The trial is over – now we must wait to find out if Mike’s case against Labour was proved

Last Updated: October 4, 2020By Tags: , , , , , , , , , , ,

The arena: The lies Labour used to expel one member were explored at Bristol Civil Justice Centre.

Well, I had my day in court – and it was a long day.

So long that the judge deferred his decision. Personally I have a feeling that he was always going to have to do that; there were a lot of thorny arguments and at least one major issue of national law to consider… and we talked all day.

I need to thank everybody who came to support me: Mrs Mike, Sean, Neil, Josie and the gentleman from Bath who had to leave a little early and whose name I didn’t obtain. The court was filled to capacity! – although in these days of Covid-19 social distancing, that means there were eight people in the room.

This report aims to provide a summary of the evidence that was heard but is likely to omit certain aspects because I was unable to take notes.

My aim going in was to show that the Labour Party’s investigation into allegations of anti-Semitism against me, that led to my expulsion for actions likely to bring the organisation into disrepute, was critically flawed and that the resulting verdict against me was therefore unsafe and could not be upheld.

To achieve this, I wanted to highlight several issues. My discussion of these will have to be lengthy and may be off-putting to some of you, so I propose to put highlighted, important points – bullet points, if you like – in bold. If you want just the gist, skip through these and you’ll get a good idea of what happened, while the full information will be available to those who want it all – and to anybody who wants to come back to it.

My first point was that the party’s suspension of my membership did not follow its own rules/procedures: the letter I received denied me the right to participate in any party activities at all for the period of my administrative suspension (that is, suspension while the investigation was ongoing, with no guilt assumed), while party procedures should have allowed me the right to take part in activities as an ordinary member including branch meetings and internal elections.

The prohibition on any activities was observed strictly by my local party. Labour’s representative in court tried to argue that I had not made any complaint at the time, which was hardly persuasive as I wasn’t aware that I was permitted to do so, and of course the prohibition would have been in effect while my complaint was being processed so I would still have been denied my rights even as a suspended member for a period of time. He also said that the proper conditions of my suspension were in the small print at the bottom of my suspension letter – but that small print appears at the bottom of all such letters and was considered to be superceded by the prohibitions in the letter itself.

So I reckon that’s proved.

Next I said that the party’s investigation failed to follow its own established procedure. To establish this, I pointed to a document entitled Recommendations of the NEC Antisemitism Working Group which I found embedded in a Huffington Post article.

I said in my statement of the case:

The Rule Book, Chapter 6, Clause I.1.A states: “The General Secretary or other national officer shall investigate and report to the NEC on such investigation.”

“Recommendations of the NEC Antisemitism Working Group” elaborates on this procedure: “The Investigating Officer reviews the information provided and applies a set of tests to determine whether, on the evidence provided, there is a prima facie breach of the Party’s rules.” This did not happen in the Claimant’s case.

“In almost all cases where the evidence is documentary (social media/email), the respondent will be provided with all the evidence which has been used to make the decision to take further disciplinary action along with a set of questions which they are asked to respond to within 14 days.” The Claimant received a printed copy of the CAA smear piece and notice that his membership had been suspended. The Claimant received no questions.

“Once these answers are provided, the Party will normally have enough information to conclude the matter either by ending the investigation or by writing a report to go to the next quarterly meeting of the Disputes Panel.” This did not happen as the Defendant had not requested any evidence from the Claimant and could not legitimately either end the investigation or send a report to the Disputes Panel.

“In rare cases, the respondent’s answers require further interrogation; this may be done via an interview or more likely via further correspondence.” The Claimant has never received any questions about this case by mail or email correspondence so the Defendant received no answers that required further interrogation. But the Claimant was still summoned to an interview in October 2017.

“The NEC’s Disputes Panel consider a report on the matter at their next meeting, which may be as many as 17 weeks away, and decide whether there is a case to answer and therefore refer the matter to the National Constitutional Committee (NCC) to be dealt with under their rules… This generally takes the form of a hearing.” This consideration was carried out, not as part of the main agenda, but under “Any Other Business”, meaning no papers were provided to members before the meeting and they relied on a verbal report from the IO that was prejudiced against the Claimant.

Labour’s representative tried to claim that this procedure was not in effect at the time of my investigation and that it only came into effect after the meeting of the Labour Party Working Group on May 22, 2018. This was a false statement.

