BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wiles & Ors v Bothwell Castle Golf Club & Ors [2005] ScotCS CSOH_108 (08 August 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_108.html Cite as: 2006 SCLR 108, [2005] CSOH 108, [2005] ScotCS CSOH_108 |
||
[New search] [Help]
Wiles & Ors v Bothwell Castle Golf Club & Ors [2005] ScotCS CSOH_108 (08 August 2005)
|
OUTER HOUSE, COURT OF SESSION [2005] CSOH 108 |
|
|
P1105/04
|
OPINION OF LORD GLENNIE in Petition of (1) MR IAN WILES; (2) MRS JENNIFER WILES and (3) MRS MARGARET ALLAN Petitioners; against (1) BOTHWELL CASTLE GOLF CLUB; (2) DR G. I. CRAWFORD; (3) MR A. WHYTE; (4) MR I. S. MACAUSLANE; (5) MR J. R. BECKETT; (6) MR C. GRIBBONS; (7) MR D. HARVEY; (8) MR R. M. HENRY; (9) MR A. B. BRAIDWOOD; (10) MISS F. F. SCOTT; and (11) MR A. R. BUTTERY Respondents: for Judicial Review of a decision of 4 November 2003 by Bothwell Castle Golf Club expelling the Petitioners from the Club and terminating their membership under sections 9 and 14 of the Constitution ________________ |
Petitioners: M. Lindsay; Ledingham Chalmers
Respondents: J. Peoples, Q.C.; Simpson & Marwick, W.S
8 August 2005
Introduction
[1] The first respondent is Bothwell Castle Golf Club ("the Club"). The second to eleventh respondents are members of the Committee of the Club. The first and second petitioners, who are husband and wife, have been members of the Club for approximately fourteen years. The third petitioner, a former Lady Captain of the Club and, at the time of the events in the question, Captain of Lanarkshire Ladies County Golf Association, has been a member for much longer, since April 1967. The petitioners' subscriptions to the Club for 2003, the year in question, were all fully paid up. [2] In or shortly before 2002, the Club's clubhouse was destroyed by fire. Three options were considered for replacing it. One was to build a new clubhouse similar to the old on the same site; another, to build an enhanced clubhouse on the same site; and a third, to relocate the clubhouse to a different site, though still on land owned by the Club. This latter proposal also involved the development of part of the Club's land for residential purposes in order to raise money to finance the project. On 22 September 2002, before any planning application was submitted, the Club held an Extraordinary General Meeting at which the views of the membership were canvassed. The petitioners were not able to attend that meeting but the first and second petitioners tendered apologies under cover of a letter in which they recorded a preference for rebuilding the clubhouse on the original site. Following discussion at the E.G.M., a secret ballot of members was taken. The overwhelming majority of members voted for relocation. A further E.G.M. was held on 24 November at which, consistently with the vote taken at the previous E.G.M., the Club, by its members, resolved to erect the clubhouse at the new location. On 20 December a planning application was submitted. The first and second petitioners were given neighbour notification of the application. They opposed the application on a number of grounds, in particular the destruction of woodland and the difficulties of the new access causing congestion in the roads around them. Indeed, on 1 October 2002, before the planning application was submitted, the second respondent had written a letter to interested parties, including councillors and agencies, alerting them to the danger of allowing development of this type. On receipt of neighbour notification, the first and second petitioners formally objected in a letter dated 30 December 2002 to the Council's Planning Department, copied to a number of bodies and individuals although not to members of the Club. It is not necessary to go into the details of their objections since it is accepted on behalf of the respondents that the petitioners' objections were bona fide and, from the point of view of owners of neighbouring property, entirely reasonable. On 4 February 2003 the third respondent also wrote a letter of objection raising similar concerns. [3] The petitioners' opposition to the planning application became known to the Club, through its Committee, in the course of the planning process. In March 2003 the second respondent, who was Club Captain, being concerned that the objections might result in planning permission being delayed, asked the second petitioner to consider withdrawing her objection. She did not do so. Other local residents also objected, as did a number of agencies such as Scottish Wildlife Trust, on environmental and other grounds and the fact that the development was contrary to the Local Plan. Notwithstanding those objections, on 10 June 2003 the planning application was granted subject to a number of conditions. The second respondent posted a notice in the clubhouse stating that the most significant of those conditions had been attached as a direct result of the objections made by the petitioners. [4] By letter dated 3 July 2003, the petitioners were invited to a Disciplinary Meeting of the Club's General Committee to be held on 10 July, on the grounds that they might be in breach of Rule 9 of the Club's Constitution and Rules. No details were given. Rule 9 provides as follows:"9. Suspension and Expulsion
The Committee shall have power on a vote by ballot, by a majority of those voting, to suspend any Member or Associate whose conduct appears to them to endanger the character, interests or good order of the Club, or who acts in breach of the Constitution, Bye-Laws or Regulations of the Club or decision of the Club in General Meeting. Further, the Committee shall have the power, on a vote by ballot of two-thirds of those voting, to expel any such Member or Associate."
