Appeal (Civil) - appeal against a judgment of the Master 26 October 2017.
[2018]JRC142
Royal Court
(Samedi)
7 August 2018
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Before :
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T J Le Cocq, Esq., Deputy Bailiff, and
Jurats Crill and Blampied.
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Between
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Ted Vibert
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Plaintiff
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And
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(1) Sun Bowling Club
(2) St Saviour's Bowling Club
(3) Jersey Bowling Club
(4) St Brelade's Bowling Club
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Defendants
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Mr T. Vibert in person.
Advocate J. M. G. Renouf for the First,
Second and Fourth Defendants.
Advocate J. M. Dann for the Third Defendant.
judgment
the deputy bailiff:
1.
This is an
appeal by Mr Ted Vibert ("Mr Vibert") against a judgment of the
Master of 26th October, 2017, Vibert-v-Sun Bowls Club and Others
[2017] JRC 181 ("the Master's judgment") in which he granted
summary judgment to the Defendants dismissing the Plaintiff's claim
against them on the basis there was no case for them to answer.
The Law on Summary Judgment
2.
There is
no difference between the parties as to the correct test in law to apply in
considering a matter of summary judgment.
The matter has been most recently and authoritatively stated in the
judgment of Commissioner Hunt in MacFirbhisigh and Ching -v- CI
Trustees and Others [2017] JRC 130A which we will set out in full for the
sake of convenience. At paragraph
16 to 19 inclusive of the judgment the Court stated:-
"Since the wording of Rule
7/1(1)(a)(i) mirrors that of the English CPR Part 24.2(a)(i), it seems to me
that the Royal Court should, when applying Rule 7/1(1)(a)(i), follow the
principles which have been developed in the English courts in relation to Part
24.2(a)(i). This approach reflects
that adopted by the Royal Court in AG -v- Contractors Plant Service
Ltd [1967] JJ 785 where the Deputy Bailiff said (at p.786):
"The Solicitor General has
drawn our attention to the fact that the provisions of the [Scaffolding
(Jersey) Regulations, 1960] follow closely those of the Building (Safety, Health
and Welfare) Regulations 1948, made under the Factories Act 1947, and other
enactments of the Parliament of the United Kingdom, and he has therefore sought
to support his case against the defendant company by quoting from judgments
given in the English Courts on matters affecting the interpretation of those
regulations. Although, as has often
been said in this Court, the Courts of this Island are not bound by judgments
of the English Courts, we feel that in this instance, we should have close
regard to the judgments in question...".
Both Advocate Gleeson and Advocate
Scholefield agreed with this approach.
17. In Trilogy Management Ltd
-v- Harcus Sinclair [2017] EWHC 1164 (Ch), Rose J said as follows (at
para 32):-
"The principles to be applied
are those set out by Lewison J in Easyair Ltd -v- Opal Telecom Ltd
[2009] EWHC 339 (Ch) at paragraph 15.
The correct approach on applications by defendants is as follows:
"(i) The court must consider
whether the claimant has a "realistic" as opposed to a
"fanciful" prospect of success: Swain -v- Hillman
[2001] 2 All ER 91;
(ii) A "realistic" claim
is one that carries some degree of conviction. This means a claim that is more than
merely arguable; ED & F Man Liquid Products -v- Patel [2003] EWCA Civ 472 at [8];
(iii) In reaching its conclusion
the court must not conduct a "mini-trial"; Swain -v-
Hillman;
(iv) This does not mean that the court must
take at face value and without analysis everything that a claimant says in his
statements before the court. In
some cases it may be clear that there is no real substances in factual
assertions made, particularly if contradicted by contemporaneous documents; ED
& F Man Liquid Products -v- Patel at [10];
(v) However, in reaching its
conclusion the court must take into account not only the evidence actually
placed before it on the application for summary judgment, but also the evidence
that can reasonably be expected to be available at trial; Royal Brompton
Hospital NHS Trust -v- Hammond (No. 5) [2001] EWCA Civ 550;
(vi) Although a case may turn out
at trial not to be really complicated, it does not follow that it should be
decided without the fuller investigation into the facts at trial than is
possible or permissible on summary judgment. Thus the court should hesitate about
making a final decision without a trial, even where there is no obvious
conflict or fact at the time of the application, where reasonable grounds exist
for believing that a fuller investigation into the facts of the case would add
to or alter the evidence available to a trial judge and so affect the outcome
of the case; Doncaster Pharmaceuticals Group Ltd -v- Bolton
Pharmaceutical Co 100 Ltd [2007] FSR 63;
(vii) On the other hand it is not
uncommon for an application under Part 24 to give rise to a short point of law
or construction and, if the court is satisfied that it has before it all the
evidence necessary for the proper determination of the question and that the
parties have had an adequate opportunity to address it in argument, it should
grasp the nettle and decide it. The
reason is quite simple; if the respondent's case is bad in law, he will
in truth have no real prospect of succeeding on his claim or successfully
defending the claim against him, as the case maybe. Similarly, if the applicant's case
is bad in law, the sooner that is determined, the better. If it is possible to show by evidence
that although material in the form of documents or oral evidence that would put
the documents in another light is not currently before the court, such material
is likely to exist and can be expected to be available at trial, it would be
wrong to give summary judgment because there would be a real, as opposed to a
fanciful, prospect of success.
However, it is not enough simply to argue that the case should be
allowed to go to trial because something may turn up which would have a bearing
on the question of construction; ICI Chemicals & Polymers Ltd -v-
TTE Training Ltd [2007] EWCA Civ 725."
18. Since neither counsel had
referred in their skeleton arguments to the Easyair or Trilogy cases, the Court
notified all parties of my provisional view that the principles quoted above
were those which I should follow in the present case, giving them the
opportunity to challenge my provisional view if they wished. Advocate Gleeson indicated his agreement
with my intended approach. Advocate
Scholefield likewise did not seek to challenge my provisional view but referred
me to the judgment of Master Thompson in Holmes -v- Lingard [2017] JRC 113, delivered on 21 July 2017.
19. At para 160 of his judgment in
Holmes, Master Thompson said as follows:
"This is the first occasion
upon which Rule 7 introduced by Royal Court (Amendment No. 20) Rules 2017 has
been considered. The wording of
Rule 7 is based extensively on Rule 24 of the Civil Procedure Rules
("ACPR"). As there is
no material difference between the wording of Rule 7 of the Royal Court Rules
and Rule 24 of the CPR, I have followed the relevant English jurisprudence as
to how the power contained in Rule 7 should be interpreted and applied."
His judgment does not refer to
either Easyair or Trilogy but the principles which he deduced from Civil
Procedure 2017 Vol. 1 (the White Book) and from the authorities upon which he
relied are, it seems to me, entirely consistent with those in Easyair, as
approved in Trilogy, which I have quoted in para 17 above. Accordingly I propose to follow the
principles in Easyair."
3.
