Graham v Eltham Conservative & Unionist Club & Ors

A registered society has a legal personality distinct from its members and officers. Those individuals are not personally liable for acts of the society unless personal wrongdoing is pleaded against them. Discrimination claims based on separate, severable acts are subject to the applicable limitation period; a common alleged motivation does not convert them into continuing acts. The court has broad case-management and costs powers where a party causes avoidable expense. A litigant in person has no automatic right to appoint a lay advocate. Such permission is exceptional and depends on the interests of justice, the proposed advocate’s suitability and the need to respect Parliament’s regulatory scheme. Permission may be revoked where the advocate is disruptive or does not assist the fair disposal of the proceedings.

The claimant brought discrimination and related claims against the Eltham Conservative and Unionist Club, its committee members and officers, and a police officer. The claims concerned alleged racial discrimination and victimisation in club elections, casual appointments, suspensions and changes to the club rules.

Four appeals arose from orders of HHJ Collins and HHJ Mitchell. The orders struck out claims against individual defendants, awarded costs following late adjournment applications, restricted the claimant’s use of a lay advocate, and struck out time-barred discrimination claims. The central issues were whether those orders were arguable and whether the claimant could rely on continuing acts, personal liability, lay representation or procedural objections.

1. Disposition. All four applications for permission to appeal were refused. Each proposed appeal was unarguable and totally without merit.
2. Separate legal personality. The Club’s registration gave it a distinct legal personality and limited liability. Committee members and officers were not personally liable for acts of the Club merely because they contributed to them. Personal liability required an allegation of personal acts. The claim against the individual committee members was therefore properly struck out. The claim against the police officer was also unsustainable because no legally enforceable duty or properly pleaded breach was identified.
3. Mr Taylor and the Club rules. The evidence and pleading indicated that the Secretary acted under the direction and control of the Committee. A possible claim against the Club for acts done by its Secretary did not establish a personal claim against him.
4. Limitation and case management. The claims concerning the 2005 suspension and 2007 ballot involved individual and severable acts. They were not transformed into continuing acts merely because the claimant alleged a continuing discriminatory motivation. The judge was entitled to strike them out under Race Relations Act 1976, section 68(2), and to refuse an extension. Costs caused by an unreasonably late adjournment application fell within the judge’s broad discretion. The unless order for unpaid costs was also within the court’s case-management powers.
5. Lay advocates. The superior courts retain a power to grant a special right of audience, but the statutory scheme ordinarily restricts advocacy to regulated advocates and litigants in person. The burden lies on the litigant to show special circumstances and that representation would assist the fair and just disposal of the case. Relevant matters include the relationship between the parties, the reasons for assistance, the proposed advocate’s experience and relevant court orders. Permission should not be granted automatically or for mere convenience.
6. Revocation and assessors. The court may revoke permission where the lay advocate becomes unhelpful or disruptive. In light of Dr Deman’s conduct in the present proceedings and his litigation history, HHJ Mitchell was entitled to prevent him acting as advocate or McKenzie Friend. Assessors were unnecessary because the hearings did not require assessment of evidence of discrimination.

High Court (Queen’s Bench Division): refused permission in four appeals from orders of HHJ Collins dated 22 April 2010 and HHJ Mitchell dated 26 August 2010, 23 November 2010 and 19 January 2011. Earlier paper applications for permission in three appeals had been refused by Burnett J and Norris J.