OUTER HOUSE, COURT OF SESSION [2009] CSOH 113
	OPINION OF LORD UIST in the cause (FIRST) Reverend DONALD SMITH, as Moderator of the General Assembly of the Free Church of Scotland; and (SECOND) Reverend JAMES MacIVER, as the Principal Clerk of the said General Assembly Pursuers against (FIRST) Reverend JOHN MORRISON; (SECOND) PETER MacASKILL; (THIRD) RODERICK MACKAY; and (FOURTH) PETER MATHESON Defenders: ___________

Pursuer: Currie QC, Charteris; Simpson & Marwick

Defenders: McNeill QC, Dawson; Drummond Miller LLP

31 July 2009

Introduction

[1] The Free Church of Scotland (FC) was formed in 1843 by a large withdrawal from the established Church of Scotland in a division known as the Disruption. A full account of that event and the legal issues to which it subsequently gave rise is given in The Courts, The Church and The Constitution: Aspects of the Disruption of 1843 (EUP, 2008) by Lord Rodger of Earlsferry. The FC was formed by evangelicals in protest against what they regarded as State interference with the spiritual independence of the Church of Scotland. In 1900 the majority of the FC joined with the United Presbyterian Church of Scotland to form the United Free Church of Scotland, which itself re-united with the Church of Scotland in 1929. The minority of the FC remained outside the Union of 1900 and continued to use for itself the title of the Free Church of Scotland. In 2000 the Free Church of Scotland (Continuing) (FCC) was formed when certain ministers and members left the FC and claimed to reconstitute the denomination, claiming to be the true continuation of the FC. The FCC then unsuccessfully sought a declarator that it was entitled to the central funds and properties of the FC: Free Church (Continuing) v Free Church 2005 SC 396. The history of events leading up to the split of 2000 is set out by Lady Paton at pps 399-401, paras [9] to [23] of her opinion in that case.

[2] The present action is a sequel to the one dealt with by Lady Paton. It relates to entitlement to the church and manse at Broadford in the Parish of Strath on Skye (the subjects). It is brought by the Moderator and Principal Clerk of the General Assembly of the FC held at Edinburgh on 22 May 2006. The first defender is the Interim Moderator of the Congregation of Strath FCC. The second defender is an elder of that Congregation. The third and fourth defenders are members of the FCC. The pursuers aver and seek declarator that the subjects are held in trust for the FC Congregation of Strath FC, now known as Sleat and Strath FC following upon the uniting of the two congregations on 9 April 2001, and that this congregation are entitled to the beneficial interest in the subjects. They also seek an appropriate interdict against the defenders, or anyone on their behalf, unlawfully making use of the subjects. Interim interdict was granted on 8 March 2007.

The factual background

[3] The background set out in the pleadings is that around six people, including the minister (Reverend Allan MacIver) and his wife and the second defender, left the Strath FC Congregation to form a Congregation of the FCC, continued to occupy the church and manse, and submitted their givings to the FCC and not to the FC. The minister was suspended sine die from his position within the FC and no longer received a stipend from it. The minister and congregation of the FCC continued to occupy the church at Broadford. The trustees of Strath FC were unwilling to raise proceedings against him because he was elderly. He retired in January 2007, since when the manse has been unoccupied. In February 2007 the trustees learned that the defenders intended to let out the manse to a theological student or at least to allow him to stay in it. When one of the trustees went to the manse on 15 February 2007 he observed that work was being carried out inside the manse and was told by a workman that it would be several weeks before the renovations would be completed, after which someone was due to move into the manse. The following day three trustees and a member of the FC Congregation attempted to regain possession of the manse but were prevented from doing so by the third and fourth defenders, who were carrying out work there. The defenders claim that they have not forfeited their rights to enjoy the benefit of the manse. In these circumstances the trustees of the FC now wish to resume possession of it on behalf of the congregation.

The title to the subjects

[4] The title to the subjects is vested in trustees under a Feu Charter by the Right Honourable Somerled James Brudenell Lord Macdonald with consent therein mentioned in favour of the Reverend Alexander MacKenzie and others, Trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford dated 10 March and 2 April and recorded in the Division of the General Register of Sasines for the County of Inverness on 12 October, all 1869. The trustees are obliged to hold the property for the purposes and upon the trusts and under the conditions set out in the Feu Charter. The first condition is stated as follows:

"First; that a place of worship with a Manse or Dwelling house offices and garden for the Minister thereof shall be erected upon the ground before disponed, which place of worship with the appurtenances thereof shall in all time coming be used occupied and enjoyed as and for a place of religious worship by a Congregation of the said body of Christians called the Free Church of Scotland or of any united body of Christians composed of them and of such other body or bodies of Christians as the said Free Church of Scotland may at any time hereafter associate with themselves under the foresaid name of the Free Church of Scotland or under whatever name or designation they may assume, and shall with the said Manse and others be managed, made use of, occupied and enjoyed in the way and manner and subject to the rules and conditions according to which by the Laws and usages for the time of the said body or united body of Christians, places of worship, manses and others, shall be managed occupied and enjoyed; and in particular the said Trustees or Trustee acting for the time shall at all times and from time to time hereafter permit and suffer to preach and expound the Holy Scriptures and administer Ordinances and perform the usual acts of Religious worship within the said place of worship as said is, such person or persons only as may or shall from time to time be authorised or appointed so to do by the said body or united body of Christians acting through the medium of its Kirk Sessions, Presbyteries, Provincial synods and General Assemblies, or according to the form or forms in use with the said body or united body for the time; Providing always that whensoever any person holding such authority or appointment as said is, and enjoying the permission and sufferance foresaid shall by a sentence of the said body or united body of Christians pronounced by one or other of its Presbyteries, Provincial Synods or by its General Assembly or Commission of such Assembly for the time being or in any other way or manner in use in such matters for the time by the said body or united body of Christians be deposed or suspended from office or cut off from the said body or united body of Christians or declared no longer a Minister thereof, his authority and appointment foresaid shall ipso facto cease and determine; and the said Trustees or Trustee acting for the time shall not only be no longer bound but be no longer entitled to permit or suffer him to preach and expound the Holy Scriptures or administer ordinances or do or perform any Act of Religious Worship or other act or thing whatsoever within the said place of worship erected or to be erected as said is, and shall be bound and obliged to debar him therefrom aye and so long as he remain deposed or suspended or cut off as aforesaid, and in like manner the said Trustees or Trustee shall permit and suffer the said Dwelling house, Garden and offices in all time coming to be used, occupied and enjoyed as and for a Manse in connection with the said body or united body of Christians, and that by and for the use of the Minister for the time being of the said Congregation having right to the occupation of the foresaid place of worship during his life, but only so long as he shall remain Minister thereof and shall not be debarred from the use, occupation or enjoyment of the same by or in virtue of a sentence of the said body or united body of Christians pronounced as aforesaid; and it is hereby provided and declared that the Moderator and Clerk of the said General Assembly for the time being or of the then immediately preceding General Assembly of the said body or united body of Christians or the parties generally known or understood to hold these offices for the time shall at all times have full power and sufficient status and right and interest to pursue or defend any action or actions in whatever Court or Courts of Law or Justice for the enforcement maintenance and protection of the purposes and trusts for which the same are disponed."

The issues in dispute

[5] The case called before me on the Procedure Roll to debate the defenders' first three pleas-in-law and the pursuers' fourth plea-in-law. The defenders' first three pleas-in-law are as follows:

"1. The pursers having no title to sue, the action should be dismissed.

2. All parties are not called.

3. The pursuers' averments being irrelevant et separatim lacking in specification, the action should be dismissed."

The fourth plea-in-law for the pursuers is stated in the following terms:

"4. The defenders' averments in answer being irrelevant et separatim lacking in specification ought to be repelled and decree de plano granted."

Accordingly, there are three discrete points of law which were argued and which I must determine, namely: (1) title to sue; (2) all parties not called; and (3) general relevancy.

Title to sue

(i) Submission for the defenders

[6] The pursuers aver in condescendence 1:

"In terms of said Feu Charter by Lord Macdonald the first and second pursuers have full power and sufficient status and right and interest to pursue any action or actions in this court for the enforcement, maintenance or protection of the purposes and trusts for which the said subjects described in the First Conclusion were disponed."

[7] The submission for the defenders in support of their first plea-in-law was as follows: first, that in a declaratory action of this nature the pursuers who had raised the action were not the entire parties who required to raise the action for the court to pronounce the order sought, and, secondly, that the title asserted by the current pursuers, and their interest in the matter, were derived from the provisions of the trust deed, which accorded them limited powers which did not extend to giving them title and interest to raise an action of this nature.

[8] The general rule on title and interest is set out in McLaren, Court of Session Practice at p188 as follows:

"It is a general rule that, before being allowed to enter upon the merits of his case, a pursuer, if called upon by the defender, must satisfy the court that he is not only the proper person to pursue the particular action, but also that he has a real interest, either as an individual or in a representative capacity, in its result."

[9] McPhail, Sheriff Court Practice at p 336, para 9.117 states:

"The objection that a pursuer has no title to sue in the action means that, even on the assumption that the defender is liable to have a decree pronounced against him in the circumstances condescended on, the pursuer is not the person who has a title to call upon the court to pronounce such a decree."

[10] In the present action the pursuers were seeking declarator of the identity of the trustees and beneficiaries under a trust. In condescendence 5 they named those whom they say are the trustees and purported beneficiaries. It was clear from what they averred in condescendence 1 that they were not suing in a representative capacity but on the basis of apparent rights accorded to them by the truster under the trust. Parties suing in a representative capacity had to set forth that fact in the instance and condescendence: Maxwell, Court of Session Practice, p 148. The court therefore did not know what was the position of the parties whose rights and duties were to be adjudicated upon under the trust: the purported trustees and beneficiaries were not the pursuers and the pursuers did not sue in a representative capacity on behalf of the purported trustees and beneficiaries. Robb's Trustees v Robb (1862) 10M 692 was a case in which there was a dispute about whether there was a valid basis for the trustees to act in connection with the deceased's estate. It was held that the trustees were the people entitled to bring the action to determine the validity of their appointment. At p 696 the Lord President said:

"The first objection minuted for the defender in the present action was that the two trustees had no title to sue. I think they have a good title. What their precise rights or powers are under the settlement is another question. But they are named in this deed, and invested with a trust, which, if they accept, they are bound to administer; and as trustees, however slight their duties may be, they have a perfectly good title. To say that they are not entitled to maintain this action is tantamount to saying that if Thomas Robb had brought an action against them in the form of a reduction they would have had no title to defend, which is absurd."

