Paramjit Bhogal (aka Paramjeet Bhogal) v National Education Union

This judgment sets out the reasons for my dismissal, on 20 May 2024, of an application by the Claimant for an interim injunction. The injunction sought was a stay of disciplinary proceedings brought against the Claimant, as a member of the Defendant trade union, pending a trial of his claim before this court seeking declaratory relief that he is entitled to legal representation at the appeal stage of those disciplinary proceedings.

In terms of evidence, I had a witness statement from Mr Bhogal, the Claimant dated 1 May 2024 and a witness statement from Ms Rachel Baxter, Senior Manager of the GS Support and Democratic Services department of the Defendant, dated 9 May 2024.

The Claimant is an educational psychologist and has worked as such for the last 27 years. He has worked predominantly for the Council of the City of Newcastle but also with a number of other local authorities. Since about April 2023, he has worked as a self-employed private/independent consultant for various local authorities.

Before working as an educational psychologist, Mr Bhogal worked variously as a teacher, advisory teacher, Ofsted inspector and Policy Officer.

Mr Bhogal was represented before me by Mr Chaffer, Solicitor Advocate of Hay & Kilner LLP.

The Defendant, the National Education Union (“NEU” or the “Union”) is a trade union that is the product of the amalgamation of the National Union of Teachers (“NUT”) and the Association of Teachers and Lecturers, which amalgamation took place from about September 2017 and completed on 1 January 2019. As at 2022, it had a membership of in excess of 445,600.

Before me the Defendant was represented by Ms Tuck KC, who inherited the (revised) Skeleton argument of Mr Brittenden KC. Mr Brittenden KC appeared before me on the first occasion that the application came on for hearing. On that occasion I adjourned the application to give Mr Bhogal an opportunity to file evidence in reply (if so advised) and because the listed hearing time was inadequate, not least given the service by the Union shortly before the hearing of a number of authorities, as well as Ms Baxter’s evidence, and which I had not had adequate time to pre-read.

I am grateful to all the advocates and those instructing them for the assistance they have given to me on this application.

The Claimant had been a member of the NUT since 1982 and thereafter was and is a member of the NEU.

In his own words, taken from his witness statement, Mr Bhogal has explained his position as follows:

He feels that the NEU is going through a period of change which started from the amalgamation in 2017/19 but which has “intensified” in recent years, He accepts that he does “challenge” the NEU but he considers that the NEU now is:

Further, he considers that:

The reference to his “experience” is as to the experience of the disciplinary process that I have referred to.

Before I turn to the facts of the disciplinary process, I briefly explain the framework of the NEU disciplinary process as a matter of its rules.

The Rule book of the NEU, effective from 6 April 2023, provides by Rule 22 (so far as relevant):

Appendix A to the Rule book provides as follows (so far as relevant):

National Appeals Committee

Confidentiality

The written procedures provided for by Paragraph 6 of Appendix A to the Rule book are as follows (with some editing to remove unnecessary detail). I refer to these provision as the “Disciplinary Procedures” or “DP”):

All proceedings shall be confidential save that:

On 15 December and 20 December 2023, Mr Bhogal was written to by the NDC secretary and the National President explaining and re-iterating that a complaint was being brought against him by Officers under Appendix A rule 3.3 of the Rule book.

The Preliminary Review Meeting (the “PRM”) took place on 15 January 2024. The report of the NDC full hearing, on 8 February 2024, also records points dealt with at or before the PRM.

Some of the main points that had arisen and which are recorded include the following.

The role of National Officers in bringing the complaint was set out. Five witnesses were said to have reported concerns about Mr Bhogal’s behaviour but they had been reluctant to take an individual complaint. The Officers had agreed to bring a complaint with the five members in question acting as witnesses. Mr Bhogal had questioned the Officers’ jurisdiction to act in this way but the NDC was satisfied that there was such power under Appendix A paragraph 3.3.

Time limits were considered, some incidents complained of took place more than 6 months previously but it was agreed that the complaint fell within the jurisdiction of the NDC/NAC as the incidents could be joined as an alleged pattern of behaviour over time. On this basis the exceptions to the time limits should apply and the witnesses should be asked to clarify timings of complaints at the hearing.

Three witnesses had asked to attend remotely but attendance in person was considered important but that position would be reconsidered if good reasons for remote attendance were put forward.

