Outer House dismisses petition against dissolution of community council as academic after petitioner’s position change

About this case:

• Citation:
  [2026] CSOH 32
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Arthurson

Samantha Kane, a former member of the Ardgay and District Community Council, originally sought remedies of reduction, declarator, and damages in respect of a decision made by Leslie Waugh and Kerry Hawthorne, formerly chair and secretary of the Community Council, to propose a resolution to dissolve the organisation which subsequently passed at a public meeting. She argued that the decision to dissolve was taken in order to convene a new council without her in it and was impermissible per the council’s constitution.

The case was heard by Lord Arthurson in the Outer House of the Court of Session, with the petitioner appearing as a party litigant and the respondents represented by Innes, advocate.

Disciplinary vehicle

On 17 April 2025 at a public meeting of the Community Council, the respondents proposed a resolution under clause 17 of the council’s constitution to dissolve it. Said resolution was passed by a two-thirds majority at a public vote at a subsequent meeting held on 22 May 2025. In the Note of Argument lodged on behalf of the respondents, it was stated that the decision to propose dissolution was “made in the moment… in response to the meeting falling into disorder as a result of disruption caused by the petitioner”. The petitioner was also said to have a rich history of disrupting meetings, refusing to co-operate with other members of the Community Council and making unfounded allegations against other members.

At the outset of the petitioner’s submissions, she indicated that she was no longer seeking damages but was restricting the scope of the petition to the remaining remedies of reduction and declarator. Following the conclusion of the petitioner’s submissions, at the outset of the respondent’s submissions, she also confirmed in open court that, in recognition that the community required to have a functioning Community Council, she would no longer be insisting upon her craved remedy of reduction, and would accordingly be further restricting the scope of the petition to that of declarator alone.

The petitioner submitted that the power to dissolve had been used for an improper purpose, namely her removal from the council, and had in effect been used as a disciplinary vehicle to turn the Community Council into a tribunal adjudicating upon the conduct of one of its members. The Community Council had no power to exclude one of its members and the resolution had been made in the expectation that a replacement council would in due course be constituted, absent the petitioner.

Counsel for the respondents submitted that the decision taken at the meeting of 17 April was taken in accordance with the constitutional requirements of the Community Council and the vote of 22 May was similarly conducted. While it was accepted that ultimately the decision to dissolve had the effect of removing the petitioner, the same was true for the other members. The decision was a well-founded one made in the performance of a public duty and even if the decision maker was acting in bad faith, which was vigorously denied, the decision was not one open to challenge.

Press the “nuclear” button

In his decision, Lord Arthurson said of the lawfulness of the decision to dissolve: “As is stated on behalf of the respondents in their Note of Argument it was made ‘in the moment’ during the meeting of 17 April 2025. Although the same Note goes on to state that, the meeting having descended into disorder, ‘It was properly concluded by the members that it was necessary or advisable to dissolve’, that just cannot be right, in my considered view. If the critical challenged decision in this case was indeed taken in the moment, there can be no sense in which a collective properly concluded view can have been simultaneously and meaningfully taken by the members on the vital threshold test of whether dissolution was ‘necessary or advisable’.”

He added: “A history of dissent at meetings cannot in my view be a proper basis for establishing the threshold test. Dissent is surely a healthy marker of, and intrinsic to, public debate and, dare one say it, democratic institutions. To press the button marked ‘nuclear’ in order to seek to suppress dissent, and in this case actually to remove the dissenter, cannot have been within the contemplation of the framers of clause 17 in respect of the intended use of the dissolution power which we are in this case considering.”

Considering the effect of the petitioner’s departure from her original position, Lord Arthurson said: “The petitioner having committed herself in the course of the debate in this case to a departure from her original position on remedies, in particular that of reduction, for the commendable reason expressed by her to the effect that the community requires to have a functioning council, this leaves the sole remedy of declarator extant. Parties and the public will well appreciate that courts do not exist to resolve theoretical arguments which have no practical consequences. Parties can, if they wish, seek the opinion of an academic for such a limited purpose.”

He concluded: “Judges, however, are not here to write essays in a vacuum. In this case, had the original petition sought only declarator, I cannot imagine for a moment that I would have granted permission to proceed. In such circumstances, notwithstanding the view which I have reached concerning the exercise of the dissolution power in this case, I do not intend to pronounce a declarator ‘in the air’, as it were, which has no practical effect.”

The petition was accordingly dismissed.