The petitioners complained that the letter of 3 July was "woefully lacking in specification and advance notice". They wanted details of what they were supposed to have done. Accordingly they said they would not be attending the hearing of 10 July 2003. By letter of 18 July the Committee gave details of the alleged breach of Rule 9. Those reasons were as follows:
"(a) You behaved discourteously towards the Club by failing to inform the Club of your intention to object to the planning application for the new Clubhouse.
(b) ... We believe that, by lodging formal objections to our planning application, you endangered the interests of the Club."
"Following the meeting attended by you on 21 October 2003, the Committee fully discussed matters at its scheduled meeting on 27 October 2003 and thereafter at a specially convened meeting on 1 November 2003.
Having carefully considered the submissions made by you on 21 October 2003, the Committee has concluded that you do not properly appreciate your obligations as a Member of the Golf Club. When you became a Member of the Golf Club, you undertook to observe the Constitution. It is not open to any Member of the Club to pick and choose those parts of the Constitution that they wish to comply with and those that they do not. However, that is what you seem to consider you are entitled to do. Further, at no time during the meeting on 21 October 2003 did you suggest that you regretted your actions nor that you would act differently should a similar situation present itself in the future.
"The Club voted by a large majority at its Extraordinary General Meeting on 22 September 2002 to build its new Clubhouse near the 16th green accessed by the old Castle Gates. By submitting letters of objection to the Planning Department you acted against a decision of the Club in General Meeting. Further, once the Club was committed to this project and the Planning Application had been submitted, your attempt to frustrate this was directly against the interests of the Club.
"The Committee, therefore, find that you have breached sections 9 and 14 of the Constitution. After taking a vote on the matter, the Committee has decided to expel you from the Club forthwith and your membership is accordingly terminated with immediate effect."
That letter was signed on behalf of the Committee. No reference has been made in the petition or at the hearing before me to the terms of Rule 14 of the Constitution. The argument turned on Rule 9. I infer that Rule 14 is simply an ancillary provision with which I need not here be concerned. I shall have occasion to refer to the Minutes of the Meeting of 1 November, at which the decision was taken to expel the petitioners, in due course, but for present purposes it is appropriate to turn now to the petitioners' application.
