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

JurisdictionScotland
JudgeLord Osborne,Lord Bonomy,Lord Drummond Young
Judgment Date08 June 2012
Neutral Citation[2011] CSIH 52
Date12 August 2011
Published date12 August 2011
CourtCourt of Session
Docket NumberA148/07

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne Lord Bonomy

Lord Drummond Young

[2011] CSIH 52

A148/07

OPINION OF LORD OSBORNE

in Motion for Review

in

THE REVEREND DONALD SMITH AS MODERATOR OF THE GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND AND OTHERS

Pursuers and Respondents;

against

THE REVEREND JOHN MORRISON AND OTHERS

Defenders and Reclaimers:

_______

Act: Moynihan, QC, Charteris; Simpson & Marwick

Alt: McNeil, QC, Dawson; Drummond Miller LLP

12 August 2011

The background circumstances

[1] The pursuers and respondents in this action are, first, the Moderator of the General Assembly of the Free Church of Scotland, holden at Edinburgh on 22 May 2006, second, the Principal Clerk of that General Assembly, third, the Congregation of Sleat and Strath Free Church of Scotland, worshipping at Broadford Church of Scotland, and five named persons, all of said congregation, being its office-bearers, as such office-bearers and as representing that congregation and, fourth, three named persons designated as Trustees of the Congregation of Sleat and Strath Free Church of Scotland. The defenders and reclaimers are, first, the Interim Moderator of the Congregation of Strath Free Church of Scotland (Continuing), second, an elder of the Congregation of Strath Free Church of Scotland (Continuing), third and fourth, members of the Free Church of Scotland (Continuing), fifth, the Congregation of Strath Free Church of Scotland (Continuing) and five named persons, all of the said congregation, being its known office-bearers, as such office-bearers and as representing the said congregation for any interest they may have, and, sixth, six named persons described as the purported Trustees of the Congregation of Strath Free Church of Scotland (Continuing), for any interest they may have.

[2] This action contains two substantive conclusions which are:

"1. For declarator that, under the Trust constituted in the Feu Charter, hereinafter referred to, the subjects hereinafter described are presently held in Trust for the Congregation of the body of Christians called the Free Church of Scotland at Broadford, in the Parish of Strath, Skye, formerly known as Strath Free Church of Scotland and now known as Sleat and Strath Free Church of Scotland, viz. ALL and WHOLE that piece of ground at Broadford in the Parish of Strath, Island of Skye and County of Inverness being the subjects particularly described in Feu Charter by the Right Honourable Somerled James Brudenell Lord Macdonald with consent therein mentioned in favour of the Reverend Alexander MacKenzie and others, Trustees for the Congregation of the Body of Christians called the Free Church of Scotland at Broadford, dated 10 March and 2 April and recorded in the Division of the General Register of Sasines applicable to the County of Inverness on 12 October all in the year 1869, together with the Church and Manse and whole other buildings erected thereon, the fittings and fixtures applicable thereto and the pertinents thereof; and for declarator that the said Congregation of Sleat and Strath Free Church of Scotland are entitled to the beneficial interest in the said subjects; and for declarator that the Trustees of the said Congregation of Sleat and Strath Free Church of Scotland and their successors in office and acceptors and survivors and acceptor and survivor are vested in title to the said subjects.

2. For interdict against the first, second, third and fourth named defenders, their agents, their contractors, or anyone on their behalf or acting under their instruction from (a) unlawfully entering or trespassing upon the Manse erected upon said subjects, (b) carrying out alterations or renovations to said Manse, (c) purporting to let or allow any person to use, possess or occupy said Manse, and (d) causing, directing, procuring, assisting or enabling others to do any of the above acts; and for interdict ad interim."

[3] The present action called before the Lord Ordinary on the procedure roll for debate of the defenders' first three pleas-in-law and the pursuers' fourth plea-in-law. The defenders' first three pleas-in-law are in the following terms:

"1. The pursuers having no title to sue, the action should be dismissed.

2. All parties are not called.

3. The pursuers averments being irrelevant et seperatim lacking in specification, the action should be dismissed".

The fourth plea-in-law for the pursuers is in the following terms:

"4. The defenders averments in answer being irrelevant et seperatim lacking in specification ought to be repelled and decree de plano granted."

