Josephine Mary Hayes v Dr Mark Pack & Anor

In challenges to disciplinary decisions made under the contractual rules of an unincorporated association, the court reviews compliance with the rules, good faith, natural justice and rationality. It does not substitute its own factual or evaluative judgment for that of the contractual decision-maker. The intensity of review depends on the decision and context, with particular restraint appropriate for decisions concerning the reputation and interests of a political party.

A serious allegation which materially contributes to a sanction must ordinarily be fairly put to the person concerned and addressed in the disciplinary hearing. Where a breach of natural justice makes it impossible to separate that allegation from the sanction imposed, the sanction may lack contractual validity.

The claimant, a senior member of the Liberal Democrats, challenged her purported expulsion and other sanctions imposed following a complaints process conducted by a panel of party adjudicators. She alleged breaches of the contractual rules governing the process, including failures of natural justice, irrationality, bias, improper consideration of evidence and errors concerning the scope of the complaints procedure.

The court upheld the challenges to the finding that she had leaked a private email concerning the selection of a party candidate. That allegation had not been fairly addressed at the panel hearing. The court rejected the remaining challenges to the determinations on the other issues, including complaints concerning her treatment of a party employee and her conduct in relation to the candidate-selection process.

1. Contractual framework. The relationship between members of an unincorporated association is contractual. The association’s constitution and rules govern disciplinary powers and their exercise. A power of expulsion is conferred on the contractual decision-maker, not the court.
2. Scope of review. The court may intervene where express rules were not complied with, the power was exercised in bad faith or for an improper purpose, the process breached natural justice, or the decision was arbitrary, perverse or irrational. The question is whether the decision fell within the range of contractually permissible decisions, not whether the court would have reached the same answer.
3. Natural justice. The core requirements were an unbiased tribunal, notice of the charges and a reasonable opportunity to answer them. Fairness is context-dependent. A voluntary organisation is not required to adopt the elaborate procedures of a court, and the panel could decide whether live evidence or particular questions were necessary.
4. Institutional competence. The panel was better placed than the court to assess the impact of conduct on the party, its reputation and electoral interests, and to make evaluative findings about tone, bullying and internal political conduct. The court therefore declined to reweigh the evidence or revisit findings reasonably open to the panel.
5. Issue 2. The allegation that the claimant had deliberately leaked the Nethsingha Email to Mr Hunter was serious, was based only on an inference, was disputed by the claimant, and was not put to her at the panel hearing. The panel’s finding on that allegation breached the contractual obligation to comply with natural justice. Because the panel imposed one sanction for the Issue 2 conduct and the effect of the leak finding could not be separated from the other findings, the Issue 2 sanction was contractually invalid.
6. Disposition. The challenges to Issues 1 and 3 failed. The claimant succeeded in relation to the Issue 2 finding and sanction. The court did not itself decide whether the claimant should be expelled or impose a replacement sanction.