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Crocket v. Tantallon Golf Club [2005] ScotCS CSOH_37 (15 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 37

P1352/04

OPINION OF LORD REED

in the Petition of

STUART CROCKET

Petitioner;

against

TANTALLON GOLF CLUB

Respondents:

For

Judicial Review

________________

Petitioner: D M Thomson; Blacklock Thorley

Respondents: Wallace; McKay & Norwell, W.S.

15 March 2005

Introduction
[1] On 11 June 2001 an article appeared in the Scotsman newspaper under the headline, "Golf club bunkered as moaning member issues writ for £60,000". The article, which occupied half a page, stated inter alia:

"His approach and putting could use a little more practice but golfer Stuart Crocket has worked hard on perfecting his whinge. The retired businessman is attempting to sue a leading Scottish golf club for £60,000 in the latest of a series of petty disputes stretching back more than a decade. During one year Mr Crocket allegedly made 170 written complaints to the committee of Tantallon Golf Club close to his home in North Berwick. Many were concerning other golfers on the links course who failed to observe the 148- year-old club's dress code. After he was asked to stop making 'excessive, improper and unnecessary' use of the club suggestion book, Mr Crocket made 24 further entries in the book over a period of 18 months. He also reported the 300-member club to the Lord Lyon's Court, complaining that the coat of arms on the club badge did not observe the rules of heraldry. There was a further dispute over a £30 bill for solicitor's expenses which resulted in a small claims summons being issued against the club manager. When a club member accused him of being spiteful, 76-year-old Mr Crocket tried, unsuccessfully, to sue him for defamation. The action failed because it was time-lapsed - the offending remark having been made eight years earlier. Mr Crocket did have his day in court when the club members voted overwhelmingly to expel him - the first time a member had been asked to leave in more than a century. He took the case to the Court of Session in Edinburgh and had the decision overturned, forcing the club to reinstate him as a member. His latest foray into the legal arena is an attempt to sue the club over a memo to an advocate, describing Mr Crocket's continued presence as a 'source of disharmony within the club'. Mr Crocket saw the comments when he asked to have the club's legal correspondence disclosed to him as part of a different dispute. He has produced a writ claiming £60,000 damages, plus legal expenses, on the grounds the memo is an 'unfair, spiteful, malicious defamation'. Mr Crocket, a divorcee (sic) who has no children, readily acknowledges his litigation has made him about as popular with fellow members as a snowstorm on the 9th tee. 'Sometimes I am short of playing partners. There is a deathly hush when I walk into the club', he said 'But I am not bothered about that, I am not running for presidency. I simply will not be defamed and I will not be bullied, it has been deeply hurtful to me'. Mr Crocket added: 'I admit I have made a lot of complaints although I don't know if it is as many as they say it is. I still write to them now about matters such as the dress code. I will point out to the committee if people are not observing the code. One example is that you are not allowed to wear an overcoat in the main lounge, you use the dressing room to hang your coat up. If people don't observe little rules, it should be drawn to the attention of the club. I should be able to raise any matter that is of interest to me as a member of the club, otherwise things will not be done properly'. The complaint to the Lord Lyons King of Arms arose after Mr Crocket noticed the club crest had an emblem which he believed was not approved. 'I think they thought I was a nuisance over that', he said, 'I have tapered off my involvement with it since then'. ... Mr Crocket's latest legal action claims the alleged defamatory remark has caused him 'serious injury and damage to feelings, standing and professional reputation'. The legal action has, however, hit a snag because he cannot find a lawyer to support his summons. Lord Clarke has refused the summons at the Court of Session on the grounds there is no prima facie case to answer. Mr Crocket plans to issue a complaint".

The article was illustrated by a photograph of the petitioner, standing inside the clubhouse, behind a window engraved with the club's name and coat of arms.

[2] At the first hearing in the present proceedings, counsel for the petitioner said that the article had been prepared with the co-operation of the petitioner. He had signed in the journalist and the photographer as visitors to the club, as his guests. He had posed for the photograph on the premises of the club. Counsel also confirmed that the petitioner had initiated various proceedings against the club, its officers and its members since becoming a member. Counsel said that the proceedings to which the article referred were the following:

(1) Proceedings in Haddington Sheriff Court in about 1991 against the then secretary of the club, Mr G A Milne. The petitioner had incurred legal fees as a result of instructing a solicitor to write to the club requesting the production of documents, and sought payment by Mr Milne of the amount of the fees.

(2) Proceedings in the Court of Session, in about 1992, in which the petitioner sought to interdict the holding of a meeting to vote on a motion to expel him from membership of the club. It appears that, following the grant of an interim order, the attempt to expel the petitioner was dropped.

(3) Proceedings for defamation against Mr W Archibald, a member of the club, in respect of remarks made by Mr Archibald during a club council meeting in 1993. The proceedings were commenced in 2000, by which time any liability had prescribed.

(4) Proceedings against the club in the Court of Session, in about June 2001, in which damages were sought for defamation. It appears that the petitioner was refused leave to proceed without the signature of an agent on the summons, in terms of Rule of Court 4.2, on the basis that the summons did not disclose a prima facie case.

[3] On the same day as the article was published, the petitioner commenced proceedings against the club in Haddington Sheriff Court. The subject-matter was the same as that of the proceedings in which leave had been refused by the Court of Session. The action was subsequently dismissed. The petitioner then appealed against its dismissal to the Sheriff Principal.

[4] On 5 October 2001 a number of members of the club wrote to the secretary, Mr T Hill, in the following terms:

"We, the undersigned members, are writing to express our frustration and deep concern regarding the recent threatened legal action by Mr Stuart Crockett (sic) against Tantallon Golf Club. We understand that this has now been dropped but you will appreciate that while still sub judice it gave rise to much anxiousness within the membership particularly when considering the possible damages being sought. The related newspaper articles and photographs of Mr Crockett taken on Club premises resulted in many members being widely questioned by persons outside the Club which in our view is not an acceptable aspect of normal Club membership.

