Rai & Ors v Ahir & Ors

There is before me the hearing of part of charity proceedings concerning the charity known as the Shri Guru Ravidass Sabha Southall (“the Sabha”) brought by six of its members against the twenty-two members of the Executive Committee and the eleven trustees of that Charity.

The proceedings are brought with the leave of Mr. Justice Norris dated 22 April 2013 when he joined the Second Defendants to this claim. On 19 June 2013 Master Teverson ordered that the matters and issues set out in paragraphs 1 to 25 of the Amended Particulars of Claim be tried first with a time estimate of 2 days. He left issues relating to the misuse of charitable funds by the First Defendants to be tried at a later stage. In the end the matter was heard before me over nearly six and a half days and matters were explored which went beyond paragraphs 1 to 25 of the Amended Particulars of Claim.

The Sabha is an unincorporated Association governed by a constitution the latest adopted version of which is dated 14 December 2007. I will refer to that in some detail below but essentially the charity provides a place of worship for those who follow the teachings of Shri Guru Ravidass Ji, an Indian Guru born at the end of the 14th Century. Some of his teachings are incorporated into the Sikh Holy Book the Guru Granth Sahib (“the Granth”) extending to 40 verses and 1 hymn.

The development of the Ravidassia movement is largely agreed between the parties and can be summarized as follows. Shri Guru Ravidass Ji worked against social religious, economic and political persecution. He taught that one is distinguished not by caste but by actions. The Ravidassia sect emerged in the nineteenth and twentieth century. It is not perhaps clear whether it is a religion as such but it provides its members with a social and religious identity. It became clear during the course of the evidence that some members of the community are members of other religions, such as Buddhism and Christianity.

For a number of years there has been research into verses and writings of Shri Guru Ravidass Ji not found in the Granth. The product of this research was compiled into a book called the Shri Guru Ravidass Amrit Bani (“the Amrit Bani”) and on 30 January 2010 a declaration was made proclaiming the work to be the new Holy Book of the Ravidassias. The Amrit Bani has proved to be controversial and some Ravidassias welcome it whereas others do not accept it.

That unfortunate controversy in the community is at the heart of this dispute although it is not a matter directly before the Court and indeed is not a matter upon which the Court could adjudicate.

The constitution of the Sabha (“the Constitution”) was first adopted in 1977 and last amended in 2007. The circumstances surrounding that amendment were explored before me.

Clause 1(e) provides that the Sabha operates within a geographical area comprising fairly extensive parts of West London. The aims and objects contained in clause 2(a) are as follows:-

It is worth at this stage pointing out that the aims and objects of the Sabha prior to the 2007 amendment were as follows:-

There was some evidence as to the way in which the amendment to the aims and objects had come about in 2007 and what was intended. Insofar as the issues raised in this case require me to construe the aims and objects it is not permissible to take into account that evidence and I did not understand any of the parties to argue otherwise.

Clause 2 goes on to provide other aims and objects including the provision of a community centre and other services for the community.

Clause 5 of the Constitution deals with qualifications for membership and provides:-

The Constitution goes on in clause 7 to provide for an Executive Committee with various officers. Their duties are outlined in Clause 9. In addition the Constitution provides at clause 16 for there to be eleven trustees in whom all the property of the Sabha will vest. Only life members can be trustees and they elect a chairman. Clause 16(b) provides that in the event of a deadlock arising out of a dispute in the Executive Committee the Trustees shall seek instructions from the General Body Meeting to resolve the dispute within four weeks time.

Clause 8 deals with disciplinary action and clause 8(d) (which was added by the 2007 amendments) attained some importance in this case because of certain amendments made to the statements of case. The relevant parts read:-

There was some debate as to who drafted this amendment (and indeed others) and whether it was Mr. Birdy who was once solicitor to the Sabha but whose firm is now on the record for the Claimants. It seems to me that this cannot matter.