A further two allegations (or incidents) in respect of Mr Bhogal were allowed to be relied upon. They concerned (1) Mr Bhogal having contacted the headteacher of one of the witnesses, making a complaint about that person and purporting to do so on behalf of the NEU and (2) Mr Bhogal copying a letter about the NDC complaint to the two District 2 Executive members. Following these two incidents the Officers are recorded as having agreed to suspend Mr Bhogal pending the completion of the disciplinary process to protect the disciplinary process and the parties to it.

On 17 January Mr Bhogal had emailed the NDC secretary with a request the hearing be held in London and an implied request to submit late statements. On 19 January Mr Bhogal had emailed the NDC secretary requesting he be allowed to call more than 3 witnesses on the basis that there were 5 witnesses for the Officers (there being one joint statement from two members). It was decided that (a) the hearing would be in London to facilitate attendance by Mr Bhogal’s witnesses, as he had requested; (b) he would be permitted to submit up to four witness statements and up to three witnesses could be called in accordance with the arrangements for the Officers’ witnesses; (c) a timetable for evidence was set; (d) two witnesses would be requested to attend in person and (d) the timetable for the hearing would be revised to reduce the time for the Officers’ case and allow equivalent time allocation for Mr Bhogal’s presentation of his case.

In advance of the hearing, a point arose regarding the companion of the President on which the NDC made a ruling. Further Mr Bhogal requested that one of his witnesses should attend remotely due to childcare responsibilities and her just having started in a new post. This was refused on the basis that attendance of witnesses should be in person unless there was ill health and the hearing had been moved to London at Mr Bhogal’s request to assist attendance by his witnesses. However, the witness statement of the witness in question would be considered by the NDC in its deliberations.

The relevant hearing before the NGC took place on 8 February 2024. Mr Bhogal did not ask to bring a legal representative. He did however take a friend or companion, a Mr Roger King.

The Report sets out a summary of the representations made by Ms Rose, who presented the case on behalf of the Officers, and of the evidence. The three heads of complaint were those under Appendix A, paragraph 1, sub-paragraph (a) acts contrary to the Code of Professional Conduct; (b) acts contrary to the rule so the Union and (g) in any other way engages in conduct which brings injury or discredit to the Union.

The Report goes on to summarise the course of the oral evidence of witnesses and then the presentation of the case of Mr Bhogal and of his witnesses.

The NDC found (among other things) that (a) Mr Bhogal’s contact with the headmaster was an extremely serious breach of professional and union conduct for which Mr Bhogal had not given a credible explanation or excuse; (b) that Mr Bhogal had breached the confidentiality provisions if the Procedure/Appendix A in his letter to the General Secretary and the D2 Executive members dated 12 December; (c) that the tone of Mr Bhogal’s comments on a WhatsApp group were intimidating and that this was how witnesses perceived them; (d) that the panel was unable to come to a conclusion about an alleged incident between Mr Bhogal and a Mr Sam Makinde at Conference. In answer to a question from me Ms Tuck confirmed to me that the three matters that I have identified in (a)-(c) above were the sole incidents relied upon and found to have taken place by the NDC and that no findings were made against Mr Bhogal regarding alleged personal confrontations or events taking place on a face to face basis at conferences.

It concluded that the complaint under the three heads of Appendix A that I have earlier identified were all made out. It imposed sanctions of a reprimand and warning as to future conduct and suspension from the Union for a period of three years.

By letter dated 26 March 2024, Hay & Kilner LLP wrote to the NEU in respect of Mr Bhogal’s appeal against the decision of the NDC and enclosing, among other things, a six-and-a-half-page document setting out and called “Grounds of Appeal”. The letter went on to suggest a short directions hearing once the Union had filed its response.

The Grounds of Appeal were five:

In slightly more detail, the particulars under each Ground were as follows (in summarised form).

Ground 1:

Ground 2: see paragraphs (1) to (10) under Ground 1 which are repeated as matters frustrating Mr Bhogal’s expectations and which are said to amount to an abuse of process. In addition, it is said there was an uneven playing field because procedural issues were considered and documented where raised by the Union but not where raised by Mr Bhogal.

Ground 3: relying on the matters under Grounds 1 and 2, asserts that Mr Bhogal’s right to a fair trial under Article 6 of the European Convention on Human Rights was undermined such that the decision reached is “unsafe”.

