That bundle feeling: McGuigan and Daly trade indices.
Allison Bailey, the barrister who successfully sued her chambers for discrimination, has been awarded a further £20,000 as a result of the mess the set made of the trial bundle.
Bailey applied for Garden Court Chambers to pay £122k of her £765k costs for the deficient way in which it prepared the trial bundle, while the set applied to have Bailey pay a portion of its £675k costs on the basis that she did not succeed in proving two detriments.
Garden Court’s application was rejected by the employment tribunal, where, unlike the courts, costs are rarely awarded. But it took a different view of Bailey’s application, concluding that Garden Court and its solicitor, TMP Solicitors co-founder Jacqueline McGuigan, had exhibited “unreasonable conduct”.
The trial judgment made scathing reference to the 6,431-page bundle, noting that it was “exceptionally difficult to work with” and “seemed to have been randomly thrown together”.
Issues included pages inserted sideways, email exchanges which “could be 2,000 or 4,000 pages apart”, inaccurate indexes, and frequent duplication.
“None of the panel had ever come across a bundle where large parts could simply not be made OCR readable”, said the tribunal, referring to the technology which allows text in pdfs and images to be searchable.
Garden Court had attempted to pin the debacle on Bailey’s legal team, but the costs hearing revealed that, in fact, the chambers and McGuigan were responsible for the shambles.
The original hearing suffered delays when counsel were unable to locate key emails. It became clear during the costs hearing that “much of the puzzle over missing emails” was because the Garden Court team had "chopped up" the email threads and placed individual emails in the bundle in chronological order, then pasted them all into a single, 1,000 page PDF.
Bailey’s solicitor, Peter Daly of Doyle Clayton, had pointed out to the Garden Court team that in order to make sense of the emails they would need to be included as threads. McGuigan refused, responding, “I will not be replacing single emails with your threads. That would result in a complete rewrite of most of the bundle”.
After “initially cordial" correspondence which saw Daly's team attempting the “extremely laborious” task of complying with Garden Court’s request to manually rename documents in line with Garden Court’s system, relations became “extremely acrimonious” as Daly’s “careful” tone and “stoic goodwill” were met with irritable replies and “unmerited and unhelpful” accusations and “attitude” from the Garden Court team, said the tribunal.
McGuigan wrote to Daly that “your input has been slapdash and lacking in proper care and thought as to the relevance or irrelevance of many documents that should be included in the bundle. This has wasted my time”.
“You twist and manipulate words after the conversation. You change emphasis on meaning and don’t explain the proper context”, she said.
Yet despite McGuigan complaining that it was “extremely regrettable that Garden Court were somehow tasked with putting this bundle together, because it has been a monumental and disproportionate task”, she repeatedly refused Daly’s offers to take over construction of the bundle.
When he raised concerns about the dog’s dinner which was being created, McGuigan replied, “It’s a bit late in the day for you to be making objection. You have been missing in action for a month and now pipe up with demands. No!”
Eventually he applied to the tribunal to take over, stating that the latest version he'd been given left out 167 pages and contained 2,980 pages which were not indexed at all.
McGuigan said his application was “ludicrous” and “utterly unacceptable”, and that “In my view it warrants an application for wasted costs against the solicitor personally”.
Daly wrote to McGuigan, “this is not a ‘bundle wars’ and it is not a personal criticism. I absolutely understand you have put a huge amount of effort into this, and I also understand your unwillingness to give up on what has been done. But the work you’re going to have to do to get this ready cannot be done on our trial timetable”.
The tribunal, which at the time gave Garden Court permission to carry on constructing its monster, said the mass of correspondence which followed “makes sorry reading” in which the Garden Court team “seems unwilling or unable to recognise the problem”.
“For whatever reason”, McGuigan “did not recognise the difficulty of some of the points”, it said.
“It was obviously unhelpful to provide indexes and bundles that did not match up” and although she “may not have been responsible for some of the difficulties”, she was “too often unhelpful”, and insisted on “seeing all suggestions as unwarranted interference”.
Garden Court attempted to paint Daly’s accusation that McGuigan had had a tantrum as “insulting to women” and “patronising”. The tribunal rejected that interpretation, pointing out that it was “the only example of a failure of courtesy of which she was repeatedly guilty”.
The tribunal speculated whether McGuigan’s failure to address the problems with the bundle may have been caused by a lack of resources "or personality”.
It said the latter possibility was evidenced by her complaints that she should not have to put the bundle together followed by "stubborn refusal" to allow Daly to take over.
“She may not have appreciated the difficulty of the unindexed parts or the 1000 page pdf at first, but the problem was explained to her more than once”, it stated.
The Garden Court team's unreasonable conduct had a “serious impact” on Bailey's lawyers which meant that it was just to make a costs order for the maximum £20k amount the tribunal was permitted to award there and then, it said.
However, it chose not to order a summary assessment to investigate whether Bailey deserved more of her costs, on the basis that it would require further costly hearings, and because she had not succeeded in a large part of her claim against Garden Court, or in her claim against Stonewall, which it said was “her particular target in this litigation”.
Bailey has appealed against the tribunal’s decision to reject her claim that Stonewall orchestrated Garden Court’s discrimination against her for her gender critical beliefs. Cost may not be an issue this time around: “I will not need to reopen the crowd fund again thanks to the immense generosity of a dear friend”, said Bailey.
Garden Court Chambers, which is currently advertising a vacancy for an employment law barrister, declined to comment.