ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HONORABLE MR JUSTICE EADY
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE SEDLEY
Between:
THE NORTH LONDON MOSQUE TRUST | Appellant |
- and - | |
THE POLICY EXCHANGE AND ANOTHER | Respondent |
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Ms Adrienne Page QC and Mr Richard Munden (instructed by Farooq Bajwa and Co) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
Judgment
Lord Justice Sedley:
This is a renewed application for permission to appeal following refusal by Sir Richard Buxton of permission on sight of the papers. It is made by Ms Page QC in an action for libel brought initially in the name of the North London Central Mosque Trust against critics who, as I will readily accept for present purposes, have unjustifiably and unfairly defamed it.
Although the point was taken late, it was eventually asserted by the defendants, and is now accepted by the appellants, that such an action cannot be maintained in the name of the Trust, firstly because a trust is not a legal person, but an equitable relationship; and, secondly, because there is no legal provision which gives it locus or deems it to be a legal person.
The application before Eady J, this being conceded, therefore took the form of the appellants’ application to substitute themselves, namely the Trustees, as claimants. Importantly and logically, no relevant amendment was proposed to the pleaded case itself because the explicit purpose of the proposed substitution was still to vindicate the charity’s -- that is the Trust's -- reputation, not the reputations of the Trustees themselves. Put another way the object was to constitute the Trustees representative claimants on behalf of the Trust, although that of course could not in strict terms be done.
This was the critical point which led Eady J to refuse the application and accordingly to strike out the claim:
"In my judgment the lack of capacity is a fundamental problem of substance, rather one of form, which cannot be cured by putting up individuals who do not wish to sue on their own account, as was at one stage contemplated, but to do so in a representative capacity. Who or what is it that they wish to represent?"
Ms Page submits that the problem is not one of substance but one of form, and that the form which she seeks to adopt is adequate for the pursuit of the action. Much of her and Mr Munden's skeleton argument is devoted to establishing that there is no good reason why, in one form or another, an unincorporated association cannot sue for libel. That is without doubt arguable, but what makes it arguable is that it treats such an association as the totality of its members, each of whom does have standing to sue. Similarly, I would have no difficulty in accepting that, provided the pleaded facts warranted it, the Trustees of a charitable Trust, albeit unincorporated, could be actionably defamed as individuals by a slur against the Trust itself. But neither of those is a principle of which Ms Page is now seeking to take advantage. Her aim is precisely not to make any claim on behalf of the Trustees themselves, albeit that they might well have been able to say that a slur on the Mosque Trust was a slur on them.
I have explored with Ms Page in argument the reasons for seeking to make this distinction. While it is not necessary for me to make any finding about it, it seems to me likely that, while in the event of defeat the Trustees, even on the amended version of the action, would be liable for costs, they would, if they were suing to vindicate the Trust's reputation and not their own, have a claim for indemnification out of the Trust’s funds. That is something that they would not expect to have if they were suing solely to vindicate their own reputations.
That, however, is not a matter upon which the court is required to pass judgment; it is merely an explanation of why this apparently arid distinction is sought to be made. Its basis is perhaps most crisply summarised at paragraph 11 of the skeleton argument in these four propositions:
That a charitable trust is an entity possessing sufficient of the attributes of legal personality to have an existence in law and a reputation of its own, separate and distinct from its trustees, capable of being the subject of a defamation claim. This is sometimes referred to as ‘quasi corporate’ status.
By analogy with any of: a corporate charity, an unincorporated commercial entity, a trade union or other quasi corporate entity, the distinct character of goodwill of a charitable trust can be injured and its operations impaired, to its financial detriment, by the publication of defamatory matter.
It follows that, in the absence of any express statutory prohibition, there is no reason in law for a charitable trust to be refused access to the Court in a claim for libel upon itself.
In the absence of any procedural rule providing for it to sue or be sued in its registered name, the charity's libel claim is properly brought in the name of its trustees."
In support of those propositions Ms Page has submitted that there is a line of passing-off cases which is of assistance to her because the kind of property that passing off protects is not dissimilar to the kind of property that libel protects. One is the decision of, as he then was, Mr Lawrence Collins QC in Artistic Upholstery Limited v Art Forma (Furniture) Limited [1999] 4 AER 277. I am very doubtful whether that decision is more than a rehearsal of the uncontentious proposition that an injury to an unincorporated association may sound in damages as an injury to its individual members. Perhaps more assistance is derived by Ms Page from the decision of this court in Burge v Haycock [2001] EWCA Civ 900. That case was brought on behalf of an unincorporated charitable organisation, but in the names of the Chief and Deputy Chief Executive of it. The headnote includes at paragraph (6) of the holdings this proposition:
"A claimant in a passing off action could be a charitable organisation or a professional institution which did not carry on commercial activity in the ordinary sense of the word, but which nonetheless had a valuable property in the sense of its goodwill. If the elements of passing off were made out, the claimant was entitled to protect that goodwill."
A panoply of authority is cited for that proposition. Given that that was an unincorporated association, it may be that there is a scintilla of an argument there to support Ms Page's position in the present case.
If I were deciding this on the ordinary basis of whether there was a realistic prospect of oversetting Eady J’s decision, I would have to say that I do not think there is such a prospect. But it may be nevertheless that what Ms Page has advanced merits the attention of this court, because we have reached the stage where very fine lines are having to be drawn about the constitution and status of libel claimants, and it may be that a degree of clarity about the matter at this level would be of general assistance. Ms Page and her clients understand very well what the cost implications are of bringing an appeal and losing it. It will be a matter for them to decide whether to pursue it, but it seems to me that, on the residual ground afforded by Rule 52.36, I am justified in giving permission to appeal for the reasons I have given, but no others.
Ms Page, you wanted a continuing stay on the costs order. I will grant that but with liberty to the defendants to apply to me in writing if they wish to secure any other order in relation to costs.
Order: Application allowed with continuing stay on costs order