Smith, Re Application for Judicial Review [2007] ScotCS CSOH

Opinion of Lord Macphail

in the case of

Lindsay Smith, Petitioner

31 July 2007

Judicial review is a remedy whereby the Court of Session may review and if necessary rectify the decision of inferior courts, tribunals and other public officers and authorities where no other form of appeal is available. The Committee of the Nairn Golf Club ("the Club") upheld a complaint of cheating against a member and suspended his membership of the Club. Thereafter the member sought judicial review of this decision. In his judgment, Lord Macphail emphasised that judicial review of the decision was neither an appeal nor a rehearing and that the Court would not consider whether the decisions were correct but would rule only upon the legality of the manner in which they were reached. The Club were entitled to investigate the complaint in accordance with the rules of the Club and the decision-making process of the Committee was in accordance with the requirements of natural justice.

This is a petition for judicial review of decisions by the Committee of the Club to uphold a complaint against Mr Lindsay Smith and suspend him from membership of the Club. A member of the Club, Mr Alex Scott, complained to the Captain of the Club that Mr Smith had cheated in a match play competition on 12 September 2006 by wrongly marking his ball, in front of his ball instead of behind it, on the seventh and tenth greens. The Committee of the Club upheld Mr Scott's complaint on 25 January 2007, and on 7 March 2007 they decided to suspend Mr Smith from exercising his privileges as a member of the Club for a period of 12 months. Mr Smith applied to the Court of Session for judicial review of these decisions.

Giving his judgment, Lord Macphail emphasised that judicial review was neither an appeal nor a rehearing. The Court would not consider whether the decisions were correct but would rule only upon the legality of the manner in which they were reached.

Mr Smith's arguments were focused upon the decision to uphold the complaint. He maintained, first, that the Committee had had no jurisdiction to rule upon the complaint. He submitted that Mr Scott should have made a claim at the time, in accordance with rule 2-5 of the Rules of Golf, and that the Committee could not consider his complaint because he had not done so. Lord Macphail rejected this argument, holding that the Committee were not adjudicating on a claim under rule 2-5 of the Rules of Golf, but were making an investigation under rule 42 of the rules of the Club. The issues were whether Mr Smith had behaved as alleged; if so, whether his conduct endangered the character, interests or good order of the Club; and, if the Committee took the view that it did, whether he should be suspended from membership.

Secondly, Mr Smith argued that the decision-making process the Committee adopted had not been in accordance with the requirements of natural justice, for four reasons.

First, he claimed that the Club had failed to identify the charge against him. Lord Macphail held that the charge was a plain allegation of cheating, of which Mr Smith had had fair notice.

Next, Mr Smith founded on the fact that the Committee had before them three e-mails from Mr Scott which had not been disclosed to him. Lord Macphail held that the only matter in the e-mails on which Mr Smith's counsel founded was irrelevant to the issues before the Committee, and disclosure of it had therefore been unnecessary.

Mr Smith also founded on the fact that the Committee had dealt with the complaint on the basis of a letter from Mr Scott and written representations by Mr Smith's solicitors, instead of by questioning Mr Scott and Mr Smith and testing their evidence. Lord Macphail pointed out that the Committee had taken pains to devise a procedure which would be fair, and had proposed that Mr Scott and Mr Smith should attend the meeting, give their versions of events without interruption and then answer questions. Lord Macphail described these proposals as "eminently sensible". The Committee had been content to allow Mr Smith's solicitor to attend the meeting, but had not wished him to speak on Mr Smith's behalf. Mr Smith therefore chose to make representations in writing, as he was entitled to do under the Club rules. Lord Macphail held that Mr Smith could not complain about the procedure adopted. The Committee had given him an opportunity to be heard, and he had not taken it. The Committee had therefore proceeded under the alternative method provided for by the rules, which Mr Smith had selected. Their conclusion that Mr Smith had engaged in conduct which endangered the character, interests or good order of the Club had been a matter peculiarly within their province, and it could not reasonably be criticised as manifestly absurd.

Finally, Lord Macphail rejected a submission for Mr Smith that an adverse inference should be taken from the facts that the Committee did not give reasons and that there was no right of appeal. His Lordship held that in the circumstances it could not reasonably be said that fairness required the giving of reasons or the provision of a right of appeal.

Lord Macphail therefore refused the petition. The question of expenses was reserved.

OUTER HOUSE, COURT OF SESSION

[2007] CSOH 136

P1204/07

OPINION OF LORD MACPHAIL

in the Petition of

LINDSAY SMITH

Petitioner;

for

Judicial review of a Decision by the Committee of The Nairn Golf Club

________________

Petitioner: Logan; Turcan Connell

Respondents: Barne; Drummond Miller

31 July 2007

Introduction

[1] This is a petition for judicial review of decisions by the Committee of The Nairn Golf Club ("the Club") to uphold a complaint against the petitioner and suspend him from membership of the Club for a period of twelve months. The Club, its office-bearers and certain other members who are representatives of the Committee of the Club have been called as respondents and have lodged answers. I have now heard counsel for the petitioner and for the respondents at the first hearing of the petition.

