Meaning of ‘charity proceedings’. The Charities Act 1993 imposes restrictions on the taking of charity proceedings (See the Charities Act 1993 s 33). The Charities Act 1960 s 28(9) (repealed) provided that the Charities Procedure Act 1812 and also the provisions of any local or private Act regulating the persons by whom or the manner or form in which charity proceedings may be brought should cease to have effect. The repeal did not, however, affect any proceedings begun before 1 January 1961 (i.e. the commencement of the Charities Act 1960): s.48(5) (repealed). The Charities Procedure Act 1812 (repealed), otherwise known as Romilly’s Act, provided a summary procedure on petition for determining simple questions arising in the administration of a charitable trust). ‘Charity proceedings’ means proceedings in any Court in England or Wales brought under the court’s jurisdiction with respect to charities (This phrase has been considered in Construction Industry Training Board v A-G  Ch 173,  2 All ER 1339, CA (affg  3 All ER 449,  1 WLR 1303) (decided under previous legislation). In the Charities Act 1993 s 33, ‘charity’ does not include an institution established under the laws of another legal system: Gaudiya Mission v Brahmachary  Ch 341,  4 All ER 974, CA.) or under the Court’s jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes. The definition does not include proceedings to determine whether a valid charitable trust has been created. The statutory provisions with regard to the taking of charity proceedings are concerned with jurisdiction over the domestic aspects of an institution, not with issues lying between the institution and outsiders. Charity proceedings relate to the constitution and administration of a charity, which are internal matters, as opposed to disputes over contract, tort or property rights between a charity and a third party, (i.e. under the Charities Act 1993 s 32. As to the Charity Commission 538-572) but they may involve as parties persons who are not trustees who have an interest in ensuring that the charity is properly administered (Charities Act 1993 s.33(6) (amended by the Charities Act 2006 s 75(1), Sch 8 paras 96, 125(1), (4)). Relator proceedings are now rare in practice).
Authority or permission to bring charity proceedings. Apart from proceedings by the Attorney General, those taken by the Charity commission under the powers conferred by the Charities Act 1993, (i.e. under the Charities Act 1993 s.32) and, until a day to be appointed, (As from a day to be appointed, the Charities Act 2006 s.12, Sch 5 para 8(1), (2) omits the exclusion of exempt charities in the Charities Act 1993 s.33(2)). The Commission must not, without special reasons, authorise the taking of proceedings where in its opinion the case can be dealt with by it under the other powers (i.e. powers other than those conferred by the Charities Act 1993 s.32) conferred by the Charities Act 1993 (Charities Act 1993 s 33(3) (amended by the Charities Act 2006 Sch 8 paras 96, 125(1), (3)).
If an order or the Commission has been applied for and refused, the proceedings may nevertheless be entertained or proceeded with if, after the refusal, permission to take the proceedings is obtained from one of the judges of the High Court attached to the Chancery Division (Charities Act 1993 s 33(5) (amended by the Charities Act 2006 Sch 8 paras. 96, 125(1), (4)). The application is made without notice at first and must be made within 21 days of the refusal of the order. As to the application for permission to take charity proceedings see CPR 64.6. Leave was not granted in a case concerning Dulwich College Picture Gallery: see the Report of the Charity Commissioners for England and Wales for 1979 (HC Paper (1979-80) no 608 paras 56-58).
These provisions do not make necessary an order for the taking of proceedings in a pending cause or matter, or for the bringing of any appeal (Charities Act 1993 s.33(4). The equivalent provision under the former legislation (i.e. the Charitable Trusts Act 1853 s.17 (repealed)) was held to mean pending at the date of the commencement of the proceedings in question: Re Lister’s Hospital (1855) 6 De GM & G 184. The question is to be determined on the facts of each case: Ford’s Charity (1855) 3 Drew 324: Re Jarvis’ Charity (1859) 1 Drew & Sm 97).
Under the former legislation it was held that where proceedings were commenced without the authority which ought to have been obtained, the proper course was to stay the proceedings to see if authority could be obtained (Rendall v Blair (1890) 45 Ch D 139, CA).
