27th November 2020
In the Guardian there is a report about a rather odd application by former Labour party leader Jeremy Corbyn to the High Court.
The relevant parts of the report, by the respected political correspondent Jessica Elgot, are:
‘Jeremy Corbyn is to start a formal legal claim against the Labour party for suspending the whip, in a case which allies of the former Labour leader say is intended to prove there was a deal with Keir Starmer’s office to readmit him to the party.
[…]
Corbyn’s lawyers lodged a pre-action disclosure application to the high court on Thursday night. “All of this will be in the public domain soon,” one source involved in the discussions said.
[…]
It is understood Corbyn’s legal team are attempting to put in the public domain evidence of what the former Labour leader will claim was a deal…
[…].’
Taking these passages together, it would appear:
(a) there is not yet a legal claim by Corbyn but a legal claim is envisaged between Corbyn and the Labour Party;
(b) a purpose of the legal claim is ‘to prove there was a deal’;
(c) there has been a request by Corbyn to the Labour Party for disclosure of documents which has been refused (as you usually need to directly request disclosure first before you resort to making a court application);
(d) an application has been made to the High Court for ‘pre-action disclosure’; and
(e) the purpose of that disclosure is to place documents into the public domain.
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For the following reasons the reported application does not make sense.
And the third reason makes the reported application seem rather odd indeed.
(Here it should be noted that the disclosure of the letter or its content to a political correspondent may have been done either by the Corbyn team or by the Labour Party, who would have been party to the correspondence and, as I set out below, we may not have all the relevant facts.)
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First, it is not obvious from the news report what the potential legal claim is by Corbyn against the Labour Party.
To bring a legal claim requires Corbyn to have a ’cause of action’ – for example, for breach of contract or something else.
With no cause of action, there can be no possible proceedings, and with no possible proceedings there cannot be an an application for pre-action disclosure.
No possible action, no pre-action.
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Second, it is also not obvious how suspension (and restoration) of a parliamentary whip can be an issue for judicial determination – and on the face of it, such a claim would mean a court being asked to impinge on a parliamentary matter.
It is especially difficult to imagine how there could be a judicial remedy, for example a court order, that would oblige the Leader of the Opposition to restore the whip to a Member of Parliament – and what the sanction would be if the Leader of the Opposition refused?
Further or alternatively, what would be the possible remedy in damages?
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In respect of both the two reasons above, the relevant part of the Civil Procedure Rules (the relevant rules of the court) for pre-action protocol provides that disclosure must (i) dispose fairly of anticipated legal proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.
But if there is no viable or real cause of action or judicial remedy then there cannot be proceedings to be disposed of or be resolved, or any costs to be saved.
A request for pre-action disclosure is not a legal end in and of itself, and so if there is no underlying claim or feasible remedy, then it is difficult to see how a court can grant such an order.
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And now we come to the third reason why the news report is odd.
The pre-action disclosure of documents does not by itself place the documents in the public domain.
Here, the rule (CPR 31.22(1)) provides that:
‘A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where – (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.’
And so the stated purpose of the application, according to the news report, is not permitted under the relevant rules of court.
Perhaps those who briefed the political correspondent did not know this, but there cannot be an application for pre-action disclosure where the purpose is to place documents into the public domain.
That would be an abuse of process, even if the application was otherwise sound.
If this is indeed the reason for the application then this application has been made for a wrongful purpose.
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We have few reported facts on this claim, and so the above commentary is only provisional: further information could make it easier to understand the nature and purpose of the application.
But we can only go on the facts which Corbyn or the Labour Party (or those briefing on their behalf) place into the public domain themselves.
If those facts are insufficient for a proper understanding of the court application then that is hardly the fault of any reporter or commentator.
But on the the basis of the facts which Corbyn (and his team) or the Labour Party have chosen to make public, this application is odd and it does not add up.
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Comments are welcome but pre-moderated, and so comments will not be published if irksome.
Could Corbyn’s team and Starmer’s team have had a contract to restore the whip to Corbyn? Which has been breached?
If so, what would be the judicial remedy?
I think this pre-action is not meant to be legally successful and instead has a political motive. Much like the defeated candidate across the pond, Corbyn cannot gracefully accept his political demise and wishes to create a lasting memory of his leadership as both principled and wronged. Talk of secret deals and manoeuvres to depose him and failed legal actions contribute to a ‘stab in the back myth’ that allows him to retain the loyalty of his core following. Furthermore, like the defeated Trump, he is willing to countenance damage to the party he has represented in order to achieve this.
The greatest public health threat in modern times, an economic catastrophe unparalleled in300 years the UK isolated, ridiculed, undermining the rule of law, the natural world being destroyed before our eyes. But what matters most to Labour is their internal fueding.
Labour is as much to blame as as anyone for the state we’re in
While the Courts are reluctant to be drawn into political controversy, the actual prohibition in Article IX of the Bill of Rights reads “That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.”
There is no statutory basis for the Whips and the Whip. In origin they were MPs who collected together other MPs and told them how the Minister wished them to vote. The name originated from the abbreviation of “whippers in” – the people who “whipped in” the hounds in a pack out hunting.
Receipt of the Conservative Whip was and I believe still is a matter for the Leader of the Party in the relevant House. When relations between Peel and Disraeli deteriorated, Peel did not send the customary letter inviting Disraeli to a gathering before the opening of a session of Parliament and Disraeli protested his support for Peel and the invitation was duly sent.
