Park v Cho & Anor

Membership of a voluntary society may create contractual rights governing its elections. Those rights may include an implied term requiring the election to be conducted fairly and with neutrality, including by maintaining the appearance of impartiality. An election committee must take reasonable steps to investigate credible allegations of irregularity and must not adopt procedures which appear calculated to favour one candidate. A constitutional requirement that the result be presented for approval at a general meeting may be a formal but essential step. Failure to complete that step may leave the election incomplete without necessarily invalidating it. The court may grant declaratory relief for breach of the contractual rules and may consider stronger relief if the society fails to conduct a proper further election.

The claimant challenged the November 2007 election for chairman of the Korean Residents Society. He alleged that the defendants had breached contractual terms arising from the Society’s constitution by extending and administering absentee voting in a manner favouring the successful candidate, failing adequately to investigate suspected irregularities, and failing to obtain approval of the result at the Annual General Meeting.

The claim followed an interim injunction granted by His Honour Judge Seymour QC on 5 February 2008 and was tried urgently between 10 and 12 March 2008. The central issues were whether the constitution created enforceable contractual obligations, whether the election had been conducted fairly and neutrally, and what significance attached to the absence of approval at the Annual General Meeting.

1. The claim succeeded. The Society’s constitution formed part of a contractual commitment between its members, at least those who had paid their subscriptions. The contractual arrangement included an implied term requiring members and the Society to treat one another fairly and to comply with the constitutional rules and established practice.

2. The Election Committee’s duties required it to organise a fair election and to act neutrally. In an electoral context, fairness included being seen to act fairly. The involvement of the successful candidate in the Committee, the subsequent extension and active facilitation of absentee voting among company voters, the inadequate investigation of credible allegations concerning several votes, and the failure to pursue material information from Samsung created an impression of apparent bias.

3. The court did not decide whether fraud had occurred. That issue was unnecessary to the result and the available evidence was insufficient. The Committee’s conduct was nevertheless unfair because its response to the allegations and its post-election investigation were inadequate.

4. The constitutional requirement that the election result be approved or confirmed at the Annual General Meeting was a formal but necessary procedural step. Members could object to an apparently irregular election, although they could not simply substitute their preferred candidate. No proper approval took place. That omission did not itself invalidate the election, but the constitutional process remained incomplete.

5. The court considered that the Society’s members were likely to give effect to a declaration of their contractual rights and could conduct a further compliant election. Further relief, including a stronger remedy, could be considered if necessary.

The judgment itself records that an interim injunction was granted by His Honour Judge Seymour QC on 5 February 2008. The present court then determined the claim after an urgent trial.