Codona v Taylor & Anor For Judicial Review [2001] ScotCS 124 (25 May 2001)

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[1] These two petitions for judicial review have been brought in order to challenge decisions of the Appeals Tribunal - "the Tribunal" - of the Showmen's Guild of Great Britain - "the Guild" - which is a voluntary association registered as an employers association under Section 2 of the Trade Union and Labour Relations (Consolidation) Act 1992. The decision of the Tribunal in the case of the petitioner Mr Codona and the decision given in the case of the petitioners Messrs Taylor were both delivered by the Tribunal on the same day, 7 June 2000, and deal with largely similar issues. For that reason both petitions were heard conjointly at a first hearing, the petitioners having a single representation. The only compearing respondent is the Guild. All of the petitioners are members of the Guild.

[2] The terms of membership of the Guild are governed firstly by the rules of the Guild itself. A print of the rules is to be found in the Guild's year book a copy of which is number 7/3 of process in the Taylor petition. Organically, the Guild has a Central Council to conduct some of its business but rule 13 provides that: "For the purposes of more efficient organisation and administration the Guild shall be divided into ten Sections which shall respectively embrace the following areas:" One of the areas thereafter listed is Section 10. It is described elsewhere as the Scottish Section but its territory extends beyond Scotland to embrace Cumberland and Westmoreland. It is not disputed that the petitioners are members of the Scottish Section. The rules further provide for the election of a Section Committee to carry on the section business. Sub-rule (o) of rule 14 confers on the Section Committee powers to make bye-laws, subject to those receiving the approval of the Central Council before entering into force.

[3] At base of the issues raised before the Tribunal are the provisions of the rules relating to what is termed "an established right of tenure". For present purposes the leading provision is that contained in rule 23(a)(1)(a) which states:

The possibility envisaged in the first set of brackets of a Section Committee reducing the test for acquisition of "an established right of tenure" to occupation in the immediately preceding year, rather than the two preceding years, was acted upon by the Scottish Section which by Bye-law 9(a) as amended stipulated:

The exception envisaged in brackets of "other than on the basis of one year only" is the subject of further provision in Bye-law 24(a) of the Scottish Section which imposes this rule:

[4] It appears that each of the petitioners operates a fairground in the sense that, for the limited period of the fair, the petitioner acquires a right of occupancy of the whole area of the fairground and thereafter grants sub-rights of occupancy to individual showmen wishing to occupy a stance at the fair. As such operators the petitioners fall into the category of persons described in the rules and bye-laws as a "Lessee", the members taking up the sub-rights of occupancy being referred to as "tenants". It further appears that what eventually prompted each of the current disputes was a refusal by each of the petitioners to allow another member of the Guild to participate in the respective fair for a second immediately successive year. Put shortly the ground of the refusal was the contention that the terms of that other member's previous occupation was on a "one year only" basis. In response to that contention - which was not accepted by the complaining other member - it was contended by that other member that in any event the Section Committee had not given consent to such a "one year only" tenancy. It was not disputed that the Section Committee had not given consent to letting on that basis.

[5] Rule 17(a) of the Guild entitles a member to make a complaint against another member, the complaint being made to the Section Committee. Rule 17 contains detailed provisions respecting the manner and time within which such a complaint must be made and the circumstances in which the requirements of the rule may be relaxed but for present purposes nothing turns on those detailed provisions. Rule 18 then provides as follows:

[6] Rule 20 deals with appeals. Put briefly, the appeal route is firstly to the Appeals Committee of the Central Council. Rule 20(c) provides that the "right of appeal shall be by way of a re-hearing". From the Appeals Committee of the Central Council an appeal then lies by way of referral to the Tribunal. Rule 20(m)(o) provides for a case referred to the Tribunal to be dealt with by way of re-hearing and provides for, among other matters, the examination and cross-examination of witnesses. Parties may be legally represented. Rule 20(m)(2) deals with the constitution of the Tribunal. Put shortly, it stipulates that the Tribunal shall consist of a Chairman who shall be a Barrister of not less than seven years' standing and two Assessors being Past Presidents of the Guild or members of its Management Committee.

