Scottish Court of Session Decisions

The following narrative is taken from the opinion of the Lord Ordinary ( Kincairney)—“This action by the Renton Football Club against the Scottish Football Association and others, concludes for reduction of a minute of the Business and Professional Committee of the Association, whereby the committee are said to have decided that the Renton Football Club be declared professional, and expelled from the association, and for declarator that the minute was ultra vires of the defenders, null, void, and illegal, and that the Renton Football Club are still members of the Scottish Football Association, are not professional, and are entitled to the rights, privileges and benefits of membership thereof. There is a conclusion for £5000 in name of damages, but any difficulty caused by that conclusion has been removed by its withdrawal by senior counsel for the pursuers; and a minute of restriction has since been lodged in process.

“It may be explained that there are stringent regulations by the Scottish Football Association against what is called professionalism, or playing for remuneration.

The pursuers are the Renton Football Club, its president, vice-president, match president, honorary secretary, and treasurer, seven other individuals described as office-bearers and members of committee, and five other persons described as members of the club.

There are called as defenders the Scottish Football Association, the president, vice-president, and honorary secretary and treasurer of the association, twenty-four individuals described as members of the General Committee, and nine individuals described as members of the Professional Committee of the Association.

Appearance has been entered for the secretary of the association, for certain of the members of the General Committee, and for all the members of the Special Committee called as defenders, and they have lodged preliminary defences. No appearance has been entered in name of the Scottish Football Association.

It is averred and admitted that the Renton Club has been for several years a member of the Scottish Football Association, which comprises a large number of clubs and affiliated associations, each of which is entitled to send representatives to the annual meeting.

The pursuers aver that the Scottish Football Association has a constitution and rules, and that it has considerable funds and heritable property, that it leases offices in Glasgow, which are kept for the use of the members, and which all members of the Association have a right to use.

The pursuers set forth their objections to the resolution under reduction, and the grounds on which they seek to reduce it, which need not be considered at this stage; and they say that the consequences to them of this attempted expulsion are very serious, because they will then cease to have the benefit of the funds and property of the association, and because—which is the real hardship—the other clubs and affiliated associations forming the Scottish Football Association are debarred from playing with them.

I think there can be no doubt at all that, if their averments are true, the pursuers will gain a considerable advantage if they succeed in this action, and that it is quite worth their while to raise it if they are in law entitled to do so.

The defenders aver that the Renton Football Club is composed of a large number of members, and that the pursuers do not represent and have no right to use the name of the Renton Football Club for the purposes of this action,—that the club is not incorporated or entitled to sue under its name.

To this averment the pursuers make this reply—‘The Renton Football Club is composed of nearly 200 persons. The pursuers

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were duly authorised at a meeting of the club to sue the present action.’

Concerning the Scottish Football Association, the defenders aver that it comprises 172 clubs and 11 affiliated associations; that it has no individual members; that none of the clubs or associations have been called to the action; that three members of committee have not been called, nor the honorary president.

The defenders have stated the following preliminary pleas—(1) The action is incompetent. (2) No title to sue. (3) The action should be dismissed, because—1st, The pursuers are not entitled to sue; 2nd, the defenders are not duly convened; 3rd, the defenders have not been legally cited; 4th, all parties are not called. (4) The averments are irrelevant.

In support of the defenders' first plea that the action is incompetent, they contended that the questions raised and interests involved were not such as a court of justice could consider, and that no question of civil right or patrimonial interest was really raised. They quoted Forbes v. Eden, December 8, 1865, 4 Macph. 143— aff. April 11, 1867, 5 Macph. (H. of L.) 36, in support of the position that the Court could never entertain questions regarding violation of the constitution of voluntary associations where no patrimonial interests were involved.

On this point I am of opinion, that assuming the truth of the pursuers' averments, the action is such that the Court may and is therefore bound to entertain. I do not require at this stage to consider whether it is competent for the Court to give the pursuers the full remedy they ask. It will be for consideration when the merits of the case are reached, whether a decree of declarator that the Renton Club is not professionial can be pronounced. Neither does it seem necessary to express any opinion as to the nature and amount of the patrimonial interest which will warrant recourse to the Court, nor to affirm absolutely that there cannot be cases in which courts of justice might intervene, even although no interest of a strictly patrimonial character could be alleged. For I think there is no doubt that there is in this case an ample allegation of that kind of patrimonial interest which in many cases has been regarded as sufficient to give jurisdiction to the English Courts in actions relating to expulsion from clubs. Reference was made by the pursuers to the dicta of Lord Denman in Innes v. Wylie, 1844, 1 Car. & Keenan, 257; to Wood v. Wood, June 1, 1874, L.R., 9 Ex. 190; to Fisher v. Keane, 1878, 11 Ch. Div. 353; to Labouchere v. Wharncliffe, 1879, 13 Ch. Div. 346; and especially to the judgment of Jessel, M.R., in Rigby v. Connol, 1880, 14 Ch. Div. 482. And, on the whole, I think it plain enough that this action cannot be thrown out as incompetent at this stage as not disclosing any question which can be judicially entertained.

