"No doubt it was quite competent for the respondent to have directed this petition against Harrison (the principal) as well as against Dobbie (the agent); and if he had done so, and it had turned out that Harrison had not authorised Dobbie to act for him in the matter, then Dobbie would have been liable for the consequences. But it was certainly equally competent to direct the petition for interdict against the party who actually inverted the possession. The only defence stated against the petition in the Sheriff court is that it was incompetent, because it was only directed against the doer of the wrong, and not against the party who, he says, authorised him to do the wrong. A more untenable plea could hardly be stated, yet on that sole defence the record was closed."
The fact that the second defenders exercise these functions by virtue of a contract between them and the first defenders does not seem to me to alter the nature of the pursuers' claim as being one which they can assert in their own right. A central part of the submission for Counsel for the Appellants was that the second defenders are only doing what they are contractually entitled to do in terms of the contract between the defenders. Having regard to the nature of that contract, in my view that submission is of precisely the same character as that unsuccessfully advanced in Dobbie v Halbert and in this case should meet the same fate. In my judgment the circumstances of the claim against the second defenders are properly governed by the principles set out in Dobbie v Halbert and also those referred to in paragraph 81 of Burn-Murdoch on Interdict . In essence the right of the pursuers that is said to be violated is the right to peaceable possession of their property during the relevant week. In their pleadings the pursuers identify the second defenders as being actors in preventing their enjoyment of that right and in my opinion it cannot be a relevant plea that the second defenders claim to be authorised to commit these acts.
In these circumstances I have come to the conclusion that the submissions of Counsel for the Appellants should be rejected and that the first ground of appeal should be refused.
The Appellants' second ground of appeal relates to the averments in Article 5 of Condescendence regarding letters of 22 April 1998 and June 1998 sent by the Committee of the first defenders to the members. It was submitted by Counsel for the Appellants that the Sheriff had been wrong to allow these averments to go to Proof. He submitted that a reasonable inference to be drawn from the pursuers' pleadings was that they were using these letters to support the averment at page 16 of the Record that "it is believed and averred that the defenders were of the opinion, (as is in fact the case) at least at the time that the said correspondence was issued, that the charge was one which was in addition to the management and other charges referred to in Clause 12A." He submitted that the Court's task in construing the Constitution of the Club is constrained by the rules of law which have developed in relation to the construction of contracts. He submitted that there is no rule of law which entitles one to have regard to an expression at some later stage about what the parties thought the contract meant.
In his reply, Counsel for the pursuers did not take issue with these propositions of law and expressly accepted that he would not be able to ask any witness at a Proof what that witness thought the contract to mean. However, in his submission, the correspondence raised an issue whether it supported an inference that the work (for which the charge was being made) was not within the ambit of Clause 12 as a matter of fact. In his submission the issue of fact was whether the levy was in addition to the management charges. If it was legitimately part of the management charges no consent was required and therefore in seeking consent these letters were an adminicle of evidence giving rise to the inference that the work to be carried out was not work to which the management charges could be applied.
It is noteworthy that the propositions advanced by Counsel for the pursuers at the appeal are somewhat removed from those made to the Sheriff. At page 32 of the Sheriff's Note it is recorded that Counsel for the pursuers submitted that the averments were relevant firstly by way of background narrative and secondly to the construction of the contract. As I understood the submissions of Counsel for the pursuers that is not a position that he was prepared to support at the appeal.
I am bound to say that the justification of these averments advanced by Counsel for the pursuers at the appeal is not one which instantly springs to mind when one reads Article 5 of Condescendence. However I recognise that the possibility that these letters could give rise to the inference suggested by Counsel for the pursuers cannot be excluded and that it could be a relevant issue of fact whether the work funded by the levy was work to which Clause 12 applied. There is no question that the pursuers' averments could have been better expressed if this was their purpose but, in light of the explanation given, I cannot now say that they are clearly irrelevant. With some hesitation therefore, I have come to the view that the Sheriff took the proper course in allowing a proof of these averments before answer. However, the pursuers should not be surprised if any attempt to use the letters in question as an aid to the construction of the Constitution or to elicit evidence from any witness as to their understanding of the meaning of the Constitution is met by objection, which in my view would be well justified.
In the whole circumstances therefore I do not consider that the Sheriff's interlocutor should be disturbed and accordingly I refuse the Appeal. Parties were agreed in asking me to reserve the question of expenses and to certify the Appeal as suitable for the employment of Junior Counsel. I agree that it is appropriate to do so.