General Assembly of the Association or Body of Christians known as theFree Church of Scotland and for administrative purposes only as the FreeChurch of Scotland (Continuing) and Others v General Assembly of theFree Church of Scotland and Others
| Jurisdiction | Scotland |
| Judgment Date | 24 March 2005 |
| Docket Number | No 32 |
| Date | 24 March 2005 |
| Court | Court of Session (Outer House) |
Court of Session Outer House
Lady Paton
Church - Free church - Abandonment of essential principle - Whether "right of continued protest" a fundamental principle of the Free Church - Whether departure from the principle of "right of continued protest" - Property claimed by minority
The original Free Church of Scotland came into existence in 1843, when certain ministers and members of the Church of Scotland, objecting to state interference in their worship, separated from the established Church of Scotland. In doing so, they left behind the churches, manses and other assets of the church and raised funds of their own. Proposals for unification with another church were made in the latter half of the nineteenth century, resulting in protest by those opposed to such union. No disciplinary action was taken against those protesting or the organisation formed by them to defend what they considered to be the fundamental tenets of the Free Church. Ultimately, the majority of the Free Church in 1900 unified with another church, and a dispute over the property and assets of the Free Church arose. This resulted in court action by the minority seeking to vindicate their right to the assets of the Free Church and the House of Lords in 1905 ruled in their favour. Thereafter, by statute a commission was set up to redistribute the assets proportionately.
In about 1989, complaints arose against a professor teaching at the Free Church College in Edinburgh, which were investigated by the Training of the Ministry Committee of the Free Church. In 1990, the committee concluded that there was insufficient evidence to support the allegations. Further complaints emerged and the committee appointed a sub-committee in 1993 to interview witnesses. The sub-committee reported on the evidence and recommended that a libel against the professor be drawn up. The committee rejected that proposal and by majority vote decided that insufficient evidence had been found capable of proving in the courts of the church censurable conduct on the part of the professor. The committee presented a supplementary report to the General Assembly of the church in May 1994 containing their conclusion. The minority of the committee also presented a minority report, requesting that the evidence be submitted to the church's law agent and the clerk of assembly for advice. The General Assembly agreed to the request and directed the committee to review their decision in light of the advice; however the law agent and the clerk having considered matters agreed with the committee that there was insufficient evidence. Meantime, three new complainants came forward and the committee appointed a sub-committee to interview them. Having considered the report made by the new sub-committee together with the advice of the law agent and the clerk, the committee decided to adhere to their original decision and reported thus to the General Assembly in May 1995. The minority appealed against that finding, but the General Assembly by majority vote rejected the appeal, upheld the committee's finding, directed that the matter was closed, and stated that anyone seeking to pursue the matter did so at risk of being censured as a slanderer. A dissent to that decision was recorded by certain commissioners and the minority of the committee. The professor was acquitted of criminal charges relating to some of the allegations in 1996. In 1997, a minority of the committee presented a report to the General Assembly requesting the constituting of a special committee to exercise the functions of the committee in relation to a booklet concerning the professor "and his opponents". The General Assembly rejected this request and found those presenting it in contempt in respect that they had raised matters declared in 1995 to be closed. Those ministers and members still dissatisfied with the investigation into the allegations formed an association, the Free Church Defence Association ('FCDA'), which had its own funding, magazines, meetings and procedures and which openly criticised decisions of the General Assembly, its commissions and the synods. In 1999, the professor was voted by secret ballot to be the principal of the Free Church College. An attempted dissent prior to the appointment was neither allowed nor recorded. In October 1999, a commission of the General Assembly passed a resolution calling on the FCDA to disband. Those involved in the FCDA refused to comply. Libels were drawn up against the ministers adhering to the FCDA, the libels declared relevant, the ministers suspended by the commission, and their cases remitted for proof before the General Assembly in May 2000. The ministers walked out of the hearing and invited others to join them. They designated themselves for administrative purposes as 'The Free Church of Scotland (Continuing)' and they and their congregations continued to meet and worship separately from those they had left behind. They thereafter raised an action of declarator in relation to the assets held for behoof of the Free Church of Scotland.
The pursuers argued that the right of continued protest was so fundamental to the nature and constitution of the Free Church, that in abandoning it, the defenders had ceased to be the true Free Church of Scotland. The pursuers were, as a result of the defenders' departure from the fundamental principle of continued protest, the true Free Church of Scotland and entitled to the beneficial interest in the property and assets held for behoof of that body of Christians being the Free Church of Scotland. The court thus required to ascertain which party adhered most closely and faithfully to the essential and fundamental principles of the Free Church of Scotland. The defenders' own pleadings disclosed an abandonment of the fundamental principle and the court should repel the defenders' preliminary pleas and grant decreede plano in the pursuers' favour. In the event of the court holding that neither party had forfeited their rights to the assets, the case should be put out by order for further procedure for apportionment of the assets.
The defenders argued that the pursuers' averments were not capable of establishing the existence of a right of continued protest. Such a right would not in any event constitute a fundamental or essential principle of the constitution of the Free Church. Even if such a right existed, the minority had not been prevented from exercising it. The claim was inconsistent with the principle of spiritual independence, itself a fundamental principle of the Free Church. The court should grant eitherabsolvitor or dismissal or if allowing proof, exclude those averments relating to events between 1863 and 1900, and 1990 to 7 October 1999.
