“use of vehicles provided by Mr Haye; sums of money transferred between your own and Mr Hayes account; the fact that you have a personal email account at Haymaker Ltd; your attendance at a meeting with Jack Barclay Bentley where you represented Mr Haye and lead discussions to broker a sponsorship deal on his behalf in work time and your Linked-In account stating your role as Adviser at Haymaker….In summary, it is my belief that your actions represent Gross Misconduct and are deemed as misconduct serious enough to destroy the employment contract between yourself and the Bank”
“Formulated and presented to the Tribunal a claim of unlawful discrimination that was based only on the actions of Ms Hothi and/or took Mr Subbiah as a comparator despite the fact that: there existed a cogent case of unlawful discrimination based on the actions of Ms Godson and her involvement in the Claimant’s dismissal; the allegations in respect of Ms Hothi were out of time; there was no sustainable case of discrimination to be advanced in respect of Ms Hothi;…Mr Subbiah was wholly unsuitable as a comparator; and/or events at the CMD…ought to have indicated that a case based on the difference in background between the Claimant and Mr Subbiah and the (assumed) difference in religion would at best be very difficult to sustain.”
“It is not alleged that the conversation was itself an act of racial discrimination, although it did make the Claimant feel uncomfortable and make him question Ms Godson’s motive for questioning the Claimant in the manner she did”
‘what is it like being a Muslim here?’; ‘what is it like to be Pakistani?’; ‘how would you raise children in the UK in a western culture?’
“The Claimant recalls two specific occasions. On neither occasion did the Claimant see who made the comment. On the first such occasion on or around3 May 2011 the voice sounded female and therefore the Claimant infers in [sic] was Pamela Godson since she was the only female present. On the second occasion, on or around6 May 2011 , the comment could have come from Malcolm Glaister, Tim Pethybridge, Alan Hooks, Rosanna Eisedell or Pamela Godson as they were the only people present. However the Claimant was shocked that no one objected to these racist comments.”
“Ms Godson treated the Claimant less favourably than she treated or would have treated others by: collating rumours within the office in relation to the Claimant Passing on such rumours and/or causing disciplinary proceedings to be commenced against the Claimant on the basis of such rumoursand/or her own stereotyped views as to the sort of car which the Claimant ought to have been driving or sort of property in which he ought to have been living and/or as to his honesty and/or on the basis of allegations that had already been investigated and dismissed by Mr Pethybridgeand/or on the basis of evidence of Mr Pethybridge which was false and Ms Godson (because of her attempt to conceal the same) knew to have been false; fabricating the HR log and or concealing the contents of Mr Pethybridge's fact finding interview; conspiring with Mr Pethybridge to ensure that the Claimant was suspended from work on5 October 2011 ; ensuring that the disciplinary case against the Claimant was prosecuted as rigorously as possibledue to her having taken offence at the fact that the Claimant drove an expensive car and lived in an expensive part of Londonand expecting the Claimant's dismissal from the outset of the disciplinary proceedings. Whether or not the Defendants could have found an appropriate actual comparator (had they looked and, given that Mr Pethybridge also appears to have fallen under suspicion, he may have provided a suitable comparator), it would have been easy to construct a hypothetical comparator whose circumstances (apart from race/religion) were not materially different from the Claimant. The calculated unreasonableness of Ms Godson’s conduct directed at the Claimant, the use of the word ‘Paki’ by Ms Godson or in her vicinity (without objection from her), the context provided by her questioning of the Claimant when being given a lift in his Bentley and her stereotyped assumptions in relation to the Claimant indicated that the reason for her treatment of the Claimant was his colour, Pakistani origins or Muslim religion. These all constituted facts from which the Tribunal could have concluded, absent explanation from Lloyds, that the Claimant had been discriminated against on grounds of his race or religion. Accordingly, Lloyds would have been obliged to give a nondiscriminatory explanation for the treatment of the Claimant and since no such explanation (or no credible explanation) was or could have been provided, the Tribunal would have been obliged to find in favour of the Claimant on the issue of direct discrimination…”
“A person (A) discriminates against another (B), if because of a protected characteristic, A treats B less favourably than A treats or would treat others”
“(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
“i) The court must consider whether the claimant has a ‘realistic’ as opposed to a fanciful prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a ‘minitrial’: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2011] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim…If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real as opposed to a fanciful prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“I would suspect that, having regard to the power of the court to strike out actions which have no real prospect of success, the Hunter doctrine Hunter v Chief Constable of the West Midlands Police[1982] AC 529 . is unlikely in this context to be invoked very often. In my opinion, the first step in any application to strike out an action alleging negligence in the conduct of a previous action must be to ask whether it has a real prospect of success.”
