A judge has ruled that neither of two barristers lied over a hotly disputed conversation regarding the possible settlement of an employment tribunal claim, immediately ahead of what was intended to be the final hearing in January, 2020.
Following a subsequent Preliminary Hearing on 14th December, 2020, held remotely but hosted from Leeds Employment Tribunal, Judge Lindsey Knowles handed down a highly detailed reserved judgment, dated 2nd March, 2021, that focuses sharply on the interchange between Adam Willoughby and Olivia Checa-Dover.
It extends to 38 pages and 141 paragraphs. The judge attributed the delay in reaching his decisions to lockdown and home schooling of children. He does not explain the large number of syntax errors and a number of other factual errors, writes Neil Wilby.
At the material time, Mr Willoughby represented a serving West Yorkshire Police officer, Sergeant Umer Saeed (as he is now), and Miss Checa-Dover represented the same police force, as she frequently does in other civil court and tribunal matters.
The claim, as originally filed in May, 2019, alleges racial and religious discrimination. Two further strands to the claim were added in March, 2020 over disability discrimination and victimisation allegations.
The December, 2020 hearing was listed following a ‘private’ preliminary hearing before Employment Judge Shepherd, in August 2020, having heard representations from the parties concerning Sgt Saeed’s supplementary claims.
Following a written request, the judge has ruled that his Order(s) from that hearing cannot be released to the press.
The claim of victimisation arose from those discussions between counsel on 17th January 2020. They took place in an ante-room at the Tribunal whilst the Panel was reading case papers and immediately before the parties were invited into full session.
The start of the hearing on that day was delayed, in any event, as Sgt Saeed had an urgent medical consultation arranged for that morning. It was from that same health issue that the disability discrimination claim arose.
Judge Knowles, therefore, had two issues to determine by way of case management at the December hearing:
- Whether or not the actions of his counsel, on 17th January 2020, amounted to an act of victimisation by the Chief Constable of West Yorkshire Police against Sgt Saeed.
- Whether or not all of the Sgt Saeed’s claims should be consolidated and heard together.
The Claimant’s case
In relation to the claim of victimisation, Sgt Saeed says:
“On 17th January 2020 my representatives and I attended the Leeds Employment Tribunal for the final hearing of the racial and religious discrimination claim.
“In the course of a conversation between my barrister, Adam Willoughby, and Miss Checa-Dover, she said that she was instructed to obtain adverse findings on my credibility. In particular, she stated about me: “I am going to seek findings of adverse credibility, that he’s not credible and has lied which will affect his credibility”.
“Miss Checa-Dover further explained that she has to “be careful” how she pitches cases for the police against serving officers because, as soon as a finding is made that they have lied, they “cannot go near evidence in the course of carrying out their duties” for the police. She went on to say: “If the Tribunal finds he [Sgt Saeed] lied, he will not be able to handle evidence, he won’t be allowed in the chain of evidence”. She then stated that in such circumstances Sgt Saeed “will not be operational”.
“The representations made by Miss Checa-Dover were false in that if such adverse findings were made against my credibility, I would face a consequent investigation by the police’s Professional Standards Department and would have the opportunity to put forward my own explanation of the circumstances before a final decision would be taken as to whether or not I would be allowed to have any involvement in a chain of evidence and thus be operational or not. In other words, it was not a foregone conclusion, as represented by Miss Checa-Dover, that I would not be operational in the event the Tribunal made adverse findings against my credibility.”
Sgt Saeed asserted that this representation, said to be on behalf of his employer, was a detriment arising out of a protected act, contrary to section 27 of the Equality Act 2010.
West Yorkshire Police filed a response defending the victimisation claim. Miss Checa-Dover robustly denies that what is set out in that claim is accurate and, further, denies that what she did actually say amounted to either a threat or a form of coercion deployed in an attempt to bring about a settlement favourable to her client.
The judge heard oral evidence from three witnesses: Mr Willoughby, Miss Checa-Dover and her instructing solicitor, Mrs Victoria Clegg, who has worked for West Yorkshire Police for over 20 years. This report is unusually lengthy and detailed. The matters in issue are sufficiently important to warrant such care and attention.
Where references to alleged dishonesty, or accusations of lying, or indications of malpractice are made, they are abstracted from the Tribunal judgment. They do not reflect any view that the author may, or may not, have. This is a contemporaneous, neutral report, from a hearing at which he was present throughout, delayed pending the handing down of the judgment, because of the sensitivity and potential consequences for those at the heart of the dispute. Nothing adverse to any person mentioned is, in any way, intended or implied.
For the avoidance of doubt, there has been no adverse judicial finding concerning Sergeant Saeed’s witness evidence in this employment claim.
The evidence of Adam Willoughby
Taken to his witness statement by Dijen Basu QC, counsel for Sgt Saeed at this hearing, Mr Willoughby stated that he is very sure of its accuracy, that he remembers the case well, that it was unusual because his client had to attend hospital on that day and that Miss Checa-Dover’s comments were out of the ordinary because of the forceful way she said them.
He referred to his handwritten notes and stated that they were taken during the time speaking to Miss Checa-Dover. He said that crosses and circles on his notes are action points. He also said that he had written to “check” that the Claimant would be made “not operational”. He stated that, from his annotation of “RT + Doc” onwards, his notes are of the exchanges after he returned to speak to his instructing solicitor (Rebecca Townsend of Rebian Law and an, as yet, unidentified Police Federation representative nicknamed ‘Doc’).
Mr Willoughby was then subjected to a lengthy, and searching, cross examination by David Jones, counsel for West Yorkshire Police at this hearing.
A key component was whether the subject conversation still formed part of without prejudice discussions that had commenced the previous day and continued throughout that morning in three separate parts. Mr Willoughby maintained that a “red line” had been crossed over Sgt Saeed’s promotion and back pay (he had been serving for some months as a temporary sergeant on a constable’s salary). An un-named senior officer in WYP had raised an impediment to such a promotion over an incomplete ‘action plan’ that formed part of a ‘Unsatisfactory Performance Plan’ (UPP). Once over that “red line” it was Mr Willoughby’s view that the without prejudice element of discussions had ended and the disputed part of what Miss Checa-Dover is alleged to have said did not have that shield of immunity.
Under questioning from Mr Jones, it emerged that on 20th January, after the weekend, and towards the end of the re-convened hearing, Mr Willoughby’s position was stated, on behalf of Sgt Saeed, as ‘the parties are still trying to settle the claim’; that, in time, there was a possibility that the police may be prepared to confirm authority to promote Sgt Saeed as part of the settlement. He accepted that he did not suggest to the Employment Tribunal that negotiations had broken down and stated that his client still desired a settlement. He also accepted that on 17th January the position stated to the Employment Tribunal was that in Sgt Saeed’s absence fruitful settlement discussions could continue. It was put to Mr Willoughby that what he told Judge Shepherd on 17th January was contrary to his statement that without prejudice conversations had closed, but he reiterated his position that he hoped that the question over authority to promote his client could be resolved. He accepted that the door to settlement could be opened at any time. But he drew a distinction in terms of his conversation with Ms Checa-Dover, to the effect that for the purposes of that conversation the police could not agree to the settlement proposal and that they were proceeding with the hearing.
