BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
CIRCUIT COMMERCIAL COURT (KBD)
Bull Street, Birmingham |
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B e f o r e :
(Sitting as a Judge of the High Court)
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PAUL BIRCH |
Claimant |
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- and - |
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(1) PAULA BROOKFIELD (as personal representative of the estate of Ian Brookfield deceased) (2) VALERIE EVANS (3) GILLIAN WILDMAN (4) MILKINDER JASPAL (sued on behalf of themselves and all other members of The Wolverhampton Labour Group) |
Defendants |
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Mr Robert Mundy KC (instructed by George Green LLP) for the Defendants
Hearing dates: 20th 21st and 26th March 2025
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Crown Copyright ©
HHJ TINDAL:
Introduction
a. What was the contractual procedure for complaints Cllr Evans had to follow and was Labour Party 'disciplinary guidance' she relied on part of that ?
b. Did Cllr Evans or other Defendants breach express contractual procedures ?
c. Did Cllr Evans or other Defendants breach implied contractual terms by denying the Claimant a fair process or hearing ?
d. Did Cllr Evans or the other Defendants act in bad faith or unreasonably in deciding the Claimant had breached WLG rules and imposing sanctions ?
e. If the claim succeeds, what remedy should be granted to the Claimant ?
Findings of Fact
"Labour councillor Paul Birch said: "Behaving in this manner is a complete disgrace to the Labour group and its values….I was told by an opposition member that Councillor Hibbert had crossed the floor on three occasions to try and join the Conservatives. Clearly, they didn't want her – and now the Labour group don't either."
"This written warning has been issued as a result of you speaking to the Express & Star about the Special Labour Group meeting, concerning the removal of the Whip from Cllr Celia Hibbert. This warning will be kept on file for 3 months from the date of this letter. I am also asking you to provide assurances that you will check with Leader's Office first, if approached by the media for any comments for the next 3 months."
"Getting ready to return home to UK, but I must confess, I'm having a slight panic attack. Firstly, I really don't know how to sit home and do nothing. I love fieldwork. Secondly, I honestly don't want to hear about Coronavirus every second, it might depress me. So, if you have any tips for staying active and positive [please] either inbox me or drop [message] here."
Perhaps this was not the most judicious or sensitive comment at the height of Lockdown, but the Claimant did not comment about it publicly at that time.
"Amazing that she can't afford to pay the landlord her rent yet this morning, she's taken off to Nigeria ! One Nigerian on social media…said 'welcome home' and that goes directly to the fact she doesn't really live here.
She took off to Nigeria in 2020 during lockdown, which her resident[s] were burying their dead. She was posting pictures dancing and wrote 'I'm sick of people talking to me about COVID, I don't want to hear anymore'. She was away almost a year in Nigeria and all the time paid by taxpayers over £12,000."
The following day, perhaps conscious that the first paragraph was simply wrong - even on his own view, he suspected Cllr Hibbert lived in the wrong ward in Wolverhampton, not in Nigeria - the Claimant edited this:
"Amazing that she can't afford to pay the landlord her rent yet this morning, she's taken off on holiday [my italics to illustrate the edit]
She took off to Nigeria in 2020 during lockdown, which her resident[s] were burying their dead. She was posting pictures dancing and wrote 'I'm sick of people talking to me about COVID, I don't want to hear anymore'. She was away almost a year in Nigeria and all the time paid by taxpayers over £12,000."
In evidence, the Claimant for the first time tried to suggest that he had taken the quote 'I'm sick of people talking to me about COVID, I don't want to hear anymore' directly from a different Facebook post by Cllr Hibbert. However, that is implausible and he did not say it in the October 2022 meeting, nor in his statements. I find the Claimant essentially paraphrased what Cllr Hibbert had said in her January 2021 post but put it as a quote. Even aside from that inaccuracy, this was another public criticism by the Claimant of Cllr Hibbert. It is true it was not in a newspaper this time round, rather on social media where only 12 people saw it, but more could have done so, knowing that both he and Cllr Hibbert were Labour councillors.
"In normal circumstances:
• It is a requirement that the individual be given an indication of the nature (but not the details) of the complaint or incident about which the whip wishes to see the individual.
• The whip should ask another member… to be present to take a note of the interview. A verbatim note is obviously the most useful but is not a requirement. It is, however, essential to make an accurate note of the key questions and answers.
• The individual should be advised…he is entitled to have a friend present.."
"Cllr Birch refused upon the Whip's request, to take the social media post down because he stood by his values…
In response to the Deputy Whips comment that it was inappropriate to post negative posts on social media, Cllr Birch stated that 'the public glare' was in his opinion the only way sometimes to hold people to account (i.e. in Cllr Hibbert's case, posting on social media that whilst she cannot afford to pay rent [she] was using her £12,000 councillor allowance[s]… and also the money she is alleged to have pocketed from the property investment which never happened to holiday in Nigeria, especially during COVID lockdown
- Cllr Birch stated that the Labour Party did not want councillors who are bringing the party into disrepute and they need to be got rid of. He referred to the occasion when Cllr Hibbert abstained on a vote in full council which was embarrassing for the Labour Group."
Having then referred again in detail to Ms F's allegations, he continued:
"Upon the Deputy Whip requesting that Cllr Birch should take down the post about Cllr Hibbert, he stated that he would only do so if the Whips looked again at [Ms F's] case.
- Cllr Birch was concerned that if Cllr Hibbert was successful in becoming an MP, the [Ms F] case would come to light and bring the Labour Party into further disrepute. He feels that Ms F…needs to be compensated."
"Thanks for this. I haven't been through the minutes forensically, but there is something that stands out; "Upon the Deputy Whip requesting that Cllr Birch should take down the post about Cllr Hibbert, he stated that he would only do so if the Whips looked again at the [Ms F] case". I have a correction and I would like to challenge this and ask for your confirmation. This is the penultimate paragraph where the Deputy Whip asks 'if I would give further consideration to taking down my comments'; My actual words were: "ok, tell you what, I will take it down, I will take it down, I will take it down now. All I ask in return, is that you give consideration to investigating the [Ms F] case" The Whip responded; "We will have to take that away Paul and come back to you" The meeting then came to a close, on the basis the Whip would be back in touch. Final thing, my assistant sent through all the [Ms F] case notes to the Whip, Deputy Whip and yourself from my council computer during the meeting. I said in relation to this; "You probably wonder why I hadn't brough this to your attention, it's because I had brought this to the attention of the Leader directly, at the time and then followed that through with the Deputy Leader at that time, and then following the appointment of a new Deputy leader we had a lunch meeting discussing the case and I provided him with all the documents" (original bold)
"Dear Paul,
RE: Investigation into allegations of improper conduct towards a fellow councillor
I can confirm that we have now concluded our investigation into allegations of improper conduct on your part towards fellow councillor, Councillor Celia Hibbert and reached a decision between myself and the Deputy Whip.
Our conclusion is that you have breached the following rules / code of conduct as outlined in the Code of Conduct for Councillors of City of Wolverhampton Council (enclosed):
1. Respect
As a councillor:
1.1 I treat other councillors and members of the public with respect. Respect means politeness and courtesy in behaviour, speech, and in the written word. Debate and having different views are all part of a healthy democracy. As a councillor, you can express, challenge, criticise and disagree with views, ideas, opinions and policies in a robust but civil manner. You should not, however, subject individuals, groups of people or organisations to personal attack.
2. Bullying, harassment and discrimination
As a councillor: 2.1 I do not bully any person. 2.2 I do not harass any person.
5. Disrepute
As a councillor 5.1 I do not bring my role or local authority into disrepute. As a Councillor, you are trusted to make decisions on behalf of your community and your actions and behaviour are subject to greater scrutiny than that of ordinary members of the public. You should be aware that your actions might have an adverse impact on you, other councillors and/or your local authority and may lower the public's confidence in your or your local authority's ability to discharge your/it's functions. For example, behaviour that is considered dishonest and/or deceitful can bring your local authority into disrepute. You are able to hold the local authority and fellow councillors to account and are able to constructively challenge and express concern about decisions and processes undertaken by the council whilst continuing to adhere to other aspects of this Code of Conduct.
6. Use of position
As a councillor: 6.1 I do not use, or attempt to use, my position improperly to the advantage or disadvantage of myself or anyone else. Your position as a member of the local authority provides you with certain opportunities, responsibilities, and privileges, and you make choices all the time that will impact others. However, you should not take advantage of these opportunities to further your own or others' private interests or to disadvantage anyone unfairly.
Specifically, our conclusion is that you have deliberately posted what may be perceived as defamatory, untrue / factually inaccurate comments about Councillor Hibbert on the Blakenhall Online platform and refused to take down this post when requested by both Whips.
You also admitted to contacting a local reporter about Councillor Hibbert appearing in court in relation to a private matter, despite having previously received a written warning for speaking to the Express & Star about a private Special Labour Group meeting, concerning the removal of the Whip from Cllr Celia Hibbert. You will recall that, at the time, we sought reassurance from you that you will check with Leader's Office first, if approached by the media for any comments.
Your actions resulted in a formal complaint received from Councillor Hibbert and has caused her considerable anxiety and distress and attracted unwanted comments from members of the public. Your continued refusal to take down the aforementioned post has not been helpful and shows a lack of co-operation with myself and the Deputy Whip, as we try to deal with this matter.
As a result, I am writing to confirm that I am issuing you a written warning in respect of your actions. This warning will remain on file for a total of 12 months and then be removed.
In addition to this, we have decided that you will be removed from the following committee(s) with immediate effect: • Governance & Ethics
• Economy and Growth Scrutiny Panel
The Group Secretary will be in touch with you in due course to identify alternative committees for you to attend.
Thank you for your co-operation in this matter.