Ground 4: a failure to give adequate reasons as to the basis of the decision; the decision was irrational, based on flawed reasoning and unreasonable in particular in (1) its ruling regarding the meaning of “continuing act”; (2) only taking into account the evidence of witnesses of the Union and not Mr Bhogal; (3) not referring in the report to a “sustained and angry outburst” from Mr Makinde, which led to a caution being administered to him by the NDC; (4) wrongly and irrationally reaching a view as to the credibility of the Union’s witnesses; (5) wrongly refusing to permit Mr Bhogal to include a key witness; (6) flawed reasoning by reason of reliance being placed on hearsay, opinion evidence of Mr Bhogal, witness body language and demeanour to determine credibility; (7) failing to consider why Mr Bhogal declined to enter into conciliation (which is said to demonstrate that the Union had “an agenda”); (8) following an unreasonable route to reach the decision and inadequately reviewing the evidence and failing to consider its weight; (9) giving disproportionate weight to written communications and not giving weight to the use of lobbying at conferences; (10) the report not being a true and accurate record of the hearing and not reflecting a conflict of evidence between two witnesses of the Union regarding the alleged incident concerning Mr Makinde.

Ground 5: The penalty was disproportionate given the failure to conduct matters in accordance with the rules of natural justice. Further no opportunity was given to Mr Bhogal to present mitigation.

By letter dated 28 March the NAC secretary wrote to Mr Bhogal confirming that future contact would be with him and not his lawyers. There was, it was said, no provision for legal representation within the Disciplinary Procedure, the process being “lay led”.

Following further correspondence, the secretary to the NAC wrote to Hay & Kilner LLP referring to paragraphs 9 and 25 of the Disciplinary Procedures in support of the conclusion that “There is… no provision for a member to be accompanied by a “solicitor or counsel” through the NDC/NAC procedures.”

The current proceedings were commenced by Part 8 Claim Form in the County Court. On the first hearing of the application for interim injunctive relief I transferred the proceedings to the High Court. The Claim Form was, wrongly, accompanied by Particulars of Claim. The Part 8 procedure does not provide for statements of case unless the Court orders them. In fact, the Particulars of Claim read more like a skeleton argument than a statement of case setting out facts anticipated to be disputed. I have ordered that no defence need be filed pending the court considering the matter further.

In summary, the claim is that natural justice requires, in the circumstances of this case, that Mr Bhogal is allowed to be represented at the hearing of the appeal before the NAC by a lawyer.

As regards the merits of the claim being brought, the position of the parties can be summarised as follows:

I should also make clear that there is no reliance on article 6 of the European Convention of Human Rights.

There are a number of points where the parties disagree on the underlying position. As regards that, unless the position is clear, I am unable to resolve disputed questions of fact and must assume the factual position to be as asserted by the Claimant. I turn to some of those matters.

Mr Bhogal asserts a concern that the findings of the NDC are such that, if upheld by the NAC, he may lose his job. This has been put in various ways: “The Claimant may face detriment, in his working life, up to and including the loss of his job and inability to practise his trade as a self-employed person, including consequent financial hardship” (Particulars of Claim paragraph 40(b)); “it may undermine my ability to get further work as a self-employed person, if I lose my job then I am going to face financial hardship” (witness statement paragraph 36); “I could lose my job as self-employed individual” (witness statement paragraph 47); “there is also a risk..for my career as a self-employed Education Psychologist” (witness statement paragraph 50).

As a general matter the Union makes the point that no closed shop operates. S137 of the Trade Union and Labour Relations (Consolidation) Act 1992 makes it unlawful for an employer to require any employee or worker to be a member of any particular trade union.

With regard to the job aspect, apart from an unquantified assertion of “risk” to obtain work as a self-employed Educational Psychologist, there is no concrete evidence of how real such risk is. Mere assertion (as, in a different context, assertion of a dispute as to a debt on which a winding up petition is based) is not in my view enough. The particular findings of the NDC do not in my judgment give rise to an inference that there is a real risk to the job prospects of Mr Bhogal if he loses his appeal in whole or part.