[7] In the present cases the two other members of the Guild aggrieved by the respective petitioners' refusal to grant a right of occupancy each made a complaint in due course held admissible under rule 17 to the Scottish Section Committee. The complaints were upheld; the petitioners were respectively ordered to reinstate the complainer's position at the fair; and certain fines were imposed on the petitioners respectively. The petitioners each appealed to the Appeals Committee of the Central Council but, apart from some adjustment of the amount of the fines, were unsuccessful before that body. They thereafter appealed to the Tribunal. The outcome of the proceedings before the Tribunal was failure from the petitioners' standpoint save that Messrs Taylor's fine was subject to further downward adjustment. It will be necessary to revert more closely to the terms of the letters issued on behalf of the Tribunal communicating their decision but, put very shortly, the Tribunal apparently did not accept the contention that the previous attendance by the complaining member at the fairs in question was on a "one year only" basis and also held that, in any event, even if the agreements had been on a "one year only" basis they were not effective to prevent the complainers acquiring an established right of tenure since they did not have the approval of the Section Committee.

[8] Although each petition challenges the respective Tribunal decision on, among others, the ground that it involved an unlawful restraint on trade and was reached in breach of the rules of natural justice, at the outset of the hearing senior counsel for the petitioners intimated that the petitioners did not insist on either of those grounds. The remaining grounds of repeal may be at this stage conveniently taken from what is averred in the Codona petition in statements 8 and 9, namely:

[9] Although there are some minor differences between the grounds in the Codona petition and those in the Taylor petition, the grounds in the latter are in large measure in similar terms and it is not necessary to set them out in detail.

[10] Although disputing that the Tribunal had fallen into any error, Mr Sandison, who appeared for the respondents, submitted that no relevant basis had been set out in the petitions whereon the Court could properly reduce the Tribunal's decisions on the basis of an alleged error in law and the question of the extent to which an error of law on the part of a domestic tribunal might form a proper ground for the exercise of the Court's supervisory jurisdiction took up much of the discussion at the first hearing.

[11] Counsel for the respondents observed at the outset that by joining the association the petitioners bound themselves in a question with the Guild and its members to observe the rules of the Guild and the bye-laws of its sections. Further, the petitioners also bound themselves to submit all disputes on the proper scope and application of the domestic law, that is to say the rules and the bye-laws, to the final determination of the adjudicatory body set up by the association in its rules. Counsel went on to submit that in the case of a voluntary association whose rules provide for a final determination of disputes between members by such a domestic tribunal the scope of the supervisory jurisdiction of the Court of Session was essentially limited to three situations, namely where - (i) the domestic tribunal had acted in excess of or beyond its proper jurisdiction; or (ii) the domestic tribunal had failed to exercise its jurisdiction or; (iii) the domestic tribunal had failed to observe the rules of natural justice in a serious way. More particularly, an alleged error of law did not constitute a proper ground for the exercise of the supervisory jurisdiction unless the error alleged were one going to excess of jurisdiction or failure to exercise jurisdiction. In support of that proposition counsel for the respondents referred firstly to Clyde & Edwards on Judicial Review, para. 9-08 in which the authors equiparated the position of domestic tribunals of voluntary associations with the domestic tribunals of voluntary churches. Counsel then referred to the discussion of the latter in McDonald v Burns 1940 SC 376, 382. In delivering the Opinion of the Court, the Lord Justice Clerk had referred to the observations of Lord McLaren in Skerratt v Oliver [(1896) 23R. 468] that such ecclesiastical tribunals were "protected from review in the same degree as the proceedings as arbiters are protected". The merits of an arbiter's decision are not reviewable on ground of error of law: Holmes Oil Co v Pumpherston Oil Co (1891) 18R. (H.L.) 52, Shanks & McEwan (Contractors) Limited v Mifflin Construction Limited 1993 S.L.T. 1124, 1130D. The same applied respecting domestic tribunals which had similar, arbitral functions: O'Neill v Scottish Joint Negotiating Committee 1987 S.L.T. 648, 651. Counsel further submitted that while that principle applied to intra-jurisdictional error in the interpretation or application of the general law, it applied with yet greater force where the alleged error related to the domestic law of the association. In that regard counsel referred also to R. v Hull University Visitor, ex parte Page [1993] AC 682. Assuming the errors of law alleged against the Tribunal to be errors, it was evident that they did not constitute errors affecting the jurisdiction of the Tribunal but were errors relating to the interpretation or application of the domestic rules which the Tribunal was called upon to interpret and apply, its decision being agreed to be final. The petition, so far as alleging error of law was accordingly irrelevant.

