The Project Management Institute v The Minister for the Cabinet Office and Others The Association for Project Management (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 17 July 2014 |
| Neutral Citation | [2014] EWHC 2438 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12587/2013 |
| Date | 17 July 2014 |
[2014] EWHC 2438 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mitting
Case No: CO/12587/2013
The Queen on the application of
and
Mr Jonathan Crow QC AND Miss Amy Rogers (instructed by WHITE & CASE LLP) for the Claimant
Miss Karen Steyn QC (instructed by THE TREASURY SOLICITOR) for the Defendants
Mr Michael Fordham QC AND Mr Paul Luckhurst (instructed by ALLEN & OVERY LLP) for the Interested Party
Hearing dates: 8 & 9 July 2014
The claim
On 4 July 2013 the Treasury Solicitor, on behalf of the Privy Council Office and the Minister for the Cabinet Office, notified the Project Management Institute ("PMI") that a Committee of Privy Councillors had decided to recommend to Her Majesty the Queen in Council that a Royal Charter should be granted to the Association for Project Management ("APM") and intended to put that recommendation on the list of business for the meeting of the Privy Council due to take place on 9 October 2013. PMI challenges that decision in these proceedings with the permission of Philips J on two grounds: that the decision was irrational and contrary to the Privy Council's published policy so as to give rise to a breach of PMI's substantive legitimate expectation that that policy would be followed; and that the decision was vitiated by apparent bias and pre-determination. Philips J refused permission on three further grounds, of which two were procedural unfairness and a breach of European Union law. An attempt to renew the application for permission to pursue those grounds was abandoned. PMI's challenge is, therefore, confined to the two stated grounds.
Royal Charters
This is, I believe, the first time that the grant or refusal of a Royal Charter has been the subject of litigation. I propose, therefore, to begin by a brief analysis of the history and nature of Royal Charters and the process by which they are granted. A Royal Charter is granted in the exercise of prerogative powers – "the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown": Dicey, The Law of the Constitution p424. It has the essential qualities of an executive, rather than legislative, act and is "best not described as legislation": Craies on Legislation 10 th Edition paragraph 3.7.8. Its original purpose was to grant corporate personality to bodies of persons conducting activities for public or private benefit. The first Royal Charter in the first category was granted to the University of Cambridge in 1231 and in the second to the Sadlers Company in 1272. Numerous grants have been made to educational institutions and livery companies ever since. The first grant of a Royal Charter to a group of persons carrying on a profession was to the Royal College of Physicians of London in 1518. At the turn of the 17 th and 18 th centuries, Royal Charters were granted to institutions which played a major part in the economic life of the country, notably the Bank of England in 1694 and the South Sea Company in 1711. The puncturing of the South Sea bubble in 1720 caused Parliament to prohibit the formation of joint stock companies except by Royal Charter in the Bubble Act 1720. Thereafter until the early 19 th century, the grant of Royal Charters in the economic field was limited to a small number of banks and insurance companies. Between the enactment of the Chartered Companies Act 1837 and the Limited Liability Act 1855, the grant of a Royal Charter was the principal means by which economic activity could be carried on by an incorporated body without putting at risk the entire assets of those who subscribed capital to it. In consequence, a large number of trading and mining companies were incorporated by Royal Charter between those dates. Few were afterwards. From then on, the great majority of bodies incorporated by Royal Charter have been educational, charitable or professional. Lord Diplock was not quite right when he identified this function of the Privy Council as "the grant of…corporate personality to deserving bodies of persons" in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at 410B, because almost all of the grantees have already been incorporated under legislative provisions. Grants are still made to unincorporated groups of persons – for example livery companies and, in 2012, Marylebone Cricket Club — but current practice is accurately stated by the Privy Council on its website: "New grants of Royal Charters are these days reserved for eminent professional bodies or charities which have a solid record of achievement and are financially sound".
An organisation seeking the grant of a Royal Charter must petition Her Majesty the Queen in Council. On its website, the Privy Council Office invites informal approaches before a petition is lodged, to afford that office the opportunity of giving advice about the chances of success. Petitioners are advised to take soundings amongst other bodies which may have an interest in the outcome. Once a formal petition has been lodged, it is advertised in the London Gazette. Any objector is entitled within six weeks to lodge a counter-petition. The petition is considered by a sub-committee of the Privy Council, comprising Ministers of the departments most closely connected with the activities of the petitioner. Unanimity amongst the members of the committee is required before a recommendation for the grant of a Royal Charter will be made.
