IN THE MATTER OF:

THE RULES OF THE GARRICK CLUB AND THE ADMISSION OF

FEMALE MEMBERS

________________________________

OPINION

__________________________________

I. Introduction and Summary

1. We are instructed by Leigh Day, acting on behalf of

Professor Simon Heffer, Sir Jeffrey Jowell K.C, Anthony
Peto K.C, and Lord Andrew Tyrie, to give our opinion as to
whether the Club Rules dated November 2021 (“the Rules”)
permit the admission of female members.

2. We have been provided with a copy of the Rules, the current

By-Laws dated November 2021 and three opinions of Michael
Beloff KC. Those opinions each address the question of
whether the Rules permit the admission of female members.
The first is dated 12 October 2011, the second, a
supplementary advice, is dated 4 October 2022 and the third
is a note entitled “Further Note on Supplemental Advice
dated 4th October 2022” dated 2 June 2023.

3. In our opinion, the Rules do not exclude women from

eligibility for membership of the Club. The approach in
the Rules is to give a wide discretion to the General
Committee as to the election of members. The only express

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 restriction on the persons who may be members relates to
circumstances of bankruptcy (and even that restriction can
be waived as a bar to membership by the General Committee
following due inquiry). We do not consider that, on the
ordinary understanding of the language of the Rules, they
exclude women. Nor do we consider that the de facto
position of the Club as an all-male Club indicates any
contractual intention to restrict access to men only.
Indeed, the absence of an express provision to formalise
what has been the de facto position is an objective
indication that the drafters of the Rules have never formed
a settled contractual intention to limit membership to men.

II. The Rules

4. Rule 1 provides for the objects of the Club, as follows.

“Objects

THE GARRICK CLUB was instituted for the general patronage

of the drama; for the purpose of combining the use of a
Club, on economical principles, with the advantages of a
literary society; for bringing together the supporters of
the drama; and for the formation of a theatrical library,
with works on costume. These objects, still cherished, are
now more practically expanded, consistent with the original
objectives, to encompass gentlemanly accomplishment and
scholarship.”

5. The ordinary process for joining the Club is prescribed by

Rules 3 to 7. It involves the proposal of candidates by a
proposer and a seconder with their details to be entered
into the candidates’ books. Rule 3 explains:

“3. Candidates for Membership

No candidate shall be eligible unless he be proposed by

one member and seconded by another…”

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6. Following proposal pursuant to Rule 3, the Rules provide
for a process of recommendation of candidates by the
proposer and seconder by way of a letter to the General
Committee (Rule 4), and a vote on the election of the
member by the General Committee in line with prescribed
rules as to the votes needed for admission (Rule 5).

7. Rule 5 explains that “[t]he election of members shall be

vested in the General Committee”.

8. As to the order of ballot, Rule 7 provides (as material):

“(1) Subject to the discretion of the General Committee to

decide otherwise, the names of candidates shall be taken
in the order in which they are inserted in the candidates’
books and, in any event, the General Committee may in its
discretion advance the name of any candidate if it
considers that the objects for which the Club is instituted
are likely to be thereby advanced.

(3) The General Committee may also in its discretion elect

four members each year in consideration of their public
eminence or distinction. In such cases the name or names
must be entered in the candidates’ books, but they need
not be taken in the order in which they are entered, and
they need not be exhibited as mentioned above nor need
their names have been entered in candidates’ books for 10
weeks.”

9. In addition to the general process for joining the Club

prescribed by Rules 3 to 7 there are provisions in the
Rules for Diplomatic Members (Rules 16 and 17) and Honorary
Members (Rule 18).

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10. Rule 16 provides:

“16 Diplomatic Members – Heads of Missions

The General Committee shall have power to invite Heads of

Diplomatic Missions accredited to the Court of St. James’s
to become diplomatic members of the Club, on terms that
they are exempt from payment of the entrance fee but shall
pay the full annual subscription and shall cease to be
members on the termination of their respective missions.”

