Actions Instituted By Or Against Unincorporated Bodies

AuthorDennis Lloyd
Date01 October 1949
DOIhttp://doi.org/10.1111/j.1468-2230.1949.tb00136.x
Publication Date01 October 1949
THE
MODERN
LAW
REVIEW
Volume
12
October
1949
No.
4
ACTIONS INSTITUTED
I3Y
OR
AGAINST
UNINCORPORATED
BODIES
THE
legal practitioner who finds himself from time to time con-
cerned in actions
on
behalf of,
or
against
bodies
(to
use
a
neutral
term) which apparently exist and carry on their affairs as units, but
which in law are not incorporated, will require no persuading that
such ‘bodies’ can, and usually do, give rise to very troublesome
questions, both
in
matters of law and procedure.
As
Scrutton
L.J.
remarked in
llloorn
v.
Nationnl Federation
(
(1918)
85
T.L.R.
50),
an unincorporated association has certain advantages when litiga-
tion is desired against them
’,
and, it may
be
added, such an
association also finds itself in a position of some embarrassment
when
it,
or
more properly, its members, desire to institute proceed-
ings. There are, of course, two questions which arise in connection
with actions involving such bodies
:-
(i)
A
question
of
substantive
law,
viz.,
whether a cause
of
action
exists which can be asserted on behalf of,
or
against, all the mem-
bers of the association as such, and
for
the benefit of,
or
against,
any common fund of the association.
In
most cases, this question
will fall
to
be
determined under the law of agency.’
(ii)
A
question of procedure, viz.,
suppose a
primo
facie
cause of
action exists, who is
to
be made plaintiff
or
defendant in the pro-
ceedings
?
Of
the two,
it
is perhaps the latter question which gives
more trouble in practice, and it is to this question and its related
problems that this article will be addressed.
(A)
Suing or being sued by the association
as
such.
Some bodies
or
associations, without being technically incor-
porate, have had conferred upon them the rights of suing, and being
sued, in their collective name. Examples are business partnerships
under
R.S.C.,
Ord.
48~,
r.
1,
and trade unions registered under the
Trade Union Act,
1871,
8.
6,
and there are others which it is need-
less to enumerate further. Such bodies plainly give rise to no
procedural difficulties, but there still remains a very large number
of associations of various kinds, aiming at
a
multitude of differing
purposes, ranging from social clubs and charitable institutions to
1
As
to
this,
see
Lloyd,
Law
relating
to
Unincorporated
Aarociations
(193R).
409
passim.
VOL.
12
27

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