England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		23 April 2008

1. This claim arises from a dispute about an election in November 2007 for the post of Chairman of the Korean Residents Society ("the Society") which is a registered charity with over 40,000 members drawn from the South Korean community in the United Kingdom and the businesses connected with it. The Claimant Mr Park narrowly lost the election to the First Defendant Mr Cho. The Second Defendant Mr Seok was Chairman until 31 December 2007. The Defendants are sued as "acting on behalf of" the Society. Mr Park claims that the express and implied terms of the contract governing the Society's membership were broken in the course of the election and he seeks an order that it be re-run. He will not himself stand as a candidate in any new election. The Defendants deny that there was unfairness or breach of contract. They say further that there is no contractual remedy and that if Mr Park wants a new election he should seek that by operating the Society's constitution.
2. This case came before His Honour Judge Seymour QC on 5 February 2008. The judge granted an injunction in terms more limited than Mr Park had sought and ordered that there should be a speedy trial. The trial took place between 10 and 12 March. In view of the urgency of the matter I, contrary to my usual practice, informed the parties that the Claimant had been successful but only gave short summary reasons. In this judgment I set out those reasons more fully.

The Society

3. The Society was founded some fifty years ago to represent South Korean people who live in the UK. Its purpose is:-

"To promote friendship and prosperity between members and to improve relationships and cultural exchange between Korea and the UK in order to contribute to the development of the image of Korea in the UK." (Constitution clause 3)

The Society arranges social and cultural events and is also deeply involved in issues relevant to the Korean community. The community is an active and successful one and the position of Chairman (sometimes referred to as President) has considerable prestige. Many of the over 40,000 South Korean people resident in the UK live in the New Malden and Kingston areas where the Society is based. The Society organises a large annual festival of Korean culture. It raises issues with the Korean Embassy and the Home Office. It gives money to good causes including various Korean schools in the UK. All Koreans who are over the age of 18 and who have lived in the United Kingdom for more than a year or intend to do so are full members of the Society. It follows that the role of the Chairman, which is held for a two year term, carries responsibility and prestige. But this electoral dispute needs to be seen in proportion. The Society may have 40,000 members but only 125 voted in this disputed election. To set out the issues I must first summarise the Society's constitution. That constitution is in the Korean language and several competing English translations are available. Fortunately the parties, who conducted this highly charged litigation for the most part in a very polite and respectful manner, do not seriously disagree about translation. In this judgment I use the wording of the translations even when the English is rough and ready.

The Constitution

"Clause 1: (title) This association is called the Korean Residents Society in the UK.

Clause 3: (purpose) This association aims to promote friendship and prosperity between members and to improve relationships and cultural exchange between Korea and the UK in order to contribute to the development of the image of Korea in the UK.

Clause 5: (classification) this association consists of members as follows:

1. Full membership : A Korean who is over 18 years old and has lived in the UK or the Republic of Ireland for more than one year. Once he or she becomes a full member, this confers all the rights and duties as laid down for a full member who is appointed according to the rules of the association. Any member who has failed to pay the annual membership fee, including group membership fee, shall have no voting rights, is not eligible for election, and has no rights to request the calling of an extraordinary general meeting.

Clause 6: (organization) This association has officers as follows.

1 president / less than 8 vice presidents / less than 60 directors / 1 secretary general / 2 general managers

Clause 9: Election of officers

1. The President is elected by indirect election through an Electoral College in the event of their being more than one candidate, according to article 26, item 1.

2. The Electoral College includes the existing directors and consists of people considered as suitable to represent the Korean association in terms of their social status, profession and age. There are separate regulations regarding the specific means of election and reaching a decision.

Clause 10: Tenure

1. The tenure of the President is two years and he may not be reappointed.

Clause 11: (President) The President represents this association and is in charge of general affairs and acts as a chairman in every meeting.

Chapter 5 Meetings

Clause 16: (Classification) Meetings consists of Annual General Meetings and Extraordinary General Meetings.

