18 is a photograph of a computer screen. Displayed on the screen are the contents of a folder within a USB drive (such as a memory stick). The folder is called “meetings and notes”. One of the files shown in that folder is a word document with the filename, “Thomas Roofing Clare Langtry 24.05.2018”. Another image in Appendix 18 shows file creation properties for that document. According to those properties, the document was created using Mr Thomas’ Microsoft account, last modified at 23.35 on 24 May 2018, and last printed at 23.57 on 24 May 2018.

[15]Some of the appendices are redacted images of photographs of the claimant. She says that these images are of a sexual nature and were taken without her consent. These images appeared on the SD card as screenshots from an unknown computer device. She redacted the images herself.

[16]Other appendices showed further images of numerous files apparently also stored on a USB drive. These files appear to be purchase orders, invoices and credit notes for various customers of the respondent’s business. Many of these documents bear reference numbers in their filenames.

[17]A further set of images appended to the application are also said to have been taken from the SD card and show pages apparently torn out from a notebook. There are handwritten drawings on the pages. The claimant says that these drawings came from a pink notebook which was in the possession of Levins.

[18]I caused the second reconsideration application to be listed for a hearing. The hearing took place on 13 September 2021. Unfortunately, the respondent did not attend. The claimant made a lengthy strike-out application based, in part, on the respondent’s non-attendance and the explanations for their absence given by him and Levins. I refused to strike out the response and gave my reasons.

[19]Eventually, the second reconsideration application was heard on 22 to 27 July 2022. The claimant represented herself, as she has done throughout these proceedings. The respondent was represented by Ms Ferrario of counsel. The claimant gave oral evidence and answered Ms Ferrario’s questions. The respondent did not call any evidence. Once the evidence had concluded, the claimant prepared written closing submissions, which I read.

[20]Under cross-examination, the claimant was asked why she had not preserved any fingerprints on the SD card, or handed it to the police. The claimant replied that she had received anonymous SD cards before, which had contained unwanted sexual images, and she was expecting this SD card to be more of the same. She said that she did not report the SD card to the police because, when she had reported previous SD cards, no action had been taken. She had received the previous SD cards at Christmas and New Year. 6 of 14 The claimant’s arguments

[21]The claimant argues that Appendix 18 shows the metadata for the Disputed Document, which means that it must have been created on 24 May 2018.

[22]The claimant summarised the evidence on the SD card in this way: “All the information from the SD card must have been in the same place at the same time and taken by the same person, who had knowledge of the importance of those items and whom had access to those items.”

[23]According to the claimant’s submissions, the only alternative to the SD card material being genuine is that she has fabricated it all, including the documents from the respondent’s business. That, she says, is incomprehensible. Having once been incorrectly found to have forged a document, it is unthinkable that she would then expose herself to the risk of further findings of forgery by manufacturing further evidence.

[24]The more likely explanation, says the claimant, is that Mr Thomas put the information on the SD card, or got someone else to do it for him. Her theory is that, since he has won the case, Mr Thomas has been taunting her with the evidence she could have used to secure a different outcome. This is a continuation of the abuse she says that Mr Thomas perpetrated towards her. Another possible explanation, advanced in the second reconsideration application itself, is that Mr Thomas’ subsequent partner may have compiled the SD card at a time when she was publicly messaging that she was “single”. At that time she might have had a motive to help the claimant. The respondent’s arguments

[25]The respondent opposed the second reconsideration application. The arguments put forward by Ms Ferrario on the respondent’s behalf can be summarised as follows: 25.1. It cannot be necessary in the interests of justice to reconsider the strikeout paragraph unless the claimant can overturn the finding that she forged the Disputed Document. 25.2. The claimant did not report the SD card to the police and contaminated it with her own fingerprints. When I asked Ms Ferrario what conclusions could be drawn from that conduct, her reply was that it was impossible to say who had created the SD card. The respondent does not put forward a positive case that the SD card was fabricated by the claimant. 25.3. The tribunal cannot accept the claimant’s explanation of how she found the SD card. Her evidence has no credibility in the light of the findings made in the original judgment. 25.4. Even if Appendix 18 is genuine, it does not mean that the Disputed Document was genuine. The file, “Thomas Roofing Clare Langtry 24.05.18” could have been any letter written by Mr Thomas to the claimant. 25.5. With the exception of Appendix 18, none of the material on the SD card is relevant, because it does not address the forgery of the Disputed Document. 7 of 14

Relevant law

[26]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”. On reconsideration, the original decision may be confirmed, varied or revoked. If it is revoked, it may be taken again.

[27]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.

[28]The old Employment Tribunal Rules of Procedure 2004 required that judgments could be “reviewed”, but only on one of a prescribed list of grounds. One of those grounds was that “new evidence [had become] available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time.” This proviso reflected the well-known principle applicable to civil appeals derived from Ladd v. Marshall

[1954] 3 All ER 745

, CA. The Ladd v. Marshall criteria, in relation to new evidence, are, first, that the evidence could not have been obtained with reasonable diligence for use at the original hearing, second, that it is relevant and probably would have had an important influence on the hearing, and, third, that it is apparently credible.

[29]The current 2013 Employment Tribunal Rules of Procedure replaced the old list of grounds with a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. It is therefore theoretically open to a party to raise new evidence in support of a reconsideration even if the Ladd v. Marshall criteria are not strictly satisfied (see Outasight VB Ltd v. Brown UKEAT 0253/14).

[30]The discretion to act in the interests of justice is not open-ended. There is a public interest in the finality of judgments. That public interest militates against the reconsideration discretion being exercised too readily: Ministry of Justice v. Burton

[2016] EWCA Civ 714

[31]A tribunal may proactively control proceedings to ensure that they are conducted fairly and efficiently, but must not assist a party by making a case for it which that party has not advanced itself. In Dundee City Council v. Malcolm UKEATS 0019/15, Langstaff J said this: “[It] is not for a tribunal to make a case for a litigant. However much a tribunal feels that a litigant is not making the best case that litigant could, given the facts as they appear to the tribunal, it cannot step into the shoes of the litigant and make for itself any case which it appears could have been advanced successfully in the light of that material. To do so would be to enter the arena. It would be to abandon impartiality. It would run counter to the very essence of the accusatorial procedure. Although litigants who are not lawyers might not know what precise legal label might categorise their cases, they will know what it is that they are complaining about. The line between making a case which is not being advanced by a party, on the one hand, and helping that party to 8 of 14 articulate clearly that which they are complaining about on the other may be fine, but it is critical. A tribunal's duty to be fair to both sides means it cannot enter the contest on behalf of either one. It must listen to the cases made for each, and must not substitute a case of its own.”

[32]Where a claimant is unrepresented, the tribunal must ensure that they adjudicate on the claim that is evidently raised in their claim form, and not to be distracted by any confusion that a litigant in person may have about the legal language that is used to describe the scenario: Mervyn v. BW Controls Ltd

[2020] EWCA Civ 393

[33]I have cited Malcolm and Mervyn to illustrate the difficulty that a tribunal may get into if it either intervenes too proactively or (in the case of an unrepresented party) not proactively enough. Neither of these cases concerned reconsideration applications. In neither case was the tribunal having to consider for itself the public interest in finality of litigation. Nevertheless, the cases demonstrate the importance of the principle that a tribunal must not take sides.

[34]In the context of reconsideration applications, my self-direction is this: 34.1. Where a party applies for reconsideration of a judgment, the tribunal may confirm the original decision based on arguments that were not advanced by the opposing party, provided that such arguments are appropriate and necessary to achieve the public interest in finality of litigation and also provided that they are compatible with the overriding objective of dealing with cases fairly. 34.2. The tribunal must not, however, go beyond those boundaries and make for itself a case for confirming the original judgment that is so different from that which was advanced by the opposing party, that to do so would give the appearance of taking sides. 34.3. Where one of the parties to a reconsideration application is unrepresented, and the tribunal assists the unrepresented party to articulate their arguments, there is less danger of the tribunal appearing to take sides, because the tribunal’s intervention is justified by the requirement to place the parties on an equal footing (so far as is practicable). Where the positions of the two parties are reversed, that justification disappears. A tribunal may give the appearance of bias if it gives excessive assistance to a party represented by counsel to articulate their arguments against an unrepresented party. Conclusions The finding under reconsideration

Conclusions

[35]I agree with Ms Ferrario that the focus must be on the original finding that the claimant had forged the Disputed Document. Whilst that finding stands, it would not be necessary in the interests of justice to reconsider the strike-out paragraph. Conversely, if the finding of forgery could not stand in the light of the new evidence, the strike-out paragraph would be unsustainable and it would be necessary in the interests of justice to revoke it. Admissibility of the SD card Apparent credibility 9 of 14

[36]The appendices to the claimant’s reconsideration application have the appearance of being credible. That is to say, there is nothing on the face of them that looks obviously false.

