Petition Of Mash Holdings Limited For Judicial Review Of A Decision Of The Scottish Football Association Limited
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2016] CSOH 86 |
| Docket Number | P1039/15 |
| Date | 23 June 2016 |
| Published date | 23 June 2016 |
| Court | Court of Session |
| Year | 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 86
P1039/15
OPINION OF LORD BANNATYNE
In the petition of
MASH HOLDINGS LIMITED
for Judicial Review of a decision of the Scottish Football Association Limited
to approve Mr David King as a fit and proper person to hold the position of director of Rangers International Football Club Plc
Petitioners;
Petitioners: Sandison QC; Brodies LLP
Respondent: Dunlop QC; Burness Paull LLP
Interested Party: Maguire; Anderson Strathern LLP
23 June 2016
Introduction
[1] This judicial review came before me on 28 April 2016 for a first hearing. When the matter called a motion was moved on behalf of the petitioners to dismiss the action with no expenses due to or by any party.
[2] The respondent (The Scottish Football Association Limited) and the interested party (Mr David King) first moved that the appropriate order in the circumstances would be refusal of the prayer of the petition. Mr Sandison on behalf of the petitioners did not oppose this motion and I therefore refused the prayer of the petition.
[3] So far as the motion regarding expenses both the respondent and the interested party opposed this and moved counter motions in the following terms:
On behalf of the respondent; to find the petitioners liable to the respondent in the expenses of the petition and proceedings on an agent and client basis and on behalf of the interested party; to find the petitioners liable to the interested party in the expenses of the petition and proceedings on an agent and client basis and for an additional fee.
Background
[4] The petition concerned a decision made by the respondent on or around 19 May 2015 to approve the interested party as a fit and proper person to hold the position of director of Rangers International Football Club Plc (“RIFC”) in terms of article 10.2 of the Articles of Association of the respondent.
[5] In broad terms the substantive argument which was to have been advanced on behalf of the petitioners at the first hearing was this: the decision of the respondent was vitiated on the basis that it was irrational and because of the failure of the respondent to state the reasons for its decision.
[6] Both the respondent and the interested party sought refusal of the prayer of the petition. In addition to a challenge to the substantive arguments which were to be advanced on behalf of the petitioners as above set out there were also two preliminary arguments advanced on behalf of the respondent and interested party: they challenged the petitioners’ title and in addition plead a defence based on mora, taciturnity and acquiescence. Had the first hearing proceeded before me the respondent and interested party would have insisted on both their preliminary arguments and their arguments with respect to the substance of the petition.
Submissions in support of the petitioners’ motion
[7] In support of his motion regarding expenses Mr Sandison drew the court’s attention to the background to the petition. It was his position that a number of matters which were in the public domain caused the petitioners to believe that the interested party was not a fit and proper person to be a director of RIFC. These matters are set out in detail in paragraphs 6 to 8 of the petition. Rangers Football Club Limited (“RFCL”) is a wholly owned subsidiary of RIFC.
[8] In light of their knowledge of these matters the petitioners wrote to the respondent on 3 June 2015 drawing these matters to their attention. In reply the respondent, had in effect, said that the matter was none of the petitioners’ business. The petitioners wrote again to the respondent on 1 July and 10 September 2015, however, they received no substantive answer to the issues which they had raised.
[9] It was Mr Sandison’s position that on the basis of the said public information the decision of the respondent was ex facie irrational or alternatively no adequate reasons had been given for the decision. The petition was accordingly raised and answers lodged by the respondent and interested party. These, however, did not amplify the position.
[10] At a procedural hearing on 20 October 2015 Mr Dunlop on behalf of the respondent said that he was not going to add anything further in substance to the respondent’s answers.
[11] On 14 April 2016 the respondent substantially adjusted its answers (these adjustments are as shown in bold type in the answers). In terms of these adjustments it was Mr Sandison’s position that the respondent gave details of the information which it had before it at the time of making its decision which had a bearing on the fitness of the interested party. In particular the adjustments made detailed averments with respect to the various points of concern which the petitioners had regarding the interested party’s fitness. None of this information had previously been supplied to the petitioners. It was not disputed that none of this information had previously been supplied to the petitioners.
[12] This change of position, which Mr Sandison described as a volte-face, had come on the last day for adjustment. The adjustments gave the basis for the respondent’s decision. It set out the material which the respondent had before it at the relevant time and explained the reasoning process followed by the respondent in reaching its decision. In light of these adjustments a consultation had been arranged at as early a point as possible with the petitioners. The significance of what had been disclosed was explained by Mr Sandison to the petitioners. They were advised that belatedly the respondent had supplied what the petitioners had been seeking since their first letter to them in June of 2015. In these circumstances the petitioners decided, having regard to the advice of senior counsel, that they would not proceed with the action.
[13] Against that background Mr Sandison’s position was this: had the information now, at the last moment, been provided at the outset the petitioners would not have raised the present proceedings or had it been given at an earlier stage the petition would not have been proceeded with. The respondent he submitted had brought the expense of this particular process upon itself. It was unclear what role the interested party had played in this matter. However, if he was to seek expenses it should in light of the foregoing be against the respondent.
[14] The whole circumstances rendered an expenses award as he had moved appropriate.
Reply on behalf of the respondent
[15] Mr Dunlop began by saying this: answers had been lodged in October 2015 and these answers had set out five lines of defence:
- The petitioners lacked standing in that they were not a member of the respondent.
- Mora, taciturnity and acquiescence.
- The decision was not irrational.
- There was no duty incumbent upon the respondent to provide reasons.
- Even if there was such a duty proper reasons had been given.
These five lines of defence had been maintained throughout.
[16] At the procedural hearing in October Mr Dunlop had argued that the two preliminary matters should be dealt with first and separately from the substantive issues. This motion had been opposed on behalf of the petitioners. It was in terms of this position, namely: that the preliminary matters and substantive matters should be separated and dealt with in two tranches that he had advised the court that he was content with his pleadings. However, the court had decided that the preliminary and substantive issues should be heard together.
[17] Mr Dunlop described Mr Sandison’s position relative to expenses as outlandish. The onus was on the petitioners to establish standing and irrationality. Absent, standing the petitioners had no entitlement to be given any information regarding the decision making process.
[18] He submitted that the petitioners could not come along and say: we now see how you arrived at the decision and therefore can abandon with impunity as regards expenses. That was to leave aside consideration of the various lines of defence which had been put forward by the respondent (and the interested party) and which the respondent would have maintained at this hearing. This approach urged upon the court by Mr Sandison he submitted could not be the correct approach.
[19] In any event the argument being put forward by Mr Sandison that the adjustments had resulted in some huge change in position on the part of the petitioners did not make sense given the terms of the petitioners’ note of argument which had been lodged on 21 April 2016 which continued, in spite of...
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