Jersey Unreported Judgments

Dispute - challenge to membership of a private sports and social club.

[2017]JRC181

Royal Court

(Samedi)

26 October 2017

Before     :		Advocate Matthew John Thompson, Master of the Royal Court
Between	Ted Vibert		Plaintiff
And	The Sun Bowls Club		First Defendant
And	St Saviour's Bowls Club		Second Defendant
And	Jersey Bowling Club		Third Defendant
And	St Brelade's Bowls Club		Fourth Defendant

The Plaintiff appeared on his own behalf.

Advocate J. M. Renouf for the First, Second and Fourth Defendants.

Advocate J. M. Dann for the Third Defendant.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-17
3.	Procedural history	18-21
4.	The legal test on a summary judgment application	22-25
5.	The parties' submissions	26-62
6.	Decision	63-135
7.	Mediation	136

judgment

the master:

Introduction

1.        This judgment represents my decision in respect of an application for summary judgment by the defendants arguing that the plaintiff has no real prospect of success in relation to his claims against all the defendants.

Background

2.        The proceedings were brought by the plaintiff personally and concern refusal of membership of each of the defendants, all of which are bowls clubs.  As the plaintiff was representing himself, the Bailiff was required to sign his order of justice in order for the plaintiff to be allowed to commence proceedings.  The Bailiff signed the order of justice on 27^th June, 2017.

3.        By reference to the allegations set out in the order of justice, the plaintiff in January 2016 applied to become a member of the third defendant.  This application was refused with no reason being given for the refusal.  The plaintiff therefore complained in his order of justice, "at no time was the plaintiff given any opportunity of dealing with the rumours and gossip about him that was before the Committee."

4.        On 20^th March, 2016, the plaintiff applied to join the second defendant.  His order of justice states:-

"The Club's minutes record that his application was discussed "in depth" resulting in a tied vote; the chairman then used his casting vote to exclude the plaintiff from the club.  The plaintiff wrote to the club president requesting a meeting.  He was told the president did not want to involved or receive any correspondence on the matter.

At no time was the plaintiff given any opportunity to deal with any of the allegations made against him. Again, no reasons were given for the second defendant's decision."

5.        In relation to the first defendant, the plaintiff had previously been a member of the first defendant for a period of some four years.

6.        Paragraph 8 of the order of justice in relation to the plaintiff's complaint against the first defendant states as follows:-

"On 6th April 2016 the Plaintiff's membership of the First Defendant came before their Committee.  The minutes of that meeting record '"there was a discussion regarding Ted Vibert and whether or not to vote him back into the Sun Bowls Club.  The subject was brought up by the Club Captain as Ted Vibert was being fully supportive of him in his position at Bowls Jersey.  There followed a show of hands -2 for re-admitting him into the Club, 2 abstentions, 6 against No effort was made to invite the Plaintiff to that meeting to answer any matters against him which were discussed."

Again, no reasons were provided to the plaintiff.

7.        At paragraph 9 of the plaintiff's order of justice, the plaintiff stated as follows;-

"Not one of the four Defendants conducted their meetings regarding the Plaintiff's membership lawfully in that they failed to invite him to attend the meetings where his membership was discussed and which would have allowed him to deal with allegations made against him. The Plaintiff contends that this failure was a denial of natural justice or procedural fairness."

8.        Likewise in paragraph 10 he argued that a right to fair hearing required the plaintiff to have been given "prior notice...a fair opportunity to answer it and the opportunity to present their own case".  The same criticism was put in paragraph 11.

9.        Subsequent to the first defendant refusing to let the plaintiff back in, the plaintiff applied to the fourth defendant which application was also rejected.  Again, the plaintiff's complaint was that "At no time was the plaintiff given any opportunity of dealing with the rumours and gossip about him that was put before the committee."

10.      The plaintiff's order of justice as a consequence of the refusals sought damages from each of the defendants because he had been denied natural justice and procedural fairness.  The plaintiff did not seek any orders to set aside or quash any of the decisions made.

11.      In the course of submission, I asked the plaintiff for clarification on whether he was still a member of the first defendant at the time he applied to join the other defendants.

12.      The plaintiff informed me that due to disagreements about changes to the constitution of the first defendant he had proposed the previous year but which had been rejected, he had decided to leave the first defendant as, using his words, and "I did not want to be there".  When I asked the plaintiff if this was a voluntary decision on his part not to carry on with membership of the first defendant, he replied "yes".  This was the position at the time he applied to join the first and second defendants as is set out in more detail below.  Consistent with these clear statements made to me during the hearing, while the first defendant had not sent the plaintiff a renewal form to renew his membership, the plaintiff was also clear that he did not ask for a renewal form as he had decided to leave the first defendant.

13.      The plaintiff attached to his skeleton argument copies of his applications to join the second, third and fourth defendants.  In his application to join the second defendant the form completed by the plaintiff and signed by him and dated 24^th January, 2016, asked whether the plaintiff was a member of any other local bowls club, to which he replied "no".  Note 1 also stated, "membership will not be offered to any applicants who belong to another local outdoor bowls club and who have no intention of resigning from that club other than Grainville Ladies."

14.      In relation to his application to join the fourth defendant, the form stated, "Membership of St Brelade Bowls Club cannot be offered to applicants who belong to any other local outdoor bowls club, with the exception of the Post Office Social Club, the Police Athletic and Social Club, or the SOCIAL section ONLY (i.e. NON-PLAYING section) of another local bowling club."  The same form also asked the applicant to name any bowls clubs where the applicant had been a member.  The plaintiff answered this section of the form by inserting the name of the first defendant and saying he had been a member for four years.

15.      I refer to these application forms because they are consistent with the answer given by the plaintiff that he was not a member of the first defendant when he applied to join the second, third and fourth defendants. 

16.      I should also deal with whether the plaintiff was a member of the first defendant at the time of the meeting on 6^th April, 2016, referred to in paragraph 8 of the order of justice.  The plaintiff did explain that by the time the first defendant's meeting took place on 6^th April, 2016, he had to resign from Bowls Jersey because he was no longer a member of any bowling club.  The President of Bowls Jersey, who was also Captain of the first defendant, then agreed to try to get the plaintiff back into the first defendant.  The wording of the relevant minute also refers to the committee voting the plaintiff "back into the club" and "re-admitting" him into the first defendant.  I explore below whether there is a difference between an application for re-admission and a refusal to renew membership.

17.      I accept that these matters were not set out in an affidavit but they were confirmed by the plaintiff during his oral submission and no other party took objection to them.  This judgment is therefore produced on the basis that the plaintiff accepted that he was not a member of the first defendant at the time he applied to join the other defendants, or when the first defendant considered whether or not to let him back in.

Procedural history

18.      Before proceeding further, I should mention in relation to this judgment that initially, I directed pursuant to the powers vested in me by Rule 7/1(2) of the Royal Court Rules 2004, (the "Rules") as amended, that a summary judgment hearing should take place.  Rule 7/1(2) states:-

"A summary judgment hearing may be ordered by the Court of its own motion or on application made by either party in accordance with this Part."

19.      The issues identified to be determined were:-

(i)        Whether there was any basis in law for members of a club to owe a duty of care to an applicant to join that club and how the application was determined; and

(ii)       Whether the laws of natural justice applied to applications of any individuals to join a private club.

20.      Subsequently, objections were raised by the plaintiff challenging whether or not I could exercise such a power because the plaintiff had in error not received my initial email setting out that I was contemplating ordering a summary judgment hearing.  The non-receipt was due to an incorrect email address being inserted for which an apology has been made.  In view of this appeal, the defendants issued their own summonses in identical terms to the questions of law I had raised.