In the case of proceedings involving charities the general rules as to who are the proper parties. In a claim for the court to determine any question arising in the administration of a deceased person’s estate or the execution of a trust, for an order for the administration of a deceased person’s estate or for the execution of a trust: (1) all the trustees must be parties; (2) if the claim is made by trustees then any of them who do not consent to being a claimant must be a defendant; and (3) the claimant may make parties to the claim any persons with an interest in or claim against the estate, or an interest under the trust, who it is appropriate to make parties having regard to the nature of the order sought: CPR 64.4(1). This does not apply to the power of the High Court to authorise action to be taken in reliance on counsel’s opinion as to the construction of a will or trust under the Administration of Justice Act 1985 s 48; CPR 64.4(1). cf Re HMF  Ch 33,  2 All ER 795) are subject to two qualifications. In the first place, as already stated, only specified persons may take charity proceedings (See the Charities Act 1993 s 33(1); in the second place, the Attorney General is generally a necessary party (Where the Attorney General is a proper party, the Solicitor General is the proper person to take his place if the Attorney General’s office is vacant or if he is ill or concerned in the action in another capacity: R v Wilkes (1770) 4 Burr 2527 at 2554, HL, per Lord Mansfield; Ludlow Corpn v Greenhouse (1827) 1 Bli NS 17 at 51, HL, per Lord Redesdale; A-G v Bristol Corpn (1820) 2 Jac & W 294; A-G v Ironmongers’ Co (1834) 2 My & K 576; A-G v Dean and Canons of Windsor (1860) 8 HL Cas 369; Brookes v Richardson  1 All ER 952,  1 WLR 385. As to when the Attorney General is not a necessary party.
Before the creation of the High Court of Chancery, proceedings by the Attorney General ex officio or at the relation of plaintiffs were taken by information, it being a public privilege that the Crown should be entitled to intervene by its officer for the purpose of asserting a public right: A-G v Compton (1842) 1 Y & C Ch Gas 417 at 427 per Knight Bruce V-C. After 1873 these proceedings became actions commenced by writ: cf A-G v Shrewsbury Bridge Co (1880) 42 Lt 79. These actions were not affected by the abolition of Latin and English informations by the Crown Proceedings Act 1947 s 13, Sch 1; but, except so far as they are excepted by s 23(3)(a) as being relator proceedings, they appear to be civil proceedings by the Crown within s 23(1)(b)).
He may either act alone ex officio as the officer of the Crown and, as such, the protector of charities, or ex relatione at the request or a private individual, called a relator, who thinks that the charity is being or has been abused (A-G v Logan  2 QB 100 at 103, DC, per Wills J; and see A-G v Cockermouth Local Board (1874) LR 18 Eq 172 at 176 per Jessel MR. Except for the purposes of costs there is no practical difference between proceedings ex officio and ex relatione. Relator proceedings are now rare in practice).
With the sanction of the Attorney General an ordinary action may be turned into a relator action, by amendment of the particulars of claim. (Caldwell v Pagham Harbour Reclamation Co (1876) 2 Ch D 221 (reclamation of land covered by sea); Wallasey Local Board v Gracey (1887) 36 Ch D 593 at 599 per Stirling J (public nuisance). For earlier practice see President etc of St Mary Magdalen College, Oxford v Sibthorp (1826) 1 Russ 154; A-G v Newcombe (1807) 14 Ves 1 at 6 per Lord Eldon LC; A-G v Vivian (1826) 1 Russ 226; A-G v East India Co (1840) 11 Sim 380; A-G v Cuming (1843) 2 Y & C Ch Cas 139 at 149 per Knight Bruce V-C. If the claim is or becomes one within the statutory definition of ‘charity proceedings’ it should be begun by a claim form (see CPR 7.2 and PARA 589), but the court could, no doubt, permit it to proceed with particulars of claim (cf CPR 8.1(3)). The claim should normally be a CPR Part 8 claim). Otherwise claims of this kind, if instituted by parties other than the Attorney General or the Solicitor General are dismissed, (A-G v Hewitt (1804) 9 Ves 232; A-G v Green (1820) 1 Jac & W 303 at 305 per Lord Eldon LC; Strickland v Weldon (1885) 28 ChD 426; A-G v Wyggeston Hospital (1853) 16 Beav 313, where a petition presented in the name, but without the authority, of the Attorney General was dismissed) unless the Attorney General applies to be substituted (i.e. under CPR 19.2).
