Scottish Sheriff Court Decisions

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The sheriff, on resuming consideration of the cause, Sustains the first plea-in-law for the defenders and dismisses the action as incompetent: having heard parties' procurators on all questions of expenses, finds no expenses due to or by either party except insofar as previously awarded and decerns.

In this action the pursuer craves an order that the defender implement its Constitution and Rules by referring a dispute between the pursuer and the defender to an arbiter. Until crave 2 was dismissed at debate, the pursuer also sought reduction of the defender's decision to expel him. The pursuer has a third crave which is for £5,000 in reparation for loss and damage caused by his expulsion.

A proof before answer having been allowed after debate, I heard evidence and submissions thereon. At the close of submissions I indicated that I wished to be addressed on the question of whether this action was truly for judicial review and if so whether, it was compentely before me.

On the evidence, the background was that a decision was taken by a committee of the defender to expel the pursuer. The Constitution and Rules of the defender allowed for such procedure. There was a separate clause in the Constitution allowing for any dispute between office bearers and a member to be referred to a mutually acceptable arbiter. By crave 1, the pursuer sought to have the defender required to refer the decision of its discipline committee, to expel the pursuer, to such an arbiter.

In the first stage of submissions, agents restricted themselves to arguing questions of contract. The problem with that was that it did not address the fact that what the pursuer, in effect was seeking, was review of the discipline committee's decision not to refer the matter to an arbiter with a view to there being review of the decision to expel the pursuer. The pursuer's first crave appears at first blush to be an application to this court to review a decision of a quasi judicial body, appointed by the defender, to exercise certain functions following certain procedures laid down in the defender's rules. These are some of the hallmarks of an action of judicial review.

In submissions, Mr Steel for the defender referred to Joobeen v University of Stirling 1995 SLT 120; Fraser v The Professional Golfers Association Limited 1999 SCLR 1032; Crocket v Tantallon Golf Club 2005 SCLR 657 and Wiles v Bothwell Castle Golf Club 2005 SLT 785. He argued that applying the tests set out in these cases, the circumstance of the present cause clearly fell within the supervisory jurisdiction of the Court of Session because what was being sought was judicial review.

For the pursuer, Mr Findlay sought to distinguish these cases and argued that the matter was simply one of contract arising from the agreement between the pursuer as a member of the club and the club itself to be bound by a set of rules which formed the contract. Mr Findlay's fallback position was that esto the point in issue between parties was capable of being subjected to judicial review it was also a question of contract and it was not inappropriate for the pursuer to seek to have the matter litigated in this court rather than the Court of Session. Mr Findlay placed little weight on his second line of argument and neither did I.

Lord Reed in Crocket v Tantallon sets outs the identifiers of judicial review in a most persuasive judgement. I would not depart from anything said by his Lordships. Indeed, valiantly as Mr Findlay stroved to persuade me that this action was well founded in contract, I have no doubt whatsoever that judicial review is the pursuer's only remedy.

On questions of expenses, Mr Steel, expecting to succeed in having the action dismissed, sought expenses. Mr Findlay argued that the defenders not having taken the judicial review point until a very late stage, there should be no expenses due to or by either party. I see much force in Mr Findlay's argument and order accordingly.