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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 62

 

P807/16

OPINION OF LORD ARMSTRONG

In the Petition

IRVIN STRINGFELLOW

Petitioner

against

THE SHOWMEN'S GUILD OF GREAT BRITAIN

Respondent

Petitioner:  Hood QC; Drummond Miller LLP

Respondent:  Sandison QC; Morton Fraser LLP

7 April 2017

Introduction
[1]        The respondent is The Showmen’s Guild of Great Britain, of which the petitioner is a member.  The petitioner brought complaints, within the respondent’s grievance procedure, against certain of his fellow members (Messrs J & W Hammond (“Hammond”), and 18 of his tenants) in respect that they had operated a fair at Ayr Air Show so close to the petitioner’s own fair at Ayr racecourse, in terms of time and distance, as to be in breach of the respondent’s Rules and By-Laws.  The petitioner’s complaints were upheld following a Section Committee hearing and, on appeal, by an Appeals Committee.  On further appeal by Hammond and the tenants, an Appeals Tribunal, by decision dated 1 June 2016, found that the petitioner’s initial complaints had been brought out of time and fell to be dismissed, but that, had that not been the case, it would have decided that the petitioner had made out his case in relation to Rule 23(c)(1), as modified in Scotland by By-Law 3.  By this application for judicial review, the petitioner sought inter alia reduction of the decision of the respondent’s Appeals Tribunal, dated 1 June 2016.

[2]        Both counsel tendered written notes of argument which I have taken into account, together with the oral submission made at the bar.

 

(1)        The preliminary issue:  Whether the decision under challenge is amenable to judicial review

(a)        Submissions for the Petitioner
[3]        In response to the respondent’s assertion that the decision of the Appeals Tribunal was not amenable to the supervisory jurisdiction of this court, the submission for the petitioner was that, on the contrary, the petition for judicial review was indeed competent.

[4]        The issue fell to be resolved by the application of the first principles set out in West v Secretary of State for Scotland 1992 SC 385.  The competency of an application did not depend upon any distinction between private and public law, but rather on whether there was established an appropriate tri-partite relationship between the body to whom the jurisdiction had been delegated, the body by whom it was delegated, and the person in respect of whom the jurisdiction was to be exercised (West, at 412-3).

[5]        In that regard, the respondent had entrusted a decision-making function to its Appeals Tribunal, to determine the appeal under the respondent’s rules in a dispute concerning its members.  For these purposes, there was an appropriate tri-partite relationship.  The fact that the respondent's rules were of a private nature, rather than public, was not a relevant consideration.  The fact that the respondent could be characterised as a private body was not, in itself determinative (Crocket v Tantallon Golf Club 2005 SLT 663, at paragraphs 29, 30, 35 and 37).

[6]        In response to the issue raised by the respondent, that the fact that the Appeals Tribunal deployed a particular expertise in determining matters within its jurisdiction, rendering its decisions not appropriate for judicial review, it was submitted that such circumstances did not preclude the exercise of the court’s supervisory jurisdiction.  It was open to the court to exercise appropriate restraint in recognition of the decision-maker’s particular expertise.  Reference was made to De Smith’s Judicial Review , 7th edition, at paragraphs 1-035 to 1-037, for the proposition that even in matters of policy, in respect of which the court lacked the capacity to make primary decisions, there were few areas in which the court should not exercise its secondary function of probing the quality of reasoning.

[7]        In any event, in the case of the Appeals Tribunal, the impact of any particular expertise was not significant.  The Appeals Tribunal was chaired by a practising barrister, whom it was to be assumed had been appointed as a lawyer, bringing a degree of independence to the composition of the Tribunal, but without any other particular specialist knowledge.  The respondent had appointed a legal decision-maker, who had chaired a decision overturning two previous decisions of bodies chaired by members of the respondent.  The decision in relation to time-bar had involved the interpretation of the relevant rules in the context of the underlying policy objectives.  That was a matter in which the court was well versed.

[8]        In any event, even if the Appeals Tribunal had reached its decision on the basis of particular expertise brought to the process, that fact alone could not render its decision immune from judicial review on grounds of material error of law (Ashley, Petitioner (2016) CSOH 78, at paragraph 24).

[9]        Any distinction between intra-jurisdictional errors of law and errors of law going to the jurisdiction of the decision-making body, and the associated rationale that errors of the former type could not be subject to judicial review, was now only of historical interest.  Although the distinction had been a key factor in the decision of Codona v The Showmen’s Guild of Great Britain 2002 SLT 299, it was no longer relevant.

