Enderby Town Football Club Ltd v Football Association Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,THE MASTER OF THE ROLLS |
| Judgment Date | 12 October 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1012-4 |
| Date | 12 October 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J1012-4
The Master of The Rolls (Lord Denning)
Lord Justice Fenton Atkinson and
Lord Justice Cairns
In The Supreme Court of Judicature
Court of Appeal
Appeal of plaintiff from Order of Mr. Justice Foster dated the 31st July, 1970.
Mr. A.C. Sparrow, Q.C., and Mr. Gavin Lightman (instructed by Messrs. Field Fisher & Co., agents for Messrs. Gardiner & Millhouse of Leicester) appeared on behalf of the Appellant Plaintiff.
The Right Hon. Sir Elwyn Jones, Q.C., and Mr. Robert Johnson (instructed by Messrs. Chethams) appeared on behalf of the Football Association, Respondents.
The game of association football ("soccer") is under the control of a limited company called The Football Association Ltd, (the "F.A."). The Football Association has county associations affiliated to it. One of these is the Leicestershire and Rutland County Football Association. The County Association is not a limited company, but an unincorporated association of individual clubs. One of these clubs is the Enderby Town Football Club Ltd. This club is a limited company with its own memorandum and articles of association.
The Enderby Town Club is run on commercial lines. It has directors who are paid directors' fees amounting to some £700 a year each, and also receive their expenses. It runs a totalisator on which members of the public can bet.
The Leicestershire County Association took exception to those activities of the Enderby Town Club. They appointed three men as a commission to hear charges against the club. On the 5th May, 1970, there was a hearing which was attended by three of the directors of the club and the secretary. The commission found that there had been gross negligence in the administration of the club. They fined the club £500. They severely censured the club and the directors; they ordered them to take immediate steps to organise the affairs of the club in accordance with the rules of the Football Association.
The Enderby Town Club appealed to the Football Association. Their solicitor asked for permission for the club to be represented by solicitor and counsel at the hearing of the appeal. The secretary wrote a letter of refusal. Thereupon the club on the 8th July, 1970 issued the writ in this action and moved for an injunction to restrain the Football Association hearing the appeal unless the club was permitted to be legally represented by counsel and solicitor. On the 31st July, 1970, Mr. Justice Foster refused to grant an injunction. The club appeal to this Court; and we have expedited the hearing.
The Football Association take their stand on their rule 38(b). They say it excludes legal representation. It is in these words:
"An Association, Competition or Club may be represented at the hearing of an appeal, complaint or claim, or at an enquiry, by one of more of its Members. A Barrister or Solicitor may only represent an Association, Competition or Club of which he is a Member, if he be the Chairman or Secretary. Any person summoned to attend an enquiry or the hearing of an appeal, complaint or claim must attend personally and not be legally represented."
Mr. Sparrow, who appeared for the Enderby Town Club, submitted that the rule did not exclude legal representation. He said that the first sentence applied to this club but was permissive and not imperative. The word was "may" and not "must". He said that the second sentence applied only to a barrister or solicitor who was a member of the club and not to one who was not. He said the last sentence applied only to an individual, such as a player, who had to attend personally. I can see the force of these arguments, but, looking at the rule broadly, I feel that it was intended to exclude legal representation on behalf of the club.
Mr. Sparrow's next submission was that, if the rule went so far as to exclude legal representation, it should not be applied in this particular case. The facts, he said, were undisputed. The only points at issue were points of law. These were of much complexity and difficulty. They could not be properly argued except by a lawyer. Accordingly he submitted that the club should be represented by a lawyer. In order to appreciate this argument, I will set out the principal points which Mr. Sparrow desires to raise.
(1) He said that the charge against the club was not properly formulated. The first count, for instance, was "thatDirectors' Fees were paid to Messrs. H. Jacques, B. Jacquce and K. Moore", without pointing to any rule which says that directors' fees may not be paid. There is, in fact, no such rule.
(2) He said that the charge was heard by three men who had no jurisdiction to hear it. The rules of the County Association gave jurisdiction to the whole Council of the Association. There was no power to delegate to a commission of three.
