Chalfont St Peter Parish Council v Holy Cross Sisters Trustees Incorporated

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Swift
Judgment Date07 May 2019
Neutral Citation[2019] EWHC 1128 (QB)
Date07 May 2019
Docket NumberCase No: HQ16X02767

[2019] EWHC 1128 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Swift

Case No: HQ16X02767

Between:
Chalfont St Peter Parish Council
Claimant
and
Holy Cross Sisters Trustees Incorporated
Defendant

Matt Hutchings QC (instructed by Simons Muirhead & Burton LLP) for the Claimant

Philip Coppel QC & Asitha Ranatunga (instructed by Farrer & Co) for the Defendant

Hearing dates: 11th – 15th, and 18th – 22nd February 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Swift Mr Justice Swift

A. Introduction

1

Until 2006, the Defendant ran a girls' school (“the School”) on land in the village of Chalfont St Peter. A convent also stood on the site. The site is referred to as the Grange. The Sisters of the Holy Cross is an international congregation of nuns. The congregation was founded in Switzerland in 1844 with the purpose of providing education to young people, especially women, in rural Switzerland. The congregation first established in England in 1902. The Defendant (a body incorporated under what is now section 251 of the Charites Act 2011) comprises the trustees of a trust made under a Deed dated 20 th August 1949, which concerns property held by the English Province of the Sisters of the Holy Cross. I will refer to the Defendant as “the Holy Cross Sisters”, and the international congregation as “the Congregation”. There are now some 17 nuns in the Congregation's English Province; only a very small part of the 1,500 sisters who are members of the Congregation worldwide. The Holy Cross Sisters ran the School from 1928 until 2006.

2

The claims now made by Chalfont St Peter Parish Council (“the Parish Council”) arise out of steps taken by the Holy Cross Sisters, following the School's closure, to obtain planning permission for the Grange site. Chiltern District Council (“the District Council”) granted outline planning permission for the Grange site in December 2010. The first part of the Parish Council's case is that to obtain that planning permission and specifically for the purposes of a meeting of the Planning Committee of the District Council that took place on the 5 th August 2010, some of the Holy Cross Sisters, together with a former employee at the School, conspired to provide false information to the District Council about the use to which part of the school site was put when the School was in operation. The second part of the Parish Council's case relies on the tort of interference with its interest by unlawful means. For the purposes of this claim too, the Parish Council contends that some of the Holy Cross Sisters provided false information to the District Council. The Parish Council relies on substantially the same events in support of the unlawful means interference tort claim as it does in support of the conspiracy claim, save that for the purposes of the former claim, there is no need to demonstrate the existence of an unlawful combination.

3

The focus for both claims is what happened in the middle part of 2010, and in particular the events leading up to the meeting of the District Council's Planning Committee on the 5 th August 2010. However, the evidence I have heard has covered, in some detail, events prior to the closure of the School in 2006 and thereafter between 2006 and 2010. The Parish Council's case is that the conspiracy comprised Sister Imelda Fleming, a nun who as at 2010 was both Leader of the English province of the Congregation, and a trustee of the Holy Cross Sisters; Sister Teresa Mooney, a nun who is a member of the Congregation, and who had both taught music at the School and lived at the convent at the Grange for almost the whole of the period since the 1950s; and Michael Kelly, the caretaker of the School from 1980 until its closure in 2006. When the case was opened the Parish Council also contended that two other members of the Congregation were parties to the conspiracy. The first, was Sister Margaret Donovan. She had been a trustee of the Holy Cross Sisters since 2000. However, when she came to give evidence, she was not cross examined on the basis she was party to any conspiracy. It follows that the conspiracy case, so far as it involved her, fell away. The second was Sister Mary Christa Stanton, a member of the Congregation, who taught at the School between 1991 and 2006. She lived at the convent on the Grange site during that period, and has continued to live there since. By the time of closing submissions, the Parish Council decided not to pursue its case against her as a conspirator. In a nutshell, the Parish Council's contention is that Sister Fleming agreed with Sister Mooney and Mr. Kelly that Sister Mooney and Mr. Kelly would give false information to Richard Moir, a partner in the firm of Gerald Eve. Gerald Eve was the firm retained by the Holy Cross Sisters to act on its behalf for the purposes of the application for planning permission to develop the Grange site. The conspirators intended that Mr. Moir would pass this false information to the District Council and cause the District Council to grant planning permission. The Parish Council's case on unlawful means interference is factually similar. It is that Sister Mooney and Mr. Kelly made false statements, dishonestly in order to induce the District Council to grant planning permission, and with the intention to harm the Parish Council's interests.

