Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 149
P887/12	OPINION OF LORD PENTLAND in the petition of JOHN FOLEY Petitioner; For Judicial Review of a decision by the Management Committee of the Glen Golf Club dated 15 May and 3 July 2012 to expel the petitioner from the Club with effect from 3 July 2012 _________

Petitioner: O'Carroll; Lefevre Litigation

Respondent: Murdoch, Solicitor Advocate; Anderson Strathern

13 September 2012

Introduction
[1] The present proceedings arise from a dispute between a member of a golf club in North Berwick and its management committee. The petitioner has been a member of the Glen Golf Club, the respondents to the present petition for judicial review, since 2001. The respondents are an unincorporated association founded in 1906. They are regulated by a set of rules, known as the Glen Golf Club Constitution ("the Constitution"). Under the Constitution the control and management of the respondents' business and affairs are vested in a committee comprising the captain, the vice-captain and six elected ordinary members. In the present petition the petitioner seeks judicial review of a decision made by the committee on 15 May 2012 and upheld on appeal on 3 July 2012 to expel him from membership of the golf club with effect from 3 July 2012. The case came before me in the vacation court on the petitioner's motion for first orders and for interim interdict and interim suspension of the decision to expel him. At the hearing the respondents were represented due to their caveat having been honoured.

The facts

[2] The background to the present petition may be summarised as follows. The petitioner avers that he played an active role in developing the business of the respondents and was previously a committee member. At one time he was also the match secretary. On 13 February 2011 the respondents wrote to the petitioner advising him of an allegation that he had contravened clause 33 of the Constitution. This provides inter alia as follows:

"Disciplinary Actions the management committee shall investigate any alleged misconduct by any category of Glen Member, either in or out of the club premises and the East Links Golf Course that it suspects may potentially be injurious to the character or interests of the club, endanger the good order of the club, its public reputation or the game of golf more generally; and take disciplinary action as appropriate against the member concerned."

[3] The allegation against the petitioner was that he had passed certain documents to the solicitors representing the former secretary of the club, Mr Kevin Fish. Mr Fish had brought an unfair dismissal claim against the respondents in the employment tribunal. The respondents claimed that the documents were confidential and that by passing them to Mr Fish the petitioner had acted in a manner contrary to the best interests and good order of the club. They maintained that his conduct in this regard amounted to a breach of clause 33. The captain of the club at that time, Mr Alasdair Kerr, requested that the petitioner resign from the club, failing which he would be expelled. The petitioner disputed the allegation against him and a disciplinary hearing took place on 6 June 2011. At that hearing the petitioner was found to have acted in breach of clause 33. In view of the petitioner's previous service to the club, he was offered the opportunity to accept suspension of his membership as punishment for his breach. Without any admission of guilt, the petitioner decided to accept that offer. His suspension was due to end and his membership of the club to be reactivated with effect from 31 March 2012.

[4] The petitioner avers that prior to his suspension he became aware that the accounts of the respondents had not been audited. He believed this to be a departure from the respondents' usual practice. At the annual general meeting of the club held on 24 February 2011, the petitioner asked about this matter and was given a response which he regarded as unsatisfactory. He understood (although he later learned that this was not, in fact, correct) that the committee required to propose a change to the Constitution in order to remove the rights of members to have access to the club's annual audited accounts.

[5] The petitioner subsequently became aware that Mr Kerr had been mentioned in newspaper articles which were published in the Edinburgh Evening News on 6 October 2011 and in the Scotsman on 12 November 2011. The first article stated that police had been called in after reports of financial irregularities at a trust run by the Edinburgh Chamber of Commerce. The article reported that a company set up by the Scottish Chambers of Commerce to help firms boost their exports had gone into liquidation. The company was known as Scottish Chambers International ("SCI"). The article contained the following passage:

"SCI was the brainchild of EBD (Edinburgh Business Development) managing director Alasdair Kerr, who wanted to bring together the expertise of the international trade divisions of all Scotland's leading Chambers of Commerce, offering specialist international trade support services to businesses with global trade ambitions.

However, it is understood the EBD board eventually decided it could not take responsibility for the costs and risks involved and an independent SCI board was set up in March this year. Mr Kerr transferred to the new body as managing director.

But sources today claimed the business model for SCI's involvement in the Smart Exporter programme proved flawed and the revenue it had expected failed to materialise."

