Raising an Action for Discrimination in Scotland

[Eloise01]

Re: Raising an Action for Discrimination in Scotland

To be fair, this isn't an employment issue - it's just that in employment law you pick up a lot of knowledge about companies, and since this was obviously a "club"/charity type thing, I have a perosnal intetest in the area and so have picked up a lot of knowledge. It is possible that there is something that can be done, but as I suggested, I doubt it comes cheap or with legal aid. And it would not solve the animosity!

[MissFM]

Re: Raising an Action for Discrimination in Scotland

I am sounding off, venting my spleen. I fished almost every morning or evening, before and after work, it's my life passion. I am absolutely seething at the way they have just cut me off, and anytime I have occasion to speak with them they just feed me nonsense, made up lies as reasons to justify my ban. If there's the slightest chance that there is something in civil law which states they could have or should have treated me differently then I wish to pursue that.

I am prepared to present any case by myself without representation, to keep costs to a minimal. I have no qualms or reservations about taking on such a task. A couple of years back I was wrongly accused of texting on a mobile phone whilst driving. I went to trial and defended myself and showed the cops up for what they were, mistaken at best, and at worst, in one officer's case, a complete liar.

"It is possible that there is something that can be done, but as I suggested, I doubt it comes cheap or with legal aid. And it would not solve the animosity!"

If the OP DID want a Pyrrhic victory and is prepared to be LIP...what pointers could you give Eloise?

[Eloise01]

Re: Raising an Action for Discrimination in Scotland

TBH I would, as I suggested before, start with the actual rules - the memorandum and articles. They describe the companies powers and what authority it has. But unless the company are doing something illegal, an action can only be brought if the LIP is a member, which the OP seems to think they aren't. These documents should outline who the members are and how they join though - it is possible that only the directors are members, in which case it would be hard to take any action against them. The only other thing I could suggest - and bearing in mind that I don't know which bit of a rod is up! - would be the nature of the contract or agreement they have which enables them to issue licenses. There must be something in wrting and it may be possible to challenge that. But past that it really is a unique situation with some fairly odd twists - I thought fishermen were supposed to be placid blokes nodding off on the banks of a river to avoid the wife! Although I did read Salmon Fishing in Yemen, I am afraid I didn't pick up anything useful in this situation at all!

[SpringerSpaniel]

Re: Raising an Action for Discrimination in Scotland

Unfair prejudice in United Kingdom company law is a statutory form of action that may be brought by aggrieved shareholders against their company. Under the Companies Act 2006 the relevant provision is s 994, the identical successor to s 459 Companies Act 1985. Unfair prejudice actions have generated an enormous body of cases, many of which are called "Re A Company", with only a six-digit number and report citation to distinguish them. They have become a substitute for the more restrictive conditions on a "derivative action", as an exception to the rule in Foss v Harbottle.^[1] Though not restricted in such a way, unfair prejudice claims are primarily brought in smaller, non public companies. This is the text from the Act.

“

s 994 Petition by company member (1) A member of a company may apply to the court by petition for an order under this Part on the ground— (a) that the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or(b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial. (2) The provisions of this Part apply to a person who is not a member of a company but to whom shares in the company have been transferred or transmitted by operation of law as they apply to a member of a company. (3) In this section, and so far as applicable for the purposes of this section in the other provisions of this Part, “company” means— (a) a company within the meaning of this Act, or(b) a company that is not such a company but is a statutory water company within the meaning of the Statutory Water Companies Act 1991 (c 58).

”

Four main issues arise out of the interpretation of s.994. First of all, who has a right to complain against whom? Secondly, what specifically does the "company's affairs" mean in s.994(1)(a)? Thirdly, when is something "unfair" and at the same time "prejudicial"? And lastly, when it says "the interests of members", what counts as an "interest" of a "member"? The defining feature of the s.994 action is that it is completely vague. Courts were therefore capable of interpreting the provisions gradually as they felt would be fair. After hearing a case, a court may make "such order as it thinks fit" under s.996. This wide discretion means that previous case law is not as weighty in precedent, as in other areas of law, since each case will be decided on its particular facts.





http://en.wikipedia.org/wiki/Unfair_...om_company_law

[SpringerSpaniel]

Re: Raising an Action for Discrimination in Scotland

This is a case from Scotland as opposed to England, it is made under the same statutory framework:

http://corporatelawandgovernance.blo...nd-unfair.html

[Eloise01]

Re: Raising an Action for Discrimination in Scotland

But this still requires the OP to satisfy the condition of being a member, since shareholder is not relevant (as a trust it cannot have shareholders - it would need to be a limited company without share capital). To determine that the OP would need to go to the mem and arts to define members. At that point, if they are a member or can persuade a member to act it will an appropriate action to be listed - even as an LIP there will likely be a cost to this. If the suggestion of mediation can be pursued, it could be a much easier and quicker.

[Salmon Man]

Re: Raising an Action for Discrimination in Scotland

Thank you for explaining, Salmon Man. Yes, politics creep in to ruin all life's simple pleasures don't they?

Down here (Wye and Usk) most of the fishing is syndicated under control of the riparian owners, who tend to sell the fishing by the day for the season, with a set number of rods per day so that everyone has a fair crack of the whip (or line lol) and the river is not over- (or under-) fished.

