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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Birch v Brookfield & Ors [2025] EWHC 732 (Comm) (27 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2025/732.html Cite as: [2025] EWHC 732 (Comm)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
CIRCUIT COMMERCIAL COURT (KBD)

		Birmingham Civil Justice Centre Bull Street, Birmingham
		27th March 2025

HHJ TINDAL:

Introduction

1. This claim is by Mr Paul Birch ('the Claimant'), a former Labour Councillor in Wolverhampton, against its Labour Group of councillors ('WLG') in the City Council ('WCC'). As an unincorporated association, WLG appears by representative Defendants, Councillor Valerie Evans ('Cllr Evans'), Councillor Gillian Wildman ('Cllr Wildman'), Councillor Milkinder Jaspal ('Cllr Jaspal') and Councillor Ian Brookfield ('Cllr Brookfield') who sadly passed away in July 2023 and whose estate appears by his widow, Mrs Paula Brookfield. She, Cllr Wildman and Cllr Jaspal did not give evidence, only Cllr Evans and the Claimant.
2. The Claimant's claim alleges breach by the Defendants of the association contract between them by Cllr Evans' decision of 13^th October 2022 purporting to impose on the Claimant a 12-month written warning and to remove him from two Council committees in response to a complaint about him by another Labour councillor, Celia Hibbert ('the Decision'). The Claimant alleges neither sanction was available under the express terms; and also breached implied terms of good faith, rationality and procedural fairness (traditionally called 'natural justice'). To avoid repetition, I will set out the various allegations when addressing my conclusions about them.
3. This case raises some difficult - and delicate - legal issues about internal party discipline in local government and its interface with contract law. But the case is factually straightforward and does not involve the Claimant's wider grievances about Cllr Hibbert, who is not a defendant or witness here to give her side of the story. Indeed, the Claimant accepted this at the start of the trial; and that he had not formally raised the issue of freedom of expression. But I did determine at the start of trial that as the Defendants had pleaded the relevance of the 'Nolan Principles', Cllr Evans could be asked about whether she took 'openness' into account, which I will consider at the end of this judgment and its overlap with freedom of expression.
4. While I need not detail the long procedural history, shortly before trial, the Claimant parted company with his original solicitors and whilst he initially instructed new solicitors and applied to adjourn trial, he later withdrew that application. So, he has represented himself, with courtesy and restraint and the invaluable help of his daughter as a litigation assistant (traditionally known as a 'McKenzie Friend'). I am grateful to them and to Mr Mundy, Counsel for the Defendants (who was deservedly appointed as King's Counsel between submissions and judgment).
5. At the start of the trial, we agreed the following issues would be determined:

a. What was the contractual procedure for complaints Cllr Evans had to follow and was Labour Party 'disciplinary guidance' she relied on part of that ?

b. Did Cllr Evans or other Defendants breach express contractual procedures ?

c. Did Cllr Evans or other Defendants breach implied contractual terms by denying the Claimant a fair process or hearing ?

d. Did Cllr Evans or the other Defendants act in bad faith or unreasonably in deciding the Claimant had breached WLG rules and imposing sanctions ?

e. If the claim succeeds, what remedy should be granted to the Claimant ?

6. As is typical of local councillors up and down the country, the Claimant is a person of principle. As well as being elected as a Labour councillor for Blakenhall Ward in Wolverhampton in 2019 until he stood down in May 2023, he is a Magistrate and former Chair of Victim Support, a fellow of two universities and received the British Empire Medal in 2021. He is also Chief Executive Officer of Revolver Co-Operative Ltd, which sells fairtrade commodities, such as 'Coop Coffee' to Co-Operative Supermarkets (a leading Fairtrade brand) and Revolver Records Ltd. It was apparent from his evidence that the Claimant is motivated by a strong sense of ethics and public service, rather than personal political ambition. Indeed, in his short tenure as a councillor, in doing what he considered right, he was not afraid to provoke opposition even from fellow Labour councillors whom he felt were at fault.
7. The Claimant's main antagonist in the local Party was Cllr Hibbert. As I have said, she was not involved in this case as a party or even as a witness and I have not heard her side of this story. Accordingly, as the Claimant accepted at the start of the trial, it would not be fair on her for me to make findings about her and nothing I say should be seen as criticism (or indeed commendation) of her conduct. However, it would be contrary to Open Justice (and indeed pointless) to keep her anonymous, as many events I describe took place in the public domain. However, whilst I cannot make contested findings about what Cllr Hibbert actually did, what the Claimant saw her as doing is central to this case. In short, whilst he saw himself as a person of principle, he saw Cllr Hibbert as the opposite. Cllr Hibbert was suspended by WLG in October 2021 after she voted 'against the whip' on a senior leadership review (which I return to below as the Claimant expressed strong views about it), but this was overturned on her appeal by the regional Labour Party in November 2021. For other reasons, Cllr Hibbert was suspended again by WLG in June 2023. However, the real core of the Claimant's antipathy towards her was more personal. It is relevant to note that Cllr Hibbert is black, as is the Claimant's wife, Olivia Birch who was also a Labour councillor. Whilst in Cllr Hibbert's absence I cannot make findings about what she did nor did not actually say, I accept it is the genuine belief of the Claimant and his wife that Cllr Hibbert said during Black History Month celebrations in October 2021 that there were only two black councillors on Wolverhampton Council and when asked why she did not include Cllr Olivia Birch as a third, Cllr Hibbert was alleged to have said that Cllr Olivia Birch 'did not consider herself to be black'. I repeat, I can make no finding as to whether Cllr Hibbert said this or not, but the Claimant and his wife genuinely believe that she did and consequently put in a complaint about Cllr Hibbert to WCC in 2021.
8. This explains why the Claimant took it upon himself to scrutinise Cllr Hibbert's conduct, culminating in not one but two warnings from WLG in 2022, including the one prompting this claim. It also explains why, whilst the Claimant accepted at the start of trial that I could not make findings about his grievances against Cllr Hibbert, in evidence he strayed repeatedly into those (which I will summarise below). I had to remind the Claimant that as a Magistrate he should be know that witnesses should answer questions rather than make speeches (the art of the politician). The Claimant was also rather defensive and pedantic in cross-examination and at times contradicted earlier statements he had made. His conviction in his own cause (on a recent 'GoFundMe' page to raise legal funds, he described himself as 'fighting political corruption in the Labour Party') has rather distorted his perspective on events. I stress the Claimant's honesty and integrity is unquestioned, but his evidence is less reliable for its lack of objectivity (I note, all being Nolan principles).
9. In fairness, the Claimant proved a better asker than answerer of questions. Under his courteous but effective cross-examination, Cllr Evans was disarmingly direct and ready to make concessions. In that, I found her an entirely reliable witness, although not always the most helpful to her own side. She has been a councillor for 17 years and I do not doubt her vast experience of local politics made her a very effective Chief Whip from 2021 to 2024. However, she accepted that other than the disciplinary processes involving Cllr Hibbert in 2021 and the Claimant in 2022, she had not been involved in any at WLG. Moreover, she took on the role at a difficult time in late 2021: mid-Pandemic and just after the resignation of her predecessor after Cllr Hibbert's appeal against her suspension succeeded because procedures had not been properly followed. Indeed, Cllr Evans had been Deputy Whip at that time and gave the impression in evidence that fastidiousness on the procedural technicalities so endemic in local government is not necessarily her forte. In that, she contrasted strongly with the Claimant's rather pedantic insistence on procedural niceties. Like the clash in the approach to politics between Cllr Hibbert and the Claimant, his contrast with Cllr Evans on the importance of procedure is central.
10. The final main protagonist was the Leader of the Council in 2021-2022, Cllr Brookfield, who sadly died in 2023. Whilst he was (and his estate is) the First Defendant, with the abating of the Claimant's defamation claim, the focus has reduced to one regrettable altercation between him and Cllr Brookfield on 16^th October 2022, which led to these proceedings being issued on 27^th October 2022. To his credit, the Claimant was clearly uncomfortable raising this emotive subject and was at pains to pay tribute to Cllr Brookfield's leadership during the Pandemic, when Wolverhampton suffered many deaths from COVID. However, as Mr Mundy said, it is one of the few factual disputes and I must resolve it as best I can without the benefit of Cllr Brookfield's evidence. Yet the burden of proof is on the Claimant to prove the facts necessary to prove his claim on the balance of probabilities.

Findings of Fact

11. On that subject, I turn to my findings of fact on the balance of probabilities, although as I have mentioned, many facts in this case are not in dispute and I will take them relatively swiftly, before turning to the nature and meaning of the express terms of WLG's association contract and then my other conclusions. But first of all, it may be helpful to set the political and contractual scene in fairly summary form. This context was understandably rather taken for granted in the parties' evidence, but it is undisputed and important in understanding the events.
12. As every voter knows, candidates for election as local councillors typically stand on behalf of – and are chosen by - the main national political parties. Once elected, in a given local council, the councillors belonging to a given political party will band together in a 'group', as the Labour councillors in Wolverhampton at that material time banded together in WLG. That local group of party councillors is legally separate from their national party, although obviously closely affiliated with it (if not effectively controlled by it). I say 'at the material time' because of course the members of that group may change with every election. That council 'group' – like a political party in Parliament itself – will nominate councillors to sit on committees (as I discuss later) and co-ordinate its policy and voting on issues. In British political jargon, this involves exercising 'the whip', where the group's Chief Whip (here Cllr Evans) is responsible for ensuring internal party discipline.
13. However, like any group of people banded together for a common purpose, such 'groups' of local councillors belonging to a particular party will have internal rules of the 'group'. This is what makes such 'groups' of councillors, like the national parties themselves, in law (separate) 'unincorporated associations', just like a club or society. As I will explain, unincorporated associations are regulated by a contract, (one topic in this case being the nature in 2022 of the terms of WLG's contract relevant to its disciplinary process). In unincorporated associations generally, the association contract may permit members to be suspended or expelled for breach of its rules, like a member of a golf club being expelled for cheating.
14. In the case of 'groups' of councillors belonging to a particular political party in a particular council, suspension or expulsion from the 'group' is called in political jargon 'withdrawal of the whip'. It is agreed that WLG's association contract included express provision for 'withdrawal of the whip' from a councillor on certain procedural preconditions which it is also agreed were not followed. That is because, unlike the ill-fated attempt with Cllr Hibbert in 2021, there was no decision to 'withdraw the whip' from the Claimant in 2022. The key legal issue here was whether the disciplinary sanctions available to Cllr Evans as WLG's Chief Whip was limited to 'withdrawing the whip'. The Claimant says Cllr Evans giving him a written warning and removing him from committees was not available under WLG's contract and breached it. The Defendants say both steps were available to WLG under the contract (although they accept that removal from committees was not within the authority of Cllr Evans as Chief Whip, but they say the warning was).
15. Perhaps the reason why neither the Claimant nor Cllr Evans could recall a disciplinary process within WLG other than those involving Cllr Hibbert and the Claimant is because most complaints about councillors, including from their political confederates, are dealt with by a different and statutory procedure by the local authority itself. Under the Localism Act 2011 ('the 2011 Act') there is a statutory complaints procedure relating to councillors for breach of a given local authority's 'code of conduct'. Typically, not only fellow councillors, but the public and council employees can make complaints of breach of the Code of Conduct by councillors, on a form an example of which the Claimant helpfully produced. However, if such a statutory complaint is upheld, it can only lead to compulsory training, censure and removal from committees, not suspension as a councillor, still less removal: accountability rests with the electorate. As Mr Mundy said, one can envisage conduct that may not breach a local authority's code of conduct or justify a sanction from its Monitoring Officer or 'Governance and Ethics Committee', but might be thought by a local 'group' of party councillors to breach their own rules: most seriously defection to another party in the council (called 'crossing the floor').
16. Indeed, turning to the events in this case, in Autumn 2021, at around the time Cllr Hibbert was facing proceedings within WLG to 'withdraw the whip' for voting against WLG leadership earlier in 2021, in parallel the Claimant and his wife made a statutory complaint to WCC about Cllr Hibbert's alleged comments in Black History Month about Cllr Olivia Birch's race. Therefore, these were not only two completely separate forms of complaint about two completely different forms of conduct by the same councillor, they were two completely different legal processes. The one in WLG was internal to it and purely contractual. The other to WCC was statutory and external to WLG (which itself was not involved in that process).
17. As I mentioned, the animosity between the Claimant to Cllr Hibbert was both personal and political. The Claimant went public about the latter in October 2021, around the same time as the 'Black History Month' dispute erupted. On 26^th October 2021, the Wolverhampton newspaper the 'Express and Star' ran a story about Cllr Hibbert's (short-lived) suspension from WLG with the headline: 'Wolverhampton councillor who 'tried to join the Tories' is suspended by Labour'. It quoted a letter to Cllr Hibbert from the then-Chief Whip (Cllr Evans' predecessor) but it also openly quoted the Claimant, who expressed himself strongly:

"Labour councillor Paul Birch said: "Behaving in this manner is a complete disgrace to the Labour group and its values….I was told by an opposition member that Councillor Hibbert had crossed the floor on three occasions to try and join the Conservatives. Clearly, they didn't want her – and now the Labour group don't either."

18. Whilst it is quite possible the Claimant may well have simply been voicing what other WLG colleagues privately thought about Cllr Hibbert's political conduct, it is hardly surprising that WLG's leadership did not want this dirty laundry aired in public. Indeed the story gave the Conservative opposition leader in Wolverhampton Council, who denied that Cllr Hibbert had attempted to defect to them, the political gift of being able to accuse WLG of 'petty, internal squabbling'. To make matters worse for WLG, less than a month later, on 16^th November 2021, Cllr Hibbert's appeal was allowed by the regional Labour Party (which as I explained, was legally separate, but politically linked to WLG). As the Express and Star then reported, 'a Labour source told them the process by WLG had been 'botched beyond belief', leading the previous WLG Chief Whip to step down.
19. It was therefore a baptism of fire for Cllr Evans as WLG's new Chief Whip. She had to re-incorporate Cllr Hibbert into WLG and address the Claimant's comments to the press. Accordingly, she invited him to a meeting on 8^th December 2021 along with WLG's political adviser Mr Islam who acted as her note-taker in meetings. Cllr Evans asked the Claimant whether he had leaked the October letter to Cllr Hibbert to the press, which he denied. She also asked about his comments on her suspension, which he accepted were accurately quoted and were 'ill-judged'. So, on 19^th January 2022, Cllr Evans gave the Claimant a written warning:

"This written warning has been issued as a result of you speaking to the Express & Star about the Special Labour Group meeting, concerning the removal of the Whip from Cllr Celia Hibbert. This warning will be kept on file for 3 months from the date of this letter. I am also asking you to provide assurances that you will check with Leader's Office first, if approached by the media for any comments for the next 3 months."

20. However, the Claimant's underlying animosity to Cllr Hibbert had not changed. As I have said, in her absence, I cannot make findings about his grievances about her. However, he believed one of his constituents (whom I will simply call 'Ms F') had been defrauded by Cllr Hibbert over a business deal. Ms F had reported the matter to the Police and been given a crime number and Ms F had also instructed lawyers to send a letter before action to Cllr Hibbert back in 2019. The Claimant had raised this internally within WLG but became frustrated no action was being taken about it (or indeed by WCC on his and his wife's statutory complaint against Cllr Hibbert about her alleged comments related to Black History Month).
21. However, although the Claimant felt neither WLG nor WCC were addressing what he saw as Cllr Hibbert's misconduct, he took another opportunity to do so himself in 2022 when he was introduced by a colleague to Cllr Hibbert's landlord in her Penn address who was in a dispute with her. That was her constituency not his; and the landlord was not his constituent either. However, the Claimant discovered the landlord had a possession hearing for Cllr Hibbert's property on 17^th August 2022. This linked into the Claimant's long-standing suspicion that Cllr Hibbert did not genuinely reside at that house in Penn in her ward (which he considered to be required for a councillor but which the Defendants dispute and I need not resolve), but instead lived with her family in a different WCC ward.
22. Indeed, back in 2020, well before the dispute over 'Black History Month', the Claimant had seen social media posts from Cllr Hibbert from Nigeria when her constituents were confined to their homes in COVID Lockdown. He decided to visit her property in Penn and was told by her neighbour she had been away for some time. It had concerned him further that in January 2021, Cllr Hibbert had posted again from Nigeria that:

"Getting ready to return home to UK, but I must confess, I'm having a slight panic attack. Firstly, I really don't know how to sit home and do nothing. I love fieldwork. Secondly, I honestly don't want to hear about Coronavirus every second, it might depress me. So, if you have any tips for staying active and positive [please] either inbox me or drop [message] here."

Perhaps this was not the most judicious or sensitive comment at the height of Lockdown, but the Claimant did not comment about it publicly at that time.

23. However, I find on the balance of probabilities that the Claimant referred to Cllr Hibbert's January 2021 post 18 months later on 17^th August 2022 when 're-posting' on social media a press report about Cllr Hibbert's possession hearing on the Midlands news site 'Birmingham Live'. Indeed, in the minutes to the October 2022 meeting discussed below, the Claimant told Cllr Evans that he had contacted a journalist and 'encouraged' him to go along to Cllr Hibbert's hearing. Whilst the Claimant sought to resile from that in his evidence, he did not correct the minutes in that respect at the time and I find he both did that and told Cllr Evans he had done so. The reporter then wrote an article saying Cllr Hibbert had been 'in court over rent arrears' and negotiated for the possession to be withdrawn for £2000. (In fact, on Cllr Hibbert's later complaint, IPSO the press complaints commission held that was inaccurate as it was a 'no fault' possession claim not depending on rent arrears). The Claimant was concerned that earlier that day, Cllr Hibbert had posted on social media about being awarded £2000 under a political scheme to encourage women into politics and that she may be using those public funds to pay off rent arrears.
24. However, that is not what the Claimant said when reposting the press article about Cllr Hibbert's possession hearing on social media on 17^th August. He said:

"Amazing that she can't afford to pay the landlord her rent yet this morning, she's taken off to Nigeria ! One Nigerian on social media…said 'welcome home' and that goes directly to the fact she doesn't really live here.

