England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Priory Courts 33 Bull Street Birmingham West Midlands B46DS
		10 November 2015

JUDGE PURLE QC:

1. The third defendant, Carol Dean Bedward, seeks an order declaring that an earlier Order of 10 November 2010 ("the November Order") does not bind him. If it does, he seeks an order setting the November Order aside. In either case, he seeks further directions for the conduct of the action.
2. On 2 April 2009 the trustees of a registered charity, the Church of God UK United ("CogUK") brought this claim against the first 2 defendants based on the alleged misuse of charitable funds, and seeking amongst things the transfer of a property at 11 Mount Street, Basford, Nottingham NG7 7HX ("Mount Street") into the names of trustees of CogUK.
3. The defence was that the funds in question were not CogUK's but the funds of another organisation known as the Church of God Nottingham ("CogNott") and that Mount Street had been purchased for CogNott.
4. According to the third defendant's solicitors in a letter dated 28 May 2014, the congregation of CogNott had recently registered as a charity, Shekinah Shur Ministries. The claimants' solicitor, in a witness statement dated 18 February 2015, identified the registration date as 17 January 2013.
5. On 30 April 2010 the third defendant, then described as "Carol Danny Bedward", was joined as a representative of members of the Nottingham congregation, in light of a potential conflict of interest affecting the first 2 defendants. His real name is Carol Dean Bedward, though known also as Danny. In fact, he was not then a practising member of the congregation at all, as he had not worshipped at Mount Street since March 2008. There had been a falling out leading to the departure of the senior pastor at Mount Street, who is the first defendant. A number of members of the congregation including the third defendant followed her when she no longer led services from Mount Street.
6. The Order joining the third defendant stated as follows:

"Carol Danny Bedward, a member of the Nottingham Congregation be joined as a defendant to these proceedings and be appointed under CPR 19.6 to represent the members of the Nottingham Congregation who worship at 11 Mount Street … under the name or style of the Church of God"

7. As mentioned, the third defendant had not in fact worshipped at Mount Street since March 2008, following the first defendant's departure.
8. As a former worshipper at Mount Street, the third defendant should not have been appointed as a representative for those "who worship" at Mount Street. The representation order was subsequently amended by the November Order to refer to those who "formerly worshipped" at Mount Street. The third defendant's name was corrected at the same time to "Caroll Dean Bedward", though in fact he spells his first name "Carol" in his witness statement. As mentioned, he is also known as "Danny" – hence the original mistake in his description.
9. The expression "the Nottingham Congregation" was defined in the amended defence and counterclaim of the first 2 defendants as a fluctuating congregation of persons who worshipped together "between about 1968 and 1994 or thereabouts". The cut-off point of 1994 appears to have been chosen to coincide with the purchase of Mount Street.
10. An Order was also made on 30 April 2010 for the trial of preliminary issues including whether Mount Street and the assets of the organisation ran from those premises were assets of "the Church of God UK" (meaning CogUK) and, if not, whether CogNott was a separate charitable trust and if so on what charitable or other basis were the assets held.
11. Although the third defendant's position is that CogNott is now a charity, his solicitors in their letter of 28 May 2014 make clear that they now act for "the congregation of the Church of God in Nottingham that, until 2008, worshipped at 11 Mount Street". Elsewhere, they somewhat confusingly say their client is "the congregation as at September 1994 – January 2010". They appear to claim that their clients (the congregation, not the charity) are entitled to hold Mount Street independently of CogUK and seek recovery of assets, books and records taken over by CogUK.
12. The Order of 30 April 2010 did not contain any directions for service of an amended claim form, or for the service of pleadings at that stage by the third defendant. No amended claim form appears on the court file, and none was served on the third defendant. The Order joining him was not served upon him either, despite the terms of CPR 19.4(5). Directions were given for disclosure and witness statements in connection with the preliminary issues, but these were in practice treated as applying to the claimants and first 2 defendants only.
13. The third defendant did not participate in the disclosure process, or take any other part in the process of preparing for trial of the preliminary issues as a party. He did however give a witness statement for the first 2 defendants, with whom he has a community of interest as they are all members of the same congregation. He knew he was a party, as the solicitors for the first and second defendants told him this, but he says he was not told what that meant or that he should participate on behalf of CogNott. He was however told by the same solicitors that he was "representing the church". He does not appear to have asked what being a party or representing the church involved, and was obviously satisfied that the interests of the congregation were sufficiently protected by the first 2 defendants and their legal team, who were counterclaiming for all the relief that the congregation represented by the third defendant could get. He also knew of the hearing date for the preliminary issues, though no notice of the hearing date was served upon him, and was planning to attend the hearing.
14. The only address the court had for him (it is not known who supplied this address) was Mount Street, which was not a residential address, still less his "usual or last known address" as referred to in CPR 6.9, or even an address at which he could be reached, as he did not attend Mount Street after March 2008. With the one exception below, therefore, there is no evidence demonstrating that service was effected at a proper address for service of any documents or orders upon the third defendant.
15. On 8 July 2010, the third defendant made his witness statement, the heading of which identified him as a party. In paragraph 20, he said that he was aware of the nature of the proceedings against the first 2 defendants, commenting:

