Mr D P Herbert OBE v The Secretary Of State For Justice & Others — 2019

This was a preliminary hearing in public to decide the correct respondents, proposed amendments, strike-out applications and whether any allegations had little reasonable prospect of success. The claimant was self-represented. The tribunal also noted that separate deposit orders were dealt with elsewhere and that a claim in Claim 1 about declining to respond to early conciliation, and the claims against Mr S Parsons in Claim 3, were withdrawn.

On the correct-respondent issue, the tribunal held that liability under sections 50 and 52 of the Equality Act 2010 depended on who had the relevant power in relation to the conduct complained of. The Nominated Judge was the correct respondent for referrals made under Rule 97, the JCIO was the correct respondent for referrals of complaints under Rule 25 and could be named in a quasi-corporate capacity, and the Disciplinary Panel itself was the correct respondent for its report and case-management decisions. The Lord Chancellor and Lord Chief Justice were the correct respondents where the complained-of power lay under Regulations 13, 15 or 11, including acceptance of the panel's report and the composition of the panel. The Secretary of State for Justice and named judges such as Mrs Justice Laing and Lady Justice Gloster were struck out where they were not the persons with the relevant power.

In Claim 1, allegations 1 and 5 were struck out because the Secretary of State for Justice was not the correct respondent and the tribunal refused the late amendment applications to add the Nominated Judge and the JCIO. Allegation 7, concerning referral to a disciplinary hearing, was allowed to continue only against the Lord Chancellor; the amendment to add the Lord Chief Justice was refused, but the tribunal did not strike the claim out and instead said it was appropriate for a deposit order to be considered separately. The tribunal described the Claim 1 allegation 7 complaint as weak, but not as having no reasonable prospect of success.

In Claim 2, the tribunal allowed amendments to join the Disciplinary Panel to allegations i, ii and vi, and to correct the office-holder titles for the Lord Chancellor and Lord Chief Justice. Allegations v and vii, about the refusal to hear witnesses, were struck out as obviously hopeless. Allegation i and ii were allowed to proceed against the Disciplinary Panel and, where relevant, the Lord Chancellor and Lord Chief Justice; the tribunal considered that parts of the Disciplinary Panel's reasoning, including paragraphs 80 and 106 of its report, could arguably support an inference of race discrimination. Allegation viii, about the panel's composition, was also allowed to proceed, but the tribunal found it had little reasonable prospect of success and said a separate deposit order was appropriate. Claim 3 allegations (1) and (2) proceeded against the JCIO and the Nominated Judge respectively, while the claims against the Secretary of State for Justice and the named judicial respondents were struck out.