THE CHARITIES ACT (NORTHERN IRELAND) 2008

 THE CHARITIES ACT (NORTHERN IRELAND) 2013

            THE CHARITY TRIBUNAL RULES (NORTHERN IRELAND) 2010

 

 

 The Charity Tribunal for Northern Ireland

 

 

Application Reference:  4/16

 

         Heard in public in the Tribunal Hearing Centre, Belfast on 22 December 2016

 

 

 

Before

 

Damien J. McMahon

  President

 

 

Between

 

GREGORY BURKE

Applicant

and

 

THE CHARITY COMISION FOR NORTHERN IRELAND

Respondent

 

 

Decision 

 

The application of the Appellant filed on 17 October 2016 to challenge the opening of a statutory inquiry by the Respondent on 3 May 2013 into a charity known as Lough Neagh Rescue, pursuant to section 22 of the Charities Act (Northern Ireland) 2008 (‘the Act’) was filed after the statutory time limit for so doing had expired. Time is not extended to allow the application to proceed. Accordingly, the application is refused.  

 

                                                                 REASONS

 

1.      The Tribunal convened a pre-hearing review on 22 December 2016, pursuant to Rule 13 of the Rules to determine what directions were necessary to secure the just, expeditious and economical conduct of this application. Both parties were in attendance and gave oral evidence and made oral submissions. The Applicant was not represented. The Respondent was represented.

 

 

2.      The application of the Applicant was filed after the expiry of the statutory time limit for so doing.

 

3.      Pursuant to Rule 17 of the Charity Tribunal Rules (Northern Ireland) 2010 (’the Rules’), an application to challenge a decision of the Respondent to institute a section 22 statutory inquiry into a charity must be brought within 42 days of the date on which the decision was published. The decision is this case was published on a date in 2014 (even though the decision to institute the statutory inquiry was taken by the Respondent on 3 May 2013) The Tribunal may make a direction to allow an application to be made after expiry of the said time limit, pursuant to Rule 4 of the Rules, on foot of an application for such direction pursuant to Rule17(8) of the Rules.

 

4.      The Applicant recognised that his application was late and did properly make the necessary application for a direction to allow the application to be made following expiry of the said time limit. In his application for such direction, the Applicant stated that it ‘was not possible’ to bring his application until 17 October 2016, as the law only ‘properly defined’ by the Court of Appeal in a decision delivered on 13 October 2016. The Tribunal did not accept that submission.  

 

5.      In considering an application for a direction to extend time for bringing an application, Rule 4 of the Rules requires the Tribunal to consider what steps, if any, the Respondent took to notify or publicise its decision; when the Applicant became aware of the decision and when the Applicant became aware of his right to bring an application and the time limit for doing so. The Tribunal considered all of these matters.

 

6.      In oral evidence, the Applicant stated that he first became aware of the institution of the statutory inquiry while attending a pre-hearing review on 21 May 2013 in respect of another matter involving the charity. This was a pre-hearing review into an application by a single trustee of the charity to challenge the opening of the said statutory inquiry. He stated he had not been given the opportunity to ‘appeal’ as the Respondent did not inform those having control over the charity of the decision to institute a statutory inquiry. He also maintained that he could only bring his application following the said decision of the Court of Appeal on 13 October 2016. 

 

7.      The Tribunal did not accept these assertions. The other pre-hearing review to which the Applicant referred involved a close colleague of the Applicant in the same charity and both of them, together, had established a representative and advisory body known as ProbityNI in order to assist and represent persons before the Tribunal seeking to challenge decisions of the Respondent. The said hearing concerned a similar challenge by the Applicant’s colleague to the institution of a statutory inquiry into the charity. The charity itself did not challenge that decision.

 

8.      The Tribunal accepted that the Applicant was a person who had requisite control and management responsibilities over the charity known as Lough Neagh Rescue, as envisaged in the table to Schedule 3 of the Act and, indeed, the Applicant himself had been the subject of an Order made against him by the Respondent removing him from that position. (That Order had been appealed by the Applicant and the appeal conceded by the Respondent). There is no requirement on the Respondent to formally notify persons having control and management responsibilities in a charity of its decision to institute a statutory inquiry as a prerequisite of putting an applicant in a position to decide whether or not to bring an application to challenge the institution of a statutory inquiry.

 

9.      The Tribunal further did not accept the submission of the Applicant as the reason for such a lengthy delay in bringing his application, that the Court of appeal in 13 October 2016 had ‘properly defined’ the law in that regard. The Tribunal found that the Applicant, by reason not least of his intimate interest in the regulatory regime governing charities of which the Respondent is the designated statutory authority, knew of the basis upon which a decision of the Respondent to institute a statutory inquiry could be challenged by way of an application to the Tribunal. This was clearly set out in the said Table to Schedule 3 of the Act: the Applicant, as a person who had control or management of the charity, had standing to bring an application. The said decision of the Court of Appeal had no relevance to that position and the Court, by its decision, did not alter, change or clarify the law in that regard in any respect: the law remained unchanged.

 

10.  Accordingly, the Tribunal declined to extend time to permit the Applicant to bring his application to challenge the decision of the Respondent, made on 3 May 2013 (albeit not formally publicised until a date in 2014), to institute a statutory inquiry into the charity, following expiry of the statutory time limit.

 

11.  On 20 December 2016, the Applicant furnished a written submission entitled ‘Matters of Fact and Additional Ground of Appeal’.

 

12.  The additional ground of appeal raised by the Applicant on 20 December 2016 asserted that the decision was unlawful as it had allegedly been made by an officer of the Respondent, rather than the Respondent itself. At the hearing, the Respondent confirmed that the decision under appeal had been a decision of the Respondent as a body corporate and produced a copy of a minute to confirm that this was the case. After the conclusion of the hearing, the Applicant sent a further written submission to the Tribunal disputing the case in this regard advanced by the Respondent. At the invitation of the Tribunal (even though the hearing had concluded) the Respondent was given sight of that further submission and provided comments thereon. The Tribunal was entirely satisfied that the said decision to institute the statutory inquiry in this case was a decision made by the Respondent as a body corporate and rejected the Applicant’s assertions to the contrary. 

 

13.  In light of the Tribunal’s decision refusing to extend time to bring the application, it was not necessary to go on and consider another very relevant matter, namely, the lack of any remedy available to the Applicant even if his application had been admitted for hearing. Pursuant to the provisions of the said Table in Schedule 3 to the Act, the only remedy available to an Applicant who successfully challenges a decision of the Respondent to institute a statutory inquiry into a charity, pursuant to section 22 of the Act, is that the Tribunal would order the inquiry to be ended. In this case, the inquiry had already long since ended by the time the Applicant brought his application Accordingly, there was no remedy available to the Applicant even if his application had been admitted for hearing and were to have been successful. In those circumstances, it was difficult to envisage that the Tribunal would have done anything other than to make an Order pursuant to Rule 5 of the rules striking out the application as disclosing no reasonable grounds for bringing the application. The Tribunal may even have concluded that the bringing of this application was an abuse of the Tribunal’s process and ought to be struck out on that ground also.

 

 

Note: Since this decision is a final disposal of the Applicant’s application, a party may, if he or it considers that there is an error of law in the decision, apply to the Tribunal in writing within 28 days of the date upon which the Tribunal sends notification of this decision to him or it for permission to appeal to the High Court of Justice in Northern Ireland stating the grounds upon which he or it intends to rely before the Court.

 

 

 

Signed

 

 

Damien J. McMahon

President

 

 

Date: 23 December 2016