Rosenzweig v NMC Recordings Ltd

For the purposes of charity proceedings, a person may be “interested in the charity” without being a beneficiary, but must show an interest materially greater than or different from that of ordinary members of the public. A specific application to the charity, supported by a substantial and individual connection with its objects, may satisfy that threshold.

Permission remains a protective filter. The court may refuse authority where the proposed proceedings have no real prospect of success, are improperly focused on personal benefit, or would expose charitable assets to disproportionate depletion. The court does not assess the artistic merit of works or substitute its judgment for that of charity trustees.

Michael Rosenzweig, a contemporary music composer, applied under section 115(5) of the Charities Act 2011 for permission to continue charity proceedings against NMC Recordings Ltd, a charity promoting and recording contemporary music.

He alleged that the charity’s trustees had acted improperly by failing to record or promote his works because of personal hostility by its Executive Producer. The Charity Commission had twice refused authority for proceedings. The issues were whether Mr Rosenzweig was a “person interested in the charity” under section 115(1), and, if so, whether permission should be granted.

1. Application refused. The claimant was a “person interested in the charity” for section 115 purposes, but permission to prosecute the charity proceedings was refused.
2. The expression “person interested in the charity” is not defined by the Charities Act 2011. The authorities show that the claimant must have a good reason for invoking the court’s jurisdiction and an interest materially greater than or different from that of ordinary members of the public. The court must consider all the circumstances.
3. A general interest as a living composer whose work might fall within the charity’s objects was insufficient. The claimant’s specific application for inclusion in the charity’s recording programme, his asserted professional benchmarks, and the charity’s recognition of him on its musical map were, taken together, sufficient to establish the necessary interest.
4. The requirement for permission operates as a protective filter. The court should prevent charitable assets being spent on proceedings that do not serve the charity’s interests, particularly where the claim is inadequately pleaded, has no legally sustainable basis or real prospect of success, and is likely to exhaust or destroy the charity’s resources.
5. The allegations did not establish that the trustees’ decisions were displaced by personal animosity or that they had acted in breach of trust or duty. The claim principally pursued the claimant’s personal benefit and relied partly on historical events unrelated to the charity. The court could not determine whether the claimant’s works deserved promotion, and made no finding on their artistic merit.
6. The claimant was ordered to pay £15,000 to the Access to Justice Fund under CPR 44.3C, with the sum payable by 17 January 2014.

First-instance decision. No prior appellate decision is stated in the judgment.