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Davidson & Anor v. The Kilwinning Homing Society & Ors [2004] ScotCS 204 (17 August 2004)

DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Kirkwood

Lord Hamilton

XA151/01

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

APPEAL

From the Sheriffdom of North Strathclyde at Kilmarnock

STEPHEN DAVIDSON and ANOTHER

Appellants;

against

THE KILWINNING HOMING SOCIETY and OTHERS

Respondents:

_______

Act: Party (Pursuer and Appellant)

Alt: Clancy, Q.C.; Balfour & Manson (for Defenders and Respondents)

17 August 2004

[1] In April 2000 the pursuers, who were then legally represented, raised an action in the Sheriff Court at Kilmarnock to which they called as defenders the Kilwinning Homing Society ("the Club") and four individuals, John Davidson, designed as Secretary and Treasurer, David Rocks, designed as President, Alex Tudhope, designed as Vice President and Ian Crossan, also designed as Vice President. The remedies sought at that stage included a crave to ordain the defenders to take certain actions and a crave for damages (directed against all the defenders).

[2] No defences were at any stage lodged by Mr. Crossan, but there may have been difficulties about serving the initial writ on him. Defences in the names of the remaining defenders were lodged by a firm of solicitors. On or about 26 June 2000, intimation having been made to the court that these solicitors no longer acted for Mr. Rocks, the usual procedural steps were taken to allow him to state whether he intended to defend the proceedings. In the event Mr. Rocks took no steps to defend them.

[3] Certain preliminary pleas were tabled on behalf of the remaining defenders, including challenges to the competency and relevancy of the craves. In the event the pursuers subsequently amended the initial writ by deleting the substantive craves and substituting for them a declaratory crave in the following terms:

"To find and declare that the Pursuers are entitled to be members of the Kilwinning Homing Society and that, as such:

(a) they are entitled to receive from the Defenders a set of 40 Pigeon rings

and

(b) the Pursuers are entitled to enter their Pigeons into Pigeon Races

organised by the Defenders".

A challenge by the remaining defenders to the competency and relevancy of that substituted crave was later intimated by them.

[4] Meantime the pursuers had parted company with their legal representatives. Since about November 2000 the pursuers have conducted these proceedings in person, the first pursuer representing himself and, by leave of the court, the second pursuer who is his wife. On 2 May 2001 the parties were heard for the purposes of a debate on the defenders' pleas to the competency and relevancy of the pursuers' action. At the hearing the first pursuer submitted that the solicitor then appearing for the defenders had no mandate to act for the first defender (the Club). The sheriff (Sheriff Russell), having made avizandum, on 4 May 2001 repelled the challenge to the authority of the solicitor to represent the Club, sustained the defenders' preliminary pleas and dismissed the action as being both incompetent and irrelevant.

[5] The pursuers appealed to the sheriff principal, who on 20 July 2001 refused the appeal. A further appeal was then taken by the pursuers to this court. After sundry procedure a hearing took place on the Summar Roll on 29 October 2002. The first pursuer appeared personally; the first, second and fourth defenders were represented by counsel. The first pursuer renewed his challenge to the authority to act for the Club of the solicitor who had purportedly acted for it before the sheriff (and apparently by implication to the authority of any legal representatives purportedly acting thereafter on its behalf, including before this court). Although before the sheriff the solicitor had produced (as a mark of his authority), in accordance with Muir v. Stevenson (1850) 12 D. 512, the service copy writ served on the Club, it appeared in the light of the submissions made to the court that there was, or might be, a factual dispute as to whether a mandate had been granted to the solicitor by or on behalf of the Club to act in the proceedings on its behalf. On that day the court pronounced an interlocutor which included the following terms:

" ... remit to another Sheriff for the purpose of determining whether or not there was a valid mandate authorising Messrs McCluskey Browne to defend the action on behalf of the first named defenders and to report".

The appeal was continued pending receipt of that report.

[6] In due course a hearing took place before a different sheriff (Sheriff Herald). Evidence was led over two days. The sheriff prepared and transmitted to this court a report dated 10 April 2003 in which he set out the facts which he found to have been admitted or proved and a note of his observations on the evidence. His conclusion was to the effect that the solicitor who had appeared for the Club in the proceedings had been duly authorised by it to act on its behalf.