"I have also been told of the issues which will be tried first by the court to decide what, if any, links exist between Nottingham Church and [CogUK]."

16. The Attorney General was joined as fourth defendant on 30 July 2010. Proper service was effected on the Attorney General, who chose to take no part in the proceedings. The third defendant was served (by the solicitors for the first 2 defendants) with a copy of the Order joining the Attorney General. That Order identified the third defendant as a party in the heading, and his representative capacity. However, he was still not served with an amended Claim Form, or the Order joining him.
17. The procedural irregularities affecting the third defendant's joinder are undoubted. He should at the very least have been served at a proper address for service with the Order joining him, but he was not, although he clearly knew of his joinder. He was joined because of a perceived conflict of interest affecting the first 2 defendants. The conflict arose because if, as was the defendants' case, the assets allegedly misappropriated were CogNott's assets, the Nottingham congregation might have a claim against the first 2 defendants. However, the misappropriation issue was not raised for determination on the preliminary issues. The principal issue was (broadly) whether Mount Street and other assets were beneficially owned by CogUK or CogNott. On that issue, the first 2 Defendants spoke with one voice with the third defendant. An additional preliminary issue was whether and for what period the first defendant was a trustee of CogUK, an issue which did not affect the third defendant or CogNott.
18. The second defendant was the first defendant's husband. The third defendant was a pastor serving alongside the first defendant, who remained senior pastor among her followers, including the third defendant, after as well as before leaving Mount Street. Accordingly, there was no obvious need for separate representation at the preliminary issue stage, as the defendants' cases were the same on the principal issue. This is confirmed by the fact that the third defendant's witness statement was wholly supportive of the first 2 defendants' case on that issue.
19. The community of interest is also confirmed by the fact that the third defendant's present solicitors were originally instructed by the first defendant. They have had unhindered access to the files of the first 2 defendants' former solicitors and maintain a claim for privilege in the contents of that file, whilst referring to the first 2 defendants' privileged material when it suits: e.g., paragraphs 2.2, 40 and 46 of the first witness statement of Ms. Oxenburgh, a partner of the third defendant's solicitors. The claim that privilege has not been waived over the entire file can only be on the basis of common interest privilege^[1], as that file is now in the solicitors' possession as solicitors for the third defendant, and not as solicitors for the first and second defendants, though those defendants are members of the same congregation.
20. Further, the initial letter from the third defendant's solicitors to the claimants' solicitors of 28 May 2014 was followed up by a letter to the claimants' solicitors from the first defendant herself of 22 July 2014, in which she said that the CogNott congregation was in the process of taking action against the claimants for the return of Mount Street, and described the third defendant's solicitors as "our" solicitors. As she was a leading member of the CogNott congregation, and the congregation as a whole was represented by the third defendant, it is readily understandable that she should describe the third defendant's solicitors in that way.
21. It is necessary to touch upon, though not in any great detail, the background facts concerning the preliminary issue.
22. CogUK was for many years known as "The Church of God (London)". It operated from Forest Gate in London. The charity was formally constituted by a Deed of Trust of 1 September 1972, as subsequently amended, and supplemented by rules. It was registered as a charity under the name "Church of God (London)" in July 1975. Its Charity Number is 246450. Its registered name but not its number was changed to "Church of God UK United" in March 2009. It appears to have been known for many years before that change as "Church of God UK", as was CogNott and other churches associated with them.
23. The trustees had power (amongst other things) under the 1972 Deed to acquire lands of any tenure. The rules provided for local churches to appoint local trustees but they remained under the general authority of the Executive Board of CogUK. In practice, there appears to have been a considerable degree of local independence including fiscal autonomy, funds being raised locally and paid into and out of bank accounts under the control of local trustees.
