The Claimant is a practising barrister and former member of Chambers at 2 Temple Gardens. He was expelled from membership on 29 October 2019. Prior to his expulsion, he had already brought two sets of proceedings in the Employment Tribunal. Those proceedings were considered by an Employment Tribunal chaired by Employment Judge Snelson ("the Snelson Tribunal"). All of the Claimant's claims were dismissed in a decision sent to the parties on 11 February 2020. Appeals in respect of those claims brought to this Tribunal and the Court of Appeal, were both unsuccessful. The claims had originally been listed for hearing in November 2019 but shortly before the scheduled start date, the Claimant issued a further claim ("the Third Claim") centred on his expulsion from Chambers in late October 2019. The Third Claim had been the subject of an order to stay the proceedings pending the outcome of the Claimant's appeals in relation to his first two claims. That appeals process was concluded on 9 August 2023 on which date Bean LJ refused the Claimant's application for permission to appeal against the earlier decision of the EAT dismissing his appeal against the judgment of the Snelson Tribunal.
The Claimant then applied for the stay of the Third Claim to be lifted and this was duly done with effect from 18 July 2024. The Third Claim was then listed for a Preliminary Hearing ("PH") on 13 December 2024. The PH was heard by Employment Judge Hodgson ("the EJ") and it is his conduct of that hearing that is now the subject of the current appeal. Written reasons relating to that hearing were sent to the parties on 3 January 2025.
In so far as are relevant to the matters in issue on this appeal, the EJ ruled as follows:
(1) The Claimant was allowed to amend paragraphs 35 and 36 of his Particulars of Claim in the Third Claim ("the Particulars"). This application by the Claimant was allowed subject to certain provisos which were sent out in paragraphs 3.4.1 and 3.4.2 of the EJ's Order ("the Order"). This part of the EJ's ruling is relevant to the issues raised under Ground 2;
(2) The Claimant's application to amend paragraph 32 of the Particulars was refused. This decision is relevant to Ground 1, as well as to Ground 2;
(3) The Claimant's application for an order that the Respondents should provide further information ("the RFI") was also refused. This decision is also relevant to both Grounds 1 and 2.
The scope of the application to amend paragraph 32 of the Particulars was as follows (with the proposed additional words shown underlined):
From the terms of the proposed amendment, it is apparent that the Claimant was looking to add to the scope of his complaint that his expulsion had been an act of victimisation in response to an allegation of race discrimination that he had made against the Senior Clerk at his former Chambers. The new reference to "the Staff Appraisal Feedback form" was to something that had already been identified in paragraph 27 of the Particulars in which the Claimant had identified the basis on which he had been expelled as being on the grounds that he had allegedly:
So, whilst the Claimant had not in terms identified the Staff Appraisal Feedback form itself as being a protected act and one which had led to his expulsion, he had flagged that the contents of that form had apparently been relied on by the Respondents, as part of their reasons for that expulsion. On the face of it therefore, the effect of the proposed amendment was to add, as an additional protected act which was causative of his expulsion, a factual issue which was already part of the pleaded case.
The second aspect of the proposed amendment to paragraph 32 was to add as a further protected act, the letter of 8 October 2017 which had already been referred to at paragraph 8 as being a protected act which was expressly linked to the decision to expel him from Chambers. In that letter, the Claimant had said that the Board of the First Respondent, 2 Temple Gardens ("the Board") should retract a letter that it had sent 4 days earlier on 4 October 2017 in which it had said that the Claimant should have no further dealings with the Senior Clerk in respect of whom he had submitted a complaint of race discrimination in July 2017.
As far as the RFI is concerned, this was a short one comprising 3 separate points relating to the allegation of bad faith that the Respondents had advanced in paragraphs 29(c)(iii) and 47(c)(ii) of their Grounds of Resistance ("GoRs"). Paragraph 29(c)(iii) recorded the decision of Panel appointed by the Board to the effect that the Claimant's original allegations of discrimination that had been made against the Senior Clerk, had in fact been made in bad faith. In paragraph 47(c)(ii), the same point was made in the context of a response to the Claimant's allegations of victimisation and the protected act relied on in the form of that same original complaint against the Senior Clerk.
