Dean v Burne & Ors

Clause 4 of a charitable trust deed, enabling a body to identify successors when doubt arises about continuity or identity, is triggered only by a genuine and reasonable doubt that the relevant religious community continues as an identifiable functioning body. Differences about worship, religious practice, governance or ecclesiology do not themselves trigger the power where the community and its activities continue. The court construed corresponding parish and diocesan provisions alike. A charity scheme should not be raised as an afterthought in proceedings directed to different relief. An applicant normally requires the Charity Commission’s authority, appropriate evidence and a properly formulated application.

Two charity proceedings concerned the validity of resolutions passed by the Parish Council and Diocesan Assembly of Russian Orthodox communities. The resolutions purported to declare bodies aligned with the Ecumenical Patriarchate to be successors of the London Parish and the Diocese of Sourozh, whose trust property had previously been associated with the Moscow Patriarchate.

The claimant argued that the trust deeds’ successor provisions had not been triggered because the Parish and Diocese continued in existence. The defendants relied on substantial changes in membership, religious practice and ecclesiastical allegiance. A further issue concerned whether the court should initiate or direct a cy-près scheme under the Charities Act 1993.

1. Construction of clause 4. The successor provisions were concerned with the continuity of the life of the relevant Parish or Diocese and the identity of the body, community or congregation entitled to the trust benefit. “Doubt” meant a matter genuinely and reasonably regarded as giving rise to doubt.
2. Differences in religious practice, daily conduct, voluntary support, ecclesiological outlook or the degree of control exercised by a Patriarchate did not, without more, trigger clause 4. The relevant question was whether the community remained a functioning and identifiable body of Orthodox Christians, rather than whether its members agreed about how its religious life should be conducted.
3. The evidence established that both the Parish and the Diocese continued in existence and that their activities continued after Bishop Basil’s departure. There was therefore no relevant doubt by May 2006. The resolutions passed in June and July 2007 were consequently unauthorised and ineffective. The corresponding clause in the Diocesan trust deed had the same meaning.
4. The court considered, but did not need to decide, whether “and” in clause 4 was conjunctive or disjunctive. The judge’s provisional view was that it was disjunctive, since doubt about identity might arise even where the institution’s life continued.
5. The Attorney-General was properly involved in charity proceedings. Her protective role did not require her to advance an untenable case for one charitable interest against another, particularly where competing representatives were parties but declined to participate.
6. No cy-près scheme was ordered or indicated. A scheme had not been properly pleaded or authorised, and the evidence had not been directed to that issue. Any person seeking one should first obtain the Charity Commission’s authority under section 33 of the Charities Act 1993 and support the application with appropriate evidence.