JUDGMENT
Shergill and others (Appellants) v Khaira and
others (Respondents)
before
Lord Neuberger, President
Lord Mance
Lord Clarke
Lord Sumption
Lord Hodge
JUDGMENT GIVEN ON
11 June 2014
Heard on 19 and 20 February 2014
Appellants Respondents
Mark Herbert QC Mark Hill QC
David Halpern QC
Prof Satvinder Singh Juss
(Instructed by Addlestone
Keane Solicitors
)
James Quirke
(Instructed by Seymours
Solicitors LLP; D C Kaye
Solicitors; Bindmans
LLP)
LORD NEUBERGER, LORD SUMPTION AND LORD HODGE (with
whom Lord Mance and Lord Clarke agree)
1. This appeal arises out of divisions which have arisen within a Sikh sect
associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and
High Wycombe. It raises two questions arising out of the trusts on which the
Gurdwaras are held. The questions are (i) the extent to which it is open to trustees
to alter, or restrict, the terms of the trusts upon which they hold property, and (ii)
the extent to which the court can and should refuse to determine issues of religion
or religious belief in legal proceedings. The Court of Appeal confined itself to
issue (ii). They decided that the whole dispute was non-justiciable and ordered a
permanent stay of the entire proceedings, thus making it unnecessary to deal with
issue (i).
The factual background
2. On 22 April 1987, fourteen men, all Sikhs living in or near Birmingham,
attended a meeting at which certain “decisions were passed unanimously”
according to a memorandum (“the April 1987 memorandum”). An unchallenged
translation of the April 1987 memorandum records that it was decided that:
“under the guardianship of His Holiness Brahamgiani, revered 108
Sant Maharaj Baba Gian Singh Ji of Nirmal Kutia Johal, and on
his orders, wishes and instructions, another Gurdwara … be
established in the Midlands area of England for the benefit and
forever success of the Sikh faith, brotherhood and the devotee
congregations …”.
His Holiness there referred to was the then holder of the office of Holy Saint,
and known for the purpose of these proceedings as “the First Holy Saint”. The
First Holy Saint had succeeded the original Holy Saint (who had died in 1971),
as the religious head of the abode of saints at Nirmal Kutia in the Indian village
of Johal. The memorandum also recorded that it was decided that “another large
gathering be called” on 17 May 1987.
3. A meeting duly took place on 17 May 1987, which was attended by
twenty-eight men, and which resulted in decisions which were recorded in
another memorandum (“the May 1987 memorandum”). This memorandum,
again in an unchallenged translation, records a number of decisions. First, that,
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“under the Supreme Authority of” the First Holy Saint (referred to in the
memorandum as “His Holiness”), a Gurdwara “be established in the Midlands
area”, which was to be “similar to” a Gurdwara which had been acquired in
Bradford in 1982. Secondly, that “this Gurdwara … be established in
Birmingham under the discipline and headship of His Holiness”. Thirdly, that
the Gurdwara “and all services shall always be conducted according to the orders
and wishes of His Holiness”. The fourth decision was that only adherents “of
Sikh faith” could be a trustee or on the management committee. Fifthly, it was
decided to “look for a building for the … Gurdwara… and to purchase it
according to orders from His Holiness”. Finally, a committee of nineteen men
was recorded as “formed to serve”.
4. Meanwhile, donations were being collected from devotees, and a property
at Oldbury, Birmingham (“the Birmingham Gurdwara”) was found and, on 17
September 1987, it was inspected by the First Holy Saint. According to a
memorandum (“the September 1987 memorandum”) of that date, he “gave his
approval with delight” to its purchase. The memorandum records that he “gave
the responsibility of managing [the Birmingham] Gurdwara” to five men, of
whom four, the first, second and third respondents and Tarlochan Singh (“the
original trustees”) were described as “trustees”. The September 1987
memorandum also stated that “only Maharaj Sri 108 Sant Maharaj Baba Gian
Singh Ji – Nirmal Kutia, Johlan – will have the authority to change any trustee,
management member and the whole management system of the Gurdwara Sahib
in any form at any time”.
5. The Birmingham Gurdwara was then purchased with a combination of
the donations collected from devotees and loans, which were subsequently
discharged from further donations. The Birmingham Gurdwara was transferred
to the original trustees by a transfer dated 19 November 1987 (“the transfer”).
The transfer referred to the original trustees as “Trustees of the Gurdwara Amrit
Parchar Dharmik Diwan (UK) Birmingham” (to whom we will refer generically
as “the Birmingham trustees”), and to the property transferred as “know[n] for
identification only as an Office Block but which is to be known as a Sikh
Temple”. The transfer contained a covenant by the original trustees with the
transferor that for ten years the property would not be used other than “as a
Temple, Synagogue or Church”.
6. On 15 January 1991, the original trustees executed a Deed of Trust (“the
1991 Deed”), under which they declared in clause 1 that they were the duly
appointed trustees of the Gurdwara Amrit Parchar Dharmik Diwan (UK)
Birmingham, which they defined as “the Society” (Amrit Parchar refers to a form
of baptism). The Society was described in clause 1 as “a religious organisation
preaching and practising the Sikh faith, following the teachings of [the First Holy
Saint] resident at Nirmal Kutia … (‘the Saint”) or his successor”. Clause 2
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referred to the Birmingham Gurdwara (defined as “the property”), and in clause
3 the original trustees declared that they held it “as Trustees for the Society to be
dealt with as may be directed in writing by the Saint or his successor”. In Clause
4, the original trustees declared that the trust for sale on which the property was
held would not be exercised “without the consent in writing and the direction of
the Saint or his successor”. Clause 5 empowered “the Saint or his successor” “at
any time … [to] remove the Birmingham trustees or any of them and appoint
new trustees”. Clause 7 provided that, in the event of the Society being “wound
up or ceasing to exist”, the property and all other assets in the hands of the
Birmingham trustees “shall be held in trust for the Saint or his successor”.
7. At around this time, on 24 February 1991, the Constitution of the Society
(“the 1991 constitution”) was drawn up and signed by a number of men including
the first, second, third and fourth respondents. The 1991 constitution applied to
the communities which worshipped at both the Bradford and the Birmingham
Gurdwaras. It described the Society’s aims and objects as including “[t]o preach
Sikhism, doctrine of Holy Shri Guru Granth Sahib and teachings of Ten Gurus
from Guru Nanak Dev Ji to Guru Gobind Singh Ji”, as well as others, including
encouraging “ceremonial baptism”, discouraging “the use of alcohol and
smoking”, encouraging Panjabi education, and establishing a Sikh information
centre and libraries. Clause 10 of the 1991 constitution stated that changes in the
Society’s management committee could only be made by “[the first Holy Saint]
or his successor”, and, at the end of the constitution there was added “PS Word
‘successor’ in the above text means Sant Harbhajan Singh Ji (Brakat)”, who was
at that time the assistant to the first Holy Saint (hereinafter “Sant Harbhajan Ji”).