[10]      The nature of the error of law at issue was no longer a material factor.  The error of law put in issue by the petitioner was appropriate for consideration by the court.  In any event, the petitioner also presented a challenge in relation to the adequacy of the stated reasons.

[11]      The decision in Codona, supra, in effect that in Scotland the distinction was still relevant, and that intra-jurisdictional errors of law were not amenable to judicial review, was to be viewed in its context as part of what was then, at the date of the decision in 2001, an ongoing transitional shift in legal thinking on the issue (see Prof Himsworth, Jurisdictional Aspects of Judicial Review in Scots Law 2015 JR 353, 356, and footnote 18).  Since then the law had developed.

[12]      In particular, the categorisation of errors of law on the basis of the distinction was no longer a factor in determining the amenability of a decision to judicial review.  In that regard, there was no longer any difference between the law of England and Scots law (Ashley, supra, at paragraphs 18-25, under reference to, inter alia, Eba v Advocate General for Scotland 2012 SC (UKSC) 1).

[13]      Against the backdrop of the current state of the law, the flavour of which was that almost all decisions involving errors of law were amenable to judicial review, it was recognised that there were a vanishingly small number of narrow areas which constituted exceptions to the general rule.  The case of R v Hull University Visitor, ex p. Page (1993) AC 682 had confirmed that the decisions of some private bodies cannot be judicially reviewed, but that was a case which was very special to its own facts, and concerned what, on any view, was a particularly unusual post, in the form of the university visitor. The post of visitor had been described in the judgment of Lord Browne-Wilkinson as being “anomalous, indeed unique”.  The circumstances in which the court’s powers of review were limited to jurisdictional errors in the narrow sense were strictly exceptional and anomalous situations ( De Smith’s Judicial Review, 7th edition, at 4-037, 4-038, 4-048 to 4-050;  Peel, The Law of Contract, 14th edition at 11-054).  The circumstances of the respondent’s Appeals Tribunal were not comparable with those of Page, supra, and did not bring it within the category of the anomalous exceptions to the general rule.

[14]      The case of Diamond v PJW Enterprises Ltd 2004 SC 430, in which it was decided that intra vires errors of law in adjudication, characterised as a sui generis system of dispute resolution in relation to building contracts, were not amenable to judicial review, was also particular to its facts, which included alternative, exhaustive means of redress set out in legislation.  That case, also, was not comparable with the position of the respondent’s Appeals Tribunal.

[15]      In response to the issue raised by the respondent that, in terms of the respondent’s rules, “Any decision ... by ... an Appeals Tribunal shall be final and binding ...” (Rule 18(b)), and that accordingly the Appeals Tribunal’s decision was immune to judicial review, the submission for the petitioner was that, although properly interpreted, the rule prevented further appeals, as such, it did not oust the supervisory jurisdiction of the court.  Reference was made to Lee v The Showmen’s Guild of Great Britain (1952) 2 QB 329.  Although parties might subscribe to a set of rules by which a tribunal may be made the final arbiter of fact, they could not make it the final arbiter of questions of law (see Lord Denning, at 341-4).  By analogy, parties could not contract out of judicial review.  If they could, it would require the clearest and most express language (LJ Romer, at 349). 

[16]      In any event, as a matter of public policy, the ousting of the remedy of judicial review was unpalatable.  Reference was also made to St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 SLT 171, 175; Partington v NALGO 1981 SC 299, 309-310;  McBryde, The Law of Contract in Scotland,  3rd edition, paragraphs 19-45, and footnotes 176 and 177;  Peel, supra at paragraphs 11-047, 11-054, and footnote 291;  and Wade & Forsyth, Administrative Law, 11th edition, at page 609.  There was apparent, a clear and consistent approach.  Such terms, as those of Rule 18(b), might operate to preclude further appeal, but they could not impact on the supervisory jurisdiction of the court.

[17]      In summary, applying the fundamental principles of West, supra, the decision of the respondent’s Appeals Tribunal was amenable to judicial review.  No question of particular specialist expertise, distinctions to be drawn in relation to the nature of the errors of law concerned, or the terms of the respondent’s rules, materially impacted on that general approach.

 

(b)        Submissions for the Respondent
[18]      In response, it was accepted, at the outset, that, in reaching its decision, the Appeals Tribunal was exercising a jurisdiction in the sense of the decision in West, supra.  That fact alone, however, was not sufficient to render the decision amenable to judicial review.  It was necessary to go further and consider the nature of the decision under challenge, as well as the basis of the challenge, and the nature of the decision-making body (Gray v Braid Logistics (UK) Ltd 2015 SC 222, at paragraph 22;  Crocket, supra, at paragraph 37).

