Catherine Dymoke v Association for Dance Movement Pyschotherapy UK Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Popplewell |
| Judgment Date | 25 January 2019 |
| Neutral Citation | [2019] EWHC 94 (QB) |
| Docket Number | Case No: HQ17X01504 |
| Court | Queen's Bench Division |
| Date | 25 January 2019 |
[2019] EWHC 94 (QB)
THE HON. Mr Justice Popplewell
Case No: HQ17X01504
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings,
Fetter Lane, London, EC4A 1NL
Mr Nicholas Leviseur (instructed by Stephensons) for the Claimant
Mr Peter Dodge (instructed by Kitsons) for the Defendant
Hearing dates: 6–8 November 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Defendant (“ADMP”) is a company limited by guarantee whose purpose is to promote dance music psychotherapy (“DMP”) in the UK and to encourage suitable standards in its practitioners. It is a relatively small organization of about 350 practising members, reflecting this particular specialisation within psychotherapy.
The Claimant, Ms Dymoke, has a background in theatre and dance, and has since at least as long ago as 1994 been engaged in providing therapy through touch and movement-based skills. She became a registered member of ADMP in 2002 and a member of its Council in September 2009. She became Vice Chair of the Council in about 2011 and Chair in September 2012. She ceased to be Chair in December 2014.
Of particular relevance to the events giving rise to the claim is Ms Dymoke's role in relation to an aspect of movement psychotherapy known as Body Mind Centering (“BMC”). BMC is a form of therapy devised by Bonnie Bainbridge Cohen, who lives and works in the USA, and is a registered service mark of which she is the licensed holder. Ms Dymoke undertook a teacher training course with Ms Bainbridge Cohen's School of Body Mind Centering in 2004 to 2006, and in 2007 had a leading hand in setting up an association called Embody Move Association (“EMA”) for the purpose of holding a licence in Body Mind Centering, and controlling the teaching and accreditation of BMC courses in the UK. EMA held the exclusive right to licence BMC therapy for the UK, and accordingly no course could include accreditation for BMC modules without the approval of EMA. In some documents Ms Dymoke is described as one of four founders of EMA. In her witness statement she described herself as the founder. She was the Education and Administrative Director from 2007 to 2014 and on its management committee until 2015. She is one of only four people resident in the UK who are qualified and licensed to teach BMC in the UK, and the only person in the country qualified as a programme coordinator for BMC courses.
By letter dated 10 March 2016 the acting Chair of the Council informed Ms Dymoke that her membership of ADMP was terminated on the grounds that there had been two conflicts of interest in relation to her dealings with an MA course in dance movement psychotherapy at Edge Hill University (“EHU”) for the academic year 2013/14. ADMP had accredited the course; EMA had licensed the BMC part of the course; and Ms Dymoke had herself been employed as a part time senior lecturer to coordinate and teach the BMC elements of the course. Her employment by EHU was not renewed for the 2013/2014 year. At an appeal meeting with the Pro Vice Chancellor, Ms Brady, on 28 October 2014 Ms Dymoke informed EHU, on behalf of EMA, that EHU's permission to conduct BMC courses was withdrawn, and all reference to BMC in course materials and on the website would have to be removed. She was Chair of the Council of ADMP at the material times.
The two conflicts identified in the letter as grounds for termination were:
(1) a failure to notify ADMP during the process of accreditation that she was a co-director of EMA which was the sole UK licence holder for BMC; and that she was herself the sole licenced UK programme leader for BMC; and
(2) the giving of a notice to EHU during her personal appeal hearing on 28 October 2014 which was given in her capacity as co-director of EMA.
On 7 April 2016 Ms Dymoke's solicitors sent a notice of appeal against the decision. On 6 May 2016 ADMP's solicitors sent ADMP's “Reply” which was subsequently confirmed to be its determination and dismissal of the appeal.