[2 ] It cannot be emphasised sufficiently that judicial review is neither an appeal nor a rehearing. It is an exercise of the supervisory jurisdiction of the Court. It is available "not to provide machinery for an appeal, but to ensure that the decision maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. It is not competent for the court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted." (West v Secretary of State for Scotland 1992 SC 385, Lord President Hope at page 413.) This Opinion, accordingly, will not consider the question whether the decisions to uphold the complaint and to suspend the petitioner were correct: the Court will not concern itself with the merits of the decisions but only with the manner in which they were reached, and will rule only upon the legality of the decisions and not upon their correctness.

[3] It is common ground between the parties that the relationship between the members of the Club is primarily contractual in nature, and that any member of the Club who considers himself or herself aggrieved by a decision of the Committee, acting on behalf of the members as a whole, may in a matter such as this apply to this Court for judicial review of the decision. It is also not disputed that the Committee on whom the decision-making power is conferred "exercise a limited authority or jurisdiction"; and 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." (Crocket v Tantallon Golf Club [2005] CSOH 37, 2005 SLT 663 at paragraphs 29-31; see also Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386; Wiles v Bothwell Castle Golf Club [2005] CSOH 108, 2005 SLT 785). In the present case the petitioner maintains (1) that the Committee had no jurisdiction to rule upon the complaint against him; and (2) that the decision-making process they adopted was not in accordance with the requirements of natural justice. His arguments were focused upon the decision to uphold the complaint.

The facts
[4] On 12 September 2006 the petitioner took part in a match play competition at the Club which was organised by the Match and Handicap Committee of the Club. His opponent was a Mr Alex Scott. On the seventh green, and again on the tenth green, the petitioner marked his ball, that is, he placed a marker on the green and lifted his ball to enable Mr Scott to putt, with a view to replacing his ball on the site of the marker when it was his own turn to putt. At the tenth hole Mr Scott told the petitioner that he had marked his ball wrongly by placing the marker in front of his ball so that, when he replaced his ball on the green, it was closer to the hole than it had been when he picked it up. Later, Mr Scott told the petitioner he had also wrongly marked his ball on the seventh green. The petitioner disagreed. Mr Scott did not pursuer the matter on that day, either by making a claim to the Match and Handicap Committee or in any other way.

[5 ] On the following day, 13 September 2006, however, there was an exchange of e-mails between the petitioner and Mr Scott, followed by a meeting between the petitioner, Mr Scott, Mr David Corstorphine (the Club Secretary) and a Mr John Holmes, at which Mr Scott repeated his allegations that the petitioner had wrongly marked his ball on the seventh and tenth greens. On 16 September 2006 Mr Scott repeated the allegations in writing in a letter to Mr Harry Sinclair, the Captain of the Club (nos 6/17 and 7/5/2 of process). The Club Secretary wrote to the petitioner on 10 October 2006 (no 6/3 of process) advising him that Mr Scott had done so.

[6 ] Mr Sinclair then wrote to the petitioner a letter dated 23 October 2006 (no 6/4 of process) in the following terms:

"As you know I have received a letter of complaint from a member accusing you of improperly marking your ball on the green during a recent matchplay tie, I remind you that you were similarly accused two years ago when I was Match and Handicap Convenor, and I also remind you that you were similarly accused during the Four Day Open when Peter Gordon was Captain.

The Nairn Golf Club rules book [The Nairn Golf Club: Rules and Bye-Laws (2004 Edition) (no 6/1 of process)] page 17 rule number 42 states: - The Committee shall have the power to suspend a member from exercising his or her privileges as a member of the Club for such period as the Committee may decide by a majority of votes of its entire number on a secret ballot [on] being satisfied that such member of the Club has infringed any Rule or Bye-law or whose conduct appears to it to endanger the character, interests, or good order of the Club, provided that before considering suspension it shall give him or her reasonable opportunity either personally, or by written statement, to offer such explanation as he or she may desire. Such suspension shall be reported to the first General Meeting of the Club unless previously lifted by the Committee.

Having considered the above I would now ask you to send in a letter of explanation or appear before the General Committee at 7.00 pm on Thursday 2^ndNovember 2006 in the Bulmer Room at the Clubhouse. At this meeting you may be accompanied.

If you choose to appear before the General Committee can you please advise me of the decision by Monday 30^th October 2006."

[7 ] The petitioner consulted his solicitors. On 27 October 2006 they wrote to Mr Sinclair (no 6/5 of process) asking that there should be no reference to the two alleged incidents mentioned in the first paragraph of his letter. It is convenient to notice here that in due course no reference was made to those incidents in the material placed before the Committee. On 31 October 2006 the petitioner's solicitors wrote a further letter to Mr Sinclair (no 6/6 of process) which set out in detail the petitioner's response to Mr Scott's allegations about his conduct on 12 September 2006. The letter also said:

"We would also advise that, as invited, it is our client's intention that he be personally present at your meeting on 2 November at 7pm when he shall be represented by our Mr McCheyne who will be pleased to speak to this letter and to respond to any matters arising."

[8 ] The meeting of 2 November 2006 was postponed. On 24 November 2006 the Club's solicitors wrote to the petitioner's solicitors a letter (no 6/7 of process) which included the following:

"We understand that Mr McCheyne has expressed some concern as to the fairness of any procedure before the Committee in dealing with the complaint against Mr Smith.

