Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH NUMBER55
P1297/09	OPINION OF LORD GLENNIE in the Petition of REVEREND ALLAN JOHN MacDONALD Petitioner; for Judicial Review of the purported decisions of The Free Presbyterian Church Synod and Northern Presbytery Respondent: ­­­­­­­­­­­­­­­­­________________

Petitioner: Robertson; Biggart Baillie LLP

Respondents: Dean of Faculty, Campbell; Brodies LLP

28 April 2010

Introduction

[1] The petitioner designs himself as the Reverend Allan Macdonald. By virtue of the decisions under challenge in this petition, that designation is disputed by the respondents. I shall simply refer to him as "the petitioner". He was ordained and inducted to the Daviot, Tomatin and Stratherrick congregation (also known as the Farr congregation), within the bounds of the Northern Presbytery of the Free Presbyterian Church of Scotland on 28 September 2001. The respondents are the Free Presbyterian Church of Scotland ("the Church"), the Northern Presbytery of the Church ("the Northern Presbytery"), and the Deacon's Court of the Daviot, Tomatin and Stratherrick congregation ("the Deacon's Court"), together with a number of individuals who are called as office bearers and as individuals. Amongst the individual respondents is the Reverend John MacLeod, Clerk to the Synod of the Church ("the Synod"). Except where it is necessary to distinguish between them, I shall refer to them collectively as "the respondents".

[2] The petitioner seeks declarator that various resolutions of the respondents from May 2008 until the end of March 2009, which resulted in him being deposed from the office of the ministry of the gospel, are invalid and of no force and effect; reduction of those resolutions; interdict of the respondents from taking steps to remove him from the manse at Tordarroch, Farr, Inverness; and damages.

[3] The resolutions in respect of which this relief is sought (as described in the petition) are:

(a) A resolution of the Synod passed on 21 May 2008 finding him guilty of contumacy; and, in consequence, inter alia suspending him sine die from the exercise of his ministerial functions and from the sealing ordinances of the Church, loosing the pastoral tie between him and his congregation from that date, requiring him to vacate the church manse, stopping his salary from 30 November 2008, and bringing to an end as from that date his membership of the Free Presbyterian Ministers Pension Scheme .

(b) A resolution of the Synod passed on 23 May 2008 finding a libel anent his conduct proven, suspending him sine die from the exercise of his ministerial functions and from the sealing ordinances of the Church, and loosing the pastoral tie between him and his congregation;

(c) A resolution of Northern Presbytery passed on 31 March 2009 finding that him guilty of acting contrary to the Church's avowed principle that the Church courts have exclusive jurisdiction in spiritual discipline, and of "having resorted to the civil magistrate to be reinstated to the functions of the ministry, and, in consequence, deposing him from the office of the ministry of the gospel;

(d) A resolution of the Synod passed on 20 May 2009 purporting to dismiss the petitioner's appeal against the resolution of the Northern Presbytery of 31 March 2009.

[4] The petition was presented in October 2009. Answers have been lodged for the respondents. They contend, amongst other things, that the petitioner is barred by mora, taciturnity and acquiescence from insisting in the petition; and that the orders sought should therefore be refused. This is reflected in their first plea-in-law. At the first hearing they sought to insist on this plea and moved the court to dismiss the petition. It was made clear by the Dean of Faculty, acting on their behalf, that that plea should either be upheld or repelled - he did not want the court to allow the case to go further with the plea being reserved. This course commended itself also to Mr Robertson, who acted for the petitioner.

The petitioner's case

[5] In statements 5.1 and 5.2 in the petition, the petitioner briefly summarises the history and constitution of the Church. I need not dwell on that. It is, however, necessary to say a little about the conduct of the respondents as averred by the petitioner. He sets his case out in detail in Statements 5.3 - 5.15. The narrative is protracted and complex, and what follows is no more than a brief summary of his averments. I emphasise that I am summarising the petitioner's averments which, for present purposes, require to be taken pro veritate. There has, as yet, been no examination into the accuracy of those averments.