Mr Willoughby was asked whether or not he was ‘hedging his bets’, he replied that he would not put it like that. He was also asked whether or not his statement that ‘we will proceed with the hearing’ may be interpreted as brinkmanship and he accepted that such events occur. He accepted that he had entered the ante-room to continue without prejudice discussions with Miss Checa-Dover, although neither of them said the discussion was without prejudice. However that was implied from their discussion of terms of settlement. He accepted that the risks of litigation were often discussed but stated that didn’t happen in this conversation. He said his conversation with Ms Checa-Dover was friendly but he would not describe it as informal or glib (as she asserts). He stated that they discussed terms of settlement, and that they had previously discussed litigation risks for both sides and he felt it was important to settle as Sgt Saeed was still a serving police officer. He also stated that in their “final discussion” they did not discuss litigation risks. He said that in their earlier discussion he had suggested it would be good to settle and wrap up all claims which could include contemplated claims by Sgt Saeed relating to his eye condition and stress. He accepted that in their “final discussion” there had been a genuine attempt to settle “up to that point”.
Under cross-examination, Mr Willoughby also accepted that his notes were not complete. Asked why the Tribunal did not have the full notes, he said that it was his decision only to send the one page (numbered 11). Asked if a single page could be taken out of context, he stated that the page before is the proposed terms of settlement. He denied this could give a different perception, stating that the dispute with Miss Checa-Dover arrives at the top of page 11 and the rest of the note, thereafter, details what was said. He asserted that there was ‘nothing unusual’ in disclosing only one page of his notes.
Mr Willoughby’s evidence was that Ms Checa-Dover did say to him that she was instructed to seek adverse findings as to Sgt Saeed’s credibility. It was put to him that his only note of the conversation on page 11 was “not operational”, and that he did not record “instructed”. He accepted that, stating it was said at the point he began walking back into the room after he had made off to leave the room at what he thought was the end of the discussion, he then began making notes when he returned to the table where Miss Checa-Dover was sitting.
Mr Willoughby further stated that he drafted the ET1 claim form for the disability and victimisation claims around 1st March 2020, and accepted that that was the first point at which it was asserted that West Yorkshire Police was “instructed”.
He said in answer to Mr Jones that his workload varied; for example, working on four advices, with three cases to prepare, at present. He was asked if this was the first time he said “instructed”, six weeks later, and he replied that he drafted an earlier advisory note to his client, after the meeting with Miss Checa-Dover, which was used to draft the grounds of complaint. He stated that was drafted either on the day the hearing concluded (20th January, 2020), or the day after that. He disputed attributing the term only to his note on page 11, stating that he had a clear recollection as well. Asked why he did not include in quotes in the ET3 that Ms Checa-Dover said “instructed”. He said that was simply his drafting. He added, “she wanted to let me know she was instructed to seek adverse findings”, as he turned around, when almost at the door, she said that Sgt Saeed had lied.
Mr Willoughby was asked how it would have been evident that settlement discussions had ended and he said because he said it was a “red line” for his client; “I will see you in there, it is clear we wont be able to settle”.
It was put to Mr Willoughby, by Mr Jones, that “see you in there” might just mean you are going back in the the hearing room; he disputed that and said it was clear to her that the issue was a red line. He agreed they were going back in, anyway, but said he had told her it is clear we are not going to settle.
It was further put to Mr Willoughby that it doesn’t naturally flow from stating a red line had been reached that settlement discussions had ended, parties may be reading parameters. But, he replied, that it would have been clear: Sgt Saeed wanted a promotion and it was said the police were not going to settle on those terms and that his client would proceed with the hearing.
He accepted that shortly afterwards the parties were discussing judicial mediation with the Tribunal judge, but added that, by this time, the chronology had changed; there had been an adjournment and there would be more time, so they showed willingness to submit to judicial mediation.
Mr Willoughby, however, refused to accept that his words could have been interpreted another way, or that they were equivocal.
Asked why he cherry picked words in his note, and why there was no full record, he stated that the sentence made sense [to him, at least] and he has a clear recollection of the events on that day.
Mr Willoughby was asked about the difference between his notes, quoting “chain of custody”, compared to a paragraph in the ET1 for the second claim in which he quotes Miss Checa-Dover as saying “chain of evidence”, and he answered that these are two separate quotes. He was referred to a paragraph in his witness statement where he quotes “chain of custody”, but he referred to next paragraph stating “cannot go near the evidence”.
He said, again, that they were separate quotes. In answering questions, Mr Willoughby drew a clear distinction between his quotes of “custody” and “evidence” and explained that she said “cannot go near the evidence” and that wont be allowed in the chain is a reference to “evidence”. He was questioned further on this because his note states “chain of custody”, not chain of evidence, but his answer was that the basis of the claim is evidence.
Mr Willoughby said that he had carefully relayed his conversation to Sgt Saeed and his other representatives. He was asked why, in that case, the police officer, in his complaint to the Bar Standards Board (BSB), had said that he would be dismissed for dishonesty. Mr Willoughby denied having relayed that to him. He was asked why Sgt Saeed had stated in the BSB complaint that these events all took place during without prejudice discussions. Mr Willoughby stated that the Sgt Saeed was mistaken, and that that was not what he had said to him.
It was put to Mr Willoughby, by Mr Jones, that Ms Checa-Dover never said she was instructed to pursue adverse findings on credibility, but he refused to accept he could be mistaken and said he could only speak to their conversation. He accepted that there would be consequences for Sgt Saeed if there was an adverse finding as to credibility.
Mr Willoughby was asked about how it could be considered to be a threat if he knew it to be wrong. He stated he had a duty to disclose it to his client, and that Ms Checa-Dover would reasonably know that. He was asked why he did not push back on the point with Ms Checa-Dover and he replied that he wanted to confer with his instructing solicitor and the Police Federation representative. He refused to accept that he did not push back because it was ‘par for the course’ in these type of discussions.
Mr Willoughby denied he had similarly ‘threatened’ Miss Checa-Dover with disability discrimination proceedings, if the matter were not settled. He said he simply advised her that if agreement was reached such matters could be wrapped up in the settlement. He denied using the words attributed to him by Miss Checa-Dover in her witness statement.
In answer to questions from Judge Knowles, Mr Willoughby accepted that if there were adverse findings as to Sgt Saeed’s credibility that may impact on his involvement in a chain of evidence, he accepted that was a worst-case possible outcome. He said he did object to it being presented as automatic, because the police would consider that outcome on its merits.
Mr Willoughby was asked whether Ms Checa-Dover’s comments were couched in terms of “these type of cases” as opposed to specific to this one and he replied that he recorded her saying ‘not operational’, so it was not couched. He accepted that it was open to the police to continue without prejudice discussions at any time, but said that nothing else was said at that time to open up the without prejudice discussions again.
He accepted, however, that there were conflicts in the evidence but stated that these could be mistakes rather than lies. He told the judge that Ms Checa-Dover said that she had to be careful how she pitches these cases. He said he did not recall other comments made by Ms Checa-Dover in her witness statement but was clear that she did say ‘as soon as there is a finding he lied he cannot go near the evidence’.
