Story v McLoughlin

A political party’s obligation under its rules is contractual, but statutory rules governing the filling of electoral vacancies do not themselves require the party to certify the person highest on its previous list. Where the governing regulation leaves certification to the party, the party’s contractual discretion must be exercised lawfully, in good faith and consistently with its purpose. Review is directed to the rationality and legality of the decision-making process, not whether the court would have reached the same outcome. Differential treatment is not unfair where the compared cases are materially different. A claim with no real prospect of establishing breach of contract may be summarily determined and struck out.

The claimant, a member of the Conservative and Unionist Party, had been second on its regional list for the 2014 European Parliament election. When the sitting MEP resigned, the claimant sought certification under regulation 83 of the European Parliamentary Elections Regulations 2004. The Party refused because he had failed a later assessment for inclusion on its Approved Lists and certified another candidate instead.

He claimed declarations that regulation 83 required certification, alternatively that the Party’s contractual discretion had been exercised unlawfully or unfairly, together with £100 damages. The defendant applied for summary judgment under CPR Part 24.2 and strike-out under CPR Part 3.4(2). The central issues were the construction of regulation 83 and the lawfulness of the Party’s decision.

1. First declaration. Regulation 83 identified the person highest on the previous regional list and required the returning officer to seek a statement and party certificate. It imposed no duty on the party to issue the certificate and did not regulate the grounds on which it might grant or refuse one. The regulation was clear and did not justify recourse to parliamentary materials.
2. The conditions in Pepper v Hart [1993] AC 593 were not met. The regulation was neither ambiguous nor obscure and did not produce absurdity. The ministerial statements were not clear and unequivocal, and could not impose contractual limits on an independent political party. The contrasting provisions in the Government of Wales Act 1998, the Government of Wales Act 2006 and the Greater London Authority Act 1999 supported, rather than altered, the ordinary meaning of regulation 83.
3. Second declaration. The Party’s Constitution conferred a contractual discretion. The implied contractual obligations required lawful and good-faith decision-making. Applying the approach in Braganza v BP Shipping Ltd [2015] UKSC 17, the decision had to be rational in the Wednesbury sense, take account of relevant matters, exclude extraneous matters and accord with the contractual purpose. The court reviewed the process, not the merits. The Board could rationally give weight to the claimant’s failure to pass the later Approved Lists assessment.
4. The Board had a proper evidential basis, considered the available options and was not shown to have been misled by its briefing paper. Adequate reasons for refusing certification had been given. The claimant had accepted that the Candidates’ Committee’s decision on his re-application was final and unappealable.
5. Third declaration and damages. The comparator cases were materially different. The claimant had been rejected through the relevant assessment process, whereas the other candidates had not been shown to be in that position. No unfairness or irrationality was established. Since there was no real prospect of proving breach of contract, the damages claim also failed.
6. Summary judgment was entered for the Party under CPR Part 24.2 on all claims. The Particulars of Claim were struck out in their entirety under CPR Part 3.4(2). The claim was dismissed.