But it threw me for a moment. I said that it was a discussion of the process that took place at that meeting, which was why the document had that date on it. You can see this by visiting the HuffPost article. Unable to find the words that showed it was the current procedure (and you’ll find that they were right in front of me) I pointed out that if that procedure wasn’t in place, Labour’s representative was saying there was no set procedure at all, which laid the process against me open to my claim that it was open to any kind of corruption party officers felt like committing.

In a rush to respond, though, I missed the relevant words in the document that were right in front of me: under the heading “The Current Process” are the words “Currently, when a complaint arrives alleging antisemitism, it is sent to the complaints teamwhich sits independently…” and so on. The document does refer to the procedure in place at the time of my investigation and the judge – having been referred to the document, will see that.

My statement continued as follows:

The matter was then handed to Labour’s National Constitutional Committee, which received evidence from Labour’s NEC and requested a statement from the Claimant. The Claimant contacted the NCC, stating his understanding that the NEC’s investigation had not followed its own rules – but received a reply stating that the NCC would not accept the claim as it “is only concerned with the procedures to be adopted after a charge is presented to it. It is entitled to act on the basis that the charge is properly brought before it and any complaints regarding the conduct of the investigation should be addresses [sic] to the General Secretary.” The NCC therefore ignored the fact that the evidence in the Claimant’s case was false and encouraged it to bring a false verdict against the Claimant.

Labour’s representative agreed that this is the situation, and wanted to know why I had not complained to the NEC instead. I had to point out that party members are not offered that option.

Instead, as I put it in my statement:

The Claimant had to wait until January 2019, when IPSO brought in its verdict that The Sunday Times had published false information about him based on information from the Defendant, before contacting Labour Party General Secretary Jennie Formby to complain that the charge against him was not properly brought.

Take note of the response I received:

Ms Formby initially failed to reply, then – when the Claimant stated that he was considering court action – stated that she had passed it to the party’s then-legal advisor, Gordon Nardell. He never responded to it.

It seems clear to me that I would have received no response to any complaint; Labour would have ignored it. Labour seems to have a habit of ignoring inconvenient correspondence, as you will see further down this article.

This was the one part of my case that left me feeling uncertain, after the hearing. Having found the information that shows I was right and Labour’s representative was wrong (I’m being charitable in avoiding the suggestion that he was lying), I am satisfied that my point is proved.

There was a further discussion – of my complaints about the NCC hearing, which I described as a “kangaroo court”. Labour’s representative wanted to know why I had not made these complaints clear before, so I had to point out that there is no appeal against a verdict by an NCC panel.

Why hadn’t I written an article about it? he asked – so I pointed out that I had. Here it is, published on the same day as the hearing. I said I did not reproduce it in evidence because I provided the relevant information elsewhere.

The next question was obvious: where? It was in the case statement – a more-than-40-page-long document providing as full a history of the case as I could, that was part of my original evidence bundle for this court case. It states:

“I attended a hearing of my case – although I dispute that it could really be called that – before a tribunal of Labour’s National Constitutional Committee (NCC) on November 13, 2018. It was nothing more than a “kangaroo court”.

“The tribunal’s chairperson claimed to have read both the case against me and my own defence, but seemed completely incapable of understanding or accepting my arguments, which defeated the party’s (as you have seen, above).

“Labour sent a representative to present the party’s case, but this person knew nothing about it – as I discovered when I tried to question her about it. It seems my evidence was ignored because “This is not about evidence. It’s about the impact in the public domain.” As far as I am concerned, that was an introduction of a new claim by the Labour Party, which should not have been permitted under party rules because I had not been given any time to prepare a defence against it.

“Other excuses included: “You’re going into technicalities” and “That is not relevant.”

“At one point the presenter actually said: “Whether your comments are anti-Semitic is neither here nor there.” Yet the accusation against me was of anti-Semitism.

“I was not allowed to mention any evidence referring to Jackie Walker at all, despite the fact that the Labour Party had hung much of its own case on evidence referring to her.

“Most tellingly, I was told: “This is about perception… It’s about how this is perceived by the Jewish community.”

“Time and again, the tribunal’s chairperson interfered to stop me from conducting my case.

