THE CHARITIES ACT (NORTHERN IRELAND) 2008
THE CHARITIES ACT (NORTHERN IRELAND) 2013
THE CHARITY TRIBUNAL RULES (NORTHERN IRELAND) 2010
IN THE MATTER OF AN APPEAL OF A DECISION OF THE CHARITY COMMISSION FOR NORTHERN IRELAND TO THE CHARITY TRIBUNAL FOR NORTHERN IRELAND.
Appeal No. 3/16
ARTHUR LINDSAY KERR ACHESON
THE CHARITY COMMISSION FOR NORTHERN IRELAND
THE ATTORNEY-GENERAL FOR NORTHERN IRELAND
UPON READING the papers filed by the Appellant and Respondent;
AND UPON READING correspondence received on behalf of the Attorney-General for Northern Ireland (‘the Attorney’) that the Attorney wished to intervene in these proceedings pursuant to section 15(4) of the Charities Act (Northern Ireland) 2008 (‘the Act’) and Rule 22(2) of the Charity Tribunal Rules (Northern Ireland) 2010 (‘the Rules’);
AND UPON hearing from the Appellant and a solicitor for the Respondent, together with a solicitor for the Attorney and a solicitor for the General Assembly of the Presbyterian Church in Ireland (‘the General Assembly’) at a pre-hearing review held on 28 October 2016 ('the Hearing');
IT IS ORDERED THAT:
1. The Attorney is joined as a party to these proceedings.
2. The Attorney wishes to intervene by way of submitting a Position Paper only. The Attorney is requested to furnish his Position Paper within 14 days of the date of this Directions Notice and, at the same time, to send a copy to the Appellant, the Respondent and to the solicitors for the General Assembly.
3. The General Assembly is not a party to these proceedings. However, pursuant to Rule 3(1)(b) of the rules, the Tribunal herby directs that the General Assembly shall be at liberty to make submissions to the Tribunal in determining this appeal and attend the hearing of this appeal for that purpose. This is to assist the Tribunal in determining the issues in this appeal. Accordingly, all papers pertaining to this appeal that have been lodged by any of the parties to date are to be sent by the Secretary to the Tribunal to the solicitors for the General Assembly and any document that may subsequently be furnished to the Tribunal by any party or by the General Assembly shall be copied to the other parties and the solicitors for the General Assembly as the case may be.
4. The Appellant is a member of the Kirk Session of the May Street Congregation of the Presbyterian Church in Ireland (‘the Congregation’). Accordingly, he is also a ruling elder of that Congregation. In that capacity, he was party to the decision of the Kirk Session of the Congregation to apply for registration of the Congregation as a charity under the regime to regulate charities in Northern Ireland introduced by the Act, supplemented by the Charities Act (Northern Ireland) 2013 and the Rules. The Congregation previously had charitable status under the former regime for conferring charitable status on institutions. This was accepted by the Appellant. It is the decision, made on 5 August 2016 (‘the Decision’), pursuant to the current regulatory regime, to register the Congregation as a charity that is the subject of this appeal. The members of the Kirk Session of the Congregation are the trustees of the registered charity. The Appellant has, however, appealed the Decision. He has appealed as a ‘person affected’ by the Decision pursuant to the provisions in the Table contained in paragraph 5 to Schedule 3 of the Act. The Appellant is entitled to appeal the Decision on that basis. He is not entitled, in that capacity, to appeal the Decision on behalf of any other person or body or to act in these proceedings in the perceived interests of any other person or body. The Congregation, through the Kirk Session, has not appealed the Decision.
5. The issue in this appeal is whether the Congregation, at the date of the Decision, was a charity and therefore fell to be registered as a charity by the Respondent pursuant to section 16 of the Act, that is, whether or not the Respondent was correct and justified in registering the Appellant as a charity pursuant to section 16 of the Act.
6. The parties are at liberty to make submissions, in writing, whether there are any further issues that may require to be considered by the Tribunal in determining this appeal.
7. Following service by the Appellant of his Reply on 17 September 2016, the Respondent made secondary disclosure of further material on 3 October 2016, as required of it, pursuant to Rule 20 of the Rules, as such material might reasonably be expected to assist the Appellant’s case as disclosed by his said Reply.
8. The Appellant, in correspondence with the Respondent on 4 October 2016 and in subsequent correspondence, and in the pre-hearing review, indicated that he intended to widely distribute these documents to other persons. The Appellant referred to other such persons as also being ‘persons affected’ by the Decision. However, the Appellant may not act on behalf of any other persons in these proceedings. These proceedings are brought by the Appellant in his individual capacity as a ‘person affected’ by the Decision.
9. The Respondent submitted that the materials disclosed by way of secondary disclosure could, in law, only be used in connection with these proceedings and for the purposes set out in Rule 20 of the Rules, pursuant to there being an implied duty of confidence imposed on the Appellant. The Respondent cited several authorities to support this submission.