11. In relation to Honorary Members, Rule 18 provides:

“18. Honorary Members

The General Committee shall have the power to admit without

payment as honorary members, for a period not exceeding
two months at a time, visitors to this country, with
special regard to those eminent in the theatrical, musical
or literary world, and such other persons as they may from
time to time decide.”

12. There is power to suspend or expel members pursuant to

Rule 20. Rule 20 does not make expulsion or suspension
mandatory in any particular circumstance. Rather, it
provides for it to be “in the power of the General
Committee” to suspend or expel. Expulsion is empowered
where any member “persistently infringes the Rules or by-
laws of the Club, or is guilty of conduct unbecoming a
gentleman, or prejudicial to the interests of the Club”.

13. The only provision in the Rules which provides for an

automatic bar to the continuation of membership is in Rule
28, which provides that a member “shall forthwith cease to
be a member of the Club” if he is adjudicated bankrupt, or
suffers proceedings for liquidating his estate or makes a
composition or arrangement with his creditors under the
provisions of any statute, or has a trustee appointed for
the benefit of his creditors. However, Rule 28 provides
that “the General Committee may re-admit him to membership

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 without payment of an entrance fee or procedure of re-
election if in all the circumstances and after due enquiry
it thinks fit to do so”.

III. Legal Principles

14. The rules of a club represent a contract between the

members. 1 They are therefore to be interpreted in
accordance with the principles of contractual
interpretation.

15. The principles of contractual interpretation look to

both the language of the contract and the factual matrix.

16. In Rainy Sky S. A. and others (Appellants) v Kookmin

Bank (Respondent) [2011] 1 W.L.R. 2900 2 Lord Clarke (with
whom Lord Phillips, Lord Mance, Lord Kerr and Lord Wilson
agreed) explained at §14:

“the ultimate aim of interpreting a provision in a

contract, especially a commercial contract, is to
determine what the parties meant by the language
used, which involves ascertaining what a reasonable
person would have understood the parties to have
meant. As Lord Hoffmann made clear in the first of
the principles he summarised in the Investors
Compensation Scheme case at page 912H, the relevant
reasonable person is one who has all the background
knowledge which would reasonably have been available
to the parties in the situation in which they were
at the time of the contract.”

1 See Chitty on Contracts, 35th edition, at §13-075.

2 The approach in Rainy Sky has been approved in subsequent judgments of the
Supreme Court: see Wood v Capital Insurance Services Limited [2017] A.C.
1173.

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17. The language used is key to construction. See Chitty on
Contract, 35th edition at 16-064:

“The drift of modern authority is in the direction of

putting greater emphasis on textual analysis and on the
meaning of the words which have been used by the parties,
particularly in the case where the contract has been
drafted with the benefit of skilled professional advice.
That meaning will often (but not necessarily) be the
ordinary and natural meaning of the words which the parties
have used, at least in the case where the meaning of the
words is clear. As Lord Clarke observed, “where the parties
have used unambiguous language, the court must apply it”
[citing Lord Clarke in Rainy Sky] and Lord Neuberger [in
Arnold v Britton [2015] A.C. 1619 at §17] similarly stated
that: “… considerations of commercial common sense and
surrounding circumstances … should not be invoked to
undervalue the importance of the language of the provision
which is to be construed.””.

18. Certain statutory provisions govern the interpretation

of contracts. One such provision, relevant to the current
issue, is section 61 of the Law of Property Act 1925 (“LPA
1925”), which provides:

”61. Construction of expressions used in deeds and other

instruments.

In all deeds, contracts, wills, orders and other

instruments executed, made or coming into operation
after the commencement of this Act, unless the context
otherwise requires—

(a) “Month” means calendar month;

(b) “Person” includes a corporation;

(c) The singular includes the plural and vice versa;

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 (d) The masculine includes the feminine and vice
versa.”

19. There is no case law of which we are aware which relates

to the application of section 61(d).

20. Case law relating to other sub-sections of section 61

has explained that the provision in section 61 operates
irrespective of whether the parties had section 61 in mind:
it operates “ipso jure unless the context displaces it”:
Deutsche Genossenschaftsbank v Burnhope [1995] 1 W.L.R.
1580 at 1588D. As explained by Lord Steyn at page 1588E-
H, the meaning given by section 61 can only be displaced
in one of two ways. First, if the prima facie meaning runs
counter to the commercial purpose, objectively
ascertained, of the clause or policy. Second, where there
are contrary indications in the contract.

