Sukhbinder Singh Sandhu v Tarsem Singh
| Jurisdiction | England & Wales |
| Judge | Simon Barker |
| Judgment Date | 16 April 2018 |
| Neutral Citation | [2018] EWHC 841 (Ch) |
| Court | Chancery Division |
| Date | 16 April 2018 |
| Docket Number | CLAIM NO B30BM419 |
[2018] EWHC 841 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY TRUSTS AND PROBATE LIST (ChD)
His Honour Judge Simon Barker QC
sitting as a Judge of the High Court
CLAIM NO B30BM419
Mr Avtar Khangure QC, instructed by Aspect Law Limited, appeared for the Part 20 Claimants
Mr Harpreet Giani, instructed by Sahota Solicitors, appeared for the First and Second Part 20 Defendants
The Third Part 20 Defendant and the Fourth Part 20 Defendant were not represented and did not appear
Hearing date 11 April 2018
JUDGMENT (2)
HHJ Simon Barker QC:
Introduction
On 28.3.18, [2018] EWHC 712 (Ch), I handed down judgment in this action (‘the Judgment’), with no attendance by the parties. The trial had taken place over two weeks in September 2017. The parties attended a post judgment hearing on 11.4.18 to make submissions as to the form of the final order to reflect the substantive outcome of the trial and to make submissions as to costs and any other post-judgment matters.
This judgment addresses one issue raised at that hearing, all other matters having been resolved by an order made at the conclusion of the hearing. The order made includes declarations that:
(1) The 5 Singhs selected on 2 May 2015 were not recognised or accepted by the congregation on 3 May 2015 and were therefore not validly elected, and
(2) The purported election of the Management Committee by the 5 Singhs in May 2015 was and remains invalid.
The issue raised at the hearing on 11.4.18 is: In relation to the election, what should happen now?
Both Mr Khangure QC, counsel for Cs 1, and Mr Giani, counsel for Ds, referred to the concluding paragraph of the Judgment, which is as follows:
“85 As to what should happen, on one view the congregation should be given an opportunity to voice and consider objection to each of the 5 Singhs announced on 3.5.15. Once there are 5 Singhs who are recognised or accepted without legitimate objection, they should elect the MC and the congregation should have an opportunity to accept or object to each person so elected. On another view, that put forward by Mr Khangure QC on behalf of Cs, both the election board of 5 Singhs and the MC should be dismissed or removed and, in accordance with the Constitution 2, the Trustees take over administration of the GNG. The Trustees should name 5 Singhs and those 5 Singhs should elect the MC. Although this latter course has attractions (including being time efficient) the election board of 5 Singhs is not dismissed, the GNG is only part way through its own election process of the May 2015 elections”.
Mr Khangure QC submitted that I was there raising the issue as one for decision at the hearing to follow the handing down of judgment and was not deciding upon the course to be taken. Mr Giani submitted that I there expressed, in my conclusion, the course to be followed in line with my findings in the Judgment as to the outcome of the 2015 election to date. Mr Khangure QC is correct. What I did at paragraph 85 was summarise, in the light of the findings that I had made in the Judgment, the relief sought by Cs and note the alternative course which would be consistent with my judgment. It does not follow that I had ruled out the course proposed by Mr Khangure QC as necessarily being inconsistent with my findings in the Judgment. Were it otherwise I would have stated the order I proposed to make on the substantive issues and invited submissions and a draft order only on costs and any application for permission to appeal.
Mr Khangure QC submitted that the court should make an order that:
“In the light of the above declarations, the provisions in the Constitution and the Judgment, the matter is to be referred to the Charity Commission for guidance as to holding of a further election of the officers of the charity”.
In so submitting, Mr Khangure QC modified the form of relief sought under the Part 20 claim which sought a court order that:
“Pursuant to internal page 4 paragraph 6 of the Constitution the Trustees do forthwith take over the administration of the GNG and do name 5 qualified Singhs as the election board within 4 weeks thereof”.