She took off to Nigeria in 2020 during lockdown, which her resident[s] were burying their dead. She was posting pictures dancing and wrote 'I'm sick of people talking to me about COVID, I don't want to hear anymore'. She was away almost a year in Nigeria and all the time paid by taxpayers over £12,000."

The following day, perhaps conscious that the first paragraph was simply wrong - even on his own view, he suspected Cllr Hibbert lived in the wrong ward in Wolverhampton, not in Nigeria - the Claimant edited this:

"Amazing that she can't afford to pay the landlord her rent yet this morning, she's taken off on holiday [my italics to illustrate the edit]

She took off to Nigeria in 2020 during lockdown, which her resident[s] were burying their dead. She was posting pictures dancing and wrote 'I'm sick of people talking to me about COVID, I don't want to hear anymore'. She was away almost a year in Nigeria and all the time paid by taxpayers over £12,000."

In evidence, the Claimant for the first time tried to suggest that he had taken the quote 'I'm sick of people talking to me about COVID, I don't want to hear anymore' directly from a different Facebook post by Cllr Hibbert. However, that is implausible and he did not say it in the October 2022 meeting, nor in his statements. I find the Claimant essentially paraphrased what Cllr Hibbert had said in her January 2021 post but put it as a quote. Even aside from that inaccuracy, this was another public criticism by the Claimant of Cllr Hibbert. It is true it was not in a newspaper this time round, rather on social media where only 12 people saw it, but more could have done so, knowing that both he and Cllr Hibbert were Labour councillors.

25. Certainly, the Claimant's post came to the attention of Cllr Hibbert, who in August emailed a complaint about it to Cllr Evans, who met her with her Deputy Whip, Cllr Wildman. I do not have those notes of that meeting but Cllr Evans remembered Cllr Hibbert was upset. She followed it up with an email to Cllr Evans listing other instances of the Claimant's supposed 'harassment' other than the time leading to the previous warning, such as the Claimant visiting her property in her absence during lockdown. Cllr Evans wisely focused on the Claimant's social media post and reserved judgment on the seriousness of the complaint until she spoke to him.
26. It is the Defendants' case before me that WLG's association contract incorporated a 2018 document from the national Labour Party called 'Labour Group Disciplinary Procedures'. I shall consider its status below as it is relevant to express terms. As I will also explain, it purports to authorise local government whips like Cllr Evans to impose warnings on Labour councillors and to propose (but not impose) removal from committees. However, it is relevant to note at this stage that it when discussing the whip's invitation of the respondent councillor to a meeting, it also says this:

"In normal circumstances:

• It is a requirement that the individual be given an indication of the nature (but not the details) of the complaint or incident about which the whip wishes to see the individual.

• The whip should ask another member… to be present to take a note of the interview. A verbatim note is obviously the most useful but is not a requirement. It is, however, essential to make an accurate note of the key questions and answers.

• The individual should be advised…he is entitled to have a friend present.."

27. However, Cllr Evans simply sent an email marked 'restricted' to the Claimant on 6^th September 2022 to say she had received a complaint and invited him to a meeting (eventually fixed over Teams for Thursday 6^th October 2022. In that period, Cllr Evans (i) did not give the Claimant any indication of even the identity of the complainant nor its nature let alone its details; and (ii) she did not advise the Claimant he could have a friend present. She accepted in these respects she had departed from the written procedure and even seemed to hesitate before asserting that it was still fair. Her reason was that the Claimant was experienced and could have asked for further information about the complaint and to have a friend present. In the event, the Claimant did not do that and indeed accepted his assistant was in the same room as him during the Teams meeting on 6^th October, but he said she was not there in that capacity as was his right. Yet he accepted he could have called her over (she has disabilities but he did not suggest she could not have undertaken that role) and he did not ask to have a companion present. Yet he pointed out he had not been offered that right. This perhaps illustrates the distinction I mentioned at the start of this judgment between the Claimant's somewhat pedantic insistence on the letter of procedure being followed and Cllr Evans rather over-relaxed approach to it.
28. Rather more serious in my view was the absence of any sort of advance notice of the nature of the complaint or identity of the complainant. In another case, where the allegation was perhaps more serious or more contested, that could have created a real disadvantage for the respondent to the complaint. As it was, in cross-examination, the Claimant had to accept he suspected the complaint was from Cllr Hibbert. It cannot have come as too great a shock for him that a few months after a warning for criticising Cllr Hibbert publicly that further criticism on social media might lead to further complaint. As he said himself in his statement, when told the complaint was about a social media post he himself asked 'Is this about Hibbert ?'
29. According to Mr Islam's minutes which I accept in this respect (as the Claimant did not dispute them in this respect at the time), Cllr Evans read out the Claimant's initial post referring to Cllr Hibbert 'not really living here' and he responded that the only inaccuracy was that Cllr Hibbert in August 2022 had gone on holiday to Scotland not Nigeria (which he had corrected in the post). Nevertheless, the Claimant half-repeated his claim in the initial post that Cllr Hibbert did not live in England on a full-time basis, that he did not believe that she lived in Penn, that she had posted from Nigeria in Lockdown and he had visited her address. He also raised in detail the fraud allegations of 'Ms F' and reported that Cllr Hibbert had been interviewed by the Police. He also raised his wife's complaint to WCC over the 'Black History Month' issue. The Claimant was recorded in the minutes as 'following Cllr Hibbert's career in terms of her misdeeds' but contended this did not amount to 'harassment'. Whilst Cllr Evans rather unkindly referred to all this in her statement as 'verbal diarrhoea', perhaps the Claimant's representations would have been more structured and concise had he been given advance notice of the nature of the complaint. Nevertheless, as Mr Mundy pointed out, the Claimant has not suggested that he was unable to say anything he would have wanted to say or would have handled it entirely differently. The Claimant decided to use this meeting about his own conduct to raise his concerns about Cllr Hibbert's conduct.
30. This leads to the only respect in which Mr Islam's minutes were challenged by the Claimant in an email in October 2022. As I noted above, the minutes record (and I have accepted) that the Claimant admitted he had 'encouraged' the journalist to go to Cllr Hibbert's possession hearing on 17^th August 2022. The minutes also said:

"Cllr Birch refused upon the Whip's request, to take the social media post down because he stood by his values…

In response to the Deputy Whips comment that it was inappropriate to post negative posts on social media, Cllr Birch stated that 'the public glare' was in his opinion the only way sometimes to hold people to account (i.e. in Cllr Hibbert's case, posting on social media that whilst she cannot afford to pay rent [she] was using her £12,000 councillor allowance[s]… and also the money she is alleged to have pocketed from the property investment which never happened to holiday in Nigeria, especially during COVID lockdown

- Cllr Birch stated that the Labour Party did not want councillors who are bringing the party into disrepute and they need to be got rid of. He referred to the occasion when Cllr Hibbert abstained on a vote in full council which was embarrassing for the Labour Group."

Having then referred again in detail to Ms F's allegations, he continued:

"Upon the Deputy Whip requesting that Cllr Birch should take down the post about Cllr Hibbert, he stated that he would only do so if the Whips looked again at [Ms F's] case.

- Cllr Birch was concerned that if Cllr Hibbert was successful in becoming an MP, the [Ms F] case would come to light and bring the Labour Party into further disrepute. He feels that Ms F…needs to be compensated."

31. On 19^th October 2022 (after the critical 13^th October letter I consider below), the Claimant requested the minutes, which were provided and responded as follows:

"Thanks for this. I haven't been through the minutes forensically, but there is something that stands out; "Upon the Deputy Whip requesting that Cllr Birch should take down the post about Cllr Hibbert, he stated that he would only do so if the Whips looked again at the [Ms F] case". I have a correction and I would like to challenge this and ask for your confirmation. This is the penultimate paragraph where the Deputy Whip asks 'if I would give further consideration to taking down my comments'; My actual words were: "ok, tell you what, I will take it down, I will take it down, I will take it down now. All I ask in return, is that you give consideration to investigating the [Ms F] case" The Whip responded; "We will have to take that away Paul and come back to you" The meeting then came to a close, on the basis the Whip would be back in touch. Final thing, my assistant sent through all the [Ms F] case notes to the Whip, Deputy Whip and yourself from my council computer during the meeting. I said in relation to this; "You probably wonder why I hadn't brough this to your attention, it's because I had brought this to the attention of the Leader directly, at the time and then followed that through with the Deputy Leader at that time, and then following the appointment of a new Deputy leader we had a lunch meeting discussing the case and I provided him with all the documents" (original bold)

32. As I have said earlier, the Claimant's correction to the minutes was very narrow relating to what he said about the link between taking the posts down (which he accepted were still up until a fortnight after the October 2022 meeting) and Ms F's case. Mr Islam's notes recorded that he had initially refused to take the posts down at all in response to Cllr Evans' request half-way through the meeting (which the Claimant accepts), but at the end said in response to Cllr Wildman's request that 'he would only take them down if the Whips looked again at [Ms F's] case'. Instead, the Claimant says he said he would immediately take them down if the Whips 'gave consideration to investigating [Ms F's] case' and Cllrs Evans and Wildman agreed to 'take it away and come back to him about it'. I find on the balance of probabilities that the Claimant specifically made his removal of the posts conditional on the Whips investigating the Ms F case, which they did then say they would get back to him about. This explains why the Claimant did not in fact take the posts down immediately and indeed, he accepts they remained up even for a few days after Cllr Evans' letter of 13^th October, by which time it would have been clear she was not going to investigate the Ms F case. It was the letter imposing sanctions that finally prompted the Claimant to take his post down, 9 weeks after he originally posted it.
33. Cllr Evans explained in evidence that she did not investigate Ms F's case, the Claimant and his wife's complaint about Cllr Hibbert over 'Black History Month', or the other grievances about her he had raised because they were not relevant to her determination of Cllr Hibbert's complaint about him. Cllr Evans felt he had accepted posting on social media on 17^th August 2022 having encouraged a journalist to attend Cllr Hibbert's court hearing. Cllr Evans considered that was enough to uphold the complaint without the need to investigate the Claimant's wider grievances. She added in evidence it would have been inappropriate to investigate the Claimant's complaint about Black History Month if he had already complained.
34. Cllr Evans found the Claimant (i) investigated Cllr Hibbert's residence in 2020, (ii) criticised her in the press in 2021 and (iii) encouraged a journalist to attend a hearing and then posted the article on social media with more criticism of Cllr Hibbert in 2022. She considered that the Claimant was 'harassing' Cllr Hibbert, although Cllr Evans did not see it as 'bullying'. Nevertheless, she was advised by Mr Islam that WCC's Code of Conduct required a joint finding of 'bullying and harassment'. She also spoke to the regional Labour Party, but they just said it was a matter for her. Cllr Evans considered the WCC Code of Conduct was relevant to internal WLG complaints as all WLG members had to comply with it. When asked about the relevance to her decision of the seven 'Nolan principles' for standards in public life, Cllr Evans accepted she did not mention any in her letter but had considered two were engaged: 'Leadership'- including that 'councillors should be prepared to challenge poor behaviour wherever it occurs'; and 'Objectivity' – that councillors 'must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias', which she paraphrased as consistent with 'Respect' in the WCC Code of Conduct. She did not consider 'Nolan Openness' was engaged as that related to transparency with the public, which did not apply to the Claimant's conduct. She decided she would issue the Claimant with another warning but also remove him from the two committees he was on with Cllr Hibbert (Governance and Ethics and Economy and Growth) as they could not work together and it was appropriate to move him not her. Whilst the decision would be expressed as joint between them, it was Cllr Evans' decision with which Cllr Wildman agreed.
35. On 13^th October 2022 Cllr Evans sent the Claimant the Decision central to this case:

"Dear Paul,

RE: Investigation into allegations of improper conduct towards a fellow councillor

I can confirm that we have now concluded our investigation into allegations of improper conduct on your part towards fellow councillor, Councillor Celia Hibbert and reached a decision between myself and the Deputy Whip.

Our conclusion is that you have breached the following rules / code of conduct as outlined in the Code of Conduct for Councillors of City of Wolverhampton Council (enclosed):

1. Respect

As a councillor:

1.1 I treat other councillors and members of the public with respect. Respect means politeness and courtesy in behaviour, speech, and in the written word. Debate and having different views are all part of a healthy democracy. As a councillor, you can express, challenge, criticise and disagree with views, ideas, opinions and policies in a robust but civil manner. You should not, however, subject individuals, groups of people or organisations to personal attack.

2. Bullying, harassment and discrimination

As a councillor: 2.1 I do not bully any person. 2.2 I do not harass any person.

5. Disrepute

As a councillor 5.1 I do not bring my role or local authority into disrepute. As a Councillor, you are trusted to make decisions on behalf of your community and your actions and behaviour are subject to greater scrutiny than that of ordinary members of the public. You should be aware that your actions might have an adverse impact on you, other councillors and/or your local authority and may lower the public's confidence in your or your local authority's ability to discharge your/it's functions. For example, behaviour that is considered dishonest and/or deceitful can bring your local authority into disrepute. You are able to hold the local authority and fellow councillors to account and are able to constructively challenge and express concern about decisions and processes undertaken by the council whilst continuing to adhere to other aspects of this Code of Conduct.

6. Use of position

As a councillor: 6.1 I do not use, or attempt to use, my position improperly to the advantage or disadvantage of myself or anyone else. Your position as a member of the local authority provides you with certain opportunities, responsibilities, and privileges, and you make choices all the time that will impact others. However, you should not take advantage of these opportunities to further your own or others' private interests or to disadvantage anyone unfairly.

Specifically, our conclusion is that you have deliberately posted what may be perceived as defamatory, untrue / factually inaccurate comments about Councillor Hibbert on the Blakenhall Online platform and refused to take down this post when requested by both Whips.

You also admitted to contacting a local reporter about Councillor Hibbert appearing in court in relation to a private matter, despite having previously received a written warning for speaking to the Express & Star about a private Special Labour Group meeting, concerning the removal of the Whip from Cllr Celia Hibbert. You will recall that, at the time, we sought reassurance from you that you will check with Leader's Office first, if approached by the media for any comments.

Your actions resulted in a formal complaint received from Councillor Hibbert and has caused her considerable anxiety and distress and attracted unwanted comments from members of the public. Your continued refusal to take down the aforementioned post has not been helpful and shows a lack of co-operation with myself and the Deputy Whip, as we try to deal with this matter.

As a result, I am writing to confirm that I am issuing you a written warning in respect of your actions. This warning will remain on file for a total of 12 months and then be removed.

In addition to this, we have decided that you will be removed from the following committee(s) with immediate effect: • Governance & Ethics

• Economy and Growth Scrutiny Panel

The Group Secretary will be in touch with you in due course to identify alternative committees for you to attend.

Thank you for your co-operation in this matter.

Yours sincerely etc.." (Original bold)

36. Cllr Evans said before she sent the Decision, she discussed her 'recommendations' with Cllr Brookfield as the Leader of the Council whom she says 'did not disagree'. That is relevant because of the altercation between Cllr Brookfield and the Claimant on 'Civic Sunday' on 16^th October 2022. That evening, Cllr Brookfield emailed Cllr Evans to say that the Claimant had approached him at the service to say that his solicitors would be writing to Cllr Brookfield. The latter assumed he meant Cllr Evans' decision and said 'nothing for me then', prompting the Claimant to 'move into his personal space'. Cllr Brookfield said he told the Claimant to 'Go away', who retorted 'Or what ?' several times before swearing at Cllr Brookfield and leaving. The Claimant's account is that he approached Cllr Brookfield to ask for a meeting to discuss Cllr Evans' letter prompting Cllr Brookfield to repeatedly tell him to 'get away from me' and to say repeatedly 'you're a bully and you know it'. The Claimant contends this reference to him being a 'bully' shows Cllr Brookfield agreed with Cllr Evans' letter and prejudged the issue. In evidence, the Claimant accepted he did instruct solicitors soon afterwards, but this was prompted by a WCC Officer telling him he needed a lawyer. However, that was not in his previous statements. This factual issue is difficult to resolve given Cllr Brookfield is no longer with us to be questioned, although he did give a contemporary account, whereas the first account from the Claimant was over a week later in his statement in support of an injunction. On either view Cllr Brookfield did tell the Claimant to 'get away from him' repeatedly. Doing the best I can to resolve this difficult and sensitive dispute, I find that even if Cllr Brookfield did call him a 'bully', the Claimant has not proven on balance of probabilities that Cllr Brookfield was referring to Cllr Hibbert's complaint, still less 'prejudging' it, for three reasons:

a. Firstly, as Mr Mundy said, the Claimant approaching Cllr Brookfield despite being told to move away could have been seen as 'bullying'. It is more likely than not that was what he was referring to rather than Cllr Hibbert's allegations that Cllr Evans specifically thought were not bullying.

b. Secondly, whilst I accept by 16^th October that Cllr Brookfield was aware of Cllr Evans' decision, she says that he 'did not disagree', not that he positively endorsed it, as one might expect her to say if he had done so.

c. Thirdly, indeed, as the Claimant points out, Cllr Evans' letter purported to impose not just recommend a warning and decision to remove him from committees. Yet Cllr Evans does not suggest Cllr Brookfield saw that letter and said she discussed her 'recommendations' with him. Indeed, her statement says he had 'perhaps' suggested a 12-month warning should be voted on by the WLG. Whilst she does not mention that Cllr Brookfield said this about removal from committee, she accepts that would have to be voted on by WLG (as I explain later). Yet that is not what she said in her letter. I infer on the balance of probabilities that Cllr Brookfield advised Cllr Evans that both proposals should be voted on by WLG, but Cllr Evans, whose forte is not procedure, badly expressed her 'recommendations' as 'conclusions'.