Duty of Attorney General and of court.
It has been held that it is not the duty of the Attorney General in all charity cases to contend for his strict legal rights when the result of enforcing them would be oppressive to individuals. If, however, he insists on his strict rights, the court will enforce them. (A-G v Brettingham (1840) 3 Beav 91 at 95 per Lord Langdale MR. See also Re Snowden, Shackleton v Eddy, Re Henderson, Henderson v A-G  Ch 700,  3 All ER 208).
The court formerly exercised a quasi-custodial jurisdiction over a charity when proceedings were brought for its regulation or administration. (See A-G v Governors of Harrow School (1754) 2 Ves Sen 551 at 552 per Lord Hardwicke LC: ‘though I will make no decree at present, yet I will not dismiss the information, but still keep a hand over them’. The principal example of this attitude was that the wrong prayer was never fatal in a charity case where it appeared that some relief might be given; cf A-G v Coopers’ Co (1812) 19 Ves 187 at 194 per Lord Eldon LC: ‘the court is not only to attend to an actual complaint but to see whether there is any cause for complaint’. Actions were generally not dismissed for want of form, though care was taken not to injure the defendant. These principles may be regarded as obsolete for general relief may now be given (see the Supreme Court Act 1981 s 49; and amendment to statements of case is more freely available (see CPR pt 17).
In addition, the Charity Commission has powers of supervision, guidance and inquiry in relation to charities).
Proceedings by trustees.
If the Attorney General declines to interfere in a dispute over the administration of a trust, and the trustees of the charity differ amongst themselves as to the proper mode of administration, a certain number may bring the matter before the court by a claim on behalf of themselves and others, making some of the dissentients and the Attorney General Defendants. (Lang v Purves (1862) 8 Jur NS 523 at 525, PC. Such proceedings would require the consent of the Charity Commission or the permission of the court. As to one or more of numerous parties suing or defending on behalf of all see CPR 19.6; A-G v Fowler (1808) 15 Ves 85 at 87; Milligan v Mitchell (1837) 3 My & Cr 72).
It is now relatively uncommon for the Attorney General to commence charity proceedings. It is more usual for one or more of the trustees to do so, making any dissentient trustees, as well as the Attorney General, defendants: see Varsani v Jesani  Ch 219,  3 All ER 273, CA).
Court’s discretion. Modern practice of the courts has been to consider what is in the interests of the charity in deter mining the issues arising in the case, and if it considers that the proceedings themselves are against its interests it will make this very clear, and either encourage the parties to settle or refuse relief on grounds of expense. (See e.g. Governing Body of the Henrietta Barnett School v Hampstead Garden Suburb Institute (1995) 93 LGR 470, sub nom Re Hampstead Garden Suburb Institute (1995) Times, 13 April; Varsani v Jesani  Ch 219,  3 All ER 273, CA. However, there are many cases in which the sole question for the court is whether proposed proceedings are in the interests of the charity: see e.g. Weth v A-G (3 December 1997, unreported); affd  EWCA Civ 263,  All ER (D) 314 (Feb) (proposed appeal against appointment of receiver and manager for charity held not in the interests of the charity because of charity’s limited financial resources). By its wide discretion over costs the court can discourage parties taking useless proceedings even if the proceedings are sanctioned by the Attorney General. (A-G (ex rel Everett and Bottomley) v Merchant Tailors’ Co (1834) 5 LJCh 62; but see A-G v Cullum (1836) 1 Keen 104).
Instead of acting accordingly to the strict rules of law, the court had discretion to refer matters arising out of proceedings to the Attorney General, and to act on his certificate or report: A-G v Exeter Corpn (1827) 2 Russ 362 (where the court referred the matter to the Attorney General to certify whether a charity might accept from its debtor a smaller sum than was actually due); A-G v Green (1820) 1 Jac & W £03; A-G v Carlisle Corpn (1831) 4 Sim 275; A-G v Pretyman (1841) 4 Beav 462 at 467 per Lord Langdale MR; A-G v Tufnell (1849) 12 Beav 35 at 41 per Lord Langdale MR; and see A-G v Brettingham (1840) 3 Beav 91 (where, in a hard case, the decision was postponed in order that the Attorney General might come to some arrangement). However, questions arising on the construction of wills and other documents were not referred to the Attorney General: A-G v Fea (1819) 4 Madd 274).
