DAVID ABBOTT and CHRISTINE ABBOTT v. THE FOREST HILLS TROSSACHS CLUB and MRS. G.LYALL and MRS. S. PHELPS and MR. D. DAVIDSON and BARRATT INTERNATIONAL RESORTS LIMITED [2000] ScotSC 33 (29th November, 2000)

DAVID ABBOTT and CHRISTINE ABBOTT v. THE FOREST HILLS TROSSACHS CLUB and MRS. G.LYALL and MRS. S. PHELPS and MR. D. DAVIDSON and BARRATT INTERNATIONAL RESORTS LIMITED [2000] ScotSC 33 (29th November, 2000)

The pursuers' action is to vindicate their personal rights as members against unlawful interference with their property interests, not to assert a right belonging to the general body of members. The rule in Foss v Harbottle does not preclude such an action. The management company, acting as agent, can be interdicted if it infringes those rights. The Sheriff's decision to allow proof before answer was correct, and the appeal is refused.

Citation
[2000] ScotSC 33
Parties
Pursuers and Respondents: David Abbott and Christine Abbott; First Defender and Appellant: The Forest Hills Trossachs Club; First Defender and Appellant: Mr G Lyall; First Defender and Appellant: Mrs S Phelps; First Defender and Appellant: Mr D Davidson; Second Defender and Appellant: Barratt International Resorts Limited
Jurisdiction
Scotland
Procedural Posture
Civil Appeal / Appeal Against Interlocutor Allowing Proof Before Answer
Outcome
Appeal refused; Sheriff's interlocutor adhered to.
Legal Topics
Ultra Vires Acts, Unincorporated Associations, Time Share Property Rights, Rule in Foss V Harbottle, Personal Rights of Members, Interdict (injunction)
Contract Law Property Law Association Law Ultra Vires Acts Unincorporated Associations Time Share Property Rights Rule in Foss V Harbottle Personal Rights of Members +1 more

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Parties

David Abbott and Christine Abbott

Pursuers and Respondents

The Forest Hills Trossachs Club

First Defender and Appellant

Mr G Lyall

First Defender and Appellant

Mrs S Phelps

First Defender and Appellant

Mr D Davidson

First Defender and Appellant

Barratt International Resorts Limited

Second Defender and Appellant

Procedural Posture

Civil Appeal / Appeal Against Interlocutor Allowing Proof Before Answer

Legal Issues

  1. 1 Whether the defenders were entitled to charge a refurbishment levy to the pursuers under the Club Constitution
  2. 2 Whether the pursuers have title to sue the second defenders (management company) directly for alleged unlawful interference with property rights
  3. 3 Whether the rule in Foss v Harbottle precludes the pursuers' action against the second defenders

Ratio Decidendi

The pursuers' action is to vindicate their personal rights as members against unlawful interference with their property interests, not to assert a right belonging to the general body of members. The rule in Foss v Harbottle does not preclude such an action. The management company, acting as agent, can be interdicted if it infringes those rights. The Sheriff's decision to allow proof before answer was correct, and the appeal is refused.

Court Disposition

Appeal refused; Sheriff's interlocutor adhered to.

Orders

  • Refuses the Appeal and adheres to the Sheriff's interlocutor of 31 May 2000.
  • Certifies the Appeal as suitable for the employment of Junior Counsel.