“When the presenter and the tribunal’s members had a chance to question me on my defence, they did not touch upon my evidence at all; they only wanted to criticise me for discussing internal Labour Party matters in a public forum. I pointed out that the matters I had discussed were in the public domain and that, as a journalist, I had a duty to ensure that these matters of public interest were not suppressed. This response fell on deaf ears.

“The verdict was that “on the balance of probabilities, the charges are proved”. No supporting reasons were given at the time.

“But we have information from the party’s letter to me, confirming the verdict, dated November 16, 2018 – three days later.

“It states: “Upon the balance of probabilities the charge was proved for reasons including:

  • “It was not disputed that you were responsible for the posting the content that the NEC claimed breached Labour Party rules;

  • “A reasonable person would find the posted content, that is the basis of the NEC’s charge, to have the propensity to cause offence, be regarded as abusive and make some feel discriminated against;

  • “In posting the content you breached the Labour Party’s Antisemitism and other forms of racism code of conduct, Social Media Policy and Member’s Pledge in appendix 9 of the Rule Book.

“Two of these reasons may be dismissed at once: I did indeed write the articles and never disputed that I did. That is the only part of the judgement that the NCC got right. The second – that my articles had “the propensity to cause offence, be regarded as abusive and make some feel discriminated against” – had not been mentioned on the NCC’s charge sheet and therefore represents a new charge against me, in support of which no evidence had been brought at the hearing – nor should any have been permitted, as it is against party rules to bring fresh charges or particulars without the consent of both parties.

“The other reason is demonstrably false. In posting the content, I could not have breached Labour’s code of conduct, Social Media Policy and Member’s Pledge because none of them were in Labour’s Rule Book when I posted my articles. In making the claim that I did, Labour is itself in breach of its contract with me as a member.”

I was able to provide further verbal evidence about this in court, prompting Labour’s representative to question why I had not provided documentary evidence. I had to point out that no such documentary evidence existed as I was reporting a verbal exchange in the Labour NCC hearing – and that I was giving evidence in a court trial at that very moment.

This led to a rather tense moment when I turned to Labour’s representative and said (and I’m paraphrasing again), “Because if you are calling me a liar, sir, I am quite happy to go on the witness stand and repeat myself on oath.”

He shut up about it. But he did ask why I had not complained about the NCC hearing to Labour, forcing me to repeat the fact that there is no appeal against an NCC verdict. After the hearing I checked my correspondence and I did indeed write to Labour’s then-general secretary on January 17, formally requesting that the NCC decision be reversed as the grounds on which it was made had been proved false by then. She did not reply.

There was also a discussion of the relationship between the second reason given for finding the charges against me proved, and the actual charge.

The charge said: “Michael Sivier engaged in conduct prejudicial and/or grossly detrimental to the Party in breach of:

“i. Rule 2.1.8 of the Labour Party Rule Book 2018 and/or

“ii. The NEC Code of Conduct Rule Book Appendix 9 Paragraph 2 and/or

“iii. The NEC Code of Conduct Rule Book Appendix 9 Paragraph 3


“Mr Sivier has repeatedly posted content propagating the conspiracy that secretive networks of Jews control and have undue influence over government and other societal institutions. He uses language that is dismissive of antisemitism and that denies Jews the right to self-identify as they wish. This falls fairly and squarely within the IHRA definition of antisemitism, which the Labour Party has adopted. Such conduct falls substantially below the standards required of Labour Party members and his behaviours… amount to a course of conduct that is prejudicial and/or grossly detrimental to The Labour Party.”

But the reason given for finding the charge proved was, “A reasonable person would find the posted content, that is the basis of the NEC’s charge, to have the propensity to cause offence, be regarded as abusive and make some feel discriminated against,” which was not mentioned in the charge at all.

This led to a convoluted discussion of the charges against me, in which Labour’s representative claimed that I was not accused of anti-Semitism and the NCC did not find against me on that basis.

To this, the judge responded (and I have to paraphrase here because I can’t remember it perfectly): “If he was not expelled for anti-Semitism, why is every particular of the charge an accusation of anti-Semitism?”

And I pointed out: “If this was not about anti-Semitism, then why has my reputation been trashed, nationally and internationally, as an anti-Semite?”

The conversation developed to a point where the judge asked, (and I’m paraphrasing again), “Why was Mr Sivier expelled, then – for possibly upsetting people?”

To this, the short reply was, “Yes.”

