Mr A.E.J. Fletcher
98 Bleak Hill Road
Dear Club Member,
Court case update
I write to advise you that a Scottish court hearing involving the Club and FNTC (Trustee) concluded on Thursday 30 September 2021. The hearing was held by video conference. I gave evidence as a witness for over 4 hours. Declan Kenny of FNTC also gave evidence the next day for about 90 minutes.
The Hearing ran into a third day for a final hour and a half, as legal submissions started on Day 2 but did not quite get finished. As a reminder, a decision was taken by the members at a General Meeting to dismiss FNTC as Trustee and to be replaced with Hutchinson. This decision was conveyed to FNTC by the late Mr Pengelly as Chairman of the Club Committee in 2012. Unfortunately, it was necessary for the Club to begin legal proceedings against FNTC in 2017 so that a Scottish court can order the change of trustee to take place. The Members supported this action. The prime reason, back in 2012, which still holds good, is that there was, and still is a considerable financial saving to be made in annual fees that the Club is charged for trustee services.
We do not expect to hear the judgement for at least 8 weeks as the judge informed everyone that, due to Covid, his workload had significantly increased.
As we are all aware the pandemic and associated restrictions has delayed the Club’s Annual General Meeting so it is important that we seek to organise one as soon as it is safe to do so. Although we believe that we have been able to contact around 75% of members for meetings in the past, there has been criticism that not all members have previously been invited. At this point, we would stress that the meetings organised by the Committee have resulted in far greater attendance and participation than meetings organised in the past by WimPen. This is due to the hard work and dedication of the Committee and volunteers.
In a further effort to ensure that all Club members are aware of the contents of this letter, FNTC has been asked to send it out, with the Club agreeing to meet the cost of doing so. The records they will have used for this communication will have been based on the information supplied to them by WimPen.
Unfortunately, the Register of Members, that is the property of the Club and defined by the Club Constitution as under the control of the Committee, has still not been returned to the Committee. This is despite WimPen being ordered to do so by an arbitrator in 2017 and despite a bench of three Scottish appeal court judges in the FNTC case saying this, unanimously, on 16th June 2020 as regards FNTC’s copy –
“The court is satisfied that the Register of Members, including their contact details, is part of the property of the pursuers (the Club) as defined in clause 1(f) of the Deed of Trust. Clause 7 of Schedule 1 does not add to this equation. It is simply a statement that the trustee pro tem (for the time being) has the control and custody of documents relating to the trust property. In the event of the defenders (FNTC) ceasing to be the trustee, they must deliver the Register, along with all other records relating to the Trust, to the pursuers or the new trustee. That is not to say that the defenders cannot retain copies of some documents, if that has a legitimate purpose. However, their retention of details of the pursuers’ members may contravene the Data Protection regime.”
It is for this reason that the unusual step is being taken of involving FNTC to circulate this communication to ensure the AGM is correctly held.
In order for you to receive communications and invitations to future meetings it will be necessary for you to register your details. You can do this in one of three ways:
1. Register your details on the Club Website https://www.losclavelesowners.eu
2. Send your details by email to email@example.com
3. Write to the address shown at the top of this letter.
The details required are:
NAME(S) ON THE CLUB CERTIFICATE
APARTMENT NUMBER AND WEEKS NUMBER
HOME POSTAL ADDRESS
This information will only be used to send you information from the Club. Please note that if you have already put your details on the Club Website there is no need to do so again unless your details have changed.
I wholeheartedly encourage you to take part in the Club AGM and look forward to receiving your response to this letter to ensure that you are registered to receive an invitation.
Chairman, Club Los Claveles