Gaudiya Mission v Brahmachary

An institution is a charity under the Charities Act 1993 only if it is established for exclusively charitable purposes under the law of England and Wales and is subject to the High Court’s charity jurisdiction. An institution constituted under foreign law does not acquire that status merely by conducting charitable activities or holding assets in England and Wales.

The High Court may supervise an English charity whose beneficiaries or objects are abroad. It does not ordinarily administer or settle a scheme for a foreign charity. Proceedings concerning such an institution are not charity proceedings requiring authorisation under section 33 solely because they concern its English activities or property.

The Gaudiya Mission was incorporated and registered in Calcutta and enjoyed charitable status in India. It operated a temple in London and claimed ownership and control of the temple, its funds and associated assets in proceedings against members of a rival faction.

A Deputy High Court Judge held that the Mission was a charity for the purposes of the Charities Act 1993, at least in relation to its English activities and property. He joined the Attorney-General and granted leave under section 33(5) to continue the proceedings.

The Attorney-General appealed. The central issue was whether a foreign institution became a charity within the 1993 Act because it conducted charitable activities and held property in England, thereby becoming subject to the High Court’s charity jurisdiction.

1. Appeal allowed unanimously. Mummery LJ delivered the leading judgment. Morritt LJ agreed, and Leggatt LJ agreed with Mummery LJ’s reasons. The Deputy Judge’s order was set aside. The Attorney-General ceased to be a party, and the court declared that the plaintiffs required no leave to take or continue the proceedings.
2. Under sections 96(1) and 97(1) of the Charities Act 1993, an institution must satisfy two connected requirements. It must be established for purposes exclusively charitable according to the law of England and Wales, and it must be subject to the High Court’s control in the exercise of its charity jurisdiction. The Act’s territorial extent, regulatory scheme and enforceability requirements show that it was not intended to encompass institutions constituted under foreign law.
3. The English charity jurisdiction distinguishes between an English charity with overseas objects and a foreign charity. The High Court may make schemes for an English trust even where its beneficiaries or activities are abroad. It does not ordinarily administer, settle a scheme for, or assume supervision over an institution established under another legal system. Its foreign administrators and property may be beyond effective judicial control, and an attempt to regulate the institution would conflict with comity.
4. The Mission was constituted and registered in India. Its activities and assets in England did not make it an English charity or subject it to the High Court’s special charity jurisdiction. The proceedings were therefore not proceedings relating to a charity for the purposes of section 33(2), even if the Mission’s objects were assumed to be exclusively charitable under English law.
5. The Court followed Camille and Henry Dreyfus Foundation Inc v Inland Revenue Commissioners [1954] 1 Ch 672, affirmed by the House of Lords at [1956] AC 39. To the extent that the expressly obiter observations in Re Duncan (1867) 2 LR Ch App 356 suggested that English expenditure by a foreign charity could attract the Commissioners’ jurisdiction, Mummery LJ held that they did not represent the present law.
6. The judgment did not decide whether the Mission’s objects were exclusively charitable under English law or determine other jurisdictional or procedural objections. Nor did it restrict the Attorney-General’s general constitutional role as protector of charity, although joinder was neither necessary nor proper in this case.

1. Court of Appeal: Allowed the Attorney-General’s appeal unanimously, set aside the Deputy Judge’s order, removed the Attorney-General as a party and declared that leave was unnecessary.
2. High Court: Mr David Oliver QC, sitting as a Deputy High Court Judge, held that the Mission was a charity for the purposes of the Charities Act 1993. He joined the Attorney-General and granted leave under section 33(5) to take and continue the proceedings.