Scottish Court of Session Decisions

In this petition for judicial review the petitioner seeks to challenge a decision, dated 29 November 1995, whereby he failed the club repairs element of an examination held by the respondents. When the petition came before me for a First Hearing counsel for the respondents invited dismissal of the petition at this stage on the grounds that (a) it was incompetent and (b) if the petition were competent, the petitioner was now barred by mora taciturnity and acquiescence. The plea of mora, along with supporting averments, was included in Answers intimated by the respondent to the petitioner very shortly before the first hearing and as discussion proceeded at the first hearing it became plain that the factual background relevant to the plea of mora was not without dispute and that the petitioner required an opportunity to respond to the averments made in the Answers. It was accordingly accepted by parties that the only issue to be decided at this stage should be the competency of the petition.

The respondents are the Professional Golfers Association Limited, a company incorporated under the Companies Acts whose liability is limited by guarantee. They are described in the pleadings as being "a regulatory and professional body for professional golfers in the United Kingdom". The averments in the petition and answers do not expand significantly on that description but it appears from the documents lodged and referred to at the first hearing that, put shortly, the company acts as manager for an association of certain professional golfers. As part of that function the board of directors of the respondents has set out the rules and regulations of the Association to which they from time to time admit people as members. The Regulations (6/2 of Process), incorporated in the pleadings, contain provisions regarding among other things the classes of membership, the approval of golfing establishments and the registration, training and examination of those wishing to become eligible for election to membership of the Association.

One class of member of the Association is a Class C member, who is the tournament playing professional and the present proceedings are not concerned in any way with that category of professional player. Other members of the Association include those who provide instruction and advice at certain golf courses or driving ranges or the like in the United Kingdom. Thus Class A membership is described in para 1.1 of Part 1 as follows:-

The definition of a Class A(T) member is in the same terms but with the inclusion of the additional words at the end: ".., and in either case, which has been inspected and approved as a PGA Approved Training Establishment and currently holds that status".

It appears that in furtherance of their arrangements the respondents grant their approval to various "golfing establishments" described in para 1 of Part 4 of the Regulations as being either a "PGA Approved Club or Driving Range"; a "PGA Approved Training Establishment"; or a "PGA Approved Establishment" with limited facilities. Taking the example of a golf club wishing the respondents' seal of approval para. 2.1 of Part 4 provides that the club must have:-

Paragraph 3 of Part 4 deals with PGA Approved Training Establishments. Such an establishment is defined in paragraph 3.1 as one

and which satisfies the other criteria laid down in the succeeding sub-paragraphs. Those sub-paragraphs to an extent replicate those for an Approved Club but include also (3.1.7) "workshop facilities with the tools and equipment required to carry out all the work described in the club repairs section of the PGA training manual". Paragraph 4 of Part 4 deals with PGA Approved Establishments with limited facilities, which include such things as a PGA approved shop. PGA Approved Establishments are inspected by the PGA in terms of paragraph 5 of Part 4.

Part 5 of the Regulations is headed "Registration of Potential Members" and contains a number of provisions relating to the relevant class of membership with which this petition is concerned. By way of summary of the principal provisions, it appears that an applicant for membership must spend a period of not less than six months as a "probationer" at a PGA Approved Club, PGA Approved Driving Range or PGA Approved Training Establishment as a preliminary to his becoming a "Registered Trainee". A Registered Trainee is employed by either a Class A(T) member or an approved establishment under the direction of such a member. He pays a non-refundable registration fee to the respondents. A Registered Trainee must attend residential training courses run by the respondents and among other things is required to complete a log book. A number of training responsibilities are expected on the part of his employer. Importantly for present purposes, para 9.4 of Part 5 provides that a Registered Trainee "must pass all elements of the PGA final examination in order to become eligible for election to membership". It may be added that in addition to passing all elements of the PGA final examination a registered trainee must also satisfactorily complete a first year and second year residential course, complete all log book assignments and show evidence of playing ability to particular standards.

The petitioner avers that he wished to become a professional golfer and accordingly he became a "Registered Trainee". It appears that in due course he was invited to present himself for the respondents' final examination. He failed the element of the examination relating to the repair of golf clubs. For the event of such a failure, paragraph 10 of Part 5 of the Regulations provides as follows:-

It appears that the petitioner made a second attempt at passing the club repairs element of the respondents' final examination but again failed. On 29 November 1995 he made a third attempt but this was also unsuccessful. That was his last chance to pass the club repairs element of the final examination, all other elements of which he had already passed. The two year "holding period" thus expired without his having achieved success in the final examination and his registration as a trainee was accordingly cancelled.