We feel that while the above is regrettable in itself, more importantly, it has to be set against the period of many years during which Mr Crockett's continuous apparent disquiet has amongst other things resulted in him raising at least two other attempted Court Actions against Club Officers or individuals. Although these were unsuccessful the atmosphere created and the anxiety caused should not be overlooked and, in our view, were far removed from what members expect or deserve.

Our opinion is that by these actions Mr Crockett had conducted himself in a manner injurious to the character or interests of the Club which aspect is addressed in section 22.1 of the Rules of Membership. We therefore earnestly request The Council to consider taking the necessary action".

The letter was signed by more than 30 members.

[5] Following a meeting of the club council on 23 October 2001, Mr Hill wrote to the petitioner the following day:

"On the instructions of the Council of Tantallon Golf Club I have been requested to intimate the terms of a complaint about your conduct as a member of the Club raised by a group of Club members and to seek an explanation for your conduct from you in the terms of Rule 22.1 of the Club Rules of Membership. A copy of the letter of complaint is enclosed.

The Club have appointed Dr John F Peutherer and Mr John E Anderson, members of the Club Council, as representatives of the Council and you are invited to appear before them at the Club premises at 7.30pm on Wednesday 21st November 2001 to give your explanation.

The meeting will be recorded in your and the Club's interest. Please confirm in writing that you will be in attendance".

A copy of the letter dated 5 October 2001 was enclosed.

[6] The petitioner replied by letter dated 1 November 2001:

"1. Stuart Crockett, member, has the intention to attend the meeting with Messrs Peutherer and Anderson representatives of The Tantallon Golf Club Council, in the Club premises at 7.30pm on Wednesday 21st November 2001 and provide explanations in person to those concerned.

2. The round robin dated 5th October 2001 is not a complaint (the word does not appear therein)! This round robin is an expression of frustration and deep concern.

3. The round robin does not comply with the procedures to be adopted in making a complaint - Rule 27.

4. Your letter dated 24th October 2001 is against the terms of Rule 22.1 in that a written statement has not been given to the member albeit the explanations are forthcoming on receipt of the written statement of any complaint.

5. Provide the writer with copies of photographs and newspaper articles referred to in the first paragraph of the round robin dated 5th October 2001.

6. The matter is still under consideration (sub judice) at the Sheriff Court Edinburgh".

[7] The petitioner attended the meeting on 21 November 2001. The minute of the meeting records the following:

"2.1 [Dr Peutherer] confirmed with the petitioner that he had received all copy correspondence. [The petitioner] agreed. [Dr Peutherer] briefly outlined the circumstances under which the meeting had been convened, stating that the letter which had been received was indeed signed by thirty five (35) members who were deeply concerned and had deemed that[the petitioner's] actions were 'injurious to the character and interests of the club'.

The Council were considering this matter under Rule 22 of the Rules of Membership and had elected those present to represent the Council to take [the petitioner's] explanation or comments on his actions and conduct and convey them in turn to the full Council.

2.2 [The petitioner] stated: 'I'm a member of the club' and asked 'What do you want me to talk about'.

2.3 [Dr Peutherer] once again invited [the petitioner] to comment on his actions relative to the matter and correspondence received.

2.4 [The petitioner] asked if there had been a complaint, furthermore, that there was no mention of complaint in the letter from the members, and that he did not recognise some of the signatures as some were illegible.

2.5 [Dr Peutherer] stated that there had been no mention of complaint in the text of the letter and again invited [the petitioner] to comment on his actions and conduct relative to the members letter which was being considered by the Council under Rule 22.

2.6 [The petitioner] made no verbal reply and gestured with a shrug of his shoulders.

2.7 [Mr Anderson] asked [the petitioner] if he had anything further to say, after a long pause of silence and with no further explanation forthcoming, [Mr Anderson] concluded the meeting at 7.34pm with no further business to discuss. [The petitioner] was informed that a report of the meeting would be made to the full Club Council for consideration in due course".

The meeting lasted about four minutes. A third member of the club council, Mr A Wright, was present during the meeting to operate tape recording equipment. In the event, it was discovered after the meeting that the equipment had not worked properly, and that no recording had been made. The petitioner was so informed.

[8] Following a meeting of the club council on 26 November 2001, Mr Hill wrote to the petitioner on 28 November as follows:

"The full Club Council met on 26th November 2001 to consider a report by the two Council representatives, JE Anderson and Dr J F Peutherer, on the meeting with you on 21st November 2001. This meeting was to give you the opportunity to offer an explanation of your conduct referred to in the letter Council received from members dated 5th October 2001.

After hearing representatives report Council are satisfied that you made no satisfactory explanation of your conduct relating to the matters in the said letter.

The Council have decided that your conduct has infringed rules of the Club in a manner injuring the character and interests of the Club.

They have therefore decided to allow you the opportunity of resigning from the Club.

If you do not resign within 14 days from the day following the date of this letter the Council will call a general meeting of the club to consider your expulsion from the club. In terms of the club rules a circular will be sent to every member of the club intimating that the meeting is to be held for important business.

At this general meeting you will be given an opportunity to provide an explanation of your conduct and to oppose the Council motion".

[9] The petitioner did not resign. On 6 December 2001 a further article appeared in the Scotsman, following the refusal of the appeal by the petitioner against the dismissal of the proceedings commenced on 11 June. The article quoted the petitioner as making various remarks indicating his intention to "fight on".

[10] On 28 December 2001 Mr Hill wrote to the petitioner again:

"Further to my letter of 28th November 2001, I have to inform you that since you have not tendered your resignation from the Club it is the duty of the Council to call a General Meeting of the Club (Rule 22.2).

At this meeting you will be given an opportunity to provide an explanation of your conduct on matters raised in the letter of 5th October 2001 to the Club Secretary signed by over thirty members a copy of which you have received".

On the same date, Mr Hill wrote to all members of the club, notifying them that a general meeting of the club would take place on 18 January 2002 "for important business".

[11] The petitioner responded by letter dated 31 December 2001, requesting

"(1) A record of the Council's consideration arising from the letter dated 5.10.01.

(2) A record of the meeting with 'Council's representatives' of 21.11.01 with your two advisers (you already advised me of the tape recorder failure).

(3) A copy of the 'representatives'' report to Council".