In the particulars of claim (paragraph 40(d)), part of the circumstances said to result in a requirement of natural justice that Mr Bhogal be permitted to have legal representation at the NAC hearing is the following:

Referring to the DP, Ms Baxter indicated that the disciplinary process is largely confidential (see Section G of the DP). Addressing the discretion to publicise more widely, Ms Baxter explains that:

In my judgment there is limited basis for Mr Bhogal complaining about the rules regarding confidentiality. First, he must be treated as having agreed to them. Secondly there is not an unfettered discretion to publish. The discretion is exercised according to principle and in this case is restricted as Ms Baxter has explained. Mr Bhogal relies upon publication as being a matter that will cause him damage and is part of or relevant to the serious consequences to him of findings and the decision of the NDC. In my judgment these points are overstated by him.

equality of arms and financial and legal resources of Officers bringing case

In the particulars of claim (paragraph 40(j)), part of the circumstances said to result in a requirement of natural justice that Mr Bhogal be permitted to have legal representation at the NAC hearing is a reference to “all the resources and machinery of the Defendant, including its finances and access to legal advice” and it concludes with:

As regards this, Ms Baxter in her witness statement explains that:

The significant point however is that the Officers were not represented by lawyers at the NDC hearing nor would they be able to at the NAC hearing.

This appears to be part of, or allied to, an argument by Mr Bhogal that the NEU disciplinary process is not “lay-led” as the NEU has asserted in correspondence. It seems to me clear from the evidence that there is no arguable case to the contrary of the NEU’s position. The Panel comprises lay persons, not lawyers and the NEU as “prosecutor” does not rely on lawyers nor does the relevant committee taken from the lay panel.

It seems to me relevant also to take into account the real scope of any appeal and the extent to which arguments might arise with a view to considering how difficult the legal points are that arise.

Mr Bhogal makes various complaints about the way in which the case was brought against him with regard to the allegation of the incident concerning Mr Makinde and as regards events said to have taken place at one or more conferences. As regards this however, first the NDC were unable to come to a conclusion regarding the Makinde incident. There is therefore no relevant appeal by Mr Bhogal in relation to this matter. Furthermore, it was confirmed to me that the only allegations made against Mr Bhogal by the NDC were (a) the allegation regarding his contact with the Headmaster of the school where a witness was employed; (b) the circulation of information about the NDC complaint to District Executive members to others and (c) the WhatsApp messages. Any allegations about what happened at conferences (annual conference 2023 and the Black Educator’s Conference) are not matters of appeal as no findings were made against Mr Bhogal in this respect.

As regards the WhatsApp messages, the Report records Mr King acknowledging (on Mr Bhogal’s behalf) that there were posts that should not have been made; Mr Bhogal is recorded as accepting that the posts could be seen as “intimidating” and it was accepted that it was “foolish” to have put the messages on the WhatsApp forum. This record has not been challenged.

As regards the contact with the headteacher of the school at which the witness was employed, the Report records Mr Bhogal expressing regret to the NDC about the incident on more than one occasion and again, the Report is not challenged on this point.

I did not detect any disagreement between the parties as to the principles the court should apply in deciding whether or not to make an interim injunction. The principles are those set out in the well-known American Cyanamid case ([1975] AC 396). First, the person seeking the injunction must demonstrate that (1) there is a serious issue to be tried, that is that they have a real prospect of succeeding in their case for a permanent injunction (or equivalent relief) at trial. If that hurdle is overcome then the court must consider whether granting or withholding the injunction is most likely to produce a just result by reference to the further questions of: (2) whether the Claimant would be adequately compensated in damages were they to win at trial but not be granted an interim injunction in the meantime. If damages would be adequate compensation then normally no interim injunction should be granted; (3) if an interim injunction were to be granted but the claimant loses at trial, would the Defendant be adequately compensated in damages (if so, normally the interim injunction would be granted); (4) if such damages would not be an adequate remedy for either side, or there is a doubt about that, then where does the balance of convenience or the balance of justice lie? The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other (see e.g. National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1405).

The first questions are one of construction: do paragraphs 9 and 25 of the DP apply to NAC appeals and, if so, what do those paragraphs provide for? Tied into that is the third question, which is whether the court should imply a term as propounded for by the claimant.

Again, the principles of law were agreed. As a general matter Trade Union rules are to be construed applying the same principles as apply to, for example, commercial contracts, wills or pension schemes. The particular circumstances in which Trade Union rules came to be made and applied means that there are special factors relevant to that context which have to be taken into account when applying the general principles.