Clause 12 of the Constitution deals with elections. It provides for the election of the office bearers and members of the Executive Committee to be held after every two years, for the procedure to be laid down by the Executive Committee at least six weeks before the election is to be held and for those elections to take place in September (which it is common ground did not happen in practice) and by secret ballot. Clause 12(e) provides for the Trustees not to be elected but to be appointed by a majority of the General body of the Sabha and states “But the Trustees should remain impartial”.

There was some evidence before me that elections had caused difficulties in the past. In practice candidates tended to stand as a slate and the Constitution makes reference to “Groups” although the term is not defined. There were two groups: the New United Group and the Sewadar Group but the split along party lines does not appear to have any relevance to this dispute.

Clause 12(g) also became of significance in the proceedings as a result of amendment to the statement of case of the Claimants which I allowed to ensure that all the issues were ventilated at this hearing and did not continue to cause problems for the community going forward. Clause 12(g) was introduced by the 2007 amendments and starts by dealing with the situation if a candidate obtains equal votes in the election which is to be determined in accordance with the Group securing the most votes overall. The clause then goes on to provide:-

“In any other dispute during the Tenure of the Election period, the President and the General Secretary/Chairman of the Trust of the Sabha will exercise their powers to end the dispute and to conduct the Election fairly, efficiently and effectively without any Prejudice. No one is allowed to enter into any dispute except for President, General Secretary and Chairman of the Trust of the Sabha in any circumstances. As a result, the President/General Secretary/Chairman of the Trust will be held responsible to carry forward the procedure of election until election is over.”

These proceedings focus on certain notices published in the newspaper Des Pardes (which is read by the Punjabi community) designed to start the election process. There had, it is accepted by all, been a delay in holding an election. I did hear evidence as to the causes for that but they do not seem to me to be relevant to the issues I have to decide.

The first Notice appeared in Des Pardes on 15 April 2011 and is printed both in Punjabi and English. I should note here that two of the witnesses I heard, Mr. Sondi and Mr. Chander, do not read Punjabi. It provides that registration for membership will take place in the Sabha between 15 May 2011 and 26 June 2011. It then goes on to deal with the documents required for those registering as members. There is then an addendum to the Notice (“the Addendum”) as follows:-

It is accepted that Notices in previous years calling for members to register did not contain the Addendum.

The publication of the Notice prompted an immediate reaction from Birdy & Co. in the form of a letter dated 15 April 2011 acting on behalf of a number of members of the Sabha who broadly are the Claimants in these proceedings. The objection to the form of the Notice which had been placed in Des Pardes was clearly set out as the need for belief in the Guru Granth Sahib which it was pointed out is the Sikh Holy Book. It is right to say that the letter also requests that the Amrit Bani be placed in one of the Prayer Halls of the Sabha. The letter also invoked clause 8(d) of the Constitution.

The Trustees became involved in the complaint and on 9 May 2011 Mr. Chamber, the chairman of the Trustees, emailed the Claimants' solicitor stating that at a trustees' meeting held on the previous day:

“it was decided that executive committee of shri guru ravidass sabha southall is acting according to the constitution of shri guru ravidass sabha southall, so there is no need for trust to ask the committee to change anything about membership.”

Not long after this proceedings were commenced and an application for an injunction sought against the First Defendants. The First Defendants did not accept the criticisms made of the Notice except for the fact that they accepted there was a mistake in the English version of the first Notice in that it referred to “our religious Guru is Shri Guru Granth Sahib Ji.” They agreed that this was incorrect and ought to have read “our religious Granth is Shri Guru Granth Sahib Ji” and on 20 May 2011 a further notice appeared in Des Pardes with that change in the English version.

It is right to say that the parties have attempted to resolve the issues between them in respect of the Notices. Certainly the Trustees tried to suggest ways in which the matter might be resolved. In particular on 28 May 2012, the Trustees recommended to the Executive Committee that the Offending Statement be removed from the Membership Notice and Mr Chamber confirmed this to the Charity Commission on 17 June.2012. However this was on the basis of all the parties being able to agree terms to resolve the matter which did not occur.

