Sivanandan v Hackney Action For Racial Equality Executive Committee

An appeal should be allowed where a preliminary issue is decided on an incomplete factual basis and the claimant was not permitted to adduce evidence material to that issue. Whether an organisation is open to a section of the public is a question of fact, to be determined on the evidence. Its constitution is relevant, but the court must also consider whether the constitutional rules reflect the practical reality. A procedural decision which prevents that evidence from being heard may make the lower court’s decision unjust because of a serious procedural irregularity.

The appellant claimed that her exclusion from membership rights and internal procedures of the Hackney Action for Racial Equality involved racial and sexual discrimination. The county court judge decided, on a preliminary issue, that the organisation was effectively a private club and did not provide goods, facilities or services to the public or a section of the public for the purposes of the Sex Discrimination Act 1975. The sexual discrimination claims were struck out, although the racial discrimination claim remained live.

The appellant appealed on the basis that she had not been allowed to call evidence that, in practice, any member of the public living or working in Hackney could join. The central issue was whether the preliminary issue had been fairly and properly determined.

1. The appeal was allowed. The order striking out the claims under sections 1, 4 and 29 of the Sex Discrimination Act 1975 was quashed, and the matter was remitted to the county court for hearing in its entirety.

2. Under CPR 52 rule 11(3)(b), an appeal must be allowed where the lower court’s decision was unjust because of a serious procedural or other irregularity. The preliminary issue had been framed inadequately and the judge decided it more broadly than the issue as formulated.

3. Whether an organisation provides facilities or services to a section of the public is not determined solely by construing its constitution. The question whether those admitted to membership fall outside that expression is a question of fact. The constitution is evidence, but parties may also adduce evidence about how membership operates in practice. This principle was stated in Charter v Race Relations Board [1973] AC 868.

4. The appellant had indicated, although less explicitly than desirable, that she wished to adduce evidence that HARE was open in practice to anyone in Hackney. The judge decided the matter solely on the written constitution and made no reference to that factual assertion. Excluding potentially material evidence rendered the determination procedurally unjust.

5. The court considered it appropriate to be indulgent towards the litigant in person. Costs of the hearing were reserved to the trial judge.

• Court of Appeal (Civil Division): Appeal allowed; the county court order was quashed and the matter remitted for hearing in its entirety.
• Central London County Court: His Honour Judge Crawford Lindsay QC decided the preliminary issue by treating HARE as a private club, struck out the sexual discrimination claims, and stayed the proceedings subject to a costs contribution.