[37]That is not quite enough for the claimant to be able to rely on the contents of the SD card. For the evidence to be apparently credible, the claimant needs to explain how the material could have come to be on the SD card. That explanation must be capable of belief. Whether or not the claimant has given a credible explanation appears to me to be inseparable from the question of whether the claimant could have relied on the contents of the SD card at the original hearing. Relevance and influence

[38]There is a dispute about the significance of Appendix 18 and the influence that it would have had on the original hearing. Contrary to the respondent’s submissions, my view is that the metadata for the Word file “Thomas Roofing Clare Langtry 24.05.2018” are highly relevant. The file creation properties purport to show that a document, with a filename referring only to Mr Thomas and the claimant, was created and printed just before midnight on a day when – it is common ground – the claimant and Mr Thomas had just reconciled. Mr Thomas was not in the habit of typing letters generally. Still less was he in the habit of typing business letters to the claimant. Mr Thomas has never suggested that he did give any kind of letter to her at or around that time. There is no serious possibility of Thomas Roofing Clare Langtry 24.05.2018 being any genuine document other than the Disputed Document. If the metadata have not been falsified, the Disputed Document was created and printed on 24 May 2018. It still would not necessarily mean that Mr Thomas signed it. But what it would mean would be that a substantial ground for my finding of forgery would fall away. I attached significance to the fact that the claimant had not mentioned the existence of the Disputed Document until a late stage of the proceedings. It would not be possible to draw any inference of forgery from that failure if it could be established that the disputed document had been created and printed on 24 May 2018. Could the claimant have relied on the SD card at the original hearing?

[39]I now turn to the claimant’s explanation for how she discovered the SD card. She stated in her second reconsideration application, and confirmed in her oral evidence to me, that she had discovered the SD card in her mailbox on 29 April 2021. I have to decide whether or not that explanation is credible.

[40]I agree with the claimant that “all the information from the SD card must have been in the same place at the same time and taken by the same person, who had knowledge of the importance of those items and whom had access to those items”. For convenience, I will refer to that person as “the SD card creator”.

[41]Of course, one possibility is that the SD card creator was the claimant herself. If this is what happened, it would plainly not be in the interests of justice to reconsider the original strike-out paragraph. The Ladd v. Marshall criteria would be the least of the claimant’s worries. The claimant would be guilty of a serious attempt to deceive the tribunal. She would have had to have carefully curated a large selection of electronic documents (whether real or fabricated), saved them onto an SD card, and then told a deliberate lie about how she found it.

[42]The only other possibility is that someone else saved the images onto the SD card and placed the SD card into the claimant’s mailbox. That event must have 10 of 14 occurred sometime between 1 January 2021 (when the claimant discovered the New Year SD card) and 29 April 2021. Needless to say, the claimant could not have relied on the SD card at the original hearing if it had been placed into her mailbox during that period.

[43]The critical question is, therefore, has the claimant told the truth about the discovery of the SD card? This is not easy question. The claimant’s evidence about the discovery of the SD card was neither obviously true nor obviously false.

[44]This is a convenient point to deal with two of the respondent’s arguments. 44.1. The first is that I should determine the reconsideration application without trying to make a finding about who the SD card creator was. The uncertain identity of the SD card creator is, says Ms Ferrario, one of the factors making it unnecessary in the interests of justice to revoke the strike-out paragraph. I agree that it may not be necessary to identify precisely who was the SD card creator, provided that it was not the claimant herself. Where I disagree with the respondent is on their invitation to fudge the question of whether the SD card creator was the claimant or not. If the claimant was the SD card creator, she is guilty of a serious attempt to pervert the course of justice. If, on the other hand, the SD card creator was not the claimant, it is likely that the data on the SD card is genuine. I take this view because I cannot think of anyone else who would falsify it. Anyone falsifying the data would have had to know exactly what evidence to fabricate, understand its importance to the case, have the means to fabricate it and, crucially, have some reason to want to manufacture evidence in the claimant’s favour. I cannot think of anyone who could want to do that apart from the claimant herself. I therefore need to try, if I can, to determine whether or not the claimant was the SD card creator. 44.2. The respondent seeks to challenge the credibility of the claimant’s explanation of how she found the SD card, based on my original finding that the reliability of her evidence was fatally undermined. The difficulty with this argument is that it puts the cart before the horse. I found the claimant’s evidence to be unreliable because of her forgery of the Disputed Document. If the SD card is genuine, the evidence on it undermines my finding that she forged the Disputed Document, and calls into question my reason for mistrusting her evidence in the first place.

[45]To get to the truth of how the data came to be on the SD card, there needs to be a careful analysis of the data on the card and of the circumstances existing at the time.

[46]The groundwork for such analysis includes the following: 46.1. It is highly likely that the SD card creator had copies of the PDF and Word document files containing the respondent’s purchase orders, invoices and credit notes for the respondent’s major clients. It is hard to imagine the SD card creator being able to make all that information up. It would be too great a risk. Dates, amounts and reference numbers could be easily checked with the supplier. It not realistic to think that the SD card creator had records other than the purchase orders and invoices. 46.2. The SD card creator also had access to numerous photographs of the screen of the claimant’s original phone. 11 of 14 46.3. The SD card creator must have had in-depth knowledge of the issues in the case, the significance of the Disputed Document, and the importance of establishing the timing of its creation.

[47]If the claimant was not the SD card creator, it would help her case to put forward a credible theory about who else the SD card creator could have been. Her suggestion that the SD card creator was Mr Thomas is unconvincing. I cannot see why he would have wanted to give the claimant all that information. I acknowledge that there are unresolved issues about alleged controlling conduct by Mr Thomas, which might be consistent with his wanting to taunt the claimant after he had won. But the claimant’s theory does not fit with the procedural history of the case. The respondent, up to now, has not demonstrated any willingness to prolong the employment tribunal proceedings, for example, by applying for costs. For the whole of the time that the SD card could have been put in the mailbox (January to April 2021), there was a pending EAT appeal and a pending reconsideration application. The last thing that Mr Thomas is likely to have wanted to do would be to prolong the proceedings by giving the claimant further ammunition.

[48]It is possible that Mr Thomas’ subsequent partner might have wanted to help the claimant if she had separated from Mr Thomas. At first glance, that explanation seems plausible. It would still need to stand up to analysis, particularly against some of the images on the SD card. Why, for example, would Mr Thomas’ partner have wanted to lay such a cryptic trail of information, such as the handwritten address at Appendix 1? Neither the claimant nor the respondent has made any submissions on that point, or any other points to do with Mr Thomas’ partner.

[49]If the SD card creator was someone other than the claimant, that person must have acquired the photographs of the claimant’s mobile phone shown in Appendices 1 to 4. This means that the SD card creator either had the phone itself, or someone had provided the SD card creator with a selection of photographs. The claimant’s evidence has always been that she sent her phone to Levins in July 2019. According to the claimant, the most likely explanation for the photographs reaching the SD card creator is that Levins gave the phone to Mr Thomas. It might be thought that the logical consequence of that submission is that Levins would have had to have lied to the tribunal and to the SRA when they said that they had not received the phone. Neither party addressed me on whether this was a logical consequence of the claimant’s submission or not. Nor did they make submissions on whether Levins were likely or unlikely to have lied in that way. The respondent’s express position is that the images of the phone are irrelevant to the reconsideration application.

[50]I turn to the possibility of the SD card creator being the claimant herself. In my view, I cannot fairly make such a finding. Here are my reasons: 50.1. The respondent does not advance a positive case that the claimant was the SD card creator. 50.2. I cannot reach a finding that the claimant saved the data onto the SD card without at least some understanding of how the claimant could have acquired the data in the first place. Many of the images are from a USB drive, and appear to contain the kind of material that the claimant had consistently been asking to have disclosed to her. I have already discounted the notion that the SD card creator could have fabricated all the invoices, purchase orders 12 of 14 and credit notes from scratch. An alternative explanation is that the claimant had the USB drive all along. If that is correct, the claimant must have made a tactical choice to make dishonest strike-out applications based on a false accusation of alleged failure to disclose the USB drive to her. Such a tactic (if the claimant had employed it) would have been highly elaborate, highly risky and of dubious benefit when she could simply have relied on the USB material in the first place. More fundamentally in my view, the respondent has never suggested this as a possibility. In fact, the respondent has never engaged with any arguments about how the claimant could have acquired any of the data on the SD card. 50.3. Had the point been argued, I might have made a finding that the claimant was the SD card creator based on the images of her phone in Appendix 1-4, and the likelihood (or unlikelihood) of Levins having given the phone to Mr Thomas. But that point was not argued, and the evidence in support of it is stated by the respondent to be irrelevant. 50.4. In conclusion, I cannot find that the claimant was the SD card creator without constructing detailed arguments for myself, which go considerably beyond the respondent’s case. That would, in my view, be going too far beyond the proper bounds of judicial intervention, even on a reconsideration application. It would be passing the limits of what is necessary to achieve the public interest in finality of litigation. A party represented by counsel can be expected not to need significant assistance in articulating its case. If I were to make a serious finding against the claimant that goes beyond the respondent’s positive case, based on the arguments identified above – on which I heard no submissions – it would give every impression that I had taken the respondent’s side.