8. On 20 September 1993, a property was acquired at High Wycombe (“the
Wycombe Gurdwara”) with the assistance of donations and loans from devotees.
The transfer was made to the sixth and eighth appellants and the fifth and sixth
respondents (“the Wycombe trustees”), who were described as holding the
property “upon the trusts declared by a Deed of even date herewith”. By that
Deed, the Wycombe trustees declared that they held the Wycombe Gurdwara “in
accordance with [the Society’s] constitution”. At that time, or shortly afterwards,
the 1991 constitution was replaced by a new constitution (“the 1993
constitution”) which applied to the communities which worshipped at the
Bradford, Birmingham and Wycombe Gurdwaras (“the three Gurdwaras”). The
1993 constitution was in very similar terms to the 1991 constitution and, in
particular, it included the same clause 10 and “PS” as the 1991 constitution.
9. On 31 August 2001, the First Holy Saint appointed the third appellant as
one of the Birmingham trustees in place of Tarlochan Singh. Three months later,
the First Holy Saint died and was succeeded by Sant Harbhajan Ji, who died a
few months later in March 2002. It is the appellants’ pleaded case that, on 20
March 2002, the ninth appellant, Saint Sant Jeet Singh Ji Maharaj (“Sant Jeet
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Singh”), was then recognised as the head of Nirmal Kutia Johal in India, and
thereby became the Third Holy Saint, as confirmed by a formal written resolution
signed by 24 saints and eleven dignitaries. On 13 July 2003, at a joint meeting
of the management committees of the three Gurdwaras, Sant Jeet Singh was
recognised as the Third Holy Saint, in a resolution signed by a number of men,
including the first, second, third, fourth, fifth and sixth respondents.
10. On 31 December 2003, a revised Constitution (“the 2003 constitution”)
for the three Gurdwaras was agreed in Nirmal Kutia, and it was signed by various
men, including the six respondents. This 2003 constitution was quite similar to
the 1991 and 1993 constitutions, but it had somewhat more aims and a few
further provisions. It referred to the consent of Sant Jeet Singh “and his
successor” being required for certain changes in personnel, and contained a
“NOTE” at the end stating that “[t]he word ‘successor’ … means His Holiness
Sant Baba Jaspal Singh …”.
11. New trust deeds were prepared in respect of each of the Birmingham and
Bradford Gurdwaras. That in respect of the Bradford Gurdwara was executed on
13 February 2004. However, the first, second and third respondents (as three of
the four Birmingham trustees) refused to execute the new trust deed in respect
of the Birmingham Gurdwara. By deeds executed on 8 June 2004 and 20 June
2006, Sant Jeet Singh purported to remove the first, second, third and fourth
respondents as Birmingham trustees, and to replace them with the second, third,
fourth and fifth appellants. By another deed dated 12 June 2008, Sant Jeet Singh
purported to remove the fifth and sixth respondents as Wycombe trustees, and to
replace them with the sixth, seventh and eighth appellants and two other men.
On 8 October 2008, the first, second and third respondents (as the other three
Birmingham trustees) purported to remove the third appellant as a trustee and to
replace him with the fourth respondent.
The procedural history
12. On 25 June 2008, the appellants issued proceedings in the High Court
seeking various heads of relief, including removal of the first, second, third and
fourth respondents as Birmingham trustees, and as members of its management
committee, and for connected relief (as well as for relief in connection with the
Wycombe Gurdwara). Paras 3-6 of the particulars of claim explained that
Birmingham Gurdwara was a place of Sikh worship, that Sikhism involves
worshipping ten successive Gurus, that the Nirmalas are a sect of the Sikh
religion founded by the tenth Guru, Gobind Singh Ji, that the original Holy Saint
started preaching in about 1920, and that Nirmal Kutia is the abode of the saints
of Nirmal, a sect which is distinguished by its adherence to baptism and strict
adherence to Rehet Maryada, the Sikh code of conduct. In para 28, it was stated
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that the three Gurdwaras were “religious endowments having the purpose of the
advancement of tenets of the Holy Saints of Nirmal sect”.
13. Although the particulars of claim were rather long, the essence of the
claim in relation to the trusteeship of the Birmingham Gurdwara was that Sant
Jeet Singh, as the successor of the First Saint, had the right to remove and appoint
trustees under the 1991 Deed, and that he had validly removed the first, second,
third and fourth respondents as Birmingham trustees and as management
committee members in June 2004. They sought similar relief in respect of the
trusteeship and management committee of the Wycombe Gurdwara.
14. The Defences of the respondents did not admit paras 3-5 and denied para
28, of the particulars of claim. More specifically, it was alleged in the Defences
that the Second Holy Saint died in March 2002 without appointing a successor,
and, in any event, the expression “successor” in the 1991 Deed only applied to
the Second Holy Saint. The respondents contended that the 1991 Deed could not
validly extend the power to remove or appoint trustees to anyone other than the
First Holy Saint. The respondents also raised counterclaims, which included a
claim for declarations that the first, second, third and fourth respondents were
the Birmingham trustees, and that Sant Jeet Singh had no power of removal or
appointment of Birmingham trustees or any other power in relation to the
Birmingham Gurdwara or its management.
15. The appellants wished to amend their particulars of claim, and the
respondents not only opposed this on the ground that the claim had no realistic
prospect of success, but sought to strike out the claim as it raised issues which
were said to be unjusticiable. Those two issues came before His Honour Judge
David Cooke, sitting as a judge of the High Court in the Birmingham District
Registry. On 12 September 2011, he gave the appellants permission to amend
their particulars of claim, and dismissed the respondents’ application to strike
out the claim – [2011] EWHC 2442 (Ch). He gave the respondents permission
to appeal on the latter point. The amended particulars of claim were served a
week later.
16. The respondents appealed to the Court of Appeal on the issue of
justiciability and also on the permission to amend (for which they obtained
permission to appeal from the Court of Appeal). The Court of Appeal allowed
their appeal for reasons contained in a judgment given by Mummery LJ (with
whom Hooper and Pitchford LJJ agreed) [2012] PTSR 1697. He held that there
were no “judicial or manageable standards” by which the issues could be judged,
because they turned on the question “who is ‘the successor’ of the original
founder of the temple trusts”, which was an issue which “depends on the
religious beliefs and practices of Sikhs generally and the Nirmal Kutia Sikh
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institution in particular”, and which “is not justiciable by the English courts” –
see para 77.
17. The appellants now appeal to this Court. When considering the
arguments, it is only necessary to deal with those which relate to the Birmingham
Gurdwara and the Birmingham trustees, as there are no different arguments
which relate to the Wycombe Gurdwara and the Wycombe trustees.