On 3 January 2002 the petitioner commenced further proceedings against the club in Haddington Sheriff Court, seeking damages for defamation.

[12] Mr Hill wrote to the petitioner again on 7 January 2002:

"I have your letter dated 31.12.01 and answer the three points as follows:-

1. Extract from minutes of Council held on 23rd October 2001:-

The meeting has been called to deal with a specific item:- a letter the secretary had received from 35 members regarding the behaviour of Mr Stuart Crockett.

The letter is reprinted in full.

Council considered the above letter and after a full discussion it was agreed that the secretary should give Mr Crocket a written statement of the complaint against him with a copy of the complaint and an opportunity to provide an explanation in person to representatives of the Council.

A letter was sent by recorded delivery on 24.10.01.

2 & 3 A copy of the minute/record of the meeting held on 21.11.01 is enclosed. This record is also the representatives report to Council".

[13] On 10 January 2002 the petitioner wrote to Mr Hill, taking issue with certain aspects of the minute of the meeting held on 21 November 2001. In particular, he wrote:

"I do not agree with the minutes of the 21.11.01 meeting because 2.3 Dr Peutherer did not AGAIN invite comment from the petitioner. If AGAIN, when did he FIRST invite comment?

1. The only words spoken by the petitioner were those inferred by 2.4 and the introductory words "I am here". The petitioner does not recognise that he said 'What do you want me to talk about?'.

2. Other words from the petitioner were: 'I have done nothing wrong' and 'I will not digress'.

3. A 'shrug' so called, like the words at meeting was not tape-recorded.

4. NO EFFORT WAS MADE BY THE TWO MAN COMMITTEE TO ASK ANY QUESTION OF MR STUART CROCKET".

[14] The general meeting of the club was held on 18 January 2002. The petitioner did not attend. The start of the meeting was delayed by ten minutes, as he had not arrived and had not indicated that he did not intend to be present. When the meeting started, the captain of the club, who would ordinarily have chaired the meeting, said that he thought it would be more appropriate if the meeting were chaired by someone who was not a member of the council. An ordinary member of the club was then proposed as chairman, and conducted the proceedings. A motion was put forward on behalf of the council for the petitioner's expulsion from the club. The members present then voted on the motion by secret ballot. The motion was passed by 101 votes to 1. Those voting in favour of the motion included at least 21 of the signatories of the letter dated 5 October 2001. Following the vote, Mr Hill drafted a letter informing the petitioner of his expulsion. The letter was delivered to the petitioner that evening, so that he would be aware of the position before it became common knowledge in North Berwick the following day. A proportion of his subscription was also returned to him.

[15] The petitioner thereafter raised proceedings against the club seeking disclosure of the identities of the members who had voted at the general meeting. The club eventually agreed to allow the petitioner's agents to inspect the relevant records. The inspection took place in April 2004.

[16] In the present proceedings the petitioner seeks declarator that the decisions taken by the club council on 23 October and 26 November 2001, and by the club in general meeting on 18 January 2002, were unlawful, and in particular contrary to natural justice. He also seeks the reduction of those decisions. At the first hearing, it was a matter of agreement that the issues were capable of resolution on the pleadings and on the documents lodged as productions.

The Rules of the Club
[17] The rules of the club, so far as material, provide as follows:

"12. Management

12.1 The management of the Club shall be in the hands of the Council which shall consist of the Captain, any Vice-Captain and six other Members of the club. Three members of the Council shall constitute a quorum except when considering matters under Rule 22 (Conduct of Members) when five members of the Council shall constitute a quorum.

.......

15. Powers of the Council

15.1 The Council shall have the entire management of all matters connected with the club and shall have power to make Bye-laws which shall not be inconsistent with these Rules. Such Bye-laws shall have effect until the next Annual General Meeting when the same shall be confirmed or otherwise.

.....

22 Conduct of Members

22.1 On being satisfied after enquiry that a Member has infringed the Rules or Bye-laws of the Club or has conducted himself in a manner injurious to the character or interests of the Club, the Council shall have power to caution the Member or to suspend him from exercising the privileges of membership, for such period as the Council may decide, to enable the matter to be fully investigated. No decision to suspend membership shall be taken by the Council without having given to the Member a written statement of the complaint against him and an opportunity to provide an explanation in person to representatives of the Council. The Club shall not be liable for repayment of any sums paid to the Club by a Member or any such claim at his instance in respect of any such suspension.

22.2 If no explanation, satisfactory to the Council, of the infringement or conduct at issue is received, the Council shall also have power to recommend to the Member in question that he resign and, if he consents, his Club subscription for the current year shall be returned. If he does not resign within 14 days from the date of the letter of recommendation, it shall be the duty of the Council to call a General Meeting of the Club and a circular shall be sent to every Member of the Club intimating that the meeting is to be held 'for important business'. At such General Meeting, the Member in question shall be given an opportunity to provide his explanation of the infringement or conduct. In the event of two thirds of the Members present and voting at that meeting deciding that the name of the Member in question should be removed from the Roll of Members, he shall then and there cease to be a Member of the Club. A Member so resigning or expelled shall forfeit all right to or claim upon the Club, its property or funds and shall not be admitted to the Clubhouse as a visitor, guest or otherwise.

.....

27 Complaints

Any complaint shall be made in writing to the Secretary who, if he is unable to deal with the matter himself or if he is so requested, shall submit it to the Council whose decision shall be final subject only to a General Meeting of the Club. In no case shall an employee of the Club be reprimanded directly by a Member.

32. Compliance with the Rules.

The Rules of Membership and Bye-laws of the Club shall be binding on every Member who, on payment of his Entrance fee, if any, and Club subscription is thereby held to have submitted himself to these Rules and on that condition alone is entitled to enjoy the privileges of membership".

The Parties' Submissions
[18] On behalf of the petitioner, counsel said that it was accepted that the letter of 5 October 2001 had been a complaint against the petitioner, within the meaning of rule 22.1. It was accepted that the petitioner had been given an opportunity to respond to the complaint, and to say whatever he wished to say in relation to the matters raised in the letter. It was accepted that he had not taken that opportunity. He had not been minded to take part in the procedure at the meeting held on 21 November 2001. He had decided not to attend the meeting on 18 January 2002. He thought by then that it was inevitable that the members would vote to expel him.

