Tribunal: Unreasonable behaviour
An judge has criticised a leading media law firm for using “unnecessary thinly veiled threats of regulatory action” against a former employee.
Employment Judge Heydon also found that London practice Clintons breaches its disclosure obligation.
However, he decided not to strike out its response to the claim brought by former partner Kami Naghdi, who joined in 2014 to head its film and TV practice.
He claims direct discrimination, harassment, victimisation and protected disclosure detriments, with seven individual lawyers also defendants to the action.
The judge first dismissed Clintons application to strike out the claim for having no reasonable prospect of success, saying it was not his role at a preliminary hearing to determine the facts pleaded by Mr Naghdi.
One of the grounds on which he sought to strike out the law firm’s response was an allegation that Clintons attempted to intimidate a former employee who it was aware was planning to give evidence on behalf of Mr Naghdi. The former employee now no longer intends to appear as a witness.
He cited two letters. He said the first suggested that Clintons might report the former employee to the Solicitors Regulation Authority (SRA) following a data subject access request by the former employee.
The second was writing directly to the former employee after they had expressly asked not to be contacted, Mr Naghdi said, requesting that they preserve evidence which they might subsequently request be disclosed, and suggesting that they intended to give evidence which was untrue.
Judge Heydon said: “I can see why the former employee might have regarded both letters as unnecessarily aggressive and intimidating.
“The hint that they might report the former employee to the SRA was in my view an overreaction and poorly judged.
“The request to preserve evidence was a legitimate request, but again, done using heavy-handed language and unnecessary thinly veiled threats of regulatory action.
“I find that this did amount to unreasonable conduct. If a party believes that a witness might give evidence that is untrue, the proper manner to deal with that is to challenge it through cross-examination.”
The disclosure issue was Clintons providing an incomplete version of the minutes of the meeting at which it was decided to expel him.
The judge said: “The tribunal’s order was for the parties to disclose all relevant documents. Although it did not expressly say so, [Clintons] was entitled to withhold documents, or parts of documents, which were protected by privilege.
“What it did instead was to withhold a whole document which was only partially privileged, and create a new one made up of (what it says are) the non-privileged parts of the original, which it disclosed. This was not in compliance with its disclosure obligation.”
Judge Heydon said the breach of the disclosure order and instance of unreasonable conduct gave him discretion to strike out the response, but he decided not to.
Mr Naghdi now had the full document – “albeit by chance” – “and so this will cause him no prejudice at the final hearing”.
Further, it was “not completely clear” whether the former employee would definitely have given evidence had Clintons conducted itself better.
“It appears from the correspondence that the former employee would prefer to put this matter behind them, although I accept that there is a real possibility that [Clintons’] conduct will have had some bearing on their decision.
“I also bear in mind that there are significant amounts of documentary evidence available in this case and that the former employee probably will not be the sole source of the type of evidence that the claimant would have hoped them to put forward.”
The judge concluded that a fair trial was still possible and that strike-out would be “a disproportionate response”.
In a statement, Clintons said: “We note the judge’s observations on this matter. We have always been and will continue to be mindful of the obligations which we owe to all those involved in this case, and we support the endeavours of our legal representatives to obtain and preserve documents to ensure a fair trial of this matter.
“We also respect the tribunal’s decision to proceed with a full hearing. That these matters are the subject of litigation is a cause of great regret to us, but we are confident the tribunal will rule in our favour and we look forward to a fair resolution.”
Leave a Comment