|23 January 2022
|COMMON SENSE JUDGEMENT AT LAST
|Lord Clark, sitting as Judge in the Scottish Court of Session,
handed down his judgement on Thursday 20 January 2022 in the case of Club Los Claveles versus FNTC (Trustee)
The full judgement is available on the Scottish Courts website
and is in the public domain. The document will also be published as soon as possible on the Club website under “Key Docs”.
For those who prefer just to see the headlines the following are quotes from Lord Clark:
“Mr Fletcher is plainly committed to looking after the interests of the members of the Club, with honesty and integrity.”
“It was accepted that the Constitution formed part of a contract.”
“It is quite clear from the Constitution that the committee has the responsibility of running the affairs of the club. Without a committee, the club cannot effectively function.”
“Under the club’s constitution it is only the committee which can call a general meeting; members cannot do so.”
“When that is read along with clause 11.2, viewed objectively and in context, it is clear that a committee member does not retire until a valid AGM is held.”
“For those reasons, I reject the defender’s (FNTC) position and find that the individual pursuers in this action are committee members with authority to bring these proceedings and to discharge the defender. They have title to sue and as the defender accepts, that having been established, the defender must demit office on the terms set out in the relevant deed.”
“The evidence in the case showed that the committee has not been given, or been allowed to inspect, the register of members held by Wimpen and by the defender. The elected members of the committee have a concern about certain persons and companies that Wimpen lists as members, now also recorded in the defender’s list. There are to be questions of whether that has resulted from improper allocation of certificates by Wimpen, for example for cancelled weeks that are said to truly belong to the club. The committee must be given a reasonable period of time after having seen the register of members held by the defender to consider and reach a view upon which of these persons can properly be regarded as members. That will limit the chance of a mistake in convening an AGM. To ask the committee to convene an AGM when it doesn’t have the register is asking for trouble and could well result in yet further arbitration or litigation about wrongly convened meetings.”
“I am satisfied on the evidence that removing the defender as trustee was and remains the settled will of the club.”
End of quotes.
There is to be a further hearing for instructions to be given as to how and when FNTC must had over the Club’s property. I do not anticipate a long delay.
Many of you will be aware that FNTC was given notice to quit in 2012 and have been helping to prop up WimPen in their illegal activities since 2015. This era has now finally come to an end. This would not have been possible without your support for which the Committee is extremely grateful. With your continued support we can jointly bring the WimPen Ona era on the Resort to an end, thereby enacting the decision the members voted for in 2015. I am looking forward to the Resort being returned to all legitimate owners. In the meantime, please do not give WimPen Ona any more money as this just gives them encouragement.
THIS JUDGEMENT IS A LANDMARK.
My very best wishes and hope for a much safer and better 2022.
Chairman, on behalf of the Committee,
Club Los Claveles
NOTE: Further information will be sent to you shortly.