The issues between the parties (which have expanded during the course of the hearing owing to certain amendments I allowed the Claimants and the Second Defendants to make to their statements of case) can be summarized as follows:-

There is a further major point which is whether the issues above are wholly or in part justiciable by the Court. After I had heard this matter but before judgment the Supreme Court handed down judgment in Khaira v Shergill [2014] UKSC 33; [2014] 3 W.L.R. 1 which has had an important bearing on that question. I invited Counsel to provide me with written submissions on the impact of that case for which I am very grateful. I will deal with this point first.

Khaira v Shergill concerned a number of issues relating to the administration and trusteeship of certain Sikh Temples. The Court of Appeal had stayed the proceedings on the basis that the issues raised were non-justiciable as being matters of religious doctrine. In particular the Court of Appeal concentrated on the issue of whether a particular individual was the Third Holy Saint and a successor to the First Holy Saint of the particular Sikh sect in question.

The Supreme Court considered the proceedings ought not to be stayed and allowed the appeal. This was partly on the basis that when broken down it was clear that the issues between the parties involved matters of English trust law and interpretation which were clearly justiciable.

However, the third issue was whether a particular individual was the Third Holy Saint and that did engage issues of religious doctrine. The Court of Appeal had held that such issues were not justiciable by the Courts. The Supreme Court disagreed, the joint judgment handed down by the President, Lord Neuberger, Lord Sumption and Lord Hodge (with which the other JJSCs agreed) said at paragraph 45:-

“This distinction between a religious belief or practice and its civil consequences underlies the way that the English and Scottish courts have always, until recently, approached issues arising out of disputes within a religious community or with a religious basis. In both jurisdictions the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust. We consider each circumstance in turn.”

The Supreme Court then went on to consider how this affected disputes concerning religious communities at paragraphs 46 and 47:-

“The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs. The courts will not adjudicate on the decisions of an association's governing bodies unless there is a question of infringement of a civil right or interest. An obvious example of such a civil interest is the loss of a remunerated office. But disputes about doctrine or liturgy are non-justiciable if they do not as a consequence engage civil rights or interests or reviewable questions of public law.

The governing bodies of a religious voluntary association obtain their powers over its members by contract. They must act within the powers conferred by the association's contractual constitution. If a governing body of a religious community were to act ultra vires, for example by seeking a union with another religious body which its constitution did not allow, a member of the community could invoke the jurisdiction of the courts to restrain an unlawful union. See Barker v O'Gorman [1971] Ch 215, which concerned a challenge to a proposed union between the Methodist church and the Church of England on the ground that the Methodist Conference had no power to vary the doctrinal standards of the former church. It is a case involving a private Act of Parliament (the Methodist Church Union Act 1929 ) rather than a contract. But the principles of ultra vires are the same. See also Long v Bishop of Cape Town (1863) 4 Searle 162, 176, per Lord Kingsdown”

The Supreme Court also drew a distinction between contractual cases on the one hand (as set out above) and trust cases on the other. It seems clear to me that the issues I have to decide concern the contractual relationship between the members of the Sabha and the powers and duties of the Executive Committee and the trustees derived from that contract.

It seems to me that the following principles can be derived from Khaira v Shergill which are of importance in this case:-

I heard a great deal of evidence on behalf of the parties and witnesses were subjected to detailed cross-examination on that evidence. On behalf of the Claimants, Mr. Chander, Mr. Sondi and Mr. Fariq Singh Virdi, one of the Trustees who dissents from the view expressed by the other Trustees, gave evidence. On behalf of the First Defendants I heard from, Mr. Ahir, the President of the Sabha, and Mr. Balu, the President of the Shri Guru Ravidass Sabha UK, Europe and Abroad (“UK Sabha”). Mr. Chamber, the chairman of the Trustees gave evidence on behalf of the Second Defendants.

I have little doubt as to the desire of all the witnesses to assist the Court and all impressed me as sincerely holding the beliefs espoused by them. It is clear that in a case of this kind (and indeed it was acknowledged in Khaira v Shergill to be the case) the factual matrix in which the Constitution has to be interpreted must be established by evidence. It is also clear that the Court has to “take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence” (from the unreported case of Mackay v Macloed 10 January 1952 cited by Lord Drummond Young in Smith v Morrison 2011 SLT 1213).

