Sulaiman Ali & Ors v The Imam of Bury Park Jame Masjid Luton Abdul Bari & Ors

Judicial review requires a public-law element. A decision does not become amenable to judicial review merely because it affects many people, concerns an important area of public life, or has possible public consequences.

Where authority derives from a consensual constitution and a private-law relationship, the dispute remains private law, even if a court order refers a matter to a person for decision. The existence of another effective remedy, and the fact that the decision affects only members of a limited private association, reinforce that conclusion. Contractual controls and ordinary court remedies for domestic tribunals do not themselves make judicial review available.

The appeal arose from a dispute within a Luton mosque community concerning the validity of its constitution, trustees and executive committee. The Chancery Division directed the existing committee to compile an electoral roll and referred disputes about the roll to the Imam, whose decision was to be final.

The Imam excluded or refused to add various names, including alleged contributors and female members. An application in the Chancery Division was dismissed. Mr Justice Auld subsequently dismissed an application for judicial review, holding that the Imam’s function lacked a public-law element and that the evidence would not have established partiality or malice. The central issue was whether judicial review was available.

1. Appeal dismissed. The court unanimously upheld Mr Justice Auld’s conclusion that the application for judicial review was misconceived. Lord Justice Roch delivered the principal judgment, and Lord Justice Balcombe agreed.
2. The essential question was whether the appellants sought performance of a public duty by a public or similar authority, or enforcement of a public-law right. The presence of a public element is relevant, but it is not established simply because a decision is important, affects the public, or has consequences for public order. The source of the power and the character of the function must be examined, applying the approach in R v Panel on Take-overs and Mergers, ex parte Datafin plc and another [1987] QB 815 and the passage approved from R v Chief Rabbi, ex parte Wachman [1992] 1 WLR 1036.
3. The Mosque constitution was, in English law, a consensual arrangement between members of the Mosque community. Its construction and application were matters of contract. The Imam’s authority came from the Chancery order, which bound the parties to the Chancery proceedings; it did not convert the private dispute into a public-law function. The Imam was not a statutory, prerogative or otherwise public authority.
4. The fact that the Chancery Court had invited the Imam to decide the electoral-roll disputes did not alter the analysis. He had agreed to undertake the task and could not have been compelled to do so. The function affected a limited class of persons, namely members of the Mosque community, rather than citizens generally.
5. The religious character of some issues did not itself create a public-law element. Nor did the absence of a Muslim religious court in the United Kingdom. The appellants had an effective private-law route through the Chancery Court, including the liberty-to-apply procedure, and its order could have been appealed.
6. The court accepted that domestic tribunals must observe natural justice and cannot exclude the ordinary courts from examining errors of law. Those principles, explained in Lee and the Showmen’s Guild of Great Britain [1952] 2 QB 329, supported private-law remedies such as declaration and injunction; they did not make judicial review available.
7. Lord Justice Balcombe refused to allow a new argument based on the Arbitration Act 1979. It had not been raised below or in the notice of appeal, and the statutory consent or leave requirements had not been satisfied. The appeal was dismissed with costs.

• Court of Appeal (Civil Division) [1993] EWCA Civ 36: appeal dismissed, with costs.
• High Court of Justice, before Mr Justice Auld: application for judicial review dismissed because the Imam’s function lacked a public-law element. The judge also stated that the evidence did not establish partiality or malice.
• Chancery Division, before Mr Justice Mervyn Davies: purported constitutional amendments and elections were declared invalid. The existing committee was directed to compile a new electoral roll, and the Imam’s decision on disputes about the roll was made final. A subsequent application under the liberty-to-apply provision was dismissed.