[6] The dispute goes back to 2004, when the Northern Presbytery rejected an application by Mr DWB Somerset, the son-in-law of the Reverend John MacLeod (the Clerk to the Synod and one of the named respondents), to be appointed a missionary to Aberdeen. Mr Somerset then sought to become a minister in Aberdeen, and in July 2005, after the Synod had reversed the decision of the Northern Presbytery not to do so, the Northern Presbytery arranged for his induction and ordination. The petitioner and others expressed the view that the appointment should not be made. Thereafter, in a Petition to the Northern Presbytery, the Reverend DWB Somerset (as he had become) raised concerns about the petitioner's expression of views on these matters. That Petition was heard on 25 July and 1 August 2006 and the Northern Presbytery approved by a majority a motion requiring Reverend Somerset and the petitioner "to take steps to meet together and discuss their differences in an honest spirit and in confidence before witnesses from within the Presbytery, one of each chosen by each part." The petitioner acquiesced in that decision but the Reverend Somerset did not. He appealed to Synod. On 5 December 2006 the Synod considered the Reverend Somerset's Appeal. Though a sitting member of Synod for general Synod business, the petitioner and the other members of the Northern Presbytery were removed from Synod during its consideration of the appeal. In his absence, the petitioner was accused of several faults and deemed guilty of committing them. The Synod reversed the judgement of the Northern Presbytery and substituted for it a requirement that the petitioner (1) acknowledge in writing to the Clerk of the Northern Presbytery that the Reverend Somerset was a competently ordained minister and (2) to apologise, in writing, to the Clerk of the Northern Presbytery for an alleged public attack on the Reverend Somerset. The petitioner was given no opportunity to respond to any matters. He was subsequently given a written instruction to like effect. That instruction was published in the Free Presbyterian Magazine and on the Church's website without the petitioner being given any opportunity to make representations that such public notice was not justified or appropriate. The petitioner responded by letter of 10 January 2007 acknowledging that he believed that the Synod had "declared Dr D W B Somerset to be a competently ordained minister of the Church". He denied, however, that he had made a public attack on the person of the Reverend Somerset - he had only criticised the procedures adopted by him and the Church courts - and pointed out that he, the petitioner, had not been found guilty of, or confessed, any sin. Following a meeting of Synod on 23 May 2007, the petitioner was informed that he was still required to make a written acknowledgement and apology as before. He responded in similar terms. On about 13 November 2007 the Synod required the petitioner to write to the Clerk of the Northern Presbytery before 28 December 2007 on the two matters. The Clerk of Synod, the Reverend John MacLeod, was also instructed to bring to the petitioner's attention that "persistent failure to obey an instruction of the Synod will be considered as contumacious". In late March 2008 the petitioner received a citation from the Reverend John MacLeod, as Clerk to the Synod, to compear before the Synod in Glasgow on 21 May 2008 to answer Synod requirements concerning his view of the Reverend Somerset's ordination and his alleged "public attack" on him.

[7] Meanwhile, in September 2006, following the decision of the Northern Presbytery in August to encourage reconciliation between the Reverend Somerset and the petitioner (see above), the Reverend John MacLeod applied to the Northern Presbytery for permission to prosecute a Libel against the petitioner for his comments about something that the Reverend John MacLeod had said at a meeting of Synod back in 2004. The Libel was opposed by the petitioner on a number of grounds, including the following: (a) that the Synod Clerk's Department had improperly circulated a purported transcript and purported digital recording of the 2004 Synod proceedings to Synod members prior to consideration of Libel's relevancy, thus fatally prejudicing a fair trial; (b) that the audio recording was inadmissible, as it had not been contemporaneously transcribed and notarised, had no marks and seals to show that it was authentic, complete and had not been tampered with, and had not been duly adopted in the permanent record of the Synod; and (c) that the Libel was fatally flawed through the omission of an appended list of witnesses. On 16 or 17 January 2007 the Northern Presbytery by a majority resolved to serve the Libel. The petitioner thereupon made a Dissent and Complaint to Synod. Nonetheless, he was served with the Libel and was then removed from the bar while the Northern Presbytery considered its relevancy. On being called back to the bar, the petitioner made clear his objections to the proposed process; but the Northern Presbytery resolved by a majority to hold the Libel relevant and to suspend the petitioner from the functions of his ministerial office until the Libel had been fully disposed of.

