Labour Party ask the Hon. Mrs Justice Jennifer Eady DBE to keep report titled “The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism 2014-2019” confidential and for 70% of their legal costs
By John Brace (Editor)
Leonora Brace (Co-Editor)
Please note that comments are turned off due to the ongoing nature of this case.
The below is a report on a public hearing held on Friday 19th June 2020 which started late (originally due to start at 11.30 am) due to a delay in a party, representatives and also a delay in the Hon. Mrs Justice Jennifer Eady DBE (referred below as Eady J) joining the video hearing) in the High Court of Justice (Queen’s Bench Division) before the Eady J.
Due to the coronavirus pandemic the hearing was held (see Civil Procedure Rule Practice Direction 51Y) not in person but virtually as a video hearing. It was an application notice hearing in the case QB-2020-002055 (Howell v The Labour Party).
The Applicant (Mr Mark Howell) appeared in person (unrepresented).
Rachel Crasnow QC (instructed by Greenwoods GRM LLP) was for the both respondents (Mr David Evans on behalf of the Labour Party and Mr Iain McNicol).
Amanda Loyd (Clerk to the Hon. Mrs Justice Eady DBE) after checks that those participating in the application notice hearing could be heard and seen, reminded those present that the hearing was being recorded by HMCTS [Her Majesty’s Courts and Tribunals Service] and it was not permitted to make personal or private recordings, or publish any part of the hearing including court communications and it would be a criminal offence to do so.
Although the hearing was taking place by Skype, it remained a public hearing and she made those aware that there were members of the press present and a law reporter.
Amanda Loyd asked those not speaking during the hearing to make sure that they were muted and their camera was switched off. For the recording she was going to identify those who were going to address the Court.
Eady J (with a background of shelves from HM Courts’ Skype Account 1045) introduced herself as “Mrs Justice Eady and I’m the Judge today”.
Amanda Loyd asked Rachel Crasnow QC to go next.
Both Eady J and Amanda Loyd pointed out that Rachel Crasnow QC was muted and Amanda Loyd apologised.
Rachel Crasnow QC introduced herself as “Rachel Crasnow QC, Leading Counsel for the Labour Party”.
Amanda Loyd asked Mr Gillie to identify himself please and his role.
Tom Gillie introduced himself as “Tom Gillie, Junior Counsel for the Defendant” [the Labour Party]. Amanda Loyd thanked him and asked Mr Howell to identify himself for the recording please.
Mr Howell introduced himself as, “I’m Mark Howell, the Claimant”.
Amanda Loyd then called the case on, this hearing was being held as Skype sitting as the Royal Court of Justice (Queens Bench Division) in the matter of Mark Howell against David Evans as a representative of the Labour Party and Iain McNicol, case number QB-2020-002055. The time was 11:54 and it was on the 19th June 2020.
Eady J thanked Amanda Loyd and apologised for the “IT problems at my end but hopefully they’ve now been resolved and you’re able to see and hear me”.
Eady J thanked those at the hearing for “permitting the hearing to take place in this way, we do appreciate the difficulties that can cause and we’re very grateful for the cooperation of the parties and all those attending including members of the press and law reporters.”
Eady J was aware that a request was made from a member of the press for skeleton arguments and that had been forwarded to the parties and said, “Documents that were referred to at the hearing were documents that members of the press or public would be entitled to see and the parties should make them available to the press if so asked”.
Eady J said she had read all the documents filed by the Claimant Mr Howell, his witness statements, the statement that was submitted by the solicitor for the First Defendant and the parties’ position papers and skeleton arguments.
Eady J said not to “assume that I can remember everything” but that gave an indication what she had looked at. She said it was Mr Howell’s application, she just wanted to check had he appeared before Murray J, was that on the 10th or the 12th of June?
Mark Howell answered, “It was on the 12th, last Friday.”
Eady J thanked him very much and said that Murray J adjourned the hearing for an on notice hearing “which was what was taking place today”.
Her note for the agenda for today was as follows, first of all there was an issue raised by the defendants as to whether the Second Defendant should be dismissed from proceedings and there were lists of persons who were not yet parties – she would hear Mr Howell on that point, but if people were not yet parties before her, she was not sure there was very much she could do in relation to them. They couldn’t be here and were not being heard and nobody could represent them because they were not parties before Eady J.
Eady J said it may be that the Claimant was thinking about making an application to join them in due course, that therefore it may not be a matter to be dealt with today and it might be something for another day.
Turning to the injunctive relief that the Claimant sought, as Eady J understood it, the Claimant was asking for an order that the First Defendant as General Secretary of the Labour Party suspend the Second Defendant and possibly other defendants as yet unnamed on an interim basis pending any investigation by the Labour Party.
Eady J asked why it was an urgent application, if it was urgent did it show a triable issue in relation to the actual injunction that was sought? If the Claimant had, would damages be an adequate remedy, and she understood that the Claimant’s case was that his membership of the Labour Party and the Claimant’s view that the Claimant couldn’t be compensated for the damage done in that regard. If the question of triable issue and damages couldn’t be resolved, the Eady J would look at the “balance of convenience” – where did the merits lie and what was the status quo? There were also applications for specific disclosure and information to be provided by the First Defendant and that may lead to further directions in the proceedings more generally and where that fitted in. Eady J said she would deal with those when she got to the directions stage, she asked if those points sounded right from the Claimant’s point of view?
Mark Howell agreed and said it was what he was prepared for when it was listed and referred to an email to Amanda Loyd to pass to Eady J “very early that morning”, after he had read the witness statement of the First Defendant overnight, that largely what he was applying for was already happening.
Eady J said she had seen that letter, but that the injunctive relief related to a suspension of the Second Defendant and so the letter referred to the Claimant learning of investigations being undertaken and she wasn’t quite sure where that went in relation to what he was asking the Court to do.
