Khaira & Ors v Shergill & Ors

Religion does not, by itself, remove a civil dispute from the jurisdiction of the courts. Courts may determine property, contract and statutory rights despite a religious context. However, a dispute is non-justiciable where its resolution requires the court to decide the truth, merits or sincerity of religious belief, or the correctness of religious practice. Construction of a trust deed is insufficient where identifying a person as a religious successor requires criteria drawn from doctrine and practice. Judicial assessment of conflicting testimony, the balance of probabilities, a head count or majority acceptance cannot replace judicially manageable standards. A claim concerning trustee appointment and removal should therefore be halted where its foundation is a disputed claim to religious succession rather than an objectively ascertainable civil right.

The claimants and defendants disputed the trusteeship and governance of Sikh Gurdwaras at Birmingham and High Wycombe. The claimants relied on trust deeds conferring powers on the First Holy Saint or his successor, and alleged that the ninth claimant was the successor entitled to remove and appoint trustees. The proceedings and counterclaim were connected with orders made by the Charity Commission under section 33 of the Charities Act 1993.

HHJ David Cooke dismissed the defendants’ application to strike out or stay the proceedings on grounds of non-justiciability and permitted amendments to the claim. The appeal concerned whether the question of the ninth claimant’s religious succession, and consequent entitlement under the trust deeds, could be determined by an English court.

Lord Justice Mummery, with whom Lord Justices Hooper and Pitchford agreed, would allow the appeal.

1. Principle. The courts abstain from deciding the truth, merits or sincerity of differences in religious doctrine or belief, and the correctness or accuracy of religious practice, custom or tradition. The principle is inherent in the judicial process, not a matter of discretion. It reflects the absence of judicial or manageable standards for deciding matters outside judicial competence: Buttes Gas and Oil v Hammer (No 3) [1982] AC 888.
2. Limits of the principle. Religion does not create a civil rights-free zone. Courts can determine civil rights, including property, contract and statutory employment rights, where the issue is capable of resolution by legal methodology. The Free Church case concerned the civil administration of trust property and whether a body had departed from the defining tenets forming its bond of union: General Assembly of Free Church of Scotland v Lord Overtoun [1904] AC 515. That reasoning did not govern succession to a holy spiritual office. The court also referred to Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73; [2006] 2 AC 28 as an example of adjudication of employment rights despite a religious element.
3. Application. The expression successor in the trust deeds could not resolve the dispute by construction alone. The deeds supplied no objective criteria for deciding whether the ninth claimant occupied the relevant spiritual position. Determining that question would require investigation of Sikh doctrine and practice and assessment of conflicting inward beliefs and allegiances. It could not properly be achieved by ordinary witness assessment, the balance of probabilities, counting heads or identifying a voting majority, whether or not expert evidence were available.
4. Disposition. The issue whether the ninth claimant was the successor entitled to appoint or remove trustees was therefore non-justiciable. The proceedings had no realistic future in the courts and should be brought to a halt. It was unnecessary to permit the other pleaded issues or proposed amendments to proceed.

1. Court of Appeal (Civil Division): allowed the defendants’ appeal and held that the central succession issue was non-justiciable.
2. High Court of Justice, Chancery Division, Birmingham District Registry: on 12 September 2011, HHJ David Cooke dismissed the application to strike out or stay the proceedings, dismissed an application for security for costs, and granted permission to amend the Particulars of Claim.