Next: the party failed to honour a Subject Access Request (SAR) I made in the belief that the party had divulged information about me (whether accurate or false makes no difference) to third parties without my knowledge or permission. This was after two stories appeared in newspapers, referring to Labour’s case against me. When the SAR was finally honoured, more than two years after I made it, I discovered that the party had withheld information that I could have used to stop its proceedings against me. This was admitted by the Labour Party so the matter was proved before the trial began.

However, Labour tried to excuse itself by saying it had received a large number of SARs at the time and had entered into an agreement with the Information Commissioner’s Office (which regulates the law on this) on its handling of them.

I was able to point out that my correspondence with the ICO suggested that no such agreement had been made when I submitted my request and that it was likely the agreement was made because of my request.

I also pointed out that when the SAR was finally honoured, despite the fact that the response was incomplete (it failed to include the report to Labour’s NEC on my case, for example), it did include an email exchange regarding a complaint I made about the Twitter behaviour of two Labour MPs, Wes Streeting and Anna Turley. Both had discussed my appearance in the Sunday Times article and expressed the opinion that I was clearly an anti-Semite and should be ejected from the Labour Party.

The internal correspondence stated that, if I mentioned this at my NCC hearing, “He will rightly say it is impossible to have a fair hearing if his case has been discussed publicly by senior party members, and we won’t be able to apply any sanction without it being subject [the remainder has been blacked out].”

But an email sent to me by ‘Labour Complaints’ states that “the matter you describe does not amount to a breach of the Labour Party rules and this will therefore not be investigated further by the party”. This discouraged me from bringing the information to my hearing in evidence. It seemed clear that it would not be accepted.

So in failing to honour my SAR, Labour deprived me of valuable evidence that I could have used at the NCC hearing. It seems clear to me that this must have been intentional, in order to secure a verdict against me at that hearing.

There was a discussion on the relevance of this – a data protection matter – to the case and to my claim for damages, and I had to explain that it did have a bearing. The relevant words were in Labour’s internal correspondence: “He will rightly say it is impossible to have a fair hearing”.

So I think I made a strong point there.

Finally we come to the biggest talking-point of the day, and the one that could have implications for national law:

I said that a data manager (or several) for the Labour Party leaked information about me to the press – firstly the fact that my membership had been suspended for an investigation to take place, which the press learned before I did; and again after false evidence about me was heard by Labour’s National Executive Committee. This was a breach of Labour’s contract with me because, as a member, I am contractually obliged to share my information with the party and it is contractually obliged to follow the legal requirements of the Data Protection Act currently in force, in its use of that data. I said it did not matter which officer of the Labour Party had leaked the information – as ultimate manager of my data, the organisation itself had to take responsibility for the breach.

The judge wanted to know how this was relevant to my demand for compensation and I said that the publication to many thousands of people of false information that I was an anti-Semite had blackened my name, ensuring that I was unable to get a fair hearing of my case. This led to a wrongful verdict against me and that is why I deserved recompense.

My statement provides the relevant information. Brace yourself, because this is quite long-winded stuff:

“On May 3, 2017, the Defendant passed data about the Claimant to a third party, namely a reporter for the Western Mail, in breach of its rule on Data Protection at Appendix 2 1.J.ii of both the 2016 and 2017 Rule Books, its own guidelines on Data Protection, and the Data Protection Act 1998 (the version of the Act in force at the time) s.10, and Schedules 1, 2 and 3. The Claimant knows this because the reporter telephoned him before he had seen the email from the Labour Party.”

He phoned me a whole day before I had the email. I know this because I received my notification around 4.15pm on May 3, 2017, and the article appeared in the Western Mail for that day. The Western Mail is a morning newspaper.

Labour’s representative questioned whether the reporter had received his information from the Labour Party because the only reference to my suspension is, “The candidate [I was up for election to Powys County Council at the time] said he had not been threatened with disciplinary action by the Labour Party.”

I replied that I was given an inkling because the reporter’s first words to me (after introducing himself) was “How does it feel to be suspended by the Labour Party?”

Again, Labour’s representative wanted to see documentary evidence of this – again casting doubt on my truthfulness – and, again, I had to point out that I was giving evidence in a trial in a UK court – of a verbal conversation.

Ah, but – he said – the report quotes extensively from the smear piece against my by the Campaign Against Antisemitism. He could have got his information from there and simply be asking me whether Labour had taken action over it. I had to point out to him that, when I did receive my suspension letter, the CAA article was reproduced as the evidence used to justify suspending my membership and it is reasonable to conclude that Labour sent it to the reporter as well.