Under the first request within the RFI, the Claimant asked for particulars of all facts and matters that would be relied on in support of the contention that he had acted in bad faith. Secondly, he suggested that the same allegation of bad faith had been argued before the Snelson Tribunal but that the Respondents had failed in this part of their case. The Request was that the Respondents now provide particulars of any new material on which they intended to rely and which was not available for use before the Snelson Tribunal. Thirdly, if they were intending to rely on any such material which had not been so available, they were requested to provide information as to why this could not have been adduced earlier. The purpose of the second and third elements of the RFI appears to have been to assist the Claimant in running an argument to the effect that there was, as a result of the decision of the Snelson Tribunal, an estoppel which prevented the Respondents from arguing bad faith on the same basis in relation to his third claim.
The Appeal
The Claimant submitted a Notice of Appeal on 14 February 2025, advancing two grounds in summary as follows:
The Appeal was considered by the President, Lord Fairley, at the sift stage and under the terms of his order, Ground 1 only was allowed to proceed to a full hearing. As to Ground 2, the Claimant exercised his right to a hearing under Rule 3(10) EAT Rules. This was considered by Michael Ford KC, Deputy Judge of the High Court, at a hearing on 18 September 2025. Mr Ford allowed Ground 2 to also proceed to a full hearing, albeit limited to the specific matters set out at under paragraphs (b)-(f) of the Amended Notice of Appeal that had been submitted by the Claimant.
The EJ's decision on the points material to this appeal
Dealing first with the decision regarding the proposed amendment to paragraph 32 of the Particulars, the EJ's conclusions, set out at paragraph 2.40 onwards, were as follows:
As to the RFI, the EJ set out his conclusions at paragraphs 2.47-2.53. The relevant parts of his decision read as follows:
As set out above, the Claimant had also made an application to amend in order to add new paragraphs 34 and 35 of the Particulars. This application was unopposed by the Respondents. The application was to add the following paragraphs:
Not only was this application not challenged by the Respondents, but they did not suggest that it should be further particularised or that they required additional information in order to be able to address it. Notwithstanding their position, the EJ agreed to allow the uncontested amendment subject only to the conditions set out in paragraphs 3.4.1 and 3.4.2 of his decision. In explaining his reasoning in relation to this application, he said as follows:
The EJ then recorded as follows
The Claimant's Submissions
Dealing first with Ground 1, the Claimant challenges the EJ's decision not to allow him to amend paragraph 32 of the Particulars. He points first of all to the factors set out in the Presidential Guidance – General Case Management (as amended in January 2018) and identifies as relevant to his appeal in particular the references to:
When that guidance is applied to the amendment which he proposed to paragraph 32 of the Particulars, he asserts that the proposed amendment was relatively minor and that:
He also suggests that the application to amend was made at an early stage and did not involve any prejudice to the Respondents. The EJ was wrong to refuse the amendment in the following respects:
As far as the RFI was concerned, the first part of the request was in a standard form of the sort that one frequently sees in litigation, in particular in the High Court. The Claimant relies on an extract from the speech of Lord Hope in Three Rivers DC v Bank of England [2001] UKHL 16 at 51 where his Lordship stated as follows:
And at 55:
The Claimant says that his application in this respect was fully justified and appropriate. He also said that the other two parts of his request were closely linked to the request for particular of the alleged bad faith "but were also necessary to clarify the extent to which an issue estoppel plea might potentially be arguable. The requests were therefore "reasonably necessary and proportionate to enable [him] to prepare his own case and would also assist the Tribunal to address such a plea."
The Claimant also relied on the way in which his applications had been addressed by Leading Counsel who had appeared at the hearing on behalf of the Respondents. In his "Respondents' Note for PH", Richard Leiper KC had made the following points:
Turning to Ground 2, there are a number of matters which are relied on by the Claimant in support of his contention that the EJ was guilty of actual or apparent bias as follows:
The Claimant also relied on the contents of a transcript of the hearing on 13 December 2024 from which he said it was clear that the EJ was conducting himself in a manner that demonstrated actual or apparent bias. In particular he noted the following:
The Respondents' Submissions
Although Mr Leiper KC appeared at the PH, he did not represent the Respondents in the hearing before me. Instead, the Respondents were represented by Junior Counsel, Mr Davies. This could be described as sub-optimal in that Mr Davies was obviously not at the hearing the subject of this appeal and could only advance his clients' case on the basis of his instructions and the material before me. In relation to Ground 1, he reminded this Tribunal of the existence of a wide discretion that ET's retain in relation to case management decisions and in particular the observation of Asquith LJ in Bellenden v Satterthwaite [1948] 1 All ER 342 (at page 345) that in order for an appeal on this ground to succeed, it would need to be shown that the discretion had "exceed[ed] the generous ambit within which reasonable disagreement is possible", an observation that was approved in the context of Employment Tribunals by the Court of Appeal in CICB v Beck [2009] IRLR 740 (per Wall LJ at paragraph 23).