For these purposes it was important to hear evidence but this is not a case which turns on disputed facts. There were allegations made at points in this litigation that minutes of trustee meetings had been fabricated (not later relied on) and the actions and motivation of certain witnesses were called into question. I have not found the testing of the evidence in that way to be that helpful although the manner in which parties have conducted themselves in the past may of course be relevant to the ultimate question of costs.

However, I did find the evidence of Mr. Balu of great assistance. Mr. Balu, as I have said, is the President of the UK Sabha. The UK Sabha is in effect a governing body to which individual Sabhas become affiliated. They must, in order to do so have constitutions which conform to that of the UK Sabha, in accordance with Clause 3.1 of the UK Sabha Constitution. Clause 1.4 of the UK Sabha Constitution provides that the “Community” consists of followers of Sri Guru Ravidass Ji and that “each 'Ravidassia' to strictly follow the Teachings and Philosophy of Sri Guru Ravidass Ji, a great Holy Prophet of early 15th Century India born at SEER GOVERDHANPUR in Benaras”. Clause 1.5 deals with the religious practice of the Ravidassia and states that they are “to worship the Holy Book 'Sri Guru Granth Sahib”. The overwhelming majority of sabhas in the UK are affiliated to the UK Sabha.

The UK Sabha also has a role in intervening in the management of individual affiliated sabhas when there are problems and issues and even in taking over management in certain circumstances. Mr. Ahir, the President of the Southall Sabha asked Mr. Balu to be part of a panel of mediators to try to resolve this dispute but the Claimants would not accept him as independent.

Mr. Balu confirmed to me the form of worship which is followed in Sabhas. Services take place in the Prayer Hall of the Sabha. The Granth is at the front of the hall and members of the congregation walk up to it and bow. At the beginning of the service there is a prayer from the Granth followed by the singing of hymns. Someone might then give a lecture. The priest then opens the Granth at any page and starts reading from any of the teachings in the Holy Book.

Mr. Balu explained that the UK Sabha had not adopted the Amrit Bani and neither had any of the affiliated Sabhas. He acknowledged that the Amrit Bani was not recognized by the whole community and had created controversy. He stated that the Granth was “the only way that we find Ravidass”. This evidence was also supported by Mr. Chamber, the chairman of the trustees who said that on special occasions the Granth might be read all the way through which could take up to forty-eight hours.

The first question which arises is how clause 2(a) of the Constitution in its current amended form should be interpreted. It is clear that clause 2(a) was amended against the background of awareness that research was being undertaken into the teachings and Holy Scriptures of Ravidass although in 2007 when the amendment was made the declaration as to the existence of the Amrit Bani had not been made. It was the Claimants' case that the amendment also took place against the background of a dispute which had caused controversy in the Sabha in East London but Mr. Ahir was not aware of the dispute and I am not convinced that even if that were the case, it takes the matter much further in terms of construction of clause 2(a).

As Mr. Bartlett on behalf of the First Defendants submitted, there are two possible interpretations of clause 2(a). Either it introduces a new independent object of research into the Holy Scriptures of Ravidass or it is intended to expand the worship described in clause 2(a) so that the teachings and philosophy are derived not just from the Guru Granth Sahib but also from the product of research. The clause is not grammatical and so construction on that basis is not really possible. The evidence before me was that the Sabha did not carry out research and indeed research was in the main taking place in India. That being the case, it seems to me that the preferable construction is that the amendment introduced the prospect of worship in accordance with the product of research into the Holy Scriptures of Ravidass. This was the construction contended for by Mr. Macpherson on behalf of the Claimants.

