UK Independence Party Ltd & Anor v Hardy [2011] EWCA Civ 1204

Case No A2/2011/0002[2011] EWCA Civ 1204
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Middlesborough District Registry
His Honour Judge Fox QC
9MBO3865
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/10/2011
Before
LORD JUSTICE WARDLORD JUSTICE TOMLINSONSIR MARK POTTER
Between
(1) UK INDEPENDENCE PARTY LIMITEDAppellantsALAN HARDYRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Philip Engelman (instructed by Endeavour Partnership LLP) for AppellantsAlan Hardy (In Person) for in personHearing Hearing date: 21 July 2011
JudgmentSir Mark Potter:
[1]This is an appeal from the Judgment of His Honour Judge Fox QC, the Recorder of Middlesbrough, dated 15 November 2010. It concerns a dispute which arose out of an unfortunate and regrettable clash of personalities within the Stockton-on-Tees Branch of the United Kingdom Independence Party (UKIP) between the respondent, Mr Alan Hardy, who became a member of UKIP in 2007 (the first appellant) and served for a short time as the Branch’s Press Officer, and Mr Gordon Parkin (the second appellant), who was and remains the Chairman of the Branch.[2]Having received a letter from Mr Parkin dated 11 September 2009 purporting to ban Mr Hardy from attending Branch meetings chaired by Mr Parkin, and advising him to resign from his membership of UKIP, Mr Hardy, issued proceedings against Mr Parkin in the Middlesbrough County Court seeking a declaration that Mr Parkin’s actions were illegal and claiming damages.[3]The matter escalated to national level when, in February 2010 the Head Office of UKIP rejected Mr Hardy’s renewal subscription for the year 2010, following which he issued High Court proceedings against UKIP in the Middlesbrough District Registry seeking a declaration that he had been wrongly excluded from membership.[4]The actions were subsequently consolidated and came on for trial lasting two days before His Honour Judge Fox Q.C. Mr Hardy appeared in person and Mr Holland of counsel appeared for Mr Parkin and UKIP. In the course of the proceedings Mr Holland advanced argument based upon the form of the UKIP Party Constitution (“the Constitution”) and its Branch and Constituency Association Rules (“the Rules”) that actions taken by Mr Parkin as Chairman of the Branch were taken as agent of the Branch, which enjoyed autonomous existence under the Rules, and hence that it might be the Branch and not UKIP who were liable for any unlawful action on the part of Mr Parkin. In order to meet that submission, the judge belatedly amended the proceedings so as to join the Branch as an additional defendant in circumstances to which I will turn in more detail below.[5]Having considered all the evidence, having construed the relevant correspondence at local and national level, the effect of which was subject to considerable argument, and having heard argument as to the effect of the Constitution and Rules, the judge held that neither the Constitution nor the Rules provide for the exclusion of a member in the circumstances of the case, and that Mr Hardy had been wrongfully excluded from membership of UKIP in breach of contract. He held that Mr Hardy was entitled to compensation by way of damages for such wrongful exclusion which he assessed in round terms in the sum of £750.[6]The form of the judgment against which UKIP brings this appeal was as follows:
“there be judgment for the claimant in the sum of £750.00 (total) against each defendant (that is Gordon H Parkin, UK Independent Party Limited and Stockton-on-Tees Branch of UK Independent Party Limited) with no order as to costs and a Declaration that upon the claimant’s payment to the 2nd Defendant of £10.00 he be a member of the 2nd Defendant’s Party and the 3rd Defendant’s Branch (that is Stockton-on-Tees UKIP) for the current year ending February 2011.”
[7]The judge refused permission to appeal. By an appellant’s notice sealed on 16 December 2010, UKIP applied to this court for permission to appeal on a variety of grounds. Permission was refused on paper by Lord Justice Elias despite his view that certain of the grounds were arguable. Upon UKIP’s oral application made to this court on 19 April 2011, Lord Justice Ward granted permission on condition that no order for costs would be sought against Mr Hardy. Mr Engelman told us that, when he appeared before Lord Justice Ward, he had not appreciated that the application had been lodged by UKIP alone and that permission to appeal had therefore been granted on that basis. He sought permission for Mr Parkin (whom he also represented) to be joined as an appellant before us. We granted permission, being satisfied that the point to be argued on Mr Parkin’s behalf was one of law, was fully set out in Mr Engelman’s grounds of appeal and came as no surprise to Mr Hardy.

