News & Events
FCC Appeal *Tuesday*
October 26, 2010
Latest - Tuesday 2nd November
Submissions concluded today (Tuesday 2nd November). The Court agreed to accept an amendment by counsel representing the Free Church to include both sets of trustees as parties in the action before the court. This results in a slight delay before the judges will conclude the hearing and then consider their judgement for a period of time. The delay is caused by the fact that the trustees have to be officially notified that they are parties in the action. This should be all concluded before 17th November.
By doing this, the Free Church conceded payment of the expenses of that part of the case taken up with debate on the matters of “title to sue” and “all parties not called”. This should be a minor part of the overall expenses.
On the major points of principle at stake, Gerry Moynihan summed up today for the Free Church. He argued persuasively from the principles established by previous cases that where, as in this case, a split had taken place, but neither party had departed from fundamental principles, the crucial question was whether one party had left the body they had both belonged to before the split. He brought the attention of the Court to the fact that the FCC acknowledged that, after the split, they had “reconstituted themselves”. This reconstitution was sufficient to prove that they left the Free Church, and therefore forfeited their right to the property.
In reply, James McNeill for the FCC argued that on the grounds of both adherence to fundamental principles and possession his clients have title to the property. Lord Bonomy pointed out that adherence to principle is a necessary condition, but not a sufficient condition for the right of possession and Lord Osborne mentioned the opinion of a judge in a previous case that “seceders secede at their peril”.
We will now have to wait several months for the decision of the Court.
Friday 29th October
The hearing is now going to go into a second week, beginning on Tuesday. Mr Moynihan has nearly completed his submission and Mr McNeill for the FCC will reply.
The issue of all parties not being called has received a higher profile. This relates to whether the trustees (both Free Church and FCC) ought to have been named as parties in the case. It is hoped that this matter will be resolved on Tuesday.
On the main substantial issue (whether the FCC left the Free Church of Scotland and set up a separate organisation), some progress has been made, but some of the facts are disputed between the parties, so it is possible, though not desirable, that the case might have to go to proof (evidence heard on matters of fact). The present hearing is dealing with principles of law and both sides hoped that the case could be settled on that basis.
Thursday 28th October
It looks as though the hearing may finish tomorrow (Friday), which is shorter than scheduled. Gerry Moynihan QC, for the Free Church, started his presentation this afternoon (Thursday).
The arguments seem to have narrowed down to a technicality over whether all parties were called, and the major issue of what was the legal significance of the FCC leaving the Free Church and setting up a new organisation.
The appeal is being heard by Lord Osborne, Lord Bonomy and Lord Drummond Young.
Tuesday 26th October
The Free Church Continuing’s appeal against Lord Uist’s decision in the Broadford case began in the Court of Session today (Tuesday 26th October).
Lord Uist, in July 2009, found in favour of the Free Church of Scotland in an action to declare who are the rightful owners of the congregational property in Broadford in the Isle of Skye.
The FCC appealed against this decision and the appeal is now being heard before three judges in the Inner House of the Court of Session. The hearing will last 6 days.
Today, counsel for the FCC, James McNeill QC, began his three-day presentation. He outlined both the Free Church’s and the FCC’s arguments in the case. He said the Free Church’s position was that because the FCC had left the Free Church to set up a new organisation, it had forfeited any right to the property of the Free Church. By contrast, the FCC’s case was that issues concerning Church property were decided by the Courts in terms of who adhered to the fundamental principles of the Church and, in this case, as the FCC had not departed from those fundamental principles, they did not forfeit a right to the property. The rest of his presentation was taken up with a detailed examination of case law.
It is expected that counsel for the Free Church, Gerry Moynihan QC, will begin his presentation on Friday. Junior counsel for the Free Church is Ruth Charteris.
Please remember the counsel and judges in prayer, and ask God that he would use this hearing to bring an end to the uncertainty about church property in a way that would glorify His name.
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