[6] The second article related to comments made by Mr Ron Hewitt, the outgoing chief executive of the Edinburgh Chamber of Commerce. The article quoted Mr Hewitt as stating that he "deeply regrets" the "inadequate" controls within the organisation which led to a £1.1 million loss for the year and which had prompted a police investigation into "unacceptable work practices" of former staff. The article contained the following passage:

"It is thought that his comments relate to the former managing director of EBD, Alasdair Kerr, who Mr Hewitt said had resigned only weeks before the chamber discovered the extent of the losses the firm was making."

[7] The petitioner avers that the combination of factors in relation to the audited accounts and the newspaper articles caused him to have serious concerns regarding the proper management and administration of the respondents' business. He chose to share those concerns with two of his friends, who were also members of the club. He did so by sending each of them two emails late in the evening of Friday 30 December 2011. The first email was in the following terms:

"Have a look at these and tell me we shouldn't be worried about the Club accounts not being audited.

[There followed hyper-links to online versions of the two articles]

Please feel free to copy and paste the links without reference to me.

This is very significant considernig (sic) the fact he was the one who prevented our accounts being audited.

FREEDOM!"

[8] The second email, which was sent shortly after the first, stated as follows:

"Also,

The current committee want to change the constitution and thus prevent the membership from accessing properly audited accounts.

Verr (sic) Interesting."

[9] The solicitor-advocate for the respondents explained, in the course of the hearing before me, that the petitioner's concerns found their way onto Facebook (exactly how was not explained) and came to the notice of Mr Kerr. He was concerned about the references to him and drew matters to the attention of the respondents' management committee. As a result, on 26 March 2012 Mr Jim Edgar, the club's vice-captain, wrote to the petitioner asking him to confirm whether it was his intention to continue his membership of the club following expiry of his suspension on 31 March 2012. The letter continued as follows:

"If so, the following will be of relevance.

It has been drawn to the attention of the management committee that during the period while you have been suspended certain comments have been communicated which might be injurious to the character or interests of the Glen Golf Club and its public reputation. It will be necessary for these matters to be investigated by myself as vice captain and one other member of the management committee. Our task will be to ingather information and to seek your written explanation of the alleged misconduct. The findings will then be considered by the management committee.

Your comments we will be investigating (sic) relate to the association of Mr Alasdair Kerr's involvement with Edinburgh Business Development and his roles at Glen Golf Club, as well as the motivation of the current committee to bring in an alternation to the constitution."

[10] The letter went on to ask the petitioner to provide a written explanation of the alleged misconduct within 14 days.

[11] On 10 April 2012 the petitioner replied to Mr Edgar. He confirmed that he intended to continue his membership of the club with effect from the expiry of his suspension. The letter went on to refute the allegations of misconduct. It stated as follows:

"I was simply expressing genuine concern regarding the alleged behaviour of the person who was at the time of the allegations our most senior officebearer. I did this through personal email and linked to information which was already in the public domain."

[12] By letter dated 14 April 2012 Mr Edgar advised the petitioner that he and Mr Gillan had reported their initial findings to the management committee on 10 April 2012. The committee had resolved that they were not satisfied with the petitioner's written explanation. As a consequence Mr Edgar invited the petitioner to meet him and Mr Gillan as the investigating team to discuss the alleged misconduct. The letter continued as follows:

"While we are happy to discuss any aspect, the particular areas on which clarification from you is sought is evidence of any truth in the allegations you made against Mr Alasdair Kerr, past captain of the Glen Golf Club, and your reasons for linking these and events at the Edinburgh Chamber of Commerce to the Glen Golf Club; substantiation of the allegations contained within the statement 'this is very significant considering the fact that he was the one who prevented our accounts being audited' and evidence to support your allegation of 30^th December 2011 that 'the current committee wants to change the constitution and thus prevent the membership from accessing properly audited accounts'".

[13] The petitioner replied on 21 April 2012 stating that he would be happy to meet Mr Edgar and Mr Gillan to discuss the allegations. He explained that he was taking legal advice on the matter.

[14] By letter dated 29 April 2012 the petitioner wrote to Mr Edgar explaining that he had obtained legal advice and confirming that he was prepared to meet Mr Edgar and Mr Gillan to discuss the allegations, but he had been advised that he should not do so until he had been given "a proper definition of this allegation". The petitioner went on to say that the issues related to "a personal email sent to two friends expressing legitimate concern that properly audited accounts are essential for any golf club especially in view of the allegations regarding our most senior officer at the time...". He went on to mention that at the time of the alleged behaviour sheriff officers had visited the club to pursue unpaid bills and that he had raised concerns regarding anomalies in the accounts at the 2011 annual general meeting, to which he had still not received an answer. The petitioner continued as follows:

"These are issues I have raised in the public forum of an AGM and nothing was said by me in the personal email that I would be uncomfortable to raise at an AGM without fear of a sanction on my membership."