We have
also been referred to Order 14 Rule 4 of the Supreme Court Practice 1999 which
deals with a summary judgment.
Under the heading 'Question of Law' at paragraph 14/4/12 the
text says:
"... where the court is
satisfied that there are no issues of fact between the parties, it would be
pointless to give leave to defend on the basis that there is a triable issue of
law, and this is so even if the issue of law is complex and highly arguable,
but it is otherwise if the issue of law is not decisive of all of the issues
between the parties or if the issue is of such a character as would not justify
it being determined as a preliminary issue or if the answer to the question of
law is in any way dependent upon undecided issues of fact... or where the
determination of the issue of law will require prolonged examination over a
number of days of a vast quantity of documents or other evidence...".
4.
This is an
appeal from the Master and in this case the correct approach is to treat the
matter as a hearing de novo in which
the Court places whatever weight it deems appropriate on the judgment of the
Master but exercises with regard to the issues an original jurisdiction.
Background
5.
For a
number of years Mr Vibert had been a member of the Sun Bowling Club ("the
First Defendant") in which he played an active role, being at some stage
a member of the committee. In or
around November of 2015 Mr Vibert became disenchanted with the First Defendant,
which disenchantment appeared to reach a climax during an Annual General
Meeting on 11th November 2015.
Thereafter, there is some dispute about whether or not Mr Vibert
resigned from the First Defendant.
He maintained before us that he indicated an intention to resign but did
not do so whereas the First Defendant argues that he clearly did resign. We will refer to this divergence of view
later.
6.
It is
clear that after November 2015 Mr Vibert applied to join the St Saviour's
Bowling Club (the Second Defendant), Jersey Bowling Club (the Third Defendant)
and St Brelade's Bowling Club (the Fourth Defendant). He was refused membership to each of
those clubs.
7.
It appears
to be common ground that it is impermissible for a member of one of the
defendant clubs to join any other club and therefore be a member of more than
one club. It is argued that because
Mr Vibert applied to join other clubs he must be taken to have resigned from
the First Defendant even if his resignation was in other respects unclear
which, so the First Defendant argues, it was not. Mr Vibert, for his part, accepts that
when applying to join the Second, Third and Fourth Defendants he needed to make
a declaration that he was a member of no other club. This, he argues, was in fact accurate
because of the way clubs renew their membership (effectively closing over the
winter months save for administrative purposes) but in any event did nothing
more than confirm his intention to resign from the First Defendant in the event
of being accepted by one of the other defendant clubs.
8.
On being
refused membership of the Second, Third and Fourth Defendant clubs Mr Vibert
then sought to return to the First Defendant. He told us that he considered this to be
a simple renewal of his membership which had not, in his view, lapsed. The First Defendant argued before the
Master and indeed before us that in fact this was an application for new
membership, Mr Vibert having resigned his membership of the First Defendant in
November 2015.
9.
Mr Vibert
sued all four defendants by means of an Order of Justice signed by the learned
Bailiff on 27th June, 2017.
The prayer within the order of justice seeks declarations that he was
denied natural justice or procedural fairness with regard to his applications
for membership, had suffered an inability to participate in his sport and
injury to his reputation as a result of which he claims the sum of £5000
from each of the defendants.
10. It accordingly does not appear that Mr Vibert
is seeking membership of any of the defendant clubs but rather compensation for
the refusal of his membership.
11. Mr Vibert's case is based to a
significant extent on his complaint that the process that the defendant clubs
went through in refusing his membership was unlawful. He complains that the defendants did not
give him reasons for refusing his applications for membership nor was he
provided any opportunity to address whatever concerns they might have
been.
12. For example, on his application to become a
member of the Third Defendant he had been turned down with no reasons being
given for that action. He states:-
"At no time was the Plaintiff
given any opportunity of dealing with the rumours and gossip about him that was
before the Committee."
13. With regard to his application for membership
of the Second Defendant he pleads, in his Order of Justice:-
"The Clubs' minutes
record that his application was discussed "in depth" resulting in a
tied vote; the Chairman then used his casting vote to exclude the Plaintiff
from the Club. The Plaintiff wrote
to the Club President requesting a meeting. He was told the President did not want
to be involved or receive any correspondence on the matter.
At no time was the Plaintiff given
any opportunity to deal with any of the allegations made against him. Again, no reasons were given for the
Second Defendant's decision".
14. With regard to the First Defendant's
refusal, Mr Vibert pleads:-
"On 6th April 2016
the Plaintiff's membership of the First Defendant came before their
Committee. The minutes of that
meeting record "there was a discussion regarding Ted Vibert and whether
or not to vote him back into the Sun Bowls Club. The subject was brought up by the Club
Captain as Ted Vibert was being fully supportive of him in his position as
Bowls Jersey. There followed a show
of hands - two for readmitting him into the Club, two abstentions, 6
against. No effort was made to
invite the Plaintiff to that meeting to answer any matters against him which
were discussed."
15. Mr Vibert's complaint was similar with
regard to this application for membership of the Fourth Defendant and again he
alleges that at no time was he given any opportunity of dealing with the
rumours and gossip about him that was put before the Committee. Mr Vibert's case may be summarised
by paragraph 9 of his Order of Justice where he states:-
"Not one of the four defendants
conducted their meetings regarding the Plaintiff's membership lawfully in
that they failed to invite to attend the meetings where his membership was
discussed and which would have allowed him to deal with allegations made
against him. The Plaintiff contends
that this failure was a denial of natural justice or procedural
fairness."
16. In his skeleton argument submitted for this
appeal Mr Vibert characterised the "main principles" of natural
justice as follows:-
(i)
A person
had to have his case heard;
(ii) No one involved in deciding an issue should be
biased;
(iii) The person affected should know the reasons for
the decision;
(iv) A person's legitimate expectations should
be considered.
17. The nature of Mr Vibert's claim therefore
was primarily that any decision made by the four defendants was made without
providing him with the opportunity of addressing any concerns that they might
have and without providing reasons to him.
It is in the context of that argument that the Master considered the
application that was before him.
Procedural position giving rise to the hearing for summary
judgment
18. Mr Vibert raised certain concerns about the
procedural sequence of events that gave rise to the hearing by the Master of an
application for summary judgment.
The procedural history is dealt with between paragraphs 18 and 21 of the
Master's judgment although Mr Vibert challenges its completeness and
accuracy. It is clear that the
application for summary judgment had its genesis in the exercise by the Master
of his powers under Rule 7/1(2) of the Royal Court Rules 2004 which
permits the Court to order a summary judgment hearing of its own motion. There was some problem with Mr Vibert
receiving notification of this decision as it appears that it was sent to an
incorrect email address. In any
event, however, the Defendants issued their own application and the dates
originally set aside were adjourned.
19. Having heard the arguments of Mr Vibert, and
noted the contents of his submissions to the Master, it does not appear to us
that he has suffered any prejudice as a result of the procedural route by which
the matter reached the Master and we do not think anything turns on his
procedural concerns.