The court has disapproved of charity proceedings being promoted by public meetings and supported by public subscriptions. (A-G v Bishop of Worcester (1851) 21 LJCh 25 at 46 per Turner V-C).
Actual or contemplated breaches of trust may be restrained by injunction. (Rigall v Foster (1853) 18 Jur 39 (to restrain improper mortgage by charity trustees); A-G v Welsh (1844) 4 Hare 572 (to prevent user of chapel for unauthorised form of worship); A-G v Murdoch (1849) 7 Hare 445 (affd (1852) 1 De GM & G 86); Cooper v Gordon (1869) LR 8 Eq 249 (to restrain ministers from officiating); Milligan v Mitchell (1833) 1 My & K 446 (to prevent election of unlicensed minister). When necessary a claim for an injunction may be brought by a trustee against his co-trustees. (Re Chertsey Market, ex p Walthew (1819) 6 Price 261 at 279; Perry v Shipway (1859) 4 De G & J 353 (where an improper retainer of a chapel by the minority of the trustees was prevented by the majority).
Compromise. Questions relating to charities may be compromised and the terms of the compromise confirmed by the court. (This may happen, for example, in cases where it is doubtful whether a bequest or devise to charity is valid, and a compromise is arrived at by a division of the property between the charity and other claimants, such as the persons entitled on intestacy, and residuary legatees: A-G v Landerfield (1743) 9 Mod Rep 286; Re Simpson’s Will (circa 1786) cited in 5 Ves 304; A-G v Bishop of Oxford (1786) cited in 4 Ves 431; Andrew v Master and Wardens of the Merchant Taylors’ Co (1800) 7 Ves 223; Andrew v Trinity Hall, Cambridge (1804) 9 Ves 525 at 532-533 per Grant MR. See also A-G v Trevelyan (1847) 16 LJCh 521 and Re Freeston’s Charity, Sylvester v Master and Fellows of University College, Oxford  1 WLR 741, CA, without discussing this point).
Trustees for charities have power to compromise claims under the Trustee Act 1925. (See the Trustee Act 1925 s 15) In addition, a compromise may be approved by the Charity Commission under the Charities Act 1993. (See the Charities Act 1993 s 26(2)).
Where the Attorney General is a party to any legal proceedings affecting a charity, no compromise can be enforced without his sanction. Andrew v Master and Wardens of the Merchant Taylors’ Co (1800) 7 Ves 223; Andrew v Trinity Hall, Cambridge (1804) 9 Ves 525 at 532-533 per Grant MR; A-G v Exeter Corpn (1827) 2 Russ 362; A-G v Fishmongers’ Co (1837) Coop PR Cas 85; A-G v Ludlow Corpn (1842) 6 Jur 1003; A-G v Trevelyan (1847) 16 LJCh 521; A-G v Boucherett (1858) 25 Beav 116). Where, in proceedings in which a charity is cited but does not appear, the Attorney General assents to a compromise on behalf of the absent charity, that charity is bound by the compromise. (Re King, Jackson v A-G  2 Ch 420).
Attorney General a necessary party. The Attorney-General (The Solicitor General may in some circumstances discharge the Attorney General’s functions) is a necessary party to all charity proceedings, (The Attorney General’s right to file an information (which was the procedure prior to the creation of the High Court of Chancery), and consequently his right to take proceedings today, was founded on the Crown’s prerogative as parents patriae to inform the court of and demand a remedy for an injustice perpetrated against a subject of the Crown (e.g. a charity) who was incompetent to enforce a claim in person: see Shelford’s Law of Mortmain (1826) 399; A-G v Brown (1818) 1 Swan 265 at 291; Wellbeloved v Jones (1822) 1 Sim & St 40; A-G v Compton (1842) 1 Y & C Ch Cas 417 at 427 per Knight Bruce ~V-C; A-G v Magdalen College, Oxford (1854) 23LJCh 844 at 852 per Romilly MR. See also Re Weir Hospital  2 Ch 124 at 130, CA; Re Belling, Enfield London Borough Council v Public Trustee  Ch 425  1 All ER 105; Hauxwell v Barton-upon-Humber UDC  Ch 432  2 All ER 1022. Moreover, the Attorney General is the protector of the interests of all charities beneficially entitled under charitable gifts, and all beneficiaries are bound if he is made a party: Re Sekeford’s Charity (1861) 5 LT 488; Ware v Cumberlege (1855) 20 Beav 503), other than any commenced by the Charity Commission, (Practice Direction – Estates, Trusts and Charities PD 64 para 7 refers to the Charity Commissioners rather than the Charity Commission; however, this has effect as if it were a reference to the Charity Commission for England and Wales: see the Charities Act 2006 s 6(5); and PARA 538), and must be joined as a defendant if he is not a claimant.(Practice Direction – Estates, Trusts and Charities PD 64 para 7).
