Martin v Scottish Transport and General Workers Union
| Jurisdiction | Scotland |
| Judgment Date | 07 December 1951 |
| Docket Number | No. 11.,No. 17. |
| Date | 07 December 1951 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Blades.
ProcessAppeal to House of LordsEffect of appeal on procedure in Court of SessionPursuer unsuccessful in Court of Session but found entitled to expenses of proofAppeal on merits onlyMotion for decree for taxed expenses while appeal pendingCompetencyJurisdiction.
In an action of declarator and reduction the Lord Ordinary, after proof, granted decree. The First Division, on a reclaiming motion, dismissed the action as irrelevant, but found the defenders liable in the expenses of the proof. The pursuer then appealed to the House of Lords, but only against the dismissal of the action, and, while the appeal was pending, he moved the First Division to grant decree for the taxed amount of the expenses of the proof.
Held that it would be improper to pronounce an order which might complicate the disposal of the appeal and that the motion must be refused in hoc statu.
Opinions reserved on the question whether it was competent for the Inner House to pronounce any interlocutor in a case which was under appeal to the House of Lords.
(See previous report1951 S. C. 129.)
John Martin brought an action against the Scottish Transport and General Workers Union, a trade union registered under the Trade Union Acts, 1871 to 1940, (first) for declarator that on or about 17th August 1940 he had been admitted a member of the Scottish Transport and General Workers Union and still was such a member, and (second) for production of a pretended resolution and order of the general executive council of the defenders, dated 24th May 1948, and reduction thereof quoad the pursuer.
On 13th April 1949, after a Procedure Roll discussion, the Lord Ordinary (Blades) repelled a plea to the relevancy of the action and allowed a proof. On 25th February 1950, after the proof, he granted decree in terms of the first and second conclusions of the summons.
The defenders reclaimed, and on 23rd November 1950, the First Division (without Lord Keith) recalled the Lord Ordinary's interlocutors and dismissed the action as irrelevant, but found the defenders liable to the pursuer in the expenses occasioned by the proof, which had not been referred to at the debate in the Inner House.1
On 29th May 1951 the pursuer presented a petition of appeal to the House of Lords in which he challenged that part of the interlocutor of the First Division which disposed of the merits of the appeal but not that part of the interlocutor whereby the defenders were found liable to him in the expenses of the proof.
On 7th December 1951 the case was called in the Single Bills of the First Division (without Lord Russell), when the pursuer moved for decree for the taxed amount of expenses due to him.
LORD PRESIDENT (Cooper).This application raises a novel point of procedure on which there appears to be no precedent whatever. On 23rd November 1950 we pronounced an interlocutor dismissing an action, but found the successful defenders liable to the pursuer in the expenses occasioned by a proof, the reason being that, as the case was presented to us, the proof was never referred to, and the decision was pronounced upon the relevancy of the action.
In the spring of this year the unsuccessful pursuer presented a petition of appeal to the House of Lords, in which, in accordance with their Lordships' Rules of Procedure, he directed his challenge against that part of the interlocutor which disposed of the merits of the case but not against that part of the interlocutor in which he was found entitled to the expenses occasioned by the proof. To-day, the account of expenses having been taxed by the Auditor of the Court of Session, the pursuer asks us for decree for the taxed amount, and the respondents object.
Assuming it to be competent for this Court to pronounce any interlocutor in a case in which a petition of appeal has already been lodged, I do not consider that this is a case where the motion made to us should
be granted. We are informed that the proof which we discarded from consideration has been printed and will be presented to the House of Lords, and it is quite impossible for us to forecast what view their Lordships' House may take upon the case, and in particular upon the proof presented for their consideration. In these circumstances, it seems to me improper that we should pronounce any order at this date which might in any way even appear to hamper the freedom of the House of Lords in doing justice in the appeal as they may think bestReference was made in support of the motion to the case ofForsterUNK,4 but, from an examination of the steps of procedure taken in that case and of the dates on which they were taken, I do not find any assistance in that decision for the solution of the problem before us. I am for refusing to make the order asked.
LORD CARMONT.I agree. I have considerable doubts of the competency of this motion pending an appeal to the House of Lords, but, whatever the rights and wrongs of that may be, I think it is highly undesirable to give effect to the motion in the circumstances to which your Lordship in the chair has alluded.
LORD KEITH.I agree. I am glad your Lordship has reserved the question of the competency of this application. I myself took no part in this case when it was previously before us, but I see no reason to disagree with the views expressed that this is not an appropriate case in which to grant the motion which has been made.
The Court, without pronouncing any interlocutor, refused the motion.
1 Reported 1951 S. C. 129. The report does not refer to the matter of expenses.
2 Reference was made to Forster v. ForsterUNK, (1870) 9 Macph. 829.
3 Court of Session Act, 1808 (48 Geo. III, cap. 151), sec. 17.
4 9 Macph. 829.
1ST DIVISION.
Lord Blades.
Trade UnionContractPowersMembershipAdmission of temporary memberRules containing no provision for temporary membershipTermination of membershipUltra vires.
In 1940 a docker signed a document bearing to be an application for membership of a trade union "for the duration of the present war," and containing an acknowledgement by him that he might be required to forfeit membership at any time after an armistice was signed. The rules of the union made no provision for temporary membership, but provided that members should consist of such persons "as may be duly admitted to membership in accordance with these rules." From 1940 to 1948 the docker enjoyed all the privileges of membership of the union. In 1948 he was informed that his membership had been terminated in accordance with a resolution passed by a meeting of the general executive council of the union.
In an action brought by the docker against the union for declarator that he had been admitted a member of the union in 1940 and was still such a member and for reduction of the resolution passed by the general executive council in 1948, held (rev. judgment of Lord Blades) (1) that the pursuer's claim to membership of the union was based on his application of 1940, and, since the union possessed no power under its rules to admit persons as temporary members, the purported admission of the pursuer as such a member was ultra vires and invalid; and (2) that, in consequence, while the pursuer had de facto enjoyed the advantages of membership for eight years, he had never legally been a member of the union; and actiondismissed as irrelevant.
John Martin brought an action against the Scottish Transport and General Workers Union, a trade union registered under the Trade Union Acts, 1871 to 1940, (first) for declarator that on or about 17th August 1940 he had been admitted a member of the Scottish Transport and General Workers Union and still was such a member, and (second) for production of a pretended resolution and order of the general executive council of the defenders, dated 24th May 1948, and reduction thereofquoad the pursuer.
The following narrative of the parties' averments and contentions upon record is taken from the opinion of Lord Blades: "The pursuer avers that on 19th August 1940 he was admitted a member of No. 1 Docks Branch of the Union at a meeting of said branch which he was invited to attend with a view to becoming a member of the Scottish Transport and General Workers Union. Having indicated his willingness to become a member, the pursuer was asked to sign a form of application which incorporated a declaration that he admitted the right of the general executive committee to require him to forfeit his membership at any time after the armistice. The pursuer protested against being asked to sign the declaration, but, on being given an assurance that it would not be used against him and being given to understand that he would not be admitted to membership unless he signed it, he signed the application form and declaration under protest. He paid the usual member's entrance fee of 2, 10s. and received a member's badge, a copy of the constitution and rules of the Union, and a contribution card. His name was entered in the register of members of the Union in the ordinary way. Since his admission to the Union the pursuer has regularly paid his weekly contributions including increases in the amount thereof when such were...
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