The issues
18. During the course of the argument before us, four issues emerged as likely
to be in dispute, if this case were to go to trial on the basis that all issues were
justiciable. It may be that there would be other issues, but, as far as this appeal
is concerned, we should concentrate on the four issues.
19. The first issue is whether the respondents are right in suggesting that the
1991 Deed was invalid if and in so far as it purported, by clause 5, to confer the
power to appoint and dismiss trustees on anyone other than the First Holy Saint.
The second issue, which only arises if the appellants are right on the first issue,
is whether the reference to the “successor” of the First Holy Saint in the 1991
Deed is to be read as limited to Sant Harbhajan Ji, ie the anticipated, and actual,
immediate successor to the First Holy Saint, as the respondents contend, or
whether it extended to each subsequent successor, as the appellants argue. The
third issue, which only arises if the appellants are right on the first and second
issues, is whether Sant Jeet Singh is indeed a successor to the First Holy Saint –
ie whether he is indeed the Third Holy Saint – as the appellants contend and the
respondents deny. During argument, it appeared that the respondents wished to
raise a fourth issue, albeit that it may be an aspect of the third issue, namely that
Sant Jeet Singh has departed from the tenets of mainstream Sikhism and is on
character grounds unfit to be the successor. It is regrettable that this issue, even
if it is only relied on as an aspect of the third issue, should only have become
apparent during the hearing of an appeal in the Supreme Court against a pre-trial
decision of the Court of Appeal based on the parties’ respective pleaded cases.
We required the respondents to give written particulars of their case in
connection with the fourth issue, to which the appellants responded, but that all
had to take place after the hearing had concluded.
20. Before considering these issues, it is right to say that it is very hard to see
how the decision of the Court of Appeal to stay the proceedings generally could
possibly have been justified in the light of the first two issues, especially as they
should logically be considered first. The question whether the original trustees,
who were apparently resident in England and held property in England, had the
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power to execute a document such as the 1991 Deed, turns solely on the English
law of trusts, and cannot conceivably involve an unjusticiable issue. As to the
second issue, it turns on a question of interpretation of the 1991 Deed, and it
would be more than strange if a pure question of interpretation of a trust deed
executed in England relating to property in England and clearly intended to be
governed by English law, could not be resolved by an English court. If the
respondents succeed on either of these two issues, the claim would fail.
21. On the other hand, it is at least understandable why it might be said that
the third and fourth issues are not justiciable. In those circumstances, the sensible
approach to adopt is to deal with the first two issues in turn, then to deal with the
principles of non-justiciability, and decide whether the Court of Appeal was right
at least in relation to those issues, and finally to mention two procedural points.
The first issue: was clause 5 of the 1991 Deed invalid?
22. The respondents’ case on the first issue relies on the points that the terms
of the trust on which the Birmingham Gurdwara was acquired, and the basis upon
which donations were sought and paid for the purpose of acquiring the
Birmingham Gurdwara (and, no doubt, the basis upon which any further
donations were paid to the original trustees until the 1991 Deed was executed)
were those set out in the April 1987 memorandum, the May 1987 memorandum
and the September 1987 memorandum (together “the 1987 memoranda”). In
these circumstances, runs their argument, it was not open to the original trustees
to vary the terms of the trust as they purported to do in clause 5 of the 1991 Deed
by extending the right to appoint and dismiss trustees from the First Holy Saint
to “his successor” .
23. The appellants’ answer to this has two prongs. First, it is said that there is
a general principle that, where money or other property is made over to trustees
for “somewhat indefinite” charitable purposes, it is open to the trustees (indeed
it may be incumbent on them) to ensure the preparation of a more formal and
more specific document setting out the terms of the trust. Secondly, the
appellants contend that the relevant respondents (ie those concerned with the
Birmingham Gurdwara rather than the Wycombe Gurdwara), as trustees and/or
as active management committee members, cannot challenge the validity of the
1991 Deed, especially as they have for many years acted as if they held office
under its terms.
24. In support of both arguments, Mr Mark Herbert QC relied on the
reasoning of Sir Herbert Cozens-Hardy MR in Attorney-General v Mathieson
[1907] 2 Ch 383. In that case, the Rev John Wilkinson, who appears to have run
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various charities in the Stoke Newington area of London, including “the
Mildmay Mission to the Jews”, received £1350 from “a lady”, who lived in the
area and suggested to him that the money might be used for a convalescent home.
When he pointed out that the provision of a home and school for children was
more pressing, she said “Use it for that or any other way you like”, and he then
used it to purchase a property, Cromwell Lodge, in his own name, and without
any declaration of trust. He then used the remainder of the money to fit out and
equip Cromwell Lodge, which he then used as a school and home for Jewish
children. A year later, in September 1885, a trust deed was executed conveying
Cromwell Lodge, together with other property, to trustees (including Mr
Wilkinson) on trust for the purposes of the Mission, namely “to preach the
Gospel … to Jews in Great Britain and Ireland (and also in foreign parts if it is
deemed desirable), employing in the prosecution of the work” activities
including “homes for destitute children, agencies for procuring employment and
assisting emigration, night schools …, sewing classes, … and for promoting the
salvation of … souls”. The 1885 Deed contained various other provisions,
relating to matters such as the trustees’ powers of sale, investment and
appointment of a director (inevitably, Mr Wilkinson).
25. The question before the Court of Appeal in Mathieson was whether the
Attorney-General’s consent to the proposed sale of Cromwell Lodge was
required under the Charitable Trusts Act 1853, which turned on the question
whether the 1885 Deed was binding on the trustees, or whether, as Kekewich J
had held, the 1885 Deed “made no difference to Mr Wilkinson’s powers” – see
at p 387. If the former view was correct then the trustees could not apply the
proceeds of sale of Cromwell Lodge as income; if the latter view was right, they
could do so only with the consent of the Attorney General. The Court of Appeal
disagreed with Kekewich J, and held that the latter view was right. Sir Herbert
Cozens-Hardy MR said at p 394 that the trustees appointed under the 1885 Deed:
“do not, and cannot, challenge the validity of the trust deed under
which they are acting, and it is plain that it would be a breach of
trust to apply the proceeds of the sale of the house as income. Even
if Mr Wilkinson could originally have done this, they are now
bound to treat the proceeds of sale as capital, and invest it
accordingly.”
Sir Herbert then continued:
“There is, moreover, a further difficulty in the way of the trustees.