Thus where proceedings are necessary to test the validity of an alleged charitable gift, (See e.g. Kirkbank v Hudson (1819) 7 Price 212), even where the class to benefit is a foreign community,(See Re Love, Naper v Barlow  WN 17 (gift for benefit of parishes in Republic of Ireland: Attorney General of the Republic held not to be a proper party and struck out; Attorney General directed to be added), or to determine whether a claim to the benefit of a charity is properly founded,(Re Magdalen Land Charity, Hastings (1852) 9 Hare 624, where the proceeds of the charity had for many years been applied for other purposes), or to enforce the execution of a charitable purpose, or to remedy abuse or misapplication of charitable funds, or to administer a charity, the Attorney General is generally (Wellbeloved v Jones (1822) 1 Sim & St 40; Ware v Cumberlege (1855) 20 Beav 504; Boughey v Minor  P 181 (compromise). The cases distinguish between gifts for charity generally, which cannot be represented by anyone other than the Attorney General, and cases where there are specified individual charities, when the Attorney General’s presence is not universally necessary. However, if there is a gift to charity trustees and the question is whether the trust is validly established, the persons named as trustees are the proper parties, and it may not be necessary for the Attorney General to be a party: Practice Note  WN 38. See also Re HMF  Ch 33,  2 All ER 795) a necessary party (Wellbeloved v Jones (1822) 1 Sim & St 40; Christ’s Hospital Governors v A-G (1846) 5 Hare 257 (Attorney General as defendant); Phillips v A-G  WN 100 (dormant fund, raised by subscription; cy-près application; Attorney General as defendant), and is normally the proper claimant. (Strickland v Weldon (1885) 28 Ch D 426 at 430 per Person J; Re Belling, Enfield London Borough Council v Public Trustee  Ch 425,  1 All ER 105; Hauwell v Barton-upon-Humber UDC  Ch 432,  2 All ER 1022; but see Baldry v Feintuck  21 All ER 81,  1 WLR 552, where the Attorney General was not a party. When appearing on behalf of a charity, the Attorney General is not like an ordinary claimant endeavouring to obtain redress for a private wrong. It is one of his duties to protect the defendant against any hardship which he might suffer at the hands of the relators, e.g. if they mislead him or withhold documents or other necessary information: A-G v Clapham (1853) 10 Hare App II, 1xviii at 1xx per Wood V-C. Although the Attorney General is a proper claimant, he is most often involved as the defendant. Relator proceedings are now rare in practice.
In High Court proceedings for the construction of wills or other documents or by personal representatives for directions, the Attorney General, if a party where a charity is concerned, is usually made a defendant: see e.g. Re Lawton, Gartside v A-G  3 All ER 378 (question whether bequest should lapse or be applied cy-près)).
He represents the beneficial interest, in other words the objects, of the charity.(A-G v Brodie (1846) 6 Moo PCC 12; A-G v Bishop of Worcester (1851) 9 Hare 328 at 361 per Turner V-C; Ware v Cumberlege (1855) 20 Beav 503; Re Sekeford’s Charity (1861) 5 LT 488. See also Brooks v Richardson  1 All ER 952,  1 WLR 385). Even if all the subscribers to a charitable fund are made claimants, a claim for the regulation of the charity is defective unless the Attorney General is also a party. (Stickland v Weldon (1885) 28 ChD 426. See also Minn v Stant (1851) 15 Beav 49, where, for a special transaction, it was held that the subscribers were necessary parties; but see Baldry v Feintuck  2 All ER 81,  1 WLR 552).
