Olive Blake and Others v Sonia Rosetta Stewart and Others
| Jurisdiction | England & Wales |
| Judge | Judge Purle |
| Judgment Date | 10 November 2015 |
| Neutral Citation | [2015] EWHC 3241 (Ch) |
| Court | Chancery Division |
| Date | 10 November 2015 |
| Docket Number | 9BM30317 |
[2015] EWHC 3241 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Priory Courts
33 Bull Street
Birmingham
West Midlands
B46DS
His Honour Judge Purle QC
9BM30317
Mr Gary Cowen instructed by Freeth LLP appeared for the Third Defendant/Applicant, Mr Carol Dean Bedward
Mr Hugh Sims QC instructed by Foot Anstey LLP appeared for the Claimants/Respondents
No other party appeared
Hearing date: 2 June 2015
Judge Purle QC:
The third defendant, Carol Dean Bedward, seeks an order declaring that an earlier Order of 10 November 2010 ("the November Order") does not bind him. If it does, he seeks an order setting the November Order aside. In either case, he seeks further directions for the conduct of the action.
On 2 April 2009 the trustees of a registered charity, the Church of God UK United ("CogUK") brought this claim against the first 2 defendants based on the alleged misuse of charitable funds, and seeking amongst things the transfer of a property at 11 Mount Street, Basford, Nottingham NG7 7HX ("Mount Street") into the names of trustees of CogUK.
The defence was that the funds in question were not CogUK's but the funds of another organisation known as the Church of God Nottingham ("CogNott") and that Mount Street had been purchased for CogNott.
According to the third defendant's solicitors in a letter dated 28 May 2014, the congregation of CogNott had recently registered as a charity, Shekinah Shur Ministries. The claimants' solicitor, in a witness statement dated 18 February 2015, identified the registration date as 17 January 2013.
On 30 April 2010 the third defendant, then described as "Carol Danny Bedward", was joined as a representative of members of the Nottingham congregation, in light of a potential conflict of interest affecting the first 2 defendants. His real name is Carol Dean Bedward, though known also as Danny. In fact, he was not then a practising member of the congregation at all, as he had not worshipped at Mount Street since March 2008. There had been a falling out leading to the departure of the senior pastor at Mount Street, who is the first defendant. A number of members of the congregation including the third defendant followed her when she no longer led services from Mount Street.
The Order joining the third defendant stated as follows:
"Carol Danny Bedward, a member of the Nottingham Congregation be joined as a defendant to these proceedings and be appointed under CPR 19.6 to represent the members of the Nottingham Congregation who worship at 11 Mount Street … under the name or style of the Church of God"
As mentioned, the third defendant had not in fact worshipped at Mount Street since March 2008, following the first defendant's departure.
As a former worshipper at Mount Street, the third defendant should not have been appointed as a representative for those "who worship" at Mount Street. The representation order was subsequently amended by the November Order to refer to those who "formerly worshipped" at Mount Street. The third defendant's name was corrected at the same time to "Caroll Dean Bedward", though in fact he spells his first name "Carol" in his witness statement. As mentioned, he is also known as "Danny" – hence the original mistake in his description.
The expression "the Nottingham Congregation" was defined in the amended defence and counterclaim of the first 2 defendants as a fluctuating congregation of persons who worshipped together "between about 1968 and 1994 or thereabouts". The cut-off point of 1994 appears to have been chosen to coincide with the purchase of Mount Street.
An Order was also made on 30 April 2010 for the trial of preliminary issues including whether Mount Street and the assets of the organisation ran from those premises were assets of "the Church of God UK" (meaning CogUK) and, if not, whether CogNott was a separate charitable trust and if so on what charitable or other basis were the assets held.
Although the third defendant's position is that CogNott is now a charity, his solicitors in their letter of 28 May 2014 make clear that they now act for "the congregation of the Church of God in Nottingham that, until 2008, worshipped at 11 Mount Street". Elsewhere, they somewhat confusingly say their client is "the congregation as at September 1994 – January 2010". They appear to claim that their clients (the congregation, not the charity) are entitled to hold Mount Street independently of CogUK and seek recovery of assets, books and records taken over by CogUK.