[51]Having declined to make a finding that the claimant was the SD card creator, I must proceed on the footing that Appendix 18 may well be genuine. The creation properties of the Word file, if genuine, would show that the Disputed Document was created and printed on 24 May 2018. That finding would undermine one of the key arguments in support of my finding that the claimant forged the Disputed Document. Since forgery of the Disputed Document was the basis on which I struck out the claim, the strike-out paragraph cannot stand.

Disposal

[52]I therefore: 52.1. admit the SD card into evidence under the criteria in Ladd v. Marshall; and 52.2. revoke the strike-out paragraph in the interests of justice. Matters for the final hearing

[53]It is important to be clear about what this judgment means. I am not making a positive finding that the SD card is genuine. I am not making a finding that the Disputed Document is genuine. It will still be open to the tribunal to conclude that the claimant forged the Disputed Document, sought to cover up the forgery by sending green sheets of paper to Levins, and then doubled down by fabricating further evidence and lying to the tribunal in support of her second reconsideration application. My only conclusion is that there is sufficient possibility of the Disputed 13 of 14 Document being genuine that it is necessary in the interests of justice to revoke the strike-out paragraph.

[54]It may well be necessary for a tribunal to decide whether or not the information on the SD card is genuine. If the tribunal considers it necessary, the matter will need to be determined by a full tribunal, having considered all the evidence, and with the benefit of detailed argument.

[55]What happened after the claimant opened the front door is captured on video. The claimant asked if there were any more evidence bags, to which Mr Daly replied that he did not have any more. She then signed the white envelope and put a strip of Sellotape over her new signature. The envelope was then placed back into the ripped evidence bag. Mr Daly held the bag up to the light. He could see that the envelope contained an SD card. The ripped evidence bag was sealed with another piece of Sellotape. Satisfied that he had collected what he had come for, Mr Daly signed the evidence bag and took it to his car.

[56]Shortly before he left, Mr Daly said that he would get the SD card “back to our branch”. He may or may not have added the word, “now”.

[57]Mr Daly put the evidence bag into a pelicase and took it home. He only lived a few minutes’ drive away. Once home, he put the bag into his safe. He stayed at home all night on his own. The next day, 31 August 2022, he took the evidence bag from the safe and drove it to CYFOR’s premises in Manchester. On arrival, he placed the evidence bag (with the white envelope still inside) into a brand-new tamper-evident bag which he signed and sealed.

[58]At this point I step out of the timeline again to deal with three points raised by the claimant: 58.1. The first two points are about Mr Daly’s video number 1496. This is the video that begins with the claimant emerging from her front door with the ripped evidence bag. The claimant has produced a large number of screen shots, purporting to show the metadata of Mr Daly’s videos, including number 1496. According to the claimant, the metadata show that this video has been “cropped”, in that two minute’s worth of footage has been “edited out”. This conclusion is evident, she says, from comparing the time stamp of Mr Daly’s video when a particular event happens (such as a passage of speech) with the time stamp on her phone at the time of the corresponding event. For all the previous videos, Mr Daly’s time stamps match the claimant’s time stamps, but for video 1496, Mr Daly’s time stamps are about two minutes out. I considered whether it would be proportionate to examine the metadata more closely to see if they made good the claimant’s argument. I decided that the exercise would not be proportionate. This was because the claimant was unable to tell me 20 of 35 what could have happened in those missing two minutes that Mr Daly might have wanted to keep secret. Nor did she put to Mr Daly what the missing footage might have shown. This was despite the fact that the claimant already knew what had happened and what the video could have captured. She was facing him in the doorway. It is possible that the missing two minutes might have captured some of the time when the claimant was inside the house with the door closed, but nobody suggested that Mr Daly would have been able to film anything of interest during that time, let alone anything that he would then want to delete. 58.2. There is a second argument about the metadata for video 1496. They appear to show that someone edited the video on 6 September 2022. Mr Daly did not accept that he had edited it. Again, I was not able to resolve that particular question. I might have looked into it more closely if the claimant had been able to identify something that the video might have shown that could shed light on the card-switch dispute. She could not. 58.3. According to the claimant, Mr Daly breached the Secure Transportation Clause by taking the evidence bag home. To my mind, it does not especially matter whether he complied with that clause or not. This is not a claim for damages against CYFOR for breach of contract. The fate of the claim and the response hangs on the card-switch dispute. If it were necessary to make a decision about this, I would find that that the Secure Transportation Clause was not breached. The clause required Mr Daly to take the exhibit securely “to and from our head offices”. That is what he did. I accept his evidence that CYFOR sometimes agrees in writing to take an item to its premises directly from the point of collection. CYFOR undertakes this obligation where an item is particularly sensitive. Imaging and analysis of the Kingston SD card

[59]The new bag was booked into CYFOR’s electronic case management system by Mr James Wight at 10.57am on 31 August 2022. It was given CYFOR’s reference number CD1-2022AUG30-01. Mr Wight signed the physical bag and put it in a storage location at CYFOR’s pre-imaging station.

[60]On 2 September 2022, Ms Ellie Horler of CYFOR took the sealed evidence bag and photographed it. The photograph showed the ripped bag inside the sealed bag and the envelope inside both of them. Ms Horler opened the outer bag and took the ripped bag out of it. She then removed the envelope from the ripped bag. She photographed the seal of the envelope. It was still sealed with Sellotape. Underneath the Sellotape was the claimant’s signature.

[61]This is a convenient opportunity to mention two of the points made by the claimant about Ms Horler’s photographs: 61.1. The claimant has compared those photographs with a still image from one of Mr Daly’s videos. She told me that the still image could be seen “from 4.12 seconds onwards in Mr Daly’s video 1496”. That video was of the claimant re-emerging from her front door with the ripped evidence bag. The still image is of the evidence bag on the doormat, with a white envelope inside it. The white envelope on the doormat appears to have fewer creases than the white envelope photographed by Ms Horler. The top of the evidence bag on the doormat appears to be folded down differently from the same evidence bag 21 of 35 in Ms Horler’s photograph. The claimant says that this comparison proves that someone must opened the ripped evidence bag and re-sealed it with Sellotape. This must have been done, she says, after Mr Daly collected the bag and before Ms Horler photographed it. I deal with this point a little later in this judgment, because it is affected by events that happened after my hearing had concluded. 61.2. Ms Horler’s photographs of the envelope seal do not show the whole of the envelope. There is a little bit missing towards the right edge. The claimant says that this is suspicious. Presumably her suspicion is that someone could have opened the right-hand corner of the envelope to swap the SD cards, and a person looking at Ms Horler’s photograph would be none the wiser. I do not think that this happened. This is for two reasons. First, it was evidently Ms Horler’s intention to photograph the Sellotaped signature to demonstrate that the seal of the envelope was intact. It is in the centre of the image. Second, the envelope was sealed before the Sellotape was put on it. No-one could have swapped the SD cards through the corner of the envelope without visibly disturbing the seal. Had that happened, I am sure Ms Horler would have noticed it. That means either that the corner seal was unbroken or that it was broken and Ms Horler has deliberately covered it up. I cannot think why Ms Horler would have wanted to do that.

[62]Ms Horler opened the white envelope. Inside it was a Kingston SD card. It was not SanDisk branded, and had a different serial number from the one that the claimant had videoed herself putting into an envelope. At that time, Ms Horler would have had no reason to find these details in any way significant. She had no reason to think that the claimant had given Mr Daly anything other than the Kingston SD card that she had in front of her. Having photographed the Kingston SD card itself, she took a forensic bit-for-bit image of it. The image was later analysed. The results of the analysis are set out the report of Mr Robert Gallagher, a CYFOR senior digital forensic investigator. His report is dated 6 September 2022. These were Mr Gallagher’s findings: “A review of the contents of the drive was undertaken. No live user data was identified on the drive. An in-depth forensic analysis of the drive was undertaken, to identify and recover any potentially deleted files on the drive. No deleted data was found to be present. Following this analysis, it appears that the drive which has been provided to CYFOR is either empty or has been wiped of all data”.

[63]It will be seen that Mr Gallagher outlined CYFOR’s findings in the passive voice. That might have cast doubt on the reliability of Mr Gallagher’s opinion if the claimant had challenged the forensic image analysis, or suggested that the Kingston SD card had been incorrectly imaged. But that is not what is in issue. Both sides positively contend that, by the time Ms Horler imaged the Kingston SD card, the cards had been switched. It is therefore unsurprising that the Kingston SD card was found to be blank. The card would not contain the claimant’s data whether it was the claimant or someone else who had switched the cards. Aftermath of the CYFOR analysis

[64]On 5 September 2022, Mr Coleman of CYFOR e-mailed Mr Mould with a summary of Mr Gallagher’s findings. Later that day, Mr Mould informed the 22 of 35 claimant by e-mail that the SD card was “completely empty” and asked for an explanation. The claimant replied the same day, expressing her disbelief. Her email criticized the delay of 6 days between the collection of the SD card and her being informed that it was blank.