For those reasons, far from 'prejudging' Cllr Hibbert's allegations that the Claimant was a bully, I find that Cllr Brookfield advised Cllr Evans that she could not remove the Claimant from committees which WLG would have to vote on that and suggested that it should also do so in relation to the warning.

37. This may also explain why Cllr Brookfield was also copied in by Mr Islam to email traffic about the minutes of the meeting of 6^th October. Nevertheless, because the Claimant believed Cllr Brookfield had made his mind up on Cllr Hibbert's complaint (which I find he had not), that triggered the Claimant on 17^th October and again on 18^th October 2022 to email the Regional Director of the Labour Party, in order to appeal (as he knew Cllr Hibbert had successfully done with withdrawal of the whip in 2021). On 19^th October, the Claimant also requested a copy of Mr Islam's minutes of the 6^th October meeting, which as I have explained he only challenged in part in an email on 20^th October. However, by then, following (I have found) the advice of Cllr Brookfield, Cllr Evans had re-described her 'conclusions' of a warning and removal from committee in her 13^th October letter as 'recommendations' in a letter to the Claimant on 19^th October, which stated:

"Further to my letter dated 13th October 2022, I can confirm that the recommendations that I outlined in the letter will be an item agenda at our next Labour Group meeting on Monday 31st October 2022 (at 7pm, in person at the Civic Centre), to which you are invited. The procedure to be followed for this disciplinary matter is outlined in the agenda (please see enclosed) and as you will note, you will have the opportunity (if you so wish) to make a case to the Labour Group in response to the recommendations. The matter will be dealt with at the meeting, regardless of whether you are in attendance or not."

The agenda enclosed with that letter included this agenda item about the Claimant:

"Whip(s) Report: Investigation of Complaint(s) against a Councillor:

a) The Chief Whip(s) to report to the meeting the outcome of their investigation against a Councillor after a complaint was made. The Chief Whip to recommend to the Labour Group i) Issuing a written warning. This will be on file for 12 months and then it will be removed. ii) The Councillor to be removed from the following committee(s) with immediate effect, subject to any procedures required by the Council / Labour Group.: Governance & Ethics, Economy and Growth….

b) The Councillor(s) concerned have the opportunity (if they so wish) to make a case to the Labour Group meeting in response to any charges.

c) Members to have the opportunity (if they so wish) to ask questions

d) A straight vote should be taken on the whip's proposal and any amendments moved and seconded (regardless of whether the Councillor is in attendance or not.

e) Any decision takes immediate effect, subject to any procedures required by the council. There is no appeal against such decisions which are in the province of the Labour Group."

This agenda was also sent to all members of WLG by Cllr Jaspal, its Secretary.

38. However, the WLG meeting on 31^st October 2022 to vote on what had become Cllr Evans' 'recommendations' to impose a 12-month warning on the Claimant and remove him from the two committees on which he sat with Cllr Hibbert never happened. The Claimant instructed solicitors who invited the Defendants to delay the meeting, but gave them very little time before applying on 27^th October 2022 for a short-notice injunction in Bristol (where his solicitors were based). This was granted by HHJ Russen KC on 28^th October. This restrained the Defendants from disclosing to third parties Cllr Hibbert's allegations and any findings by Cllr Evans, publishing the minutes of the 6^th October meeting and disclosing what was said at it; and disclosing any 'Whip's Report' (although it is now common ground there was no such report, as Cllr Evans planned to report to the meeting verbally); and from holding a meeting to vote on her proposal in relation to the Claimant. Accordingly, on 31^st October, whilst WLG met to discuss other matters, there was no vote in relation to the Claimant, and Cllr Evans simply addressed members in generic terms about complaints without naming the Claimant. Moreover, on 11^th November 2022 at the return date before HHJ Russen KC, the Defendants gave undertakings in the same terms as the injunction of 28^th October 2022.
39. By then, the Claimant had issued a Claim Form on 4^th November and Particulars of Claim followed on 18^th November 2022. Whilst I need not detail the procedural history, as I have explained, the claim originally alleged defamation by Cllr Brookfield on 16^th October, but that abated when he died in 2023. That leaves allegations of breach of express and implied terms of contract which I detail later. The Claimant also stood down as a councillor at the May 2023 election and so left WLG. Nevertheless, whilst he can no longer be made subject of warning or removal from committees, he still sought an injunction to protect his reputation from the allegations, which he says had been harmed by the allegations, including Central Co-Op withdrawing from a proposed business deal with his company on 22^nd November, which the Claimant says was because of social media posts about the dispute before the injunction. But there is no direct evidence of this and I find the Claimant cannot prove on balance of probabilities that a third party withdrew from a deal because of social media posts about something which did not then happen.

What were the terms of the contract relating to the disciplinary process ?

40. I have not yet set out the relevant express terms of the association contract in this case, because rather unusually there is a dispute about what those terms were, not just their meaning. The dispute is whether the express terms included the 'Labour Group Disciplinary Procedures'; and WCC's Code of Conduct. I say 'unusually' as a Westlaw search reveals only one case on 'incorporation by reference' with 'unincorporated associations' (confusingly similar expressions I will unpack in a moment), namely Downey v Stevens [2021] EWHC 752 (Ch), which I have considered but really concerns a quite different point. This may explain why Mr Mundy, despite all the legal skill and erudition which has just seen him appointed a Silk, was unable to refer me to any cases addressing this point. Moreover, as the Claimant represented himself, he could not be expected to do so either. So, I will address this issue by cross-checking both their submissions against my own legal research to see whether or not they accord with legal principle.
41. To assist the Claimant, it may be helpful to distinguish the concepts and explain relevant law on 'unincorporated associations' and 'incorporation by reference'. Confusingly, the concept of 'incorporation' is being used in two very different senses: shown by an online dictionary search: (1) 'the inclusion of something as part of a whole e.g. 'the software facilitates the incorporation of active learning in the course'; and (2) the process of constituting a company, city, or other organisation as a legal corporation e.g. 'a law allowing incorporation as a company'.
42. An 'unincorporated association' in law is an association of people banded together by a contract in common (non-business) purposes not 'incorporated as a company': Unionist Central Office v Burrell [1982] 1 WLR 522 (CA). (That case decided the mid-70s Central Office of the Conservative Party was not - but a local branch was - an 'unincorporated association'). Since an 'unincorporated association' is not 'incorporated as a company', it has no separate legal personality, which is why there are four 'representative defendants' here, not just 'WLG'; and why there is no 'limited liability'. However, an organisation's contractual status does not tell you what contractual terms are included. Part of the answer is given by the principles explained in Evangelou v McNicol [2016] EWCA Civ 817, which interpreted the meaning of the Labour Party Rule Book's 'freeze date' for eligibility of new members to vote in the 2016 leadership election. As Beatson LJ explained at [19]:

"The nature of the relationship between an unincorporated association and its individual members is governed by the law of contract:

(a) The contract is found in the rules to which each member adheres when he or she joins the association: see Choudhry v Tresiman [2003] EWHC 1203 (Comm) at [38] per Stanley Burnton J.

(b) A person who joins an unincorporated association thus does so on the basis that he or she will be bound by its constitution and rules, if accessible, whether or not he or she has seen them and irrespective of whether he or she is actually aware of particular provisions: John v Rees [1970] 1 Ch 345 at 388D – E; Raggett v Musgrave (1827) 2 C & P 556 at 557.

(c) The constitution and rules of an unincorporated association can only be altered in accordance with the constitution and rules themselves: Dawkins v Antrobus (1881) 17 Ch D 615 at 621, Harington v Sendall [1903] 1 Ch 921 at 926 and….Sinclair v Finlay [1958] 3 All ER 353 at 355B – C."

43. So, the contract of an unincorporated association is comprised in its (accessible) rules, as altered only in accordance with those rules, whether or not an individual member is aware of them. However, that does not address the question whether the association's rules can be changed by or include documents external to the rules themselves. That is where the legal concept of 'incorporation by reference of contract terms' comes in, which applies to contracts of unincorporated associations just as it applies to all other contracts. Unlike 'incorporation as a company', it is not concerned with the legal status of an organisation, but rather what terms are or are not 'incorporated' by inclusion into the contract. This may not even involve an organisation, let alone a company, such as a contract between two individuals. However, those in the Labour movement will recognise this second legal sense of 'incorporation', as it covers inclusion into individual contracts of employment of external documents like collective agreements and workplace policies as in the High Court case of Stevens v University of Birmingham [2017] ICR 96. In law this is called 'incorporation by reference' because the issue is whether an external document referred to in a contract is 'incorporated' into it i.e. included in it. As Lewison LJ explains in his book 'The Interpretation of Contracts' (2023, 8^th Ed) in Chapter 3, section 10, contracts can 'incorporate by reference' external documents like statutes, contracts and even other documents like policies or guidance (provided relevant provisions are 'apt for incorporation' in the contract as objectively intended to have contractual effect, even if the whole document is not: see Stevens at [57]-[61]). But to be incorporated into a contract, any external document must satisfy Rix LJ's two rules in Tradigrain v King Diamond [2000] 2 Lloyds Rep 319 (CA):

"The first rule relating to the incorporation of one document's terms into another is to construe the incorporating clause to decide on the width of the incorporation …[The] second rule…is to read the incorporated wording into the host document [as a whole] to see if, in that setting, some parts of the wording nevertheless have to be rejected as inconsistent or insensible when read in their new context."

44. Against that background, I turn first to the contractual rules of WLG from 2014, the 'Wolverhampton Labour Group Rules / Standing Orders' ('The WLG Rules'):

"2 Compliance with Rules

1. These standing orders are the minimum expected of Labour group members. All members must accept the rules and standing orders of this group and the general provisions of the constitution and rules of the Labour Party shall apply to this group.

2. Members shall comply fully with the statutory ethical framework, sign and abide by any codes of conduct as may be agreed by the authority and sign and abide by the councillor contract.

3. Where allegations are made of a breach of these standing orders or Labour Party rules by a Labour councillor, action shall be taken in accordance with clause 13. Xlll 'Breach of Rule', of the rules of the Labour Party, NEC disciplinary guidance, and other guidance provided from time to time by the NEC. The Chief Whip shall be responsible for the implementation of such guidance locally."

The first legal issues are whether these clauses incorporate by reference (i) the WCC Code of Conduct; and (ii) the 'Labour Group Disciplinary Procedures' document.

45. It is agreed that clause 2(3) did incorporate by reference chapter 16 clause XIII of the Labour Party Rules 2018 which in the 2022 version live in this case had become Chapter 16 clause XIII (as stated in the Particulars of Claim para.10 and the Defence):

"1. Acceptance of these rules (as approved by the NEC [National Executive Committee of the Labour Party] is a condition of membership of the Labour group on the council.

2. Where allegations of a breach of rule by a Labour councillor are made, action shall be taken in accordance with guidance provided from time to time by the NEC. The chief whip shall be responsible for the implementation of such guidance locally.

3. If, following any initial investigation, the group whip finds a serious breach of rule, it shall be competent for the group whip to be withdrawn for a specified period up to a maximum of six months or for an indefinite period, from any member who is in breach of these rules, such action to be initiated by the group whip who shall:

A. report to the officers of the group and the appropriate Party Local Government Committee who shall ensure that there is no Party discussion on the proposed action outside the procedure provided for in this rule until this procedure has been completed.

B. convene a joint meeting of the Labour group and the executive of the appropriate Party Local Government Committee at which upon due notice the matter shall be determined with the chair from the Labour Group and evidence taken in writing, from the defendant, and from witnesses as necessary)….

5. Withdrawal of whip

A. A decision to withdraw the whip shall take immediate effect but is subject to appeal within 14 days to the appeal panel of the Regional Executive Committee who shall hear the appeal within 14 days where practicable of receipt and whose decision shall be final….

6. Any member of the group who has had the group whip withdrawn shall at the time of such withdrawal be informed of their right to appeal."

Whilst the Tradigrain test was not raised by the parties, it is beyond doubt that the wording of clause 2(3) WLG Rules is wide enough to incorporate Chapter 16 clause XIII of the Labour Party Rules, which is not inconsistent or insensible when read in that new context (and as a contractual document need not be separately 'apt for incorporation', but plainly is). Therefore, clause XIII is 'incorporated by reference'.

46. The incorporation by reference of the WCC Code of Conduct for Councillors (the material parts of which on 'Respect', 'Bullying and Harassment', 'Disrepute' and 'Use of Position' were relied on in the 13^th October Decision quoted above) is disputed by the Claimant's Particulars of Claim at para.18, which contends the WLG cannot take steps under the WCC Code, with is a local authority procedure. It is also pleaded Cllr Evans said on 31^st October that she 'would not use the Code'. However, she said no such thing: she just reminded WLG members could complain either to it or WCC. The Code was also mentioned at para.9 of the Defence, which also pleaded Councillors should comply with the seven 'Nolan Principles'.
47. The Claimant argues that Cllr Evans was wrong to take into account the WCC Code of Conduct in the Decision, as that code relates to the separate statutory complaints procedure to WCC about councillors under the Localism Act 2011 not internal complaints within WLG. However, as Mr Mundy observed, clause 2(2) WLG Rules expressly refers to the WCC Code of Conduct and requires WLG members to abide by it. He submitted at least the parts of it that councillors were required to comply with were entirely consistent and coherent with the WLG Rules and incorporated. Testing that submission against the two Tradigrain hurdles, I agree the language of clause 2(2) is wide enough to incorporate the parts of the WCC Code of Conduct councillors must abide by (i.e. the parts extracted in the Core Bundle, including the provisions quoted in the Decision). I also consider those parts of the WCC Code of Conduct were entirely consistent and coherent with the WLG Rules, which would otherwise provide no rules to regulate members' conduct, which would be strange. Moreover, as clear rules of personal prohibition and obligation, they were plainly 'apt for incorporation' and intended to be incorporated in all the circumstances. The Claimant's objection that WCC's Code of Conduct relates to a different complaints process rather misses the point. I entirely accept that procedural provisions of the WCC Code of Conduct about how WCC was going to investigate complaints (such as requiring use of the complaint form he produced) would not fit comfortably into the WLG Rules and would not be 'apt for incorporation'. But that does not mean the conduct standards themselves were not 'apt for incorporation'. Indeed, it makes sense to have the same set of standards in both procedures, since it enables one colleague to raise concerns internally in WLG about another without invoking an external complaint to WCC. That may not be the Claimant's conception of 'Nolan openness', but it would be an entirely reasonable alternative which would avoid airing internal disputes in public, such as the Claimant had done. Mr Mundy's submission is consistent with the law on incorporation by reference and I accept the WCC Code of Conduct standards had contractual effect in WLG's contract. Therefore, Cllr Evans was entitled to judge the Claimant's conduct by them (but whether her judgement was rational is a separate issue I consider at the end).
48. The other dispute about the contractual terms was fully debated in the pleadings and indeed was perhaps at least until trial the central dispute between the parties. Para.12 of the Claimant's Particulars of Claim (drafted by counsel when he was represented) contended that the document titled the 'Labour Group Disciplinary Procedure' (which I shall call the 'Disciplinary Procedures') was not incorporated into the WLG Rules. By contrast, paras.10-13 of the Defence contend the 'Disciplinary Procedures' are incorporated under clause 2(3) WLG Rules. The key operative provisions of those procedures state, so far as material:

"Investigation procedure

….[W]hen the whip receives information or an allegation suggesting a breach of the rules, it is in no-one's interest for investigations and, where appropriate, disciplinary action to be delayed. The chief whip should always act promptly to investigate the matter; always having first given careful thought as to the sensitive and appropriate way to proceed.

If the allegation relates to conduct of a criminal nature (eg fraud, assault) the whip should always seek external advice through the party's constitutional officer before acting.

In normal circumstances:

• The whip should seek to establish, as accurately as possible, the nature and extent of the allegations of breaches of the rules and to identify and secure any evidence supporting the allegations

• The whip should request the individual to meet her/him at a mutually convenient time within the next (say) seven days….

• The request to arrange a mutually convenient time should preferably be done by personal contact (meeting, phone), followed by a confirmatory letter….

• It is a requirement that the individual be given an indication of the nature (but not the details) of the complaint or incident about which the whip wishes to see the individual

• The whip should ask another member (e.g. an assistant whip or another group officer but not someone who has an involvement in the complaint) to be present to take a note of the interview. A verbatim note is obviously the most useful, but is not a requirement. It is, however, essential to make an accurate note of the key questions and answers

• The individual should be advised that s/he is entitled to have a friend present. It is not advisable for that friend to have been a 'witness' to the relevant events, or someone who is subject to disciplinary proceedings arising from the same issues.

• In advance of the meeting, the whip should identify the questions that need to be answered and the information that needs to be established, and determine whether s/he needs to see any other individual or secure any written documentation

• The task of the meeting is to establish: 1) the facts 2) whether there has been a breach of the party's rules; 3)…any mitigating circumstances.

• The notes of the meeting should be written up and, if necessary, the individual asked to sign them as an accurate summary of the interview.

• After the interview, the whip should analyse the information and write a brief report which again sets out the facts, identifies the breach(es) to the party's rules and notes any mitigating circumstances, and then, where appropriate, come to a view about the nature of the disciplinary action to be followed (see below).

• In certain circumstances, it may be appropriate to make another group officer (eg the group leader) aware of the findings, and seek her/his views on the course of disciplinary action to be taken. But the responsibility for determining the nature of the disciplinary action rests with the whip.

• In coming to her judgement about the appropriate action to be taken, the whip should take into account the previous disciplinary record of the individual.

• It would normally be appropriate to arrange to see the individual again to advise her/him of the disciplinary action proposed; the timing of this may be dependent upon the nature of the action to be taken.

Disciplinary procedure

If some form of disciplinary action is considered to be appropriate or necessary then the following procedures should be adopted.