The writer had wished to discuss matters with Mr McCheyne and to address any concerns he may have.

It would therefore be helpful if Mr McCheyne would confirm to us in writing what actual concerns on fairness of a Hearing he might have in order that these concerns can be fully addressed."

[9 ] On 6 December 2006 the Club's solicitors wrote a further letter to the petitioner's solicitors (no 6/8 of process) proposing dates for the postponed meeting and the procedure to be followed. They said, among other things:

"We would reiterate the writer's telephone conversation with Mr McCheyne that it is the Club's intention that this matter is dealt with absolutely fairly so that your client has full opportunity to make all necessary representations and explanation to the Committee prior to any decision being taken on the complaint."

Their proposals as to the meeting included a proposal that the Club Captain should not take part in the meeting "given his previous correspondence to your firm which made reference to previous incidents." They also proposed that Mr Scott and the petitioner "should be allowed to give their full version of events without interruption and any questions should be left until the end of their explanation." They further proposed that the petitioner could be accompanied at the meeting but the accompanying person would not be allowed to address the Committee on his behalf. They enclosed a proposed draft letter to the members of the Committee (no 7/6 of process).

[10 ] The petitioner's solicitors replied on 15 December 2006 (no 6/9 of process). The meeting had been scheduled for 21 December 2006. They said in the letter, "Our client is at a loss in understanding why the club captain, Harry Sinclair, ought not to be present." The Club's solicitors replied on 19 December 2006 (no 6/10 of process) that if the petitioner was content with Mr Sinclair sitting on the Committee, he was more than happy to do so.

[11 ] In the same letter (no 6/9 of process) the petitioner's solicitors asked for an extract of the part of the minutes of the Committee meeting at which Mr Scott's letter had been received and the subsequent course of action decided upon. The Club's solicitors attached to their letter to the petitioner's solicitors of 21 December 2006 (no 6/13 of process) the following extract from the minutes of the meeting of the Committee of Management held on 19 October 2006:

"The Captain reported on a letter he had received from a member who wished to report an incident of alleged cheating during the playing of a match-play competition. The Committee of Management agreed with the actions taken and to be taken by the Captain which were in accordance with the Rules of the Club."

[12 ] On 20 December 2006 the Club's solicitors wrote the petitioner's solicitors a further letter (no 6/11 of process) in which they asked whether the petitioner wished to rely only on written representations rather than personal attendance at the meeting. They pointed out that the meeting would proceed in terms of rule 42 of the Club Rules and advised that while Mr McCheyne could attend the meeting, he would not be permitted to take part in the proceedings. Mr McCheyne replied in an e-mail dated 20 December 2006 (no 6/12 of process) which responded to that point as follows:

"I think it important to emphasise, above all else, that my client fundamentally disagrees with your clients concerning his entitlement to have someone such as myself speak on his behalf at any meeting. You refer me to para 42, which I have of course read and referred you to in my fax of 15 December [no 6/9 of process]. However I do not read it anywhere saying there is no right of representation. Please therefore be aware that if the meeting of the club tomorrow night is going to go ahead I will be present and will be expecting to speak on behalf of my client. I am not unaware that will necessarily be an 'awkward' situation, but I would respectfully suggest that it is avoidable. My client's concern is and has been that this matter is dealt with properly and my intention is to ensure all I do achieves that end. If you are instructed to the effect that I am not going to be permitted to speak, then I would respectfully suggest that whilst it would be preferable to have my client and I attend, the way to deal with this situation then would be for written representations to be made, but that would be subject to the further information I referred to in my fax of 15 December, and as I again outline below, being afforded to my client before I pen the final written representation ie matters would not be dealt with tomorrow."

[13 ] After the sending of that e-mail, various telephone conversations took place between the solicitors for the petitioner and for the Club, which the latter summarised in this way in a letter to the former dated 3 January 2007 (no 6/14 of process):

"The outcome of those conversations was your client's decision not to attend the Committee Hearing on Thursday evening given the Club's position that personal representations would have to be made by Mr Smith himself. The issue may be one of credibility and it was felt by our clients that the only way to consider credibility would be to hear Mr Smith's explanation himself on the matters which were the subject of complaint by Mr Scott.

Your client has stated his option to proceed by way of written representation."

[14 ] The meeting proposed for 21 December 2006 did not take place. It was arranged that the written representations would be considered at a meeting of the Committee on 25 January 2007. In the same letter the Club's solicitors noted:

"Finally, we simply note following our telephone conversations that the only issue which you state your client has is his position that he had a right to have a representative speak for him. You confirmed to us that in all other respects the procedure as proposed for the meeting which was the subject of lengthy correspondence between us was acceptable."

[15 ] The petitioner's solicitors gave the following account of the discussion in the "overview/chronology" referred to below:

"21. There was a telephone conversation between Miss Ferguson of Messrs R & R Urquhart in the afternoon of 21 December. It was suggested that our Mr McCheyne, if he was to attend the meeting would be able to introduce or present the case of his client, but he would not be permitted to otherwise speak on his behalf. Our Mr McCheyne's understanding was that even the suggestion of him presenting the case of his client was rejected by the Committee. Our Mr McCheyne advised that in view of the Club's decision not to permit our Mr McCheyne to speak on behalf of his client, the offer again made of making submissions in writing would be taken up instead. Miss Ferguson advised a further letter would be issued by her outlining procedure then to be followed."