24. CogNott had no separate trust deed or constitution of its own.
25. Over many years, the Nottingham Church was treated for many purposes, at least ostensibly, as part of CogUK, sharing the name "Church of God UK" and using its notepaper and registered charity number, including for the purpose of making returns to what is now the Charity Commission and making Gift Aid and similar claims for tax benefits in respect of donations. Membership certificates were issued by the first defendant in the name of "The Church of God UK. Nottingham Branch". Certificates were also issued to Bible Conference attendees by amongst others the first defendant under the heading "The Church of God UK. (Nottingham Branch)". I have seen examples of other certificates in similar form. CogNott's bank account was in the name of "The Church of God UK". Executive Committee meetings of CogUK included officers chosen from the Nottingham congregation, treating Nottingham as part of the registered charity. In 2007, a structure diagram produced by CogNott appeared to show Nottingham as part of CogUK. There are photographs in evidence showing CogUK's registered charity number outside the front door of Mount Street and the name "Church of God UK" in the window. These are said to have been there since 1994.
26. Despite these indications, the first 2 defendants' case was (and the third defendant contends) that CogNott is a separate charity or association, that Mount Street and other assets were and are CogNott's, and that the relationship between CogUK and CogNott was no more than a loose association. The description of both as "The Church of God UK" is put down to ambiguity. The use of the charity number by CogNott is put down to its availability. It appears that the charity number was deleted from the Nottingham notepaper from 2005 onwards, which coincided with the first defendant wanting to separate from CogUK. If, however, the assets including Mount Street were already CogUK's, no desire to separate, however strongly held, could alter that. However, Mount Street did not appear as an asset in CogUK's accounts until 2009.
27. The trial of the preliminary issues was listed before Kitchin J for 3 days starting on 10 November 2010. Trial bundles were prepared, as were skeleton arguments for the claimants and the first 2 defendants. This material was available for Kitchin J's perusal in advance of the trial. As might be expected, the first 2 defendants' skeleton argued in favour of CogNott being separate from CogUK and having separate charitable status. This was the primary pleaded case in the first and second defendants' amended defence and counterclaim. The pleaded counterclaim also, as an alternative case, sought a declaration that Mount Street and the other assets were held on resulting (presumably non-charitable) trust for some or all of the members of the Nottingham Congregation as defined.
28. On the day before the hearing, 9 November 2010, the first 2 defendants by their solicitors agreed terms with the claimants and abandoned their contention that CogNott was beneficially entitled to Mount Street and other assets, conceding that these belonged to CogUK beneficially. Financial issues were also agreed affecting the first 2 defendants.
29. The relevant meeting resulting in agreed terms appears to have taken place in Manchester, attended by the first defendant. The third defendant and other followers of the first defendant were not there, but remained in Nottingham. They were however kept abreast of developments. They were together in Nottingham, preparing food to attend court the next day to support the first 2 defendants' case. They heard from the first defendant that things were going badly and that she was being asked to sign a document she did not wish to sign. She had been told by her solicitor that the document had to be signed by close of business that day. (In fact, the agreed terms were eventually embodied in a draft order signed by the solicitors for the first 2 defendants on their behalf). The congregation then had an impromptu prayer meeting and felt they were being guided that the first defendant should not sign anything and that there should be a day in court. Later, the third defendant was told not to bother attending court the next day as there was no longer a hearing. He understood this to mean he was not needed. That, I infer, can only have been on the basis that, despite the prayer guidance, the congregation was not going to have its day in court, and no-one from the congregation did in fact attend the next day.
30. In paragraph 19 of his witness statement, the third defendant says:

"I had no idea that I was a party and that the court would assume I had decided not to go to court and give CogNott's point of view and would therefore make an order against CogNott."

