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.
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.)
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.
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?
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.
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.
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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