[16 ] On 11 January 2007 the Club's solicitors sent to the petitioner's solicitors a copy of Mr Scott's original complaint to the Club Captain dated 16 September 2006. It includes Mr Scott's account of events on the seventh and tenth greens, and concludes:

"After giving it some thought, it wouldn't be fair on lots of other players, having to go through the same thing, and losing out because someone cheated to beat them. Ultimately I would just like him to avoid doing this sort of thing the future.

That is the main reason I am writing this letter. If it helps to give the club a chance to deal with this behaviour properly, then I believe it will be for the good of the club and its members, maybe even Lindsay."

[17 ] On 15 January 2007 the petitioner's solicitors sent to the Club's solicitors a letter (no 6/18 of process) which was addressed to the Club Captain and contained the representations on behalf of the petitioner for the consideration of the Committee at the meeting. The letter actually submitted to the Committee (no 7/5/3 of process) was reformatted and sent on 19 January 2007, but the text was the same as that of no 6/18 of process. It refers to Mr Scott's letter of 16 September 2006 and the accusation that the petitioner was being accused of wrongly marking his ball, in front of the ball instead of behind it, on the seventh and tenth greens during the match play competition on 12 September 2006. The letter gives the petitioner's account of the matter and an "Overview/Chronology of what has occurred to date" running to 23 paragraphs. The letter also contains the following:

"7. It seems to us that the R & A Rules [Rules of Golf (30^th ed, 2003) published by The Royal and Ancient Golf Club of St Andrews and The United States Golf Association] have not been adhered to as Mr Scott has not raised his concerns or complaints in the proper manner in relation to the incident with a club official at the earliest opportunity, as set out in Rule 2.5 - Doubt as to Procedure: Disputes and Claims - and not before the match resumed on to the 11^th tee or before it concluded on the 18^th green.

8. We would wish to highlight that as far as our client understands the letter from Mr Sinclair of 23 October 2006 [no 6/4 of process] the complaint by Mr Scott has been investigated, and indeed this whole series of subsequent events has proceeded under the provisions of rule 42 of the Club Constitution. As our client has not been informed that he has infringed any bye law or rule of the Club we must only assume that the matter is being investigated under the auspices of an alleged breach of Rule 42 - 'it appears to {the Committee that our client's conduct might} . . . endanger the character, interests or good order of the Club . . .' If we are wrong on this point no doubt that will be made known to us [ . . . ]"

[18 ] The petitioner's solicitors were not advised that they were wrong on that point. Rule 2-5 of the Rules of Golf is discussed below. For the sake of completeness it should be added that the petitioner's solicitors sent with the representations not only the "overview/chronology" but also a document referring to the petitioner which was attached to an e-mail. That document was not referred to at the first hearing, and I say no more about it.

[19 ] On 23 January 2007 the Club Secretary sent to the members of the Committee a letter with enclosures. It was in these terms:

"Lindsay R Smith, Member

The Club has received a letter of complaint dated 16^th September 2006 from Mr Alex Scott, a Member of the Club. Mr Scott's letter was addressed to Mr Sinclair, the Captain. It complains about the actions of Mr Smith during the semi-final of a scratch match-play competition which took place on 12^th September 2006. The allegation made is that on the 7^th and 10^th holes Mr Smith inappropriately marked his ball.

The Club has decided that this complaint will require to be properly investigated in terms of the Rules of the Club. It has been determined that a full Committee Meeting shall take place on Thursday 25^thJanuary 2007 at 7.00 p.m. to be held in the Clubhouse.

I am enclosing, prior to that meeting, the following documentation in order that you may have sight of this before the meeting and be properly prepared.

[There then followed a list of copy documents: Mr Scott's letter of 16 September 2006 (no 6/17 of process); the letter and enclosures from the petitioner's solicitors dated 19 January 2007 (no 6/18 of process); and three e-mails from Mr Scott (nos 7/5/7, 7/5/8 and 7/5/9 of process) to which I shall refer below.]

Members may be aware of some Press publicity which has already taken place in relation to this matter. Members should be aware that the purpose of the Committee Meeting is solely to consider the alleged actions of Mr Smith which took place on 12 September 2006.

Members will appreciate that the Club must act fairly and properly in terms of its Constitution. Any complaint of this nature is of course a matter to be taken most seriously and the Club must ensure that the procedures to be followed through are entirely fair to the Member against whom the allegation is made.

It is proposed that the Committee Meeting will be conducted as follows:-

· The Committee will be chaired by the Captain.

· The Chair will briefly explain the nature of the complaint which has been made.

· The Committee will then participate in a secret ballot.

If any Committee Member has any query on the proposed conduct at the meeting then this should be aired at the outset of the meeting in order that procedural matters are dealt with in the first instance."