31. The statement that he had no idea he was a party is however contradicted by paragraphs 11 and 13 of the same witness statement, though he does say that he did not understand what being a party involved. He did however know what the preliminary issues were about and dealt with them in his witness statement.
32. Paragraph 20 of the third defendant's witness statement indicates that the congregation including the third defendant understood (inferentially at the time) that the congregation had lost the church or any interest in it.
33. It is perhaps worth mentioning that the only defence of substance raised by the first 2 defendants to the misappropriation claims (fully particularised in paragraph 20 of the particulars of claim) was that the assets in question did not belong to CogUK, but instead belonged to CogNott. The assertion of ownership by CogUK was described as "the Disputed Assumption". The pleaded defence to amongst other things the particularised misappropriation allegations was:

"The contentions in Paragraphs 17-25 are each made on the Disputed Assumption. In the premises, each allegation in those paragraphs is denied and the Defendants dispute the proposition that the Claimant is entitled to make any claim in respect of the same."

34. Thus, there was no defence positively justifying the transactions said to constitute misappropriations, or even denying them independently of the challenge to the Disputed Assumption. The pleaded denial, which was wholly unspecific, was merely "in the premises" of the Disputed Assumption being decided in the first 2 defendants' favour, which it was not. Thus, once the question of who the assets belonged to was out of the way, a monetary judgment in favour of CogUK was highly probable against the first 2 defendants, as their only defence was defeated. It is important to make this point as there is no suggestion that the first 2 defendants conceded the ownership issue in return for lenient treatment, putting their own interests before the interests of CogNott. On the contrary, conceding ownership resulted in establishing their liability towards CogUK. Success on the ownership issue, had that been regarded at the time as a realistic possibility, would have led to a very different result. None of the first defendant's followers has ever shown any inclination to sue her or her husband for the alleged misappropriations. That position was confirmed to me during the hearing. There is still no wish on the third defendant's part (or, so far as I am aware, on the part of any other member of the congregation he represents) to bring proceedings against the first and second defendants.
35. The capitulation on 9 November 2010 was triggered by the late disclosure of the transfer of Mount Street dated 23 September 1994. That transfer stated expressly that the transferees were trustees of "The Church of God UK", which was a name by which CogUK (and CogNott, whether as a branch of CogUK or as a separate organisation) were known. The transfer also provided:

"The TRANSFEREES hereby confirm that the land transferred will as a result of this transfer be hold by or on trust for the Church of God UK charity and the charity is not an exempt charity and the restrictions on the this position imposed by section 36 of the Charities Act 1993 will apply to the land (subject to subsection (9) of the that section)"

36. The title to Mount Street was then registered subject to a restriction preventing registration of any disposition or dealing except under an order of the registrar unless the instrument giving effect to it contained a certificate complying with section 37(2) or, in the case of a charge, with section 39(2) of the Charities Act 1993.
37. All these references (in the transfer itself and in the restriction) to the Charities Act 1993 presupposed the existence of a registered charity. The only candidate at the time was CogUK.
38. The skeleton argument for the first and second defendants, prepared for the trial prior to the disclosure of the transfer, strongly relied upon the absence of evidence that any express trusts were declared over Mount Street. The property, it was said, was simply transferred into the names of the transferees. That argument was undermined by production of the transfer, which expressly referred to a trust in favour of "The Church of God UK charity". There is accordingly a powerful case that Mount Street was acquired as CogUK's beneficially, though I cannot say that CogNott's arguments to the contrary have no chance of success if, as CogNott says, CogNott was a separate albeit unregistered charity. The transfer would appear however to rule out the possibility that Mount Street was acquired for the members of the CogNott congregation as an unincorporated non-charitable association.
39. Mount Street was purchased for £55,000 using loans from a commercial lender and the second claimant (Archibald Smith) who was not a member of CogNott's congregation though a member of CogUK, acting as a pastor in Cornwall. Not all of the persons described in the transfer as trustees were in fact trustees of CogUK. They were, however, all congregation members of one or other of the churches said to be comprised within CogUK. They were not all (though some were) trustees, or even part of the congregation, of CogNott.
40. Many members of the Nottingham congregation contributed financially to the purchase of Mount Street (including paying off the monies borrowed), though others within CogUK contributed also. Not all of the Nottingham congregation followed the first defendant when she left Mount Street. A substantial number, many of whom also contributed to the purchase, still worship there, regarding their Church as part of CogUK. Others who also contributed to the purchase price formerly worshipped at Mount Street but no longer worship with either congregation. There are also members of each congregation who did not contribute at all. (A summary of the categories of worshippers and contributors is set out in the second witness statement of Ms. Oxenburgh).
41. The November Order was in material part as follows:-

