All the suspensions and expulsions from the BNP over recent months are unlawful.
If you sue you can win £750.00 in damages and regain costs.
Thanks to UKIP for defining the BNP's legal liabilities.
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
MIDDLESBROUGH DISTRICT REGISTRY
CASE NOS. 9MB03865
ALAN HARDY (CLAIMANT)
GORDON H. PARKIN (DEFENDANT)
ALAN HARDY (CLAIMANT)
UK INDEPENDENCE PARTY LIMITED (DEFENDANTS)
1. This is a consolidated action for damages and for a declaration that the Claimant’s purported expulsion from membership of the United Kingdom Independence Party is null and void.
2. As I shall explain, the narrative of the matter of complaint covers two episodes; hence two actions until they were consolidated by Order. The first episode concerns the actions of Mr Gordon Parkin who at all material times was, as he remains, Branch Chairman of the Stockton on Tees Branch of UKIP as I shall call the Party; the second episode concerns the actions by officers of the Party in their central organisation. Because the Claimant has at no time been represented by solicitor or counsel and because the point emerged only in the course of the Defendants’ counsel’s closing submissions I allow the Claimant to add as a defendant in the consolidated action Stockton on Tees Branch of UKIP. The reason for and significance of this will become apparent.
3. Essentially this is a hard fought political dispute in Stockton on Tees between Mr Hardy, supported by others some of whom have given evidence before me, and Mr Parkin the constitutionally elected Branch Chairman, no doubt with his supporters and apparently backed by the central organisation. In a nutshell Mr Hardy accuses Mr Parkin of being incompetent; dishonest and self seeking in his political ambitions so that the interests of UKIP are thereby ill served. Mr Parkin denies all this but accuses Mr Hardy of being so disruptive a member that it was impossible for the business of the branch to be done, as well as dishonesty in his attempts to unseat Mr Parkin from his position. Thankfully none of these matters is the concern of this Court which is able to determine the legal issues between the parties on a factual basis virtually of common ground, by which I mean an undisputed history of events and correspondence. I would add however, before turning to such uncontroversial territory, that having seen and heard Mr Hardy as his own advocate in these proceedings as well as a witness, and Mr Parkin as a witness, and given that the dispute between the two men is political, a subject invariably both powerful and sensitive in its nature, it is not difficult to see how temperamentally they could never work together in harmony. Mr Hardy is forceful of manner and frequently irrelevant in speech: Mr Parkin is quietly dogged and determined.
4. The following is, however, not in dispute and page numbering is with reference to the agreed trial bundle. For some time until he resigned in June 2005 Mr Hardy had been a member of the British National Party (BNP). In February 2007 his application to join UKIP was accepted. He became a member of the Stockton branch and was quickly active as such becoming its Press Officer as well as putting himself forward as a potential parliamentary candidate. Although unsuccessful in this latter ambition(Section 2 page 29) he received the commendation of UKIP’s head office in the former (Section 2, page 35). The significance of this factually is the actual knowledge which head office officials had of Mr Hardy’s former membership of the BNP, as also had Mr Nigel Farage MEP as may be seen from his correspondence with Mr Hardy(Section 2, page 26).
5. The date for membership renewal on payment of the appropriate subscription was 1st February each year. Mr Hardy’s membership was renewed in 2008 and 2009. Yet by this latter date all was not well within the Stockton branch. Indeed trouble had been brewing for some time. As early as 8th November 2007 Mr Hardy resigned his post as Press Officer and by letter of that date (Section 1, page 26.43) wrote to Mr Parkin that he would not serve “the branch in any post so long as you remain as chairman”. At some time during the winter of 2008/2009 a dispute arose as to whether Mr Parkin had distributed leaflets to each house or sufficiently on the Roseworth housing estate so that Mr Hardy and his supporter Mr Himmelblau conducted a partial enquiry door to door which in turn Mr Parkin dubbed inadequate and misleading. This issue led to cross accusations of lying.
6. On 8th January 2009 as Mr Himmelblau told me, and I accept, he and Mr Hardy met Mr Parkin by arrangement at the Central Library, Stockton and on grounds of incompetence and the fact that the membership was not increasing in size from a handful or so they asked Mr Parkin to stand down as branch chairman. He refused.
7. Branch meetings were approximately monthly. That for January 2009 was minuted (Section 1 page. 26.3) and held on 20th. That for February 2009 was held on 17th and as it was not minuted there is no record of the minutes for January being approved. There is only the notation (Section 1, page 26.7), “Minutes verified by GP before issue”. GP plainly refers to Mr Parkin and his perspective of that meeting and Mr Hardy’s part in it is clear. Worse was to follow because on 17th February the caretaker of the hall hired for the meeting of that date broke the meeting up and asked everyone present to leave the building on account of raised voices. Mr Hardy and Mr Parkin had each called the other a liar. The row was of such proportion that the building’s owners did not permit the Branch to return for a period of months.
