Scottish Court of Session Decisions

Lord Cowan did not think it necessary to decide the very general question whether a resolution of Police Commissioners adopting a certain agreement, and authorising a formal agreement to be executed, was or was not irrevocable. It might fairly be held that, under their statute, the defenders had the power of reconsidering their resolutions in such a matter till a formal agreement was actually executed. But here the memorandum of agreement submitted to and approved of by the meeting in question was not a document which adoption could make into a concluded agreement. It contained merely certain proposals as a “basis for settlement,” and as such only was it approved of. That being the case, there was locus pœnitentiœ till the settlement was carried out, unless there was rei interventus, and no sufficient rei interventus appeared to have taken place. The defenders, no doubt, had done certain things on the footing that the agreement was to receive effect; but these were unimportant, and did not affect the pursuer; and the only thing which the pursuer had done was to withdraw his notice for jury trial, which there was nothing to prevent his renewing.

Lord Neaves said this case was of great importance to the parties, but, if possible, of still greater importance to the public, in so far as it involved the question how the final acts of a public deliberative body are to be ascertained and authenticated. It is to be remembered, as matter of general principle, that a public body like the defenders do not in their deliberations deal with their own interests (except in a very slight way, perhaps, as ratepayers), but they deal with the interests of others of whom they are representatives, and of whose interests they are trustees; and it is necessary, for the interests of the public who are absent, that their representatives should do nothing without due notice, and should not be bound by resolutions that are not deliberately arrived at after the fullest opportunity for consideration and objection by all concerned. Public bodies, town councils, and the like, are notoriously prone to what are called “jobs,” which may he, though nowadays they seldom are, tranactions for their individual interest, or for the interest of some friend whom they are inclined to oblige. In such bodies, private interest and prudence are awanting. A corporation has been said to have no conscience; it cannot blush, and is not likely to be deterred from a course of conduct by feelings of shame. It consists of an aggregate of wills, and in some respects resembles those vermicular bodies which, according to physiologists, are a series of individuals linked together with a separate individuality and a separate will in every ring, and in which there is a voting among the rings as to whether they shall go forward by the head or backward by the tail, the majority of rings, of course, determining the direction of progress. A corporation that meets to deliberate is in the same legal position as a man who retires into his study to deliberate with himself. The public know better what the corporation is deliberating about, for speeches are made and votes taken, and it is the fashion now for the reporters of the press to be present. But these votes and resolutions do not bind them any more than the resolution of the individual man in his private room, nor does the recording of a vote in their minutes bind them any more than a private memorandum by an individual entered in his notebook. A minute of a public body is not a contract, it is only a record of a fact. Some public bodies—the Edinburgh Town Council for one—were in the habit of reviewing their resolutions by a process of motion for dispproving of the minutes. Custom might be in favour of such a practice; but it is contrary to sound principle, seeing that the minutes ought to be a simple record of the business that has been done, and that, except as a record of fact, they have no validity. Applying these general doctrines to the present case, he had no hesitation in agreeing with Lord Cowan, and he was confirmed in his opinion by the specialities of the present case. The document founded on by the pursuer came before the defenders at an adjourned after-dinner meeting as a mere proposal. It is a long document, requiring a good deal of consideration to understand it. The defenders, in their after-dinner meeting, called without notice, approved of the pursuer's proposal as the “basis of an agreement” by the narrowest possible majority, and at their next meeting (having deliberated and taken advice in the meantime) they resolved to depart from their previous resolution, which was, or ought to have been, a private resolution. He held that they were entitled to depart from that resolution; that it did not form an inchoate contract which rei interventus could validate; and further, that there was no rei interventus on the part of the defenders. The pursuer withdrew his notice of jury trial at Mr Grace's request; but that request was made without any authority from the defenders that he could discover. Mr Grace was the clerk of the defenders, but he had no power to alter their position; and, even if he had, the withdrawing of a notice of jury trial, which might be renewed at any time, could never be held to amount to rei interventus. The result of the judgment would instruct parties contracting with public bodies to trust to nothing short of written agreements deliberately and finally resolved upon after due notice to all concerned.

Lord Mure concurred both as to the general principles which had been announced and as to the clear evidence of a completeness contained in the “heads of agreement” themselves. He was further of opinion, on the authority of the case of Ogilvy, January 5, 1700, and other old decisions, that even when private parties have arranged to reduce the terms of their bargain to writing there is locus pœnitentiœ until the written contract is executed, and that this principle applies a fortiori to public bodies. He further thought that nothing done by Mr Grace without the defenders' instructions was binding on them, and that, consequently, the whole superstructure of rei interventus, which in argument had been rested upon his acts, must fall.

The Lord Justice-Clerk was absent in the Justiciary Court and Lord Benholme in the Registration Court when the case was heard. Their Lordships gave no opinion.