[12] In response to this branch of the argument Mr Bell for the petitioners submitted that McDonald v Burns was truly concerned with religious bodies. What was said in the opinions in that case did not justify the respondent's assertion that the Guild might effectively misapply its own rules. Counsel went on to submit that if a domestic tribunal reached a decision which involved any misconstruction or any misinterpretation of either the rules of the association or the general law that constituted an error of law which the Court would review and correct. The error need not be an error by the Tribunal as to the extent of its powers or jurisdiction. Judicial review was an appropriate way of reviewing the acts of such a private, voluntary association. Counsel then referred to St Johnstone Football Club Limited v Scottish Football Association 1965 S.L.T. 171, in which the rules of the association in question also contained a finality clause; Brown v Edinburgh Labour Party 1995 S.L.T. 985; Dundee United Football Co Limited v Scottish Football Association 1998 S.L.T. 1244 and certain unreported decisions namely Ferguson, Petitioner, Casey v Edinburgh Airport and McDonald v St Andrews Ambulance Association. In elaboration of the proposition that any error of law justified the Court intervening in a decision of a domestic tribunal Mr Bell then referred to Lee v The Showmen's Guild [1952] 2 Q.B. 329 in which a decision of the Guild's Committee to fine a member under the then rule 17 on the ground that the member had breached the then rule 15 was set aside on the basis of what counsel said was an error of law in the construction of the latter rule. Lee had been applied in Baker v George [1954] 2 A.E.R. 552 and its approach had been followed by the Lord Ordinary in Partington v N.A.L.G.O. 1981 S.L.T. 184. The rationale was that a member could not be bound by a wrong decision on the law. His contract of membership of an association was to the effect that the tribunal would only apply the rules and the law in a correct legal manner. Turning to the case of Page and while recognising that the majority decision had held that the court in England could not interfere with a decision by the visitor on the ground of an error of law within the visitor's jurisdiction, counsel for the petitioners submitted that the decision proceeded on the view that the finality of the visitor's judgment had been recognised for a considerable time. Part of the reasoning also stemmed, said counsel, from the eleemosynary nature of the university. However, the speeches in Page acknowledged that following the decision in Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147, the drawing of distinctions between errors of law going to the jurisdiction of the Tribunal and errors of law committed within jurisdiction was no longer appropriate. Particular reference was made to the speech of Lord Browne-Wilkinson at 701F. Accordingly it could generally be said that if an inferior tribunal makes an error of law it will in doing so have asked itself the wrong question and thus have gone outwith its powers. The effect of subsequent English cases was discussed in Clyde & Edwards, paragraph 22-20ff in which the authors advocated the adoption of the English approach towards the abolition of the distinction between intra and extra jurisdictional error of law.

[13] It is, I think, apparent that the concept and classification of errors of law and the related question of the extent to which the supervisory jurisdiction may be available to correct such errors are matters of some difficulty which has provoked discussion and debate for some time. The question may of course arise in the context of a variety of decision taking bodies. Counsel for the respondents was careful to confine his submissions on this matter to the position of a domestic tribunal of a voluntary association whose decision is expressed to be final by the rules of the association and his submission was that where a decision is confided to the final adjudication of an arbitral body such as a domestic tribunal of a voluntary association an error of law not going to the jurisdiction of the arbitral body would not entitle the Court to interfere. It is, I think, well established that in Scotland decisions of arbiters involving error of law other than jurisdictional error of law are protected from being overturned by means of judicial review and, as was indicated in the authorities to which I was referred by counsel for the respondent there is an analogy between an ordinary private arbitration and the rules of a voluntary association which ab ante sets up an adjudicatory tribunal to resolve disputes between members concerning the affairs of the association.

[14] As I understood it, counsel for the petitioners did not contend that the error of law alleged in the present cases was an error which satisfied what might be described as the traditional approach of error going to the jurisdiction of the tribunal. Rather, the contention was that any error of law was sufficient. In the course of advancing that submission counsel for the petitioners referred to the two football club cases (St. Johnstone and Dundee United), Brown v The Edinburgh Labour Party and the unreported decisions which I have already mentioned. However, these cases, insofar as involving proceedings before a domestic tribunal, are cases involving alleged breaches of natural justice or the absence of reasons and do not concern the question of error of law. To that extent they are of little real assistance.

