M Broomhead v Peninsula Legal Services Ltd T/a Irwell Law and Others: 2402684/2024
EMPLOYMENT TRIBUNALS
Case No 2402684/2024
Between
M BroomheadClaimant1. Peninsula Legal Services Limited t/a Irwell Law 2. Theo Alexander Blauciak 3. Matthew Hassett 4. Robert McKellar 5. Gavin Scarr-Hall 6. Charles CrowRespondent
Before
Employment Judge BattenIn person for claimantDate 28 May 2024
JUDGMENT
[1]the claim is dismissed because the Tribunal lacks jurisdiction to hear it due to judicial proceedings immunity;[2]the claimant shall pay to the first to fifth respondents the sum of £2,000.00 towards the costs of today’s hearing; and[3]the claimant shall pay to the sixth respondent the sum of £1,000.00 towards the costs of today’s hearing.
REASONS
[1]This is the third set of proceedings brought by the claimant against the first to fifth respondents as named above (the other cases being 2408762/2023 and 2411295/2023).[2]On 16 February 2024, in case number 2408762/2023, a case management preliminary hearing took place, conducted by Employment Judge McDonald. The first to fifth respondents were then, as today, represented by Mr Charles Crow, a barrister, who is the sixth respondent in these proceedings. As a result of events at the preliminary hearing on 16 February 2024, the claimant has brought this claim, under case number 2402684/2024, against Mr Crow and all other respondents. Case No. 2402684/2024 2[3]In the course of the preliminary hearing on 16 February 2024, Employment Judge McDonald was invited by Mr Crow to remind the parties about their duty to cooperate in preparing the case for final hearing. The reminder was issued and is recorded in paragraph (8) of the summary of the case management hearing which took place on 16 February 2024. That paragraph says: Duty to co-operate (8) Mr Crow asked me to specifically reiterate the parties’ obligation to co-operate. Other than the findings I will make in my reserved costs judgment, I made no findings at the hearing about whether either party was at fault or had failed to cooperate to date. Although acting in person in this case, the claimant is an experienced employment tribunal litigator, and the respondents are legally represented. Neither side should need reminding of their obligations and it is disappointing if either side has failed to co-operate. They are under an obligation under rule 2 of the Employment Tribunal Rules to assist the Tribunal to further the overriding objective of dealing with the case fairly and justly, and in particular to co-operate generally with other parties and with the Tribunal. As the parties will be well aware, the Tribunal has power to strike out and/or impose costs sanctions if the manner in which a case is conducted is scandalous, unreasonable or vexatious.[4]On 2 May 2024, the claimant presented this claim, case number 2402684/2024. The statement of case appears in the bundle prepared for today, at page 191. In essence, the claimant says that the legal proceedings were a ‘protected act’ for the purpose of section 27(2) of the Equality Act 2010 and the claimant contends that he was “ambushed” by the sixth respondent at the case management conference because the sixth respondent told the Judge that he would be making a complaint about the claimant at the end of the hearing, concerning alleged non-cooperation on the part of the claimant.[5]The claimant contends that the actions of the sixth respondent at the preliminary hearing on 16 February 2024 amount to victimisation, the purpose of which was to embarrass and humiliate the claimant and to interfere with the claimant’s conduct of his case.[6]This preliminary hearing has been listed to hear the respondents’ application made on 24 May 2024, to strike out the claim on grounds of judicial immunity from suit and also on the basis that the claim has no reasonable prospects of success. The applicable law Strike out and dismissal
The applicable law
[7]Rule 37 of schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that a Tribunal may, at any stage of the proceedings, either on its own initiative or upon application by a party strike out a claim or response on a number of grounds, which includes where Case No. 2402684/2024 3 the Tribunal considers the claim or response has no reasonable prospects of success.[8]Rule 39 permits the Tribunal to require a party to pay a deposit not exceeding £1,000 as a condition of continuing to advance an allegation or argument in proceedings before the Tribunal, where it considers that any such allegation or argument has little reasonable prospect of success.[9]A Tribunal must dismiss a claim of a kind over which it has no jurisdiction. Judicial immunity from suit[10]It is an established principle of common law that, with certain exceptions, there is absolute immunity of suit in respect of things said or done in the course of judicial proceedings. The purpose is to protect the parties to litigation from otherwise potential civil liability and to protect the integrity of the judicial process and hence the public interest. In Arthur J S Hall & Co v Simons [2000] 3 All ER 673 it was held that the purpose of judicial immunity from suit, or judicial proceedings immunity, is to encourage persons who take part in court proceedings to express themselves freely, the interests of justice requiring that they should not feel inhibited by the thought that they might be sued for something they say.[11]In Saif Ali v Sydney Mitchell & Co [1980] AC 198 the House of Lords confirmed that immunity from suit covers interlocutory or pre-trial proceedings just as it does final hearings and also covers solicitor advocates and barristers.[12]In particular, the principle of judicial proceedings immunity applies to prevent victimisation claims per Aston v The Martlett Group ULEAT/0274/18.[13]Further, in the case of Ahir v British Airways [2017] EWCA Civ 1392, Underhill LJ put it as follows: “Employment Tribunals should not be deterred from striking out claims, including discrimination claims which involve a dispute of fact if they are satisfied that there are indeed no reasonable prospects of the facts necessary for liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored.” Victimisation[14]Section 27 of the Equality Act 2010 provides that a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because: a) B does a protected act or b) A believes B has done or may do a protected act Case No. 2402684/2024 4[15]A protected act includes bringing proceedings under the act or making an allegation (whether or not express) that A or another person has contravened the Act.[16]In Martin v Devonshires Solicitors UKEAT/0086/10 Mr. Justice Underhill analysed the previous similar provisions as follows: “The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: If it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint.” Evidence and submissions[17]The Tribunal was provided with a bundle of documents prepared for this preliminary hearing, comprising 226 pages, and also had sight of the Tribunal files for all 3 sets of proceedings involving the parties.[18]The Tribunal heard submissions from all parties; first from Counsel for the sixth respondent, followed by Counsel for the first to fifth respondents. The claimant tendered a 9-page skeleton argument which he then spoke to extensively. Paragraphs 5 and 6 of the claimant’s skeleton related to the application. The claimant relied on two broad contentions: the chipping away, as he described it, of the principle of judicial immunity from suit and the fact that the claim concerns disputed facts such that the Tribunal should not strike out the claim on that basis.
