Her Honour Judge Bloom is hardcore. Not to be messed with. That is the first and in some ways most important conclusion I drew from covering the latest hearing in Smith v Whitbread Group PLC on 25 October 2021. The second most important opinion I have formed is that Whitbread's highly technical defence is vile and not so very far from arguing that segragated buses is just a-okay. The case is of importance because Whitbread's defence could make it easier for large companies to engage in other types of discrimination such as Islamophobia. To the population of Luton where the case was heard, which includes a large number of Muslims, this is unlikely to be acceptable. The case has many concerning aspects, which in my opinion reflect badly on executives including CEO Allison Brittain. This includes their insensitive treatment of the Claimant as a victim of sex crime.
For those of you who have not followed, Matthew Hopkins News editor Sam Smith is suing Whitbread Group PLC, the owner of the Stanborough Pub in Welwyn Garden City. A previous article by Smith is here. I was approached by Sam a few years back when I was at a particularly low ebb fending off attacks from Nazis on the internet. We are from different worlds but share the same bottom line, opposing the extreme violence and criminality of those who like Kiwi Farms believe they are above the law. The struggle so far has been an unequal one. To date Mr Smith, a law graduate acting in person, has absolutely rekt Whitbread, leaving them around £75,000 down in permanently irrecoverable costs.
In summary, after making an equalities complaint, Mr Smith was satisfied with the outcome and forgot about it until, some weeks later and for no apparent reason, a member of staff called Rebecca Topham told him he would only be served by management as a result of raising, "equalities issues". Mr Smith wrote a letter of claim. Whitbread via their solicitors, Weightmans, denied the interaction and liability. Mr Smith produced an audio recording. Whitbread claimed Ms Topham had forgotten about the conversation (Mr Smith complained on the day of the conversation). They maintained their defence. Proceedings were issued pursuant to s27 and 29 Equality Act 2010.
Whitbread decided to throw lawyers at the problem and applied to strike out and / or for summary judgement, with a detailed and highly technical skeleton argument drafted by Weightmans and nearly 20 pages long. In summary, they argued that Mr Smith's complaints were too vague and speculative to be protected acts, and that delayed suffered by Mr Smith was not enough to amount to a material detriment. In my opinion, the latter point is quite pernicious and indeed toxic. It would amount to a license for discrimination of all kinds and is a major reason I am covering the case.
Most litigants in person would be reduced to a quivering wreck by the kind of lawyers Whitbread threw at them. Smith however has an LL.M LPC (Commendation) and got a distinction on the litigation module. He has over 10 years litigation experience as a McKenzie Friend. When other law students were doing mooting (play-acted cases) Smith was helping real litigants in disputes with their own lawyers. Smith drafted his own skeleton argument, filed his own case law and Whitbread's application was rejected in January of this year by Deputy District Judge Octavia Knox-Cartwright. Whitbread were ordered to pay Smith's costs. Not deterred, Whitbread appealed to a circuit judge, HHJ Bloom.
The hearing, on 26 May 2021 was a tour-de-force of obscure Equality Act related case law which ended in a narrow victory for Smith. Bloom gave permission to appeal, then reheard Whitbread's application. In the surreal hearing, which at one point saw a Weightmans partner arguing against case law his associate had filed, Bloom came down on Smith's side. Whitbread's application was rejected a second time, with more costs in Smith's favour. By this point, Mr Smith had received around £3K in costs whilst Weightmans had over £70,000 permanently extinguished by specific costs orders. The judge directed a trial. The court appeared to accept case law filed by Mr Smith along the lines of the Defendant having to disprove bad thoughts. However Bloom did warn Smith his case on detriment was the weakest point, although of course by definition she had found the claim to have a realistic prospect of success at trial.
It is unclear if this represents the wily judge's full thinking. If she was that unimpressed she could have just ordered summary judgement. By throwing Whitbread a branch whilst ruling against them, she deterred a further time-consuming appeal whilst committing herself to nothing, as well as pointing out to Smith the areas which he could improve. Smith has of course now beefed up his case on detriment and obtained a second opinion from Michael Duggan QC to the effect that in light of the final pleadings, that element is not really in doubt.
The hearing of 25 October was a Costs Case Management Conference (CMCC) that I attended remotely. The purpose of CCMCs is to cap the costs parties can recover in the UKs notoriously expensive civil litigation system. To be clear, neither party 'got' any costs from the hearing. Smith said that by trial if represented he will have incurred costs around £13,226. Weightmans tried to claim the case would cost them over £90,000. The judge responded to this by telling them to re-write their paperwork and reducing the amount by about £30,000. As he is indemnified by a wealthy backer, Mr Smith is not at risk personally. However, even so it is gravely concerning that a professional law firm would inflate their costs value by around 50%.
The behaviour of Whitbread's lawyer was very strange. Whitbread were represented by John McWilliams, a solicitor and an associate at Weightmans. An inhouse lawyer called Arash Kang was also present. McWilliams called the judge by the wrong title, (Ma'am) which is the title for a more junior judge, a district judge. A circuit judge is called, "Your Honour". After the judge pointed this out, Whitbread's solicitor made an odd excuse, claiming he thought it was a "chambers appointment" and continued to call her "Ma'am" for the entire hearing. Smith at least had the social nous to hail-to-the-chief, using the correct title and smoothly and grovellingly apologising when he accidentally interrupted her, before humbly asking if he could address her on a point.
Mr Smith complained that Mr McWilliams had used the wrong form for the costs budget, using a longer one instead of a short form prescribed for low value cases. The judge agreed, but said it made no difference and Mr Smith was not prejudiced. Whether Whitbread are equally delighted about paying to do extra work that helped Smith remains to be seen.