[19] The petitioner challenged the decisions taken by the club council on 23 October and 26 November 2001 on two grounds. The first was that the council did not make any "enquiry", as required by rule 22.1, prior to notifying the petitioner of the complaint. It was accepted that, insofar as the complaint concerned the petitioner's having raised actions on numerous occasions against the club and its officers and members, and his having co-operated in the preparation of the newspaper article, there was no need for any enquiry. The petitioner could not dispute those matters. They were matters of which the members of the council were well aware. They could be satisfied of those matters without enquiry. There were however three other matters in respect of which enquiry was necessary. These were:

(1) The nature and extent of questioning of members by non-members referred to in the first paragraph of the letter of complaint. Counsel however accepted that the newspaper article published on 11 June 2001 would inevitably have given rise to comments and questions within the local community.

(2) The circumstances and nature of the court actions which had been raised previously by the petitioner.

(3) The "other things" referred to in the second paragraph of the letter of complaint. The second paragraph was described by counsel as "the central problem".

The requirement to conduct an enquiry had not been satisfied by seeking an explanation from the petitioner at the meeting held on 21 November 2001. In terms of rule 22.1, the member was not to be given a written statement of the complaint, and an opportunity to provide an explanation to representatives of the council, unless the council were already "satisfied after enquiry" that the member had conducted himself in a manner injurious to the character or interests of the club. It followed that the council should already have been "satisfied after enquiry" before deciding to seek an explanation from the petitioner.

[20] Secondly, the letter of complaint did not give sufficient detail of the charges against the petitioner. The second paragraph of the letter was again the central problem. It was vaguely expressed. It covered an extensive period of time and was potentially wide-ranging in scope. The petitioner's right of reply was prejudiced by the absence of detail. In particular, he needed details of the questioning said to have taken place of members by non-members. He did not know what specific conduct he had to explain. In particular, it was not clear whether the actions to which the second paragraph of the letter referred included the action against Mr Milne, or were confined to the more recent proceedings. To have taken the earlier action into account would have been unfair, since it had formed part of the subject matter of a complaint against the petitioner in 1993. Reference was made to Murphy v General Teaching Council for Scotland 1997 SC 172, Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386 and Welsh v Committee of the South Western Social and Recreation Club Ltd 25 June 2004. It was accepted that the petitioner had not asked for further specification. It was also accepted that the council had communicated to the petitioner the ipsissima verba of the complaint. It was further accepted that the council were entitled to select from the matters raised in the letter of complaint those that they regarded as significant.

[21] If the decisions taken by the council were invalid, then it followed that the decision taken by the members in general meeting was equally invalid. The latter decision was in any event vitiated by a procedural impropriety, in that at least 21 of the members who had complained about the petitioner's conduct also took part in, and voted at, the general meeting. The general meeting was accordingly not impartial. Reference was made to Graham v Ladeside Bowling Club 1990 SC 365.

[22] Although the petition for judicial review also challenged the decision taken on 18 January 2002 as being unreasonable and disproportionate, counsel intimated that he was not insisting in that ground of review.

[23] On behalf of the club, counsel submitted that the petition was incompetent insofar as it sought judicial review of the decision taken by the members on 18 January 2002. The relationship between the petitioner and the other members of the club was governed by the law of contract. If the decision was taken in breach of contract, then the petitioner had a contractual remedy, as in Graham v Ladeside of Kilbirnie Bowling Club. It was unnecessary, and therefore incompetent, to invoke the supervisory jurisdiction of the court. The club council, on the other hand, were amenable to the supervisory jurisdiction, since they exercised the limited powers which the members of the club had conferred upon them. No issue of competency was therefore taken in respect of the challenge to the actions of the club council.

[24] In relation to the complaint that the council did not carry out any "enquiry", counsel submitted that it was not altogether clear how rule 22 was to be interpreted and applied. The council had construed it in the petitioner's favour. On receiving the complaint, they had notified the petitioner of its terms, and had appointed the two representatives to obtain his response. That was how the enquiry was conducted. The council had the testimony of the signatories of the complaint, and they gave the petitioner an opportunity to respond. It would have been artificial and unnecessary to establish some form of hearing involving witnesses. The central matters of complaint - the petitioner's recent proceedings against the club, seeking damages for defamation, and his co-operation in the preparation of the newspaper article which had made the matter notorious in the local community - were indisputable. The council had however done what they could to hear the other side. They received no response. The petitioner had decided not to avail himself of the opportunity to respond.

[25] In relation to the complaint that the "charges" were insufficiently specific, counsel submitted that the context was the proceedings of a private club, not a criminal trial. The petitioner had sufficient information about the complaint to be able to respond to it if he had wished to do so. The council had not taken into account the action brought against Mr Milne.

[26] In relation to the complaint that the note at the general meeting was invalidated by the participation of signatories of the letter of complaint, counsel submitted that all members were entitled to vote at the meeting, in terms of the rules.

[27] Responding on the issue of competency, counsel for the petitioner submitted that since the members were exercising a disciplinary function, their proceedings were amenable to the court's supervisory jurisdiction. They had merely delegated the initial stages of those proceedings to the council.

Discussion

1. Competency
[28] Taking matters in their logical order, it is necessary first to consider the challenge to the competency of the present proceedings, insofar as they concern the decision taken by the members who voted at the general meeting.

