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: 8/16
Heard in public in the Tribunal Hearing Centre, Belfast on 3 February 2017
Damien J. McMahon
THE CHARITY COMMISSION FOR NORTHERN IRELAND
1. The title of the Applicant / Appellant in these proceedings is amended to that of ’SEAN CAUGHEY’ of 18 Quay Street, Ardglass, Co. Down, BT30 7SA, in place of ‘NEWRY & MOURNE CARERS LIMITED (NMC Ltd) Sean Caughey’ of 6-8 Savages Terrace, Newry, Co. Down.
2. Upon the application of the Applicant / Appellant at the hearing held on 3 February 2017, to withdraw appeals made by him against additional Orders made by the Respondent on 15 July 2016, 15 August 2016 and 6 October 2016, respectively, there being no objection from the Respondent, those three additional appeals are formally dismissed pursuant to Rule 24 of the Rules with no Order as to costs.
3. The application of the Applicant / Appellant filed on 30 November 2016 challenging the opening of a statutory inquiry by the Respondent, on 11 July 2016, pursuant to section 22 of the Charities Act (Northern Ireland) 2008 (‘the Act’) into a charity known as Newry and Mourne Carers Limited (‘the Charity’), together with the appeal of the Applicant / Appellant, also filed on 30 November 2016, against Order made by the Respondent on 14 October 2016, restricting financial transactions of the Charity to a value of no more than £250.00, without the approval of the Respondent, pursuant to section 33(1)(vi) of the Act, were filed after the statutory time limit for so doing had expired. Time is not extended to allow the application or appeal, respectively, to proceed. Accordingly, the application and appeal, respectively, are refused. No Order as to costs.
4. The appeal of the Applicant / Appellant against the Order made by the Respondent, pursuant to section 66(2) of the Act, directing the Applicant / Appellant, as the sole remaining trustee of the Charity, to give an auditor appointed by the Respondent access to books, documents and other records of the Charity by 12.00 noon on 5 December 2016 is refused. No Order as to costs.
1. This application and a number of appeals, respectively, filed on 30 November 2016, came before the Tribunal on 3 February 2016 by way of a pre-hearing review, pursuant to Rule 13 of the Charity Tribunal Rules (Northern Ireland) 2010 (‘the Rules’) to decide, inter alia, whether time should be extended in relation to the application matter and one of the appeal matters. For reasons that appear later, the Tribunal also decided that that one remaining appeal matter, that was within time, should not be proceed to full hearing as it was possible to make a final determination of that appeal at this hearing.
3. The parties agreed that the title to the proceedings should be amended to recite ‘Sean Caughey’ as the Applicant / Appellant and that the reference to ‘Newry & Mourne Carers Limited (NMC Ltd)’ should be deleted. The Tribunal made a direction to that effect, pursuant to Rule 3 of the Rules.
4. The Tribunal noted, and confirmed to the parties, that correspondence dated 18 January 2017 had been received on behalf of the Attorney-General for Northern Ireland (‘the Attorney’) that the Attorney did not intend to intervene in these proceedings.
5. While the Applicant /Appellant had initially, in addition, filed appeals against three other Orders made by the Respondent on 15 July 2016, 15 August 2016 and 6 October 2016, respectively, the Applicant’s /Appellant’s representative confirmed at the hearing, as set out in a preliminary position paper furnished on behalf of the Applicant / Appellant, that the Applicant / Appellant wished to withdraw those additional appeals. There was no objection from the Respondent. Accordingly, those appeals were formally dismissed pursuant to Rule 24 of the Rules.
6. The appeal before the Tribunal filed by the Applicant /Appellant on 30 November 2016, that was within time, was an appeal against an Order made by the Respondent on 23 November 2016, pursuant to section 66(2) of the Act directing the Applicant / Appellant, as sole remaining trustee of the Charity, to give an auditor appointed by the Respondent access to books, documents and other records of the Charity (’the 23 November 2016 Order’).
7. In light of the decision of the Tribunal to refuse to extend time in relation to the application of the Applicant / Appellant challenging the opening of the said section 22 inquiry (‘the section 22 application’) and the decision of the Tribunal refusing to extend time in relation to the appeal of the Applicant /Appellant against the said Order of the Respondent restricting the level of financial transactions that could be undertaken by the Charity to no more than £250.00 in a single transaction without the approval of the Respondent (’the 14 October 2016 Order appeal’), the only substantive appeal remaining before the Tribunal was the 23 November 2016 Order appeal. Since that appeal was determined and refused on the merits by the Tribunal, for the reasons appearing later, no decision was required of the Tribunal in relation to the application filed by the Respondent for an Order pursuant to Rule 15 of the Rules to prohibit disclosure to the Applicant / Appellant of certain documents identified by the Respondent and which were in its possession.
