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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Evangelou & Ors v McNicol (Rev 1) [2016] EWCA Civ 817 (12 August 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/817.html Cite as: [2016] WLR(D) 460, [2016] EWCA Civ 817, [2016] WLR(D) 470 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
The Hon. Mr Justice Hickinbottom
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE MACUR
and
LORD JUSTICE SALES
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(1) Christine Evangelou (2) Rev. Edward Mungo Lear (3) Hannah Fordham (4) Chris Granger (5) FM (a child by his Litigation Friend HW) |
Claimants/ Respondents |
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- and - |
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Iain McNicol (sued as a representative of all members of the Labour Party except the Claimants) |
Defendant/ Appellant |
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David Goldstone QC and Imogen Proud (instructed by Harrison Grant) for the Claimants/Respondents
Hearing date: 11 August 2016
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Crown Copyright ©
Lord Justice Beatson :
I. Introduction
II .The Labour Party's 2016 Rule Book:
"Clause I.
Name and objects
4. The Party shall give effect, as far as may be practicable, to the principles from time to time approved by Party conference.
Clause II.
Party structure and affiliated
Organisations
1. There shall be a National Executive Committee of the Party (the 'NEC') which shall, subject to the control and directions of Party conference, be the administrative authority of the Party.
Clause VI.
Labour Party Conference
1. The work of the Party shall be under the direction and control of Party conference Party conference shall meet regularly once in every year and also at such other times as it may be convened by the NEC.
Clause VIII.
The National Executive Committee
2. The primary purpose of the NEC shall be to provide a strategic direction for the Party as a whole
3. In furtherance of its primary purpose and key functions, the duties and powers of the NEC shall include:
A. to uphold and enforce the constitution, rules and standing orders of the Party and to take any action it deems necessary for such purpose
H. to propose to Party conference such amendments to the constitution, rules and standing orders as may be deemed desirable; also, in accordance with the rules, to submit to the Party conference such resolutions and declarations affecting the programme, principles and policies of the Party as in its view may be necessitated by political circumstances.
M. to issue guidance, give rulings and bring forward rule changes to Party conference to ensure continued compliance with the Party's legal and financial responsibilities
4. The NEC shall have the power to adjudicate in disputes that may arise at any level of the Party, including between CLPs ["Constituency Labour Parties"], affiliated organisations and other Party units, and between CLPs, other Party units and individuals in those units and in disputes which occur between individual members or within the Party organisation. Where the rules do not meet the particular circumstances, the NEC may have regard to national or local custom and practice as the case may require. The NEC's decisions shall be final and binding on all organisations, units and individuals concerned.
Clause X.
Scope of rules
5. For the avoidance of any doubt, any dispute as to the meaning, interpretation or general application of the constitution, standing orders and rules of the Party or any unit of the Party shall be referred to the NEC for determination, and the decision of the NEC thereupon shall be final and conclusive for all purposes. The decision of the NEC subject to any modification by Party conference as to the meaning and effect of any rule or any part of this constitution and rules shall be final."
Chapter 2 of the 2016 Rule Book makes provision for "Membership Rules". Its material parts are:
"Clause I.
Conditions of membership
1. There shall be individual members of the Labour Party who shall pay a subscription in accordance with these rules, subject to a minimum as laid down in Clause III below.
2. The term 'individual members of the Party' shall encompass all grades of membership laid down in Clause III below; all such members shall have equivalent rights within all units of the Party except as prescribed in these rules.
Clause II.
Membership procedures
1. Individual members of the Party shall be recruited into membership in accordance with these rules and any applicable NEC guidelines which shall be issued to Party units and affiliated organisations from time to time
2. Without prejudice to any other provision of these rules, and without prejudice to its powers under Chapter 1.VII, the NEC shall be empowered to determine any dispute or question which may arise in respect of membership of the Party, either by considering the matter itself or by referring the matter to the NEC Disputes Panel for a decision. In such cases the NEC's decision, or the decision of the Disputes Panel as approved by the NEC, shall be final and binding.
4. The NEC shall issue procedural guidelines on issues relating to membership from time to time ".
"Clause I.
General Principles
1. Internal Party elections for officer posts and the membership of national committees shall be conducted in a fair, open and transparent manner, in accordance with the constitutional rules of the Party and any appropriate NEC guidelines.
Clause II.
Procedural rules for elections for national officers of the Party
1. General
A. The following procedures provide a rules framework which, unless varied by the consent of the NEC, shall be followed when conducting elections for Party officers. The NEC will also issue procedural guidelines on nominations, timetable, codes of conduct for candidates and other matters relating to the conduct of these elections.
2. Election of leader and deputy leader.
A. The leader and deputy leader shall be elected separately in accordance with rule C below
C. Voting
iii. An Independent Scrutineer will be appointed by the Returning Officer to oversee and verify the ballot, and the results shall be declared at a session of Party Conference.iv. The timetable for the election, including any freeze date, and the procedures for agreeing the list of those eligible to vote must be approved by the Independent Scrutineer.v. The procedures shall ensure that each candidate has equal access to the eligible electorate and has equal treatment in all other matters pertaining to the election.vi. Votes shall be cast in a single section, by Labour Party members, affiliated supporters and registered supporters.vii. The precise eligibility criteria shall be defined by the National Executive Committee and set out in procedural guidelines and in each annual report to conference.viii. No person shall be entitled to more than one vote. Votes shall be cast by each individual and counted on the basis of one person one vote".
"Members enjoy the formal democratic rights of Party membership as stated within the rules. Party members have the right to participate in the formal process of the Party, vote at Party meetings, stand for Party office and elected office as stated within the rules."
It also states that Labour supporters will be encouraged to join the Party as full members.
III. The approach to the Rules of an unincorporated association
(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 Re Tobacco Trade Benevolent Society (Sinclair v Finlay) [1958] 3 All ER 353 at 355B C.
"Where a security document secures a number of creditors it would be quite wrong to take account of circumstances which are not known to all of them. In this type of case it is the wording of the instrument which is paramount. The instrument must be interpreted as a whole in the light of the commercial intention which may be inferred from the face of the instrument and from the nature of the debtor's business. Detailed semantic analysis must give way to business common sense: The Antaios [1985] AC 191, 201".
"The fact that 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".
IV. The background
V. The judgment below
"Chapter 4, clause II(2)(C)(vi), read with Chapter 2, clause I(2), indicates that all members are able to vote in a leadership election unless excluded by some other provision in the Rule Book. That reflects the general democratic foundations of the Party, the Collins review (whence Chapter 4, clause II(2)(C)(vi) is directly derived) which intended to increase the leadership voting constituency, and the Party's 2015 annual report."
VI. Grounds of appeal
VII. Discussion
"It is plain from these authorities that a decision-maker's discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality. The concern is that the discretion should not be abused. Reasonableness and unreasonableness are also concepts deployed in this context, but only in a sense analogous to Wednesbury unreasonableness, not in the sense in which that expression is used when speaking of the duty to take reasonable care or otherwise deploying entirely objective criteria ".
That approach was applied in Braganza v BP Shipping [2015] UKSC 17, [2015] 1 WLR 1661, in which Baroness Hale stated that the principles to be applied were the same as those applied in public law cases, i.e. not only that the decision is made rationally and in good faith, but also that it is made consistently with its contractual purpose and, we add, that all relevant matters have been taken into account and irrelevant matters not taken into account. See also the judgment of Lewison LJ in Mid-Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (t/a Medirest) [2013] EWCA Civ 200, [2013] BLR 265.