Barry Walsh (plaintiff) v Ronald Richard Butler and Others (defendants).

Personal Injuries Preliminary issue Whether plaintiff a member of a club at the date of accident Whether the plaintiff precluded from maintaining proceedings Registration of Clubs (Ireland) Act 1904 (No 9).

The High Court (before Mr Justice Morris) judgment delivered 21 January 1997.

WHERE a club is correctly described as, "an unincorporated association the relationship as between members must be regarded as a contractual relation ship based upon the rules of the club. From an examination of the rules of the instant club it was clear beyond doubt that both ordinary, junior and all members of the club must be elected by the general committee of the club. To hold otherwise would give rise to a situation where the committee would have lost all control over affairs of the club.

No question of estoppel can arise in the circumstances of the case as the mere act of holding oneself out as a member without adverse consequences to a third party cannot give rise to an estoppel.

A member's membership lapses when the subscription remains unpaid on the date of the annual general meeting.

The High Court so decided the preliminary issue in holding that the plaintiff was, on the date of his alleged accident, no longer a member of the club if he ever was.

Daniel O'Keeffe SC and Benedict O Floinn BL for the plaintiff Michael McMahon SC and Jacinta Heslin BL for the defendants.

MR JUSTICE MORRIS said that this matter came before the court on foot of an order made on 23 October 1995 directing that a preliminary issue should be tried in this case. This order was subsequently varied so as to include provision that a second issue be tried as a preliminary issue. The order of 23 October 1995 as drawn left room for some uncertainly as to precisely what issue was to be tried as a preliminary issue and accordingly Mr Justice Morris believed that the following represented a statement of the issues which the parties required him to determine at this hearing

(1) Was the plaintiff a member of the Bandon Rugby Football Club on 25 March 1990 and on 12 April 1990?

(2) If the answer to the first question was in the affirmative, was he precluded by reason thereof from maintaining these proceedings against the 12th, 13th, 14th, 15th, 16th and 17th defendants in their capacity as trustees of the above named club and/or the club itself?

Mr Justice Morris said that it was agreed that the court would try the first of these issues and postpone argument on the second issue to a later date.

Mr Justice Morris then set out the following facts. The plaintiff, claimed to have suffered an injury while playing rugby for Bandon, Rugby Club. This club had been in existence for approximately 140 years. Up to 1979, the club had no formal structure in as much as it had no constitution or rules. At or about that time, premises were acquired and a decision was taken to apply for a club licence for the sale of intoxicating liquor. Application was made to Cork Constitution Rugby Club and they provided, as a precedent, a copy of their rules. Armed with these rules as adapted and the other formal proofs, application was made to the court and the appropriate order was made for the granting of the certificate under the Registration of Clubs (Ireland) Act 1904. These rules were headed "Rules as amended at Annual General Meeting 1979".

The Bandon Rugby Football Club continued to operate successfully since that time but the members of the club had paid virtually no regard to the rules with the exception that various committees were created and an annual general meeting of the club was held in accordance with rule 11 for the purpose of receiving reports from the general committee and a statement of accounts from the elected officers and committees. Specifically, the procedure prescribed by the rules for the election of members was never followed. Instead the club operated on an informal basis by attracting young people directly on to the pitch, training them and absorbing them into one of the teams. As team members, they were required to pay an annual, subscription which was collected by the team captain. However, no action was taken against anybody who failed to pay a subscription.

Mr Justice Morris said that the plaintiff was born on 17 August 1968 and he started to play rugby with the club in the season 1982/83. He was found to be a very valuable team member and was promoted to the first team and in the year 1989/90 was elected vice captain of the first team. Because the captain Mr Slattery, sustained an injury the plaintiff took over as team captain and in his capacity attended committee meetings and carried out the functions of a team captain. He paid the appropriate subscription in the season 1987/88 and on the evidence, Mr Justice Morris was satisfied that he again paid his subscription in the year 1988/89. There was no evidence that he paid for the year 1989/90. In the year 1988/89 the plaintiff was awarded the title of "Clubman of the Year".

Mr Justice Morris said that the plaintiff claimed that he suffered injuries while playing rugby as a result of the negligence of the club either in March 1990 or in April 1990 or on both dates. It was submitted on behalf of the plaintiff

(a) The procedure provided for in the rules for the election of members was never employed in the case of the plaintiff and accordingly notwithstanding his informal association with the club and notwithstanding the fact that, everyone concerned regarded him as a member of the club he was not in the legal sense a member of the club.