[19]      While it was accepted that the supervisory jurisdiction of the court extended, in principle, to decisions taken within both private and public jurisdictions, the distinction was nevertheless material in determining whether any particular complaint was appropriately directed to judicial review.  It was also important to note that references to English law decisions and texts were to be read in their own context, which was necessarily, unlike the position in Scotland, directed only to judicial review in relation to public jurisdictions.

[20]      Under reference to the decision in Ashley, supra, it was accepted for the respondent that the former distinction between intra vires errors and ultra vires errors of law was now, for these purposes, not determinative.  The development of the law in that regard had been recognised in the case of Codona supra, the decision in which was nevertheless supportive of the respondent’s position.  It was wrong to characterise the case of Codona as one in which “The survival of the unreviewable intra vires error of law was affirmed” (Himsworth, supra, at 356).  That was inconsistent with the terms of the decision, in which, in a discussion of the relevant legal landscape since Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147, at paragraphs 12, 13 and 16,  it was notable that any affirmation of such a general rule was totally absent.  Codona had not been decided on the basis of the distinction between intra vires errors and ultra vires errors, but rather, correctly, on the particular features of that case.

[21]      Against that background, Codona provided persuasive support for the respondent’s position, and was not easily distinguishable from the present case.  It concerned the same body, the same decision-making organ, the same rules, and the same criticisms in respect of error of law and failure to give adequate reasons, as the present case.  The rationale of the decision in Codona, as stated at paragraph 17, was still valid and should be followed.

[22]      It was not the case that the effect of the decision in Eba, supra, was that all intra vires errors of law were automatically amenable to judicial review.  Rather, its effect was to bring to an end the distinction between such errors and ultra vires errors, as a sole criterion by which amenability to judicial review was to be determined.  It did not follow that because intra vires errors of law were not immune from judicial review, that all such errors were amenable to it.

[23]      There were four factors which, in combination, rendered the present case outwith the supervisory jurisdiction of the court.

[24]      First, the present case involved no public law element whatever.  The dispute at large had arisen from the activities of a voluntary association to which the petitioner and other members could choose to adhere or not.  Thus, previous decisions concerning public contexts were distinguishable, and English authorities and texts, not concerned with private law contexts, were to be read with caution.

[25]      Secondly, no statutory or common law rights were involved.  The petitioner had no right at common law to complain of the matters which were ultimately referred to the Appeals Tribunal.  In that regard, the facts of the case were comparable to those of Page, supra.  Although that case had been described as anomalous, in relation to the manner in which the question at issue had arisen, its rationale remained appropriate.  As in Page, the question of law arising fell under the domestic law of the body concerned, in respect of which the decision-making organ had exclusive jurisdiction to decide (696F). The reason in that case for the lack of jurisdiction of the court to review was that, as was the respondent, the eleemosynary corporation concerned was governed by a system of private law, which was not of “the common known law of the Kingdom”, but its own particular laws and constitutions (698B-C).  The observations (at 700C-E) relating to the function of the visitor as decision-maker and the position of the court, were equally applicable to the position of the Appeals Tribunal in relation to the respondent’s rules and by-laws viz:

“In my judgement this review of the authorities demonstrates that for over 300 years the law has been clearly established that the visitor of an eleemosynary charity has an exclusive jurisdiction to determine what are the internal laws of the charity and the proper application of those laws to those within his jurisdiction.  The court’s inability to determine those matters is not limited to the period pending the visitor’s determination but extends so as to prohibit any subsequent review by the court of the correctness of a decision made by the visitor acting within his jurisdiction and in accordance with the rules of natural justice.  This inability of the court to intervene is founded on the fact that the applicable law is not the common law of England but a peculiar or domestic law of which the visitor is the sole judge.  This special status of a visitor springs from the common law recognising the right of the founder to lay down such a special law subject to adjudication only by a special judge, the visitor.”

 

Reliance was also placed on dicta of Lord Browne-Wilkinson in that case, at 702F-703A:

“Therefore, a tribunal or inferior court acts ultra vires if it reaches its conclusion on a basis erroneous under the general law.  But the position of decisions made by a visitor is different.  As the authorities which I have cited demonstrate, the visitor is applying not the general law of the land but a peculiar, domestic law of which he is the sole arbiter and of which the courts have no cognisance.  If the visitor has power under the regulating documents to enter into the adjudication of the dispute (ie, is acting within his jurisdiction in the narrow sense) he cannot err in law in reaching this decision since the general law is not the applicable law.  Therefore he cannot be acting ultra vires and unlawfully by applying his view of the domestic law in reaching his decision.  The court has no jurisdiction either to say that he erred in his application of the general law (since the general law is not applicable to the decision) or to reach a contrary view as to the effect of the domestic law (since the visitor is the sole judge of such domestic law).”;