Clause 17: ( Regular General Meeting) The Annual General Meeting will be held once a year at an appointed date in December and will be summoned by the President. It will deal with the following matters:

1. Report of business plans, the progress of the business and treasurer's report.

2. Election of the President (sole candidate), Reconfirmation (plural numbers of candidates)

2. The election of the Chairman (if there is a single candidate only), the approval of the elected Chairman (if there are multiple candidates)

3. Any other matters considered necessary for a decision of the Annual General Meeting

Clause 18: (Extraordinary General Meeting)

1. An Extraordinary General Meeting can be called by the President in response to a written request by more than 60 full members who paid the annual membership fee or when deemed necessary by the President or by the request through the resolution of the Board of Directors.

2. Following the request referred to in clause 31, if the President fails to take procedures within 10 days for calling an Extraordinary General Meeting, that person or persons who initiated the request may proceed to call such a meeting.

Clause 20: (Resolution)

1. All matters arising at the Annual General Meeting will be resolved by the approval of a majority vote of full members in attendance. Constitutional changes will be decided by the approval of two third majority vote of full members in attendance.

1. Resolutions on all agenda made by the vote of a majority of full members present, provided that the amendment of this Memorandum is resolved by the vote of two thirds or more full members present.

2. Full members can vote by proxy. In this case, the acting representative should provide evidence such as a letter of attorney authorizing the representative to act as proxy.

Clause 26: (Eligibility for election) Any person wishing to run for election must complete the appropriate application form along with a letter of recommendation signed by one third of the Board of Directors or more than 60 full members who paid annual membership fee and should submit the form to the Bureau of the Korean Residents Society Election Committee by the 31st October 17:00pm.

Clause 27: (Revision of the Articles) The Articles can be revised at the General Meeting which can be called by the resolution of the majority of the Board of Directors registered or by the request of more than 60 full members, according to Clause 20 Item 1.

Clause 28: (Separate Regulations)

1. In the event of matters arising which are not covered by the terms of these articles, the Board of Directors will be responsible for establishing separate regulations as necessary.

2. Any additional conditions which may be required, in terms of operation of regulations, will be governed by the general practice, established precedents.

Supplementary Provisions

Articles regarding the Korean Residents Society Election Committee

Chapter 1 Voting Rights

Clause 1 (Right to Vote) Full Members of the Korean Residents Society, who have paid the membership fee for 2 or more consecutive years, including the year of election, have the right to vote for the eligible candidates.

Chapter 2 Election Committee officials (ECO)

Clause 2 (Purpose) ECO to organize a fair election

Clause 3

3-1 The current President of the Korean Residents Society appoints 5-9 officials from the list below, to serve as an Election Committee Official (ECO), and forms the board of ECO by the 31^st August. The expiry of the assignment of the ECO is until the 31^st December of the year of election.

(1) Past President of the Korean Residents Society

(2) Respected Full member of the Korean Residents Society having a good reputation

3-2 Each candidate for President can recommend 2 voting witness.

3-3 The Chairman of the Election Committee is elected among and by the Election Committee officials themselves.

3-4 All matters which are related to election will be decided by a majority vote of Election Committee if there is any absence of any specific procedures laid down in the constitution of the Korean Residents Society.

3-5 The duties of the Election Committee are as follows.

(1) The ECO should exert their best endeavours to exercise fair election keeping neutrality.

(2) According to the constitution, ECO should examine whether all those who vote and all those who stand for election are eligible to do so.

(3) During the election campaign, they should scrutinize the fair conduct of all proceedings.

(4) Announce the elected President of the Korean Residents Society publicly in the press media on a spot.

Clause 4 (Registration as a candidate) The candidate should register with the Bureau, according to the clause 26 of the Korean Residents Society constitution, by the 31^st of October by 17.00pm, handing in the application form to run as candidate, CV, letters of recommendation of which forms given out by the Election Committee, along with the deposit fee of five thousand pounds sterling.