In the present action the appropriate pursuers were the trustees, but their attitude to the issues was not known. The court should not entertain consideration of a declarator in a case in which neither set of trustees was party to the action. The fact that the pursuers had title to sue under the trust did not mean that they were the only parties who required to sue: they could not take the part of every party whose rights may be affected. The action dealt with a congregational trust, not a trust for the church as a whole. The present pursuers did not constitute the entire parties who required to sue.

[11] So far as the terms of the Feu Charter were concerned, the particular power accorded to the Moderator and Clerk was not appropriate in an action of this nature. The power was not an unlimited one. The conditions in the Feu Charter referred to the rules binding the trustees in their administration of the trust. The Moderator and Principal Clerk were protectors, entitled to intervene in the way in which the trustees are to regulate the use of the property, and their power was therefore to seek the assistance of the courts where there was an abuse of power or breach of trust by the trustees. The power of the Moderator and Principal Clerk was limited to situations where the trustees were doing or omitting to do something in breach of the trust: it was a limited power to intervene in protection of the trust purposes where there had been an abuse by the trustees. The pursuers did not have power under the trust to prosecute the present action for declarator and interdict.

[12] In McLaren, Court of Session Practice at p 202 it is stated:

"Trustees who hold the feudal title to a church building conform to a trust deed have a title to sue for possession of the church against a person whose status has been declared at an end."

The authority stated for that proposition was the decision of the First Division in Brown v McDougall (1901) 4F 297, in which the title to a church property of the FC was held by trustees under the same trust purposes as the title in the present case. By judgments of the church courts the minister of the church was loosed from his personal charge in 1900 and the charge declared vacant, but he was not deposed or suspended from the ministry of the FC. As the minister persisted in preaching in the church the trustees raised an action against him concluding for declarator that he was not entitled to retain possession of it, and that the pursuers as trustees were entitled to possession of it, and for interdict to prevent the minister conducting divine service, or otherwise using, the church. The Lord President stated at p 303:

"What we have to decide is a comparatively simple point. The action is at the instance of the trustees for the congregation of the West Free Church, Coatbridge, who have a well-known status in the constitution of the church, defined in the model trust-deed. The Moderator and Principal Clerks of the General Assembly, and the Presbytery, are also pursuers, but the Lord Ordinary thinks it unnecessary to decide whether these parties have a title to sue, and I concur with him in that view. It is enough that the trustees for the congregation are pursuers."

[13] In the present action it would be illegitimate for the court to pronounce the decrees sought where the interested parties, the trustees and the congregation, were not represented. The trustees and beneficiaries were the appropriate parties to pursue the action. It was not sufficient for the pursuers to pursue the action alone, either under the powers conferred by the trust or at common law. The present action was quite an unusual one from the point of view of the law of trusts, but that was not to say that actions of this nature were unprecedented in the case of voluntary churches. In United Free Church of Scotland v McIver (1902) 4F 1117 it was held that church buildings held in trust for a congregation of the FC prior to its union with the United Presbyterian Church were thereafter held in trust for a congregation of the United Church. (That decision followed upon the decision of the Inner House in Bannatyne v The United Free Church of Scotland (1902) 4F 1083, which was reversed by the House of Lords in Bannatyne v Overtoun [1904] AC 515.) In McIver the property was held on vitally the same terms as the subjects in the present case, but the parties to the action were very different. The action was raised on behalf of (1) the trustees and (2) the Moderator and Clerk against (1) the competing trustees; and (2) the competing congregation. In the present action there was no party who purported to sue on behalf of the trustees or (pre-existing) congregation, and the defenders did not include the competing trustees or congregation. The form of the action in McIver was far more consistent with principle than the form of the action in the present case. In General Assembly of the Free Church of Scotland v Johnston (1904) 4F 517 the title to the property was held in very similar terms but the parties to the action were radically different from the parties to the present action. The parties were set out at p 518 of the report:

"The complainers were - (1) the General Assembly of the Free Church of Scotland, acting through its Commission of Assembly, and the Moderator and Clerks of the said General Assembly as representing the said General Assembly and Church; (2) Colin Fraser and Donald Munro, 'the whole existing and acting trustees for the congregation of the Free Church worshipping at Strathpeffer', appointed prior to 31 October 1900; (3) certain additional trustees appointed for the said congregation in December 1900; and (4) the Moderator and Kirk-Session of the said congregation.

The respondents were - (1) the Reverend James Johnston and others, the minister and elders forming the kirk-session at Strathpeffer of the United Free Church of Scotland; (2) the deacons' court of the said congregation; (3) the said Minister, Elder and Deacons' Court, as representing the said congregation; (4) the Moderator and Clerks of the United Free Church of Scotland, as representing the said Church; and (5) Donald Macrae and William Mackenzie 'formerly trustees for the said congregation of the Free Church of Scotland and now or lately members of or adhering to the United Free Church of Scotland, for any interest they may have'."

The proper parties to the present action were those whose rights and interests the court had to adjudicate upon. This was a matter of considerable importance. The cases of General Assembly of the Free Church of Scotland v Johnston and United Free Church of Scotland v McIver illustrated the care taken to convene all potentially interested parties. Here the FC trustees and congregation had a manifest interest in the action. As the action was not at their instance it would not be res judicata against them. The prejudice to the defenders was that, if they were to succeed in their defence to this action, they would be at risk of an identical action at the instance of the FC trustees and congregation.

[14] The entirety of the pursuers' position was based on the relevant provision in the Feu Charter. Leaving aside the question whether that was a restricted power, it was certainly not an exclusive power and it did not exclude the trustees, whose right, title and interest remained. The Feu Charter certainly did not provide for the Moderator and Principal Clerk to sue on behalf of the congregation. In General Assembly of the General Baptist Churches v Taylor (1841) 3D 1030 both the General Assembly and the mandataries sued. The decision of Lord Coulsfield in MacLeod v Clacher 1993 SLT 168 was distinguishable because technically there was no trust or trustees and the Deacons' Court had the power to manage the property: in this case the power of management of the subjects lay entirely in the hands of the trustees. The powers of the Moderator and Clerk were undoubtedly restricted. They had full power, but it was only to do what was specifically set out in the Feu Charter, the wording of which was redolent of the position of a protector who ensures the trustees maintain the purposes of the trust. The provision in the Feu Charter did not deal with vindication of the trust property and did not give the moderator and principal clerk title and interest to seek the declarator in conclusion 1. Each word in the trust deed had to be construed.

(ii) Submission for the pursuers

[15] The submission for the pursuers in response was that they relied on the terms of the Feu Charter for their title and interest to sue. That conferred a very wide power on the Moderator and Principal Clerk ("full power and sufficient status"), in their capacity as representatives of the national church, to vindicate the purposes of the trust. The trustees accepted their appointment and the congregation derived its benefit from a deed which provided that it was for the Moderator and Principal Clerk to raise any actions to enforce, maintain or protect the trust. None of the cases referred to in the submission for the defenders involved a title such as the present one. It could not be said that the court did not know the position of the parties whose rights and interests in the trust were to be adjudicated upon. The pursuers made averments about the appointment of trustees just one week before the granting of interim interdict and about the trustees attempting to take possession of the subjects. Comfort could be drawn from 6/5 of process, a letter dated 26 February 2007 from the solicitors for the pursuers to the solicitors for the defenders in which it was maintained that Sleat and Strath Free Church of Scotland had title to the subjects. There was nothing in the wording of the Feu Charter to suggest that the power of the Moderator and Principal Clerk was limited to situations of breach of trust: if the Moderator and Clerk had the power to defend the property against the trustees then they must have the power to defend it against third parties.

[16] The Stair Memorial Encyclopaedia, dealing with the legal characteristics of a voluntary church, stated at para 1638:

"A voluntary Church, unless registered under the company's legislation, is not a corporation and its descriptive name is not a nomen juris. It is governing body or bodies, if it has any, do (sic) not, as such, have persona standi before the courts. ... A voluntary Church may nevertheless sue through representatives specifically delegated on its behalf."

At para 1640, which deals with title to sue, it is stated:

"As a voluntary association, no particular difficulty faces a Church as pursuer in formulating an action in terms which demonstrate its title to sue. In a question relating to property owned or possessed by the Church, the pursuers will be the trustees who hold that property for its behalf, those trustees being either those persons in whom a heritable title is vested or those who, in terms of the internal rules of the Church, are empowered to manage its property, or those to whom the property has been destined or gifted. In other cases, specially appointed representatives may properly sue on behalf of the Church, it being usual to narrate their appointment in the instance or condescendence of the summons."

[17] The decision of Lord Coulsfield in Macleod v Clacher 1993 SLT 168 was an example of a case where the trust deed gave someone other than the trustees power to raise proceedings safeguarding the property of the congregation. It was argued by the defender in that case, in which title to the manse was in the name of the former trustees for the congregation and there were no trustees in office at the time, that the Deacons' Court, which had the power to manage the property in terms of the trust deed, did not have title to sue. At p 321E-F Lord Coulsfield stated:

"Clause thirdly clearly provides that the property shall be under the immediate charge and management of the deacons. This power of management is not conferred on the deacons as agents or factors acting on behalf of the trustees, indeed, as the description of the practice of the church ... shows the trustees are expected to leave the management of the property to the deacons. The deacons, therefore, have authority to manage in virtue of a provision of the trust deed itself, not derived from any power or authority granted by the trustees. In that context, the words of clause thirdly, in my opinion, confer a wide general power upon the deacons and that power is wide enough to include authority to take legal proceedings to safeguard the property of the congregation or recover it from a person who does not claim to be a member of the church."