The Relationship of UKIP with its Members

[8]UKIP is, it appears, an incorporated rather than an unincorporated members’ association. However the word “Limited” does not appear in its title and I proceed upon the basis that it is a company limited by guarantee with a dispensation from that requirement under s.30 of the Companies Act 1985. It is not in issue for the purposes of this appeal that UKIP’s relationship with its members is, like that of an unincorporated association, founded on the basis of contract and governed by the rules of the association. Consequently, no member may be expelled or suspended for disciplinary or other reasons unless there is a power to do so provided for in the rules, the procedures laid down in such rules are complied with, and the principles of natural justice observed: see John v Rees [1970] Ch 345 at 396 G – 402 A. See also Dawkins v Antrobus [1881] LR 17 and 615 at 630 per Brett LJ at the first paragraph of his judgment.[9]Before proceeding to the detail of the case and the grounds of appeal it is helpful to set out the relevant provisions of the UKIP Constitution and the Rules to which reference has been made in the course of this appeal.[10]The relevant parts of the UKIP Constitution provide: 4. Membership “4.1 Membership is open to UK citizens and resident foreign nationals over the age of 16 years of age who share [UKIP’s] aims and who are not members of any other political party or organisation, membership of which the National Executive Committee (“NEC”) has declared as incompatible with membership of the party… 4.2 If a member of UKIP subsequently joins such a party or organisation which the NEC has declared to be incompatible with membership of the party, or if the member is found to be a member of such a party or organisation, then their membership of the party will be automatically revoked. . . . 4.4 Members must maintain their subscriptions. 4.5 Members should accept the Party’s constitution and rules made in accordance with this constitution and do nothing to undermine the reputation of the party or to bring the party into public disrepute. Nor shall they act in a manner intended to cause, or actually causing, damage to the Party’s interests including by wilful disruptive conduct or by breaching confidentiality. 4.6 Where constituency associations are established, membership shall be of the local Parliamentary Constituency Association and, by affiliation of the Constituency Association, of the National Party. . . . 4.9 Members shall receive a membership card and the Party’s newsletter. They shall be entitled to vote in all the relevant internal Party elections. 4.10 Members are of “good standing” if their subscriptions are up to date and they are not subject to any suspension or exclusion from elected office or from standing as a candidate of any sort. 5 Constituency Associations5.1 The party shall seek to establish an association in every UK Parliamentary constituency. Constituency associations will affiliate to the National Party by resolution at their first official meeting.5.2 As a first duty constituency associations shall prepare, organise and fight elections within their constituency and shall nominate and campaign for a UKIP candidate in all UK Parliamentary elections and in as many local government elections as shall be expedient.5.3 The constituency association has the responsibility for administering its own financial and other affairs subject to the constituency rule book approved by the NEC from time to time including the election of local officers and the selection of candidates for UK Parliamentary and Local Government Elections, such election to be made in accordance with rules established by the NEC from time to time.5.4 Where an organisation covers more than one parliamentary constituency it shall be know as a Branch and paragraph 5.2 shall apply to it as if it were a constituency association. . . . 13 Standing and Temporary Committees 13.1 The Standing Committee set up by the NEC shall include a . . . Discipline Committee. . . . 14 Discipline The Party shall establish a Discipline Committee comprising of the Party’s secretary and up to 10 members approved by the Annual Business Meeting from fully paid – up members. The Party Secretary and a minimum of four members of the Discipline Committee shall conduct specific hearings in accordance with the appropriate rules which shall be made by the NEC from time to time. . . . 15 The Party Rules The NEC shall establish the rules governing Constituency Associations; . . . disciplinary procedures and all other rules and procedures forming part of the formal management, conduct and administration of the Party save where such rules are already laid down in this constitution.” . . . . . . . . .[11]The Branch and Constituency Association Rules provide as follows:
“These rules should be read in conjunction with the Party Constitution, which, in the event of a clash, shall always take precedence. . . . 1 Status and Authority 1.1 The basic units of the Party are the Constituency Association and Branches, established under section 5 of the Party Constitution. They shall uphold the principles of the constitution and are responsible to the National Executive Committee via the Party Chairman or his delegate who will normally be a regional organiser. . . . 1.4 The primary functions of the Constituency Associations and Branches are to select and support candidates for Parliamentary and local elections, to assist in Euro/election campaigns, recruit new members, raise funds and generally to promote the Party in its policies. . . . 1.7 Constituency Associations and Branches shall both be managed under these rules and both are hereinafter referred to as Branches. . . . 2. Membership 2.1 All Party members of the Branch in which they live shall be entitled to participate in its activities… 2.3 Party members may, on request, become a member of another branch, subject to the agreement of the receiving Branch Committee. 3. Branch Committees 3.1 Branches are responsible for their own actions and financial affairs. 3.2 A Branch Committee shall have a minimum of two members and would not normally have more then 8 members in total. 3.3 The three principal Branch Officers, Chairman, Treasurer and Secretary shall all be Committee members. . . . 3.8 Duties of Branch Officers. 3.8.1 The Chairman has a principal responsibility for the direction of the Branch and shall normally chair all meetings including the AGM. . . .” 7 Disputes 7.1 Incidents may arise when differences within a branch threaten its proper functioning. Every effort shall be made to resolve these at the local level, either by the Branch Committee or as a full meeting of the Branch. If it does not succeed, the dispute shall be referred to the regional organiser, acting on behalf of the Party chairman. 7.2 If the dispute remains irreconcilable, or if the Party Chairman deems that the behaviour of the committee or its officers is inconsistent with the Party’s constitution or principles, the Party Chairman will suspend or dissolve the Committee or dissolve the Branch.” 