[15] On 4 May 2012 the respondents' solicitors, Messrs Anderson Strathern LLP, wrote to the petitioner explaining that they acted on behalf of the respondents' management committee. Anderson Strathern stated that the rules were not specific as to what constituted a breach of clause 33 of the constitution. The letter continued as follows:

"but for clarity conduct giving rise to the investigation was such that it was likely to be disseminated more widely than, for instance, a private conversation with a friend, and the management committee had concerns that the factors motivating such comments related to the same factors which gave rise to earlier disciplinary action. Derogatory comments about senior officebearers or about the management committee generally which are not justified can be injurious to the character or interests of the club and indeed endanger the good order of the club. The management committee have a duty to consider the interests of the members as a whole and it is on this basis that the investigating team were asked to proceed."

[16] The letter went on to explain that before reaching any decision the management committee were prepared to offer a final invitation to the petitioner to attend a meeting of the committee on 14 May 2012. It stated that the committee would exclude from the meeting the investigating team, who had already reported, and the captain.

[17] By letter dated 10 May 2012 the petitioner requested a postponement of the meeting for certain personal reasons relating to his wife and daughter. The respondents decided to proceed with the meeting, which took place on 14 May 2012. The following day Mr Edgar wrote to the petitioner in the following terms:

"After careful consideration of all matters the management committee were of the view that your conduct, of which details have been advised to you previously, is such that it is injurious to the character or interests of the club and it has determined to take disciplinary action against you pursuant to paragraph (c) of rule 33. The management committee took into account that the conduct took place while you were suspended and that it appeared to them that there was a risk of similar incidents happening in the future. The management committee therefore invite you to resign from the club, failing which you will be expelled."

[18] The letter went on to explain that the petitioner had a right of appeal. He duly exercised that right but, by letter dated 3 July 2012, the respondents advised that the appeal had been refused and the management committee's disciplinary decision was upheld.

Grounds of challenge
[19] In the petition the petitioner challenges the decision to expel him from membership of the club on the ground that there is no factual basis for doing so. In particular, the petitioner contends that in so far as the management committee took into account his prior suspension in deciding to expel him from the club they exceeded their jurisdiction by having regard to a matter which could not amount to "alleged misconduct" in terms of clause 33 of the Constitution as it was not a charge before them. Further, the petitioner submits that the misconduct alleged against him related to private correspondence whereby he brought items of press comment to the attention of certain fellow members. This could not amount to misconduct in terms of clause 33 of the Constitution. Accordingly, the petitioner avers that he was expelled on an incorrect factual basis and that the respondents acted unlawfully and ultra vires. The petitioner also avers that in so far as matters were investigated by Mr Edgar and Mr Gillan, they could not be said to be impartial because they had previously recommended that he be required to resign, failing which he would be expelled from the club in June 2011. The petitioner avers that any reasonable observer would consider that there was a genuine risk of bias in the conduct of the investigation, which led to the decision to expel him from the club in 2012 following the second disciplinary hearing.

Submissions for the petitioner

[20] In support of the motion for interim suspension and interim interdict, counsel for the petitioner relied on the grounds of challenge set out in the petition. He drew attention to the approach taken by the Lord Ordinary (Lord Glennie) in Wiles v Bothwell Castle Golf Club 2005 SLT 785. At paragraph 23 his Lordship said this:

"But the question of whether the conduct is relevant conduct at all is a jurisdictional or threshold question and is one for the court; because if it is not relevant conduct the committee has no business considering it at all in this context."

[21] Reference was made also to Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386 at paragraphs [32], [44] and [45] in support of the proposition that, in the context of a golf club's disciplinary proceedings, justice must not only be done, but must be seen to be done. In that case Lady Smith held that the respondents' council had been influenced in coming to their decision on whether the petitioner had breached a rule in similar terms to clause 33 by information to the effect that he had been disciplined on previous occasions. It was held also that participation in the decision-making by the club's captain and members, who were witnesses to the petitioner's behaviour and who gave evidence, created a real suspicion of partiality. That was compounded by the fact that the club's secretary had been present during the deliberations.

[22] Counsel submitted that the petitioner had a prima facie case and that the balance of convenience favoured his being allowed to exercise his membership rights on an interim basis. The views and observations contained in the emails could not be interpreted as being derogatory of anyone. The sending of the emails did not amount to misconduct, but merely to conduct. Accordingly, the respondents could not properly regard the emails as having crossed the threshold referred to by Lord Glennie in Wiles and they had no jurisdiction to find that the petitioner had been guilty of misconduct. It could not be misconduct to send a short email to fellow members or to draw their attention to newspaper articles which were already in the public domain. The petitioner had certain legitimate concerns about the running of the club. The flavour of the respondents' approach to the matter suggested that they regarded the petitioner as a thorn in their flesh.

