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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Welsh v. Committee of the South Western Social and Recreation Club Ltd [2004] ScotCS 154 (25 June 2004)
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Cite as: [2004] ScotCS 154
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Welsh v. Committee of the South Western Social and Recreation Club Ltd [2004] ScotCS 154 (25 June 2004)
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OUTER HOUSE, COURT OF SESSION |
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P287/04
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OPINION OF LORD CARLOWAY in the petition of CHARLES WELSH Petitioner against THE COMMITTEE OF THE SOUTH WESTERN SOCIAL AND RECREATION CLUB LIMITED Respondents
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Petitioner: Forrest; HBM Sayers
Respondents: Clive; Russel & Aitken WS
25 June 2004
1. Facts
[1] The petitioner is a member of the South Western Social and Recreation Club Limited, a body registered under the Industrial and Provident Societies Acts and located in Cardonald, Glasgow. The respondents are Joseph Brawley, Alex Shaw and Robert Brown. In the instance, they are said to be members of "the Committee" of the Club. At one point in the first statement of fact, the respondents are said to be the Committee. Immediately after this it is averred that the members of the Committee on 8 April 2003 were Messrs Shaw and Brown. At a further point in this short statement there is mention of a Joseph Brolly (presumably the same person as the Mr Brawley in the instance) who, along with Chris Ruddy and Messrs Shaw and Brown, are said to be the present members of the Committee.[2] The Committee is established in terms of the Constitution, Rules, Regulations and Bye Laws 2000 [No 6/1 of process] to run the business and affairs of the Club. Although not incorporated into them, the petitioner has lodged and refers to certain terms of the Constitution and Rules his pleadings. So far as relevant, these provide:
"6(a)...Every application for membership must be accompanied by a Deposit for £1 for 1 share of the Club...
MISCONDUCT OF MEMBERS
11(a) No drunkenness, bad language, or other misconduct shall be permitted on the Club premises nor infringing the Club Rules. Any member whose conduct is reported as being injurious to the interests of the Club, shall have their case considered by the Committee, who, if deemed advisable may ask the member to resign. Should said member not immediately do so, the Committee shall have the power to expel such member/s as in Rule 11(b).
(i) Any member brought before the Committee twice within a twelve month period and found guilty of misconduct shall receive a minimum sentence of three months suspension. This is mandatory.
(ii) Any member suspended twice within a twenty four month period, and reappearing again before the Committee for misconduct, shall receive a minimum of one year suspension, if found guilty.
EXPULSION OF MEMBERS
11(b) If a member suspended twice previously for one year or a member suspended once previously for a period greater than one year and is again found guilty of misconduct he will automatically be expelled from the Club, his name being deleted from the Register and his membership cancelled. The member will not be reconsidered for membership and his £1 share shall be refunded.
11(c) Any member found guilty of threatening behaviour, verbal or physical abuse against an employee on Club duty, will be expelled as in Rule 11(b)...
DISPUTES
11(e) All disputes between the members of the Club and/or between a member and any officer of the Club shall be decided by the Committee, whose decision shall be final.
SUBSCRIPTIONS
13(a) The entry fee shall be £30 plus VAT and the annual subscription shall be [£6] plus VAT...
OFFICE BEARERS
15 The Office-Bearers shall be a President, Vice-President, Treasurer and Secretary...
17(b) The Office-bearers shall at all times carry out their duties and act in accordance with the rulings of the Committee.
COMMITTEE
21 The business and affairs of the Club shall be under the management of a General Committee, who shall all be members of the Club, and such Committee shall consist of thirteen, ie: The President, Vice-President, Secretary, Treasurer and nine members of the Club...
VOTING
35 Voting on motions and amendments at all meetings shall be taken by show of hands, except when it is proposed that vote be taken by ballot...The General Committee shall also take the vote by ballot for or against acceptance of any application for membership to the Club. In all cases where a complaint against a member involves the possibility of expulsion or an appeal against expulsion of the Club by a member, the vote shall be taken by ballot.
SPECIAL GENERAL MEETINGS
HOW TO BE CALLED
36 A Special General Meeting shall be called by the Secretary in the following cases...
(c) On a requisition, signed by one-seventh of the members, stating the special object thereof..."
"at the bar area, he had made comments to Ms Gallacher about her size and weight, and in particular to the effect that the large size of her bottom was hampering her movements behind the bar and consequently was slowing down the service she was giving to him and other members of the Club" [p 10 B-C].