(b) Even if he was a member of the club at any time up to and including the year 1988189, then under the provision of the rules and in particular rule 8 since there was no evidence that he paid his subscription up to the date of the annual general meeting (which was held the third Friday in May in each year), at the time when he received his injury he was no longer a member of the club as his membership would have lapsed in accordance with the rules.

The defendants submitted

(a) The plaintiff was estopped by his own conduct from seeking to establish that he was not a member of the club as he had over a number of years held himself out to be such a member.

(b) It was within the capacity of all the members of the club to agree to accept a member into the club without the necessity for following the formal procedure provided for by the rules and that this was clearly what occurred in this case.

Mr Justice Morris was satisfied that the Bandon Rugby Football Club was correctly described as "an unincorporated association" and as such the relationship as between members must be regarded as a contractual relationship based upon the rules of the club. While some doubt existed as to whether the 1979 rules were in fact ever adopted at a meeting of the club, he was satisfied that on the balance of probability they were. While undoubtedly members of clubs accept, as their club rules, the provisions which were set out in paragraph 4 of the 1904 Act only for the purpose of becoming eligible to be registered and present such rules as formal proof in their licensing application, Mr Justice Morris was nevertheless satisfied that in the present case by reason of the fact that it was clear that various committees and officers were established broadly in conformity with the rules, that these rules must have been adopted by the club, but thereafter they were virtually ignored.

Mr Justice Morris being satisfied that, when the plaintiff commenced his rugby career with the club in the season 1982/83, these rules were already in existence it was necessary to consider whether by participating in the full activities of the club the plaintiff acquired membership of the club. In his view, the plaintiff did not and could not. Rule 9 provided that the names and addresses of persons proposed as ordinary members of the club should be displayed in a conspicuous place in the club premises for at least one week prior to their election and an interval of not less than two weeks must elapse between nomination and election of ordinary members. The first year's subscription of the new member had to accompany their proposal form. Rule 9 further provided that all members would be elected by the general committee. While it appeared that the first part of rule 9 referred only to "ordinary members" of the club and on one interpretation the procedure of nomination and the display of the proposed members names and addresses in the club premises, might be deemed not to apply for juvenile members, nevertheless, it was in Mr Justice Morris's view clear beyond doubt that both ordinary members, junior members and all other members must be elected by the general committee. It was his view that the only route by which one might join the club was by election by the general committee.

Mr Justice Morris said that to hold otherwise would give rise to a situation where the committee of the club would have lost all control over affairs of the club. Members could be assumed into the club and shed from the club with the knowledge of the general committee. The contractual relationship as between members regulated by their acceptance of the general committee as the regulating authority would be varied without their approval and consent.

Mr Justice Morris was of the view that whatever the status of the plaintiff from the time that he commenced to play rugby with the club in the season 1982/83 up to the time when he had the accident, as alleged in these proceedings, it was not that of a member of the club. He was further satisfied that even if counsel for the defendant was correct in saying that it was within the capacity of the universal membership of the club to set aside the formal election provisions and assume a candidate into the club as a member, there was no evidence there was any such universal acceptance in this case. Moreover, he was satisfied that no question of estoppel could arise in the circumstances of the case as the mere act of holding oneself out as a member, without, adverse consequence to a third party, could not give rise to an estoppel.

Mr Justice Morris said that even if the views as expressed above should have been found to be incorrect, a further fundamental point arose. While he was satisfied that there was evidence that the plaintiff paid a subscription for the seasons 1987/88 and 1988/89, any consequences that would have flowed from the payment of that subscription, in that it could have been construed as rendering him a member of the club, ceased on the third Friday of May 1989 being the date upon which the annual general meeting was held and thereafter he was satisfied in accordance with rule 8 that the plaintiff's membership lapsed. He did not construe the rule as requiring that notification of the fact was to be given before the provisions of the rule come into effect. In his view, a member's membership lapsed when the subscription remained unpaid on the date of the annual general meeting.

Mr Justice Morris concluded that the plaintiff was on the date of his alleged accident no longer a member of the club if he ever was. Accordingly, he answered the first query "No"

Solicitors: John J. Murphy & Co (Cork) for the plaintiff, R. Neville & Co (Bandon) for the defendants.