When money is given by charitable persons for somewhat
indefinite purposes, a time comes when it is desirable, and indeed
necessary, to prescribe accurately the terms of the charitable trust,
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and to prepare a scheme for that purpose. In the absence of
evidence to the contrary, the individual or the committee entrusted
with the money must be deemed to have implied authority for and
on behalf of the donors to declare the trusts to which the sums
contributed are to be subject. If the individual or the committee
depart from the general objects of the original donors, any deed of
trust thus transgressing reasonable limits might be set aside by
proper proceedings instituted by the Attorney-General, or possibly
by one of the donors. But unless and until set aside or rectified,
such a deed must be treated as in all respects decisive of the trusts
which, by the authority of the donors, are to regulate the charity.
And it is irrelevant to urge that the donors did not originally give
any express directions on the subject…”
26. Thus, there were two strands to the decision in Mathieson. The first is that
trustees who have been appointed under the terms of a trust deed cannot
challenge the validity of the deed. That would presumably be justified on the
ground that the only basis upon which they have any title to involve themselves
in the affairs of the trust is as trustees, and they cannot therefore impugn the very
document under which they achieved that status. They would be almost
tantamount to denying their own title. The second strand in the decision is that,
where a charitable trust is initially created by donors in general or vague terms,
it is open to the trustee to execute a more specific deed which limits the terms of
the trust, provided it does not conflict with the terms on which the donors made
their donations – and that a challenge to any terms of the specific deed must be
made by the Attorney-General (or possibly by the donors).
27. There does not appear to have been much discussion or development of
the principles laid down in Mathieson, either in the textbooks or in the cases.
Counsel have drawn our attention to two subsequent first instance decisions
where the second strand of the decision was considered. In In re Orphan Working
School and Alexandra Orphanage’s Contract [1912] 2 Ch 167, Parker J followed
the second strand of the decision, although, as he said, the subsequent trust deed
in his case widened rather than narrowed the trusts on which the property in
question was held – see at p 180. However, he upheld the validity of the deed on
the ground that the committee of the charity concerned were “the agents for
declaring the trusts, and what they declare is prima facie to be considered as
carrying out the intention of the donors”. The second strand of the decision in
Mathieson was also considered by Walton J in the unreported decision of Jeeves
v Imperial Foods Ltd, Pension Scheme (unreported, 27 January 1986). As he
explained, there may be many “occasions in law in which a fund is held on trust,
but at the particular point there is no final definitive trust deed”. He went on to
say that “it may very well be that … a person who had contributed to the fund in
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question would be in a position to object to some provision which was never
contemplated, but which was put or attempted to be put into the final trust deed”.
28. On behalf of the respondents, Mr Mark Hill QC suggested that we could
decide this first issue in the respondents’ favour, on two grounds namely (i) the
1991 Deed plainly went further than the donors would have envisaged, or the
terms of the 1987 memoranda permitted, and (ii) the original trustees did not, as
a matter of general trust law, have the ability to allocate the right to appoint or
dismiss trustees in any event.
29. We would reject the contention that we should accept ground (i), at any
rate at this interlocutory stage. It is questionable whether the respondents, or at
least those who were appointed as Birmingham trustees, can get round the first
strand of the decision in Mathieson. It is true that they did not become trustees
as a result of the 1991 Deed, as they became trustees when they purchased the
Birmingham Gurdwara. But if that prevents the first strand in Mathieson
applying, it would appear to mean that, in Mathieson itself, Mr Wilkinson could
have impugned the 1885 Deed which he prepared and executed, as he had
become a trustee when the money was handed over to him in 1884. It seems to
us questionable whether the Master of the Rolls would have envisaged that Mr
Wilkinson was in a different position in this connection from the other trustees.
Like Mr Wilkinson, the first, second and third respondents declared that they
were trustees of the relevant trust, and set out the terms of that trust, in the
relevant Deed and signed it.
30. As to the second strand in Mathieson, the precise status of the 1987
memoranda is not entirely clear, but, even assuming in the respondents’ favour
that the 1987 memoranda do govern the terms of the trust as far as they go and
that clause 5 goes further than those memoranda, it is not inconsistent with what
is contained in them. On the respondents’ case, the 1987 memoranda limit the
power of appointment and dismissal of trustees to the First Holy Saint and are
silent as to that power after his death; if that is right, then according that power
to his successors was merely an administrative extension of, and not inconsistent
with, what was in the memoranda. Certainly, there is nothing in clause 5 which
is, at least on the face of it, inconsistent with any provision of the 1987
memoranda, or which appears, in the words of the Master of the Rolls, to “depart
from the general objects of the original donors”.
31. Subject at any rate to Mr Hill’s ground (ii), clause 5 of 1991 Deed may
well be the sort of provision which could have been perfectly properly included
in a definitive deed of the type which Sir Herbert Cozens-Hardy MR and Parker
J respectively sanctioned in Mathieson and Orphan Working School
respectively, namely to “prescribe accurately the terms of the charitable trust”.
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Quite apart from this, again subject to ground (ii), in view of what was said
towards the end of the second passage quoted from Mathieson, we have
considerable doubts whether anyone other than the Attorney-General (or,
conceivably, any of the original donors) would be entitled to raise the point. In
any event, we note that the 1991 Deed has been expressly treated as valid at least
on one occasion in August 2001 when a new trustee was appointed, and was not
challenged for twelve years, and that may provide another difficulty for the
respondents.
32. Mr Hill’s ground (ii) is based on the proposition that the trust in this case
was formed before 1991, namely (at the latest) when the Birmingham Gurdwara
was transferred to the original trustees. On that basis, he contends that at that
point the power to appoint (and dismiss) trustees was crystallised in accordance
with section 36(1) of the Trustee Act 1925, which limits the power to:
“(a) the person or persons nominated for the purpose of appointing
new trustees by the instrument, if any, creating the trust; or
(b) if there is no such person, or no such person able and willing to
act, then the surviving or continuing trustees or trustee for the time
being, or the personal representatives of the last surviving or
continuing trustee”.
In these circumstances, runs the respondents’ argument, section 36(1)(a) applied
so long as the First Holy Saint lived, and, when he had died, section 36(1)(b)
came into effect, and it was not open to the trustees to delegate their power of
appointment thereunder for the future to anybody else.
33. It is true that the power of trustees of a fully constituted charitable trust
do not include the right to delegate the power to dismiss or appoint trustees to a
third party, unless of course the trust deed gives them that power – see the
discussion in Underhill and Hayton, Law of Trusts and Trustees (18th edition,
2010) paras 51(1)(b) and 51(11). However, where the principle in Mathieson
applies, it seems to us that trustees must have the power to include new
provisions in the trust deed which they would not normally have the power to
impose in the case of a fully constituted trust. Accordingly, it is at least arguable
that, where the terms of a trust are so sparse that the trustees have “implied
authority for and on behalf of the donors to declare the trusts to which the sums
contributed are to be subject”, that authority extends to including a provision
such as clause 5 of the 1991 Deed. It is worth noting that the 1885 deed of trust
in Mathieson provided that the trustees could delegate their management powers
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to “a director”, and that the first director, Mr Wilkinson, should have “power to
appoint his successor” – see at p 386.
