Jones v McNichol

A contractual power to suspend a member of an unincorporated association must be exercised fairly. The association must undertake the investigation required by its rules and cannot treat an external investigation as an automatic substitute for its own process. Awaiting another investigation may be permissible, but not where it becomes open-ended inactivity or creates a risk of irreparable harm. In urgent interim applications which may effectively determine the issue, the court should assess the parties’ respective merits as well as the balance of convenience. Candidate-selection powers remain subject to the association’s rules and the obligation of fairness.

The claimant, an elected local councillor and Labour Party member, applied urgently for interim relief lifting his suspension from holding office in or representing the Labour Party. The suspension had continued while external council and police investigations proceeded. The Labour Party had not conducted its own investigation, had no clear timetable for doing so, and the continuing suspension prevented the claimant from seeking selection as a council candidate before an imminent deadline.

The central issues were whether continuation of the suspension was arguably contrary to the contractual rules and their implied requirement of fairness, and whether relief should be granted applying the merits-based approach required for an application likely to be determinative.

1. Relief granted. The balance of convenience and justice favoured lifting the suspension. Damages would not adequately remedy the consequences for either the claimant’s political career and reputation or the Labour Party’s reputation.
2. The suspension rule contained an obligation of fairness. The court did not need to formulate that obligation more precisely because fairness was common ground. The authorities, including Lewis v Heffer [1978] 1 WLR 1061, supported the proposition that such a power must be exercised fairly.
3. The rule required an investigation by an official of the Labour Party. It did not permit the party simply to piggyback on an external investigation. The party could take account of external findings if it obtained them, but it remained responsible for conducting its own investigation.
4. Awaiting an external investigation could be justified in an appropriate case, provided that it did not become an excuse for open-ended inactivity or abdication of responsibility. Here, the suspension had continued for too long, the party had not investigated the matter itself, had no effective timetable, and did not know when it would receive the external report, if ever. Continuing the suspension was therefore unfair, or at least there was a strong arguable case that it was unfair.
5. Because the application was likely to be determinative in practical terms, the court had to look beyond whether there was a serious issue to be tried and assess the merits as far as possible. The party’s legitimate interest in selecting candidates of unimpeachable integrity, and its power to influence local selections, remained subject to compliance with its rules and fairness.
6. The order was granted. Costs were reserved. The party remained able to apply to discharge the order if supported by further evidence, including the external report or a current draft.