20. Mr Vibert's skeleton argument also
criticises the style of the Master's judgment and some of the
observations that he makes within it.
In particular Mr Vibert takes exception to observations of a
complimentary nature made by the Master that Mr Vibert had presented his points
courteously and in a measured and calm manner as patronising and also, amongst
other things, criticises the Master for thanking Advocate Dann for the research
that he had undertaken. This, so Mr
Vibert felt, was inappropriate. Furthermore
Mr Vibert criticises the Master for not making full reference to Mr
Vibert's arguments nor to the materials and case law that Mr Vibert
deployed before him. It does not
seem to us that any of these criticisms take Mr Viberts case any further and we
do not think that they are well merited.
It is not, in any event, incumbent on a court to go into detail about
every argument, authority or documentary material put before it when it hands
down its judgment. It is incumbent
upon a court to give sufficient information as to what it accepts or rejects
and the law and how the facts fit within the law to enable the litigants to
understand the basis upon which the court has arrived at its judgment. That observation, it seems to us,
applies even more so to a judgment of the Master who is exercising in matters
such as this a summary jurisdiction.
The Master's judgment
21. After dealing with some of the preliminary
matters that we have set out above, the Master in his Judgment then deals with,
specifically, the position of Mr Vibert with regard to the First Defendant of
which, as we have indicated above, he had previously been a member. The Master's Judgment deals with
this position from paragraph 11 onwards:-
"11. In the course of
submission, I asked the Plaintiff the clarification on whether he was still a
member of the First Defendant at the time he applied to join the other
defendants.
12. The Plaintiff informed me that
due to disagreements about changes to the constitution of the First Defendant
he had proposed the previous year but which had been rejected, he had decided
to leave the First Defendant as, using his words, "I did not want to be
there". When I asked the
Plaintiff if this was a voluntary decision on his part not to carry on with
membership of the First Defendant, he replied "yes". This was the position at the time he
applied to join the First and Second Defendants as set out in more detail
below. Consistent with these clear
statements made to me during the hearing, while the First Defendant had not
sent the Plaintiff a renewal form to renew his membership, the Plaintiff was also
clear that he did not ask for a renewal form as he had decided to leave the
First Defendant.
13. The Plaintiff attached to his
skeleton argument, copies of his application to join the Second, Third and
Fourth Defendants. In his
application to join the Second Defendant the form completed by the Plaintiff
and signed by him and dated 24th January 2016 asked whether the Plaintiff was a
member of any other local bowls club, to which he replied
"no". Note 1 also
stated "Membership will not be offered to any applicants who belong to
another outdoor bowls club and who have no intention of resigning from that
club other than Granville Ladies".
14. In relation to his application
to join the Fourth Defendant, the form stated, "Membership of St Brelade
Bowls Club cannot be offered to applicants who belong to any other local
outdoor bowls club, with the exception of the Post Office Social Club, the
Police Athletic and Social Club, or the social section only (i.e. non-playing
section) of another local bowling club". The same form also asked the applicant
to name any bowls clubs where the applicant had been a member. The Plaintiff answered this section of
the form by inserting the name of the First Defendant and saying he had been a
member for four years.
15. I refer to these application
forms because they are consistent with the answer given by the Plaintiff that
he was not a member of the First Defendant when he applied to join the Second,
Third and Fourth Defendants.
16. I should also deal with whether
the Plaintiff was a member of the First Defendant at the time of the meeting of
6th April 2016, referred to in paragraph 8 of the Order of
Justice. The Plaintiff did explain
that by the time the First Defendant's meeting took place on 6th
April 2016 he had to resign from Bowls Jersey because he was no longer a member
of any bowling club. The President
of Bowls Jersey, who was also captain of the First Defendant, then agreed to
try and get the Plaintiff back into the First Defendant. The wording of the relevant minute also
refers to the Committee voting the Plaintiff "back into the club"
and "re-admitting" him to the First Defendant. I explore below whether there is a
difference between an application for re-admission and a refusal to renew
membership.
17. I accept that these matters
were not set out in an affidavit but they were confirmed by the Plaintiff
during his oral submission and no other party took objection to them. This judgment is therefore produced on
the basis that the Plaintiff accepted that he was not a member of the First
Defendant at the time he applied to join the other Defendants, or when the
First Defendant considered whether or not to let him back in."
22. We have set this part of the Master's
judgment out in full because in part Mr Vibert's argument before the
Master and indeed before us was based on the assertion that the First Defendant,
because he was applying to renew his membership rather than be admitted anew,
owed him different duties and different considerations than did the other three
defendants who were considering his application to join for the first time. In other words, the position that was
understood by the Master that Mr Vibert had resigned from the First Defendant
was not the position taken by Mr Vibert before us.
23. The Master went on in his judgment to identify
the issues that fell to be determined by him in considering the application for
summary judgment. He characterised
the issues as follows:-
(i)
Whether
there was any basis in law for members of the club to owe a duty of care to an
applicant to join that club and how the application was determined; and
(ii) Whether the laws of natural justice apply to
applications of any individuals to join a private club.
24. After a characterisation of the arguments
before him and an analysis of the principal case law, (some of which we will
refer to below), the Master drew the following conclusions (at paragraph 105 et seq of his judgment):-
"105. What conclusions can be
drawn from these cases which they have developed? In my judgment the following principles
emerge.
106. The principles of natural
justice apply in expulsion or suspension cases to the extent that someone
facing a threat of expulsion or suspension or a similar disciplinary process is
entitled to know the case against them and is entitled to some form of
hearing. I add that in such a case
the processes to be adopted by a sporting club does not need to be and should
not be complex.
107. A sporting club carrying out a
disciplinary process should not be turned into a court or quasi tribunal. Rather, what is required is basic
fairness in the sense of setting out briefly why a person is being disciplined
and allowing that person whether orally or in writing or possibly both to set
out their version of events.
Someone facing disciplinary action should also be entitled to comment on
what is an appropriate penalty.
108. I consider that the same
principles apply to non-renewal of membership. Once someone has been admitted as a
member of a sports or social club, where refusal of a renewal of membership is
contemplated, an individual should be warned of such a possibility and the
concerns of the particular club so that the affected individual can
respond.
109. It is arguable that reasons
should be given for expelling or suspending an individual or refusing to renew
their licence. Cronin
supports this argument. By contrast
McInnes points the other way.
Irvine also suggest that failure to give reasons in a
disciplinary type case may be relevant where other breaches of natural justice
have occurred. This could mean,
however that, absent other breaches of natural justice in disciplinary cases,
then otherwise there is no right to reasons.
110. In application cases
concerning a person's desire to pursue a particular livelihood, there is
an obligation not to act capriciously or with bias.