[9] The petitioners apply for reduction of the respondents' decision to terminate their membership of the Club. They also claim declarator that the respondents' decision to terminate their membership with immediate effect was unreasonable, was arrived at upon inclusion of irrelevant considerations and in a manner which was procedurally unfair and contrary to the rules of natural justice. The arguments were developed in detail in the petition. The matter came before me on the first hearing of the petition. Counsel agreed that all matters could be dealt with at the first hearing with one exception, in relation to which (if it arose) evidence would be required. That exception was that part of the case based on procedural unfairness, which relied upon the matters set out in Statement 14 of the petition (and incorporating some of the averments in Statement 8). Counsel submitted that there were clear disagreements on material facts in relation to this part of the procedural unfairness issue, which the court could not deal with at a first hearing. If the petitioners were successful on their other grounds, there would be no need to consider these averments. Equally, if the petitioners were unsuccessful on their other grounds, but the respondents successfully challenged the relevancy of the petitioners' averments in Statement 14, then again there would be no need to resolve the disputed averments of fact. Only if the petitioners failed on the other grounds and the respondents failed in their argument on relevancy did these of fact become live. The court was invited, if that position was reached, to put the matter out by order for determination of further procedure.The petitioners' submissions
[10] In moving the court to repel the respondents' pleas-in-law and to sustain those of the petitioners, and thereafter to grant decree of reduction and declarator, counsel for the petitioners recognised that, were the court to grant reduction of the decision to expel the petitioners, the suspension imposed in July 2003 would remain in force. It might become a live issue again. The petitioners would ask for the suspension to be lifted and a refusal might give rise to fresh proceedings. However, I was not asked to deal with any matters relating to the suspension. [11] Under reference to Yuill Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386, counsel submitted that the supervisory jurisdiction of the court applied to a club such as this, though it was recognised that social and sporting membership clubs were not expected to operate in the same procedurally rigorous way as was required of a court or, say, a professional body or a trade union. [12] Turning to the substance of the petition, counsel made his submissions under four chapters. Each, he said, was free-standing: if the petitioners succeeded on any one of them, they were entitled to declarator and reduction. Under his first chapter, counsel submitted that, assuming that the matter was a disciplinary matter at all, the Committee took irrelevant matters into consideration in arriving at their decision to expel the petitioners. Two reasons for the expulsion were given by the respondents in Answer 10 to the Petition. The first was that "without informing the Club of their intention to submit objections to the Club's development proposals, the Petitioners all lodged detailed objections to the Planning Application ... with a view to having the said proposals rejected outright by the Planning Authority". The second was that "in addition, the Second Petitioner, in advance of any application being submitted, wrote to a number of bodies and individuals with a view to drumming up opposition to the Club's proposals without informing the Club that she had done so". This is a reference to the letter of 1 October 2002. Under reference to Irvine at paras [13] and [32], Counsel submitted that the Committee should have considered the conduct of the Petitioners in two stages. The first stage was to consider the question of "guilt", namely whether the conduct of the Petitioners was such as to give rise to the possibility of suspension or expulsion in accordance with Rule 9. At that stage the Committee could only have regard to the facts said to constitute the "offence". Only if the Committee decided, after such consideration, that the Petitioners were "guilty" was it appropriate to consider what sanctions, if any, to impose. At that stage other matters could properly be brought into account. Here the Committee, in arriving at its decision to expel the Petitioners, failed to approach the matter in those two stages. The Committee took into account in its deliberations not only the matters referred to in Answer 10 but also such questions as the expense caused to the Club by the Petitioners' objections and also the Petitioners' conduct in bringing proceedings against the Club in the Hamilton Sheriff Court. These matters were irrelevant to the question of "guilt", though they might well be relevant to the question of what sanction to impose if "guilt" were established. It followed, therefore, that the decision of the Committee was vitiated. [13] Counsel's second chapter fell under the heading of procedural unfairness (but excluding the matters covered by Statement 14 in the Petition). Under this head he made three separate complaints. First, referring back to the matters discussed above, he said that there should have been two separate stages of voting. In fact there was only one. This meant that the question of guilt was, in effect, taken for granted whereas it should have been decided as a separate issue. Second, he complained that when it came to deal with what, if