[15] Counsel for the petitioners also placed reliance on Lee v The Showmen's Guild. Although at first reading the case might appear to be helpful to the petitioners I am ultimately not persuaded that it really is. As counsel for the respondents pointed out, the decision took place against the general background of English law to the effect that decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. But, that apart, I also think that there is some substance in Mr Sandison's analysis of Lee to the effect that the ratio of the decision was not truly one of mere error of law in the committee's decision but an error going to the competence of the committee to do what it did. Thus, Somervell L.J. at 340 proceeded on the basis that there was no evidential material available upon which the committee could reach its decision with the result that it had acted ultra vires. Mr Sandison drew attention to among others the passage in the judgment of Denning L.J. at 344 which reads:

On the other hand it must be said that at 341 his Lordship expressed the view - consistent no doubt with my understanding of the law in England relating to any arbitrator's decision - that while members of an association may make the domestic tribunal the final arbiter on questions of fact "they cannot make it the final artiber on questions of law". Mr Sandison also pointed out that Romer L.J., at the outset of his judgment (342) appears to view the question raised as involving the scope of the committee's jurisdiction, but eventually may have found for the plaintiff on the basis of irrationality. It may be added that, perhaps ironically, English law apparently no longer treats a decision of the Tribunal as being subject to judicial review on the basis that its decisions lack the necessary "public law" - see unreported judgment of Tucker J. in R. v The Showmen's Guild of Great Britain, ex parte Print to which I was referred by counsel for the respondents who joined to that reference a further reference to its sequel in the unreported decision of Butterfield J. dated 27 October 1999 in which, among others, the observation was made that the case of Lee ought now to be confined to its particular facts.

[16] Counsel for the petitioner also brought to my attention the discussion in Clyde & Edwards at para. 22.20 of certain developments in England subsequent to Anisminic suggesting that the distinction between error within jurisdiction and error going to jurisdiction had been discarded. However, it is to be noted that in the paragraph concluding the discussion (22.24) the authors, appear to recognise that the disappearance or blurring of the distinction or categorisation is not to be seen as universal and that in certain contexts it may be important. Thus, having stated that the problem should not be approached by consideration of the vires or jurisdiction of the body in question they write:

[17] It appears to me that, perhaps in some contrast to the exercise by a public official or body of an administrative power, where parties have by agreement conferred on a body the power of interpretation of the law and its application to their dispute and have agreed to accept the determination as final that agreement on finality is a matter to be respected and provides reason for the court's not interfering with an intra-jurisdictional error law. I was not referred, to and have myself not found, any passage in Clyde & Edwards which clearly suggests that any error of law on the part of an arbitral body established conventionally will open up its decision to judicial review. I would also agree with the observation of counsel for the respondent that in so far as the domestic tribunal is set up as part of the rules which themselves constitute the association there is an analogy with the establishment of a visitor jurisdiction in an eleemosynary institution.

[18] Counsel for the petitioner also placed some weight on the fact that in Partington the Lord Ordinary had treated Lee as authority for intervening on the basis of a mere misconstruction of law. However it would appear from the narration of submissions that Lee, cited by the defending trade union, was not the subject of argument and no other authority on the scope of judicial review of domestic tribunals was cited. It is also to be noted that the Lord Ordinary was also of the view that the Court should be slow to interfere in trade union affairs except in special and unusual circumstances (page 189).

[19] In short, in these circumstances I am not persuaded that the distinction between errors of law going fundamentally to jurisdiction and other errors of law which are intra jurisdiction is no longer to be applied, at least in cases in which private citizens have, by contract, conferred a power of interpretation of the law - whether general or domestic to their association - on an arbitral or internal disciplinary body and have agreed to accept that body's decision as final.

[20] As I understood matters, counsel for the petitioners did not contend that the alleged errors of law upon which the petitioners found were errors of law going to jurisdiction in that sense, but lest I be wrong either in that understanding or in my conclusion on the general question of the scope for judicial intervention in the present case it is appropriate to examine the alleged errors more closely.

[21] Since examination of the terms of the decisions also involves a consideration of the adequacy of their reasoning, which was the subject of an alternative ground of criticism, it is convenient at this point to set out the legal submissions on that other branch of the argument although in the event I did not discern much opposition between the two sides of the bar.