Conclusions
[19]The Tribunal considered that judicial immunity from suit, although arguably not absolute, clearly applies in the circumstances of this case. The claim comprises allegations about conduct of the respondents’ representative during a private case management preliminary hearing and a discussion about cooperation between the parties to prepare a claim for final hearing. It is imperative that parties and their representatives are able to raise their concerns about the preparation required and any impediments, which may well include each other’s conduct. It is in the interests of justice that such discussion be conducted freely with the Judge. The Tribunal is aware that parties do regularly pass comment on what another party has, or has not sometimes, done to comply (or not) with Orders and/or the Tribunal rules. This is an essential feature of a case management discussion.[20]The Tribunal took account of the case of Palmer v East Leicester Medical Practice [2011] IRLR 641 in which the Employment Appeal Tribunal (“EAT”) Case No. 2402684/2024 5 dismissed an appeal on the basis that judicial proceedings immunity from suit does apply to claims of victimisation, holding that: “the principle [of judicial proceedings immunity] is absolute and does not, where it applies, involve any exercise of discretion by the court.” The EAT went on to state that “It would in many cases be all too easy for claimants who have failed in their primary claims, for whatever reason, to resurrect the allegations made in them by way of collateral proceedings complaining that the evidence given for the respondents constituted discrimination or victimisation.” The Tribunal considered that such sentiments applied equally in respect of allegations about the way in which the respondents were represented.[21]In light of the above, the Tribunal concluded that it has no jurisdiction to hear this claim because of judicial immunity from suit.[22]Further, the Tribunal also considered that the claim had no reasonable prospects of success for the following reasons.[23]Despite the submissions of the claimant about disputed facts, the Tribunal took account of the comments of Underhill LJ in Ahir to the effect that the Tribunal should not be deterred from striking out discrimination complaints where they are disputed facts. Whether the necessary tests are met, or not, for reasonable prospects in a particular case, depends on an exercise of the Tribunal’s judgment.[24]In a victimisation complaint, there will be a protected act. Anything done after it might lead to a claim of victimisation, but that alone is not enough; the claimant must show a causative link, which is absent here. This claim arises from what the Tribunal considered to be a coincidence in timing. The claimant has pleaded no basis upon which it could be inferred that the respondents’ request on 16 February 2024, for a reminder to cooperate was because the claimant had issued proceedings. At its highest, the reminder to cooperate was raised because the claimant had not done something as he should, in the course of those proceedings, which is not the same thing as an act of victimisation for bringing the proceedings.[25]In addition, the Tribunal considered that the claimant lacked reasonable prospects of proving any detriment. The case of Derbyshire & Others v St Helens MBC [2007] ICR 841 is authority for the proposition that the focus of the ‘honest and reasonable’ test should be the issue of detriment. Distress and worry induced by a respondent’s honest and reasonable conduct in the course of his defence does not normally constitute detriment. In the circumstances of this claim, the claimant in effect says that Mr Crow made a point which he did not like, and he was upset, and therefore he has a claim of victimisation. However, the Tribunal considered that such does not find a claim of victimisation with reasonable prospects of success. The claimant must also show that the respondents’ representative did what he did because of the protected act. How the claimant feels about it is a matter for remedy by way of an award for injury to feelings, and not part of the structure of a victimisation claim. Case No. 2402684/2024 6[26]The Tribunal has therefore concluded that it does not have jurisdiction to hear the claim brought under case number 2402684/2024 and also that the claim does not have reasonable prospects of success even if the Tribunal had jurisdiction. In those circumstances, case number 2402684/2024 must be dismissed.