any, sanction to impose, the Committee was presented with only two options, to suspend or to expel. No consideration was given to something less, such as admonition. Third, he submitted that the position of each of the petitioners should have been decided separately. There had been two votes, the first dealing with the first and second petitioners, and the second dealing with the third petitioner. It was improper to treat the first and second petitioners together. The conduct of which complaint was made was different. Both first and second petitioners were criticised for opposing the Planning Application, but only the second petitioner was attacked for writing the letter of 1 October 2002 with a view to drumming up support. The position of the two was different and they should have been considered separately. [14] In his third chapter, counsel submitted that the decision of the Committee was wholly irrational in the Wednesbury sense. No reasonable Committee applying its mind to the facts could properly regard an objection by the petitioners to the Club's Planning Application as a disciplinary offence. During the course of argument, it seemed to me that this submission involved not so much a consideration of the reasonableness or otherwise of the Committee's decision, more a question of whether the Committee was entitled to regard the petitioners' conduct as triggering their discretion to suspend or expel in terms of Rule 9 - a question turning ultimately on the proper construction of Rule 9 - and I was also addressed on this way of looking at the question. In support of this submission, counsel pointed out that Rule 9 did not clearly define what was or was not a disciplinary matter. In respect of any particular conduct, the Committee had to ask itself: is this a disciplinary matter? Does it fall within our jurisdiction? Counsel submitted that the Committee's jurisdiction obviously extended to what happened on the golf course and on the Club premises. It also obviously extended to cases where the member was representing the Club. Conduct in a member's business or private life might give rise to a legitimate complaint under Rule 9, but only unlawful, scandalous or anti-social behaviour likely to reflect adversely on the character of the Club. A line had to be drawn somewhere. Wherever the line had to be drawn, the power of the Committee to suspend or expel could not be extended to the case of entirely lawful behaviour in the conduct of the life of a member. As neighbouring proprietors, the Petitioners had a right to object to the Planning Application, and it was both lawful and unobjectionable for them to write to other bodies and individuals to enlist their support. They had not written to other Club members, they had not criticised the Club publicly and they had not carried the dispute over into the social life of the Club. [15] Counsel's fourth chapter was that, esto their actions did fall within Rule 9, expulsion was a disproportionate response by the Club to their conduct. The nature of their conduct did not justify this extreme step. They had no history of any previous conduct which might be held against them - quite the opposite in fact, since they were all, the third respondent in particular, long-standing members of good behaviour.The Respondents' submissions
[16] Senior counsel for the respondents invited me to uphold the respondents' first plea-in-law and dismiss the Petition. He said it was important to have in mind that the conduct in question - making an objection to the Planning Application and mounting opposition - was not in dispute. The petitioners' objections should be seen against a background of the members of the Club having met to discuss how to replace the old clubhouse. A vote had been taken. The great majority of the membership wanted the development to go ahead. Properly characterised, the actions of the petitioners sought to oppose the Club's proposals. Their objections to the Planning Application directly affected the interests of the Club. The Committee was entitled to take the view that the objections endangered those interests. It was entitled to take exception to this. There might be nothing objectionable about the conduct of the petitioners in itself, but they have to choose between objecting and their loyalty to the Club. The petitioners wanted to retain the benefits of membership of the Club without abiding by its decisions and by its Rules. [17] The jurisdiction of the Committee could extend to conduct which occurred off as well as on the Club premises and golf course. Reference was made in this connection to Charles Welsh v The Committee of the South Western Social and Recreation Club Limited (unreported, 25 June 2004) at paras [3], [15] and [24]; and to Dawkins v Ambrose (1871) 17 Ch D 615 at 626 and 629. There was no limit, in terms of time and place, to the conduct that could be taken into account, provided it fell within the ambit of Rule 9. The Committee were entitled to regard the conduct of the petitioners as endangering the interests of the Club, both its financial interests and its interest in wanting a new clubhouse. Further, the petitioners can be said to have been acting in breach of a decision of the Club in general meeting. Accordingly, the Committee were entitled to vote to suspend or expel the petitioners. [18] In terms of the petitioners' other complaints about the decision making process and the sanction imposed on the petitioners by the Committee, counsel accepted that the court could interfere by judicial review, but submitted that a distinction was to be drawn between, on the one hand, social clubs and, on the other, bodies, such as trade