111. Also in application cases
concerning a livelihood, McInnes suggests that there is no obligation to give
reasons for refusal of membership and that an individual who is refused a
licence in a livelihood case is not entitled to know the reasons why. In my view, Cronin recognises
that in a decision which affects an individual's livelihood the courts
might require the principles of natural justice to be applied and the person to
know the charges against them, although court should only interfere with
hesitation. ... The highest
that the Plaintiff could put his claim was that it affected his standing in the
community which I address below.
112. On purely application cases
... no case has been cited where the court has intervened where a decision
in question was not one that affected the person's ability to earn a
living. The authors of Ashton
& Reid writing in 2011 support this view when they state at paragraph
4.2:-
"... as a general
proposition, a person cannot complain if he or she is refused membership of a
club."
The authority cited in support of Ashton
& Reid's statement is Nagle.
No case is cited against the general proposition. Nor has any such case been found where a
court has reached a different view.
...
115. There were a number of reasons
which explain the reluctance of the courts to become involved in application
decisions.
116. Firstly, no right has been
taken away...
117. Secondly, courts have all
concluded that sports and social clubs are best placed to regulate their own
affairs...
118. Thirdly, applying natural
justice to application cases might lead to significant litigation involving
small clubs.
119. ... To require a process,
which is the essence of the Plaintiff's complaint, if a club was
contemplating not admitting someone as a member, is to invite the court to
become involved in areas where the court should not intrude. Decisions of clubs about whom they wish
to be members should therefore be left to the clubs themselves. In my judgment therefore the requirement
of a process based on natural justice only applies once an individual has
become a member and is facing some form of disciplinary action."
25. It can be seen from paragraph 108 of the
excerpt cited above that the question of whether or not Mr Vibert was, after he
had been turned down by the other defendants, applying for membership of the
First Defendant as a fresh applicant or was applying to renew his membership
may be of some significance.
26. The Master went on to make further
observations. In paragraph 121 of
his judgment he said:-
" ... however where
reasons are more subjective and depend upon the views of existing members or
the potential impact of a new member based on his or her personality, there may
be a reticence to explaining why and individual is not regarded as suitable for
membership. I consider that clubs
should be free to take such decisions as they are best placed to assess concerns
raised about the impact of a new member and that the court should not use
principles of natural justice to intervene such decisions."
27. The Master in his judgment determined the
application before him as follows:-
"124. I therefore conclude
that the Plaintiff's applications for membership of the Second, Third and
Fourth Defendants were just that and that the Plaintiff is not entitled to know
why his membership was refused.
There is also no basis in law to require those defendants to set out
their preliminary objections or to allow the Plaintiff the opportunity to
respond to those objections. It is
not for the court to require a club to follow a process for admission of
members.
125. I have also reached the same
view in relation to the complaint against the First Defendant. This is because the Plaintiff was clear
that he had left the First Defendant.
He accepted in argument in response to a direct question that he had
voluntarily decided to do so. His
acceptance of this was also consistent with the application forms he signed to
join the Second and Fourth Defendants.
In other words, by the beginning of 2016 the Plaintiff of his own
volition was no longer a member of the First Defendant. Accordingly, the decision of the First
Defendant in April 2016 was an application decision. It was not an expulsion decision or a
refusal to renew a membership taken by the club as the Plaintiff already in his
own words made it clear that he had left the First Defendant. The minutes of the meeting on 6th
April were also consistent with this conclusion. The First Defendant was considering
"re-admission" to decide whether to let the Plaintiff "back
in" not a renewal.
126. If an individual leaves a club
and later seeks to rejoin that club at some later date in the future, that is a
new application for membership and the club is entitled to refuse that
application. On the other hand, if
a club wishes to refuse renewal of membership where a member wishes to continue
as a member that is a form of expulsion where the principles of natural justice
do apply. ...".
28. The Master also went on to conclude that in his
view there was no duty on an application case on a club not to act capriciously
or with bias with regard to membership of sports or social clubs.
29. Lastly, the Master dealt with Mr Vibert's
reference to Article 6 of the European Convention on Human Rights which
provides, amongst other things, for a right to a fair trial. His conclusion on this point was as
follows:-
"134. ... however,
Article 6 only applies in non-criminal cases to the determination of an
individual's "civic rights or obligations". In this case the Plaintiff accepts that
members have the right to choose who should or should not be allowed to join a
sports or social club. He also
accepts he has no contract with any of the defendants and is not owed a duty of
care. This means there is no civil
right to determine so Article 6 is of no assistance to the Plaintiff."
Mr Vibert's case on appeal
30. Essentially Mr Vibert puts forward three
grounds of appeal. Firstly, he
argues that his case was inappropriate for resolution by way of summary
judgment, secondly, he argues that he was entitled to a fair hearing in having
his respective applications for membership determined and had a legitimate
expectation of such and thirdly, with regard to the First Defendant, what had
been characterised by the First Defendant as an application for membership was
in fact a renewal to which different considerations applied.
31. Mr Vibert in his argument before us made a
distinction between the decision of the First Defendant and the other three
defendants. He explained how he had
been a member of the First Defendant for some four years until April 2016, he
had sat on the committee, had functioned as a steward and had opened and closed
the club house. He was a very
active participant and was there on a daily basis. Bowling was a very important part of his
life. He was a member of the
committee of Bowls Jersey which is the umbrella organisation that deals with
bowling in the Island as a whole.
He could only be a member of Bowls Jersey if he was also a member of a
bowling club.
32. He raised an issue at the AGM of the First
Defendant which was defeated by the membership. The meeting had been difficult and at
that point he had thought that he did not want to be a member. In the ensuing months he looked to join
other Island clubs and he confirmed to me that he had made the decision to
leave the First Defendant although as he explained it he "did not do so
formally".
33. In the event he was unsuccessful in seeking to
join other clubs and attempted to renew his membership at the First
Defendant. His application was
rejected by the club.
34. Essentially his argument was that the refusal
of the clubs to permit him membership, or as he would argue in the case of the
First Defendant to renew his membership, breached natural justice. He accepted that there was a distinction
between a membership application and an application to renew an existing membership.
35. In the time between the Master's judgment
and the hearing before us, the First Defendant had submitted an affidavit, that
of Mr Greg Davis dated 28th January, 2018.
36. Mr Davis had been the Club Captain of the First
Defendant and also President of Bowls Jersey and he had personally been bowling
at the First Defendant for approximately 17 years.
37. In his affidavit he explains that he was
entirely clear that Mr Vibert had not been a member of the First Defendant at
the time that his application had been considered in April 2016. He confirmed that Mr Vibert had
previously been a member but Mr Vibert had resigned that membership some months
earlier. In fact he suggested that
Mr Vibert's stance that he had not in fact resigned from the First
Defendant was as a result of a realisation by Mr Vibert that if he had been
applying for a renewal of membership the legal test may have been more
beneficial to him.
38. Consequently Mr Davis supported the finding by
the Master referred to earlier in this judgment to the effect that Mr Vibert
had in fact resigned from the First Defendant. Mr Davis explained the position in
paragraph 6 of his affidavit as follows:-
"a. I was present at the AGM
of the Sun on 11th November 2015 when the Plaintiff made clear to
all present that he was leaving the Club.