The Claimant said he wasn’t sure that it provided him with what he wanted as the wording was “ambiguous”.
Rachel Crasnow QC thanked the Hon. Eady J for setting out the issues that they were dealing with “today”. Rachel Crasnow QC clarified that she represented both defendants which she should have clarified at the outset. Rachel Crasnow QC wanted to know whether Mr Howell was proceeding with his application for injunctive relief at all, given that the letter received that morning appeared to say “I withdraw that” but they needed clarity on that and Rachel Crasnow QC would be grateful to hear what Mr Howell had to say on that.
Eady J explained that the Court considered applications made before it, if Mr Howell didn’t wish to pursue a particular application then it was a matter for him so maybe Mr Howell wanted to address Eady J on that point first, she didn’t know.
Mr Howell referred to Mr Scott[sic]’s witness statement which read, “the Party has promptly commenced an investigation into whether any members referred to in the Report based on the materials referred to in the Report breached the Party’s Rules” but in the skeleton at 40D, it says, “some of the Party Members have been suspended from membership so far as it is necessary or it is necessary to do so to protect the integrity of the investigation” which was in a sub-clause (d) which referred to the “impugned individuals” so he was aware that the “impugned individuals” may not be the same at the “Party Members”. If it was some or all or some overlap he would like clarification on that, if there was overlap and some of the impugned individuals or possibly one depending on who it was and he was not sure how to deal with it when there were press there if they were going to start talking about people in the Report but that’s really what he needed, if he got clarification on that, it may well be that the Claimant would withdraw the application for an injunction.
The difficulty Eady J had was that an hour was listed for the hearing and it was not for the Court to tell people what they need to do, what they’re seeking or not, it was a matter for parties. Parties came before the Court and asked for relief and the Court decided whether or not it had jurisdiction and whether or not it should grant that relief.
Eady J said it was not really appropriate to use an open court hearing for a conversation between the parties, that was something that should happen between the parties before they came to Court, not during the hearing and that Eady J couldn’t sit “as a referee” on the Claimant’s conversation with Rachel Crasnow QC.
Eady J was directing this at the Claimant, but also at all parties there, it’s just that Mr Howell was the person speaking to Eady J at the time. It put Eady J in some difficulty, the question she had was “What are you asking the Court to do?”
Mr Mark Howell answered that he sent the letter which he also copied to Eady J’s clerk, to the partner of the solicitors representing and Mr Mark Howell hadn’t had a reply.
Eady J said that, “there were different things that might be happening here. It might be that you’re saying to me that the position seemed a bit different from what he thought, I’m not in a position to go ahead today, I want to adjourn this hearing whilst I find out what the position is. You may well be saying I now no longer need to proceed with my application for injunctive relief, but there’s an issue because I was only given late notice of what happened, there’s an issue about costs or something like that. Or you may be saying well they haven’t clarified the position for me, so I want to proceed with my application or there may be some other variation, so I don’t know what it is you’re asking me.”
Mark Howell said he was informing Eady J that he hadn’t had a reply which was not very helpful and he was inclined to think he should adjourn it and possibly we could look at the issues of the basis of the Claim, to see if there was progress that could be made in the hearing, but he believed it would be correct to withdraw the application. He pointed out that the information given to him that morning at 6.00 am could have been given to him when he sent his Letter before Action and therefore he held the Defendant responsible for not having provided this information earlier to avoid the action that he was warning of on the 28th of May. Even if not provided then, it could have been provided last Friday on the 12th of June when he sent the order of Murray J, so he felt he had been left uninformed either by carelessness or deliberately he was not sure which. He was going to withdraw the application under protest that he should have had his question, the information given to him considerably earlier and it should be unambiguous.
The Eady J asked about the 7 draft orders that the application had been seeking and if everything was still before her or had everything gone?
Draft Order 1 had been for confidentiality of a list of names, but there had been no application for them to be joined as parties, but that was Mark Howell flagging up what might happen? Mark Howell confirmed this as right.
Mark Howell went on to talk about confidentiality of the 860 page Report.
Eady J described the second proposed order as permission to add parties, but that wasn’t before her because the application hadn’t been made yet which meant that one and two didn’t seem to arise.
Rachel Crasnow QC asked to be heard on the issue of the Report being confidential. The Respondents asked for the Report to be kept off the Court record and indeed asked for it to be removed from the Court record where it had been placed by the Applicant as it contained data….
Eady J asked Rachel Crasnow QC if it was an application before her?
Rachel Crasnow QC explained that if Mr Mark Howell was withdrawing that part of his order then she was applying…
Eady J explained that Mr Mark Howell’s draft orders didn’t mention any request to keep the Report confidential and she was not aware she had an application before her in relation to the Report?
Rachel Crasnow QC referred to her number one. Eady J apologised and said “you’re absolutely right, I’m absolutely wrong” and that she had “managed to miss that”. Eady J asked on the basis that it was said [by Rachel Crasnow QC] that it [the Report] was confidential, but that she would come back to Rachel Crasnow QC on that point.
Eady J said she needed to allow for submissions from those who were present who were not parties if they had any interest in any confidentiality ruling that Eady J made. Eady J asked for the basis for that and the arguments in relation to it, so she would come back to that.
Eady J kept going through the Claimant’s orders as Eady J needed to know what was still before Eady J and what was not. On parties, Eady J said that the defendants may wish Eady J to deal with the Second Defendant’s status but Eady J would come back to Rachel Crasnow QC about that. Item 3 asked for an order for information from the First Defendant relating to any suspension that had taken place and then items 5, 6 and 7 relate to orders for disclosure from the Defendant which would be more general directions in the proceedings. It only seemed to be order 4 that related to injunctive relief, which was the application that the First Defendant be ordered to suspend the Second Defendant and possibly other defendants. Putting aside what Rachel Crasnow QC might want to keep in, Eady J asked the Claimant what it was he was withdrawing?