unions or professional bodies, whose activities could have a significant effect on the livelihood of their members. So far as the former were concerned, the courts would be slow to interfere with the conduct or administration of the Club or the decisions of its Committee. Questions of Wednesbury unreasonableness or procedural unfairness would seldom arise. In a case such as this, the rights of members and the powers of the Committee were usually regulated by contract. He referred to Stuart Crocket v Tantallon Golf Club (unreported, 15 March 2005) at paras. [31]-[34] - and in particular the citation in para. [34] from the opinion of Lord Justice-Clerk Aitchison in McDonald v. Burns 1940 SC 376 at 383-4 - and [48]. Reference was also made to Lee v The Showmen's Guild of Great Britain [1952] 2 QB 329. He noted that McDonald v Burns had not been cited to Lady Smith in Yuill Irvine. In so far as the approach in Yuill Irvine suggested a more interventionist role for the Court in the conduct of the affairs of a social club than was apparent from the cases to which he referred, it should not be followed. Against this background, he submitted that there was no basis for interference with the decision of the Committee. It was implicit from the minutes of the meeting of 1 November 2002 that the Committee only took a vote on expulsion because they were satisfied that the petitioners' conduct entitled them so to do. There was nothing irrational about dealing with the first and second petitioners together; they were husband and wife and the Committee could take a realistic view of the fact that a letter by one of them in connection with such a question would likely be sent with the support of the other. On this basis the averments made by the petitioners in the petition were irrelevant and the petition should be dismissed. He urged me also not to stand over the matters in Statement 14 of the petition. They were unspecific and irrelevant. However, if I came to a different view, then he agreed that the appropriate course would be to put the case out by order so that consideration could be given to the best way of dealing with the factual averments in Statement 14.Decision
[19] The relationship between the members of a Club such as this is primarily contractual. In Crocket the petitioner sought reduction of decisions taken by the Club Council and by Club in general meeting to expel him from membership of the Club. The respondents challenged the competency of proceedings for judicial review. In rejecting this challenge to competency, Lord Reed described, at paragraph [29], the relationships typically arising out of membership of a such a Club:"A members' club, such as Tantallon Golf Club, is an unincorporated association. It has no legal persona: in the present proceedings, for example, the respondents are not properly designed as 'Tantallon Golf Club'. The members of the association for the time being are bound inter se by contract: each member agrees with all the other members to be bound by the rules. The contract has a number of particular features. One is that in the case of a numerous association, such as a golf club, a member may well be unaware of the identities of all the other parties to the contract. Indeed, the contract may provide for the composition of the association to change from time to time, as existing members resign or are expelled, and new members are admitted. In such circumstances, the members for the time being agree to enter into association with any new member upon his or her admission in accordance with the rules, and equally agree to the termination of their association with any member who resigns or is expelled in accordance with the rules. A second feature of the contract is that, since the members of the association cannot (at least in the case of a numerous association) all personally undertake every act which requires to be undertaken for the purposes of the association, they agree to authorise certain members to take certain acts or decisions, on the basis that all the members will be bound by such acts or decisions. Typically, as in the case of Tantallon Golf Club, the rules of the association will provide for a number of members, described as the committee or council of the club, to undertake the day to day management of the club's affairs. Under their contract with each other, the members agree to be bound by the acts of the members forming the council, provided the council act within the scope of the authority conferred upon them by the rules. The members of the council can bind the members as a whole, in their dealings with third parties, in accordance with the law of agency. In relation also to questions relating to the conduct of members and the procedures leading to expulsion, the rules may provide for a council of members to exercise certain functions. If, as in the case of Tantallon Golf Club, the rules of the association provide for expulsion to be decided upon by a specified majority of members present at a meeting, the implication is again that the members as a whole agree to be bound by a decision which has been taken only by those of their number who were present at the meeting and voted in favour of expulsion."
That reasoning seems to me to be correct; and it is, to my mind, consistent with the analysis adopted in such cases as The Satanita [1895] P 248, affirmed sub nom Clarke v Dunraven [1897] AC 59. Although I have not been provided with the full documentation relating to the Constitution of the first respondents, this passage was cited in argument before me and it was not suggested that there was anything in the present case to point to a different result.