 

And, in relation to the practical justification for the position, at 704C-F:

“There are internal disputes which are resolved by a visitor who is not a lawyer himself and has not taken legal advice.  It is not only modern universities which have visitors:  there are a substantial number of other long-established educational, ecclesiastical and eleemosynary bodies which have visitors.  The advantages of having an informal system which produces a speedy, cheap and final answer to internal disputes has been repeatedly emphasised in the authorities, ... . If it were to be held that judicial review for error of law lay against the visitor I fear that, as in the present case, finality would be lost not only in cases raising pure questions of law but also in cases where it would be urged  ... that the visitor had failed to take into account relevant matters or taken into account irrelevant matters or had reached an irrational conclusion.  Although the visitor’s position is anomalous, it provides a valuable machinery for resolving internal disputes which should not be lost.”

 

[26]      In determining whether a decision was subject to judicial review, it was not enough simply to consider the nature of the institution concerned.  It was necessary also to have regard to the nature of the act or decision in question, and the basis of the criticism advanced.  Reference was made to Lord Griffith’s observations in Page, at 693 F-H:

“When I said in Thomas’s case [1997] AC 795 825:

 

‘I have myself no doubt that in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers,’

 

I used the words ‘an abuse of his powers’ advisedly.  I do not regard a judge who makes what an appellate court later regards as a mistake of law as abusing his powers.  In such a case the judge is not abusing his powers;  he is exercising them to the best of his ability albeit some other court thinks he was mistaken.  I used the phrase ‘abuse of power’ to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform.  I did not intend it to include a mere error of law.”

 

[27]      It was not being suggested that a decision of the respondent’s Appeals Tribunal could not be susceptible to judicial review at all.  Clearly, for example, where there was an apparent breach of natural justice, it would be appropriate that, by way of its supervisory jurisdiction, the court should intervene.  No such situation arose, however, from the facts of the present case.

[28]      To the extent that the petitioner relied on the text of De Smith’s Judicial Review in this respect, it was accepted that the statement, at paragraph 4-048, that “The test must depend upon the context of the particular power and the function being performed.”, was correct, and that, further, it was consistent with, and supported, the case of the respondent.

[29]      The reference to Peel, supra, at 11-054, relied upon by the petitioner, to the effect that, as the construction of the rules of an association such as a trade union was a question of law, any attempt to deprive the courts of their jurisdiction over it was invalid, was based on the decision in Lee, supra, which should be regarded as confined to its own particular facts, and was to be distinguished from the circumstances of the present case.  The decision in Lee had been made by an area committee of the respondent which was chaired not by a lawyer, but by a lay member.  The facts involved what was, in effect, the compulsory membership of a trade union which operated a “closed shop” policy.  The rule under scrutiny (Rule 14(a)), which purported to exclude the jurisdiction of the courts, was materially different from the equivalent current rule (Rule 18(b)), which was a finality clause.  The case of Lee was not in point, and its facts were not analogous to the present case.

[30]      Thirdly, the respondent’s Appeals Tribunal was a specialist body with a particular understanding of the practical context in which the respondent’s internal rules applied.  In addition to its legally qualified chairman, the composition of the Appeals Tribunal included two lay showman assessors, who were required to be former high officers within the Guild.  The nature of the decision under challenge was one bearing on the proper policy underlying the restricted period within which such complaints were to be made.  That policy involved consideration of when, in the context of a complaint raised, and the resulting possibility of being prevented from carrying on business at a particular time and place as a result of the respondent’s relevant rule, members of the respondent could be best positioned to make alternative arrangements to conduct their business elsewhere, whilst maintaining a balance between the rights of complainants and those of other members.  In striking that balance, recognition was required of the logistical implications, including transport, accommodation and expense, involved in making such alternative arrangements.  Interpretation was required not of the terms of the relevant rule in isolation, but within the context of the particular trade.  It was for that reason that lay assessors comprised the majority of the Appeals Tribunal.  Such expertise was not available in the courts.

[31]      In that regard, neither Ashley, supra, nor Partington, supra, supported the petitioner’s position.  In Ashley, the possibility of expertise on the part of the Scottish Football Association tribunal being a reason to exclude judicial review was considered, but the case failed, not on the basis that the asserted rationale was flawed, but because there was no sufficient detailed information submitted to justify that approach.  In Partington, no question of specialised expertise arose.  In the present case, a proper interpretation of the rule concerned required to be informed by the exercise of insight into the nature of the issue towards which the rule was directed, in context.