[29] A members' club, such as Tantallon Golf Club, is an unincorporated association. It has no legal persona: in the present proceedings, for example, the respondents are not properly designed as "Tantallon Golf Club". The members of the association for the time being are bound inter se by contract: each member agrees with all the other members to be bound by the rules. The contract has a number of particular features. One is that in the case of a numerous association, such as a golf club, a member may well be unaware of the identities of all the other parties to the contract. Indeed, the contract may provide for the composition of the association to change from time to time, as existing members resign or are expelled, and new members are admitted. In such circumstances, the members for the time being agree to enter into association with any new member upon his or her admission in accordance with the rules, and equally agree to the termination of their association with any member who resigns or is expelled in accordance with the rules. A second feature of the contract is that, since the members of the association cannot (at least in the case of a numerous association) all personally undertake every act which requires to be undertaken for the purposes of the association, they agree to authorise certain members to take certain acts or decisions, on the basis that all the members will be bound by such acts or decisions. Typically, as in the case of Tantallon Golf Club, the rules of the association will provide for a number of members, described as the committee or council of the club, to undertake the day to day management of the club's affairs. Under their contract with each other, the members agree to be bound by the acts of the members forming the council, provided the council act within the scope of the authority conferred upon them by the rules. The members of the council can bind the members as a whole, in their dealings with third parties, in accordance with the law of agency. In relation also to questions relating to the conduct of members and the procedures leading to expulsion, the rules may provide for a council of members to exercise certain functions. If, as in the case of Tantallon Golf Club, the rules of the association provide for expulsion to be decided upon by a specified majority of members present at a meeting, the implication is again that the members as a whole agree to be bound by a decision which has been taken only by those of their number who were present at the meeting and voted in favour of expulsion.

[30] It follows from the foregoing that a member is not bound by actings of other members which are not in accordance with the rules of the association. In that sense, the concept of vires can be applied to the affairs of an association. In particular, expulsion from membership (or any other disciplinary measure), in order to be legally effective, must be in accordance with the rules. If a member were to be purportedly expelled, otherwise than in accordance with the rules, then it might therefore be thought that issues would arise which might be determined by the court in the exercise of its ordinary jurisdiction to decide questions of contract, whether the decision to expel were taken by the members in general meeting or by a council formed from their number. That is indeed how such issues are dealt with in the English courts, where, for historical reasons, judicial review is available only in respect of public authorities. In Scotland, on the other hand, the procedural law as to how such issues should be addressed has developed differently, reflecting not only the availability of the same remedies (such as reduction) in proceedings against public authorities as in proceedings against private individuals, but also certain features of such issues which are analogous to those which arise when the validity of the decisions of administrative or quasi-judicial bodies is in question.

[31] One such feature is that the members as a whole agree to be bound by a decision taken by a group of members, provided the decision is taken in accordance with the rules of the association. The group of members on whom the decision-making power is conferred thus exercise a limited authority or jurisdiction. A second feature is that the common law imposes certain procedural requirements upon the decision-making process (if they are not imposed by the rules themselves), in the interests of fairness. A third feature is that, if a decision is taken which is ex facie valid, then the members as a whole will appear to be bound by that decision: they cannot be held to be in breach of contract in giving effect to the decision, unless the decision has been determined to be a nullity. A fourth feature is that the decision cannot be said to be a nullity merely because a different view of the matter in issue might have been taken by a court of law, since the members have agreed to abide by the decision, not of a court, but of the persons to whom authority to decide the question has been given by the rules. If their decision is to be regarded as a nullity, that must therefore be because they have taken it otherwise than in conformity with the authority conferred upon them.

[32] Issues of this nature appear first to have been considered by the Court of Session in the nineteenth century, in cases concerned with non-established churches, which are a form of unincorporated association. In McMillan v Free Church (1859) 22D 290, (1861) 23D 1314, (1862) 24D 1282, for example, a minister of the church sought the reduction of decisions of the General Assembly finding charges of misconduct proved against him and depriving him of his office, together with damages. The church was a voluntary association: its General Assembly was established under the rules of association of the members of the church, and authorised by the members to exercise disciplinary functions. The minister's complaint was that the General Assembly had failed to follow a fair procedure. The case thus raised the question whether the court could competently review the decisions of a group of individuals whose authority to take such decisions was conferred by a contract between the persons who voluntarily submitted to their authority. The court held that the proceedings before it were competent. The contract between the members of the church conferred limited vires upon the members of the General Assembly, and decisions taken by the General Assembly otherwise than in conformity with the powers conferred upon its members were therefore ultra vires and capable of reduction. Lord President McNeill observed ((1859) 22D 290, at page 314):

"If their byelaws, or constitution, or rules of government, are not contrary to law - are not illegal in themselves - the Court of law will not interfere between them and their members in the fair application and enforcement of such rules against parties who have chosen to enter the body, and to subject themselves to its laws. But if the office-bearers or the governing authorities of the body go altogether beyond the sphere of the constitution of the association - if they deal with a member in a way that they are not authorised by their constitution to deal with him - if they attempt to exercise over him a power or authority which he by becoming a member did not give them, and if by so acting they have done him injury, he will not be precluded from seeking redress, nor will the courts of law hold themselves precluded from giving him redress".

Lord Curriehill explained the supervisory nature of the court's jurisdiction to review whether the decision challenged was ultra vires, without determining the merits of the question before the General Assembly, and drew an analogy with the review of decisions of arbiters and of inferior jurisdictions. In that regard, his Lordship observed ((1861) 23D 1314 at pages 1336-1337):

"It appears to me that two fallacies have pervaded the argument of the defenders as to the nature of the remedies to which these conclusions are limited. One of these is an assumption that these conclusions include also the question, whether or not the pursuer was guilty or innocent of the offence imputed to him as above mentioned? Had there been a conclusion to that effect in the summons, it would, in my opinion, have been incompetent. But no such thing is sought in this action; and even supposing that decree were ultimately to be pronounced in terms of the actual conclusions of this action, that decree would not affect the question of the pursuer's guilt or innocence.....

When the ground of reduction is only that the inferior court has exceeded its powers, the effect of the decree of reduction is merely to declare judicially the inherent nullity of the decree of the inferior court, and to leave entire the merits of the matter on which that court may have so incompetently adjudicated; and accordingly, such an action of reduction is competent in this Court, even although the question on the merits be excluded from its jurisdiction. But if, in such a case, the summons should also conclude that this Court should pronounce a judgment on the merits of the question itself, that conclusion would be dismissed as incompetent. In the present case, what is sued for is merely a decree reducing the proceeding complained of as having been ab initio a nullity, and not a judgment on the merits of that proceeding. The remedy, therefore, which the pursuer is seeking by this action is not of the nature and import which has been assumed by the defenders in their argument, but is limited to a demand for having the sentenced reduced, as having been ab initio null for want of power in the defenders to pronounce it".

