NI: Attorney General’s application to appeal decision of Charity Tribunal granted
The High Court of Justice in Northern Ireland Chancery Division has granted the Attorney General leave to appeal a decision of the Charity Tribunal on a number of points of law.
The Attorney General sought to appeal a decision of the Tribunal to remove Robert Crawford as a trustee of the charity, The Disabled Police Officers’ Association of Northern Ireland.
Under s.14 of the Charities Act (Northern Ireland) 2008:
“(a) An appeal may be brought under this section against the decision of the Tribunal only on a point of law.”
Although not originally a party to the proceedings, s.14(5) allows for the Attorney General to be treated as party to all proceedings before the Tribunal.
The Attorney General contended that the Tribunal had erred in concluding that Mr Crawford’s removal was necessary or desirable, and offered no satisfactory basis or reasoning for this conclusion.
Further, the Tribunal erred in relying on cumulative misconduct and mismanagement, rather than only that which had been established to the requisite standard.
The Tribunal also erred in drawing conclusions against Mr Crawford on the basis of withdrawals of appeals by other trustees, and in holding the appellant to a higher standard than that of trustee by reason of his role on the audit committee.
Further, the Tribunal erred in its conclusion that Mr Crawford’s removal as a trustee was proportionate, and further offered no satisfactory basis or reasoning for its conclusion.
Finally, the Tribunal erred in its interpretation of ‘administration of the charity’ in section 33(2) of the Charities Act (Northern Ireland) 2008 in impermissibly extending it to (1) interactions with the Charity Commission in the course of its investigation and to (2) behaviour as a witness in proceedings before the Charity Tribunal.
The Court identified the relevant test in determining whether leave should be granted as being whether there is an arguable case disclosed and whether that case has a reasonable prospect of success.
The Charity Commission, as respondent, complained that the Attorney General had intervened in a decision to which he was not a party, that some of the grounds were appeals on facts, and that the Attorney General was ignorant of the evidence adduced before the Tribunal.
The Court identified the Attorney General’s argument as having three main thrusts.
These were, whether the Tribunal erred in concluding that “administration” should be interpreted to include Mr Crawford’s interaction with the Charity Commission during the inquiry and with the Tribunal during the hearing; whether the Tribunal failed to provide satisfactory reasoning; and were the facts found by the Tribunal such that no Tribunal acting judicially and properly instructed as to the relevant law could have come to the decision that RC should be removed as a trustee? - see Lord Radcliffe in Edwards v Bairstow AC 14 at 36.
In relation to the first ground, the judge considered that the Attorney General had “overcome the relatively modest hurdle which faces him on this leave application and that there is an arguable point of statutory interpretation given the architecture of the Act.”
In relation to the second ground, the judge noted that some of the reasoning could be described as opaque.
It was found that it had failed the test set out in English v Emery Reimbold & Strick Ltd EWCA Civ 605, in which Phillips LJ approved the comments of Sachs LJ in Eagil Trust v Pigott-Brown 3 All ER 119 at 122 and went to say that the reasoning did not need to be set out extensively but that:
“The essential requirement is that the terms of the judgment should enable the parties in the Appellate Tribunal readily to analyse the reasoning that was essential to the judge’s decision.”
The judge found that there was an arguable case, as it could be argued that the reasoning of the Tribunal was not set out with sufficient clarity for the parties to understand the basis of the decision.
On the third ground, the judge noted the respondent’s concerns that some of the appeals related to point of fact, and instead framed the issues as a legal issue in the following manner:
“The facts found are such that no Tribunal acting judicially and properly instructed in the relevant law could have reached the conclusion that RC should be removed as a Trustee.”
In relation the remaining points argued by the Attorney General, it was found that the point regarding the higher duty being placed on Mr Crawford was not a point of law, and therefore no leave was granted on this ground.
However, an arguable case related to the point that the Tribunal was not entitled to take into account the making of orders which “corroborated the basis of the making of the orders against the appellant”.
Further, the point in relation to the Tribunal relying on a “cumulative impression of misconduct or mis-management” of Mr Crawford overcame the hurdle necessary for leave to be granted.
Concluding, the judge noted that “appeals from the Tribunal in Northern Ireland are very much in their infancy. This appeal raises various issues which may be of general importance in other appeals. It also raises issues as to how a decision should be recorded. In particular, the importance of:
(a) setting out in an unambiguous fashion the findings of facts;
(b) providing reasons which are intelligible and meet the substance of the arguments advanced and which the Tribunal was required to consider. Helpful guidance is provided by de Smith on Judicial Review (7th Edition) at 7-102 which states:
“In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, as the case may be, won.”