1.1 The basic units of the Party are the Constituency Association and Branches, established under section 5 of the Party Constitution. They shall uphold the principles of the constitution and are responsible to the National Executive Committee via the Party Chairman or his delegate who will normally be a regional organiser. . . . 1.4 The primary functions of the Constituency Associations and Branches are to select and support candidates for Parliamentary and local elections, to assist in Euro/election campaigns, recruit new members, raise funds and generally to promote the Party in its policies. . . . 1.7 Constituency Associations and Branches shall both be managed under these rules and both are hereinafter referred to as Branches. . . . 2.1 All Party members of the Branch in which they live shall be entitled to participate in its activities… 2.3 Party members may, on request, become a member of another branch, subject to the agreement of the receiving Branch Committee. 3. Branch Committees 3.1 Branches are responsible for their own actions and financial affairs. 3.2 A Branch Committee shall have a minimum of two members and would not normally have more then 8 members in total. 3.3 The three principal Branch Officers, Chairman, Treasurer and Secretary shall all be Committee members. . . . 3.8 Duties of Branch Officers. 3.8.1 The Chairman has a principal responsibility for the direction of the Branch and shall normally chair all meetings including the AGM. . . .” 7 Disputes 7.1 Incidents may arise when differences within a branch threaten its proper functioning. Every effort shall be made to resolve these at the local level, either by the Branch Committee or as a full meeting of the Branch. If it does not succeed, the dispute shall be referred to the regional organiser, acting on behalf of the Party chairman. 7.2 If the dispute remains irreconcilable, or if the Party Chairman deems that the behaviour of the committee or its officers is inconsistent with the Party’s constitution or principles, the Party Chairman will suspend or dissolve the Committee or dissolve the Branch.”
[12]It is to be noted that there is no provision for the disciplining of UKIP members at Branch level. The relevant provisions are those contained in clauses 14 and 15 of the Constitution (see above), which provide for disciplinary proceedings to take place before the Disciplinary Committee of the Party. In this connection, however, neither the judge below nor this court have been referred to any “Rules governing ... disciplinary procedures” to which reference appears in clause 15 of the Constitution, and the case has proceeded both below and before this court on the basis that there are no such rules in existence.[13]Broadly put, therefore, it will be seen that under its Constitution and Rules UKIP carries on its activities through a number of Branches, all UKIP Party members being members of the Branch established in the area where they live and the Branch Rules fall to be read in conjunction with and subject to the rules contained in the constitution of UKIP, such combined rules constituting the contract between UKIP and its individual members. Under the Constitution, the higher management of UKIP is in the hands of the National Executive Committee (“NEC”) including the establishment of disciplinary procedures, and all other rules and procedures forming part of the formal management, conduct and administration of the Party (see clauses 7 and 15), including the establishment of a Discipline Committee to conduct specific disciplinary hearings in accordance with appropriate rules (clause 14). The running of the day to day affairs of UKIP members (who are entitled to participate in the activities of their local Branch) is delegated to the Branch Committees, the Chairman of each such committee having the principal responsibility for the direction of the Branch and normally chairing all meetings of that Branch. The Branch Committee does not have any disciplinary power or function. When disputes or differences within a Branch arise which threaten its proper functioning, it is the duty of the Branch Committee, either in Committee or at a full meeting of the Branch to seek to resolve such dispute and, if unsuccessful, to refer the matter to the regional organiser for action by the Party Chairman. (Rule 7). The Factual Background[14]At one time Mr Hardy was a member of the British National Party (“BNP”) from which he resigned in June 2005. He has never rejoined. In February 2007 he applied to become a member of UKIP and his application was accepted. He became a member of the Stockton Branch of which Mr Parkin was and is Branch Chairman. He was quickly active in the Branch, becoming its press officer in which role he was commended by UKIP’s head office where he was well known to senior officials, who were well aware of his former membership of BNP. However, he was not successful in his ambition to be adopted as a Parliamentary Candidate.[15]Despite his successful role as press officer, Mr Hardy did not get on with Mr Parkin, such that in November 2007 Mr Hardy resigned his post as press officer, writing to Mr Parkin that he would not serve the branch in any post so long as Mr Parkin remained Chairman. However, he continued in active membership, attending Branch meetings and working to further the aims and activities of the Branch and UKIP. He renewed his subscription and membership on 1 February 2008 and again on 1 February 2009 despite the continuation of his bad relations with Mr Parkin.[16]Matters came to a head in the Winter of 2008/2009 when a dispute arose as to whether Mr Parkin had distributed leaflets to each house on a housing estate, so that Mr Hardy and a fellow member, Mr Himmelblau, conducted a door to door enquiry which, in turn, Mr Parkin dubbed inadequate and misleading. This issue led to cross-accusations of lying.[17]In January 2009 Mr Hardy and Mr Himmelblau asked Mr Parkin to stand down as Branch Chairman on the grounds of his incompetence in that role and the fact that the local membership of the UKIP was not increasing. Mr Parkin refused. The February meeting under Mr Parkin’s chairmanship had to be brought to an end prematurely when the caretaker of the hall where it was held asked everyone present to leave the building on account of the noise from the raised voices.[18]At two subsequent monthly Branch meetings on 20 January and 17 February 2009, voices were again raised and cross- accusations were made by Mr Hardy and Mr Parkin, each stating that the other was a liar. On 10 March Mr Parkin circulated Branch members to the effect he had decided that there would be no Branch meeting that month. He wrote:
“matters were raised at our last meeting and are of concern to members are being dealt with and a report will be issued as soon as practical”