Mr Davies' submission was essentially that to refuse the Claimant's application to amend paragraph 32 was indeed within the scope of the EJ's discretion, having regard to the principles applicable to amendment applications and set out in the well-known authority of Selkent Bus Company Limited v Moore [1996] ICR 836 . He suggested that the effect of the amendment was to introduce two new protected acts which were substantially out of time and which, if not allowed, would not prevent the Claimant from pursuing his allegations of victimisation based on the protected acts that had already been pleaded. He also stated that it was "self-evident" that the factual inquiry would be broadened if the amendment was allowed and that the ET was fully entitled to suggest that there 'may' be a need to call further witnesses and that after many years, it may be difficult to find relevant evidence.
Similarly, with regard to the RFI, it was again properly within the EJ's discretion to refuse the application. He relied on the observations of the EAT in Byrne v The Financial Times [1991] 417 , at paragraph 18 as follows:
He further submitted that the ET was entitled to conclude that (a) the Respondents' allegations bad faith were sufficiently pleaded, (b) the Claimant's application was extremely wide and (c) the stated purpose was to run an argument based on issue estoppel which was misconceived given that the Snelson Tribunal had expressly not adjudicated on the question of bad faith.
On Ground 2, actual or apparent bias, Mr Davies submitted that the allegation of actual bias was untenable and the Claimant had not advanced any factual basis on which actual bias might be inferred. He suggested that any errors of law relating to Ground 1, do not of themselves provide an arguable basis for a bias appeal and that with regard to the unopposed application to amend, it was perfectly legitimate for a Tribunal to question whether the proposed amendment was drafted with sufficient clarity. In any event, he said, the EJ had allowed the amendment, albeit subject to the provisos that he imposed. The rejection of the two of the Claimant's applications (the RFI and the amendment to paragraph 32 of the Particulars) represented the permissible exercise of the EJ's case management discretion and again provided no basis for an argument of apparent, still less actual bias. Even if the EJ had wrongly exercised his discretion in relation to case management decisions, this would still fall short of establishing bias.
Relevant Law
Dealing first with the issue of discretion, the law is well-settled in spelling out that an appellate court should only interfere in the event that the EJ took account of an irrelevant matter, failed to take into account a matter that it was necessary to consider in order for the discretion to be exercised properly or alternatively, came to a conclusion which was beyond that which an reasonable judge or tribunal could have decided – see for example Carter v Credit Change Ltd [1979] ICR 908 .
As far as allegations of bias are concerned, again the test to be applied is well-settled. A finding of actual bias is extremely rare, requiring as it does positive evidence that a Judge is in fact biased in favour of one side over the other. The approach to questions of apparent bias can be found in the House of Lords decision in Porter v Magill [2002] 2 AC 357 in which Lord Hope stated that the question to be asked was "whether a fair minded and informed observed who had considered the facts would conclude that there was a real possibility that the tribunal was biased.".
Conclusions – Ground 1
As already stated above, in announced my decision on Ground 1 and gave outline reasons for it at the hearing on 29 October 2025. I start with paragraph 2.44 in which the EJ set out his reasons for rejecting the application to amend paragraph 32. The points on which he came to his conclusion were in my view, in large part unsustainable. I make the preliminary observation that the EJ's reasons were not given on the day of the hearing (13 December 2024) but were set out in a record of the discussion dated 30 December 2024. There is sometimes a risk that when a decision is reserved, that a Judge may in subsequently compiling his/her reasoning, either lose sight of the way in which the earlier hearing has proceeded and/or adopt what one might call a "boiler plate" approach to the justification for a decision which is again at odds with that earlier hearing.