[65]Mr Mould respondent the next day by forwarding Mr Coleman’s e-mail to the claimant. He added, “CYFOR are a busy team and only started work on your SD card yesterday.”

[66]Two points of detail in Mr Mould’s e-mail are relevant to the claimant’s strikeout application: 66.1. According to the claimant, Mr Mould was lying about when CYFOR had started work on the SD card. I disagree. In one sense, the e-mail was inaccurate, in that the SD card had been imaged on 2 September 2022; if imaging counted as “work” on the card, then the work had started three days earlier than Mr Mould’s e-mail stated. But if the “work” was the analysis, then Mr Mould’s date would be correct. In my view, this is a hair-splitting point. It does not expose Mr Mould as a liar. I do not see what Mr Mould could have wanted to achieve by pretending that CYFOR had started work later than they had. Mr Mould had no delays of his own to want to conceal; he had informed the claimant of CYFOR’s findings on the day that they had been provided to him. 66.2. When the claimant received Mr Mould’s e-mail, she noticed that at the foot of the e-mail there was a “dot inside a square”. She clicked on it and a large amount of plain-text data appeared. The code included IP addresses. After some correspondence between the claimant and Mr Mould on the topic, Mr Wilkinson of Slater Heelis’ IT department examined the data and concluded that it was the header information that was “publicly available on any e-mail”. I have no reason to conclude otherwise.

[67]On 12 September 2022, Mr Daly delivered the Kingston SD card to the claimant inside the white envelope that the claimant had given him. By this time, someone had put some additional Sellotape on the envelope. The claimant says that this was done to make it more difficult to tell how many times the envelope had been opened. I am unpersuaded by the claimant’s theory. The white envelope had been opened at least once by Ms Horler. That would have involved breaking the seal. With or without additional Sellotape, it would be hard to tell if the corner of the envelope had also been opened at some earlier stage.

[68]The exchange was recorded on video. Mr Plumbley was there as a witness, this time out in the open. They talked as they went about their business. To compress the conversation, the claimant did not openly challenge Mr Daly or say that she was getting back the wrong card. Instead, she and Mr Plumbley asked questions designed to catch Mr Daly out, based on research that they had already done on him.

[69]The parties made many points about the significance of what the claimant said or did not say. Little of it matters. It does not help to resolve the card-switch dispute. The claimant’s behaviour is consistent with her knowing all along that she had given Mr Daly the Kingston SD card and trying to find ways to build a case that Mr Daly had swapped the cards. It is equally consistent with her believing that she had been seriously wronged by CYFOR and trying to expose their deception. 23 of 35 Likewise, if she believed she had given Mr Daly the SanDisk SD card, she might have been expected to point out that she had been given back the wrong one, but she might well have wanted to make the exact-same point if she had been trying to pretend that someone else had swapped her SanDisk SD card for the Kingston SD card.

[70]I need to mention one particular exchange in more detail. This is because the claimant has attached a great deal of significance to what was said. 70.1. Mr Plumbley asked Mr Daly, “When you take them in, so say for instance you had picked that up today you take it to the office and he signs it that its in today?” 70.2. Mr Daly replied, “Er yeah, erm, so you’d have to clarify that with, because, I’m only the courier, so I don’t know the process when it gets passed to him, I haven’t got sight of the process, but it does go into secure evidence store and then he would be responsible for signing it.” 70.3. The claimant asked Mr Plumbley, “When did you take it back into the office?” 70.4. Mr Daly said that he would have to check his records, and then added, “But I can advise that it was sealed throughout.”

[71]I will return to the impact, if any, of Mr Daly’s replies later in this judgment.

[72]In the meantime, CYFOR reviewed its transportation procedures. An internal policy document was updated and given the date 6 September 2022. Paragraph 4.4 stated: “All exhibits are to be safely stored in a …carrycase …This case will remain secure during travel by use of a high security lock to be attached around the chassis of the vehicle for theft protection.”

[73]The claimant says that Mr Daly did not comply with this procedure. He failed to secure his pelicase to the chassis of his car as he drove home. (It may also have been the claimant’s case that he committed a similar breach the following day as he drove to Manchester, but Mr Daly told me that he did in fact secure his pelicase for that journey. There is no evidence to contradict what Mr Daly had to say about that.) I assume in the claimant’s favour that paragraph 4.4, or its equivalent, existed in August 2022 and the 6 September 2022 document merely restated it. Working on that assumption, Mr Daly did not comply with this requirement. It makes no difference. The pelicase was loose in the car for a journey of a few minutes. Mr Daly did not get out of his car on his way home. He never left the pelicase unattended in his car. Nobody could have touched the pelicase without Mr Daly knowing. Whilst the claimant was questioning Mr Daly about this, I asked her whether she would be suggesting that somebody other than Mr Daly could have switched the SD cards as a result of Mr Daly’s failure to secure the pelicase to the chassis. The claimant did not reply.

[74]Paragraph 4.5C(a) of the same procedure document stated, on 6 September 2022, “A supply of evidence bags will be provided to any person responsible for the collection of evidential items.” 24 of 35

[75]I assume, again, that the same requirement existed in August. I have added bold text to emphasise, as the claimant does, that the word “bags” is used in the plural. Mr Daly should have been provided with more than one bag. Had he been given a spare, he could have sealed the second bag and it would have been harder for the claimant to maintain that the Kingston SD card was not the card she had given Mr Daly. But I must not lose sight of what I actually have to decide. The claimant’s case is that someone deliberately swapped the cards. If that person was Mr Daly, he could not have known in advance that the claimant would tear his only evidence bag open.

[76]The claimant has done some further research on connections between CYFOR and the respondent. I was unable to pinpoint the precise dates on which she discovered particular pieces of information, but it does not matter. The connections that she has discovered are: 76.1. CYFOR’s Managing Director is Mr Tobias. He went to the same high school as Ms Ferrario. He and she were 3 school years apart. The school is near a place of worship. Both the school and the place of worship are dedicated to the same religion. (It is irrelevant what religion it was. If the identity of the religion has any significance at all, it is that it has historically been associated with the negative stereotype that people who share that religion have a tendency to conspire with one another. I should add that the claimant did not expressly invite me to reach any conclusions based on such a stereotype.) The claimant says she was “horrified and appalled” when she discovered these facts. 76.2. To the claimant’s “disgust and disbelief”, Mr Gallagher, the author of the report, was employed by Greater Manchester Police (GMP) at a time when Mrs Ferrario was in-house counsel for the same organization.

[77]The claimant suggests that CYFOR had a conflict of interest as a result of these connections. She goes on to allege that Slater Heelis acted unreasonably by failing to request a conflict check from CYFOR and by failing to complete one themselves.

[78]I do not see any conflict. Nor do I think that there was anything that could have alerted CYFOR or Slater Heelis to any possible conflict. There is nothing in these facts to suggest that Mr Tobias and Ms Ferrario were friends, even as children. It is more difficult still to infer that they maintained any friendship through to adulthood, let alone a friendship strong enough to make Mr Tobias want to do Ms Ferrario any favours in conflict with his duty to ensure that CYFOR acted impartially.

[79]Likewise, I cannot see how anybody, Slater Heelis or otherwise, could reasonably have suspected that Mr Gallagher’s independence was compromised by his work for GMP. That organization has thousands of office-holders and employees. There is no particular reason for thinking that he and Mrs Ferrario worked closely with each other.

[80]There are two additional factors common to both alleged conflicts. 80.1. Mrs Ferrario had stopped representing the respondent at the time when Slater Heelis instructed CYFOR. There is nothing to suggest that she retained any personal interest in the case. 25 of 35 80.2. Mrs Ferrario is a barrister in independent practice. Her conduct is regulated by the Bar Standards Board. Experts have a duty of impartiality. The claimant is implying that CYFOR analysts might have been biased towards the respondent because of a personal connection with Mrs Ferrario or, worse, that there was a risk that Mrs Ferrario might use her personal connection with people at CYFOR to influence them to produce a report favourable to her former client. Either way, it would involve a professional person being in serious breach of their professional duty. There is no evidence that this happened. Nor was there anything that could have alerted Slater Heelis to the risk of it happening.

[81]On 21 November 2022 – after I had reserved my judgment – the claimant made a written complaint to CYFOR. Her complaint was copied into the CYFOR’s accrediting body, UKAS. As evidence in support of her complaint, she sent CYFOR the photographs of the evidence bag that I have already mentioned at paragraph 61.1 above. She also highlighted written procedures that she alleged had not been followed.