Clause 7 (Election) Election for voting for the President will be conducted at a place selected by the Board of the Election Committee, on the Saturday on the 4^th week of November between 10am – 5 pm.

The voting is only one time, and only one vote per person is allowed. The candidate who has received the biggest number of votes, including the votes of absentee voters, will be elected as President.

…Only one vote is allowed to each and the candidate with the largest votes including absentee ballots is elected as Chairman.

Clause 8 (Announcement of the Elected Person) The Election Committee announce the final result, and the new elected president, and make a public notice in a press media on the spot."

Facts agreed or not greatly in dispute

4. Until 2002 the Chairman was elected by the Board of Directors. In 2002 the Chairman, Mr Park, was elected by the board but presented to the Annual General Meeting. The first election in which the vote was open to members beyond the board was in 2003. In 2005 there was no election because Mr Seok was the sole candidate. In July 2006 the constitution was changed and clauses 3-5, 7 and 8 amended so that the duties of the Election Committee included announcing the elected President to the media, with the provisions for voting and announcement of the final result now found in clauses 7 and 8.
5. On 29 August 2007 Mr Seok, as required by the constitution, issued invitations to ten senior members of the Society, including Mr Cho, the First Defendant, to form the Election Committee. On 10 September the Election Committee held its first meeting and Mr JW Kim (who gave evidence) was elected Chairman. He recalled that Mr Cho acted as secretary. At that point, according to Mr Kim, Mr Cho participated in the decision making at the meeting about what rules would apply for the election. Mr Cho saw the matter as being more of a vague discussion of several topics. On 14 September the rules were published in the "Euro Journal" and the "Korea Post", and on 18 September the "Korean News". Mr Park controls the "Korea Post". Mr Kim's witness statement does not refer to Mr Cho as being a member of the Election Committee. This is I am sure an oversight. Mr Cho was a member of the committee but resigned either, according to Mr Kim's recollection, immediately after the first meeting or, as Mr Seok remembers, in person before the second meeting on 1 October. Mr Park's assertion that Mr Seok was known to support Mr Cho's election as his successor was not challenged.
6. On 29 October Mr Park signed his application to be a candidate for Chairman agreeing to abide by the constitution and the election rules. The other candidates were Mr Cho and Mr JH Kim (who is not connected with Mr JW Kim the Chairman of the Election Committee).
7. Mr JW Kim obtained from Mr Seok a list of the members and companies who had paid membership fees in 2006 and 2007 and who were therefore eligible to vote. The Election Committee decided that each company member should have one vote and the senior representative of each would be invited to cast it. The committee devised a voting system by which each voting slip was authenticated and delivered by Royal Mail Special Delivery. The system would ensure that an authentic slip was properly sent to the relevant company and tracked through to its return. That system did not provide for verification of the identity of the person casting the company's vote.
8. Absentee voters were entitled to participate in the election. In 2003 members based outside London and Surrey were entitled to such a vote. Those within London and Surrey were not entitled to an absentee vote unless they showed a good reason in writing. A notice issued on 18 September said "voting by mail will be processed by the same method as in the election of 2003". A later, undated, announcement states "members who want to vote as absentee must apply … to the Election Commission office before and on 9^th of November". A subsequent announcement stated "if you would be unable to do an attending vote due to a business trip or an unavoidable situation etc … you will be able to do voting by mail and please contact Election Committee by a phone call or e-mail to apply for this". Mr Kim's evidence was that the decision to extend and encourage absentee voting was probably taken on 1 October.