[18] Logically the first question in this case was whether the power conferred by the Feu Charter was wide enough to cover the present proceedings. It was suggested that the words in the Feu Charter "and it is hereby provided and declared that the Moderator and Clerk of the said General Assembly ... shall at all times have full power and sufficient status and right or interest to pursue or defend any action or actions ... for the enforcement maintenance or protection of the purposes and trusts" simply allowed the Moderator and Clerk to police the trustees. The present action had been brought to stop people who were not entitled to do so from using the manse. The declaratory conclusion was facilitative of the operative conclusion for interdict. If a person used the trust property without entitlement the purposes of the trust would be subverted. The present action therefore fell fairly and squarely within the above provision of the trust.

[19] So far as possible prejudice to the defenders was concerned, the difficulty postulated (that of the trustees and congregation bringing another action) was hypothetical and also fallacious, as the benefits of the trustees and congregation derived entirely from the Feu Charter, which precluded them from bringing such an action. The prejudice point was therefore without any substance.

(iii) Discussion and conclusion

[20] It is clear from their averments in condescendence 1 that the pursuers rely solely upon the terms of the Feu Charter for their title and interest to sue. I have set out in full the terms of clause firstly of the Feu Charter and repeated above the operative terms of that clause. I am of the view that, giving the relevant terms of the Feu Charter their ordinary and natural meaning, the pursuers do have the necessary title and interest to bring this action by virtue of the Feu Charter. The deed confers upon them "full power and sufficient status and right or interest to pursue or defend any action or actions ... for the enforcement maintenance and protection of the purposes and trusts". I consider that it is important to take note of the words "full" and "sufficient": they indicate that the Moderator and Clerk do not require the consent of any other party (which would include the trustees and the congregation) to bring an action. In the context of the organisation of a voluntary church such a provision is in my view clearly understandable and consistent with common sense, for it confers upon the central organisation of the national church the necessary title and interest to litigate in relation to specific church properties. As for the pursuers' point that the power conferred on the pursuers by the Feu Charter does not entitle them to pursue an action of the nature of the present action, I am of the opinion that this action falls clearly within the provision in the Feu Charter and that this point is without merit. So also, for the reason given in the submission for the pursuers, is the defenders' point about possible prejudice.

All parties not called

(i) Submission for the defenders

[21] The submission for the defenders was that the parties against whom the action had been raised were not the parties against whom it required to be raised for the court to be able to grant the declarator sought.

[22] The plea of all parties not called was explained in McLaren, Court of Session Practice at p 381:

"The meaning of this defence is that there are other persons who have not been called and whose absence will prejudice the defender who has been called, either in his defence or in his position after the defence has been repelled."

[23] Thomson and Middleton, Manual of Court of Session Procedure, dealing with actions of decelerator, put the position thus at p 131:

"It is necessary that the right sought to be established be disputed or challenged. There must be a proper contradictor. All parties interested in opposing the right must be called as defenders, so that the decree shall constitute res judicata as regards the right in question."

[24] It followed that if the correct interested parties were not called as defenders the matter would not be res judicata as far as they were concerned. The determination of the court would therefore be open to challenge by those interested parties who had not been called in the action. The court should not entertain a declaratory action in which all interested parties had not been called: if it were to do so, its determination of the matter would not be res judicata against those parties. In Allgemeine Deutsche Credit Anstalt v Scottish Amicable Life Assurance Society 1907 SC 33 assignees of an unsurrendered policy of life assurance raised an action during the lifetime of the assured against (1) the insurance company, and (2) the previous holders of the policy concluding for declarator (1) that the pursuers were in right of the policy, and (2) that the insurance company were bound, on the sums contained in the policy falling due, to make payment thereof to the pursuers, or the persons deriving right from them. The insurance company alone lodged defences. The First Division, affirming the Lord Ordinary, held that the action, so far as directed against the company, was incompetent and premature and that the insurance company were not the proper contradictors in a question as to who the policy in the meantime belonged. Lord President Dunedin stated at p 38:

"I have never known, and counsel have been unable to produce to us, any action of declarator where the Court gave a declarator as to a right without there being a proper contradictor present. It seems to me that the whole argument we have listened to this morning was vitiated by an assumption as to who the contradictor in this case is. The Insurance Company is not the contradictor as in the question of whom the insurance policy belongs to. The contradictor must be found among the ranks of the parties to whom at various times the policy belonged, and depends upon the question of whether these various steps or links of the chain of title are or are not correct. The Insurance company have no interest whatever, except simply to pay the policy when it becomes a proper claim"

It was therefore essential in actions of declarator that the proper contradictors to the right asserted be called, namely, those with a proper interest. In the present action interdict was also sought, but the disputed right was about title and benefit under a trust.

[25] The interdict case, depending as it did upon the declarator case, should also be dismissed. According to McLaren, Court of Session Practice at p 648:

"Whenever the right upon which the pursuer desires to found an action is not quite clear, it is necessary to preface his petitory, reductive, prohibitive or possessory conclusions with a declaratory conclusion. Thus, where the pursuer wishes to invert possession or uninterrupted use, he must first raise a declarator of his right."

The pursuers here were seeking declarator as a precursor to the prohibitive conclusion for interdict and it therefore followed that if the case for declarator was dismissed the case for interdict should also be dismissed.

[26] In Gillespie v Riddell 1908 SC 628, 1909 SC (HL) 3 an action was brought by the tenant of a sheep farm on an entailed estate, on the death of the landlord, against the next heir of entail, for declarator that that the landlord's obligation in the lease to purchase the tenant's stock of sheep at its termination was binding on the defender. It was held by the First Division, affirming the Lord Ordinary, that an individual legatee could not be called upon to discuss the validity of a claim against the testator's estate, which may or may not affect his legacy, in an action to which the general representatives of the testator had not been made parties. Lord Kinnear stated at p 636:

"If a debt is to be made good against the estate of Sir Rodney Riddell the proper contradictors are his testamentary trustees and executors, and an individual legatee cannot be called upon to discuss the validity of a claim against the general estate, which may or may not affect her particular legacy, in an action to which the general representatives of the testator have not been made parties. The Lord Ordinary's observation appears to be perfectly just when he says that the pursuer's proper course, if he has a claim against the estate, is to sue the trustees and executors in their own forum.

We can therefore express no opinion in this case as to the liability of Sir Rodney's personal representatives. They are not called as defenders, and no judgment we could pronounce in this action would be res judicata against them. The only question with which we are concerned is the liability of the heir of entail."

That case was analogous to the present one in which the defenders are four individuals sued as a result of their affiliation with the FCC on the basis that they have in some way asserted a right to a benefit under the trust. In Gillespie the defender was called partly in relation to her personal position and partly in relation to the estate in general. It was not sufficient in the present case that the action had been raised against four individuals who had asserted rights associated with the trust. The particular deficiencies in the identity of the defenders in the present case were that the purported trustees and beneficiaries of the FCC were neither called nor represented. The four defenders were called as individuals and not in any representative capacity. They were not "sufficient defenders" for the court to grant the declarator sought. The FCC congregation at Broadford had not been sued and any members of the congregation sued had been sued only as individuals.

[27] In Bridge v South Portland Street Synagogue 1907 SC 1351 it was held by Lord Salvesen that that a voluntary association, such as the Congregation of a Jewish Synagogue, could be sued by calling the association in its own name together with the office bearers representing it, and that it was not necessary to call all the members of the congregation. The present action had not been raised against the FCC congregation in its own name and its office-bearers although they were interested parties who should have been called. As they had not been called, the action fell to be dismissed. Similarly, the purported trustees of the FCC congregation had not been convened as defenders. In United Free Church of Scotland v McIver and General Assembly of the Free Church of Scotland v Johnston the trustees were represented on each side. The defenders in the present action averred at p 27C of the record who they claimed were the trustees with an interest in the action. The pursuers admitted who the trustees were at the time of the division in 2000. Only the second defender was convened from that group, and then only in an individual capacity, not as a trustee.

[28] The Stair Memorial Encyclopaedia states at para 1640:

"Where a voluntary Church is sued in an action relating to the ownership or possession of property, the appropriate defenders will be the trustees in whom the property is vested or who are entrusted with its management."

There may be cases, such as the present one, where the identities of the trustees were in issue: the appropriate way to deal with that was to convene the competing trustees on each side, as in Dingwall and Johnston.

[29] What was being sought was the declarator of identity of the trustees and beneficiaries and interdict of the defenders in the use of the manse. There was no indication in the instance or condescendence that any defender was being sued in a representative capacity. The first defender was the interim Moderator, that is, the person put in charge of the Kirk Session where the Charge was vacant. In many cases that office holder would be the minister locum tenens pending the congregation calling a minister of their own, but he did not represent the congregation. The second defender was an elder of the congregation and the third and fourth defenders were assessor elders but not members of the congregation. The Kirk Session was the governing body of the congregation. In previous cases there had been great clarity in suing the Minister and the Kirk Session as the governing body in its own right and as representing the congregation. There was a dispute about who were the trustees properly owning the subjects. There was no doubt that the FCC congregation had an interest. If these parties were not being called, prejudice was caused to the defenders. The pursuers should have called the correct defenders so that any decree would be res judicata as respects the right in question. A very serious question would arise about whether in defending this action the defenders were entitled to expenses from the trust or other body. If the defenders were to be unsuccessful, the Kirk Session and congregation could still occupy the subjects and if they were then to be sued the determination in the present case would not be res judicata against them and it would be possible that they could be successful in defending a separate action. In ordinary adversarial litigation it was not simply up to the pursuer to choose who to sue: all interested parties had to be sued. A voluntary association could be sued in the name of its office-bearers as representing it. It was for the pursuers to decide who required to be sued and they had not done that adequately in the present case.