[82]On 16 December 2022, the claimant received a reply from Mr Paul Beechinor, CYFOR’s Finance and Operations Director. His reply included a summary of his report: “Firstly there are elements of the CYFOR Evidence Transfer Procedure that are ambiguous and as a result the procedure is being updated to be clearer. Secondly, I am disappointed with the way in with [sic] Chris Daly handled the evidence in this case and as Quality Manager of CYFOR he should have known better. In his capacity as a courier he should have had a spare evidence bag and when the bag was ripped open, without a replacement bag, the collection should have been aborted and re-arranged. Had Chris been staying with CYFOR I would have placed this on record, but he is leaving CYFOR on 23rd December.”

[83]The report dealt specifically with the claimant’s photographs of the evidence bag and the fold marks. This is what Mr Beechinor found: “I agree that the image of the bag in your letter… is different from when it was opened in our lab. Chris Daly advised that when he returned to CYFOR in order for the evidence bag, with the envelope inside, to fit inside a second evidence bag, the sellotape of the ripped tamper bag was moved further down to allow for a larger fold. In hindsight Chris Daly accepts this should not have been done.” Lies allegedly told by Mr Daly

[84]I now go back over these events to examine the claimant’s assertion that Mr Daly has told lies about what happened. Alleged lie on 30 August 2022 – “back to the branch now”

[85]The next point the claimant makes is about the significance of Mr Daly’s remark, “back to our branch”, or “back to our branch now” (see paragraph 56).

[86]The claimant says that Mr Daly did use the word “now” and, in using that word, he was lying to her about his intentions. As we know, Mr Daly did not take the evidence bag directly to CYFOR, but took it home first. Mr Daly denies having said “now”. It might have been possible to resolve that dispute by replaying the video. 26 of 35 Nobody asked Mr Mould to do that. I did not think it was necessary to ask him on my own initiative. This is because, even if Mr Daly had said, “back to our branch now”, it did not mean that he lied to the claimant. He was not necessarily saying that he would take the SD card to the office directly and non-stop. The word “now”, if he used it, was equally consistent with Mr Daly simply telling the claimant what would happen next. Alleged lie on 12 September 2022 about being a courier

[87]The claimant says that Mr Daly told her a lie on 12 September 2022 when he told her that he was “only the courier”. Mr Daly was employed as a Quality Manager. As the claimant sees it, this is another reason why the response should be struck out.

[88]I do not think Mr Daly was lying. He could not have hoped to get away with it. He knew that his words were being captured on his and the claimant’s own videos. In any case, his reply has to be understood in its context. He was explaining that he was not involved in the handling of evidence once it was booked in. So far as his dealings with the claimant’s SD card were concerned, his only responsibility was to take it to CYFOR’s office and return it to the claimant. That is what a courier does. He was not saying that he had no other role in CYFOR. He was saying that he had no other role in the journey of the claimant’s SD card. Alleged lie on 12 September 2022 about the seal

[89]The claimant says that Mr Daly lied to her again on 12 September 2022, by saying, “I haven’t got sight of the process,” and “But I can advise that it was sealed throughout” (paragraph 70).

[90]These statements are alleged to be inconsistent with what Mr Daly told Mr Beechinor (paragraph 83).

[91]Whether Mr Daly’s remarks are consistent or inconsistent with what he appears to have told Mr Beechinor depends on what, precisely Mr Daly was talking about. Was he saying that the ripped tamper-evident bag had remained sealed throughout? Or was he saying that the thing that had remained sealed was the white envelope which he was in the process of returning to the claimant? If it was the white envelope, there would be no inconsistency. If he was referring to the ripped tamper-evident bag, that is different from what he is reported as having told Mr Beechinor. In my view, the difference does not expose him as a liar. If Mr Beechinor has correctly reported Mr Daly, all Mr Daly was saying was that there was a moment when Mr Daly took the Sellotape off the ripped tamper-evident bag, so that that bag could re-folded to put in another bag. If that was a breaking of the seal, it was momentary and in CYFOR’s office. Alleged perjury at the hearing about the seal

[92]The claimant accuses Mr Daly of perjuring himself whilst answering her questions during the hearing.

[93]The claimant’s notes of the exchange read as follows: “CL no Right hand side CD no coment – not spoken to CL envelope sus plastered, no pic took 27 of 35 CD handled by him put in back not opened in his possession

[94]My notes are broadly consistent, but may have rolled up the two questions and answers. They read (with expansion of abbreviations): “Q – Would it be suspicious that a photo has been taken of everything else except the right-hand side of the envelope and then plastered in Sellotape? A – The exhibit when it arrived at CYFOR was handled by me. It was put in a tamper evidence bag. With certainty I know it was not opened in my possession.”

[95]The claimant says that Mr Daly was perjuring himself, because this evidence is inconsistent with what he is reported as having told Mr Beechinor. I disagree. First, from the claimant’s own notes, Mr Daly was being asked about the envelope, not the ripped tamper-evident bag. Second, the claimant did not ask Mr Daly if he had taken the Sellotape off the ripped tamper-evident bag before re-folding it to put it into the second tamper-evident bag. Third, even if Mr Daly was talking about the tamper-evident bag, I have not heard directly from Mr Beechinor and the respondent has not had the opportunity to ask him questions. I briefly considered whether it would be worthwhile to re-list the hearing so that both Mr Daly and Mr Beechinor could be questioned on these points. In my view, the exercise would be disproportionate. This is only one small part of the overall evidence in relation to the card-switch dispute. Finding on the card-switch dispute

[96]Having gone into an unusual amount of detail, and rejected the claimant’s specific allegations of lies told by Mr Daly, I am now in a position to make a finding on the card-switch dispute.

[97]My finding is that it was the claimant who swapped the SD cards.

[98]She did it behind her front door so Mr Daly could not see. She videoed the SanDisk SD card inside an envelope, then moved her phone so her camera would not record her picking up a second envelope. That second envelope contained the Kingston SD card. It was that envelope that she had in her hand when her phone camera was next pointed at what was happening. It was a risky and complicated sleight of hand. That is why she was so nervous. But, I find, she found herself forced into this deception because she had been cornered. She knew that, if she handed over a SD card with data on it, there was a high risk that CFYFOR would analyse it and conclude that the data was not genuine. By “not genuine”, I mean it was not what the claimant had represented it to be in her second reconsideration application.

[99]I reached this conclusion from the same starting point as I recorded in the original judgment (at paragraph 148): “My starting point is that it is an extremely serious matter for a party to forge documents, seek to rely on them at a tribunal hearing, and then to try and cover up the forgery. Any party to a tribunal claim must know that. They would also know that they would face serious consequences if their behaviour was discovered. It will be very unusual for a party to 28 of 35 run that risk. Persuasive evidence is needed to prove that such an extraordinary event has occurred.”

[100]The evidence in this case is beyond persuasive. In fact, it is compelling. I have formed that view for the following reasons: 100.1. First, I found Mr Daly’s oral evidence to be reliable. Contrary to the claimant’s submissions, he did not lie to her on video. I do not think he lied to me either. I have explained that, if there were inconsistencies in what Mr Daly said at particular times, those inconsistencies were not deliberate lies. They do not fundamentally discredit his evidence. 100.2. Mr Daly had no connection to either party. I do not see what Mr Daly had to gain by swapping the SD cards. 100.3. I have considered the possibility that Mr Thomas might somehow have secretly induced Mr Daly to pervert the course of justice on his behalf. That possibility is fanciful in my view. Assuming Mr Thomas to have been of a mind to interfere, he could not have known whom to nobble until the claimant had chosen from the respondent’s list of three analytics providers. He could not have known that the claimant would choose CYFOR. There may be criminals in the world who are powerful enough to nominate three separate forensic analytic organizations, in the confident belief that they could persuade any one of them to pervert the course of justice. I do not think that Mr Thomas wielded that degree of power. 100.4. Mr Daly could not have predicted that he would have any opportunity to swap the SD cards. He had a tamper-evident bag, which he sealed. Had the claimant not ripped that bag open, he would not have had any chance to swap the SD cards without breaking the seal. CYFOR’s analysts would inevitably discover the broken seal and know that the exhibit had been compromised. As it turned out, he ended up taking the envelope to CYFOR’s office in a ripped evidence bag, but he had no way of knowing in advance that the claimant would rip the bag. 100.5. The claimant’s evidence of what happened on 30 August 2022 is inconsistent with her own behaviour on that day. 100.6. She told me that her purpose in videoing the handover was: “Because of what Mrs Ferrario said in March 2020 in the hearing; she said, ‘Why didn’t you record it better, why didn’t you put yourself in the video?’ I was recording it for my own protection and my own records and I’m glad I did.” 100.7. In other words, she wanted unassailable video footage of her handing over her item of original evidence, so that the respondent could not later turn around and accuse her of handing over something different. 100.8. If that is what she wanted, she could have videoed the SD card going straight into the bag. She could have avoided using an opaque envelope at all. She could have held up the SD card to her camera, or Mr Daly’s camera, whilst she was outside on the doorstep. There would then have been footage of the SanDisk logo and even the serial number, and that footage would have been continuous with the shot of the SD card going into the envelope or bag. Once 29 of 35 the tamper-evident seal had been closed in front of her, she could have just let Mr Daly take the sealed bag away. 100.9. The claimant ripped open the bag once it had been sealed. I assume for a moment that the claimant thought it was necessary for a legitimate purpose. But even then, her subsequent behaviour was still odd for someone who wanted to get the best evidence of giving a particular SD card to Mr Daly. By the time she ripped open the sealed bag, she knew that the seal was tamperevident. She had not yet been informed that there were no more tamperevident bags available. At that point she had no need of another opaque envelope. Or, if she still thought that an envelope was needed, she could have kept her phone pointed at the envelope from the point of the SanDisk SD card going into it until the envelope was handed to Mr Daly. If that was tricky, because of the need to open the front door, she could easily have asked Mr Plumbley to help her (if he was there) or, even more obviously, she could have done the whole thing with the front door open so that Mr Daly could see it and get a video of it. 100.10. I cannot consider the events of 3 August 2022 in isolation. It has to be seen in the context of the procedural history as a whole. On any view, this is now the third occasion where:(a) the claimant has claimed to have an item of important original evidence (data on her phone, the Disputed Document and now the SD card);