In this action Ms Dymoke claims that her membership was unlawfully terminated. She seeks reinstatement as a member of the association, and damages. The claim is put on the basis that in the process leading to the termination of membership, and the dismissal of the appeal from that decision, there was a breach of the rules of natural justice and of ADMP's published procedures on handling complaints. The focus of the dispute is therefore in relation to the procedure adopted, rather than the substance of whether there were conflicts of the kind alleged to have justified termination. It is not accepted by Ms Dymoke that there were any conflicts which were not disclosed to ADMP, and it is contended on her behalf that in any event there was nothing in her conduct which could properly justify termination of membership; however those are questions which do not arise in these proceedings: the thrust of the case is that the procedural unfairness involving breaches of the published codes vitiates the decision, and that she should be reinstated. It is accepted on her behalf (although this was not accepted in the notice of appeal) that if the claim succeeds it will be open to ADMP to undertake a further process of investigation and inquiry into the allegations in a way which does not replicate the allegedly flawed process previously adopted, and to reach a fresh decision.
The cause of action is framed in contract (1) for breach of an implied term that ADMP would comply with the rules of natural justice and (2) for breach of express terms of the procedural codes. In the alternative there is a claim based on the principle recognised in Nagle v Fielden [1966] 2 QB 633, which can be summarised as providing that the rules of natural justice must be observed, irrespective of contract, where a decision is made by a body with the requisite degree of power or control over a person's ability to work in a chosen field.
ADMP denies that the rules of natural justice are applicable, whether by reference to the principle in Nagle v Fielden or as a contractual implied term; it denies that there has been any failure to comply with the substance of the requirements of the procedural codes; it contends that if there was any procedural failing, it made no difference to the outcome, which would have been the same if any flaw in the process had not taken place; and it disputes that in any event reinstatement is an appropriate remedy or that Ms Dymoke has proved any loss caused by the termination of her membership.
The contractual framework
It was common ground that at the material times there were express terms of a contract between Ms Dymoke and ADMP to be found in the articles of association, and two documents published in September 2013 being the Code of Ethics and Professional Practice (“the Ethics Code”) and the Complaints Procedure.
The articles of association provide for the business of the association to be conducted by members of a Council, of no fewer than three members, with three being the quorum for Council decisions. These Council members were the directors of the company from time to time. There was a company secretary and administrator who at the material times was Andrew Clements. The articles made no provision for the circumstances in which membership could be terminated other than by notice of retirement or resignation.
The Ethics Code had a section on complaints which included the following:
“ 10. Complaints
10.1 Dance movement psychotherapists are responsible for being aware of the Association's Complaints Procedure and relevant legislation and for informing clients of these if required.
10.2 Dance movement psychotherapists who have ethical concerns related to a colleague's practice are responsible for raising these with the colleague and/or organizational setting in which the work takes place. If the above have not proved effective, psychotherapists are responsible for raising their concerns with the Association.
10.3 Dance movement psychotherapists are responsible for informing the Association's Chair without delay if they become aware of a complaint or possible legal action brought against them in relation to their practice.
10.4 Complaints received by the Association related to practice are forwarded to the Association's Chair. At his/her discretion, the Chair may refer a complaint to the Executive Council, to clarify further steps to be taken.
10.5 The psychotherapist concerned is informed of any such complaint and invited to comment on it. In doing so it may be in the therapist's interest to consult any relevant sections of the Public Interest Disclosure Act/Order, 1999.
10.6 Following investigation of a complaint the Executive Council has recourse to the following recommendations: reprimand; a period of required supervision; suspension or withdrawal of registration and/or membership of the Association.
10.7 All complaints proceedings involving a member of the Association are treated as confidential.
10.8 The complainant and recipient of the complaint are kept appropriately informed.”
The Complaints Procedure explained that it was intended for registered members and members of the public or clients, and was intended to cover how a “complaint or concern” could be raised and would be handled. Although the procedural section is framed in terms of a complaint, it is clear that where that term is used it was also intended to apply to a “concern”. It provided amongst other things:
“ Procedure once a complaint is received
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