[22] Counsel for the respondents adopted the approach that in view of the nature and constitution of the Tribunal it would not be appropriate for him to contend that there was no obligation on it to give reasons for its decision. The issue therefore related solely to what might be required to constitute adequate reasons in the case of such a domestic tribunal. Reference was made to what had been said in two cases before the Privy Council involving appeals from decisions of committees of the General Medical Council, namely Marta Stefan v General Medical Council [1999] 1 WLR 1293 and the as yet unreported decision of 11 October 2000 in the case of Selvanatahan v The General Medical Council. In the former, in giving the judgment of the Privy Council and having reached a conclusion on the question whether there be an obligation to give reasons, Lord Clyde concluded (1304A) that there was an "obligation on the Committee to give at least a short statement of the reasons for their decision". He went on to say: "The extent and substance of the reasons must depend on the circumstances. They need not be elaborate nor lengthy. But they should be such as to tell the parties in broad terms why the decision was reached.". In Selvanathan Lord Hope of Craighead in delivering the Privy Council's opinion and having observed that the Professional Conduct Committee of the General Medical Council required to reach a view as a committee, without provision for dissent, stated:

Counsel for the petitioner, for their part, referred to Stefan and in the event, as already indicated, I did not understand counsel to be much divided on the conclusion of law that the reasons, if required, might be shortly stated respecting the issues contested before the tribunal and in judging of their adequacy prejudice to the addressee was important.

The material parts of the decision letter issued on behalf of the Tribunal by the General Secretary of the Guild are in these terms:

[24] In elaboration of the statement in paragraph 8 of the petition that the Tribunal had failed to give reasons for its decision senior counsel for the petitioners criticised the reasons as being "illogical". He said that in the second sentence quoted above the Tribunal appeared to acknowledge the existence of a verbal agreement but to deny effect to it by reason of its being verbal. It was further submitted that the Tribunal was wrong to conclude that the receipts for rent were sham but even if they were sham, as the Tribunal recorded Mr Codona's having conceded, that would also reflect on the complainer's integrity. In these respects reference was made to the minutes of the earlier hearing before the Appeals Committee (6/2 of process) from which it appeared that at that stage Mr Codona contended that the rent receipts had been issued, over the years, indicating a "one year only" basis. There was also in play at the hearing an alleged oral agreement or understanding between Mr Codona and the complainer to the effect that the complainer would give up his entitlement to the ground should Mr Codona require it in future for his sons' use.

[25] For his part counsel for the respondents submitted that in those circumstances it was evident that the Tribunal recognised that the oral agreement to give up the ground at a future date should it be required for the petitioner's sons' use was one which might be enforceable in the civil courts but, in terms of the Guild rules did not avoid the effect under those rules of the prior occupancy giving rise to an established right of tenure. Insofar as the petitioner had relied on the terms of the rent receipts as indicating that the tenancy was a "one year only" tenancy it was clear from the terms of the letter that the Tribunal rejected that contention by reason of the petitioner's concession that they were sham and also because of the inconsistency between the creation of an annual tenure and the reliance on an oral agreement to the effect that the complainer would, if asked, give up his entitlement to established right.

[26] I think counsel for the respondents is correct in his submission that those two paragraphs may be read in that fashion. One does not have from the Tribunal any real exposition of the contentions and arguments before it, with the consequence that to a third party reader unaware of the issues and lacking acquaintanceship with the internal rules, the letter may indeed appear to lack the clarity which might ideally be expected of a tribunal with a legally qualified chairman whose skills are available for the redaction of its decisions. However with the benefit of such understanding of the nature of the dispute between the petitioners and the complaining member as one derives from the minutes of the appeals committee hearing, the reading given to it by Mr Sandison appears reasonably plain and is not in my view an illogical one.

[27] Insofar as any question of error of law is concerned, granted that the Tribunal was referring to the contention that at some earlier point in the relationship between Mr Codona and the complainer an oral agreement had been reached whereby the complainer undertook to give up his established rights should Mr Codona require the ground for his sons, I have difficulty in seeing that the Tribunal committed any error of law. The oral agreement apparently contended for effectively presupposes the existence of an established right of tenure. It may be that, as the Tribunal indicates, that agreement may be enforceable elsewhere. But it did not affect the existence of established right so far as the rules of the Guild were concerned. Some criticism was made by senior counsel for the petitioner in the opening presentation of the petition of the use of the word "presumption". Counsel for the respondents recognise that in legal terms "presumption" might not be, to borrow his phrase, the mot juste but in my view the matter is simply one of the employment of not wholly felicitous language and the point is without real substance.