In answer to questions in re-examination Mr Willoughby stated that there was no stark difference in the evidence, the greatest was an interpretation of emails, there were no “gotcha points”. He confirmed that, subsequent to the events under scrutiny, Umer Saeed has since gained a promotion to Sergeant.
The evidence of Olivia Checa-Dover
Miss Checa-Dover was taken through her evidence by Mr Jones.
In her witness statement she recounted the events of 16th and 17th January, 2020
On the 16th, Mr. Willoughby had contacted her by telephone and said both he and Sgt Saeed were keen to settle the discrimination claim. He was new to the case, at that point.
She told him that an attempt had been made, previously, to resolve the claim at a joint settlement meeting and had found Sgt Saeed’s expectations to be unrealistic. For example, she said ‘the police force was not going to delete “PEN entries” relating to his treatment of women’.
Mr. Willoughby listed what Sgt Saeed wanted and Miss Checa-Dover took instructions from the police solicitor, Mrs Victoria Clegg, to relay information back to him. Mr. Willoughby chased her during the day for an answer, but the police were unable to accede to the requests; they were not as straightforward as he thought. For example, Sgt Saeed wanted to be substantively promoted to sergeant, but he had not completed his action plan.
Early on the 17th, Miss Checa-Dover received an email from Mr Willoughby. It dealt with some ‘housekeeping matters’ association with the hearing that day but he remained keen to resolve the claim. The matter of Sgt Saeed’s hospital appointment that morning was also raised.
In any event, Mr Willoughby would be at the Tribunal from 9am and ‘We can continue settlement discussions then. I don’t think we are miles apart’ he said.
Due to Sgt Saeed stating he was too unwell to proceed with the hearing, and the Employment Judge wanting medical evidence of his condition, there was a great deal of waiting on that morning, says Miss Checa-Dover. Mr. Willoughby mentioned to Judge Shepherd that this time could usefully be used to try and find an agreement between the parties.
The discussions between the two barristers, says Miss Checa-Dover, were informal, friendly and, at times, glib. Much in the usual way counsel speak to each other. We discussed the risks of litigation for both sides – this is all normal.
Mr. Willoughby ‘warned that if a settlement was not reached that day Sgt Saeed would be bringing a disability discrimination claim, but would not if matters were resolved’. She took this ‘threat’ to be a normal part of without prejudice settlement discussions. He also shared his view of the Claimant’s expectations – this is all a normal part of counsel-to-counsel discussions.
During one of these discussions, when Mr. Willoughby and Miss Checa-Dover were alone in a waiting room, they explored the nature of the evidence in dispute. She was seated at a table working on her laptop and he was, at times, walking and, at other times, seated opposite me.
She said to Mr. Willoughby that the problem with these cases when the officer is still in post is, of course, the effect an adverse judicial finding has. Miss Checa-Dover regularly acts in police misconduct hearings, and previously practised in crime, and she had thought what she was saying was uncontroversial, assuming that this would also have been obvious to Mr. Willoughby.
Miss Checa-Dover also said that she was careful never to put to a witness that something is a “lie” when it could be a mistake and that much of what Sgt Saeed alleged was probably his genuine, but mistaken, perception. However, in her view, there were a few matters which he just can’t be mistaken about. He’s either telling the truth or he’s lying. If he is found to have lied by a Tribunal, realistically he’s not going to be allowed in an evidential chain [in any future police investigation].
This, she said, was a conversation between two counsel, both of whom, it is thought, would have understood the gravity of a potential finding that a police officer lied in legal proceedings. In any event, Miss Checa-Dover was sharing her view of the case as counsel frequently do. It is made very clear in her evidence — she was not told to say this by anyone and never told Mr. Willoughby that she was acting on instruction, because she wasn’t.
She also asserted that it was never said that this was West Yorkshire Police policy or that Sgt Saeed would be non-operational straight away. It was also not said, she says, that he would be deprived of a misconduct hearing. It’s a given that he would have gone through the misconduct process with an investigation, severity assessment etc., pursuant to the applicable Police Regulations. These were discussions with fellow counsel, not a litigant in person.
Miss Checa-Dover was clear that she never said she had been told to call Sgt Saeed a liar. She told Mr Willoughby that when a cross-examination is prepared she is always careful to ensure ‘the pitch’ is fair. Here, in this claim, having done that exercise, she says ‘it was regrettable that there are some things Sgt Saeed just can’t be mistaken about’. How counsel prepares cross- examination is a matter for them, not their lay or professional client.
This discussion on 17th January, 2020 was a friendly, without prejudice, conversation between counsel, talking about the ramifications of running the claim at a hearing before the Panel, as opposed to settling beforehand.
On 21st October 2020, Miss Checa-Dover received a letter from the Bar Standards Board informing her that Sgt Saeed had made a complaint about her. The letter was a notification that the case had been closed, but it was the first time she knew of the report having been made to the regulator. Potentially, a serious matter for any barrister.
Within the section of the complaint form headed: ‘Detail of your report’, Sgt Saeed wrote the following:
“Whilst in discussion around resolutions to avoid the commencement of full proceedings, some “without prejudice” discussions took place between counsels (sic). During these discussions Olivia Checa-Dover…”
It appears from that paragraph, Miss Checa-Dover said, that Sgt Saeed also understood the discussions his counsel and her were having, in private, to have been ‘without prejudice’ in nature.
In cross examination by Mr Basu QC, Miss Checa-Dover was asked about the details of the settlement negotiations that she had placed into her notes at the time. She said that they were fluid, prepared throughout the talks and included her own thoughts as well as what was said. She agreed there had been a discussions about a City and Guilds issue and Sgt Saeed’s promotion, both with her instructing solicitor and with Mr Willoughby. She accepted that she was not writing everything down. The reference in her notes about being a temporary sergeant involved a sticking point over pay, as a temporary sergeant is not paid as a substantive sergeant.
She accepted that application of the UPP (Unsatisfactory Performance and Procedure) was a bar to substantive promotion. She discussed Chief Inspector Winter and capacity to settle with her instructing solicitor and Mr Willoughby. There were discreet conversations with Mr Willoughby about pay, recorded in her notes, followed by the discussion under the heading capacity to settle and then an agenda was recorded.
The notes are a mixture of what Mr Willoughby said to her and what she said to him. The notes are topic led, not time led and may be out of sequence. She referred to the headings of backdating pay, ability to ring-fence funds and the funding of an MBA course being settlement discussions. Her notes recorded that she had asked Mr Willoughby to confirm what the backdating of pay issue was, but it turned out, in the event, that pay would not be affected.
She stated that the other headings in her notes were not settlement discussions and were subject to legal professional privilege.
Ms Checa-Dover told Mr Basu QC that her notes would not help with the disputed part of the discussion, she does not have notes of that exchange of views.
She said that she first became aware of Mr Willoughby’s account and contentions when she opened his witness statement about two weeks before the present application hearing in December, 2020. She stated that she knew of the victimisation claim, which was served on the police just before the case management hearing on 11th March, 2020, almost two months after the disputed conversation at the January hearing. Miss Checa-Dover said she didn’t understand the nature of this claim, but they both agreed to withdraw from the case, as a consequence, and Mr Willoughby told her it was no criticism of her.