[23] So far as the balance of convenience was concerned, there was no reason to suppose that allowing the petitioner to resume membership would cause any significant difficulty, embarrassment or inconvenience for the club or his fellow members.

Submissions for the respondents
[24] The solicitor-advocate for the respondents submitted firstly that it was remarkable that counsel for the petitioner had made no reference to the fact that there were subsisting proceedings between the parties in Haddington Sheriff Court relating to the same matters as are the subject of the present petition. In that action, which was being defended, the petitioner sought declarator that he had not been guilty of misconduct during his period of suspension from membership of the respondents and that he had a right to remain a member of the respondents. He also craved interdict (and interim interdict) against the respondents from infringing his rights as a member by expelling him from membership. On 15 June 2012 the Sheriff refused a motion by the petitioner for interim interdict. After some discussion, however, it emerged that the petitioner had intimated a minute of abandonment of those proceedings, although the action had not yet been finally disposed of. The solicitor-advocate for the respondents accepted that, since it was clear that the petitioner had no intention of proceeding with the sheriff court action, it would be highly technical to regard it as in some sense barring his pursuit of the present proceedings or consideration of his motion seeking interim relief. Ultimately, I did not understand this ground of opposition to be insisted in.

[25] The solicitor-advocate for the respondents argued next that the petition disclosed at best only a weak prima facie case. It was clear that the emails sent by the petitioner implied that the management committee were guilty of some sort of financial wrongdoing or concealment and that they had acted in contravention of the club's Constitution. They might well be regarded as being defamatory of Mr Kerr. Moreover, the petitioner now accepted that there was, in fact, no express requirement under the Constitution for audited accounts to be provided to members and there was accordingly no basis for the proposition that the Constitution would have to be amended in order to curtail members' rights of access to audited accounts. The petitioner had made a rash mistake in asserting that the Constitution had been breached. He should have checked the position before sending the emails. In this respect he had acted irresponsibly. The emails were also damaging because they contained at least an implicit invitation to the recipients to disseminate their contents more widely amongst the club's membership. Emails of this type could undermine confidence in the management committee as a whole if they were to be circulated amongst the membership. There was likely to be some degree of loss of confidence in the management committee of the club. In these circumstances, the management committee had been entitled to take the view that sending the emails amounted to misconduct on the part of the petitioner. They were entitled to take the view that the petitioner was trying to stir up trouble amongst the club's membership by putting into circulation inaccurate and damaging allegations about the way in which the club was being run and its financial interests safeguarded.

[26] As to the allegation of apparent bias, it was clear that neither Mr Edgar nor Mr Gillan had played any part in the deliberations of the management committee at its meeting on 14 May 2012. As the petitioner had been informed, they had been excluded from the meeting. They had acted merely as investigators and not in any decision-making capacity. They were perfectly entitled to carry out a second investigation and to submit their findings to the committee for them to reach a decision on.

[27] The solicitor-advocate for the respondents further argued that there was no substance in the contention that the committee had wrongly had regard to the previous suspension. The letter of 15 May 2012 intimating the management committee's decision made it clear that the fact of suspension was taken into account only at the stage of considering penalty and not in the context of deciding whether or not there had been misconduct by the petitioner in contravention of clause 33.

[28] In regard to the balance of convenience, the solicitor-advocate for the respondents argued that if the effect of the decision to expel the petitioner was suspended allowing him to resume membership this would be likely to engender an unfortunate atmosphere in the club during the period leading up to the first hearing of the petition. The presence of the petitioner at the club while the dispute was unresolved would not be conducive to the existence of a harmonious atmosphere at the club and would be likely to focus attention on the ongoing dispute in a manner that would be regrettable and better avoided. It was understood that the petitioner was a member of other golf clubs and could easily play elsewhere. The respondents were willing to suspend any right they might have to collect membership dues from the petitioner until the dispute was resolved at the first hearing in November.

Assessment

[29] At the stage of considering interim suspension and interim interdict, the court can, of course, take only a provisional view of the issues raised in the petition, pending their ultimate resolution on the basis of full argument at a first or second hearing, by which stage answers to the petition will have been lodged. Both sides were prepared to accept that it was likely that the petition would be capable of being disposed of, in line with usual practice, at a first hearing; I have appointed that hearing to take place on 28 November 2012.