21.      Although the plaintiff had filed a notice of appeal against my decision to order a summary judgment hearing to take place, this appeal could only be heard after the date fixed for substantive argument on the summary judgment application.  I also refused to stay the substantive argument notwithstanding the appeal because I regarded the grounds of appeal as weak as I clearly possessed power to order a summary judgment hearing, and that I regarded this case as one justifying the use of this power.  The appeal had also been rendered pointless due to the defendants issuing their own applications which I had to determine.  However the original dates for the summary judgment hearing of 23^rd August were adjourned until 27^th September to allow the plaintiff more time to prepare for the hearing.  Ultimately, the plaintiff presented his substantive arguments and, after oral argument but before delivery of this judgment, he also chose to withdraw his appeal against my decision to order a summary judgment hearing.  I refer to these matters only for the sake of completeness.

The legal test on a summary judgment application

22.      There was no dispute between the parties about the applicable legal test on a summary judgment application notwithstanding that the powers in Rule 7 of the Rules were only introduced by Royal Court (Amendment No.20) Rules 2007 which came into force on 1^st June, 2017.  The plaintiff and counsel for the defendants agreed that the approach I had set out in Holmes v Lingard & Anor [2017] JRC 113 at paragraphs 160 to 169 was the correct approach to adopt.

23.      Subsequent to oral argument the decision of Commissioner Hunt sitting as a Commissioner of the Royal Court in MacFirbhisigh & Ching v CI Trustees & Ors [2017] JRC 130A was handed down.

24.      At paragraph 16 to 19 Commissioner Hunt stated as follows:-

"Since the wording of Rule 7/1(1)(a)(i) mirrors that of the English CPR Part 24.2(a)(i), it seems to me that the Royal Court should, when applying Rule 7/1(1)(a)(i), follow the principles which have been developed in the English courts in relation to Part 24.2(a)(i).  This approach reflects that adopted by the Royal Court in AG v. Contractors Plant Service Ltd. [1967] JJ 785 where the Deputy Bailiff said (at p.786):

"The Solicitor General has drawn our attention to the fact that the provisions of the [Scaffolding (Jersey) Regulations, 1960] follow closely those of the Building (Safety, Health and Welfare) Regulations 1948, made under the Factories Act 1947, and other enactments of the Parliament of the United Kingdom, and he has therefore sought to support his case against the defendant company by quoting from judgments given in the English Courts on matters affecting the interpretation of those regulations.  Although, as has often been said in this Court, the Courts of this Island are not bound by judgments of the English Courts, we feel that in this instance, we should have close regard to the judgments in question ..."

Both Advocate Gleeson and Advocate Scholefield agreed with this approach.

17.      In Trilogy Management Ltd. v. Harcus Sinclair [2017] EWHC 1164 (Ch), Rose J. said as follows (at para.32):

"The principles to be applied are those set out by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at paragraph 15.  The correct approach on applications by defendants is as follows:

"(i)      The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii)        A "realistic" claim is one that carries some degree of conviction.  This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

iii)       In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;

iv)       This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court.  In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];

v)        However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi)       Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii)      On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.  The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case maybe.  Similarly, if the applicant's case is bad in law, the sooner that is determined, the better.  If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success.  However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."

18.      Since neither counsel had referred in their skeleton arguments to the Easyair or Trilogy cases, the Court notified all parties of my provisional view that the principles quoted above were those which I should follow in the present case, giving them the opportunity to challenge my provisional view if they wished.  Advocate Gleeson indicated his agreement with my intended approach.  Advocate Scholefield likewise did not seek to challenge my provisional view but referred me to the judgment of Master Thompson in Holmes v. Lingard [2017] JRC 113, delivered on 21 July 2017.

19.      At para.160 of his judgment in Holmes, Master Thompson said as follows:

"This is the first occasion upon which Rule 7 introduced by Royal Court (Amendment No.20) Rules 2017 has been considered.  The wording of Rule 7 is based extensively on Rule 24 of the Civil Procedure Rules (ACPR").  As there is no material difference between the wording of Rule 7 of the Royal Court Rules and Rule 24 of the CPR, I have followed the relevant English jurisprudence as to how the power contained in Rule 7 should be interpreted and applied."

His judgment does not refer to either Easyair or Trilogy but the principles which he deduced from Civil Procedure 2017 Vol.1 (the White Book) and from the authorities upon which he relied are, it seems to me, entirely consistent with those in Easyair, as approved in Trilogy, which I have quoted in para.17 above.  Accordingly I propose to follow the principles in Easyair."

25.      I am of course bound by this decision and therefore the approach I have taken is to follow MacFirbhisigh & Ching v CI Trustees & Ors, albeit there is no difference from the approach I took in Holmes v Lingard Anor.

The parties' submissions

26.      Before setting out the parties' submissions, I wish to thank all parties for the helpful way in which they approached the arguments both in writing and orally before the Court.  In particular, I would like to express my gratitude to Advocate Dann for the detailed researches carried out by him.  While what has led to this dispute concerns one particular sporting activity, the issues raised by the defendants' application are matters of much wider significance and are relevant to sports and other social clubs or associations in the Island.  The detailed researches were therefore important.

27.      Advocate Dann for the third defendant took the lead in setting out arguments in support of the defendants' application.  The following is a summary of his written and oral contentions.

28.      In the absence of any Jersey authority on the legal principles applicable to an application for membership of a club or sporting association being refused, it was appropriate to refer to a number of English authorities where the issue had been considered.  This was because the principles of natural justice, insofar as they had been applied as a matter of Jersey law, were essentially the same as those that existed in English law.

29.      The overall position of Advocate Dann was summarised in an extract contained in Ashton & Reid on Clubs and Associations (2011 Second Edition) at paragraph 4.2 which stated as follows:-

"This ability to reject those persons who are, or apparently are, unsuitable or unacceptable to join a club has been an important factor in sustaining clubs over a long period of time.  And, as a general proposition, a person cannot complain if he or she is refused membership of a club.  Different considerations will apply if the refusal is seen as an unlawful restraint of trade ........."

30.      Clubs could not refuse membership on the basis of discrimination as this was prohibited by statute both in England and in Jersey.  The position in England was governed by the Equality Act 2010.  The equivalent in Jersey was Article 25 of the Discrimination (Jersey) Law 2013.  While discrimination was therefore one of the recognised exceptions where the Courts would interfere with decisions about membership, allegations of discrimination were not part of the plaintiff's allegations and so it was not necessary to explore what might amount to discrimination.

31.      There were three possible scenarios applicable to a third party seeking to challenge a decision made by a club about membership as follows:-

(i)        Where there was an express contract between the club and the third party;

(ii)       Where the third party had consensually submitted to the jurisdiction of the club; and

(iii)      Where there was no contract or consensual submission.

32.      It was argued that the plaintiff's claim fell into the third category and the plaintiff was simply an applicant for membership.  There was no express contract or acceptance of jurisdiction between the plaintiff and the third defendant, or indeed any of the defendants.