8. On 10th March Mr Parkin wrote to all branch members (Section 1, page 26.20) that “Due to high campaign activity and the loss of our meeting venue we have decided that there will be no branch meeting this month……….. . Matters that 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 is practical”. Mr Parkin told me that “ we “ meant “I”.
9. From 29th March to 26th June Mr Hardy was in Saudi Arabia, teaching. Meanwhile, Mr Parkin having consulted a Mr Allison, UKIP’s regional organiser who had in turn passed the problem to Head Office, the Party Chairman Mr Paul Nuttall wrote to Mr Hardy on 30th March (Section 1, page 26.33) inviting him to meet the General Secretary, Mr Arnott, and himself on 14th April. Naturally Mr Hardy did not and could not either receive that letter in time or attend the meeting. Yet from his reply (Section 1, page 80A) it seems very doubtful that he would have gone if he could. Of significance however, in my view is the reply Mr Hardy received from Head Office (Section 2 page 33), “I have decided that this office had better things to do and henceforth will have no further dealings with you”.
10. Upon his return from Saudi Arabia and on 4th July Mr Hardy e-mailed the new Branch Secretary, Dr. Goyns (Section 1, page 26.56) asking him to telephone him. On 8th July Dr Goyns replied (Section 1, page 26.57) that on Mr Parkin’s advice, “it would be inappropriate for me to meet with you”. On 24th August Mr Hardy was writing to Mr Parkin (Section 1, page 26.18). On 11th September Mr Parkin wrote to Mr Hardy (Section 1, page 79), “I feel it is time I must set this matter to rest…..I have decided on the following actions …. you will no longer be permitted to attend any branch meeting of which I am Chairman”. His reasons were that Mr Hardy had brought the January and February “meetings into disrepute”, that at the February meeting his “actions and outbursts created an embarrassing situation which led to the eviction from that venue and the prevention of our return “, that he and his “colleagues decided to withdraw your support from UKIP in January of this year at both local and national levels” and that in his, Mr Parkin’s, opinion that was disloyal. He concluded, “I strongly recommend that you withdraw from the membership of the party forthwith…… . I have advised the branch secretary not to enter into any further communications with you…… . Should you wish to take the matter further then your only option left is to go through head office”. When he wrote this letter Mr Parkin told me he was aware that Mr Hardy had by then returned from Saudi Arabia. From the e-mails between Mr Hardy and Dr. Goyns it seems to me that Mr Parkin must have known that from early July.
11. There the matter lay until membership renewal time came round. Mr Hardy was not sent a renewal form from Head Office as was usual. He wrote on 30th January 2010 and 11th February (Section 2, pages 7 and 8) sending his subscription. On 19th February Lisa Duffy, Party Director, replied (Section 2 page 16) that when Mr Hardy left the BNP “to rejoin UKIP the National Executive Committee was not informed – as it should have been – and it was therefore unable to consider your re-application. This was an administrative error …… . In the circumstances I feel that before your membership is renewed the NEC must be given a proper opportunity to fully consider the matter. I am therefore referring this to the next meeting of the NEC and in the meantime am returning your £10 membership renewal cheque”. On 23rd March Mrs Duffy wrote again (Section 2 page 17) that the NEC had considered the matter and “would have no objection to your membership should you choose to apply”.
12. This is at serious variance with the content of a memorandum dated 8th September (Section 2, page 54) from Mr Arnott, UKIP General Secretary, addressed “to whom it may concern”. Its first paragraph plainly refers to Mrs Duffy’s letter of 23rd March. It has not been suggested it refers to any other. Her letter makes no mention of internal disciplinary proceedings being commenced immediately upon Mr Hardy accepting her invitation to re-apply and I have received no evidence that he was so informed. The second paragraph about there being 3 months grace for renewal and that thereafter “Mr Hardy would be treated in the same way as a new membership application” appears again without there having been evidence of any general notice of such a rule or specific notice of it to Mr Hardy. It is to be noted this document is dated only weeks before this hearing. The third paragraph needs citing in full: “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”. Mrs Duffy, whose evidence I find to be honest and accurate, tells me that the position is as follows. In November 2009 when she was a member of the NEC, which was until she assumed her present full time post as Party Director, that body made a policy decision that henceforth applications to join UKIP from people who had been members of the BNP should be referred “to the NEC for approval”. This was because there had been “infiltration” from a date in 2008. I infer she meant deliberate infiltration as fifth columnists in order to disrupt the work or besmirch the reputation of UKIP. This would be consistent with her letters to Mr Hardy in March the contents of which she tells me, and I accept, are true.