The Claimant answered that the Claimant had had partial disclosure on 3, in that, “some people have been suspended and it is in connection with material in the Report which seems to allege possibly breaches of Party Rules by unnamed individuals”.
The Claimant was concerned with the 2017 General Election, it may been that none of the people being investigated and suspected of breaching Party Rules, it may be that none of those people are in connection with the 2017 [General] Election. The Claimant pointed out that the Claimant had only had the information since 6.00 am that morning, however the Claimant’s view was that the disclosure was somewhat relevant to his Claim and that number 4, the suspensions were somewhat relevant to the application and therefore the Claimant was withdrawing those.
The Claimant was withdrawing 1, 2, 3 and 4. The Claimant suspected that he was ok in withdrawing 5, 6 and 7. The Claimant wasn’t pressing for 6 and 7 anyway, even before the information received at 6 o’clock. With regards to 5, that was different from 6 and 7, qualitatively different, because you couldn’t proceed to analyse case management of the Claimant’s Claim unless a bit more was known about that budget and the team that was referred to and therefore that was an urgent step to get that.
If people were being investigated in connection to that, the Claimant would withdraw that as well, so the Claimant was withdrawing all points of the application for the reasons that the Claimant had discursively given.
Eady J thanked the Claimant and said that the Claimant was seeking to withdraw all points of the application of the proposed orders, Eady J would turn to Rachel Crasnow QC to see what Rachel Crasnow QC said in relation to that and whether the Defendants were seeking that the Court determine any of the points that were before it by reason of the application notice. Eady J thanked the Claimant.
Rachel Crasnow QC asked for Eady J to deal with two specific points, the first was a request that the Report, the confidential Report be taken off the Court record for reasons that Rachel Crasnow QC would go into and the second order she requested that Eady J made was that the Claim against the Second Defendant was dismissed today [19th June 2020].
Turning to the first request, Eady J had the power to make those orders “of her own volition”, but there was not a specific application before Eady J.
Rachel Crasnow QC referred to detailed correspondence, witness statements and skeleton arguments dealing with both issues, in particular the Defendants say that the Second Defendant is not an apt party in any way to the Claim and that he had been wrongly identified as a party. This was set out in correspondence and Mr Scott[sic]’ s witness statement and in the Defendants’ skeleton argument.
Rachel Crasnow QC said that the report contained “confidential information in connection with individuals’ identities, it was a long document and had many different facts in it, some quite distinct from the points Mr [Mark] Howell criticises in his current Claim.”
To remain on the court record would risk breaching both confidentiality issues pertaining to all those individuals and secondly involve data breaches which the defendants were concerned not to do. Thirdly, there was no real need for the Report to be on the Court record, if in due course Mr Howell needed to show the Court sections of it, he could do so and the Defendants could agree the circumstances in which that was done, in a way that protected individuals’ interests for the reasons Rachel Crasnow QC had already mentioned. For that reason and to protect identities, where Mr Howell was not saying it was necessary to be on the Court record or necessary for him obtaining any relief today, the Defendants asked that Eady J acceded to their request to remove the Report from the Court record.
The second application was that the Court dismissed the Claim against the Second Defendant, it had been explained in all the correspondence and the skeleton argument why it was misconceived to issue against him [the Second Defendant]. She asked Eady J if she had the defendants’ skeleton argument to hand?
Eady J confirmed she did on the other screen so she was scrolling.
Rachel Crasnow QC said that she believed the part dealing with it started at paragraph 20 and at paragraph 20 that the Defendants said in terms of whether that… sorry paragraph 20 in terms of the First Respondent and representative actions, paragraph 21 says that the Second Respondent should not be a party to proceedings because and sets out four specific points asserting why that should be. Those four points cover the totality of all possible claims suggested by the Particulars of Claim.
Rachel Crasnow QC didn’t want to repeat what was written there, because Rachel Crasnow QC was aware that time was of the issue in this short hearing but she stressed that nowhere had Mr [David] Howell whether in correspondence or in his skeleton argument set out any basis for there being any kind of claim against the Second Respondent and for that reason the claim against the Second Respondent should be struck out forthwith.
Rachel Crasnow QC stressed that this was explained early on this week in the correspondence, Rachel Crasnow QC referred to page 16 of the bundle (by this Rachel Crasnow QC meant the pdf number rather than the one at the bottom), that was Rachel Crasnow QC’s solicitor’s letter of the 16th of June and the Defendants say clearly there three paragraphs up from the very bottom of the page “Mr [Iain] McNicol’s tenure as General Secretary of the Labour Party ceased on the 20th March 2018, the Claim ought to have been properly brought against David Evans alone and you now need to take urgent steps to rectify the position. Please confirm you do not intend to proceed against him.” and in the letters which followed firstly on page 25, at the bottom of that first page of the letter, [page] 25 under the headings “Parties’ service”, those instructing me explained in further detail why there was no locus entitling Mr [Mark] Howell to sue Mr [Iain] McNicol. Again unless Eady J wished Rachel Crasnow QC to, she was not going to read that whole paragraph out, she hoped Eady J had had a chance to read through it and in the third letter, which Rachel Crasnow QC now couldn’t find. Rachel Crasnow QC didn’t want to take the Court’s time up.
Eady J asked if it made any further points?
Rachel Crasnow QC said she thought it repeated the second point and then the witness statement of Mr Scott[sic] that started at page 67 in the bundle, at page 70 it was repeated what had been stated in correspondence about the wrong parties to the Claim between paragraphs 17 and 20. Rachel Crasnow QC noted that in that statement the Defendants emphasised that at paragraph 18 the [Labour] Party had twice asked Mr [Mark Howell] to confirm that he did not wish to proceed against Lord [Iain] McNicol as the Second Defendant, however at paragraph 19 despite the requests he [Mr Mark Howell] had failed to do so.