(ii) Submission for the pursuers

[30] The pursuers submitted in response that the defenders' contention amounted to saying that the purported trustees and congregation of the FCC ought to have been called. The parties called as defenders were designed in condescendence 1. The first defender was the interim moderator of the Strath Congregation of the FCC. The second defender was an elder of that congregation. The third and fourth defenders were assessor elders to the Kirk Session of that congregation, and it was averred in condescendence 7 that they had prevented the FC trustees from regaining possession of the manse.

[31] The plea of all parties not called was all about prejudice to the parties who had been called. At no stage in either the pleadings or the submissions had the defenders pointed to any prejudice, nor could they do so. There were ample averments that the position of the purported trustees and congregation was being represented in this action. Reference was made to the averments in answer 3 from p19E to p 20D and in answer 5 at p 28A and from p 28C to 30A. A substantive defence was pleaded on the issue of entitlement to the subjects through continued adherence to fundamental principles. There was a community of interest between the defenders, the purported trustees and the congregation. The alleged entitlement of the defenders rested entirely on the same basis as that of the purported trustees and congregation. The circumstances of the present case had to be distinguished from circumstances in which, for example, unknown to the trustees of a deceased's estate, the heirs were called. In the Allgemeine case the Lord President said that the court would not give a declarator to a right without a proper contradictor being present. There was no question but that the proper contradictors were called in the present action. It could not be maintained that the purported trustees and congregation were not aware of the action. The four defenders were all office-bearers in the congregation and the second defender was also a trustee. In any event the pursuers did not recognise the purported trustees and congregation of the FCC. Any unrepresented interest could have applied to be sisted to the action.

[32] McLaren made clear that a plea of all parties not called fell to be taken by a defender who was prejudiced by a pursuer's failure to call other parties with a relevant but different interest. The defenders had made no averments of prejudice caused to them because some other party had not been called. The defenders' submission had changed from that originally set out in their Note of Argument, in which they had maintained that the other interested party was the FCC. The FCC (just "a bunch of individuals") was aware of these proceedings. The plea taken by the defenders was an artificial one not supported by relevant averments: the plea of all parties not called was not meant to be a trap for pursuers. The existence of these proceedings was known far and wide throughout the two churches. Any other interested party could have applied to be assisted as a party to the action. Those in FCC who had styled themselves as the trustees and congregation did not have a relevant interest. The operative conclusion in the action was for interdict against those interfering with possession of the subjects.

(iii Discussion and conclusion

[33] In my opinion consideration of the plea of all parties not called must be approached from the viewpoint of possible prejudice to the defenders. The test to be applied is set out with admirable clarity in the short passage from McLaren cited above. It is correct to say, as the pursuers submitted, that the defenders make no averments that prejudice will result to them because another party has not been convened as defender and nothing said in the course of submissions has persuaded me that that there are other persons who have not been called and whose absence will prejudice the defenders who have been called, either in their defence or in their position after their defence has been repelled. I think that the pursuers were correct in their submissions to categorise this plea as artificial in nature. The declarator sought in conclusion 1 is as a preliminary to the interdict sought in conclusion 2 and that interdict is sought against the parties who are averred to have interfered with the pursuers' rights of possession. I am therefore of the opinion that the plea of all parties not called is wholly without merit.

Relevancy of the pursuers' case

(i) Submission for the defenders

[34] The submission for the defenders on the relevancy of the pursuers' case consisted of two separate propositions.

[35] The first was that the pursuers' case about the appointment of the purported FC trustees was irrelevant because it was not averred by the pursuers that the congregation which appointed the trustees was "in use and occupation of the said place of worship" as required by Clause Thirdly of the Feu Charter. In condescendence 5 at p 24C-D the pursuers aver:

"This Congregation is entitled to the beneficial interest in the subjects. The Congregation has duly appointed trustees according to the provisions of the Feu Charter. The present trustees are Reverend Walker Stewart, John Norman MacDonald, John MacBeath and Alexander Angus MacLeod who were appointed at a meeting of the Congregation on 28 February 2007. These trustees and their acceptors and survivors are vested in the title to the subjects together with the church and manse erected thereon."

[36] The defenders reply by averring in answer 5 from p 27B to p 30B:

"Explained and averred that at the time of the hereinafter condescended upon division in the Free Church of Scotland in January 2000 the current trustees in terms of the Feu Charter were (1) the then Minister Reverend Allan MacIver, now residing at 38 Towerhill Crescent, Cradlehall, Inverness IV" 5SZ, (2) Reverend Donald M MacDonald, a retired Minister, now residing at 149 Cross Skigersta Road, Ness, Isle of Lewis, (3) the second defender, (4) Kenneth MacLeod, a member of the Free Church of Scotland, (5) James MacKenzie, a member of the Free Church of Scotland, now residing at Burnside, Mellon Charles, Aultbea, Ross-shire and (6) Malcolm MacQueen, a member of the Free Church of Scotland. The said Kenneth MacLeod and the said Malcolm MacQueen are now deceased. In May 2000 the congregation adhering to the Free Church of Scotland (Continuing) elected (1) Donald A MacInnes, 4 Drumfearn, Sleat, (2) Reverend Allan MacIver Jnr, 29 Bank Street, Aberdeen AB11 7TA and (3) Reverend David Blunt, now residing at Free Church Manse, Bayhead, North Uist, all members of the Free Church of Scotland and adhering to the Free Church of Scotland (Continuing) as trustees in accordance with the Feu Charter. At the time of the said election the said electing congregation was in use and occupation of the place of worship as referred to in the Feu Charter. The Feu Charter accords the power of appointment of trustees under the trust to the congregation in use and occupation of the said place of worship for the time being. The Feu Charter accords the power of appointment of trustees to members of the congregation who are in full communion with a united body composed of Christians adhering to the principles and practice of the Free Church of Scotland as understood at the time of the Feu Charter. The said appointments were made by members of the congregation adhering to the Free Church of Scotland (Continuing). As hereinbefore condescended upon, the Free Church of Scotland (Continuing) is a united body of Christians which adheres to the principles and practice of the Free Church of Scotland, as understood at the time of the Feu Charter. The members of the congregation who voted in the said election were therefore entitled to do so in terms of the trust. The Feu Charter provides that trustees must be in full communion with the body of Christians called at the time of the grant of the Feu Charter the Free Church of Scotland or of any united body of Christians composed of them. The elected individuals were at the time of their election members in full communion with the body of Christians called at the time when the Feu Charter was granted the Free Church of Scotland. They were in full communion with the Free Church of Scotland (Continuing). The said elected individuals were members in full communion with a united body of Christians composed of Christians adhering to the Free Church of Scotland as understood at the time of the grant of the Feu Charter. They continue to be members in full communion with and adhere to that body. They continue to be eligible to be trustees in terms of the said trust. These elected individuals, along with the surviving trustees from the time of the said division, are the current trustees in terms of the Feu Charter. Neither of the elections condescended upon by the pursuers on 2 May 2000 or 28 February 2007 involved congregations in the use, occupation or enjoyment of the place of worship referred to in the Feu Charter."

[37] The pursuers, after admitting the identity of the trustees prior to the division in January 2000 as averred by the defenders, respond in condescendence 5 from p 25B to p 26D to the above averments by the defenders as follows:

"Explained and averred that the Feu Charter provides that trustees must be in full communion with the Free Church of Scotland. It also provides that in the event of any trustee ceasing to be a member of the Free Church of Scotland then and in that case such trustee shall ipso facto cease to have any right to act. The trustees purportedly elected by the congregation adhering to the Free Church of Scotland (Continuing) had left the Free Church of Scotland and were not in full communion with it. They had no right to act as trustees in terms of the Feu Charter. Furthermore, the Feu Charter provides that only members of the Free Church of Scotland congregation in the use, occupation and enjoyment of the church being in full communion with the Free Church of Scotland may take part in the appointment of trustees. The members of the congregation of the Free Church of Scotland (Continuing) had left the Free Church of Scotland and were not in full communion with it. They had no entitlement to appoint trustees in terms of the Feu Charter. Those adhering to the Free Church of Scotland (Continuing) voluntarily separated themselves from the Free Church of Scotland. They set up an entirely separate organisation. They have continued to meet together, to worship and to exist as a separate body from the Free Church of Scotland. Around six people, including the Minister and his wife, left the Strath Free Church of Scotland congregation to form a congregation of the Free Church of Scotland (Continuing). They continued, however, to occupy the church and manse. They submitted their givings to the Free Church of Scotland (Continuing) and not to the Free Church of Scotland. Their Minister, Reverend Allan MacIver, was suspended sine die from his position within the Free Church of Scotland and he no longer received a stipend from it. Kenneth MacLeod remained as an elder and member of the Free Church of Scotland and as such remained a trustee until his death in 2006. Reverend Walker Stewart and John Norman MacDonald were appointed on 2 May 2000 at a meeting of the Congregation of Strath Free Church of Scotland."

[38] The submission for the defenders continued by contending that there required to be an assertion by the pursuers that the congregation purporting to elect the trustees was in use, occupation and enjoyment of the subjects at the material time. The pursuers' case insofar as it sought to have the people named in conclusion 1 declared to be trustees was irrelevant. There was lacking an averment that the congregation which elected the trustees was in use, occupation and enjoyment of the premises at the material time. The congregation could not elect new trustees while dispossessed of the subjects.