Yours sincerely etc.." (Original bold)
a. Firstly, as Mr Mundy said, the Claimant approaching Cllr Brookfield despite being told to move away could have been seen as 'bullying'. It is more likely than not that was what he was referring to rather than Cllr Hibbert's allegations that Cllr Evans specifically thought were not bullying.
b. Secondly, whilst I accept by 16th October that Cllr Brookfield was aware of Cllr Evans' decision, she says that he 'did not disagree', not that he positively endorsed it, as one might expect her to say if he had done so.
c. Thirdly, indeed, as the Claimant points out, Cllr Evans' letter purported to impose not just recommend a warning and decision to remove him from committees. Yet Cllr Evans does not suggest Cllr Brookfield saw that letter and said she discussed her 'recommendations' with him. Indeed, her statement says he had 'perhaps' suggested a 12-month warning should be voted on by the WLG. Whilst she does not mention that Cllr Brookfield said this about removal from committee, she accepts that would have to be voted on by WLG (as I explain later). Yet that is not what she said in her letter. I infer on the balance of probabilities that Cllr Brookfield advised Cllr Evans that both proposals should be voted on by WLG, but Cllr Evans, whose forte is not procedure, badly expressed her 'recommendations' as 'conclusions'.
For those reasons, far from 'prejudging' Cllr Hibbert's allegations that the Claimant was a bully, I find that Cllr Brookfield advised Cllr Evans that she could not remove the Claimant from committees which WLG would have to vote on that and suggested that it should also do so in relation to the warning.
"Further to my letter dated 13th October 2022, I can confirm that the recommendations that I outlined in the letter will be an item agenda at our next Labour Group meeting on Monday 31st October 2022 (at 7pm, in person at the Civic Centre), to which you are invited. The procedure to be followed for this disciplinary matter is outlined in the agenda (please see enclosed) and as you will note, you will have the opportunity (if you so wish) to make a case to the Labour Group in response to the recommendations. The matter will be dealt with at the meeting, regardless of whether you are in attendance or not."
The agenda enclosed with that letter included this agenda item about the Claimant:
"Whip(s) Report: Investigation of Complaint(s) against a Councillor:
a) The Chief Whip(s) to report to the meeting the outcome of their investigation against a Councillor after a complaint was made. The Chief Whip to recommend to the Labour Group i) Issuing a written warning. This will be on file for 12 months and then it will be removed. ii) The Councillor to be removed from the following committee(s) with immediate effect, subject to any procedures required by the Council / Labour Group.: Governance & Ethics, Economy and Growth….
b) The Councillor(s) concerned have the opportunity (if they so wish) to make a case to the Labour Group meeting in response to any charges.
c) Members to have the opportunity (if they so wish) to ask questions
d) A straight vote should be taken on the whip's proposal and any amendments moved and seconded (regardless of whether the Councillor is in attendance or not.
e) Any decision takes immediate effect, subject to any procedures required by the council. There is no appeal against such decisions which are in the province of the Labour Group."
This agenda was also sent to all members of WLG by Cllr Jaspal, its Secretary.
What were the terms of the contract relating to the disciplinary process ?
"The nature of the relationship between an unincorporated association and its individual members is governed by the law of contract:
(a) The contract is found in the rules to which each member adheres when he or she joins the association: see Choudhry v Tresiman [2003] EWHC 1203 (Comm) at [38] per Stanley Burnton J.
(b) A person who joins an unincorporated association thus does so on the basis that he or she will be bound by its constitution and rules, if accessible, whether or not he or she has seen them and irrespective of whether he or she is actually aware of particular provisions: John v Rees [1970] 1 Ch 345 at 388D – E; Raggett v Musgrave (1827) 2 C & P 556 at 557.
(c) The constitution and rules of an unincorporated association can only be altered in accordance with the constitution and rules themselves: Dawkins v Antrobus (1881) 17 Ch D 615 at 621, Harington v Sendall [1903] 1 Ch 921 at 926 and….Sinclair v Finlay [1958] 3 All ER 353 at 355B – C."
"The first rule relating to the incorporation of one document's terms into another is to construe the incorporating clause to decide on the width of the incorporation …[The] second rule…is to read the incorporated wording into the host document [as a whole] to see if, in that setting, some parts of the wording nevertheless have to be rejected as inconsistent or insensible when read in their new context."
"2 Compliance with Rules
1. These standing orders are the minimum expected of Labour group members. All members must accept the rules and standing orders of this group and the general provisions of the constitution and rules of the Labour Party shall apply to this group.
2. Members shall comply fully with the statutory ethical framework, sign and abide by any codes of conduct as may be agreed by the authority and sign and abide by the councillor contract.
3. Where allegations are made of a breach of these standing orders or Labour Party rules by a Labour councillor, action shall be taken in accordance with clause 13. Xlll 'Breach of Rule', of the rules of the Labour Party, NEC disciplinary guidance, and other guidance provided from time to time by the NEC. The Chief Whip shall be responsible for the implementation of such guidance locally."
The first legal issues are whether these clauses incorporate by reference (i) the WCC Code of Conduct; and (ii) the 'Labour Group Disciplinary Procedures' document.
"1. Acceptance of these rules (as approved by the NEC [National Executive Committee of the Labour Party] is a condition of membership of the Labour group on the council.
2. Where allegations of a breach of rule by a Labour councillor are made, action shall be taken in accordance with guidance provided from time to time by the NEC. The chief whip shall be responsible for the implementation of such guidance locally.
3. If, following any initial investigation, the group whip finds a serious breach of rule, it shall be competent for the group whip to be withdrawn for a specified period up to a maximum of six months or for an indefinite period, from any member who is in breach of these rules, such action to be initiated by the group whip who shall:
A. report to the officers of the group and the appropriate Party Local Government Committee who shall ensure that there is no Party discussion on the proposed action outside the procedure provided for in this rule until this procedure has been completed.
B. convene a joint meeting of the Labour group and the executive of the appropriate Party Local Government Committee at which upon due notice the matter shall be determined with the chair from the Labour Group and evidence taken in writing, from the defendant, and from witnesses as necessary)….
5. Withdrawal of whip
A. A decision to withdraw the whip shall take immediate effect but is subject to appeal within 14 days to the appeal panel of the Regional Executive Committee who shall hear the appeal within 14 days where practicable of receipt and whose decision shall be final….
6. Any member of the group who has had the group whip withdrawn shall at the time of such withdrawal be informed of their right to appeal."
Whilst the Tradigrain test was not raised by the parties, it is beyond doubt that the wording of clause 2(3) WLG Rules is wide enough to incorporate Chapter 16 clause XIII of the Labour Party Rules, which is not inconsistent or insensible when read in that new context (and as a contractual document need not be separately 'apt for incorporation', but plainly is). Therefore, clause XIII is 'incorporated by reference'.
"Investigation procedure
….[W]hen the whip receives information or an allegation suggesting a breach of the rules, it is in no-one's interest for investigations and, where appropriate, disciplinary action to be delayed. The chief whip should always act promptly to investigate the matter; always having first given careful thought as to the sensitive and appropriate way to proceed.
If the allegation relates to conduct of a criminal nature (eg fraud, assault) the whip should always seek external advice through the party's constitutional officer before acting.
In normal circumstances:
• The whip should seek to establish, as accurately as possible, the nature and extent of the allegations of breaches of the rules and to identify and secure any evidence supporting the allegations
• The whip should request the individual to meet her/him at a mutually convenient time within the next (say) seven days….
• The request to arrange a mutually convenient time should preferably be done by personal contact (meeting, phone), followed by a confirmatory letter….
• It is a requirement that the individual be given an indication of the nature (but not the details) of the complaint or incident about which the whip wishes to see the individual
• The whip should ask another member (e.g. an assistant whip or another group officer but not someone who has an involvement in the complaint) to be present to take a note of the interview. A verbatim note is obviously the most useful, but is not a requirement. It is, however, essential to make an accurate note of the key questions and answers
• The individual should be advised that s/he is entitled to have a friend present. It is not advisable for that friend to have been a 'witness' to the relevant events, or someone who is subject to disciplinary proceedings arising from the same issues.
• In advance of the meeting, the whip should identify the questions that need to be answered and the information that needs to be established, and determine whether s/he needs to see any other individual or secure any written documentation
• The task of the meeting is to establish: 1) the facts 2) whether there has been a breach of the party's rules; 3)…any mitigating circumstances.
• The notes of the meeting should be written up and, if necessary, the individual asked to sign them as an accurate summary of the interview.
• After the interview, the whip should analyse the information and write a brief report which again sets out the facts, identifies the breach(es) to the party's rules and notes any mitigating circumstances, and then, where appropriate, come to a view about the nature of the disciplinary action to be followed (see below).
• In certain circumstances, it may be appropriate to make another group officer (eg the group leader) aware of the findings, and seek her/his views on the course of disciplinary action to be taken. But the responsibility for determining the nature of the disciplinary action rests with the whip.
• In coming to her judgement about the appropriate action to be taken, the whip should take into account the previous disciplinary record of the individual.
• It would normally be appropriate to arrange to see the individual again to advise her/him of the disciplinary action proposed; the timing of this may be dependent upon the nature of the action to be taken.
Disciplinary procedure
If some form of disciplinary action is considered to be appropriate or necessary then the following procedures should be adopted.
1. Warning
If a warning as to the behaviour and future conduct of the councillor concerned is appropriate, this may be issued by the chief whip. The warning could be a verbal warning ("You've broken the rules; don't do it again"), or it could be a written warning. Either could be linked to a requirement to provide written assurances to abide by the rules in future, for example, or to apologise to the group for the breach of rule, or if appropriate, apologise to the council or another body.
The decision as to whether such warnings are reported to the Labour group or not is a matter for discretion. If not automatically reported, the whip should respond accurately to questions from group members about the action taken following a particular event or complaint.
A record of the warning should be kept and may be used as evidence in future disciplinary proceedings should the improper behaviour recur, or taken into account in assessing the appropriate action to be taken in future disciplinary proceedings in relation to other matters…
2. Removal from positions within the province of the group
Where it is felt that some action should be taken by the group which would remove a councillor from positions s/he holds which are in the determination of the group or the council via the group by virtue of the 1989 Local Government and Housing Act (eg membership of committees, chairs and vice-chairs of committees)…this must be dealt with by the full group.
The group whip should report to a full meeting of the group and make the proposed action a notified agenda item. The normal standing orders of the group would apply to such a meeting except that no vote should be taken until the councillor/s concerned have had the opportunity to make a case to the meeting in response to any charges. A straight vote should be taken on the whip's proposal and any amendments moved. All members of the group are entitled to vote and any decision takes immediate effect, subject to any procedures required by the council.