III. Analysis

21. In our view the language of the Rules is clear. There

is no prohibition on the admission of female members. We
reach this view for the following reasons.

22. First, there is nothing in the language of the Rules

which excludes the admission of women as members. Indeed,
there is nothing in the language of the Rules which
excludes any class of person from membership, save for an
existing member who has become bankrupt and who will
forthwith cease to be a member pursuant to Rule 28 (subject
to the discretion of the General Committee to readmit).

23. Second, on the ordinary meaning of the language of Rule

3 there is no restriction of the proposal of candidates
for membership to men. Although the language of clause is
phrased by reference to the masculine (“No candidate shall
be eligible unless he be proposed”) it is entirely within
the ordinary use of English language that a reference to

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 the masculine denotes the feminine unless the context
otherwise requires. We note that section 61(d) LPA 1925
makes statutory provision to that effect which operates as
a matter of law, but we doubt whether that provision makes
a material difference to the position which would apply in
any event, under the ordinary usage of the English
language. Section 6(a) of the Interpretation Act adopts a
similar principle for the interpretation of statutes.

24. Third, we do not consider that there are counter-

indications in the Rules, when read as a whole, which
displace that ordinary understanding that the masculine
can include the feminine. We refer to the following
considerations:

a. The objects of the Club set out in Rule 1 are not

such as to indicate that it is a Club for the
patronage or interest of men only. The objects,
relating to patronage of the drama, and combining the
use of a Club with the advantages of a literary
society, for the bringing together the supporters of
the drama and for the formation of a theatrical
library, with works on costume, are all objects which
are of interest and open to both men and women.
Indeed, they would have been of interest to and open
to women even in 1831 when the Club was founded;

b. The last sentence of Rule 1 states that the objects

“still cherished, are now more practically expanded,
consistent with the original objectives, to encompass
gentlemanly accomplishment and scholarship”. This
does not, on a proper understanding of the English
language, suggest that the Club is limited to the
objective of accomplishment and scholarship for men
only. On its own terms, the last sentence of Rule 1
(which appears from its language to have been added
subsequently to the original objectives) is intended
to be “consistent with” the original objectives. As

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 explained above, the original objectives relate to
pursuits which are not exclusively male. The term
“gentlemanly” is plainly being used here in the sense
of the meaning “[o]f a pastime, behaviour or thing”
that is “of high quality; excellent”: see Oxford
English Dictionary, Meaning 2. 3 That is the only
meaning which makes sense in the context in which
what is being referred to is “accomplishment and
scholarship” “consistent with the original
objectives” because those original objectives are not
in themselves of the nature of male pursuits or
interests. The use of “gentlemanly” is therefore
denoting the quality or excellence of the aimed
“accomplishment and scholarship”; not that it should
be accomplishment and scholarship by men;

c. By reason of the different procedures governing

diplomatic and honorary membership, the Rules
relating to such membership are worded differently
to Rule 3 and do not involve any sex-specific pronouns
in the description of possible members. It is telling
that, in the absence of any pronouns in the language
of those clauses, there is no restriction to the
masculine in relation to the admission of such
members to the Club. Rule 16 refers to the admission
of “Heads of Diplomatic Missions”, and Rule 18 refers
to “visitors to this country… and such other persons
as they may from time to time to decide”. It would
require an extremely strong indication elsewhere in
the language of the Rules for these terms, which are

3 The term, according to the Oxford English Dictionary, has a range of

meanings. Meaning 1 is “Of a man; having the appearance or manner of a
gentleman; noble; courteous; chivalrous, honourable”. Meaning 3 is “Of a
race or family; of gentle rank or lineage; (now more usually) upper-class.
Also of lineage, breeding, blood, etc.: of or relating to such a race or
family.”. The full text of Meaning 2 (partially quoted above) is “Of a
pastime, behaviour, or thing: that is characteristic of or befits a
gentleman; having features associated with the status, character, or
behaviour of a gentleman. In early use perhaps more generally: of high
quality; excellent”.