In this particular case, the EJ at paragraph 2.44 suggested that "the scope of the factual inquiry would be broadened. There may be a need for more witnesses. When matters are raised many years after the relevant events, it may be difficult to find relevant evidence." These sorts of points are ones that one will often see set out as reasons for rejecting an application to amend, however, none of them were points which the Respondents themselves had sought to argue. Whilst Mr Leiper in his Note prepared for the PH suggested that the amendment had the effect of introducing 2 new protected acts, his objection was limited to suggesting that this was "surprising" given that they were not in the original claim and were not identified by the Claimant in a more recently prepared List of Issues. He did not add to these arguments in his oral submissions (as is apparent from the transcript of the proceedings).
Not only did Mr Leiper not suggest that the effect of the amendment would give rise to the need for further evidence or broaden the scope of the factual inquiry, but the EJ himself gave the same indication during the course of the hearing – as I have set out above. So, having not had any submission made to him about any expansion of the evidence needed at the full hearing and having himself addressed the parties on the basis that there would not be any such expansion, the EJ then rejected the Claimant's application substantially on the opposite basis. If the Respondents, represented by highly experienced Leading Counsel, did not think it appropriate to advance any argument as to any substantive change to the factual inquiry to be addressed at the full merits hearing, it is surprising to say the least, that the EJ took it upon himself to reject the application on that basis. All the more so when that basis flies in the face of his own observations made at the hearing and which observations were accepted by the parties. The EJ, in his written reasons, suggested that the amendment was "substantial" (see paragraph 2.41) – I do not accept that characterisation of the addition of two protected acts, the content of which was already within the scope of the pleaded case.
The EJ also suggested that there may be a need for further witnesses – no such suggestion was made by Mr Leiper. In so doing, the EJ appears not to have followed his own direction at paragraph 2.30 of his reasons in which he had referred to the decision of Underhill P (as he then was) in Evershed v New Star Asset Management EAT 0204/09 in which the then President had indicated that it was "necessary to consider with some care the areas of factual inquiry raised by the proposed amendment." There was in fact no apparent assessment of the extent to which the amendment would actually lead to significant areas of factual inquiry – the reality is that the addition of two alleged protected acts would have been highly unlikely to have had any real impact on the case which was to be advanced by the Respondents which was that the Claimant had been expelled from Chambers for having made allegations of race discrimination against the Senior Clerk which had been put forward in bad faith. That argument would be substantially the same whether there were two, three of four protected acts on which the Claimant relied.
In addition, in circumstances in which Mr Leiper had not made any suggestion that the Respondents would suffer hardship if the amendment were allowed, it is difficult to see how the EJ reached the conclusion that they would. Mr Leiper expressed only 'surprise' at the timing of the application to amend – having agreed with the EJ that there would be no material impact on the scope of the factual inquiry, he did not suggest that there were any additional witnesses that might need to be called or any difficulty in finding relevant evidence. In fact, both of the matters on which the Claimant sought by way of amendment, to rely on as protected acts, were already referred to in his original pleading so it is likely that the only additional matter which the ET at the substantive hearing was likely to have to address was whether the relevant communications were in fact protected acts within the scope of section 27(2) Equality Act 2010. Further, given that the two new protected acts contained substantially the same allegations of discrimination by the Senior Clerk, any issue of bad faith was likely to also remain substantially the same.
Whilst I accept that the EJ was entitled to take the view that the hardship that the Claimant would face if the application was rejected, was limited, ultimately that application failed as he reached the contrary – and in my view sustainable – position with regard to any hardship faced by the Respondents. In doing so, he took into account irrelevant matters which had not been suggested by the Respondents as being applicable and by failed to carry out the necessary consideration of what would in fact be the impact of allowing the amendment sought by the Claimant. For those reasons, I reach the conclusion that to reject the Claimant's application to amend paragraph 32 of the Particulars was one which fell outside the wide discretion within which the EJ was operating.
I also allow the appeal in so far as it relates to the RFI – and for substantially the same reasons. In his Note for the PH, Mr Leiper had again suggested that the timing of the application was "surprising" and had not been requested at an earlier stage in the proceedings. He said it was based on a misreading of the decision of the Snelson Tribunal (in that it could not be used to support an issue estoppel argument as the Snelson Tribunal had not in fact made a ruling on bad faith) and therefore was not required. He also said that the allegation of bad faith had been articulated in the written closing submissions which had been presented to the Snelson Tribunal. What he did not do was to suggest that the application was oppressive or otherwise inappropriate in the sense that the Claimant was asking for information to which he was not prima facie entitled. In the course of the transcript he can be seen to make essentially the same points for the same reason.