There is no appeal against such decisions which are in the province of the group (they are, in effect, questions of no confidence in the office holder). No decision, however, may be taken which would prevent a councillor seeking re-election to such posts when they come up for election …"
If these procedures were incorporated by reference into the WLG Rules, that is a double-edged sword. The Defendants rely on the specific authorisation of the sanctions of warnings and removal from committees. On the other hand, the latter can only be done by the group, not the whip alone. Moreover, if contractual, the Claimant could rely on the 'requirements' (at least 'in normal circumstances') on the whip to give an individual 'an indication of the nature (but not the details) of the complaint'; and that they are 'entitled to have a friend present at the meeting'. Cllr Evans accepted that neither was done in the present case. I discuss those issues below on breach of express terms, but I must first decide if they qualify as such.
a. Firstly, as he pointed out, the first page of the Disciplinary Procedures addresses them to 'Secretaries and chief whips of all Labour Groups' (i.e. in councils) and was promulgated by the national Labour Party's 'Acting Head of Internal Governance' at that time in April 2018, Mr Fraser Welsh. As Mr Mundy submitted, such promulgation on balance of probabilities required the authorisation of the NEC, which under Chapter 1 Clause XIII of the Labour Party Rules is the body ultimately responsible for the Party.
b. Secondly, as the Disciplinary Procedures state (my italics):
"Acceptance of the rules (for local government Labour groups) as approved by the NEC is a condition of membership of the Labour group on the council. (Clause 13.XIII.1 [of the Labour Party Rules in 2018, now Clause 16 XIII.]. The rules set out some explicit requirements for Labour councillors and additional guidance is provided by the NEC from time to time e.g. model standing orders for groups……[I]t is the chief whip's job…to determine the appropriate action, subject to any over-riding instruction or advice by the NEC or the General Secretary of the party (and normally exercised by the party's national and regional officers on his or her's behalf). The NEC and party officers retain the right to vary the following disciplinary procedures depending on the gravity of the allegation(s) and have the power to automatically suspend a member in such circumstances."
Those italicised words support the inference that the NEC authorised the 'Labour Group Disciplinary Procedures' document as 'additional guidance' and an 'overriding instruction' to local council party chief whips, since the NEC reserved the right to vary those Disciplinary Procedures.
c. Moreover, as quoted above, clause XIII para.2 of the Labour Party Rules 2022 provides that action in relation to allegations of breach of the rules by a Labour councillor 'shall be taken in accordance with guidance provided from time to time by the NEC'. That presupposed there is such guidance by the NEC. That gap appears to be filled by the 'Labour Group Disciplinary Procedures' document which provides such guidance to whips. To put it another way, it seems unlikely there are two sets of such guidance: one from the NEC and another from the 'Head of Internal Governance'.
So I am satisfied on the balance of probabilities that the 'Labour Group Disciplinary Procedures' document (that I now just call the 'Disciplinary Procedures') was 'NEC disciplinary guidance' or 'other guidance provided from time to time by the NEC' for the purposes of clause 2(3) WLG Rules and therefore potentially incorporated.
"20. Because the nature of the relationship between an unincorporated association and its individual members is governed by the law of contract the proper approach to the interpretation of the constitution and rules is governed by the legal principles as to the interpretation of contracts and is a matter of law for the court. The approach is thus that set out in cases such as Chartbrook v Persimmon [2009] 1 AC 1101...Arnold v Britton [2015] AC 1619…and Marks and Spencer v BNP Paribas [2015] 3 WLR 1843. The intentions of the parties to a contract will be ascertained by reference to what a reasonable person having all the background which would have been available to the parties would have understood the language in the contract to mean, and it does so by focusing on the meaning of the words in the contract in their documentary and factual context.
21. The meaning is assessed in the light of the natural and ordinary meaning of the words, any other relevant provisions of the contract, the overall purpose of the clause in the contract and the facts and circumstances known or assumed by the parties. In this context this means the members of the unincorporated association the Labour Party. In Foster v McNicol….Foskett J … stated the court can take into account 'the readership to which' the rules of an unincorporated association are addressed when interpreting them.
22. The effect of the cases…is that the clearer the natural meaning of the centrally relevant words, the more difficult it is to justify departing from it..
23. The court will more readily and properly depart from the words of a contract where their meaning is unclear or ambiguous, or where giving their natural and ordinary meaning would lead to a very unreasonable result. As to the latter, while it is illegitimate for a court to force on the words of a contract a meaning which they cannot fairly bear, in Wickman v Schuler [1974] AC 235 Lord Diplock stated 'The fact a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result, the more necessary it is that they shall make that intention abundantly clear'. In both categories of case the court will consider the relevant context, being concerned to identify the intention of the parties by reference to 'what a reasonable person having all background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean'."
a. Firstly, as Mr Mundy submitted, on the natural meaning of the centrally relevant words (c.f. Evangelou at [22]), Clause XIII para.3 does not restrict the available sanction to withdrawal of the whip to the exclusion of other sanctions, it simply regulates the procedure for withdrawal of the whip:
"If…the group whip finds a serious breach of rule, it shall be competent for the group whip to be withdrawn for a specified period….from any member who is in breach of these rules, such action to be initiated by the group whip who shall…[etc]." (my italics)
If intended to have the effect the Claimant contends it could easily have said:
"If…the group whip finds [any] breach of rule...[the only sanction is] for the group whip to be withdrawn…[etc]." (my italics and brackets).
b. Secondly, para.3 clause XIII focuses on a 'serious' breach of rule, which must be read with para.2 clause XIII (which is 'another relevant provision of the contract': c.f. Evangelou at [21]) that concerns any breach:
"Where allegations of a breach of rule by a Labour councillor are made, action shall be taken in accordance with guidance provided from time to time by the NEC. The chief whip shall be responsible…"
Read together, paras 2 and 3 differentiate between any breach of rule, for which action must be taken in accordance with NEC guidance (such as the Disciplinary Procedures, including warning and removal from committees); and serious breaches of rules that may justify the more serious sanction of withdrawal of the whip, justifying more procedural safeguards, not just in guidance but in the Labour Party rules themselves.
c. Thirdly, 'facts and circumstances known by the parties' and the 'readership' of the WLG Rules in their documentary context (Evangelou at [20]-[21]) for para.3 Clause XIII Ch.16 Labour Party Rules 2022 would include knowledge of the Disciplinary Procedures published in 2018 (whatever their formal status). In other words, the Labour Party Rules in 2022 would have been drafted in the knowledge that there was existing Party guidance (covered in the Party Rules in para.2) regulating lesser sanctions than withdrawal of the whip like warnings and removal from committees.
d. Fourthly, alternatively, para.3 clause XIII chapter 16 Labour Party Rules 2022 is 'unclear or ambiguous', justifying more weight be given to its factual context (Evangelou at [23]). A 'reasonable person having all background knowledge available to the parties would have understood' that as the local group of councillors had practical control over removal from committees (as I shall explain) as a lesser sanction than withdrawal of the whip, so they needed a procedure to remove in a disciplinary context. Similarly, it makes sense for the group to be able to impose a warning, including for conduct that does not breach of the Code of Conduct enabling a statutory complaint to the council (e.g. attempted political party defection).
e. Finally, non-availability of lesser party sanctions than withdrawal of the whip would be a very unreasonable result, so should be avoided if possible (Evangelou at [23]) and can be avoided by the above reading.
"A person who joins an unincorporated association thus does so on the basis that he or she will be bound by its constitution and rules, if accessible, whether or not he or she has seen them and irrespective of whether he or she is actually aware of particular provisions: John v Rees [1970] 1 Ch 345 at 388D – E; Raggett v Musgrave (1827) 2 C & P 556 at 557."
In fairness to the Claimant, I have considered both Raggett and John to see if there is any nuance in 'accessibility' which supports his position. However, there is not. Raggett is a short Georgian report which states that if club rules are accessible in the secretary's book, members are taken to be acquainted with them. John is another Labour Party case about a chaotic constituency meeting which the chairman ineffectually adjourned but then rebels staged a 'coup' and voted to disaffiliate from Labour in solidarity with their rebel MP Desmond Donnelly. Megarry J held that even though the constituency party was a separate unincorporated association from the national party, it could not disaffiliate from it under its own rules, which bound all members whether or not they actually knew about them. He said at 388:
"Certainly, I do not think it is necessary to bring home to every member when he joins exactly what the rules of the association are. I do not see why someone who joins a club should not do so on the basis that he will be bound by the rules of the club, whatever they may be: see, for example, Raggett…where the rules, though accessible, were neither posted up nor sent to members…..In the case of a club, if nobody can produce any evidence of a formal resolution to adopt a particular set of rules, but on inquiry the officers would produce that set as being the rules upon which it is habitual for the club to act, then I do not think the member would be free to reject those rules merely because no resolution could be proved."
That is precisely the position here with the 'Disciplinary Procedures'. They had been distributed to the local council Labour groups by the national Party and were 'accessible' in the sense that any member could have requested the disciplinary procedure (even if they did not know about the particular procedures in question). Therefore, I accept the provisions on sanction in the 'Disciplinary Procedures' are indeed incorporated by reference into the WLG Rules as the Defendants contend. However, that raises the question I consider below whether Cllr Evans' apparent decision to remove the Claimant from committees was a breach of contract.
Did the Defendants breach the express terms of WLG's association contract ?
"…the Defendants have breached the express terms of the WLG Rules….:
26.1. the Defendants failed to pursue the only sanction available (namely, removing the whip). Instead, the Defendants pursued a final written warning and removing Mr Birch from the identified committees; and
26.2. the Defendants failed to take any of the required steps, including:
(a) failing to ensure there was no Party discussion on the proposed action outside of the procedure…
(b) failing to convene a joint meeting of the Labour group and the executive of the Party Local Government Committee,
(c) failing to take evidence in writing from the defendant and any necessary witnesses;
(d) The Defendants informed Mr Birch that he would have no right of appeal from their findings (such right being expressly provided within the Labour Party Rules, Chapter 16, Clause XIII, paragraph 5."
The pleaded allegations at para 26.2 concern paras.3 and 5 Clause XIII that I repeat:
"….it shall be competent for the group whip to be withdrawn… from any member..in breach..such action to be initiated by the group whip who shall:
A. report to the officers of the group and the appropriate Party Local Government Committee who shall ensure that there is no Party discussion on the proposed action outside the procedure provided for in this rule until this procedure has been completed.
B. convene a joint meeting of the Labour group and the executive of the appropriate Party Local Government Committee at which upon due notice the matter shall be determined with the chair from the Labour Group and evidence taken in writing, from the defendant, and from witnesses as necessary)….