Held that the right of continued protest contended for had not been established either as a substantive or fundamental constitutional principle of the Free Church of Scotland (para 64); and actiondismissed.
Observed that: (1) the events averred by the pursuers did not disclose a departure from any claimed fundamental right of protest (para 70); (2) no relevant case had been disclosed for a possible apportionment of the property between the pursuers and the defenders (para 78).
Ferguson Bequest Fund (The)UNK (1879) 6 R 486 followed.
Mackay and ors v MacLeod and ors 10 January 1952, unreported, followed.
Brentnall v Free Presbyterian Church of Scotland 1986 SLT 471 referred to.
The General Assembly of the Association or Body of Christians known as the Free Church of Scotland and for administrative purposes only as theFree Church of Scotland (Continuing) and the Revd Allan IM MacIver as the Moderator of the said General Assembly and the Revd John Macleod the Principal Clerk of the said Assembly of the said church raised an action against the General Assembly of the Free Church of Scotland holden at Edinburgh on 21 May 2001 and the Revd William M Mackay as the Moderator of the said General Assembly and the Revd James MacIver the Principal Clerk of Assembly of the said Church for declarator of entitlement to the property and assets held by trustees for the body of Christians known as the Free Church of Scotland and that the defenders had no right or title to the property and assets. The pursuers alternatively concluded for declarator that they were entitled to the property and assets in such proportion and upon such conditions as the court should determine.
The cause came before the Lord Ordinary (Lady Paton) for a hearing on the procedure roll, on 5 November 2004.
Cases referred to:
Bannatyne v OvertounUNK (1902) 4 F 1083; (1902) 10 SLT 200
Bannatyne v OvertounELR (1904) 12 SLT 297; [1904] AC 515
Brentnall v Free Presbyterian Church of Scotland 1986 SLT 471
Burnley etc Textile Union v ATWUUNKICRUNK [1986] 1 All ER 885; [1987] ICR 69; [1986] IRLR 298
Connell v FergusonUNK (1861) 23 D 683
Couper v BurnUNKUNK (1859) 22 D 120; 32 Jur 46
Craigdallie v AikmanENRENR (1813) 1 Dow 1; (1820) 2 Bli 529
Craigie v MarshallUNKUNK (1850) 12 D 523; 22 Jur 154
Ferguson Bequest Fund (The)UNK (1879) 6 R 486; 16 SLR 300
Mackay and ors v Macleod and ors 10 Jan 1952, unreported
Orr 1903/04 Free Church Appeals pp 336, 337
Smith v GalbraithUNK (1843) 5 D 665
Textbooks etc. referred to:
Free Church of Scotland (The), Practice of the Free Church of Scotland in Her Several Courts (8th ed, Knox Press, Edinburgh, 1995), p 107
Simpson, JA, and Weiner, ESC, Oxford English Dictionary (2nd ed, Clarendon, Oxford, 1989)
At advising, on 24 March 2005-
Lady Paton- [1] This case concerns a dispute between two groups, each claiming to be the true Free Church of Scotland. At issue are assets held in trust 'for behoof of and in connection with the association or body...
To continue reading
Request your trial
-
Khoo Jeffrey and others v Life Bible-Presbyterian Church and others
... ... to establish a college to train young Christians as evangelists, ... pastors ... the College’s board endorsed a doctrine known ... as “Verbal Plenary ... 2008 stating that the 2004 College could only continue to occupy ... the ... , the College was an unincorporated association ... that was independent of ... in Art II of the Constitution, was a general one, namely, to ... “train ... the College to be “an independent body not subject to ecclesiastical ... annually for renewal purposes. Moreover, Mr Ang’s third argument ... a group of seceders from the church of Scotland had contributed money and ... the Assembly of Divines held at Westminster, and commonly ... legislation as relating only to administrative issues, and ... not to ... and standards, and if therefore the continuing section ... cannot be ... ...
-
The Reverend Donald Smith As Moderator Of The General Assembly Of The Free Church Of Scotland And Others V. The Reverend John Morrison And Others
...and assets. That action was determined on 24 March 2005 by dismissal; that decision is reported as Free Church (Continuing) v Free Church 2005 S.C. 396. The present action is, in one sense, a sequel to that one. [8] The particular circumstances that have given rise to the present action are......
- Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) (No. 2)
-
Moderator of the General Assembly of the Free Church of Scotland v Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing) [Court of Session Inner House Extra Division]
... ... "as Trustees for the Congregation of the Body of Christians called the Free Church of Scotland ... The trust purposes set out within the deed provided, inter alia , ... and perform acts of religious worship, only those persons who "from time to time be ... , those resigning from the original association and forming a new association forfeited their ... of the Association or Body of Christians known as the Free Church of Scotland and for ... of the Reverend Alexander MacKenzie and others, Trustees for the Congregation of the Body of ... Free Church of Scotland and for administrative purposes only as the Free Church of Scotland ... ...