Miss Checa-Dover agreed with Mr Basu QC that it was vital for counsel to stick to instructions. She stated that, in this particular case, she was sharing an opinion, sharing a view in an informal way with a barrister. In terms of the material part, it was fine for Mr Willoughby to correct her. She accepted that she had no instructions to seek adverse findings. There were parts of evidence in Sgt Saeed’s claim which were diametrically opposed, and the Tribunal would have to decide on those issues.
She did not have instructions, she said, to tell Mr Willoughby that she would seek adverse credibility findings, nor did she do so. She stated that she was not instructed to say that Sgt Saeed would not be operational, nor did she say that.
She agreed she had good reason not to question his integrity because he is a serving policeman. She said it is about precision; if it can be a mistake it should be put as one. She accepted she had not been positively instructed not to seek adverse credibility findings. When asked if it was open to her to seek adverse findings, she stated that was not what she intended. She told Mr Basu QC she never said or intended to say to the Panel that they had to make such a finding.
Asked if that option was available, she said it was open to her to invite the Panel to prefer one witness account over another. She disputed it was open to her to say this claimant was a liar and said it was not about lying. She denied she would argue that a witness was lying, simply because she could. She stated that she was aware of a conversation between John Robins, the present Chief Constable of West Yorkshire Police and Sgt Saeed, but did not know the details. It was put to her that Mr Robins would not deal with Sgt Saeed in an aggressive way; Miss Checa-Dover agreed that he would adopt a friendly caring approach, given that Sgt Saeed was still serving.
When asked by Mr Basu QC if everything discussed between counsel is likely to be relayed to the client she disagreed, saying that they would share opinions – most of which would not be relayed. Asked if she was duty bound to give a good account of the conversation, she stated ‘of all relevant matters’. She also pointed out that if counsel shared everything the whole system would ‘go to pot’. She agreed points might be prefaced with ‘I’ve no instructions, but….’.
She accepted nothing was prefaced to Mr Willoughby in that way in their discussions.
She denied saying the police cannot agree to Sgt Saeed’s promotion, stating that the discussions had not got to that stage. She was stating there were practical difficulties. She denied saying impossible, stating that this was not what they were discussing. She stated that Mr Willoughby’s position was that he could not be clear about pay. She conveyed that, in her view, there could not be a problem with pay, but Mr Willoughby was unable to obtain instructions from either his lay or professional client over what the problem was.
Miss Checa-Dover denied that Mr Willoughby told her that this was a ‘red-line’. She said he is wrong and , furthermore, she did not think that; they all went into Tribunal hearing still desiring settlement. She also disputed Mr Willoughby’s contention that had the Sgt Saeed been there, the claim would have proceeded to hearing.
She referred Mr Basu QC to the fact of the case not being ready, a list of issues to be determined by the Tribunal not being finalised and to discussions about settlement and judicial mediation.
She denied Mr Willoughby was trying to leave the waiting room and came back when she said something to him, denied he walked out saying ‘see you in court’ and says that they were having a normal friendly conversation.
It was put to her by Mr Basu QC that the discussion was not informal or glib, she replied that there were formal requirements but the tone was informal and friendly and glib.
She also denied having said she was instructed to seek adverse findings or that ‘Sgt Saeed was not credible and had lied’. Asked whether there was no truth in her fellow barrister’s claims over what was said, she told Mr Basu QC that what she was saying is that there were problems with these types of cases and she took Mr Willoughby through the few matters that she felt Sgt Saeed could not be mistaken about.
She described Mr Willoughby’s account of the disputed conversation as ‘totally wrong’. She denied having issued a menacing threat. She stated it was nothing like that, they spoke in normal tone and it was obvious she was sharing that aspect of these type of cases involving police officers. She stated she shared things like that all the time. She denied this was different to chit chat, and denied she was trying to get a message across. She stated that suggestion astounded her, she was sharing it in a way that counsel normally do.
Miss Checa-Dover denied having referred to the ‘chain of custody’, stating instead that she referred to the ‘evidential chain’. She stated she has never referred to the chain of custody. She accepted saying to Mr Willoughby if there are adverse findings there are problems in the evidential chain. She accepted it would, potentially, be a disaster, that one would not be operational in the sense that they would either be suspended or given a role serving another purpose [restricted duties].
She accepted that, if such circumstances arose, she said the force would have to inform defence teams in criminal trials. Mr Willoughby said he didn’t understand that, so she explained it to him. She denied saying that an officer would be ineffective, she stated that she explained the issue is in the evidential chain.
She stated that she did not recall Mr Willoughby writing in his notebook. She stated at the time she had her laptop open on the cross-examination page. She had a clear recollection of this, and that there was only one conversation in the waiting room, as opposed to at least two other conversations in one of the smaller consultation rooms in the building.
Miss Checa-Dover told Mr Basu QC that she was not saying that Mr Willoughby was not telling the truth, but she can say what happened and it is regrettable they do not recall it in the same way.
She accepted that she had drafted the response to the first claim [racial and religious discrimination] and had not pleaded that the allegations were false and in bad faith. It was put to her by Mr Basu QC that this ‘was not a lying case’ and Miss Checa-Dover answered that the West Yorkshire Police position was ‘that some of what Sgt Saeed had said in his statements was demonstrably wrong’. She denied that she knew those comments would be relayed to Sgt Saeed when he was not in a suitable frame of mind, upon his return from hospital that morning.
Miss Checa-Dover denied that what she said was a threat, ‘it was nothing like that’ and stated she was at pains to explain how careful she was. She denied it was a ‘mafia threat’, saying that their conversation was friendly, there was no sinister presentation, there was no criticism of her at the next hearing and that as far as she was concerned the majority of this is ‘a misunderstanding’.
In answer to questions from Judge Knowles, Miss Checa-Dover denied that she ever said that Sgt Saeed would ‘not be operational’, or would be ‘ineffective’, but she did say that on some topics he couldn’t be mistaken. She stated that the he was at risk of an adverse finding on credibility, ‘the nature of the differences in the evidence was so stark’, and that troubled her. She stated that her notes did not refer to those points; instead she had her cross examination notes in front of her and they discussed the few occasions where those real risks arose.
Ms Checa-Dover was not re- examined by Mr Jones.
The evidence of Victoria Clegg
Mrs Clegg then gave evidence. She was taken to her witness statement by Mr Jones, in which she states that she did not instruct Ms Checa-Dover to obtain adverse findings on Sgt Saeed’s credibility, question his integrity or suggest that he would not be considered operational.
In answer to questions put in cross-examination by Mr Basu QC, she denied any specific knowledge of Mr Robins’ conversation with Sgt Saeed. She did agree, however, that the chief constable had spoken to her and she had been asked to provide an explanation of the current position in the Tribunal proceedings. She was not aware that the chief constable had said he would like to see Sgt Saeed promoted.
She denied having instructions to seek adverse findings against Sgt Saeed; to question his integrity, his credibility or honesty. She accepted those matters may cause difficulties in the evidential chain. She denied there was any policy concerning credibility issues for serving officers, stating that each case would be considered on its merits. She accepted there was a reluctance, especially in the Employment Tribunal because the working relationship between the police force and the officer making the claim would be harmed.