5. Withdrawal of whip
A. A decision to withdraw the whip shall take immediate effect but is subject to appeal within 14 days to the appeal panel of the Regional Executive Committee who shall hear the appeal within 14 days where practicable of receipt and whose decision shall be final..." (my italics)
"Where it is felt that some action should be taken by the group which would remove a councillor from positions s/he holds which are in the determination of the group or the council via the group by virtue of the 1989 Local Government and Housing Act (eg membership of committees, chairs and vice-chairs of committees)…this must be dealt with by the full group.
The group whip should report to a full meeting of the group and make the proposed action a notified agenda item. The normal standing orders of the group would apply to such a meeting except that no vote should be taken until the councillor/s concerned have had the opportunity to make a case to the meeting in response to any charges. A straight vote should be taken on the whip's proposal and any amendments moved. All members of the group are entitled to vote and any decision takes immediate effect, subject to any procedures required by the council.
There is no appeal against such decisions which are in the province of the group (they are, in effect, questions of no confidence in the office holder)…
There are some important legal issues to be taken into account when implementing disciplinary action which involves removals from positions within the province of the Labour Group. These arise from the 1989 Local Government and Housing Act. The 1990 Regulations 8,10(d) and 13, which give effect to the Act, give responsibility to the appropriate political group to choose who should be their representatives on council committees etc.
…Only the council can give effect to the instructions of the group to change the composition of committees. Your group decision has to be enacted through the council before it legally takes effect. Therefore, when the group has made a decision to remove a member from a/all committee(s), the group will also have to decide on the replacement member(s), and the secretary and whip will need to table an appropriate resolution at the next council meeting to give effect to the group decision if so required by the council constitution or inform the appropriate council officer….."
That is legally correct. The mechanism of removal from committees is set out in the Regulations, but the position is clear from s.16(2) of the 1989 Act, which states:
"Where— (a) any person has been appointed, otherwise than for a fixed term, to a body to which s.15 applies [including Council committees]; and (b) that appointment was made, in pursuance of (1) above, in accordance with the wishes of a political group, then, so long as that person's seat continues to be allocated to that group, the authority or committee which made the appointment shall act in accordance with the wishes of that group in determining whether and when to terminate the appointment." (out of interest, s.16 was touched on only yesterday in Spitalfields Trust v Tower Hamlets LBC [2025] UKSC 11 at [10]).
"[W]e have decided that you will be removed from the following committee(s) with immediate effect: • Governance & Ethics • Economy and Growth Scrutiny Panel. The Group Secretary will be in touch with you in due course to identify alternative committees for you to attend."
The question is the consequence of Cllr Evans having said that, but it never actually being implemented (as the Claimant accepts – he stayed on the relevant committees until he stepped down as a councillor in May 2023). It was never implemented because Cllr Evans changed course on the 19th October to say:
"Further to my letter dated 13th October 2022, I can confirm that the recommendations that I outlined in the letter will be an item agenda at our next Labour Group meeting on Monday 31st October 2022...[stating]:
…7(a) The Chief Whip to recommend to the Labour Group i) Issuing a written warning. This will be on file for 12 months and then it will be removed. ii) The Councillor to be removed from the following committee(s) with immediate effect, subject to any procedures required by the Council / Labour Group.: Governance & Ethics, Economy and Growth…."
The Claimant then obtained an injunction on 28th October 2022 to restrain that meeting and then the Defendants gave undertakings which have remained since. Nevertheless, the issue is whether Cllr Evans' Decision on 13th October purporting to remove him from committees without authority was a breach of contract.
"[U]sually there is a considerable degree of informality in the conduct of the affairs of such clubs. [T]he courts have to…allow general concepts of reasonableness, fairness and common sense to be given more than their usual weight when confronted by claims to the contrary which appear to be based on any strict interpretation and rigid application of the letter of the rules. In other words, allowance must be made for some play in the joints."
In Speechley, Lewison LJ at [30] said that only referred to the second of a two-stage analysis to examine breaches of express association rules:
"[28] There are… two separate questions: (i) What do the rules require? (ii) What is the effect of non-compliance with those requirements?
[29] The answer to the first of these questions is a question of interpretation of the rules. In answering that question, the rules are to be interpreted in the same way as any other contract, making due allowance for the fact that the rules are intended to be operated by non-lawyers…
….The answer to the second question involves a rather different inquiry. The point was well-made by Sir Stanley Burnton in Newbold v The Coal Authority [2014] 1 WLR 1288, which concerned the validity of notices of subsidence damage. He said at para [70]: 'In all cases, one must first construe the statutory or contractual requirement in question. It may require strict compliance with a requirement as a condition of its validity. In Mannai at 776B Lord Hoffmann gave the example of the lease requiring notice to be given on blue paper: a notice given on pink paper would be ineffective. Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of that statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation, and the parties in the case of a contractual requirement, would have intended a sensible, and in the case of a contract, commercial result."
As Ritchie J said in Mok v Fitzmaurice [2024] EWHC 2084 (KB) at [30]-[31], that is not the same as saying that the association's rules must be 'strictly followed': and he explained, at the first stage, the approach to interpretation is that in Evangelou. Ritchie J held technical failings making no difference did not invalidate expulsion. That is one 'effect of non-compliance'. Others were discussed in detail by Foxton J recently in Hayes v Peck [2025] EWHC 402 (KB) at [12]-[25]. It suffices to say he explained that despite the similarities, unlike judicial review, the consequences of breaches of contract turned on orthodox principles of contract law. He differentiated procedural breaches which invalidated a contractual decision (raising whether the court could 'cure' or 'substitute' a decision); from those sounding only in damages (raising counterfactual questions of loss); from those making no difference: but for which the decision would have been the same and lawful. That is what he found with the expulsion of a senior member of the Liberal Democrat Party, where a breach of contract on one conclusion did not undermine a decision based on several.
a. Firstly, this is not a pleaded breach of an express term - I have set out and rejected the Claimant's pleaded breaches of express terms already. It is true, as I consider below, that the Claimant does plead breach of implied terms (of good faith, rationality and in accordance with natural justice) that: 'On 19 October 2022, despite Ms Evans having already informed him that he had been found guilty and sanctioned, the Defendants purported to convene a meeting for the WLG to vote on his guilt and the appropriate sanction'. However, that is a complaint about the letter of 19th October, not about the Decision of 13th October. The Claimant never pleaded Cllr Evans breached the Disciplinary Procedures because he pleaded they were not incorporated.
b. Secondly, as Cllr Evans' decision to remove the Claimant was never actually implemented (and had been rescinded even before the injunction), it never amounted to an actual breach of contract, only a threatened breach that was withdrawn. The principle was explained by Lewison LJ in Compass v Mid-Essex NHS [2013] EWCA Civ 200, where wrongful price deductions under a contract were swiftly corrected:
"141….In my judgment it is not generally a breach of contract merely to assert rights which the contract does not confer. In Kenny v Preen [1963] 1 QB 499 one of the questions was whether a landlord had committed a breach of the covenant for quiet enjoyment by asserting that the tenancy had come to an end. Pearson LJ said: '...In my judgment, a landlord by merely making that assertion, however wrong he may be, does not commit a breach of covenant. He is entitled to make that assertion, at any rate if he believes it to be true, frequently, emphatically and even rudely. He is entitled also to threaten proceedings in the courts for possession and damage'….
143…If action is taken on the basis of the assertions, then the actions themselves may well amount to a breach. But in the present case in so far as the Trust did act on its assertion that it was entitled to make Deductions, it repaid the amounts deducted following the 'cure letter'. The [deductions] had no continuing consequences because…. There was, therefore, no material breach still subsisting when [Compass] purported to terminate the contract."
(Whilst the Claimant submitted that Compass could be distinguished, he was focussing on a part of it which addresses implied terms which Mr Mundy did not rely on).
c. Thirdly, even if Cllr Evans' purported removal from committees of the Claimant did not comply with WLG rules (Speechley Stage 1), the issue is the consequence (Speechley Stage 2), decided by considering the words of the contract, its subject matter, background, purpose and effect of non-compliance on the parties and on the basis they intended a sensible and commercial result. I agree with Mr Mundy the effect of Cllr Evans' unauthorised decision to remove the Claimant from committees with immediate effect was simply contractually ineffectual. It did not invalidate her conclusion that he had breached the WCC Rules and so WLG rules, or her imposition of a warning. Nor did it invalidate the swift correction by the contractually-valid procedure of her proposing a WLG vote on sanctions. I readily accept Cllr Evans' originally departed from the words of the contract that removal from committees 'must be dealt with by the full group'. That was not merely technical, especially in the political context; and had a potentially serious impact on the Claimant. I accept it was 'contractually invalid' as Foxton J described in Hayes at [15]. However, as he added at [16], if uncorrected the Court could consider whether to take such a decision itself or 'leave the contractual decision-maker to make a fresh decision', which he thought appropriate in the political party context. That is precisely what Cllr Evans had already done herself, in less than a week. It would be artificial to ignore the fact that non-compliance was swiftly remedied; and totally nonsensical to conclude the rest of the original decision was invalidated, or that it was incapable of being superseded by a valid process.
"In normal circumstances:
• It is a requirement that the individual be given an indication of the nature (but not the details) of the complaint or incident about which the whip wishes to see the individual…
• The individual should be advised..he is entitled to have a friend present..."
As I have explained, these were incorporated as terms of the WLG association contract and so, breach of either would breach express terms. But again, I agree with Mr Mundy the Claimant cannot complain of that here:
a. Firstly, again, these are not pleaded complaints of breaches of express terms, but of implied terms, particularly 'natural justice'. Indeed, as I will explain, their status as express terms is relevant to the pleaded claims of breach of implied term, but that is not the same as pleading breach of express terms.
b. Secondly, on the merits, both 'requirements' are qualified by the rider 'in normal circumstances'. That is part of the express terms, which must be interpreted on the normal principles in Evangelou, including at [21] all the background known to the 'readership': all sophisticated elected councillors and taken to be familiar with procedural rules, as Mr Mundy pointed out. Indeed, the Claimant had already been to a disciplinary meeting with Cllr Evans less than a year earlier. That made this an 'abnormal' case where Cllr Evans was entitled to assume, as she said in evidence, that the Claimant would ask for a companion if he wanted one without 'reminding of his rights'; and ask for more detail of the allegation if he wanted it as well.
c. Thirdly, even if that is wrong, the phrase 'in normal circumstances' created a contractual discretion for Cllr Evans to decide whether the circumstances were 'normal', which engages not express but implied terms, to which I now turn.