[39] The second proposition advanced on behalf of the defenders was that as the pursuers sought declarator in conclusion 1 that the subjects were "held in trust for the congregation of the body of Christians called the Free Church of Scotland at Broadford in the Parish of Strath, Skye, formerly known as Strath Free Church of Scotland and now known as Sleat and Strath Free Church of Scotland" these purported beneficiaries could never, in terms of the trust, be beneficiaries. The explanation for declarator being sought in these terms was to be found in the pursuers' averments in condescendence 4:

"In due course a church and manse were erected on the subjects. Following a division in the Free Church of Scotland nationally in 1900 the subjects together with the church and manse were allocated to the Free Church of Scotland for behoof of the congregation of the said Church in Strath known as the Strath Free Church Congregation by the Churches (Scotland) Act Commission in terms of an Order of Allocation dated 30 June 1909 and recorded in the Division of the General register of Sasines applicable to the County of Inverness on 15 July 1909. On 9 April 2001 Strath Free Church Congregation united with Sleat Free church Congregation and became one congregation in terms of Act XVII of the Commission of the General Assembly of the Free Church of Scotland of March 2001. With reference to the defenders' averments in answer, it is admitted that in terms of the said Order of Allocation the subjects were allocated to the Free Church of Scotland to be held for the purposes of and in accordance with the constitution of the Free Church and that they were to be held by the person or persons entitled to hold the same according to the terms of the existing titles. Quoad ultra denied. Explained and averred that, as condescended upon in article III, in terms of the said Feu Charter the subjects are held in trust for the congregation of the body of Christians called the Free Church of Scotland at Broadford in the Parish of Strath, Skye. The church and the manse are to be used, occupied and enjoyed by a congregation of the said body of Christians called the Free Church of Scotland. The Congregation of the Free Church of Scotland formerly known as Strath Free Church of Scotland is now known as Sleat and Strath Free Church of Scotland since it united with the Sleat Free Church of Scotland Congregation on 9 April 2001. It continues to be the Congregation of the body of Christians called the Free Church of Scotland at Broadford and is entitled to the beneficial interest in the subjects. It has been prevented from meeting regularly at the church building in Broadford because those adhering to the Free Church of Scotland (Continuing) occupied the church. It is permitted by the Free Church of Scotland (Continuing) to hold special services in the church."

[40] The defenders' averments in answer (in which they refer to the FC as "the Residual Body") are:

"The subjects continue to be held in accordance with the conditions as laid out in the said Feu Charter. The members and adherents of the congregation of Strath adhering to the Residual Body united with the Congregation of Sleat adhering to the Residual Body on 9 April 2001. The newly united congregation of the Residual Body formed thereby does not worship in Broadford. It worships in Kyleakin and Sleat. The subjects disponed by the Feu Charter were disponed to trustees to hold the property for the benefit of the Free Church of Scotland Congregation at Broadford. The pursuers intend for (sic) the subjects to be held for the benefit of members of and adherents to the Residual Body who worship at Sleat and who have never worshipped at Broadford. The pursuers are called upon to aver how the trust purposes were varied with the result that the purported trustees hold the property for the benefit of the Sleat Free Church of Scotland Congregation. The pursuers' failure to answer this call will be founded upon."

[41] The pursuers were relying on certain provisions in the Feu Charter as the basis upon which they asserted that Sleat and Strath was a congregation, but those provisions of the Feu Charter had to be understood in the context of prior references to beneficiaries under the trust. It was clear from the terms of the Feu Charter that the beneficiaries were the congregation and that they required to have certain characteristics. The truster had chosen the congregation on the basis that it was of the Free Church of Scotland and worshipped at Broadford in the Parish of Strath in Skye. It would be competent for the trustees in the present circumstances to petition the court to alter the trust purposes. The congregation had to be a congregation which worshipped only in Strath. The united congregation could not have elected those whom the pursuers asserted were the trustees. The Strath FC Congregation no longer existed as it had united in March 2001 with Sleat FC Congregation. When there was a union of two congregations as opposed to a linked charge or a parish grouping the united congregation was a new body. The question of union of congregations was one for the higher authorities within the church, in this case the Commission of Assembly on petition from the presbytery. In this case the old body had ceased to exist and a new body covering a larger geographical area had come into being. The new body had its own place of worship and had built a new manse. What the pursuers were seeking to do here was to have the court exercise, by way of an ordinary action, the supervisory jurisdiction over trusts, which lay with the public trust judge. The division was known about in January 2000 but no steps were taken to control the church and manse, although an explanation for that had been given by the pursuers. The pursuers had been content that the FCC should be in the manse at Broadford till 2007, by which time the Congregation for Sleat and Strath had been in existence for six years and its place of worship was not at Broadford. They were therefore not in the position posited in the trust deed to enable them to appoint trustees. They could have raised proceedings for possession of the subjects. For a trust of this nature it was important that the premises were used because of the Entail Sites Act 1840, section 7. The subjects were being used by the FCC, not by the FC. The pursuers were trying to do what would have to be done by way of a cy-près scheme. That might involve both the FC and the FCC and the devising of a system of management to deal with competing interests: it was far from uncommon nowadays for church premises to be used by different groups at different times.

(ii) Submission for the pursuers

[42] The submission for the pursuers in response to the defenders' first proposition was that "use, occupation or enjoyment" in the Feu Charter must mean having the right to the use and occupation of the subjects. If that were not the case the consequences would be absurd: for example, if the congregation were ousted by force, or was unable to use the subjects due to extensive renovations being carried out, it would not be able to elect trustees. The pursuers averred that they were unlawfully excluded from occupation and were lawfully entitled to occupation.

[43] The submission for the pursuers in answer to the defenders' second proposition (about the united congregation) was that all that had happened was that the Congregation of Sleat and Strath had become bigger. The following averment in condescendence 4 at p 21A was admitted by the defenders:

"On 9 April 2001 Strath Free Church Congregation united with Sleat Free Church Congregation and became one Congregation in terms of Act XVII of the Commission of the General Assembly of the Free Church of Scotland of March 2001."

It was also averred at p 22A that the united congregation was prevented from meeting regularly at the church building in Broadford because those adhering to the FCC occupied the church. The united congregation had maintained its presence at Broadford, albeit it had to meet in the Church of Scotland building there. The pursuers averred and the defenders admitted that the Congregation of Strath and Sleat was a congregation in terms of the Feu Charter. The Order of Allocation (6/2 of process) emphasised the parish, as did the Feu Charter. No issue arose from the uniting of the two parishes. The united congregation was a congregation of the FC at Broadford in Strath now known as Sleat and Strath Congregation and the only reason it had not been meeting more regularly was because it was not permitted to do so by the defenders. The Feu Charter made provision for the congregation at Broadford uniting with a body which was not part of the FC and for the united body to be entitled to the use, occupation and enjoyment of the subjects. It was a lesser thing for the church to be used by a congregation which was the product of the uniting of two congregations within the FC itself.

[44] In Stair Memorial Encyclopaedia, Volume 3 at para 1527, dealing with the Church of Scotland, it is stated:

"In a united charge ... the property and funds which formerly belonged to each congregation are held on behalf of the united congregation, any transfer being duly effected."

At para 1646, dealing with voluntary churches, the following was stated:

"Just as a congregation or a party within it may lose the benefit of property held for particular religious purposes if it materially alters its original principles, so if it accedes in good faith to another existing body for the purposes of which the property is held on trust, and adopts the principles of that body, it will become entitled to participate in the benefit of such property, irrespective of the source from which that property was donated."

The authority cited for the above statement of the law was Ferguson Bequest Fund (1899) 1F 1224. Where congregations of different denominations united there was no breach of trust if there was continuing adherence to fundamental principles and the trust property was held for the new body. The same principle applied where congregations of the same denomination united. The property and funds formerly held by each congregation were then held by the united congregation. It was not necessary to resort to a cy-près scheme every time congregations united.

(iii) Discussion and conclusion

[45] In my opinion the two propositions advanced by the defenders are unsound in law. The use and occupation referred to in the Feu Charter must mean lawful use and occupation, as otherwise a body which seized possession of the subjects by force would have rights over those lawfully entitled to use and occupation. I accept the submission for the pursuers that such a consequence would be absurd. It is clear from the averments made by them that the pursuers have never abandoned use and occupation of the subjects in the sense of giving up their lawful entitlement to the use and occupation of the subjects. All that has happened is that they have not been permitted to exercise their lawful right to use and occupation of the subjects by the actions of the defenders and FCC. So far as the second proposition is concerned, it seems to me that it is both pedantic and wrong. All that has happened is that the new united congregation of Sleat and Strath has replaced the former Congregation of Strath and now has the entitlement to the lawful use and occupation of the subjects which was formerly enjoyed by the Congregation of Strath. The united congregation fulfils the requirements set out in the Feu Charter.

Relevancy of the defences

(i) Submission for the pursuers

[46] The submission for the pursuers in support of their fourth plea-in-law consisted of the following eight key points:

(1) In terms of the Feu Charter the subjects were disponed to the trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford.

(2) In terms of the Feu Charter the subjects were to be used, occupied and enjoyed by a Congregation of the FC or of any united body composed of them and of such other body or bodies of Christians that the FC may at any time associate with.

(3) The pursuers sought to vindicate the right of the Trustees of the Congregation of Sleat and Strath FC to the subjects.

(4) The defenders admitted that the pursuers were the Moderator and Principal Clerk of the FC seeking that the subjects be held for the benefit of the Sleat and Strath Congregation.

(5) The defenders admitted that a division occurred within the FC in January 2000 and that a minority of ministers associated themselves under the banner of the FCC.

(6) The defenders admitted that they adhered to the FCC and that those who adhered to it occupied the subjects at Broadford.

(7) The defenders' averment that they were entitled to the subjects because they adhered to the principles and practice of the FC were irrelevant in the absence of an averment that the FC congregation in question did not so adhere.

(8) Even if adherence to the principles and practice of the FC meant that the defenders had not forfeited their right to the subjects, there was no basis averred in the defences upon which the defenders should be preferred over the FC Congregation or permitted to share the subjects with the FC Congregation.

[47] The Feu Charter provided that the laws of the FC were to govern the use, occupation or enjoyment of the manse. The manse was for the minister for the time being so long as he was not subject to a sentence of the FC debarring him from use of the manse. The trustees were to be members of the FC and only members of the FC congregation were entitled to vote in their election. The conditions imposed by the Feu Charter were those chosen by the original truster and use of the subjects tied in with membership of and good standing within the FC. In Free Church (Continuing) v Free Church 2005 SC 396 the FCC had sought the entire assets of the FC. Lady Paton dismissed the action, holding that the FC had not departed from the fundamental tenets of the FC and were entitled to the property and assets held in trust for the FC. At the same time her ladyship concluded that the FCC was not in breach of any fundamental tenets of the FC and so from the point of view of adherence to fundamental tenets they had not forfeited any right to the assets held in trust, but they had not averred a relevant case for apportionment because of their prima facie failure to comply with the undertakings they had given on joining the church. Adherence to fundamental principles was sufficient for the FC but insufficient for the FCC because of their prima facie failure to comply with the discipline and government of the church.