For present purposes, the general principles of construction can be shortly stated by reference to the summary given by Carr LJ (as she then was) in in Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] EWCA Civ 1645 (“Network Rail”) at [18] and [19], which I gratefully adopt:

In the Trade Union rule context there are two particular matters to bear in mind: first that rules are to be construed with reference to their intended audience and secondly, that the rules may not exhaustively state the position: matters of custom and practice may supplement the rules and/or their construction. In short, they are not be construed literally or like a statute but so as to give them a reasonable interpretation bearing in mind their authority, their purpose and the readership to which they are addressed. In other words, as regards the last point, the focus is on what the reasonable trade union member would understand the words to mean.

In the specific Trade Union rule book context, in Kelly v Musician’s Union [2020] EWCA Civ 736; [2020] IRLR 809, Singh LJ provided guidance as to how the general principles are to be applied in the Trade Union context:

As regards the implication of terms into contracts, and bearing in mind the specific Trade Union context of the role of custom and practice, the general proposition is that terms will only be implied into a contract where it is necessary for such term to be implied as a matter of business efficacy and/or the term sought to be implied is obvious. Again, I gratefully adopt the summary of Carr LJ (as she then was) this time in the case of Yoo Design Services Limited -v- Iliv Realty Pte Limited [2021] EWCA Civ 560 at paragraph [51]:

Mr Chaffer accepted, at least implicitly, that on a true construction of paragraphs 9 and 25, legal representation as such is not permitted at hearings covered by paragraph 25. It follows that there cannot be any room for an implied term as to a right to representation (subject to what I say below regarding the interplay between Appendix A and the DP).

The Claimant’s case is that paragraphs 9 and 25 only apply to proceedings before the NDC. They appear in those parts of the DP dealing with the NDC and not the NAC. Further, as a matter of common sense, what is required at an appeal tribunal is different to what would be required at a first instance tribunal.

As a matter of construction, it seems to me not only that the submissions on the NEU on this point are to be preferred but that there is no real prospect of success in an argument to the contrary.

First, the reference in paragraph 9 is to a “friend/companion can be engaged to assist throughout the process (see paragraph 25).” In my judgment (a) the extent of the ability to engage a friend or companion is delimited or explained by paragraph 25 but (b) that any limitation applies “throughout the process”. Paragraph 9 is part of a document called “New Disciplinary Procedure”. The overall heading, to which parts A-J (or possibly A-K, as there appear to be two parts “I”) are subordinate, is “Disciplinary Process”. It seems to me clear that the “process” referred to in paragraph 9 is clearly the whole “Disciplinary Process”, including that from the moment of first complaint through to that of determination of any appeal (by complainant or by member disciplined at the NDC stage).

Secondly, it is clear that paragraph 25, taken alone and by its terms, has two limbs. First, and permissively, it provides that a member, the subject of the disciplinary proceedings, may be accompanied to a Full NDC hearing by a friend who shall be a member of the Union with the right to call and examine witnesses. Secondly, it limits attendees at Full NDC hearings to the parties, their friends and their witnesses. The reference to “Full” hearings comes from the name given to part C of the DP. In terms, therefore, the permissive and the restrictive limbs apply to a “full hearing” before the NDC. However, paragraph 9, as said, extends paragraph 25 to cover the entire disciplinary process.

Thirdly, that there are other provisions within a sub-section of the DP which apply to one or more other sub-sections is clear. For example, paragraph 28 (dealing with all parties abiding by the Code of Professional Conduct “throughout the process”) clearly applies not just to Full Hearings before the NDC as dealt with in sub-section C (where paragraph 28 is located) but, as the paragraph says, throughout the “whole process”. Similarly, paragraph 7, requiring the Panel (in immediate context those members of the Panel constituting the NDC dealing with a PRM but more generally surely also applying to those members of the Panel comprising an NDC at a full hearing or an NAC), to take account that freedom of speech includes the right to challenge and contest others’ views etc. must apply throughout the process where the Panel is involved and thus not just at the initial complaint stage (where paragraph 7 is located). It would also apply at the PRM stage (which is covered in sub-section A and sub-section B) and the full hearing stage before a NDC (as well as at hearings before an NAC).