Did the Defendants breach implied terms in conducting the procedure ?
"(i) That the decisions by WLG and its officers would be made in good faith and would not be capricious or arbitrary [which I call the 'good faith term']
(ii) WLG and its officers (including the Defendants) would not act in a way which was Wednesbury unreasonable; [which I call the 'rationality term']
(iii) WLG and officers would observe rules of natural justice in initiating, conducting and implementing disciplinary procedures (including any sanction recommended, pursued or imposed)." ['natural justice term']
At CCMC in September 2024, HHJ Worster determined all ten pleaded complaints of breaches of the implied terms in para.27 of the Particulars of Claim (which I will set out in a moment) alleged breach of all three pleaded implied terms. Nevertheless, most of the pleaded breaches are 'procedural' where the real complaint is non-compliance with natural justice and the other two implied terms add little or nothing. I will deal with those first; and later with the 'substantive' pleaded breaches relating to the Decision and sanction.
"[W]hen the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias and give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. In the case of a Court of law tradition…has prescribed certain principles to which…the procedure must conform. But what that procedure… in detail must depend on the nature of the tribunal."
The landmark decision in Ridge v Baldwin [1964] AC 40 (HL) confirmed that the principles of 'natural justice' applied to 'administrative tribunals' amenable to judicial review (including a police force police dismissing a chief constable) as well as courts, but again Lord Reid stressed those requirements may vary at pg.65:
"It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable."
But in Ridge at pg.132, Lord Hodson stated three basic elements of natural justice:
"[T]hree features of natural justice stand out: (1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges."
"In the case of social clubs, the rules usually empower the committee to expel a member who, in their opinion, has been guilty of conduct detrimental to the club; and this is a matter of opinion and nothing else. The courts have no wish to sit on appeal from their decisions on such a matter.. …On any expulsion they will see that there is fair play. They will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules; but they will not otherwise interfere…"
"10. The contractual obligation to conduct the disciplinary proceedings of an association fairly, or in accordance with the principles of natural justice, has three core elements: (a) the right to be heard by an unbiased tribunal; (b) the right to have notice of charges of misconduct; and (c) the right to be heard in answer to those charges: Ridge v Baldwin [1964] AC 40, 132 (Lord Hodson). It has been noted that the obligation to conduct proceedings fairly and the requirements of natural justice 'must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens" (McInnes v Onslow Fane [1978] 1 WLR 1520, 1535), burdens which would ultimately have to be borne by the members of the association as a whole with whatever cost consequences that might entail. As Lord Mustill observed when considering the requirements of natural justice in a public law context in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 at 560-561, "what fairness demands is to be dependent on the context of the decision, and this is to be taken account in all its aspects", and "It is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."
11. As Popplewell J noted in Dymoke…[63], 'what procedural fairness requires in practice may differ from body to body. A small voluntary organisation may not be expected to employ the more formal and elaborate procedures….required of a larger and better resourced organisation….
25. Finally, it must be doubtful whether every rule….in a contractual decision-making process creates an independent contractual obligation that sounds in damages, as opposed to being factors relevant to whether the ultimate or overriding contractual obligation to provide a fair process or comply with rules of natural justice has been discharged. If, for example, the contract provides a time-limit… the departure from the time limit appearing in the contractual process, and any other procedural decisions which bear on that (e.g. whether further time was allowed at a later stage…) will be relevant factors in determining whether the contractual obligation to comply with the rules of natural justice has been satisfied overall."
"[I]t is for the court, in the light of the agreements made and…having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association."
(Again, Lord Wilberforce's language envisages that fairness is assessed by the Court's own judgment, as Lord Reed later said in Osborn, not rationality review). In Brown v Edinburgh Labour Party [1995] SLT 985, Lord Osborne in the Outer House (for the Claimant's benefit here, the Scottish High Court) held that where the local committee of the Labour Party had passed a motion criticising some members and convened a disciplinary hearing to withdraw the whip (which would consist effectively of the same people who had already voted in favour of criticism), then despite Calvin, the possibility of a later appeal could not remove the risk of apparent bias and an injunction to restrain the initial disciplinary meeting was justified. By contrast, in Mok at [107], a lack of right of appeal did not breach natural justice.
"The Defendants invited Mr Birch to a meeting without providing him with adequate information. In particular, Ms Evans failed to inform Mr Birch of the following matters: (a) that it was a formal meeting and would not be private and confidential (contrary to indications in her email); (b) any details of the allegation ahead of the meeting; (c) who made the complaint."
I have already touched on this issue when considering express terms, especially the provision in the Disciplinary Procedures stating that 'in normal circumstances':
"It is a requirement that the individual be given an indication of the nature (but not the details) of the [relevant] complaint or incident …"
I have rejected complaint of breach of this express term, but it is relevant here too.
"What would have been required to have been shown was that inclusion [of a confidentiality requirement]…led to actual unfairness to the Claimants. The Claimants have not shown [that]…In particular…that it..prevented them from taking advice or communicating about the investigations…."
"(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations …either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since [he] usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require he is informed of the gist of the case which he has to answer."
Moreover, the Labour Party's own guidance in the Disciplinary Procedures, incorporated into the WLG Rules in this respect 'require', at least 'in normal circumstances', the respondent to a complaint be given in advance of a meeting about it an indication of its nature, if not its details. Such 'advance notice' may not be required 'in abnormal circumstances': for example, where the respondent is already fully aware of the complaint in another way and is expecting a meeting. However, fairness still requires advance notice even where an investigator thinks a complaint appears to be 'open and shut', since as Megarry J said in John at pg.402C:
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."
Cllr Evans in evidence seemed to acknowledge that it would have been fairer if she had provided the Claimant with some 'advance notice' of the allegation: if only that the complaint was from Cllr Hibbert about his Facebook post on 17th August, which in my judgement would have been enough to provide the 'gist' (or as the term put it, the 'nature' if not the 'details') of the allegation' and indeed, to comply with the implied term of natural justice, enabling him to prepare a reply. However, that did not happen and the Claimant submits that was unfair and breached natural justice.
a. Firstly, it is clear from the minutes (unchallenged in this respect) that Cllr Evans began the meeting on 6th October 2022 not simply by identifying the complaint as from Cllr Hibbert and about the social media post on 17th August in response to the report of her court hearing, Cllr Evans actually read out the whole post to remind the Claimant of its contents. Therefore, whilst there was no advance notice of the nature of the allegation, there was full disclosure at the start of the details of the allegation which Cllr Evans was investigating (she did not pursue, even further mention, Cllr Hibbert's wider complaints). Cllr Evans then simply asked for the Claimant's explanation. So far as Lord Hodson's essentials of natural justice in Ridge are concerned, there was notice of the allegation at the start of, rather than before, the hearing; and the right to be heard in the answer to that allegation. Moreover, there is no complaint that Cllr Evans was biased. Whilst it is clear she was less familiar with the Disciplinary Procedures than she should have been in conducting a hearing, I entirely accept acted in good faith and rationally considered that if the Claimant had needed more information in advance, he would have asked. Whilst that is no answer to a complaint of breach of natural justice, it more than answers the complaints of a breach of the implied terms of good faith and of rationality on this issue.
b. Secondly, so far as natural justice itself is concerned, as Lord Mustill said in Doody, it is not enough to show another procedure would have been fairer, a claimant must show the actual procedure was actually unfair; or as Butcher J put it in Nelsen, that it led to actual unfairness to a claimant. The real relevance to natural justice of Cllr Evans' point that the Claimant did not ask for more information in advance was not that he could have done so, but that he saw no need to do so. He said himself when told the complaint s about a social media post, he said 'Is this about Hibbert ?' The reality is that the Claimant clearly suspected the complaint was from Cllr Hibbert, given their ongoing conflict. He had already been warned a few months earlier about criticising her in the press; and now he had sent the press to a hearing to criticise her and then posted about it. When a few weeks later, Cllr Evans told him she had received a complaint, the Claimant did not ask from whom or about what, because frankly, it was fairly obvious. Moreover, he had obviously thought through his potential response if the complaint was as he suspected. When Cllr Evans asked about his social media post, he not only defended it, he then launched into a litany of counter-attacks about Cllr Hibbert: that she had posted from Nigeria during COVID, that she did not live at her address in Penn, that she had defrauded Ms F and racially insulted his wife. The Claimant even volunteered (that Cllr Evans could not possibly have discovered otherwise) that he had 'encouraged' the reporter to attend Cllr Hibbert's court hearing in August. As Mr Mundy observed, this 'counter-attack' is precisely the strategy the Claimant has taken in this litigation, suggesting he would have done exactly the same in the meeting with advance notice (even if, I would add, in a slightly more prepared way). Nor has the Claimant identified any actual disadvantage from the lack of advance notice of the allegation. For those reasons, whilst the lack of advance notice was potentially unfair, there was no actual unfairness.
c. Thirdly, even if I am wrong and there was actual unfairness (or breach of natural justice) in the lack of advance notice of the complaint, that does not mean there was breach of the implied term. The whole process must be considered, as explained in Calvin. As Foxton J recently put it in Hayes, departures from procedures 'will be relevant factors in determining whether the contractual obligation to comply with the rules of natural justice has been satisfied overall'. For that reason, any actual unfairness in the lack of advance notice (which I do not accept) must be put in context of the process overall. Most obviously, as Mr Mundy observed, once Cllr Evans had sent the letter of 19th October inviting the Claimant to a full WLG meeting (which she called in evidence an 'appeal' but in reality, it was just a 'rehearing'), the Claimant clearly had enough 'advance notice' for fairness.
For those reasons, I dismiss the complaint of breach at para.27.1 PoC.
"The investigatory interview is a crucial stage in the process. Both parties must be assumed to be aiming to get to the truth and to put the investigator in the best possible position to provide a comprehensive and balanced report to the decision-maker. I appreciate that the process is not, as yet, adversarial. In many cases the [right to be accompanied by a fellow employee or trade union representative] might be regarded as perfectly fair. Yet in this case, the perception has been created that the university has an advantage over Professor Stevens because…it has provided [its investigator] with the technical assistance of a senior member of staff chosen by the university who may also possibly attend, whereas it is forcing [the claimant] to go into the meeting without any support of that nature."