9. Mr Kim explained in evidence that the Election Committee wished to ensure that as many voters as possible were encouraged to participate and for this reason decided to accept absentee ballots from those who were unable to vote on the day, whatever their reasons. As the committee anticipated that a significant proportion of the company representatives (as opposed to the other categories of voter) were likely to be away on trips or unavailable on Saturday, 24 November it was decided that they would be contacted to find out whether they wished to participate in the election with an absentee vote. The Election Committee had only one part-time administrative staff member so, as Mr Kim puts its, "it was decided to ask the Second Defendant who had several more staff members to provide additional administrative support for this specific task". Mr Seok was able to supply four staff for the days of 7 and 8 November. The staff were instructed (but according to Mr Seok not by him) to inform prospective voters of relevant information and then to ask if they would like an absentee vote. This exercise resulted in a list of 29 people to whom absentee ballot papers were to be sent and these were despatched on 14 November. One of the staff members, Ms Yun, who was called as a witness by Mr Park, says that she was instructed by Mr Seok not to make calls to Samsung companies. Her recollection was challenged, although not directly, by Mr Seok.
10. On 16 November the Election Committee invited the candidates to witness the receipt of the returned absentee ballot papers. Mr Park did not attend. The representative from his "election camp" sent an e-mail the day before saying that they would not attend the meeting "as we do not accept the list of Absentee Voters which is made up by the phone call to each individual voter by the staff of KRS". All three candidates were represented on 19 and 20 November when the received Special Delivery envelopes were placed in a sealed ballot box for use on election day 24 November.
11. On 22 November representatives of a Samsung company and the Korea Development Bank complained to Mr Kim about not receiving absentee ballot papers. After partially successful attempts to contact representatives of Korea Development Bank and the three relevant Samsung companies the Election Committee decided to discard these ballots, they having been received in circumstances where the voters concerned had not or may not have completed them. Mr Kim says that at this meeting, attended by the candidates or their representatives, no one suggested that the remaining ballots should be discarded. The four companies concerned were informed that their ballots had been discarded but they could if they wished attend the next day, 24 November. Mr BJ Cho who attended the meeting on behalf of Mr Park recalls that he argued that no absentee votes should be counted in the circumstances.
12. The election took place from 10.00 am to 5.00 pm on Saturday, 24 November and the position once the votes of those attending had been counted was that Mr Park had 42, Mr Cho 41 and Mr JH Kim 26. Before the absentee ballots were counted Mr Park and Mr BJ Cho argued forcefully that none of the absentee ballots should be counted. One of the four disallowed voters, Korea Development Bank attended in person to vote but the other three did not. There were apparently then angry scenes followed by another Election Committee meeting at 6.00 pm. The committee decided to discard one further Samsung vote leaving 19 absentee ballots to count. In the event four of the absentee ballots went to Mr Park, 12 to Mr Cho and 2 to Mr JH Kim with one spoiled paper. The final result was then announced with Mr Cho winning with 53 votes, Mr Park receiving 46 and Mr JH Kim 26.
13. In December 2007 the Committee carried out further investigations into the Samsung votes. It is unclear quite what this investigation into the fraud consisted of. By this point the committee had received a copy of a message dated 29 November from Mr Jeon a Human Resources Manager at Samsung Electronics Europe, apparently that company's contact point with the Society, which said:-