[20 ] Mr Scott had sent the three e-mails to the Club Secretary after receiving a copy of the letter no 6/18 of process and other correspondence from the petitioner's solicitors. The e-mails had not been shown to the petitioner or his solicitors. The petitioner's legal advisers did not see them until 25 June 2007. The only matter in them to which the petitioner's counsel referred at the first hearing was a paragraph in no 7/5/8 of process which was apparently intended to be Mr Scott's response to the comment by the petitioner's solicitors in paragraph 7 of no 6/18 of process, quoted above, that the R & A Rules had not been adhered to. The paragraph in the e-mail reads as follows:

"I am claiming that my opponent cheated in our match. This is a blatant disregard for the rules, etiquette and any opponent, not just a breach of any particular rule, however rule 2.5 also states 'Once the result of the match has been officially announced, a later claim may not be considered by the committee unless it is satisfied that the opponent knew he was giving wrong information.' I believe that the committee have tried, and are trying, through the club rules/constitution, to establish whether or not my opponent was giving wrong information."

[21 ] On 25 January 2007 the meeting of the Committee took place. On the following day the Club Secretary wrote to the petitioner (no 6/21 of process) advising him that the Committee had met and fully considered Mr Scott's complaint and the submissions made. A secret ballot had been held, the outcome of which was that the complaint would be upheld. The Committee was now considering what action was to be taken, and the petitioner would be notified in due course. On 9 March 2007 the Club Secretary again wrote to the petitioner (no 6/22 of process) advising him that a secret ballot had been taken at a meeting of the full Committee of Management on 7 March 2007, the result of which was that the Committee had decided to suspend the petitioner from exercising his privileges as a member of the Club for a period of twelve months. The decisions of 25 January and 7 March 2007 are those which the petitioner now submits to judicial review. The arguments were focused on the decision of 25 January 2007.

[22 ] The petitioner's pleas-in-law are in these terms:

"1. The decisions of the Committee on 26th [sic] January and 7th March 2007 to uphold Mr Scott's complaint and to suspend the membership of the petitioner having been made contrary to the rules of natural justice it [sic] should be reduced.

2. In any event the decision of the Committee having been ultra vires it should be quashed.

3. The petitioner having paid dues of £38.75 for the month of March, and having been wrongfully denied the fruits of membership an order for repetition of said sum should be made against the Society."

I was not addressed on the third plea-in-law.

[23 ] The respondents' pleas-in-law are as follows:

"1. The petitioner's averments being irrelevant et separatim lacking in specification, the petition should be dismissed.

2. The respondents not having acted ultra vires and not having failed to apply the rules of natural justice, the petition should be refused."

Jurisdiction
[24 ] The petitioner's first complaint is that the Committee had no jurisdiction to rule upon the complaint against him. His argument turns upon rule 2-5 of the Rules of Golf. Rule 8 of the Rules and Bye-Laws of the Club (2004 edition) (no 6/1 of process) provides:

"8. Rules of Golf. As they may from time to time be approved by the Royal and Ancient Golf Club of St Andrews shall be the rules of play, except in so far as they may be modified by any Local Rules adopted by the Club."

Rule 2-5 of the Rules of Golf (30^th edition, 2003) (no 6/2 of process) has not been modified by any local rules. It provides:

"2-5. Doubt as to Procedure; Disputes and Claims

In match play, if a doubt or dispute arises between the players, a player may make a claim. If no duly authorised member of the Committee is available within a reasonable time, the players must continue the match without delay. The Committee may consider a claim only if the player making the claim notifies his opponent (i) that he is making a claim, (ii) of the facts of the situation and (iii) that he wants a ruling. The claim must be made before any player in the match plays from the next teeing ground or, in the case of the last hole of the match, before all players in the match leave the putting green.

A later claim may not be considered by the Committee unless it is based on facts previously unknown to the player making the claim and he had been given wrong information (Rules 6-2a and 9) by an opponent.

Once the result of the match has been officially announced, a later claim may not be considered by the Committee unless it is satisfied that the opponent knew he was giving wrong information."

The words in italics are defined in Section II, the definition section of the Rules of Golf. "Committee" is defined as follows:

"The 'Committee' is the committee in charge of the competition or, if the matter does not arise in a competition, the committee in charge of the course."

[25 ] The alleged incidents which were the subject of Mr Scott's complaint took place in a match play competition organised by the Club's Match and Handicap Committee. The argument for the petitioner was that the alleged incidents had been a matter for that Committee. Mr Scott had not made an immediate claim, as required by the rule. Thus the matter was at an end when the match was finished. Reference was made to rule 34-1, which is concerned with claims and penalties. Rule 34-1a provides that in match play, if a claim is lodged with the Committee under Rule 2-5, a decision should be given as soon as possible so that the state of the match may, if necessary, be adjusted; and if a claim is not made in accordance with Rule 2-5, it must not be considered by the Committee. Counsel also cited Rules 1-3; 20-1; 20-7a, b and Note 1; 33-1; and 33-7. It was submitted that if the respondents thought they were determining whether the Rules of Golf had been breached, they could not do so.