[8] The petitioner appealed to Synod against the decision to hold the Libel relevant. His Dissent and Complaint and his Appeal against the Northern Presbytery decisions were lodged with Synod. They were heard by the Synod on 23 May 2007. The process before Synod was, it is said, a distinct process from the complaint at the instance of the Reverend John MacLeod. The parties to the Synod process were the petitioner and the Northern Presbytery. Although not a party, and despite objections from the petitioner that he therefore had no locus, the Reverend John MacLeod was invited by the Synod Moderator to come to the bar to speak and was given the opportunity to address the Synod and respond to questions. The Synod dismissed the both the petitioners' Dissent and Complaint against the serving of the Libel and his Appeal against the finding that the Libel was relevant.

[9] In July 2007 the petitioner appeared at the bar of the Northern Presbytery to be given the opportunity to confess his guilt to the Libel of the Reverend John MacLeod. Whilst maintaining that the process against him was fatally flawed, he maintained that he was not guilty of the charge. The Northern Presbytery had admitted a partial copy of a digital audio recording purporting to be from the 2004 Synod proceedings. The petitioner asked them to provide the full recording, to enable him to see whether it complied with even basic standards of verifiable completeness and to cite defence witnesses if necessary. Early in August 2007 he sent to the Northern Presbytery, at their request, a provisional list of seven defence witnesses. On about 29 August 2007 the Northern Presbytery refused the petitioner's request for the full recording, on the grounds that it was the property of the Synod. The petitioner then submitted a written request to the Synod Clerk's Department for the full recording.

[10] The Northern Presbytery cited the petitioner and his witnesses to attend a trial to take place on 9 October 2007. Four days before the trial was due to commence, the petitioner was told that the trial had been cancelled at the request of the Reverend John MacLeod whose wife was terminally ill. On 9 October 2007 the Northern Presbytery decided to refer the Reverend John Macleod's Libel against the Petitioner to the Synod for it to resolve whether the prosecution should proceed, given the non-appearance of Reverend John Macleod and, if so, whether the proof should be taken by the Synod or the Presbytery." The Synod met on 13 November 2007 to consider matters, with the Reverend John MacLeod himself presiding as Clerk of the Synod. It refused his request for a full recording and instead appointed a Committee to meet with him to listen to any parts of the recording which might be of interest. On 23 November 2007, the petitioner replied to the Assistant Clerk of Synod explaining that this would serve no useful purpose as the petitioner would not be given the opportunity to have the recording examined. The correspondence was sent to the Assistant Clerk because he recognised that the Reverend John MacLeod was in a position where there was a conflict between his personal interest as complainer and his duties as Clerk.

[11] At the meeting of the Synod in November 2007, the Libel against the petitioner was presented by the Reverend Somerset. The complainer, the Reverend John MacLeod, again presided over the business as Clerk to the Synod. The petitioner was not present. The Synod sustained the process and set down the Libel for trial before the Synod on Thursday 22 May 2008. The petitioner was served with a citation requiring him to compear before the Synod to answer the Libel charge on that date.