(3) Rule 45(vi) of the Football Association Rules says that club companies must contain an article preventing a director from receiving remuneration. Mr. Sparrow said that that rule applies only to companies which are members of the Football Association, It does not apply to the Enderby Town Club, which is not a member of the Association.
I quite appreciate Mr. Sparrow's submission that these are difficult points of law on which there are authorities to be cited and rules to be construed. So much so that I do not think the Football Association is itself a suitable body to decide them. It would be much better, I should think, for the club to bring these points straight away before the Court in an action for a declaration. That is a course which they are perfectly entitled to take at once before the appeal is heard by the Football Association. See Lawler v. Union of Post Office Workers, 1965 1 Ch. 712) at p. 733-4;Dickson v. Pharmaceutical Society of Great Britain, (1967 1 Ch. 709) at page 740 and 1968 3 W.L.R. at page 307 by Lord Upjohn. In any such action before the Court the club would, of course, be entitled to be represented by counsel and solicitors. As an alternative the club could wait until after the hearing of the appeal by the Football Association and then bring an action for a declaration. They would not be prejudiced by so doing. See Annamunthodo v. Oilfields Workers Trade Union. ( 1961 A.C. 945). But either way, the points of law would be better decided by the Courts than by the FootballAssociation. As Lord Justice Romer said in Lee v. Showmen's Guild of Great Britain. ( 1952 2 Q.B. 529 at page 354: "The proper tribunals for the determination of legal disputes in this country are the Courts, and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates are fitted for the task".
Although it is open to the club to come to the Court to decide the points, they have not done so. They are sticking to their appeal to the Football Association. They ask that the points be decided by that body. They want to have counsel and solicitor to argue them before the Football Association. The Football Association decline.
The case thus raises this important point; is a party who is charged before a domestic tribunal, entitled as of right to be legally represented? Much depends on what the rules say about it. When the rules say nothing, then the party has no absolute right to be legally represented. It is a matter for the discretion of the tribunal. They are masters of their own procedure: and, if they, in the proper exercise of their discretion, decline to allow legal representation, the Courts will not interfere. Such was held in the old days in a case about magistrates, See Collier v. Hicks (1831) 2 B. & Ad. 663. It is the position today in the tribunals under the Tribunals and Inquiries Act, 1921. I think the same should apply to domestic tribunals, and for this reason: In many cases it may be a good thing for the proceedings of a domestic tribunal to be conducted informally without legal representation. Justice can often be done in them better by a good layman than by a bad lawyer. This is especially so in activities like football and other sports, where no points of law are likely to arise, and it is all part of the proper regulation of the game. But I would emphasise that the discretion must be properly exercised. The tribunal must not fetter its discretion by rigid bonds. A domestic tribunal is not at liberty to lay down an absolute rule:"We will never allow anyone to have a lawyer to appear for him". The tribunal must be ready, in a proper case, to allow it. That applies to any one in authority who is entrusted with a discretion. He must not fetter his discretion by making an absolute rule from which he will never depart. See ( Rex v. Port of London Authority 1919 1 K.B. 176) at page 184, as applied in this Court in Schmidt v. Home Office (1969 2 Ch.) at page 169, by the House of Lords in ( B.O.C. Ltd. v. Board of Trade 1970. 3 W.L.R. 439). That is the reason why this Court intervened in the case of Pett v. Greyhound Racing Association (No. 1) ( 1969 1 Q.B. 125). Mr. Pett was charged with doping a dog a most serious offence carrying severe penalties. He was to be tried by a domestic tribunal. There was nothing in the rules to exclude legal representation, but the tribunal refused to allow it. Because they never did allow it. This Court thought that that was not a proper exercise of their discretion. Natural justice required that Mr. Pett should be defended, if he so wished, by counsel or solicitor. Subsequently Mr. Justice Lyell held that Mr. Pett had no right to legal representation. See Pett v., Greyhound Racing Association (No. 2)( 1970 1 Q.B. 46). May be he had no positive...
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