1. Warning

If a warning as to the behaviour and future conduct of the councillor concerned is appropriate, this may be issued by the chief whip. The warning could be a verbal warning ("You've broken the rules; don't do it again"), or it could be a written warning. Either could be linked to a requirement to provide written assurances to abide by the rules in future, for example, or to apologise to the group for the breach of rule, or if appropriate, apologise to the council or another body.

The decision as to whether such warnings are reported to the Labour group or not is a matter for discretion. If not automatically reported, the whip should respond accurately to questions from group members about the action taken following a particular event or complaint.

A record of the warning should be kept and may be used as evidence in future disciplinary proceedings should the improper behaviour recur, or taken into account in assessing the appropriate action to be taken in future disciplinary proceedings in relation to other matters…

2. Removal from positions within the province of the group

Where it is felt that some action should be taken by the group which would remove a councillor from positions s/he holds which are in the determination of the group or the council via the group by virtue of the 1989 Local Government and Housing Act (eg membership of committees, chairs and vice-chairs of committees)…this must be dealt with by the full group.

The group whip should report to a full meeting of the group and make the proposed action a notified agenda item. The normal standing orders of the group would apply to such a meeting except that no vote should be taken until the councillor/s concerned have had the opportunity to make a case to the meeting in response to any charges. A straight vote should be taken on the whip's proposal and any amendments moved. All members of the group are entitled to vote and any decision takes immediate effect, subject to any procedures required by the council.

There is no appeal against such decisions which are in the province of the group (they are, in effect, questions of no confidence in the office holder). No decision, however, may be taken which would prevent a councillor seeking re-election to such posts when they come up for election …"

If these procedures were incorporated by reference into the WLG Rules, that is a double-edged sword. The Defendants rely on the specific authorisation of the sanctions of warnings and removal from committees. On the other hand, the latter can only be done by the group, not the whip alone. Moreover, if contractual, the Claimant could rely on the 'requirements' (at least 'in normal circumstances') on the whip to give an individual 'an indication of the nature (but not the details) of the complaint'; and that they are 'entitled to have a friend present at the meeting'. Cllr Evans accepted that neither was done in the present case. I discuss those issues below on breach of express terms, but I must first decide if they qualify as such.

49. The first dispute between the parties on this issue was factual – i.e. whether these 'Labour Group Disciplinary Procedures' were 'NEC disciplinary guidance' or 'other guidance provided from time to time by the NEC' under clause 2(3) WLG Rules. In legal terms, that goes to the first Tradigrain rule: whether clause 2(3) is wide enough to incorporate the Disciplinary Procedures. The Claimant argued (as his lawyers previously pleaded) that the provenance of the 'Disciplinary Procedures' was unclear and there was no positive evidence they were produced by the national Labour Party National Executive Committee ('NEC'). Mr Mundy accepted that but invited me to infer endorsement by the NEC from the terms of the document itself. On balance, I agree with Mr Mundy:

a. Firstly, as he pointed out, the first page of the Disciplinary Procedures addresses them to 'Secretaries and chief whips of all Labour Groups' (i.e. in councils) and was promulgated by the national Labour Party's 'Acting Head of Internal Governance' at that time in April 2018, Mr Fraser Welsh. As Mr Mundy submitted, such promulgation on balance of probabilities required the authorisation of the NEC, which under Chapter 1 Clause XIII of the Labour Party Rules is the body ultimately responsible for the Party.

b. Secondly, as the Disciplinary Procedures state (my italics):

"Acceptance of the rules (for local government Labour groups) as approved by the NEC is a condition of membership of the Labour group on the council. (Clause 13.XIII.1 [of the Labour Party Rules in 2018, now Clause 16 XIII.]. The rules set out some explicit requirements for Labour councillors and additional guidance is provided by the NEC from time to time e.g. model standing orders for groups……[I]t is the chief whip's job…to determine the appropriate action, subject to any over-riding instruction or advice by the NEC or the General Secretary of the party (and normally exercised by the party's national and regional officers on his or her's behalf). The NEC and party officers retain the right to vary the following disciplinary procedures depending on the gravity of the allegation(s) and have the power to automatically suspend a member in such circumstances."

Those italicised words support the inference that the NEC authorised the 'Labour Group Disciplinary Procedures' document as 'additional guidance' and an 'overriding instruction' to local council party chief whips, since the NEC reserved the right to vary those Disciplinary Procedures.

c. Moreover, as quoted above, clause XIII para.2 of the Labour Party Rules 2022 provides that action in relation to allegations of breach of the rules by a Labour councillor 'shall be taken in accordance with guidance provided from time to time by the NEC'. That presupposed there is such guidance by the NEC. That gap appears to be filled by the 'Labour Group Disciplinary Procedures' document which provides such guidance to whips. To put it another way, it seems unlikely there are two sets of such guidance: one from the NEC and another from the 'Head of Internal Governance'.

So I am satisfied on the balance of probabilities that the 'Labour Group Disciplinary Procedures' document (that I now just call the 'Disciplinary Procedures') was 'NEC disciplinary guidance' or 'other guidance provided from time to time by the NEC' for the purposes of clause 2(3) WLG Rules and therefore potentially incorporated.

50. I say 'potentially incorporated' as the Claimant also submits that incorporation of the Disciplinary Procedures would be inconsistent with Clause XIII para.3 of the Labour Party Rules (agreed to be part of the WLG Rules as incorporated by reference as I explained). He submits para.3 limits available sanctions to withdrawal of the whip. Whilst of course he did not put it this way, that engages the second rule in Tradigrain, namely whether 'reading the incorporated wording into the host document [as a whole]…in that setting, some parts of the wording nevertheless have to be rejected as inconsistent or insensible when read in their new context' and indeed whether the document was not 'apt for incorporation' in the sense in Stevens. However, whether there is such an 'inconsistency' or 'insensibility' turns on the interpretation of para.3 Clause XIII Labour Party Rules as a term of the WLG Rules. The Party Rules were interpreted in Evangelou (predating the leading case on contractual interpretation: Wood v Capita [2017] 2 WLR 1095 (SC) but as quoted, entirely consistent with it). In Evangelou at [20]-[23], Beatson LJ said:

"20. Because the nature of the relationship between an unincorporated association and its individual members is governed by the law of contract the proper approach to the interpretation of the constitution and rules is governed by the legal principles as to the interpretation of contracts and is a matter of law for the court. The approach is thus that set out in cases such as Chartbrook v Persimmon [2009] 1 AC 1101...Arnold v Britton [2015] AC 1619…and Marks and Spencer v BNP Paribas [2015] 3 WLR 1843. The intentions of the parties to a contract will be ascertained by reference to what a reasonable person having all the background which would have been available to the parties would have understood the language in the contract to mean, and it does so by focusing on the meaning of the words in the contract in their documentary and factual context.

21. The meaning is assessed in the light of the natural and ordinary meaning of the words, any other relevant provisions of the contract, the overall purpose of the clause in the contract and the facts and circumstances known or assumed by the parties. In this context this means the members of the unincorporated association the Labour Party. In Foster v McNicol….Foskett J … stated the court can take into account 'the readership to which' the rules of an unincorporated association are addressed when interpreting them.

22. The effect of the cases…is that the clearer the natural meaning of the centrally relevant words, the more difficult it is to justify departing from it..

23. The court will more readily and properly depart from the words of a contract where their meaning is unclear or ambiguous, or where giving their natural and ordinary meaning would lead to a very unreasonable result. As to the latter, while it is illegitimate for a court to force on the words of a contract a meaning which they cannot fairly bear, in Wickman v Schuler [1974] AC 235 Lord Diplock stated 'The fact a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result, the more necessary it is that they shall make that intention abundantly clear'. In both categories of case the court will consider the relevant context, being concerned to identify the intention of the parties by reference to 'what a reasonable person having all background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean'."

51. Applying those principles, I accept Mr Mundy's submission that the sanctions in the Disciplinary Procedures are consistent with Clause XIII para.3 for five reasons:

a. Firstly, as Mr Mundy submitted, on the natural meaning of the centrally relevant words (c.f. Evangelou at [22]), Clause XIII para.3 does not restrict the available sanction to withdrawal of the whip to the exclusion of other sanctions, it simply regulates the procedure for withdrawal of the whip:

"If…the group whip finds a serious breach of rule, it shall be competent for the group whip to be withdrawn for a specified period….from any member who is in breach of these rules, such action to be initiated by the group whip who shall…[etc]." (my italics)

If intended to have the effect the Claimant contends it could easily have said:

"If…the group whip finds [any] breach of rule...[the only sanction is] for the group whip to be withdrawn…[etc]." (my italics and brackets).

b. Secondly, para.3 clause XIII focuses on a 'serious' breach of rule, which must be read with para.2 clause XIII (which is 'another relevant provision of the contract': c.f. Evangelou at [21]) that concerns any breach:

"Where allegations of a breach of rule by a Labour councillor are made, action shall be taken in accordance with guidance provided from time to time by the NEC. The chief whip shall be responsible…"

Read together, paras 2 and 3 differentiate between any breach of rule, for which action must be taken in accordance with NEC guidance (such as the Disciplinary Procedures, including warning and removal from committees); and serious breaches of rules that may justify the more serious sanction of withdrawal of the whip, justifying more procedural safeguards, not just in guidance but in the Labour Party rules themselves.

c. Thirdly, 'facts and circumstances known by the parties' and the 'readership' of the WLG Rules in their documentary context (Evangelou at [20]-[21]) for para.3 Clause XIII Ch.16 Labour Party Rules 2022 would include knowledge of the Disciplinary Procedures published in 2018 (whatever their formal status). In other words, the Labour Party Rules in 2022 would have been drafted in the knowledge that there was existing Party guidance (covered in the Party Rules in para.2) regulating lesser sanctions than withdrawal of the whip like warnings and removal from committees.

d. Fourthly, alternatively, para.3 clause XIII chapter 16 Labour Party Rules 2022 is 'unclear or ambiguous', justifying more weight be given to its factual context (Evangelou at [23]). A 'reasonable person having all background knowledge available to the parties would have understood' that as the local group of councillors had practical control over removal from committees (as I shall explain) as a lesser sanction than withdrawal of the whip, so they needed a procedure to remove in a disciplinary context. Similarly, it makes sense for the group to be able to impose a warning, including for conduct that does not breach of the Code of Conduct enabling a statutory complaint to the council (e.g. attempted political party defection).

e. Finally, non-availability of lesser party sanctions than withdrawal of the whip would be a very unreasonable result, so should be avoided if possible (Evangelou at [23]) and can be avoided by the above reading.

52. Therefore, the lesser sanctions of warnings, removal from committees (and removal from positions within the gift of the council itself, which does not arise here) in the Disciplinary Procedures can and should be read consistently with the more elaborate procedural safeguards for withdrawal of the whip in Clause XIII paras.3-5 Labour Party Rules 2022. So, there is no reason why the sanction provisions quoted above should be excluded from incorporation under the second rule in Tradigrain or 'inapt for incorporation' under the principles in Stevens. On the contrary, their precise language regulating the imposition of the different sanctions (permitting the chief whip to warn, but only the group itself to remove from committees; and the absence of an appeal in either case as the document later confirms) is entirely consistent with contractual effect (unlike the 'background' section quoted above on the NEC issue).
53. The fact the Claimant was not personally aware of and had never been sent the 'Disciplinary Procedures' document does not mean it was not incorporated into the WLG contract, as Beatson LJ pointed out in Evangelou at [19(b)], which I repeat:

"A person who joins an unincorporated association thus does so on the basis that he or she will be bound by its constitution and rules, if accessible, whether or not he or she has seen them and irrespective of whether he or she is actually aware of particular provisions: John v Rees [1970] 1 Ch 345 at 388D – E; Raggett v Musgrave (1827) 2 C & P 556 at 557."

In fairness to the Claimant, I have considered both Raggett and John to see if there is any nuance in 'accessibility' which supports his position. However, there is not. Raggett is a short Georgian report which states that if club rules are accessible in the secretary's book, members are taken to be acquainted with them. John is another Labour Party case about a chaotic constituency meeting which the chairman ineffectually adjourned but then rebels staged a 'coup' and voted to disaffiliate from Labour in solidarity with their rebel MP Desmond Donnelly. Megarry J held that even though the constituency party was a separate unincorporated association from the national party, it could not disaffiliate from it under its own rules, which bound all members whether or not they actually knew about them. He said at 388:

"Certainly, I do not think it is necessary to bring home to every member when he joins exactly what the rules of the association are. I do not see why someone who joins a club should not do so on the basis that he will be bound by the rules of the club, whatever they may be: see, for example, Raggett…where the rules, though accessible, were neither posted up nor sent to members…..In the case of a club, if nobody can produce any evidence of a formal resolution to adopt a particular set of rules, but on inquiry the officers would produce that set as being the rules upon which it is habitual for the club to act, then I do not think the member would be free to reject those rules merely because no resolution could be proved."

That is precisely the position here with the 'Disciplinary Procedures'. They had been distributed to the local council Labour groups by the national Party and were 'accessible' in the sense that any member could have requested the disciplinary procedure (even if they did not know about the particular procedures in question). Therefore, I accept the provisions on sanction in the 'Disciplinary Procedures' are indeed incorporated by reference into the WLG Rules as the Defendants contend. However, that raises the question I consider below whether Cllr Evans' apparent decision to remove the Claimant from committees was a breach of contract.

54. After all, as I mentioned, incorporation of the Disciplinary Procedures is a double-edged sword. Just as the provisions on sanctions are incorporated by reference, so too are the procedural safeguards in the 'investigatory procedure' section. Again, the language is totally consistent with contractual effect and 'apt for incorporation'. Indeed, it was plainly intended to have contractual effect as providing for lesser safeguards than for withdrawal of the whip. Otherwise, the WLG Rules would not only have no lesser sanctions, but also have no procedural safeguards for the lesser sanctions. So, I also find the 'investigation procedure' safeguards were incorporated as express terms. That brings me onto the Claimant's allegations of breach.

Did the Defendants breach the express terms of WLG's association contract ?

55. In the Claimant's professionally-drafted Particulars of Claim, paragraph 26 alleges five distinct breaches of express term, albeit they all relate to a single issue:

"…the Defendants have breached the express terms of the WLG Rules….:

26.1. the Defendants failed to pursue the only sanction available (namely, removing the whip). Instead, the Defendants pursued a final written warning and removing Mr Birch from the identified committees; and

26.2. the Defendants failed to take any of the required steps, including:

(a) failing to ensure there was no Party discussion on the proposed action outside of the procedure…

(b) failing to convene a joint meeting of the Labour group and the executive of the Party Local Government Committee,

(c) failing to take evidence in writing from the defendant and any necessary witnesses;

(d) The Defendants informed Mr Birch that he would have no right of appeal from their findings (such right being expressly provided within the Labour Party Rules, Chapter 16, Clause XIII, paragraph 5."

The pleaded allegations at para 26.2 concern paras.3 and 5 Clause XIII that I repeat:

"….it shall be competent for the group whip to be withdrawn… from any member..in breach..such action to be initiated by the group whip who shall:

A. report to the officers of the group and the appropriate Party Local Government Committee who shall ensure that there is no Party discussion on the proposed action outside the procedure provided for in this rule until this procedure has been completed.

B. convene a joint meeting of the Labour group and the executive of the appropriate Party Local Government Committee at which upon due notice the matter shall be determined with the chair from the Labour Group and evidence taken in writing, from the defendant, and from witnesses as necessary)….

5. Withdrawal of whip

A. A decision to withdraw the whip shall take immediate effect but is subject to appeal within 14 days to the appeal panel of the Regional Executive Committee who shall hear the appeal within 14 days where practicable of receipt and whose decision shall be final..." (my italics)

56. Therefore, these provisions presuppose that the proposed action was to withdraw the whip from an individual member. However, that was never the action proposed by Cllr Evans and I have already rejected the Claimant's submissions that her sanctions of a warning and removal from committees were inconsistent with para.3. Therefore, all these provisions were simply irrelevant to the Claimant's case. He contended the only sanction available was withdrawal of the whip (with its enhanced procedural safeguards), which Cllr Evans accepted she did not pursue. Now that I have rejected the Claimant's argument that the lesser sanctions were unavailable under the WLG Rules, he cannot say the additional safeguards in the Labour Rules explicitly for withdrawal of the whip applied to those lesser sanctions: they did not. I dismiss the Claimant's pleaded case of breach of express terms and particularly find that Cllr Evans' imposition of a warning was not a breach of express terms (I return to whether it breached any implied terms).
57. However, incorporation of the 'Disciplinary Procedures' raises whether Cllr Evans breached the contract in purporting to remove the Claimant from committees when she had no power. I repeat key provisions, adding the legal explanation that follows:

"Where it is felt that some action should be taken by the group which would remove a councillor from positions s/he holds which are in the determination of the group or the council via the group by virtue of the 1989 Local Government and Housing Act (eg membership of committees, chairs and vice-chairs of committees)…this must be dealt with by the full group.

The group whip should report to a full meeting of the group and make the proposed action a notified agenda item. The normal standing orders of the group would apply to such a meeting except that no vote should be taken until the councillor/s concerned have had the opportunity to make a case to the meeting in response to any charges. A straight vote should be taken on the whip's proposal and any amendments moved. All members of the group are entitled to vote and any decision takes immediate effect, subject to any procedures required by the council.

There is no appeal against such decisions which are in the province of the group (they are, in effect, questions of no confidence in the office holder)…

There are some important legal issues to be taken into account when implementing disciplinary action which involves removals from positions within the province of the Labour Group. These arise from the 1989 Local Government and Housing Act. The 1990 Regulations 8,10(d) and 13, which give effect to the Act, give responsibility to the appropriate political group to choose who should be their representatives on council committees etc.