Matters have become more formal but receipt of the Whip is entirely a matter of convention and the rules of individual parties, which, as Mr Speaker Bercow most recently reminded the House, are essentially only private bodies.
The weekly Whip is the name of a document inviting MPs to be present at divisions – it is carefully drafted so as NOT to tell an MP which way to vote. This is to avoid any risk of Article IX being engaged and the whipping system challenged.
It is therefore very unlikely that the granting or withdrawal of the whip will be covered by Article IX. It may well be justiciable in some circumstances – for example, the rules of the Conservative Party dealing with selection of candidates prevent any association adopting as its candidate any MP who does not receive the Conservative whip. This is a relatively recent development dating back to William Haig’s re-structuring of the party; previously all the party chairman could do was tell an association that its proposed candidate would not be given the whip.
The courts could grant injunctions and declarations over the rules of the Conservative Party and I assume the Labour Party as well. I suppose this might extend to telling somebody that Mr Corbyn must be allowed to attend meetings of the Parliamentary Labour Party and be allowed to vote when other members of the Parliamentary Party are allowed to vote.
Quite clearly Article IX precludes the courts from instructing Sir Keir Starmer and other Labour MPs to refer to Mr Corbyn as “my right honourable friend” – “friend” being the designation of a member of the same party as the MP speaking, “member” or “lady” or “gentleman” being the designation of a member of the other party.
I notice that even after the gangster seized control of the Conservative Party, and ruthlessly expelled those who declined to insert their tongues in his rear orifice, a number of Conservative MPs continued to refer to the victims as “friend” and that the victims continued to sit behind the ministerial front bench, as Julian Lewis does to this day.
Article IX also precludes the Courts from determining that Mr Corbyn should count as a Labour MP for the purpose of being eligible to be chair or member of a committee formally constituted on party lines, as that would involve questioning a proceeding of the House.
We must assume it is some benefit other than the opportunity of voting with the Labour Party that Corbyn seeks, given how often he ‘defies the whip’ in that regard.
It seems to me like it’s a political stunt. The (shrinking) Corbynite wing of the party genuinely believe that if WhatsApp messages reveal an informal ‘deal’ to restore Corbyn, they can claim Starmer reneged on it. So far so logical. However they seem to believe that the nation and the judiciary would be up in arms about this. Whereas it seems more likely that both would reply simply with a shrug.
If Corbyn had such evidence in his possession he would be able to leak it and make his case, as he presumably wishes, in public.
Vague ramblings about legal actions to unveil a smoking gun (which definitely, definitely exists!) have about as much credence as a Sidney Powell or Rudy Giuliani press conference.
Would asking for the document under the Freedom Of Information act be a better route to getting hold of the document, assuming that is the real object of the exercise?
The Labour Party is not a pubic authority for the purposes of the FoI Act.
Perhaps it will help counter one anti-lawyer narrative if (as seems likely here) the courts refuse to involve themselves in a political matter when asked to by a ‘lefty’.
Its worth noting that in order to establish a Contract (which may be what they are trying to do) there are some hurdles to overcome. The specifically relevant ones here are:
1 Intention to create legal relations; and
2 Consideration
These in a commercial transaction are usually so obvious as to be irrelevant but in an exchange of private messages might prove more difficult.
In simple terms I doubt any offer made to Jeremy was intended to be legally binding.
Even if it was I highly doubt adequate consideration for that offer was given by Jeremy.
Further as, you point out, even if there was a contract and it was breached the judicial remedy is not clear.
An order for specific performance seems unlikely, unlawful, and perhaps undraftable, therefore damages likely the only thing the court can offer and then likely to be in a nominal amount.
The only point in favour of this application, that I can think of, is that an application for pre action disclosure to get what the contract is (i.e. to determine its terms) might be successful. The cause of action would still be a potential breach of said contract.
Still all rather speculative and they would still have to satisfy the court that there actually was a contract, see the points above.
If what they wanted were certain messages I wonder if their was another route to getting them. Could they have been caught by a GDPR request for example?
Even supposing Corbyn could argue that all of the the information he was seeking was his personal data, to which he was in principle entitled under Article 15 GDPR, our domestic law adds an exemption (para 23 of Schedule 2 to the Data Protection Act 2018) the effect of which is to disapply that access right in the case of personal data “that consists of records of the intentions of the controller in relation to any negotiations with the data subject to the extent that the application of those provisions would be likely to prejudice those negotiations”.
“To bring a legal claim requires Corbyn to have a ’cause of action’ – for example, for breach of contract or something else”
Breach of contract for not following the Party’s own Rules on withdrawing and reinstating the whip.
“It is especially difficult to imagine how there could be a judicial remedy, for example a court order, that would oblige the Leader of the Opposition to restore the whip to a Member of Parliament”
Why can’t a judge instruct an unincorporated association (which is what the Labour Party is, IIRC) to follow its own Rules? (I’m not a lawyer.)
“what the sanction would be if the Leader of the Opposition refused?”
I would start by consulting the Party’s Rule Book.
A judge merely siding with Corbyn on the first aspect would be good PR and demonstrate publicly that the Labour Party is ignoring the EHRC’s findings on political interference within days of the antisemitism report being published.
Entirely by the way: CPR 1998 r 31.2(1) (which you mention) – or its predecessor – was introduced to override the finding of contempt against Harriet Harman for showing documents – which had actually been read out in court – to a Guardian journalist.