[28] I would further record however that at the resumed diet of debate counsel for the petitioners submitted that the reference to a verbal agreement to restore the ground on demand was simply inept. It was unintelligible in the context in which all that was being discussed was the effect of a "one year only" agreement. It might be that the Tribunal had misunderstood the nature of the agreement which was truly being relied upon. Counsel went on to suggest that such being the true nature of the agreement contended for it was wrong for the Tribunal to have concluded that the agreement was not such because the receipts were "sham".

[29] It is not evident to me how such errors, were they to exist, may properly be described as errors of law. However that may be, the ultimate turning point of the Tribunal's decision proceeds on the assumption that the preceding part of their decision is wrong and that, by contrast, and favourable to the petitioner, the letting to the complaining member had indeed been on an agreed "one year only" basis. The Tribunal concluded, on that favourable assumption, that the petitioner nonetheless failed since a letting on such a basis had not received the consent of the Section Committee as required by bye-law 24 and accordingly such a letting would not evade the Guild rules conferring established right.

[30] It is that conclusion which is primarily averred in the petition to be the error of law vitiating the decision. As I understood it, the point is simply this. Whereas rule 23(a)(1)(a) refers to a member "who has held and occupied ground and/or a particular position at a Fair ..." and whereas bye-law 9(a) of the Scottish Section refers to a member as a tenant having attended "and had ground or position in his own name at the same Fair the previous year (other than on a basis of one year only) he shall be considered to have established right to such ground or position", one finds that bye-law 24(a) stipulates that "no Lessee shall be permitted to let ground at any fair or carnival on the basis of 'one year only'" and omits the words "or position". Consequently, so ran the argument for the petitioners, an agreement to let "a position" at a fair on a one year only basis did not require consent, whereas an agreement to let "ground" on such a basis did.

[31] Counsel for the petitioners submitted that the domestic rules of the Guild thus drew a distinction between "ground" and "position". The nature of that distinction suggested by counsel was simply that a grant of occupation of "ground" gave an entitlement to some area within the fairground which was not precisely fixed in advance whereas a grant of occupation of "position" implied the right to occupy a particular pre-agreed "ground" within the fairground.

[32] It is not evident from the minutes of the proceedings before the Appeals Committee of the Central Counsel or from the decision letter issued on behalf of the Tribunal that this somewhat subtle distinction was foremost, or even present, in the minds of those compearing before those bodies. Insofar as the minutes of proceedings before the Appeals Committee are concerned, it would appear that the terms are used virtually interchangeably by the participants. As I understood matters, counsel for the petitioners accepted that the distinction now claimed had not really been argued before either instance.

[33] Counsel for the respondents submitted that the distinction, such as it might be, was without practical content in the present case. An agreement to give a "position" necessarily implied a letting of "ground" and there was no logical reason wherefor a tenancy on an annual basis of the latter, but not the former, should require consent of the Section Committee. For his part, counsel for the petitioners was unable to suggest any practical or policy reason for the making of such a distinction in terms of the granting of consent to annual tenancy.

[34] I have to say that, irrespective of the scope of the supervisory jurisdiction of the Court of Session, I am not persuaded that the Tribunal's decision was vitiated by this supposed error of law. The rules and the section bye-laws are of course the internal rules of a voluntary association. Those drafting them doubtlessly do not have the particular professional skills of parliamentary draftsmen and in my opinion it would not be appropriate to subject them to the same close standard of textual examination as might be appropriate in the case of an Act of the legislature. A mere perusal of the yearbook suggests the rules to have grown and been expanded and amended over the years, the adaptations no doubt having been affected ad hoc and perhaps not always close regard to the precise text of other provisions of the rules. I was not pointed in the direction of any provisions within the rules or bye-laws wherein a clear distinction is drawn between the letting of ground and the letting of a position. Neither word is defined in the Interpretation rule (Rule 38). As I have already mentioned, counsel for the petitioners was unable to suggest any practical or logical reason for the drawing of such a distinction in bye-law 24 of the Scottish Section. Accordingly I am not persuaded that the omission of the words "or position" in bye-law 24 is of any intended materiality, particularly since a let of "position" must of course encompass a let of an area of ground on the fairground.