He had sought to address the assembled membership about a change to the
club's constitution which he was proposing, and in doing so had made a reference
to Adolf Hitler in an apparent comparison with the attitude of the membership
to his proposal. This was
inevitably not warmly received by the membership, and their response was, in my
view, understandably disapproving.
The Plaintiff subsequently stormed out of the meeting and declared words
to the effect of "you will not see my face at this Club
again". I, and I believe most
others at the Club, took this as a declaration that he was abandoning the Club
and his membership thereof. I
cannot see how else a statement like that could be sensibly interpreted.
b. Following the Plaintiff walking
out angrily at the Sun AGM, he went on to apply to each of the other defendant
clubs for membership (in each case unsuccessfully). There is a rule enforced by all five of
the main Jersey outdoor bowls club in that an individual is permitted only to
be a member of one of them at a time.
Accordingly, the membership application forms which the Plaintiff
completed in order to try to join the Second and Fourth Defendant Clubs
required him to confirm that he was not a member of any of the other clubs
(including, obviously, the Sun). In
each case he gave that confirmation and signed the forms. It is clear that in so doing the
Plaintiff considered that he had left membership of the Sun.
c. The Plaintiff himself confirmed
the position in his account given before the Master when he explained that
because of the events at the AGM he "did not want to be there [at the
Sun]" and voluntarily ended his membership (at paragraph 12 of the
judgment).
d. All conversations had between
the Plaintiff and I in relation to his membership of the Sun was in the context
of his "re-joining"; the clear underlying theme of those
discussions was that the Plaintiff was no longer at that stage a member. This included the conversations had
about his resigning from the committee of Bowls Jersey (the governing body)
which it was required to do because he was not a member of the local bowls
club.
e. The meeting of the Sun Committee
on 6th April 2016 dealt with the question of whether the Plaintiff
should be permitted to re-join or be re-admitted to the Club, as reflected in
the minutes of the same. It had
nothing to do with renewal which was by then clearly impossible.
..."
39. In his affidavit Mr Davis deals with other
aspects relating to the renewal of membership of the clubs which we do not need
to set out at length. Mr Vibert for
his part maintains that he had not resigned in fact.
40. To support that Mr Vibert relied to some extent
on the fact that after November 2015 he remained on the committee of Bowls
Jersey which, he argued, could only have happened if it was accepted that
he'd remained a member of the First Defendant. Mr Davis' response to that was
that the membership of Bowls Jersey is a matter for that organisation and did
not have any effect on what had happened at the First Defendant. In any event, the membership list with
regard to Bowls Jersey was not renewed at the same time as that relating to the
First Defendant and therefore it was not necessary to call into question Mr
Vibert's membership of the committee of Bowls Jersey. Mr Davis, at paragraph 6(i) of his
affidavit confirms that Mr Vibert "formally resigned his committee
position prior to the April meeting".
41. Mr Davis was not cross-examined on his
affidavit nor was there any other sworn evidence before us.
Renewal or new application
42. The Master clearly proceeded, for the reasons
that we have already set out, on the basis that the application by Mr Vibert to
join the First Defendant in or around April 2016 was in fact a new application
and not a renewal of membership.
43. We fully understand why the Master did so. He had had an exchange with Mr Vibert
which had satisfied him that Mr Vibert had accepted that he had resigned from
the First Defendant. He cannot in
our view be faulted for proceeding, as he did, to determine the application on
that basis.
44. However, before us the position was not so
clear cut. Mr Vibert characterised
his observations before the Master as suggesting an intention to resign without
actually having done so.
Furthermore he deployed arguments about the manner in which membership
was renewed at the First Defendant.
He argues that the normal ways of ending membership of a club did not
apply in his case. He had not
failed to pay his subscription, his membership had not been cancelled for
disciplinary reasons and he had not sent a letter resigning from the club. In fact, on his argument, the club had
refused to renew his annual subscription.
He had made no application to the First Defendant to join anew and had
not completed any relevant form to that effect. In fact what he had sought was a
renewal.
45. The First Defendant, as we have said, tendered
an affidavit providing evidence with which Mr Vibert took some issue. The question of whether or not Mr Vibert
had resigned from the First Defendant is an important issue to identify what
obligations may have arisen with regard to the First Defendant to Mr Vibert.
46. Mr Vibert's argument on the law
effectively to our mind boils down to the assertion that the law relating to
the applicability of the rules of natural justice and/or the European
Convention on Human Rights to the relationship between a club and its members
or potential members is evolving and that the authorities relied upon by the
Master should not be determinative of what is a developing state of law.
47. It seems to us, however, that the law relating
to the relationship between a club and its potential members is, in cases such
as Mr Vibert's, in fact well settled. It may be that there is evolution in the
jurisprudence insofar as it relates to cases where the relationship between a
member and a club touches upon the discipline of club members, or their ability
to carry out a particular occupation or livelihood or the like or on renewal of
membership but not in terms of the consideration of new membership of a social
or sporting club which does not affect the livelihood of the prospective member.
The legal principles with regard to clubs
48. In addition to that part already cited above in
the extract from the Master's Judgment, significant reference has been
made to Ashton & Reid on Clubs and Associations (Second Edition 2011) and
it may be helpful at this point to set out what we believe to be relevant
extracts.
49. In chapter 4.2 the learned authors say:-
"In practice a club, of
whatever nature, will want to ensure as far as possible that its members are
congenial to one another so that a process of selection is introduced. A simple form of selection is to lay
down that admission is by invitation only.
And one commonly talks about the election of members to a club rather
than admission of members. This
ability to reject those persons who are, or apparently are, unsuitable or
unacceptable to join a club has been an important factor in sustaining clubs
over a long period of time. And, as
a general proposition, a person cannot complain if he/she is refused membership
of a club. Different considerations
will apply if the refusal is seen as an unlawful restraint of trade. ..."
50. There are, of course, exceptions to an
unfettered right by a club to deny membership to an applicant. It would be unlawful for a club to act
in a discriminatory way as this is now prevented by statute law. There are other exceptions, however none
of those exceptions apply in the instant case or indeed are asserted by Mr
Vibert. He simply asserts that he
was denied due process and the question for us is whether or not there is such
a due process that must apply in consideration for and rejection of
membership.
51. With regard to lapsed membership at paragraph
7.7 of Ashton & Reid the learned authors say this:-
"When it was lapsed it is
common practice to re-instate the member if he tenders the arrears and his
current subscription. Is this
re-instatement within the powers of the committee, considering that it is now
dealing with a non-member? Does not
the ex-member have to apply for re-election? Mr Justice McGarry in the Golcar case
said that lapse of membership could be described as "tacit
resignation". Despite this
dictum we consider that the committee would have power in appropriate
circumstances to reinstate lapsed membership on the basis that a lapse is quite
different from a resignation; the former comes about through the member's
non-compliance with the rules relating to the payment of subscriptions, where
the latter is a deliberate decision taken by the member. ...".
