Rettendon Parish Council v Mr Roy Hart
| Jurisdiction | England & Wales |
| Judge | Mr Justice Zacaroli |
| Judgment Date | 14 August 2020 |
| Neutral Citation | [2020] EWHC 2221 (Ch) |
| Docket Number | Case No: PT-2018-000964 |
| Court | Chancery Division |
| Date | 14 August 2020 |
[2020] EWHC 2221 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
7 Rolls Building
Fetter Lane
London EC4A 1NL
THE HONOURABLE Mr Justice Zacaroli
Case No: PT-2018-000964
Mr Joshua Winfield (instructed by Tees Law) for the Claimant
Mr Roy Hart, the First Defendant, appeared in person. None of the other defendants appeared or were formally represented
Hearing dates: 21 July 2020
Approved Judgment
Introduction
On 5 December 1861 by an award (the “Award”), made under the Inclosure Act 1845 (the “1845 Act”), two plots of land within the parish of Rettendon in Essex were allotted for the benefit of the local inhabitants. It is common ground that the allotments created two separate charitable trusts (the “Charities”).
The first charity (the “Allotment for the Exercise and Recreation”, charity number 271480) was established under the Award by the allotment to the “Churchwardens and Overseers of the Poor of the said parish of Rettendon” of a parcel of land (numbered lot 44) forming part of what is now known as Rettendon Bell Fields (“Bell Fields”). The land was allotted to the Churchwardens and Overseers “to be held by them and their successors in Trust as a place for Exercise and Recreation for the Inhabitants of the said Parish and Neighbourhood”.
The second charity (the “Allotment for the Labouring Poor”, charity number 271479) was established under the award by the allotment to the “said Churchwardens and Overseers of the Poor” of a second parcel of land (numbered lot 43) also forming part of Bell Fields, “to be held by them and their successors in Trust as an allotment for the Labouring Poor of the said Parish of Rettendon”.
The claimant, Rettendon Parish Council (the “Council”) was established by s.1(1) of the Local Government Act 1894 (the “1894 Act”). By s.3(9) the Council was established as a body corporate, entitled to hold land.
This case concerns the identity of the trustee or trustees of the Charities. The Council contends that it was appointed sole trustee of the Charities by virtue of the 1894 Act and (notwithstanding the purported appointment of various councillors as trustees in the manner I describe below) remains the sole trustee today. The defendants are, or were at one time, members of the Council. It is their contention that they (or some of them) were appointed trustees of the Charities in place of the Council, and that the power to appoint further trustees vests in them.
The Council sought permission from the Charity Commission to commence proceedings to obtain a declaration that it is the sole trustee of the Charities, an order preventing the defendants from holding themselves out as trustees, and various accounts and inquiries into the defendants' dealings with the Charities' property. The Charity Commission refused permission, but permission was granted by Marcus Smith J by an order dated 15 May 2019. By the same order he directed that the issue as to the identity of the current trustee(s) of the Charities be tried as a preliminary issue.
The trial of the preliminary issue took place by way of a hybrid hearing on 21 July 2020. The Council was represented by Mr Joshua Winfield of Counsel. Mr Hart, the first defendant, was the only one of the defendants present or represented. He said that the other defendants were content for him to speak on behalf of all of them. I was satisfied that all of the defendants had been served with, and were aware of, the proceedings. At least in relation to the preliminary issue there is no difference in interest as between the defendants: the question raised by the preliminary issue affects them only in their capacity as trustees, and affects them equally.
Shortly before the hearing, the defendants purported to appoint a further trustee, Mr Peter Maloney. Rather than causing further delay to the proceedings by formally joining him as a party, I made an order under CPR 19.8A, so that the order I make as a result of this judgment on the preliminary issue will be binding on him but that he may apply within 28 days of the order being served on him to set aside or vary the judgment or order. It is difficult to see what interest he could have as trustee (or potential trustee) that would be different from that of Mr Hart or the other defendants.
The hearing took place in public in a courtroom, with social distancing measures implemented to comply with requirements imposed during the Covid-19 pandemic. Both Mr Winfield and Mr Hart appeared in person. Other interested parties observed the hearing via a Skype for Business conference.