In support of the plea of no title to sue, it was maintained that the Renton Football Club, not being incorporated, could not sue by that name alone, and that as it was not a trading company, it was not sufficient to add the names of certain selected members, but that, being an unincorporated association not established for purposes of trade, it was essential that all the members should join in the action. No authority was quoted for that proposition, which was submitted as being elementary and self-evident. The pursuers contended that in joining with the club its office-bearers and several of its members they had stated a sufficient instance. This contention may be sound, although I do not think that any exact precedent was quoted. But the pursuers have not left their title to depend on that argument, because they have averred that they were duly authorised at a meeting of the club to sue the action. It appears to me that that is a relevant averment— Bow v. Patrons of Cowan's Hospital, December 6, 1825, 4 S. 276; Jamieson v. Watson, July 15, 1852, 14 D. 1021—and I propose to allow them to prove that averment. If they succeed in proving it their title will be considered on that footing; if they do not, it will be open to them to maintain that the instance is sufficient without that authority.

The first head of the third plea seems a repetition of the second plea.

The second head of that plea is that the defenders are not duly convened. I understand this plea to mean that the Scottish Football Association is not duly convened. It is a very peculiar body, and it is averred—what seems impossible—that there are no individual members of it at all. It holds meetings, however, passes resolutions, and possesses property, heritable and move-able. The defenders' argument came, I think, to this, that there could be no competent action of the kind now brought unless all the members of all the clubs and affiliated associations of which the Scottish Football Association consisted were called, which is obviously a practical impossibility; that otherwise the association could not be sued at all, and that if through the fault of its servants or the contract of its officers the association incurred an obligation its property could not be reached by its creditors.

The defenders rested their argument chiefly on the case of M'Millan v. The General Assembly of the Free Church, July 9, 1862, 24 D. 1282, and in particular on the dicta of the Lord President at p. 1291, and also on the judgment and note of Lord Jerviswoode in a subsequent action by Mr M'Millan v. The Free Church of Scotland, and its officials, July 20, 1864, 2 Macph. 1444. The pursuers relied mainly on the case of Somerville v. Rowbotham, June 27, 1862, 24 D. 1182. I think it unnecessary to say more than that that decision appears to me to be substantially in point, and I consider that I follow it in repelling the defenders' plea now in question.”

It is unnecessary to consider the objection to the citation.

The Lord Ordinary upon 6th January 1891 pronounced the following interlocutor:—“Repels the first plea-in-law, and

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the second, third, and fourth heads of the third plea-in-law stated for the compearing defenders: Further, repels the fourth plea-in-law stated for the compearing defenders, in so far as stated as a plea against satisfying the production, and decerns: And before further answer, as to the second plea and the first head of the third plea for the said defenders, allows the pursuers a proof of their averment that ‘they were duly authorised at a meeting of the club to sue the present action,’ and to the defenders a conjunct probation.” &c.

The defenders reclaimed, and argued—There was no valid authority given by the club to its office-bearers to sue the present action. The members as a whole could not delegate the power to sue to certain of their number—Mackay's Court of Session Practice, vol. i. 332, and vol. ii. 241; Baptist Churches v. Taylor, June 17, 1841, 3 D. 1030; Culcreuch Cotton Company, November 27, 1822, 2 Sh. 47. The Renton Football Club not being a nomen juris and not being a corporation, had no title to sue— Duke of Portland, November 23, 1852, 15 D. 62. The decree sought if granted would be practically inoperative, because the Court could not compel any of the associated clubs to play with the pursuers. No sufficient patrimonial loss had been alleged, and the action was therefore incompetent— Rigby, L.R., 14 Ch. Div. 482.

Argued for respondents—The instance here was sufficient; in addition to the title of the club, the names of the office-bearers and five others was given, and no personal objections were taken to any of these parties, and they were fully authorised by the club to prosecute the present action. Sufficient patrimonial loss had been averred by the pursuers, who alleged that the heritage held by the defenders had been purchased with funds contributed to by them. What the respondents wanted was to be reinstated, as the actings of the reclaimers had been oppressive and illegal— Labouchere, L.R., 13 Ch. Div. 346; Fisher v. Keane, L.R., 11 Ch. Div. 353; Tantussi, 2 Times Reports, 731; Wertheimer on the Law of Clubs, and cases there collected. In citing the defenders the pursuers did all that was required by calling the association, its office-bearers, and certain of its members. It was impossible that the whole membership amounting to upwards of 30,000 persons could be called.

At advising—