[26 ] This argument was drawn to the attention of the Committee by the petitioner's solicitors at paragraph 7 of their representations (no 6/18 of process) which has been quoted above. In my opinion it is lacking in substance. The Committee were not purporting to adjudicate on a claim under Rule 2-5 of the Rules of Golf. They were making an investigation under rule 42 of the Rules of the Club. The Club Captain in his letter to the petitioner of 23 October 2006 (no 6/4 of process) had set out rule 42 and "having considered the above" had asked the petitioner to send a letter or appear before the Committee. The Club solicitors' letter of 20 December 2006 (no 6/11 of process) had made clear that the meeting would proceed in terms of rule 42. The petitioner's solicitors in paragraph 8 of their representations, also quoted above, had correctly assumed that the matter was being investigated under rule 42. Somewhat surprisingly, they had gone on to ask to be told if they were wrong about that, and, not surprisingly, they had not been told so.

[27 ] Rule 42 provides in part:

"The Committee shall have the power to suspend a member from exercising his or her privileges as a member of the Club for such period as the Committee may decide by a majority of votes of its entire number on a secret ballot on being satisfied that such member of the Club has infringed any Rule or Bye-law or whose conduct appears to it to endanger the character, interests, or good order of the Club, provided that before considering suspension it shall give him or her reasonable opportunity either personally, or by written statement, to offer such explanation as he or she may desire. Such suspension shall be reported to the first General Meeting of the Club unless previously lifted by the Committee."

[28 ] No reference having been made by the Club Captain, the Club Secretary or the Club's solicitors to any infringement by the petitioner of any rule or bye-law, the issue clearly was not to be whether the Committee would be "satisfied" that he had breached any of the Rules of Golf. There is therefore no substance in an argument by counsel that they could not be so "satisfied" without a finding by the committee in charge of the competition arising from a relevant and timeous claim. The issues were to be whether the petitioner had behaved as alleged; if so, whether his conduct would appear to the Committee to endanger the character, interests, or good order of the Club; and, if the Committee reached that view, whether he should be suspended from membership of the Club. The conduct to be investigated was his allegedly inappropriate marking of his ball on the two occasions on 12 September 2006 referred to in Mr Scott's complaint. That was a plain allegation of cheating. Mr Scott in his letter of 16 September 2006 (no 6/17 of process) referred to a player "losing out because someone cheated to beat them." The minutes of the Committee meeting (attached to no 6/13 of process) referred to "an incident of alleged cheating". There was no suggestion by the petitioner's counsel at the first hearing that cheating by a member of the Club could not reasonably be held to endanger the character, interests or good order of the Club. In my view it would be absurd if an allegation of cheating which consisted of the inappropriate marking of a ball could only be investigated in the context of the making of a claim by a player under Rule 2-5. A player might prefer not to make such a claim for a variety of good reasons such as the causing of embarrassment or inconvenience. Again, such conduct might have been reported to the Club not by a player, but by a spectator. It could scarcely be maintained that the Committee would be prohibited from investigating such conduct if a player had not made a claim or if the source of the evidence was a spectator. I find, accordingly, that the Committee had jurisdiction to entertain Mr Scott's complaint.

Natural justice
[29 ] The petitioner's counsel presented a series of submissions which criticised the procedure adopted by the Club and were helpfully organised at the conclusion of his speech under the heading that the Club had breached the rules of natural justice. It will be convenient to consider first an argument that the Club had failed to identify adequately the charge being presented. For the reasons just discussed, I am satisfied that the issue to be considered was perfectly clear and I cannot support the suggestion that the petitioner did not have fair notice of it.

[30 ] A second argument was that the Committee had before it material prejudicial to the petitioner in the shape of Mr Scott's three e-mails which had not been disclosed to the petitioner. Reference was made to Harris v Appeal Committee of the Institute of Chartered Accountants of Scotland [2005] CSOH 57, 2005 SLT 487 at paragraphs 38, 39 and 41. The only matter in the e-mails which was founded on was the paragraph in e-mail no 7/5/8 of process relative to rule 2-5. The petitioner's counsel maintained that Mr Scott's view of the rule was misconceived. So indeed it was, but since the Committee were not considering an alleged breach of rule 2-5 Mr Scott's view was also irrelevant. Since the paragraph was not a relevant statement to the prejudice of the petitioner, it was unnecessary to disclose it to him (University of Ceylon v Fernando [1960] 1 WLR 223 at page 234). If I had found the failure to disclose it to be an irregularity, I would have been unable to describe the irregularity as "gross", "fundamental", "flagrant" or going "to the honesty and integrity of the proceedings complained of" (McDonald v Burns 1940 SC 736 at pages 383-384). The paragraph about rule 2-5 was so plainly absurd and immaterial that it cannot reasonably be envisaged that the Committee took it into account.

[31] Thirdly, the procedure adopted by the Club was criticised on the ground that they had apparently had to determine the merits of the case without hearing from either the petitioner or Mr Scott, "without having an opportunity to question them or test their evidence and without any relevant extrinsic evidence before them to allow a determination." There had been no inquiry. Reference was made to Crocket v Tantallon Golf Club [2005] CSOH 37, 2005 SLT 663 at paragraphs 17 and 43 to 47.