[33] In Forbes v Underwood (1886) 13 R 465 the court was concerned with another type of decision-making authority created by contract, namely that of an arbiter. One of the parties to the arbitration considered that one of the arbiters had failed to perform his duties, and brought proceedings in the Sheriff Court to have him ordered to do so. On an appeal to the Court of Session, the arbiter argued that the Sheriff Court had no jurisdiction. That issue had not arisen in the earlier cases concerning tribunals established under the rules of voluntary associations, such as McMillan v Free Church, because those actions had been raised in the Court of Session (and the remedy of reduction which was sought was a remedy which only the Court of Session could grant). In Forbes v Underwood, on the other hand, the remedy sought was one which the Sheriff Court could competently grant. The issue which therefore arose was whether the Court of Session had exclusive jurisdiction to review the actings of arbiters. The Court held that it did, on the basis that an arbiter was, in relation to judicial supervision, in an analogous position to an inferior court or statutory tribunal.

[34] The principles established in these cases were applied in numerous subsequent cases concerned with associations of various kinds. For example, in Gardner v McClintock (1904) 11 SLT 654 a minority of the members of a bowling club successfully challenged a resolution that the club should be dissolved, which had been passed by a majority of the members at a general meeting, as being ultra vires. In Ellice v Invergarry and Fort Augustus Railway Co 1913 SC 849 a shareholder in a company successfully challenged the proposed sale by the company of its undertaking as being ultra vires. In McDonald v Burns 1940 SC 376 Lord Justice-Clerk Aitchison, after reviewing the authorities, described (at pages 383-384) the circumstances in which the court would intervene in the proceedings of a religious association:

"In what circumstances, then, will the Courts entertain actions arising out of the judgments of ecclesiastical bodies? Speaking generally, in either of two situations - (first) where the religious 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 in procedure 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 of an ecclesiastical offence 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".

Those general principles are equally applicable to associations of a secular nature, as is illustrated by their application to a football association in St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 SLT 171 at page 174.

[35] Following the introduction of the new procedure of judicial review in 1985, there was for a period some uncertainty as to the scope of that procedure, and in particular as to whether it was applicable to disputes of a private character, or was confined (as in England and Wales) to cases involving issues of public law. During that period, some cases concerning challenges to the vires of actings of associations or their governing bodies were dealt with as ordinary actions. Examples include Gunstone v Scottish Women's Amateur Athletic Association 1987 SLT 611 and Graham v Ladeside of Kilbirnie Bowling Club. No issue as to the competency of the procedure was taken in those cases. The scope of the supervisory jurisdiction was subsequently clarified in West v Secretary of State for Scotland 1992 SC 385. In the opinion of the court, delivered by Lord President Hope, it was explained (at pages 400-401) that such cases as McDonald v Burns and St Johnstone Football Club Ltd v Scottish Football Association Ltd had been decided by the court in the exercise of its supervisory jurisdiction.

[36] In the present case, however, counsel for the respondents sought to draw a distinction in this regard between decisions taken by the council of the club, on the one hand, and decisions taken by the members in general meeting, on the other hand. He submitted that there was a "triangular relationship" in the former situation, but not in the latter, and that the presence of such a relationship was critical to the competency of an application for judicial review.

[37] This submission appears to me to be mistaken. It proceeds upon a misunderstanding of the effect of the rules of the club, and to some extent also upon an overly inflexible application of certain remarks which were made by Lord President Hope in West. Without attempting an exhaustive definition, it can be said in the most general terms that the essence of the supervisory jurisdiction is that it is the means by which, under the common law, the court ensures that bodies which possess legally circumscribed powers to take decisions or actions, affecting the rights or interests of other persons, exercise their powers in accordance with the limitations and requirements to which they are subject. Those limitations and requirements may be set by legislation, or by contract, or by some other instrument, or by the common law. They may concern such matters as the extent of the powers themselves, the purposes for which they can be exercised, the factors which the body in question requires to take into account, and the procedures which the body must follow. Since the court's function is confined to ensuring that the powers are exercised in accordance with the limitations and requirements to which they are subject, it follows that its jurisdiction is of a restricted nature, which is aptly described as supervisory. It cannot interfere with an act or decision taken by the body in question within the limits of its powers, since to do so would be incompatible with the existence of those powers, but can only review the decision to ensure that it is intra vires. Since the body in question possesses a limited authority, an act or decision which it takes purportedly in the exercise of its authority will be given effect, unless and until it is found by a court to be invalid. For that reason, the remedy which is most commonly (but not invariably) appropriate, in the exercise of the court's supervisory jurisdiction, is that of reduction. The court can quash the decision challenged, or declare it invalid, or order that it should not be implemented, but it cannot ordinarily substitute its own decision on an issue which the body in question has the power to determine. There is thus a relationship between the nature of the supervisory jurisdiction, the type of acts or decisions which fall within its scope, the grounds upon which the jurisdiction can be exercised, and the nature of the remedies which are generally appropriate.

[38] The jurisdiction described in the preceding paragraph is different in nature from the jurisdiction which the court ordinarily exercises in determining disputes, for example under the law of obligations, or the law of property. If, for example, there is a dispute between a landlord and a tenant as to whether the tenant has failed to comply with a repairing obligation and is liable to pay for the repairs detailed in a schedule of dilapidations prepared by the landlord, the court's jurisdiction is not of a supervisory nature. It is not restricted to considering whether the landlord has acted fairly and reasonably, but can examine the merits of every aspect of the dispute. It does not require to quash the landlord's schedule, or to order the landlord to prepare a new one: the court can itself determine the amount for which the tenant is liable. On the other hand, the existence of a contractual relationship between the parties does not necessarily exclude judicial review, as is demonstrated by the cases concerned with arbiters, churches and other voluntary associations. In some situations, it may not be obvious whether an issue falls within the scope of the supervisory jurisdiction or not.

[39] In West, the idea of a tripartite relationship was put forward with a view to assisting understanding of the supervisory jurisdiction. In relation to certain authorities, including Forbes v Underwood, Lord President Hope observed (at page 400):

"....As counsel for the respondent pointed out, the tri-partite relationship in these arrangements is significant. The essential feature of all these cases is the conferring, whether by statute or private contract, of a decision-making power or duty on a third party to whom the taking of the decision is entrusted but whose manner of decision-making may be controlled by the court".