[32]      Fourthly, in subscribing to the respondent’s rules, and thereby obtaining the rights which formed the basis of his complaint, the petitioner had subscribed to the effect of Rule 18(b), the effect of which was that the decision of the Appeals Tribunal would be “final and binding” on all the respondent’s members.  The rule was in the following terms:

“Any decision given under this Rule by a Section Committee or by Central Council on appeals or an Appeals Tribunal shall be final and binding on all Members of the Guild.”

 

The effect of the rule was not to oust entirely the jurisdiction of the court in respect of decisions of the Appeals Tribunal.  Where there was, for example, a breach of natural justice, the rule would have no impact in that regard (Page, supra, at 693F-H per Lord Griffiths).  The petitioner’s complaint however, was not one of a breach of natural justice.  Rather, his complaint was that the internal body of the respondent, charged with the exclusive function of interpreting the rules relevant to the petitioner’s rights, had reached a decision which he considered to be wrong.  The respondent’s rules conferred rights on its members to complain about the conduct of other members on the basis of these rules, but also, by operation of Rule 18, created a bar on members referring their issues about the meaning and application of the rules to anybody other than the disciplinary organs of the Guild. In seeking judicial review, the petitioner sought, in effect, to ignore the clear and competent restrictive effect of Rule 18(b), to which he had voluntarily subscribed.

 

(c)        Discussion

[33]      Whether this preliminary issue is characterised as a matter relating to the competency of the petition, or to the extent of the supervisory jurisdiction of the court, each perspective being a different side of the same coin, I am satisfied, for the reasons advanced on behalf of the respondent, that the decision under challenge is not amenable to judicial review.

[34]      It is not the law, and nor was it suggested, that all determinations by all decision-making bodies are susceptible to judicial review. Against that background, it is not in doubt that, in general, and consistent with the reasoning of West, supra, and Eba, supra, where a decision is reached under a jurisdiction in which, as here, a relevant tri-partite relationship is apparent, it will be amenable to judicial review, and that the distinction between intra vires errors of law and ultra vires errors of law is not determinative in that regard.  I accept, however, that it is also legitimate to state that not all intra vires errors of law are amenable to judicial review.  There are recognised exceptions, of which the circumstances considered in Page, supra, and in Diamond, supra, are examples, where it is not appropriate for the courts to intervene.

[35]      As was emphasised for the respondent, the facts and circumstances considered in Codona, supra, bear a striking resemblance to those of the present case.  It is correct to state that the distinction between intra vires and ultra vires errors of law, and the on-going development of the law in that regard, was considered in that decision, but I accept that, as in Page and Diamond, the rationale of Codona was very much a product of the particular facts concerned.  I am persuaded that the approach is Codona is equally applicable to the facts of the present case.

[36]      In particular, attaching due weight to the cumulative effect of the four factors identified as significant in the decision-making process under consideration, that is to say, (i) the absence of any element of public law, (ii) the fact that the issue at large concerned a form of domestic law comprised of internal rules, rather than UK or Scots law, (iii) the requirement for the application of a particular specialist expertise, and (iv) the final and binding nature of the process, as set out in the rules which regulate the decision-making process, I consider that the facts and circumstances are such as to place this case outwith the general rule, and that, in that regard, the rationale of the decision in Codona, as distilled in paragraph 17, is applicable and should be followed.  Although subsequent authoritative decisions have refined the law in this respect, I am satisfied that, for the purposes of this case, the reasoning of the decision in Codona remains legitimate and valid.  Accordingly, my decision is that this petition cannot proceed.

 

(2)        The merits of the challenge

[37]      Although my decision in relation to the preliminary issue is sufficient for the disposal of the case, for completeness, in deference to the manner of the presentation of the case by counsel, both of whom provided detailed, focused and clearly well-researched submissions, but also in recognition that what follows, in part, informed my decision in relation to the preliminary issue, I set out the arguments on the merits of the challenge.
(a)        Submissions for the Petitioner

(i)         The decision of the Appeals Tribunal in relation to Rule 17(b) and Rule 23(c)(1)

[38]      The relevant operative part of Rule 17(b) was in the following terms:

“All complaints must be made by completing the forms ... and sending ... within 14 days of the date when the complainant first knew, or ought to have known, both the facts giving rise to the complaint and the identity of the member complained against:  except that a Section C committee may hear a complaint sent outside the said 14 days provided that they are satisfied special reasons exist for the delay.”