Therefore I conclude that the NEC did consider Mr Hardy’s individual case in March and decided that his former membership of the BNP was no obstacle to his membership of UKIP continuing. That is hardly surprising in view of the warmth with which Mr Hardy had been welcomed into the UKIP fold from the BNP not least from Mr Farage. There has, moreover been not the slightest suggestion made during this hearing that Mr Hardy has turned his political coat once again. I have no choice therefore but to hold Mr Arnott’s memorandum as a deliberate contrivance to exclude Mr Hardy from membership of UKIP and to do so on spurious grounds.
13. Moreover Mrs Duffy tells me, and I accept, that her second letter to Mr Hardy was badly worded and the meaning ordinarily to be attributed to her words does not reflect the true position which was not that Mr Hardy would need to re-apply for membership but that if he would send her back the cheque she wrongly returned to him his membership would continue seamlessly. I take it she now realises her words conveyed a different and adverse impression. Clearly they did in the mind of Mr Hardy and understandably so in the context of what had already passed. It was hardly to be relieved by Mr Arnott’s general communication.
14. 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 so to do?
15. Although no reference was made to either document during the evidence, during his final submissions Mr Holland, counsel for both Mr Parkin and UKIP, and upon taking instructions, also for the Stockton Branch sought to rely upon UKIP’s written constitution and the Branch’s rules to be found at Section1 pages 66 and 71 respectively in the agreed bundle. No point was taken regarding this by Mr Hardy nor do I think could there be. The following points of fact emerge:
(1) That the party is authorised to raise funds, purchase property and invest monies (clause 3) – it is therefore in law a proprietary club;
(2) that membership is open to people who are not members of any other political party which the NEC has declared incompatible with membership of UKIP (clause 4.1), that if such a member of UKIP subsequently joins such a party his membership is automatically revoked (clause 4.2), that if a UKIP member is a member of such a party such a person will be given 28 days to leave that other party (clause 4.3), that members must maintain their subscriptions (clause 4.4.), that members shall accept the party’s Constitution and rules and do nothing to undermine the party’s reputation or bring it into disrepute, or act in a way intending to cause or causing damage to the party’s interests (clause 4.5);
(3) that by clause 4.6 upon which Mr Holland places particular reliance, where constituency associations are established membership shall be of that association and by affiliation of the association then of the party – there is no issue but that the Stockton Branch equates to a constituency association for this purpose;
(4) that by clause 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 – Mr Holland here submits that the Branch was and is for present purposes “autonomous” so that the party is absolved from the potential liability in this matter of either the branch or its chairman – a submission I have difficulty in accepting; it is not in issue but that the branch was affiliated to the party. Branch membership must then be membership “of the party” as well as of the branch.
(5) that by clause 14 the party shall establish a discipline committee;
(6) that by clause 15 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.
(7) that the branch rules should be read in conjunction with the party constitution which shall take precedence;
(8) that all party members are members of the branch in which they live (rule 2.1) – Mr Hardy lives and has at all material times lived in Stockton;
(9) that Rule 3 is entitled Branch Committees
(10) that “branches are responsible for their own actions “rule 3.1) - a provision further relied upon in support of the autonomy argument;
(11) that the chairman “has principal responsibility of the direction of the branch” (rule 3.8.1)
(12) that rule 7 is entitled “Disputes”;
(13) that by rule 7.1 “instances may arise when differences within a branch threatens its proper functioning. Every effort shall be made to resolve these at the local level, either by branch committee or at a full meeting of the Branch. If this does not succeed the dispute shall be referred to the regional organiser acting on behalf of the party chairman “- it is impossible to think of what transpired within the Stockton branch as other than a dispute but I have heard no evidence from any member of the branch committee, directly or indirectly or of its involvement in this matter – likewise there has been no evidence of a full meeting or for that matter any meeting of the branch attempting to resolve this dispute;
(14) that by rule 7.2 if the dispute remains irreconcilable the party chairman may suspend or dissolve the committee or dissolve the Branch in its entirety.
