Marwaha v Singh & Others
| Jurisdiction | England & Wales |
| Judge | THE CHANCELLOR OF THE HIGH COURT |
| Judgment Date | 06 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1878 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2013 |
| Docket Number | A3/2013/0653 + B&C |
[2013] EWCA Civ 1878
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
The Chancellor of the High Court
Lady Justice Hallett & Lady Justice Sharp
A3/2013/0653 + B&C
Mr P Crampin QC (instructed by RADCLIFFE CHAMBERS) appeared on behalf of the Appellant
Mr R Pearce QC & Mr J Winfield appeared on behalf of the Respondent
Wednesday 6 November 2013
The following is the judgment of the Court.
This is an appeal against parts of an order dated 18 February 2013 of His Honour Judge Pelling QC sitting as a judge of the High Court.
In view of the way that the appeal has progressed the principal substantive issue between the parties on the Judge's order is in relation to that part dealing with costs. The brevity of this judgment reflects that fact.
The proceedings concern the elections to the Executive Committee of a charity called Guru Tegh Bahadur Gurdwara ("the Charity"). The administration of the Charity is currently governed by a scheme made by the order of Chadwick J dated 10 October 1996.
The object of the charity is to promote the Sikh religion in Leicester by, among other things, maintaining a temple, conducting religious rites, maintaining a library and giving instruction in Sikh religious principles.
Membership of the Charity is open to residents in Leicestershire who profess the Sikh religion and who are not members of any other Sikh or Hindu temple: clauses 3(1) and (2) of the constitution. I shall refer to the last of those conditions as "the dual membership rule".
The Charity is administered by an Executive Committee ("the Committee") made up of 17 committee members who are elected from the membership of the Charity in elections held in September of every other year. The persons entitled to vote in the elections are the members of the Charity. The members of the Committee are "charity trustees" within the meaning of the Charities Act 2011.
The 1st to 17th respondents, who were elected in 2010, are the current members of the Committee. Neither the 7th respondent nor the 18th respondent, who is the Attorney General, has taken any part in the proceedings, save that the Attorney General has written a letter to the court dated 16 September 2013 expressing views about the merits of the appeal. It also appears from the correspondence from the Attorney General that the Attorney General saw fit to seek advice and obtain advice from counsel once the proceedings had reached this court. Where I refer to the respondents, unless I indicate otherwise, I am referring to those respondents who are both members of the Committee and have taken an active part in these proceedings.
The primary method by which the constitution seeks to enforce the dual membership rule is to require the register of members to be completely renewed in May and June in each election year and to close the membership between June and the election. It is plain that the dual membership rule is an important rule in a scheme that was brought into existence against a background of dispute and litigation.
Under the constitution membership renewal is the responsibility of the Committee. Clause 3(7) of the constitution includes the following:
"The manner in which such renewals are conducted should be within the discretion of the Committee, provided that adequate publicity is given to the renewal and adequate means are afforded to give all those potentially interested in applying for membership a fair opportunity to have themselves entered in the new register."
Elections to the committee were due to be held in 2012. Accordingly, the membership list was due to be renewed in May and June 2012.
The current proceedings were issued on 29 June 2012. It is alleged that in the course of the previous elections held in 2010 there had been large scale breaches of the dual membership rule and also that in carrying out the 2012 membership renewal the Committee failed to take reasonable steps to prevent a recurrence of such breaches.
The appellants sought various orders. They include, in substance, an order that the membership renewal be repeated with steps being taken to reduce the risk of a recurrence of that alleged irregularity.
An additional matter in dispute between the parties was as to whether or not the duration of membership had been extended to 6 years by virtue of an amendment to the constitution as a result of voting by the members. That issue (originally raised in the Defence) led to an amendment to the Particulars of Claim, in which a declaration was sought that the amendment to the constitution purportedly passed at a general meeting on 20 August 2006 was invalid.
By their Defence the respondents deny the facts on which the appellants' complaints were based. They also claim in effect that the court has no jurisdiction to entertain any question of the Committee's conduct in relation to membership renewal in the absence of bad faith. They rely on clause 3(7) of the constitution and, in particular, to the discretion conferred there upon the Committee.
The trial of the proceedings took place over two days before the Judge, with a further half day spent on submission on costs. The Judge handed down a reserved judgment on 18 February 2013. It is a full and careful judgment.
He rejected the respondents' case as to the alleged amendment of the constitution in relation to the duration of membership.
As to the issues concerning the validity of the procedures in the 2012 renewal process, the Judge was of the view that clause 3(7) conferred a discretion on the Committee with which the court could not interfere in the absence of dishonesty. He found that the Committee had not taken reasonable steps to draw the attention of the dual membership rule to potential members but, in view of his decision on the law, he dismissed the complaints of the appellants on the issue of the renewal processes.
The Judge ordered the appellants to pay half of the respondents' costs on the basis of the following matters. First, the respondents lost on the amendment issue. Secondly, however, that issue had only been raised by amendment to the Particulars of Claim at a late stage. Thirdly, 75 per cent of the costs of each party was attributable to the renewal issue and only 25 per cent to the amendment issue.
The Judge's order contains a recital of the intention of the defendants:
"to conduct the next election to the Executive Committee of the Charity… in the manner described in the First Schedule hereto."
The First Schedule sets out various steps to be taken both by the Committee and by the appellants. As is apparent from the recital to which I have referred, those steps and the commitment to take them were offered voluntarily by the respondents since the Judge had held that there was no basis for the intervention of the court itself.
Paragraph 1 of the Judge's order declares...
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