No A2/2001/0588

Neutral Citation Number: [2001] EWCA Civ 766
IN THE SUPREME COURT OF JUDICATURE				
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

								Royal Courts of Justice
								Strand
								London WC2

								Tuesday, 1st May 2001
B e f o r e:

LORD JUSTICE LATHAM

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CLARKSON
Applicant

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GILBERT and Others

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person assisted by Mr Keter

The Respondent was not represented and did not attend
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J U D G M E N T
1.	LORD JUSTICE LATHAM: This is an application for permission to appeal by the claimant, Petruska Clarkson, against a decision by Mr Justice Eady which effectively precludes her from continuing with her proceedings against 19 named defendants who were members with her of the Gestalt Psychotherapy Training Institute at the relevant time.
2.	The circumstances under which the action was brought were that the claimant, who had been one of the founding members of the Institute, unhappily became involved in disputes with a significant number of the other members, in particular the 19 named defendants, to such an extent that it was determined by the executive council of the Institute on 27th November 1997 that she should be suspended from membership. The basis upon which that action was taken was that her behaviour was such as to make it impossible for the Institute to function satisfactorily. The procedures of the Institute which were determined by a contract between the members provided for an appeal. The appeal was determined on 13th June 1998 when the appeal panel concluded that the executive committee had been entitled to take the action they did in November.
3.	The essence of the claimant's claim against the defendants is that each of them was guilty of inducing breach of contract or alternatively or as well was involved in a conspiracy of which she was the victim which has caused her loss and damage. In addition, there were allegations of libel against an individual defendant. The judge having considered the matter, obviously with some care over a period of some three days, came to the conclusion that as far as some of the defendants were concerned there were procedural irregularities in relation to the service of writs which justified the conclusion that they should be dismissed from the action. As far as other defendants were concerned, he concluded that the claimant would not succeed in her claim against them and therefore gave judgment under Part 24 of the Civil Procedure Rules.
4.	The application for permission to appeal is based - apart from the individual cases relating to the procedural defects and in relation to the libel claim - on the proposition that the judge failed properly to understand, first, the nature of the claim for breach of contract and, secondly, the nature of the claim for conspiracy. As far as the breach of contract was concerned, it was submitted to me that the judge failed to appreciate that essentially the only basis upon which the applicant's membership could properly be suspended would be on some basis to do with her competence as a psychotherapist because pursuant to Clause 4 of the memorandum the membership of the company was opened to all including the claimant. It followed, it is submitted, that unless something which was properly described as a breach of professional competence could be established - this being an institute concerned with the granting, amongst other matters, of professional certificates - there was no basis upon which the executive committee could exercise its power to suspend.
5.	Secondly, it is said that the judge failed to appreciate that the material before him which consisted of statements from each individual defendant made it clear that they were themselves establishing that they did combine together and that in so far as they did so to produce the unlawful breach of contract which resulted in her suspension they did conspire to cause her damage by unlawful means.
6.	It is further asserted that in any event the whole purpose of the exercise was to cause her damage and it follows, even if there was no breach of contract, this was what is some times known as a lawful means conspiracy.
7.	Dealing with those matters in reverse order, the judge made it quite plain that on his reading of the evidence before him there was no way in which the claimant could possibly establish that the purpose of the actions which were alleged against the particular defendants could make this amount to a conspiracy by lawful means. The material before him satisfied the judge that there was no prospect of the claimant persuading any court to the contrary. That they were solely concerned to harm the claimant as opposed to protecting the interests of the Institute was, in his view, unarguable. In my judgment, there is no doubt the judge was correct in coming to the conclusion.
8.	As far as the allegation that this was what might be called an unlawful means conspiracy, that depends on whether or not it can be said that there was a properly arguable basis for saying there was a breach of contract, that is, that there was a breach of the terms of the contract between the members of the Institute constituted by the memorandum and articles. The judge was perfectly correct in coming to the conclusion that on the material before him it was apparent that the factors which impelled the executive committee to exercise its powers on 27th November 1997 were properly within the powers granted to the executive committee by the contract.
9.	The contract does not restrict the power of suspension to breaches of professional standards; indeed, it would be surprising if it did. This is not a case where the Institute was an institute which was the only body capable of giving the relevant qualifications to entitle a person to practice as a psychotherapist. The position was that this was an Institute which was one of a number which form the over-arching body which govern psychotherapists. In those circumstances the Institute was perfectly entitled to take the view it did; and the contract between the members could properly include a provision which entitled the council to act as it did for the reasons it gave, in other words, the activities of the Institute were being significantly hampered by the way in which the claimant was acting.
10.	In those circumstances it seems to me on the basis of the material before the judge that the judge was entitled to conclude that there was no real prospect of the claimant being able to establish that there was a breach of contract, ergo it follows there was no basis upon which the claimant could have succeeded in persuading a court there was any inducement to breach of contract by any of the defendants. It follows that there was no basis upon which it would be said there was conspiracy by unlawful means.
11.	The only remaining issue relates to the allegation that one of the defendants had libelled the claimant. As far as that was concerned the judge concluded that even if there was any substance in the claim for libel, the fact is that the claim was made after the end of the limitation period. The only argument that can be put forward on behalf of the claimant to the contrary is that the libel may have been repeated within the limitation period; there is no evidence that it was, and it is for the claimant to show there was some re-publication within the relevant period. In those circumstances the judge was correct to conclude that that matter should not entitle the claimant to proceed against that defendant.
12.	It follows that in regard to the appeals as far as substance is concerned - there is the application for permission to appeal against the decision as far as substance is concerned - there is no prospect of success which could justify the grant of permission. 
13.	So far as the technical procedural matters are concerned, it seems to me essentially those are matters where there were breaches of the provision as to service of the relevant writs. If there had been merit in the claim by the claimant against those particular defendants it might be that an argument could have been mounted for the exercise of discretion. As it is, there is no merit in the basic claim.
14.	It follows that there is no justification for exercising discretion in the claimant's favour so far as those breaches of procedure in relation to the service of writs is concerned.
15.	It follows I must refuse the claimant permission to appeal.
Order: Application refused