(b) the respondent has alleged that the evidence was fabricated and proposed that it be forensically analysed;

(c) forensic analysis would be likely to assist the tribunal in deciding whether the original evidence was genuine or not;

(d) the claimant has sent an item or provided it for collection;

(e) the recipient of the item was someone other than the respondent (Levins twice and now Mr Daly of CYFOR);

(f) the claimant has acquired and kept evidence appearing to support her claim of what she sent or provided;

(g) that evidence was not conclusive because of gaps over which the claimant had control;

(h) the recipient of the item has then claimed that the item she sent or provided was something different from the original evidence that the claimant claimed to have sent or provided; and

(i) it would be serious professional misconduct for the recipient to make such a claim either knowing it to be untrue or having no basis for knowing whether it was true or not. 100.11. It cannot be a coincidence that this has happened three times. Indeed, the claimant does not suggest that it was a coincidence. Her theory is that Levins (on two occasions), and now Mr Daly, have deliberately caused her original evidence to go missing and then given false evidence to make the claimant’s behaviour look suspicious. According to the claimant’s strike-out application, this is for two purposes. The first is to avoid the evidence being 30 of 35 analysed and found to be genuine. The second alleged purpose was to make it look as if the claimant was building a false trail of evidence, so that her claim could be struck out rather than determined on its merits. 100.12. For the claimant’s theory to be possible, Mr Daly would have to have switched the SD cards and lied to me about it. But the following things would also have to have happened: (a) Mr Heath, or a member of his administrative staff at Levins, must have lied about the green sheets of paper (see paragraph 151.7 of the original judgment); (b) Someone at Levins must have given the claimant’s phone to the SD card creator, or photographed that phone and given the photographs to the SD card creator. They must have done it at a time when Levins were denying having received the phone in the first place, both to the claimant and to the SRA. They must have given the phone to Mr Thomas or to someone who was not their client. (As I noted in the revocation judgment, the respondent did not rely on this point at the reconsideration hearing. It is now advanced by Ms Barry. I think it is appropriate to consider it.) 100.13. I cannot see what Levins or Mr Daly would have to gain by perverting the course of justice in this way. I also do not see why, if Levins were dishonestly covering up their receipt of the claimant’s phone, they would then give the claimant’s phone to someone (such as Mr Thomas or his then partner). That would be an extraordinary risk for Levins to take: the moment Mr Thomas used anything from the phone, it would be obvious that Levins had given the phone to him. 100.14. Of course, this is an argument that can cut both ways. What did the claimant have to gain by pretending to give Mr Daly the SanDisk card and actually giving him the Kingston SD card? She was certainly taking a big risk. She was deliberately engineering a situation where CYFOR would find no data on the SD card and the respondent would inevitably accuse her of falsifying evidence. I have already recorded my finding that the claimant believed that she had no choice but to take that risk. I also find that she thought she could get away with it. She thought that she would be able to find enough holes in the respondent’s evidence to support the false narrative that it was someone else who had swapped the cards. During the lifetime of this case, the claimant has shown herself to be highly skilled in using technology in support of the points she wishes to make. She is also a tenacious researcher, both into points of detail in the evidence provided to her, and also into publicly-available material on the internet. She has made two reconsideration applications and seven strike-out applications, many of which have been made on multiple grounds and supported by large bundles of evidence. As I see it, the claimant was confident enough in her own ability to obfuscate to make the risk of swapping the SD cards worthwhile. She may have been encouraged in that endeavour by the revocation judgment. Consequential findings

[101]Having resolved the card-switch dispute in the respondent’s favour, I am now in a position to revisit earlier findings. Here they are: 31 of 35 101.1. The claimant, I find, was the SD card creator. The respondent now positively asserts that this is the case. I agree. Nobody but the claimant could plausibly have wanted to load the SD card with the data referred to in the second reconsideration application, and lay cryptic clues back to the respondent. Had the claimant thought that someone had done that, and then put the SD card in her mailbox, she would have had no reason to switch the cards when the time came for the SD card to be forensically analysed. (My revocation judgment mentioned a factor that lent support to the claimant not having been the SD card creator. That was the fact that the SD card creator must have had access to the business records. A possible explanation is that the claimant had the records all along, and took a tactical decision to apply to have the response struck out rather than rely on the evidence in the first place. I have not found it necessary to make a positive finding of fact about whether that is the explanation or not. It is sufficient to say that the fact that the SD card creator had the business records does not outweigh the other evidence that compels the conclusion that the SD card creator was the claimant.) 101.2. The claimant forged the Disputed Document and pretended to send it to Levins. I reach these findings for the same reasons as I did in the original judgment. Those reasons could not safely stand whilst the possibility existed that the SD card might be genuine. But the SD card was not genuine. The images on the SD card are not reliable evidence, because the claimant put them there, then claimed untruthfully that someone else had done so. Relevant law Striking out

[102]At paragraphs 155 to 163 of the original judgment, I set out the law relevant to striking out claims and responses. I have reminded myself of those legal principles. Reconsideration

[103]Reconsideration of judgments is governed by separate rules and legal principles, which I have set out in the revocation judgment at paragraphs 26 to 34. I do not believe that they have substantially changed since then. Social context

[104]The original judgment drew on guidance from the Equal Treatment Bench Book about the impact of a person’s mental health on the way they give their evidence. I have borne that guidance in mind in reaching this decision, just as I did when I reached the original judgment. Conclusions Response not struck out

Conclusions

[105]The claimant’s seventh strike-out application does not succeed. The following table sets out the claimant’s grounds for striking out the response, together with my brief conclusion on each one. The lettering in the left-hand column is taken from the claimant’s written application. Ground Conclusion Paragraph 32 of 35 of this judgment A “Any evidence The respondent is not responsible for 97, 100.12 submitted by myself that the evidence going missing. The is damaging to the claimant only pretended to send the respondent’s defense Disputed Document and the SanDisk has gone missing.” SD card. Levins did not cause the claimant’s phone to go missing in the way that is alleged. B “…The respondent is It was appropriate of Slater Heelis to 40 trying to prevent the insist that one SD card be analysed submitting into evidence at a time. the new SD card from myself”. C “Slater Heelis did not There was no conflict. There was 76 to 80 request a conflict test to nothing to alert Slater Heelis or Cyfor and did not CYFOR to any risk of a conflict. complete one themselves”. D “The fraudulent and Mr Daly did not behave fraudulently. 50, Error! misleading behaviour of He did not lie to the claimant. He did Reference Mr Daly and show the claimant the video source not evasiveness on not recording. found., 70 showing myself the video of the SD card going into the envelope…” E “None-compliance of I do not think that it is proportionate to 59 to 63, 72 regulation in relation to examine CYFOR’s conduct alongside to 75 chain of custody, Home Office rules. CYFOR were not evidence bag acting for the Home Office. This was procedures, and a not a criminal case. If there were any biased report not shortcomings in the evidenceconforming to the home handling procedures at CYFOR’s office guidance and premises, they do not shed light on rules, based on an SD the card-switch dispute. In any case, card that I did not CYFOR were not conducting the provide.” proceedings as the representative of the respondent. The claimant did provide the Kingston SD card. F “Mr Plumbley has made I considered Mr Plumbley’s evidence 54 a witness statement that in reaching my finding that the I did in fact submit a claimant swapped the SD cards. 33 of 35 2GB SanDisk SD card.” G “The respondent’s Neither the respondent nor Slater 31, 97 communications via Heelis planned for the SD cards to be Slater Heelis from the switched. Their communications with outset of the claimant do not betray any such communications, in plan and, in any case, I found that it saying the purported SD was the claimant who swapped the card and continuance of SD cards. my case and the fact that the SD card has gone missing reads like a book with a for drawn, orchestrated and preplanned conclusion”. Striking out

The claim

[106]I have no choice but to conclude from my findings of fact that the claimant has conducted the proceedings unreasonably.