[19]Between the end of March and late June Mr Hardy was away in Saudi Arabia on a teaching job. Whilst he was there, in the context of the continuing bad relations between Mr Hardy and Mr Parkin, the UKIP Party Chairman Mr Nuttall wrote to him at his UK address inviting him to meet the General Secretary, Mr Arnott, and himself on 14 April. Mr Hardy did not receive the letter until 6 May 2009 following his return, and so could not have attended the meeting even had he been so inclined.[20]On 17 May 2009 Mr Hardy wrote to Mr Challice, the Administration Manager at UKIP Head Office explaining the position, only to receive a reply dated 29 May 2009 (copied to the Chairman and Secretary of UKIP, the Regional Organiser and Mr Parkin) stating that, since Mr Hardy had not “bothered to attend” the proposed meeting and had sent an abusive letter concerning the late arrival of the letter of 30 March:
“I have decided that this office has better things to do and henceforth will have no further dealings with you. If you wish to write to the Party Chairman your letters will be forwarded. Any letter or e-mails to me will find their way to a different destination. I will also give instructions to Head Office staff not to engage in conversation with you on the telephone. I will not engage with you on the telephone”
[21]On his return from Saudi Arabia, Mr Hardy e-mailed the new Branch Secretary, Dr Goyns, asking him to telephone him only to receive a reply from Mr Goyns that, on Mr Parkin’s advice, it would be inappropriate for them to meet.[22]Following further correspondence between Mr Hardy and Mr Parkin, on 11 September 2009 the latter wrote to Mr Hardy. Having referred to “ repeated complaints” by Mr Hardy about Mr Parkin’s Chairmanship, he stated that they had been:
“dealt with at every level within the Party, up to the level of Party Chairman and at all levels they have seen your complaints were unfounded and without substance… I have once again taken valuable advice from our regional organiser and I have decided on the following actions, which I shall give my reasoning for this action. It has been decided that you will no longer be permitted to attend any Branch meeting of which I am chairman. The reasoning for this is as follows: At your two attendances at Branch meetings you did bring the meeting into disrepute. At your last attendance at the Branch meeting at Kiora all your actions and outbursts created an embarrassing situation which led to the eviction from that venue and the prevention of our return… Clearly you are dissatisfied with the Party and the way in which it operates and for this reason I strongly recommend that you will withdraw from your membership of the Party forthwith… As of this point in time I have advised the Branch Secretary not to enter into any further communications with you or your colleagues. I and the Party have dealt with your complaints and dissatisfactions as they have arisen and we can do no more at this level. Should you wish to take the matter further then your only option left is to go through Head Office.”
[23]On 13 November 2009 Mr Hardy issued proceedings in the Middlesbrough District Registry (Claim No. 03865) against Mr Parkin as Chairman of the Stockton-on-Tees Branch of the party. He sought a declaration that Mr Parkin’s action in banning him from attendance at Branch meetings was unwarranted and that he had no power to impose such a ban on a summary basis. Mr Hardy asserted that the ban was in breach of the Human Rights Act and claimed such compensation as the court should think appropriate. In his Defence delivered on 16 January 2010, Mr Parkin pleaded, inter alia, that the Branch meetings of UKIP were private meetings, that no cause of action was available to the defendant under the Human Rights Act and denied that he was in any contractual relationship with the claimant or owed him any duty upon which this cause of action could be based.[24]In early 2010, with renewal of his membership due on 1 February 2010, Mr Hardy was not sent a renewal form from Head Office in the usual way. He wrote tendering his subscription on 11 February 2010 and asked to receive his new membership card “within the next 7 days”. He received a reply on 19 February 2010 from Mrs Duffy, the Party Director, stating that, by administrative error, the National Executive Committee had not been informed of his former membership of the BNP and that before his membership could be renewed the NEC “must be given a proper opportunity fully to consider the matter”. She returned his £10 membership renewal cheque.[25]On 3 March 2010 Mr Hardy issued proceedings against UKIP in the Middlesbrough County Court (Claim No. OMB 00631) claiming that his membership of the Party had not been renewed and that such an action was ‘against the Constitution’ of UKIP and a breach of his Human Rights. The claim was subsequently transferred to the District Registry under the same number and Particulars of Claim dated 22 March 2010 were filed, claiming that the failure to renew was unwarranted, UKIP having no power to exclude Mr Hardy from the Party on a summary basis. It claimed that “the expulsion” be quashed.[26]On 23 March 2010 Mrs Duffy sent a further letter to Mr Hardy to say that the NEC had considered his application and “on the information currently available … [the NEC]… would have no objection to your membership should you choose to apply”. Mr Hardy did not see that letter, until a good deal later, attached to UKIP’s defence in the proceedings dated 4 May 2010.[27]After seeing it, however, Mr Hardy did not choose to make a “new” application for membership as invited, but stood upon his position that, as a member in good standing, he was entitled to automatic renewal in the ordinary way, without such renewal being treated and considered as a fresh application for membership subject to the approval of the National Executive Committee.[28]By paragraph 2 of its Defence dated 4 May 2010 in Claim No. 00631 UKIP characterised the position as one in which Mr Hardy had applied for renewal of his membership, but which application “had not yet been processed”. However, UKIP did nothing subsequently to process Mr Hardy’s application. It relied on the second letter from Mrs Duffy to Mr Hardy dated 23 March 2010 and stated simply that no further application for renewal had been received. Furthermore at the hearing, despite the terms of its defence, UKIP produced a statement of Mr Arnott, the General Secretary of UKIP, in the form of a Memorandum dated 8 September 2010, which stated as follows in relation to Mr Hardy’s membership: “In March 2010 the UK Independence Party wrote to Mr Allan Hardy stating that if he were to choose to renew his Party membership then his renewal would be accepted and that internal Disciplinary Proceedings would immediately commence against him as a result of his alleged actions at Party meetings. The UK Independence Party considers people whose subscriptions are up to 3 months out of date to still remain as lapsed members on the database and entitled to renew without such renewal being considered to be fresh application for membership. As more than 3 months have passed without such renewal in this case, any further application to join the UK Independence Party from Mr Hardy would be treated in the same way as a new membership application. It is the policy of the UK Independence Party not to accept membership applications from former BNP members and activists; any new application for membership from Mr Hardy would therefore now be rejected on those grounds.