There was also the question of how the reporter obtained my landline telephone number, as I am not in the book and I am very careful about who receives my contact information. Labour’s representative came back with a comment about the arcane methods used by reporters, so I gave him a rather pointed reminded: “I am a reporter of more than 26 years’ experience. I know very well the methods reporters can use.” I went on to explain that their favourite is a straight line between two points – in this case, between information from the Labour Party and me. The simplest explanation of how he had the information is most likely to be the correct one.

Labour’s representative had one last try: if he had received his information from the Labour Party, then why did he write that I said I had not been threatened with disciplinary action when he could have said straight out that my membership had been suspended? The answer to that was obvious: if he had received the information from a party officer before the suspension had taken place, he did not know that it had. Suppose the decision was reversed at the last minute and he had published that – I would have been able to sue him and his newspaper for libel.

“Around February 2, 2018, the Defendant passed data, including false information, about the Claimant to a third party, namely a reporter for The Sunday Times named Gabriel Pogrund, in breach of its rule on Data Protection at Appendix 2 1.J.ii of both the 2016 and 2017 Rule Books, its own guidelines on Data Protection, and the Data Protection Act 1998 (the version of the Act in force at the time) s.10, and also Schedules 1, 2 and 3. The Claimant knows this because the reporter made this clear when he contacted the Claimant – and in his newspaper article.”

Mr Pogrund’s first email stated: “The paper is running a story this weekend about Labour’s NEC and its recent decisions relating to suspended party members. It is based on a document from a recent NEC meeting, in which you are named.”

His second stated: “I understand that: i) you were given a warning and mandated to attend Jewish Labour Movement training, after which you will be readmitted to the party as a member of Brecon and Radnorshire CLP ii) you were previously suspended from the party in 2017 for posting comments and material online that was interpreted to be anti-Semitic. Could you confirm that the above details are accurate?”

Again, Labour’s representative raised the question of who would have access to the information. NEC meetings are attended by members of that committee who are all elected by the party membership – and who are all data managers for the party because of their membership of the committee, I pointed out. I added that the meetings would also be attended by the officers who brought reports to the committee – also Labour data managers.

The judge suggested that MPs could have attended as well – but I settled that question by pointing out that they are also Labour Party data managers – as defined in the rule I had quoted.

Then we discussed the fact that my case was discussed under Any Other Business, meaning committee members received no written report prior to the meeting and were asked to make a decision based only on the investigating officer’s report – which I have always stated was biased against me. As it happened, I understand that several members put up a spirited defence of me, meaning the committee was deadlocked until someone proposed the solution that Mr Pogrund mentioned in his email.

Considering all of the above, it seems likely that the document Mr Pogrund mentions must be one showing minutes of the NEC meeting – which, again, would only go to authorised data managers as discussions of individual members are always treated as confidential. He could not have received it from anybody else because nobody else would have had it.

“Appendix 2 1.J.ii of the Labour Party Rule Books for 2016 and 2017 states that “Misuse of information contained within the membership lists could be a breach of the Data Protection Act, and should be reported immediately to the Data Protection Officer at Head Office.” This indicates that the Labour Party accepts that it is subject to the Data Protection Act and acts in accordance with it. The provision of information about the Claimant to a third party was a clear breach of the Data Protection Act 1998, which was in force at the time, s.10 and appendices 1, 2 and 3 and a report should have been made to the Data Protection Officer. It is not clear whether such a report was made but it is known that no investigation occurred.

“For clarity: s.10 of that Act requires that data is not used in any way that may potentially cause damage or distress. There was a breach of the first “data protection principle” in Schedule 1 of that Act, as: the Claimant had not given consent for the data to be passed to a third party; it was not necessary for the performance of a contract to which the Claimant was a party or for the taking of steps at the Claimant’s request with a view to entering into a contract; it was not necessary to comply with any legal obligation; it was not necessary to protect the Claimant’s vital interests; it was not necessary for the administration of justice, for the exercise of any functions conferred on any person by or under any enactment, for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or for the exercise of any other functions of a public nature exercised in the public interest by any person; and it was not necessary for the purposes of legitimate interests pursued by the data controller or by the third party to whom the data was disclosed. There may be an argument that this was sensitive information, so Schedule 3 of the Act applies, but, again, the Claimant had not given consent for the data to be passed to a third party and none of the other conditions in that schedule apply.