However, as Mr. Bartlett submitted, that does not answer the question of what would happen if there was a dispute as to whether the research had identified other teachings and Holy Scriptures. In other words, if the Sabha in General Meeting did resolve to adopt the Amrit Bani (in addition to the Guru Granth Sahib), then it is my view that clause 2(a) would not require further amendment unless it were for the sake of clarity. However clause 2(a) does not assist in resolving any dispute in the community as to whether the Amrit Bani does represent the product of Holy Scriptures of Ravidass. To the extent that the Claimants suggested that Clause 2(a) had the effect of resolving the dispute in the sense of permitting members to worship in accordance with the product of research, regardless of what the product of that research might be, I reject that argument.

More significant of course is how the Notice would be read by its readership-that is the Ravidass community in the geographical area concerned (see Porter v National Union of Journalists [1980] IRLR 404 (HL)).

Mr. Macpherson's case is that

Mr. Bartlett's primary submission remains that the issue of whether the Notice does not conform with clause 2(a) of the Constitution is not justiciable because it involves a question of religious doctrine not capable of being decided by objective standards. I do not agree with that submission. It is clear (and I do not understand Mr. Bartlett to argue otherwise) that the Claimants have a legitimate civil right to enforce in preventing the Executive Committee acting ultra vires the Constitution if that is what has occurred. Further, provided that the question is kept to the narrow ambit of whether the Addendum to the Notice imposes requirements on membership which are outside the aims and objects of the Sabha contained in clause 2(a), it seems to me that these are matters capable of being decided by objective standards, even if that does require the Court to look at the way in which this community worships and the differences between the competing factions in respect of the status of the Amrit Bani.

What I fully accept is that the Court cannot decide the question of which of those factions is right and whether worship in the future ought to be in accordance with the Shri Guru Granth Sahib or the Amrit Bani or one or both of them. I have some sympathy with the point made by Mr. Bartlett that how worship in the future should be conducted is at the very heart of this dispute. However, the Claimants have been very careful not to ask the Court to stray into that area.

Mr. Bartlett also points out (relying on the case of Forbes v Eden (1867) 5 Macph (H.L.) 36; L.R., 1 H.L. Sc. 568 dealt with in more detail below) that a religious body forms an imperium in imperio, that is to say a body with its own system of government and supreme head. A member cannot complain of the actions of the internal organs of government of the body in a civil court unless they infringe his civil rights. The First Defendants say that the Claimants' proper course was to take their grievance to a general meeting of the Sabha, which is its supreme head and the equivalent of the Synod in Forbes v Eden. They have never done so because they know that the membership will not support them. However, it seems to me that if the Executive Committee threatens to act outside its powers, then a member ought to be able to seek an injunction as occurred in this case to prevent that ultra vires exercise.

However, I do think this is an important point to bear in mind. As Mr. Bartlett pointed out to me, the Court is not a court of appeal from the Executive Committee. Just because the Court considers what the Executive Committee did in publishing the Notices was perhaps unwise, does not entitle it to intervene. It therefore has to be clear that what the Executive Committee did went beyond the powers conferred upon them by the Constitution.

Mr. Bartlett submitted that the readership of the Addendum would be fully aware of the controversy surrounding the Amrit Bani, and would have close knowledge of the Sabha and how worship operates there. Against this background he says that the words “Our religious Granth is Shri Guru Granth Sahib Ji” merely reflect the position in respect of this Sabha. The Shri Guru Granth Sahib is described in Clause 2(a) as the Holy Book. Mr. Macpherson's argument is of course that certain members do not accept the whole of the Shri Guru Granth Sahib but only that part containing the teachings of Ravidass. However, I have heard clear evidence which I accept that readings at worship take place from anywhere in the Shri Guru Granth Sahib, and on special days the whole of the Granth is read from start to finish. I consider Mr. Bartlett's submission on this is correct.

As to the words “We do not endorse any other holy book”, Mr. Bartlett states that is simply a statement of fact and again I think he is right. It is clear that the Sabha has not endorsed the Amrit Bani and accepted it and indeed neither has Sabha UK. He also makes the point, which again I consider correct, that clause 2(a) does not endorse the product of any particular research.

