Wednesday, 18 August 2010

Liability of BNP members for debts of the BNP

There are four levels of potential legal liability for members of the party that we need to look at ;

1) Civil Law and Case Law eg Contract Law liability

2) Criminal Law

3) Tax Law

4) Tort Law

In relation to Civil Law then what is clear is that all senior officials of the party, elected representatives of the party and appointed officers of the party are all directly liable for any debts of the party.

It is down to argument in any hearing as to the issue of whether liability extends to all the membership of the BNP and what level of liability they each incur.

Case law on the criminal liability of Unincorporated Associations is clear though, in that in relation to the criminal actitivies of an Unincorporated Association, then all the members are jointly liable for the criminal actions of the officers appointed and acting as officers of the association. By staying as members they incur liability jointly for the criminal actions of its officers ;



RL & Anor, R. v (28 August 2008)

RL & Anor, R. v [2008] EWCA Crim 1970 (28 August 2008)

This appeal by the Crown under section 58 Criminal Justice Act 2003 raised questions relating to the criminal liability of an unincorporated association and of its individual members.

Paragraph 33 “ …..it does not follow that such an association is for all purposes the same as a company or other corporation. It is not. A corporation has, for all legal purposes, independent legal personality. It is also regulated, often heavily. It must have a registered address and registered directors and secretary. An unincorporated association may indeed look very like a corporation in some cases, and it may have standing and de facto independence, but equally it may not. A prosecution which could only be brought against an informal grouping of building workers, or sportsmen, or campaigners would be likely to be wholly ineffective. It is a necessary consequence of the different nature of an unincorporated association that all its members remain jointly and severally liable for its actions done within their authority.”

As to fact, many unincorporated associations have in reality a substantial existence which is treated by all who deal with them as distinct from the mere sum of those who are for the time being members. Those who have business dealings with an unincorporated partnership of accountants, with hundreds of partners world-wide, do not generally regard themselves as contracting with each partner personally; they look to the partnership as if it were an entity. The same is true of those who have dealings with a learned society, or a trade union, or for that matter with a large established golf club. "


Therefore if Griffin and Dowson are found to be guilty of fraud or any other criminal offense that relates to finances, then individual BNP members are liable in law for their actions.

That means those appointed as receivers for the people owed money by the party will then sue each individual member for any monies owed to them by the party.





VAT And Tax Law Liability ;


Under UK tax law, then all the members of an Unincorporated Association are potentially jointly liable for its debts ;


http://www.hmrc.gov.uk/manuals/dmbmanual/DMBM530200.htm


DMBM530200 - VAT: Liability for payment: Members of unincorporated associations
An unincorporated association is an association of persons not in partnership and not registered under any Act of Parliament (e.g. the Friendly Societies Act 1992).

Regulation 8 of the VAT Regulations 1995, provides:

“Anything required to be done by or under the Act, these Regulations or otherwise by or on behalf of a club, association or organisation, the affairs of which are managed by its members or a committee or committees of its members, shall be the joint and several responsibility of-

(a) Every member holding office as president, chairman, treasurer, secretary, or any similar office; or in default thereof,

(b) Every member holding office as a member of a committee; or in default of any thereof,

(c) Every member,

provided that if it is done by any official, committee member or member referred to above, that shall be sufficient compliance with any such requirement.”

The liability under Regulation 8 includes a responsibility to pay and account for tax properly. However, as a matter of policy do not attempt to bankrupt any member for the non-payment of association debts.

Although an association is not a legal entity separate from its members it may be wound up as an unregistered company under Part V of the Insolvency Act 1986 if its constitution and rules provide for it to be so wound up.



Liability for Unlawful Suspensions of Members.


As BNP members are liable for debts of the party, then this also includes cases such as a BNP member has gone to court to get back into the party ;


http://www.maceandjones.co.uk/news/archive/unincorporated-associations.html

A key criterion for unincorporated association is that it is governed by rules created by the membership, representing the terms of the contract between them. There is no legal requirement for these rules to be written down. As unincorporated associations are creatures of contract, it is theoretically possible for an association to be based on an oral agreement. However, associations nearly always have written rules in order to avoid disputes between members, to protect the position of management committee members and to clarify the purposes for which the association exists. Yet in the sector, oral agreements of this nature are commonplace.

A member cannot be expelled from an unincorporated association unless the rules allow. Even where the rules do provide for expulsion, the association must exercise its powers of expulsion in good faith, or it may be possible for the expelled member to obtain an injunction and damages.



Tort Law ;

http://www.maceandjones.co.uk/news/archive/unincorporated-associations.html

All members of an association may be held liable if they are all carrying out a particular activity which gives them rise to a tort (e.g. negligence).


http://www.collyerbristow.com/Default.aspx?sID=108&cID=125&ctID=43&lID=0&filter=1

Whether you are a member of a political party, the secretary of a golf club or the treasurer to a jazz club, you could incur personal liability on behalf of your unincorporated association because they are not legal entities. Unlike companies, unincorporated associations cannot sue or be sued. Members have a contractual relationship between them which does not confer the limited liability of a company. This means that members who enter into contracts with third parties on behalf of their association can become personally liable under that contract. In addition, members could be liable in tort either through activities of their fellow members or the association's occupation of premises.

Contractual liability rests on those who authorised the contract. If a member signs a contract for the purchase of property on the committee's authorisation, the committee members will be contractually liable. The committee is normally contractually liable for all contracts made in the course of business, but the courts often look to see which members have most involvement. A member is personally liable if he enters into contracts on behalf of the association without authority or acts in excess of authority given him. However, even if a contract has not been authorised, members will be liable if they then ratify the contract in some way, e.g. using the goods purchased. The financial liability of members is not limited to the funds of the association and therefore the rules should be drafted to take account of this.