[20] If the relationships between members are regulated by contract, and the powers of the Committee, acting on behalf of the members as a whole, are limited by the terms of that contract, it follows that any member of the Club who feels aggrieved by the actions of the Committee, at least in so far as they concern him, may have recourse to the courts. His complaint would be that the members, through the Committee, were in breach of contract; or, that the Committee was exceeding the powers conferred upon it by the membership; or, possibly, that the Committee was acting in breach of express or implied terms of the contract under which it was given its powers. In his Opinion in Crocket, Lord Reed put it in this way:"[30] It follows from the foregoing that a member is not bound by actings of other members which are not in accordance with the rules of the association. In that sense, the concept of vires can be applied to the affairs of an association. In particular, expulsion from membership (or any other disciplinary measure), in order to be legally effective, must be in accordance with the rules. If a member were to be purportedly expelled, otherwise than in accordance with the rules, then it might therefore be thought that issues would arise which might be determined by the court in the exercise of its ordinary jurisdiction to decide questions of contract, whether the decision to expel were taken by the members in general meeting or by a council formed from their number. That is indeed how such issues are dealt with in the English courts, where, for historical reasons, judicial review is available only in respect of public authorities. In Scotland, on the other hand, the procedural law as to how such issues should be addressed has developed differently, reflecting not only the availability of the same remedies (such as reduction) in proceedings against public authorities as in proceedings against private individuals, but also certain features of such issues which are analogous to those which arise when the validity of the decisions of administrative or quasi-judicial bodies is in question.
"[31] One such feature is that the members as a whole agree to be bound by a decision taken by a group of members, provided the decision is taken in accordance with the rules of the association. The group of members on whom the decision-making power is conferred thus exercise a limited authority or jurisdiction. A second feature is that the common law imposes certain procedural requirements upon the decision-making process (if they are not imposed by the rules themselves), in the interests of fairness. A third feature is that, if a decision is taken which is ex facie valid, then the members as a whole will appear to be bound by that decision: they cannot be held to be in breach of contract in giving effect to the decision, unless the decision has been determined to be a nullity. A fourth feature is that the decision cannot be said to be a nullity merely because a different view of the matter in issue might have been taken by a court of law, since the members have agreed to abide by the decision, not of a court, but of the persons to whom authority to decide the question has been given by the rules. If their decision is to be regarded as a nullity, that must therefore be because they have taken it otherwise than in conformity with the authority conferred upon them."
I agree, though for myself I would hesitate to use the language of "vires" in the context of a committee of a private club exercising powers given to it by contract between the members. I would also prefer to regard the procedural requirements imposed upon the decision-making process in the interests of fairness as being based, in the absence of clear rules agreed by the members, upon implied terms of the contract between the members rather than as being imposed by the common law. In this way, so it seems to me, the requirement for "fairness", and the level at which the procedural requirements necessary to ensure that fairness are pitched, can more readily be attuned to the precise relationship between the members, which may well differ from club to club and according to the particular facts of any given situation.
[21] It is now clearly established that proceedings in court by a member to vindicate his rights are, in Scotland, now properly to be taken by way of judicial review. Recent examples of this approach are to be found in Yuill Irvine and Crockett. Lord Reed in Crockett shows how this type of case falls within the relationship described in West. As Lord Reed points out, because judicial review in England is appropriate only for matters of public law, a dispute of this type in England would come before the courts there by way of ordinary action. While this has no practical consequence in terms of the applicable principles, it does perhaps tend to reinforce the essentially contractual nature of the issues with which the court is concerned. [22] Although the argument about irrationality was taken as the third chapter in his submissions on behalf of the petitioners, it logically falls to be addressed first in this case. [23] The jurisdiction or power of the Committee in disciplinary matters is derived from the contract entered into between the members inter se on terms of the Constitution and Rules of the Club. Rule 9 of the Club's Constitution and Rules is, on its face, exceptionally wide ranging. There are two distinct circumstances in which the Committee may exercise the power to discipline a member. The first concerns a member's conduct. If that conduct "appears to [the Committee] to endanger the character, interests or good order of the Club", the Committee may vote to suspend or expel. Once relevant conduct is identified, that is to say conduct which is within the intended scope of the Rule, then the question of whether it does or does not have this effect is for the Committee. The Court will not interfere with such an assessment except on grounds such as mala fides or manifest absurdity: see Dawkins v Antrobus at pp. 629, 630 and 634; Lee v Showmen's Guild of Great Britain at pp.338-9, 343 and 350. 