8. Quite apart from the request to extend time in relation to the section 22 application and in relation to the 14 October 2016 Order appeal, the sole ground of appeal advanced by the Applicant / Appellant in relation to all three remaining matters that he sought to have litigated before the Tribunal was that each decision was made by an officer of the Respondent rather than the Respondent itself and that this rendered each decision unlawful as the Respondent had no statutory power to proceed in that fashion. In relation to the section 22 application and in relation to the 14 October 2016 Order appeal, that issue only fell to be considered if the Tribunal extended time to bring the said application and appeal. The Tribunal declined to extend time in respect of either matter.
9. The Applicant / Appellant had requested that all matters be determined on the papers. However, the Respondent requested that there be an oral hearing. The Tribunal took the view that, in any proceedings before the Tribunal, where one of party requests an oral hearing, then an oral hearing must take place. In other words, a determination on the papers may only take place in any proceedings before the Tribunal where all parties agree to that course and the Tribunal is content to proceed on that basis.
10. The Tribunal made the following findings of fact:
(1) a statutory inquiry, pursuant to section 22 of the Act, into the affairs of the Charity, was opened by the Respondent on 11 July 2016;
(2) the said inquiry remains open;
(3) the decision to open the said inquiry was a decision taken by the Respondent itself and not by an officer of the Respondent;
(4) the Applicant /Appellant is the sole remaining trustee of the Charity and was a trustee when the inquiry was opened on 11 July 2016;
(5) the Charity itself, a corporate body, purported to apply to the Tribunal on 25 July 2016 to have the opening of the inquiry reviewed and also purported to appeal the said order made on 15 July 2016 restricting financial transactions made by the Charity, whether in a single transaction or a group of transactions, where expenditure exceeding £250 or more was involved, without the consent of the Respondent;
(6) the said Order remained operative;
(7) the decisions made by the Respondent in respect of the late appeal and the appeal that was not out of time were made by an officer of the Respondent;
(8) the Tribunal, in a decision made on 11 November 2016, dismissed that application and appeal, respectively, on the basis that it was not satisfied that the Charity, by a resolution of its board, had made an application to lodge the said application and appeal;
(9) the said decision of the Tribunal was not the subject of an appeal by the Applicant / Appellant (or the Attorney), for any alleged error of law; accordingly, that decision remains extant since a decision of the Tribunal can only be set aside by an Order of the High Court, on a successful appeal, on an error of law only, being brought to challenge the impugned decision of the Tribunal, a position accepted on behalf of the Applicant / Appellant at the hearing on 3 February 2017. (A decision of a Tribunal may also be set aside, pursuant to Rule 34 of the Rules, by the Tribunal itself where, on the application of a party, or on the Tribunal’s own initiative, the Tribunal, upon review, agrees the decision was wrongly made as a result of an administrative error on the part of the Tribunal or its staff, as opposed to an alleged error of law). No such application was made in respect of the said decision of the Tribunal. Accordingly, the Rule 34 provision did not fall for consideration).
(10) the instant application and appeals, respectively, were, a new application and appeals and were filed by the Applicant / Appellant on 30 November 2016;
(11) the time for bringing the said application expired on 22 August 2016 and the time for bringing the said appeal against the 14 October 2016 Order expired on 25 November 2016: both the application and the said appeal were, therefore, filed out of time;
(12) the Applicant / Appellant, as a trustee of the charity, had standing, at all times, to bring both the application and appeal;
(13) the appeal of the Applicant / Appellant against the 23 November 2016 Order directing the Applicant / Appellant to produce documents of the Charity to an auditor appointed by the Respondent was lodged within time.
11. The issues in these proceedings were, firstly, whether the said application and said appeal filed out of time, being filed on 30 November 2016, could be admitted for hearing by the Tribunal extending time. If time were extended, the purpose of the hearing on 3 February 2017 was to issue case management directions for the substantive hearing of the said application and the said appeal, together with case management directions in respect of the said 23 November 2016 Order appeal (that had been filed within time), if required.
12. The relevant statutory provisions are contained in section 12(3)(a) and paragraphs 1 and 4 of Schedule 3 to the Act, and Columns 1-3 of the Table referred to therein (‘the Table’), together with Rules 3, 4 and 17 - 19 of the Rules.
13. A decision by the Respondent to open a statutory inquiry, pursuant to section 22 of the Act is a ‘reviewable matter’. The said decision may be reviewed by the Tribunal on application of any of the persons listed in the relevant part of Column 2 of the Table, including, for the purposes of these proceedings, persons having control or management of the charity, a definition that includes, a single trustee of the charity, in his own right (such as the Applicant /Appellant), even if the charity itself, if a corporate body, or the body of trustees, acting collectively on behalf of the charity, where the charity is unincorporated, does not exercise its right to make application for review.
