Hayes v Pack and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Johnson |
| Judgment Date | 10 October 2022 |
| Neutral Citation | [2022] EWHC 2508 (KB) |
| Docket Number | Case No: KB-2022-003160 |
| Court | King's Bench Division |
[2022] EWHC 2508 (KB)
Mr Justice Johnson
Case No: KB-2022-003160
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mariya Peykova (instructed by Branch Austin McCormick LLP) for the Applicant
Richard Mott (instructed by DTM Legal) for the Respondents
Hearing date: 5 October 2022
Approved Judgment
This judgment was handed down by release to The National Archives on 10 October 2022 at 10.30am
The applicant, Josephine Hayes, was a member of the Liberal Democrats party (“the party”). She was expelled from the party on 1 September 2022 as a result of a decision of a complaints panel (“the panel”). She says that her expulsion breached rules of natural justice and was otherwise flawed. She wishes to stand in forthcoming elections for the President of the party. She can only do so if she is a member of the party. Nominations for the elections close at 6pm on Monday, 10 October 2022. Ms Hayes seeks an injunction that will enable her to take part in those elections. Her application for an injunction was issued on 28 September 2022. She has not yet issued a claim form.
The first respondent, Dr Mark Pack, is the current President of the party. Duncan Curley, Alexandra Simpson and Serena Tierney are named as the second respondent. They are the members of the panel. The respondents are sued as representatives of all members of the party.
Ms Hayes seeks an order that:
(1) The respondents are prevented from enforcing the panel's decision until the court gives a final judgment on the claim that Ms Hayes proposes to bring, and
(2) The respondents must not do anything to prejudice Ms Hayes' position in relation to the forthcoming elections for the President of the Federal Board of the Liberal Democrats.
The hearing took place on 5 October 2022. At the conclusion of the hearing, I refused the application for the following, summary, reasons:
(1) Ms Hayes has not established a right to an interim remedy before she starts her claim.
(2) Ms Hayes has not established a sufficient case on the merits to justify the grant of injunctive relief.
(3) The balance of convenience weighs against the grant of injunctive relief.
I refused permission to appeal. I said that a reserved written judgment, giving full reasons for the decision, would be provided in time to enable Ms Hayes to pursue a renewed application for permission to appeal (and, if permission were granted, the substantive appeal) before the deadline for nominations for the forthcoming elections. This is that judgment.
The background
Ms Hayes was a founding member of the party. She has held many positions within the party, including regional candidates chair for the East of England and membership development officer of the Colchester local party. On 1 January 2020 she was elected to the Federal Board of the party for a three-year term.
Ms Hayes' involvement in complaint made by Dr Pack (“Issue 3”)
In the course of 2020, Dr Pack made an anonymous complaint about the conduct of another party member. Due to a procedural error, Dr Pack's identity as the complainant was revealed to that party member, who then informed Ms Hayes. Ms Hayes wrote to Dr Pack in respect of the complaint. She said that the complaint was placing improper pressure on the subject of the complaint, that this might prejudice police investigations, and that could itself be an offence. She said that if the complaint was not withdrawn then the consequence could be police investigation, and she would hold Dr Pack responsible for that.
Ms Hayes' involvement in selection of PFCC candidate (“Issue 2”)
In December 2020 Ms Hayes was elected as the regional candidates chair for the East of England. She took office on 1 January 2021. She was responsible for identifying a candidate for the post of Essex Police Fire and Crime Commissioner. Her preferred choice had resigned from the party. His candidature was opposed by some within the party. There was a lengthy debate between Ms Hayes and Dr Margaret Joachim (the party's English Candidates Chair) as to the applicable procedure. On 20 February 2021 Lucy Nethsingha (the party's Regional Chair for the East of England) sent an email to 7 recipients, including Ms Hayes, and copied to Dr Joachim. The email indicated that there were concerns about the suitability of Ms Hayes' preferred candidate, and that complaints had been made against him which remained unresolved. The email asked the recipients to indicate their opinion as to whether Ms Hayes' preferred candidate should be appointed, and whether they had been fully informed of the outstanding complaints. Ms Hayes responded to the same email distribution list. She said that there were no outstanding complaints against her preferred candidate.