“Following the capture of the Osama Bin Laden, there were comments made in the office as the News flashed on the TV monitors where the news was displayed. Such as “the Pakis had him”
“Pamela Godson from HR accepted a lift from me in this vehicle, she made no complaints about this factor. Instead throughout the journey she asked me strange questions regarding my culture and religion vs. English Culture with ref to raising children in the UK despite the fact that I was born and raised in the UK myself.”
“he was discriminated against on the grounds of his race / nationality in the opportunities he was given to pursue leads, in the opportunities which were kept away from him and in his being suspended and dismissed in that he was treated less favourably in all of those respects than SS [Mr Subbiah]”
“I believe part of the reason for me being suspended was a perceived jealousy relating to my lifestyle; the Respondent considered something must be wrong because I drove a nice car and lived at a Chelsea address. More specifically, I believe that the suspension was a reaction to me raising allegations of unfavourable treatment in various meetings that I had had during the course of my employment”
““I don’t see the purpose of this witness statement. My claim was on the basis of discrimination between Indian and Pakistani. The Muslim issue came from two incidents in the office. The first was shortly after the capture of Osama Bin Laden and comments were made about me. The other was of Pamela Godson in my car when I gave her a lift back home and she asked me a number of questions about my culture my religion raising children in a western culture and made a number of derogatory remarks. Both these incidences were covered in my initial grievance report, I will need to check if they are in the final version that was sent…. Therefore the religion aspect came from here. The discrimination issue regarding the leads came from Indian and Pakistani perspective I do not know why Jenny Walker is attempting to confuse the issues.”
“Also please do let me know if you are aware of the racist incidents such as the comments made following the capture of Osama Bin Laden in Pakistan in the office and Pamela Godsons direct attack on my culture and ethnic background whilst giving her a lift in the Bentley after work (I am not sure if they have been included in the final draft of the Grievance report but are crucial as they are direct racist comments)”
“You did so because you were discriminating against me. You made discriminatory remarks in the car that time I gave you a lift and you saw where I lived. Why did you make the complaints whereas nobody else did who were in daily contact with me. You were not and we rarely engaged whereas my line managers and MG that did see the cars etc did not make the complaint. PG is a racist and I know so because of the specific remarks she made to me about my religion and culture.”
“yes there was racist language – there was a specific instance of racist language.”
“We have TV screen in the office. Around the time of the catch of Osama Ben Laden (and some of my colleagues were from military background), there were comments around that time that “pakis” had him. I found it hurtful. I am proud to be British Pakistani, comments like that were really hurtful.”
“I said that Mr Naqvi had been seen driving a Bentley to the office and that I could not see how he could afford this on his salary. I was also aware that Mr Naqvi lived in a very expensive area of London. I was concerned that Mr Naqvi could be receiving gifts from Mr Haye or that Mr Naqvi could be working for Mr Haye in addition to his role with the bank.”