…Only the council can give effect to the instructions of the group to change the composition of committees. Your group decision has to be enacted through the council before it legally takes effect. Therefore, when the group has made a decision to remove a member from a/all committee(s), the group will also have to decide on the replacement member(s), and the secretary and whip will need to table an appropriate resolution at the next council meeting to give effect to the group decision if so required by the council constitution or inform the appropriate council officer….."

That is legally correct. The mechanism of removal from committees is set out in the Regulations, but the position is clear from s.16(2) of the 1989 Act, which states:

"Where— (a) any person has been appointed, otherwise than for a fixed term, to a body to which s.15 applies [including Council committees]; and (b) that appointment was made, in pursuance of (1) above, in accordance with the wishes of a political group, then, so long as that person's seat continues to be allocated to that group, the authority or committee which made the appointment shall act in accordance with the wishes of that group in determining whether and when to terminate the appointment." (out of interest, s.16 was touched on only yesterday in Spitalfields Trust v Tower Hamlets LBC [2025] UKSC 11 at [10]).

58. In fact, clause 6 of the WLG Rules themselves governed the appointments to committees, which was a matter for the Leader (Cllr Brookfield) (what the Claimant called 'grace and favour') and WLG's appointments committee, not the Chief Whip. So, Cllr Evans had no authority to say in her Decision of 13^th October 2022:

"[W]e have decided that you will be removed from the following committee(s) with immediate effect: • Governance & Ethics • Economy and Growth Scrutiny Panel. The Group Secretary will be in touch with you in due course to identify alternative committees for you to attend."

The question is the consequence of Cllr Evans having said that, but it never actually being implemented (as the Claimant accepts – he stayed on the relevant committees until he stepped down as a councillor in May 2023). It was never implemented because Cllr Evans changed course on the 19^th October to say:

"Further to my letter dated 13th October 2022, I can confirm that the recommendations that I outlined in the letter will be an item agenda at our next Labour Group meeting on Monday 31st October 2022...[stating]:

…7(a) The Chief Whip to recommend to the Labour Group i) Issuing a written warning. This will be on file for 12 months and then it will be removed. ii) The Councillor to be removed from the following committee(s) with immediate effect, subject to any procedures required by the Council / Labour Group.: Governance & Ethics, Economy and Growth…."

The Claimant then obtained an injunction on 28^th October 2022 to restrain that meeting and then the Defendants gave undertakings which have remained since. Nevertheless, the issue is whether Cllr Evans' Decision on 13^th October purporting to remove him from committees without authority was a breach of contract.

59. The issue of breach of association rules and its consequence was considered by the Court of Appeal in Speechley v Allott [2014] LLR 817, where it was held a local sports club had breached its technical rules for the appointment of officials by appointing them at an AGM without the requisite notice and without a secret ballot, invalidating the election. Lewison LJ referred to Megarry J's comments in Re GKN Nuts and Bolts Ltd Social Club [1982] 1 WLR 774 at 776:

"[U]sually there is a considerable degree of informality in the conduct of the affairs of such clubs. [T]he courts have to…allow general concepts of reasonableness, fairness and common sense to be given more than their usual weight when confronted by claims to the contrary which appear to be based on any strict interpretation and rigid application of the letter of the rules. In other words, allowance must be made for some play in the joints."

In Speechley, Lewison LJ at [30] said that only referred to the second of a two-stage analysis to examine breaches of express association rules:

"[28] There are… two separate questions: (i) What do the rules require? (ii) What is the effect of non-compliance with those requirements?

[29] The answer to the first of these questions is a question of interpretation of the rules. In answering that question, the rules are to be interpreted in the same way as any other contract, making due allowance for the fact that the rules are intended to be operated by non-lawyers…

….The answer to the second question involves a rather different inquiry. The point was well-made by Sir Stanley Burnton in Newbold v The Coal Authority [2014] 1 WLR 1288, which concerned the validity of notices of subsidence damage. He said at para [70]: 'In all cases, one must first construe the statutory or contractual requirement in question. It may require strict compliance with a requirement as a condition of its validity. In Mannai at 776B Lord Hoffmann gave the example of the lease requiring notice to be given on blue paper: a notice given on pink paper would be ineffective. Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of that statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation, and the parties in the case of a contractual requirement, would have intended a sensible, and in the case of a contract, commercial result."

As Ritchie J said in Mok v Fitzmaurice [2024] EWHC 2084 (KB) at [30]-[31], that is not the same as saying that the association's rules must be 'strictly followed': and he explained, at the first stage, the approach to interpretation is that in Evangelou. Ritchie J held technical failings making no difference did not invalidate expulsion. That is one 'effect of non-compliance'. Others were discussed in detail by Foxton J recently in Hayes v Peck [2025] EWHC 402 (KB) at [12]-[25]. It suffices to say he explained that despite the similarities, unlike judicial review, the consequences of breaches of contract turned on orthodox principles of contract law. He differentiated procedural breaches which invalidated a contractual decision (raising whether the court could 'cure' or 'substitute' a decision); from those sounding only in damages (raising counterfactual questions of loss); from those making no difference: but for which the decision would have been the same and lawful. That is what he found with the expulsion of a senior member of the Liberal Democrat Party, where a breach of contract on one conclusion did not undermine a decision based on several.

60. But I agree with Mr Mundy that the Claimant cannot complain of any breach because:

a. Firstly, this is not a pleaded breach of an express term - I have set out and rejected the Claimant's pleaded breaches of express terms already. It is true, as I consider below, that the Claimant does plead breach of implied terms (of good faith, rationality and in accordance with natural justice) that: 'On 19 October 2022, despite Ms Evans having already informed him that he had been found guilty and sanctioned, the Defendants purported to convene a meeting for the WLG to vote on his guilt and the appropriate sanction'. However, that is a complaint about the letter of 19^th October, not about the Decision of 13^th October. The Claimant never pleaded Cllr Evans breached the Disciplinary Procedures because he pleaded they were not incorporated.

b. Secondly, as Cllr Evans' decision to remove the Claimant was never actually implemented (and had been rescinded even before the injunction), it never amounted to an actual breach of contract, only a threatened breach that was withdrawn. The principle was explained by Lewison LJ in Compass v Mid-Essex NHS [2013] EWCA Civ 200, where wrongful price deductions under a contract were swiftly corrected:

"141….In my judgment it is not generally a breach of contract merely to assert rights which the contract does not confer. In Kenny v Preen [1963] 1 QB 499 one of the questions was whether a landlord had committed a breach of the covenant for quiet enjoyment by asserting that the tenancy had come to an end. Pearson LJ said: '...In my judgment, a landlord by merely making that assertion, however wrong he may be, does not commit a breach of covenant. He is entitled to make that assertion, at any rate if he believes it to be true, frequently, emphatically and even rudely. He is entitled also to threaten proceedings in the courts for possession and damage'….

143…If action is taken on the basis of the assertions, then the actions themselves may well amount to a breach. But in the present case in so far as the Trust did act on its assertion that it was entitled to make Deductions, it repaid the amounts deducted following the 'cure letter'. The [deductions] had no continuing consequences because…. There was, therefore, no material breach still subsisting when [Compass] purported to terminate the contract."

(Whilst the Claimant submitted that Compass could be distinguished, he was focussing on a part of it which addresses implied terms which Mr Mundy did not rely on).

c. Thirdly, even if Cllr Evans' purported removal from committees of the Claimant did not comply with WLG rules (Speechley Stage 1), the issue is the consequence (Speechley Stage 2), decided by considering the words of the contract, its subject matter, background, purpose and effect of non-compliance on the parties and on the basis they intended a sensible and commercial result. I agree with Mr Mundy the effect of Cllr Evans' unauthorised decision to remove the Claimant from committees with immediate effect was simply contractually ineffectual. It did not invalidate her conclusion that he had breached the WCC Rules and so WLG rules, or her imposition of a warning. Nor did it invalidate the swift correction by the contractually-valid procedure of her proposing a WLG vote on sanctions. I readily accept Cllr Evans' originally departed from the words of the contract that removal from committees 'must be dealt with by the full group'. That was not merely technical, especially in the political context; and had a potentially serious impact on the Claimant. I accept it was 'contractually invalid' as Foxton J described in Hayes at [15]. However, as he added at [16], if uncorrected the Court could consider whether to take such a decision itself or 'leave the contractual decision-maker to make a fresh decision', which he thought appropriate in the political party context. That is precisely what Cllr Evans had already done herself, in less than a week. It would be artificial to ignore the fact that non-compliance was swiftly remedied; and totally nonsensical to conclude the rest of the original decision was invalidated, or that it was incapable of being superseded by a valid process.

61. However, before turning to the Claimant's pleaded claim on implied terms, there are two more potential breaches of express terms which I consider together, namely:

"In normal circumstances:

• It is a requirement that the individual be given an indication of the nature (but not the details) of the complaint or incident about which the whip wishes to see the individual…

• The individual should be advised..he is entitled to have a friend present..."

As I have explained, these were incorporated as terms of the WLG association contract and so, breach of either would breach express terms. But again, I agree with Mr Mundy the Claimant cannot complain of that here:

a. Firstly, again, these are not pleaded complaints of breaches of express terms, but of implied terms, particularly 'natural justice'. Indeed, as I will explain, their status as express terms is relevant to the pleaded claims of breach of implied term, but that is not the same as pleading breach of express terms.

b. Secondly, on the merits, both 'requirements' are qualified by the rider 'in normal circumstances'. That is part of the express terms, which must be interpreted on the normal principles in Evangelou, including at [21] all the background known to the 'readership': all sophisticated elected councillors and taken to be familiar with procedural rules, as Mr Mundy pointed out. Indeed, the Claimant had already been to a disciplinary meeting with Cllr Evans less than a year earlier. That made this an 'abnormal' case where Cllr Evans was entitled to assume, as she said in evidence, that the Claimant would ask for a companion if he wanted one without 'reminding of his rights'; and ask for more detail of the allegation if he wanted it as well.

c. Thirdly, even if that is wrong, the phrase 'in normal circumstances' created a contractual discretion for Cllr Evans to decide whether the circumstances were 'normal', which engages not express but implied terms, to which I now turn.

Did the Defendants breach implied terms in conducting the procedure ?

62. Three implied terms are pleaded at para.11 Particulars of Claim, namely:

"(i) That the decisions by WLG and its officers would be made in good faith and would not be capricious or arbitrary [which I call the 'good faith term']

(ii) WLG and its officers (including the Defendants) would not act in a way which was Wednesbury unreasonable; [which I call the 'rationality term']

(iii) WLG and officers would observe rules of natural justice in initiating, conducting and implementing disciplinary procedures (including any sanction recommended, pursued or imposed)." ['natural justice term']

At CCMC in September 2024, HHJ Worster determined all ten pleaded complaints of breaches of the implied terms in para.27 of the Particulars of Claim (which I will set out in a moment) alleged breach of all three pleaded implied terms. Nevertheless, most of the pleaded breaches are 'procedural' where the real complaint is non-compliance with natural justice and the other two implied terms add little or nothing. I will deal with those first; and later with the 'substantive' pleaded breaches relating to the Decision and sanction.

63. 'Natural Justice' is a rather old-fashioned expression that even over a century ago in Local Government Board v Arlidge [1915] AC 130 was described as 'lacking precision'. Viscount Haldane L.C. said at pg. 132:

"[W]hen the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias and give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. In the case of a Court of law tradition…has prescribed certain principles to which…the procedure must conform. But what that procedure… in detail must depend on the nature of the tribunal."

The landmark decision in Ridge v Baldwin [1964] AC 40 (HL) confirmed that the principles of 'natural justice' applied to 'administrative tribunals' amenable to judicial review (including a police force police dismissing a chief constable) as well as courts, but again Lord Reid stressed those requirements may vary at pg.65:

"It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable."

But in Ridge at pg.132, Lord Hodson stated three basic elements of natural justice:

"[T]hree features of natural justice stand out: (1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges."

64. In a more recent landmark decision, Osborn v Parole Board [2014] AC 1115 (SC), Lord Reid referred not to 'natural justice' but the modern phrase for it: 'procedural fairness'. At [64]-[65], he explained that in judicial review, fairness is assessed by the Court's own judgment, not whether the process was 'Wednesbury unreasonable' (in other words, irrational). In Mok (holding Arlidge and Ridge showed standards vary with the body in question), at [25] Ritchie J pointed out a claim for breach of contract of an unincorporated association is not a claim for judicial review. But there is clearly an overlap, as Popplewell J (as he then was) said at [57]-[58] of Dymoke v ADM [2019] EWHC 94 (QB) (also favouring the term 'fairness' over 'natural justice'). Whatever one calls it, in my view, it is also in this context to be assessed by the Court itself, not to a rationality (still less good faith) standard. That is consistent with authority, again cited by Ritchie J in Mok, namely Lord Denning (as Denning LJ) in Lee v Showmen's Guild [1952] 2 QB 329, 343 (my italics):

"In the case of social clubs, the rules usually empower the committee to expel a member who, in their opinion, has been guilty of conduct detrimental to the club; and this is a matter of opinion and nothing else. The courts have no wish to sit on appeal from their decisions on such a matter.. …On any expulsion they will see that there is fair play. They will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules; but they will not otherwise interfere…"

65. In my view, that approach is also consistent with that taken very recently by Foxton J in Hayes in dismissing a claim for breach of the association contract of the Liberal Democratic Party by (a partly flawed) expulsion of a senior member for misconduct. He summarised elements of 'the implied term of natural justice' at [10]-[11]/[25]:

"10. The contractual obligation to conduct the disciplinary proceedings of an association fairly, or in accordance with the principles of natural justice, has three core elements: (a) the right to be heard by an unbiased tribunal; (b) the right to have notice of charges of misconduct; and (c) the right to be heard in answer to those charges: Ridge v Baldwin [1964] AC 40, 132 (Lord Hodson). It has been noted that the obligation to conduct proceedings fairly and the requirements of natural justice 'must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens" (McInnes v Onslow Fane [1978] 1 WLR 1520, 1535), burdens which would ultimately have to be borne by the members of the association as a whole with whatever cost consequences that might entail. As Lord Mustill observed when considering the requirements of natural justice in a public law context in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 at 560-561, "what fairness demands is to be dependent on the context of the decision, and this is to be taken account in all its aspects", and "It is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."

11. As Popplewell J noted in Dymoke…[63], 'what procedural fairness requires in practice may differ from body to body. A small voluntary organisation may not be expected to employ the more formal and elaborate procedures….required of a larger and better resourced organisation….

25. Finally, it must be doubtful whether every rule….in a contractual decision-making process creates an independent contractual obligation that sounds in damages, as opposed to being factors relevant to whether the ultimate or overriding contractual obligation to provide a fair process or comply with rules of natural justice has been discharged. If, for example, the contract provides a time-limit… the departure from the time limit appearing in the contractual process, and any other procedural decisions which bear on that (e.g. whether further time was allowed at a later stage…) will be relevant factors in determining whether the contractual obligation to comply with the rules of natural justice has been satisfied overall."

66. Whilst Foxton J in Hayes at [25] was strictly discussing the Court's approach to remedy for breach, his focus on the whole procedure in assessing fairness (or compliance with natural justice) chimes with Calvin v Carr [1980] AC 574, where the Privy Council held that a full rehearing on appeal had 'cured' an unfair initial hearing in a jockey club. Lord Wilberforce stressed that there were different types of disciplinary procedure: some (e.g. in the employment field, as is certainly true with statutory unfair dismissal) typically require a fair hearing and a fair appeal, but in other cases a full 'rehearing' appeal could effectively supersede an unfair hearing. Moreover, Lord Wilberforce said in Calvin at pg.593 that in 'intermediate' cases:

"[I]t is for the court, in the light of the agreements made and…having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association."

(Again, Lord Wilberforce's language envisages that fairness is assessed by the Court's own judgment, as Lord Reed later said in Osborn, not rationality review). In Brown v Edinburgh Labour Party [1995] SLT 985, Lord Osborne in the Outer House (for the Claimant's benefit here, the Scottish High Court) held that where the local committee of the Labour Party had passed a motion criticising some members and convened a disciplinary hearing to withdraw the whip (which would consist effectively of the same people who had already voted in favour of criticism), then despite Calvin, the possibility of a later appeal could not remove the risk of apparent bias and an injunction to restrain the initial disciplinary meeting was justified. By contrast, in Mok at [107], a lack of right of appeal did not breach natural justice.

67. However, whilst 'fairness' (or natural justice') in procedures is a matter for the Court's own judgment, the implied terms of good faith and rationality in making substantive decisions in the exercise of contractual discretion Foxton J summarised in Hayes at [9] (which I quote below) are not. His only reference to 'natural justice' there was at [9(iii)] where he explained compliance with it was an implied term he described as 'an obligation to adhere to the rules of natural justice: Lee' (which he then elaborated in the passage I have already set out). That too is consistent with compliance with natural justice being assessed in the Court's own judgment, rather than asking whether procedures were 'in a range of reasonableness' or 'rational', as with the tests he discussed at [9(iv)] for scrutinising the decision. So, on the Claimant's procedural complaints, I primarily focus on the implied term of natural justice and only briefly consider the other implied terms. There are ten pleaded complaints of breach of implied terms at para.27 Particulars of Claim ('PoC'), but the Claimant did not pursue para.27.10 (failure to disclose a written 'Whip's Report') as he accepts Cllr Evans never planned nor wrote one. Likewise, the complaint at para.27.3 of failure properly to minute the meeting of 6^th October 2022 falls away as I have found as a fact that Ms Islam did accurately record it (there is no pleaded complaint that he was not a member).
68. The first pleaded breach of an implied term is at para 27.1 PoC, which states:

"The Defendants invited Mr Birch to a meeting without providing him with adequate information. In particular, Ms Evans failed to inform Mr Birch of the following matters: (a) that it was a formal meeting and would not be private and confidential (contrary to indications in her email); (b) any details of the allegation ahead of the meeting; (c) who made the complaint."