Rachel Crasnow QC said it was clear that Mr Mark Howell was proceeding against Mr [Iain] McNicol in a personal capacity, not as a representative and for the reasons already shown in the skeleton argument, such an argument is “entirely misconceived and moreover there’s been no reply to it from Mr Howell”. Furthermore, it needed to be appreciated that proceeding against Mr [David] Evans as General Secretary [of the Labour Party], didn’t deprive Mr [David] Howell of anything he sought to do in his action, but rather it was stressed there was no locus to sue the Second Defendant in his personal capacity.
Rachel Crasnow QC could go through the law in greater detail than that and take Eady J to the various authorities confirming that which the defendants referred to in their skeleton argument, but Rachel Crasnow QC was just concerned about the time, bearing in mind how long the matter was listed for.
Rachel Crasnow QC asked Eady J to accept the submissions that had been made about the strike-out of the Second Defendant, particularly bearing in mind that there’d been no need to claim against him [the Second Defendant], because he didn’t have any personal capacity or means of being a Defendant once he [the Second Defendant] was not General Secretary [of the Labour Party] as he [the Second Defendant] hadn’t been for some time.
Eady J asked if Mr [David] Howell wished to respond to those points and then what Eady J would do for others that are present if there are any others who wished to make submissions to Eady J, because they have interests arising from their rights to freedom of expression, or the right to a fair trial and what that then implied, if others wished to address her on issues relating to confidentiality of the Report then they could do so, but Eady J would first hear from Mr [David Howell].
Mr David Howell said he would respond to both points. Firstly on the question of the Second Defendant, he appreciated that personal capacity was quite different to representative capacity. There were two points about Mr [Iain] McNichol, sorry Baron McNichol of West Kilbride, he [Mr Iain McNichol] does or did during the material period of the Claim act in a representative capacity, as the Claimant saw it he [Mr Iain McNichol] needed to be on as a Defendant for that period of time, unless it was argued and the Court confirmed that Mr [David Evans] represented the [Labour] Party for that period as well as for the present day.
Eady J referred to originally a response from the Claimant to the Defendants’ solicitors that he was suing the Second Defendant in a personal capacity as a member of the Labour Party, was this not correct? Was he [Mr Iain McNichol] being pursued as the former General Secretary, was that right?
David Howell replied that was part of it, but there was an argument that he remain, maybe he appeared twice, there was an argument to remain in a personal capacity based on the Rule Book, chapter 2, two clauses 1.8 and 2.7 which relate to the required way that members treat each other. So, the most relevant one was 2.7 so that was Chapter 2, Clause 2, paragraph 7, which said that every member had the right to respect or to be treated respectfully and there were a few other words there from officers of the Party, so in so far as his behaviour presented disrespect of the Claimant and potentially other members of the Party – there was a personal claim against him.
In David Howell’s way of seeing it, there were two, in a representative capacity for the period of the [2017 General] Election and in a personal capacity, the obligation from officers to treat members respectfully.
The other point was to do with the Report. The Claimant was very concerned about all the names in the Report, there were a very large number of names and the Claimant was quite certain that it should be confidential. The Claimant’s understanding of which there were two points, was that the confidential flag on the electronic filing was that and no-one could request a copy of any document, whether it’s a journalist or someone else that’s marked confidential. The Claimant said it would be time consuming to go through every time a pleading or hearing coming up to have to identify sections of the Report that can be included in that procedure.
The second point of the Claimant was that more of the report was relevant that counsel for the defendants might think, there was a short section dealing with the 2017 General Election, but a very high proportion, by very high he did not mean more than 50%, a significant minority of the rest of the pages had material on them which fell within that period of time. The Claimant had looked at it carefully a few days prior to the hearing.
The Claimant referred to emails, WhatsApp messages or whatever, not all which fell into the time period of April 2017 to June 2017 were terribly relevant to the Claim but they needed to be looked at, some it would be quite time consuming to have lots of different pages scattered through the document. If the privacy status on e-filing was not really secure, then the Claimant supposed that would be what would have to be done, but it seemed strange to have a confidential status in the Royal Courts of Justice Rolls Building, he was aware of all the different divisions that had e-filing, then it didn’t mean what it said so the Claimant really found that confusing.
Eady J asked the Claimant if there was anything further the Claimant wished to say, there wasn’t.
Eady J asked if there was anybody attending such as the press or more general media who wished to address Eady J on the issue relating to the Report.
Rachel Crasnow QC stated that just because the document was on the Court record didn’t mean anybody could just inspect it and she wanted to make that clear.
Eady J said that they were trying to determine what its status was, as it hadn’t been brought into open Court proceedings because it hadn’t been something that the Court had been taken to during the course of the hearing. If on the other hand, the defendants wished it to be taken from the Court record, how it would pan out would be this. If reference was to be made to the Report and necessary for any arguments that the Court was addressing, if that was the case at some point then it could be done by referring to the parts of the Report. If that caused problems such as breach of confidentiality, data regulations in relation to particular individuals, then appropriate steps would be undertaken to redact the relevant parts of the report.
Rachel Crasnow QC said “absolutely”.
Eady J said that was Eady J’s understanding of what Rachel Crasnow QC was seeking at the moment.
Rachel Crasnow QC said that the defendants hadn’t had any opportunity to ask any of the third parties or inform those third parties of whom there are numerous people and whether they’ve got anything to say about their privacy rights as well, so Rachel Crasnow QC was concerned at it being determined by some people having their say about it, but the numerous individuals who are named in the report not having that right here and now.
