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Foster v McNicol and Another

Foster v McNicol and Another

Postby dls » Sat Jul 30, 2016 5:37 am

Foster v McNicol and Another; QBD 28 Jul 2016

References: [2016] EWHC 1966 (QB)

Links: Bailii, Judiciary Summmary, Judiciary

Coram: Foskett J

Ratio: The claimant challenged a decision of the National executice Committee of the Labour Party to allow its present Leader to stand in the election challenging his position without the need for him to submit first the otherwise standard nominations from a certain percentage of the party.
Held: The challenge failed. Properly read, the rules reuired nominations for a challenger only. As the incumbent, he was not a challenger, and was not to be required to go through the procedure requiring nomination.
Foskett J summarised the effect of the rules:
____'(a) where there is a vacancy for Leader, anyone who wishes to be considered for the position would require nominations from 15% of the combined Commons members of the PLP and EPLP in order to be a candidate in the election;
____(b) where there is no vacancy (because the Leader is still in place), anyone who wishes to challenge the Leader's right to continue as Leader would need nominations from 20% of the combined Commons members of the PLP and EPLP in order to mount such a challenge;
____(c) the Leader would not in that situation (where there is no vacancy) be someone who was a 'challenger' for the leadership and, accordingly, would require no nominations in order to compete in the ballot to retain his/her position as Leader.'

It was argued that in attempting to oust the jurisdiction of the court, that part f the rules were void.
Held: Since the question was not directly in issue, a proper resolution must await a case raising it more directly: ' because of the court's reluctance to be drawn into any kind of political debate, I do accept unreservedly that where a decision, certainly about the application of any rule that is ambiguous, requires consideration of background material beyond the precise words used in the rule that has significant political connotations, the NEC may well be better placed than the court to consider those implications and to decide accordingly. In this case, had it been necessary to consider the competing contentions about what were said by each side to be the 'absurd' and 'obviously unintended' consequences arising from the acceptance of the other side's view of the meaning of Clause II.B.2(ii), the court would have found itself in the midst of what Mr Henderson correctly characterised as 'intensely political' considerations. Because the problem has not arisen, it is not necessary to speculate on what might have been the result, but I highlight the issue because it brings clearly and vividly into focus the importance of recognising the vital dividing line between the world of politics and the world of the law.'

This case cites:
    - Cited - Choudry and others v Triesman ChD (Times 02-May-03, Gazette 05-Jun-03, Bailii, [2003] EWHC 1203 (Comm))
    The applicants sought an order requiring the respondent general secretary of the Labour Party to allow them to stand as candidates for the party in the forthcoming local elections. After allegations about the way in which selection had been carried . .
    - Cited - Investors Compensation Scheme Ltd v West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
    The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
    Held: Investors having once . .
    - Cited - Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL (Times 06-Mar-01, Gazette 12-Apr-01, House of Lords, Bailii, [2001] UKHL 8, [2001] 1 All ER 961, [2001] 2 WLR 735, [2002] 1 AC 251, [2001] ICR 337, [2001] IRLR 292, [2001] Emp LR 359)
    A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
    - Cited - Arnold v Britton and Others SC (Bailii, [2015] UKSC 36, [2015] HLR 31, [2016] 1 All ER 1, [2015] WLR(D) 247, [2015] 2 WLR 1593, [2015] AC 1619, Bailii Summary, WLRD, UKSC 2013/0193, SC, SC Summary, SC Video)
    A standard lease of plots on a caravan park, contained a probision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
    Held: The tenants' appeal failed . .
    - Cited - Lee v Showmen's Guild of Great Britain CA ([1952] 2 QB 329, [1952] 1 All ER 1175)
    Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.<br . .
    - Cited - Baker v Jones ([1954] 1 WLR 1005)
    There was a dispute within a weight lifting association, an unincorporated body, as to actions taken by particular members of the unincorporated body with funds of the association.
    Lynskey J says: 'The association, being an . .
    - Cited - Leigh v National Union of Railwaymen ([1970] Ch 326)
    . .
    - Cited - Jacques v Amalgamated Union of Engineering Workers ([1986] ICR 683)
    The rules of a Trades Union are not to be construed as if they were a statute but are 'to be given a reasonable interpretation which accords with their intended meaning; bearing in mind their authorship, their purpose and the readership to which . .
    - Cited - British Equity v Goring CA ([1997] ICR 393)

    Roskill LJ considered the 'inelegant draftsmanship' of a trades union's rules, saying: 'Some reliance was placed upon the differing and somewhat indiscriminate use of words such as 'motion,' 'resolution' and 'questions' in the various rules as . .
(This list may be incomplete)

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