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. The second circumstance in which the Committee is entitled to exercise its disciplinary powers is where a member acts "in breach of the Constitution, Bye-laws or Rules of the Club or decision of the Club in General Meeting." This again raises a jurisdictional or threshold question. If the member acts in breach, the Committee has power to suspend or expel him. If he does not act in breach, the Committee has no such power. Whether the particular action is or is not a breach within the terms of the Rule is a matter ultimately for the Court. [24] I am reinforced in my view that there is likely to be a jurisdictional threshold in disciplinary Rules of a Club such as this by the following considerations. The members of the Club pay a subscription for the year (and I am told that in this case the Club has not reimbursed any part of the petitioners' subscription for the year in which they were expelled). Members may or may not, in addition, have to pay a significant fee on joining the Club (though I was told that there was no such fee in the present case). Many members will have shaped their social, sporting and (possibly) business lives around membership. That is not lightly to be taken away. The annual membership fee, although conferring membership rights only for the year, may be regarded to this extent as an investment in continued membership. It would be unlikely that members would readily agree that there should be no limit on the power of the Committee to expel or suspend from membership; and as a matter of contractual interpretation I would be disinclined to hold that they have so agreed. [25] It was accepted by both counsel before me that the jurisdiction of the Committee could extend to acts or conduct occurring away from the Club's premises and grounds. This is obviously right. If a member misconducts himself whilst representing the Club at a tournament or a social function, such conduct could fall within the jurisdiction of the Committee. So also, possibly, if a member misbehaves in public, albeit on an occasion unrelated to the Club, to such an extent that having him continue as a member would damage the reputation of the Club. Much will depend on the nature of the Club and the social context in which it exists. The sort of conduct which caused Mr. Dawkins to be expelled from the Travellers' Club in the 1870s would probably still justify expulsion today from such a Club - but I would reserve my opinion on whether it would today justify expulsion from all Clubs. The mischief in Dawkins was the extension of a private quarrel into the public arena and the making public in this way of charges reflecting upon the honour and character of certain members of the Club. A private dispute of itself would be unlikely to be regarded in the same light; but if that dispute were carried over into the clubroom or bar so as to endanger the atmosphere within, or the reputation of, the club, a different view might be taken - and, in such a case, it would be the conduct of the person who was responsible for taking the quarrel into the club, and not the original quarrel itself, which might justify the attention of the Committee. Similarly, in financial matters, there must be a limit to the jurisdiction of the Committee over the private or business dealings of members. If a catering company offered favourable terms to the Club provided that members of the Club used its services for their private weddings or other functions, it could surely not be argued that a member who declined to use the services of that caterer would be subject to disciplinary action (or expulsion from membership) at the hands of the Committee - even if, in consequence, the Club lost the possibility of the favourable terms which had been offered and therefore the conduct could be said to have endangered the interests of the Club. So also, surely, if a member carries on a business competing with certain activities of the Club, that business activity without more could not fall within the jurisdictional remit of the Committee. It may not be possible to draw with precision the line between private conduct which, while it may affect the Club, falls outwith the jurisdiction of the Committee under Rule 9, and conduct which falls within its jurisdiction; but, to my mind, it is not difficult to recognise the distinction in most cases. In most cases, conduct which is itself unobjectionable does not become relevant conduct for the purposes of Rule 9 simply because it comes up against the interests of the Club. In the present case the petitioners were behaving properly and within their rights under the planning system. They objected to the proposal. They had a legitimate interest in doing so. There was nothing vindictive or irrational about their opposition. It was not done to spite the Club. It was done with the aim not of impeding the Club's development but of protecting their own rights and interests. In other words, as is conceded, the conduct and acts of the petitioners were in themselves entirely unobjectionable. They only became the focus of objection from the Committee because the proposal to which the petitioners