The final words are “You must believe in the Shri Guru Granth Sahib Ji” and at first it seemed to me that these were more problematic. There is no such requirement for belief in Clause 2(a) of the Constitution although of course the Shri Guru Granth Sahib is acknowledged as the Holy Book. However if one looks at the readership of the Notice it seems to me that they will all have been aware of the controversy over which Holy Book the Ravidassia community should accept and the manner in which worship is carried out at the Sabha. As set out above, the Shri Guru Granth Sahib is in the Prayer Hall and members bow to it as they enter. Readings are taken from all parts of the Granth. It is said that members of other religions such as Buddhism and Christianity would be offended by this requirement and put off by it but I am not at all sure why that would not always have been the case, bearing in mind the way in which worship takes place showing reverence to the Shri Guru Granth Sahib.

I am therefore of the view that in publishing the Notice with the Addendum the Executive Committee was not acting “clearly and demonstrably beyond its own constitution” (Mc Donald v Burns p. 383). As Lord Justice Clerk stated later in his judgment in that case at p. 384:

“There must be some vital disconformity to the law and constitution of the religious association whose decision is being impugned or some usurpation of jurisdiction, or, to put it generally, something against the essential faith of the contract by which the members of the body by entering into association have expressly or impliedly agreed that they shall be bound.”

In my view the Claimants' complaint about the Addendum to the Notice falls far short of this. This becomes particularly apparent if the wording of the Addendum is judged against the way in which the Sabha has always conducted worship and the fact that there has been no acceptance by the majority of the Ravidassia community in the UK of the Amrit Bani.

The second and distinct point made by the Claimants is that the Notice is in different form from that published in the past and in judging whether it conforms to the Constitution, the Court should have regard to the custom and usage of the Sabha. It is common ground that the Addendum was a new introduction to the usual notice which would be published inviting registration for membership. The case relied upon by the Claimants in this regard is Attorney–General v Pearson (1817) 3 Merrivale 353.

I do not read that case as authority for the proposition that procedural matters such as notices seeking registration for membership have to follow a pattern. It seems to me clear that in Pearson Lord Eldon was looking at the way in which the religious trust had been conducted over the years to try and ascertain the intention of the founders as the trust deed did not set out the precise definition of the object of the trust or the mode of worship. That case was cited with approval in Khaira v Shergill (para 51) on the basis that the decision was about looking for the original intentions of the founders of the religious institution in question.

It seems to me that Pearson does not assist the Claimants and does not support the proposition for which they cite it.

This issue is in effect dealt with by the views I have expressed above in respect of the contents of the Addendum. It seems to me that the Notice was published in accordance with the Constitution.

The straightforward answer to that issue is of course that they were not, bearing in mind my judgment set out above that the Notice did not breach the Constitution. In any event although this issue was the way in which the matter was put in the Claimants' skeleton argument and Re-Amended Particulars of Claim, the case was not really developed as a breach of trust claim.

This was the essence of the claim brought against the Trustees and it turned on Clause 8(d) which everyone accepted is a very difficult clause in terms of construction. Mr. Birdy did of course invoke clause 8(d) in his very first letter of 15 April.

The simple answer in relation to this issue is that the Trustees were not in breach of clause 8(d) because their expressed view that the Executive Committee was not in breach of the Constitution in publishing the Notice was correct. However, bearing in mind that these are charity proceedings and it was made clear that the Sabha would benefit from guidance on the matter, I propose to express a view.

The clause does not make it clear what the Chairman of the Trust is obliged to do if a complaint is referred to him. The closing words suggesting that the Trust is responsible for the entire affairs of the Sabha and purporting to oust the jurisdiction of the Court, do perhaps suggest that the Trustees were a de facto final court of appeal in respect of any complaints about the Executive Committee. It is of course clear that the final words quoted above are void to the extent that they purport to oust the jurisdiction of the Court (see Baker v Jones [1954] 1 WLR 1005). However, the clause gives no guidance on whether the Trustees are obliged to make a decision, whether that will be final and binding and on whom and what sanctions are available to them in enforcing their decisions.