[12] On 21 May 2008 the petitioner appeared before the Synod in respect of the matter referred to in para.[6] above. He repeated his earlier statement that the process against him was flawed and confirmed that his view had not altered from his letters of response. He was then interrogated by members of the Synod including the Reverend Somerset. At about 12.10 the he was removed from the bar. The Synod then adjourned for lunch and deliberated until 14.45. The petitioner was recalled to the bar and informed that the Synod found him guilty of contumacy against the Court of the Synod. The petitioner was asked if he acquiesced in that decision and he replied in the negative. He was then informed of the decision of the Synod, the terms of which are summarised at para.[3](a) above. The petitioner contends that this decision arose out of actions of the Synod on 5 December 2006, when Synod deliberated on this matter outwith his presence or that of the Northern Presbytery. The Synod passed sentence on him without any accompanying explanation. No Libel was served on him in relation to any charge that could have led to such a sentence, as was required by the Manual of Practice. He had no opportunity to learn of the charges or criticisms made against him, the likely consequences of such charges or of the alleged foundation for the charges. He had no opportunity to make any representations to the Synod before the Synod took the action it did. The resolution of 21 May 2008 is accordingly vitiated by procedural impropriety.

[14] On 23 May 2008 Synod issued a decision in respect of the Libel prosecuted against the petitioner by the Reverend John MacLeod (see paras.[7] - [11] above). The petitioner contends that that decision also was vitiated by procedural impropriety. The Synod comprised around 38 men, 27 of whom had been members of the 2004 Synod, the events at which were the subject of the complaint, and were therefore witnesses to the matters in respect of which they were acting as judges. They had had sent to them in advance of the trial (by the Clerk to the Synod, the Reverend John MacLeod) a CD audio recording relating to the 2004 Synod. He had distributed the CD as evidence of the substance of the complaint before the Northern Presbytery had decided whether the Libel should be served and whether it was relevant. This was both premature and prejudicial. The CD had not been authenticated nor adopted as part of the permanent record of Synod proceedings. The Reverend John MacLeod, being both Clerk to the Synod and also the complainer in the Libel, had a conflict of interest in the subject matter of the Appeal. Further the process was defective because the complainer, the Reverend John MacLeod failed to append a list of witnesses to the Libel and failed to call witnesses to establish the matters in the Libel. The procedures adopted were inherently unfair and prejudiced the petitioner's right to receive a fair trial.

[15] By letter of 9 January 2009 the Clerk to the Northern Presbytery intimated to the petitioner that a motion had been approved that the petitioner be cited to appear at the bar of the next ordinary meeting of Presbytery on 10 March 2009. In that meeting on 10 March 2009, the petitioner was cited to appear at the Presbytery meeting on 31 March 2009

"so that the Presbytery may take cognisance, of Mr MacDonald's application to an Employment Tribunal to be restored to the ministry, and of his threat, in his solicitor's letter of 19 August 2008, to take further action in the civil courts 'should the FPC Synod not itself reduce the pretended resolutions of 21 and 23 May 2008'".

On 31 March 2009 the petitioner attended the meeting of the Northern Presbytery. He stated that he wanted to know how the matter had arisen and why it was being dealt with by the Presbytery. The petitioner was informed by the Moderator of Presbytery, the Reverend Somerset, that he was there to answer questions, not to ask them. The petitioner said that since he was refused an answer to his question, he craved extracts of the Minute of the previous meeting and also of the present meeting. The petitioner was then questioned about his application to an Employment Tribunal and his stated intention of seeking redress in the Court of Session if matters were not resolved. Some members of the Presbytery commented that these actions were a breach of the petitioner's ordination vows. The petitioner had no prior notice that such comments were likely to be made. He denied any fault or sin. He stated that he believed his actions to be in accordance with the Westminster Confession of Faith and in fulfilment of his ordination vows, not in breach of them. He was then removed from the bar. After several hours, he was called back to the bar. The Moderator then read out two judgments one after the other, decided by majorities of five to four, on the casting vote of the Moderator, the Reverend Somerset. The first decision found the petitioner guilty of breaching his ordination vows by resorting to the civil magistrate in respect of the Synod's pretended suspensions of May 2008. The second decision was that the punishment for the petitioner was that he was to be deposed from the office of the Holy Christian Ministry. The petitioner was asked if he acquiesced in these decisions and replied in the negative. He was asked if he was appealing to Synod against the decisions. Not having had a proper opportunity to consider the decisions, he initially replied in the negative, stating that it appeared pointless as he suspected that the Synod had caused or influenced the Presbytery's actions; but before the deposition was formally pronounced he sought to change his mind. He began to speak but was ordered to be silent by the Moderator, the Reverend Somerset, who then proceeded to pronounce the formula of deposition. The petitioner was then removed from the bar.

[16] The petitioner contends that the action of the Presbytery represented the first occasion when a Church court had raised this accusation against him. When he denied any fault, the Presbytery, if wishing to continue its disciplinary process, were obliged by their constitution to follow the process of Libel as set forth in their Manual of Practice. They failed to do so. The resolution of 31 March 2009 is accordingly vitiated by procedural impropriety.

[17] On around 6 April 2009 the Presbytery Clerk issued an extract Minute of the meeting of 10 March 2009 and documents purporting to be "the relevant decisions" of 31 March 2009. The petitioner responded by letter of 7 April 2009 that he had craved three extracts and only received one, and he renewed that request. He says that he was not in a position to submit a reasoned appeal until such time as he received a full extract of the decisions against which he sought to appeal; as he put it later, it was not possible to respond adequately to what he had not received. On 13 April 2009, the petitioner submitted his appeal to the Assistant Clerk of Synod, who confirmed that the appeal had been forwarded to the Reverend John MacLeod as Clerk of Synod. On 23 April 2009 the Assistant Clerk wrote to the petitioner saying that he had been instructed that the appeal documents were to be sent direct to the Reverend John MacLeod, Clerk of Synod, so the petitioner sent them a second time, by letter sent on 27 April 2009 by first class registered post. There was no administrative difficulty in arranging a hearing of the appeal. The Synod Clerk's letter of 6 May 2009 notified the petitioner that he had the right to be present in his own interest on Wednesday 20 May 2009 at 9.30am. However, when the petitioner sought to appear before the Synod on that date to appeal against the resolution of the Northern Presbytery, the Synod dismissed the appeal on the basis that the petitioner had not used the means available to him.

[18] The petitioner contends that that decision proceeded upon a flawed and irregular procedure which took place on 31 March 2009 where the petitioner was afforded no opportunity of making effective objection. The dismissal of the appeal is accordingly vitiated by procedural impropriety and falls to be reduced.

[19] The petition goes on to deal with the issue of the petitioner being required to vacate the manse. I need not go into that issue in any detail since it was put forward substantially to support a claim for interim interdict, a matter which is not before me. It also sets out in some detail the basis upon which it is contended that the processes by which the decisions were arrived at were irregular and unfair. Again, I do not need to dwell on this.

[20] In summary, the complaints made by the petitioner are that he has been subjected over a period of two years or more to proceedings which have been conducted irregularly and in an unfair manner and which have ultimately led to his deposition from the ministry of the gospel and the loss of his income (including pension rights) and accommodation. Underlying the complaints there is a suggestion, not put in so many words but inescapably there, that he has been the victim of a personally motivated campaign against him by two individuals, the Reverend Somerset and the Reverend John MacLeod, who have acted at various times as prosecutor, judge and jury; and that he has at various stages, in particular at the hearings of March and May 2009, been denied a proper opportunity of putting his case. At this stage no evidence has been led and the court cannot form a view as to whether the complaints made in the petition will be made out. All that can be said at this stage is that the allegations of irregularity and unfairness are of a kind which, if proved, are unlikely to be capable of being dismissed as technical or trivial but may well be assessed as having given rise to a real risk of substantial injustice. They concern the petitioner's livelihood and his calling.

The law

[21] There was no dispute between parties as to the law to be applied to the question of mora, taciturnity and acquiescence. The law is summarised succinctly and comprehensively in the opinion of the Inner House in Somerville v Scottish Ministers 2007 SC 140 at para [94]:

"In considering the submissions we remind ourselves, in the first place, of the meaning of the words of the plea. Mora, or delay, is a general term applicable to all undue delay (see Bell, Dictionary, sv 'Mora'). Taciturnity connotes the failure to speak out in assertion of one's right or claim. Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three elements must be present. In civil proceedings delay alone is not enough; ...we would emphasise that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. ..."

I was also referred to my own decision in United Co-operative Limited v National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831, in which I said this:

"[30] The term mora refers to the delay in bringing legal proceedings to challenge the decision complained of. In cases of private right, the relevant periods are likely to be counted in years, not months. In cases of judicial review, the plea is likely to be invoked where the delay is much shorter. That can be explained by the administrative law context and, more particularly by the requirements of good administration; not 'as an abstraction' (per Lord Nimmo Smith in Singh), but because the statutory or administrative context shows that some decisions are likely to be acted upon promptly; and therefore, if they are to be challenged, should be challenged 'with alacrity'. This is the expression used by Lord Eassie in Devine at para [22] in the context of the grant of planning consent, but similar considerations seem to me to apply in a context such as the present. Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all the circumstances. The requirements of good administration rank high amongst those circumstances. In Scotland, there is no fixed time within which steps require to be taken to commence proceedings for judicial review. In assessing what is a reasonable time, account must, of course, be taken of the complexity of the matter, and the need to take advice, gather information, and draft proceedings. In some cases, this will require considerable time; but in others, because the issues are narrow and may already be well known at the time of the decision, there will be no reason why the petition cannot be prepared and lodged within weeks. Other factors may dictate that the aggrieved party may have to move with particular expedition. For example, he may be aware that other parties are in fact organising their affairs on the strength of the decision, or are intending to do so. In such circumstances, he will need to get a move on.

...

[32] Taciturnity simply connotes a failure to speak out in assertion of a right or claim when a reasonable person in that position would be expected to speak out. ...

[33] What then of acquiescence? Acquiescence simply means assent to what has taken place. The enquiry is not a subjective one, to be answered by looking into the mind of the petitioner. The test is objective. Acquiescence requires to be inferred from the petitioners' inaction and silence. The question is how the matter would have appeared to a reasonable person observing the petitioners' conduct, knowing of all the circumstances of which the petitioners knew or ought to have known when acting in the way they did. The same facts as inform the assessment of mora and taciturnity are relevant to the question of acquiescence. As is pointed out in Somerville, it is not necessary for the respondents to prove reliance or prejudice. Proof of such matters is, in my view, relevant not to acquiescence but to personal bar. When considering acquiescence, it is of no interest how the person at whom the conduct was directed understood it, and so understanding it, relied on it. What is of interest is the knowledge which the petitioners had or could reasonably be expected to have, including knowledge of whether others are likely to act on the basis of the decision of which they complain. Attention is focused solely on how, in such circumstances, their conduct is to be characterised."

This was said to be an accurate summary of the law. I am not sure that it adds much to what was said more pithily in Somerville, though it does perhaps emphasise, in the context of acquiescence, that the test is objective.

Submissions for the respondents

[22] On behalf of the respondent, the Dean of Faculty pointed out that the application for judicial review was made in October 2009. Review was sought of administrative acts of the Free Presbyterian Church of Scotland, a body which was entitled to administer its affairs upon the provisional assumption, unless there was clear reason for not making that assumption, that the determinations of the Presbytery and Synod had force and might be relied upon by the members of the church. The resolutions and decisions of which complaint was made in this case were made between May 2008 and May 2009. In other words, the court was being asked to review decisions made between 6 and 18 months ago. The petition included a claim for damages, but it was entirely open to the petitioner to bring an ordinary action for damages arising out of the allegedly unlawful acts of the respondents without at the same time seeking to reduce those decisions in a petition for judicial review.

[23] Further, at the same time as making his complaints about the respondents' decision making process, the petitioner presented a claim for unfair dismissal to the Employment Tribunal ("ET"). That claim was resisted on the grounds that the petitioner was not an employee. A preliminary issue on this point was determined in the respondents' favour. He was not an employee but simply occupied an office within the Church. The petitioner appealed that decision on 26 June 2009. In his notice of appeal he sought a finding that he had been an employee until 21 May 2008. That appeared to be an acceptance of the decision to dismiss him. At that point in time, it appeared that the petitioner realised that he had reached a fork in the road. He chose to go down the route of appealing a decision by the ET and challenging the lawfulness of his dismissal which, as a fact, he appeared to recognise had happened. He did not at that time seek to pursue any challenge to the resolutions and determinations leading to his dismissal. By any objective criteria, the court should infer that after June 2009 the petitioner had acquiesced, albeit reluctantly, in the respondents' decisions, in the sense of being resigned to the fact that the decisions would not be undone, and had determined instead to pursue an avenue of relief provided by the appeal to the EAT. It was not until October 2009 that he sought to challenge those decisions in the Court of Session by the petition for judicial review. In those circumstances it was submitted that there was clearly mora, in the sense of delay in bringing proceedings; and there was taciturnity, in the sense that he took no steps to suggest that the decisions of the respondents should be set aside. Further, in the context of that delay and taciturnity, his conduct in choosing to go down the EAT route rather than petition the court for judicial review should be seen as amounting to acquiescence.

[23] In the course of submissions, I was shown correspondence between agents for the petitioner and agents for the respondents going back to August 2008. I shall not recite it verbatim. It shows the following sequence of events. On 19 August 2008, at which time the petitioner had been suspended from the ministry sine die, agents for the petitioner intimated that he would be pursuing a claim in the ET and, separately, if the decisions of May 2008 were not reduced voluntarily, would seek reduction of those decisions in the Court of Session. On 20 November 2008 the petitioner's agents were informed that the Synod had considered the matter and had no intention of reducing those decisions. By this time, proceedings before the ET had been instituted. In correspondence thereafter the petitioner's agents repeated their position that judicial review proceedings were likely if no resolution could be found to the dispute, but that the petitioner was anxious if at all possible to avoid recourse to the court. A proposal was put forward on behalf of the petitioner. It was made clear by the respondents in January 2009 that the proposal was not acceptable. This was repeated in early February 2009 and again in early March. In May 2009 the petitioner's agents asked for a copy of the sound recording to which reference has already been made, but this was refused. On 28 May 2009 the ET issued its decision against the petitioner on the question of whether he was an employee. In early June 2009, the petitioner's agents again asked for the sound recording. The correspondence came to an end on 16 June 2009. On 26 June 2009 the petitioner appealed to the EAT. In October 2009 the instant judicial review proceedings were commenced in the Court of Session.

[24] It has since come to my attention that the petitioner's appeal to the EAT was heard on 9 and 10 February 2010, after the debate. His appeal was dismissed.

Discussion

[25] I deal first with the question of mora or undue delay, delay beyond a time which is reasonable in the circumstances. The circumstances are important. Two factors in particular are relevant here in my opinion. First, there was an understandable reluctance on the part of the petitioner to take legal action in the Court of Session. The reasons are set out in the correspondence. They include a reluctance to involve the "Civil Magistrate" in the affairs of the Church, save as a last resort. To this end a proposal for a compromise solution was put forward and pressed despite its rejection by the respondents on a number of occasions. But from August 2008 onwards it was made clear that judicial review was being considered seriously, and the respondents can have been in no doubt that there might be an application to reduce the decisions made in May 2008. Secondly, action was being taken by way of proceedings before the ET which, if successful, might have led to matters being resolved. The ET gave its decision only in May 2009. In those circumstances I do not think that it can properly be said that up to May 2009 - which in any event is the time of the last decisions complained of - the petitioner had unduly delayed in bringing proceedings to reduce those decisions. And the correspondence about the sound recordings after that takes the matter to the end of June 2009. From then until the lodging of the petition in early October 2009 is a period of just over 3 months. The petition was drafted by counsel and contains very detailed averments, requiring an understanding of Church procedures and rules. Given the nature and content of the petition, I do not think that it can be said that lodging it in October 2009 showed undue delay. Although the argument was made that the Church should be able to act on its decisions on the basis that they are valid, there was no suggestion on behalf of the respondents that they drew to the petitioner's attention the fact that they might be put in difficulty by any delay in commencing court proceedings for reduction, nor was it suggested that any difficulties were in fact caused by the fact that the petition was only lodged in October 2009. I do not consider that the argument on mora is made out. That is sufficient to dispose of the argument.

[26] In view of my decision on mora, the question of taciturnity does not arise. Should the matter go further, however, I would accept that there was taciturnity only for the period from June 2009 until the petition was lodged in October 2009. Had I found undue delay during that period, I would also have made a finding of taciturnity for the same period.

[27] Even if I had found mora and taciturnity, I would not have found it established that the petitioner had acquiesced in the decisions of which he now complains. Taken objectively, the correspondence from August 2008 to May 2009 shows that he was intimating an intention to have the decisions reduced one way or the other, i.e. if not voluntarily by the Church then by court proceedings. Up to that time there can be no valid argument that he should be taken to have acquiesced in the decisions. It is relevant in this context to note the importance to him of his complaints. Looking at the matter objectively, they are not the sort of complaint likely to be abandoned. In any event, an argument on acquiescence at this stage, even if successful, could only bite on the decisions of May 2008. There were further decisions in March and May 2009. It would be artificial to say that if he challenged these decisions he could not revive his complaints about the process in 2008. They are all part of the same narrative.

[28] The main thrust of the respondents' argument was that in June 2009 he reached a fork in the road, and opted to pursue the appeal to the EAT and not to follow through his threat of judicial review proceedings. I do not accept this. It has to be borne in mind that his application to the ET during 2008 and early 2009 was run alongside correspondence threatening judicial review. So there is no inherent inconsistency between the two routes; or, at any rate, no implied statement by him that he was pursuing one at the expense of the other. Rather he was pursuing the two as alternatives. The appeal to the EAT is simply a continuation of what was begun before the ET, and is therefore not in itself indicative of a decision to abandon hope of having the decisions reduced by court proceedings. What is relied on is the contention in the Notice of Appeal that the petitioner was an employee "until 21 May 2008". That is said to be a recognition by him that his status as a minister was effectively brought to an end as at that date by the decision on May 2008. In other words, it is argued that he recognised that the decision in May 2008 was effective and could not be reduced. To my mind that argument reads too much into the Notice of Appeal. It is to be noted that no similar point was taken in argument in respect of his Submissions to the ET, where, at paras.3.49 and 3.50, the petitioner referred to the fact that he was suspended by the May 2008 decisions. Standing the correspondence in which he insisted that he was considering judicial review, it would be impossible objectively to infer from his statement in those Submissions that he had been suspended an acceptance that the suspension could not be reduced. Similarly, I consider that it is impossible so to construe his statement in the Notice of Appeal that he was an employee until 21 May 2008. The ET and EAT procedure has to be seen in the context of his insistence that judicial review was a possibility. Albeit the correspondence came to an end in May/June 2009, and indeed reduction was last mentioned in terms in March 2009, it would take something much stronger than that to lead me to infer that the petitioner had, without saying anything to that effect, changed tack and decided no longer to seek to have the May 2008 decisions reduced.

[29] In any case, the "fork in the road" argument would, if successful, only impact upon the challenge to the May 2008 decisions. Those were the only decisions before the ET and the EAT. It could not, in my view, support an argument that the petitioner had acquiesced in a decision taken in May 2009 to depose him from the ministry which was not before the EAT.

Decision

[30] For those reasons I shall repel the respondents' first plea-in-law and put the case out By Order to consider further procedure.