took exception itself came from the Club. But that is not enough, in my opinion, to render the petitioners' conduct and acts susceptible to the disciplinary jurisdiction of the Committee. [26] This conclusion is sufficient to justify reduction of the decision of the Committee to expel the petitioners. But I should deal briefly with the other matters raised in case they should become relevant in the future. [27] Whatever may have been the position in the past, I consider that it is wrong today to draw a clear line between, for example, on the one hand, trade associations and, on the other, social or sporting clubs; and say that in the former case the Courts will be ready to intervene on procedural matters whereas in the latter they will not. It may be necessary to treat older cases on social clubs with caution, recognising that the nature of a social or sporting club may have altered over the years. For many, such a club is not merely incidental to their lives, it has become central. It is often the hub around which their social and business lives revolve. The subscription is often very considerable. Members of such clubs, depending upon the precise Rules to which they have signed up, are entitled to be treated fairly by those placed in charge of the day to day running of the Club and are entitled to expect a certain amount of procedural formality in important matters such as the taking of disciplinary action. Yuill Irvine is an example of this. I do not take Lord Reed's remarks at the end of paragraph [48] in Crocket to imply any disagreement with Lady Smith's approach in that case. I approach the petitioners' remaining complaints on this basis. [28] I reject the criticism that the Committee failed to distinguish adequately about the issues relevant to the question of "guilt" and those relevant to the disciplinary sanction to be imposed. A fair reading of the Minutes of the Meeting of the Committee on 1 November 2003, when the decision to expel was taken, suggests that the discussion moved very rapidly from the question of "guilt" to that of the appropriate sanction. Although no formal separate vote was taken on "guilt", it seems to me on reading the Minutes that there must have been, in some manner, what was described in argument as "an informal display of unanimity" after the Club Captain, having outlined the complaint against the petitioners, said that he considered that the problem was how the Committee should react to the petitioners' behaviour. I do not consider that any formal vote was required. The discussion that followed, which included matters - such as the financial effect on the Club of the petitioners' opposition to the planning application and the action taken by the petitioners in the Hamilton Sheriff Court - relevant to "sentence" rather than "guilt, appears to me to have taken place in that context. In any event, I am not persuaded that the petitioners have made good their case that irrelevant matters, apart from matters covered by the fundamental challenge which I have already accepted, were taken into account in deciding whether they were guilty of acts or conduct falling within Rule 9. [29] Nor do I consider that there is any force in the complaint that the only choices of punishment put to the Committee were expulsion or suspension. Had members of the Committee thought that some lesser sanction was appropriate they could have said so in the discussion or voted against expulsion and suspension. I also reject the complaint that there was no discussion about mitigating circumstances such as the petitioners' length of membership and the absence of any previous disciplinary problems. All this would have been well known to members of the Committee and would be taken into account by them. It may have been raised but not minuted. The complaint that the punishment appropriate to the first and second petitioners should have been voted on separately, on the ground that only the second petitioner sent the letter of 1 October 2002, seems to me to be wholly without merit, a point driven by formalism at the expense of common sense. The Committee were entitled to take the view that the first and second petitioners, being husband and wife and both opposing the development, should be treated the same even though only one had put a signature to the letter of 1 October 2002. Had members thought otherwise, I have no doubt they could have raised it before or at the time of the vote. I also reject the complaint that expulsion was disproportionate. If, contrary to my opinion, the conduct of the petitioners fell within the purview of the Committee as a disciplinary matter, the sanction to be imposed seems to me to be pre-eminently a matter for them and not for the Court. [30] I should add that had I held against the petitioners thus far, I would have put the case out by order as requested by counsel for the petitioners so that further discussion could take place as to the best way of dealing with the matters raised by Statement 14 of the Petition. This part of the Petition, as I have said, raises questions of procedural fairness which, as I have indicated, are a proper matter for enquiry, though I express no view as to the merits of the particular complaints in this case. However, in view of my decision on the question of jurisdiction, that does not arise. [31] I do not think it is necessary to grant declarator. The reasons for my decision appear from this Opinion. I shall, however, grant the remedy sought at (ii) of Statement 2 of the Petition and reduce the respondents' decision of 1 November 2003 to terminate the petitioners' membership of the first respondents with immediate effect.
