Irvin Stringfellow Against The Showmen's Guild Of Great Britain
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2017] CSOH 62 |
| Court | Court of Session |
| Published date | 07 April 2017 |
| Year | 2017 |
| Docket Number | P807/16 |
| Date | 07 April 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 62
P807/16
OPINION OF LORD ARMSTRONG
In the Petition
IRVIN STRINGFELLOW
Petitioner
against
THE SHOWMEN'S GUILD OF GREAT BRITAIN
Respondent
Petitioner: Hood QC; Drummond Miller LLP
Respondent: Sandison QC; Morton Fraser LLP
7 April 2017
Introduction
[1] The respondent is The Showmen’s Guild of Great Britain, of which the petitioner is a member. The petitioner brought complaints, within the respondent’s grievance procedure, against certain of his fellow members (Messrs J & W Hammond (“Hammond”), and 18 of his tenants) in respect that they had operated a fair at Ayr Air Show so close to the petitioner’s own fair at Ayr racecourse, in terms of time and distance, as to be in breach of the respondent’s Rules and By-Laws. The petitioner’s complaints were upheld following a Section Committee hearing and, on appeal, by an Appeals Committee. On further appeal by Hammond and the tenants, an Appeals Tribunal, by decision dated 1 June 2016, found that the petitioner’s initial complaints had been brought out of time and fell to be dismissed, but that, had that not been the case, it would have decided that the petitioner had made out his case in relation to Rule 23(c)(1), as modified in Scotland by By-Law 3. By this application for judicial review, the petitioner sought inter alia reduction of the decision of the respondent’s Appeals Tribunal, dated 1 June 2016.
[2] Both counsel tendered written notes of argument which I have taken into account, together with the oral submission made at the bar.
(1) The preliminary issue: Whether the decision under challenge is amenable to judicial review
(a) Submissions for the Petitioner
[3] In response to the respondent’s assertion that the decision of the Appeals Tribunal was not amenable to the supervisory jurisdiction of this court, the submission for the petitioner was that, on the contrary, the petition for judicial review was indeed competent.
[4] The issue fell to be resolved by the application of the first principles set out in West v Secretary of State for Scotland 1992 SC 385. The competency of an application did not depend upon any distinction between private and public law, but rather on whether there was established an appropriate tri-partite relationship between the body to whom the jurisdiction had been delegated, the body by whom it was delegated, and the person in respect of whom the jurisdiction was to be exercised (West, at 412-3).
[5] In that regard, the respondent had entrusted a decision-making function to its Appeals Tribunal, to determine the appeal under the respondent’s rules in a dispute concerning its members. For these purposes, there was an appropriate tri-partite relationship. The fact that the respondent's rules were of a private nature, rather than public, was not a relevant consideration. The fact that the respondent could be characterised as a private body was not, in itself determinative (Crocket v Tantallon Golf Club 2005 SLT 663, at paragraphs 29, 30, 35 and 37).
[6] In response to the issue raised by the respondent, that the fact that the Appeals Tribunal deployed a particular expertise in determining matters within its jurisdiction, rendering its decisions not appropriate for judicial review, it was submitted that such circumstances did not preclude the exercise of the court’s supervisory jurisdiction. It was open to the court to exercise appropriate restraint in recognition of the decision-maker’s particular expertise. Reference was made to De Smith’s Judicial Review , 7th edition, at paragraphs 1-035 to 1-037, for the proposition that even in matters of policy, in respect of which the court lacked the capacity to make primary decisions, there were few areas in which the court should not exercise its secondary function of probing the quality of reasoning.
[7] In any event, in the case of the Appeals Tribunal, the impact of any particular expertise was not significant. The Appeals Tribunal was chaired by a practising barrister, whom it was to be assumed had been appointed as a lawyer, bringing a degree of independence to the composition of the Tribunal, but without any other particular specialist knowledge. The respondent had appointed a legal decision-maker, who had chaired a decision overturning two previous decisions of bodies chaired by members of the respondent. The decision in relation to time-bar had involved the interpretation of the relevant rules in the context of the underlying policy objectives. That was a matter in which the court was well versed.
[8] In any event, even if the Appeals Tribunal had reached its decision on the basis of particular expertise brought to the process, that fact alone could not render its decision immune from judicial review on grounds of material error of law (Ashley, Petitioner (2016) CSOH 78, at paragraph 24).
