Despite 4 New Square defeating accusations of racist behaviour in the Employment Tribunal, the case has not done the image of the set – or indeed the bar as a whole – any favours
The court battle between 4 New Square (4NS) and London barrister Aisha Bijlani, which ended earlier this month (3 March), was not just a high-profile row between lawyers. The potentially catastrophic (for the set) case has forced the bar to deal with some uncomfortable home truths.
The bar is modernising at a rapid pace, but Bijlani’s race discrimination claims against the set reeked of an era long forgotten by the Inns of Court. The lessons learnt should be of benefit to 4NS, but they should also serve as a warning to the bar.
“In the world of litigation,” observes one senior partner, “nobody ever comes out the other end looking good.”
Bijlani’s case centred on claims that she was the victim of a sustained campaign of harassment and victimisation carried out by three successive heads of chambers – John Powell QC, Justin Fenwick QC and Roger Stewart QC – alongside senior clerk Lizzie Wiseman.
She alleged that the 4NS clerks’ room was gripped by a culture of racism and that management failed to quash that behaviour, which led to her being racially discriminated against.
Bijlani instructed Doughty Street Chambers’ Althea Brown, who is well known for her expertise in discrimination employment claims. The set turned to Littleton Chambers’ John Bowers QC.
As a direct result of their alleged failures, Bijlani, who was called to the bar in 1993, claimed she was not put forward to work on cases and that fees were not collected in her name. According to the claimant, complaints about such behaviour were ignored and management instead launched a coordinated campaign to oust her from the set. This, she claimed, was because of her race and, latterly, because she suffered clinical depression – a disability that prevented her from practising.
The barrister claimed losses of £33m, £7.6m of which was for past loss of earnings and £26m for potential future loss of earnings. If she had been successful many believe it could have been a catalyst for the collapse of the set.
“It’s something everybody has to consider in their constitution,” comments one practice director. “Who’s responsible for the liabilities? Should it be the heads of set? Is that what they signed up for?”
Bijlani’s lawyers contended that she was treated unlawfully by the clerks’ room and in particular Wiseman, for which the successive heads of chambers were legally liable. Furthermore, the defendants were responsible individually for their own conduct and therefore liable for their own actions.
If this argument had been successful, Powell, Fenwick and Stewart, who are understood not to have insurance in place for such a claim, could have been left owing several million pounds each.
“It could happen to any of us,” another senior clerk contends. “It’s unusual that a barrister would want to bring a claim this big, but it isn’t impossible. It’s a reminder that we have to go over the constitution again and make sure we’re not exposed.”
Ultimately, then, who would be liable for what proportion of loss was not discussed in open court.
The Employment Tribunal (ET) rejected Bijlani’s claim on all counts, stating that she had failed to link her complaints to incidents of racial or disability discrimination.
The 191-page judgment handed down by the ET delves deep into the working practices of 4NS, revealing intimate and complex relationships between the clerks’ room and set members.
Bijlani outlined several occurrences that, she claimed, taken together demonstrated a culture of racism in the clerks’ room.
She claimed one such incident took place in 2000. It involved an outburst from clerk Dennis Peck, who had contacted the set’s receptionist, Ms P, at home. The phone rang through to voicemail; he thought he had replaced the receiver before commenting to a colleague in reference to the receptionist: “I hate educated wogs.”
When she heard the message Ms P went to the police and made a formal complaint to 4NS.
Fenwick, the head of chambers at the time, settled the matter by paying Ms P £45,000, a sum she had agreed to, and the criminal complaint was dropped. The three clerks involved in the conversation, meanwhile, were given written warnings and sent on racial awareness training. This decision was taken after Fenwick had considered the views of the three black minority ethnic (BME) members in the set, which included Bijlani.
Bijlani contended that Fenwick deliberately failed to inform her in detail of the incident. The ET dismissed this, saying that, had the claimant wanted to know details, she need only have asked Fenwick.
The barrister went onto describe another incident, when in 2004 senior clerk Dominic Sabini was alleged to have used racist language about 4NS barrister Jalil Asif, calling him a “greedy c***”. This, her counsel suggested, showed that the culture of racism had self-proliferated since 2000 and that this was the consequence of management failures.
Wiseman was made aware of the incident when Asif complained. The ET refuted the suggestion that this episode was symptomatic of a wider culture based on discriminatory values in the clerks’ room.
Rather than being motivated by negative racial attitudes when dealing with such incidents, the ET said Wiseman was motivated by the desire to keep the reputation of an “outstanding clerking team” intact and avoid any fallout that might occur as a result of dismissals.
According to one bar source, such issues are of paramount concern to most senior clerks.
“It’s about how best to manage relationships between clerks and members,” the source says. “That’s the heart of our business. How would we deal with a clerk who’s been complained about by a barrister? We’d consider all the options and how that might impact the set and then make a decision.”
The ET said 4NS took appropriate action to address each incident: warnings were given, statements made and training provided.
However, it acknowledged that the set’s awareness of diversity issues and standards of handling such issues were not “in accordance with the highest standards of modern thinking and practice; but nor were chambers indifferent to, or purely neglectful of, such matters.”
Against this backdrop of in-house politics, Bijlani complained repeatedly to her successive clerks of not being given enough work. Meetings were called and discussions about practice development were held, but Bijlani maintained that the instructions were not arriving in her in-box.
Meet ’n’ bleat
Relations between the barrister and the set’s management plummeted to a new low following a meeting between Wiseman, Stewart (then head of chambers) and Bijlani in February 2006.
This crisis meeting had been called to discuss Bijlani’s future with 4NS. The claimant argued that she was not properly informed about the meeting’s purpose and had attended with the intention of complaining about her lack of work. She said Stewart and Wiseman, though, wanted to talk about whether she might be better suited to another set.