I have already touched on this issue when considering express terms, especially the provision in the Disciplinary Procedures stating that 'in normal circumstances':

"It is a requirement that the individual be given an indication of the nature (but not the details) of the [relevant] complaint or incident …"

I have rejected complaint of breach of this express term, but it is relevant here too.

69. The Claimant's 'confidentiality' point is that he had a reasonable expectation of privacy from Ms Evans inviting him to a meeting by an email marked 'restricted'. This complaint is misconceived. The flagging of an email as 'restricted' does not itself create a reasonable expectation of privacy about any process flowing from it, only about the contents of the email itself, which here were simply invitation to a meeting with no other details (which is the Claimant's real complaint). In any event, as a matter of law, even if there was a 'reasonable expectation of privacy', that does not necessarily require confidentiality: Jinxin v Aser Media [2023] 1 WLR 1084. Further, the Claimant cannot show any actual unfairness from labelling the email 'restricted'. Likewise, in Neslen v Evans [2021] EWHC 1909 (KB), Butcher J rejected complaints that the Labour Party had misled respondents to complaints of antisemitism about confidentiality and rejected breach of natural justice at [59]:

"What would have been required to have been shown was that inclusion [of a confidentiality requirement]…led to actual unfairness to the Claimants. The Claimants have not shown [that]…In particular…that it..prevented them from taking advice or communicating about the investigations…."

70. There is rather more in the Claimant's complaint that he did not receive any details of the allegation, nor who made it, in advance of the 6^th October meeting. As Lord Hodson said in Ridge, 'the right to have notice of charges of misconduct' is one of the three fundamentals of natural justice. As Lord Mustill added in Doody at pg.560:

"(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations …either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since [he] usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require he is informed of the gist of the case which he has to answer."

Moreover, the Labour Party's own guidance in the Disciplinary Procedures, incorporated into the WLG Rules in this respect 'require', at least 'in normal circumstances', the respondent to a complaint be given in advance of a meeting about it an indication of its nature, if not its details. Such 'advance notice' may not be required 'in abnormal circumstances': for example, where the respondent is already fully aware of the complaint in another way and is expecting a meeting. However, fairness still requires advance notice even where an investigator thinks a complaint appears to be 'open and shut', since as Megarry J said in John at pg.402C:

"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."

Cllr Evans in evidence seemed to acknowledge that it would have been fairer if she had provided the Claimant with some 'advance notice' of the allegation: if only that the complaint was from Cllr Hibbert about his Facebook post on 17^th August, which in my judgement would have been enough to provide the 'gist' (or as the term put it, the 'nature' if not the 'details') of the allegation' and indeed, to comply with the implied term of natural justice, enabling him to prepare a reply. However, that did not happen and the Claimant submits that was unfair and breached natural justice.

71. Nevertheless, not without hesitation, I have concluded that natural justice (or indeed 'procedural fairness') was not breached by the lack of advance notice itself because:

a. Firstly, it is clear from the minutes (unchallenged in this respect) that Cllr Evans began the meeting on 6^th October 2022 not simply by identifying the complaint as from Cllr Hibbert and about the social media post on 17^th August in response to the report of her court hearing, Cllr Evans actually read out the whole post to remind the Claimant of its contents. Therefore, whilst there was no advance notice of the nature of the allegation, there was full disclosure at the start of the details of the allegation which Cllr Evans was investigating (she did not pursue, even further mention, Cllr Hibbert's wider complaints). Cllr Evans then simply asked for the Claimant's explanation. So far as Lord Hodson's essentials of natural justice in Ridge are concerned, there was notice of the allegation at the start of, rather than before, the hearing; and the right to be heard in the answer to that allegation. Moreover, there is no complaint that Cllr Evans was biased. Whilst it is clear she was less familiar with the Disciplinary Procedures than she should have been in conducting a hearing, I entirely accept acted in good faith and rationally considered that if the Claimant had needed more information in advance, he would have asked. Whilst that is no answer to a complaint of breach of natural justice, it more than answers the complaints of a breach of the implied terms of good faith and of rationality on this issue.

b. Secondly, so far as natural justice itself is concerned, as Lord Mustill said in Doody, it is not enough to show another procedure would have been fairer, a claimant must show the actual procedure was actually unfair; or as Butcher J put it in Nelsen, that it led to actual unfairness to a claimant. The real relevance to natural justice of Cllr Evans' point that the Claimant did not ask for more information in advance was not that he could have done so, but that he saw no need to do so. He said himself when told the complaint s about a social media post, he said 'Is this about Hibbert ?' The reality is that the Claimant clearly suspected the complaint was from Cllr Hibbert, given their ongoing conflict. He had already been warned a few months earlier about criticising her in the press; and now he had sent the press to a hearing to criticise her and then posted about it. When a few weeks later, Cllr Evans told him she had received a complaint, the Claimant did not ask from whom or about what, because frankly, it was fairly obvious. Moreover, he had obviously thought through his potential response if the complaint was as he suspected. When Cllr Evans asked about his social media post, he not only defended it, he then launched into a litany of counter-attacks about Cllr Hibbert: that she had posted from Nigeria during COVID, that she did not live at her address in Penn, that she had defrauded Ms F and racially insulted his wife. The Claimant even volunteered (that Cllr Evans could not possibly have discovered otherwise) that he had 'encouraged' the reporter to attend Cllr Hibbert's court hearing in August. As Mr Mundy observed, this 'counter-attack' is precisely the strategy the Claimant has taken in this litigation, suggesting he would have done exactly the same in the meeting with advance notice (even if, I would add, in a slightly more prepared way). Nor has the Claimant identified any actual disadvantage from the lack of advance notice of the allegation. For those reasons, whilst the lack of advance notice was potentially unfair, there was no actual unfairness.

c. Thirdly, even if I am wrong and there was actual unfairness (or breach of natural justice) in the lack of advance notice of the complaint, that does not mean there was breach of the implied term. The whole process must be considered, as explained in Calvin. As Foxton J recently put it in Hayes, departures from procedures 'will be relevant factors in determining whether the contractual obligation to comply with the rules of natural justice has been satisfied overall'. For that reason, any actual unfairness in the lack of advance notice (which I do not accept) must be put in context of the process overall. Most obviously, as Mr Mundy observed, once Cllr Evans had sent the letter of 19^th October inviting the Claimant to a full WLG meeting (which she called in evidence an 'appeal' but in reality, it was just a 'rehearing'), the Claimant clearly had enough 'advance notice' for fairness.

For those reasons, I dismiss the complaint of breach at para.27.1 PoC.

72. I have also touched on the next complaint in discussing express terms. But implied terms are pleaded as breached at para. 27.2 PoC in that the Defendants 'failed to inform Mr Birch he could be accompanied to the meeting on [6^th] October 2022'. It is true the Disciplinary Procedures did state: 'In normal circumstances….the individual should be advised that he is entitled to have a friend present'. This is a statutory right for employees in the Employment Relations Act 1999. However, it can also be an enforceable express contractual term or give rise to breach of implied terms. Indeed, whilst implied terms must not be inconsistent with express terms, the latter may affect the standard required by the former, as Popplewell J (as he then was) said in Dymoke at [60]. Moreover in Stevens, Andrews J (as she then was) held a right to be accompanied by a fellow employee or trade union representative in a university's disciplinary procedure was incorporated into an employee's contract; but also that a refusal to allow a senior employee to be accompanied by an external technical adviser in a complex investigation in strict accordance with that express term still breached the implied term of mutual trust of confidence in employment contracts. Whilst there is no such implied term in association contracts, there are the other implied terms, in particular of natural justice. Therefore, I have considered Stevens by analogy, even though the parties did not raise it, in fairness to the Claimant as it bolstered his argument, which is similar to Andrews J's point at [93]:

"The investigatory interview is a crucial stage in the process. Both parties must be assumed to be aiming to get to the truth and to put the investigator in the best possible position to provide a comprehensive and balanced report to the decision-maker. I appreciate that the process is not, as yet, adversarial. In many cases the [right to be accompanied by a fellow employee or trade union representative] might be regarded as perfectly fair. Yet in this case, the perception has been created that the university has an advantage over Professor Stevens because…it has provided [its investigator] with the technical assistance of a senior member of staff chosen by the university who may also possibly attend, whereas it is forcing [the claimant] to go into the meeting without any support of that nature."

Here too, the Claimant argues that it was a breach of natural justice not to inform him he had the right to be accompanied in the meeting, because Cllr Herbert was accompanied by a barrister in her complaint meeting with Cllr Evans; and a companion would have been able to take minutes, since Mr Islam's were disputed. Whilst he did not rely on it, it was also a requirement in the Disciplinary Procedures.

73. Nevertheless, I do not accept the fact that Cllr Evans did not advise the Claimant that he could have a friend present itself breaches the implied term of natural justice:

a. Firstly, the 'right' to be accompanied to a meeting is not one of the core aspects of natural justice in any procedure as summarised by Lord Hodson in Ridge. Of course, that does not mean it is irrelevant to the implied term of natural justice, especially as it is a (conditional) express contractual term. After all, Andrews J in Stevens considered that it could breach an implied term to insist on the strict letter of an express term, whilst here the express term supports the Claimant's argument under the implied term of natural justice. However, the express term is qualified by 'in normal circumstances' and that is also obviously relevant to fairness with the implied term as well. In this case, Cllr Evans did not refuse to allow the companion of choice as in Stevens, she would have been happy for the Claimant to be accompanied, just as she had been happy for Cllr Hibbert to be accompanied (her companion did not really speak and Cllr Evans did not realise he was a barrister). But Cllr Evans took the view it was unnecessary to remind the Claimant he could be accompanied, not least because she had conducted a similar disciplinary process with the Claimant a few months earlier (where, again he had not asked to be accompanied). In my judgement, Cllr Evans acted in good faith, rationally and indeed entirely fairly in those particular circumstances, which were unusual in that respect, rather than 'normal'.

b. Secondly and in any event, again the Claimant has not shown that the absence of a companion caused him any actual unfairness or disadvantage. The simplest point is that the Claimant actually did have his assistant in the room with him. I appreciate she has some disabilities affecting her speech, but his complaint was that he was disadvantaged over the minute-taking and he does not suggest he could not have simply asked her to do that, just as he asked her to send on to Cllr Evans information about Ms F after the meeting. In any event, I have already rejected on the facts the Claimant's complaint about Mr Islam's minutes of the 6^th October meeting in para.27.3 PoC. His complaint about Cllr Hibbert being accompanied by a barrister adds nothing, especially as he seems not to have said anything of significance (I suspect Cllr Hibbert was well able to articulate her view, despite her emotion). I accept Cllr Evans did not know he was a barrister in any event – so he was not there as a legal representative in any meaningful way, only as a companion. Even if Cllr Evans should have told the Claimant he could have a companion too, it made no practical difference at all – he did not need technical support or guidance such as the companion could give in Stevens.

c. Thirdly, even if I am wrong, as with 'advance notice', the fairness of the disciplinary process must be assessed as a whole. The issue of being accompanied was less fundamental to fairness than the 'advance notice' issue and cannot come anywhere near to undermining fairness of the whole process, especially as Cllr Evans did not refuse the Claimant a companion, just failed to tell him he could have one if he wished.

For those reasons, I dismiss the complaint of breach at para.27.2 PoC.

74. The Claimant's next pleaded compliant of breach of implied terms is para.27.4 PoC:

"Ms Evans failed to carry out a fair investigation. In particular: (a) Ms Evans failed to adequately investigate matters before the meeting with Mr Birch on 4 or 6 October 2022; and (b) Ms Evans moved from a meeting with Mr Birch on..6 October 2022…. to a decision on 13 October 2022 that Mr Birch was guilty and was to be sanctioned. Ms Evans failed to investigate the allegations in that period, including the concerns raised by Mr Birch regarding Cllr Hibbert."

Just as with the last two points, it is relevant the Disciplinary Procedures state this:

"In advance of the meeting, the whip should identify the questions that need to be answered and information that needs to be established, and determine whether s/he needs to see any other individual or any… documentation… The task of the meeting is to establish: 1) the facts 2) whether there has been a breach of the party's rules; 3)…any mitigating circumstances."

However, of course those are national procedures designed to cover the whole range of potential complaints against councillors to be investigated: what matters is the particular case. The Claimant did not really explain what 'investigation' he expected Cllr Evans to undertake before the meeting, given she had spoken with Cllr Hibbert, had the social media post in question and was not pursuing her wider allegations. The Claimant's essential submission on para.27.4 PoC was that after he had explained his wider concerns about Cllr Hibbert at the meeting, including her alleged racial comments about his wife, Ms F's allegations and her tenancy and the dispute about it with her landlord, Cllr Evans should have investigated those further and he asked his assistant to send Cllr Evans some information to do so, because she said she would 'come back to him' about those issues. However, I have found as a fact Cllr Evans did not say that she would investigate the Claimant's concerns.

75. Nevertheless, the real question here is whether it was a breach of implied terms (whether natural justice, rationality or good faith) for Cllr Evans not to investigate the Claimant's concerns about Cllr Hibbert. Whilst I was not referred to authority, in fairness to the Claimant, I have looked for analogies on what amounts to fair investigation in unfair dismissal. In Sattar v Citibank [2020] IRLR 104 (CA) at [44], Sir Patrick Elias reiterated his comments as EAT President in A v B [2003] IRLR 405 at [60] and [80]:

"60…Even in the most serious cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges….

80….In ILEA & Gravett [1988] IRLR 497…Wood J said '… in one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end so the amount of inquiry and investigation, including questioning of the employee which may be required, is likely to increase.'…"

In short, the Claimant's argument reflects the first point, Mr Mundy's the second.

76. I accept Mr Mundy's submissions on this point and find there was no unfairness in Cllr Evans refusing to investigate the Claimants' concerns about Cllr Hibbert. (Moreover, I do so in my own judgment on natural justice reflecting the approach in association contract cases in Lee and Calvin and judicial review in Osborn, rather than the 'range of reasonableness' test applied to investigation with unfair dismissal as in Sattar, which more closely resembles the implied terms of rationality and of good faith). This point goes to the heart of the Claimant's whole way of seeing Cllr Hibbert's complaint and this litigation. He says he acted as he did because of Cllr Hibbert's conduct and so Cllr Evans had to investigate that conduct. Cllr Evans replies that her job was to investigate Cllr Hibbert's complaint and establish what the Claimant did, why (including mitigating circumstances), whether it breached the rules and if so, the right sanction. As Cllr Evans said, the Claimant had explained in the meeting his concerns about Cllr Hibbert, but he had also accepted (i) making the derogatory post about her; (ii) which remained up and indeed the Claimant refused to take it down (I have found eventually making removal conditional on Cllr Evans investigating the Ms F case); (iii) against the context of a previous warning. Cllr Evans did not find that the Claimant's concerns about Cllr Hibbert were ill-founded or in bad faith, she simply did not consider they justified the Claimant's post about her, still less him encouraging a journalist to attend and report on her court hearing. I consider below whether Cllr Evans was entitled to reach that view, but if she was, there was simply no need for more investigation of the Claimant's concerns. Indeed, as Cllr Evans added, it would have been inappropriate to do so in the absence of a formal complaint from Ms F about her own circumstances and given there was a pending statutory complaint before WCC - not WLG - from the Claimant and his wife against Cllr Hibbert about the 'Black History Month' issue. In those circumstances, it was entirely fair not to investigate further in my own objective judgment and obviously rational and in good faith as well. I therefore dismiss the Claimant's complaint of breach at para.27.4 PoC.
77. Next, I take para.27.9 PoC out of order as it overlaps with that last point. It states:

"The Defendants have acted inconsistently in their approach to Mr Birch and Cllr Hibbert. The Defendants have taken no action against Cllr Hibbert (despite knowing of the complaints by Cllr Olivia Birch and by Mr Birch regarding his constituent Ms F). By contrast, the Defendants have adopted an expedited process against Mr Birch….In November 2023…the national Labour Party…excluded Cllr Hibbert on grounds of her misconduct."

In R(Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin), Lang J upheld a judicial review of a disciplinary warning by a local authority to a councillor under a statutory complaints procedure following a disorderly meeting including on grounds of common law inconsistency of treatment. She said at [95]:

"[I]n principle, like cases should be considered and decided in a like manner so that there is consistency in the administration and adjudication of the standards process. The principle was set out by Lord Sumption in R(Rotherham MBC) v Secretary of State for Business [2015] UKSC 6 [26]"

In R(Rotherham) at [26]-[27], Lord Sumption said:

"As Lord Hoffmann pointed out when delivering the advice of the Privy Council in Matadeen v Pointu [1999] 1 AC 98, 109.. treating like cases alike and unlike cases differently is a general axiom of rational behaviour.... The two-stage process by which courts in discrimination cases distinguish between comparability and objective justification is a useful tool of analysis and probably indispensable in dealing with allegations of discrimination on ground of personal characteristics…But a tool of analysis should not be transformed into a rule of law. Lord Hoffmann pointed out in R (Carson) v SSWP [2006] 1 AC 173, paras 29-31, the question whether two situations are comparable will often overlap with the question whether the distinction is objectively justifiable."

Whilst Mr Mundy initially suggested that compliance with natural justice does not concern consistency of treatment with other cases, he did accept that it is relevant to rationality (as Lord Sumption mentioned) and good faith. In any event, I see no reason why the fairness of a procedure for one individual should not be judged against the fairness of a procedure for another in a comparable situation. The Claimant's argument here is that Cllr Hibbert's complaints against him led to a disciplinary investigation, but his complaints against her did not and that was unfair.

