A firm defending itself from a discrimination claim was ‘unreasonable’ in making unwanted contact with a potential witness, a judge has found.
London-based C Legal was accused of intimidating the former employee who was lined up to give evidence on behalf of claimant and former LLP member Amir Naghdi.
Naghdi told London Central tribunal that the firm had suggested it might report the former employee to the Solicitors Regulation Authority following a data subject request. Naghdi further highlighted a second letter from C Legal to the witness, who had expressly asked not to be contacted, requesting they preserve evidence and suggesting they intended to give evidence which was untrue. The potential witness now no longer intends to appear, the tribunal was told.
Considering Naghdi’s application to strike out the firm’s response to his claim, Employment Judge Heydon said he could see why the former employee felt both letters were ‘unnecessarily aggressive and intimidating’.
The hint of reporting matters to the SRA was an ‘overreaction and poorly judged’, said the judge, while the request to preserve evidence was legitimate but done using ‘heavy-handed and unnecessarily thinly veiled threats of regulatory action’. The judge added: ‘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 firm was also found to have failed in its disclosure obligation over the sharing of an apparently incomplete version of the minutes of the meeting at which it was decided to expel Naghdi. Sentences and paragraphs were deleted on the grounds of legal professional privilege.
The judge said the firm was entitled to withhold material protected by privilege. But in this instance it had withheld a whole document which was only partially privileged and created a new one made of non-privileged parts of the original.
Despite finding a breach of a disclosure order and one instance of unreasonable conduct, the judge held that a fair trial was still possible and that it was disproportionate to strike out the firm’s response. He also refused an application from the firm to find the claim had no reasonable prospect of success and to strike it out.
Given this was a preliminary hearing, few details were given about the substance of the claim. Naghdi, a non-solicitor, brings complaints of direct discrimination, harassment, victimisation and protected disclosure detriments. C Legal LLP is listed as the first respondent along with linked firm Clintons LLP and six others.
Naghdi claims he experienced a discriminatory workplace said to favour white and/or Jewish people. C Legal argued he had no prospect of establishing any discrimination on the grounds of race or religion, and there was nothing in the pleaded facts or disclosure which supported Naghdi’s case. The firm also pointed to evidence which has recently come to light which proves conclusively that certain key facts pleaded by Naghdi cannot be true.
The judge said the case requires a full fact-finding exercise and should move to trial.