"I hereby confirm that Samsung Europe has not been involved in the election of 2007 Korean Residents Society Chairman in any form. Young Rok Cho cast the absentee ballots personally without approval of our company. Samsung was never requested for the absentee ballot (papers)".

On 6 December the Committee invited Samsung to provide assistance on the issue. On 10 December the Committee held another meeting which resulted in a publication of the result on 13 December with a statement that there was no fraud in the Samsung votes.

It does seem surprising that the Election Committee concluded on 10 December that there had been no fraud in the Samsung votes. By that stage they had received a response from Mr Jeon of Samsung. This message dated 9 December pointed out the practical difficulties of arranging an interview with the company's President but added "if necessary we would like to provide you with President's standing position by a letter or the contents of the interview by mail" and making it clear that he and Mr YR Cho and other staff would be available for interview. He added "I would request Election Committee to consider these and arrange the date for interview and let me know the date".

Evidence

14. The files consist of a considerable number of the documents in Korean which have been translated with commendable speed. The parties and their lawyers helpfully took a realistic approach to the quality of the translations and the significance of the differences. Witnesses gave evidence in English even when in less hurried circumstances they might have preferred and certainly could have insisted upon having an interpreter. I make due allowance for this and thank them for their assistance.
15. All the witnesses about the election process were, it seemed to me, truthful and doing their best to assist the court. Some witnesses were mistaken about particular matters, particularly of detail but this was, as I saw it, because of misrecollection not because of any wish to state anything other than the truth. Furthermore a number of witnesses on both sides were frank and straightforward, willing to accept matters that did not assist their case and respectful towards the opposing party. As it happens the differences of recollection between the parties relevant to the issues I have to decide are limited and I therefore refer to individual witnesses only briefly. Some of the criticisms of Mr Park relied on by the Defendants were particularly irrelevant.
16. Mr Park is, as I have mentioned, the publisher of a paper for Koreans in the UK and has been active in the community for some years having been Chairman in 2003. He freely admitted that it would be to the advantage of his businesses, which include as I understood it travel agencies, for him to become Chairman. He accepted that he is a forceful individual and indeed that some might describe him as a bully. Against that he was frank and straightforward. For example it was put to him that his conduct in approaching members of the community in a restaurant had been impolite. He replied that he thought it had not been, but that if others thought so he must have been rude and he apologised. Mr Park's feelings about the election ran high but no higher than that of those supporting other candidates.
17. Mr BJ Cho gave evidence most relevantly about the meeting on 23 November and I have already referred to this. He recalled that the meeting on 23 November was about three hours long, there had been no time for more investigations, the election was the next day. He felt that at the very least the four votes should be discounted but was disappointed that the committee "declined to take any further steps". Bearing in mind what Mr Kim says about that meeting I conclude that the more forceful complaints about this decision were made after 23 November and not at the meeting on that day.
18. Mr Park called Mr CS Song a previous candidate for Chairman whose evidence did not seem to me directly relevant. Mr Park also relied upon a witness statement from a Mr Yoon but its contents appeared to be not only controversial but irrelevant.
19. Ms Kyeong Ha Yun worked as a temporary clerk at the Society for two months at the end of November 2007 and she described how she contacted Mr Park after reading about apparently fraudulent votes being cast by Mr Cho's son. She had approached Mr Park to explain her role in working when seconded by Mr Seok to the Society. That work had included being asked not to contact the Samsung companies. Her recollection was challenged in cross-examination by reference to Mr Park's e-mail of 9 November. That e-mail is capable of two interpretations. Although the matter is not of great significance Ms Yun seemed to be a straightforward witness and although it was suggested that she was a disgruntled ex employee it seemed to me unlikely that she would go so far as to advocate such a plan.
20. Mr TH Cho was elected Chairman in the disputed election. He has worked in the banking industry for more that twenty five years and is currently employed as a commercial property surveyor in the City. His ties with the City and larger companies mean that he is seen as being more likely to attract support from the larger Korean companies in the UK than was Mr Park. Mr TH Cho frankly pointed out in his witness statement that "coupled with the fact that at the 2003 election the Claimant had not enjoyed the companies' support and because of my City background and contacts I hoped that the companies would support me and that I would receive a high proportion of their votes. At the same time I expected that many of the companies' representatives would vote by absentee ballot".
21. Mr Seok who was Chairman until December 2007 explained how he came to provide administrative support to the Election Committee. In his view Ms Yun was a unsatisfactory casual worker. He himself called on none of the companies to suggest that they exercise an absentee vote but he may have discussed with some of them whom they should vote for. He was unaware until after the election that Mr TH Cho's son worked for Samsung.
22. Mr MY Choi, the most senior member of the Election Committee had himself been Chairman in 1998 and 1999. He explained his role in events. The Defendants also relied upon statements from Mr Cho and Mr Chae neither of which added relevant evidence to the picture.
23. Mr JW Kim was Chairman in 1994 and 1995. I do not need to say anything further about his helpful evidence than I have already.