In relation to the St Johnstone Football Club case, his Lordship said (ibid):

"....The case provides a clear example of the tri-partite relationship to which we referred earlier, by which a decision-making body - in this case the council - has been entrusted by an enabling body with a limited jurisdiction for decision-taking in regard to others to which it must adhere".

In relation to disputes as to contractual rights and obligations, his Lordship said (at page 413):

"(d) Contractual rights and obligations, such as those between employer and employee, are not as such amenable to judicial review. The cases in which the exercise of the supervisory jurisdiction is appropriate involve a tri-partite relationship, between the person or body to whom the jurisdiction, power or authority has been delegated or entrusted, the person or body by whom it has been delegated or entrusted and the person or persons in respect of or for whose benefit that jurisdiction, power or authority is to be exercised".

[40] These passages are of assistance in understanding the type of power whose exercise falls within the scope of the supervisory jurisdiction. They should not, however, as it seems to me, be applied in an excessively literal fashion, as if they contained a statutory definition. It is not difficult to discern a tripartite relationship of the kind described in most situations falling within the supervisory jurisdiction: the decision-maker usually exercises a power over individuals, conferred by legislation or by contract. Even in such a situation, however, some of the limits upon the powers in question may be imposed by the common law, and cannot realistically be regarded as impliedly imposed by the legislature or by the contracting parties. In some other situations - for example, where prerogative powers are concerned - the powers, and their limits, may derive entirely from the common law. Although, therefore, the concept of a tripartite relationship, broadly understood, is valuable as a paradigm of the situation in which a body exercises a limited power or authority, it is not, as it seems to me, to be applied inflexibly, as if it were a Procrustean bed which every situation must be forced to fit.

[41] In the present case, it is conceded that decisions taken by the club council under rule 22 are susceptible to the court's supervisory jurisdiction, on the basis that there is a tripartite relationship under which the members of the council are entrusted by the members of the club as a whole with a decision-making power in respect of any member whose conduct is in issue. Counsel for the respondents sought to distinguish decisions taken by a general meeting of the club under the same rule, on the basis that such decisions are taken by virtue of the contractual relationship between the member in question and the other members. This distinction does not appear to me to be well-founded. The club council are a group of members of the club, whom the members as a whole have agreed inter se are to have authority to take certain decisions affecting a member whose conduct is in issue. A qualified majority of those present and voting at a general meeting are equally a group of members of the club, whom the members as a whole have agreed inter se are to have authority to take a decision affecting such a member. Each of these situations appears to me to be capable of being characterised as involving a tripartite relationship. More significantly, perhaps, each of them involves the exercise of a limited power, to take a decision affecting the rights or interests of the member in question, by a body on whom that power has been conferred; each of them results in the taking of a decision with which the court cannot interfere, provided the power is exercised lawfully within the limits by which it is circumscribed; and each of them results in the taking of a decision which is ex facie binding upon the members, unless set aside by the court. In these circumstances, it appears to me that each of these situations falls equally within the ambit of the court's supervisory jurisdiction. The challenge to the competency of these proceedings must therefore be rejected.

2. The Merits
[42] It is necessary to consider next the various grounds on which the decisions of the council and of the general meeting were challenged. First, it was argued that, in terms of rule 22, the council must carry out an enquiry before deciding to seek an explanation from the member whose conduct is in issue. This submission appears to me to be based upon a misconstruction of the rules.

[43] Rule 22.1 confers upon the council the power to caution a member or to suspend him from membership pending a full investigation of the relevant matter. Those powers can be exercised by the council "on being satisfied after enquiry" that the member has infringed the rules or bye-laws, or has conducted himself in a manner injurious to the character or interests of the club. Before the council can suspend membership, they must first give the member concerned a written statement of the complaint, and an opportunity to provide an explanation to representatives of the council. Rule 22.2 empowers the council, "if no explanation, satisfactory to the Council, of the infringement or conduct at issue is received", to recommend to the member in question that he should resign; and, if he fails to do so, the council must then call a general meeting of the club.

[44] Although rule 22.1 imposes a requirement to notify the member of the complaint, and to provide him with an opportunity to provide an explanation, only before a decision is taken to suspend the member, the implication of rule 22.2 is that an opportunity to provide an explanation must also be provided before the council recommend to the member that he should resign, or call a general meeting. It appears therefore to be implicit that the procedure described in rule 22.1, whereby the member is given a written statement of the complaint and an opportunity to provide an explanation to representatives of the council, should be followed before the council decide to take the steps described in rule 22.2. Indeed, even if it were not implied, the common law would in any event require that the member be informed of the complaint, and afforded an opportunity to respond, before such steps were taken (see eg Dawkins v Antrobus (1881) 17 ChD 615; Lee v The Showmen's Guild of Great Britain [1952] 2 QB 329, 342-343 per Denning LJ).

[45] The requirement in rule 22.1 that the council should be "satisfied after enquiry" applies before the council decide to caution the member, and also before the council decide to suspend the member. The power to suspend can thus be exercised only where two requirements are satisfied: that the council are "satisfied after enquiry", and that the member has been given a written statement of the complaint and an opportunity to provide an explanation. There is nothing in rule 22.1 to indicate that the council must be "satisfied after enquiry" that the member has misconducted himself before they notify him of the complaint and give him an opportunity to provide an explanation; and such a construction would appear to me to verge on the absurd. It was the Queen of Hearts whose maxim was "sentence first - verdict afterwards"; and a construction of rule 22.1 which might be summarised as "verdict first - trial afterwards" would appear equally to belong to the world of Lewis Carroll. Correctly construed, rule 22.1 requires that the enquiry carried out by the council is to involve giving the member a fair hearing, by notifying him of the complaint and allowing him an opportunity to respond. Similarly, on the assumption that the requirement that the council should be "satisfied after enquiry" is to be interpreted as applying also to the council's exercise of the powers mentioned in rule 22.2, it does not in my opinion require that the council carry out an enquiry and pronounce themselves satisfied prior to notifying the member in question of the complaint and giving him an opportunity to provide an explanation.
[46] The construction of rule 22.2 which appears to me to be correct is supported by the judgment of Jessel MR in Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346. The case concerned the construction of a rule in the following terms:

"In case the conduct of any member either in or out of the club shall in the opinion of the committee, after inquiry, be injurious to the welfare and interests of the club, the committee of the club shall call upon him to resign, and in the event of his refusal to do so, shall call a general meeting at which it shall be competent for the votes of two-thirds of those present to expel such member".