She said that if Ms Checa-Dover had asked for approval of a credibility attack she would want very clear instructions to authorise that. She stated that she did not tell Ms Checa-Dover to do that; they did not discuss it at all and said it had never happened before in her 21 years acting for the Respondent, or the 12 of those in which she had been handling employment claims. She could, however, recall a case where a police officer withdrew from a case over that very risk.
The judge’s findings
Miss Checa-Dover and Mr Willoughby plainly do not agree upon the content of the core conversation which Sgt Saeed relies upon in the section of the particulars of his second claim, concerning victimisation.
There are no obvious reasons to prefer the evidence of one of them above the other says Judge Knowles. Both appear to him to be credible witnesses. Neither has been accused by the other of lying to him, he adds.
It is for him to determine the facts, as they appear, on the balance of probabilities. Whilst he can comment on who’s evidence he preferred, it is not the case, in his view, that one of the barristers must be giving an accurate account and the other an inaccurate account. It is, of course, open to him to make a finding that neither of them has satisfied the Tribunal that what they state they said is, on the balance of probabilities, what was actually said: ‘People can struggle to recollect events and their memory is fallible and can be unreliable’.
There are inconsistencies in the evidence which the Tribunal has heard and neither account can be fully correct. The fact that Mr Willoughby has notes which are contemporaneous, taken as he had a discussion with Ms Checa-Dover, forms part of the fact-finding exercise.
Conversely, Miss Checa-Dover’s notes do not contain any record of the disputed part of the conversation and which is the sole subject matter of Sgt Saeed’s victimisation claim.
Taken into account by the judge is the fact that Mr Willoughby’s notes are a single page and that a full set of his notes was not disclosed at the time of the December, 2020 hearing. That, he avers, does place a limitation as to the context of the discussion which is recorded.
The judge does not consider Mr Willoughby’s notes perfect, and says he is open to the possibility that Mr Willoughby may well not have written everything down correctly: In particular there is a note stating ‘not allowed in chain of custody’, but neither witness appears to be able to explain that. Miss Checa-Dover states that she did not say that at all, instead saying that she only referred to the ‘evidential chain’ [a common policing term].
Mr Willoughby is adamant that his notes and his recollection are correct about that point. Whilst he states that is the case with considerable confidence, the judge has also taken into account that he may have more faith in his notes and memory than can be justified. In particular, referring to Mr Willoughby’s answers in cross examination to questions concerning the ET1 for the victimisation claim, versus his relevant evidence in his witness statement, both set against his contemporaneous notes. There are inconsistencies and the judge found this evidence ‘quite inadequate’.
Although reliant on memory alone, the judge found that Miss Checa-Dover’s account did withstand scrutiny during cross-examination.
Crucially, the judge noted that Mr Willoughby avers that he recounted the disputed conversation to his instructing solicitor, the Police Federation representative and to Sgt Saeed but none of them, surprisingly, appeared to give evidence at the hearing to give their account of that meeting. There were no notes disclosed to the Tribunal from either Mrs Townsend or the enigmatic ‘Doc’.
The judge also noted that Mr Willoughby states that the ET1 in the second claim was drafted by him utilising a more detailed file note that he prepared for his instructing solicitor, which, he says, was prepared very soon after the meeting, either on the same day, or the day after. It was not produced in evidence.
It is unusual, given that both Mr Willoughby and Miss Checa-Dover find the prospect of one of them not being believed by the judge quite serious, that the discovery exercise in this case is not as complete as it could have been.
The judge also points out that what Sgt Saeed recited in his complaint to the BSB on 25th April 2020 contained material differences between that account and what Mr Willoughby says he told him. In the BSB report he refers to ‘the threat of dismissal’ and the wording he uses around that are at odds with Mr Willoughby’s account now, but are also at odds with the matters he drafted in the ET1 dated 3rd March 2020, which was, obviously, submitted on Sgt Saeed’s behalf, before his complaint to the BSB.
He adds that, in the ET1 to the second claim, the reference to Miss Checa-Dover having preceded the conversation with the words ‘I am instructed to seek’ does not appear within quotes.
Although the judge has some reservations about the quality and accuracy of the notes which Mr Willoughby made, he concludes that, on the balance of probabilities, those notes were taken because those comments, or something close to them, were made to him by Miss Checa-Dover and that is why he wrote them down in his note book.
He does not find, on the balance of probabilities, that Miss Checa-Dover stated that she was ‘instructed to seek findings of adverse credibility. That is not recorded in the notes, and in the light of his other reservations, he does not find that the recollections of Mr Willoughby are sufficient to conclude, again on the balance of probabilities, that those words were said at the time they were both in that disputed discussion.
Having considered the evidence and the submissions from both parties in the round, Judge Knowles concludes, on the balance of probabilities, that a conversation took place in which Miss Checa-Dover said to Mr Willoughby:
- That she would seek adverse findings as to credibility; in that it was said ‘Sgt Saeed had lied in his evidence’.
- That she was careful never to put to a witness that something is a lie when it could be a mistake and that much of what Sgt Saeed alleged was probably his genuine, but mistaken perception.
- However, there were a few matters which he just can’t be mistaken about. He’s telling the truth or he’s lying. If he is found to have lied by a Tribunal, realistically he’s not going to be allowed in the evidential chain.
- That will make the Claimant ‘not operational’, if the police inform a criminal defence team that he handled evidence and of that credibility issue.
- He would therefore be ineffective as a police officer.
The judge did not conclude that either Mr Willoughby or Ms Checa-Dover are lying, have lied or are liars. There is no evidence, he says, that either of them has lied. In conclusion, he goes on to say, they both have an imperfect recollection of what precisely was said between them on 17th January 2020. But, taken in the round, it is more likely than not that the conversation contained the comments set out above.
Written submissions by the parties post-hearing
The judge also took close account of lengthy and detailed submissions from both parties as to the background to this matter, their key extracts from the evidence and their summary of the applicable law. They are summarised here:
- The substantive submissions on behalf of Sergeant Saeed:
‘ The first question is whether what was said was part of “negotiations genuinely aimed at settlement”:-(i) if not – the without prejudice rule does not apply at all;
(ii) here, the negotiations had ended with a polite ‘walk-out’ by Mr. Willoughby, who said that terms could not be agreed and red lines could not be crossed:- “It’s a red line. It’s clear we’re not going to settle this, we’ll proceed to trial”
(iii) his walk-out was interrupted, as he opened the door to leave the room, saying “see you in there”, by the words which Ms. Checa-Dover next spoke;
(iv) the negotiations had ceased and what followed was not an offer or a further negotiation or invitation to resume. It was not part of “negotiations genuinely aimed at settlement” but “a threat if an offer is not accepted”.