[35] More importantly, this alleged error of law is not, in my opinion, an error of law which could be described as going to the jurisdiction of the Tribunal. Assuming them ever to have been truly live, the issues were whether in the retrospective presentation for the petitioners the complaining member had right to "ground" rather than "position" and whether the requirement of consent to a one year only letting applied to the arrangements in question. In my view these are matters well falling within the field of expertise of the Tribunal as constituted under the rules and upon which the rules provide for finality to be given to the Tribunal's decision. Having regard to the nature of those issues and the composition of the Tribunal I do not consider that it would be within the scope of the supervisory jurisdiction of the Court of Session to intervene on the ground that the Tribunal had committed an error law either in its categorisation of the arrangement or its conclusions in respect of the interpretation of the rules.

[36] Leaving aside the question of the distinction between the letting of "ground" and the letting of a "position" counsel for the petitioners further contended that the Tribunal had committed an error of law in regard to the consequences which it drew from the absence of consent. As I understood it, the contention was that by denying effect to the "one year only" stipulation in the agreement the Tribunal had wrongly treated the agreement as a nullity. Neither under the rules, nor under the general law, would the lack of Section consent render the contract void. An agreement to allow occupation of ground for "one year only" was not unlawful and was therefore not a nullity. In this general regard reference was made to Cuthbertson v Lowes (1870) 8M. 1073; Morrison v Murdoch 1997 S.L.T. 381 and Anderton v Rowland 1999 T.L.R. 751.

[37] Counsel for the respondents submitted in effect that this contention was quite misconceived. The Tribunal had not held, or purported to hold, that if there were agreement on a "one year only" basis the absence of section consent rendered it null and void. The Tribunal was simply concerned with the Guild's internal rules and had not made any pronouncement on the ordinary civil law of contract. All that it had said was that if the consequences in terms of the internal rules of the Guild relating to established right were to be avoided by the stipulation of "one year only" the inclusion of that stipulation in the tenancy contract between the two members in question required to have such consent.

[38] In my opinion counsel for the respondents is correct in those submissions. It appears to me that the suggestion that the Tribunal held the agreement to be a nullity in law involves a misapprehension of the terms and nature of the Tribunal's decision, which, in my view, was simply to the effect that in order to avoid the consequences of the Guild's rules on the creation of established right through the derogation of a "one year only" agreement sectional consent was required for that derogation.

[39] In the Taylor case a question arose before the Tribunal (and the lower instances) whether the complaint against the petitioners had been made timeously. The decision letter of 7 June 2000 deals firstly with that matter and reaches a decision adverse to the petitioner. The decision letter then continues thus:

[40] It is of course evident that there is no real exposition given of any particular reasons for the Tribunal's not accepting the existence of any agreement for annual tenure. Counsel for the respondents stated that at the hearing of the appeal before the Tribunal the second named of the second petitioners (Mr Douglas Taylor), who presented the appeal, contended that the complaint had been made out of time. That was his principal contention and Mr Douglas Taylor indicated that if he were unsuccessful in that contention he no longer disputed that the agreement between Messrs Taylor and the complainer was not a "one year only" agreement and sought only to challenge the amount of the penalties imposed on Messrs Taylor. That account of matters is consistent with the terms of the affidavit (No. 7/2 of process) from Mr Alan McPherson who attended the hearing before the Tribunal in his capacity as solicitor for the complaining member. It may also be that the second sentence in the passage quoted above is an attempt to record the same concession by Mr Douglas Taylor. It is otherwise hard to give that sentence a different content. Counsel for the petitioner stated however that his understanding of matters was that no such concession was made.

[41] Be that as it may, the absence of any discussion of the reason for not accepting the existence of an agreement for "one year only" is not, in my view, a ground for reduction of the decision of the Tribunal, if only for the simple reason that the absence of reasons for the rejection of that assertion (assuming it not to have been departed from) does not result in any prejudice to the petitioners, Messrs Taylor. That absence of material prejudice arises because, as the Tribunal goes on to say, even if there were such an agreement it would not avail the petitioners since it was not sanctioned by the Scottish Section. For the reasons which I have already discussed in connection with the Codona decision I do not consider that finding to involve any error of law, let alone an error of law justifying interference in the decision of this Tribunal.

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