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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
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Birmingham Civil Justice Centre |
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28th August 2013 |
B e f o r e :
HIS HONOUR JUDGE PURLE QC
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MICHAEL NATTRASS |
Claimant |
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– and – |
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UK INDEPENDENCE PARTY |
Defendant |
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____________________ MR. STEPHEN EYRE (of counsel) instructed by the Wilkes Partnership appeared on behalf of the Claimant.
PROF. MARK WATSON-GANDY (of counsel) instructed by Griffin Law appeared on behalf of the Defendant.
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JUDGE PURLE QC:
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· In this application Mr. Michael Nattrass seeks an injunction against the United Kingdom Independence Party until trial in the following terms: “The defendant is strictly enjoined and restrained whether by itself its servants or agents or otherwise howsoever from conducting or purporting to conduct a ballot of the membership of the United Kingdom Independence Party with a view to selecting candidates for the election to the European Parliament to be held in June 2014”.
· I shall refer to the Defendant as UKIP.
· Mr Nattrass has been a West Midlands UKIP MEP since 2004. The next election will be in 2014. The candidates for the elections will be selected by a national UKIP ballot from amongst those selected for the purpose (60 in number) by a body called the National Selection Panel.
· A selection process has been gone through which Mr. Eyre, who appears for Mr. Nattrass, has eloquently submitted is legally flawed. Mr. Nattrass was not one of the 60 people who came successfully through the selection process. Approximately 200 people applied, each paying £500 for the privilege, so there are at least 140 disappointed candidates. There are, however, 60 people who would no doubt claim to have been properly selected. Those 60 people prima facie have a contractual right to proceed to the ballot stage, which is a ballot of the entire party. If I granted the injunction that is sought, their apparent contractual rights would be infringed, yet none of them is before the court. It seems to me that that gives Mr. Eyre a real difficulty. However, that is not his only difficulty.
· The flaws that he relies upon (or did rely upon) were 2-fold. The first was the relatively technical one that no formal resolution constituting the National Selection Panel, as required by the rules, was put to the National Executive Committee. That, however, has been effectively cured, as Mr. Eyre concedes, by a resolution of 18th August 2013 ratifying everything previously done, passed before this claim was brought, with only 1 vote against. Accordingly, Mr. Eyre now limits his legal attack before me to the second ground pleaded which is that there is, he says, an implied term in the rule book that the assessment of potential candidates for elections to the European Parliament would be conducted
(a) fairly, as between the potential candidates,
(b) by reference to objective criteria;
(c) in such a manner that each potential candidate would in interview be given an opportunity to address issues which might materially influence the assessment of his suitability for election;
(d) in such a manner that the criteria were applied and the assessment conducted in the same manner in respect of each potential candidate.
· It is said that the implication is necessary in order to give business efficacy to the arrangements for the selection of candidates or on the ground of obviousness.
· The details of the selection process are set out in the rule book, which is itself referred to in the defendant’s constitution and is the governing document for the selection of candidates. Moreover, the rule book was sent to all candidates and entry into the process was deemed to be acceptance of the rules.
· The rules are very detailed. I turn in particular to section T4 which deals with the National Selection Panel which is to be appointed from among senior party members and chaired by the party chairman. That selection panel is enjoined to appoint three-person Assessment Panels to undertake the assessment and interview process within a prescribed timetable. There are detailed conditions as to how they are to operate. In particular, they are to engage the services of an independent third party recruitment company to assist with the assessment phase and assessment is to include, but not be limited to, various components such as loyalty indicators. It is further provided that candidates should make themselves available for interviews and public speaking tests on dates to be determined. There is a discretion on the National Selection Panel’s part to provide for alternative arrangements in exceptional cases and there are detailed provisions to assist the assessment process such as the organisation of public speaking events. 60 candidates in England are to be chosen. Only those candidates go forward to the ballot stage.
· Those very detailed provisions, which I have merely summarised, but which cover several pages of the rule book, do not need to be buttressed by implied terms of the sort contended for here. I have no doubt that many of the detailed provisions, such as the reference to an independent third party recruitment company, are intended to ensure that the process is fair, but that is brought about by an express provision. There are many other detailed express provisions, and it is simply not necessary to imply anything further.
· Moreover, it is not at all clear to me that Mr. Nattrass has established any breach of the implied terms he pleads or, if he has, what the consequences of that breach are. He has not come anywhere near to establishing that he would or should have been selected if the process had been different.
· It is said that he should have been given the opportunity to comment upon matters which have been taken into account against him in the selection process, in particular loyalty issues. It is said that he was not given that opportunity, which could easily have been afforded to him in interview. Were this a judicial process, subject to the rules of natural justice, Mr Nattrass might have a case, as on his allegations UKIP was, according to him, in breach of the requirements of natural justice. But Mr Eyre, for Mr Nattrass, prudently disclaims any duty on UKIP’s part to observe the rules of natural justice. One can see the intractable difficulties that could lead to. The selection process could be much prolonged and all candidates (not just Mr Nattrass) would have to have the opportunity to comment upon any matter that might be taken into account against them before the process could be concluded.
· In political life people form views about other people who are in the public eye based upon their track record, and what they have done and said. It seems to me to be quite impossible to argue that there should be a duty to put to a candidate everything that might conceivably be held against that person at the end of the day. What the selection process was meant to achieve was a comparative assessment of all the candidates. One of the reasons for not selecting a candidate may be that there are better candidates. If a duty of natural justice or its equivalent is to be read into the process, then every candidate should presumably have a free reign to comment upon other candidate’s comparative weaknesses, which is clearly not, nor is it claimed to be, the case.
· It seems to me that what happened in this case does not give rise to a serious argument that Mr. Nattrass has been the victim of a breach of contract or other wrong. In any event, it seems to me that the balance of convenience is very much in favour of allowing the proposed ballot to proceed.
· I can see that damages is an unattractive remedy for Mr. Nattrass, because he would be in the territory of loss of a chance and there would be major, if not intractable, problems of proof.
· Nevertheless, I must weigh against that the fact that any injunction I grant now would require, effectively, the whole process to be gone through again with whatever further legal challenge (if any) that may arise at the end of the day after that process has been completed and will disrupt the ballot that everyone is expecting will now go ahead, and the ensuing preparations for next year’s elections, which are fixed in time. It seems to me that the court should require exceptional circumstances before it interferes with the selection processes of a political party and, just as Mr. Justice Stanley Burton in Choudhry v Triesman [2003] EWHC 1203 (Ch), declined to compel a registered political party to allow candidates to stand if the party had genuine and substantial concerns as to the regularity and honesty of the procedure for their selection, so too, in my judgement, where there has been (as in this case) a process, albeit one which (I assume for the purposes of this argument) may be flawed, but which has resulted in the selection of sixty candidates for election, it would be quite inappropriate, save in the most exceptional circumstances, for the court to intervene and interfere with that process.
· There is no suggestion of corrupt practises in this case, merely of unfairness (I say “merely” without minimising the importance of fairness in public life). There is only so much that the court should be asked to do. The court should be very wary of finding itself in the position where it starts to control part of the ongoing democratic political process in this country. I decline to do so in the circumstances of this case. Accordingly, the injunction is refused.
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Greg Lance - Watkins (Greg_L-W)
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Posted: 20/08/2013 13:15 BST | Updated: 20/08/2013 13:17 BST