Do you think it possible that, even though the situation has obviously become highly emotionally charged, it mightn't be a possibility that they have simply filled all their rods? (Or doesn't it work like that with you?)

As (IMHO) you can trust EloiseO1's judgement on any employment issue, it looks, on the face of it, as if you have no legal redress for your situation. Is it at all possible that there is a third party, trusted by both sides, who could mediate for you so that you can get your life's pleasure back:fish2:?

I suppose it also depends how much you are prepared to "lose face" in order to get your right to fish reinstated and how much the personal animosity matters by comparison.

No, the Association have no rules regarding how many annual season permits, nor day tickets, that they may or can sell. On the contrary, they have quite a reputation as a 'cash cow' and have previously been criticised for over selling permits, over 500 one particular season for 9 miles of double bank fishing.

In reality I can find productive waters on my river (the Clyde) where I may not see another angler the whole day long. So over subscribed it certainly is not.

I have lost my reputation. I've had Directors of this company address the meetings making all sorts of spurious allegations against me, always without evidence. Some of them simply do not like nor want me.

BUT... whether they want me or not.... I have now managed to obtain a copy of their constitution, the memorandum and articles, and already I have identified several irregularities in how they promised to conduct their business affairs, and how they actually carry out those duties.

I have been in contact with Companies House who are awaiting a dossier from me, to commence an investigation into the allegations that I shall present to them.

Regarding the sage advice offered regarding mediation, one of the new directors is a close friend and fishing colleague, and he has (this very evening) attempted to mediate between both parties. Basically the chap has gone and telephoned the Chairman stating that things were developing towards a complaint to Companies House, and mentioning articles from within the constitution that up until today they have denied me access to, and have not considered that I would formally gain access to this document.

The constitution mentions nothing about any right to prevent any angler but my colleague explained that the Association feel they were granted those powers of refusal by a subsequent document, namely the Migratory Fish Lease itself, issued by the Crown Estates office

One perceived irregularity I have stumbled across, is that the constitution states that all meetings are to be openly advertised in several named local and regional newspapers, something they gave up on years ago. They pre select those who are invited to their AGMs and have security on the door to make sure no uninvited member is allowed access, even though their website and constitution clearly states that members are entitled to attend the AGMs, but without vote. Voting is for directors only.

To become a director, you have to be a member in the first place, be proposed by an existing director, and seconded by another, then it is put to a general vote by all present attending directors.

Basically they have access sewn up at the seams.

I will attach the constitution documents in a moment when I find out how to, if anyone wishes to pour over the docs.

[Salmon Man]

Re: Raising an Action for Discrimination in Scotland

I read something else on the Companies House website which stated that after a recent amendment to the 2006 Act, passive knowledge of irregularities is now accepted as being in breach of the Act, whereas before hand as long as no one was personally involved in any wrong decision this meant they were in no way culpable for any actions or liabilities. That now seems to have changed. My point on this is that they are requiredd by law to take into account the best interests of the business.

I am the ONLY member (or am I a member? lol) who holds a recognised qualification in Fisheries Management. So basically they are denying someone the opportunity to bring new skills to the business thus depriving the prosperity of the company and it's aims. As far as I can ascertain, this is now considered an offence.

[MissFM]

Re: Raising an Action for Discrimination in Scotland

That is really tough, Salmon Man, really hard for you. Wish I had more legal expertise. But will ponder and ask around - trouble is that Scotland is so different legally from how it is down here.

[Salmon Man]

Re: Raising an Action for Discrimination in Scotland

This is a case from Scotland as opposed to England, it is made under the same statutory framework:

http://corporatelawandgovernance.blo...nd-unfair.html

Thank you very much. I shall peruse the document just now, right after filling my short glass with some lovely Highland Park.

[Salmon Man]

Re: Raising an Action for Discrimination in Scotland

That is really tough, Salmon Man, really hard for you. Wish I had more legal expertise. But will ponder and ask around - trouble is that Scotland is so different legally from how it is down here.

Well, things might not be so bleak, as Companies House have told me they will take any allegations seriously, and they will have the expertise to properly investigate and handle my complaint.

There could well be more than a civil case against the Association, as I believe(?) breaches of the 2006 Act are criminal offences?

[MissFM]

Re: Raising an Action for Discrimination in Scotland

Sorry SM - haven't a clue about criminal offences etc.. Others here might.

[Salmon Man]

Re: Raising an Action for Discrimination in Scotland

Could someone please tell me how to post a PDF doc?

[Salmon Man]

Re: Raising an Action for Discrimination in Scotland

But this still requires the OP to satisfy the condition of being a member, since shareholder is not relevant (as a trust it cannot have shareholders - it would need to be a limited company without share capital). To determine that the OP would need to go to the mem and arts to define members. At that point, if they are a member or can persuade a member to act it will an appropriate action to be listed - even as an LIP there will likely be a cost to this. If the suggestion of mediation can be pursued, it could be a much easier and quicker.

They are indeed a limited company without share capital.

[Celestine]

Re: Raising an Action for Discrimination in Scotland

Could someone please tell me how to post a PDF doc?

Below is the 'Quick reply' Box, if you look under that to the left, you can see 'go advanced'?

Click that, write your post and look for the paperclip icon at the top of the box. Click that and follow the instructions in the pop up box to upload the attachment.