[7] After sundry further procedure, including the making of an order allowing a document headed "Averments for Pursuers" to be treated quantum valeat as grounds of appeal, parties were heard further by this court on 25 June 2004. The first pursuer again appeared in person. His oral submissions were confined to a continued challenge to the authority of the solicitor to appear and act for the Club at the original debate (and thereafter). He suggested that evidence which the third defender (Mr. Rocks) had wished to lay before the sheriff had been "suppressed". He submitted that no meeting of the Committee of Management of the Club had taken place; nor had any such meeting duly authorised the court solicitor (whether directly or through the agency of an instructing solicitor) to act for the Club. He tendered a copy of "Club Rules" (which we understood to be uniform rules promulgated by the Club's parent organisation, the Scottish Homing Union, and adopted by the Club as its rules) and an (incomplete) copy of the Scottish Homing Union's written constitution. He referred to the evidence in transcript form of certain witnesses, Miss Linda Brooks and Mr. George Kelly (both officials of the Scottish Homing Union) and Mr. David Rocks (the third defender) whom the first pursuer had led in evidence before Sheriff Herald. The whole transcript of evidence was not laid before this court nor did the first pursuer, with one minor exception, make any attempt, by reference to it, to challenge the findings of fact made by Sheriff Herald. That exception was to finding of fact 55 - by which the sheriff found that a named solicitor had been originally instructed personally by the third named defender (Mr. Rocks) to defend the action raised against him. The first pursuer submitted that the second defender (Mr. John Davidson) was not an office bearer of the Club and had no authority, actual or ostensible, to give instructions on its behalf. Reference was also made to certain Club minutes. The first pursuer submitted that, at the time (April 2000) when authority was purportedly given by the Committee, the Club had no office-bearers.

[8] The rules of the Club provide:

"3. The management of the Club shall be vested in the Committee of Management, which shall consist of a minimum of five members, including President, Vice President and Secretary and Treasurer, the Chairman to have a deliberative and casting vote. The Secretary and/or Treasurer shall keep a correct record of all business transacted ...

...

8. The A.G.M. will be held each year for the purpose of passing the balance sheet, election of office-bearers and transacting any other competent business ... "

It is plain from rule 3 that the person for the time being holding the office of Secretary and Treasurer is, by virtue of that office, a member of the Committee of Management of the Club. A submission made by the first pursuer, based, it seemed, on the terms of the constitution of the Scottish Homing Union as distinct from the rules of the Club, was misconceived.

[9] The Club held an Annual General Meeting on 19 October 1997. The minutes of that meeting confirm that certain persons were then elected (or confirmed) as holders of certain positions in the Club. These were, as "Office-Bearers", a President (Mr. Rocks, the third defender) and two Vice Presidents (Mr. I. Crossan and Mr. A. Tudhope, the fifth and fourth defenders respectively), as Secretary and Treasurer ,Mr. J. Davidson (the second defender) and, as Committee, "H. McNeil, J.C. Kennedy, I. Benson, G. Westcott, W. Kennedy 'plus top table'.". By "top table" was plainly intended those who by virtue of their offices of President, Vice President and Secretary and Treasurer were automatically members of the Committee of Management.

[10] No further Annual General Meetings of the Club were held thereafter until 2002. Sheriff Herald found that the reason for this was that the Annual General Meeting arranged for 1998 had been disrupted, allegedly by behaviour of the pursuers. It is unnecessary for us to enter into why Annual General Meetings were not held in the intervening years; it is sufficient to notice that there was discord within the Club, including more than one litigation instituted against it by the pursuers, which may have led to disruption of the Club's ordinary procedures.

[11] While the rules of the Club make provision for the holding each year of an A.G.M. for the purpose of, among other matters, "election of office-bearers", they contain no provision whereby a member duly elected to a post in the Club automatically vacates office on the expiry of any period of time. In the absence of such a provision, those who had been elected or confirmed as members of the Committee of Management at the Annual General Meeting in 1997 continued, subject to their resigning or otherwise leaving the Committee voluntarily, to be such members unless and until duly replaced. In the event, between October 1997 and April 2000, so the sheriff found, Mr. J.C. Kennedy and Mr. Westcott "resigned" and Mr. W. Kennedy "left" the Committee. The sheriff goes on to find that Mr. J.C. Kennedy and Mr. Westcott were "replaced on the Committee" by Mr. Ian Hamilton and Mr. J. Tudhope respectively. It will be appropriate to return to that matter in due course. But it is sufficient at this stage to hold that as at April 2000 the Club had a Committee of Management whose members included at least Mr. Rocks, Mr. Crossan, Mr. A. Tudhope, Mr. John Davidson, Mr. McNeil and Mr. Benson.

[12] When the present action was raised diligence was used on its dependence, including the arrestment of certain bank accounts. This unsurprisingly caused concern. Mr. Davidson, as Secretary and Treasurer, took steps ostensibly to call by telephone a meeting of the Committee with a view to a decision being taken as to the Club's attitude to the action raised against it and its office-bearers. The "meeting" took place in the Club's clubhouse on Saturday 15 April 2000.

[13] The first pursuer submitted that the assembly of persons which took place there could not properly be described as a "meeting". This submission was made under reference to certain evidence given by Mr. Rocks before Sheriff Herald to the effect that a meeting could only be constituted if he (Mr. Rocks) as President had chaired it (page 333), if it had been formally opened and closed and the last minutes read out (page 335) and if it had been called by letter (page 337). These steps had not been taken, according to Mr. Rocks, in respect of the "gathering" on 15 April 2000. But the rules of the Club, so far as brought to our attention, provide for no specific formalities for a meeting of its Committee of Management. The sheriff has held as a fact that a Committee meeting was called and was held on that date. Having considered the whole material laid before us by the first pursuer, including the testimony of the officials of the Scottish Homing Union led in evidence by the pursuers before the sheriff, we see no ground for disturbing the sheriff's findings of fact on that matter.