Returning to the petitioner's case, it is accepted that his attempt at humour resulted in Miss Gallacher swearing at him, which she did again after both had left the Club and had encountered each other later that same night in the local Chinese "take-away". The following day, the petitioner was informed that Miss Gallacher had made certain allegations against him, particularly that he had "man-handled her". In view of the nature of the allegations, the petitioner requested a meeting with the Committee. The request was in the form of a manuscript note [No 6/2] which reads:
"Charlie Welsh
Could you arrange a meeting for me with the Committee regarding a allegation by one of the bar staff against myself.
Your
C. Welsh"
The petitioner explains that this request was to provide him with an opportunity to explain what had occurred. A meeting was held on 8th April. At this, the petitioner states that he did explain what had happened and had been surprised to have been asked to apologise for his conduct. However, again, he is strangely silent on what he did say his conduct had been even in face of the respondents' clear position that he admitted the remarks about Miss Gallagher's posterior at the bar [p 10 A-B; 12 E]. What he does say is that at some point he requested written details of the allegations and asked the Committee to hear evidence, but these requests were refused. It is the respondents' contention [p 11 C - 12 B] that the petitioner had been informed by Mr Shaw on 1st April of the precise nature of the complaint (as quoted from the record supra), had been told again by Mr Brown in the week prior to the meeting and once more at the actual meeting itself.
The Minute of the meeting [No 7/1] states:
"COMMITTEE MEETING TUESDAY [8th April]
Attendance E Connell (Holiday) B McBride absent
J Reid, M Hester, A Shaw, R Brown, Jn Lockhart, Jas Lockhart, H McAusland & P Rooney in attendance
1 Correspondence
Secretary read letters from ... 3) Miss N Gallacher }same
4) Mr C Welsh }issue
Details of these as below...
3 Both requests from Mr C Welsh/Miss Gallacher in fact the same issue. Miss Gallacher alleged Mr Welsh had verbally assaulted her within the Club whilst she was on duty at the bar. This continued in the Chinese Take away on Paisley Road West. A Shaw had done some investigating when Miss Gallacher first raised the complaint. Mr Welsh had refuted the allegations and also refused to apologise to Miss Gallacher. He insisted his remarks were banter not insult. A copy of Miss Gallacher's letter remains on file.
The Committee felt and noted that Mr Welsh had a total disregard for the Committee as he had to be summoned to the meeting although he knew he had been requested to attend at 8 pm. He was also in the opinion of the Committee inebriated, which did not help his case at all.
Following the interview and arguments with Mr Welsh, the Committee made the decision to suspend Mr Welsh's membership for two years (April 8th 2003 to April 8th 2005) especially as Mr Welsh has been suspended for 6 months for 'threatening behaviour' already.
The Secretary will write to Mr Welsh advising him of his ban from the Club premises.
An additional rider to this was that the Secretary should also counsel Miss Gallacher as to her own conduct and the dress code for bar persons."
The Minute of the previous meeting suspending the petitioner for threatening the club master in 1993 was also produced [No 7/2].
[4] Two days after the meeting, the petitioner received a letter from the Club. Again, although the letter [No 6/5] is not incorporated into the pleadings, there was a quotation from it by the petitioner. The letter reads as follows:
"SOUTH WESTERN SOCIAL CLUB
To : Mr C Welsh From : Alex Shaw
(Club Secretary)
9th April 2003
Mr Welsh
Following your interview last evening regarding the accusations made against yourself by our barperson Miss N. Gallacher. The Committee have come to the decision that Miss Gallagher's allegations against you are in the main correct.
You were offered the opportunity to apologise, to which you declined
Based on this and taking into consideration your previous conduct within the Club, I refer to a previous disciplinary issue for "Threatening Behaviour" we feel the seriousness of this is such that we have no option but to suspend your membership for 2 years from the 8th April 2003 to 8th April 2005.
You are not allowed on the Club Premises during this period.
This has not been an easy decision for us to make.
We also recognise that Miss Gallacher is in part culpable and she will also be dealt with in accordance with a Committee decision.
To conclude, it is unfortunate these circumstances have come about, but in addition to Miss Gallacher's testimony there were others who corroborated her version of events on the evening. It is with these agreeing facts we have based our verdict.
We add, any future disciplinary breaches will result in your permanent expulsion from the Club.