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 wholly neutral as to sex, to be interpreted as in
fact restricted to “male Heads of Diplomatic
missions” 4, “male visitors to this country”, and
“other male persons as the General Committee may from
time to time decide”;

d. Similarly, the provision relating to the admission

of members “in consideration of their public eminence
or distinction” in the discretion of the General
Committee in to Rule 7(3) is worded in sex-neutral
language (referring to “members” and “their names”);

e. It would be counterintuitive to interpret the Rules

as generally restricting membership to men, save for
diplomatic or honorary members or the four members
permitted to be elected each year by discretion of
the General Committee. There is no obvious logic for
such a distinction, in particular in light of the
fact that the category of honorary members is wholly
unrestricted (being “such other persons as [the
General Committee] may from time to time decide”.); 5

f. Indeed, the whole rubric of the Rules is such as to

give a broad discretion to the General Committee as
to membership. Aside from not becoming bankrupt 6 and
not exceeding the maximum number of members under
Rule 2, there is no limitation on who can become a

4 Indeed, it would be particularly hard to understand the logic of the

restriction in the case of this category of members. Given there is a power
to offer them membership on the basis of their holding that role alone (as
opposed to any particular devotion to the objects of the Club), it is
reasonably understood that the honour of their role and the collegiality of
international relations is what is considered relevant to permit their
admission. Such factors would apply equally in the case of a female Head of
Mission as to a male Head of Mission. This again suggests that the objects
and purposes of the Club are not such as to be restricted only to male
pursuits or interests.
5 For the avoidance of doubt, we are aware that honorary and diplomatic

members do not have the same entitlement or liabilities as other members of

the Club, pursuant to Rule 19, but we do not consider this to be material
for present purposes.
6 Which itself can be waived as a bar to membership by the General

Committee.

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 member. The scheme of the Rules is to leave it to the
discretion of the General Committee (of course,
guided by the objects) to determine who should be a
member. That there is provision for one circumstance
(bankruptcy) in which membership is prohibited
(absent exercise of discretion otherwise by the
Committee) is an indication that there are no other
bars to membership. The approach taken by the
founders of the Club (and those who may have revised
the rules thereafter), is permissive rather than
prescriptive, leaving decisions as to who can join
and who cannot 7 to the General Committee;

g. We are aware that Rule 20 refers to “conduct

unbecoming a gentleman” as a ground for suspension
or expulsion. We do not consider that these
references to the term “gentleman” indicate an
intention within the Rules to restrict membership to
men. Looking at the meanings of “gentlemanly” in the
Oxford English Dictionary (cited in footnote 3
above), it is a term which can denote meanings which
are not sex-specific. For example, referring to
something which is “noble; courteous; chivalrous,
honourable” or “of high quality; excellent”. As
explained above, this latter use is the correct
interpretation of the use of the term “gentlemanly”
in Rule 1, and the use of the similar term in Rule
20 would be construed consistently. Nor would it make
sense in the context of Rule 20 to interpret the term
“gentleman” as a sex-specific term. The purpose of
Rule 20 is to specify when conduct is of such quality
as to permit expulsion or suspension. It is hard to
comprehend how the fact that conduct is typical of
that of a male would be relevant to continued
membership of the Club. The meaning of “gentleman”

7 And indeed, the order in which proposed candidates shall be considered:

see Rule 7(1).

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 in the context of Rule 20 therefore plainly refers
to the quality of the conduct: whether it is noble
or courteous etc., and not whether it is conduct
typically displayed by men.