78. However, again I agree with Mr Mundy's (better) point that so far as Cllr Evans was concerned, the Claimant and Cllr Hibbert were not in comparable situations and the Claimant is not comparing like with like. For Cllr Evans, Cllr Hibbert was the complainant whose complaint she had to investigate, whilst the Claimant was the respondent to that complaint. Indeed, it may even have been irrational to treat them the same. That is very different to the situation in Robinson where the claimant criticised the Chair in a Council meeting; and the Chair retaliated at a later meeting; and the local authority had to investigate statutory complaints both ways and Lang J found they treated the Chair inconsistently from the claimant. In the present case, the Claimant wanted Cllr Evans to investigate his concerns over Cllr Hibbert, but had not invoked the relevant procedures for WLG to do that, so it was not her task. Accordingly, so far as Cllr Evans was concerned, the Claimant and Cllr Hibbert were not in comparable situations; and even if they were, it was entirely justifiable to treat them differently until there was a formal complaint against Cllr Hibbert. Indeed, when there were (unrelated) complaints against her in 2021, WLG suspended her – a more serious sanction than against the Claimant (because it was a different situation) and again did so in 2023. There was no inconsistency.
79. I turn next (and more briefly on procedure) to para 27.5 PoC, which alleges this:

"On 13 October 2022, Ms Evans concluded Mr Birch was guilty of the allegations and decided to sanction him without first affording Mr Birch a fair hearing on the allegations (as pleaded in paragraph 18)."

I will return to this paragraph on the substance of Cllr Evans' decision of guilt and sanction, but so far as fair procedure is concerned, whilst this appears very wide, insofar as it goes further than para.18 PoC, it was not pursued. In any event I consider (subject to para.18) the hearing was entirely fair. The Claimant had a full opportunity to make representations (c.f. Doody) and took it. He did most of the talking at the meeting and said everything he wanted. The nub of para.18 PoC is:

"The Code of Conduct (the 'Code') was that of the local authority, not WLG. While WLG members are required to comply with the Code, neither the Code nor the WLG gave Ms Evans any contractual power to take steps under the Code. Yet further, Ms Evans has stated she would not use [it and] has no authority to invoke its Code of Conduct."

80. I have already rejected part of this argument at paragraphs [46]-[47] above. I have decided the provisions of the WCC Code which regulate the conduct of councillors are expressly incorporated into the WLG association contract by clause 2(2), but not the procedural provisions of the Code regulating WCC's investigation of a complaint. The pleaded allegation misses the point. Of course Cllr Evans has no authority to conduct an investigation under WCC's Code of Conduct. However, that is not what she did. She conducted an investigation under WLG's incorporated Disciplinary Procedures but reviewed the Claimant's conduct against the WCC Code of Conduct which is also incorporated into the WLG association contract. That is totally different, consistent with the contract and subject to one point, fair. The one point is whether the Claimant had 'fair warning' that he would be judged against the WCC Code. In Mok, the claimant had advance notice of the allegation but not that it was said to breach specific club rules and Richie J held that was unnecessary to ensure fairness. The situation was even starker in Neslen, where Labour Party members facing investigation for antisemitism sought declarations that it was unfair to judge their conduct by a code of conduct which was unpublished which they could not rely on or reply to. Butcher J at [32]-[36] rejected complaints of a breach of natural justice on the basis that the claimants had notice of the factual allegations and a full opportunity to respond and the then-unpublished Code was consistent with the published Labour Party Rule Book. Butcher J went on at [37]-[40] to conclude (obiter) that the claimants had constructive knowledge of the Code. The position here is even clearer: the Claimant was fully aware he and his fellow councillors had to comply with the WCC Code – he and his wife had already invoked it against Cllr Hibbert over the 'Black History Month' issue. Therefore, whilst the Claimant did not have advance notice of the particular parts of it which Cllr Evans considered to be engaged, he had a full opportunity to address issues of 'respect', 'harassment', 'bringing WLG into disrepute' and 'use of his position'. I come back to para.27.5 PoC on substance: whether Cllr Evans was entitled to reach those conclusions. However, the Claimant had a proper opportunity to respond to the those rules in the meeting with Cllr Evans. Indeed, he may have had even more of an opportunity if he had not 'counter-attacked' Cllr Hibbert so hard. Therefore, I dismiss the complaint on procedure at para.27.5 PoC (but return to it on substance)
81. Next, I turn to para.27.6 PoC, which alleges as follows:

"On 16 October 2022, Mr Brookfield publicly declared that Mr Birch was a bully, without having spoken with Mr Birch about the allegations and without Mr Birch having had a fair hearing."

I can deal with this briefly, because it largely falls away on my factual finding at paragraph [36] above that even if at the 'Civic Sunday' service Cllr Brookfield did call the Claimant a 'bully' and to 'get away from him' as he alleges, he has not proven on balance of probabilities Cllr Brookfield was referring to Cllr Herbert's complaint. Indeed the natural inference, which I would make, is that he was referring to the Claimant persistently trying to talk to him when he had asked him to move away. On that footing, the incident is nothing to do with natural justice. But even if I am wrong about that and Cllr Brookfield was referring to the Claimant as a 'bully' in reference to Cllr Evans' recent Decision upholding Cllr Herbert's complaint, that does not mean there was a breach of natural justice anyway. Cllr Brookfield was not conducting a procedure, just expressing an opinion.

82. However, in his submissions, the Claimant sought to recast this allegation as one that Cllr Brookfield had 'prejudged' that the Claimant's conduct to Cllr Herbert meant he was a 'bully' when that was going to be voted on by WLG on 31^st October and as Council Leader, Cllr Brookfield had substantial influence, but was biased. But even as re-targeted, this allegation is not well-founded for three reasons:

a. Firstly, it is inconsistent with my findings of fact, as I have explained.

b. Secondly, on the 16^th October, there was not yet a plan for a WLG vote, which was proposed in Cllr Evans' 'correction' letter of 19^th October. Therefore, at this stage, there was nothing for Cllr Brookfield to 'prejudge'. This was a long way from the same people issuing a public motion of criticism and then proposing to reconvene as a disciplinary panel in Brown.

c. Thirdly, even if I am wrong about both of those things and Cllr Brookfield called the Claimant a 'bully' referring to Cllr Hibbert's complaint and knew there would be a WLG vote on it (which I have found was his suggestion), then I do not consider that comment showed apparent bias, on the principles discussed in Mok at [41]-[43] which Ritchie J summarised at [44]:

"44.1 whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility (or a legitimate fear) that the tribunal (member) was biased against the Claimant, in relation to the relevant issue, in the circumstances.

44.2 The circumstances which the fair minded observer will take into account include: (a) the nature of the organisation; (b) the nature, function and composition of the tribunal; (c) the particular character of [its] proceedings; (d) the rules under which proceedings are regulated; (e) the nature of the complaint; (f) the issue/s to be decided within the complaint; (g) the potential effects of the available disciplinary powers on the accused (financial or merely social ?).

44.3 Whether, [given] the need for the public to retain confidence in the administration of justice, the tribunal was a public one or private.

44.4 The real possibility of bias by the tribunal members must be real in the sense of operative prejudice (whether conscious or unconscious) on a relevant issue.

44.5 The bias must be a predisposition or prejudice against one party's case or evidence on a relevant issue for reasons unconnected with the merits of the issue."

In the present case, whilst Cllr Brookfield was the Leader of the Council with considerable sway and patronage in WLG, he was only one of many (as I understand it 47) WLG members who would have one vote at the planned meeting. As Mr Mundy said, he may not have spoken at all, just left it to Cllr Evans to give her verbal report (why para.27.10 has fallen away). The fair-minded and informed observer in all the circumstances of WLG and the nature of the complaint would not have considered there was a real possibility of the whole of WLG being biased due to Cllr Brookfield. Indeed, they would not have considered he was apparently biased even himself because he had not yet heard the Claimant's explanation and may be swayed by it. For those reasons, I dismiss the complaint at para.27.5 PoC as well.

83. I turn to para.27.7 PoC which alleges as follows:

"On 19 October 2022, despite Ms Evans having already informed Mr Birch that he had been found guilty and sanctioned, the Defendants purported to convene a meeting for the WLG to vote on Mr Birch's guilt and the appropriate sanction….."

I have already dealt with this as an (unpleaded) breach of express term at paragraphs [57]-[59] above, although as I pointed out there, para.27.7 challenges the letter of 19^th October, not the letter of 13^th October. Either way, the complaint of breach of the implied term of natural justice (or good faith or rationality in procedure) is entirely misconceived. As I explained, Cllr Evans' letter of 19^th October 2022 was actually correcting her contractual misstep relating to removal from committees on 13^th October. Indeed, she went further than she actually needed to correct the mistake, because the agenda for that 31^st October meeting stated:

"7. Whip(s) Report: Investigation of Complaint(s) against a Councillor:

a) The Chief Whip(s) to report to the meeting the outcome of their investigation against a Councillor after a complaint was made. The Chief Whip to recommend to the Labour Group i) Issuing a written warning. This will be on file for 12 months and then it will be removed. ii) The Councillor to be removed from the following committee(s) with immediate effect, subject to any procedures required by the Council / Labour Group.: Governance & Ethics, Economy and Growth….

b) The Councillor(s) concerned have the opportunity (if they so wish) to make a case to the Labour Group meeting in response to any charges.

c) Members to have the opportunity (if they so wish) to ask questions

d) A straight vote should be taken on the whip's proposal and any amendments moved and seconded (regardless of whether the Councillor is in attendance or not).

e) Any decision takes immediate effect, subject to any procedures required by the council. There is no appeal against such decisions which are in the province of the Labour Group."

Therefore, rather than simply proposing a vote on her recommendation to remove the Claimant from the two committees on which he sat with Cllr Hibbert, as Cllr Evans could legitimately have done, she actually proposed an effective re-hearing of both sanctions where the Claimant could address the meeting and members could ask questions. This perhaps explains why in evidence Cllr Evans referred to it as an 'appeal', though Mr Mundy agreed technically it was not. Nevertheless, since rehearings can cure earlier unfairness (as in Calvin) offering a rehearing of at least the issues of sanction actually supported rather than undermining fairness. Therefore, I dismiss the complaint at para.27.7 PoC.

84. This leads to the last pleaded complaint of breach of natural justice at para.27.8 PoC

"The Defendants informed Mr Birch that he would have no right of appeal from their findings (which, in addition to the Labour Party rules, would be a breach of natural justice)."

Again, the Claimant's pleading confuses the distinction between withdrawal of the whip and lesser sanctions which is specifically made in Labour Group Disciplinary Procedures specifically stated there was no right of appeal from a local group because lesser measures were entirely in their province. The procedure states:

"A decision to withdraw the whip (with or without a time limit) is subject to appeal but remains in force pending that appeal being heard. A decision to impose lesser disciplinary action such as a reprimand or removal from positions within the province of the group is not subject to appeal."

Of course, an appeal can cure unfairness (Calvin) so in that sense natural justice may require an appeal, but it does not always do so, as Ritchie J said in Mok at [107]

"Th[is] Complaints Review Process…did not create any right to appeal…It was not submitted that the rules of natural justice required the insertion of an implied term covering right to appeal. Thus, in my judgment, whilst the right to appeal is granted in criminal and civil procedure, and would be a fairer procedure, the absence of the right was part of the process chosen by the Club and the Claimant signed up to that process. I do not consider that the absence of a right to appeal was a breach of natural justice in this case."

Ritchie J in Mok may well have in mind Lord Mustill's comment in Doody that:

"It is not enough for the [claimant] to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show the procedure is actually unfair."

Here, I have found there was a fair process leading to Cllr Evans decision of 13^th October and insofar as that purported to impose the wrong sanction on removal from committees, it was swiftly corrected. But not only that, it proposed a re-hearing of sanction generally, which could have gone beyond curing that error (Calvin). In that sense, it was akin to an appeal already, which is plainly how Cllr Evans saw it. To prevent the Claimant from having a further formal appeal was consistent with the express terms of the contract and so not a breach of the implied term (Dymoke) and in any event was entirely fair in the circumstances. I dismiss para.27.8 as well.

85. Finally on procedure, I stand back and consider whether the whole process was fair, as discussed in Calvin and Hayes. I acknowledge there were procedural mis-steps by Cllr Evans, in particular the absence of advance notice of the nature of the allegations, the absence of reminder of the right to be accompanied and above all, the wrong imposition of removal from committees. However, the latter was swiftly corrected and the former did not actually cause any unfairness to the Claimant. Moreover, he was offered a 'second bite' at the cherry on sanction with in effect a rehearing of that issue before WLG. Therefore, considered as a whole, I am satisfied the disciplinary procedure complied with the implied term of natural justice (and insofar as relevant to procedure, the implied terms of rationality and good faith too).

Did Cllr Evans breach implied terms of good faith and rationality in the Decision ?

86. The only way in which this complaint is actually pleaded is by para.27.7:

"On 13 October Ms Evans concluded Mr Birch was guilty of the allegations and decided to sanction him [without first affording a fair hearing…]"

I have dealt with the procedural allegation (in brackets) of breach of fair hearing, but allegations of breaches of implied term were not just natural justice but also rationality and good faith. At the start of trial, I concluded this was broad enough to encompass alleged breaches of those two terms on the substance of Cllr Evans' decision on guilt and sanction (including the relevance of 'Nolan openness').

87. However, the implied terms of good faith and rationality (often treated as different aspects of the same implied term) are different than of natural justice, as the court does not substitute its own view for the contractual decision-maker. In Braganza v BP [2015] 1 WLR 1661, the majority of the Supreme Court held an employer's decision not to pay death-in-service benefit to an employee's widow was a breach of his contract as its factual finding he killed himself was irrational. Lady Hale explained the principles:

"18 Contractual terms in which one party to the contract is given the power to exercise a discretion, or to form an opinion as to relevant facts, are extremely common. It is not for the courts to rewrite the parties' bargain for them, still less to substitute themselves for the contractually agreed decision-maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest. That conflict is heightened where there is a significant imbalance of power between the contracting parties as there often will be in an employment contract. The courts have therefore sought to ensure that such contractual powers are not abused. They have done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision-making power is given…

24…[T]he test of the reasonableness of an administrative decision which was adopted by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, 233—234…has two limbs: 'The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it'…..The first limb focuses on the decision-making process: whether the right matters have been taken into account in reaching the decision. The second focuses on its outcome: whether, even though the right things have been taken into account, the result is so outrageous that no reasonable decision-maker could have reached it. The latter is often used as a shorthand for the Wednesbury principle, but without necessarily excluding the former….

28 There are signs…that the contractual implied term [that contractual discretions will be exercised rationally and in good faith] is drawing closer and closer to the principles applicable in judicial review. The contractual cases do not in terms discuss whether both limbs of the Wednesbury test apply. However, in Gan Insurance v Tai Ping Insurance [2001] 2 All ER (Comm) 299… Mance LJ first commented, at para 64, that 'what was proscribed was unreasonableness in the sense of conduct or a decision to which no reasonable person having the relevant discretion could have subscribed' but he concluded, at para 67: 'any withholding of approval by reinsurers should take place in good faith after consideration of and on the basis of the facts giving rise to the particular claim and not with reference to considerations wholly extraneous to the subject matter …'

29 If it is part of a rational decision-making process to exclude extraneous considerations, it is in my view also part of a rational decision-making process to take into account those considerations which are obviously relevant to the decision in question. It is of the essence of 'Wednesbury reasonableness' (or 'GCHQ rationality') review to consider the rationality of the decision-making process rather than to concentrate on the outcome. Concentrating on the outcome runs the risk that the court will substitute its own decision for that of the primary decision-maker.

30 It is clear, however, that unless the court can imply a term that the outcome be objectively reasonable (for example, a reasonable price or a reasonable term) the court will only imply a term that the decision-making process be lawful and rational in the public law sense, that the decision is made rationally (as well as in good faith) and consistently with its contractual purpose. For my part, I would include both limbs of the Wednesbury formulation in the rationality test."

88. The only other statement of legal principle on the implied terms of rationality and good faith it is necessary to cite is the recent review by Foxton J in Hayes at [9]:

"i) Any express limitations in rules on the exercise of [a contractual] power must be complied with. Ascertaining the meaning of the rules involves a conventional exercise of contractual interpretation: Evangelou….

ii) There is an obligation to exercise the power of expulsion in good faith, which includes an obligation to exercise the power for a proper purpose.

iii) In a context where the decision is to be reached following some form of inquiry or process, there are implied terms as to how the process is to be operated (cf. Braganza…). There was no dispute that for a decision of this kind by a private body, the relevant obligation is properly characterised as an obligation to adhere to the rules of natural justice: Lee…[I have already how Foxton J elaborated that and as I read it, the rest of [9] in Hayes relates to scrutiny of a contractual discretion decision rather than a process].

iv) When a challenge to such a decision is brought in court proceedings, the issue for the court is not whether, on the evidence before it, it would have reached the same answer, but whether the decision fell within the scope of the contractually permissible decisions open to the decision-maker. In more recent contractual discretion cases, that is usually described as an obligation not to reach an arbitrary, perverse or irrational decision (Socimer International Bank v Standard Bank London [2008] EWCA Civ 116 and in contexts rather closer to the present case…Neslen…[11] and Rothery v Evans [2021] EWHC 577 (QB), [166]-[167]).

v) As Lord Sumption JSC explained in Hayes v Willoughby [2013] UKSC at [14]: "A test of rationality … applies a minimum objective standard to the relevant person's mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse."

vi) The application of that test will be influenced by the type of issue which the contractual decision-maker must decide. Sometimes, as in Braganza, it is a binary question of fact ("Did X happen?"), in which the task of the court in determining whether the given answer meets the contractual requirement of rationality may be relatively easy. On other occasions, the decision may involve application of more evaluative or open-textured criteria. In Rothery at [176], Mr Justice Cavanagh observed "the extent of the implied obligation of rationality recognised in Braganza depends on the type of contractual decision that is in issue. These vary enormously. In Braganza…the contractual decision was a binary factual and objective decision about whether the reason for the….death was suicide or not. The current case is concerned with a more subjective and political decision". Unpacking that observation, where the decision involves an evaluative application of open-textured criteria rather than primary fact-finding, there is likely to be a greater range of reasonable opinions open to the decision-maker, and it may be a more difficult task to identify matters which should have, but were not, taken into account, or vice versa, than when the issue is one of fact.

vii) Further, where the criteria involve an assessment of the impact of conduct on the association itself (e.g. whether a decision was in its best interests or whether conduct has brought or might bring the association into disrepute), the decision-making body stipulated by the contract between the members of the association will inevitably be better placed to answer that question than the court – essentially a form of 'institutional competence'. That is particularly the case when the association is a political party, and its best interests and reputation closely linked to prospects of electoral success"

Indeed, Foxton J also emphasised the need for 'judicial restraint' in Hayes at [27]:

"[T]he court must be astute to ensure that its findings go no further than those necessary to determine the dispute. If, for example, the court concludes that the finding of the contractual decision-maker was one reasonably open to it on the evidence before it, it will not be necessary, and frequently will not be appropriate, for the court to offer a rival view based on the different evidence and arguments it has heard. In such a scenario, if the court reaches a different view, it would not change the contractual decision or its legal effects, merely risk bringing the legitimacy of that conclusion into question. And given that, fairness would suggest that a claimant who cannot obtain the benefits of a different (but legally irrelevant) favourable view from the court should not be exposed to the jeopardy of an equally legally irrelevant finding by which the tribunal's adverse finding is compounded by a public decision to the same effect…"

Against that legal context, I propose to consider whether there was a breach of the implied term(s) of good faith and/or rationality in relation to Cllr Evans's decisions in her letter of 13^th October 2022 that: (i) the Claimant had breached the WCC Code incorporated into WLG Rules; (ii) to impose a 12-month warning on the Claimant; and finally (iii) to remove him from the two committees he shared with Cllr Hibbert. However, in the light of the conclusions I have already reached on the issue of removal from committees, I deal with (iii) very briefly indeed; and having dealt with (i) in a little detail, I will also only need to deal with (ii) relatively briefly. Finally, I will summarise my conclusions and the result of the case.

