Outer House judge refuses to overturn expulsion of three members from historic Aberdeen porters’ society



Lady Wolffe
Lady Wolffe

A judge in the Outer House of the Court of Session has ruled that three former members of a centuries-old Aberdeen association who were expelled for an alleged rule breach were not immune to expulsion by virtue of a change in their membership status.

Kevin BrownAlan Davidson, and Sean Simpson each raised a separate action against The Shore Porters’ Society of Aberdeen as well as four members of the Society’s Committee, namely the Society’s Deacon, Depute Master, Box Master, and Key Bearer. They each sought declarator that the Society had no power to expel them as well as an interim interdict against their expulsion.

The actions were heard by Lady Wolffe. Each of the pursuers was represented by MacColl QC and the defenders by O’Brien QC.

Rules applied to all members 

Parties were agreed that the Society, first established in 1498, was an unincorporated association with no separate legal personality, divided into a Working Department and a Property Department by its current Rules as created in 1896. The profits of the Working Department, referred to in the Rules as the “van and horse department” were divided among the “working members” of the Society as if they were in partnership. 

The three pursuers were all “superannuated members” of the Society who received annuities from the Property Department, which operated a storage business. Around 2015, a dispute arose between the superannuated and working members regarding whether rental income from the Society’s properties or storage fees paid to it had been wrongly retained by the Working Department. 

The Society had raised a separate action against five of its members to seek repayment of sums said to have been overpaid to the working members. The pursuers were among those the Society sought money from, as they had been working members of the Society at the material time. Furthermore, the pursuers were expelled from the Society on the basis that these misallocations constituted breaches of the Society Rules. 

Under Rule 16, a member of the Society who improperly retained Society funds could be expelled by a two-thirds majority vote of the members. Other potential grounds of expulsion included the commission of a crime by a member, being intoxicated during business hours, and desertion of business as a Porter. 

It was argued by the pursuers that this rule only applied to working members of the Society, and they could not be expelled as they were now superannuated members. This was demonstrated by the references in Rule 16 to workplace behaviour, which could not relate to retired Society members. 

It was submitted for the Society in each action that Rule 16 did not make a distinction between working and superannuated members, simply stating that any “member” who contravened it was liable to be expelled. Were Rule 16 to apply to working members only, it would have said so in the text.  

Furthermore, it was submitted that the grounds of expulsion relied on related to things done by the pursuers while they were working members. There was no logic to the claim that they became immune to expulsion if they successfully concealed their wrongdoing until they retired and became superannuated members. 

No responsibilities under rules 

In her decision, Lady Wolffe noted that parties agreed that the general rules of contractual interpretation applied to the matter at hand, but added: “In practise, the Rules are read and applied by laymen, not lawyers. Some of the language is more open-textured, than technical. An example of this are the references in the Rules to what might now be termed issues of personal probity and which reflect the morality and mores of the late Victorian age when the Rules were promulgated.” 

Noting the purpose of the Society in general, she said: “It is apparent from the words highlighted in the preamble [that], at least from 1896, the Society was a voluntary society which proposed to establish a fund with certain benevolent objects (‘relief and support’) for a defined class of beneficiaries (‘aged members and the widows and orphans of deceased members’). This is reflected in the subject-matter of the Rules.” 

Addressing the scope of Rule 16, Lady Wolffe said: “I have come to the conclusion that the grounds in rule 16 do not extend to the conduct of superannuated members, and that therefore the power of expulsion is not exercisable in relation to such conduct.” 

She explained further: “[Rule 16] refers at the outset to the ‘improper conduct’ giving rise to the risk of expulsion on the enumerated grounds. The superannuated members have no role or responsibility under the Rules. No purposive construction of the Rules, nor any other reason, was advanced as to why these grounds should extend to superannuated members who hold no representative or managerial role within the Society.” 

The judge concluded, therefore, that the grounds for expulsion in Rule 16 were concerned only with the conduct of working members. 

No time restrictions 

Turning to the procedural issue of whether a superannuated member became immune to expulsion for their conduct as a working member, she said: “On this issue, I prefer the submissions for the Society essentially for the reasons it advanced.” 

She continued: “The [entitlements of a superannuated member] are conditional on satisfaction of what I have described as the threshold criteria: that the member has served for a period of 21 years, and he has done so ‘without having done’ any expellable act. That latter criterion, the ‘conduct criterion’, contains no restriction as regards the point in time at which his conduct as a working member might be assessed.” 

Lady Wolffe concluded: “The effect of Mr MacColl’s interpretation would be to introduce a de facto time bar on, or limitation to, the power of expulsion. In my view, there is simply no warrant for reading in such a restriction to a conduct criterion stated in unqualified terms.” 

For these reasons, the pursuers were not granted interim interdict in the terms craved. The case was thereafter put out by order to discuss the terms of any interlocutor to give effect to the court’s ruling on the issue debated, as well as to allow for an amendment in respect of a proportionality issue to be finalised.

© Scottish Legal News Ltd 2021



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