Law Report: Commissioners were not `proper' defendants

15 October 1998

Weth v Attorney General and anor; Weth and anor v Attorney General and anor

Court of Appeal (Lord Justice Nourse, Lord Justice Waller and Sir Iain Glidewell)

8 October 1998

WHEN DECIDING whether to join the Charity Commissioners as defendants to proceedings brought under RSC Order 108 rule 5 by way of appeal against an order of the Commissioners made under the Charities Act 1993, the only question for the court was whether the Commissioners were "proper" defendants.

The Court of Appeal allowed the appeal of the Charity Commissioners against an order that they be joined as defendants in proceedings brought against the Attorney General by former trustees of a charity to set aside orders removing them as trustees and appointing a receiver and manager of the charity.

John Weth and James Muggleton were trustees and committee members of a charity. The Charity Commissioners had made an order pursuant to section 18 (1)(vii) of the Charities Act 1993 appointing a receiver and manager in respect of the property and affairs of the charity, and, by a further order pursuant to section 18 (2)(i), had ordered that Mr Weth and Mr Muggleton be removed as trustees and committee members.

Mr Weth and Mr Muggleton sought to have the orders set aside, alleging bias and misconduct on the part of the Commissioners. The Attorney General was, among others, made a defendant to both sets of proceedings, but the Commissioners were not made defendants to either.

Mr Weth and Mr Muggleton issued summonses seeking an order under RSC Order 15 rule 6(2)(b) for joinder of the Commissioners as defendants, and an order for the disclosure to Mr Weth of a report made by the receiver and manager and submitted to the Commissioners. The master declined to make either of the orders sought, and Mr Weth and Mr Muggleton appealed to the judge. The judge allowed the appeals, holding that the question of joinder depended on whether the Commissioners' "presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon" within Order 15 rule 6(2)(b)(i). The Commissoners appealed.

William Henderson (Treasury Solicitor) for the Attorney General; Guy Newey (Treasury Solicitor) for the Commissioners; Mr Weth in person.

Lord Justice Nourse said that RSC Order 108 r 5(2) provided that in proceedings brought by way of appeal against an order of the Commissioners pursuant to the 1993 Act, the Attorney General, unless he was the appellant, should be made a defendant, and also any other person who was a "proper" defendant thereto. Neither the statute nor the rule, however, made specific provision for the Commissioners to be joined as defendants.

The general practice since the decision in Jones v the Charity Commissioners of England and Wales and anor [1972] 2 All ER 637 had been that, where the Attorney General took the view that it was of advantage to the charity that the orders of the Commissioners should stand, the Commissioners would not be joined as defendants to the proceedings, in order that work and costs should be saved.

That practice could not, however, deprive the court of its discretion to determine, on the facts of an individual case, whether the Commissioners were "proper" defendants or not. Although the application for joinder had been made under Order 15 rule 6(2)(b), no question arose under the order as such, since the only question for the court was whether the Commissioners were "proper" defendants within Order 108 rule 5(2).

Whilst the necessity for the Commissioners' presence for the purpose stated in Order 15 rule 6(2)(b)(i) was, by analogy, one of the matters to be taken into account in deciding that question, it was not the only one. In the present case, the allegations of bias and misconduct made against the Commissioners were not in themselves enough to make the Commissioners "proper" defendants to the proceedings.

Kate O'Hanlon

Barrister