The Judgment

The judge made the following findings as the basis for his decision:

[29](1) That membership of UKIP was open to Mr Hardy as a person within the terms of Clause4.1 of the Constitution and he had done nothing to lose his entitlement to membership under clauses4.2 or 4.3.(2) That neither the Constitution nor the Rules provided for expulsion or suspension in the circumstances of Mr Hardy’s case.(3) That so far as Mr Parkin was concerned, his letter of 11 September 2009 banning Mr Hardy from attending Branch meetings on the ground that the previous two meetings had brought UKIP into disrepute were not, (as had been argued), justified as an exercise of the Chairman’s authority under Rules 3.1 and 3.8.1, or as a legitimate form of dispute resolution under Rule 7. On the contrary, Mr Parkin had acted autocratically taking sole responsibility for what was in effect a suspension of Mr Hardy’s membership without having (i) called an emergency meeting of the Branch Committee under Rule 4.1.1 (ii) convened a dispute resolution meeting of the Branch Committee or of the whole Branch under Rule 7.1 or (iii) given Mr Hardy a reasonable opportunity to put forward a case of his own as to why he should not be suspended or excluded from Branch meetings. Mr Parkin’s letter was in breach of the Rules and a decision taken in breach of natural justice.(4) That the effect of such letter and/or suspension was (albeit unwittingly on her part) compounded by Mrs Duffy by her letters in March 2010, the first of which rejected Mr Hardy’s renewal subscription and the second of which informed him that he needed to re-apply if his membership was to be restored.(5) The subsequent attempt by Mr Arnott in his statement of 8 September 2010 to rely upon Mr Hardy’s former membership of the BNP as a reason to reject any further application made by Mr Hardy to renew his membership was found by the judge to be a deliberate contrivance to exclude Mr Hardy from membership of UKIP and to do so on spurious grounds (see para 12 of judgment), the reference to his former membership of the BNP being “a fig leaf… which disclosed an urgent desire to expel Mr Hardy at any price” (see para 16 of judgment). As such it was confirmatory of the intention of UKIP to exclude Mr Hardy from membership.[30]The Judge went on to award Mr Hardy the sum of £750 as damages for some 12 months’ deprivation of the enjoyment and satisfaction of pursuing his political aims and activities as a member of his local Branch of UKIP.