14. Upon hearing an application to challenge a decision to open an inquiry pursuant to section 22 of the Act, the Tribunal, may, in accordance with the relevant entry in Column 3 of the Table, either dismiss the application or, if the application succeeds, direct the Respondent to end the inquiry: the Tribunal has no power to grant a remedy to a successful applicant other than this power.
15. Rule 17(1) of the Rules requires an application to be filed by the Applicant within 42 days of the date upon which the decision of the Respondent to open a section 22 inquiry was published. Rule 17(8) of the Rules requires that, where the application is filed out of time, the application must include an application for a direction pursuant to Rule 3 of the Rules to extend time, giving, pursuant to Rule 17(9) of the Rules, a statement of the reasons for the delay in making the application and providing any other information that will assist the Tribunal in making a decision on whether or not to extend time under Rule 4 of the Rules. The sole reason advanced by the Applicant / Appellant in his Notice of Application / Appeal was that he wished to await the outcome of the previous proceedings, in relation to the same matters, taken by the Charity itself. In oral submissions to the Tribunal, another reason was advanced, namely, that the Applicant / Appellant was confused.
16. An Order made by the Respondent pursuant to section 33 of the Act may be appealed to the Tribunal by, inter alia, a trustee of the charity, as in this case. The remedies available to a successful Appellant are that the Order be quashed in whole or in part, or that another Order be substituted, in whole or in part, or that additional provisions might be added to the Order. The Appellant sought to have both section 33 orders, the subject of these proceedings (the 14 October 2016 Order – if time were extended – and the 23 November 2016 Order) quashed.
17. Rule 4 of the Rules requires the Tribunal, in determining an application under Rule 17(8) of the Rules to extend time to admit a late application, to consider what steps the Respondent took to notify or publicise its decision; when the Applicant became aware of the decision and his right to bring an application and of the time limit for doing so. The Tribunal took account of all of these matters in reaching its determination. These matters were not at issue in these proceedings; instead, the Applicant / Appellant sought to have time extended for unconnected reasons.
18. The representative of the Applicant/Appellant furnished a helpful position paper to the hearing.
19. The Applicant /Appellant’s representative confirmed that the single ground of application and appeal (in relation to the two appeals not withdrawn), namely, that the opening of the said section 22 inquiry and the making of the two section 33 Orders in question were invalid since they were allegedly made by officers of the Respondent rather than by the Respondent itself. He submitted that there was no statutory power vested in an office of the Respondent to take such decisions. In relation to the application and the one appeal that was out of time, this submission only fell for consideration if time was extended and the application and appeal admitted for hearing. It did, however, fall for consideration in respect of the appeal that had been filed in time.
20. In respect of the last matter, the Tribunal considered that it could deal with that appeal at this hearing, and that it was proper and proportionate to do so, having regard to the duty on the Tribunal to ensure the just, expeditious and economical determination of an appeal. This was because the sole ground of appeal was whether the Order under appeal was lawfully made by the Respondent. This involved a determination by the Tribunal of a discrete issue of law.
21. Significantly, and quite properly, the Applicant /Appellant’s representative agreed that the previous application, on the same matter, the opening of the section 22 inquiry, brought by the Charity itself, on 25 July 2016, and dismissed by the Tribunal on 11 November 2016, could not be re-visited. This was an important clarification on behalf of the Applicant / Appellant since, in the said position paper, the previous application and appeal, brought by the Charity itself, was referred to as ‘his [that is, the Applicant /Appellant’s] first application’; that ‘the original application was made in time and without delay’; that ‘the 2nd application as the sole trustee (that is, the instant Applicant /Appellant) was made on …’. However, the instant proceedings before the Tribunal are the only proceedings ever brought by the Applicant /Appellant: the previous proceedings were brought by the Charity, a corporate body, in its own name.