Eady J said Eady J had that point about confidentiality and possible data breaches, on the other hand it was an open Court hearing and members of the press do have an interest of making sure the proceedings are kept open and transparent, not only because of their own rights as members of the press to freedom of expression, but also as “the eyes and ears of the public more generally” and in accordance with the principle of transparency and open justice.
Eady J again asked if there was anyone present at this hearing that wished to address Eady J on this issue then members of the press who were there or law reporters who were there, this was their opportunity to do so. Those who wished to do so would need to obviously unmute and possibly also put their camera on and also to tell Eady J who they were if they wished to address Eady J.
Mr Sam Tobin (Press Association) on both video and audio said he was hampered as he hadn’t had sight of the parties’ skeleton arguments yet so he was not entirely sure what the grounds of confidentiality were. He said it was a contentious issue, he wasn’t aware that there would be an application to have the Report made confidential. It had been referred to in open Court and it was available on the internet. When submissions were made ten minutes ago Mr Sam Tobin was able to find it as the second hit on a Google Search so it was still available in full unredacted. Mr Sam Tobin didn’t think that that was determinative but he thought it was significant that it was published and publically available and that the document had been referred to in open Court, so Mr Sam Tobin submitted that confidentiality had been lost in relation to it.
Without seeing the documents or knowing more about the Claim Mr Sam Tobin could not say more at that point.
Eady J thanked Mr Sam Tobin and asked if there was anybody else to address Eady J on that point?
Tristan Kirk (Evening Standard) on audio only said that he supported Mr Sam Tobin in what he said and if there was to be a confidentiality ruling and perhaps if this was something that Eady J was going down the route of, it might be an idea to allow us [Mr Sam Tobin and Tristan Kirk] to make more informed arguments having seen the skeleton arguments.
Eady J thanked Tristan Kirk. Eady J asked if there were other members of the press and she wasn’t sure if there were other members of the press on the hearing, if there was anyone else who wished to address Eady J this was their opportunity to do so.
Rachel Crasnow QC said that when it was the right time she would like to come back.
Eady J said that was fine, she was first going to come back to Mr [Mark] Howell to see if he wished to say anything in response to what members of the press have said and then she would let Rachel Crasnow QC come back.
Mr Mark Howell saw their [Mr Sam Tobin and Mr Tristan Kirk]’s point. Mr Mark Howell wanted to make clarifications and points of information as well, Eady J had said that no-one had proposed to take or go through the Report, Mr Mark Howell was going to do it, in fact he would like to take the Court to one.
Eady J apologised, at the moment Eady J was dealing with the confidentiality of the Report and that didn’t open up general reference to the Report because that would pre-empt any ruling that Eady J might make.
Mr Mark Howell asked if he could make the substance of what he was going to make?
Eady J said that the point she was going to make was that Mr Mark Howell had withdrawn all his applications, so what did Eady J need to refer to when Mr Mark Howell hadn’t got an application before Eady J?
Mr Mark Howell answered that in relation to the grounds of keeping the Second Defendant in a personal capacity, Mr Mark Howell needed to take the Court to a couple of pages.
Rachel Crasnow QC shook her head from side to side and said “no you don’t”.
Mr Mark Howell said could he just finish what he was saying?
Eady J said that maybe….
Rachel Crasnow QC said that what the defendants were concerned with was whether there was a right to name the Second Defendant in a personal capacity which was a distinct point from any alleged wrongdoing and for that reason it was simply not necessary to look to the Report for Mr [David] Howell to make good his argument that he can sue the Second Respondent in a personal capacity.
Mr Mark Howell said he was going to show evidence of his [the Second Respondent’s] disrespect.
Eady J said Eady J had heard from Mr Mark Howell on the two points and that Eady J had asked Mr Mark Howell if Mr Mark Howell wished to address her specifically on the points raised by Mr [Sam] Tobin and Mr [Tristan] Kirk on the issue of the confidentiality of the Report and that Mr Mark Howell was now wanting to take Eady J to part of the Report to bring it into the hearing because it supported Mr Mark Howell’s submission in relation to proceedings against the Second Defendant, but that’s a different point isn’t it?
Mr Mark Howell said that’s it’s one of the two points that this part of the hearing was dealing with.
Eady J replied, “Yes, which I’ve had your submissions on and I was then dealing with the issue of confidentiality of the Report and particularly the submissions made by the members of the press who are in attendance.”
Mr Mark Howell replied, “Could it just be noted that there were seven pages in total and two of those pages are relevant to the question of whether under Chapter 2 of the Rules whether there is a legitimate claim against Mr [Iain] McNicol personally and if the Court was to look at those two pages it would simply evidence what I’ve already suggested. There is a substantial case under that Rule.”
Eady J thanked Mr Mark Howell and went to Rachel Crasnow QC.
Rachel Crasnow QC thanked Eady J very much. Rachel Crasnow QC asked Eady J to go back to Mr Scott[sic]’s statement on page 72 of the bundle and see at paragraph 29 Mr Scott[sic] detailed one of the following investigations following disclosure of the Report. Now it was with particular emphasis to that, that on behalf of the First Defendant Rachel Crasnow QC was extremely concerned to ensure that that matter remained confidential, in particularly with relation to risk of any data breaches.
Rachel Crasnow QC emphasised that as and when it became necessary for Mr [David] Howell to show the Court any part of the Report that he said was pertinent to the Claim that he’s pursuing that the Court was well used to the parties coming to an agreement on how to use evidence which did not breach individuals confidentiality and indeed allowed the public in the spirit of transparency to understand the point being made.
Rachel Crasnow QC continued that looking at the entirety of the Report there had not been an opportunity to gain any consents of the tens of individuals mentioned in that Report regarding personal data. Rachel Crasnow QC’s view was that there were many points which were wholly distinct, the bulk of the Report was wholly distinct to the matters that Mr [David] Howell was concerned with, therefore for that reason it was in the interests of justice, firstly to keep the Report confidential, secondly to remove it from the Court Record, in order that the interests Rachel Crasnow QC had mentioned to be protected and further to allow Mr [David] Howell to refer to sections of it in a way that protected individuals’ rights as and when he needed to to argue any parts of this Claim that remained.