Here too, the Claimant argues that it was a breach of natural justice not to inform him he had the right to be accompanied in the meeting, because Cllr Herbert was accompanied by a barrister in her complaint meeting with Cllr Evans; and a companion would have been able to take minutes, since Mr Islam's were disputed. Whilst he did not rely on it, it was also a requirement in the Disciplinary Procedures.
a. Firstly, the 'right' to be accompanied to a meeting is not one of the core aspects of natural justice in any procedure as summarised by Lord Hodson in Ridge. Of course, that does not mean it is irrelevant to the implied term of natural justice, especially as it is a (conditional) express contractual term. After all, Andrews J in Stevens considered that it could breach an implied term to insist on the strict letter of an express term, whilst here the express term supports the Claimant's argument under the implied term of natural justice. However, the express term is qualified by 'in normal circumstances' and that is also obviously relevant to fairness with the implied term as well. In this case, Cllr Evans did not refuse to allow the companion of choice as in Stevens, she would have been happy for the Claimant to be accompanied, just as she had been happy for Cllr Hibbert to be accompanied (her companion did not really speak and Cllr Evans did not realise he was a barrister). But Cllr Evans took the view it was unnecessary to remind the Claimant he could be accompanied, not least because she had conducted a similar disciplinary process with the Claimant a few months earlier (where, again he had not asked to be accompanied). In my judgement, Cllr Evans acted in good faith, rationally and indeed entirely fairly in those particular circumstances, which were unusual in that respect, rather than 'normal'.
b. Secondly and in any event, again the Claimant has not shown that the absence of a companion caused him any actual unfairness or disadvantage. The simplest point is that the Claimant actually did have his assistant in the room with him. I appreciate she has some disabilities affecting her speech, but his complaint was that he was disadvantaged over the minute-taking and he does not suggest he could not have simply asked her to do that, just as he asked her to send on to Cllr Evans information about Ms F after the meeting. In any event, I have already rejected on the facts the Claimant's complaint about Mr Islam's minutes of the 6th October meeting in para.27.3 PoC. His complaint about Cllr Hibbert being accompanied by a barrister adds nothing, especially as he seems not to have said anything of significance (I suspect Cllr Hibbert was well able to articulate her view, despite her emotion). I accept Cllr Evans did not know he was a barrister in any event – so he was not there as a legal representative in any meaningful way, only as a companion. Even if Cllr Evans should have told the Claimant he could have a companion too, it made no practical difference at all – he did not need technical support or guidance such as the companion could give in Stevens.
c. Thirdly, even if I am wrong, as with 'advance notice', the fairness of the disciplinary process must be assessed as a whole. The issue of being accompanied was less fundamental to fairness than the 'advance notice' issue and cannot come anywhere near to undermining fairness of the whole process, especially as Cllr Evans did not refuse the Claimant a companion, just failed to tell him he could have one if he wished.
For those reasons, I dismiss the complaint of breach at para.27.2 PoC.
"Ms Evans failed to carry out a fair investigation. In particular: (a) Ms Evans failed to adequately investigate matters before the meeting with Mr Birch on 4 or 6 October 2022; and (b) Ms Evans moved from a meeting with Mr Birch on..6 October 2022…. to a decision on 13 October 2022 that Mr Birch was guilty and was to be sanctioned. Ms Evans failed to investigate the allegations in that period, including the concerns raised by Mr Birch regarding Cllr Hibbert."
Just as with the last two points, it is relevant the Disciplinary Procedures state this:
"In advance of the meeting, the whip should identify the questions that need to be answered and information that needs to be established, and determine whether s/he needs to see any other individual or any… documentation… The task of the meeting is to establish: 1) the facts 2) whether there has been a breach of the party's rules; 3)…any mitigating circumstances."
However, of course those are national procedures designed to cover the whole range of potential complaints against councillors to be investigated: what matters is the particular case. The Claimant did not really explain what 'investigation' he expected Cllr Evans to undertake before the meeting, given she had spoken with Cllr Hibbert, had the social media post in question and was not pursuing her wider allegations. The Claimant's essential submission on para.27.4 PoC was that after he had explained his wider concerns about Cllr Hibbert at the meeting, including her alleged racial comments about his wife, Ms F's allegations and her tenancy and the dispute about it with her landlord, Cllr Evans should have investigated those further and he asked his assistant to send Cllr Evans some information to do so, because she said she would 'come back to him' about those issues. However, I have found as a fact Cllr Evans did not say that she would investigate the Claimant's concerns.
"60…Even in the most serious cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges….
80….In ILEA & Gravett [1988] IRLR 497…Wood J said '… in one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end so the amount of inquiry and investigation, including questioning of the employee which may be required, is likely to increase.'…"
In short, the Claimant's argument reflects the first point, Mr Mundy's the second.
"The Defendants have acted inconsistently in their approach to Mr Birch and Cllr Hibbert. The Defendants have taken no action against Cllr Hibbert (despite knowing of the complaints by Cllr Olivia Birch and by Mr Birch regarding his constituent Ms F). By contrast, the Defendants have adopted an expedited process against Mr Birch….In November 2023…the national Labour Party…excluded Cllr Hibbert on grounds of her misconduct."
In R(Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin), Lang J upheld a judicial review of a disciplinary warning by a local authority to a councillor under a statutory complaints procedure following a disorderly meeting including on grounds of common law inconsistency of treatment. She said at [95]:
"[I]n principle, like cases should be considered and decided in a like manner so that there is consistency in the administration and adjudication of the standards process. The principle was set out by Lord Sumption in R(Rotherham MBC) v Secretary of State for Business [2015] UKSC 6 [26]"
In R(Rotherham) at [26]-[27], Lord Sumption said:
"As Lord Hoffmann pointed out when delivering the advice of the Privy Council in Matadeen v Pointu [1999] 1 AC 98, 109.. treating like cases alike and unlike cases differently is a general axiom of rational behaviour.... The two-stage process by which courts in discrimination cases distinguish between comparability and objective justification is a useful tool of analysis and probably indispensable in dealing with allegations of discrimination on ground of personal characteristics…But a tool of analysis should not be transformed into a rule of law. Lord Hoffmann pointed out in R (Carson) v SSWP [2006] 1 AC 173, paras 29-31, the question whether two situations are comparable will often overlap with the question whether the distinction is objectively justifiable."
Whilst Mr Mundy initially suggested that compliance with natural justice does not concern consistency of treatment with other cases, he did accept that it is relevant to rationality (as Lord Sumption mentioned) and good faith. In any event, I see no reason why the fairness of a procedure for one individual should not be judged against the fairness of a procedure for another in a comparable situation. The Claimant's argument here is that Cllr Hibbert's complaints against him led to a disciplinary investigation, but his complaints against her did not and that was unfair.
"On 13 October 2022, Ms Evans concluded Mr Birch was guilty of the allegations and decided to sanction him without first affording Mr Birch a fair hearing on the allegations (as pleaded in paragraph 18)."
I will return to this paragraph on the substance of Cllr Evans' decision of guilt and sanction, but so far as fair procedure is concerned, whilst this appears very wide, insofar as it goes further than para.18 PoC, it was not pursued. In any event I consider (subject to para.18) the hearing was entirely fair. The Claimant had a full opportunity to make representations (c.f. Doody) and took it. He did most of the talking at the meeting and said everything he wanted. The nub of para.18 PoC is:
"The Code of Conduct (the 'Code') was that of the local authority, not WLG. While WLG members are required to comply with the Code, neither the Code nor the WLG gave Ms Evans any contractual power to take steps under the Code. Yet further, Ms Evans has stated she would not use [it and] has no authority to invoke its Code of Conduct."
"On 16 October 2022, Mr Brookfield publicly declared that Mr Birch was a bully, without having spoken with Mr Birch about the allegations and without Mr Birch having had a fair hearing."
I can deal with this briefly, because it largely falls away on my factual finding at paragraph [36] above that even if at the 'Civic Sunday' service Cllr Brookfield did call the Claimant a 'bully' and to 'get away from him' as he alleges, he has not proven on balance of probabilities Cllr Brookfield was referring to Cllr Herbert's complaint. Indeed the natural inference, which I would make, is that he was referring to the Claimant persistently trying to talk to him when he had asked him to move away. On that footing, the incident is nothing to do with natural justice. But even if I am wrong about that and Cllr Brookfield was referring to the Claimant as a 'bully' in reference to Cllr Evans' recent Decision upholding Cllr Herbert's complaint, that does not mean there was a breach of natural justice anyway. Cllr Brookfield was not conducting a procedure, just expressing an opinion.
a. Firstly, it is inconsistent with my findings of fact, as I have explained.
b. Secondly, on the 16th October, there was not yet a plan for a WLG vote, which was proposed in Cllr Evans' 'correction' letter of 19th October. Therefore, at this stage, there was nothing for Cllr Brookfield to 'prejudge'. This was a long way from the same people issuing a public motion of criticism and then proposing to reconvene as a disciplinary panel in Brown.
c. Thirdly, even if I am wrong about both of those things and Cllr Brookfield called the Claimant a 'bully' referring to Cllr Hibbert's complaint and knew there would be a WLG vote on it (which I have found was his suggestion), then I do not consider that comment showed apparent bias, on the principles discussed in Mok at [41]-[43] which Ritchie J summarised at [44]:
"44.1 whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility (or a legitimate fear) that the tribunal (member) was biased against the Claimant, in relation to the relevant issue, in the circumstances.
44.2 The circumstances which the fair minded observer will take into account include: (a) the nature of the organisation; (b) the nature, function and composition of the tribunal; (c) the particular character of [its] proceedings; (d) the rules under which proceedings are regulated; (e) the nature of the complaint; (f) the issue/s to be decided within the complaint; (g) the potential effects of the available disciplinary powers on the accused (financial or merely social ?).
44.3 Whether, [given] the need for the public to retain confidence in the administration of justice, the tribunal was a public one or private.
44.4 The real possibility of bias by the tribunal members must be real in the sense of operative prejudice (whether conscious or unconscious) on a relevant issue.
44.5 The bias must be a predisposition or prejudice against one party's case or evidence on a relevant issue for reasons unconnected with the merits of the issue."