Add to Technorati Favorites

17 comments:

Defender of Liberty said...

Oh - and by the way.

I suggested to Griffin that a section be inserted into the new constitution that limited liability to BNP members to a pound.

This was ignored.

Instead you got an War and Peace sized useless constitution, instead of a functional one.

Anonymous said...

Just one point, if BNP members are liable for debt collectively if Griffin and co have committed fraud I would have thought it easier for any prosecution to go after the physical perpetrators of such fraud, i.e. Griffin, Dobson. They have big fuck off assets such as villas, farm house and acres. It being FAR more easy to go after 2 than 13000!

Anyway,

Regards
Ross

Anonymous said...

Who was the lawyer that drew up Gri££ins 'war and peace' constitution??? How did they allow such things in it as the specific exclusion of the rules of natural justice and agreement to exclude the jurisdiction of the courts in any membership disputes etc? Surely, such things are contrary to 'public policy' and therefore unlawful/illegal? If the constitution represents the 'terms and conditions' of membership in a quasi-contract as between a 'member' and 'the party', how can there be any genuine intent to create legal relations between the parties as members have not had the opportunity to ratify/approve the constitution (version 12.2)? Surely Gri££in was only given authorisation on 14th February 2010 to amend the parts of the constitution that were in contention with the EHRC?

Anonymous said...

Info on The Old New world Order

Anonymous said...

Worth listening to to see whats going on in the US.

GCN Live US Radio stations

spiv said...

Lee, speaking as an accountant, I am slightly disagreeing with your comment where you say "Those who have business dealings with an unincorporated partnership of accountants, with hundreds of partners world-wide, do not generally regard themselves as contracting with each partner personally; they look to the partnership as if it were an entity". A partnership of accountants, assuming it is not an LLP, would indeed be regarded as a separate legal entity, that of a partnership under the Partnership Act 1890. The partners would be jointly and severally liable for debts of the partnership.

But an unincorporated association is something different.

Anonymous said...

How could they prove who is and isn't a fully paid up member?

I'm on the leaked BNP membership list but wasn't even a member at that time, I had left but my name remained on the BNP member data base.

Would the creditors have to go through a legal minefield by auditing the finances of ALL past and present ex and current BNP members to find out who is and who isn't a current member?

That would be a bureaucratic nightmare and cost the creditors hundreds of thousands of pounds to locate everyone.

Surely they would just go after the top leadership and the obvious BNP members who are in the limelight?

Anonymous said...

What's the position with respect to former members?

Defender of Liberty said...
This comment has been removed by the author.
Defender of Liberty said...

Sorry Spiv, the section you quote wasnt written by me - its a direct lift from paragraph 33 of the case law of R v Anor (2008).

It is the case dicta, so therefore a statement of the law.

You are confusing the civil liability of a partnership, with the case law of R V Anor concerning the criminal liability of an unincorporated association.


b) If I was an official receiver / tax man then I would simply seize the membership list and go for the present members, not past members.


c) Former members are probably safe, as it is easier to go for present members.

Defender of Liberty said...

Sorry Spiv, the section you quote wasnt written by me - its a direct lift from paragraph 33 of the case law of R v Anor (2008).

It is the case dicta, so therefore a statement of the law.

You are confusing the civil liability of a partnership, with the case law of R V Anor concerning the criminal liability of an unincorporated association.


b) If I was an official receiver / tax man then I would simply seize the membership list and go for the present members, not past members.


c) Former members are probably safe, as it is easier to go for present members.

Defender of Liberty said...

To the ranter who keeps leaving abusive pro-griffin rants masquerading as comments - go into your bathroom and go to the bathroom medecine cabinet, then find the blue pills that the community care nurse gave you.

Unscrew the jar and take two of the little blue pills with a nice up of tea.

Then have a lay down and a nice little nap.

You will feel a whole better then dearie.

Defender of Liberty said...

To the ranter who keeps leaving abusive pro-griffin rants masquerading as comments - go into your bathroom and go to the bathroom medecine cabinet, then find the blue pills that the community care nurse gave you.

Unscrew the jar and take two of the little blue pills with a nice up of tea.

Then have a lay down and a nice little nap.

You will feel a whole better then dearie.

Anonymous said...

Wonder if Scots Law is any different?

Anonymous said...

Hey Lee
Thanks for answering regarding former members, but my point is, how can they prove someones membership if their name and details are still on the BNP list on a BNP party computer at their main office.

Example, the leaked BNP list contains ex members and folk who bought merchandise.

My point being how do you prove who is current and who is a former member?

The only solution would be for an auditor to process every name and audit them personally, plus cross reference this with the BNP's financial statements and membership paperwork.

This would be a nightmare for the prosecutors.

Why not just go after Griffin's assets?


cheers

Anonymous said...

"Why not just go after Griffin's assets?"

He doesn't have any. His farmhouse is owned in someone else's name.

Some of the case law you quote refers to the unincorporated association's rules or constitution. Paragraphs 11.19 to 11.21 of the BNP constitution ensure that liability for debts remains with the individual who incurred them. Paragraphs 5.37 to 5.40 limit the liability of individual members. Whether all this would stand up in a court is not known.

stressedoutidealist said...

nickgriffinmep

.Via Twitter: The only person liable is me. Which is fine by me and no big deal in the grand scheme of things.
18 minutes ago via Facebook .Via Twitter: Latest silly story from the anti Bnp lie machine is that all in the party are liable for its debts. Untrue!
21 minutes ago via Facebook .The only person liable is me. Which is fine by me and no big deal in the grand scheme of things.
23 minutes ago via txt .Latest silly story from the anti Bnp lie machine is that all in the party are liable for its debts. Untrue!
24 minutes ago via txt
http://twitter.com/nickgriffinmep