As I explain below, the preliminary issue turns on technical points of law, in particular the true interpretation of apparently conflicting provisions in the 1894 Act and the Charities Act 2011 (the “2011 Act”). I mean no disrespect to Mr Hart in saying that he was in difficulty in comprehending the details of the legal argument. That is not surprising, given that the case turns on a technical and relatively obscure corner of charities law. The case for the defendants rests, however, on legal advice given to the Council in 2016, contained in a letter and an email from solicitors then instructed by the Council. Given the importance of that advice to the defendants' case, I set it out in some detail at [29]–[37] below.
The Background
Until 2013, it appears that there was no dispute that the Council was the sole trustee of the Charities. The relevant history thereafter is principally to be found in the minutes of the meetings of the Council.
The defendants' contention that they were appointed trustees of the Charities stems initially from the annual general meeting of the Council on 20 May 2013. The minutes of that meeting, under item 13 “Representatives on Outside Bodies”, state as follows:
“ The Trustees of the Upper and Lower Bell Fields Charities:
(i) Allotment for the Labouring Poor. Elected on block Councillors: Mrs J Copsey, Mrs U Davies, Mr R Fallows, Mr J Havard and Mrs S Prebble.
(ii) Allotment for Exercise and Recreation. Elected on block Councillors: Mrs J Copsey, Mrs U Davies, Mr R Fallows, Mr J Havard and Mrs S Prebble.”
Of these, Mrs Copsey, Mr Havard and Mrs Prebble are defendants in this action.
The minutes of the following year's annual general meeting on 19 May 2014, at item 7, “Representatives on Outside Bodies”, recorded the following:
“ The Trustees of the Upper and Lower Bell Fields Charities; Resolved: that all Councillors will serve as the trustees of the Upper and Lower Bell Fields Charities:
(i) Allotment for the Labouring Poor.
(i) Allotment for Exercise and Recreation.”
The members of the Council at the time of the 2014 annual general meeting (and thus purportedly appointed as trustees of the Charities) were each of the first five defendants together with Mr R Fallows, Mr K Marshall (the father of the sixth defendant), Mr C Cheater and Mrs U Davies.
Elections to the Council took place in May 2015, resulting in many longstanding councillors losing their seats. It was at this point that concerns over the trusteeship of the charities emerged. The minutes of the annual general meeting held on 18 May 2015 record under item 25, “Upper and Lower Bell Field”:
“Agreed: professional charity law advice re: the charity status of the two above charities based on historic documentation to be received and guidance re: a governing document, trustees responsibilities and liabilities, etc etc to be sort [sic] by the Clerk.”
On 13 May 2016, the Council received advice from Birkett Long, solicitors. The gist of this advice (which I refer to in detail at [29]–[36] below) was that as a result of the 1894 Act, it was for the Council to appoint trustees to the Charities (thus endorsing the appointments made at the annual general meetings in 2013 and 2014).
The minutes of the annual general meeting on 31 May 2016 recorded under item 18, “Upper and Lower Bell Field”, the receipt of “Charities advice” from Birkett Long, solicitors and that it was resolved “to follow the legal advice above and agree progress.”
Birkett Long provided further legal advice in an email to the Council dated 29 July 2016. This noted that the previous advice had been slightly misinterpreted, and re-stated the advice that, following the 1894 Act, it had been for the Council to appoint trustees to the charities. Birkett Long also advised that, once appointed, it was for the trustees themselves to resolve on further appointments, pursuant to s.36 of the Trustee Act 1925.
It is apparent that at least some of the councillors did not agree with the advice from Birkett Long, and sought further advice on the point. The minutes of a meeting of the Council on 25 April 2017 record, next to the item headed “To agree to instruct a solicitor to advise on the validity of Rettendon Parish Council's appointment of trustees to charities 271479 and 271480”, that the item was deferred.
In the meantime, at an extraordinary general meeting of the Council held on 25 July 2017 a resolution was passed, by which the following members of the Council were “affirmed” in their appointment as trustees of the Charities: councillors Ride, D Fleming, Jones, M Fleming and Copsey. Mr Hart is recorded as saying that he was already an official...
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