In the present case, whilst Cllr Brookfield was the Leader of the Council with considerable sway and patronage in WLG, he was only one of many (as I understand it 47) WLG members who would have one vote at the planned meeting. As Mr Mundy said, he may not have spoken at all, just left it to Cllr Evans to give her verbal report (why para.27.10 has fallen away). The fair-minded and informed observer in all the circumstances of WLG and the nature of the complaint would not have considered there was a real possibility of the whole of WLG being biased due to Cllr Brookfield. Indeed, they would not have considered he was apparently biased even himself because he had not yet heard the Claimant's explanation and may be swayed by it. For those reasons, I dismiss the complaint at para.27.5 PoC as well.
"On 19 October 2022, despite Ms Evans having already informed Mr Birch that he had been found guilty and sanctioned, the Defendants purported to convene a meeting for the WLG to vote on Mr Birch's guilt and the appropriate sanction….."
I have already dealt with this as an (unpleaded) breach of express term at paragraphs [57]-[59] above, although as I pointed out there, para.27.7 challenges the letter of 19th October, not the letter of 13th October. Either way, the complaint of breach of the implied term of natural justice (or good faith or rationality in procedure) is entirely misconceived. As I explained, Cllr Evans' letter of 19th October 2022 was actually correcting her contractual misstep relating to removal from committees on 13th October. Indeed, she went further than she actually needed to correct the mistake, because the agenda for that 31st October meeting stated:
"7. Whip(s) Report: Investigation of Complaint(s) against a Councillor:
a) The Chief Whip(s) to report to the meeting the outcome of their investigation against a Councillor after a complaint was made. The Chief Whip to recommend to the Labour Group i) Issuing a written warning. This will be on file for 12 months and then it will be removed. ii) The Councillor to be removed from the following committee(s) with immediate effect, subject to any procedures required by the Council / Labour Group.: Governance & Ethics, Economy and Growth….
b) The Councillor(s) concerned have the opportunity (if they so wish) to make a case to the Labour Group meeting in response to any charges.
c) Members to have the opportunity (if they so wish) to ask questions
d) A straight vote should be taken on the whip's proposal and any amendments moved and seconded (regardless of whether the Councillor is in attendance or not).
e) Any decision takes immediate effect, subject to any procedures required by the council. There is no appeal against such decisions which are in the province of the Labour Group."
Therefore, rather than simply proposing a vote on her recommendation to remove the Claimant from the two committees on which he sat with Cllr Hibbert, as Cllr Evans could legitimately have done, she actually proposed an effective re-hearing of both sanctions where the Claimant could address the meeting and members could ask questions. This perhaps explains why in evidence Cllr Evans referred to it as an 'appeal', though Mr Mundy agreed technically it was not. Nevertheless, since rehearings can cure earlier unfairness (as in Calvin) offering a rehearing of at least the issues of sanction actually supported rather than undermining fairness. Therefore, I dismiss the complaint at para.27.7 PoC.
"The Defendants informed Mr Birch that he would have no right of appeal from their findings (which, in addition to the Labour Party rules, would be a breach of natural justice)."
Again, the Claimant's pleading confuses the distinction between withdrawal of the whip and lesser sanctions which is specifically made in Labour Group Disciplinary Procedures specifically stated there was no right of appeal from a local group because lesser measures were entirely in their province. The procedure states:
"A decision to withdraw the whip (with or without a time limit) is subject to appeal but remains in force pending that appeal being heard. A decision to impose lesser disciplinary action such as a reprimand or removal from positions within the province of the group is not subject to appeal."
Of course, an appeal can cure unfairness (Calvin) so in that sense natural justice may require an appeal, but it does not always do so, as Ritchie J said in Mok at [107]
"Th[is] Complaints Review Process…did not create any right to appeal…It was not submitted that the rules of natural justice required the insertion of an implied term covering right to appeal. Thus, in my judgment, whilst the right to appeal is granted in criminal and civil procedure, and would be a fairer procedure, the absence of the right was part of the process chosen by the Club and the Claimant signed up to that process. I do not consider that the absence of a right to appeal was a breach of natural justice in this case."
Ritchie J in Mok may well have in mind Lord Mustill's comment in Doody that:
"It is not enough for the [claimant] to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show the procedure is actually unfair."
Here, I have found there was a fair process leading to Cllr Evans decision of 13th October and insofar as that purported to impose the wrong sanction on removal from committees, it was swiftly corrected. But not only that, it proposed a re-hearing of sanction generally, which could have gone beyond curing that error (Calvin). In that sense, it was akin to an appeal already, which is plainly how Cllr Evans saw it. To prevent the Claimant from having a further formal appeal was consistent with the express terms of the contract and so not a breach of the implied term (Dymoke) and in any event was entirely fair in the circumstances. I dismiss para.27.8 as well.
Did Cllr Evans breach implied terms of good faith and rationality in the Decision ?
"On 13 October Ms Evans concluded Mr Birch was guilty of the allegations and decided to sanction him [without first affording a fair hearing…]"
I have dealt with the procedural allegation (in brackets) of breach of fair hearing, but allegations of breaches of implied term were not just natural justice but also rationality and good faith. At the start of trial, I concluded this was broad enough to encompass alleged breaches of those two terms on the substance of Cllr Evans' decision on guilt and sanction (including the relevance of 'Nolan openness').
"18 Contractual terms in which one party to the contract is given the power to exercise a discretion, or to form an opinion as to relevant facts, are extremely common. It is not for the courts to rewrite the parties' bargain for them, still less to substitute themselves for the contractually agreed decision-maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest. That conflict is heightened where there is a significant imbalance of power between the contracting parties as there often will be in an employment contract. The courts have therefore sought to ensure that such contractual powers are not abused. They have done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision-making power is given…
24…[T]he test of the reasonableness of an administrative decision which was adopted by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, 233—234…has two limbs: 'The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it'…..The first limb focuses on the decision-making process: whether the right matters have been taken into account in reaching the decision. The second focuses on its outcome: whether, even though the right things have been taken into account, the result is so outrageous that no reasonable decision-maker could have reached it. The latter is often used as a shorthand for the Wednesbury principle, but without necessarily excluding the former….
28 There are signs…that the contractual implied term [that contractual discretions will be exercised rationally and in good faith] is drawing closer and closer to the principles applicable in judicial review. The contractual cases do not in terms discuss whether both limbs of the Wednesbury test apply. However, in Gan Insurance v Tai Ping Insurance [2001] 2 All ER (Comm) 299… Mance LJ first commented, at para 64, that 'what was proscribed was unreasonableness in the sense of conduct or a decision to which no reasonable person having the relevant discretion could have subscribed' but he concluded, at para 67: 'any withholding of approval by reinsurers should take place in good faith after consideration of and on the basis of the facts giving rise to the particular claim and not with reference to considerations wholly extraneous to the subject matter …'
29 If it is part of a rational decision-making process to exclude extraneous considerations, it is in my view also part of a rational decision-making process to take into account those considerations which are obviously relevant to the decision in question. It is of the essence of 'Wednesbury reasonableness' (or 'GCHQ rationality') review to consider the rationality of the decision-making process rather than to concentrate on the outcome. Concentrating on the outcome runs the risk that the court will substitute its own decision for that of the primary decision-maker.
30 It is clear, however, that unless the court can imply a term that the outcome be objectively reasonable (for example, a reasonable price or a reasonable term) the court will only imply a term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose. For my part, I would include both limbs of the Wednesbury formulation in the rationality test."
"i) Any express limitations in rules on the exercise of [a contractual] power must be complied with. Ascertaining the meaning of the rules involves a conventional exercise of contractual interpretation: Evangelou….
ii) There is an obligation to exercise the power of expulsion in good faith, which includes an obligation to exercise the power for a proper purpose.
iii) In a context where the decision is to be reached following some form of inquiry or process, there are implied terms as to how the process is to be operated (cf. Braganza…). There was no dispute that for a decision of this kind by a private body, the relevant obligation is properly characterised as an obligation to adhere to the rules of natural justice: Lee…[I have already how Foxton J elaborated that and as I read it, the rest of [9] in Hayes relates to scrutiny of a contractual discretion decision rather than a process].
iv) When a challenge to such a decision is brought in court proceedings, the issue for the court is not whether, on the evidence before it, it would have reached the same answer, but whether the decision fell within the scope of the contractually permissible decisions open to the decision-maker. In more recent contractual discretion cases, that is usually described as an obligation not to reach an arbitrary, perverse or irrational decision (Socimer International Bank v Standard Bank London [2008] EWCA Civ 116 and in contexts rather closer to the present case…Neslen…[11] and Rothery v Evans [2021] EWHC 577 (QB), [166]-[167]).
v) As Lord Sumption JSC explained in Hayes v Willoughby [2013] UKSC at [14]: "A test of rationality … applies a minimum objective standard to the relevant person's mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse."
vi) The application of that test will be influenced by the type of issue which the contractual decision-maker must decide. Sometimes, as in Braganza, it is a binary question of fact ("Did X happen?"), in which the task of the court in determining whether the given answer meets the contractual requirement of rationality may be relatively easy. On other occasions, the decision may involve application of more evaluative or open-textured criteria. In Rothery at [176], Mr Justice Cavanagh observed "the extent of the implied obligation of rationality recognised in Braganza depends on the type of contractual decision that is in issue. These vary enormously. In Braganza…the contractual decision was a binary factual and objective decision about whether the reason for the….death was suicide or not. The current case is concerned with a more subjective and political decision". Unpacking that observation, where the decision involves an evaluative application of open-textured criteria rather than primary fact-finding, there is likely to be a greater range of reasonable opinions open to the decision-maker, and it may be a more difficult task to identify matters which should have, but were not, taken into account, or vice versa, than when the issue is one of fact.
vii) Further, where the criteria involve an assessment of the impact of conduct on the association itself (e.g. whether a decision was in its best interests or whether conduct has brought or might bring the association into disrepute), the decision-making body stipulated by the contract between the members of the association will inevitably be better placed to answer that question than the court – essentially a form of 'institutional competence'. That is particularly the case when the association is a political party, and its best interests and reputation closely linked to prospects of electoral success"
Indeed, Foxton J also emphasised the need for 'judicial restraint' in Hayes at [27]:
"[T]he court must be astute to ensure that its findings go no further than those necessary to determine the dispute. If, for example, the court concludes that the finding of the contractual decision-maker was one reasonably open to it on the evidence before it, it will not be necessary, and frequently will not be appropriate, for the court to offer a rival view based on the different evidence and arguments it has heard. In such a scenario, if the court reaches a different view, it would not change the contractual decision or its legal effects, merely risk bringing the legitimacy of that conclusion into question. And given that, fairness would suggest that a claimant who cannot obtain the benefits of a different (but legally irrelevant) favourable view from the court should not be exposed to the jeopardy of an equally legally irrelevant finding by which the tribunal's adverse finding is compounded by a public decision to the same effect…"
Against that legal context, I propose to consider whether there was a breach of the implied term(s) of good faith and/or rationality in relation to Cllr Evans's decisions in her letter of 13th October 2022 that: (i) the Claimant had breached the WCC Code incorporated into WLG Rules; (ii) to impose a 12-month warning on the Claimant; and finally (iii) to remove him from the two committees he shared with Cllr Hibbert. However, in the light of the conclusions I have already reached on the issue of removal from committees, I deal with (iii) very briefly indeed; and having dealt with (i) in a little detail, I will also only need to deal with (ii) relatively briefly. Finally, I will summarise my conclusions and the result of the case.