Samsung Fraud?

24. As I will explain below it is not necessary for my decision to decide what if any fraud took place and I lack the information and evidence necessary to do so. I should however refer to this matter as it attracted considerable controversy and, whatever the truth, gave rise to legitimate concerns about the fairness of the election process.
25. Mr TH Cho's son, Mr YR Cho, lives in the same house as his father and works for Samsung at an address in Chertsey. Five of the Samsung companies whose senior representatives were eligible to vote are based at the same Chertsey address. One of Mr YR Cho's jobs was to receive letters addressed to senior management and deal with them. Mr YR Cho said in evidence that he was told by his immediate supervisor Mr Jeon to find out how to send the voting papers back. He says that he was told by Mr Jeon to fill them in and send them back. He did this having first heard from Mr IS Kim, the President of Samsung Electronics that he should cast the votes for his father. Mr Kim told him to do this at a meeting attended by Mr Jeon. He also said that in the washrooms later Mr Kim told him directly that his father could count on at least five votes from Samsung. Mr Cho said that subject to the supervision of Mr Jeon he then ensured that the votes were cast and sent back to the society.
26. Mr Jeon was not called to give evidence and there is therefore no witness to contradict Mr Cho's account. Against that there is considerable evidence from the very fact of the matters reported to the Election Committee in November that senior people within Samsung believed there to be irregularities. Furthermore, Mr Jeon's correspondence is flatly contradictory to Mr Cho's account. A further difficulty is that Mr Cho, who speaks excellent English, seemed to me an unsatisfactory witness. He appeared dismissive of pertinent questions and (in contrast to his father) unconvincing about various matters such as the limited contact he claimed to have with his parents at home. Despite this unconvincing performance the fact remains that no witness contradicts Mr Cho and I am not in a position to reach conclusions about what actually happened within Samsung.

Annual General Meeting

27. Clause 17(2) of the constitution requires that the election of the Chairman receive approval (or, on the Defendants' translation, the confirmation or reconfirmation) from the members at the Annual General Meeting. Voting and non-voting members attend the AGM but of course only the former can vote.
28. The AGM on 29 December was a lively one subject to disruption particularly, as they admitted, through the intervention of Mr Park and his supporters. Mr Park recorded the proceedings but deleted part of the tape. By the end of the evidence it was common ground that at the AGM Mr Seok said this:-

"AGM is explained at the Clause No 17 of the Constitution. In case of plural Candidates, "In-Joon" of the Chairman is described at Clause 17.2. As we checked with a lawyer, "In Joon" means the confirmation.

The Election Committee already announced the result of the Election in 3 Korean newspaper as public notice.

In December the Election Committee finally declared that Mr TH Cho was elected as the New Chairman of the Society.

So I confirm that Mr TH Cho to be the New Chairman of the Society for the period of 01 January 2008 until 31 December 2009."

29. These words were it seems followed by repeated applause. There was however no vote or other process of confirmation or approval.
30. Mr Leiper submits that without a formal approval there cannot be a proper appointment. Applause cannot be sufficient. It was for the members, not Mr Seok to give that approval.
31. Mr Coplin submits that whether the word in English is "confirmation" or "approval" clause 17(2) must be given a sensible interpretation and construed in the context of the constitution as a whole. As clause 7 is specific about how the election should take place the act at the AGM must be a formality. Further in substance the meeting did give approval by its applause.
32. On the assumption that the constitution creates a contract subject to English law it seems to me that the role of clause 17(2) as regards approval is this. The election has to be carried out in accordance with the other provisions of the constitution. Once the process is complete it must be confirmed at the AGM. I take this to be a procedure similar to those one sees in other corporate contexts. The election having been completed it is presented to the members for approval as a formality. A member is however free to object if he or she so wishes, not on the basis that the objector's preferred candidate should displace the successful one but if there is something apparently objectionable or contrary to the rules in the procedure adopted. As in so many English contexts in almost every case that process is a formality but it must be carried out. It was not carried out in this case for understandable reasons; a lack of experience, the rule was a new one being applied by a lay person, the meeting was disrupted by Mr Park and his supporters. The absence of approval does not invalidate the election but the process is not complete until that step has been accomplished.