Rachel Crasnow QC was concerned about the privacy rights of those individuals, people who hadn’t had any opportunity to particularly mention their concerns to Eady J today, but Rachel Crasnow QC pointed Eady J to paragraph 29 of the statement to emphasise the seriousness with which the point was made. Eady J thanked Rachel Crasnow QC and coughed.
Eady J gave her ruling on what she understood to be the outstanding issues before Eady J which was going to take the form of a short judgement. Eady J coughed again.
Eady J said, “This is the on notice hearing of the Claimant’s application which was for urgent injunctive relief and other directions.
In his first witness statement, which was dated the 8th of June 2020, the Claimant had explained that he is and I’m just quoting now, ‘a member of and Unite the Union delegate to Vauxhall Constituency Labour Party’.
He seeks to pursue these proceedings potentially with as he would have expressed it to at least one other member of the Labour Party and three, at least one prospective parliamentary candidate on 8th June 2017 drawn from a confidential list P and brought the proceedings against the First Defendant sued as representative of all members of the Labour Party except the Claimant and the Second and Third Defendants and the Second Defendant who I’m told was the former General Secretary of the Labour Party and currently remains an ordinary member of that Party and the Claimant also suggested that he might be bringing proceedings against and again I quote, ‘at least one other employee (a public representative member) drawn from confidential list E’ and I’ve taken those details from the Claimant’s Particulars of Claim. Now I’m going to return to the issue of the identities of the parties in due course.
By application of 10 June 2020 made without notice, the Claimant sought urgent relief on this Claim for a declaration that and again I’m quoting now from his Claim, ‘the Defendant or any of them have breached Rule 13 that is of the Labour Party Rulebook and an order that the NEC (that is the Labour Party’s National Executive Committee) expel such defendant or defendants subject to proper consideration, mitigating circumstances’.
That application came before Mr Justice Murray on the 12th of June 2020 when it was adjourned to take place as an on notice hearing today. Due to the continuing restrictions imposed as a result of the coronavirus pandemic, this hearing has taken place remotely by video link using Skype for Business. That said, it remains a public proceeding and indeed details of the hearing and how to access it were published on the cause list.
Members of the press and law reporters have been able to access the hearing, at which the Claimant has been heard in person and the defendants have appeared by Leading and Junior Counsel.
The Claim, in his original skeleton argument which was dated the 9th June 2020, the Claimant explained that his Claim was made and I’m quoting, ‘in contract, tort, equity and the criminal code against those members of the Party other than the Claimant inasmuch as they caused the alleged wrongdoing’. The wrongdoing is then explained in his skeleton argument as follows and this is in paragraph 3 of the argument dated 9th of June, I quote, ‘D sought the victory of rival parties in constituencies that were key for determining the Government of the UK in so doing it breached its contract with the Claimant with the C and its non-contractual pact with voting public of the UK which includes C’.
Although not entirely clear, the Claimant’s Particulars of Claim which were dated the 8th June 2020, also suggest that he makes allegations of breach of fiduciary duty and of fraud.
The various allegations made by the Claimant relate to the General Election in June 2017. He says that evidence to support his Claim came to his attention with the leak of a confidential report in the early part of this year which had looked at communications between national officers of the Labour Party between 2015 and 2018 to determine reasons for delay in dealing with allegations of alleged antisemitism.
I understand that this is a confidential internal Labour Party Report entitled, ‘The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism 2014-2019’ which in these proceedings has just been referred to as the Report.
Along with his application for interim relief, the Claimant included a document which was entitled ‘Orders applied for with reasons’ which was dated the 8th of June 2020. In that document, the Claimant stated that he was seeking orders as follows and I summarise.
First, that lists P and E and the Report be kept confidential. List P was the list of potential other claimants and list E that of potential other defendants and secondly a direction relating to any application to add claimants or defendants to these proceedings.
He also sought various orders relating to further information from the defendants and specific disclosure and then for an order that the First Defendant suspend the Second and Third Defendants pending the conclusion of investigations into conduct during the 2017 General Election.
The defendants resisted the application, saying that the Claim was wrongly brought against the Second Defendant who should be dismissed from the proceedings and submitting that this wasn’t a matter that was appropriate for urgent relief, that was premature, without merit and the Court should refuse to grant the orders sought.
They also asked that this hearing be limited to giving directions for the next steps to be taken in these proceedings, but raised their concern, that the Claimant had filed a copy of the Report on the Court file, when they said that was confidential.
At the hearing this morning, Mr Howell (the Claimant) said that after receiving the Defendants’ skeleton argument and witness statement yesterday evening over the course of the night it became apparent that there were various matters of which he had not previously known, which meant that he no longer sought to pursue his application. After some reflection on the point during the hearing, the Claimant withdrew his application in its entirety.
For the defendants it is said two matters should remain outstanding. One relating to the identity of the Second Defendant and the cause of action against him and secondly in relation to the confidential nature of the Report that had been filed.
I deal with those matters in turn.
First of all dealing with the parties to these proceedings, in relation to any potential additional parties, whether as listed by the Claimant in earlier documents P and E, or otherwise, those are not parties that are presently before me and at the moment there is no application to join any additional parties as such it seems to be common ground that there’s nothing for the Court to deal with in that regard.
As for the First Defendant, the defendants have clarified that he is the prospective General Secretary, his tenure being due to commence on the 29th June 2020 but as such it is accepted that he may appropriately be named as Defendant as representative of the Labour Party which is an unincorporated association. To the extent that requires a direction under CPR 19.1 that is not in dispute.
