Rothery v Evans

When deciding an application for an interim injunction, the court should adopt the course likely to cause the least irremediable prejudice. A stricter assessment of the merits is appropriate where the injunction would effectively determine the action, where mandatory relief is sought, or where the interim court is as well placed as a trial court to decide the issues.

Members of an unincorporated political association are bound by contractual rules. A party exercising a wide contractual discretion in candidate selection must act in good faith, fairly in the relevant context, and rationally in the Wednesbury sense. The court should, however, exercise particular caution before interfering with a political party’s political judgment about candidate selection.

Anna Rothery, a Labour Party member and Liverpool councillor, applied for an interim injunction restraining the Party from proceeding with a new selection process for its candidate for the Liverpool City Region mayoral election.

She had originally been shortlisted, but the selection panel later abandoned that process, excluded the three original candidates from a new process, and selected two alternative candidates. She alleged breach of express and implied contractual obligations in the Labour Party’s 2020 Rule Book, including duties of fairness, good faith and rationality.

The application sought to preserve her position pending a speedy trial. The central questions were whether she had established a sufficiently arguable contractual breach, whether a speedy trial should be ordered, and whether interim relief was appropriate.

1. Application refused. The claimant had not established even a serious issue to be tried, still less the high degree of assurance required on the facts. The injunction would in practice determine the action because there was no realistic prospect of a final trial before the Party’s selection timetable took effect.
2. The ordinary American Cyanamid threshold was therefore insufficient. The court was required to consider the relative strength of the parties’ cases and the likelihood of success at trial. The same conclusion followed because the relief was substantively mandatory and because the court had all the material necessary to determine the contractual and factual issues without a trial.
3. The court’s starting principle was that it should adopt the course likely to cause the least irremediable prejudice, as explained in National Commercial Bank of Jamaica v Olint Corp Ltd [2009] 1 WLR 1405 and American Cyanamid v Ethicon [1975] AC 396. Damages would not have been an adequate remedy for either side.
4. The Labour Party’s rules formed a contract between the Party and its members. Applying Choudhry & Ors v Triesman [2003] EWHC 1203 (Comm) and Evangelou and Others v McNicol [2016] EWCA Civ 817, the rules were to be interpreted as a contract. The NEC had a wide contractual power to modify selection procedures, impose candidates and delegate its powers.
5. That discretion was subject to the express obligation to treat members fairly and to exercise powers in good faith, and to an implied constraint against irrational decision-making. The implied rationality obligation was context-specific and required irrationality in the Wednesbury sense, not merely unreasonableness in ordinary language. The court assumed, without deciding, that an implied duty of fairness also applied.
6. The political context materially affected the content of those obligations. The panel was entitled to reconsider the first shortlist, to take account of political risk and public perception, and to act on concerns that candidates might be vulnerable to attack, even without proof of misconduct. The decision was not disciplinary or quasi-judicial, and the panel was not required to investigate every rumour or put every possible concern to the claimant.
7. The panel’s decision was made in good faith and was not arbitrary, capricious, irrational or unfair in the relevant contractual sense. The court therefore refused the injunction, declined to order a speedy trial or urgent disclosure, and declined to strike out the proceedings.