Absentee votes – Claimant's Submissions

33. Mr Leiper submits that the Constitution clearly forms a contract between full members, at the very least those who pay their annual membership fee. The fact that there are non-paying members does not undermine that. He relies on the principles summarised and implicit in the observations of Hoffmann LJ in R –v– Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909 at 933:-

"In the present case, however, the remedies in private law available to the Aga Khan seem to me entirely adequate. He has a contract with the Jockey Club, both as a registered owner and by virtue of having entered his horse in the Oaks. The club has an implied obligation under the contract to conduct its disciplinary proceedings fairly. If it has not done so, the Aga Khan can obtain a declaration that the decision was ineffective (I avoid the slippery word void) and, if necessary, an injunction to restrain the club from doing anything to implement it. No injustice is therefore likely to be caused in the present case by the denial of a public law remedy."

Mr Coplin says that these principles cannot apply in this case where the Claimant is suing non-paying members and other members who have paid but are not entitled to vote. He also submits that the court will not take cognisance of the rules of a voluntary society entered into merely for the regulation of its own affairs, save to protect the disposal and administration of property relying upon Forbes –v– Eden (1867) LR 1Sc & Div 568 at 581. This was a case about the Canons of the Free Church of Scotland. This decision is far removed from modern conditions and concerns a structure unlike the Society's Constitution, a document which resembles those of many charities and private clubs and to some extent the articles of a company. Consideration is essential for a contract. However, absence of consideration is not a fashionable objection to agreed arrangements. Consideration will be readily found not just in the payment of money but in the participation in a venture including, it seems to me, becoming a member of the Society. Even if I were wrong about that there is consideration as regards Mr Park and all members who pay their fee. Further, if the court did not find the existence of a contract in these situations it would be difficult for members to deal with oppression or breaches of rules by a majority or a powerful minority of members. This does not mean that the court is exercising a general supervision over the Society or interfering with its affairs, it does however have a jurisdiction to deal with breaches of contractual rules. The Claimant relies essentially upon an implied term that the members of the Society will as regards the rules relevant to this election treat each other fairly and in accordance with the Society's constitution and general custom and practice. In the Particulars of Claim Mr Park claims that absentee votes were dealt with in breach of this term as was the approval procedure at the Annual General Meeting. Mr Coplin, while objecting to a claim for the existence of a contractual remedy, did not contest the implication of a term of some kind. He submitted that the only claims which could properly be made were that the Election Committee's decision was reached in breach of the principles of natural justice and/or was not reasonably fair and/or was made ultra vires. The court is cautious about the implication of terms into a written contract. It must be shown, in essence, that the words sought to be implied give expression to what must be taken to have been a mutual intention of the parties as reasonable people. Mr Leiper's suggested term meets that requirement. I also had no hesitation in allowing him to amend the pleading to address the composition of the Election Committee, a change based on information that emerged from the Defendants fully only at trial.