[48] The submission for the pursuers then proceeded to deal with the authorities cited to Lady Paton. In Bannatyne v Overtoun (1904) 4F 1083 the Lord Ordinary, Lord Low, stated at p 1103:

"The pursuers claim alternatively that they have right to participate in the funds and property of the Free Church. Now, it seems to me that either the pursuers are the Free Church of Scotland, and are therefore entitled to the whole funds and property held in trust for that Church, or they have entirely separated themselves from the Free Church, and therefore have no right to any part of its property. As my opinion is that the pursuers are not the Free Church of Scotland, it follows that I cannot hold them to be entitled to participate in the property of the Church."

When the case reached the House of Lords there was no reference in the speeches of their lordships to the issue of apportionment but in the course of oral submissions there the following exchange took place between Lord James of Hereford and Mr Salvesen KC for the pursuers (the minority which had not joined with the United Presbyterian Church):

"LORD JAMES OF HEREFORD: You have dissented from the majority; if on the main question the contention is right that the Free Church were acting within their power, they have simply done that which they have a right to do; you have dissented from them, saying 'We will not join with you', and you go away; assuming the first premise, does not that do you out of the right to hold the property? I will put an almost absurd case: supposing they said, 'We intend, instead of having the General assembly in one town to have it in another', and you say you will not have anything to do with them on that account, what claim would you have to the property then?

MR SALVESEN: I agree I should have no claim.

LORD JAMES OF HEREFORD: Then do we not come back here to the question whether the Church have acted within their right or not?

MR SALVESEN: I think probably that is so.

LORD JAMES OF HEREFORD: That gets rid of this question."

(Free Church of Scotland Appeals 1903-4, edited by Robert Low Orr, p 336.)

[49] Accordingly, when the church has simply done that which it has a right to do, the act of going away does those who go away out of the right to hold property: it is not sufficient for those who go away to show that they still adhere to fundamental principles. Those who had left had just left the Church and had no claim to its property. The above exchange was directly in point so far as the situation in the present case was concerned.

[50] In Craigdallie v Aikman [1820] 2 Bligh 529 a meeting-house was built in 1736 by contributions of materials, money and labour, and collections at the church door, of persons professing the principles of those who seceded at that time from the Church of Scotland. The meeting-house, and ground on which it was built, were vested in certain persons, as trustees for the use of the society, and managers of the house of public worship for the Associate Congregation of Perth. A schism took place in 1796 among the members of this religious community and several of the members, including the representatives of some of the trustees to whom the legal right of property had devolved separated themselves from the rest of the community and absolved themselves from the authority of the Associate Synod, which was the constituted authority for the government of the community. The separation took place on the ground of alleged difference of opinion about the power of the civil magistrates in religious concerns, which the Court of Session pronounced to be unintelligible. The House of Lords held that in a case where it was difficult to ascertain who were the legal owners, as representatives of the contributors, the use of the meeting-house belonged to those who adhered to the religious principles of those by whom it had been erected, and those who had separated themselves from the Associate Synod, and declined their jurisdiction, were held to have forfeited their right to the property, although it had been judicially declared that there was no intelligible difference between them and the adherents of the Synod. In that case neither group had departed from fundamental principles: the pursuers had just separated themselves from the Church structure and so had lost their property rights.

[51] In Smith v Galbraith (1843) 5D 665 an action was raised by two proprietors of a Dissenting chapel, and by the minister who had been declared by the church judicatories of the Dissenting body to be out of their communion, against the other proprietors to have it found that the principles held by the Dissenting body when the chapel was built and joined in their connection, embraced the Establishment principle, or duty of the State to maintain an endowed Church as a scriptural doctrine, and that the minister and proprietors, the pursuers, adhered to these principles, including that of a national Establishment of religion, while the church judicatories of the body and the other proprietors of the chapel had deviated therefrom by denying the lawfulness and scriptural character of such an Establishment. It was held by the Second Division that the pursuers had failed to prove that the Establishment principle had been held originally as a fundamental and essential tenet of the Dissenting body in question and that, the chapel being held in trust for a congregation belonging to that Dissenting body, could be enjoyed and occupied only by a congregation and minister in their communion, and that this was an essential condition and quality of the trust. At p 677 Lord Justice-Clerk Boyle stated:

"The pursuers contend that, according to the principles of law as laid down in the case of Aikman when disposed of in the House of Lords, and since acted upon in other cases, particularly in that one called the Clough case decided in the Court of Exchequer in Ireland, property which has been settled in trustees or managers for a certain religious body must remain vested for behoof of those who adhere to the original tenets of that religious body, and cannot be retained or disposed of by a majority of the body, however large, that has deviated from those original principles (and by which decisions we must all be guided), the pursuers are entitled to succeed in the conclusions of this action, for having the property of the Relief Church at Campbelton declared to belong to the parties therein mentioned, and the other conclusions of the action found in terminis.

In order to obtain such a decree from this Court it is, however, indispensable that the pursuer shall prove, by evidence that is clear and unequivocal, that, as this particular church at Campbelton was to be held for behoof of persons, members of, and in communion with, the Church of Relief, which was first established in 1761, the defenders, who, as a majority of managers, proprietors and contributors, assert their right to the property, have deviated from certain fundamental and essential principles of the Relief Church, and that the pursuers themselves, though a small minority, now adhere to those principles from which the defenders have so deviated, and are therefore entitled to have the property declared to belong to them exclusively, while Mr Smith should be declared as alone entitled to the use of the church, and possession of the stipend provided under its constitution."

In that passage Lord Justice-Clerk Boyle was explaining what the leaving group had to show in order to maintain its property rights: it was not sufficient for it to establish that it adhered to fundamental principles.

[52] In Craigie v Marshall (1850) 12D 523 the title to a dissenting meeting-house was vested in trustees "for behoof of the members of the Associate Congregation in Kirkintilloch commonly called Seceders, and presently in connection with the United Secession Church". The minister of the congregation declared his separation from the Secession Church and a majority of the congregation adhered to him. Shortly thereafter a union took place between the Secession and the Relief Churches, the two bodies taking the name of the United Presbyterian church. In an action by a minority of the congregation who adhered to the United Presbyterian church against the minister and the majority it was held by the Second Division that, the defenders having separated from the Secession Church was not a violation of the conditions on which the property of the meeting-house was held in trust so as to lead to a forfeiture of their rights to it, they still continuing to hold the doctrines and opinions originally maintained by that body, and that they were entitled to refuse to concur in the union with the Relief Church and were not bound to submit themselves to the change in the Church government consequent upon it. Lord Justice-Clerk Hope sought to clarify the law from p 534 onwards. He stated that it was fallacious to think either that the majority of the congregation ruled or those adhering to the governing body ruled. At p 541, dealing with the case of Craigdallie, he said:

"As no difference could be made intelligible to the Court in Craigdallie's case, then, in that very strange and unexampled state of things, the party leaving their church and Synod were held, as the only mode of solving the matter, to have gone out of their congregation and trust without cause; and in this way alone it was that the concurrence between Aikman's party and the Synod came to be of weight."

Accordingly, if the leavers adhere to fundamental principles and the stayers do not, then the leavers are entitled to the property, but if the leavers leave when the stayers do still adhere to fundamental principles, then the leavers lose their entitlement to the property, whether or not they adhere to fundamental principles. The above passage from the opinion of Lord Justice-Clerk Hope clearly and pithily stated the proposition advanced by the pursuers in this case.

[53] In Couper v Burn (1859) 22D 120 a congregation of seceders possessed a chapel which was vested in trustees for behoof of a congregation in connection with the body that afterwards became the "United Associate Synod of Original Seceders". A majority of the synod joined the Free Church; the minority met and constituted themselves the synod, adhering to their former principles. The congregation was divided, but a majority was in favour of the union. In an action of declarator by the minority to vindicate their right to the chapel it was held by the Second Division, affirming Lord Low, that, having regard to the trust title under which the property was held, the chapel belonged to the part of the congregation which adhered to the principles maintained by the church for whose behoof it was vested in trustees, that a majority of such a body were not entitled to compel the minority to unite with any other body, or divert the chapel from the purpose for which it was held in trust, that the principles of the Free Church and the United Associate Synod of Original Seceders were different in essential particulars, and that the pursuers were entitled to the declarator sought. That decision supported the proposition that individuals who voluntarily left a congregation lost their right to and interest in the ecclesiastical fabric.

[54] In MacKay v MacLeod (10 January 1952, unreported) the subjects were held in trust "for the sole use and behoof of the Congregation of the Body of Christians called 'The Free Presbyterian Church of Scotland' presently worshipping in the Free Presbyterian Church, North Church Place, Inverness, and adhering to the Constitution and to the whole standards of the Free Church of Scotland as set forth and enumerated in the hereinafter mentioned Deed of Separation". The Deed of Separation was later identified as the document by which certain ministers and elders separated themselves from the Free Church in 1893 in order to form the Free Presbyterian Church, and it contained an enumeration of a number of well known doctrinal and ecclesiastical formularies, beginning with the Westminster Confession of Faith, in which the constitution and standards of the Free Church were to be found. The trust destination then proceeded to deal with the eventuality of "any Disruption or Secession" taking place in the congregation and provided that, in that event, the subjects were to belong to the section of the congregation, whether a majority or minority, who adhered to the said constitution and whole standards "in all particulars". The action related to a single congregation in Inverness which, until 1938, worshipped in a church in North Church Place, subject to the local Presbytery, and ultimately to the Synod of the Free Presbyterian Church of Scotland, the supreme court of that Church. In 1938 the congregation split into two sections, one of which (represented by the pursuers) continued to worship in North Church Place and to form an integral part of the organised Free Presbyterian Church, and the other of which (represented by the defenders) led an isolated and separate existence, worshipping in a hall in Academy Street, and unconnected with the organised Free Presbyterian Church. The cause of the division lay in the history during the previous 27 years of a prolonged controversy which began as one between the late minister and a lady member of the congregation. In 1924 she was suspended by the Kirk Session from church privileges at the minister's instigation. In 1938 the Synod eventually granted the lady's application for reinstatement, whereupon the minister tabled a protest. At p 24 of his opinion Lord President Cooper said:

"Being forced to the conclusion that it has not been made to appear that the defenders have ceased to adhere to the constitution and standards of the Church as defined in the trust, I must hold that the pursuers have failed to show by relevant averments that they have a right and title to the subjects exclusive of the defenders, and therefore that the situation before us is a casus improvisus under the trust. It follows that the action must be dismissed."

