Park v Cho & Ors

Authorisation under section 115 of the Charities Act 2011 may be granted retrospectively where the statutory language does not make prior authorisation a condition of validity. The phrase “taking of proceedings” includes taking procedural steps in proceedings already commenced, including enforcement of an existing costs order. A Charity Commission order may therefore authorise continuation or enforcement without expressly validating the proceedings from their inception. Orders previously made remain effective unless set aside on appeal. A stay is inappropriate merely because a party indicates an intention to seek permission to appeal long-standing orders.

The claimant brought proceedings concerning the election of the chairman of the Korean Residents Society. Judgment and a costs order were made in his favour. The proceedings were later stayed after it was argued that they were charity proceedings requiring authorisation.

The Charity Commission authorised the claimant to take or continue enforcement proceedings if they fell within section 115 of the Charities Act 2011. Master Marsh lifted the stay. The first and second defendants appealed, arguing that the Commission had not authorised the proceedings from their inception, that enforcement was prohibited, and that the earlier orders were invalid or liable to be set aside.

1. Appeal and stay. Permission to appeal was refused. There was no proper basis for staying the existing judgment and costs order merely because the defendants indicated an intention to seek permission to appeal orders which had stood for several years without challenge.

2. Retrospective authorisation. The court respectfully agreed with the analysis in In Re Saunders [1997] Ch 60. In the absence of emphatic statutory language making prior authorisation a condition precedent to valid proceedings, failure to obtain authorisation initially does not make proceedings an irretrievable nullity. Authorisation may be granted retrospectively, including by authorising continuation.

3. Meaning of “taking of proceedings”. Section 115(4) of the Charities Act 2011, which addresses proceedings in a pending cause or matter, shows that “taking of proceedings” is not confined to initiating a claim. It includes taking steps within existing proceedings. The court therefore approved the approach in Ford’s Charity (1855) 3 Drew 324 concerning a matter pending.

4. Effect of the Commission’s order. Although the Commission had proceeded on the mistaken assumption that it could not authorise the original proceedings retrospectively, its order validly authorised the enforcement step within those proceedings. The stay condition was therefore satisfied. The judgment and costs orders remained effective, though vulnerable to challenge on appeal, applying the reasoning of Strachan v The Gleaner Co. Limited [2005] 1 WLR 3204.

• High Court (Chancery Division): Master Marsh ordered that the stay be lifted on 4 July 2013 after the Charity Commission’s authorisation.
• High Court (Chancery Division): The deputy judge refused permission to appeal and upheld the lifting of the stay.