On behalf of the Committee,
Yours Sincerely,
Alex Shaw"
By letter dated 15th April 2003 [No 6/3], the petitioner appealed against the Committee decision on the following grounds:
"It was I who was making the complaint against a member of staff and had no knowledge of any complaint about being made against myself. At the meeting...I...was not aware that I was on trial for my membership. There was no allegations read out for me to answer and I feel I was not allowed the opportunity to defend myself.
In your letter you state others corroborated her version of the events, if I had had the opportunity others could have corroborated my version of the events."
This appeal was heard by a new Committee on 22nd April 2003. The result was explained in a further letter from the Secretary of the Club dated 23rd April [No 6/6]:
"SOUTH WESTERN SOCIAL CLUB
To: Mr C Welsh From: Alex Shaw
(Club Secretary)
April 23rd 2003
Mr Welsh, I received your "Letter of Appeal" yesterday. It was read out at last night's Committee Meeting. The detail of the appeal was discussed at length.
As you are aware this Committee has just been formed. It was the decision of the Committee to uphold the Suspension as originally issued.
Let me clear up some facts from your correspondence;
1. You suggest that you raised your complaint first, this is false, Miss Gallacher in fact raised her complaint first. First with Mr Devlin our Clubmaster on the evening in question, she spoke to two serving Committeemen, all three of them pointed Miss Gallacher in my direction. I spoke to her off the Club Premises at her request as she was upset over the matter. At that point she was requested to put her complaint in writing.
2. In between this one of our Office Bearers Mr R Brown advised you there had been a complaint made against you, which you responded to by leaving a note for myself, the note in handwriting indicates you would like a meeting... "regarding an allegation by one of the Bar Staff against myself"...your own note is proof you were aware of the situation before the meeting ! Which you would have been summoned to anyway, if you had not requested to attend.
3. You did have the opportunity to defend yourself, eight Committeemen heard you admit you insulted Miss Gallacher when you gave your version of events...
4. If you had been more contrite at your interview, things could have been different, your arrogance and argumentative manner did not impress the Committee. Also your refusal to apologise to Miss Gallacher did not help at all. Coupled with this your own history and having been suspended before for 'Threatening Behaviour' you came very close to being 'Sine Die'd that evening. Thus your Suspension stands."
A further letter from the petitioner to the Club dated 8th May [No 6/4] attempted to re-open the matter, maintaining that, whilst he did insult Miss Gallacher, he did so outwith Club premises (i.e. in the Chinese take away). He also complained about the length of the sentence. His pleas were once again rejected, this time in a letter dated 15th May which ended with the words "This matter is now deemed to be closed by the Committee" [No 6/7].
[5] By letter dated 2 June 2003 [No 6/10], law agents acting for the petitioner wrote to the Secretary of the Club requesting information, notably a copy of the written complaint from Miss Gallacher, but not suggesting that any action was imminent or contemplated. In a letter dated 13th June [No 6/8] the Secretary declined to provide the petitioner with Miss Gallacher's written complaint but said that the Committee did not base its decision on that but on the fact that the petitioner had admitted to the Committee that he had insulted Miss Gallacher. It was again explained to the petitioner, under reference to Rule 11(c), that he had been fortunate not to be expelled. This letter ended "We consider this issue CLOSED OUT". Nothing appears to have happened for almost three months. Thereafter a different set of law agents wrote to the Club on 5th September [No 6/11] stating that the petitioner "wishes to commence Court proceedings against the Social Club" but requesting the Committee to reconsider the decisions. This was replied to promptly on 10th September [No 6/9] with the Secretary writing inter alia:
"If you wish to proceed with Court Proceedings, carry on...We do not wish to enter into any further correspondence with yourselves on the matter, which we consider to be closed."
No action was taken by the petitioner until February 2004 when the petition was lodged, as, according to the respondents, were a number of similar petitions, following extensive media publicity given to the decision in Irvine v Royal Burgess Golfing Society of Edinburgh, 27th February 2004, Lady Smith, unreported. There is no positive response to the respondents' averments of inaction from the petitioner.