34. We have expressed our views on the various points raised by the first issue
in an intentionally tentative basis, as we consider that, if the respondents wish to
pursue this first issue at trial, they should be free to do so. It would not be right
for us to decide any of the various points at this interlocutory stage, given that
(i) the law in this area is surprisingly undeveloped, (ii) the issue, and the points
to which it gives rise, have not been fully pleaded even now, (iii) the resolution
of those issues is very likely indeed to be fact-sensitive, (iv) the facts of this case
are both unusual and unclear, (v) the arguments of the parties have changed as
the proceedings have progressed, and (vi) the various points have not been
considered by Judge Cooke or by the Court of Appeal. Mr Herbert did not press
us to rule in the appellants’ favour on the issues: indeed, it was his case that we
ought not to determine them. We think that that was a wise decision.
The second issue: the meaning of “successor”
35. The question is whether the reference in the 1991 Deed to “his successor”
is to the Second Holy Saint, or whether it includes all subsequent Holy Saints.
On the face of the 1991 Deed, it appears to us that, as a matter of language, “his
successor” could be limited to the immediate next Holy Saint, or it could extend
to each successive Holy Saint. It is true that it is expressed in the singular, but
the effect of section 61(c) of the Law of Property Act 1925 provides that “[i]n
all deeds, … unless the context otherwise requires, … [t]he singular includes the
plural and vice versa”. Given that there is no indication that the trusts declared
by the 1991 Deed were intended to be limited in time, and indeed the natural
implication is very much the other way, we can see great difficulties for the
respondents’ argument on this second issue.
36. However, we do not think it right to resolve the second issue either. The
factual matrix is always important when construing a document, and, while it by
no means always justifies live evidence when an issue of interpretation of a
document is contested, it does so in this case for reasons (iii) to (vi) set out in
para 34 above. In addition, although the force of the point is blunted by the fact
that even the earliest Constitution, the 1991 Constitution, was signed after the
1991 Deed, it is conceivable that the respondents may be able to derive some
assistance from the “PS” at the end of the 1991 and 1993 Constitutions and the
Note at the end of the 2003 Constitution. Those words may have been included
not to limit the meaning of “successor” in the Constitutions, but merely to
identify the current successor, or for some other reason, but their natural meaning
could be to limit the meaning of “successor” in the 1991 and 1993 Constitutions
to the Second Holy Saint, and in the 2003 Constitution to Sant Baba Jaspal Singh
Page 13
as successor to Sant Jeet Singh. However, the absence of any such “PS” or Note
from the 1991 Deed could well prove a problem for the respondents as could the
fact that a time-limited constitution would seem to be a less implausible concept
than a time-limited charitable trust deed.
The third and fourth issues: non-justiciability generally
37. The third and fourth issues raise the questions whether Sant Jeet Singh is
indeed the third Holy Saint, and whether the doctrines to which he and the
appellants subscribe and/or his personal qualities comply with the religious aims
and purposes underlying the 1991 Deed. It was such issues which the Court of
Appeal held were unjusticiable, and it is to the question of non-justiciability to
which we now turn.
38. Mummery LJ took as his starting point the decision of the House of Lords
in Buttes Gas and Oil Co. v Hammer (No 3) [1982] AC 888, which he described
at para 26 as “the clearest and most authoritative guidance that can be found in
the authorities about the basis on which a line is drawn between justiciable and
non-justiciable issues.” Buttes Gas arose out of an action for slander whose real
object was to obtain a decision of the English court about the boundary between
the territory of three Gulf states, a question upon which the validity of the parties’
off-shore drilling rights depended. The House held that issue to be nonjusticiable, and struck out the proceedings. The single reasoned speech was
delivered by Lord Wilberforce. The case is so well-known that we may perhaps
be forgiven for summarising his reasons quite shortly. Lord Wilberforce, with
the support of the rest of the House, considered that there was a general principle
in English law of “judicial restraint or abstention” that “the courts will not
adjudicate upon the transactions of foreign sovereign states”. This was not, in his
view, a principle of discretion but a principle of law “inherent in the very nature
of the judicial process” (pp 931-932). Having summarised the allegations in the
case before the House, Lord Wilberforce said this at p 938:
“Leaving aside all possibility of embarrassment in our foreign
relations (which it can be said not to have been drawn to the
attention of the court by the executive) there are—to follow the
Fifth Circuit Court of Appeals – no judicial or manageable
standards by which to judge these issues, or to adopt another
phrase (from a passage not quoted), the court would be in a judicial
no-man’s land: the court would be asked to review transactions in
which four sovereign states were involved, which they had
brought to a precarious settlement, after diplomacy and the use of
force, and to say that at least part of these were ‘unlawful’ under
international law.”
Page 14
39. Mummery LJ regarded this statement as authority for the proposition that
in the absence of objective juridical standards (“judicial or manageable
standards”) by which to decide an issue, a court must regard it as non-justiciable.
He put the present case in the same category because he considered that the same
principle applied when the acts complained of were guided by religious beliefs
whose justification was incapable of objective assessment.
40. Even assuming that that is an accurate classification of the issues in this
action, it seems to us that Mummery LJ misunderstood the reasoning of Buttes
Gas. Lord Wilberforce’s reference to judicial and manageable standards was a
quotation from the decision of the Fifth Circuit Court of Appeals in the United
States litigation between the same parties upon substantially the same issues.
That was in turn based on the celebrated decision of the United States Supreme
Court in Underhill v Hernandez (1897) 168 US 250 about the act of state
doctrine. The reason why the Fifth Circuit Court of Appeals regarded the issue
as non-justiciable was not that judges were incapable of deciding questions of
international law. Nor was that why Lord Wilberforce agreed with them. Quite
apart from the fact that he was himself an international lawyer of some
distinction, he points out at p 926F that English courts had on a number of
occasions decided issues about the international boundaries of sovereign states
“without difficulty”. The issue was non-justiciable because it was political. It
was political for two reasons. One was that it trespassed on the proper province
of the executive, as the organ of the state charged with the conduct of foreign
relations. The lack of judicial or manageable standards was the other reason why
it was political. Both points are made in the short passage from the Fifth Circuit
Court of Appeals decision cited at p 936 of Lord Wilberforce’s speech. As can
be seen from Lord Wilberforce’s summary of the facts at pp 922-925 and 937,
this was because the dispute arose out of the way in which the four states
concerned had settled the issue of international law by a mixture of diplomacy,
political pressure and force in a manner adverse to the interests of Occidental
Petroleum. Occidental wished to obtain a judicial decision that that settlement
had been the result of an unlawful conspiracy. This involved assessing decisions
and acts of sovereign states which had not been governed by law but by power
politics. It is difficult to imagine that such a conclusion could have been reached
in any other context than the political acts of sovereign states, for the acts of
private parties, however political, are subject to law. The actors are answerable
to municipal courts of law having jurisdiction over them and applying objective,
external legal standards.