[32] In my opinion the question for this Court is whether, on the facts and in the circumstances of this particular case, the mode of procedure adopted by the Club, in bona fide exercise of the wide discretion as to procedure reposed in them, sufficiently complied with the requirements of natural justice (University of Ceylon at page 236). It is appropriate to begin by examining once again the material terms of rule 42 of the Rules of the Club:

The petitioner, by becoming a member of the Club, agreed to be bound by its rules, including rule 42 (Crocket at paragraph 29); and in the event of rule 42 being put in operation against him could not insist on the adoption by the Committee of any particular procedure beyond what the rule expressly or by necessary implication required (University of Ceylon at page 233). Rule 42 provides that a member whose conduct is in question may offer an explanation to the Committee either by doing so personally, or by submitting a written statement. There is no provision for the tendering of an explanation through a representative at a Committee meeting, and that is not required by necessary implication. The other details of the procedure are a matter for the discretion of the Committee.

[33 ] It is clear from a review of the correspondence lodged that the Committee took pains to seek the co-operation of the petitioner's solicitors in devising a procedure which would be fair. That is apparent from their letters of 24 November 2006 (no 6/7 of process) and 6 December 2006 (no 6/8 of process) which are quoted above. Their proposals in the letter of 6 December appear to me to have been eminently sensible. The petitioner's solicitor, however, insisted that he should attend the meeting to speak on the petitioner's behalf. In justification of that stance the petitioner's counsel said that a fair hearing would have entitled the petitioner to be represented by someone skilled in testing evidence. That appears to involve that the petitioner's solicitor would have sought to cross-examine Mr Scott, while there would have been no provision for the cross-examination of the petitioner. Of the three interested parties - the petitioner, Mr Scott and the Club - only the petitioner would have had legal assistance. In any event the Club took the view that they wanted to hear from the petitioner himself because the issue was one of credibility: they considered "that the only way to consider credibility would be to hear Mr Smith's explanation himself on the matters which were the subject of complaint by Mr Scott" (no 6/14 of process). The Club's solicitors also said, ". . . this is a private club meeting to deal with factual matters and to seek factual explanation. Our clients see no reason why Mr Smith should not be able to deal with matters himself and provide any explanation/additional information to the members of the Committee" (no 6/11 of process, paragraph 6). They also said, "What cannot happen is that this turns into a 'court of law' whereby your client has legal representation, but the Club does not. We do not consider it appropriate for the Club to be legally represented at a private members' Committee meeting" (no 6/13 of process).

[34 ] These views can scarcely be described as irrational. The Committee had to decide simple questions of fact; having found the facts, they had to consider whether any conduct by the petitioner which had been proved appeared to them to endanger the character, interests or good order of the Club; and if they considered that it did, they had to decide whether to exercise the power confided to them by the rules to suspend the petitioner from exercising his privileges as a member of the Club. They took the view that they wished to hear directly from Mr Scott and the petitioner, without the intervention of a solicitor, although they were prepared to allow the petitioner's solicitor to attend if he wished, albeit he was not a member of the Club. The reaction of the solicitor was as follows, in his own words: "Our Mr McCheyne advised that in view of the Club's decision not to permit our Mr McCheyne to speak on behalf of his client, the offer again made of making submissions in writing would be taken up instead" (attachment to no 6/18 of process, paragraph 21).

[35 ] Thus, the petitioner decided not to attend the meeting accompanied by his solicitor and speak directly to the Committee. Instead he chose the option of making submissions in writing. The complaint he now makes is not that his solicitor was not permitted to address the Committee, but that the procedure the Committee adopted did not enable them to test the evidence. The procedure adopted was, however, the choice of the petitioner himself. Two options were available under the rules by which he had agreed to be bound: he was allowed to choose between them; and he freely rejected the opportunity to appear personally and selected the course of making written representations. The Committee gave him an opportunity to be heard, and he did not take it.

[36 ] Since the petitioner was content, in accordance with the rules, to peril his position on his solicitor's written representations, it may seem difficult for him to quarrel afterwards with the procedure adopted. I shall, however, examine the criticisms made of the procedure. It was said that the Committee could not properly reach a conclusion on the complaint. They had "branded Mr Smith as dishonest and a cheat without any agreed factual basis." They had apparently had to determine the merits of the case without hearing from either the petitioner or Mr Scott, "without having an opportunity to question them or test their evidence and without any relevant extrinsic evidence before them to allow a determination." There had been no inquiry. An allegation had been made and repudiated. There had been no further investigation because no further investigation had been possible other than testing their respective evidence and that was something they had chosen not to do. They could not reach a conclusion without using extraneous material and information. That meant that they had not acted impartially and quasi-judicially. The result was that the secret ballot had become no more than a popularity contest between Mr Scott and the petitioner. So ran the argument for the petitioner.