It was important to note that in that case, as Lord Carmont pointed out at p 6 of his opinion:

"the terms of the title seem to exclude from relevance the fact of secession if the Constitution and whole standards of the Free Presbyterian Church are adhered to".

The general principle had in that case therefore been altered by the terms of the trust deed.

Earlier in his opinion the Lord President had stated the general principle at p 23:

"If the difference leading to a secession relates to a matter not covered by the constitution and standards, and if therefore the continuing section cannot be shown to have violated or departed from the constitution and standards, the seceders secede at their peril and cannot by professions of conscientious conviction elevate minor or extraneous points of controversy into principles embodied in the Church's constitution and standards."

[55] The defenders admitted that they had left the structure of the FC and had set up their own structure. There was and is an FC and the body to which the defenders belonged took themselves away from that and set up their own structure. As the defenders did not aver that the FC no longer adhered to its fundamental principles they had lost their property rights. There was a sharp issue between the parties as to how the series of authorities had to be understood. The defenders' analysis of the authorities was fundamentally misconceived: if they were correct chaos would result since the FCC had set up competing trustees. What the authorities clearly showed was that those who left a voluntary church and separated themselves from its structure lost their property rights in it unless they showed that they adhered to the fundamental principles of the Church and that those who remained within the structure did not. Neither group in the present case averred that the other did not adhere to fundamental principles. The authorities did not support the view that the courts had no power to intervene in this situation. The solution which the pursuers suggested was simple and produced a workable result.

[56] It was quite clear that if a group left the structure of a voluntary Church, even if it adhered to fundamental principles, it lost its property rights in the Church as long as it did not impugn the fundamental principles of those who remained within the structure. The law was quite clear and perfectly straightforward. According to the defenders, if the division came about for personal reasons the courts could not intervene and regulate property rights. The process of people leaving the Church could go on ad infinitum. The circumstances in which the FCC set itself up as a voluntary church were set out by Lady Paton at paras 22 and 23 of her opinion in Free Church (Continuing) v Free Church. It was accepted by the defenders that the FC retained the existing structure and the FCC set up a new structure. The case was not concerned with formal secession, but factual separation from the formal structure of the existing Church. On that basis there was nothing to go to proof on the issue of fundamental relevancy between the parties. If the defenders were correct, the action had to be dismissed. If the pursuers were correct, the defenders had lost their property rights. A proof before answer would achieve nothing. If the defenders were correct the result would be astonishing: a group setting up a parallel structure would just be left to get on with it.

[57] The submission for the pursuers was summarised in the four following points:

(1) The authorities did not support the defenders' contention that adherence to fundamental principles was sufficient in itself to entitle them to the use of the subjects.

(2) The authorities insisted that the leavers had to show that those who had stayed had departed from fundamental principles.

(3) In practical terms, how could adherence to fundamental principles be the sole basis of entitlement to use of the subjects? What would happen if there were a further split, or a split into three sections?

(4) If adherence to fundamental principles is the sole test, there being no averments that the FC congregation does not adhere to fundamental principles, why is it not entitled to the use and occupation of the subjects? It could not be a simple matter that it is not in use and occupation of the subjects.

(ii) Submission for the defenders

[58] The submission for the defenders was that the contentions for the pursuers failed because one essential part of their contention, which was sought to be inferred from an admission, was not made out. The pursuers sought to characterise the FCC as the leaving body and the FC as the original body or staying section. For the defences to be irrelevant and decree to be pronounced without proof that characterisation of the two competing bodies had to proceed from something in the pleadings. The only point made to that end was the fifth of the pursuers' opening eight points. It had been indicated that the defenders admitted that there was a division in the FC in January 2000 and that "ministers associated under the banner of the FCC". That statement paid no or scant respect to the defenders' pleadings. The defenders at no point averred or admitted that the ministers or elders of the FCC either seceded or withdrew from the original body, as happened so often in eighteenth and nineteenth century Scotland. The defenders' position on Record was quite to the contrary: they offered to prove that the body of Christians known for administrative purposes only as the FCC was the FC. It was not even correct to say that the defenders simply admitted a division. The pursuers averred in condescendence 6 at p 32D that in January 2000 a minority of ministers, elders, members and adherents left the FC nationally and formed the FCC, a different registered charity. That averment was denied by the defenders, who made the following positive averments in answer 6 at p 34A-C:

"Explained and averred that the Free Church of Scotland (Continuing) is a united body of Christians adhering to the laws and practice of the Free Church of Scotland. In January 2000 a division occurred within the Free Church of Scotland. A minority of ministers associated themselves as a united body of Christians known as the Free Church of Scotland (Continuing). The name Free Church of Scotland (Continuing) has been adopted by the minority and those who adhere to them for administrative purposes only. The Free Church of Scotland (Continuing) adheres to the laws and practice of the Free Church of Scotland. As such, the ministers, elders and adherents of the Free Church of Scotland (Continuing) have not forfeited any rights which they enjoyed prior to the said division insofar as those rights were vested in the body of Christians called the Free Church of Scotland or any united body composed of Christians adhering to the body called the Free Church of Scotland prior to that division."

The matter was made abundantly clear by the averment in answer 1 at p 10E - 11A, where the defenders averred:

"The Free Church of Scotland (Continuing) is an association or body of Christians which adheres to the principles and laws of the Free Church of Scotland. On that basis the Free Church of Scotland (Continuing) is the Free Church of Scotland as formed in 1843."

[59] There were therefore two entirely distinct and separate organisations or ecclesiastical structures with separate assemblies which claimed to be the successors of the FC as formed in 1843. That dispute would have to be resolved by the court. In the present action discrete issues were being considered, as opposed to the wider issues involved in Free Church (Continuing) v Free Church. Lady Paton's view in that case was that neither group had been shown to have departed from fundamental principles. The present defenders were not parties to the action in that case, which involved the national church. The present case involved congregational property.

[60] The defenders' submission was that, having regard to the dispute joined between the parties to this litigation, the case could not on the pleadings be characterised as a secession or leaving case. Secession was a technical word, meaning withdrawal from the body, normally by some form of declaration that the group no longer adhered to the body and had set up a new body. It was leaving in a philosophical or religious sense as opposed to one section just walking away from where the others were. There may be, as there was here, a physical walking away from a meeting, but equally no meeting may be involved at all, simply a letter or communication from one section that as a group it was withdrawing from the parent body. The heart of the issue to be examined at a proof was the contention by the defenders that the ministers and elders who walked away from their brethren in January 2000 did not walk away from the FC. It was of the utmost importance to remember that what was being considered was an unincorporated voluntary association, which was in very sharp distinction to the position where there was an established corporate church. It was also starkly different from an episcopal church, where the authority was in the bishop and individual members had very little power: for example, they could not call their own minister as a Presbyterian church could. The division which occurred in January 2000 had to be characterised in the context of a voluntary religious association. Did those who walked away leave the FC, was it a division for which no one was to blame, simply a division in a voluntary organisation, or an attempt by a majority unlawfully to expel or suspend a minority? The defenders' averments in answer 5 at pps 30-32 suggested that it was the third of these possibilities. As the court had to determine a fundamental issue which had been joined between the parties the pursuers could not succeed in their attempt to obtain decree without a proof.

[61] The pursuers did not suggest on record that the FCC did not adhere to the fundamental principles or tenets of the FC, nor was there a case on record that any of the four individual defenders were in breach of any lesser obligation. The issue was very narrowly focused by the pursuers at p 26A-B, where they averred that those adhering to the FCC voluntarily separated themselves from the FC, set up an entirely separate organisation and continued to meet together, to worship and to exist as a separate body from the FC. In effect, the pursuers were saying that all they needed to do was to point to separation.

[62] The authorities which had to be considered fell into three distinct categories: (i) the national church cases; (ii) the Congregational Trust cases of the nineteenth century; and (iii) the case of MacKay v MacLeod.

[63] The national church cases were of limited importance to the essential issues in the present case. Each dealt with the issue of fundamental principles in a different context. The pursuers here did not aver departure by the defenders from fundamental principles. In Free Church (Continuing) v Free Church Lady Paton had found that neither body had departed from fundamental principles. She was of the view (at para 76) that some or all of the pursuers in that case might be in breach of promises or undertakings made on joining the FC, but matters had still to be ruled upon by the General Assembly. In those circumstances she thought it inappropriate (at para 78) for the court to rule relevant and competent a possible apportionment of the property and assets between the pursuers and the defenders. The apportionment claim in that case was therefore rejected not because it was impractical, unworkable or unsound, but because there remained the outstanding discipline issue. Neither party in the present action was seeking apportionment.

[64] In Bannatyne v Overtoun the successful appellants showed that, as regards property, the FC had no power to vary its doctrine and also that the respondents, by virtue of their union with the United Presbyterian church, had not preserved identity with the FC. There was a departure from fundamental principles because of that union. So far as the exchange in the House of Lords between Lord James of Hereford and Mr Salvesen was concerned, it did not show that mere adherence to fundamental principles by the leaving group was not sufficient for them to retain their property rights. If neither party is in the wrong, a compromise may be necessary. Lord Robertson in his speech at [1904] AC 515 at pps 667-8 said:

"The Church thus set up was endowed, by the liberality of its members, with the property now in dispute. Two competitors now claim it. Of the respondents, the first remark to be made goes to the very root of their claim. They are not, either in name or composition, the Free Church of Scotland. They are not even the majority of the Free Church, but the assignees of the majority of the Free Church; they are a body formed in 1900 by the fusion of the majority of the Free Church with another body of Presbyterian Dissenters, the United Presbyterian Church. The property of the Free Church is claimed by this composite body, which, to the extent of a third or some large proportion (for the particulars are not before us and are unimportant), is composed of United Presbyterians. Of this new body it may be affirmed nearly as truly that it is United Presbyterian as that it is Free Church, and its name 'United Free Church' suggests the fact.