‘The second question only arises if what was said was part of “negotiations genuinely aimed at settlement”:-(i) was it unambiguous? – yes, it was admirably clear, even if being along the lines of “that’s a nice career you’ve got there – it’d be a shame if anything happened to it …”;
(ii) did it constitute impropriety? This was not the sort of case in which it could credibly be said that there was a serious chance of Sgt Saeed (or anyone else) being found to be a liar – especially given that Miss Checa-Dover now accepts that she actually had no intention of making any such suggestion about Sgt Saeed. One of the few stark disputes of fact, on the pleadings of the claim, concerned whether Inspector Mick Preston had pointed to his forearm and told Sgt Saeed that he was “more of an ethnic minority” than was Sgt Saeed. There were no other witnesses to that conversation. Even if there was a serious chance of anyone being found to be a liar – it applied equally to both sides, with any consequences applying accordingly;
(iii) the police’s position was not to obtain adverse findings on Sgt Saeed’s credibility, to question his integrity or to suggest that he would not be considered operational – and this was an improper threat to try to bring him back to the negotiating table by make him fear for his career, operational status and position if he continued with his claim;
(iv) Miss Checa-Dover knew that Mr. Willoughby was duty-bound to report their conversation to his lay client – whatever she now says. She was not telling Mr. Willoughby something which she thought he already knew but (1) which she had no instructions to go through with and (2) had not included within her prepared cross examination;
(v) she knew that Sgt Saeed was– in that moment – at, or returning from attending, a hospital appointment about deterioration of his eyesight and that he said that he suffered from anxiety and depression;
(vi) this threat was not just ill-advised or cruel in the circumstances, it was improper.
In summary, this amounted to:-
(i) the words spoken on 17th January 2020 by Miss Olivia Checa-Dover, counsel for West Yorkshire Police, to Mr. Adam Willoughby, counsel for Sergeant Saeed, were not the subject of the ‘without prejudice’ privilege whether because negotiations had been terminated by the imposition of ‘red lines’ and a ‘walk-out’ or because her words constituted unambiguous impropriety, being at least capable of amounting to an act of victimisation;
(ii) counsel’s words spoken in that conversation are not “immune from suit as made in the course of proceedings” (referring to the notes to the Case Management Summary from the previous Preliminary Hearing) – counsel is not sued and, in any event, the core immunity described in Darker and Others v West Midlands Police (read here) applies to words spoken in a court of justice;
(iii) Ms. Checa-Dover’s words ‘can amount to an act of victimisation’ (by reference to the Order made at the previous Preliminary Hearing); and
(iv) the Claimant respectfully asks that the two claims be heard together.
2. The substantive submissions on behalf of West Yorkshire Police
‘A. Without prejudice communications
Oral communications made during a dispute between the parties, which are made for the purpose of settling the dispute, and which are expressed or are by implication made ‘without prejudice’, cannot generally be admitted in evidence.
The critical question for the ET as to admissibility is where to draw the line between the public policy of encouraging parties to resolve disputes without litigation, and wrongly preventing one or other party from putting their case at its best in litigation.
This is a balancing exercise for the ET. There can be no doubt that that parties entered the claimant’s waiting room for the ‘final’ discussion for the purpose of continuing negotiations that were genuinely aimed at settlement. That is an agreed fact.
B. Unambiguous impropriety
That leaves the Tribunal with the question of whether or not OCD’s actions could amount to unambiguous impropriety as per the case of Unilever plc v Procter & Gamble Co. [2000] 1 WLR 2436 CA at p.2444F. The without prejudice rule will not apply “if the exclusion of the evidence would act as a cloak for perjury, blackmail or other “unambiguous impropriety””. There is no suggestion in the present case of either perjury or blackmail.
Sgt Saeed’s case is put that Miss Checa-Dover threatened or promised to attack a police officer’s credibility so that he will have to be excluded from the evidential chain, rendered non-operational and thus ineffective as a police officer. That is plainly not the case here nor how the evidence played out in the Tribunal.
At worst for West Yorkshire Police, her actions were ambiguous when the evidence is considered in the round, as was that of Mr Willoughby. In addition, there was nothing, even on his evidence, that could be construed as improper.
A finding of unambiguous impropriety, as sought by Sgt Saeed, has profound professional consequences for Miss Checa-Dover. It could well spell the end of her career as a barrister and as sitting as a member of the judiciary. The stakes for her could not be higher. West Yorkshire Police submit that her conduct falls far short of anything amounting to unambiguous impropriety and instead, her actions on either party’s case were entirely normal in context. As alluded to above in respect of Mr Willoughby’s evidence and the concept of brinkmanship, if the Tribunal were to accept his version of the conversation between him and Miss Checa-Dover, her actions may also be construed as brinkmanship.
It is somewhat odd that it does not appear to have dawned on Mr Willoughby the professional consequences potentially both to himself and Miss Checa-Dover. At the Preliminary Hearing held on 11th March 2020, he appeared blissfully unaware that both counsel would need to withdraw from the present case. The word odd has been carefully selected because it must be the case that experienced counsel would have known, yet he appeared not to, that the alleged wrongdoing of fellow counsel may have profound professional implications for them both.
This is not a case where West Yorkshire Police does not defend the making of a threat to one of its own officers. Even if the Tribunal were to accept Mr Willoughby’s evidence, the comments attributed to Miss Checa-Dover may be viewed as a statement of the obvious. The same cannot be construed as a threat.
There would obviously be profound consequences for any professional whose integrity is of the utmost importance to his (or her) role. Miss Checa-Dover knew that, she told the ET that. Furthermore, she told the Tribunal that an adverse finding as to Sgt Saeed’s credibility would, in fact, be problematic to both sides, albeit for different reasons. It flies in the face of common sense and reason that knowing that, she would seek to ‘threaten or promise to attack’ Sgt Saeed.
It is also submitted that regard should be had to whether or not the observations of Miss Checa-Dover were justified. Her evidence has been clear throughout, there were matters of evidence that Sgt Saeed simply could not have been mistaken about. She was pressed in cross-examination by Mr Basu QC on this point.
She was able to give cogent evidence and a specific example of why she believed that her assertion was correct. She pointed to the dichotomy in evidence between Sgt Saeed and Sergeant Patrick.
A dangerous precedent would be set if counsel were not able to speak freely and candidly to one another. It would certainly not accord with the public policy or promoting settlement between the parties.
It is a risk for any party to proceedings that an adverse judicial finding may be made. That is, in it’s purest form, the risk of litigation. It therefore must follow, that in the event of an individual’s integrity being called into question, where integrity of the highest standards is the foremost qualification of that person’s professional standing, an adverse judicial finding may have profound professional consequences.
Analysis of litigation risk is a key component of any settlement discussion.
The material counsel-to-counsel discussion between Mr Willoughby and Miss Checa-Dover was conducted entirely either expressly or implicitly on a without prejudice basis and is therefore privileged.
C. Vicarious liability of the Chief Constable
Section 109(2) Equality Act 2010 provides that employers and principals can be held liable for the discriminatory acts of their agents.
In Kemeh v Ministry of Defence [2014] EWCA Civ 91, Elias LJ held that liability for an agent’s discriminatory acts is governed by common law principles. In utilising the term ‘agency’ in anti-discrimination legislation, Parliament must have intended that it would have its ordinary common law meaning, rather than being susceptible to some wider interpretation.
