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1. This matter comes before the Court on foot of an Order made on the 23rd October, 1995 directing that a preliminary issue should be tried in this case. This Order was subsequently varied so as to include provision that a second issue be tried as a preliminary issue. The Order of the 23rd October, 1995 as drawn leaves room for some uncertainty as to precisely what issue is to be tried as a preliminary issue and accordingly I believe that the following represents a statement of the issues which the parties require me to determine at this hearing:-

2. It has been agreed by Counsel that the Court will try the first of these issues and postpone argument on the second issue to a later date.

3. The Plaintiff claims to have suffered an injury while playing rugby for Bandon Rugby Club. The relevant facts are as follows.

4. The Bandon Rugby Football Club has been in existence for approximately 140 years. Up to 1979, the Club had no formal structure in as much as it had no constitution or rules. At or about that time, premises were acquired and a decision was taken to apply for a club licence for the sale of intoxicating liquor. Application was made to Cork Constitution Rugby Club and they provided, as a precedent, a copy of their rules. Armed with these rules as adapted and the other formal proofs, Application was made to the Court and the appropriate Order was made for the granting of the certificate under the Registration of Clubs (Ireland) Act, 1904.

5. These rules are headed "Rules as amended at Annual General Meeting, 1979".

6. The Bandon Rugby Football Club continued to operate successfully since that time but the members of the Club have paid virtually no regard to the rules with the exception that various Committees were created and an Annual General Meeting of the Club was held in accordance with Rule 11 for the purpose of receiving reports from the General Committee and a Statement of Accounts from the elected Officers and Committees. Specifically, the procedure prescribed by the rules for the election of members was never followed (as provided by Rule 9). Instead, the Club operated on an informal basis by attracting young people directly onto the pitch, training them and absorbing them into one of the teams. As team members, they were required to pay an annual subscription which was collected by the team captain. However, no action was taken against anybody who failed to pay a subscription.

7. The Plaintiff was born on the 17th August, 1968 and he started to play rugby with the Bandon Rugby Football Club in the season 1982/83. He was found to be a very valuable team member and was promoted to the first team and in the year 1989/90 was elected vice-captain of the first team. Because the captain, Mr. Slattery, sustained an injury the Plaintiff took over as team captain and in his capacity attended Committee meetings and carried out the functions of a team captain. He paid the appropriate subscription in the season 1987/88 and, on the evidence, I am satisfied that he again paid his subscription in the year 1988/89. There is no evidence that he paid for the year 1989/90. In the year 1988/89, the Plaintiff was awarded the title of "Clubman of the Year".

8. The Plaintiff claims that he suffered injuries while playing rugby as a result of the negligence of the Bandon Rugby Football Club either in March 1990 or in April 1990 or on both dates.

9. It is submitted on behalf of the Plaintiff:-

10. On behalf of the Defendants, it is submitted:-

11. I am satisfied that the Bandon Rugby Football Club is correctly described as "an unincorporated association" and I am satisfied that as such the relationship as between members must be regarded as a contractual relationship based upon the rules of the Club.

12. While some doubt exists as to whether the 1979 Rules were in fact ever adopted at a meeting of the Club, I am satisfied that on the balance of probability they were. While undoubtedly members of clubs accept, as their club rules, the provisions which are set out in paragraph 4 of the Registration of Clubs (Ireland) Act, 1904 only for the purpose of becoming eligible to be registered and present such rules as a formal proof in their licensing application, I am nevertheless satisfied that in the present case by reason of the fact that it is clear that various Committees and Officers were established broadly in conformity with the rules, that these rules must have been adopted by the Club but thereafter they were virtually ignored.

13. Being satisfied therefore, as I am, that when the Plaintiff commenced his rugby career with the Bandon Rugby Football Club in the season 1982/83, these rules were already in existence it is necessary to consider whether by participating in the full activities of the Club the Plaintiff acquired membership of the Club.

14. In my view, he did not and could not. Rule 9 of the Rules provides:-

15. While it appears that the first part of Rule 9 refers only to "ordinary members" of the Club and on one interpretation the procedure of nomination and the display of the proposed members names and address in the Club premises, might be deemed not to apply to juvenile members, nevertheless, it is in my view clear beyond doubt that both ordinary members, Juvenile members and all other members must be elected by the General Committee.

16. It is in my view, clear beyond doubt that the only route by which one may join the Club is by election by the General Committee.

17. To hold otherwise would give rise to a situation where the Committee of the Club would have lost all control over affairs of the Club. Members could be assumed into the Club and shed from the Club without the knowledge of the General Committee. The contractual relationship as between members regulated by their acceptance of the General Committee as the regulating authority would be varied without their approval and consent.

18. I am of the view that whatever the status of the Plaintiff might have been from the time that he commenced to play Rugby with them in the season 1982/83 up to the time when he had the accident, as alleged in these proceedings, it was not that of a member of the Bandon Rugby Football Club.

19. I am further satisfied that even if Counsel for the Defendants is correct in saying that it is within the capacity of the universal membership of the Club to set aside the formal election provisions and assume a candidate into the Club as a member, there is no evidence there was any such universal acceptance in this case. Moreover, I am satisfied that no question of estoppel can arise in the circumstances of the case as the mere act of holding ones self out as a member, without adverse consequence to a third party, cannot give rise to an estoppel.

20. Even if the views as expressed above should be found to be incorrect, a further fundamental point arises. While I am satisfied that there is evidence, that I accept, that the Plaintiff paid a subscription for the seasons 1987/88 and again 1988/89, I am satisfied that any consequences as would flow from the payment of that subscription, in that it could have been construed as rendering him a member of the Club, ceased on the third Friday of May, 1989 being the date upon which the Annual General Meeting was held and thereafter I am satisfied in accordance with Rule 8 of the Rules his membership lapsed. I do not construe the rule as requiring that notification of the fact is to be given before the provisions of the rule come into effect. In my view, a member's membership lapses when the subscription remains unpaid on the date of the Annual General Meeting.

21. On that basis also I am satisfied that the Plaintiff was on the date of his alleged accident no longer a member of the Club if he ever was.

22. Accordingly, I answer the first query "No".