It seems to me therefore that the Trustees are under no obligation to adjudicate disputes between members and the Executive Committee. It seems to me that there would need to be something rather more express in the Constitution to confer on the Trustees the power to adjudicate disputes, a positive duty to do so and the power to instruct the Executive Committee to behave in a particular way. That is particularly the case bearing in mind that the Trustees are not elected and that the final decision making body is quite clearly the membership in General Meeting.

Mr. Asprey on behalf of the Second Defendants (apart from Mr. Singh Virdi) argued that in any event the decision of the House of Lords in Forbes v Eden (1867) 5 Macph (H.L.) 36; L.R., 1 H.L. Sc. 568 meant that the Claimants had no civil right which they could enforce against the Second Defendants because they suffered no loss. The claim in Forbes was brought by a clergyman of the Episcopal Church of Scotland against the General Synod of that Church challenging the enactment of certain canons by them which he alleged to be in violation of the previous canons in force when he was ordained. His claim was that this caused him damage because he was vulnerable to being deprived of his office. His complaint was that the new canons, which replaced the Scotch Communion Office with the Communion Office of the Book of Common Prayer, departed from the recognised constitution and acknowledged practice of the Church and had therefore violated the contract into which he entered.

Lord Cranworth said:-

“…. assuming that the General Synod of 1863 had no power according to the constitution of 1838 to make the alterations of which the appellant complains, - that of itself gives no jurisdiction to the secular Courts. There is no jurisdiction in the Court of Session to reduce the rules of a voluntary society, or, indeed, to inquire into them at all, except so far as may be necessary for some collateral purpose. The only remedy which the member of a voluntary association has when he is dissatisfied with the proceedings of the body with which he is connected, is to withdraw from it. If connected with any office in a voluntary association there is the right to the enjoyment of any pecuniary benefit, including under that term the right to the use of a house, or land, or a chapel, or a school, then incidentally the Court may have imposed on it the duty of inquiring as to the regularity affecting the status in the society of any individual member of it. But here there is no question of that sort”.

As I read that case it was saying no more than the Supreme Court has so recently confirmed in Khaira v Shergill that the Courts will not simply adjudicate on matters of religious doctrine. There has to be a civil right for the Courts to enforce with a remedy. However, it seems to me that the Claimants would have had a civil right they could enforce under the contract made between them and the Trustees as part of their governing structures in preventing the Executive Committee acting ultra vires the Constitution if that is what has occurred.

The first and obvious question is what is meant by “Tenure of the Election Period” which is nowhere defined in the Constitution. Mr. Macpherson argues that the Notice which is published seeking registration for membership is the first step in the process which leads to the election. Registration for membership takes place at the Sabha and thereafter the date of the election and the nominations are announced at the Sunday services. There is one voting day held at the Sabha and as set out above overseen by an independent solicitor.

Mr. Bartlett argues that the most natural construction of the clause is that it relates to the actual day of the election itself. There is an attraction in this in that the opening words of clause 12(g) refer to what happens if both candidates secure equal votes which naturally refers to the day of the election and then the clause goes on to refer to “any other disputes”.

Mr. Macpherson argues that the reference to an election period means that it must refer to a longer period than one day. He also points to the fact that independent solicitors actually oversee the voting day itself.

In my view the right answer is that clause 12(g) applies once an election has been announced and a date has been fixed and continues until the hand over to the new committee in accordance with clause 12(d). It seems to me that the use of the words “tenure of the election period” are not apt simply to cover the day of voting. However, I do not consider that clause 12(g) applies before an election date has been announced and so would not apply to the publication of the Notice seeking registration of new members in Des Pardes.

Again my views as set out above are unnecessary in light of my judgment on the first issue but it seemed a useful exercise to set out the views reached in light of the arguments addressed on the point.

It is unnecessary to decide this but in my view in any event the Trustees do not have power to make the Executive Committee act in a particular way. What is more the Trustees' recommendation was made in the context of trying to broker an overall deal between the parties and the other terms were not acceptable to the Claimants.

In my view the Claimants are not entitled to the relief they seek and I dismiss their claim. I appreciate questions of costs may not be straightforward as these are charity proceedings and I will hear submissions in due course.