The Grounds of Appeal

[31]Before this court, Mr Engelman restricted his submissions to pursuit of five of the grounds of appeal advanced in his original skeleton argument. He does not pursue any appeal in respect of the quantum of damages ordered by the judge should the appeal(s) on liability fail.[32]I shall deal first with that ground which relates to the judge’s belated joinder of the Stockton-on-Tees Branch of UKIP as a defendant for the purposes of his judgment. I have already touched upon this aspect in paragraph 4 above.[33]In the course of his submissions to the Judge, Mr Holland, counsel who represented UKIP below, aired the suggestion in relation to the actions of Mr Parkin that under the Constitution and Rules of UKIP, the Branch had the status of an autonomous unit responsible through its chairman for the administration of its own affairs (see Rules1-3) and thus the Branch rather than UKIP was the appropriate defendant in respect of any wrongful actions on the part of its chairman Mr Parkin. When the Judge expressed doubt and concern at the ramifications of this argument, the position was reached whereby counsel, having taken instructions from UKIP, accepted that UKIP were the appropriate defendant answerable in respect of Mr Parkin’s actions and the events in 2009. Mr Holland explained that he did not represent the Branch as an entity and was in no position to take instructions on behalf of its members before close of submissions at the end of the afternoon, a position which the judge appeared to accept. Thereafter, there was no further communication on that topic between counsel and the judge before the handing down of the reserved judgment and the making of the order which I have quoted in paragraph 6 above.[34]It seems clear to me that, the judge was in error in subsequently deciding to join the Branch as a party in the proceedings for the purposes of his judgment.[35]First, the members of the local Branch (unlike UKIP) enjoy no corporate identity which enables them to be sued in their own name as a single entity. Considered as a group they were no more than an unincorporated association consisting of a finite number of members who, whilst potentially amenable to suit under the provisions of CPR 19.6, might or might not have been aware of the claim and had no opportunity to consider their position or make representations in relation thereto.[36]Second, given the acceptance on behalf of UKIP that it was answerable for the actions of Mr Parkin, such joinder was quite unnecessary.[37]Third, it was not an amendment sought by Mr Hardy who, before this court, expressed himself content that UKIP should be answerable for his claim on the basis of its liability for the actions of Mr Parkin as the Branch Chairman in 2009. I would therefore set aside the joinder of the Branch as a Party in the proceedings.[38]The second ground of appeal relates to the judgment against Mr Parkin. Mr Engelman submits that, whatever the position in relation to UKIP (see further below), there was no contractual nexus between Mr Hardy and Mr Parkin on the basis of which to give judgment against Mr Parkin. It was not in dispute between the parties that, in all his dealings with Mr Hardy, Mr Parkin was acting in his capacity as Chairman of the Stockton-on-Tees Branch of UKIP (and not in his personal capacity as a mere fellow member), in relation to whose actions counsel acknowledged UKIP to be liable in the course of argument (see paragraph 33 above). Furthermore, at paragraph 16 of the judgment, the Judge accepted counsel’s submission that it was the law of contract which fell to be applied in ascertaining the rights of the parties inter se, which rights derived from the Constitution and Rules (paragraph 16 of judgment).[39]Again, it seems to me that Mr Engelman is correct in his submission as to the contractual position and, although Mr Parkin’s conduct falls for examination as an agent of UKIP for whose actions UKIP is answerable, I would allow the appeal insofar as it relates to Mr Parkin personally.[40]The third ground of appeal was but faintly pursued by Mr Engelman and can be dealt with shortly. Before the judge below, and indeed in his Skeleton Argument as filed, Mr Engelman relied on rule 3.8.1 as vesting in Mr Hardy, as Chairman of the Branch, the authority to ban Mr Hardy from attending future branch meetings. Before this Court, Mr Engelman expressly abandoned reliance upon rule 3.8.1 in that regard. Nonetheless, he submitted that, in writing his letter of 11 September 2009, Mr Parkin was doing no more than exercise in advance a power inherent in the Chairman of a Branch meeting to preserve order and control disruptive behaviour by members in attendance, such advance exercise being justified by Mr Parkin’s earlier experience in Branch meetings.[41]In my view that is an untenable submission and the Judge was right to find as he did for the reasons summarised at paragraph 29(3) above. The Judge’s observations that the letter “effectively suspended” Mr Hardy’s membership (paragraph 18 of the judgment) was plainly correct. It amounted to a summary and indefinite ban from participation in the affairs of the Branch, for which no authority was to be found in the Constitution or Rules and without the invocation of any of the procedural safeguards provided in the Rules or the disciplinary function of the UKIP Disciplinary Committee (see clause 14 of the Constitution).[42]The fourth ground of appeal relates to the Judge’s collective treatment of the correspondence together with Mr Arnott’s Memorandum in reaching his conclusion that UKIP “purported to expel” Mr Hardy from membership of UKIP.[43]It focuses on two passages in the judgment. The first appears at paragraph 14 where the judge, having recited the facts (including reference to those documents) stated:
“Thus on these facts I have no hesitation in finding that in effect both Mr Parkin and UKIP purported to expel Mr Hardy from the membership of Branch and Party. Was either entitled in law to do so?”
[44]The second passage appears at paragraph 19 of the judgment where, having considered the actions of Mr Parkin and described them as effectively amounting to a suspension of Mr Hardy’s membership,

