Legal Debate in the Court of Session

Commencing on 12 October 2004, four weeks of Legal Debate by Counsel for the parties took place before Lady Paton in the Court of Session in Edinburgh. Her Determination was issued on 24th March 2005. Although the Residual Body, despite their previous claims to the contrary, conceded that the 1995 finding was non-judicial Lady Paton was not persuaded that a right of continued protest is a fundamental principle of the Free Church of Scotland. She concluded that in the present case there had been no departure from the fundamental principles of the Free Church on the part of the defenders sufficient to render them no longer the true Free Church. She reached the view that the residual Free Church continued to hold to the fundamental tenets of the Free Church and that they were thus fully entitled to the assets and property held in trust. She also concluded however that the Free Church (Continuing) continued to hold to the fundamental tenets of the Free Church and, on that view, had not forfeited any entitlement to the assets held in trust. On an examination of the ordination vows taken by ministers and office bearers she suggested however that “there are at least prima facie grounds of failure by the pursuers (or some of them) to comply with the discipline and government of the Church.” She concluded that in these circumstances it would be inappropriate for the Court to rule that we have exclusive right to a portion of the assets of the Free Church. The Counsel of the Free Church (Continuing) took the view that there were fundamental flaws in this Determination and prepared grounds for appeal.