33.      Advocate Dann also referred to paragraph 13.5 of Ashton & Reid on Clubs and Associations as follows on the question of applicability of the rules of natural justice:

 '...whether the court will intervene in a contractual or domestic dispute between the club and a third party if the latter complains of a breach of the rules of natural justice at the hands of the club is still an uncertain area of law.  The formal introduction into English law of the ECHR...is part of a process which by and large has made the courts more willing to entertain claims by third parties that the club has acted unfairly towards him.  Various questions arise under this heading.  In contesting the club's decision is the third party entitled to an oral hearing?  Is the third party allowed legal representation?  Is the club as decision maker obliged to give reasons for its decision?  Has the decision maker departed from its usual practice or policy?  How inflexible is that policy?  Has the claimant a legitimate expectation that he be consulted before the decision is made?  And so on. In Ridge v Baldwin, the House of Lords said that the overall test was: What would a reasonable man consider to be fair in the circumstances?  But this begs the question: What is fair?  The answer would appear to be that if the liberty of the claimant or his livelihood or property is at stake, the court is likely to require the rules of natural justice or, perhaps better expressed, the rules of fair play, to be properly observed so that there is even-handedness between the parties; otherwise and subject to what is said in the last sentence of the preceding paragraph the court is unlikely to intervene in contractual or domestic disputes between the club and a third party even if the rules of natural justice have not been observed'. (emphasis added).

34.      Advocate Dann then carried out a detailed analysis of the relevant English authorities namely, Nagle v Feilden and Ors [1966] 2 Q.B. 633; McInnes v Onslow-Fane and Ors [1978] 1 W.L.R. 1520; Currie v Barton [1988] WL 622889; R (Irvine) v The Royal Burgess Golfing Society of Edinburgh [2004] LLR 334; and Cronin v The Greyhound Board of Great Britain Ltd [2013] EWCA Civ 668.

35.      I set out my views on what was decided by these decisions later in this judgment and whether they remain good law but I am grateful for the careful analysis of Advocate Dann both in his skeleton argument and orally.

36.      On the basis of this analysis Advocate Dann submitted:-

(i)        There was a distinction between cases involving potential restraints on livelihood or the right to work and those where the benefit of a club membership was purely social;

(ii)       There was also a distinction between cases involving expulsion or loss of rights or the imposition of a disciplinary penalty upon an existing member and applications for membership where there was no pre-existing relationship;

(iii)      There was a rationale for such a distinction.  Where a person's livelihood was at risk the Courts were more willing to intervene to ensure that the process was fair, although even then there were limits;

(iv)      The same willingness of the Court to intervene appeared to arise where an existing member was threatened with expulsion or suspension, or non-renewal of membership;

(v)       By contrast, the Courts would not generally intervene in cases involving an application for membership of a local social or sporting club in the absence of discrimination prohibited by statute;

(vi)      There was no general obligation requiring an applicant to join a social or sporting club to be heard before his application was determined.  Nor was there an obligation to give reasons for a refusal.

(vii)     Reasons for refusal do not even have to be given where a decision is made to expel or suspend a member from a club.

37.      The effect of the plaintiff's claim would mean that every determination of a membership application by social or amateur sports clubs would potentially fall to be reviewed by the Courts.  The Courts in England had however repeatedly and firmly set their faces against such an extension of the doctrine of natural justice. Jersey law should take the same approach.

38.      In addition, no duty of care owed to an applicant could justify an award of damages.  The plaintiff's claim therefore had no prospect of success on this ground alone.

39.      Although the plaintiff was not alleging in his order of justice that any of the defendants had acted capriciously or were biased in relation to refusals of membership, the principles of natural justice did not apply and therefore a club in refusing membership could reach a decision which an outsider might regard as unreasonable or even capricious or driven by bias.

40.      While any decision to refuse membership might potentially affect someone's standing in the community, this consequence of a refusal was not a basis for the court to intervene or to award damages.

41.      Advocate Renouf both in writing and orally was comparatively brief because he adopted and relied upon the submissions both written and orally made by Advocate Dann.

42.      He emphasised that the approach taken by the plaintiff was impractical and would lead to the real danger of the court becoming involved in dealing with disputes that should not concern the court.

43.      Advocate Renouf also emphasised that it was appropriate to the Court to prevent significant and unnecessary costs from being incurred especially where these might be potentially ruinous in respect of a question of law which was bound to fail and which Advocate Renouf contended was not arguable at all.  Sports and social clubs should therefore have the ability to act in their own interests.  This was what had sustained clubs over a long period of time (relying on paragraph 4.2 of Ashton and Reid set out above).  Ultimately, sports and social clubs, while they might need members to thrive, were ultimately private in the sense that no one had any legal right to join such a club and it was a matter for a club alone whether to allow an individual to become a member or not.  As long as there was no discrimination, a club could refuse membership for any reason including reasons that might be capricious or motivated by bias.

44.      Advocate Renouf fairly accepted that once someone was a member the position changed because such a member was no longer a stranger to the club.  In those situations a member might have contractual rights, or rights against the club as a member.  In particular where expulsion, suspension or non-renewal was contemplated, he accepted that a duty of being fair arose.

45.      The plaintiff in response explained how the actions of the defendants had affected him significantly because none of the defendants were prepared to allow the plaintiff to become a member.  The effect of this situation prevented the plaintiff from playing bowls on grass which came across as being his passion.  While he could still play bowls indoors and there was one other outdoor club which had an artificial surface, the refusal of the defendants meant he could not play bowls outdoors on his preferred surface.  The lack of membership with the defendants also meant that he could not enter competitions organised by Bowls Jersey, the umbrella organisation in Jersey for bowling completions.  He could not participate in any Bowls Jersey events without being a member of a bowls club.

46.      The plaintiff furthermore made it clear that he accepted the following:-

(i)        That clubs had a right to choose who should be a member;

(ii)       That no duty of care was owed to him as an applicant for membership;

(iii)      He did not have any contract with any club to whom he was applying for membership;

(iv)      He was not arguing discrimination.

47.      What the plaintiff was arguing was that a proper process had not been applied.  He should have been told of any objections to his membership and being given an opportunity to respond;

48.      He also argued that the principles of natural justice were applicable and therefore clubs could not act capriciously nor could they be biased.  In his skeleton he set out a number of quotations from various cases and articles although he did not provide copies of these as he should have done.  Any party, whether acting through a lawyer or as a litigant in person must provide to the Court and to any other party a full copy of any material they wish to rely on.  It is not for the Court or the other parties to have to look up and review cases where quotations from that case are relied upon.

49.      His arguments would only be resolved once all the facts and evidence were known at a trial, because any legal conclusions depended on all the circumstances. 

50.      This was also a complex and developing area of law which also required a trial.

51.      In relation to the first defendant, he argued that this was effectively a refusal to renew his membership rather than rejection of an application for membership.  In particular he had not completed any application form.

52.      He further argued that refusal of membership had affected his social standing in Jersey and this was sufficient for him to be allowed to pursue his claim; where someone's social standing was affected the court should be willing to intervene.  He cited the Irvine case in support of this position.

53.      The right to a hearing was also supported by Article 6 of the European Convention on Human Rights and the right to a fair trial.

54.      What the lack of fairness meant was that the plaintiff did not know why his applications had been refused and why he could not be a member of any bowling club.  He felt he was the focus of rumours and gossip.  Not knowing why membership had been refused was particularly important in a small community because refusal could lead to speculation or a slur on his character.  He therefore argued he was entitled to know the reasons why membership had been refused.  Reasons would allow him to challenge refusal of membership where a decision was capricious or reached where there was bias.

55.      The application of natural justice to clubs would not open the floodgates.  Generally clubs needed members.  Indeed, he was not aware of any other case where a membership had been refused.  It was certainly a rarity.

56.      He was also critical of the lack of any appeal process against either a refusal of membership or following a disciplinary process.