2. Submissions
(a) RESPONDENTS
(i) Competency
[6] Having commented generally that it might be regarded as inappropriate that time and priority ought to be afforded in the Supreme Court for such a matter as this, the respondents moved that their plea to the competency of the petition should be sustained and the petition thereby dismissed. They did so under four headings. First, it contravened Rule of Court 58.3.2 which provides that an application for judicial review is not available where the petitioner has a right of appeal or review under or by virtue of any enactment. This case involved a corporate body registered under the Industrial and Provident Societies Act 1965 (c 12). The remedies provided by that Act were available to the petitioner, in particular those contained in section 60. These provided initially that every dispute between a member and the society or an officer thereof required to be determined in accordance with the rules of the society. That did not apply in this case as the dispute did not fall under Rule 11(e), which only governed disputes between the members or between a member and an office bearer. This was a dispute between a member and the Club itself. Next, however, section 60 allowed parties to a dispute to refer it for the decision of the assistant registrar for Scotland, if all parties consented. That could have been done here in that the petitioner could have requested the Committee to consent to such a reference. That had not been done. Furthermore, under section 60(7)(b)(ii), if, as here, the rules did not provide for the resolution of a dispute then a party could apply to the Sheriff to resolve it. That had not been done either.[7] The second objection to competency was based on the general principle that judicial review was an exceptional procedure and not a jurisdiction of first resort. It was not available if there were other remedies which could be adopted (Clyde and Edwards: Judicial Review para 12.01). Other remedies did exist. There were those under the 1965 Act (supra) and also the power under paragraph 36 of the Rules to call a Special General Meeting to determine the issue. The respondents asserted that this had been done in the past but no attempt had been made to do it here. In addition, the petitioner could have apologised, as requested by the Committee. Furthermore, he could have resigned from the Club and found somewhere else to go to. Any one of these courses had been open to him and he should have adopted them rather than resorting to court action.
[8] The third objection was that the correct respondent was the Club as a corporate body and not the Committee, which did not have separate legal personality.
[9] Fourthly, the Court should only intervene in the activities of a private voluntary association in exceptional circumstances (McDonald v Burns 1940 SC 376, LJ-C (Aitchison) at 383). Although the Club was a corporate body it was also a private one. The Committee was not acting as a judicial or quasi-judicial body. It did not decide upon the substantive rights of members and it was unrealistic to expect it to act in a judicial manner. In regulating its membership, the Club had to be given wide powers to do so without the risk of interference by the Court.
(ii) Relevancy
[10] The respondents also argued that their general relevancy plea ought to be sustained in that there were no averments that the petitioner had any sufficiently real or material interest to justify the intervention of the Court in the internal affairs of a private concern. The questions raised were of a social character only (Clyde and Edwards (supra) para 10.21; Shaw v Strathclyde Regional Council 1988 SLT 313, Lord Cullen at 316; Gunstone v Scottish Women's Amateur Athletic Association 1987 SLT 611, Lord Prosser at 614-615; Irvine v Royal Burgess Golfing Society of Edinburgh, Lady Smith at para 25; Marshall v Cardonald Bowling Club 1971 SLT (Sh Ct) 56). There was no patrimonial loss or element of status or reputation here. In that way Gunstone v Scottish Women's Amateur Athletic Association (supra) and Irvine v Royal Burgess Golfing Society of Edinburgh (supra) were distinguishable. Alternatively, they should not be followed. In England, a case such as this would fail in the absence of a public law element (R v Football Association ex parte The Football League [1993] 2 All ER 833; R v Disciplinary Committee of the Jockey Club ex parte The Aga Khan [1993] 2 All ER 853). If the Courts decided to intervene here then that would mean that all decisions of companies might be the subject of judicial review (see Clyde and Edwards (supra) at para 9.08). Where a member of a social club is suspended because of his behaviour, the matter is most appropriately dealt with by the club or an elected committee of the club because they are best able to assess standards of behaviour.[11] The petitioner had not made out a case of procedural unfairness either. It was clear from the content of the petition and related documents that the petitioner was well aware of the nature of the allegation prior to the meeting. Furthermore, members of a Club would be well aware that being called to account by the Committee might have disciplinary consequences.
(iii) Mora, Taciturnity and Acquiescence
[12] The respondents moved their plea of "mora" and invited the Court to refuse the craves in the petition. The decision had been in April 2003 and this petition had not been presented for some ten months. Such a delay was unreasonable (Kwiksave Stores v Secretary of State for Scotland 1999 SLT 193, Lord Johnston at 196), especially given the period of suspension. The respondents were prejudiced by this in that: (a) good administration of the Club was adversely affected; (b) one member of the Committee was now dead; (c) if the decision were reduced, the suspension would be completed before any appeal could be heard; and (d) the Committee had completed its term of office.[13] If the Court were not inclined to sustain any of the pleas argued then a proof would be required given the disputes of fact upon record.