Fourthly, and contrary to the Claimant’s submission, there appears little common sense behind a prohibition on legal representation at NDC level (which the Claimant accepts and positively asserts) but an ability to be legally represented at NAC level. At NDC level of fact finding the practicalities can be that legal representation is more valuable than at appellate level, particularly as regards cross-examination of witnesses and the like. In any event, one would have thought it would be no less valuable.

If, as I have decided, the prohibition in paragraphs 9 and 25 applies to hearings before the NAC, Mr Chaffer’s next submission is that in the disciplinary context there cannot be an absolute prohibition by contract against legal representation if that is what natural justice requires in the particular case. The NEU says on the other hand that the absolute prohibition can admit of no exceptions and is determinative.

On this point I consider that the claimant has a case with a real prospect of success. This is on the basis that there is an arguable case with a real prospect of success either that where natural justice requires legal representation to be granted, then that will override any contractual provision preventing legal representation (i.e. as a matter of law), or that in this case the DP are subject to the NEU Rulebook applying the rules of natural justice to disciplinary proceedings and which limit the provision to the contrary that the DP can lay down. On the latter basis, the DP have to be construed with Appendix A of the NEU Rule book such that, where natural justice requires legal representation, it is permitted OR the DP are in effect ultra vires to the extent that they negate such a right conferred by Appendix A.

As regards the position in general, the Union relies upon Pett v Greyhound Racing Association Ltd (No 1) [1968] 1 QB 125 (Court of Appeal) and Pett v Greyhound Racing Association Ltd (No 2) [1970] 1 QB 46. The case concerned disciplinary proceedings where the rules were silent about legal representation. On an appeal against an interim injunction preventing a disciplinary hearing going ahead unless the trainer in question was allowed to be represented by lawyers, the Court of Appeal dismissed the appeal on the basis that there was a right to appoint an agent and no reason why the agent could not be a lawyer. However, at the trial of the claim, Lyell J held that there was no such right. Referring to dicta in University of Ceylon v Fernando [1960] 1 WLR 223, he considered that it was difficult to say that legal representation before a tribunal was an elementary feature of the fair dispensation of justice.

I am not persuaded that for the purposes of the consideration of “a serious issue to be tried”, it clearly follows that there is no case at all that in some circumstances natural justice may require legal representation to be granted to an accused in the context of a disciplinary tribunal. Certainly, in the University of Ceylon case, the board said:

When I discuss later cases in this judgment, it becomes apparent that more recent cases have recognised that natural justice can, in certain circumstances, require legal representation to be permitted at internal disciplinary hearings.

The second question, however, is whether an express prohibition in the relevant disciplinary rule book prevents any right to legal representation in all circumstances. Certainly there are suggestions that this is correct in dicta to this effect in the Pett case and others at about that time.

It is clear from Enderby Town Football Club v Football Association Ltd [1971] Ch 591, that the requirements of natural justice were not then thought to require, in any circumstances, legal representation in disciplinary proceedings but were restricted to the three matters set out in Ceylon University v Fernando [1960] 1 WLR 223 at 232, namely (1) that the person accused should know the nature of the accusation made; (2) that he should be given an opportunity to state his case and (3) that the tribunal should act in good faith. One sees that from the judgment at first instance of Foster J (at 597F-598). In my judgment it is also the basis of the decision of Fenton-Atkinson LJ at paragraphs [7] and [8] of his judgment at 609A-D. It is also a possible interpretation of the judgment of Cairns LJ (i.e. that the focus is that natural justice does not require legal representation at internal tribunal level, which is why there is nothing wrong in disciplinary rules excluding it). So far as Denning MR is concerned, he would clearly have accepted (as was conceded by Counsel, Sir Elwyn Jones (as he then was) for the Football Association) that if such a rule is contrary to natural justice, it would be invalid. Ms Tuck, whilst not formally making a like concession at this stage, recognised the force of such a point. As Lord Denning MR discussed, the position would then be that, in effect, the rules of natural justice would override whatever is in the contract. In my judgment, later cases that I was shown (as I shall explain) do tend to demonstrate that the principles of natural justice are recognised as being capable of giving rise to a right to legal representation in the domestic disciplinary context, albeit only in certain circumstances and not as a blanket right in all circumstances. By way of example, I refer to the passage of Lord Goff’s speech in the Ex P Hone case (see below) which appears to confirm that natural justice may in certain circumstance require legal representation to the accused to be permitted in disciplinary proceedings and the decision in AB v The University of XYZ (also considered below).