The Kemeh approach was followed in UNITE the Union v Nailard [2018] EWCA Civ 1203. Accepting that, as per Elias LJ in Kemeh, s.109(2) Equality Act 2010 would only apply where “the agent discriminates in the course of carrying out the functions he is authorised to do”.
There is a material difference in the evidence given by Mr Willoughby and Miss Checa-Dover in that he alleges she informed him that she was acting on instructions. That is not the case, nor is it accepted by the police that she said that. She was not acting on police instructions; this is confirmed by the evidence of Mrs Clegg. The question must then be considered in the context of Miss Checa-Dover’s implied authority as Counsel for West Yorkshire Police.
It is trite that Counsel Ms Checa-Dover was engaged under the terms of The Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2012 – (Updated for the GDPR in 2018) as referred to in Rule rC30.9c of the BSB Handbook. Clause 8.1 provides:
“8.1 The Barrister will exercise reasonable skill and care in providing the Services. The Barrister acknowledges the existence of a duty of care owed to the Lay Client at common law, subject to his professional obligations to the Court and under the Code.”
It cannot be said that she was acting with authority, either actual or implied, in either threatening or promising to attack Sgt Saeed’s credibility. Indeed, the same defies common sense. There is, perhaps, no better example of this than Sgt Saeed’s reliance on the personal support of John Robins by reference to text messages received by the junior officer from the chief constable.
In Catholic Child Welfare Society v Various Claimants (FC) [2012] UKSC 56, the Supreme Court held that a religious order was vicariously liable for sexual abuse committed by its brothers while teaching at a school. This was despite the fact that the institute did not manage the school and the brothers were not employees of the institute. The Supreme Court held that there was a two-stage test to imposing vicarious liability. Firstly, whether the relationship between the institute and the teaching brothers was sufficiently akin to that of employer and employee to impose vicarious liability. Secondly, whether the institute had placed the brothers in a position so as to further the institute’s own interests which increased the risk of abuse. The court found both aspects of the test satisfied and accordingly imposed vicarious liability on the institute for the brothers’ actions.
Miss Checa-Dover was not instructed by the police to seek adverse findings as to Sgt Saeed’s credibility. “…I must be clear – I was not told to say this by anyone. I never told Mr. Willoughby that I was acting on instruction because I wasn’t.”
Mrs Clegg is equally clear: “I did not instruct Ms Checa-Dover to obtain adverse findings on the Claimant’s credibility, question his integrity or suggest that he would not be considered operational.”
Miss Checa-Dover was acting in accordance with regulatory framework, her duty to both her professional and lay clients and the Tribunal. Within that framework, she was in business on her own account. However, she was not instructed by West Yorkshire Police to seek adverse findings in respect of Sgt Saeed’s credibility that may have a profound adverse impact on his ability to perform his duties as a police officer. It cannot be said that either the relationship between Miss Checa-Dover and her client, or her acting of her own volition satisfies the two-stage test outlined in Catholic Child Welfare Society.
Other legal authorities were cited in support of that proposition, including Barclays Bank Plc v Various Claimants [2020] UKSC 13 and William Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, in which the Supreme Court concluded that the supermarket chain Morrisons, should not be held responsible for the actions of a disgruntled employee who wrongfully and purposely uploaded the personal data of almost 100,000 other employees on a publicly accessible file sharing website. The decision focussed on the fact that at time of the disclosure the employee had been carrying out a personal vendetta against Morrisons and was not engaged in furthering the course of the company’s business. The decision in Morrisons could be seen as being at odds with earlier decisions. The SC considered that the disgruntled Morrisons employee was going beyond his authorised activities (which included passing payroll data to external auditors) such that he was pursuing a personal vendetta and was not engaged in Morrisons’ business.
If the Tribunal was minded to make a finding of unambiguous impropriety against Miss Checa-Dover, it must therefore follow that West Yorkshire Police cannot be held responsible for her actions.
The conduct complained of, on any reasonable interpretation, was not because of a protected act. Her comments relate to the manner in which Sgt Saeed was pursuing his claims.
Sgt Saeed is not protected under the provisions of s.27 Equality Act 2010 if the detriment is due to the manner of performing the protected act rather than the protected act itself, as in the case of HM Prison Service v Ibimidun UKEAT/07/DA.
Mr Jones says that there is no case law of which he is aware that specifically relates to Counsel and whether or not Courts and Tribunals have been willing to pierce the veil of vicarious liability. Dijen Basu QC suggests it would be absurd if “barristers do not fall within the scope of s.109(2) and (3) EQA 2010..”. Respectfully, Mr Jones disagrees. The Tribunal is bound by the principles of agency in common law for the purposes of which, the Tribunal has been directed in particular to the cases of Kenmah and Barclays Bank. Those principles apply equally whether considered in the context of Barristers, Solicitors, Doctors or any other professional advisors.’
Conclusions by the judge
What was the content of the relevant discussion between Mr Willoughby and Ms Checa-Dover on 17 January 2020?
As set out in his findings of fact, he concluded that a conversation took place in between Miss Checa-Dover and Mr Willoughby on those terms at paras 1. to 5.
Was that conversation part of a without prejudice conversation?
Mr Willoughby’s evidence that without prejudice discussions had concluded, and therefore that nothing which followed were part of without prejudice discussions, was found by the judge to be ‘quite absurd’.
He states that through saying to Ms Checa-Dover that “It’s a red line, It’s clear we’re not going to settle this, we’ll proceed to trial, see you in in there” he left Ms Checa-Dover in no doubt at all that without prejudice discussions were at an end.
That, from his perspective, without prejudice discussions were concluded may well have been his true feelings at the time and he was entitled to hold them.
However, his belief that he may unilaterally conclude without prejudice discussions is mistaken, says the judge. Who really has the last word, asks the judge? A party to litigation may make representations without prejudice at any time and whether or not the other party has stated they consider the without prejudice discussions to be at an end (which I note Mr Willoughby had not expressly done so, rather he had expressed an opinion as to the likelihood of a deal at that point in time).
Without prejudice communications frequently arrive unsolicited and in circumstances where they were never sought in the first place. There is nothing to stop a party, in principle, seeking and continuing to seek settlement of an issue with another party who does not share that ambition or desire.
Mr Willoughby says it was clear that the discussions were at an end because of what he said and because he was walking out of the door. However, he returned to the table at which Miss Checa-Dover was sitting. Why, the judge asks? If the without prejudice discussions were at an end, as he suggests, why did he act contrary to that position by returning to sit with her? He does not suggest that he clarified with Miss Checa-Dover whether or not what followed in their discussions was on or off record, or was part of their settlement discussions as opposed to preparation for the beginning of the hearing.
Why does he not state to her that he is no longer talking off record in without prejudice discussions and everything that follows is on record and not without prejudice? It would be forgiving to suggest that Mr Willoughby was acting upon assumptions. However his interpretation of events, in retrospect, is ‘in my conclusion significantly wanting’, says Judge Knowles.
In the judge’s view, the situation concerning the “clear” end of without prejudice discussions may well have been within his thoughts, but they would not have been clear to anyone else based upon his actions: Mr Willoughby and Miss Checa-Dover were in that room to discuss settlement of this case on a without prejudice basis.