10. The Appellant submitted that the said authorities all pre-dated the Freedom of Information Act 2000, implying that they were no longer good law. He also sought to rely on an Order made in the High Court of England and Wales on 27 September 2016 in proceedings concerning litigation in respect of the matter commonly referred to as ‘Brexit’, on the basis of which, he submitted, the material contained within the Secondary Disclosure could be generally distributed by him (a submission that had to mean distributed at his sole discretion), subject to any redactions the Tribunal thought appropriate.
11. The Appellant is advised that there is an implied duty of confidence imposed on him in respect of the material disclosed to him by way of Secondary Disclosure for the purposes of these proceedings that is not abrogated either by the provisions of the Freedom of Information Act 2000 or by the said Order of the High Court of England and Wales made on 27 September 2016. Accordingly, he is advised that he may only use the said material for the purposes of these proceedings until their conclusion following which he will then be at liberty to distribute the said material to whomsoever he wishes.
Mode and Length of Hearing
12. This appeal shall be listed for an oral hearing on a Friday date to be fixed between 6 January 2017 and 27 January 2017, with a time estimate of one day, in the Tribunal Hearings Centre, Royal Courts of Justice, Chichester Street, Belfast at 10.00am.
12. The parties, and the solicitors for the General Assembly, shall notify the Tribunal in writing within 14 days of these Directions being sent to them which dates within the said period are not suitable to them or their witnesses.
Bundle of Documents
13. The parties are to use their best endeavours to agree the contents of a bundle of documents to be considered at the hearing of this appeal in accordance with the following Directions, having taken into account the views, if any of the solicitors for the General Assembly.
14. Since the Appellant is an unrepresented litigant, and in ease of the Appellant, the first draft of an indexed bundle of paginated documents shall be prepared by the Respondent rather than the Appellant and served on the Appellant, the Attorney and the solicitors for the General Assembly by 2 December 2016.
15. By 9 December 2016 the Appellant, the Attorney and the solicitors for the General Assembly shall notify the Respondent whether there are any additional documents in their possession that they wish to add to the bundle.
16. A consolidated version of the bundle is to be prepared by the Respondent and furnished to the Appellant and the solicitors for the General Assembly by 16 December 2016.
17. By 16 December 2016, the parties are to exchange with each other any written witness statements, attested as to the truth of their contents, upon which they wish to rely or to confirm that they will not be calling witness evidence. If witness statements refer to any documents in the bundle, the relevant page numbers of the relevant bundle are to be given.
18. The witness statements are to stand as evidence in chief at the hearing (save that, exceptionally, supplementary questions in chief may be asked with the permission of the Tribunal). No party may call any witness in respect of whom a written statement has not been exchanged without the express permission of the Tribunal. Each party is to notify the other parties if it wishes to cross examine any witness in respect of whom a statement has been filed by 22 December 2016.
Disclosure of Bundle to Tribunal
19. A final version of the hearing bundle, to include any witness statements and any exhibits, is to be prepared by the Respondent and three copies are to be lodged with the Tribunal by 16 December 2016. A further copy is also to be brought by the Respondent to the hearing for use by witnesses, if any.
20. Written skeleton arguments are to be exchanged by the parties and the solicitors for the General Assembly and lodged with the Tribunal by e.mail by the following dates: the Respondent by 16 December 2016; the solicitors for the General Assembly by 22 December 2016 and the Appellant by 3 January 2017. If the Attorney’s intervention remains confined to the furnishing of a Position Paper, he shall have discretion whether or not to furnish a Skeleton Argument, but if he intends to furnish a Skeleton Argument, he is requested to furnish same by 22 December 2016.
Bundle of Authorities and Statutory Materials
21. The parties (including the Attorney, if his intervention extends beyond the furnishing of a Position Paper) and the solicitors for the General Assembly are to agree a bundle of authorities and statutory materials, which shall be prepared by the Respondent, by 16 December 2016. The index to this bundle shall be sent by e.mail to the Tribunal also on that date and two hard copies are to be lodged with the Tribunal at the hearing.
22. The parties, and the solicitors for the General Assembly, have permission to apply for further directions provided such application is in writing setting out the full reasons for the application and, where applicable, before the time limit for complying with the direction has been reached.
23. Any communication from any party, or from the solicitors for the General Assembly, to the Tribunal shall be copied to the other parties and the solicitors for the General Assembly, respectively, with the other parties, or the solicitors for the General Assembly, or any of them, being at liberty to make any submission they may wish in relation thereto.
24. The parties, having regard to the views of the solicitors for the General Assembly, are directed to use their best endeavours to resolve their differences before this appeal comes on for hearing.
25. The parties are reminded that in the event of a failure to comply with a direction of the Tribunal or any of the Rules may result, in the case of the Appellant, to the appeal being dismissed in whole or in part and, in the case of the Respondent, to its Response being struck out, in whole or in part and, if appropriate, directed that the Respondent is disqualified from participating in the appeal.
Damien J. McMahon. 31 October 2016.