McDonald v Burns [1940] ScotCS CSIH_3 (29 March 1940)

McDonald v Burns [1940] ScotCS CSIH_3 (29 March 1940)

The court held that, while it will not review the merits of ecclesiastical discipline, it may inquire into whether the proceedings for dismissal were regular and in conformity with the law and constitution of the Roman Catholic Church, and whether any irregularity was fundamental. The pleadings raised sufficient doubt as to whether the defenders were given notice of the grounds for dismissal and whether the statutory requirements were met, justifying proof before answer.

Citation
[1940] ScotCS CSIH_3
Parties
Pursuer: M'Donald; Defender: Burns; Pursuer: Miss Susan Henry; Pursuer: Miss Emma Atherton; Pursuer: Archbishop of the Roman Catholic Archdiocese of St Andrews and Edinburgh; Defender: Sister Mary Joseph; Defender: Sister Mary Clare Harris
Jurisdiction
Scotland
Judgment Date
29 March 1940
Procedural Posture
Civil / Appeal Against Decree of Removal; Interlocutor of Lord Ordinary Recalled; Proof Allowed Before Answer
Outcome
Interlocutor of Lord Ordinary recalled; proof before answer allowed; amendment for defenders allowed; proceedings to be intimated to the Sacred Congregation of Religious at Rome; title to sue sustained in part; action not held incompetent.
Legal Topics
Judicial Review of Ecclesiastical Decisions, Patrimonial Interests in Religious Office, Natural Justice, Title to Sue, Remedies for Wrongful Dismissal From Religious Orders
Ecclesiastical Law Civil Procedure Judicial Review of Ecclesiastical Decisions Patrimonial Interests in Religious Office Natural Justice Title to Sue Remedies for Wrongful Dismissal From Religious Orders

Case Brief

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Parties

M'Donald

Pursuer

Burns

Defender

Miss Susan Henry

Pursuer

Miss Emma Atherton

Pursuer

Archbishop of the Roman Catholic Archdiocese of St Andrews and Edinburgh

Pursuer

Sister Mary Joseph

Defender

Sister Mary Clare Harris

Defender

Procedural Posture

Civil / Appeal Against Decree of Removal; Interlocutor of Lord Ordinary Recalled; Proof Allowed Before Answer

Legal Issues

  1. 1 Whether the dismissal of extern sisters from the convent was valid under the law and constitution of the Roman Catholic Church
  2. 2 Whether the court has jurisdiction to review ecclesiastical decisions affecting civil rights
  3. 3 Whether the proceedings leading to dismissal were fundamentally irregular or contrary to natural justice

Ratio Decidendi

The court held that, while it will not review the merits of ecclesiastical discipline, it may inquire into whether the proceedings for dismissal were regular and in conformity with the law and constitution of the Roman Catholic Church, and whether any irregularity was fundamental. The pleadings raised sufficient doubt as to whether the defenders were given notice of the grounds for dismissal and whether the statutory requirements were met, justifying proof before answer.

Court Disposition

Interlocutor of Lord Ordinary recalled; proof before answer allowed; amendment for defenders allowed; proceedings to be intimated to the Sacred Congregation of Religious at Rome; title to sue sustained in part; action not held incompetent.

Orders

  • Open up the record and allow amendment for defenders and answers for pursuers; close the record anew.
  • Allow reclaiming motion and recall interlocutor of Lord Ordinary.