In relation to the words "after inquiry", Jessel MR said (at page 350-351):

"The committee are not to form an opinion until 'after inquiry'. What does that mean? What kind of inquiry is intended? .....What the rule which I have quoted means is, that there shall be a fair inquiry into the truth of the alleged facts ....What ought the committee of a club to do when the conduct of one of its members has been impugned? They ought to see what that conduct has been, and what excuse or reason can be given by the member for it; and they ought to give notice to that member that his conduct is about to be inquired into, and afford him an opportunity of stating his case to them".

If rule 22 is construed as requiring, at least in the context of a member's being suspended or asked to resign, that the council should act only after enquiry, and that such enquiry should include giving notice to the member that his conduct is being enquired into, and affording him an opportunity of stating his case, the rule thus makes explicit the requirements of a fair hearing which, as in Labouchere v Earl of Wharncliffe, would otherwise be held to be implicit.

[47] The second argument presented was that the letter of complaint did not give the petitioner sufficient notice of the charges against him. It is clear that the petitioner was entitled to a fair hearing, and that an essential element of such a hearing was that he should be informed of the gravamen of the complaint against him. In fact, the petitioner was informed of the terms of the complaint verbatim. Although not drafted with the precision one might expect of an indictment in criminal proceedings, the letter of complaint appears to me to have made tolerably clear the aspects of the petitioner's conduct which had occasioned concern: the recent action brought against the club for damages, which was said to have given rise to much anxiousness, and the related newspaper articles, which were said to have resulted in many members being questioned by persons outside the club; these matters being seen against the background of the atmosphere and anxiety caused by the petitioner's previous legal actions. It does not appear to me that fair notice required the petitioner to be given chapter and verse of the questions that members had been asked as a result of the publicity given to the action brought against the club: counsel accepted that the publicity would inevitably have given rise to comments and questions within the local community. Nor, on the face of things, did the petitioner require to be informed of the previous actions which he himself had brought. If, in any event, the petitioner had genuinely required further specification in order to respond to the complaint, he could have requested it. He made no such request. On the contrary, as counsel accepted, the petitioner elected not to avail himself of the opportunity to respond to the complaint. In counsel's words, the petitioner had not been minded to take part in the procedure. He cannot complain that he was not given a fair opportunity to respond to the complaint, by reason of a lack of specification, if he had a reasonable opportunity to seek further specification but failed to take it; a fortiori, if he had no intention of responding to the complaint. There is no such thing as a technical breach of natural justice.

[48] In relation to the supposed lack of specification, counsel for the petitioner raised in particular a question whether the previous actions to which reference was made in the letter of complaint might have included the action brought against Mr Milne in about 1991: it was suggested that to have taken that action into account would have been unfair, since it had featured in earlier disciplinary proceedings. It was not however maintained that the action in question had in fact been taken into account (something which the club denied in their answers to the petition): this matter was raised in support of the complaint that the petitioner had not been given fair notice of the complaint, rather than as a distinct ground of challenge. It appears to me in any event that the petitioner's argument in relation to this matter, which was supported by reference to Murphy v General Teaching Council for Scotland and Irvine v Royal Burgess Golfing Society, proceeds on a mistaken basis. In the cases cited, it was objectionable to have regard to certain past conduct because it was irrelevant to the issue which had to be decided. In the present case, on the other hand, the council had to decide not only whether the petitioner had conducted himself in a manner injurious to the character or interests of the club, but also, if so, whether to exercise their power to recommend to the petitioner that he should resign. In relation to the latter point, it was relevant to have regard to the petitioner's previous behaviour as a member, and to consider whether the conduct in question was an isolated occurrence or, as was suggested in the letter of complaint, formed part of a pattern of behaviour over many years. I would also observe that this case is different from Murphy v General Teaching Council for Scotland, in that it is concerned with a social club, and not with a professional body. The grounds on which the court will review the decisions of these two categories of body are not necessarily the same, for reasons which were explained by Denning LJ in Lee v The Showmen's Guild of Great Britain at page 343.

[49] The final argument presented was that it was unfair for members of the club who had signed the letter of complaint to take part in, and vote at, the general meeting. This argument is manifestly untenable. Rule 22.2 requires the council to call a general meeting of the club, sending a circular to "every" member. It is implicit that every member is entitled to attend the meeting, and to vote at it. There is in any event no reason why, as a matter of fairness, a signatory of the complaint should not take part in the general meeting at which the subject-matter of the complaint is to be dealt with. The implication of the argument presented on behalf of the petitioner is that, the more people complain about him, the fewer are entitled to vote at the general meeting: those who complain about his conduct ipso facto disqualify themselves. The reductio ad absurdum is that, if all the other members complained about the petitioner's conduct, no-one would be entitled to vote for his expulsion. The implication of the agreement that expulsion is to be voted upon by the members at a general meeting must therefore be an acceptance that members are to be entitled to vote notwithstanding their having made a complaint. Any other conclusion would have serious consequences, not only for unincorporated associations, but also for incorporated companies, whose shareholders may require to determine many issues (such as the removal from office of directors or auditors) by a vote at a general meeting: it would be extraordinary if the shareholders whose concerns had occasioned the summoning of the meeting were thereby disenfranchised. As was said by James LJ in Dawkins v Antrobus at page 628:

"All we have to consider is whether the notice was or was not given according to the proper rules, whether the meeting was properly convened, and whether the meeting, if properly convened, had come to the conclusion that this gentleman ought to be expelled".

Conclusion
[50] For the foregoing reasons, although I shall repel the plea to the competency of the petition, the petition will be refused.