Incorporated Council of Law Reporting for England and Wales v Attorney General
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE SACHS,LORD JUSTICE BUCKLEY |
| Judgment Date | 14 October 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1014-4 |
| Docket Number | 1969 I. No. 5934 |
| Court | Court of Appeal (Civil Division) |
In the Matter of The Charities Act, 1960
Lord Justice Russell,
Lord Justice Sachs, and
Lord Justice Buckley
In The Supreme Court of Judicature
Court of Appeal
(Chancery Division)
MR. RAYMOND WALTON. Q. C. and MR. S. G. MAURICE (instructed by Messrs. Linklaters & Paines), appeared on behalf of the Respondents.
MR. N. C. H. BROOKE-WILKINSON (instructed by the Treasury Solicitor) appeared on behalf of Her Majesty's Attorney-General.
MR. HUGH FRANCIS, Q. C. and MR. P. L. GIRSON (instructed by The Solicitor of Inland Revenue) appeared on behalf of The Commissioners of Inland Revenue.
The question raised in this appeal is whether a company limited by guarantee incorporated on 28th July, 1870 under the Companies Acts entitled The Incorporated Council of Law Reporting for England and Wales (hereinafter called "the Association") is a corporate institution which is established for purposes which are exclusively charitable according to the law of England and Vales and is subject to the control of the High Court in the exercise of the Court's jurisdiction with respect to charities. If it is such, then it is a charity within the Charities Act 1960 (see sections 45(1) and 46); and it is entitled to be entered as such on the register of charities to be maintained by the Charity Commissioners under section 4 of the Act. The Association applied to be so registered: the Commissioners of Inland Revenue objected on the ground that the Association was not a charity: the Charity Commissioners upheld the objection and declined to register the Association: the Association appealed to the High Court by the appropriate procedure, joining as parties to the appeal the Commissioners of Inland Revenue and the Attorney-General. Mr. Justice Foster (1971 Chancery Division, page 626) allowed the appeal on the ground that the Association was a charity within the fourth of the Pemsel categories, this contention of the Association being supported by the Attorney-General: but he did not accept the additional or alternative contention of the Association that it was an educational charity, a contention which was not supported by the Attorney-General.
From this decision that the Association was a charity entitled to registration as such the Commissioners of Inland Revenue appeal, and the Association seeks to support the decision on the-additional or alternative ground of education.
In order to see for what purposes the Association was established and whether those purposes are exclusively charitable, attention must be focused upon its Memorandum and Articles of Association, bearing in mind, of course, that purposes merely ancillary to a main charitable purpose, which if taken by themselves would not be charitable, will not vitiate the claim of an institution to be established for purposes that are exclusively charitable. Hereunder the Objects clause in the Memorandum must plainly play the leading role. That is in the following terms: "The Objects for which the Association is established are: 1. The preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England. 2. The issue, periodically or occasionally, of any subsidiary or other publications relating to legal subjects which it may be considered expedient to combine with the publication of such Reports, including the Statutes of the Realm, or any part thereof, if deemed expedient. 3. The continuation (in furtherance of the above objects) of the Series of Reports called 'TheLaw Reports' (now in course of publication by the present Council of Law Reporting) under their present or any other name, and either in their present form and according to the present system or subject to any alterations of form or system that may be considered conducive to the promotion of the above objects; and the issue periodically or occasionally of any legal Digests or other publications connected with 'The Law Reports', or subsidiary thereto, or which may be considered likely to increase the utility thereof; and the acquiring by purchase or otherwise, on such terms or conditions as shall be considered expedient, the copyright of any (rival or) other publications of Law Reports which may now or shall hereafter exist or be in course of publication, and the making any agreement or arrangement for the purpose of procuring the discontinuance of such Reports, or the publishing thereof, or the discontinuance of preparing Reports for any such publication by any other persons. The taking over and assuming all the assets and liabilities of the existing Council of Law Reporting. 4. The doing all such other lawful things as are -incidental or conducive to the attainment of the above objects."
Clause 4 of the Memorandum is in the following terms: "The income and property of the Association, whencesoever derived, shall be applied solely towards the promotion of the objects of the Association as set forth in this Memorandum of Association, and no portion thereof shall be paid or transferred, directly or indirectly, by way of dividend, bonus, or otherwise howsoever by way of profit, to the persons who at any time are or have been Members of the Association, or to any of them, or to any person claiming through any of them: Provided, that nothing herein shall prevent the payment, in good faith, of remuneration to any Editors, Reporters, Secretaries, officers or servants of the Association, or to any Member of the Association, or other person in return for any services actually rendered to the Association."
The signatories to the Memorandum were five of Her Majesty's counsel and two solicitors. By the Articles of Association membership of the Association was limited to 20 in number. Eligibility for membership of the Association was confined to (a) "nominated persons" (up to two nominated by each of the four Inns of Court and the Law Society), (b) up to two more members nominated or selected by or with the approval of the Council of Management of the Association ("the Council") - called "elected members", (c) the Law Officers and President of the Law Society - called "ex officio members", and (d) (since 1951) any other persons up to five in number nominated by the Council - called "co-opted members". Provision was made for retirement by rotation and resignation of membership of the Associations. Article 34 provided that membership of the Association should ipso facto confer and be a requirement of membership of the Council. By Article 39 the management of the affairs of the Association is vested in the Council which (Article 37) may appoint an Executive Committee of theCouncil to which supervision of the day-to-day management of the Association's affairs are delegated. I do not think that any other reference to the Articles is needed.
There are some matters which require no proof. The making of the law of this country is partly by statutory enactment (including therein subordinate legislation) and partly by judicial exposition in the decision of cases brought before the Courts. It cannot be doubted that dissemination by publication of accurate copies of statutory enactments is beneficial to the community as a whole: and this is not the less so because at least in many instances the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment, or otherwise interested in that field. The fact that to perhaps the majority of those who acquire and study a copy of (for example) a Finance Act it constitutes what might be, described as a tool of their trades or professions or avocations in no way lessens the benefit to the community that results if accurate versions of that Finance Act are published and not kept like a cat in a bag to be let out haphazard. The same is to be said of the other source of our law, judicial decisions and the reasons therefore, especially in the light of our system of precedent. It is in my view just as beneficial to the community that reliable reports of judicial decisions of importance in the applicability of the law to varying but probably recurrent circumstances, or demonstrating development in the law, should be published; and all the more so if the publication be supervised by those who by training are best qualified to present the essence of a decision correctly and to distinguish the ephemeral from the significant. To state that the publication also supplies many professional men with the tools of their trade does not seem to me in any way to detract from the benefit that accrues to the community from the fact that the law does not remain locked in the bosom of the judiciary.
Now the first contention of the Appellants is shortly stated. When the stated objects of the Association are considered they amount to no more (it is said) than to carry on the trade of publishers and sellers of Law Reports: there is (it is said) no difference between the objects of the Association and the objects of the publishers of the All England Reports with the one exception that the Association is to make no profit from its trade that is not to be applied in the production and publication of Law Reports - i. e. the Association is in that sense non-profit making. This short contention does not in my judgment supply the answer to the case. The fact that the Association carries on a trade or business is admittedly not inconsistent with a charitable character in its...
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