57.      To the extent that McInnes suggested that no reasons should be given, this was contradicted by the decision in Cronin.

58.      In relation to the first defendant, given the Captain took the question to the committee about whether he should be let back in, this was not an application case, but rather was effectively a refusal to allow the plaintiff to renew his membership.

59.      Advocate Dann in reply accepted it was arguable that reasons had to be given where there was refusal of membership in a livelihood case or in a disciplinary matter leading to suspension or expulsion.  There was no authority however which indicated that reasons had to be given where an application for membership was refused.

60.      The fact that Jersey was a small place did not matter.  There were many towns and villages in England where there were small clubs with limited resources and members.  The position in Jersey was therefore no different to that faced by organisations in different parts of the United Kingdom.

61.      Advocate Renouf in reply emphasised that the plaintiff had conceded that he had voluntarily relinquished his membership of the first defendant at the end of 2015 or early 2016.  That meant that the meeting in April 2016 was considering an application for membership, not an expulsion or a refusal to renew membership.

62.      The plaintiff also could still join another club and therefore could enter into competitions organised by Bowls Jersey wherever those competitions took place.  Any impact on his social standing was because he did not want to join that other club.  That was the plaintiff's choice.

Decision

63.      Firstly, as far as I am aware there is no decision in Jersey on how far the principles of natural justice apply to decisions by sports and social clubs to admit, suspend or expel members.  Accordingly, I agree with Advocate Dann that it is appropriate to look at English authorities on this question given that the development of administrative law and the application of natural justice to administrative decisions in Jersey has been based on English authorities.  It is therefore necessary to see whether these principles should apply to the present application.

64.      In doing so, I accept that principles of natural justice have been applied as a matter of Jersey law to hold to account bodies or institutions that make decisions that affect individuals.  This covers States departments, the parishes, the JFSC, and the comptroller of income tax to name a few examples.  A recent illustration is Bisson v JPCA [2017] JRC 087and [2017] JCA 156 where in principle the Jersey Police Complaints Authority was amenable to judicial review (although refused on the facts).  The quotations cited by the plaintiff on the duty to give reasons however were statements of general principle from cases involving public or administrative bodies, or courts.  None of them contained any discussion about how far they applied to a sports or social club. Insofar as he listed cases concerning sports clubs or associations not referred to by the defendants, I address these cases later in this judgment. 

65.      Secondly, the decision required by the defendants' application is a question of law.  The alteration to Rule 7 of the Rules by Amendment No. 20 now allows for questions of law to be decided on a summary judgment application.  Under the former Rule 7, questions of law were for the Royal Court only.  This change brings greater consistency because previously questions of law could be considered on a strike out application but not a summary judgment application.  Now they can be considered on both applications.  In MacFirbhisigh & Ching v CI Trustees & Ors, referred to above, on questions of law the final paragraph of the quotation from Trilogy cited by the Royal Court is pertinent and states:-

"On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.  The reason is quite simple: if the respondents' case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case maybe.  Similarly, if the applicants' case is bad in law, the sooner that is determined, the better."

66.      To decide which of the rival contentions is correct, it is necessary to review the relevant authorities, the ambit of the decisions made in each of the cases referred to and any observations made that are relevant to the present application.  I have also borne in mind that the cases cited cover nearly a 50 year period during which time, at least in the field of administrative law, there has been an increasing recognition of the requirements of natural justice.  The European Convention on Human Rights was also incorporated to the domestic laws of the United Kingdom and Jersey which has also influenced how far the Courts are prepared to protect the "rights" of individuals.  I refer to "rights" because often decisions on the European Convention of Human Rights involve a balancing of competing interests between individuals, public authorities and and/or countries and are not absolute entitlements or prohibitions.  It is only the right to life, the prohibition of torture, slavery, forced labour and no punishment without law that are absolute rights.

67.      The earliest authority in time referred to is the case of Nagle v Feilden and Ors.  This case concerned a refusal by the Jockey Club to grant a trainer's licence to the plaintiff on the grounds that she was a woman.  While today such a situation is prohibited by statute, whether in England or in Jersey, that was not the position in 1966.  The Court of Appeal accepted that the plaintiff had an arguable case to challenge the decision of the Jockey Club to refuse a licence as being an unlawful restraint of trade and contrary to public policy.  It was in this context that Lord Denning made the following observations at page 644 lines D to F:-

"I quite agree that if we were here considering a social club, it would be necessary for the plaintiff to show a contract. If a man applies to join a social club and is black-balled, he has no cause of action: because the members have made no contract with him. They can do as they like. They can admit or refuse him, as they please. But we are not considering a social club. We are considering an association which exercises a virtual monopoly in an important field of human activity. By refusing or withdrawing a licence, the stewards can put a man out of business. This is a great power. If it is abused, can the courts give redress? That is the question.

It was urged before us that the members of a trading or professional association were like a social club. They had, it was said, an unrestricted power to admit, or refuse to admit, any person whom they chose: and that this was established by a case in 1825 concerning the Inns of Court. In Rex v. The Benchers of Lincoln's Inn, 30 Bayley J. said 31 :

"They make their own rules as to the admission of members; and even if they act capriciously upon the subject this court can give no remedy in such a case, because in fact there has been no violation of any right."

I venture to question this statement, notwithstanding the eminence of the judge from whom it fell. The common law of England has for centuries recognised that a man has a right to work at his trade or profession without being unjustly excluded from it. He is not to be shut out from it at the whim of those having the governance of it. If they make a rule which enables them to reject his application arbitrarily or capriciously, not reasonably, that rule is bad. It is against public policy. The courts will not give effect to it."

68.      While the phraseology used by Lord Denning might be updated today, in terms of the ability of a social club to refuse membership, it remains the case that an applicant for membership has no contract with a social or sports club.  The question is whether such clubs can today do as they like as was the position in 1966.

69.      Where the Court of Appeal in 1966 was prepared to intervene was where a decision affected an individual's livelihood.  Lord Denning M.R. described that as a "right to work at his trade or profession".

70.      Salmon L.J. agreed with Lord Denning and stated at paragraphs 653 lines C to D:-

"There can be no doubt but that it is permissible to exclude anyone for any reason or no reason from membership of a social club, just as anyone (unless he has a statutory right of entry) may be excluded from one's home. Once, however, a man is elected to a club, he acquires contractual rights and cannot be expelled save in accordance with its rules and by processes which do not offend against natural justice."

71.      Salmon L.J. therefore was expressly of the view that the rules of natural justice only applied if a person had been admitted as a member.

72.      For associations that controlled "certain trades or spheres of human activity" where individuals could not earn a living without membership or a licence, Salmon L.J. stated:-

"In such cases the question arises as to a man's right to work or, more precisely, his right not to be capriciously and unreasonably prevented from earning his living as he wills. There is no doubt that such associations may lay down such minimum qualifications for admission as they in their discretion consider necessary for the protection of the public and for the protection of their trade or profession.  Nor do I think they need ascribe any reasons for refusing to admit any candidate. If, however, it can be shown from the reasons which they may give, or from other sources, that a candidate has been capriciously and unreasonably refused admission, it is certainly arguable that the law will intervene to protect him."

73.      Salmon L.J. therefore concluded that the Jockey Club could also not capriciously or unreasonably refuse a licence applying the above reasoning.