the judge stated:

“19. The effect of such an act is compounded by the impression unwittingly given by Mrs Duffy but unambiguously announced by Mr Arnott by his general message of 10 September. The only reference sensibly to be drawn is that the senior party officers were backing and reinforcing Mr Parkin’s act and were not having Mr Hardy back”.”
[45]In short, Mr Engelman submits that neither the actions of Mr Parkin as Branch Chairman, culminating in his letter of 11 September, nor Miss Duffy, by her letters of 19 February or 23 March, purported to expel Mr Hardy. Mr Engelman submits that Mr Parkin’s letter was simply an action taken at Branch level which, whether or not it amounted to a breach of the Constitution and/or Rules, was no more than a denial or a suspension of Mr Hardy’s right to attend Branch meetings. Miss Duffy’s letters were in turn no more than a holding operation enabling the matter of Mr Hardy’s renewal of membership to be considered by the National Executive Committee rather than being rubber-stamped in the usual way. So far as Mr Arnott’s Memorandum was concerned, Mr Engelman conceded that its effect was indicative of an intention to expel at that post-proceedings stage, but submitted that the Judge was in error in using its content to construe an intent to expel on the part of UKIP as at the commencement of proceedings.[46]I do not consider that Mr Engelman’s submissions afford any grounds to undermine the findings of the Judge or Mr Hardy’s entitlement to the relief he obtained against UKIP.[47]In order for Mr Hardy to establish a cause of action and/or grounds for relief against UKIP at trial, it was necessary for him to establish a substantial interference with his rights in the form of a breach or breaches of his contract of membership as provided in the Constitution and Rules, and it is clear from the Judge’s findings that he did so. In this respect it is to be noted that, despite the pejorative force of the term “expulsion”, it is not a term of art. In the context of a claim by a member of a trade union or other association, it means no more or less than a termination by the association of the claimant’s membership against that member’s will. Such expulsion may or may not be lawful depending upon the terms of the membership contract (in particular in relation to disciplinary matters) and the reasons for the action taken. The term “expulsion” may usefully be used in contrast with “suspension” which involves temporary and/or indefinite interruption or removal of membership rights short of termination, but either will entitle the claimant to a remedy if proved to have been imposed in breach of contract.[48]In this case, as I have already indicated (see paragraph 34 above), the Judge made a clear and correct finding that Mr Parkin’s letter effectively suspended Mr Hardy’s membership rights, and that his actions were in breach of the Constitution and Rules and the rules of natural justice (see paragraph 18 of Judgment). These were of course actions for which UKIP was liable as accepted by Counsel before the Judge (see paragraph 31 above).[49]Against the background that Mr Hardy had already started proceedings against Mr Parkin in respect of his suspension, Miss Duffy wrote her letter of 19 February refusing immediate renewal of Mr Hardy’s membership and returning his cheque. She did so despite the fact that there were no good grounds for such refusal and, indeed, the necessity for Mr Hardy to maintain his subscription if he were to be considered a member in good standing (see Constitution at 4.4, (4.9 and 4.10). That in turn was a breach of contract, the effect of which meant that, at the date of proceedings, Mr Hardy had ceased to be a member, thereby exposing him to the risk on reapplication of an adverse decision as to his acceptability as a member by the National Executive Committee, despite the fact that his former connection to the BNP was well known to the Party Chairman and other senior officers of UKIP.[50]That was the position in which matters stood when the consolidated actions were tried before the Judge, save that the risk to Mr Hardy of refusal on reapplication had developed into a certainty.[51]There had, of course, been two material letters written after the proceedings against UKIP commenced. The first was Miss Duffy’s letter dated 23 March 2010 which indicated that, should Mr Hardy choose to reapply for membership, the National Executive Committee would have no objection “on the information currently available”. However such an indication did not remove the effect of Miss Duffy’s earlier letter, but rather affirmed it as an assertion that Mr Hardy’s membership had lapsed, that he did not currently enjoy the status of membership of UKIP, but could apply for membership (with the likelihood of a favourable outcome) if he chose to do so: (paragraph 13 of the judgment).[52]Without receiving any response or reapplication from Mr Hardy, however, the stance of UKIP vis-à-vis reinstatement of his membership was set out in Mr Arnott’s Memorandum of 8 September 2010. At the same time as misstating the position as at March 2010 in the first paragraph, Mr Arnott made clear that any new application for membership from Mr Hardy would be rejected.[53]The Judge was therefore right to hold in general terms that the cumulative effect of the communications between the parties was a purported expulsion of Mr Hardy from membership of UKIP, thereby entitling Mr Hardy to the relief he was granted against UKIP in the form of a declaration as to his continuing membership and damages in respect of the interference with his membership rights. So far as his “expulsion” was concerned, Mr Hardy’s right to a declaration in that respect had accrued as a result of Mrs Duffy’s letter of 19 February prior to his commencement of proceedings against UKIP. However, in the light of the arguments as to the ambiguity of his then position raised before the judge at trial, it was nonetheless appropriate for the Judge to consider the position as it appeared at the date of trial for the purposes of determining the nature and extent of the relief to which Mr Hardy was entitled.[54]It was in these circumstances that the judge made the findings of “purported expulsion” which Mr Engelman criticises. As already indicated, in my view those criticisms do not constitute any ground for interference with the judge’s decision or the relief which he granted against UKIP.[55]Mr Engelman’s fifth ground of appeal relates to certain passages in the judgment where, in deciding whether or not Mr Parkin and/or UKIP had acted lawfully or unlawfully, he invoked the doctrine of reasonableness and proportionality.[56]Again I consider that there is no substance in this ground of appeal. Reference to the proportionality principle first surfaces at paragraph 16 of the judgment where