Furthermore, there is, in my judgment, a real prospect of success in the alternative argument (although perhaps not clearly articulated by Mr Chaffer), that in this particular case, natural justice is a principle that expressly applies to both NDCs and NACs by virtue of paragraphs 3.4 and 4.6 of Appendix A to the Rule book. Whether by reason of the description of natural justice as confirming a “fair opportunity to present” the accused’s case or as simply being a component of natural justice in certain circumstances, it seems to me that there is an argument with a real prospect of success that these paragraphs apply and override anything to the contrary in the procedures created by the Executive under paragraph 6.1 of Appendix A to the Rule book (in this case, being the DP). As I have said, it may be that this result is achieved either as matter of construction or as a matter of vires of the DP.

Thus, although I consider that the DP expressly cover NAC hearings and that they do not permit legal representation, in my judgment there is an argument with a real prospect of success that if natural justice would otherwise require legal representation, the relevant paragraphs (at least apparently) to the contrary under the DP cannot preclude the same.

It follows that I do not need to consider further submissions of Mr Chaffer to the effect that there must remain a “discretion” to permit representation (relying on other reasoning of Lord Denning MR in the Enderby case) or that there is a “residual discretion”, relying on Kulkarni v Milton Keynes Hospital NHS Foundation Trust [2008] EWHC 1861 at paragraphs [21]-[22] (being the first instance decision, the subject of a successful appeal). In the latter case I note that the suggested discretion arose from an implied term arising from trust and confidence of the relationship between the parties. There is no such relationship of trust and confidence here and in any event I do not consider there is room for an implied term contradicting the express terms of paragraphs 9 and 25 of the DP. As regards discretion generally, again I find difficulty in an argument that there is a discretion given the express terms of the relevant paragraphs of the DP that I have identified. However, and as said, I do not need to consider these points having come to the conclusion that there is a serious issue to be tried on the other points.

However, I turn next to the question of whether there is an argument with a real prospect of success that natural justice does require legal representation at the NAC on the facts of this case. If it does not then it does not seem to me that any arguments that a refusal to permit legal representation, as a matter of discretion, would be irrational or unreasonable and in breach of contract can have a real prospect of success.

As I have indicated, I consider that current case law does support the view, such that there is a serious issue to be tried, that natural justice is capable of requiring an accused to be granted legal representation before disciplinary tribunals in particular fact situations. These situations will however be out of the norm.

In R v Home Secretary ex p Tarrant [1985] 1 Q.B. 251, the Court was considering judicial review of what was said to be a decision to refuse legal representation where there was said to be a discretion to permit the same. The context was hearings before the boards of visitors as regards alleged breaches of Prison Rules by convicted inmates, two of whom were charged with mutiny. The decision was quashed (requiring the matter to be reconsidered).

However, as Webster J pointed out, it was contended that the discretion ought to have been exercised in favour of the grant of legal representation. He therefore set out the considerations that a board of visitors should take into account in deciding whether or not to grant legal representation. Although in terms dealing with a discretion, it seems to me that these factors are, or are at least arguably, relevant in considering whether natural justice requires legal representation in a particular case. The list (expressly prefaced by guidance that the list is not necessarily exhaustive) was:

In applying the test to the facts of the case Webster J considered that as regards the charges of mutiny, legal representation should have been permitted but that as regards the other three prisoners, it could not be said that legal representation should have been permitted and he would remit that matter back to the persons exercising the discretion. Kerr LJ spoke in largely similar terms. The discretion to permit legal representation should, he said, always be exercised in favour of the prisoner if rule 49(2) required it. Rule 49(2) provided in effect that a prisoner charged with an offence under the Rules must be given a proper and full opportunity of presenting his case.