74.      Insofar as Salmon L.J. was stating that the law would intervene to protect individuals who were capriciously or unreasonably refused admission, the context of his observations concerns what he had described as monopolistic associations.  I do not consider that he was making observations that a candidate who had been capriciously and unreasonably refused admission to a sports or social club could challenge such a decision as being contrary to natural justice.  Salmon L.J.'s views were clear that for social clubs (which I suggest applies to sports clubs) a person could be excluded for any reason.  His view was that for sports and social clubs, principles of natural justice only applied once an individual became a member.

75.      The next case in time is McInnes v Onslow-Fane & Anor.  This was an application case in the sense that the applicant had sought a licence from the British Boxing Board of Control which had been refused.  The plaintiff therefore issued proceedings seeking a declaration that:-

(i)        he would be informed of the case against him; and

(ii)       he should be granted an oral hearing.

76.      The application was refused.  Paragraph 2 of the headnote states as follows:-

"That since the case was, however, not one involving forfeiture of an existing right or deprivation of an existing position, and was equally not one where the plaintiff had any legitimate expectation that his application for a boxers' manager's licence would succeed, the board, while under a duty to reach an honest conclusion without bias and not in pursuance of any capricious policy, were under no obligation to give the plaintiff even the gist of their reasons for refusing or proposing to refuse, his application, and similarly were under no obligation to grant the plaintiff an oral hearing; refusal of a licence did not cast any slur upon the plaintiff's character, and in the absence of any suggestion that the board had been affected by dishonesty, bias, or caprice, or other impropriety, the court ought not to interfere, since the board were the best judges of the desirability of granting the licence."

77.      A number of points emerged from the reasoning in McInnes as follows:-

78.      Firstly, Megarry V-C was clear, following Nagle, that the Court could, on a refusal to grant a licence, "intervene in order to enforce the appropriate requirements of natural justice and fairness".  It is clear that Megarry V-C saw the case before him as one concerning the ability of an individual not to be "capriciously and unreasonably prevented from earning his living as he wills", following Lord Justice Salmon L.JJ in Nagle.

79.      Secondly, the decision in McInnes explored when a Court might intervene and drew a distinction between forfeiture cases and expulsion cases at page 529 as follows:-

"First, there are what may be called the forfeiture cases. In these, there is a decision which takes away some existing right or position, as where a member of an organisation is expelled or a licence is revoked. Second, at the other extreme there are what may be called the application cases. These are cases where the decision merely refuses to grant the applicant the right or position that he seeks, such as membership of the organisation, or a licence to do certain acts."

80.      Megarry V-C also recognised a third intermediate category which he described as follows:-

"Third, there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence-holder applies for a renewal of his licence or a person already elected or appointed to some position seeks confirmation from some confirming authority."

81.      The analysis of Megarry V-C continued at page 1529 lines D to F as follows:-

"It seems plain that there is a substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases, there is a threat to take something away for some reason: and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges (which in Ridge v. Baldwin [1964] AC 40, 132, Lord Hodson said were three features of natural justice which stood out) are plainly apt. In the application cases, on the other hand, nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges. Instead, there is the far wider and less defined question of the general suitability of the applicant for membership or a licence. The distinction is well-recognised, for in general it is clear that the courts will require natural justice to be observed for expulsion from a social club, but not on an application for admission to it. The intermediate category, that of the expectation cases, may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable."

82.      On application cases Megarry V-C was of the view that no right was being taken away and therefore the principles of natural justice did not apply on an application for admission but only on an expulsion case.  He also regarded the third category as being closer to forfeiture or expulsion cases rather than an application case.

83.      In relation to the above extracts, I observe that Megarry V-C noted that there was no clear exhaustive classification.  I agree with his caution.  While I consider that the classification set out by Megarry V-C is relevant to sports and social clubs including the present case, the classification in McInnes may not necessarily be appropriate for other associations such as charities, educational establishments or religious organisations which offer services for the benefit of parts of the community.  This decision therefore focuses solely on sport clubs or purely social activities where I consider the distinction between an application and expulsion or suspension is one that is of assistance.

84.      Megarry V-C then went onto consider whether in relation to the application by Mr McInnes for a licence whether he was entitled to be told the case against him or to an oral hearing.

85.      The defendants argued that while the board was under a duty to reach an honest conclusion without bias and not to act in pursuance of any capricious policy, that duty did not require the board either to inform Mr McInnes of the case against him or to give him an oral hearing.

86.      Megarry V-C approached this question by firstly deciding that there was no general obligation to give reasons for a decision.  In respect of an application case he therefore stated at page 1531 line C:-

"Certainly in an application case where there are no statutory or contractual requirements but a simple discretion in the licensing body, there is no obligation on that body to give their reasons."

87.      Megarry V-C also determined that the above extract applied to application cases even where the application concerned an individual's livelihood.  He stated at page 1532 lines A-C:-

"There are many reasons why a licence might be refused to an applicant of complete integrity, high repute and financial stability. Some may be wholly unconnected with the applicant, as where there are already too many licensees for the good of boxing under existing conditions. Others will relate to the applicant. They may be discreditable to him, as where he is dishonest or a drunkard; or they may be free from discredit, as where he suffers from physical or mental ill-health, or is too young, or too inexperienced, or too old, or simply lacks the personality or strength of character required for what no doubt may be an exacting occupation. There may be no "case against him" at all, in the sense of something warranting forfeiture or expulsion; instead, there may simply be the absence of enough in favour of granting the licence."

88.      The case then went on to consider, even though the court had concluded there was no obligation to give reasons whether the procedure should be fair.  On this issue Megarry V-C stated at page 1535 lines E to F:-

"In such circumstances, in the absence of anything to suggest that the board have been affected by dishonesty or bias or caprice, or that there is any other impropriety, I think that the board are fully entitled to give no reasons for their decision, and to decide the application without any preliminary indication to the plaintiff of those reasons. The board are the best judges of the desirability of granting the licence, and in the absence of any impropriety the court ought not to interfere."

89.      He then continued:-

"There is a more general consideration.  I think that the courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the courts for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause.  Such bodies should not be tempted or coerced into granting licences that otherwise they would refuse by reason of the courts having imposed on them a procedure for refusal which facilitates litigation against them."

90.      Finally, in McInnes, the court rejected that there was a right to a hearing, assuming this was an independent requirement.  Megarry V-C on this point stated as follows at page 1536 lines B to C:-

"I do not see why the board should not be fully capable of dealing fairly with the plaintiff's application without any hearing. The case is not an expulsion case where natural justice confers the right to know the charge and to have an opportunity of meeting it at a hearing. I cannot think that there is or should be any rule that an application for a licence of this sort cannot properly be refused without giving the applicant the opportunity of a hearing, however hopeless the application, and whether it is the first or the fifth or the fiftieth application that he has made."

91.      The next decision is that of Currie v Barton which concerned the plaintiff being banned from playing tennis for his county for 3 years.  It was therefore a type of suspension case.

92.      In relation to the issue of when courts will intervene in decisions to suspend, Lord Justice O'Connor stated:-

"The law will interfere with the decision of such a body if the person who is affected by it is in some sort of contractual relationship with the body making the decision, or, alternatively, if he is not in a contractual relationship, if the body is one which makes a decision which operates as an unreasonable restraint on the capacity of the individual to earn his living. Sometimes it is put as the right to work."

93.      On the facts of the case Lord Justice O'Connor did not feel it was necessary to go further than these "recognised categories".

94.      He also repeated the warnings set out by Megarry V-C in McInnes cited about the courts being slow to allow any implied obligation to be fair to be used as a means of bringing sporting bodies before the courts for review.