[9] Any distinction between intra-jurisdictional errors of law and errors of law going to the jurisdiction of the decision-making body, and the associated rationale that errors of the former type could not be subject to judicial review, was now only of historical interest. Although the distinction had been a key factor in the decision of Codona v The Showmen’s Guild of Great Britain 2002 SLT 299, it was no longer relevant.
[10] The nature of the error of law at issue was no longer a material factor. The error of law put in issue by the petitioner was appropriate for consideration by the court. In any event, the petitioner also presented a challenge in relation to the adequacy of the stated reasons.
[11] The decision in Codona, supra, in effect that in Scotland the distinction was still relevant, and that intra-jurisdictional errors of law were not amenable to judicial review, was to be viewed in its context as part of what was then, at the date of the decision in 2001, an ongoing transitional shift in legal thinking on the issue (see Prof Himsworth, Jurisdictional Aspects of Judicial Review in Scots Law 2015 JR 353, 356, and footnote 18). Since then the law had developed.
[12] In particular, the categorisation of errors of law on the basis of the distinction was no longer a factor in determining the amenability of a decision to judicial review. In that regard, there was no longer any difference between the law of England and Scots law (Ashley, supra, at paragraphs 18-25, under reference to, inter alia, Eba v Advocate General for Scotland 2012 SC (UKSC) 1).
[13] Against the backdrop of the current state of the law, the flavour of which was that almost all decisions involving errors of law were amenable to judicial review, it was recognised that there were a vanishingly small number of narrow areas which constituted exceptions to the general rule. The case of R v Hull University Visitor, ex p. Page (1993) AC 682 had confirmed that the decisions of some private bodies cannot be judicially reviewed, but that was a case which was very special to its own facts, and concerned what, on any view, was a particularly unusual post, in the form of the university visitor. The post of visitor had been described in the judgment of Lord Browne-Wilkinson as being “anomalous, indeed unique”. The circumstances in which the court’s powers of review were limited to jurisdictional errors in the narrow sense were strictly exceptional and anomalous situations ( De Smith’s Judicial Review, 7th edition, at 4-037, 4-038, 4-048 to 4-050; Peel, The Law of Contract, 14th edition at 11-054). The circumstances of the respondent’s Appeals Tribunal were not comparable with those of Page, supra, and did not bring it within the category of the anomalous exceptions to the general rule.
[14] The case of Diamond v PJW Enterprises Ltd 2004 SC 430, in which it was decided that intra vires errors of law in adjudication, characterised as a sui generis system of dispute resolution in relation to building contracts, were not amenable to judicial review, was also particular to its facts, which included alternative, exhaustive means of redress set out in legislation. That case, also, was not comparable with the position of the respondent’s Appeals Tribunal.
[15] In response to the issue raised by the respondent that, in terms of the respondent’s rules, “Any decision ... by ... an Appeals Tribunal shall be final and binding ...” (Rule 18(b)), and that accordingly the Appeals Tribunal’s decision was immune to judicial review, the submission for the petitioner was that, although properly interpreted, the rule prevented further appeals, as such, it did not oust the supervisory jurisdiction of the court. Reference was made to Lee v The Showmen’s Guild of Great Britain (1952) 2 QB 329. Although parties might subscribe to a set of rules by which a tribunal may be made the final arbiter of fact, they could not make it the final arbiter of questions of law (see Lord Denning, at 341-4). By analogy, parties could not contract out of judicial review. If they could, it would require the clearest and most express language (LJ Romer, at 349).
[16] In any event, as a matter of public policy, the ousting of the remedy of judicial review was unpalatable. Reference was also made to St Johnstone Football Club Ltd v Scottish Football Association Ltd 1965 SLT 171, 175; Partington v NALGO 1981 SC 299, 309-310; McBryde, The Law of Contract in Scotland, 3rd edition, paragraphs 19-45, and footnotes 176 and 177; Peel, supra at paragraphs 11-047, 11-054, and footnote 291; and Wade & Forsyth, Administrative Law, 11th edition, at page 609. There was apparent, a clear and consistent approach. Such terms, as those of Rule 18(b), might operate to preclude further appeal, but they could not impact on the supervisory jurisdiction of the court.
[17] In summary, applying the fundamental principles of West, supra, the decision of the respondent’s Appeals Tribunal was amenable to judicial review. No question of particular specialist expertise, distinctions to be drawn in relation to the nature of the errors of law...
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