(a) PETITIONER
(i) Competency
[14] The petitioner resisted the respondents' contentions by arguing that Section 60 of the 1965 did not provide a statutory remedy. It merely permitted certain steps but these were not compulsory. Paragraph 36 of the Rules contained no provision enabling a member to appeal to a Special General Meeting of the Club. The Committee was the correct respondent since it had a separate personality from the Club having regard to the terms of the Constitution and Rules. The Committee did exercise a quasi-judicial function (McDonald v Burns (supra)). The incorporation of the Club did not affect the issue (Clyde and Edwards (supra) para 9.08; St Johnstone Football Club v Scottish Football Association 1965 SLT 171). There was no need to show patrimonial loss. It was sufficient that the petitioner had been banned from the Club for two years.
(ii) Relevancy
[15] The petitioner had averred a relevant case. The grounds were essentially those averred in the fifth statement in the petition. First, the Committee had no power to expel the petitioner because: (a) the conduct occurred outside the Club; and (b) the Constitution and Rules contained no power to suspend as distinct from expulsion. Secondly, the reasons for the Committee's decision were unclear since at one point the Committee maintained [No 6/5] that the basis was the finding that Miss Gallacher's allegation was in the main correct but subsequently [No 6/8] the Committee wrote that it had not based the decision on her written complaint (see R v Immigration Appeal Tribunal ex parte Khan [1983] QB 790, Lane CJ at 794-5). This was inconsistent. The Committee had taken into account an irrelevant consideration, namely the conduct occurring outwith the Club. Thirdly, the procedure had been unfair and this constituted a breach of natural justice. The petitioner had been unaware of the potential consequences of the meeting of the Committee on 8th April. He was not aware that he was on a disciplinary "charge" (Irvine v Royal Burgess Golfing Society of Edinburgh (supra)) but had himself sent a note requesting a meeting with the Committee. He had received no written notice of the complaint. He was unaware of the allegations against him (R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 at 560; Moore v Clyde Pilotage Authority 1943 SC 457, LP (Normand) at 464). In these circumstances, the decision of the Committee ought to be reduced.
(iii) Mora, Taciturnity and Acquiescence
[16] For this plea to succeed, the respondents had to show prejudice (Clyde and Edwards (supra) para 13.20, Hanlon v Traffic Commissioners 1988 SLT 802). In Kwiksave Stores v Secretary of State for Scotland (supra) there had been inexplicable delay but that was not the situation here. In this case, from April through to September 2003 the petitioner had sought in correspondence to persuade the Committee to change the decision. Thereafter, it was asserted, counsel's opinion was sought and it was only in February that a first order was ultimately obtained. There had been no prejudice to the respondents averred.
3. Decision
(i) Competency
[17] The Club of which the petitioner is a member is the South Western Social and Recreation Club Limited, a body registered under the Industrial and Provident Societies Acts. As such it is a corporate body and is sued and sues in its own name (Industrial and Provident Societies Act 1965 section 3). The General Committee of the Club is not a separate legal person, it is simply the group of individual members authorised to conduct the business of the Club under its Rules (paragraph 21). In acting, as they did, in relation to matters of discipline of Club members, the members of the Committee are acting as agents of the Club. Any legal action in respect of their decisions on such matters must be directed against the corporate body. It cannot be directed against the Committee since it has no personality. It also cannot be directed against selected members of the Committee as individuals given their positions as agents of the Club. On this ground alone, the action is incompetent and falls to be dismissed.[18] There are two further matters which might be added on this point. First, the action does not make it at all clear just who is being pursued in the petition, whether it is individuals or the Committee and, if so, whether it is the Committee at the time of the decision or at the time of the raising of the petition. In the instance the respondents appear as Joseph Brawley, Alex Shaw and Robert Brown, yet it is uncertain whether Mr Brawley (or Brolly) was a member of the committee at the time of the original decision. He is not noted as having taken part in it. In the first statement of fact the respondents are said to constitute the Committee, which is manifestly inaccurate. Immediately after this, it is averred that the members of the Committee on 8 April 2003 were Messrs Shaw and Brown. This is also not correct. Yet later there is mention of Mr Brolly who, along with Chris Ruddy and Messrs Shaw and Brown, are said to be the present members of the Committee. Again, this cannot be right since it is clear from the Constitution and Rules and the minutes that there were, and are, far more members of the Committee, including office-bearers, than that. In short, the petition would also not have been permitted to proceed with such confusion apparent. If the petitioner's intention is to sue "the Committee" then all the officer-bearers at least ought to have been called. Secondly, the point taken here is, to some extent, of a technical nature. Had an appropriate amendment been moved, it might have been allowed and cured the defect. None was proposed.