52. Although the above is not directly on point it
is interesting in the distinction it makes between a lapse of membership for
non-compliance with subscription rules and a resignation. If there is a resignation then a former
member is a non-member and would need, in our view, to go through the
re-application process.
53. Finally, from that text at paragraph 13.5 the
authors state:
"...whether the court
will intervene in a contractual or domestic dispute between the club and a
third party if the latter complains of a breach of the rules of natural justice
at the hands of the club is still an uncertain area of law. The formal introduction into English law
of the ECHR ... is part of a process which by and large has made the courts
more willing to entertain claims by third parties that the club has acted
unfairly towards him. Various
questions arise under this heading.
In contesting the club's decision is the third party entitled to
an oral hearing? Is the third party
allowed legal representation? Is
the club as decision maker obliged to give reasons for its decision? Has the decision maker departed from its
usual practice or policy? How
inflexible is that policy? Has the
claimant a legitimate expectation that he be consulted before the decision is
made? And so on. In Ridge -v- Baldwin, the
House of Lords said that the overall test was: What would a reasonable man
consider to be fair in the circumstances?
But this begs the question:
What is fair? The answered
would appear to be that if the liberty of the claimant or his livelihood or
property is at stake, the court is likely to require the rules of natural
justice or, perhaps better expressed, the rules of fair play, to be properly
observed so that there is even-handedness between the parties; otherwise and
subject to what is said in the last sentence of the preceding paragraph the
court is unlikely to intervene in contractual or domestic disputes between the
club and a third party even if the rules of natural justice have not been
observed".
54. The Master in his judgment placed emphasis on
the case of Nagle -v- Fielden and others 1966 Court of Appeal 2 QB
633 in which the court had to consider the issue of training licences by the
Jockey Club. Of course, in that
case, the Jockey Club which had as a matter of policy refused a trainers
licence to a female trainer, controlled horse racing on the flat throughout
Great Britain. The court was
prepared to intervene in such a case as the plaintiff had an arguable case to
challenge the decision of the Jockey Club to refuse a licence as being an
unlawful restraint of trade and contrary to public policy. In that case Lord Denning, at page 644
lines D to F said as follows:
"I quite agree that if we
were here considering a social club, it would be necessary for the plaintiff to
show a contract. If a man applies
to join a social club and is black-balled, he has no cause of action: because
the members have made no contract with him. They can do as they like. They can admit or refuse him, as they
please. But we are not considering
a social club. We are considering
an association which exercises a virtual monopoly in an important field of
human activity. By refusing or
withdrawing a licence, the stewards can put a man out of business. This is a great power. If it is abused, can the courts give
redress? This is the question.
It was urged before us that the
members of a trading or professional association were like a social club. They had, it was said, an unrestricted
power to admit, or refuse to admit, any person whom they chose: and that this
was established by a case in 1825 concerning the Inns of Court. In Rex -v- The Benchers of
Lincoln's Inn, Bayley J said:
"They make their own rules as
to the admission of members; and even if they act capriciously upon the subject
this court can give no remedy in such a case, because in fact there has been no
violation of any right."
I venture to question this
statement, notwithstanding the eminence of the judge from whom it fell. The common law of England has for
centuries recognised that a man has a right to work at his trade or profession
without being unjustly excluded from it.
He is not to be shut out from it at the whim of those having the
governance of it. If they make a
rule which enables them to reject his application arbitrarily or capriciously,
not reasonably, that rule is bad.
It is against public policy.
The courts will not give effect to it."
55. And, at page 653 (C to D) Salmon LJ agreed:-
"I will now turn to the
arguments on the plaintiff's behalf which were not put forward before the
judge. There can be no doubt but
that it is permissible to exclude anyone for any reason or no reason form
membership of a social club, just as anyone (unless he has a statutory right of
entry) may be excluded from one's home. Once, however, a man is elected to a
club, he acquires contractual rights and cannot be expelled save in accordance
with its rules and by processes which do not offend against natural
justice."
56. In McInnes -v- Onslow-Fane and another
[1978] WLR 1520 the Court was called upon to consider the refusal by the
British Boxing Board of Control to grant a boxers' managers'
licence to the plaintiff in that case.
McGarry VC said this:
"Second, where the court is
entitled to intervene, I think it must be considered what type of decision is
in question. I do not suggest that
there is any clear or exhaustive classification; but I think that at least
three categories may be discerned.
First, there are what may be called the forfeiture cases. In these, there is a decision which
takes away some existing right or position, as where a member of an
organisation is expelled or a licence is revoked. Second, at the other extreme there are
what may be called the application cases.
These are cases where the decision merely refuses to grant the applicant
the right or position that he seeks, such as membership of the organisation, or
a licence to do certain acts.
Third, there is an intermediate category, which may be called the
expectation cases, which differ from the application cases only in that the
applicant has some legitimate expectation from what has already happened that
his application will be granted.
This head includes cases where an existing licence holder applies for a
renewal of his licence, or a person already elected or appointed to some
position seeks confirmation from some confirming authority: see, for instance, Weinberger
-v- Inglis [1919] A.C. 606; Breen -v- Amalgamated
Engineering Union [1971] 2 Q.B. 175; and see Schmid -v- Secretary of
State for Home Affairs [1969] 2 Ch 149, 170, 173 and Reg. -v-
Barsnely Metropolitan Borough Council, Ex parte Hook [1976] 1 WLR 1052,
1058.
It seems plain that there is a
substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases, there is a
threat to take something away for some reason; and in such cases, the right to
an unbiased tribunal, the right to notice of the charges and the right to heard
in answer to the chargers (which in Ridge -v- Baldwin [1964] AC 40, 132, Lord Hodson said were three features of natural justice which stood
out) are plainly apt. In the
application cases, on the other hand, nothing is being taken away, and in all
normal circumstances there are no charges, and so no requirement of an
opportunity of being heard in answer to the charges. Instead, there is the far wider and less
defined question of the general suitability of the applicant for membership or
a licence. The distinction is
well-recognised for in general it is clear that the courts will require natural
justice to be observed for expulsion from a social club, but not on an
application for admission to it.
The intermediate category, that of the expectation cases, may at least in
some respects be regarded as being more akin to the forfeiture cases than the
application cases; for although in form there is no forfeiture but merely an
attempt at acquisition that fails, the legitimate expectation of a renewal of
the licence or confirmation of the membership is one which raises the question
of what it is that has happened to make the applicant unsuitable for the
membership or licence for which he was previously thought suitable."
