Shergill v Khaira & Ors

This is an oral hearing which was requested by the respondents’ then legal representatives (who have been replaced by new solicitors and counsel) on the occasion of the handing down of this judgment on 17 July. A lot of points were taken. Submissions were to be debated at this oral hearing but many of those are not now pursued.

The position today is that we have received detailed written submissions from both sides on the questions that they are unable to agree about. I propose to deal with this very shortly by reference to the draft minute of order which has been submitted on behalf of the successful respondents.

There are five paragraphs in the order. There is no dispute about the recitals. Paragraph 1 is not disputed. That is an order that the appeal be allowed and the order made by His Honour Judge Cooke in the Birmingham District Registry of the High Court on 12 September 2011 be set aside. Nor is there any dispute about the second paragraph. So we will order that upon the appellant's undertaking not to prosecute the counterclaim herein there be a permanent stay of the claim.

The disputes are about three matters in paragraphs 3, 4 and 5. The first is about the costs of the appeal and of the action. We agree with the appellants that the proper order is that the appellants’ costs of the appeal, together with their costs of the action, be paid by the respondents on the standard basis, to be subject of a detailed assessment if not agreed.

We do not accept the submissions that have been made on behalf of the respondents by Mr Herbert QC that this is one of those cases in which the cost of both sides should be paid out of the assets of the charity. This is hostile litigation, if there ever was. It is said by Mr Herbert to be a matter affecting the governance of the charity and he seeks to bring it within second category of case which is referred to in Re Buckton [1907] 2 Ch 406, but the essence of this case is that his clients are seeking in their proceedings to replace the trustees who are in control by reference to who they say is “the successor”, who is entitled under the deeds to appoint a trustee.

As we have explained in our judgment, we do not think that this dispute is justiciable in the English courts. The appellants have put up the point that the man who claims to be successor is not recognised by them as successor. We have expressed no view about who is the successor, saying it is non-justiciable. A point has been taken, it has succeeded not only in this case. It has succeeded to the knowledge of the respondents in earlier cases. We think this is a proper case for costs to follow the event.

Paragraph 4 is an order for payment on account pending the detailed assessment. We have decided that the respondents do pay to the appellant's solicitors the sum of £80,000 on account of such costs within 21 days. That is on or before 4pm on 23 October 2012.

Finally, there is an application for permission to appeal. The application was not dealt with on the handing down and no order was made in respect of it, because of the request that had been made for an oral hearing on the various points raised by then leading counsel for the respondents. Detailed written submissions have been put in as to the grounds on which we ought to grant permission to appeal. It is said the matter is one of general public importance. It is not one that involves adjudicating on matters of religious faith, doctrine or practice. It is said to be a matter affecting the construction of the relevant provisions of trust deeds, which govern an English charity and that that is a matter within the jurisdiction of this court. It is said that what are not matters of construction are matters of fact, which could be resolved in the normal way in which English courts resolve questions of fact.

We have already explained in our judgment our reasons why we consider those arguments are not correct in this case and why this case is not justiciable. This is a matter for the Supreme Court to decide whether they should take the matter on an appeal.

I do not think there is any serious doubt that the respondents are in time for making the application for permission. When I handed the judgment down on 17 July the matter was simply adjourned. No other order of any kind was made. All that happened on that date is that the court's judgment was put into the public domain. Everything else remained up for argument and that argument has now been heard today and decided in the manner in which I have mentioned.

We do not accept the submissions for permission to appeal to the Supreme Court. Of course we may be wrong. It is a matter for the Supreme Court to decide whether it is a suitable case for them to take, having regard to the priorities that they have to give in relation to other cases. The order we make is the order which is asked for by the successful appellants, save that in paragraph 4 the sum of £80,000 is substituted for the suggested figure of £120,000.