"Amazing that she can't afford to pay the landlord her rent yet this morning, she's taken off to Nigeria ! One Nigerian on social media…said 'welcome home' and that goes directly to the fact she doesn't really live here.
She took off to Nigeria in 2020 during lockdown, which her resident[s] were burying their dead. She was posting pictures dancing and wrote 'I'm sick of people talking to me about COVID, I don't want to hear anymore'. She was away almost a year in Nigeria and all the time paid by taxpayers over £12,000."
I have quoted the Decision above and that Cllr Evans (and strictly also Cllr Wildman) found breaches of the WCC Code on 'respect', 'bullying, harassment and discrimination', 'disrepute' and 'use of position'. I will repeat their reasoning:
"Specifically, our conclusion is that you have deliberately posted what may be perceived as defamatory, untrue / factually inaccurate comments about Councillor Hibbert on the Blakenhall Online platform and refused to take down this post when requested by both Whips.
You also admitted to contacting a local reporter about Cllr Hibbert appearing in court in relation to a private matter, despite having previously received a written warning for speaking to the Express & Star about a private Special Labour Group meeting, concerning the removal of the Whip from Cllr Celia Hibbert. You will recall that, at the time, we sought reassurance from you that you will check with Leader's Office first, if approached by the media for any comments.
Your actions resulted in a formal complaint received from Cllr Hibbert and has caused her considerable anxiety and distress and attracted unwanted comments from members of the public. Your continued refusal to take down the aforementioned post has not been helpful and shows a lack of co-operation with myself and Deputy Whip, as we try to deal with this matter."
"Selflessness Holders of public office should act solely in terms of the public interest.
Integrity Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work….
Objectivity Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.
Accountability Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.
Openness Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.
Honesty Holders of public office should be truthful.
Leadership Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs."
It was agreed between the Claimant and Cllr Evans there was no issue over his 'selflessness', 'integrity' or 'honesty'. Cllr Evans said that she considered (albeit did not mention in the Decision, which I accept) that the Claimant's conduct was not consistent with 'objectivity' (which she paraphrased as 'respect') and 'leadership'. The Claimant suggested that Cllr Evans had failed to take into account his conduct was consistent with 'openness' in the sense of being open about Cllr Hibbert's misconduct (which to my mind, is more redolent of 'accountability').
"82. In the light of the case law of the ECtHR, I consider that the Claimant was clearly exercising his right to freedom of expression under Article 10(1) when he spoke at the meeting on 17 April 2018. In my judgment, as an elected representative attending a public meeting called by the [Council] to discuss the highly controversial topic of Green Belt and other development in the village, his statements attracted the enhanced protection afforded to political speech and debate under Article 10. As the ECtHR reiterated in Lombardo, (at [55]), "there is little scope under art.10(2) of the Convention for restrictions on political speech or on debate on questions of public interest". It is beyond argument that development in the village was a matter of public interest…
88. In my judgment, the fact that other councillors disagreed with, and were offended by, the Claimant's assessment of their views and conduct, or that the Claimant's assessment was found to be inaccurate, mistaken or even untruthful, was not a sufficient basis for interfering with his right to express his opinions. In Lombardo, the ECtHR observed that "elected officials and journalists should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact".
89. As the ECtHR reiterated in Jerusalem, at [36]: "…. while freedom of expression is important for everybody, it is especially so for an elected representative of the people. He or she represents the electorate, draws attention to its preoccupations and defends its interests. Accordingly, interferences with the freedom of expression of a….Member of Parliament …. call for the closest scrutiny on the part of the Court."
91. Fourth, the DMO failed to apply well-established principles of law when she concluded, in paragraph 9, that "if criticism is a personal attack or of an offensive nature, it is likely to cross the line of what is acceptable behaviour" and suggested, in paragraph 10, that the Claimant's conduct amounted to bullying. In Oberschlick, at [57], the ECtHR confirmed the principle set out in Lingens that freedom of expression applies equally to statements that "offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" ….". In my judgment, the criticism which the Claimant directed at his fellow councillors enjoyed the protection of Article 10, even though it was found to be a personal attack or offensive. It was open to the other councillors to respond to the criticisms made, both at the meeting and subsequently."
a. Firstly, on reflection, Robinson was a challenge to a statutory complaint adjudicated by a Council Monitoring Officer: a 'public authority' under s.6 Human Rights Act 1998. By contrast, political party unincorporated associations may not exercise public functions in selecting (or presumably disciplining) members, even if the member becomes the Prime Minister: Tortoise Media v Conservative Party [2023] EWHC 3088 (Admin). Therefore, WLG may well not be a public authority under s.6 HRA.
b. Secondly, however, that does not mean that 'freedom of expression' is not a relevant consideration in the exercise of a contractual discretion (c.f. Braganza) for a local party whip deciding whether a councillor's public conduct breaches the association contract rules. The common law recognised the importance of 'freedom of expression' well before the incorporation (in a third legal sense) of the ECHR into domestic law in 1998, as in Derbyshire CC v Times Newspapers [1993] AC 534, where the House of Lords took it into account in developing the common law of defamation. In any event, a 'Wednesbury relevant consideration' need not be a legal principle, as in Braganza where the employer had failed to take into account relevant facts in reaching an irrational conclusion of suicide.
c. However, that point does not introduce the HRA and ECHR 'by the back door'. It simply means that local party decision-makers would be well-advised to consider that the role of a councillor involves the exercise of freedom of expression in a general sense, for which the Nolan principles of 'openness' and 'accountability' may be analogous. That may justify some conduct with which colleagues within the local party may strongly disagree.
In the present case, it suffices to say that I am satisfied that Cllr Evans took into account the relevant Nolan principles in the Decision and in that way gave rational weight to issues of freedom of expression, even if she did not articulate it as such. Indeed, she reminded herself through the WCC Code of Conduct on 'Disrepute':
"As a councillor, you can express, challenge, criticise and disagree with views, ideas, opinions and policies in a robust but civil manner. You should not, however, subject individuals, groups of people or organisations to personal attack"
Insofar as this differs from Art.10 ECHR as explained in Robinson at [91], of course that case related to conduct in council meetings where it is inevitable and necessary that robust views should be exchanged.
a. The factual findings made in the Decision were largely undisputed. The Claimant admitted he had posted the comment to social media and admitted (I have found as a fact the minutes were accurate); that he encouraged the reporter to attend Cllr Hibbert's court hearing; and that he initially refused in the meeting to take down the (edited) post but then made agreement conditional on investigation of Ms F's concerns that I have found irrelevant to the decision which Cllr Evans had to reach on Cllr Hibbert's complaint. The only potential factual question is whether Cllr Evans was entitled to conclude the Claimant's social media post was inaccurate. She plainly was. He edited it himself on 18th August for inaccuracies about Cllr Hibbert going to Nigeria and then misquoted her post from there during the Pandemic.
b. Accordingly, Cllr Evans was entitled to conclude the Claimant had breached the WCC Code in bringing his role and the authority into 'disrepute' by inaccurate public criticism of a colleague, especially since he had also acted privately to encourage press reporting about her which might not otherwise have occurred. He had also refused (or set conditions) to remove the post.
c. Similarly, Cllr Evans was entitled to conclude the Claimant had used his position as a councillor and his contacts with the press to pursue his own grievance against Cllr Hibbert, which included personal grievances which he had already presented to WCC for legitimate investigation. Moreover, he had done so despite previous warning about speaking to the press. Whilst the requirement to check with the Leader's office if approached by the press expired after 3 months, here the Claimant proactively approached the press.
d. Likewise, the tone of the Claimant's initial post on 17th August in particular, suggesting Cllr Hibbert did 'not really live in the UK' was inaccurate, showed a lack of respect and was a personal attack. In fairness, this was mitigated by his amendments to the post the next day, but it remained a personal attack and had to be seen against his previous public criticisms of Cllr Hibbert in 2021, for which he had received a warning.
e. The conclusion of 'harassment' was one which Cllr Evans was entitled to come, especially as it was put to the Claimant in the meeting. The WCC Code of Conduct adopts the definition of 'harassment' in the Protection from Harassment Act 1997, which it paraphrases as 'conduct causing alarm or distress…and must involve such conduct on at least two occasions …[including] repeated attempts to impose unwanted communications in a manner that could be expected to cause distress in any reasonable person'. When the social media post is seen against the background (as Cllr Evans did) of the Claimant encouraging negative press reporting of Cllr Hibbert, previous public criticism of in the press and investigation of her residence, Cllr Evans was rationally entitled to conclude that threshold was met. Whilst she did not consider the conduct was 'bullying' (and it is regrettable that she was advised by Mr Islam that she had to say both when in my judgement she did not, as they are alternatives in the WCC Code), 'bullying' is not stated in the reasoning itself, so that was no more than a 'slight misdirection' which did not affect the conclusion at all (c.f. Braganza at [31]).
For all those reasons, the conclusion of Cllr Evans (and Cllr Wildman) that the Claimant had violated the WCC Code of Conduct in those respects was rational. In reject his complaint that the Decision in that respect breached the contract at all.
Result