Angela Emmerson v Human Givens Institute Limited

In a contractual disciplinary process, the content of natural justice depends on the parties’ relationship and the surrounding context. It commonly requires an opportunity to make representations, notice of the gist of the case, and determination by an unbiased decision-maker acting in good faith. A court assesses whether the procedure was actually unfair, rather than whether another procedure would have been preferable.

Where a contract confers a decision-making power affecting the parties’ rights, the power must be exercised in good faith and without arbitrariness, capriciousness or irrationality in the Wednesbury sense. A decision may reasonably be based on a document which speaks for itself. A lay disciplinary body is not required to analyse evidence with the microscopic precision expected of a court.

The claimant was a member and practitioner of the defendant professional membership organisation. Following a complaint by a former couple-therapy client, an Adjudication Panel found that the claimant’s letter for use in divorce proceedings disclosed confidential information, contained excessive and inappropriate detail, and failed to consider its impact on the complainant. It imposed a period of reflective practice as a condition of continued registration.

An Appeal Panel dismissed the claimant’s appeal, and her membership was later not renewed after she failed to undertake the required reflective practice. She brought a contractual claim seeking declarations and orders setting aside the panel decisions. The issues were whether the complaint process breached implied terms requiring natural justice and whether the decisions were unreasonable in the Wednesbury sense.

1. Natural justice. The court proceeded on the parties’ concession that the contract contained an implied term requiring compliance with natural justice. The precise content depended on the contractual context. The claimant had to show that the procedure was actually unfair, not merely that another procedure would have been preferable. The minimum requirements included an opportunity to make representations, notice of the gist of the case, and an unbiased decision-maker acting in good faith. The process satisfied those requirements. The allegations and supporting material were provided in advance, the claimant responded in writing and orally, she was legally represented, the panel was properly constituted, and both decisions were reasoned. The Adjudication Panel was not required to hear evidence from any particular witness or put every possible evidential question to the claimant. [1994] 1 AC 531; [2014] AC 1115; [1964] AC 40.
2. Wednesbury reasonableness. The contract conferred a power to form opinions about facts affecting the parties’ rights and obligations. It therefore contained an implied term that the power be exercised in good faith and without arbitrariness, capriciousness or irrationality. [2015] 1 WLR 1661.
3. The letter itself plainly disclosed confidential information belonging to the complainant, including her attendance at counselling, the nature and date of a joint session, and information shared during couple counselling. It also went substantially beyond the limited matters requested for the divorce proceedings. The findings that confidentiality had been breached and that the information was excessive and inappropriate were well within the range of reasonable decisions.
4. The claimant had admitted that she failed to consider the letter’s impact on the complainant. The finding that this breached the applicable professional code was therefore reasonable. The claim was dismissed. A lay panel was not expected to undertake the expert and microscopic analysis required of a court. [1979] 1 Lloyd's Rep 337.