Donaghy v Rollo
| Jurisdiction | Scotland |
| Judgment Date | 09 June 1964 |
| Docket Number | No. 26. |
| Date | 09 June 1964 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Wheatley.
Title to Sue—Interdict—Action against trade union by member concerning application of union funds—Pursuer ceasing to be member of union during currency of action—Whether title to sue lost—Tempus inspiciendum.
Process—Record—Amendment of instance—Original pursuer ceasing to have title to sue—Whether competent to sist "an additional pursuer"—Rules of Court, 1948, Rule 117 (1) (b).
Rule 117 of the Rules of Court, 1948, provides: "(1) In any defended cause it shall be competent to the Court at any time before final judgment…(b) to allow any amendment which may be necessary…to add the name of an additional pursuer…, or where the action has been commenced in the name of the wrong person as pursuer or where it is doubtful whether it has been commenced in the name of the right person, to allow any other person to be sisted as pursuer in substitution for, or in addition to, the original pursuer."
A member of a trade union raised an action against the officebearers of the union and the trustees administering its funds for interdict against the use of the funds for certain purposes. Shortly after the action was raised, he ceased to be a member of the union. The defenders thereupon challenged his title to sue, but the Lord Ordinary allowed a proof before answer upon the view that, the action being one of interdict, the pursuer's title to sue fell to be determined as at the date when it was raised, at which time his title was not in dispute. The defenders having reclaimed, the pursuer lodged a minute of amendment whereby he proposed to amend the instance of the summons by adding the name of an additional pursuer whose title to sue was unchallengeable.
Held (1) (rev. judgment of Lord Wheatley) that in an action of interdict, as in any other action, the pursuer's title to sue involved not only an initial but a continuing title to pursue the action to final judgment, and that consequently the pursuer's title lapsed when he ceased to be a member of the union, since thereafter he had no concern with the application of its funds; but (2) that where a pursuer's title to sue was originally good but later became defective, it was competent under Rule 117 (1) (b)to allow the instance to be amended by the addition of a new pursuer; and the amendment allowed, the action dismissed so far as laid at the instance of the original pursuer, and a proof before answer allowed to the new pursuer and the defenders.
Dictum of Lord Justice-Clerk Scott Dickson on amendment, inRackstraw v. Douglas, 1919 S. C. 354, at p. 357,applied.
John Donaghy brought an action against (first) W. Rollo and others, as individuals and as trustees appointed by the Scottish Area of the National Union of Mineworkers for the purposes of holding and administering the whole funds and, in particular, the General Fund of the Scottish Area of the Union, and (second) Alexander Moffat, president, John Wood, secretary and treasurer, and Michael M'Gahey, vice-president, of the National Union of Mineworkers (Scottish Area), as individuals and as the principal office-bearers in and members of the Executive Committee of the Scottish Area of the Union, in which he concluded:—"(1) For declarator that the defenders have no right, title or power (a) to pay away or pledge any portion of the funds of the Scottish Area of the National Union of Mineworkers otherwise than in accordance with the rules of the National Union of Mineworkers or the rules of the Scottish Area of the National Union of Mineworkers; et separatim, (b) to pay away or pledge any portion of the funds of the Scottish Area of the National Union of Mineworkers for the purpose or purposes of meeting or defraying or paying any expenses (including railway fares, cost of meals, charges for accommodation, subsistence allowances, transport costs, hiring of omnibuses, reimbursement of unearned wages) incurred or to be incurred by or on behalf of the delegates, whether members of the said Union or not, in the course of travelling to, attending, participating in or returning from a mass demonstration or lobby by such delegates in London at the Houses of Parliament there on or about Thursday, 8th March 1962. (2) For interdict against the first-named defenders, collectively and individually, both as individuals and as trustees aforesaid, (a) from paying away or pledging any portion of the funds of the Scottish Area of the National Union of Mineworkers otherwise than in accordance with the rules of the National Union of Mineworkers or the rules of the Scottish Area of...
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