“From the outset she [Ms Godson] seems to have been offended by the fact that he drove an expensive car, the Bentley, and lived in an expensive part of London. This excited her suspicions and there is nothing in the evidence to suggest that she ever moderated those suspicions over time. The written evidence shows that she expected the Claimant to be dismissed from the very outset….We cannot detect any evidence that she abandoned her early view that the Claimant was living beyond his means and came from a modest background. The suspicion therefore was that his lifestyle indicated dishonesty and the committing of disciplinary offences.”
“As appears below, we have determined that his various discrimination and related claims fail. However, as a matter of fact, when the disciplinary process is analysed in detail all questions of race and ethnicity fall away. The reason, at least in part, for some of the unfairness which we can identify in the procedure is that various managers believed that the Claimant had committed misconduct. Ms Godson, who in some ways initiates the procedure, is a very clear example although the dismissing and appeals officers have satisfied us that they readily came to this conclusion. It is therefore beyond any real doubt that the reason why the Respondent dismissed the Claimant was because of a genuine belief that he had committed misconduct.”
“The facts we have outlined above show to a high degree of certainty that all of the material witnesses for the Respondent believed that the Claimant had committed misconduct. The belief is inextricably bound up with the unfair dismissal. This does not mean that claims of victimisation or discrimination must necessarily fail. We recognise that if we could conclude on a consideration of all the facts that the protected act(s) or the Claimant's race etc. had any influence on the disciplinary process, the burden of proof can transfer to the Respondent. However, on these facts, we consider that the Claimant fails to overcome the first stage of Igen. There are no facts established from which we could find or infer that the steps in the disciplinary process were motivated by anything other than a belief in misconduct, divorced from any considerations of race, ethnicity or the fact of having raised those matters in any protected act. There is a striking absence of evidence from which such an inference could be drawn. The Claimant barely advances such a case in evidence and his claims here have two further difficulties. First, there is no connective evidence to support them, as we have indicated, and nothing in the evidence to suggest that relevant decision takers were, when taking their decisions, influenced by either the grievances or racial/ethnic considerations when they acted. Second, if we ask ourselves whether a hypothetical comparator would have been treated any differently, the clear answer is that a comparator of a different race or ethnic origin would have been dealt with identically, given the belief we have described concerning misconduct.”
“The Hunter question…is whether allowing even a successful action to be brought would be manifestly unfair or bring the administration of justice into disrepute…I can see no objection on grounds of public interest to a claim that a civil case was lost because of the negligence of the advocate, merely because the case went to full trial. In such a case the plaintiff accepts that the decision is res judicata and binding upon him. He claims however that if the right arguments had been used or evidence called, it would have been decided differently, This may be extremely hard to prove in terms of both negligence and causation, but I see no reason why, if the plaintiff has a real prospect of success, he should not be allowed the attempt. “… in civil (including matrimonial) cases, it will seldom be possible to say that an action for negligence against a legal adviser or representative would bring the administration of justice into dispute. Whether the original decision was right or wrong is usually a matter of concern only to the parties and has no wider implications. There is no public interest objection to a subsequent finding that, but for the negligence of his lawyers, the losing party would have won. But here again there may be exceptions. The action for negligence may be an abuse of process on the ground that it is manifestly unfair to someone else.”
“(1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated: see Lord Diplock in Hunter v Chief Constable, Lord Hoffman in the Arthur Hall case and Lord Bingham in Johnson v Gore Wood. These interests reflect unfairness to a party on the one hand and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter v Chief Constable. Both or either interest may be engaged. (2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse, see Bragg v Oceanus; and the court’s power is only used where justice and public policy demand it, see Lord Hoffman in the Arthur Hall case. (3) To determine whether proceedings are abusive the Court must engage in a close ‘merits based’ analysis of the facts. This willtake into account the private and public interests involved and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court’s process, see Lord Bingham in Johnson v Gore Wood and Buxton LJ in Taylor Walton v Laing. (4) In carrying out this analysis it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the cases within ‘the spirit of the rules’, see Lord Hoffman in the Arthur Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case; or as Lord Hobhouse put in in the Arthur Hall case, if there is an element of vexation in the use of litigation for an improper purpose. (5) It will be a rare case where the litigation of an issue which had not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris.” their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris.”