[14] The sheriff further found as a fact that it was the unanimous decision of the members present at that meeting (including Mr. Rocks) that the present action be defended and that a named solicitor (Mr. Crate) be instructed to represent the Club and the individual members in the action. Mr. John Davidson, who was already in possession of the service copy initial writs served on the Club and on him as an individual (both apparently at his personal address), ingathered at the meeting the remaining service copy writs, except that in relation to the fifth defender, which for some reason had not been effectively served. A minute of the meeting, hand written by Mr. Davidson, recorded "The Committee agreed 100% decision to defend the case Pursuers Mr. & Mrs. S. Davidson".

[15] Steps were then taken to implement these instructions. These included a meeting held later that month at which were present, among others, Mr. Crate and another solicitor (Mr. Lynch), whom Mr. Crate was in the habit of instructing in litigation matters for his clients. Mr. Lynch (and his firm, Messrs McCluskey Browne) in due course represented the Club in this litigation while in the Sheriff Court. Although there may be a question as to what dealings, if any, Mr. Rocks had personally with Mr. Crate, that issue is unimportant. The Committee's decision of 15 April 2000 (to which Mr. Rocks was found by the sheriff to have been a party) having been taken, it is immaterial whether Mr. Rocks ever himself met Mr. Crate.

[16] When the mandate of Mr. Lynch to represent the Club in the court proceedings was challenged by the first pursuer on 2 May 2001, Mr. Lynch, after a short adjournment, produced, as prima facie evidence of his authority, the service copy writ served on the Club and now in his possession. As Lord President Boyle said in Muir v. Stevenson at page 517 - "Possession of the service copy is prima facie evidence of employment". On the same page Lord Fullerton spoke of "the strong legal presumption" arising from the service copy writ being found in the hands of the agents whose mandate was challenged. Lord Mackenzie, also on the same page, observed - "The rule of law is, that possession of the service copy warrants the agency".

[17] It is open to a party who insists that the solicitor who purportedly appears for his opponent does not have a proper mandate, to seek to rebut the presumption arising from the solicitor's physical possession of the service copy writ. But, although an opportunity has been afforded to the present pursuers to establish by proof that no meeting of the Committee of Management took place and authorised the defence to this action, that challenge has, for the reasons expressed above, manifestly not been made out. In these circumstances the proper conclusion is that Mr. Lynch had a mandate to represent the Club in the litigation and that the pursuers' challenge must accordingly fail.

[18] Before leaving this issue we would make the following further observations. First, at certain later stages in the litigation (prior to the debate in the Sheriff Court in May 2001, in January 2002 and some time shortly before the hearing on the Summar Roll before this court) certain steps were or may have been taken to obtain or confirm instructions from the Club to defend the action. However, having regard to the way in which the matter was presented to us on appeal, we find it unnecessary to discuss the terms or effect of any such steps. Secondly, in his written "Averments for Pursuers" (treated as grounds of appeal) the first pursuer contended (1) that Sheriff Herald was in error in stating that seven (rather than nine) persons were present at the meeting on 15 April 2000 and (2) that, of those nine, only six were persons who had been appointed at the 1997 A.G.M.; the remaining three were "co-opted", a procedure which, according to the first pursuer, was illegitimate under the Club rules. These contentions were not advanced before us by the first pursuer in his oral submissions but, even if there were substance in them (as to which we express no view), on the pursuers' own arithmetic all six members of the Committee who had held and retained office since the 1997 A.G.M., and who constituted a clear majority of all those present, concurred in the unanimous decision that the Club defend the action and that Mr. Crate be instructed to represent it in these proceedings. In the absence of argument to the contrary, we see no ground for holding, even on the pursuers' undeveloped contentions, that the decision was invalid. Thirdly, in relation to the first pursuer's contention that evidence of Mr. Rocks had been "suppressed" in the Sheriff Court, that contention appeared to be founded on an assertion that at some stage the sheriff clerk had refused to permit Mr. Rocks personally to put certain material before the court. But, at a later stage Mr. Rocks, who was, at least by that time, not an active party to the proceedings, was led as a witness by the first pursuer before Sheriff Herald. A full opportunity was thus afforded to the pursuers to elicit, if they thought fit, such evidence as Mr. Rocks might give which was germane to the issue of mandate.

[19] Before us the first pursuer made it plain that the pursuers' contentions were restricted to the challenge to the mandate. No argument was advanced which put in issue the soundness of the sheriff's decision to uphold the defenders' pleas to the competency and relevancy of the action.

[20] In the whole circumstances we shall adhere to Sheriff Herald's finding that the representation of the Club as a compearing defender to the action was duly authorised by the Club. We shall also adhere to the interlocutor of the sheriff dated 4 May 2001 and that of the sheriff principal dated 20 July 2001 and refuse the appeal.