Analysis
This was an application by the claimant composer for permission to bring a claim against the defendant charity (NMC), alleging a breach of trust and breach of a duty of care and claiming damages of £2.4m, an order that NMC publish his works, and a public apology from NMC. These were ‘charity proceedings’ within the meaning of the Charities Act 2011, s155(8) in that they were under the court’s jurisdiction, with respect to charities or the court’s jurisdiction, with respect to trusts in relation to the administration of a trust for charitable purposes. Accordingly, permission to bring proceedings was required under s115. Section 115(1) sets out the categories of claimants who have standing to bring charity proceedings. If a claimant falls within one of these categories, they also require the permission of the Charity Commission to bring proceedings under s115(2), or, failing that, permission from a High Court judge attached to the Chancery Division under s155(5).
The defendant (NMC) was a charity whose objects were to: (a) advance the education of the public by encouraging the understanding, appreciation and development of music of high artistic calibre composed by living musicians; and (b) maintain, improve and advance the encouragement of works of high artistic merit in the community and to contribute to the increase of knowledge in a sphere of music by assisting in the dissemination of meritorious musical works.
In pursuit of these objects NMC issued recordings of contemporary music. NMC had limited financial resources and was able to issue between ten and 12 CDs each year. These were selected from proposals made by composers as well as NMC’s own projects. The overriding criterion for selection was quality, but in addition NMC considered likely audience and financial viability. External experts who formed an ‘artistic panel’ assessed this. Members of the artistic panel, together with NMC’s executive team, formed a selection group. Among the executive team was Dr Colin Matthews. NMC received about fifty proposals per year and from these selected two or three.
The claimant was a composer of contemporary music. His work had been submitted to NMC and was considered and rejected on two occasions. NMC had included the claimant on its ‘musical map’ of 20th century composers but had not otherwise promoted his works. The claimant alleged a protracted campaign of ‘career sabotage’ against him by Dr Matthews and suggested that Dr Matthews had overruled or dominated the selection group.
The court first had to consider whether the claimant had standing under s115(1), and if so whether the court should grant him permission to bring proceedings. As the claimant was neither the charity nor a trustee, he would only have standing to bring charity proceedings if he was a ‘person interested in the charity’ under s115(1)(c).
Held:
- 1) The claimant was a ‘person interested in the charity’. It was impossible to attempt a comprehensive definition of this expression but a claimant should have ‘some good reason’ for bringing the matter before the court and ‘an interest materially greater than or different’ from ordinary members of the public (Haslemere Estates Ltd v Baker [1982] 1 WLR 1109 at 1122; Re Hampton Fuel Allotment Charity [1989] 1 Ch 484 at 493). The requirement of permission was a ‘protective filter’ from ‘frivolous and ill founded claims’; accordingly, ‘person interested’ need not be given a narrow meaning (Re Hampton Fuel Allotment Charity at 494). The claimant satisfied the requirement as he had submitted his work for consideration, his professional achievements were sufficient to make his work worthy of consideration and NMC had recognised his standing by including him on its musical map.
- 2) Permission to bring charity proceedings was refused. The claimant sought personal rather than public benefit from the court’s intervention. Many of the matters he complained of predated NMC and had no connection with it. The claimant had no real prospect of establishing that the conduct of NMC’s trustees was unlawful. His allegations and the relief he sought did not constitute a legally sustainable case. Litigation was likely to exhaust NMC’s limited resources which would prevent it from achieving its charitable objectives.
- As counsel for NMC had acted pro bono, the claimant was required to pay the summarily assessed expenses of £15,000 to the Access to Justice Fund under CPR r44.3C.
Continue reading "Rosenzweig v NMC Recordings Ltd [2013] EWHC 3792 (Ch)"