Analysis
Shri Guru Ravidass Sabha (Sabha), an incorporated registered charitable association, was based at a temple in Southall. Ravidassias were followers of Shri Guru Ravidass Ji (b 1377), some of whose teachings were incorporated in the Shri Guru Granth Sahib (the Granth). The constitution of 14 December 2007 set out the objects of the Sabha which were the worship of God in accordance with the teachings and philosophy, mission and principles of Shri Guru Ravidass Ji derived from the Granth and research of Holy Scriptures of Shri Guru Ravidass Ji. Over the years such research had uncovered other material which some Ravidassias regarded as Holy Scriptures, compiled and known as Shri Guru Ravidass Amrit Bani. The Constitution required a new register of members of the Sabha to be prepared at the time of each election to the executive committee and, for the purpose of conducting elections in April 2011, an advertisement was placed in a Sikh newspaper that purported to restrict membership of the Sabha to members of the Ravidassia community who only accepted and believed in the Granth. This reflected an emerging doctrinal dispute as to the status of the Holy Scriptures of Shri Guru Ravidass Ji. Immediately after the advertisement was published, solicitors for the claimants wrote to express their concern but did not receive a reply from the executive committee. The trustees of Sabha accepted that the advertisement was an error but did not communicate that before the claimants applied for an injunction to restrain the executive committee from requiring persons seeking registration as members of the Sabha to affirm belief in the Granth. No pre-action protocol had been observed and, although the action clearly constituted ‘charity proceedings’, no application had been made to the charity commission for consent. When, subsequently, it was made, consent was refused on the grounds that the chairman of the trustees had indicated a willingness to postpone or cancel the registration of members and proceed under the terms of the constitution to resolve the dispute under its internal resolution mechanism or, failing that, to engage in a mediation process. The claimants would not agree to meet the trustees without legal representatives being present and could not accept a letter from the chairman assuring them that the advertisement had not been intended to restrict membership. Thus the only issue between the parties concerned the steps taken to prepare the membership register. When another application to the charity commission for consent to pursue the proceedings was refused, the claimants made an application to the court for leave under s115(5) of The Charities Act 2011.
Held (adjourning the application):
It was said of this provision’s predecessor that its object was to prevent charities from frittering away money subject to charitable trusts in pursuing litigation relating to internal disputes but the following points were to be made:
- 1. The court was exercising its own jurisdiction; not acting as an appellate court against a decision of the charity commission.
- 2. The jurisdiction conferred on the court was in unrestricted terms.
- 3. In no circumstances (except perhaps exceptional ones) should the application for leave be treated as an opportunity for a dress rehearsal of the final hearing. Furthermore, if it was clear that the opposing party took a reasoned view that the main action had no real prospect of success then the initial hearing should be inter partes and an applicant who applied pointlessly for ex parte relief was likely to bear the costs so occasioned personally.
- 4. The court should not be invited to consider the question whether or not to grant leave on the basis of less evidence and was available to, and considered by, the charity commission.
- 5. Although the court was exercising its own jurisdiction, the prior decision of the charity commission was nevertheless entitled to be recorded in an appropriate degree of respect because the weight of expertise brought to bear on evaluating what was essentially a multi-factorial decision.
- 6. While it was a necessary condition for the applicant to have a legally sustainable claim, it was not a sufficient condition as the policy behind the provision was to prevent the resources of a charity being frittered away on internal disputes even if the applicant otherwise had a real prospect of succeeding (as opposed to merely having a fanciful case).
- 7. The focus of enquiry should be, assuming that the applicant had a legally sustainable claim, as to whether the commencement of litigation was the best (or the least worse) course in the interests of the charity as a whole to deal with the dispute.
On the facts of this case, while litigation could not possibly settle a doctrinal question as to the relationship between the Granth and the Holy Scriptures of Shri Guru Ravidass Ji, it may prove necessary so as to secure that those entitled and wishing to be members of the Sabha have a fair opportunity to register as such. However, it ought to be possible for the contending parties to prepare a membership book and formulate an electoral procedure which would enable the practice of the Sabha to reflect the wishes of the majority (rather than the wishes of the claimants on the one hand or the executive committee on the other). Accordingly, the application for leave to continue the proceedings should be adjourned for two months (with permission to restore) and the proceedings themselves be stayed with permission for either party to lift the stay.
Judgment Mr Justice Norris: [1] Shri Guru Ravidass Sabha (Ravidass Sabha) is an unincorporated registered charitable association. Its activities centre upon a temple in Southall. Ravidassias are followers of Shri Guru Ravidass Ji (born 1377 CE). They believe that he spearheaded the fight against manmade discrimination based on caste, colour or creed and preached the …Continue reading "Rai & ors v Charity Commission for England and Wales [2012] EWHC 1111 (Ch)"