Mr Khangure QC made this modification to acknowledge that the CC, rather than the court, should consider and decide how the election should be completed, by one or more election processes, so as to establish a current board of 5 Singhs and put in place a current serving MC.
Mr Giani opposed the making of that order and submitted that the combined effect of the Constitution and the Judgment is that the Chief of the 2013–2015 5 Singhs should re-announce the 5 Singhs elected on 2.5.15 to the congregation on the first convenient Sunday, after reasonable notice has been given to the congregation, and afford an opportunity for objections and, subject to that, seek the congregation's recognition or acceptance. Mr Giani submitted that the correct order to make is that:
“(1) The Management Committee of 2013–2015 shall resume as caretaker committee with immediate effect, and
(2) The caretaker Management Committee shall invite the chief of the old 5 Singhs to announce the names of the new 5 Singhs to the congregation on the first Sunday of May 2018”.
Even if it is not appropriate to make the order sought by Mr Khangure QC, there would be nothing to stop the Trustees from writing to the CC and requesting that the CC gives guidance as to the election. Thus, if I make an order as sought by Mr Giani it may nevertheless be overtaken or varied by guidance from the CC.
Mr Khangure QC argued for the order sought by Cs as follows. First, as a matter of law, every charity is subject to state supervision by the CC and judicial supervision by the High Court with the CC being the primary referral body. In support of this proposition Mr Khangure QC referred to the recent judgment of Sir Geoffrey Vos C in The Children's Investment fund Foundation (UK) v (1) H M Attorney General (2) Sir Christopher Hohn (3) Jamie Cooper (4) Marko Lehtimaki [2017] EWHC 1379 (Ch) at [66] where the Chancellor cited a passage from the judgment of Mummery LJ in Gaudiya Mission v Brahmachary [1998] Ch 341 at p.350:
“ Under English law charity has always received special treatment. It often takes the form of a trust; but it is a public trust for the promotion of purposes beneficial to the community, not a trust for private individuals. It is therefore subject to special rules governing registration, administration, taxation and duration. Although not a state institution, a charity is subject to the constitutional protection of the Crown as parens patriae, acting through the Attorney-General, to the state supervision of the Charity Commissioners, and to the judicial supervision of the High Court. This regime applies whether the charity takes the form of a trust or of an incorporated body”.
Secondly, the CC has issued guidance as to disagreements and disputes between a charity's trustees, staff or members. Pausing here, it is important to understand that references in this context, and generally in charity law, to a charity's trustees is to the persons having general control and management of the administration of a charity (see s.177 Charities Act 2011); in the context of an unincorporated association this will generally be or include the management committee. The CC's guidance, issued in 2013, requires that where there are internal disputes the first step is that within the charity the persons concerned (that is the trustees and may also be members and/or staff) should do everything that can be done to reach agreement, and do so following any directions in the charity's governing document. The guidance recommends mediation as a means of settling disputes. The CC's guidance as to when it will get involved in internal disputes is conditional upon there being no trustees or no correctly appointed trustees and all attempts to resolve the dispute having failed. A specific example given in the CC's guidance is:
“ Any trustees must have been appointed following the directions laid out in your charity's governing document. If you don't have properly appointed trustees, the [CC] may step in to help you get a full body of trustees.
If the [CC] finds evidence of misconduct or mismanagement that put your charity's funds and users at risk, it will step in and provide advice and guidance.
Even after the [CC] gets involved, your trustees need to work together to come up with a solution. If the [CC] thinks a solution will not be reached, it may withdraw help or even instruct your charity to cease operating and wind up”.
Thirdly, having regard to the factual position, Mr Khangure QC submitted that the Judgment has established that (1) the 5 Sighs were not validly elected and that the MC was not validly elected (Judgment [83]); (2) the 5 Singhs usurped their office, in disregard (ie violation) of the Constitution, by carrying on as if duly elected (Judgment [81]) when, had they thought objectively about the events of 3.5.15, they should have realised that the process of objecting had been side-stepped; (3) the MC has, at all times, acted without authority and beyond its powers by carrying on as if duly elected (Judgment [82]) and has also acted at all times in disregard or...
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