Bannatyne V Overtoun - Litigation

Litigation

The minority of the Free Church, which had refused to join the union, quickly tested its legality. They issued a summons claiming that, in altering the principles of the Free Church, the majority had forfeited the right to its assets, which should belong to the remaining minority, who were the true ‘Free Church’. However, the case was lost in the Court of Session where Lord Low (upheld by the second division) ruled that the Assembly of the original Free Church had a right, within limits, to change its position.

An appeal to House of Lords, (not delivered until August 1, 1904 due to a judicial death), reversed the Court of Session’s decision (by a majority of 5-2) and found the minority was entitled to the assets of the Free Church. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.

The judgement had huge implications; seemingly, it deprived the Free Church element of the U.F. Church of all assets-churches, manses, colleges, missions, and even provision for elderly clergy. It handed large amounts of property to the remnant, more than it could make effective use of. A conference, held in September 1904, between representatives of the U.F.C. and the (now distinct) Free Church to come to some working arrangement, found that no basis for agreement could be reached. A convocation of the U.F. Church, held on December 15, decided that the union should proceed and resolved to pursue every lawful means to restore their assets. As a result, the intervention of Parliament was sought.