Ms Hayes' preferred candidate obtained a copy of the email of 20 February 2021. He issued a claim against the party's officers and complained to the Information Commissioner alleging data breaches by the party.
On 24 August 2021, Ms Hayes sent a WhatsApp message to the party's Federal Board (“the WhatsApp message”). She said that she was “reliably informed” that unless the complaint was resolved to the complainant's satisfaction by 5pm that day, the Information Commissioner would fine the party at least £10,000 and the ruling would be published within 2 days. As a result of this message, Kerry Buist (acting in the place of the party's data protection officer who was away) provided Dr Pack with the correspondence that had taken place with the Information Commissioner. After reviewing that correspondence, Dr Pack posted a message to the same WhatsApp group to say that there was no outstanding deadline and that the party was defending the case.
On 1 September 2021, the Information Commissioner sent an email to the party's data protection officer which said that it appeared that the party was complying with its data protection obligations and that the case would be closed.
Ms Hayes' conduct at Federal Board meeting (“Issue 1”)
At an online meeting of the Federal Board on 4 September 2021, Ms Buist said that the party had received an email from the Information Commissioner saying that the complaint was now closed but that (having taken advice from external lawyers) she was not able to share the correspondence. Ms Hayes posted, in the online chat, a comment: “I do not accept that Kerry's statements are accurate.” She posted a further comment: “Remember I am directly elected”. The Board voted to remove Ms Hayes from the meeting. It is rare for a member to be removed from a Federal Board meeting in this way: in the experience of those who commented on the issue, it has never happened before.
Dr Pack's complaint against Ms Hayes
On 2 February 2022 Dr Pack filed a complaint against Ms Hayes. He alleged she had:
(1) behaved inappropriately towards party staff, such as falsely accusing a member of staff of law-breaking.
(2) breached the party's confidentiality rules.
(3) shown a pattern of threatening others in the party.
(4) breached the code of conduct.
(5) made false claims against Dr Pack, including that he was party to a police investigation.
Dr Pack set out the detail of his complaint over 17 pages (excluding an appendix). He identified the conduct of Ms Hayes about which he complained, the respects in which he alleged Ms Hayes had acted contrary to the party's constitution and code of conduct, and the sanction that he said should be imposed (which was expulsion from the party).
On 16 February 2022, the Information Commissioner wrote to Ms Hayes' preferred candidate. He was told that the Information Commissioner considered that the Liberal Democrats had not complied with its data protection obligations in relation to the processing of his personal data.
The panel was appointed in accordance with the Party's rules to address the complaint made by Dr Pack. Each member of the panel is a solicitor or barrister. They each confirmed they did not have any conflict of interest or any personal interest in the outcome of the complaint. Checks were conducted to confirm that was so. The panel decided how best to case manage the complaint resolution process. It identified three discrete allegations that it would consider at a hearing, and it would then decide how to deal with the remaining issues following that hearing. On 1 June 2022, the panel sent to Dr Pack and Ms Hayes a “Complaints Panel Procedure Notice.” This identified the three issues to be determined:
(1) Ms Hayes' behaviour towards Kerry Buist at the Federal Board meeting on 4 September 2021 (see paragraph 12 above) (“issue 1”).
(2) Ms Hayes' actions and behaviour relating to the process for selection of a Liberal Democrat candidate for the post of Essex Police, Fire and Crime Commissioner (see paragraph 8 above) (“issue 2”).
(3) Ms Hayes' attempt to influence the outcome of complaints made by third parties (see paragraph 7 above) (“issue 3”).
Ms Hayes was provided with a bundle of 179 pages. This included Dr Pack's complaint, and witness statements from Dr Pack, Kerry Buist, Dr Joachim, Ms Nethsingha and several others.
A hearing took place on 26 July 2022. The panel provided its written decision on 1 September 2022. Ms Hayes received a copy of the decision on 2 September 2022.
The panel's decision
In respect of issue 1, the panel concluded that Ms Hayes' conduct was not in the best interests of the Party, and constituted bullying of a member of...
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