 

The relevant operative part of Rule 23(c)(1) was in the following terms:

“A member shall not within a period of 4 weeks before the opening of a fair at which Established Rights exist or within 22 days after the opening, if the fair is still open, hold, occupy, let or take ground or position at any other fair (as which he has not Established Rights) held or proposed to be held within two miles of that fair, ... . It shall also be an offence to contract or negotiate at any time for the holding of a fair that would, if held, contravene the above times and distances.”

 

[39]      The petitioner’s complaint was in relation to the holding of a competitor fair, contrary to the limits of time and distance set out in Rule 23(c)(1).  Accordingly, his complaint was not in relation to contracting or negotiating for the holding of a fair, but rather, specifically, in relation to the holding of a fair.  On that basis, the 14 day period of Rule 17(b) should have started running from the date when the competitor fair was opened.  On that analysis, the petitioner’s complaint was timeous.

[40]      The Appeals Tribunal decided that the 14 day period started running at the point when, in advance of the opening of the competitor fair, the petitioner was aware of Hammond’s intention to hold it.  In coming to that decision, the Appeals Tribunal had erred.  For the purposes of Rule 17(b) the relevant facts giving rise to the complaint were the actual operating of the fair and the identification of the members operating it, and not the intention that a competitive fair was to be held.

[41]      The matter was one of simple construction.  In that regard, no particular specialist expertise was required.

 

(ii)        The decision of the Appeals Tribunal in relation to Rule 17(b) and By-Law 3

[42]      In any event, the Appeals Tribunal accepted that Rule 23(c)(1) was modified in Scotland by the terms of By-Law 3, viz:

“No Member shall open a ground during the period of a Fair run by a Member in a particular place, nor shall any member open a ground four weeks before the acknowledged Fair taking place. …”.

 

[43]      The Appeals Tribunal accepted that, but for Rule 17(b), it would have found there to have been a breach of By-Law 3, but that, in the event, the complaint had not been timeously raised.  In doing so, the Appeals Tribunal failed to give adequate and intelligible reasons for its decision.  Despite the different terms of By-Law 3, which referred simply to the opening of a ground, the Appeal Tribunal’s decision focused on the particular terms of Rule 23(c)(1).  No explanation was given as to how Rule 17(b) was to be applied in relation to a complaint raised under By-Law 3, or how, in the petitioner’s case, his complaint was found to be out of time.

[44]      Given the simple terms of By-Law 3, the only referable fact which could give rise to a complaint, for the purposes of Rule 17(b), was the opening of the ground.  There was no scope for a time-bar period to begin running at any earlier stage.  No findings in fact were made as to when the two competing fairs had respectively opened.  Again the matter was one of straightforward construction, in respect of which no particular specialist expertise was required.

 

(iii)       The decision of the Appeals Tribunal in relation to Hammond’s tenants

[45]      The petitioner had complained against Hammond, but also against his tenants.  In terms of Rule 17(b), in so far as the complaints against Hammond’s tenants were concerned, the period of time-bar could run only from the time when the petitioner knew or ought to have known of their identities.  No evidence was led, and the Appeals Tribunal made no findings, that the petitioner know or ought to have known their identities prior to the opening of the competitor fair.  Rather, the Appeals Tribunal decision appeared to focus only on the point at which there was, or ought to have been, knowledge of Hammond’s intention to hold it.  The Appeals Tribunal decision made no reference to intention on the part of the tenants or to how the petitioner might have known of their identities.  In deciding that the petitioner’s complaints against Hammond’s tenants were not timeous, and should have been raised prior to the opening of the competitor fair, the Appeals Tribunal reached a decision for which there was no factual basis.

 

(iv)       Whether a concession was made that the appeals concerning the tenants should be decided by the appeal concerning Hammond

[46]      On the basis of affidavits by the chairman of the Appeals Tribunal, the petitioner’s solicitor, and the solicitor representing Hammond and the majority of his tenants (Mr Dobson), it was apparent that prior to the commencement of the appeal hearing, a discussion took place amongst them, each acting in his professional capacity.  Prior to that discussion, the issue of time-bar had not been in issue, and the petitioner’s solicitor had been unaware that it was to be raised as a matter for the Appeals Tribunal to determine.  In the course of the discussion, in relation to the running order of the various appeals, the petitioner’s solicitor said “If Hammond wins, then all the others follow.  Start with his case”.  Mr Dobson then indicated that he considered that there were three matters to be determined, namely, time-bar, established rights, and distance.  Although the petitioner’s solicitor responded that he agreed, until then he had been unaware that any question of the complaints not being timeous was to be raised.  It appears that nothing further was said on the matter.