[107]A fair hearing is no longer possible. As I stated in the original judgment, there are fundamental disputes of fact. These have since been clarified in my case management order. The factual disputes will be dependent on reliability of the evidence of witnesses including the claimant. That reliability has been irretrievably damaged by the lengths to which she has gone to fabricate evidence and pretend to send it to others.

[108]I would in any event have concluded that the claimant’s unreasonable behaviour was a deliberate and persistent abuse of the tribunal’s process. It is one of the rare occasions where the tribunal can strike out a claim even where a fair hearing would still be possible.

[109]It is proportionate to strike out the whole claim. This is not just because of the gravity of what I have found the claimant to have done. It is because there is no part of the claim that escapes its impact. All the claimant’s complaints depend on my resolving disputes of fact, which the tribunal cannot now fairly do. If these points do not speak for themselves, the original judgment explores the issue of proportionality in more detail. I would adopt those reasons again.

[110]The claim is therefore struck out. Reconsideration of the revocation judgment

[111]In my view it is unnecessarily cumbersome to reconsider the revocation judgment in view of my conclusion that the claim should be struck out in any event. 34 of 35

[1]This claim has a long procedural history and I do not repeat it here.

[2]Very shortly, I struck out the claim following a two-day hearing in November 2022. I found that the claimant had engaged in a deliberate and elaborate deception in the pursuit of her claim. I found that she had pretended to hand a SanDisk SD card to Mr Daly, who had attended her home to collect an SD card for forensic analysis. The card she actually gave to Mr Daly was a blank Kingston SD card. She initially placed the SanDisk card in an opaque white envelope, but went back inside her house and secretly swapped the cards whilst Mr Daly could not see her. In reaching this conclusion I took account of previous instances where the claimant had claimed to have given important original evidence to professional representatives of the respondent, only for that evidence to go missing. The previous original evidence included a mobile phone and an allegedly-forged written contract of employment (which I called “the Disputed Document”). Having found that the claimant had switched the SD cards, I concluded that she had created the SD card and had forged the Disputed Document. In those circumstances, I took the view that a fair hearing was no longer possible and struck out her claim.

[3]My reserved judgment to that effect was accompanied by written reasons (“Reasons”). 1 of 8

[4]The claimant has applied for reconsideration of that judgment. This is her third reconsideration application. At the same time, the claimant made an eighth application to strike out the respondent’s response.

[5]Her application, dated 18 January 2023, was accompanied by a 9-page appendix, and contained embedded links to three videos, two of which were new. I have read both documents and watched both the new videos. Grounds for reconsideration

[6]The reconsideration application is clear and well structured. It is divided into nine grounds for reconsideration, many of which are based on multiple distinct arguments.

[7]I summarise the main points here: Ground 1 – “SD Card Switch Dispute”

[8]The claimant asks me to reconsider my finding that the claimant swapped the SD cards. Ground 1 engages in particular with my finding that the claimant had an opportunity to swap one white envelope for another whilst she was inside her house. I found that the claimant had such an opportunity whilst she was making a video on her phone. This finding was supported, in part, by my observation that there was “no visible footage for a few seconds”. I went on to find that the claimant moved her phone so her camera would not record her picking up a second envelope.

[9]The claimant now says that my observation was incorrect and my consequent finding unsustainable. She seeks to rely on a new video with added commentary in the form of captions. Her case is that the video demonstrates that the envelope was only out of view for just over one second, and that she would not have been able to swap envelopes in that time. Ground 2 – “No-one could have swapped the SD Cards through the corner of the envelope without disturbing the seal”.

[10]The passage quoted in the heading of Ground 2 is taken from paragraph 61.2 of the Reasons. It is the claimant’s case that that statement is factually incorrect.

[11]The claimant relies on a new video showing a person removing an SD card from the white envelope without breaking the seal. This delicate operation is completed in approximately two minutes with the assistance of a pair of tweezers. Ground 3 - Claimant is the SD card creator and withheld evidence and pretended to post mobile phone and documents & USB to Levin’s Solicitors

[12]In support of Ground 3, the claimant seeks to rely on two new pieces of evidence.

[13]The first is a statement from Jacob Langtry, the claimant’s son. In his statement, Jacob says he witnessed the claimant (his mother) wrapping her phone in bubble wrap, putting it into an envelope with a letter to Levins, giving the envelope to a member of staff at the Post Office and paying the postage.

[14]The second is a screenshot of information apparently provided by Royal Mail. According to that screenshot, “Tom” at Royal Mail informed the claimant that, once an item has had postage applied to it and has been accepted for sending over the counter, it cannot be handed back or tampered with in any way. Ground 4 – My witness Mr Plumbley 2 of 8

[15]The claimant makes three essential points about my findings in connection with Mr Plumbley: 15.1. She wishes to rely on Jacob’s new statement to prove that Mr Plumbley was present in the house when Mr Daly collected the SD card. 15.2. She asks me to reconsider my assessment of the reliability of Mr Plumbley’s evidence. Mr Plumbley told me that he had communicated with the claimant using hand gestures instead of speaking to her out loud. I found that this would have been a strange thing for him to have done. The claimant says that this finding failed to take proper account of her hearing disability. 15.3. She says that I have confused her “lounge” (which she says she does not have) with her “living room area” and that had I not been confused in that way I would not have regarded Mr Plumbley’s evidence as inconsistent with that of the claimant. Ground 5 – Mr Daly’s cropped video

[16]The claimant alleged that one of Mr Daly’s videos must have been edited to delete approximately two minutes of footage. In my Reasons at paragraph 58.1, I explained why I did not need to make a finding on the point. Part of my explanation was that the claimant could not think of anything that happened on video during that two-minute window that Mr Daly could have wanted to delete.

[17]In Ground 5, the claimant has identified some events that might have been captured by the missing footage. These are: 17.1. a conversation about the claimant going back into the house, during which Mr Daly allegedly omitted to request to keep hold of the evidence bag; and 17.2. the claimant writing her email address on a form provided by Mr Daly. Ground 6 - Judge Horne’s finding that I am the creator of the SD card

[18]The claimant wishes to rely on further details in images which she says were on the SD card placed in her mailbox. (These were the images screenshotted for the purpose of her second reconsideration application.) The claimant says that these details demonstrate that she could not have taken those images.

[19]Another new piece of evidence is put forward in support of this ground of her application. The evidence takes the form of published material from Microsoft, purporting to show that meta data and file properties cannot be changed.

[20]The remainder of Ground 6 appears to be a repeat of Ground 3. Ground 7 – The “Doorstep SD card”

[21]Reasons paragraph 39 uses the phrase, the “Doorstep SD card” to refer to a further SD card which the claimant also says was anonymously given to her.

[22]In Ground 7, the claimant seeks to rely on new evidence from a witness, Mr Hollihead, who will apparently confirm that the claimant told him that she had discovered an SD card on her doorstep. Material on the Doorstep SD card includes an image of the Disputed Document tending to show that a printed copy of the Disputed Document existed on or soon after 24 May 2018. If that was correct, many of the reasons that I originally took into account when concluding that the Disputed Document was forged would fall away. 3 of 8 Ground 8 – Personal Comments to claimant by Judge Horne

[23]In Ground 8, the claimant focuses on three comments: 23.1. that the claimant has shown herself to be highly skilled in using technology in support of the points she wishes to make (Reasons paragraph 100) 23.2. that the claimant is a tenacious researcher (same paragraph) and 23.3. an implied accusation that the claimant is anti-Semitic (Reasons paragraph 76.1).

[24]The claimant contends that these comments were unfair and derogatory. Ground 9 – Unconscious Bias

[25]The claimant makes 15 points in support of her contention that my decision was influenced by unconscious bias. Broadly speaking, these points can be divided into two categories: 25.1. The claimant contends that I uncritically accepted various points made by counsel for the respondent, ignoring evidence to the contrary; and 25.2. The remarks I made (see Ground 8), together with my view of the reliability of Mr Plumbley’s evidence about hand gestures, suggest that my conclusion was influenced by stereotypes.

Relevant law

[26]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”. The making of reconsideration applications is governed by rule 71.

[27]Rule 72(1) states that an employment judge must consider any application made under rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application must be refused.

[28]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.

[29]The old Employment Tribunal Rules of Procedure 2004 required that judgments could be “reviewed”, but only on one of a prescribed list of grounds. One of those grounds was that “new evidence [had become] available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time.” This proviso reflected the well-known principle applicable to civil appeals derived from Ladd v. Marshall

[1954] 3 All ER 745

, CA.