34. Mr Leiper submits that it was a breach of that implied term for Mr Cho who was or was likely to be a candidate to participate in the Election Committee, it was inappropriate for absentee voting to be extended to favour the voters from Korean companies and in particular to drum up this particular constituency for votes. That process should not have been conducted by or on behalf of the Society itself and its Election Committee. At a later stage when it was clear that five out of twenty four votes were potentially fraudulent the absentee voting process should have been abandoned.
35. The Defendants deplore the fact that proceedings were brought and are critical of Mr Park and his supporters about a variety of matters. These feelings may be understandable but they are largely irrelevant to the legal position. The Defendants point out that it is for the Election Committee to carry out its difficult task as best it can and it is not for the court to second guess that arduous voluntary work. The committee acted carefully on 23 November in dealing with a difficult situation. The questionable votes were all discounted and there was no reason why the remaining nineteen should not be counted. Decisions about who should be absentee voters were taken by the Election Committee and the calls were made on its instruction. Mr Seok assisted by providing help but did not take the relevant decisions. The Defendants submit that what the Election Committee did throughout the absentee voting process was consistent with the rules and within its discretion.

Decision

36. There is, for the reasons that I have given, a contractual commitment between the members of the Society, at least those who have paid subscriptions. That commitment contains the express terms set out in the Society's constitution but also the implied term pleaded.
37. The Election Committee was obliged to organise a "fair election" and to "exert their best endeavours to exercise fair election keeping neutrality". In an election that means not only acting fairly but being seen to do so. In this case the Election Committee included, at least for a period, the First Defendant Mr TH Cho, who became one of the candidates. Mr Cho freely volunteered that as a candidate he was likely to attract particular support from Korean companies. Those companies were the members most likely to benefit from the provision of absentee votes. At or shortly after a meeting attended by Mr Cho the Committee decided, for reasons that do not seem convincing, to extend the availability of absentee voting. The Committee also, with the assistance of staff provided by the Second Defendant Mr Seok, took steps actively to solicit absentee voters and to facilitate the process of voting. Evidence later came to light of significant irregularities in four or five of the absentee votes in circumstances in which the First Defendant's son certainly had a role although not necessarily an improper or dishonest one. It was understandable, at one level that the Committee should disqualify the questionable votes alone but in the charged atmosphere of an election this was an inadequate response. While it seems that neither of the two candidates who were later unsuccessful did anything on the day of the Committee's decision to challenge it, it was very soon clear that they actively opposed it. It is not open to the Defendants to suggest that the committee's decision was endorsed by Mr Park or indeed by Mr JH Kim. The investigation carried out by the Committee into the voting process after the election was inadequate. The committee published its conclusion that there was no evidence that any fraud had been committed at a time when offers of highly material information had been made to it from Samsung but not taken up.The result of the election should have been put to the members for approval or confirmation at the Annual General Meeting. This did not happen partly through the inexperience of those conducting the meeting and partly as a result of inappropriate and regrettable disruption by Mr Park and his supporters.
38. All these factors and events give an impression of apparent bias with the Election Committee taking decisions calculated to benefit one candidate (who was briefly a member of that committee) and of taking inadequate action to investigate and deal with well-founded allegations of impropriety (which I emphasise have not yet been proven) which would also have benefited Mr Cho's candidacy. I have had the benefit of seeing and hearing Mr Cho and I have no reason to doubt his honesty, good faith and innocence in all these matters. At worst it may have been some excessive zeal on behalf of some of those supporting him. The impression given however is of an election conducted by a committee in a way calculated to benefit Mr Cho's candidacy at the expense of those of Mr Park and Mr J Kim. That was not fair. The Election Committee did not "exert its best endeavours to exercise fair election keeping neutrality" and did not "serve to organise a fair election". It follows that this was a breach of the Claimant's contractual rights.
39. There are disputes, set out in the written submissions, about what if any remedies are available. At this stage of the action these considerations seem to me to be irrelevant. That is because the Society is a reputable organisation of high standing whose senior members are honest and leading members of their community. My impression is that the members of the Society would be likely to give effect to any declaration which this court made as to the rights of the parties. If a declaration were granted then I have no doubt that the members could work together to conduct a further election which complies with the Society's constitution. If they did not then the court would consider a stronger remedy.

Conclusion

40. I shall be grateful if Counsel for the parties will let me have a list of corrections of the usual kind and a note of any further relief that they seek not less than 48 hours before this judgment is handed down.

GH010614/MVF