The petitioner now seeks to challenge the decision of the respondents' examiner who conducted that examination at which he was failed for the third time. The reasons for which the petitioner was failed do not require consideration at this stage but to complete the background it is sufficient to say that the examiner failed the petitioner (a) for having used, in the practical examination consisting of the repair of a club by the insertion of a swing weight, a drill bit of incorrect size and for having omitted to undercut the cavity; and (b) the petitioner having inserted insufficient lead in the hole, for having made a second, incorrectly positioned hole. The petitioner denies that he in fact committed the errors noted by the examiner under (a) and further maintains that the course which he followed under (b) was not inconsistent with proper practice.

In addition to seeking reduction of the examiner's decision the petitioner seeks an order for his restoration as a registered trainee and an order

In inviting dismissal of the petition Mr Campbell, who appeared for the respondents, made certain submissions regarding the nature of the orders sought by the petitioner but his principal submission was to the effect that the relationship between the petitioners and the respondents was properly a contractual one; there was no tri-partite arrangement whereby any power or jurisdiction was conferred upon a third party; and accordingly, there was no inferior tribunal over whom the supervisory jurisdiction of the Court of Session might be exercised. A petition for judicial review was an application to that supervisory jurisdiction and in view of the bilateral relationship between the petitioner and the respondents, judicial review was an incompetent mode of proceeding in the present case. In support of his submission Mr Campbell referred in detail to the opinion of the Court in West v Secretary of State for Scotland 1992 SC 385. He submitted that in West the court had identified a tri-partite or triangular, relationship, whereby a power or jurisdiction was conferred on an authority or tribunal, as the touchstone for the exercise of this Court's supervisory jurisdiction. But the Regulations promulgated by the respondents did not purport to confer any power or jurisdiction on a person or body of examiners independent of the respondents. The final examination was the respondents' final examination. The selection of the particular individual to conduct a particular element of the examination was a matter for the respondents. They might entrust the task to a particular employee - say the director of training - or engage an outside individual to carry out the task. The fact that a corporate body or other organisation delegated a decision to an officer or employee, or chose to employ an outside contractor ad hoc did not constitute the conferring of the power or authority in such a way as to elevate the situation into one in which application might be made to the supervisory jurisdiction of the Court of Session by way of a petition for judicial review. By registering as a registered trainee the petitioner placed himself in an essentially contractual relationship with the respondents whose obligations included that of carrying out the final examination. It might be implied as a term of that contractual relationship that the respondents would carry out the examination fairly or reasonably but an obligation to act fairly or reasonably did not create a supervisory jurisdiction situation. Counsel for the respondents referred to Blair v Lochaber District Council 1994 SCLR 1070; 1995 SLT 477. For completeness, reference was also made by counsel to Naik v University of Stirling 1994 SLT 449 and Jobeen v University of Stirling 1995 SLT 120.

In his response to the respondents' argument to the effect that the petition was incompetent Mr Stewart, for the petitioner, accepted that the competency of this petition fell to be determined in accordance with the tests set out and explained by the Court in West, particularly at p. 412 - 413. He submitted that the examiner was the person upon whom a jurisdiction had been conferred. The respondents having appointed an examiner to consider the petitioner's performance the tri-partite arrangement desiderated in West existed in the present case. Counsel referred in particular to the passage in the Opinion of the Court in West at p. 400 in which the decision in St Johnstone Football Club v Scottish Football Association Ltd 1965 SLT 171 was discussed. It was there pointed out that the articles of association of the SFA, to which St Johnstone were subject as members of it, empowered the council to fine or expel members. That tri-partite situation was, said counsel, analogous to the present case. However Mr Stewart accepted that nowhere in the PGA Regulations was there any provision constituting anything like a board of examiners or setting out criteria for the appointment of examiners or setting out parameters for the conduct of the examination procedures or the like. As I understood him, counsel also accepted that it would be difficult to contend that a decision that a registered trainee had not satisfactorily completed the residential course would be subject to judicial review.