57. In the case of Currie -v- Barton and
others [1988] WL 622889 the Court of Appeal of England and Wales had cause
to consider the effect of a decision made by the Essex County Lawn Tennis
Association to ban someone from playing for the county for a period of three
years. At page 3 of the judgment
O'Connor LJ said this:-
"Two matters arise. The learned judge, having gone into the
matter with great care and having set out all the facts, then considered the
law. He came to the conclusion that
the committee of the tennis association was not a decision making body to which
the rules of natural justice applied at all. The rules of natural justice in this
context are that a decision affecting somebody should not be taken without
telling him that the decision is to be taken and without giving him an
opportunity to put his case as to why the decision should be one way or the
other.
Of course all that is easy to
understand in a magistrates' court where somebody is charged with a
criminal offence. It is easy to
understand in a domestic tribunal such as the disciplinary committee of powerful
bodies like trade unions, political parties, the Inns of Court, the Jockey Club
(to which I shall refer later), who play a great part in the organisation of
different occupations. It may be an
entirely different matter when it comes to consider who should fly pigeons this
week and who should fly pigeons next week, or who should fish this bank of the
river this month and who should fish it next month. All those are matters which are dealt
with by sporting clubs up and down the land and no one suggests that the courts
should butt into those affairs or that people making that kind of decision
should have to look over their shoulders and say, "Goodness gracious me;
if we do this, we may get a writ served on us and have to incur the expenses of
litigation because one of our people does not like what we have
done." That to my mind is
poor law and there is no authority for it.
The learned judge came to the
conclusion that this body making this decision was of a category to which the
rules of natural justice should not apply.
In the alternative, he said that, if he were wrong about that, he was
quite clear that there had been no breach in this case of the rules of natural
justice.
The first attack in the appeal is
made upon the first of those findings, and the form of it is this. It is recognised by Mr Gray, who has
argued the case for the appellant, that up to now the law really recognises
only two grounds for the court's interfering in the decisions of what can
be called domestic tribunals. In my
judgment it would be a wholly inappropriate description of the Committee of the
Lawn Tennis Association in deciding who should play in their team in the future
and as to whether they should ban an individual for what they consider to be
bad manners, misconduct, or whatever.
However, it is probably right that in law it qualifies to be included in
the description of a domestic tribunal.
The law will interfere with the
decision of such a body if the person who is affected by it is in some sort of
contractual relationship with the body making the decision, or, alternatively,
if he is not in a contractual relationship, if the body is one which makes a
decision which operates as an unreasonable restraint on the capacity of the
individual to earn his living.
Sometimes it is put as the right to work.
Mr Gray has invited us to expand
the categories and say that if, contrary to his submission, there was no
contractual nexus between the appellant and the Essex Lawn Tennis Association,
then what they did was in unreasonable restraint of his capacity to earn his
living; and, even if that was wrong, then it was a case in which a body was a
controlling monopoly and had power over him in an important aspect of his life,
and especially had an effect on his earning capacity, and thus the court should
interfere. For my part, I do not
think that it is necessary to go further than the recognised categories. "
58. In the same judgment Nicholls LJ said:-
"I agree. I add a brief comment only on one
point. Lord Irvine guided us
through the recent cases in which the court, at the suit of a plaintiff not in
a contractual relationship with the body whose decision was under challenge,
has intervened with regard to the exercise of "monopoly"
powers. But no case has been cited
to us in which the Court has intervened where the decision in question was not
one which affected the plaintiff's ability to work and earn his living in
whatever manner he might choose. In
the present case there was no evidence that the decision of the committee on
the 13th December, 1982, banning Mr Currie from selection for three years,
affected his ability to earn his living as a tennis player or coach.
Mr Gray submitted that it was sufficient
if the monopolistic body had power over an individual in any important aspect
of his life. Whatever ultimately
may prove to be the limits of this flexible, developing principle, I think that
at present the principle does not go so far as to apply, in general, to a case
where the exercise is of a "monopoly" power over a sporting
activity, such as choosing who should play in a particular team, provided that
that exercise is not one which significantly affects a person's ability to
earn money as he pleases."
59. In what was characterised in submissions to us
as the "high point of the law on this issue" the court of sessions
in R (Irvine) -v- The Royal Burgess Golfing Society of Edinburgh [2004] LLR 334 considered the suspension of a member on the grounds of their
behaviour. The person who had
lodged the complaint against the member in question also sat on the committee
of the Society. In that case the
court was prepared to intervene on the grounds that the Society had failed to
give the suspended member notice of the entirety of the charges levelled
against him, members of the counsel had before them information that was
irrelevant to whether or not the suspended number had in fact breached the
rules of the club, the Society had denied the opportunity to the suspended
member to be heard in respect of the charges against him and, perhaps more
importantly, that counsel was acting as a disciplinary body. A body which acts as a disciplinary body
is performing a judicial function and is required to discharge that duty in an
unbiased and impartial way. There
were in the circumstances of that case suspicions of partiality.
60. At paragraph 25 of its judgment the court said
this:-
"25. I agree with the
respondents that a golf club is not to be expected to conduct its proceedings
in the same way as would a court and that, as some of the authorities relied on
show, the court is usually slow to interfere with the proceedings of such a
body. It does not, however, seem to
be the case that there is any recognised principle that the court should
refrain from exercising the power of judicial review where the body whose
decision is under attack is a sporting body. Indeed, the case of McInnes -v-
Onslow-Fane [1978] WLR 1520, which was relied on by the respondents in support
of that submission, was one in which the entitlement of the court to intervene
in the procedures of a sporting body not governed by statute or contract, so as
to enforce the appropriate requirements of natural justice and fairness, was
affirmed. Further, the
circumstances in which the decision to suspend the petitioner from membership
was made in this case call for examination. Whilst to some, the tensions between a
golf club and its members whether in respect of their mode of dress or the
volume of their exuberance, may seem trivial, two things arise in the present
case which underline the importance of the present dispute, at least to the
petitioner. One is the amount of
the membership fee which is significant.
The annual membership dues amount to £945 pa and, as a result of
his suspension from membership, the petitioner has, thus far, been deprived of
the benefit of over half of that sum.
The other is that the petitioner is the managing director of a public
limited company that provides financial services with a number of clients who
are also members of the respondents.
They will have become aware of his suspension from membership. I was advised by his counsel that he was
concerned at the adverse effect on his reputation in his sphere of business
that had ensued. That concern is
readily understandable."
61. And then, at paragraph 40:-
"40. In considering the
allegations against the petitioner and determining upon a penalty, the
respondents' council was acting as a disciplinary body. As was commented by Lord Osborne, in the
case of Brown -v- Executive Committee of the Edinburgh Labour Party
1995 SLT 985, at 989-990, a body which acts as a disciplinary body is
performing a judicial duty and so requires:
'to bring to the discharge of
that duty an unbiased and impartial mind.
If he or she has a bias which renders him or her otherwise than an *350
impartial judge, he or she is disqualified from performing that duty. Indeed, so jealous is the policy of the
law of the purity of the administration of justice, that, if there are
circumstances so affecting a person acting in a judicial capacity as to be
calculated to create in the mind of the reasonable man a suspicion concerning
that person's impartiality, the circumstances are themselves sufficient
to disqualify, although in fact no bias exists. Further, when an allegation of bias is
made out against one member of the collective body, that is sufficient to
invalidate the decision of the whole body...'."