95.      Lord Justice Nicholls also stated:-

"...no case has been cited to us in which the court has intervened where the decision in question was not one which affected the plaintiff's ability to work and earn his living in whatever manner he might choose."

96.      On the facts, the court concluded that the decision did not affect the plaintiff's livelihood and also that, even if the laws of natural justice did apply, they had not been broken.

97.      The next case is R (Irvine) v The Royal Burgess Golfing Society of Edinburgh which concerned a plaintiff who was suspended from membership of his golf club for 12 months.  In setting aside the decision to suspend, the court was firstly critical of the failure to give the plaintiff notice of the charge.  Secondly, it was common ground that there was a right to be heard which was not adhered to.  The court was also concerned that the council of the golf club had not acted impartially, in particular because individuals who had made the complaint had also taken part in the decision making process.  Where the judgment is of relevance is that it contains helpful observations pertinent to the present case.

98.      Firstly, at paragraph 25 the court stated as follows:-

"25 I agree with the respondents that a golf club is not to be expected to conduct its proceedings in the same way as would a court and that, as some of the authorities relied on show, the court is usually slow to interfere with the proceedings of such a body. It does not, however, seem to be the case that there is any recognised principle that the court should refrain from exercising the power of judicial review where the body whose decision is under attack is a sporting body. Indeed, the case of McInnes v Onslow-Fane [1978] WLR 1520 , which was relied on by the respondents in support of that submission, was one in which the entitlement of the court to intervene in the procedures of a sporting body not governed by statute or contract, so as to enforce the appropriate requirements of natural justice and fairness, was affirmed. Further, the circumstances in which the decision to suspend the petitioner from membership was made in this case call for examination. Whilst to some, the tensions between a golf club and its members whether in respect of their mode of dress or the volume of their exuberance, may seem trivial, two things arise in the present case which underline the importance of the present dispute, at least to the petitioner. One is the amount of the membership fee which is significant. The annual membership dues amount to £945 pa and, as a result of his suspension from membership, the petitioner has, thus far, been deprived of the benefit of over half of that sum. The other is that the petitioner is the managing director of a public limited company that provides financial services with a number of clients who are also members of the respondents. They will have become aware of his suspension from membership. I was advised by his counsel that he was concerned at the adverse effect on his reputation in his sphere of business that had ensued. That concern is readily understandable."

99.      At paragraph 47 the court also stated:-

"Whilst it is clear from the authorities that a failure to give reasons or a failure to provide a right of appeal do not, of themselves, constitute a breach of natural justice, I agree that when viewed in the light of the whole circumstances of this case, they exacerbate the overall view of a clear breach of natural justice having occurred."

100.   This is a recognition that in 2004 there was still no obligation to give reasons in a disciplinary case and that a right of appeal was not necessary; however, when coupled with a failure to give notice of a charge, the failure to hold a hearing and a failure to act impartially, the overall effect was that a breach of natural justice had occurred in relation to conduct of the disciplinary case against Mr Irvine.

101.   Finally, I refer to Cronin v The Greyhound Board of Great Britain Ltd which is also a disciplinary case where the plaintiff was given a severe reprimand, fined and ordered to pay costs.  The plaintiff did not exercise any right of appeal and also allowed his licence to train and race greyhounds to lapse.

102.   The plaintiff brought proceedings challenging the reprimand, the fine and the order to pay costs on the basis he had been denied the right to a fair trial, there had been a denial of natural justice and because the defendant was biased.  The proceedings were struck out and the plaintiff appealed against this decision.

103.   In relation to a duty to give reasons, the court stated at paragraphs 14 to 16 as follows:-

"14 The Board's primary case is that the DC was under no duty to give reasons for its decision, either pursuant to the Rules or as a matter of law. It seeks to rely on McInnes v Onslow-Fane [1978] 1 WLR 1520 which was concerned with a licensing decision by the British Boxing Board of Control. Megarry V-C held that, although appropriate requirements of natural justice and fairness were to be imported, (and I quote from the headnote):

"... since the case ... was not one involving forfeiture of an existing right or deprivation of an existing position, and was equally not one where the plaintiff had any legitimate expectation that his application for a boxers' managers' licence would succeed, the board, while under a duty to reach an honest conclusion without bias and not in pursuance of any capricious policy, were under no obligation to give the plaintiff even the gist of their reasons for refusing ... his application."

15 On behalf of Mr Cronin, Mr Lock submits that this approach must now be seen in the light of more recent authorities in which regulatory bodies (whether statutory or voluntary) which make decisions of a disciplinary nature, which decisions may have a profound impact on a person's ability to participate in his chosen occupation, are generally required, as a matter of procedural fairness, to provide reasons for their decisions. He refers to a number of authorities, the high watermark of which is Phipps v General Medical Council [2006] EWCA Civ 397. In his judgment, Wall LJ referred to the developing law - "what was exceptional in 2001 may well have become commonplace in 2006" (paragraph 73) - and did not confine his observations to statutory bodies (see, for example, paragraph 78).

16 Reminding myself that, at this stage, we are concerned only with the arguability and not with the ultimate correctness of Mr Cronin's case, I am satisfied that the absolutist stance of the Board is arguably wrong and that, at least at some stage in the procedure, a duty to give reasons arises. Even if an affected person has no wish to challenge an adverse decision, he may be entitled, as a matter of law, to such reasons. However, that is not the end of the matter."

104.   The Court of Appeal in Cronin therefore doubted whether the observations of Megarry V-C not to give reasons in relation to a person's desire "to participate in his chosen occupation" remained good law.  However, the appeal was refused because of the failure by the plaintiff to appeal against the original decision of the defendant.

105.   What conclusions can be drawn from these cases which they have developed?  In my judgment the following principles emerge.

106.   The principles of natural justice apply in expulsion or suspension cases to the extent that someone facing the threat of expulsion or suspension or a similar disciplinary process is entitled to know the case against them and is entitled to some form of hearing.  I add that in such a case the processes to be adopted by a sporting club does not need to be and should not be complex. 

107.   A sporting club carrying out a disciplinary process should not be turned into a court or quasi-tribunal.  Rather, what is required is basic fairness in the sense of setting out briefly why a person is being disciplined and allowing that person whether orally or in writing or possibly both to set out their version of events.  Someone facing disciplinary action should also be entitled to comment on what is an appropriate penalty. 

108.   I consider that the same principles apply to non-renewal of membership.  Once someone has been admitted as a member of a sports or social club, where refusal of a renewal of membership is contemplated, an individual should be warned of such a possibility and the concerns of the particular club so that the affected individual can respond.

109.   It is arguable that reasons should be given for expelling or suspending an individual or refusing to renew their licence.  Cronin supports this argument.  By contrast McInnes points the other way.  Irvine also suggests that failure to give reasons in a disciplinary type case may be relevant where other breaches of natural justice have occurred.  This could mean however that, absent other breaches of natural justice in disciplinary cases, then otherwise there is no right to reasons.

110.   In application cases concerning a person's desire to pursue a particular livelihood, there is an obligation not to act capriciously or with bias. 

111.   Also in application cases concerning a livelihood, McInnes suggests that there is no obligation to give reasons for refusal of membership and that an individual who is refused a licence in a livelihood case is not entitled to know the reasons why.  In my view, Cronin recognises that in a decision which affects an individual's livelihood the courts might require the principles of natural justice to be applied and the person to know the charges against them, although courts should only interfere with hesitation.  The extract from McInnes set out at paragraph 87 above may therefore no longer hold true for disciplinary or livelihood cases.  It is not necessary for me to resolve this potential difference because the present case is not such a case.  However, the trend appears to be that reasons are now required for such cases, which is the view I would reach if the point had to be decided.  The highest that the plaintiff could put his claim was that it affected his standing in the community which I address below.

