Diana Neslen & Ors v David Evans

In disciplinary proceedings conducted by an unincorporated association, fairness is assessed contextually by asking whether the procedure was actually unfair. It is not necessary to show that the outcome would have been different, but the claimant must identify unfairness in the procedure adopted.

A notice is ordinarily sufficient if it communicates the gist of the allegations and gives enough detail of the relevant evidence to enable meaningful representations. Failure to publish an internal code does not necessarily make proceedings unfair where the allegations were sufficiently conveyed, the code was consistent with published materials, and no material defensive point was lost.

Acceptance of recommendations for a future independent process does not, without more, require existing disciplinary cases to be halted. Courts should also avoid intervening in ongoing disciplinary proceedings where any potential unfairness can be remedied within the process.

The claimants, members or former members of the Labour Party, brought Part 8 contractual claims against David Evans as representative of the Party’s members. They sought declarations concerning investigations into allegations of anti-Semitism.

The complaints were that: an unpublished 2018 Code had been used in formulating and determining charges; the Party should not continue investigations under its existing system after accepting the Equality and Human Rights Commission’s recommendations for an independent process; and investigation notices materially misstated members’ confidentiality obligations.

The central issues were whether the Party had breached express or implied contractual duties of fairness, good faith and rationality, and whether declaratory relief should be granted during ongoing disciplinary proceedings.

1. Claim dismissed. None of the three declarations was granted.
2. The relationship between the Party and its members was contractual. The Rule Book formed part of that contract and was to be interpreted by ordinary contractual principles, applying Evangelou v McNicol [2016] EWCA Civ 817. The express fairness obligation required the Party to act in good faith and not arbitrarily, capriciously or irrationally. This was consistent with Braganza v BP Shipping Ltd [2015] UKSC 17 and the authorities cited.
3. Applying the contextual approach in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, the question was whether the procedure was actually unfair. It was unnecessary to prove that a different procedure would have produced a different result.
4. The notices conveyed the gist of the allegations and sufficient particulars of the evidence, enabling meaningful representations. The unpublished 2018 Code was not inconsistent with the Rule Book, the published Appendix 9 codes or the Party’s public materials. The claimants identified no specific defence they would have raised had the Code been expressly provided. The position was materially different from R (oao Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, which concerned detention and an unpublished policy inconsistent with the published policy.
5. The EHRC report identified serious failings and recommended an independent process, but did not find that the improved existing disciplinary system was fundamentally unfair or had to be immediately discontinued. The Party’s acceptance of the recommendations therefore did not make continuation of existing cases unfair. Its contractual obligation to apply the Rule Book was highly germane, although not conclusive. The interests of other members and the public also favoured proper determination of complaints, consistent with Unite the Union v McFadden [2021] EWCA Civ 199.
6. Chapter 2, clause I.8 of the Rule Book did not define all information which the Party could ask members to keep private during disciplinary proceedings. The confidentiality request in the notices did not breach that clause or the contractual fairness obligation because no actual unfairness was shown.
7. The court would in any event have declined declaratory intervention in ongoing disciplinary proceedings. The courts should intervene only where the breach cannot be remedied within the proceedings and should not micromanage them: Hendy v Ministry of Justice [2014] EWHC 2535 (Ch); Chakrabarty v Ipswich Hospital NHS Trust [2014] EWHC 2735 (QB); and Williamson v Formby [2019] EWHC 2639 (QB).