The equal pay group litigation against supermarket giant ASDA has seen two solicitors firms - both representing claimants - go head to head over access to information, it has emerged.

Two separate groups of claimants are suing ASDA over similar issues over equal pay: about 7,000 claimants who claimed up to 3 June 2016, referred to as the 'Brierley Multiple', and claimants whose claims were presented after that date, referred to as the 'Calder Multiple'. 

ASDA sign

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All the Brierley claimants are represented by Leigh Day, while Keller Postman (now KP Law) and Leigh Day act for claimants within the Calder Multiple.

Claimants in the Calder Multiple have had their claims in effect stayed pending the resolution of the Brierley Multiple claims.

Keller Postman has written both to Gibson Dunn, representing ASDA, and to Leigh Day seeking information about the status of the Brierley Multiple and their consent to Keller Postman being provided with all documents exchanged between them concerning the litigation. The claimant firm argued its clients needed to be placed on an equal footing with Leigh Day’s clients, who, by virtue of the fact Leigh Day also act for the Brierley claimants, are potentially privy to more information about the Brierley litigation than those represented by Keller Postman.

An Employment Appeal Tribunal heard the two solicitors firms were ‘unable to agree’ and Keller Postman applied to Employment Judge Horne, who was case managing the litigation, in April 2023 for an order that they should be provided with all correspondence and documents passing between the parties in the Brierley Multiple.

The judge refused that order, having taken into account that some of the inequality being claimed by the Keller Postman claimants was caused by their own choice of representative, the court heard.

He added that the risks to Keller Postman could be sufficiently safeguarded against if they were able to observe private preliminary hearings in the Brierley litigation and read the bundles for those hearings.

Keller Postman appealed the decision, with Rachel Crasnow KC arguing the clients cannot be said to have made a real choice because they were unlikely to have understood the nature of Keller Postman’s involvement in the proceedings.

But His Honour Judge Shanks dismissed the appeal, stating: ‘it is inherent in this kind of litigation that absolute equality between all claimants is not possible’.

‘All kinds of differences inevitably flow from a litigant’s choice of representative in multi-party litigation’, the judge added. ‘It cannot be right that the EJ was required to investigate the nature of the choice made by individual claimants or groups of claimants and what information they had when they chose particular representatives or what motivated them to choose those representatives.’


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