As for the Second Defendant however, I understand that his tenure as former General Secretary of the Labour Party ceased on the 20th of March 2018 and the defendants contend that proceedings against him should be dismissed at this stage on the basis that he has no personal contractual relationship with the Claimant that he has alleged to have been breached, there is no duty of care to the Claimant and that no facts have been alleged that which would give rise to a personal duty of the Second Defendant to the Claimant.
For his part the Claimant clarifies that he is suing the Second Defendant both in his personal capacity as member of the Labour Party and says that the Rule Book which is the contract between the Party and its members gives rise to a potential obligation between members themselves. He also says however he pursues this claim against the Second Defendant as former General Secretary in a representative capacity on behalf of the Labour Party.
At present, the most I can say that it is not entirely clear to me as to what precisely is the cause of action against the Second Defendant. In frankness, it seems to me that this may be a matter that is developing in the Claimant’s own reflections on the case and has changed to some extent during the course of the previous correspondence and at this hearing.
At this stage however I do not dismiss these proceedings against the Second Defendant. It seems to me that the appropriate course is to order the Claimant to provide further information specifically explaining the cause of action relied on in respect of the Second Defendant.
The defendants are entitled to understand how the Claim is being put against each of the defendants, before they are required to serve a Defence to this Claim and that is therefore something that will need to be taken into account when I return to the question of further directions.
I note that the defendants have already intonated that they will seek to apply for the Claimant’s claims to be struck out and if having received that further information, relating to the Second Defendant they consider that an appropriate course then of course they can do so at that stage and the Court will be better informed to deal with that.
I then turn to the question of the confidentiality of the Report. This is a Report that I understand has already been leaked and it may be that it’s available more generally on the internet.
That said, it’s accepted by the parties that it contains information relating to the identities and other data relating to particular individuals which would breach their rights to confidentiality. Those are individuals who have not had notice of these proceedings and have not been heard on this matter.
I have heard from two members or representatives of the press in relation to this matter and they have pointed out that the Report is widely available on the internet, that this raises quite contentious issues of confidentiality, they had not been given copies of the parties’ skeleton arguments and so are unable to understand properly understand the issues to which the Report might go and if the Court is minded to make any order in relation to confidentiality they would ask for the further right to be heard on this point so they can properly address these questions to the Court.
On the face of what I’m told, the document that the Claimant filed seems to contain information which is or should be to the First Defendant as the Labour Party and includes information that is confidential relating to specific individuals mentioned within it.
I bear in mind, it does seem that the Report has been more generally made available, having been leaked onto the internet, that so far as I’m aware has not been done with the approval of the First Defendant who must be the owner of the Report. But the fact is that it is has been more readily made available.
On the other hand, the very leaking of the report is I’m told the subject of an investigation by the Information Commissioner’s Office into the circumstances in which it’s been leaked and I’m told that the First Defendant is cooperating with that investigation.
The Court has not at this hearing been taken to specific passages of the Report and so issues relating to the disclosure of particular confidential information relating to other persons has not arisen during the course of this hearing.
It is the defendants’ concern however that that may happen. If at some stage reference is made to parts of the Report, the document then goes into the public domain in as a document referred to in an open hearing and there has been no attempt to redact that information, which should be confidential to the parties, sorry to other parties or which is unnecessary and irrelevant for the purposes of this hearing.
Just pursuing that line further forward, if that occurred, then the Court might be asked to go into private session, which would seem a disproportionate course when appropriate steps might just be made to redact that which is private and/or irrelevant for the hearing. Those are matters which one would expect the parties to deal with, before a document was referred to in open court proceedings.
It seems to me at this stage, reference to the Report for this hearing was entirely unnecessary given that the Claimant no longer pursued his applications and the problems foreseen by the defendants in reality have not arisen. What I’m really being asked to turn my mind to, is what should be the position for the future? And I’m being asked to make an order to protect the identities of third parties which might otherwise be disclosed if the Report is referenced as part of the Court proceedings.
At this stage I do not want to preempt such representations that might not be made by those other parties and it seems to me that I should at this stage direct that the Report be removed from the Court file and reference should not be made to it, until the parties are able to agree such parts that need to be redacted or do not need to be referred to because they are just irrelevant and unnecessary for these proceedings or the appropriate application made to the Court and the point can be more fully considered on notice more broadly so that members of the press can be properly represented.
I note that where under CPR 39.2, subparagraph 5, where the Court does make an order which places a degree of confidentiality on those who are part of the proceedings or which might then impact on that, then any person who is not a party to the proceedings may apply to attend the hearing and make submissions or to apply to set aside and vary the order.
Although I have heard submissions from members of the press today, I accept their point that they are placed at a disadvantage because they did not have copies of the parties’ skeleton arguments or more information about these proceedings and so are not in a position to properly make submissions on this point and therefore it should not be taken that my ruling this morning prevents members of the press or others who may have an interest in this matter making an application to set aside or vary the order that I’m making at the moment which was that the Report be removed from the Court file. I think that’s my ruling on the issues that are outstanding before me, that then brings me to other directions in this matter unless anybody thinks that I have managed to miss one of the points that are outstanding before me.”
Eady J then turned to next steps to be taken, parties agreed that service of the claim took place on the 18th of June 2020, Eady J had refused to dismiss proceedings against the Second Defendant but on the basis that the Claimant be given a chance to provide further particulars which properly set out in way in which Mr Howell was putting that claim which would give the Claimant an opportunity to reflect on the points made during the hearing which Eady J saw that the Claimant was doing during the hearing and the Claimant may wish to put things slightly differently or even to consider whether the Claimant needed to pursue the Claim against the Second Defendant at all. That was a matter for the Claimant.
Eady J asked the Claimant how long the Claimant would need to provide those Particulars of Claim? The Claimant asked for 21 days.
