Berry v St. Marylebone Borough Council

JurisdictionEngland & Wales
Judgment Date26 November 1957
Judgment citation (vLex)[1957] EWCA Civ J1126-2
CourtCourt of Appeal
Date26 November 1957

[1957] EWCA Civ J1126-2

In The Supreme Court of Judicature

Court of Appeal


The Master of the Rolls

(Lord Evershed)

Lord Justice Romer And

Lord Justice Ormerod.

Alice Lilian Berry (Widow) (suing on behalf of the theosophical Society in England)
the Mayor, Aldermen and Burgesses of the Borough of St. Marylebone.

MR. G. G. HONEYMAN, Q.C., end MR. D. TAVERNE, instructed by Messrs. Gibson & Weiden, Agents for Messrs. Berry & Berry (Tunbridge Wells), appeared for the Appellant (Plaintiff).

MR. GEofFREY CROSS, Q.C., and MR. JOHN L. ARNOLD, instructed by Messrs. Sharpe, Pritchard & Co., appeared for the Respondents (Defendants).


investigate unexplained laws of nature and the powers latent In man'; and ancillary objects including the maintenance of libraries,


"(3). The English Society…. is an unincorporated society. It was forced in 1838 and has as its object the promotion of the objects of the International Society with special reference to England. It is the occupier of the premises at 50, Gloucester Place, London, W.I, The property of the society is held on trust for its members by the English Theosophical Trust Limited…. which is a limited company incorporated under the Companies Acts of 1908 and 1913. The chief source of income of the Society are subscriptions, donations and legacies. The Society and the International Society are non-profit making organisations and are run almost entirely by voluntary work. The expenditure of the Society if confirmed to the promotion of the objects of the International Society as set out in paragraph 3 hereof."


The remainder of Mrs. Berry's affidavit deals, as hereinafter appears, with. an explanation of theosophy and of that theosophists believe, the meaning which they attribute to their there main objects, and with the past and present activities of the society.


Section 8(1) of the Rating and Valuation (Miscellaneous Provisions) Act, 1955 , provides as follows: "This section applies to the following hereditaments, that is to say: (a) any hereditament occupied for the purposes of an organization (whether corporate or unincorporated) which is not established or conducted for profit and hose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare; (b) any hereditament held upon trust for use as an almshouse; (c) any hereditament consisting of a playing field (that is to say, land used mainly or exclusively for the purposes of open-air games or of open-air athletic sports) occupied for the purposes of a club, society or other organisation which is not established or conducted for profit and does not (except on special occasions) make any charge for the admission of spectators to the playing field", Then that is followed by a proviso, which is immaterial to the present case.


The learned judge held that it was clear that the society is not established or conducted for profit and that its main objects are the three objects stated by Mrs. Berry in her affidavit. His decision that the society is not an organisation within section 3 of the Act was founded on the view that the first of its objects is not charitable and is not "otherwise concerned with the advancement of religion, education or social welfare".


The three main objects of the society came up for consideration by the House of Lords in 1933 in a case of Macaulay v. Q'Donnell. Under the will of a testatrix her residuary estate was given to the Folkston Lodge of the Society for purposes which, as the House held, involved a perpetuity; and the further Question then arose whether the gift was saved from failure on the grounds that the objects of the society were charitable. The case is not reported, but the speeches of Lord Buck master and Lord Tomlin are printed as a footnote to In re Price (reported in 1943 Chancery Division, page 422). The case had come before Mr, Justice Clausen at first instance and a part of his judgment was referred to in the judgment of Mr. Justice Cohen, as he then was, in In re Price. Mr. Justice Cohen expressed the view that, in the opinion of Mr. Justice Clawson, the second and third objects of the society were valid and charitable purposes and that the observations of Lord Tomlin indicated that he did not dissent from this view. Both Lord Buck master and Lord Tomlin were clearly of the opinion that the first object of the society was not charitable and that, as it was separate from and independent of the other two objects, the gift was invalid. Lord Tomlin said: "Whatever may be said of the objects indicated in clauses (b) and (c), the object covered by clause (a), read by itself, cannot, in my opinion, be regarded as charitable." Then, after referring to an affidavit which had been filed on behalf of the society explaining the meaning of the word "nucleus" in the expression "to form a nucleus of the Universal Brotherhood of Humanity"; etc., . Lord Tomlin proceeded: "I see no reason to think that this statement (though its admissibility as evidence is open to question) is not a fair and accurate statement of the purpose; of the clause, and the clause so regarded discloses, in my opinion, no charitable objects at all. But it is said that the three clauses should be read together, and so read should be construed so as to confine the object of clause (a) to the formation of a body devoted exclusively to carrying out the objects indicated in clauses (b) and (c) respectively. I do not think the clauses can be so read. Each clause, in my opinion, expresses a distinct and independent object."


It may well be, as Lord Cohen said in In re Price, that Mr. Justice Clauson's opinion that the second and third objects were charitable was undisturbed by anything which fell from Lord Buckmaster and Lord Tomlin. The second object is clearly charitable, but it appears to us that it is far from clear that the third object is also, and Mr. Cross was not prepared to concede that it was. Be that as it may (and we express no opinion in this judgment as to the third object in relation to section 8, for we heard no argument upon it), the decision of the House of Lords in Macaulay v. O'Donnell with regard to the first object of the society precludes it from contending that it is "an organization…. whose main objects are charitable": nor did Mr. Honeyman, for the society, so contend before us. Accordingly, the society must rely upon other grounds in order to bring itself within section 8 of the Act, and the way in which it seeks to do so is by contending that


Its first main object is either concerned with the advancement of religion, or of education, or of social welfare, or is concerned with the advancement of all three. In order to succeed on any part of this argument, it is "necessary, in our judgment, for the society to establish that (subject only to the principle de minimis) its main objects are exclusively concerned with the advancement of these three matters or with one or more of them; for, although an organisation's subsidiary objects nay be concerned with something else, section 8 does not apply, in our opinion, unless it be shorn that its main objects arc exclusively concerned with one or other of the specified purposes, or with all of them, as the case may be. On the other hand, the organisation need not, in our judgment, prove that its objects, when carried into effect, do in fact advance religion, etc., for it is sufficient to show that, being directed to that end, they may have that result (In re Price, following Thornton v. Howe. 31 Beavan, page 14),


Before considering the society's arguments in further detail, it would be convenient at this point to examine the question of the relevance and admissibility of paragraphs 4 et sea. of Mrs. Berry's affidavit. These paragraphs arc in part devoted to an explanation of what theosophy is, of the meaning which theosophists attribute to the three main objects, and in part to a survey of what the International Society and the English Society have actually done. In our opinion, when an organisation or body has a written constitution, it is to that and to that alone to which the Court should normally resort in order to ascertain its objects for the purpose of section 8 of the Act; and, as Lord Buckmaster pointed out in Macaulay v. O'Donnell. unless an English word or phrase has, in relation to the organisation, a special meaning, evidence as to its meaning is not properly admissible. The House of Lords did not formally reject the affidavit which had been filed in Macaulay v. O'Donnell explaining the word "nuceus" it the society's first object and we are willing to take note of what theosophy is and what...

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