“Condition 4 states: “The processing [may be] carried out in the course of its legitimate activities by any body or association which is not established or conducted for profit, and exists for political, philosophical, religious or trade union purposes; is carried out with appropriate safeguards for the rights and freedoms of data subjects; relates only to individuals who either are members of the body or association or have regular contact with it in connection with its purposes; and does not involve disclosure of the personal data to a third party without the consent of the data subject.” It was not a legitimate activity of that political organisation – the Labour Party – to pass false information about the Claimant – the data subject – to a third party. The use of the Claimant’s data was not carried out with appropriate safeguards for his rights and freedoms, and very definitely involved disclosure of the personal data to a third party without the Claimant’s consent.

“The breaches of the Data Protection Act in the two instances above constitute breach of contract because the Claimant’s membership of the Labour Party meant he was required – contracted – to provide personal information to the Labour Party. The Defendant had then processed the Claimant’s information, along with false information that it had created for its own purposes, without the Claimant’s consent, providing it to a third party. The Defendant had no right to do this. No part of the contract between a Labour Party member and the party organisation includes consent for any activity that breaks the law and any such breach must also be a breach of the contract. These breaches served to influence members of the public and decision-makers within the party into believing that the false allegations against the Claimant were accurate.

“Labour publishes separate guidelines on Data Protection. Those in existence prior to the enactment of the Data Protection Act 2018 no longer appear online but the current version includes a reference to the previous guidelines, as a matter of “continuity”. It states:

• “”To process personal data at all we need justification, in the form of a lawful basis (Article 6 GDPR)”

• “”To process special category (=sensitive) personal data such as political opinions, ethnicity, or health information, we also need a justification (Article 9 GDPR)”

• “”This is more restrictive: legitimate interest is not enough.”

“The Labour Party had no justification for processing the Claimant’s personal data in the way it did – by passing it on to a third party.

“The guideline document states that sharing data with a third party is “not permitted unless authorised by the Data Controller or permitted in our privacy statements”. Therefore the Labour Party had no right or reason to share the Claimant’s personal data with a third party. Even if the Data Controller had authorised such sharing, this would have been in breach of the party’s own rules and the Data Protection Act in force at the time.

“On data misuse, the guideline document states:

• “”Any unlawful use of data, or use contrary to the Code of Conduct is data misuse

• “”Any data misuse will be handled as a data breach

• “”Any intentional or wilfully negligent data breach will be reported to the ICO

• “”Breaches of data may be reported for disciplinary investigation.”

“A data breach is defined as a “breach of security” which, among other things, includes “unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed”. Therefore, in disclosing the Claimant’s personal data, the Labour Party committed an act of data misuse, which is to be considered a data breach. Yet this breach was not reported to the ICO (except by the Claimant) so the Defendant again acted in breach of its own rules and guidelines.

“The guideline document states that anybody reporting a breach:

• “”Must provide the DPO with as much information as the type of data breached (sensitive, personal?), the extent of the breach (# individuals impacted?) and any attempts to fix the breach (shut down any systems?)”

• “”The DPO will assess the risk of the breach and report to the ICO where it is deemed a high risk to the individual’s rights and freedoms”

“But it seems that no breach was reported to the DPO. This was itself a breach.”

Labour’s representative seemed keen to dismiss the information in the guideline document, which he said “comes from a slide show presentation” as if that somehow made it less relevant.

He also wanted to suggest that Appendix 2 1.J.ii was not a rule that the Labour Party had to observe – until I pointed at it and exclaimed loudly, “That is the Rule Book!”

We come now to the part of the trial that could lead to a change in the law: the discussion of Vicarious Responsibility.

In a submission that I received at 7pm on the evening before the trial Labour suggested that, even if party officers had provided false information about me to the press, the organisation itself could not be held responsible because they were doing it independently from their work for the party.

The judge explained it in these terms (and I’ll have to paraphrase again): if a reporter at one of the Fleet Street newspapers (when they were based there) was caught speeding in a company car on his way home from work, the company should not be held responsible. So should the Labour Party be held responsible for what its employees may have done here?