22. on the specific issue of whether time should be extended, in respect of the said application and in respect of the appeal that had been filed out of time, the Applicant / Appellant made the necessary application for an extension of time in writing. He submitted that ‘it was appropriate to wait on the Tribunal’s decision dated 11 November 2016 following the … hearing on 28 October 2016 ... before making a fresh appeal’. It was submitted that this was due to confusion on the part of the instant Applicant / Appellant concerning the fact that proceedings to the same effect had been brought by the Charity itself. This submission was not accepted by the Tribunal. It was always open to the Applicant / Appellant to bring these proceedings, irrespective of whether similar proceedings were brought by the Charity itself. Further, at all times, the Applicant / Appellant had the benefit of advice from a source (that included his representative) that projected itself as having an intimate understanding of the regulatory regime and offered its services to those who wished to challenge decisions of the Respondent. It was significant too, that, despite the submission on behalf of the Applicant / Appellant to justify the extension of time application, a different ground of appeal was advanced in the instant proceedings than had been advanced in the proceedings brought by the Charity. This, in itself, was a factor the Tribunal found to militate against extending time. Further, the application in respect of the opening of the section 22 inquiry was very considerably out of time – some 100 days approximately – while no satisfactory reason was advanced on behalf of the Applicant / Appellant as to why the Applicant/Appellant did not file either his application and his late appeal until 30 November 2016 – some 19 days after the decision of the Tribunal dismissing the application and appeal brought by the Charity itself in relation to the same matters. It was submitted at the hearing that time should be extended as the ground of appeal was of general importance concerning the lawfulness of decisions of officers of the Respondent. A discrete submission, in relation to the appeal matter only, was that the appeal had been lodged just six days out of time and that time should be extended on that ground too in respect of that matter. The Tribunal declined to accept that time should be extended of either of those grounds particularly since they did not fall within the principles set out in Davis v. Northern Ireland Carriers  NI 19 when considering whether to extend time in proceedings.
23. It was submitted on behalf of the Respondent that time should not be extended in respect of either the application matter or the appeal matter. The Respondent relied, in particular, upon the authority of Davis, and in two Court of Appeal decisions that considered Davis, namely, Fontan v. Teletech UK Limited  NICA 44 and Ryan Hegarty v. The Enforcement of Judgements Office  NICA 56. Having regard to the submissions, both written and oral, of the Respondent, and having carefully considered the submissions, both written and oral, on behalf of the Applicant / Appellant, and having regard to the principles set out in Davis, the Tribunal is satisfied that there is nothing that would lead it to extend time to permit either the application or the late appeal to proceed. Accordingly, the single ground of application /appeal in respect of those matters did not fall for consideration.
24. Finally, since the Tribunal found that the application and one of the appeals (that against the 14 October 2016 Order) was filed out of time, and declined to extend time, a final disposal of these proceedings has been made by the Tribunal and the question of issuing directions, for case management purposes in connection with a substantive hearing in respect of those matters did not fall to be considered.
25. In respect of the appeal against the 23 November 2016 Order, an appeal that was not out of time, the sole ground of appeal was that the Order was invalid as having been made by an officer of the Respondent rather than by a decision of the Respondent itself.
26. The 23 November 2016 Order was an Order made pursuant to section 66 of the Act requiring the Applicant / Appellant to give an auditor appointed by the Respondent access to certain documentation of the Charity to enable an audit to be carried out, the Applicant / Appellant having failed to do so pursuant to an Order made under section 65 of the Act. (While not necessary to determine the appeal, the Tribunal was satisfied, in any event, on the submissions made on behalf of the Respondent, that there were good grounds, on the merits, to make the said Order).
27. The substantive merits of the said 23 November 2016 Order was not put in issue in these proceedings; indeed, it was difficult to envisage what possible grounds there might be to impugn the said order on the merits since it was made on foot of a failure by the Applicant / Appellant to comply with the said section 65 Order that was not now the subject of appeal in these proceedings: instead, the sole ground of appeal was that the Order was unlawful and invalid having been made on foot of a decision taken by an officer of the Respondent rather than the Respondent itself.
28. The Respondent, a corporate body, has power to arrange its affairs by reason of section 19 of the Interpretation Act (Northern Ireland) 1954. This is supplemented by the duties of the Respondent set out in section 9 of the Act, and its incidental powers in relation thereto, set out in section 10 of the Act, also having regard to the Respondent’s statutory objectives and functions set put in sections 7 and 8 of the Act. This entitles the Respondent to decide, in its discretion, that certain decisions may be taken by an officer of the Respondent. Where so arranged, this does not mean that such decision is not a decision of the Respondent. The Tribunal was satisfied that, in respect of the 23 November 2016 Order, the stated officer of the Respondent who signed, and thereby, issued the said Order, was authorised to do so by the Respondent. The submission of the representative of the Applicant / Appellant to the contrary was rejected by the Tribunal. The Tribunal did accept, however, that the position was somewhat different in the jurisdiction of England and Wales. However, the express power provided in statute in that jurisdiction to enable an officer of the Commission to make decisions on behalf of the Commission is no longer of any great significance since the Charity Commission of England and Wales is now a corporate body. In any event, there is, and never was, any equivalent in the jurisdiction of England and Wales to the statutory provision contained in section 19 of the Interpretation act (Northern Ireland) 1954.
29. Accordingly, the appeal against the 23 November 2016 Order was refused.
Note: Since this decision is a final disposal of the Applicant / Appellant’s application and appeals, 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.
Damien J. McMahon
Date: 20 February 2017