Update #10 – Garden Court Chambers ordered to pay my costs
We have received judgment from the hearing that took place last week to determine the costs applications made by Garden Court against me, and by me against Garden Court. The Tribunal found that I should pay none of Garden Court’s costs, but they must pay £20,000 of mine. This is a great relief: Garden Court weren’t able to say precisely how much they had wanted me to pay, but it was somewhere in the region of 40-50% of their total costs of £675,000.
Getting an award of costs in the Employment Tribunal is difficult, and rarely done. It’s not enough simply to have won your case: costs awards are only made against a party which has behaved vexatiously, abusively, disruptively or otherwise unreasonably, or where they have pursued a case that had no reasonable prospects of success. Even where a Tribunal decides that a party has behaved in that way, the Tribunal has discretion over whether or not to award costs, and often won’t do so.
Garden Court’s costs application centred around the two detriments on which I didn’t succeed in my claim, rather than the three detriments on which I did succeed. The Tribunal considered Garden Court’s application carefully, and found that I hadn’t been unreasonable in how I brought my case, particularly since Garden Court hadn’t been able to explain properly how they were defending the case until immediately before the trial last year.
My costs application against Garden Court centred around their preparation of the bundle at trial. Those who attended the trial will recall how chaotic the bundle was, and how this was blamed on my lawyers by Garden Court’s barrister when he was cross examining me. This was wrong: it was the fault of Garden Court’s lawyers, as the Tribunal has now found. The effect of the chaotic bundle was severe, both in the trial and in preparing for the trial. As a barrister, I’ve spent my career preparing for and attending trials – I would estimate hundreds in total. But last summer’s trial was the most stressful I have ever experienced, in large part because it relied on a bundle of over 7,000 pages of documents, large parts of which were unindexed, unsearchable, and effectively arranged at random.
The Tribunal carefully considered my application for costs, and read the correspondence between my solicitors and Garden Court’s solicitors regarding the bundle. The Tribunal agreed that Garden Court’s conduct had been unreasonable, and was the reason for the bundle being in the terrible state it was at trial. They awarded me £20,000 in costs – the maximum they are allowed without going through separate and costly mini-litigation to assess a sum. This was less than the amount that I had sought, and a lot less than the total amount Garden Court’s unreasonable conduct cost me, but I am pleased nevertheless that the Tribunal recognised that blame for the bundle did not lie with me.
As with the damages I received for Garden Court’s discrimination against me (including aggravated damages), the legal costs I have had to incur are more than the amount that I have received. But this case has never been about financial awards. If that were the case, I would never have been able to pursue it, because I would never have the resources to match Garden Court and they could have just outspent me to a point way beyond the maximum level of damages that any Tribunal could award any claimant (their £675,000 legal bill – to date – is more than all but the very highest awards ever made in the Employment Tribunal; and my legal costs are higher still).
If Garden Court had been able to outspend me into submission, I would never have been able to secure the win that I did. This win demonstrated the discrimination and aggravated discrimination to which I personally was subjected to by a set of barristers who define and present themselves as defenders of human rights, but it also demonstrated the institutional approaches and beliefs that cause that discrimination to arise – as is now being demonstrated in other cases brought by other women against other institutions. The case demonstrated that standing up for women’s sex-based rights, safeguarding norms and against the medicalisation of puberty in gender non-conforming children and youth, and against Stonewall’s particular brand of campaigning on self-ID, is protected under the Equality Act. My case against Stonewall is still very much alive, and we are awaiting a date at the EAT to hear it: the judgment arising from that will set a binding legal precedent.
I have always been clear that my primary complaint in this case is with Stonewall, not Garden Court. My case has always been that Garden Court’s unlawful actions against me were in furtherance of Stonewall’s agenda, and that this was at the root of the unlawful treatment I suffered. In making that case, I have had to provide evidence of Stonewall’s activities, which would otherwise not have been publicly exposed; this public exposure was not the point of the case, but it was a necessary and beneficial side effect of it. The details that emerged from my case – too many to list here, but including that Stonewall’s staff seem to believe it is impossible for feminists and lesbians to experience discrimination when criticising self-ID; the conflation of lesbians with white Supremacists in Apartheid South Africa; the vile concept of the “Cotton Ceiling” – have contributed to greater and better public understanding of the topic of sex and gender, and the reality of what Stonewall’s particular brand of campaigning actually entails.
As was demonstrated at the costs hearing, I made attempts to settle with Garden Court in 2021, in a way which would have allowed Garden Court to step back substantially from the litigation in exchange for Garden Court’s public acknowledgement that I was treated wrongly by them. Those discussions failed – but not because of any disagreement over the correct sum of money to be paid in settlement. In that sense, this case has never been about the money.
But in another sense, it very much has become about the money: specifically, the money that was donated towards my legal fees. Without this, I would have been spent into submission by Garden Court and would have had to discontinue the proceedings long ago, and well before trial. It is extremely difficult to adequately express the immense gratitude I feel to everyone who made a contribution, or to express the sense of responsibility and duty I have to ensure that those contributions result in a meaningful and important conclusion to this case. I believe I have fulfilled that duty so far with what we have achieved to date, and I hope that the costs judgment will allow people to see some of the behind-the-scenes work that my lawyers and I have had to do in order to achieve it.
Going forward, I will not need to reopen the crowd fund again thanks to the immense generosity of a dear friend.
Very best wishes