Now I do not attach conclusive importance to the name; but it is important and still more significant. In any view, the change of name and the fact of fusion put it on the respondents to prove their identity with the original beneficiaries. They have to do this, too, not in a question with the heirs-at-law of the founders, but in competition with an existing body of ministers and members of the original Free Church, who have simply stayed where they were, and about whose pedigree there is no dubiety."

That passage did not set an uphill struggle for the present defenders, for the situation in that case was hardly comparable with the situation in the present case. Here there was one body before the division and there were two bodies after it. The second body, the FCC, had a separate Scottish charities number for revenue purposes, which was entirely unsurprising. Out of the division of 1900 there were two bodies, the minority who remained and the majority who united with the United Presbyterian Church. The question was whether the court could deal with property issues by reference to fundamental principles: until that was done the court could not tell which of the two competing bodies represented the preceding body. The ambit of the jurisdiction of the civil courts was restricted to determining the purposes of the trust. The case of Bannatyne v Overtoun was therefore of no assistance to the pursuers. The question was one of adhering to doctrines, not adjudicating upon them.

[65] The first of the congregational cases was Craigdallie, a difficult case, as Lord Justice-Clerk Hope explained in Craigie. Lord Chancellor Eldon failed to reach a decision. His struggle and his doubts were set out at pps 440-441 of the report. He could not make his mind up and left the matter in the hands of the Court of Session. The case was one of voluntary separation by the pursuers for which there was no assignable cause and no fault on the part of the defenders, who were in possession of the property. The pursuers failed conclusively to prove their case against the defenders on any number of grounds. The present pursuers' case was based only on separation, not on deviation from fundamental principles, and the defenders were in possession of the church. It was averred in answer 8 at p 39B that the majority of those members of and adherents to the FC who used the subjects for worship at the time of the division in 2000 had had continued to use it as members of or adherents to the FCC. The FCC had continued to use the church as a place of worship for the congregation at Broadford. The now united Sleat and Strath Congregation of the FC had their place of worship at Sleat.

[66] Smith v Galbraith was a fundamental principles case and the pursuers failed to prove their case.

[67] The decision in Craigie v Marshall showed that separation was not enough to deprive those who left of their property rights: there had to be a departure from fundamental principles. In that case Dr Marshall left the pre-existing body but adhered to fundamental principles and maintained his property rights. Adherence to fundamental principles could therefore be sufficient to provide entitlement to the property held in trust.

[68] Couper v Burn showed that the question was one of going back to the terms of the trust.

[69] The only case in the third category was Mackay v MacLeod, the issues in which turned on the aftermath of a formal protest by a minister. The defenders adhered to the protesting minister and they worshipped away from the church buildings in a manner unconnected with the Free Presbyterian Church, while the pursuers adhered to the Free Presbyterian Church and occupied the church building. The Lord President made plain at pps 2-5 of his opinion that the civil courts cannot investigate personal matters or matters germane to the church courts. The Lord President found that the defenders' attack on the pursuers' case failed as there had been no departure by the pursuers from fundamental tenets - and no departure by the defenders either. It was simply a dispute which led to a difference without a distinction. The upshot of that case was that the actual leaver who moved to a new building and set up a congregation without a presbyterial system could not be debarred from the benefit under the deed of trust.

[70] The above authorities completely supported the defenders' position that the test which the courts applied was adherence to fundamental principles. The courts would not adjudicate on minor matters but were prepared to identify fundamental principles for the purpose of determining competing claims to trust property (Lord Justice-Clerk Hope in Craigie at p 531), but if neither group can be shown to have departed from fundamental principles the pursuers fail to have the defenders debarred, even if the pursuers are a majority, part of the original body and in occupation of the trust property.

[71] If it is correct that the test to be applied by the courts is adherence to fundamental principles, then whenever there is a split the issue which the court will have to deal with is whether one or other group adheres to fundamental principles. In MacKay v MacLeod there was a minor squabble but the person who moved away continued to adhere to fundamental principles. Where there was a split and the leaving group had not departed from fundamental principles, what happens is not anarchy because the association is a voluntary one, not one with overarching governmental power. The pursuers' case was very simple: what they were saying was "we are and always have been the FC and those who separated in 2000 cannot ipso facto be the FC". There was no basis for that approach in any of the cases. The courts would not investigate the reason for the split, except in relation to property rights, when they would decide who had or had not departed from fundamental principles. Where there was a church with faith and doctrine it was important to identify whether one or other group was no longer entitled to the benefit of the trust property. The courts did not simply look at who was in occupation or who was the majority or the minority. If both parties adhered to fundamental principles the courts would not interfere. The defenders averred that the FCC was the FC as at 1859. That was a matter for proof. The defenders' contention was that this case could be equiparated with MacKay v MacLeod. The pursuers averred that a split was sufficient; the defenders maintained that that was not so. There was a casus improvisus in MacKay v MacLeod because the trust deed sought to provide for a split but not for the type of split which occurred. The split which occurred in this case was not provided for in the trust deed and the defenders maintained that they still came within the provisions of the trust deed. At the local, congregational level the position in this case was like that in MacKay v MacLeod in that neither group had departed from fundamental principles. The pre-existing body had continued to exist in that case and the defenders had departed, but that did not debar the defenders from benefiting from the trust property. The ratio of MacKay v MacLeod was binding on the court. In voluntary churches the test for entitlement to trust property was, subject to the terms of the trust, adherence to fundamental principles. The pursuers' case failed, but if it did not, a proof before answer would have to be allowed.

(iii) Discussion and conclusion

[72] It is plain from the pleadings that the split which occurred in January 2000 had nothing to do with either the FC or the FCC departing from fundamental principles and practice of the FC. The pursuers do not aver that the FCC has departed from fundamental principles and practice and the defenders do not aver that the FC have departed from fundamental principles and practice. The situation which has arisen is therefore one in which the FC as it existed before January 2000 has split into two groups - the FC and the FCC. The reason for the split is not averred in the pleadings in this action. The FC which existed before January 2000 is the same FC which has continued to exist since then. On the other hand, the FCC is a new body which was set up after January 2000. While the defenders aver that the FCC is a body of Christians who adhere to the principles and practice of the FC at the time of the creation of the Trust, they do not dispute that the FCC is a new body set up after January 2000 and that it has a separate and distinct organisation and structure from the FC. In condescendences 1 and 6 the pursuers aver that the FC and the FCC are distinct registered charities. Although that averment is not admitted in either answer 1 or answer 6, and would appear technically to be covered by the general denial in each answer, I did not understand it to be contested in the course of the debate that the two bodies are distinct registered charities. As was accepted in the submission for the defenders, the FCC is a separate ecclesiastical structure with a separate assembly. It is a body set up by those who left the FC in January 2000 and a body which does not accept the authority of the governing bodies of the FC. The minister of Strath Church at the material time was suspended by the FC.

[73] Against that background it seems to me that the question which has to be addressed is, upon what legal basis, if any, can the FCC claim to be entitled to the use and occupation of the subjects? The only ground which the defenders proffer is that the FCC adheres to the laws and practice of the FC and its ministers, elders and adherents have therefore not forfeited any rights which they enjoyed prior to the said division insofar as those rights were vested in the body of Christians called the FC or any united body composed of Christians adhering to the body called the FC prior to that division. The specific question then comes to be whether that fact alone, in the absence of any averment that the FC has ceased to adhere to its fundamental principles and practice, is sufficient in law to entitle them to the beneficial use and occupation of the subjects. The answer to that question is to be found in a consideration of the authorities to which reference was made in the course of the debate.

[74] In my opinion the authorities show that adherence to fundamental principles and practice is not sufficient to entitle the FCC to the use and occupation of the subjects in the absence of any averment that the FC itself no longer adheres to fundamental principles and practice. The four points made at the conclusion of the submission for the pursuers are, I consider, well founded. The FCC are not, either in name or composition, the FC, they have entirely separated themselves from the FC and have no right under the trust to the use and occupation of property intended for the benefit of the FC. In other words, the FCC are a breakaway group who have taken themselves outwith the institutional framework of the FC and set up their own, new framework. The exchange between Lord James of Hereford and Mr Salvesen in the House of Lords in Bannatyne v Overtoun supports the view that the FCC have, in the circumstances which have arisen, no claim to the use of property held in trust for the FC. The decisions, and the principles enunciated, in Craigdallie v Aikman, Smith v Galbraith, Craigie v Marshall, Couper v Burn and Bannatyne v Overtoun are all supportive of the pursuers' submission. So also, in my opinion, is the decision in the unreported case of MacKay v MacLeod, which was heavily relied on by the defenders. The outcome of that case was dependent on the specific terms of the trust deed, which are referred to in the opinion of Lord Carmont and which set out what was to happen in the event of a secession. The general principle which applies in a situation such as the present one was stated by the Lord President at p 23 and is in accord with the pursuers' submission.

[75] I am of the view that the pursuers' contention that, if the defenders are correct that adherence to fundamental principles is correct, the result would be astonishing and lead to chaos. As was pointed out, the process of groups leaving the FC could go on ad infinitum and, where that process did not involve departure from fundamental principles, the court would be powerless to intervene to regulate property rights and the groups setting up parallel structures would just be left to get on with it.

[76] I have therefore reached the conclusion that there is nothing to go to proof and that the defences are irrelevant.

Decision

[77] For the reasons set out above I shall repel pleas-in-law 1, 2, and 3 for the defenders, sustain pleas-in-law 1, 2 and 4 for the pursuers and grant decree in terms of the first and second conclusions of the summons.