[19] Rule of Court 58.3.2 provides that :
"(2) An application [to the supervisory jurisdiction of the court] may not be made [by petition for judicial review] ...if that application is made, or could be made, by appeal or review under or by virtue of any enactment."
This reflects the common law position that, as a generality, since the exercise of the supervisory jurisdiction is an equitable remedy, ordinary legal processes available to a petitioner ought to be used first. As outlined above, the petitioner's dispute is with Committee acting as the agent of the Club. It is with the Club itself as a corporate body and not with another member or even an office-bearer. His protest concerns the Committee's actings. Such a dispute is not covered by paragraph 11(e) of the Constitution and Rules. Indeed it could not be, since the arbiter of disputes under that paragraph is the Committee. The Constitution and Rules do not provide any express mechanism for dealing with disputes with the Club itself, by way of arbitration or otherwise. Accordingly, sub-section 60(1) of the 1965 Act, which provides that disputes between members and a registered society are to be decided in accordance with the rules of the society, has no bearing on the issue. Sub-section (2) permits a member to refer a dispute with a society to the assistant registrar for Scotland. However, that can only be done with the society's consent. Given the need to rely on the actions of others, this provision cannot be said to give the member a right to secure such a reference. It is an option which he might try but no more than that. He cannot achieve a reference on his own. In such circumstances, the provision does not exclude the use of judicial review in terms of the Rule.
On the other hand, sub-section 60(7)(b)(ii) provides:
"where the rules of a registered society contain no direction as to disputes...any [member]...who is a party to the dispute may apply to the sheriff, who may hear and determine the matter in dispute."
This is followed by an additional provision regarding the possibility of a stated case to the Court of Session on a question of law. The terms of the sub-section quoted provide the petitioner with an ordinary legal remedy which he could have adopted; that is to say an application to the Sheriff. The Sheriff would then be in a position to review the Committee's conduct. The existence of this provision, coupled with the terms of the Rule of Court, exclude the use of judicial review at least as a primary remedy. For this reason also the petition is incompetent.
[20] A number of remedies were suggested by the respondent as excluding the use of judicial review under the general common law principle that ordinary remedies should be used first (see generally Clyde and Edwards (supra) para 12.01 et seq.). The first of these was the ability to call a Special General Meeting. Many Clubs have express provisions enabling a member to appeal directly from a Committee decision to the membership in General Meeting. In such circumstances, such provisions would have to have been invoked before proceeding to judicial review. However, in this case, the petitioner does not have such a right. He could try to go down the SGM route but that is not something he can do on his own, especially if his membership is suspended and he is prevented from attending the Club premises. Rather, the provision in this case (paragraph 36 supra), which is a general one only, and not directly related to disciplinary decisions, requires one seventh of the membership to sign a requisition for such a meeting. In these circumstances, where such third party action is again needed, such a provision cannot exclude the remedy of judicial review of the Committee decision. The other suggestions were that the petitioner could apologise and/or resign and join another establishment. These, however, are not alternative remedies for curing any faults in the decision of the Committee to suspend the petitioner. They are simply practical expedients which might have circumvented the need for disciplinary action. As such they are not directly relevant and cannot be seen as precluding judicial review of the decision. On the other hand, for the reasons already explored, sub-section 60(7)(b)(ii) does appear to supply an alternative ordinary remedy which does fall foul of the common law principle that other such remedies ought to be resorted to first. On this last ground also, the petition is incompetent.[21] The supervisory jurisdiction of the Court exists primarily to ensure that those entrusted with powers to determine the patrimonial, civil or other material rights of persons exercise these powers in a lawful and reasonable manner. It is of no moment whether the empowered body operates in the public or private sphere. The Scottish Courts will supervise a private institution just as they will do a public one. Equally, it matters not whether the body is a voluntary association or a corporation (see St Johnstone Football Club v Scottish Football Association (supra)). Although a tripartite relationship can assist in determining whether judicial review is a competent remedy, a close examination of the circumstances is scarcely necessary to see whether that exists where a petitioner seeks review of the actings of a body exercising disciplinary powers over him. In that situation, in the context of a club, the body is exercising a quasi-judicial function in deciding upon the continued existence of the member's rights to enjoy the benefits of his membership. In this case, those rights are those of a shareholder in the Club with all that such rights carry relative to entrance to the Club's property and possibly potential participation in the assets of the Club on a winding up. In the absence of an alternative remedy, the actings of a committee of a club in relation to membership rights will normally be capable of being the subject of judicial review. Although there will be issues relative to the circumstances in which the Court will intervene to reduce the decision of a Committee (infra), these do not effect the issue of competency whereby in given circumstances the Court can intervene. The respondents' contention in this regard is therefore rejected.