‘Charity proceedings’ are defined by s.33(8) of CA 1993 as ‘proceedings in any court in England or Wales brought under the court’s jurisdiction with respect to charities, or brought under the court’s jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes’. It is important to ascertain whether or not proposed proceedings are charity proceedings because, by s.33(2) of CA 1993, charity proceedings relating to a charity (other than an exempt charity (An exempt charity is an institution comprised in CA 1993, Sch 2 or a common investment fund admitting only exempt charities: CA 1993, s.24*8), (9) will be entertained or proceeded with in any court unless the taking of the proceedings is authorised by order of the Charity Commissioners for England and Wales.
Charity proceedings include all proceedings seeking relief in the administration of a charitable trust (Holme v Guy (1877) 5 Ch D 901). Examples of charity proceedings are:
It seems that charity proceedings include an application for judicial review of a decision made by a charitable corporation (Scott v National Trust  2 All ER 705).
Charity proceedings are almost invariable commenced in the High Court, where they are assigned to the Chancery Division (CPR Sch 1, RSC Ord. 108, r.2).
Charity proceedings may be taken with reference to a charity:
but not by any other person (CA 1993, s.33(1)). No difficulty arises in relation to proceedings by the charity itself (i.e. by a charitable corporation) or by charity trustees. A local charity is a charity established for purposes which are by their nature or by the trusts of the charity directed wholly or mainly to the benefit of an area or of a part of it (CA 1993, s.33(1)). There is no statutory definition of a person interested in a charity, and the courts have declined to provide a definition. However, in Re Hampton Fuel Allotment Charity, ( Ch 484) Nicholls L.J. considered that ‘person interested’ should not be given a narrow meaning, but that such a person generally needs to have an interest materially greater than or different from that possessed by ordinary members of the public. In Scott v National Trust, (Scott v National Trust  2 All ER 705) the court held that tenant farmers and hunt members were persons interested in a decision of the National Trust not to renew licences to hunt red deer on certain of the Trust’s estates. Charity proceedings can also be taken by the Attorney-General (CA 1993, s.33(6)) and the Charity Commissioners (CA 1993, s.32.
In the case of other proceedings relating to charity, the choice of claimant will depend on the nature of the proceedings.
In relation to proceedings to resolve a bona fide dispute as to whether a charitable trust exists, the claimants will normally be:
Proceedings claiming that a charitable trust does exist can be brought only by the Attorney-General (Hauxwell v Barton-upon-Humber UDC  Ch 432) or the Charity Commissioners (CA 1993, s.32).
The interests of a charity in charity proceedings are protected by the Attorney-General as representative of the Crown. Thus, the objects of a charitable trust are not joined as parties to charity proceedings, but the Attorney-General must be joined (unless the proceedings are taken by the Charity Commissioners under s.32 of CA 1993: see s.32(4). The Attorney-General must be joined as a party not only to charity proceedings but also to any other proceedings where the interests of the charity require protection by the Attorney-General. There are a considerable number of old authorities which consider the question of when it is necessary to join the Attorney-General, and they draw some very fine distinctions (for a consideration of the authorities, see Tudor on Charities (8th edn, Sweet & Maxwell, 1995) pp.351-354). In practice, the safest course is always to consult with the Treasure Solicitor (who acts as a solicitor to the Attorney-General) before starting proceedings relating to the charity to ascertain whether the Attorney-General needs to be joined as a party.
Subject to the position of the Attorney-General, the ordinary rules apply to determine who should be joined as defendants. All persons having an interest in the subject-matter of the proceedings, whether as trustee of beneficiary, should be joined as parties. Where there are numerous parties in the same interest, it is usually possible to avoid joining all of them as individual parties by seeking a representation order (CPR, r.19.6). All charity proceedings and many other proceedings relating to charity fall within CPR, r.19.7 as being proceedings concerning:
In such proceedings, the court can appoint a person to represent any other person or persons in the claim where the person or persons to be represented:
An application for a representation order may be made by the person seeking to be appointed or by any party to the claim and may be made at any time before or after the claim has started (CPR, r.19.7(3). An application notice for a representation order must be served on:
Unless the court otherwise directs, any judgment order given in a claim in which there is a representation order: