A CURIOUS POINT OF LAW...... ( continued )

So can a social or sports club, despite failing to give a member an initial hearing or a fair one,  " get away " with such grave mistakes , when an appeal hearing makes ( or endorses ) the decision to expel that member ?  The answer it appears is far from certain.

Clearly, a member has a much stronger case for wrongful expulsion when the appeal process is itself less than perfect : it may be vitiated by the same defect as the original proceedings; or short of that there may be doubts whether the appeal body embarked on its task without predisposition, or whether it had the means to make a fair and full inquiry. In such cases it would no doubt be right to quash the original decision.

These are all matters ( and no doubt there are others ) which the court must consider. Whether these intermediate cases are to be regarded as exceptions from a general rule, as stated by Megarry J, or as a parallel category covered by a rule of equal status is not in their Lordship's judgement necessary to state. What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation. 

While flagrant cases of injustice, including breaches of natural justice and/or bias, must always be firmly dealt with by the courts, the tendency in their Lordship's opinion in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced. So where an apparently sensible appeal structure has been put in place, the court is entitled to approach the matter on the basis that the parties have agreed to accept what in the end is a fair decision. However, this does not mean that the fact that there has been an appeal will necessarily have produced a just result. The test which is appropriate is to ask whether, having regard to the course of the proceedings, there has been a fair result.

Indeed, the facts of an individual case might well reveal that committees have badly erred by reason of bad faith and/or bias, or such other deficiency, the end result cannot be described as fair. The question of course in every case is the extent to which the deficiency alleged has produced overall unfairness.