The matter was addressed again by the House of Lords, in R v Maze Visitors, ex p Hone [1988] 1 AC 379. This again was a case about prisoners’ rights to legal representation before boards of visitors. Lord Goff, with whom the other Lords agreed, said the following:

In AB v the University of XYZ [2020] EWHC 2978 (QB), Mr Hugh Southey, then QC now KC, had to consider, after a trial, the issue of legal representation in the context of university disciplinary proceedings. Among other points that he made were the following:

In my judgment the test is therefore whether, applying the Tarrant criteria (and any other matters which are relevant, including e.g. the remarks of Lord Hope in G and see also Harvey on Industrial Relations Employment Law at paragraph [3418] referring to the benefits of speed, informality, self-determination and privacy of internal procedures being a factor weighing against permitting legal representation), there is an argument with a real prospect of success that legal representation for Mr Bhogal is required before the NAC. In my judgment, there is not.

Using the numbering of the criteria as in Tarrant:

Standing back from the detail, the most powerful factor in my judgment is that this is a fairly ordinary disciplinary case. As the cases make clear, a situation where natural justice requires legal representation is far from being the norm in cases of an internal disciplinary dispute procedure. In this respect, and as I have said, the cases are replete with the undesirability of bogging down internal disciplinary procedures with an overly legal complexity (see e.g. Fenton-Atkinson LJ in Enderby at [6]-[7], pg.608G-H; dicta of Lord Hope in the G case).

In conclusion, I do not consider that there is a seriously arguable case with a real prospect of success that natural justice requires Mr Bhogal to be allowed legal representation in this case at the NAC hearing. This is because, although I consider there is (at the least) a serious argument that in certain circumstances natural justice might require an accused member facing disciplinary proceedings to be permitted legal representation, the facts of this case are nowhere near the sort of factual situation where such circumstances might arise. Such circumstances, in the particular context of union membership, are likely to be wholly exceptional.

In his oral submissions Mr Chaffer, in my judgment, rightly, did not dwell on this point. The correspondence speaks for itself. There was no waiver of any right to refuse legal representation or of any prohibition of legal representation. Nor was there any agreement that legal representation at a hearing was permitted. The NAC accepted grounds of appeal drafted and sent by lawyers but immediately made clear that they would be communicating directly with Mr Bhogal as regards the NAC process.

The parties are agreed that damages would not be an adequate remedy for either side were an injunction to be granted/refused.

In my judgment the balance of least injustice requires the NAC hearing to be permitted to proceed without requiring legal representation, even if I am wrong about there being no seriously arguable case that legal representation at the NAC should be allowed to Mr Bhogal.

I do not accept that allowing legal representation amounts to “micro-managing” the proceedings (contrast cases where what is sought to be regulated is matters such as the evidence to be called or the inquiry/investigation process to be carried out), a matter that the courts have decried. However, I do consider that the process should, in any event, be allowed to continue.

Mr Bhogal’s underlying complaint is that the NDC has breached his contractual rights in the manner it conducted itself and/or that it has reached the wrong conclusions which are not open to it. Instead of attacking those conclusions in a court of law, as he is entitled to so, he has instead decided to proceed with the NAC process, but to seek legal representation at that hearing. If, despite legal representation, he loses that appeal in any material respect then he may well seek to challenge the underlying process in the courts. As I have explained, it seems to me that in effect the benefit of legal representation can be achieved by written submissions which he can speak to or lodge in advance.

Further, if the NAC continues and reaches a conclusion, any court will have the benefit of the reasoning of the NAC and its views on the points of appeal currently raised and it may well be clearer what issues are in reality issues. As is clear from the grounds of appeal, it is difficult to see how some of them have any merit (for example, a complaint about non-disclosure seems odd when Mr Bhogal himself drew the attention of the NDC to the matter that he says was not disclosed). It will be clearer whether legal representation was an issue causing problems and in relation to which grounds of appeal. Further, the reality is that it is more likely that any court attack on the NAC decision will not be on the procedural question of whether legal representation as permitted but on the underlying legal arguments as to whether the NDC decision was correct or not (see generally comments of Beatson J (as he then was) in Makhdum v Norfolk and Suffolk NHS Foundation Trust [2012] EWHC 4015 QB at paragraphs [52]-53]) and Al Mishlab v Milton Keynes Hospital NHS Foundation Trust at [19]:

I do not consider that there is a serious issue to be tried under limb 1 of the American Cyanamid test and would also have found that the balance of convenience lay in not enjoining the continuation of the proceedings until trial (or, even, unless legal representation were permitted). Accordingly, I dismissed the application for an interim injunction.