This meeting was a critical point in the case. Bijlani suggested that it had triggered the onset of her depression. The ET said that both Stewart and Wiseman had wanted to discuss serious concerns about Bijlani’s practice, but they concluded that, “as the claimant’s own attitudes had not changed there was nothing more of substance that could be done to help her”. This was not motivated on grounds of race, said the ET, and was not unlawful.
Underperforming members are an unspoken truth of the bar. The number of students taking up pupillage is in decline and competition for places is intense.
“Not everybody has a flourishing career, so how do you manage underperforming members?” says one source. “We find the best thing is to be fair and give regular feedback.”
Confidentiality is another key factor. Barristers themselves vote in new members. To gain a seat at 4NS Bijlani needed the support of two-thirds of chambers, which she eventually won, although not on the first vote.
According to the source, attempting to effectively dismiss a member is “not favourable” and “potentially very embarrassing” for those who voted in favour.
“It’s always best to be discreet when handling these matters,” the source adds.
Such sensitive matters are not helped when a member feels particularly aggrieved towards a certain clerk, as the ET noted Bijlani did of Wiseman in this case.
Of one mind?
The personal relationships between the defendants became a point of discussion of the hearing. It emerged that Wiseman had been in a relationship with Fenwick between late 1999 and August 2000 and later, in July 2008, she began a relationship with Stewart, which continues today.
The claimant suggested that the actions of Fenwick and Stewart may have been influenced unduly by Wiseman because of their personal relations.
“Plainly it would be an understatement to say that the claimant felt she had been shabbily treated by the respondents,” stated the ET.
“But it was also clear that she felt particularly strongly about what she regarded as the role in her treatment, and the conduct towards her, of Ms Wiseman.”
Bijlani’s lawyers suggested that personal considerations had clouded the judgement of Stewart and Fenwick and that Wiseman had acted in a “cynical fashion” to elevate herself to the most powerful position within chambers.
The ET flatly rejected such a suggestion.
The heads of chambers, it said, respected Wiseman’s management of the clerking team and were protective of it, and it was “for these reasons alone” that both Fenwick and Stewart were sensitive to Wiseman’s concerns. “We found no basis to conclude that such relationships had any material influence on the conduct of these three respondents,” it added.
Yet for the bar the issue of personal relationships remains taboo in some circles. Wiseman, Fenwick and Stewart might have been subjected to pointed fingers and stifled giggles, but this particular point touches on a serious subject.
“Is it really fair for a clerk to be in a relationship with a barrister?” one practice director questions. “What about conflicts? We’d have some concerns about the clerk being influenced by the barrister, but whether we’d be able to stop such a relationship is another matter.”
“The bar’s an intense environment,” another source says. “People work together for long hours, they socialise together. It’s inevitable this will happen.”
It was the set’s case that Bijlani had refused to do anything to help herself.
The barrister claimed not to have been put forward for marketing events to gain exposure to key clients. The ET was shown evidence of 4NS’s marketing professional inviting members to attend such events. Bijlani and her comparators were all invited and the ET found that Bijlani had not been specifically excluded.
She claimed to have been prevented from working with the set’s key professional negligence clients. But 4NS showed that Bijlani, who specialised in medical negligence, had carried out work for the Solicitors Indemnity Fund, a core client, and also showed that prior to 2006 a third of her instructions came from Julian Bobak, head of clinical negligence at personal injury firm George Ide Phillips. The set said that relationship came to an end in early 2006 when there was a dispute between the barrister and the firm over fees.
Bijlani claimed there was a failure by clerks to bill, collect or recover fees promptly, but the ET found 4NS able to explain each incident she referred to in her case.
The Legal Services Commission (another key client) acknowledged that the set was slow to pay and Bijlani had displayed an ”undiplomatic approach” when it came to fee disputes, which may have been a factor. Furthermore, until February 2006 the set outsourced its fee collection to an outside fees collection agency, CFM. The clerks did not bear direct responsibility for fee collection and the ET ruled that there was no “indifference or wilful neglect” of the claimant’s outstanding fees.
Bijlani also argued that she was denied the opportunity to be led by a QC. In response 4NS illustrated how the claimant had in fact worked alongside silks.
She alleged that the set had forced her to relocate offices against her wishes. But the tribunal found that management periodically reshuffled room allocation to make space for younger members and that this was undertaken in cooperation with the claimant, as it was with other members of the set.
How 4NS responded, said the ET, was not motivated by alleged prejudiced views harboured by the respondents.
Seen to be believed
Many in the market have been surprised that 4NS decided to go to open court and lay bare its inner workings. Several have suggested that the case should have been settled at a much earlier stage.
The tribunal found that 4NS had wanted to preserve its reputation and was concerned about any adverse publicity connected to the sacking of clerks. Yet it had enough documented evidence in response to Bijlani’s case to fight through the courts.
In the end, while this was a resounding win for 4NS, with the ET dismissing all 16 claims against Wiseman, Stewart, Fenwick and Powell, arguably it was a Pyhrric victory. The set found itself centre stage in a glaring media spotlight when the story broke, which was widely covered in the trade and national press. And when it ended it was left out in the cold with barely a mention, in the mainstream media at least.
Now the market says 4NS has been, at least temporarily, left in a weakened position. Sharks are said to be circling in a bid to tempt members away.
The challenge now for the set is to deal with the aftermath. That means keeping its members happy and assuring nervous clients that it is business as usual.
It must also take steps to restore its reputation. Others at the bar have serious concerns that the case created a public impression of an antiquated profession out of touch with modern working practices.
4NS would do well to prove that this view is wrong.