41. There is a number of rules of English law which may result in an English
court being unable to decide a disputed issue on its merits. Some of them, such
as state immunity, confer immunity from jurisdiction. Some, such as the act of
state doctrine, confer immunity from liability on certain persons in respect of
certain acts. Some, such as the rule against the enforcement of foreign penal,
Page 15
revenue or public laws, or the much-criticised rule against the determination by
an English court of title to foreign land (now circumscribed by statute and by the
Brussels Regulation and the Lugano Convention) are probably best regarded as
depending on the territorial limits of the competence of the English courts or of
the competence which they will recognise in foreign states. Properly speaking,
the term non-justiciability refers to something different. It refers to a case where
an issue is said to be inherently unsuitable for judicial determination by reason
only of its subject-matter. Such cases generally fall into one of two categories.
42. The first category comprises cases where the issue in question is beyond
the constitutional competence assigned to the courts under our conception of the
separation of powers. Cases in this category are rare, and rightly so, for they may
result in a denial of justice which could only exceptionally be justified either at
common law or under article 6 of the Human Rights Convention. The paradigm
cases are the non-justiciability of certain transactions of foreign states and of
proceedings in Parliament. The first is based in part on the constitutional limits
of the court’s competence as against that of the executive in matters directly
affecting the United Kingdom’s relations with foreign states. So far as it was
based on the separation of powers, Buttes Gas and Oil Co. v Hammer (No 3)
[1982] AC 888, 935-937 is the leading case in this category, although the
boundaries of the category of “transactions” of states which will engage the
doctrine now are a good deal less clear today than they seemed to be forty years
ago. The second is based on the constitutional limits of the court’s competence
as against that of Parliament: Prebble v Television New Zealand Ltd [1995] 1
AC 321. The distinctive feature of all these cases is that once the forbidden area
is identified, the court may not adjudicate on the matters within it, even if it is
necessary to do so in order to decide some other issue which is itself
unquestionably justiciable. Where the non-justiciable issue inhibits the defence
of a claim, this may make it necessary to strike out an otherwise justiciable claim
on the ground that it cannot fairly be tried: Hamilton v Al-Fayed [2001] 1 AC
395.
43. The basis of the second category of non-justiciable cases is quite different.
It comprises claims or defences which are based neither on private legal rights
or obligations, nor on reviewable matters of public law. Examples include
domestic disputes; transactions not intended by the participants to affect their
legal relations; and issues of international law which engage no private right of
the claimant or reviewable question of public law. Some issues might well be
non-justiciable in this sense if the court were asked to decide them in the abstract.
But they must nevertheless be resolved if their resolution is necessary in order to
decide some other issue which is in itself justiciable. The best-known examples
are in the domain of public law. Thus, when the court declines to adjudicate on
the international acts of foreign sovereign states or to review the exercise of the
Crown’s prerogative in the conduct of foreign affairs, it normally refuses on the
Page 16
ground that no legal right of the citizen is engaged whether in public or private
law: R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC
2777 (Admin); R (Al-Haq) v Secretary of State for Foreign and Commonwealth
Affairs [2009] EWHC 1910. As Cranston J put it in the latter case at para 60,
there is no “domestic foothold”. But the court does adjudicate on these matters
if a justiciable legitimate expectation or a Convention right depends on it: R
(Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003]
UKHRR 76. The same would apply if a private law liability was asserted which
depended on such a matter. As Lord Bingham of Cornhill observed in R (Gentle)
v Prime Minister [2008] 1 AC 1356, para 8, there are
“issues which judicial tribunals have traditionally been very
reluctant to entertain because they recognise their limitations as
suitable bodies to resolve them. This is not to say that if the
claimants have a legal right the courts cannot decide it. The
defendants accept that if the claimants have a legal right it is
justiciable in the courts, and they do not seek to demarcate areas
into which the courts may not intrude.”
44. In Bruker v Marcovitz [2007] 3 SCR 607, the Supreme Court of Canada
had to deal with very similar questions in the context of religious beliefs. A wife
whose marriage had been dissolved by the courts of Quebec sued her ex-husband
for damages for refusing to give her a get. This would have enabled her to
contract a second marriage which would be lawful as a matter of Jewish religious
law. The parties had agreed at the time of their separation to appear before the
rabbinical court to obtain a get when their civil divorce became final. The Court
of Appeal had declined to decide the claim on the ground that the substance of
this obligation was religious and moral in nature, and not justiciable. The
Supreme Court disagreed. Citing Syndicat Northcrest v. Amselem, [2004] 2
S.C.R. 551, 2004 SCC 47 at para 50, they accepted that the courts “should avoid
judicially interpreting and thus determining, either explicitly or implicitly, the
content of a subjective understanding of religious requirement, ‘obligation’,
precept, ‘commandment’, custom or ritual”. But this did not prevent them from
giving effect to the civil consequences of religious acts. So, while a court could
not enforce the husband’s religious obligations as such, their religious nature was
consistent with their being enforced as a civil contract. The court was divided,
the minority (Deschamps and Charron JJ) taking the view that the wife’s inability
to obtain a purely religious benefit, namely the right to a religious remarriage,
was incapable of giving rise to a claim for civil damages. But they accepted the
essential position adopted by the majority, that “a court is thus not barred from
considering a question of a religious nature, provided that the claim is based on
the violation of a rule recognized in positive law” (para 122).
The third and fourth issues: religious doctrine
Page 17
45. This distinction between a religious belief or practice and its civil
consequences underlies the way that the English and Scottish courts have always,
until recently, approached issues arising out of disputes within a religious
community or with a religious basis. In both jurisdictions the courts do not
adjudicate on the truth of religious beliefs or on the validity of particular rites.
But where a claimant asks the court to enforce private rights and obligations
which depend on religious issues, the judge may have to determine such religious
issues as are capable of objective ascertainment. The court addresses questions
of religious belief and practice where its jurisdiction is invoked either to enforce
the contractual rights of members of a community against other members or its
governing body or to ensure that property held on trust is used for the purposes
of the trust. We consider each circumstance in turn.
46. The law treats unincorporated religious communities as voluntary
associations. It views the constitution of a voluntary religious association as a
civil contract as it does the contract of association of a secular body: the contract
by which members agree to be bound on joining an association sets out the rights
and duties of both the members and its governing organs. The courts will not
adjudicate on the decisions of an association’s governing bodies unless there is
a question of infringement of a civil right or interest. An obvious example of
such a civil interest is the loss of a remunerated office. But disputes about
doctrine or liturgy are non-justiciable if they do not as a consequence engage
civil rights or interests or reviewable questions of public law.