A petitioner is required to submit a draft of its Charter and by-laws. Both must be approved by the Attorney General. Once a Royal Charter is granted, the Charter and by-laws cannot be amended without the consent of the Privy Council. I am led to understand by Miss Steyn QC, counsel for the defendants, that the Privy Council's oversight of Chartered bodies is ordinarily reactive, but it does retain the power to recommend revocation of a Charter, last exercised in 1684 in respect of the Somers Isles Company, and is prepared to threaten the use of the power in appropriate circumstances. She told me that there had been one such occurrence in recent times.
APM and PMI
APM is a company limited by guarantee and a registered charity. In May 2008, it claimed to have 16,340 individual members in the United Kingdom. It puts its individual membership now at about 20,000. In addition, it has about 500 corporate members, including several Government departments. Its object, set out in its Articles of Association and in paragraph 2 of its draft Charter, is "To advance the science, theory and practice of project and programme management for the public benefit". In its petition, it claims that its work "in leading, developing and regulating the profession of project management is of significant public benefit" and that the public interest would be enhanced if a Charter of incorporation were to be granted. Its activities are mainly conducted in the United Kingdom.
PMI is a not-for-profit company incorporated under the laws of Pennsylvania. It claims an individual membership of nearly 800,000 worldwide. It has a little over 6,000 members in the United Kingdom, of whom 3,300 belong to its UK chapter. It is by far the world's largest project management membership association.
Both APM and PMI further their objectives by means that are broadly similar: setting examinations in project management; publishing a corpus of knowledge gleaned from experience; maintaining a register of members; laying down and maintaining a good standard of professional conduct amongst their members; encouraging public confidence in project management as an activity; and thereby enabling their members to further their professional careers. Each respects the other. There is a difference of opinion about whether or not they are commercial rivals: PMI claims that they are; but APM claims that, as not-for-profit companies, they are not. This debate is sterile. Both provide a similar service in the same field of enterprise. Both seek to recruit members. A perceived benefit conferred on one may make that company more attractive to potential members than the other.
APM's petition
In 2007, APM decided that it wished to apply for a Royal Charter. It set about doing so in the manner advised by the Privy Council Office. First of all it canvassed support within government. It received it. By letters dated 18 December 2007, 28 January 2008 (x 2), 27 February 2008, 28 February 2008 and 17 March 2008, senior officials in the Ministry of Defence, the Department for Children, Schools and Families, the Department of Health, the Office of Government Commerce, the Department for Business Enterprise and Regulatory Reform, the Department for Transport and the Cabinet Office respectively, gave their support to the proposal. By a six page document dated 17 April 2008, APM notified the Privy Council Office of its wish to petition for a Royal Charter. It stated that it proposed to establish a register of Chartered practitioners for whom it would set rigorous entry requirements and establish a code of conduct and a complaints and disciplinary procedure. This prompted an immediate response from PMI: by a 13 page letter dated 18 April 2008 to the Privy Council Office White & Case set out detailed informal grounds of opposition.
On 1 October 2008 APM lodged its...
To continue reading
Request your trial
-
The Queen (on the application of the Project Management Institute) v The Minister for the Cabinet Office and Others The Association for Project Management (Interested Party)
...Civ 21 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Mr Justice Mitting [2014] EWHC 2438 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL The Master of the Rolls Lord Justice Richards and Lord Justice Underhill Case No: C1/20......
-
R English Bridge Union Ltd v The English Sports Council The Scottish Sports Council and Others (Interested Parties) The Secretary of State for Culture, Media and Sport (Intervener)
... ... Recognition Panel of the fourth interested party. In the letter he indicated that the claimant ... The CCPR was a voluntary association of the national bodies in the UK concerned with ... each case of such persons as the Prime Minister may from time to time appoint, whose principal ... by Mitting J in R (on the application of Project Management Institute) v The Minister for the net Office [2014] EWHC 2438 in which he summarised the ... ...
-
Heneghan v Manchester Dry Docks Ltd and Others
...claimant, Carl Heneghan (suing as the son and executor of James Leo Heneghan, deceased) against the decision of Mr Justice JayUNK ([2014] EWHC 2438 (Admin)) in favour of the defendants, (1) Manchester Dry Docks Ltd, (2) 00722056 Lt d, (3) Carillion Construction (Contracts) Ltd, (4) R. Black......