(ii) Relevancy
[22] Private institutions, and to a degree public ones too, must, of course be afforded the right to conduct their affairs in the manner they deem appropriate without unnecessary interference from the courts. The circumstances in which the courts will intervene in the affairs of private bodies are relatively well known and are set out by the Lord Justice-Clerk (Aitchison) in McDonald v Burns (supra), albeit specifically in relation to ecclesiastical bodies (at 383-4):
"(first) where the ...association through its agencies has acted clearly and demonstrably beyond its own constitution, and in a manner calculated to affect the civil rights and patrimonial interests of any of its members, and (secondly) where, although acting within its constitution, the procedure of its judicial or quasi-judicial tribunals has been marked by gross irregularity, such fundamental irregularity as would, in the case of an ordinary civil tribunal, be sufficient to vitiate the proceedings. But a mere irregularity is not enough. It must be so fundamental an irregularity that it goes beyond a mere matter of procedure, and becomes something so prejudicial to a fair and impartial investigation of the question to be decided as to amount to a denial of natural justice, as, for example, if a conviction...were to take place without an accusation being made, or without allowing the person accused to be heard in his defence. In short, the irregularity alleged must not be simply a point of form, or a departure from prescribed regulation, but must go to the honesty and integrity of the proceedings complained of."
Even if it were necessary to demonstrate a patrimonial interest in terms of the first leg of the Lord Justice-Clerk's test, the petitioner appears to have such an interest here. He is a shareholder in the Club. As such, he has a patrimonial interest in the Club dependent upon his continuing membership. His suspension will prevent him, albeit temporarily, from enjoying the fruits of his membership, that is to say the benefits of use and occupation of the Club property. He will be prevented from having a say at the Annual General Meetings and from exercising his other rights under the Constitution and Rules. The deprivation of these rights is sufficient to give him an interest in respect of the material and practical loss he will sustain whilst excluded from the Club (cf the loss of prizes in Marshall v Cardonald Bowling Club (supra)). In any event, as was observed in Gunstone v Scottish Women's Amateur Athletic Association (supra per Lord Prosser at 614 following Lord Kilbrandon in St Johnstone Football Club v Scottish Football Association (supra at 174):
"there is no requirement of interference with 'civil rights and patrimonial interests' where 'a gross irregularity, such as a departure from the rules of natural justice has been demonstrated'. That is the law...because everyone has an interest in being protected against such injustice, without further need to show an interest."
[24] Having regard to the test set out by the Lord Justice-Clerk (Aitchison) quoted above, the petitioner has not averred a sufficiently specific case to merit enquiry by way of proof. The Constitution and Rules confer upon the Club, acting through its Committee, the right to expel a member whose conduct is injurious to the Club (paragraph 11(a)). Such a power carries with it the power to suspend, that being a lesser or milder remedy than expulsion. The greater must be held to include the lesser. It is clear from elsewhere in the Constitution and Rules that this is so given the references to the Club being obliged to suspend in certain specified situations. The conduct for which disciplinary action can be taken is not confined to activities actually performed in the Club. Whilst there is a prohibition against drunkenness, bad language and misconduct on the Club premises, the power of the Club to deal with conduct is not confined to such actings. Rather it includes all conduct "injurious to the interests of the Club". Such conduct may well take place outwith the Club, either immediately so or at a distance. Many examples might be given but the more obvious are where club members pursue grievances aired in the Club outside it or indeed engage collectively in anti social behaviour outside the Club, whether directed at other members, employees or members of the public. The petitioner's attack based on these grounds must fail.
[25] The reasons given by the Committee were not unclear. They were expressed in clear terms in the letter from the Secretary dated 9 April 2003 [No 6/5], namely that they found that Miss Gallacher's allegations against him were, in the main, correct. By the time of this letter, it is clear that the petitioner had been to the Committee meeting and been asked to comment on the allegations. The informed reader of the letter would be left in no doubt about what it meant, namely that the Committee had held the allegations of insulting conduct towards Miss Gallacher well founded. If there had been any doubt about what the Committee had meant, then the Secretary's letter of 23 April 2003 [No 6/6] provided clarification since it recorded that before the Committee the petitioner had admitted such behaviour. It was this latter matter that was stressed in further correspondence [No 6/8] when the Secretary stated that it was not the content of Miss Gallacher's written complaint that had been the basis of the decision but the petitioner's own admissions. There is no inconsistency in this. The Committee are simply saying that they acted not so much on the ipse dixit of Miss Gallacher but upon the basis of what the petitioner himself said had happened.