[30] Having considered the averments in the petition and the submissions on both sides, I have come to the conclusion that the petitioner has, at best, a weak prima facie case and that the balance of convenience does not favour the granting of interim suspension or interim interdict. I shall address each of the grounds of challenge in turn.

[31] So far as the allegation of apparent bias is concerned, this seems to me to have no real substance. It is clear that neither Mr Edgar nor Mr Gillan played any part in the deliberations or decision-making of the management committee on 14 May 2012. They were excluded from that meeting. The circumstances of the present case differ markedly, therefore, from those considered by the court in Irvine supra. I do not see anything inappropriate in the fact that Mr Edgar and Mr Gillan were asked to carry out an investigation into the circumstances surrounding the sending of the emails, even though they had investigated the previous complaint against the petitioner. Their role was, as I understand the position, limited to an investigatory one. Mr Edgar made this clear to the petitioner in his letter of 26 March 2012, in which he explained that his task would be to gather information and seek the petitioner's explanation of the alleged misconduct. The findings of the investigation would then, as Mr Edgar also explained, be considered by the management committee. It was up to the management committee to reach a view on whether disciplinary action should be taken against the petitioner. In these circumstances, I do not consider that a reasonably well-informed objective observer would be liable to regard the proceedings of the management committee as being in any sense tainted by the role played in the investigation by Mr Edgar and Mr Gillan. I do not think that such an observer would take the view that the management committee's decision-making process was anything less than impartial.

[32] Nor do I think that there is any substance in the suggestion that the investigation itself was in some way biased or gave the appearance of being biased. The mere fact that Mr Edgar and Mr Gillan had been involved in the previous investigation does not, in my view, create any risk of bias or give rise to the appearance of bias. The correspondence makes it clear that Mr Edgar was concerned to ensure that matters were fairly investigated and that the petitioner had a fair and proper opportunity to explain his conduct.

[33] As for the argument that the management committee wrongly took account of the previous disciplinary finding when reaching a decision on the latest matter, I consider that this argument is also unconvincing and unlikely to succeed. From the terms of the finding set out in the letter of 15 May 2012, it is clear that the management committee firstly considered whether the petitioner's conduct contravened clause 33 of the Constitution and then, having decided that it did, they determined to take disciplinary action against the petitioner. Having determined that they would take disciplinary action, the committee then (and only then) had regard to the previous suspension. In other words, the earlier suspension was taken into account only when the committee came to consider what penalty to impose on the petitioner in respect of the new finding of misconduct. That being their approach, I consider that this line of attack on the management committee's decision is again a weak one and is unlikely to succeed.

[34] Finally, there is the argument that the management committee were not entitled to take the view that the behaviour of the petitioner in sending the emails amounted to misconduct. It seems to me that this is also a weak ground of challenge. While the petitioner may have had genuine concerns about the running of the club and the availability of audited accounts, I consider that the management committee were entitled (at least) to take the view that the manner and tone in which the petitioner chose to ventilate those concerns in the emails was likely to be damaging to the character or interests of the club. It seems to me that the management committee were entitled to come to the view that, by sending the emails in the somewhat inflammatory terms he chose to employ, the petitioner was trying to foment division or stir up trouble amongst the membership of the club in a manner that was inappropriate in a social and sporting organisation like the Glen Golf Club. In saying this, I take into account the links sought to be drawn in the emails between the administration of the club's affairs and finances on the one hand and, on the other hand, the issues involving Mr Kerr referred to in the newspaper articles. I have regard also to the fact that the emails (at least implicitly if not expressly) encouraged the recipients to disseminate the petitioner's views and the newspaper articles freely amongst the club's membership. All this seems to me to be the type of conduct that could well be seen by a reasonably-minded committee as being injurious to the character or interests of the club. In the whole circumstances, there appears to me to be little force in the contention that the management committee were not entitled to arrive at the view they did.

[35] Given that the petitioner has, at best, only a weak prima facie case, it would not be convenient, I consider, to grant interim interdict or interim suspension (c.f. N.W.L. Ltd v Woods [1979] 1 WLR 1294 per Lord Fraser of Tullybelton at 1310B-E). It seems to me that it would not be appropriate or desirable for the petitioner to be allowed to exercise membership rights during the relatively short period before the forthcoming first hearing.

[36] In the whole circumstances, I have reached the conclusion that the petitioner's motion, in so far as it seeks interim relief, must be refused. I have granted the usual first orders and, as already mentioned, appointed the petition to a first hearing on 28 November 2012. I have reserved all questions of expenses.