112.   On purely application cases, as Nicholls L.J. (as he then was) put it in Currie v Barton in 1988, no case has been cited where the court has intervened where a decision in question was not one which affected the person's ability to earn a living.  The authors of Ashton and Reid writing in 2011 support this view where they state at paragraph 4.2, "...as a general proposition, a person cannot complain if he or she is refused membership of a club".  The authority cited in support of Ashton and Reid's statement is Nagle.  No case is cited against the general proposition.  Nor has any such case been found where a court has reached a different view.

113.   At paragraph 13.5 of Ashton and Reid in answering the question "what would a reasonable man considered to be fair in the particular circumstances" the authors stated as follows:-

"But this begs the question what is fair? The answer would appear to be that if liberty of the claimant or his livelihood or his property is at stake, the court is likely to require the rules of natural justice or perhaps better expressed the rules of fair play to be properly observed so there is even handedness between the parties; otherwise and subject to what is said in the last sentence of the previous paragraph the court is unlikely to intervene in contractual domestic disputes between the club and a third party even if the rules of natural justice have not been observed." (underlining added)

114.   There has been no decision where on a refusal of an application to become a member of a club any court has chosen to apply the principles of natural justice.  All the authorities cited by the plaintiff are disciplinary cases.  Yet even in such a case in Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117 the English Court of Appeal echoed the concerns in McInnes about courts becoming involved in the affairs of sports clubs and stated at paragraph 19:

"It seems to me inherently unsatisfactory that a hearing before a sporting tribunal lasting between 1 and 2 hours should be followed by a High Court hearing lasting 10 days and an appeal taking up a further day and a half. It is important to bear in mind the words of Mance LJ in Modahl v British Athletic Federation Limited [2002] 1 WLR 1192, 1226 para 115 to the effect that a conclusion that the disciplinary process should be looked at overall matched the desirable aim of affording to bodies exercising jurisdiction over sporting activities as great a latitude as is consistent with the fundamental requirements of fairness. In this regard he cited the words of Sir Robert Megarry V-C  in McInnes v Onslow Fane [1978] 1 WLR 1520 , 1535 F-H approved by Sir Nicolas Browne-Wilkinson V-C in Cowley v Heartley, The Times 24 July 1986 :

"I think that the courts must be slow to allow an implied obligation to be fair to be used as a means of bringing before the court for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause."

115.   There a number of reasons which explain the reluctance of the courts to become involved in application decisions. 

116.   Firstly, no right has been taken away (McInnes v Onslow-Fane at page 1529 line E cited above).

117.   Secondly, courts have all concluded that sports and social clubs are best placed to regulate their own affairs (see McInnes v Onslow-Fane at page 1535 lines F to G followed in Currie v Barton).

118.   Thirdly, applying natural justice to application cases might lead to significant litigation involving small clubs.  The point was put clearly by Lord Justice O'Connor in Currie v Barton where he stated on page 3 as follows:-

"It may be an entirely different matter when it comes to consider who should fly pigeons this week and who should fly pigeons next week, or who should fish this bank of the river this month and who should fish it next month. All those are matters which are dealt with by sporting clubs up and down the land and no one suggests that the courts should butt into those affairs or that people making that kind of decision should have to look over their shoulders and say, "Goodness gracious me; if we do this, we may get a writ served on us and have to incur the expenses of litigation because one of our people does not like what we have done." That to my mind is poor law and there is no authority for it."

119.   While the above quotation applies to the running of clubs, in my judgment the same concerns apply to decisions to allow people to become members.  As it was noted in paragraph 4.2 of Ashton and Reid set out above, the ability to reject persons who are or apparently are unsuitable, has been an important factor in sustaining clubs over a long period time.  To require a process, which is the essence of the plaintiff's complaint, if a club was contemplating not admitting someone as a member, is to invite the court to become involved in areas where the court should not intrude.  Decisions of clubs about whom they wish to be members should therefore be left to the clubs themselves.  In my judgment therefore the requirement of a process based on natural justice only applies once an individual has become a member and is facing some form of disciplinary action.

120.   Although this was not set out in the order of justice expressly, the observations in McInnes and Currie v Barton also mean that an individual is not entitled to know the reasons why membership of a sports or social club has been refused.  While it is tempting to say in this day and age individuals should be entitled to know why an application for membership has been declined, to require reasons to be given takes the courts into areas in which they should not intervene and would undermine the ability of individuals to decide whether or not to enjoy a particular activity together.

121.   This conclusion does not mean that organisations who refuse membership as a matter of practice might not wish to explain reasons.  If the reasons concern the number of existing members or that an individual needs to obtain some qualifications or experience before that person can be admitted as a member, there is no difficulty in giving such an explanation. Indeed it might be in the club's interest to do so.  However where reasons are more subjective and depend on the views of existing members or the potential impact of a new member based on his or her personality, there may be a reticence to explaining why an individual is not regarded as suitable for membership.  I consider that clubs should be free to take such decisions as they are best placed to assess concerns raised about the impact of a new member and that the court should not use principles of natural justice to intervene in such decisions.

122.   I accept that a refusal might give rise to a risk of speculation and gossip in a small community.  However, this is not a problem unique to Jersey; it is a challenge that anyone rejected for membership in many communities might face.  This is not a reason to take a different approach than other courts have taken to date. Individuals are protected from speculation and gossip by the law of defamation.

123.   I also consider that any difficulties that an individual might face due to a refusal of membership are outweighed by the importance of clubs being able to regulate their own affairs.  Ultimately, all such clubs will depend on their members to carry out on a voluntary basis the many different tasks that running an amateur sports club involves.  Not to be able to reject an applicant because that person might be seen to upset that balance is not a direction the law should take.  Apart from the law of defamation, the other protection for applicants is that if a club is too rigorous in rejecting individuals because they might not get on, or too restrictive about who it admits as members, that club will not attract the members it needs in order to survive and to thrive.  The need of clubs for members in my view is likely to mean that rejection of an applicant for reasons of character will be a rarity.

124.    I therefore conclude that the plaintiff's applications for membership of the second, third and fourth defendants were just that and that the plaintiff is not entitled to know why his membership was refused.  There is also no basis in law to require those defendants to set out their preliminary objections or to allow the plaintiff the opportunity to respond to those objections.  It is not for the Court to require a club to follow a process for admission of members. 

125.   I have also reached the same view in relation to the complaint against the first defendant.  This is because the plaintiff was clear that he had left the first defendant.  He accepted in argument in response to a direct question that he had voluntarily decided to do so.  His acceptance of this was also consistent with the application forms he signed to join the second and fourth defendants.  In other words by the beginning of 2016 the plaintiff of his own volition was no longer a member of the first defendant.  Accordingly, the decision of the first defendant in April 2016 was an application decision.  It was not an expulsion decision or a refusal to renew a membership taken by the club.as the plaintiff had already in his own words made it clear that he had left the first defendant.  The minutes of the meeting on 6^th April are also consistent with this conclusion.  The first defendant was considering "re-admission" to decide whether to let the plaintiff "back in" not a renewal.

126.   If an individual leaves a club and later seeks to re-join that club at some later date in the future, that is a new application for membership and the club is entitled to refuse that application.  On the other hand if a club wishes to refuse renewal of membership where a member wishes to continue as a member that is a form of expulsion where the principles of natural justice do apply.  There is a fine but important distinction between voluntarily leaving and trying to re-join at a later date on the one hand and a club deciding not to renew membership of an individual who want to continue as a member.  The plaintiff in relation to the first defendant by his own admission and contemporaneous documents completed by him is in the former category not the latter.