Was the conversation genuinely aimed at settlement?
Mr Willoughby has accepted in evidence that the point that Mrs Checa-Dover made to him regarding the possible fate of Sgt Saeed was a litigation risk. It is normal in without prejudice discussions to discuss such risk. When pressed on this point he stated that it is the way in which this was presented as a fait accompli that he objected to.
He appears to have brought the discussion to its peak at that point, concluding with “see you in there”. A retort which was brief and missed some interim procedural points does not in the judge’s mind seem in any way incompatible with the principles of a discussion genuinely aimed at settlement.
Mr Willoughby’s evidence is that he was at that point walking out of the door. A brief worst-case expression does not appear out of the ambit of how these discussions might progress in the ordinary course of litigation. He did, also, choose to turn around and sit back at the table and listen to what Miss Checa-Dover had to say.
He appears not to have been equipped [or sufficiently experienced in policing matters] to answer Miss Checa-Dover’s assertion that Sgt Saeed would not be operational or effective. This is a matter he recorded in his notes as something he needed to “(check)”. Had he been so equipped, the discussion may well have not concluded in being interpreted as the fait accompli that he complains about. Part of the fait accompli is that he was unable to robustly put the matter into its true procedural place.
Miss Checa-Dover did distinguish between accusing someone of lying and putting to them matters about which they must be mistaken, and the care she would take. It would, nonetheless, be a litigation risk that a Tribunal might, possibly, listen to the evidence and find something stronger in term of the conflict upon the evidence.
By the same token, the judge has taken into account that the Panel may have made findings about the police witnesses, as to the strength of their evidence or, indeed, their credibility.
Finally, in noting the importance of the contemporaneous record, the judge has highlighted how Mr Willoughby noted the matter the matter at the time. His note records “(??) – tactic to force US?”. In so doing he rules that these discussions were nothing more than that; tactical discussions concerning litigation risks. Albeit, at an extreme edge, but, nonetheless, accepted to be real risks, genuinely aimed at settlement, he finds.
Were Miss Checa-Dover’s comments an unambiguous impropriety or a threat?
In the judge’s conclusion, the exception to privilege which arises in consequence of an ‘unambiguous impropriety’ is not engaged on the facts of this case. He considered the exception to be somewhat a high watermark, saying: The public interest in the without prejudice rule is very great, to be sacrificed in truly exceptional and needy circumstances only.
He goes on to say that Miss Checa-Dover’s position, however blunt or robust, could not be described as improper, in the sense that it may lead to perjury. She made a point which Mr Willoughby concedes was a litigation risk to the Sgt Saeed.
It is not an abuse of the privilege to tell the truth, Judge Knowles says. ‘Miss Checa-Dover could not be accused of having said anything other than what was the truth; Sgt Saeed risked adverse credibility findings in the litigation, in that he had lied’.
The merit of that assertion is a matter that Mr Willoughby could, as experienced counsel for Sgt Saeed, have well handled. But he appears to have countered it only to note that it was a point he should “(check)”. The judge doubts that counsel experienced in handling the point Miss Checa-Dover made would have left that conversation with such interpretation of what she was saying, because they would have been capable of positioning an argument put “at its height” or describing a “worst-case” in its realistic and balanced place.
The judge does not consider that what she said about Sgt Saeed was a threat. She stated, as was recorded by Mr Willoughby in his notes, that that she would “seek” adverse finding as to credibility and that Sgt Saeed had lied. Miss Checa-Dover did not make a statement that Sgt Saeed would be hurt or harmed in not settling the litigation, the judge says.
In the judge’s view, the comment is no different to the comment Mr Willoughby made earlier in the discussions to Miss Checa-Dover, that if the matter were not settled then Sgt Saeed would bring a claim of disability discrimination against West Yorkshire Police.
That, he says, is similarly not a threat because it is not a statement that the police will be hurt or harmed in not settling the litigation. It is not a statement that the Respondent “will be” hurt or harmed, it is simply a statement that a claim may be made which could possibly have that outcome.
References in cross examination and in written submissions to “mafia threats” were highlighted. But, the judge says, a statement of what might happen in one’s ordinary recourse to legal proceedings is simply not, by any measure, akin to a “mafia threat”.
The judge notes the aptness of this paragraph from a well-quoted legal authority, Unilever plc v Procter & Gamble Co. [2000] 1 WLR 2436, CA : “At a meeting of that sort the discussions between the parties’ representatives may contain a mixture of admissions and half-admissions against a party’s interest, more or less confident assertions of a party’s case, offers, counter-offers, and statements (which might be characterised as threats or as thinking aloud) about future plans and possibilities.”
In conclusion, Judge Knowles finds that Miss Checa-Dover’s comments to Mr Willoughby on 17th January 2020 during the disputed part of their conversation were neither an ‘unambiguous impropriety, nor a threat.
Judicial proceedings immunity
The judged concurred with the written submissions of Dijen Basu QC that judicial proceedings immunity is not engaged because the relevant conversation between Miss Checa-Dover and Mr Willoughby took place outside the Tribunal. That would not prevent Sgt Saeed raising the matters if the he was not otherwise prevented from doing so by way of them being legally privileged under the without prejudice rule.
The police did not, specifically, dispute this point in their own submissions.
Can words spoken by their instructed Counsel amount to victimisation West Yorkshire Police?
The judge again concurs with Mr Basu QC in that such comments may amount to victimisation in certain circumstances – and that the law of agency may or may not provide an escape for Counsel’s instructing party. That would be a matter to proceed to a full hearing, if Sgt Saeed was not otherwise prevented from raising them.
The impact of the judge’s conclusions on the victimisation claim
The conversation between Mr Willoughby and Miss Checa-Dover cannot be relied upon by Sgt Saeed to claim that he was victimised contrary to Section 27 of the Equality Act 2010.
Accordingly, the claim of victimisation is for that reason not well founded and fails.
The remainder of Sgt Saeed’s claims under the second claim, discrimination related to his protected characteristic of disability, are not affected by this preliminary judgment; they shall proceed.
The disability claim is ordered by Judge Knowles to be consolidated with the first claim. The representations of both parties as to the benefits and risks of consolidation, were considered by the judge but, in the round, given that Sgt Saeed is describing an ongoing employment history, consolidating the claims would mean that the context of his considerable employment record does not have to be examined twice.
Postcript
A ‘private’ telephone conference between the presiding judge and representatives of the two parties is scheduled to take place in April, 2021. Presumably to progress case management matters, including listing of a final hearing. It is so secret that Leeds Employment Tribunal has been unable to provide a date, when requested.
The same Tribunal office was unable to provide an accredited journalist, the only one to have covered this employment dispute from its outset, with a copy of a public judgment. A wait of almost two weeks ensued before it was published on the gov.uk website.
Issues over rights of inspection of the hearing bundle by a court reporter (or, indeed, any member of the public) are also troubling. Access was wrongly denied by a Tribunal clerk on the day the hearing should have commenced in January, 2020.
Open justice is fundamental to a democratic society, but that news does not appear to have permeated through to the 4th Floor at Albion House, Leeds.
Page last updated at 1245hrs on Friday 19th March, 2021.
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