16. Mr Holland submits that the law of contract is to be applied. With that I agree - next that as the constitution does not provide for expulsion the Branch rules are to be applied and where they are silent as to procedure the rules of natural justice and that of a fair trial are to be applied, and where this last applies the claimant needs to prove that his case was dealt with by a reasonable and proportionate response in all the circumstances of the case. Again I agree that the constitution does not provide for expulsion in the particular circumstances of this case although I find clause 4.1, 4.2 and 4.3 are not without relevance when I come to consider Mr Arnott’s general memorandum of 10th September this year. In fact such reliance upon Mr Hardy’s former membership of the BNP is in the whole context of this case patently a fig leaf the removal of which discloses an urgent desire to expel Mr Hardy at any price. Clearly Mr Arnott had no regard for this clause had it been a real reason to expel. Save for this consideration which is not without its own significance overall I accept Mr Holland’s argument so far.
17. So he contends Mr Parkin’s banning letter of 11th September 2009 was an action he was authorised by rule 3.1 to take particularly when regard is had to his “principal responsibility for the direction of the branch” under rule 3.8.1. Thus the argument runs Mr Parkin had legitimate power so to regulate branch meetings and in doing so what he did was within a reasonable and proportionate range of actions open to him. It is not for this Court, he submits, to prefer an alternative, particularly with the advantage of hindsight which is within such a range. With this last proposition I entirely concur.
18. Yet applying these principles of law as well as the ordinary meaning to be attached to rules 3.1, 3.8.1 and rule 7 (disputes) it seems to me that Mr Parkin did not have the power to act as he did and wholly failed to invoke rule 7. I do not underestimate the real difficulty of chairing a meeting attended by such a strong opponent as Mr Hardy and he could not in my judgment have been criticised for suspending one or any number of meetings summarily, nor for invoking the rule 7 disputes procedure with regard to all or any of Mr Hardy’s complaints. But instead he appears to me to have acted autocratically, taking sole not principal responsibility even if, which I doubt, the proper meaning of the phrase “direction of the branch” includes doing what he did by his letter of 11th September 2009. That speaks for itself and Mr Parkin has not suggested any alternative construction. It was his decision and his alone to banish Mr Hardy from branch meetings. That act effectively at least suspended Mr Hardy’s membership and although a less stringent test is applicable in law compared with expulsion the principles are the same and in my judgment even suspension in such terms, being for at least as long as Mr Parkin remained branch chairman, was for the same reasons as I have already provided in the context of expulsion, without authority, unreasonable and disproportionate. There is no evidence whatever of his having convened a meeting of either the branch committee or of the whole branch to consider the question of Mr Hardy’s suspension or expulsion. Plainly in March he involved Head Office but by July they seem to have left him high and dry. By September he was on his own. The letter of 11th was his and his alone, without further consultation and without giving Mr Hardy a reasonable opportunity to put forward any case of his own as to why he should not be suspended or expelled. He appears to have been both prosecutor and judge in his own cause.
19. The effect of such an act is compounded by the impression unwittingly given by Mrs Duffy but unambiguously pronounced by Mr Arnott by his general message of 10th September. The only inference 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.
20. Part of the “factual matrix”, as Mr Holland puts it, in my consideration of this matter is he concedes that unlike other kinds of proprietary clubs such as an allotment association or a tennis club the UKIP party is the only political party available to Mr Hardy, given his particular political views and allegiance, that the Stockton branch is the only branch to which by reason of his place of abode he could belong, and further unlike other activities of a sporting or other recreational type, political activity so long as it is conducted within a democratic framework carries its own special importance. Such considerations are in my view germane not only to the question of compensation but also to that of being treated fairly, reasonably, proportionately and in accordance with the branch rules. In each respect I find Mr Parkin, UKIP and the Stockton Branch on whose behalf to the last Mr Parkin has, through Mr Holland, maintained he exercised lawful authority, to have failed so to do. Each party is therefore in breach of his and its contractual duty to Mr Hardy.
21. I therefore hold that their purported expulsion of Mr Hardy to have been null and void and upon his payment of his £10 membership subscription for the current year his membership of the party and the branch continues uninterrupted both to the present day, and until either by lawful means he is expelled or otherwise resigns or retires.
22. Before turning to the matter of compensation and for the sake of completeness I hold that Mr Hardy has not been excluded from any public meeting as he once maintained, neither has he a valid cause of action under the Human Right’s Act as he also contended.
23. With regard to damages Mr Holland submits they should be nominal but I disagree. In effect Mr Hardy has for almost exactly 12 months been deprived of the enjoyment and satisfaction of pursuing his political aims and activity to which he has plainly been deeply committed. He would not however have held any office during that time nor I think been elected to either local or central government notwithstanding his clear ambitions. Neither do I find he is entitled to punitive damages in this case because I judge the unlawfulness of the defendants to stem from ill judgment and inattention to their own rules rather than bad faith. I therefore assess damages in the sum of £750.
His Honour Judge P Fox QC
The Recorder of Middlesbrough