[47]      For the respondent, it was submitted that the comment by the petitioner’s solicitor constituted a concession that a decision on time-bar in relation to Hammond’s appeal would determine the issue in relation to the tenants’ appeals also.

[48]      For the petitioner, it was submitted that what was said did not amount to a concession in relation to the effect of a decision on time-bar in Hammond’s case.  The critical comment had been made in relation to the proposed running order of the appeals, at a time when the petitioner’s solicitor was unaware that time-bar was an issue at all.  It was not possible for the petitioner’s solicitor to make an explicit and binding concession in relation to something of which he was unaware.  Properly interpreted, the petitioner’s solicitor had made no concession.  The fact that, following Mr Dobson’s expressed view that time-bar was an issue, the petitioner’s solicitor did not qualify his own comment that if Hammond was successful then the tenants’ cases would follow, was not material.  His silence in that respect could not be characterised as acquiescence.

[49]      In any event, even if the exchange could be characterised as amounting to a concession on the part of the petitioner’s solicitor it was insufficiently clear in its terms to have an operative effect in the absence of evidence.  It was incumbent on the Appeals Tribunal, applying the relevant rules, to take into account evidence relating to the petitioner’s knowledge of the facts giving rise to the complaint and the identification of the members concerned.  Although the Appeals Tribunal had followed that course in relation to the case concerning Hammond, there was nothing in the decision indicating any consideration of the equivalent facts concerning Hammond’s tenants.  The terms of the asserted concession were not sufficient to allow the Appeals Tribunal to proceed without considering that evidence.

[50]      Further, no reference was made in the Appeals Tribunal decision to the content of that discussion, or to a concession that a decision on time-bar in relation to Hammond’s appeal should determine the issue in relation to the other appeals.  For the petitioner, it was submitted that it was not appropriate to look behind the decision letter in this regard, by referring to the affidavits and the chairman’s own notes.  The matter of the adequacy of the decision was to be determined solely by reference to its terms.

 

(b)        Submissions for the Respondent

[51]      As in Codona, supra, the Appeals Tribunal’s decision concerned not statutory or common law rights, but private domestic rules which were properly to be interpreted in the context of what was reasonable and appropriate in the practicalities of carrying out a trade.

            In so far as Rule 23(c)(1) was concerned, the Appeals Tribunal had decided that there was no breach because the distance between the two fairs was more than two miles (paragraph 44).

[52]      In so far as By-Law 3 was concerned, the essence of the decision, in relation to the application of Rule 17(b), was to be found at paragraph 36.  The rule required that a complaint be made within 14 days of the date when the complainant first knew, or ought to have known, both the facts giving rise to the complaint and the identity of the members complained against.

[53]      The terms of paragraph 36 made it plain that the Appeals Tribunal’s approach had been to interpret the rule purposively.  Consistent with that approach, which the Appeals Tribunal was entitled to adopt, was recognition of the need for a complainant to assert his rights within a reasonable time, such as to allow other members to be aware of the assertion, and to adjust their conduct accordingly.  In that context, the Appeals Tribunal held that the complaint against Hammond could have been brought from the time when the petitioner knew of his settled intention to hold the competitor fair.  The petitioner was unsuccessful because, in the event, he had brought his complaint more than 14 days after that date.  Such a purposive approach was appropriate given the practicalities involved, as they would fall on other members aware of the complaint, in, for example, cancelling plans to participate in the proposed competitor fair, and making and executing alternative trading arrangements.  The approach was not unreasonable because Rule 17(b) made provision for a complaint to be heard when raised after more than 14 days had elapsed, where special reasons for the delay existed.

[54]      Were the Appeals Tribunal not to adopt such a purposive approach, the effect would be that a complainant was, in effect, entitled to stand by, while other members, in ignorance of his belief that what they were doing might constitute an infringement of his rights, continued to make arrangements, involving effort and expense, in preparation or participation at the proposed competitor fair.  When, on such an approach, the complainant did make his complaint, on the basis that the petitioner did, these other members would have the unpalatable choice of either writing off the efforts and expense already expended, or continuing to participate, but rendering themselves subject to penalty under the respondent’s rules.  In the context of the rules of an association, designed for the mutual benefit of all its members, it was not surprising, or unreasonable, that the Appeals Tribunal should have adopted the approach which it did.  By doing so, it was legitimately promoting a policy which required members to raise complaints of breaches of their rights as soon as reasonably possible, so as to enable other members to adjust and react accordingly in relation to their own trading arrangements.