By interlocutor dated 31 July 2009, the Lord Ordinary repelled the defenders' first, second and third pleas-in-law, sustained the pursuers' first, second and fourth pleas-in-law and granted decree of declarator and interdict as concluded for. Against that interlocutor the defenders have now reclaimed.

[4] It should be explained that, during the course of the hearing before us, arguments were addressed to certain alleged defects of the pursuers' case. These were:

(1) General relevancy;

(2) The plea of no title to sue;

(3) The plea of all parties not called; and

(4) Particular relevancy issues.

As the hearing proceeded, it came to be appreciated by those acting for the pursuers and respondents that there might be force in the defenders and reclaimers' pleas-in-law 1and 2. Accordingly, prior to the conclusion of the hearing, there was tendered a Minute of Amendment for the pursuers and respondents, in which it was sought to introduce certain additional pursuers into the action and to call certain additional defenders. The additional pursuers sought to be introduced were the third and fourth-named pursuers. The additional defenders sought to be called were the fifth and sixth- named defenders. There was no opposition from the defenders and reclaimers to the reception of this Minute of Amendment and to its being given effect. Accordingly we allowed amendment in terms of the Minute, which also effected a minor alteration to the second conclusion in the action. There was also agreement concerning the expenses occasioned by the Minute of Amendment and the expenses in the Outer House and before this Court relating to pleas-in-law 1 and 2 for the defenders, which were conceded by the pursuers. Following on the conclusion of the hearing before us, the necessary formalities of service on the fresh defenders were undertaken. On 2 December 2010, at a By Order roll hearing, it was indicated that these formalities had been undertaken and that none of the additional defenders wished to enter the process and that they were content with the submissions already advanced on behalf of the existing defenders and reclaimers. Following upon that confirmation, the Court made avizandum. It was recognised by the reclaimers and the respondents that the result of the amendment process was that further consideration of the issue of title to sue and the plea of all parties not called became unnecessary.

[5] The Free Church of Scotland, "the Free Church", came into being in 1843 following the Disruption of that year, when certain ministers and members of the established Church of Scotland, objecting to state interference in their worship, separated from it. In doing so, they left behind the churches, manses and other assets of the Church of Scotland and raised funds of their own. There were proposals for unification of the Free Church with another church, which were made in the latter part of the 19th Century. Ultimately, the majority of the Free Church, in 1900, unified with the United Presbyterian Church, to become the United Free Church. In 1929, the United Free Church and the Church of Scotland were unified. The minority of the Free Church not unified with the United Presbyterian Church in 1900 continued in being as the Free Church.

[6] In about 1989 complaints emerged concerning the conduct of a professor working in the Free Church of Scotland College in Edinburgh. In May 1995, the General Assembly of the Free Church, having considered the results of an investigation into the allegations, directed that the matter was closed. There was dissatisfaction with the investigation on the part of some ministers and members of the Free Church. They set up a Free Church Defence Association, which openly criticised decisions of the General Assembly of the Free Church. In 1999, at the General Assembly of the Free Church, the professor in question was voted by secret ballot to be the Principal of the Free Church College. In October 1999, a Commission of the General Assembly of the Free Church passed a resolution declaring that the Free Church Defence Association was pursuing a divisive course in relation to the government and discipline of the Free Church and called upon it to disband. Those involved in the Free Church Defence Association refused to comply. That response was deemed a prima facie act of continued and wilful contumacy. Libels were drawn up against the 22 ministers adhering to the Free Church Defence Association. At a hearing before the Commission on 19 and 20 January 2000, these libels were declared relevant. That declaration was immediately the subject of a protest by the 22 ministers. Nevertheless, the Commission ruled that the ministers were suspended from the duties of their ministries. Their cases were remitted for proof before the General Assembly of the Free Church in May 2000. The 22 ministers responded by walking out of the hearing. As they did so, they invited adherents to what they described as the true Free Church to join them. Some did join them. The 22 ministers and their adherents reconstituted themselves in another place. They designated themselves as The Free Church of Scotland (Continuing), "The Free Church Continuing". Thereafter, the Free Church Continuing comprised the 22 ministers, subsequently augmented by a further four ministers, about 650 members, and 500 adherents....

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