Mark McGroarty v Diarmuid Kilcullen, Stephen McCormack Care of Cobh Golf Club, Mimi Stack Care of Cobh Golf Club, Christopher Stack Care of Cobh Golf Club and Tony McKeown IEHC 679, 28 October 2021

Introduction

The High Court (Court) recently awarded substantial damages against an unincorporated golf club which failed to apply its own membership rules.  A critical aspect of the case was that the plaintiff was not a fully paid member of the club at the time of the accident, the subject matter of the proceedings. Fully paid membership would prohibit him from issuing the proceedings against the golf club.  As a club has no separate legal personality from its member, a member suing a club, is in law suing himself.

Background

The plaintiff lost his left index finger while assisting with building works at Cobh Golf Club (Club) in 2015. He issued proceedings against four trustees of the Club and the carpenter who he was assisting with works to timber cladding at the Club pro shop.  The Court held that the trustees, effectively acting as nominees on behalf of the members, owed a duty of care to the plaintiff and were negligent in causing the plaintiff’s injury.

Implications of Club Membership 

The case turned on whether the plaintiff was a member of the Club or not. The Club was an unincorporated association, a non-legal entity which cannot be sued in its own name. This is the most common structure for sports clubs in Ireland. The members are bound by a contractual relationship with each other, regulated by the rules or constitution of the club. For an unincorporated association to run its business effectively, it must take steps that can only be taken by a legal person, such as a trustee. For example, golf clubs will have to own or lease a large parcel of land for its golf course, and will often have to enter contracts with third party suppliers. It is common practice for trustees, often committee members or long-established members of the club, to enter these arrangements as nominees on behalf of the club members.  

The plaintiff issued proceedings against the trustees in their capacity as nominees for all members of the Club. The defendants argued that the plaintiff was a member of the club and as such could not sue the other members. Put simply, they argued that the plaintiff could not sue himself. The plaintiff argued that he was not a member of the Club at the time of the accident since he had not paid his subscription by 31 January as required by the Club constitution. 

Therefore, the question of liability of the Club turned on whether the Plaintiff was a member of the Club or not when the incident occurred.

Club Membership and its Rules

The Club membership year ran from 1 October to 30 September. The plaintiff cancelled his direct debit for his membership payments in September 2014. While he made a cash payment of €140 in January 2015 and a further cash payment of €150 in April 2015, he did not make the full membership payment of €869. The Club constitution required that a member’s subscription was to be paid by 31 January each year, failing which membership shall be deemed to be terminated. 

Although the plaintiff was a scratch golfer who had entered Club competitions and represented the Club in interclub competitions, the Court held that the plaintiff’s membership was terminated because he failed to pay his membership by 31 January.  Ms Justice Hyland held that there was no evidence that the members had agreed to ignore or change the Club rules on membership from the requirements in the Club’s constitution. Therefore, the practice of allowing the plaintiff to partake in competitions did not confer membership status on him. 

The Court held that the plaintiff was not a member of the Club at the relevant date and was therefore entitled to recover against the defendants. The plaintiff was awarded general damages of €100,000. 

Implications for Unincorporated Clubs

The members of an unincorporated association are bound by a contractual relationship with each other, regulated by the rules or constitution of the club. This case confirms the principle that an unincorporated club and its nominees cannot avoid liability where it fails to apply its own rules. Sports clubs, nominees and committees should be fully cognisant of their own membership rules particularly around membership payment requirements. The consequences of allowing purported members to continue playing where they have not paid their membership fees on time may prove costly.

While not directly relevant to the case, it is recommended that large sports clubs with a significant turnover should incorporate as a private company limited by guarantee rather than operate as unincorporated associations. This would better facilitate a club holding property, entering contracts and significantly, limit the members’ liability. Since golf clubs collect significant membership fees, own large parcels of land and routinely enter contracts, including employment contracts, incorporation is strongly recommended. 

If you wish to discuss any aspect of this article in more detail, or need advice on the incorporation of clubs, please contact Craig Sowman, Derek Hegarty, Patrick Murphy or your usual William Fry Sports Group contact.

Contributed by Karolina Rozhnova and Patrick Murphy