the Judge records a submission of Mr Holland in terms which are somewhat difficult to follow:

“…as the Constitution does not provide for expulsion and where they are silent as to the procedure of the rules of natural justice and that of a fair trial are to be applied, and where this last applies the claimant [sic] needs to prove that his case was dealt with by a reasonable and proportionate response in all the circumstances of the case.”
It seems to me that the reference to “the claimant” is a mistake for the defendant.[57]Thereafter the judge makes three references to the principle of proportionality. The first two are at paragraphs 17 and 18 of the judgment, in relation to Mr Parkin’s action in banning Mr Hardy’s attendance at future Branch meetings. The third is in a more general context namely whether, having regard to his political views and the fact that the Stockton branch was the only branch to which he could belong by reason of his place of abode. Mr Hardy was “treated fairly, reasonably, proportionately and in accordance with the Branch Rules by Mr Parkin and UKIP” (paragraph 20 of the judgment).[58]Mr Engelman submits that concepts of reasonableness and proportionately which are appropriate to Judicial Review and the jurisprudence of the European Court of Human Rights are not similarly applicable in relation to the private contractual rules of an association, which, at most, attract the principles of good faith, natural justice and the right to a fair trial.[59]In that respect, it seems to me that Mr Engelman’s submission is correct, but I fail to see that it is a point which assists him in this case. As I have already indicated, the judge held UKIP liable on the basis of the true construction of the rules and UKIP’s failure to follow the requirements of natural justice. If, in reaching his decision, the judge also considered the requirements of reasonableness and proportionality, such consideration was to the potential advantage of UKIP albeit, in the event, the judge held that such requirements were not satisfied.

Conclusion

[60](1) I would allow the appeal of Mr Parkin and set aside the judgment against him.(2) I would set aside the judgment below insofar as it purports to apply to the Stockton-on-Tees Branch of UKIP.(3) I would dismiss the appeal of UKIP. Consequential amendments to the wording of the Order below will be required to reflect (1) and (2) above.

Lord Justice Tomlinson:

[61]I agree.

Lord Justice Ward :

[62]I also agree.