Anyone who has ever been involved with junior sport will know the challenges associated with keeping all those involved happy. Whilst awkward conversations about team selection and game time are to be expected, getting sued for not playing a squad member most probably isn’t.
Yet this is what happened to Winnersh Rangers FC, who were recently taken to court after a parent claimed the decision to substitute his 10-year-old son amounted to emotional abuse and racism. Beyond the fact that this actually really happened, it does also raise the rather curious matter of the mechanics of proceeding against something which technically doesn’t exist, given the legal position of a club as an unincorporated association.
Although an incorporated organisation is something of an artificial construct (‘No soul to damn, no body to kick’ according to Edward Thurlow, the 18th century Lord Chancellor), a corporation does have a separate legal personality, which includes the right to sue and be sued. A critical feature of unincorporated associations, clubs and societies is that they are not recognised as having that same legal status. The law in this area has been underdeveloped for many years, particularly when compared to partnerships and charities, and rests largely on common law. For associations wishing to enter into contracts (including insurance), own property, engage employees and so on, this lack of legal personality has caused a variety of problems over many years, only some of which have been pragmatically or creatively resolved and, for many observers, the law fails to reflect factual reality.
So where does this leave us on entity cover, a common component of management risks policies? As a general rule, a member’s liability is limited to the amount of their subscription because, when he or she joins a club, they do not intend to incur any liability beyond that. Nonetheless, the technical position is that liability under a contract entered into on behalf of an association is likely to be a personal liability of some or all of the members of the association who have expressly or impliedly authorised the contract. And if a member or officer is found liable for a debt, that liability is usually unlimited. Practically speaking, actions tend to be aimed at the chairman and secretary or management committee in the first instance, as representatives of the association. However, and to the relief of many, it is common for legislation of a regulatory nature to provide expressly for application to unincorporated associations. The Equality Act, a rich source of claims for discrimination, membership disputes and employment claims, defines a “body” as including an unincorporated association with more than 25 members. Equally, the Corporate Manslaughter Act makes provision for the offence of corporate manslaughter to certain unincorporated associations. In most cases, the statutory provisions go no further than is necessary to apply the legislation to unincorporated associations and the lack of legal personality is not addressed.
Perhaps the strongest hint can be found in R v RL & JF, where oil leaked from the heating system of a golf club, polluting a water course. The Environment Agency initiated a prosecution against the club chairman and treasurer. The trial judge held that the golf club could have been prosecuted as an unincorporated association and that, at least in the absence of some personal culpability, the two individual defendants could not be so prosecuted. The Crown appealed, and the Court of Appeal affirmed that by virtue of the definition of a “person” in the Interpretation Act 1978, it was both permissible and appropriate to prosecute the club. Hughes LJ said: ‘There are probably almost as many different types of unincorporated association as there are forms of human activity. This particular one was a club with 900 odd members, substantial land, buildings and other assets, and it had no doubt stood as an entity in every sense except the legal for many years. But the legal description ‘unincorporated association’ applies equally to any collection of individuals linked by agreement into a group. Some may be sold and permanent; others may be fleeting, and/or without assets. A village football team, with no constitution and a casual fluctuating membership, meeting on a Saturday morning on a rented pitch, is an unincorporated association, but so are a number of learned societies with large fixed assets and detailed constitutional structures…’.
And there, in a nutshell, you have it, or not, as the case may be. Unincorporated associations vary too widely to be prescriptive and cases may be brought on particular facts against either the association in its own name, or against individual members. In some jurisdictions there have been statutory interventions where clubs and associations have ceased to be treated as legal non-entities, but the United Kingdom has been left behind in this respect. Notwithstanding this, the patchy case law suggests a sensible solution is to look for entity cover to run alongside that for the trustees and managers. The landscape of the last 20 years includes actions against bridge clubs, brass bands and cricket clubs and there is no substitute for a strong contract. Or, as Winnersh Rovers FC might well reflect, maybe no substitutes at all…