In his conclusions however, the EJ again took points which had not even been argued by the Respondents and concluded that the RFI was "extremely wide" and went "far beyond any legitimate request for clarification of the Respondents' position". It was, said the EJ a "request for pre-disclosure of matters properly dealt with in evidence and submissions." He expressly disavowed reaching any conclusion on the question of issue estoppel, saying that that would be a matter for the substantive hearing of the Claimant's third claim.
Where an allegation of bad faith is made, it is generally recognised that a party who is the subject of such an allegation is entitled to ask for particulars of the facts and matters relied on in support of it. That much is clear from the extract from the speech of Lord Hope in the Three Rivers case to which I have already referred. Whilst it may be less commonly found in ET proceedings, the Claimant's RFI is of a kind that one frequently sees in High Court or county court litigation in which allegations of bad faith or other disreputable conduct, such as fraud, are made. It is perhaps for that reason that Mr Leiper did not seek to suggest that the RFI was oppressive – if anything he went the other way in submitting that the Respondents' case was particularised but was to be found elsewhere, namely in the closing submissions presented to the Snelson Tribunal. So again, as with the application to amend paragraph 32, the EJ has reached a conclusion which was not argued by the Respondents and was even at odds with the arguments that they did make. In addition, in doing so, he reached a conclusion which was in any event unsustainable – I do not think that it can properly be said that the RFI was "extremely wide". The Claimant was plainly entitled to ask for particulars of those matters on which the bad faith argument was based and, given not least the Respondents' own suggestion that they had already set out their case elsewhere (albeit not in the pleadings related to the Claimant's third claim) it would appear that to provide those particulars – potentially by reference to their earlier closing submissions to the Snelson Tribunal – would not have been in any way difficult for them.
Conclusions – Ground 2
I can deal in brief with the Ground 2 of the Claimant's appeal in so far as it is advanced on the basis of actual bias. Whilst it is correct to note that, at the beginning of the hearing in December 2024, the Claimant raised an issue with the EJ presiding over the PH on the basis of his concerns about how the Judge had conducted himself at a previous hearing involving the same parties, the Claimant ultimately elected to continue with the hearing, albeit after the EJ had give an open assurance to him as to his impartiality. The Claimant in the event devoted most of his submissions to the issue of apparent bias and also did not identify any factual basis on which it might be said that the EJ was in fact guilty of actual bias. I therefore reject the Claimant's appeal on Ground 2 in so far as it is advanced on that ground.
However, as far as apparent bias is concerned, the position is less straightforward. In his Grounds of Appeal, the Claimant put forward a number of specific grounds on which he alleged bias on the part of the EJ. As already stated, the first of these was dismissed by Michael Ford KC, at the Claimant's Rule 3(10) hearing. That left 5 matters for consideration before me, as set out in paragraphs (b)-(e) of Ground 2 of the Claimant's Amended Notice of Appeal:
Whilst I proceed on the basis that an appellate court should be extremely careful before reaching a conclusion that a Judge's conduct is of sufficient concern to warrant a conclusion that there has been apparent bias in the conduct of a hearing, I do feel that I am driven to that very conclusion when taking the points set out above on a cumulative basis. Were there only one matter which might cause the informed observer to question themselves as to at least ask the question as to whether there was a real possibility of bias, then the answer would, on the basis of any of the concerns that I have set out above, almost certainly be 'no'. However, when one puts all of them together, I do think that the Claimant has established his case in relation to apparent bias under Ground 2. The combination of significant questioning and criticism of the Claimant in relation to unopposed matters, the determination of contested matters on bases that were not even argued by the Respondents and which are in any event unsustainable, are in my view, sufficient to justify that conclusion.
I will therefore order that the appeal be allowed on Ground 2 as well as the already stated Ground 1. In addition, whilst my provisional order was that EJ Hodgson should not be involved in the Claimant's case pending my conclusion on Ground 2, given that the Claimant has now succeeded on that Ground, then the Order should continue to apply for as long as the claim in pursued in the Employment Tribunal.