HHJ Bloom did however reduce Whitbread's trial budget by around half. It also emerged that Whitbread have lost CCTV that Smith says is critical evidence on detriment. Smith is asking the court to apply a legal adverse presumption to this, being obviously unimpressed by Whitbread's assertion it disappeared from their hard drive. Whitbread asked for a budget to write a witness statement explaining how the evidence was lost. HHJ Bloom demonstratred how impressed she was by reducing their budget on this from £3000+ to around £500 - a reduction of over 80%.
The judge further intimated that even if Whitbread wins, their costs might further be reduced on detailed assessment and therefore they would get less than budgeted. If Mr Smith wins of course, they will be paying him.
McWilliams also complained to the judge that Mr Smith had called him dishonest in an email to his boss. McWilliams had claimed Mr Smith had not properly served a Disclosure Order obtained ex-parte and alluded to an application to set it aside. Mr Smith's email was by way of response. After his email, Whitbread abandoned any challenge to the order but instead obeyed it, admitting they had CCTV but stating it was no longer in their control. Smith responded by pointing out it was a private letter he had not put to the court and if McWilliams had not mentioned it in court, no one would know about it.
HHJ Bloom seemed unimpressed by the allegation of dishonesty, suggesting any fault by McWilliams was more likely to be a, "mistake". She sternly advised Smith to ensure any such allegations were strongly particularised. However, she declined to rule on it, agreeing with Smith it was not actually before the court and suggesting that robust solicitors could deal with such matters by ignoring them. Whilst McWilliams was not found dishonest, no one would know about it had he not raised his denials at a hearing where it was not in issue and can be reported on with absolute privilege. Certainly, McWilliams seems to have made a number of mistakes, the costs budget and judge's title being two examples. Although I tend towards agreeing with the judge that these were mistakes, I would not criticise a litigant in person for overstating matters in a private email. I would also not expect either the judge or Whitbread to be impressed with the time-wasting of their lawyer by threatening applications not actually made. The advice to particularise allegations of dishonesty is double edged. Whitbread have amended their defence to include allegations of dishonesty that counsel have advised Smith are deficient. If counsel is correct, Whitbread may face further costs sanctions and embarrassment.
From my perspective, I have a real problem with Whitbread's approach to this case. Firstly, they have failed to admit a number of tangential facts they say are not relevant, but Mr Smith says are. One particularly awful thing that they have done is fail to admit Mr Smith's pleaded assertion that he is a victim, in effect, of revenge pornography. This forces him to give evidence on it even though Whitbread have not denied it or filed evidence to oppose. Given that the media and Mr Smith have put this personally to Whitbread CEO Alison Brittain, he has expressed the view that he holds her personally responsible, saying in his skeleton argument, "The Claimant considers this is tantamount to the Defendant repeating the crime against him. The media have put this to the Defendant's Chief Executive and it may be said the Defendant is thoroughly on notice."
The worst difficulty for me though is the case on detriment. If I had to wait 30 seconds extra in a pub because of staff being off sick, or because it was busy then it would be absurd to complain or bring a claim. If I had to wait 30 seconds extra because of a policy, announced by staff or on a sign, that "darkies go last" and I had to go behind a white person, that would be different. There are multiple cases in law which seems to confirm this. Smith claims that Whitbread staffer Will Campion treated him in a near identical way, serving other customers whilst he waited. There should be CCTV of this disputed event, but it has not been preserved. The manager who apparently had custody of the CCTV and will be producing a witness statement is one of the alleged perpetrators, Stuart Jackman. The fact that Whitbread left this evidence in his sole custody does not reflect well on them.
However, the huge problem for me and the reason I feel that Alison Brittain is not suitable for public life is the substance of their defence. In segragation Alabama in the United states black people had to sit at the back of the bus. I imagine a bus company could say that, for example, the seats at the back were equally comfortable and only perhaps 5 seconds further from the door. Indeed, for a time the United States had a now notorious doctrine called, "separate but equal". In the modern age this has of course been denounced as racist. In my opinion by permitting Whitbread's solicitors to revive echoes of this argument, Brittain has proven herself unfit for public life. Of course the court will decide if this defence is successful, but I say that if it is, the law should be changed. I imagine in any event HHJ Bloom is wise to the implications.
Costs in service claims under the Equality Act 2010 have been under the spotlight in recent years. There was a recent proposal to extend Qualified-One-way Costs to them, which is a doctrine used in personal injury claims. This case is likely to be raised in Parliament. Even in the event Smith loses, or more unlikely, is found dishonest, Ms Brittain's choices here are vile and could immortalise her in ways she may not wish. The squandering so far of over £75,000 on a toxic defence of a claim for a mere £8,800 is also unlikely to impress investors at a time when hospitality businesses are re-capitalising in the wake of Covid. Whitbread have also incurred further costs not recoverable in the proceedings of making threats of libel actions through a second firm of solicitors. It would have been cheaper and more commercially wise to settle with Smith for a confidence agreement. This would have limited costs to a fraction of what has been spent, and guaranteed no bad publicity.
In my opinion, Whitbread Group would benefit from having a new CEO.
The author considered the Editor's Code and a draft of this article was put to Sam Smith, John McWilliams, Alison Brittain, Weightmans, Whitbread and HHJ Bloom before publication. HHJ Bloom has declined to read it or comment, being strict in maintaining her impartiality. No other party has responded, save Sam Smith. McWilliams, Weightmans and Whitbread have not denied the facts set out in this article nor have they asked for other material to be included.
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