89. On the Claimant's 'guilt', for ease, I repeat his original (later edited) 17^th August 2022 social media post commenting on a press article (it transpired, inaccurate) that Cllr Hibbert was in court facing possession proceedings for rent arrears. He said:

"Amazing that she can't afford to pay the landlord her rent yet this morning, she's taken off to Nigeria ! One Nigerian on social media…said 'welcome home' and that goes directly to the fact she doesn't really live here.

She took off to Nigeria in 2020 during lockdown, which her resident[s] were burying their dead. She was posting pictures dancing and wrote 'I'm sick of people talking to me about COVID, I don't want to hear anymore'. She was away almost a year in Nigeria and all the time paid by taxpayers over £12,000."

I have quoted the Decision above and that Cllr Evans (and strictly also Cllr Wildman) found breaches of the WCC Code on 'respect', 'bullying, harassment and discrimination', 'disrepute' and 'use of position'. I will repeat their reasoning:

"Specifically, our conclusion is that you have deliberately posted what may be perceived as defamatory, untrue / factually inaccurate comments about Councillor Hibbert on the Blakenhall Online platform and refused to take down this post when requested by both Whips.

You also admitted to contacting a local reporter about Cllr Hibbert appearing in court in relation to a private matter, despite having previously received a written warning for speaking to the Express & Star about a private Special Labour Group meeting, concerning the removal of the Whip from Cllr Celia Hibbert. You will recall that, at the time, we sought reassurance from you that you will check with Leader's Office first, if approached by the media for any comments.

Your actions resulted in a formal complaint received from Cllr Hibbert and has caused her considerable anxiety and distress and attracted unwanted comments from members of the public. Your continued refusal to take down the aforementioned post has not been helpful and shows a lack of co-operation with myself and Deputy Whip, as we try to deal with this matter."

90. The Claimant contends this conclusion that he was guilty of misconduct was not only procedurally unfair in taking into account the WCC Code (which I have rejected), but also not in good faith and irrational in its conclusions. I can immediately reject the contention that the conclusion was not in good faith. Indeed, that was not really pursued by the Claimant. Cllr Evans gave convincing and straightforward evidence which was frequently candid and I have no doubt she was telling me the truth when she told me she had no axe to grind against the Claimant and all her conclusions were reached entirely genuinely and in good faith. However, that does not necessarily mean they were rational. As Lady Hale explained in Braganza, a conclusion would be irrational if it took into account irrelevant factors or failed to take into account relevant ones, as well as if the conclusion was one that no reasonable decision-maker could have reached (but bearing in mind the Court does not substitute its own judgment for the decision-maker in that respect). The Claimant argues the Decision failed to take into account he did (or intended to) act in accordance with the Nolan principles, especially 'openness'; the factual findings in the Decision were irrational; and so was the conclusion he breached the Code.
91. In essence, the Claimant's primary complaint is that Cllr Evans (and Cllr Wildman) failed to take into account the relevant consideration that his conduct reflected, or at least was intended to reflect the seven Nolan principles of standards in public life:

"Selflessness Holders of public office should act solely in terms of the public interest.

Integrity Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work….

Objectivity Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.

Accountability Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

Openness Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

Honesty Holders of public office should be truthful.

Leadership Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs."

It was agreed between the Claimant and Cllr Evans there was no issue over his 'selflessness', 'integrity' or 'honesty'. Cllr Evans said that she considered (albeit did not mention in the Decision, which I accept) that the Claimant's conduct was not consistent with 'objectivity' (which she paraphrased as 'respect') and 'leadership'. The Claimant suggested that Cllr Evans had failed to take into account his conduct was consistent with 'openness' in the sense of being open about Cllr Hibbert's misconduct (which to my mind, is more redolent of 'accountability').

92. In my judgement, Cllr Evans' application of the Nolan principles to the Claimant's conduct is entirely rational and took into account all relevant factors and no irrelevant factors. Indeed, mindful of Foxton J's call for 'judicial restraint' in Hayes, I need not go further than that and in fairness I cannot: not least because the issue of standards in public life is something in which politicians and those in government have particular 'institutional competence', as Foxton J also put it in Hayes. Cllr Evans explained that she did not consider 'openness' was engaged as that related to transparency and information not being withheld from the public, but it was not being withheld: the press commented on Cllr Hibbert, there was no need for the Claimant's comment. Whilst I accept the Claimant considered himself to be holding Cllr Hibbert to account (hence 'accountability' was engaged), Cllr Evans was entitled to consider that he had struck the balance wrongly and tipped into a lack of objectivity, respect and leadership which engaged the WCC Code of Conduct. She did not fail to take into account relevant factors or take into account irrelevant ones.
93. At the start of the trial, I raised the issue whether Cllr Evans had taken into account the relevant factor of the importance of freedom of expression for councillors under Art.10 ECHR and at common law. I had in mind what Lang J said in Robinson:

"82. In the light of the case law of the ECtHR, I consider that the Claimant was clearly exercising his right to freedom of expression under Article 10(1) when he spoke at the meeting on 17 April 2018. In my judgment, as an elected representative attending a public meeting called by the [Council] to discuss the highly controversial topic of Green Belt and other development in the village, his statements attracted the enhanced protection afforded to political speech and debate under Article 10. As the ECtHR reiterated in Lombardo, (at [55]), "there is little scope under art.10(2) of the Convention for restrictions on political speech or on debate on questions of public interest". It is beyond argument that development in the village was a matter of public interest…

88. In my judgment, the fact that other councillors disagreed with, and were offended by, the Claimant's assessment of their views and conduct, or that the Claimant's assessment was found to be inaccurate, mistaken or even untruthful, was not a sufficient basis for interfering with his right to express his opinions. In Lombardo, the ECtHR observed that "elected officials and journalists should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact".

89. As the ECtHR reiterated in Jerusalem, at [36]: "…. while freedom of expression is important for everybody, it is especially so for an elected representative of the people. He or she represents the electorate, draws attention to its preoccupations and defends its interests. Accordingly, interferences with the freedom of expression of a….Member of Parliament …. call for the closest scrutiny on the part of the Court."

91. Fourth, the DMO failed to apply well-established principles of law when she concluded, in paragraph 9, that "if criticism is a personal attack or of an offensive nature, it is likely to cross the line of what is acceptable behaviour" and suggested, in paragraph 10, that the Claimant's conduct amounted to bullying. In Oberschlick, at [57], the ECtHR confirmed the principle set out in Lingens that freedom of expression applies equally to statements that "offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" ….". In my judgment, the criticism which the Claimant directed at his fellow councillors enjoyed the protection of Article 10, even though it was found to be a personal attack or offensive. It was open to the other councillors to respond to the criticisms made, both at the meeting and subsequently."

94. However, I was persuaded by Mr Mundy that the issue of freedom of expression was not pleaded and it would be unfair on the Defendants to raise at trial. So, I just make the following three brief (and obiter) comments:

a. Firstly, on reflection, Robinson was a challenge to a statutory complaint adjudicated by a Council Monitoring Officer: a 'public authority' under s.6 Human Rights Act 1998. By contrast, political party unincorporated associations may not exercise public functions in selecting (or presumably disciplining) members, even if the member becomes the Prime Minister: Tortoise Media v Conservative Party [2023] EWHC 3088 (Admin). Therefore, WLG may well not be a public authority under s.6 HRA.

b. Secondly, however, that does not mean that 'freedom of expression' is not a relevant consideration in the exercise of a contractual discretion (c.f. Braganza) for a local party whip deciding whether a councillor's public conduct breaches the association contract rules. The common law recognised the importance of 'freedom of expression' well before the incorporation (in a third legal sense) of the ECHR into domestic law in 1998, as in Derbyshire CC v Times Newspapers [1993] AC 534, where the House of Lords took it into account in developing the common law of defamation. In any event, a 'Wednesbury relevant consideration' need not be a legal principle, as in Braganza where the employer had failed to take into account relevant facts in reaching an irrational conclusion of suicide.

c. However, that point does not introduce the HRA and ECHR 'by the back door'. It simply means that local party decision-makers would be well-advised to consider that the role of a councillor involves the exercise of freedom of expression in a general sense, for which the Nolan principles of 'openness' and 'accountability' may be analogous. That may justify some conduct with which colleagues within the local party may strongly disagree.

In the present case, it suffices to say that I am satisfied that Cllr Evans took into account the relevant Nolan principles in the Decision and in that way gave rational weight to issues of freedom of expression, even if she did not articulate it as such. Indeed, she reminded herself through the WCC Code of Conduct on 'Disrepute':

"As a councillor, you can express, challenge, criticise and disagree with views, ideas, opinions and policies in a robust but civil manner. You should not, however, subject individuals, groups of people or organisations to personal attack"

Insofar as this differs from Art.10 ECHR as explained in Robinson at [91], of course that case related to conduct in council meetings where it is inevitable and necessary that robust views should be exchanged.

95. Finally on the issue of the conclusion that the Claimant had breached the WCC Code of Conduct, I am satisfied that Cllr Evans (with whom Cllr Wildman agreed) did not take into account irrelevant considerations, took into account all relevant ones and reached a rational conclusion on the facts, because:

a. The factual findings made in the Decision were largely undisputed. The Claimant admitted he had posted the comment to social media and admitted (I have found as a fact the minutes were accurate); that he encouraged the reporter to attend Cllr Hibbert's court hearing; and that he initially refused in the meeting to take down the (edited) post but then made agreement conditional on investigation of Ms F's concerns that I have found irrelevant to the decision which Cllr Evans had to reach on Cllr Hibbert's complaint. The only potential factual question is whether Cllr Evans was entitled to conclude the Claimant's social media post was inaccurate. She plainly was. He edited it himself on 18^th August for inaccuracies about Cllr Hibbert going to Nigeria and then misquoted her post from there during the Pandemic.

b. Accordingly, Cllr Evans was entitled to conclude the Claimant had breached the WCC Code in bringing his role and the authority into 'disrepute' by inaccurate public criticism of a colleague, especially since he had also acted privately to encourage press reporting about her which might not otherwise have occurred. He had also refused (or set conditions) to remove the post.

c. Similarly, Cllr Evans was entitled to conclude the Claimant had used his position as a councillor and his contacts with the press to pursue his own grievance against Cllr Hibbert, which included personal grievances which he had already presented to WCC for legitimate investigation. Moreover, he had done so despite previous warning about speaking to the press. Whilst the requirement to check with the Leader's office if approached by the press expired after 3 months, here the Claimant proactively approached the press.

d. Likewise, the tone of the Claimant's initial post on 17^th August in particular, suggesting Cllr Hibbert did 'not really live in the UK' was inaccurate, showed a lack of respect and was a personal attack. In fairness, this was mitigated by his amendments to the post the next day, but it remained a personal attack and had to be seen against his previous public criticisms of Cllr Hibbert in 2021, for which he had received a warning.

e. The conclusion of 'harassment' was one which Cllr Evans was entitled to come, especially as it was put to the Claimant in the meeting. The WCC Code of Conduct adopts the definition of 'harassment' in the Protection from Harassment Act 1997, which it paraphrases as 'conduct causing alarm or distress…and must involve such conduct on at least two occasions …[including] repeated attempts to impose unwanted communications in a manner that could be expected to cause distress in any reasonable person'. When the social media post is seen against the background (as Cllr Evans did) of the Claimant encouraging negative press reporting of Cllr Hibbert, previous public criticism of in the press and investigation of her residence, Cllr Evans was rationally entitled to conclude that threshold was met. Whilst she did not consider the conduct was 'bullying' (and it is regrettable that she was advised by Mr Islam that she had to say both when in my judgement she did not, as they are alternatives in the WCC Code), 'bullying' is not stated in the reasoning itself, so that was no more than a 'slight misdirection' which did not affect the conclusion at all (c.f. Braganza at [31]).

For all those reasons, the conclusion of Cllr Evans (and Cllr Wildman) that the Claimant had violated the WCC Code of Conduct in those respects was rational. In reject his complaint that the Decision in that respect breached the contract at all.

96. I can deal much more briefly with the imposition of a 12-month warning for this conduct. This is not an evaluation of fact or a rule with which the Court is familiar, but an evaluative conclusion in a political context which doubtless may have more than one rational answer, so the Court must show particular restraint: see Hayes at [9(6)]. It suffices to say that for all the reasons just stated on 'misconduct', I cannot possibly say the decision to impose a 12-month warning was irrational. The Disciplinary Procedures specifically enjoin Whips to take into account the individual's previous disciplinary record, as Cllr Evans did and was rationally entitled to do. A 3-month warning in January 2022 had not dissuaded the Claimant – only 7 months after that warning – to target Cllr Hibbert once again. Therefore, a longer warning, especially one which covered the Claimant until he was due to stand down as a Councillor in May 2023, was entirely rational. It was also within Cllr Evans' contractual authority, as I discussed above. Moreover, as I also discussed, even though Cllr Evans did not have to re-open that warning for a vote by WLG under the contract, on Cllr Brookfield's advice she did so, which is not just relevant to fairness, but illustrates her good faith and open mind on the issue of the appropriate sanction.
97. Finally, there is little more to be said on Cllr Evans' unauthorised imposition of removal from committees I have not already said at [57]-[60] of this judgment. However, it is worth stressing Cllr Evans' reasons for that step. She was rationally entitled to conclude against the history that the Claimant and Cllr Hibbert could not work constructively together. So, it was also rational to remove one of them from the committees they both shared. It was also rational for the Claimant to move, since the complaint had been upheld against him. However, the implementation of that rational step was not within Cllr Evans' contractual authority. Whilst I accept it was an honest mistake made in good faith, as it was outside the scope of the contract, Cllr Evans failed to take into account the highly relevant consideration of her contractual authority. But that adds nothing to the position I have already discussed on express terms, because her mistake was not implemented and she quickly corrected it. Therefore, I dismiss all remaining complaints of breach of implied terms and indeed, all the allegations.

Result

98. The result is that the claim is dismissed. I have found there were neither breaches of the express terms actually pleaded, nor indeed the express terms not pleaded. I have also rejected all the complaints of breach of the implied term of natural justice and indeed the implied terms of good faith and rationality. It follows there is no basis for any remedy, such as an injunction or a declaration; and damages are not claimed.
99. However, if I am wrong in my conclusions (for example that there was no actionable breach of contract in respect of Cllr Evans' purported invalid imposition of removal from committees), I would still not have awarded the Claimant any remedy. No damages are claimed and I do not in any event accept that he can prove loss, even on the threshold of a real and substantial prospect of loss (see Dymoke). His contended loss of business opportunity was speculative and asserted not proven. Likewise, an injunction is a discretionary remedy and would have served no purpose to restrain WLG from taking steps against a former member. As for the Claimant's reputation, which I know is rightly important to him, then the judgment on a claim he has brought speaks for itself and an injunction not to report the allegations would be pointless. That does not mean the original injunction by HHJ Russen KC in 2022 was wrongly made. It was not micro-management of the disciplinary process (the case then was more like Brown than Neslen) and there was a genuine issue to be tried, damages were inadequate and the balance of convenience favoured 'holding the ring' pending trial. However, after trial, an injunction would be inappropriate. Similarly, I would not have granted a declaration either. Whilst there is a real and present dispute between the parties as to the existence or otherwise of a legal right: Rolls-Royce v Unite the Union [2010] 1 WLR 318 (CA), that remedy too is discretionary and would have added nothing to the findings in a judgment in this particular case.
100. However, I end with the Claimant's reputation. I reiterate what I said at [6] above. The Claimant is a person of strong principle. As well as serving as councillor for Blakenhall Ward in Wolverhampton from 2019-2023, he is a Magistrate and former Chair of Victim Support, a fellow of two universities and received the British Empire Medal in 2021. He runs a fairtrade company and a successful record company. It was apparent he is motivated by a strong sense of ethics and public service, rather than personal political ambition. But the Defendants were rationally entitled to find after a fair process that with Cllr Hibbert, the Claimant lost sight of that and behaved inappropriately. But that does not take away from his many years of service to the community - both in the past and I am sure, yet to come.
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