25. The sole counter-indication to the understanding that

the masculine includes the feminine in the language of the
Rules is in Rule 36(7) which uses “he/she” when referring
to the Club Secretary. 8 As to this:

a. Absent other considerations it might be said that the

deliberate use of both male and female pronouns in
Rule 36(7) but not elsewhere indicates a contractual
intention to permit a woman or man to become
Secretary, but only permits men to become members in
accordance with the reference to male pronoun in Rule
3. Rule 36(7) is the high point of the argument for
a restrictive interpretation of Rule 3;

b. However, we do not consider that to be the correct

approach. That is because, there are stronger
considerations outlined in paragraph 24 above to
suggest that the intention in the Rules was to be
permissive rather than prescriptive as to the classes
of persons who can be members. The question of who
should be a member is left to the discretion of the
General Committee save in that they cannot appoint
more than the maximum number of members and bankrupt
members shall forthwith lose membership (absent

8 We also note By-Law 11 which explains that references to visitors shall

be to “both male and female visitors”. We do not consider this relevant
because: (1) By-laws are a subsidiary instrument, made pursuant to the
Rules, pursuant to Rule 36(10) and therefore cannot be used as an
interpretative aid for the Rules themselves; (2) in the context, described
further below, in which the Committee and members have not to date
exercised their discretion to admit a female member, it is plainly logical
to explain expressly in the By-Laws when setting out the terms of visitors
that such visitors can be female; but doing so says nothing as to whether
females are permitted to be members.

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 exercise of Committee discretion, following “due
inquiry”);

c. There is no obvious reason why Rule 36(7) refers to

“he/she”. It may be that it was added at a time when
a female Secretary was contemplated or in post and
as such was language which was formed with the
reflection of those circumstances. It may be that
those drafting and adopting Rule 36(7) were concerned
to make clear for the avoidance of any doubt that a
Secretary could be female in line with other Club
employees (in line with the requirements of
employment law). That would not in itself suggest
that there is any objective doubt over whether a
member can be female by the absence of alternative
pronouns in Rule 3: for the reasons set out above,
the indications in other provisions of the Rules all
suggest that there is no bar to women becoming
members. A degree of doubt on the part of those
drafting Rule 36(7) as to the meaning of other Rules
would not be such as to displace the proper,
objective, meaning of Rule 3 which – as explained
above – does not bar women members. Further, Rule 3
must be read in accordance with 61(d) LPA 1925
which provides that “he” shall include “she”
unless the context otherwise requires” (our
emphasis). In our opinion the use of “he/she” in
relation to the appointment of a Secretary does
not “require” the displacement of the compulsory
rule in s 61(d) LPA 1925 in Rule 3, particularly
in light of the counter-indications set out
above.

26. Fourth, there is nothing in the broader circumstances

of which we are aware which indicates that the reference
to “he” in Rule 3 (and, by extension “person” and “Head of
Mission” and “their names” and “they” in (respectively)

13
 Rules 18, 16 and 7(3) should be interpreted as referring
only to men, such that only men are permitted to be members.

27. We are of course aware that the Club is, and always has
been, an all-male members club. However, that is a
consequence of the discretionary choices of members and
the General Committee as to who should be a member rather
than any express provision in the Rules restricting those
eligible to be members.

28. Had there been a settled contractual intention amongst

those formulating the Rules to ossify the Club’s de facto
position as an all-male Club, it would have been expected
that this would have been done by making express provision
in the Rules. However, the Rules have continued without
any such express provision, even though there appear to
have been various amendments made to the Rules since their
first formulation. 9 That is a strong indication that there
has been no settled contractual intention to require that
the Club be an all-male Club. The absence of an express
provision to formalise what has been the de facto position
is an indication that the drafters of the Rules did not
want to limit eligibility for membership to men (or that
there was insufficient agreement between those formulating
the Rules to exclude women).

29. For all these reasons, it is our opinion that the Rules
do not bar women from eligibility for membership of the
Club.

LORD PANNICK KC
EMILY NEILL

Blackstone Chambers
Temple, London
EC4Y 9BW

19 March 2024

9 We note the last line of Rule 1 which suggests on its face that it was an
amendment.

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IN THE MATTER OF:

THE RULES OF THE GARRICK CLUB AND

THE ADMISSION OF FEMALE MEMBERS

_________________

OPINION

_________________

Tessa Gregory

Leigh Day

Panagram

27 Goswell Road

London

EC1M 7AJ

020 7650 1093

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