My response was that whoever leaked my information would not have come into contact with it in any other way than in the course of their work for the Labour Party; it was Labour’s corporate responsibility to look after my information, therefore it is Labour’s corporate responsibility that they did with my information what they did with it.

The alternative turns any Data Protection Act into a dead letter and you will never be able to trust any organisation at all with personal information that you need to provide (these days) in order to obtain services; they could hand it over to anybody they liked and then say it had nothing to do with them – an employee must have done it on their own time.

I reckon I made a good point, and I hope it leads to a strengthening of data protection law in the UK.

Labour said it did not report the breaches of the DPA in my case to the Information Commissioner’s office because an investigation could not find that the information had come from the party – but I pointed out that it was information generated within the party, for the party’s purposes, that should never have left the party. The fact that newspapers had published it to thousands of people showed that it had indeed come out of the party and meant that it should have been reported – and that is another breach of its contract with me.

I must mention the fact that Labour’s solicitors sent me a 25-page “skeleton argument” which I received at 7pm on October 1 – 15 hours before the trial began. Apparently it had been sent at 5.35pm or thereabouts – and those responsible tried to claim that they had sent it before but it had bounced; my email system had rejected it.

I called the judge’s attention to this at the start of the trial. It is an abuse of process to submit a skeleton argument plus additional case law the day before the hearing. It runs contrary to the Civil Procedure Rules part one: The Overriding Objective because it seeks to gain an unfair advantage by denying me the time necessary to read through this new material – more than everything else sent to me by the defence put together – and form a considered reply.

I reminded that court that, as a litigant-in-person I am not as familiar with the law as a solicitor and that this kind of sharp practice is known as litigation by ambush.

The judge politely disagreed, saying that such behaviour was a regular occurrence and asking why I thought I needed to answer it; he would tease out the important points with the other side and I would be able to comment on them as well.

I’m not entirely convinced that this is what happened because we got to the Defendant’s skeleton argument at some point after 3.30pm when I had been talking for four-and-a-half hours (with an hour’s break for lunch) and was starting to lose concentration.

I am concerned that an argument may have been slipped in that I would have been able to counter, if I had been given the time to do so.

I will be examining the skeleton argument in the immediate future, to see whether it contains any major issues.

The judge announced that he had heard all the evidence he thought he needed at around 4.30pm and said what we had all come to expect: that there was no time left for him to think about it and come up with a judgement.

So I must wait for the verdict until a time to be determined, after October 18.

I did the best I could.

Now the matter is in the hands of the judge.

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No Comments

  1. G Millward October 4, 2020 at 4:16 pm - Reply

    Well done Mike.
    Sounds like you did a brilliant job.
    I am keeping everything crossed for a positive decision/judgement.
    I personally think it is a good thing the judge did not give his decision on the day … he now has time to read through the documents and research and digest the facts of the case
    I hope you receive some financial recompense as tangible recognition of the damage and distress caused to you.

  2. groovmistress October 4, 2020 at 4:50 pm - Reply

    Wow. I hope you’ve managed to unwind a little after that over the weekend. Difficult to do I know but really important for health of mind and body. Hoping for the correct outcome on your behalf.

    • Mike Sivier October 5, 2020 at 9:56 am - Reply

      Thanks for the kind thought and I know exactly what you mean. I have a cat who is good diversion therapy if nothing else!

  3. SteveH October 4, 2020 at 5:55 pm - Reply

    None of the above will come as a surprise to anyone who has read Left Out: The Inside Story of Labour Under Corbyn.

    • Mike Sivier October 5, 2020 at 9:57 am - Reply

      I’m not sure what to make of that. Does it discuss the way right-wing factionalists subverted the party’s systems to attack both the members and the leadership, then?

      • mohandeer October 8, 2020 at 10:50 am - Reply

        Perhaps what SteveH was trying to impart was the fact that the Labour Party infested as it was with New Labour Blairites were complicit in undermining Corbyn’s leadership and the 3 million plebs who joined the LP in support of his views. The LP Party opposition to Corbyn evidenced by it’s own actions were IMHO, devious, malicious, spurious, perfidious, malignant and downright dishonest and the circumvention on display by the LP representative’s of LP Rules is stark and obvious. I used to read your articles back in ’17 and ’18 and you were never an anti-Semite then, nor now regardless of how the Israeli Lobby have managed to change the meaning of anti-Semitism in order to silence criticism of the State of Israel and it’s Zionist operatives.
        What was done to you was not just egregious but, again, IMHO, probably totally illegal. I have no problem with decent Jews wherever they are(and there are many in Israel and Occupied Palestine also)and I know you are a very decent person and have never nor ever would discriminate against Jews based on their religion.
        You deserve to win your case and I most certainly hope you do.