[30]The current 2013 Employment Tribunal Rules of Procedure replaced the old list of grounds with a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. Nevertheless, the “interests of justice” test must, in my view, incorporate a strong 4 of 8 public interest in the finality of litigation, even if it is not as inflexible as the proviso in the 2004 Rules. Where a party could reasonably have been expected to rely on the evidence first time around, it would take a particularly good reason to give that party a fresh opportunity to rely on it. Conclusions Admissibility of new evidence

Conclusions

[31]Many of the reconsideration grounds are based on new evidence. In order for that evidence to be admitted at reconsideration stage, the claimant would need to show that she could not reasonably have known of or foreseen its existence prior to the hearing in October 2023.

[32]For the purposes of this preliminary consideration, I have assumed that the claimant has a reasonable prospect of overcoming that hurdle.

[33]I take into account what the new evidence appears to show when deciding whether there is any reasonable prospect of my judgment being varied or revoked.

[34]There is no reasonable prospect of the claimant being able to show that she had no opportunity to switch the SD cards.

[35]I disagree that there is only (just over) a second where the envelope is out of view. The claimant’s original video from inside the house contains approximately 13 seconds of footage (between 14 and 27 seconds into the video) where virtually nothing can be seen. The image consists of various shades of grey. That footage occurs between the claimant placing the SanDisk SD card into the envelope and her holding an identifiable white envelope. It all occurs before the first caption in the new video, which is at 37 seconds into the recording.

[36]The claimant says that the video shows the camera being placed on top of the white envelope and staying there until the first caption. I do not think that the new video reliably shows that. When deciding whether to take the claimant’s frame-byframe analysis at face value, I also have to take into account all the other evidence in the case on the question of whether the claimant’s digital evidence is reliable.

[37]Moreover, even if the claimant’s new video does show that the camera was on top of the envelope until the 37-second-mark, there is still a period of a second during which the claimant could have swapped the envelopes. It would only have taken a moment.

[38]My statement at Reasons paragraph 61.2 should be viewed in its context. I was assessing the force of the claimant’s point that it was suspicious that Ms Horler’s photograph did not show the corner of the envelope. I concluded that there was no merit in it. My conclusion was influenced by my view that the seal would need to be have been broken before the SD card could be extracted from the envelope’s corner. The claimant’s new video shows that an SD card can be removed from the corner of an envelope without breaking the seal. But it does not take the claimant’s argument any further. The tweezer method demonstrated in the video would leave no visible sign of interference at the corner of the envelope. The intact corner is unlikely to have appeared to Ms Horler to be sufficiently important that she should make sure it was included in the photograph. It might be said, I suppose, that Ms 5 of 8 Horler may have kept the corner out the photograph so as to hide the existence of a gap in the seal through which the SD card could theoretically have been extracted by a colleague armed with tweezers and bent on perverting the course of justice. I think that it is unlikely that such a thought ever crossed her mind.

[39]The new video does not raise any reasonable prospect of my varying or revoking the judgment.

[40]I do not think there is any reasonable prospect that Jacob’s statement will cause me to alter my decision either. Any weight that I could place on Jacob’s account of what happened in the Post Office would invariably be diminished by: 40.1. The passage of over 3.5 years between the trip to the Post Office and the making of his statement; 40.2. The risk that the claimant may have influenced what Jacob had to say; 40.3. The fact that Jacob appears to be describing a relatively uneventful trip to the Post Office on the way home from school; 40.4. The importance of precise detail about what the claimant did and in what order, the method by which she paid for the postage and the precise item that the claimant gave to the counter clerk; 40.5. The fact that this was one of three occasions where the claimant claimed to have sent original evidence that then went missing; and 40.6. All the other evidence relating to the phone, including my assessment of how unlikely it would be for Levins to have given the phone to Mr Thomas.

[41]The screenshot from “Tom” at Royal Mail also falls a long way short of what would be needed to disturb my findings of fact. I do not make any additional findings now about what happened to the claimant’s phone. The claimant may have paid the postage at a self-service machine, or asked the counter clerk for the package back at the last minute. There may be some other explanation. My finding would inevitably remain the same.

[42]I did not make a finding about whether Mr Plumbley was in the house or not when Mr Daly collected the SD card. This was because, assuming in the claimant’s favour that he was there, I did not find his evidence to be reliable in relation to whether the claimant had swapped the SD cards or not. I do not think that there is any real prospect of my finding Mr Plumbley’s evidence more reliable on the basis of a witness who says that he was merely present in the house.

[43]I was aware that the claimant had a hearing disability. I was aware of that fact when concluding that Mr Plumbley’s account of making alleged hand-gestures was strange. I have seen many videos of the claimant communicating with others at various times since 2018. In all of these videos, her main method of communication was the spoken word. Mr Plumbley’s account would have been more convincing if he had said he used hand gestures in addition to talking to the claimant, or mentioned her difficulties with hearing. He had already told me that he had “said” that he ought to be a witness to the SD card going into the envelope – a concept which most people would find easier to communicate by putting into words than by silent hand gestures. 6 of 8

[44]The reliability of Mr Plumbley’s evidence has nothing to do with the difference between a lounge and a living room.

[45]There is no reasonable prospect that any re-appraisal of Mr Plumbley’s evidence would cause me to find that the claimant had not swapped the SD cards.

[46]The claimant has now suggested what Mr Daly may have been seeking to cover up by allegedly “cropping” 2 minutes of footage from his video. It amounts to two unremarkable features of their conversation. One is an omission by Mr Daly to ask to keep the evidence bag whilst the claimant went into the house. The respondent did not suggest that Mr Daly had made such a request. The fact that Mr Daly did not ask to keep the evidence bag is unsurprising: the bag was sealed and Mr Daly could not have known that the claimant was about to rip it open. The other thing that happened was the claimant writing her e-mail address on a form. I cannot see any reasonable prospect of my finding that Mr Daly would have tried to conceal those facts by editing video footage, still less any prospect that I would go on from those findings to conclude that Mr Daly had swapped the SD cards.

[47]The difficulty with the claimant’s next reconsideration ground is that it assumes that the screenshots appended to her second reconsideration application are of genuine images and reliable metadata. The purpose of analysing the SanDisk SD card was to establish the reliability of that evidence. Once I found that the claimant had swapped the SD cards, it was hard to resist the inference that she knew that the data on the SD card would not stand up to forensic analysis. That conclusion was supported by the factors I mentioned in my second reconsideration judgment. The points the claimant makes in Ground 6 do not raise any reasonable prospect of varying that finding.

[48]My finding that the claimant had swapped the SD cards was, in my view, fatal to the reliability of any data on the Doorstep SD card. In any case, Mr Hollihead could say little more than that the claimant had told him that the Doorstep SD card was there. There is no reasonable prospect that his evidence would cause me to vary or revoke my judgment. Ground 8 and Ground 9

[49]I take Ground 8 and Ground 9 together. That is because the purpose of reconsideration is not to correct written reasons for a judgment, however derogatory a party may consider particular statements in those reasons to be. Reconsideration of written reasons can only proceed beyond rule 72(1) if there is a reasonable prospect that the decision itself could be varied or revoked.

[50]I do not think there is any real possibility of my altering my view about the claimant’s skill in using technology, or the extent to which she researches details about this case on the internet. This latest reconsideration application is supported by further digital evidence produced by the claimant (albeit with her son’s help), together with the fruits of further online research.

[51]I did not intend paragraph 76.1 of the Reasons to imply that the claimant is antiSemitic. Rather, I was seeking to emphasise that the connection between Ms Ferrario and Cyfor unearthed by the claimant was not as shocking as she would 7 of 8 have had me believe. The claimant had told me that there was a conflict of interests between Cyfor and the respondent. She based this assertion, in part, on the likelihood that Ms Ferrario and a person from Cyfor had gone to the same synagogue. It was the claimant who brought up what kind of religion linked the two individuals. I thought it important to explain why that fact was irrelevant. Once the irrelevant detail was stripped away from the analysis, it was plain to see how innocuous the connection between Cyfor and the respondent really was. I am not going to change my view about that.

[52]I did not accept the respondent’s submissions uncritically. For example, I disagreed with the respondent about the significance of the conversation between the claimant, Mr Plumbley and Mr Daly at the time he returned the Kingston SD to the claimant (see Reasons paragraph 69). In the original judgment I found that the claimant was employed by the respondent, despite the respondent’s submissions to the contrary. My revocation judgment was also in the claimant’s favour.

[53]The very nature of unconscious bias is that, if it did influence my decision, I would not have been aware of it. I attempted to guard against unconscious bias by consciously analysing the evidence in considerably more detail than would usually be proportionate. There is no reasonable prospect that I will decide that I was biased.

[54]If the claimant still considers that the Reasons betray unconscious bias on my part, her remedy is an appeal to the Employment Appeal Tribunal.

Disposal

[55]For the above reasons, the reconsideration application is refused.