62. This is further reinforced to our mind by the
case of Cronin -v The Greyhound Board of Great Britain Limited
[2013] EWCA Civ 668 in considering whether The Greyhound Board of Great
Britain was required, amongst other things, to give reasons for a decision
for the penalties it imposed on a greyhound trainer, Morris K LJ at paragraph
14 said this:-
"14. The Board's
primary case is that the DC was under no duty to give reasons for its decision,
either pursuant to the Rules or as a matter of law. It seeks to rely on McInnes -v-
Onslow-Fane [1978] 1 WLR 1520 which was concerned with a licensing decision
by the British Boxing Board of Control.
Megarry V-C held that, although appropriate requirements of natural
justice and fairness were to be imported, (and I quote from the headnote):
"... since the case
... was not one involving forfeiture of an existing right or deprivation of
an existing position, and was equally not one where the plaintiff had any
legitimate expectation that his application for a boxers' managers'
licence would succeed, the board, while under a duty to reach an honest
conclusion without bias and not in pursuance of any capricious policy, were
under no obligation to give the plaintiff even the gist of their reasons for
refusing ... his application."
15. On behalf of Mr Cronin, Mr Lock
submits that this approach must now be seen in the light of more recent
authorities in which regulatory bodies (whether statutory or voluntary) which
make decisions of a disciplinary nature, which decisions may have a profound
impact on a person's ability to participate in his chosen occupation, are
generally required, as a matter of procedural fairness, to provide reasons for
their decisions. He refers to a
number of authorities, the high watermark of which is Phipps -v-
General Medical Council [2006] EWCA Civ 397. In his judgment, Wall LJ referred to the
developing law - "what was exceptional in 2001 may well have become
commonplace in 2006" (paragraph 73) - and did not confine his
observations to statutory bodies (see, for example, paragraph 78).
16. Reminding myself that, at this
stage, we are concerned only with the arguability and not with the ultimate
correctness of Mr Cronin's case, I am satisfied that the absolutist
stance of the Board is arguably wrong and that, at least at some stage in the
procedure, a duty to give reasons arises.
Even if an affected person has no wish to challenge an adverse decision,
he may be entitled, as a matter of law, to such reasons. However, that is not the end of the
matter."
63. In citing the authorities as we have above, we
are conscious that we have repeated to a very significant extent the
authorities as cited in the Master's judgment and to the Master in
argument before him. This is
because to our mind these authorities are relevant in considering whether the
Master identified the correct principles and, indeed, in the exercise of our
own original jurisdiction.
64. We agree with the principles identified by the
Master set out above and in the case of these defendants the standards to be
applied to them are those applicable to social and sporting clubs. Individually they do not exercise any
blanket control over bowling in Jersey, nor do their decisions impinge upon the
livelihood of any individual member or that member's right to carry out a
trade or profession. In the present
case none of the clubs were exercising a disciplinary function, and in the case
of the Second, Third and Fourth Defendants they were merely determining whether
or not to admit a new member. This
is not in our view a decision that should be reviewed by the courts.
65. Of course Mr Vibert also put his case, with
regard to the First Defendant, on the basis of legitimate expectation arising
out of his erstwhile (or as he would say continuing) membership of the First
Defendant. He argues that he is
entitled because it was a renewal of membership as opposed to an application
for a new membership to be satisfied that the First Defendant had conducted
themselves with due compliance with the rules of natural justice.
66. The Master in his judgment supports the view
that with regard to renewal of membership different duties are owned. If, indeed, the relationship between Mr
Vibert and the First Defendant had not ended in November 2015 and he was, as he
alleges, simply applying to renew his membership, then his argument relating to
the rules of natural justice may be stronger.
67. The Master did not need to consider this as he
proceeded on the basis, and as we have set out above, that this was not a
renewal but rather an application afresh.
What was not apparent to the Master, because he was not in receipt of
the affidavit of Mr Davis or the further submissions of Mr Vibert, but is
apparent to us, is that this matter is still disputed.
68. Of course if there is a matter that needs to be
determined by the court on the evidence before the correct law can be
identified and applied then that is not a case generally that is amenable to
summary judgment.
69. With some reluctance given the nature of the
dispute and its value we cannot say that this aspect of the dispute can safely
be disposed of at the summary judgment level. No matter what view we may take of the
evidentiary picture as it emerges before us, we cannot say that it is entirely
clear that Mr Vibert resigned and that his application was for admittance as a
member anew rather than for a renewal of his membership. It may very well be that Mr Vibert did
in fact resign but we are conscious that Mr Davis' evidence has not been
tested nor has Mr Vibert given evidence on his own account and he has
characterised his earlier submissions before the Master as an indication of an
intention to resign but not the fact of resignation. There may be other relevant evidence on
this narrow point.
70. In the circumstances whilst we uphold the
Master's summary judgment in favour of the Second, Third and Fourth
Defendants, we do not think the allegation against the First Defendant can be
determined satisfactorily at a summary level. It will need the Court to hear evidence
to determine the status of Mr Vibert as in April 2016 to then identity what if
any duties may have been owed to him by the First Defendant and whether or not
it had discharged those duties if they existed.
71. In our view, the only issue of a factual nature
left to determine after all relevant evidence is heard is whether or not, in
April 2016, Mr Vibert was a new applicant for membership of the First Defendant
because he had resigned earlier or whether he remained a member and was
therefore simply renewing his membership.
If he had resigned then, in our view, his case must on the law fail. If he had not resigned then he may have
a claim against the First Defendant.
We give no indication of our view whether such a claim can succeed.
72. In the light of this determination it appears
to us that it may be appropriate and cost effective to transfer this action to
the Petty Debts Court pursuant to Article 2(2) of the Petty Debts Court
(Miscellaneous Provisions) ) (Jersey) Law 2000 for determination. However, we are conscious that we have
not been addressed on this course and we accordingly remit the matter to the
Master for consideration.
73. As to costs, we will sit to determine costs on
a date to be fixed or would be prepared to consider costs on the papers if the
parties agree.
Authorities
Vibert
v Sun Bowls Club and Others [2017] JRC 181
MacFirbhisigh
and Ching -v- CI Trustees and Others [2017] JRC 130A
Royal Court Rules 2004
Ashton & Reid on Clubs and
Associations (Second Edition 2011)
Nagle -v- Fielden and others
1966 Court of Appeal 2 QB 633
McInnes -v- Onslow-Fane and
another [1978] WLR 1520
Currie -v- Barton and others
[1988] WL 622889
R (Irvine)
-v- The Royal Burgess Golfing Society of Edinburgh [2004] LLR 334
Cronin -v
The Greyhound Board of Great Britain Limited [2013] EWCA Civ 668