Eady J said that that would put off the time that the defendants had to respond. Eady J asked if Rachel Crasnow QC had anything to say about that?
[Rachel Crasnow QC was talking but no sound was happening.]
Eady J pointed out that Rachel Crasnow QC was muted.
Rachel Crasnow QC said that on behalf of the Second Respondent, following receipt of those particulars, we would be asking the Court to list a strike out hearing. Eady J pointed out that was a matter for you and you haven’t done that yet, so if I’m assuming, it may be that when Mr Howell provides you with that, those Particulars, that you take a different view, Eady J didn’t know, Eady J was not going to preempt anything at this stage.
Eady J asked that if they were putting in their Defence, what timescale? Rachel Crasnow QC thanked Eady J for mentioning that, in terms of the Defence, because we say the claim against the Second Respondent is completely misconceived, we will be applying for a strike out before putting in a Defence. On behalf of the First Respondent, Rachel Crasnow QC was seeking a stay of these proceedings until the current Forde Inquiry is completed. In the documents the correspondence from those instructing Rachel Crasnow QC and indeed the witness statement of Mr Scott that there’s currently and has been for some weeks independent investigation proceeding, it would be wrong we suggest to consider Mr Howell’s claim further while that investigation in continuing and the reasons are set out in detail in their skeleton argument.
Eady J said what she’d been told that Mr Forde (or his Panel) had been asked to use his best endeavours to deliver his Report to the Labour Party by the 15th of July 2020, so if we’re having 21 days for the further Particulars, then we’re not really talking about much more time before you’re likely to be getting the report from Mr Forde? Rachel Crasnow QC replied, “I would hope not.”
Eady J said at the moment Eady J was asking for dates by which things, steps might be taken. So even if the further steps undertaken by the defendants is, I allow time after receipt of Mr Forde’s report, if that’s at the moment due on the 15th of July, then why shouldn’t I require the Defence to be filed 21 days after that?
Rachel Crasnow QC said there were two concerns she had about the 21 day limit. Firstly, because it was a tight timetable to get around.
Eady J said that Rachel Crasnow QC hadn’t given Eady J any suggestions at the moment, so if you want to give me a date, or a time period, then I’m happy to take that into account. Eady J said, “I’m not bidding against myself”.
Rachel Crasnow QC was going to ask for 6 weeks after they get those further Particulars [of Claim], but it is likely that in the interim and she said it so Mr Howell absolutely understands both defendants’ positions, that the defendants would be making further applications in particular for strike out.
Eady J thought that would take you to the 4th of September.
Rachel Crasnow QC thanked Eady J.
Eady J asked if Mr Howell had anything to say about that?
Mr Howell said, “No, bearing in mind the circumstances I’m happy with that.”
Eady J thanked Mr Howell very much.
Eady J asked if there were further directions to deal with at this stage?
Rachel Crasnow QC said that the only other thing on her list to address the Court about was the matter of costs.
Eady J said to Mr Howell that in terms of directions what will happen is the order and what she’d flag up now was that she was asking for Rachel Crasnow QC, her team because the defendants have legal representation so it’s fair, to use that word loosely for Eady J to put the onus on them to do the work. Eady J would ask them to draw up the draft minute of order which would then be run past the Claimant and sent to the Court, but it was the Court’s order, it was not a matter for the parties to agree because it just reflected what Eady J has ordered and Eady J was just requiring one party to assist the Court by doing that ok?
What that will contain at the moment, it will indicate that the applications made by the Claimant this morning were not pursued, that will set out what Eady J had ordered in relation to the outstanding matters in respect, properly she’d got the representative order relation to the First Defendant, what Eady J had said in in relation to the Second Defendant and what Eady J had said in relation to the Report and it will set out that the Claimant was directed to produce further Particulars of how the Claimant put the Claim against the Second Defendant and the Claimant had got to do that, 21 days which took us to 4.00 pm on the 10th July, and thereafter the Defendants have until 4.00 pm on the 4th of September and Rachel Crasnow QC may want to include or flag up that the Defendants will consider their position regarding applications to make to strike out the Claim. That covered everything discussed so far this morning.
Eady J asked if there was anything not included in that summary. Mr Howell said he might make further applications. Eady J said Mr Howell gave notice that he might be joining parties and you are no notice and Rachel Crasnow QC might want to reflect in minute of order that they might be making applications, there may be further that nobody has meant at this stage. Applications can be made in accordance with the rules of the Court in due course. When you’ve been put on notice it’s helpful to have it recorded, so any Judge in the future can see that, does that make sense?
Mr Howell said it did.
Eady J said that if that dealt with the directions in the order that just left Rachel Crasnow QC’s application for costs.
Rachel Crasnow QC said she hoped a costs schedule had reached the Court and Mr Howell. Eady J asked Mr Howell had received it? He said he had received it about 1/2 an hour before the hearing. Eady J confirmed that was when Eady J had received it too.
Rachel Crasnow QC said that costs were sought of the application.
The following is just a summary rather than detail of the remainder of the hearing which dealt with costs.
Rachel Crasnow QC sought costs on the indemnity basis of 70% of total costs amounting to £32,000. Eady J asked if the VAT was recoverable by the Labour Party.
Mr Mark Howell replied to the costs application and opposed it.
Later in the hearing Rachel Crasnow QC said she was unable to get an answer on the VAT point so was still asking for £32,000, that Rachel Crasnow QC was unsure whether it was recoverable and that the Labour Party wouldn’t benefit from the costs order.
Eady J awarded costs on the summary basis to be paid by the Claimant Mr Howell to the Labour Party of 50% (rather than the 70% and indemnity basis requested) [which comes to around £23,000].
The hearing ended (which was much longer than 1 hour listed in part due in part to the late start).
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