“(b) If the earlier decision is that of a court exercising criminal jurisdiction then, because of the terms of sections 11 to 13 of theCivil Evidence Act 1968 , the conviction will be conclusive in the case of later defamation proceedings but will constitute prime facie evidence only in the case of other civil proceedings. (It is not necessary for us to express any view as to whether the evidence to displace such presumptions must satisfy the test formulated by Lord Cairns LC in Phosphate Sewage Co Ltd v Molleson…(c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issue should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.”
“it does not appear to me that Morrit V-C treated this test as applicable where the earlier proceedings were civil proceeding which did not involve the same parties (or their privies) as the later proceedings”
“ I therefore conclude that it would bring the administration of justice into disrepute if Mr Laing were to be permitted in the second claim to advance exactly the same case as was tried and rejected by H.H. Judge Thornton. If H.H. Judge Thornton’s judgment was to be disturbed, the proper course was to appeal, rather than seek to have it effect reversed by a court not of superior but of concurrent jurisdiction hearing the secondclaim. That the second claim is in substance an attempt toreverse H.H. Judge Thornton is important in the context of wider principlesof finality of judgments. In Hunter at 545D, Lord Diplock said that the proper course to upset the decision of a court at first instance was by way of appeal. Where, wholly exceptionally, a collateral first instance action can be brought it has to be based on new evidence, that must be such as entirely changes the aspect of the case: see per Earl Cairns L.C. in Phosphate Sewage v Molleson (1879) 4 App. Cas. 801 at 814. The second claim in our case not merely falls short of that standard, but relies on no new evidence at all.” (Emphasis added)
“I of course agree that it will not necessarily, or perhaps, usually, be a valid objection to a claim for solicitor’s negligence in or about litigation that the claim asserts matters different from those decided in the litigation. That is so…where errors in assembling the evidence or understanding the law are alleged to have led to an incorrect result, as was the case in Hall v Simons itself. But the present case is significantly different from those just mentioned. The difference is that, as shown at [19] above, in order to succeed in the new claim Mr Laing has to demonstrate not only that the decision of H.H. Judge Thornton was wrong, but also that it was wrong because it wrongly assessed the very matters that are relied on in support of the new claim.That is an abusive relitigation of H.H. Judge Thornton’s decision not by appeal but in collateral proceedings and in substance if not strictly in form falls fouls of the Phosphate Sewage rule.” (Emphasis added)
“I should explain why I conclude that the challenge is impermissible. Allegations of negligence during the course of litigation, against solicitors or advocates, will normally involve an attempt by a Claimant to demonstrate that the previous conclusion of the court would have been different, absent negligence on the part of the lawyer. In many cases it will, indeed, be necessary to do so in order to prove causation and loss. The paradigm is the loss of a case due to negligent advocacy. But to bring such proceedings for negligence does not bring the administration of justice in to disrepute; Hall v Simons teaches to the contrary. “But such cases differ from the instant appeal in two important respects. Firstly, in the normal run of case, the impugned conduct of the lawyer is independent of the factual conclusions of the court; those conclusions are only relevant to prove causation and loss. His case does not, in reality, involve any challenge to the findings or conclusions of the court. He merely contends that, in light of the negligence of which he now complains, the court’s conclusions would have been different. But this is not so in the present case. As Buxton L.J. had demonstrated (at [19] and [27], the claimant cannot establish that his adviser’s drafting of the agreement was negligent without challenging the judge’s findings as to credibility and fact. To make good the allegations of negligence, Mr Laing must show that his account of the agreements is the truth. He must demonstrate that H.H. Judge Thornton’s judgment of his credibility was wrong.”
“However, on these facts, the Claimant fails to overcome the first stage of Igen”