The Order of 30 April 2010 did not contain any directions for service of an amended claim form, or for the service of pleadings at that stage by the third defendant. No amended claim form appears on the court file, and none was served on the third defendant. The Order joining him was not served upon him either, despite the terms of CPR 19.4(5). Directions were given for disclosure and witness statements in connection with the preliminary issues, but these were in practice treated as applying to the claimants and first 2 defendants only.
The third defendant did not participate in the disclosure process, or take any other part in the process of preparing for trial of the preliminary issues as a party. He did however give a witness statement for the first 2 defendants, with whom he has a community of interest as they are all members of the same congregation. He knew he was a party, as the solicitors for the first and second defendants told him this, but he says he was not told what that meant or that he should participate on behalf of CogNott. He was however told by the same solicitors that he was "representing the church". He does not appear to have asked what being a party or representing the church involved, and was obviously satisfied that the interests of the congregation were sufficiently protected by the first 2 defendants and their legal team, who were counterclaiming for all the relief that the congregation represented by the third defendant could get. He also knew of the hearing date for the preliminary issues, though no notice of the hearing date was served upon him, and was planning to attend the hearing.
The only address the court had for him (it is not known who supplied this address) was Mount Street, which was not a residential address, still less his "usual or last known address" as referred to in CPR 6.9, or even an address at which he could be reached, as he did not attend Mount Street after March 2008. With the one exception below, therefore, there is no evidence demonstrating that service was effected at a proper address for service of any documents or orders upon the third defendant.
On 8 July 2010, the third defendant made his witness statement, the heading of which identified him as a party. In paragraph 20, he said that he was aware of the nature of the proceedings against the first 2 defendants, commenting:
"I have also been told of the issues which will be tried first by the court to decide what, if any, links exist between Nottingham Church and [CogUK]."
The Attorney General was joined as fourth defendant on 30 July 2010. Proper service was effected on the Attorney General, who chose to take no part in the proceedings. The third defendant was served (by the solicitors for the first 2 defendants) with a copy of the Order joining the Attorney General. That Order identified the third defendant as a party in the heading, and his representative capacity. However, he was still not served with an amended Claim Form, or the Order joining him.
The procedural irregularities affecting the third defendant's joinder are undoubted. He should at the very least have been served at a proper address for service with the Order joining him, but he was not, although he clearly knew of his joinder. He was joined because of a perceived conflict of interest affecting the first 2 defendants. The conflict arose because if, as was the defendants' case, the assets allegedly misappropriated were CogNott's assets, the Nottingham congregation might have a claim against the first 2 defendants. However, the misappropriation issue was not raised for determination on the preliminary issues. The principal issue was (broadly) whether Mount Street and other assets were beneficially owned by CogUK or CogNott. On that issue, the first 2 Defendants spoke with one voice with the third defendant. An additional preliminary issue was whether and for what period the first defendant was a trustee of CogUK, an issue which did not affect the third defendant or CogNott.
The second defendant was the first defendant's husband. The third defendant was a pastor serving alongside the first defendant, who remained senior pastor among her followers, including the third defendant, after as well as before leaving Mount Street. Accordingly, there was no obvious need for separate representation at the preliminary issue stage, as the defendants' cases were the same on the principal issue. This is confirmed by the fact that the third defendant's witness statement was wholly supportive of the first 2 defendants' case on that issue.
The community of interest is also confirmed by the fact that the third defendant's present solicitors were originally instructed by the first defendant. They have had unhindered access to the files of the first 2 defendants' former solicitors and maintain a claim for privilege in the contents of that file, whilst referring to the first 2 defendants' privileged material when it suits: e.g., paragraphs 2.2, 40 and 46 of the first witness statement of Ms. Oxenburgh, a partner of the third defendant's solicitors. The claim that privilege has not been waived over the entire file can only be on the basis of common...
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