[55]      In so far as the concession by the petitioner’s solicitor was concerned, it was relevant to note that the only distinction, by which the position of the tenants might have been regarded as different to that of Hammond, was in the matter of whether the petitioner knew, or ought to have known, of their identities within the period of the time-bar.  In the event, there was no discussion before the Appeals Tribunal as to whether Hammond and his tenants should be treated differently in relation to the issue of time-bar.  The explanation for that was the content of the discussion which had taken place shortly before the hearing.

[56]      That discussion involved the petitioner’s solicitor, Mr Dobson, and the tribunal chairman, and was in relation to procedural matters.  In the course of it, the petitioner’s solicitor linked the outcome in Hammond’s case to the outcome of the tenants’ cases, which was reasonably to be interpreted as a view expressed to the Appeals Tribunal that it was not to be suggested, on behalf of the petitioner, that the tenants fell to be treated differently from Hammond.

[57]      In circumstances where it was within the knowledge and experience of the Appeals Tribunal that in the close-knit community of showmen, enquiries were easily made and, if made, would have been likely to reveal the identities of Hammond’s tenants well before the competitor fair opened, such a view would not appear surprising.  In that regard, it was significant that the terms of Rule 17(b) required regard to be had, not only to what the complainant in fact knew, but what he ought to have known.

[58]      In any event, no attempt was made by the petitioner’s solicitor to withdraw or qualify his expressed view after the issue of time-bar had been raised during the pre-hearing discussion.  Further, it was not submitted at any stage that the tenants fell to be treated differently from Hammond, and no evidence bearing on the point was presented.  In circumstances where the matter was not put in issue before the Appeals Tribunal, and where accordingly the Appeals Tribunal was entitled to conclude that the matter was not an issue before it, it was not open to the petitioner now to complain about the lack of different treatment of the tenants’ cases.

[59]      In the whole circumstances, the Appeals Tribunal was entitled, as the master of its own procedure, subject to the rules of natural justice, to conclude that it was accepted that any decision on the facts underlying Hammond’s case would also govern its decisions in the cases of the tenants, and that, in relation to the issue of time-bar, it was not being asked to differentiate between the position of Hammond and its tenants.

[60]      In so far as the intelligibility of the Appeal Tribunal’s stated reasons was concerned, a challenge could succeed only if they were “so incoherent that it is impossible for the reasonable reader to make sense of them” (Diamond, supra, per Lord Justice Clerk Gill, at paragraphs 29-31).

[61]      The Appeals Tribunal had decided that the complaint in relation to By-Law 3 was time-barred for the same reasons that it held the complaint in relation to Rule 23(c)(i) to be time-barred.  It had reached these conclusions on the purposive approach that time started to run when a member first became aware, or ought to have become aware, of another members settled intention to act in a way likely to breach his established rights.  On a fair reading of the Appeals Tribunal decision, no reasonable reader would have been left in doubt about that rationale.

[62]      In so far as the position in relation to the tenants was concerned, the parties’ solicitors were aware of their discussion prior to the hearing, and of the fact that in the course of the hearing it was not suggested that the issue of time-bar should impact differently on the tenants’ case than on Hammond’s case.  In these circumstances, an informed reader would understand that the significance of a finding of awareness, actual or constructive, of an intention on the part of Hammond to breach the petitioner’s established rights, was to be taken to apply equally in the tenants’ cases.

 

(c)        Discussion

[63]      Had it been necessary to determine the merits of the challenge made, the appropriate approach would have been to do so whilst having regard to the particular context of the particular decision-making process concerned, including the nature and role of the decision-making body, its own procedure and particular expertise, and the nature of the relevant rules, viewed in the light of the policy aims of the institution.

[64]      On the question of time-bar, I would have attached significance to the fact that the relevant period of 14 days is, on any view, particularly short.   In that respect, I would have regarded the purposive approach adopted by the Appeals Tribunal, in relation to the interpretation of Rule 17(b), to be consistent with the implementation of the policy underlying the very limited duration of that period, rather than with what, in other contexts, would be accepted as the more general justification for rules of prescription and limitation. 

[65]      Otherwise, I would only add that, had it been necessary to decide the matter in isolation, without the need to take into account the other factors which arise in this case, I would have considered there to be some force in the submissions advanced for the petitioner in relation to the adequacy to the Appeal Tribunal’s reasons in respect of the issues of the application of the time-bar in the appeals concerning the tenants, and the impact on the outcomes of these cases of any pre-hearing concession.

 

(3)        Disposal

[66]      Given my decision in relation to the preliminary issue, I shall repel the petitioner’s pleas-in-law, sustain the respondent’s first and second plea-in-law, and dismiss the petition.

[67]      I shall reserve, meantime, all questions of expenses.