47. The governing bodies of a religious voluntary association obtain their
powers over its members by contract. They must act within the powers conferred
by the association’s contractual constitution. If a governing body of a religious
community were to act ultra vires, for example by seeking a union with another
religious body which its constitution did not allow, a member of the community
could invoke the jurisdiction of the courts to restrain an unlawful union. See
Barker v O’Gorman [1971] Ch 215, which concerned a challenge to a proposed
union between the Methodist Church and the Church of England on the ground
that the Methodist Conference had no power to vary the doctrinal standards of
the former church. It is a case involving a private Act of Parliament (the
Methodist Church Union Act 1929) rather than a contract. But the principles of
ultra vires are the same. See also Long v Bishop of Cape Town (1863) 4 Searle
162 PC, 176 per Lord Kingsdown.
48. Similarly, members of a religious association who are dismissed or
otherwise subjected to disciplinary procedure may invoke the jurisdiction of the
civil courts if the association acts ultra vires or breaches in a fundamental way
the rules of fair procedure. The jurisdiction of the courts is not excluded because
the cause of the disciplinary procedure is a dispute about theology or
ecclesiology. The civil court does not resolve the religious dispute. Nor does it
Page 18
decide the merits of disciplinary action if that action is within the contractual
powers of the relevant organ of the association: Dawkins v Antrobus [1879] 17
Ch D 615. Its role is more modest: it keeps the parties to their contract. In
McDonald v Burns 1940 SC 376, Lord Justice-Clerk Aitchison stated (at pp 383-
384):
“In what circumstances, then, will the Courts entertain actions
arising out of judgments of ecclesiastical bodies: Speaking
generally, in either of two situations – (first) where the religious
association through its agencies has acted clearly and
demonstrably beyond its own constitution, and in a manner
calculated to affect the civil rights and patrimonial interests of any
of its members, and (secondly) where, although acting within its
constitution, the procedure of its judicial or quasi-judicial tribunals
has been marked by gross irregularity, such fundamental
irregularity as would, in the case of an ordinary civil tribunal, be
sufficient to vitiate the proceedings. But a mere irregularity in
procedure is not enough. … In short, the irregularity alleged must
not be simply a point of form, or a departure from prescribed
regulation, but must go to the honesty and integrity of the
proceedings complained of.”
49. We turn to the court’s enforcement of trusts. The courts have jurisdiction
to determine disputes over the ownership, possession and control of property
held on trusts for religious purposes. Where people set up a trust to govern the
purposes for which property is to be acquired and held, they are performing a
juridical act which creates interests that the civil law will protect. The courts
have repeatedly exercised jurisdiction in disputes over the ownership of property
which were caused by religious disagreements. Many of the cases date from the
19th century and are Scottish, because of the propensity towards schism of the
Scottish Presbyterian churches at that time. But the same principles applied in
English law and, subject to the statutory jurisdiction of the court to approve cyprès schemes, which we discuss below, they remain valid in both jurisdictions.
50. In a series of cases in which, as a result of a schism, parties disputed who
had the beneficial interest in property which was held in trust for a religious
community, the rule was established that the civil courts would ascertain the
foundational and essential tenets of a faith in order to identify who was entitled
to the property. This rule replaced the former rule, which applied at least in
Scotland, that the courts would not investigate the religious grounds of a schism
but would give effect to the majority view within the religious community.
Page 19
51. In Craigdallie v Aikman (1813) 1 Dow 1, 14-16 Lord Eldon established
the principle of both English law and Scots law that in the event of a division
within a voluntary religious body, the property held for the purposes of the
association will go to the part of the body that adheres to its fundamental
religious principles, as identified in its contract of association. In the English
case of Attorney General v Pearson (1817) 3 Mer 353, 400-401, 36 ER 136, 150)
he stated
“[W]here a congregation become dissentient among themselves,
the nature of the original institution must alone be looked to as the
guide for the decision of the Court, and that to refer to any other
criterion, as to the sense of the existing majority, would be to make
a new institution, which is altogether beyond the reach, and
inconsistent with the duties and character, of this Court.”
52. The House of Lords considered the matter again in General Assembly of
the Free Church of Scotland v Overtoun [1904] AC 515 (1904 7 F (HL) 1). In
that case a Bench of seven Law Lords confirmed the rule in Craigdallie v
Aikman. That rule has been applied since then. Most recently, the Inner House
of the Court of Session has applied the rule in Smith v Morrison 2011 SLT 1213.
In that case, Lord Drummond Young’s opinion contains a careful historical
analysis of development of the principle. We agree with his opinion (at para
101) that “in every case … it is the trust deed or other agreement that determines
what are the fundamental principles on which the congregation associated.” We
also agree with his view (at paras 113-116) that the law looks to the fundamental
principles and essential standards of the body rather than minor matters of
administration and minor changes in doctrine in ascertaining the scope of the
trust. Lord Drummond Young cited (at para 118) the opinion of Lord President
Cooper in the unreported case of Mackay v Macleod (10 January 1952) in the
context of “a competition between two parties, each claiming to be the
beneficiaries entitled to certain trust property.” The Lord President stated:
“In such a case it is the duty of the Court to take cognisance of
relevant matters of belief, doctrine and church government for the
purpose, but only for the purpose, of informing themselves as to
the essential and distinguishing tenets of the Church in question,
and of discovering the differences, if any, which can be detected
in the principles to which the competing claimants respectively
profess adherence.”
(Our emphasis).
Page 20
53. This clear line of authority contradicts the idea that a court can treat a
religious dispute as non-justiciable where the determination of the dispute is
necessary in order to decide a matter of disputed legal right. Again, as Lord
Davey said in Free Church of Scotland v Overtoun (at pp 644-645) the civil
courts do not have the right “to discuss the truth or reasonableness of any of the
doctrines of [a] religious association”. He stated
“The more humble, but not useless, function of the civil Court is
to determine whether the trusts imposed upon property by the
founders of the trust are being duly observed.”