B. Narrative

(1) The decision to close the School

4

The Holy Cross Convent School was established in 1928. The Grange site was home both to the School and the convent where the Sisters lived. The School was a fee-paying Catholic School. Most of the Sisters who lived at the convent from time to time, were involved with the School as teachers or in other roles. Lay people also taught at the School. During the latter part of its existence the majority of the teachers at the School, including the Head Teacher, were lay people.

5

At its peak in the 1980s there were almost 500 pupils at the School, including a sixth form. However, pupil numbers declined from the 1990s onwards. In part it appears this was explained by decisions taken by the Ministry of Defence to cease to pay boarding fees for the children of service personnel posted overseas. Be that as it may, pupil numbers declined such that by November 2005 there were only 235 pupils spanning the years between reception and the sixth form.

6

A convenient starting point in the story is the Provincial Chapter meeting that took place between 25 th and 27 th October 2002. This meeting took place shortly before Sister Imelda Fleming took up the role of Provincial Leader, the leader of the members of the Congregation in England. At this time there were around 20 nuns within the English Province, about 12 of whom lived at the convent at the Grange site.

7

The minutes of the meeting included consideration of the following proposal.

“PA and Province to take positive steps to look realistically at all our institutions and communities etc. to act on slimming down our administration reasonabilities with the objective of freeing for new directions that we are able to respond to”

Sister Fleming explained this comprised a root and branch reconsideration of the Congregation's activities in England, including the School at Chalfont St Peter and a further school at Kingston-upon-Thames, the Holy Cross Preparatory School.

8

In June 2005 Gerald Eve, the property consultants and long-standing advisors to the Holy Cross Sisters, provided a letter of advice which considered a number of possible options for the future of each of these sites. By the latter part of 2005 specific consideration was given to the continuation of the School. In a letter dated 15 th November 2005, Buzzacott, a firm of chartered accountants, reviewed the financial performance of the School and that of the Holy Cross Preparatory School. The financial position of the Holy Cross Preparatory School was sound. The same could not be said for the School which had showed an operating deficit in five of the previous eight years, and a net operating deficit over that eight year period of over £320,000. Over the same period the Holy Cross Sisters had contributed over £500,000 to the School's running costs and capital expenditure.

9

A Provincial Council meeting took place on 19 th November 2005. At that meeting the Provincial Council reviewed the financial position of the School and decided that it should close with effect from the end of the 2005/2006 academic year. This decision took account of the significant operating deficit of the School over an extended period, low pupil numbers which meant the School was not viable either financially or in educational terms, and the likelihood that if the School continued to operate substantial capital investment would be required. The decision to close the School was also taken bearing in mind the ageing profile of the nuns who made up the English Province. All were then either beyond or close to retirement age. This meant that members of the Congregation would cease to be directly involved in teaching at the School, and called into the question the ability of members to continue to participate in the management of the School.

10

The Provincial Council did not have the authority to take a final decision on whether the School should close. That authority rested with the Congregation's Superior General in Switzerland. On 25 th November 2005 Sister Fleming wrote to the Superior General explaining the decision to close the School, seeking her ratification of the decision. By letter dated 16 th December 2005 Sister Anne Roche, the Superior General, gave permission for the School to close at the end of the 2005/2006...

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