[26] The petitioner complains of lack of notice of the allegations against him. Such notice is, of course, essential as an aspect of natural justice when a body is considering disciplinary action. As the Lord President (Normand) said in Moore v Clyde Pilotage Authority (supra at 464):
"...no man has a reasonable right of reply unless he knows what he has to meet, and a right of reply is clearly included in a right to be heard."
However, it is clear from his own memorandum [No 6/2] that the petitioner was aware that Miss Gallacher had made an allegation against him. He knew that this related to his conduct at the bar and/or in the Chinese take-away. There was nothing subtle, complex or difficult in grasping what incidents were involved. The petitioner himself requested not a discussion with an office bearer about this but a meeting with the Committee. Given his previous suspension and the content of the Constitution and Rules, he must have been well aware that consideration of his conduct at Committee level carried with it the prospect of disciplinary action, including possible suspension. He attended the meeting and, by all accounts, gave his version of the events in question.
[27] It is not enough for a petitioner in the current circumstances to rely on a "mere matter of procedure". He must be able to aver that what went wrong was "so prejudicial to a fair and impartial investigation of the question to be decided as to amount to a denial of natural justice". It is remarkable then that what the petitioner singularly fails to do in this case is to state candidly: (a) what he did say and do at the bar which caused such insult; (b) just exactly what he was told about the allegations, and by whom, prior to the Committee meeting; and (c) what he did say at that meeting, which, according to the respondents, was itself effectively decisive of his case. The respondents have made detailed averments on all three matters and the petitioner has failed to respond adequately to their answers.[28] In all these circumstances, the petitioner has not set forth a sufficiently specific and hence relevant case to merit further enquiry and the respondents' relevancy plea falls to be sustained.
(iii) Mora, Taciturnity and Acquiescence
[29] The Rules of Court place no time limit upon when a petition for judicial review must be lodged relative to the decision which it challenges. The only plea available against a tardy petition is the customary one of mora, taciturnity and acquiescence. This is not an easy plea to support successfully in a judicial review setting. The principles derive more from contractual and property disputes than from the type of case currently under contemplation and it is difficult to transfer them satisfactorily to review cases. The plea traditionally requires three events to occur. First, there must be delay. Secondly, the conduct of the petitioner (including the delay) must be such as to indicate that he is in some way abandoning his right to challenge the matter complained of. Thirdly, the respondent has to have changed his position in a material manner (Hanlon v Traffic Commissioners (supra) Lord Prosser at 805). Just what facts and circumstances will be enough to support the plea will depend on the nature of the decision under review. Here, the decision was only to suspend the petitioner for a period of two years. Where a decision is such a limited duration it is reasonable to expect a petitioner to take action reasonably promptly, since a Club will otherwise proceed on the basis that the decision is final and not to be challenged. In this case, there is no doubt that, after the promulgation of the decision, the petitioner took reasonably prompt steps to persuade the new Committee to rescind it. This went on for a short time and culminated with his agents' letter of 2nd June and the response of 13th June. By that time, the Secretary had twice stated that the matter was considered closed. Nothing appears to have occurred for three months when there was a short letter from different agents. This was again replied to in a manner which made it clear that if the petitioner wanted to sue the Club then he should do so. Silence followed until the raising of the petition in February 2004, some five months later.[30] The delay, on the two occasions after the replies to agents' letters, was such that the Club was entitled to conclude that the petitioner was abandoning his intention to challenge the decision, albeit that he had made it clear that he did not accept it on its merits. The facts that a member of the Committee had passed away and a new Committee elected do not appear to be of any moment so far as this plea is concerned. On the other hand, it is clear that long before the petition had been raised, the Club were acting on the basis of the decision's validity. The petitioner had been excluded from the Club premises and no doubt the Committee, members, and certainly the bar staff, would have conducted their business on the basis that the decision stood. In that sense the Club had materially altered its position. Given that the suspension was only for two years, a delay of almost half of that period is an unreasonable one and, coupled with the other factors in the case, is sufficient to support the plea.
[31] I will accordingly repel the petitioner's first to fourth pleas-in-law, sustain the respondents' first, second, third and fifth pleas-in-law and dismiss the petition as incompetent.