54. The principles established in the church cases apply equally to other
religions. In Hasanali v Mansoorali (Privy Council Appeal No 79 of 1945)
(unreported, 1 December 1947), the Board in an appeal from the High Court of
Judicature at Nagpur was concerned with the right to the use of property
belonging to members of a Muslim community of the Ismailia Shia sect in the
Central Provinces in India. The dispute within the religious community was
whether an earlier leader of the sect, who was the 46th “Dai” or missionary, had
validly appointed his successor before he died in 1840 CE. The authority of the
current Dai, who was the 51st Dai, depended upon the validity of the nomination
of the 47th Dai and his successors. The method by which a Dai nominated his
successor as leader of the sect was by “Nas-e-Jali”, a form of declaration by the
Dai. The declaration gave his successor civil powers as head of the sect and as
trustee of its property as well as ecclesiastical powers as religious leader. The
Board examined the tenets of the sect and the surviving evidence of what had
occurred on the day on which the former leader died, before concluding that the
Dai had made a valid declaration marking out his successor. It also ruled on the
question whether the current Dai’s excommunication of members of his
community complied with the procedures in the constitution of the religious
community.
55. The immigrations of the 20th century have diversified the religious
landscape of the United Kingdom and the principles of the church cases have
been applied equally to other religious communities in this country. In Varsani
v Jesani [1999] Ch 219, the Court of Appeal dealt with a dispute over the use of
a temple in London which was held in trust for a Hindu sect. The original
purpose of the charity was the promotion of the faith of Swaminarayan according
to the teachings and tenets of Muktajivandasji. A schism occurred in the
community when in 1984 allegations of misconduct were raised against the
successor, whom Muktajivandasji had nominated before his death in 1979. The
majority of the community accepted his authority. But a minority thought that
he had disqualified himself by his behaviour from the office of successor. The
Court of Appeal held that, but for the extension of the court’s jurisdiction to
make a scheme cy-près in section 13 of the Charities Act 1960, it would have
Page 21
had to apply the law laid down by the Craigdallie, AG v Pearson and Free
Church cases.
56. In both jurisdictions the court has power to make a scheme cy-près.
Among the grounds on which the trust purposes of a charity may be reorganised
is “where the original purposes, in whole or in part, have since they were laid
down, … ceased … to provide a suitable and effective method of using the
property available by virtue of the gift, regard being had to the spirit of the gift.”
(section 13(1)(e)(iii) of the Charities Act 1993). In Scotland, similar provision
is made for the reorganisation of both non-charity public trusts and also
charitable trusts in section 9 of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1990 and sections 39-42 of the Charities and Trustee Investment
(Scotland) Act 2005 respectively. This power may provide a means of avoiding
the judicial determination of a religious dispute. But if it is not available, the
court cannot shirk its duty to determine a matter of civil right.
57. The respondents referred to the judgments of Gray J in Blake v Associated
Newspapers Ltd [2003] EWHC 1960 and Simon Brown J in R v Chief Rabbi of
the United Hebrew Congregations of Great Britain and the Commonwealth, Ex
p Wachmann [1992] 1 WLR 1036 in support of their contention that the dispute
in this case was non-justiciable. But neither case supports that contention. In
the former case the court stayed an action for defamation by Mr Blake against
the publisher of the “Daily Mail” for describing him as a “self-styled” or
“imitation” bishop. The claimant had relinquished his status as a priest within
the Church of England and had established with a Mr Palmer an organisation
called “The Province for Open Episcopal Ministry and Jurisdiction”. Mr Palmer
had purported to consecrate him a bishop. The case raised questions of doctrine
and ecclesiology: the question was whether he was a bishop or merely a selfstyled bishop. We do not think that the court was correct to refuse to adjudicate
on that issue on the ground that it was non-justiciable. The claim was a civil
claim in tort and the court will enter into questions of disputed doctrine if it is
necessary to do so in reference to civil interests. See also Forbes v Eden (1867)
LR 1 Sc & Div 568 HL, Lord Cranworth (at pp 581-582), Lord Colonsay (at p
588). The problem that such defamation claims face, which will usually doom
them to failure, is that they raise issues of religious opinion on which people may
hold opposing views in good faith. The expression of such views without malice
is likely to be protected by the defence of honest comment – what used, until
Joseph v Spiller [2011] 1 AC 852, to be called fair comment.
58. The ratio of the judgment in Wachmann was that the Chief Rabbi’s
decision that the applicant was not religiously and morally fit to hold office as a
rabbi did not raise an issue of public law which was amenable to judicial review.
The case is not an authority for a proposition that the legality of such disciplinary
proceedings is not justiciable. If the claim had been presented as a challenge to
Page 22
the contractual jurisdiction of a voluntary association, the court would have had
jurisdiction to consider questions of ultra vires and allegations of breaches of
natural justice: see Long v Bishop of Cape Town (above); R v Imam of Bury Park
Mosque, Luton, Ex parte Sulaiman Ali CA 12 May 1993 QB COF 91/1247/D
(The Times, 20 May 1993) in which Roch LJ cited Denning LJ’s judgment in
Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329, 342; Brentnall v Free
Presbyterian Church of Scotland 1986 SLT 471. In Scotland, the wider scope
of the supervisory jurisdiction of the Court of Session, which extends to those
who exercise a jurisdiction conferred by private contract, would have allowed
the challenge to be in the form of an application for judicial review as an
alternative to a claim based on contract: West v Secretary of State for Scotland
1992 SC 385, Lord President Hope at pp 399-400.
59. Accordingly, unless the parties are able to resolve their differences, for
example by a reorganisation of the trust purposes cy-près, the court may have to
adjudicate upon matters of religious doctrine and practice in order to determine
who are the trustees entitled to administer the trusts. Subject to further
amendment of the parties’ cases, the question whether Sant Jeet Singh has power
to appoint and dismiss trustees may depend on issues such as (i) what are the
fundamental tenets of the First Holy Saint and the Nirmal sect, (ii) what is the
nature of the institution at Nirmal Kutia in India, (iii) what steps or formalities
were needed for a person to become the successor of the First Holy Saint, and
(iv) in relation to the fourth issue whether the teachings and personal qualities of
Sant Jeet Singh comply with the fundamental religious aims and purposes of the
trust.
Conclusion and ancillary matters
60. For these reasons, we would allow this appeal and restore the order of
Judge Cooke. In so doing, we are reinstating the permission he accorded to the
appellants to amend their particulars of claim, subject to certain reservations
stipulated in his order. Although the Court of Appeal entertained an appeal
against that order, they did not rule on it. We can see no good reason why an
appellate court should interfere with a case management decision of this sort. It
is not as if the hearing is imminent, and, as we have indicated, the respondents
appear to wish to expand their case.
61. There is one other matter we should mention. In his judgment, Judge
Cooke made it clear that he did not consider that expert evidence would be
appropriate. Whether that was right before the respondents made it clear that they
wished to raise what we have called the fourth issue need not be decided. What
is clear is that, in the light of the fourth issue, there is a strong case for saying
that expert evidence should be permitted. In the light of that, as well as in the
Page 23
light of our decision on the points raised by the appeal, we propose to order that
these proceedings be remitted to the High Court for appropriate further
directions, without prejudice to the parties consenting to all further directions
which they agree are needed.
Page 24