        • Mike Sivier November 2, 2020 at 11:24 am - Reply

          Thank you very much!

  4. hilary772013 October 4, 2020 at 7:49 pm - Reply

    Keeping everything crossed for a positive outcome Mike, don’t let the buggers drive you down, we need some good news.I hope you receive financial recompense for what they have put you through. Solidarity!

  5. hilary772013 October 4, 2020 at 7:59 pm - Reply

    Good Luck Mike, hope you win the case solidarity

  6. John Earle October 5, 2020 at 1:16 am - Reply

    Now you’ve had your day in court, let’s hope you get the justice you deserve

  7. Lorraine Murphy October 5, 2020 at 7:27 am - Reply

    Good luck with the case Mike. I hope the Judge gives an impartial ruling and it won’t be like the pyrrhic victory foisted upon Chris Williamson.

  8. The Toffee (597) October 5, 2020 at 9:00 am - Reply

    ” if a reporter at one of the Fleet Street newspapers (when they were based there) was caught speeding in a company car on his way home from work, the company should not be held responsible. So should the Labour Party be held responsible for what its employees may have done here?”

    The fundamental difference being that the fleet street newspaper would be the legal proprietor of the car the reporter used to facilitate the speeding offence, whereas YOUR data is YOURS – NOT THE LABOUR PARTY’S TO DO AS THEY PLEASE WITH.

    I really can’t think why the judge used that analogy.

    Anyways, fingers, toes and everything else crossed for you, Mike.

  9. BaronVonDuncs October 5, 2020 at 1:12 pm - Reply

    Good luck Mike. I will be very interested to read the Judgment.

    As far as vicarious liability the issue of illegal behaviour in managing data has come up recently in the Supreme Court. WM Morrisons Supermarkets plc (Appellant) v Various Claimants (Respondent) [2020] UKSC 12

    Generally where the employee acts in a manner outside the ordinary course of his employment then vicarious liability won’t exist. However just because vicarious liability doesn’t exist this does not mean the individual in question is not still liable as an individual.

    • Mike Sivier October 5, 2020 at 10:48 pm - Reply

      But if the employer is protecting the individual – for example by refusing to investigate the data breach?

  10. hanspann October 5, 2020 at 3:04 pm - Reply

    Fingers crossed for the right result!

  11. ndarnold October 7, 2020 at 7:57 am - Reply

    Well done Mike,

    But all this shows is the labour party is terminally corrupt & beyond any sort of reform.

    I hope you win, are compensated & vindicated.

    My advice would be devote your energy & talent to something else… the labour party is a waste of yours & everyone’s time.

    The UK needs a real socialist party that represents ordinary people & the labour party aint it!

  12. David Roderick Joyce October 9, 2020 at 7:38 am - Reply

    I have read through your account of the day and one thing really sprang out from the page. In one of the exchanges you mention that the LP is ignoring certain members and there concerns whilst quickly following up and dealing with other concerns and complaints.
    In Jan 2020 following the Party Leadership candidates unilaterally signing up to the BoD and JLM ten commandments I emailed LP safeguarding and legal to seek advice and guidance about this. I am of Jewish heritage and a member of JVL. This puts me in the [position of being a member of a prescribed organisation and facing expulsion from the Party. I had also noticed that followers of Keir Starmer were becoming very active on the CLP private media and things were getting nasty. Seems that long held grievances were being payed back. To this day I have received no replies from either safeguarding or legal apart from the official email stating that my email had been received. I did in July and August write by recorded delivery to the GS of the party. This has solicited a reply from someone in the GS’s office stating that safeguarding and legal would be writing to me in the near future. Still no contact from either of these departments.
    As a result of this I have given up my roles in the CLP as VC Membership and have removed myself from all private social media accounts. I have informed the party I can no longer campaign for the party.
    Think a study of members who find themselves in this position is needed to understand fully what is going on and just how the LP has become a leader led party where the voices of the many are being ignored.
    Keep up the fight Mike oppression will not prevail. In solidarity

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