127.   The plaintiff also had no legitimate expectation that he was going to be allowed to re-join the first defendant.  The meeting came about, as the plaintiff described, because the Captain of the first defendant agreed to ask members whether to let the plaintiff be admitted as a member in light of his rejection by the second and third defendants and the plaintiff's consequent resignation from Bowls Jersey.  If the plaintiff had still been a member of the first defendant he would not have had to have resigned from Bowls Jersey.

128.   While I have concluded that there is no requirement on clubs to follow a process in deciding whether to admit or reject applicants for membership, I should also address whether, on applications for membership, there is a duty not to act capriciously or with bias.  In McInnes, while it was accepted that the board was under a duty to reach an honest conclusion without bias and not pursuant of capricious policy, the concession did not extend to sports clubs.  Megarry v V-C stated expressly "that natural justice did not have to be observed on admission to a sports club".  McInnes does not therefore support the proposition that in relation to an application for memberships of sports and social clubs, a decision to refuse admission can be challenged if a club acts capriciously or is biased against the applicant.  Rather, both McInnes and Nagle note that clubs could do as they like in refusing members.  Nicholls L.J. in noting in Currie v Barton that there was no case where the court has intervened in non-livelihood cases appeared to be of the same view.  So do the authors of Ashton & Reid in the extract emphasised at paragraph 113 above written in 2011 some 45 years after Nagle.  The application of such a duty in administrative law cases or where a livelihood is at stake also does not lead me to conclude that the same duties apply in application cases.

129.   It would also be difficult for a court to assess a breach of any duty not to act capriciously or with bias in the context of sports clubs.  A member of a decision making body of a club might be said to be "biased against" an individual in the sense the member does not like that individual.  However, where is the line to be drawn between dislike and genuine concerns about the impact of the applicant on the membership of a club even if the concerns arise from not liking an individual?  These are not straightforward questions.  They would also lead to the courts having to second guess decisions made by individuals with the best knowledge of the club concerned, its members, how it is run and its aspirations.  There is a difference between deciding whether someone has met a threshold to be granted a licence (as in Jockey club cases) or whether rules of a club have been breached leading to potential disciplinary action on the one hand where an objective view can be taken about whether the relevant requirements have been met or breached and on the other hand a subjective assessment of whether an individual will fit into a club.  The Courts are able to deal with the former to address unfairness but not the latter.

130.   The existence of such a duty would also mean it would be all too easy to drag a club into a dispute before the courts by alleging capricious behaviour or bias.  This would undermine the conclusion I have reached that a club does not have to give reasons for refusing admission.

131.   In this case, even if there is a duty not to act capriciously or with bias in the context of sports clubs contrary to my conclusions, such a possible duty does not assist the plaintiff in this case.  Firstly, his order of justice does not state expressly that any members acted capriciously or with bias.  Secondly, in opposition to the application for summary judgment, he has not provided any evidence to support any allegations that one or more of the defendants might have acted capriciously or with bias.  The inference that those considering the application might have listened to rumour and gossip is not sufficient.  To sustain an allegation that individuals acted capriciously or with bias would require detailed particulars of which individuals are said to have acted either capriciously or were biased and why they were biased. 

132.   Even if such detail could be provided, the plaintiff does not seek to set aside the decisions made. Instead he claims damages.  However, there is no basis to claim damages.  There was no contract between the plaintiff and any of the defendants.  The plaintiff also accepted that on an admission application, no duty of care was owed by any of the defendants.  Even if there is a duty not to act capriciously or with bias, the only remedy that could be granted by a court is the setting aside of a decision.  However, this is not what the plaintiff seeks.  His claim for damages therefore must be dismissed as it is not sustainable in law.  This alone is a justification for not allowing a trial to take place.

133.   I should add for the sake of completeness that in respect of expulsion or suspension cases, it is arguable that some level of damages can be awarded.  If someone is wrongly suspended that might give rise to return of a membership fee for a period of wrongful suspension or exclusion.  It is also not unarguable that if a disciplinary process has taken place in breach of a contractual right of a member, such a breach of contract might be a basis to award damages for injured feelings by analogy with the well-known case of Jarvis v Swan Tours [1973] QB 233 which is one of the exceptions to the general rule that damages for injured feelings are not generally awarded. (See also the discussion in Haden-Taylor v Canopuis [2015] (1) JLR 224 at paragraphs 157 to 164).  Any such damages would however likely to be modest and not of the magnitude of the sum asked for by the plaintiff.

134.   Finally, I deal with the plaintiff's invocation of Article 6 of the European Convention on Human Rights commonly referred to as the right to a fair trial.  However, Article 6 only applies in non-criminal cases to the determination of an individual's "civic rights or obligations".  In this case the plaintiff accepts that members have the right to choose who should or should not be allowed to join a sports or social club.  He also accepts that he has no contract with any of the defendants and is not owed a duty of care.  This means there is no civil right to determine and so Article 6 is of no assistance to the plaintiff.

135.   For all these reasons the defendants' applications are granted and summary judgment is entered that there is no claim for the defendants to answer.

Mediation?

136.   While the plaintiff's claim is dismissed I must also separately deal with the plaintiff's request that I stay this case to enable mediation to take place.  Ultimately the basis of this submission was the plaintiff's desire to play bowls and in particular his desire to play on grass and in competitions organised by Bowls Jersey.  In relation to this request, it may be possible for the plaintiff to become a member of the other outdoor bowling club and therefore to play in competitions run by Bowls Jersey.  However, in relation to his desire to play lawn bowls, while no club as I have found is obliged to admit the plaintiff as a member and so his claim is dismissed as not justifying a trial, his continued desire to play bowls is something that might be explored using the community mediation services offered by the Citizens Advice Bureau.  I should make it clear that this is an observation only to see whether some form of accommodation can be arrived at to enable the plaintiff to pursue his chosen activity.  In making the suggestion I would add that any resolution might require a compromise on both sides.  From the plaintiff's perspective, any agreement to allow him to play bowls might carry the price of the plaintiff not playing any other role in any club as he has previously.  No doubt any club would also be concerned about ensuring harmony between members and might want appropriate assurances from the plaintiff.  Whether any party is willing to engage in such discussion is of course entirely a matter for that party.

Authorities

Royal Court Rules 2004, (the "Rules") as amended.

Royal Court (Amendment No.20) Rules 2007.

Holmes v Lingard & Anor [2017] JRC 113.

MacFirbhisigh & Ching v CI Trustees & Ors [2017] JRC 130A.

Ashton & Reid on Clubs and Associations (2011 Second Edition).

Equality Act 2010.

Discrimination (Jersey) Law 2013.

Nagle v Feilden and Ors [1966] 2 Q.B. 633.

McInnes v Onslow-Fane and Ors [1978] 1 W.L.R. 1520.

Currie v Barton [1988] WL 622889.

R (Irvine) v The Royal Burgess Golfing Society of Edinburgh [2004] LLR 334.

Cronin v The Greyhound Board of Great Britain Ltd [2013] EWCA Civ 668.

Bisson v JPCA [2017] JRC 087.

Bisson-v-JPCA [2017] JCA 156.

Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117.

Jarvis v Swan Tours [1973] QB 233.

Haden-Taylor v Canopuis [2015] (1) JLR 224.