In my view it is clear that in its Opinion in West the Court set out to define the principles by reference to which the competency of applications to the supervisory jurisdiction under the Rules of Court relating to petitions for judicial review must be determined. The principles, and the explanatory points expressed by the Court are relatively well known and it is, I think, unnecessary to quote them at any length . In the debate in the present case attention was especially directed towards explanatory point (d) in which the Court said this:

The existence of a tri-partite relationship was identified elsewhere in the Court's Opinion as a hallmark of cases in which application to the supervisory jurisdiction of the Court of Session was competent. Thus, having noted that the public or private law or nature of the inferior body or tribunal was not decisive, the Court stated, at p. 400:

In my view it is apparent that a tri-partite relationship of the kind envisaged by the Court in West is not constituted by the fact that one party to an otherwise bi-partite relationship may delegate a decision to an employee or agent. A body corporate, and also an unincorporated association, must necessarily act through employees, officers or agents. As Mr Campbell pointed out in the course of his submissions, in West the petitioners' claim for removal expenses was in fact delegated to an officer who was endeavouring to interpret and apply a set of rules ["the red book"] governing service conditions within the Scottish Prison Service in which Mr West was engaged. That delegation of the decision to the officer did not constitute any element of a tri-partite relationship.

Looking to the scheme and terms of the respondents' Regulations and particularly those governing the qualification of applicants for eligibility for election to membership of the Professional Golfers Association, which it was accepted governed the relationship between the petitioner and the respondents, I have come to the conclusion that the Regulations do not create a tri-partite relationship conferring any power or jurisdiction within the sense envisaged by the Court in West. As counsel for the petitioner conceded, there is nothing in the Regulations which establishes any examiner, or examiners as a body, possessing an identity outwith the Association as managed by the respondents' company. The references to the final examination to be found within the Regulations are all references to the "PGA Final Examination". In my view the examining body is truly the Association itself, as managed by the respondents, and it appears to me that the selection of the individuals who will conduct the various elements of the examination is an internal matter for the respondents in their management of the Association. I consider that on a proper analysis one is here concerned with a private, non-statutory, organisation which grants its seal of approval to establishments or persons considered by it to meet its particular criteria or standards, should the person or establishment apply to it for such approval. The relationship between the applicant for such approbation or commendation and the prospective grantor thereof is, in my view, a bi-lateral relationship. No doubt the approving body will require to deal with the application by the means of a remit to inspectors or examiners within its organisation or invited, ad hoc, agents from outside contractors. However, I do not consider that by a person's making application to the approbatory or examining body for the exercise of that examining function, the body's necessary employment of agents or employees to conduct that function involves the conferring of a power or jurisdiction on a third party.

Counsel for the petitioner placed reliance on the passage in the Opinion of the Court in West concerned with the discussion of the decision in St Johnstone Football Club Limited v Scottish Football Association Limited 1965 SLT 171. He submitted that the position in the St Johnstone case, as analysed by the Court in West, was analogous to the position in the present case. At first sight that submission has a certain attraction but I have come to the view that it is unsound. St Johnstone had been granted membership of the Scottish Football Association. The Articles of Association governed relationships between members of the Association. Those Articles expressly provided for adjudication by the Council of the SFA of disciplinary matters affecting those admitted to membership of the Association. Where those admitted to membership of an association agree by the articles of their association that a particular tribunal, even if drawn from their membership, shall have power to consider complaints and impose sanctions on members, one can readily see the conferring of a jurisdiction and the constitution of that touchstone tri-partite relationship stressed by the Court in West. However, those seeking admission to an association are not within that particular tri-partite relationship. In essence, the present petitioner submitted himself for examination by the association managed by the respondents and it does not appear to me that a decision by the respondents that the petitioner does not meet their criteria can be said to be an the exercise of a power or jurisdiction conferred in a tri-partite arrangement. I therefore conclude that counsel for the respondents is correct in his submission that the procedure selected by the petitioner is incompetent.

Having thus reached the view that this petition for judicial review is incompetent, I think it unnecessary and inappropriate that I express any view on the competing submissions in relation to the form of orders sought. I would merely observe that the inconsistency to which Mr Campbell pointed between the order seeking reduction of the examiners decision and the order requiring the respondents to reconsider the petitioner's performance is perhaps a reflection of the absence of any true tri-partite relationship as desiderated in West.

I must accordingly uphold the first plea-in-law for the respondents and dismiss the petition.