DEFENDANT’S CONDUCT OF LITIGATION LED TO AN ADDITIONAL AWARD OF £2,500 AGGRAVATED DAMAGES ~ June 25, 2017 · by gexall · in Conduct, Damages
The judgment in Blamires -v- Local Government Ombudsman is attached to this post. It will be of interest to many involved in Equality Act litigation and the judgment makes interesting reading as whole. However I want to concentrate upon one key part. Blamires v LGO 3SP00071 trail final word version (002). The judge awarded £2,500 aggravated damages against the Ombudsman because of the manner in which it defended the case.
The claimant brought an action against the Ombudsman claiming remedies under the Equality Act, Data Protection Act and Human Rights Act. The claimant’s case was that the Ombudsman had failed to act properly in relation to her complaint against a local authority.
District Judge Geddes, sitting with an assessor, found that the claimant had established her case. Among other things the defendant had failed to make reasonable adjustments. The judge was highly critical of the way in which the defendant had conducted the action. The claimant was acting in person and had made several applications for further disclosure.
AGGRAVATED DAMAGES FOR THE WAY IN WHICH THE DEFENDANT CONDUCTED THE LITIGATION
The judge considered the question of aggravated damages.
157.The Claimant claims aggravated or exemplary damages. I do not consider that this is a case for exemplary damages, but there are a number of relevant features which in my judgment justify an award of aggravated damages. Those features are primarily associated with the manner in which the claim for discrimination has been defended. The authority of Zaiwalla & Co v Walia  IRLR 697 confirms that this is an appropriate approach, avoiding as it does a need to consider victimisation as a separate claim for conduct during proceedings which by definition always follow the protected acts of an allegation of a breach of the EQA and the issue of proceedings.
158.I have absolutely no doubt that the way in which the defence has been conducted in this case has added to the injury, frustration and distress felt by the Claimant and that this in turn has at times exacerbated the physical and mental symptoms she suffers as a result of her disability.
159. The acts to which I refer and which together I have concluded merit awarding aggravated damages are as follows:
The wrongful assertion contained in paragraph 30 of the original defence that the Claimant failed to take up the opportunity of telling the Defendant about the reasonable adjustments she sought on her web complaint This went to the heart of the claim.
The fact that notwithstanding being told by the Claimant that this was wrong, it took nearly two years for the Defendant to admit the mistake.
That even after two years there was no apology for the fact the defence contained misinformation or acknowledgment of the stress this had caused to the Claimant in having to prove them wrong.
That even after two years the evidence of David Pollard asserted that the omission of the information contained in section 4 of the form was a “technical error” and that this was later itself corrected to “human error” in the statement of Jonathon Buckley. The oral evidence I have heard on the issue is also unsatisfactory as I have found the explanation of why it occurred does not make sense.
That whilst this misleading information was on the face of the pleadings the Defendant applied to strike out the claim and/or for summary judgment.
That the Defendant caused many months delay to the resolution of the proceedings by pursuing its application for a strike out and/or for summary judgment which it then abandoned.
The Defendant has produced no fewer than three disclosure lists all purporting to be the complete list. The Claimant should not have had to make applications for specific disclosure but she has done so and was successful in part. Where she has been unsuccessful this has not been as a result of the unreasonableness of her request.
The continued dissatisfaction of the Claimant with the process of disclosure is, on the contrary, reasonably grounded in particular in three respects. The first is that the fact that the form produced at page 708 which the Defendant contends is the form put before the investigator simply cannot be that form given that it is blank in numerous fields, not just section 4. Secondly, David Pollard makes a number of assertions in his 26 August 2016 statement which are either based on documents which have not been disclosed or are misleading despite his signature on a statement of truth. I include in that assertions contained in paragraphs 17-19 of his statement as well as the error in paragraph 16. He conceded under oath that I could not rely on his evidence in these paragraphs. Thirdly, the Notes and Analysis document, which is asserted to be the key document containing a record of the work done in the complaint is highly unsatisfactory in that it is purportedly a record of work done on J’s “complaint” and under her name rather than that of the Claimant and contains, for example, no record of any work done by R at all.
For all its assertions about its limited resources – so limited that I am told that they would not even stretch to offering the Claimant a face-to-face meeting at the outset of this process – the Defendant tells me it has spent in excess of £80,000 defending this case. The claimant is a litigant in person. She has faced many months of responding to an application to strike out her claim which were entirely unnecessary in the light both of my conclusions and the withdrawal of that application at the last minute. Her case has been opposed in every way with no acknowledgement of those matters which in my judgment could easily have been conceded.
160. With all these matters in mind I intend to award the sum of £2,500 by way of aggravated damages.
161.I will order the Defendant to pay the Claimant’s costs to be assessed if not agreed.”