[37 ] I now state my views on these submissions. It is incorrect, as I have explained, to say that testing the oral evidence was something the Committee had chosen not to do: it was something the petitioner had chosen not to allow the Committee to do. It is also incorrect to say that there was no inquiry: the inquiry was carried out by way of the assessment of the documents voluntarily submitted by the complainer and on behalf of the petitioner. The submissions that a conclusion was reached without any agreed factual basis and the secret ballot was no more than a popularity contest are difficult to understand. The decision of a matter such as this on written representations only, without an oral hearing, is in accordance with the rules, and while it may be difficult, it is not impossible. Much depends on the nature and quality of the representations. Here, the documents submitted, especially those submitted on behalf of the petitioner, were particularly full and circumstantial. It cannot be said that the Committee had insufficient material upon which to reach the view to which they came, and it is neither reasonable nor necessary to infer that the Committee must have resorted to extraneous material or information. It is clear that the Committee concluded that they accepted the account given by Mr Scott, rejected that given by the petitioner, and determined that the petitioner's conduct appeared to them to endanger the character, interests or good order of the Club. "The Court will not interfere with such an assessment except on grounds such as mala fides or manifest absurdity: see Dawkins v Antrobus (1871) LR 17 Ch D 615 at pages 629, 630 and 634; Lee v Showmens' Guild of Great Britain [1952] QB 329 at pages 338-339, 343 and 350." (Wiles v Bothwell Castle Golf Club [2005] CSOH 108, 2005 SLT 785 at paragraph 23.) Here there is no suggestion of malice or bad faith. Whether the conduct found to be proved endangered the character, interests or good order of the Club was a matter of opinion which was peculiarly within the province of the Committee (Lee at pages 339, 343 and 350), and it cannot reasonably be maintained that the opinion they reached was manifestly absurd.

[38] Finally, it was submitted for the petitioner that an adverse inference should be taken from the lack of reasons and the lack of a right of appeal. Reference was made to Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386. Counsel for the respondents referred to Stefan v General Medical Council [1999] 1 WLR 1293 and Bass Taverns Ltd v Clydebank District Licensing Board 1995 SLT 1275. In Irvine Lady Smith said at paragraph 46:

"While it is clear from the authorities that a failure to give reasons or a failure to provide a right of appeal do not, of themselves, constitute a breach of natural justice, I agree that when viewed in the light of the whole circumstances of this case, they exacerbate the overall view of a clear breach of natural justice having occurred."

[39] In my view the petitioner's submission cannot be sustained. The Rules of the Club did not impose any express or implied obligation upon the Committee to give reasons for its decision. It was not argued for the petitioner that the principles of natural justice included any general rule that reasons should be given for decisions, or that there should be a right of appeal from any decision. In Bass Taverns Ltd Lord Sutherland said at page 1277F-G:

"I accept entirely the test laid down by Lord Keith in R v Trade and Industry Secretary, ex p Lonhro plc [[1989] 1 WLR 525 at page 539] where his Lordship points out that the absence of reasons for a decision when there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker who has given no reasons cannot complain if the court draws the inference that he had no rational reason for his decision."

In the present case, where the Committee had to decide a simple issue of fact, and reach an opinion as to the effect of the petitioner's conduct, upon materials which were known to him; where, as I have found, they observed the rules of the Club, followed a fair procedure and reached a conclusion which was not obviously aberrant; and where nothing in the facts and circumstances appears to point overwhelmingly in favour of a different decision or to suggest that a breach of natural justice might have occurred, it cannot reasonably be said that fairness required the giving of reasons or the provision of a right of appeal.

[40 ] It only remains to notice that in the course of the argument there was some discussion of the question whether the courts should more readily intervene on procedural matters in the case of trade associations and professional bodies than in the case of social or sporting clubs. In Wiles v Bothwell Castle Golf Club [2005] CSOH 108, 2005 SLT 785 at paragraph 27 Lord Glennie expressed the view that it was wrong today to draw a clear distinction between the two categories and that it might be necessary to treat the older cases on social clubs with caution, recognising that the nature of a social or sporting club may have altered over the years. Counsel for the petitioner informed me that the petitioner was a senior manager in the employment of the Royal Bank of Scotland and the Club's finding that he had cheated on the golf course had come close to losing him his job and had caused him difficulties with clients. Golf was extremely important to him both as a hobby and as a business opportunity which enabled him to bring guests and potential clients to an attractive course and clubhouse. His standing as a professional was the key to why this matter was before the Court. There was little reason or advantage in seeking to distinguish between professional bodies and social clubs when a party's reputation and integrity were at stake. Reference was made to Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386 and Crocket v Tantallon Golf Club [2005] CSOH 37, 2005 SLT 663.

[41] Counsel for the respondents referred to McDonald v Burns 1940 SC 376; Lee v Showmens' Guild of Great Britain [1952] 2 QB 329; St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 SLT 171; Brown v Executive Committee of the Edinburgh District Labour Party 1995 SLT 985; and Welsh v The Committee of the South Western Social and Recreation Club Ltd Outer House, 25 June 2004, unreported.

[42] I consider that McDonald v Burns remains a binding authority on the circumstances in which the Court will intervene in the affairs of private bodies such as the Club. It was so regarded in the three Outer House cases cited immediately above. I do not think I can usefully add anything to what was said by Lord Kilbrandon in St Johnstone Football Club Ltd at page 174, Lord Osborne in Brown at page 989, and Lord Carloway in Welsh at paragraph 22. In any event I am unable to find that the result of this case would have been different if the respondents had been treated as a trade or professional body rather than as a social or sporting club.

Result
[43 ] I shall accordingly sustain the second plea-in-law for the respondents, repel the pleas-in-law for the petitioner, refuse the petition and reserve the question of expenses.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith, Re Application for Judicial Review [2007] ScotCS CSOH_136 (31 July 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_136.html Cite as: [2007] ScotCS CSOH_136, [2007] CSOH 136

Scottish Court of Session Decisions