"UPON the matter being listed for trial

AND UPON the Claimants and the First and Second Defendants agreeing the following:

i. The property referred to as [Mount Street] and the assets of the organization run from those premises (collectively referred to below as 'the Assets') are assets of [CogUK] …

ii. The First Defendant shall sign transfer documents transferring … [Mount Street] … to the remaining trustees thereof …;

iii. And agreeing to the terms of the order set out below in full and final settlement.

AND UPON hearing Counsel for the Claimants and the Defendants not attending

IT IS DECLARED the property referred to as 11 Mount Street, Basford, Nottingham NG7 7HX … and the assets of the organization run from those premises (collectively referred to below as 'the Assets') are assets of the Church of God UK (Charity Number 246450)

IT IS ORDERED THAT:

1. Paragraph 1 of the order made on 26 May 2010^[2] be varied so that the Third Defendant be treated as a representative defendant on behalf of the members of the Nottingham Congregation who formerly worshipped at 11 Mount Street and the name of the Third Defendant to these proceedings shall be amended to Caroll Dean Bedward.

AND IT IS ORDERED (BY CONSENT OF THE CLAIMANTS AND FIRST AND SECOND DEFENDANTS)

2. The First and Second Defendants do pay to the Claimants by 4pm on 24 November 2010 the sum of £45,000, plus costs agreed at £58,750 including VAT and disbursements.

3. The properties owned by the First and Second Defendants [identified] … do both stand charged to the Claimants with payment of the said sums …

4. Upon payment of the said sums, the First and Second Defendants shall be discharged from any liability to the Claimants.

5. Save as stated above, there be no further order on the claim or counterclaim."

42. The declaratory part of the November Order was not expressed to be made by consent. It was undoubtedly the case, however, as the Order recites, that the first 2 defendants in fact agreed to its terms by their solicitors. The draft Order upon which the November Order was based was signed by their solicitors on their behalf, as well as by the claimants' solicitors. Kitchin J must in addition have been satisfied that it was appropriate to make the declaration sought. He may not have taken much persuading in the absence of opposition, and in the light of his pre-reading, but he still needed persuading on the point, as it is not the usual practice of the court to make declarations by consent.
43. The present application was made on 6 January 2015, more than 4 years after the November Order. An attempt was made (unsuccessfully) to challenge the November Order approximately 2 months after it was made through someone describing himself as a "litigation friend" by an Application Notice sent to the court in January 2011. That Application Notice was supported by 3 witness statements, one from each of the second and third defendants and one from Ida Huntley, another member of the CogNott congregation. Ida Huntley was one of the transferees and registered proprietors of Mount Street, who had been served with notice of the proceedings under CPR 19.8A. It is clear that all 3 were acting together, as their interests in the ownership of assets as members of the same congregation were the same. The basis of the application seems to have been that the November Order was only signed by one party, namely the first defendant. As mentioned, this is incorrect as it was signed by the solicitors for the first 2 defendants on their behalf. The third defendant also said he had not been consulted and would not have agreed to the terms had he been. Points were also taken as to suggested lack of clarity in the order, which are not pursued in the application before me.
44. By a letter dated 28 January 2011 the court wrote to the third defendant as follows recording that the January application had been referred to a judge who had made the following comments:

'The application is not accepted as a valid application being neither made nor signed by the third defendant or legal representative. A 'Litigation Friend' cannot be appointed for an adult who has legal capacity. The application is also defective in any event. The order was NOT made by the consent of ALL parties. It was made at the trial of the action which the Third Defendant had not attended. The third Defendant needs either to appeal the order, or if she [sic] has good grounds for not attending the trial she may apply to set it aside. In either case, she would have to set out why she did not attend and why there has been a delay of months in making the application. This is a brief summary of some of the third Defendant's potential options. The Court cannot give legal advice and if the Third Defendant is in doubt as to what she should do, she should seek her own legal advice".

45. This letter did not elicit a response. It is evident that even at that stage the Judge to whom the application had been referred was troubled by the initial delay. In the present application, an attempt has been made to explain the much longer period of delay, but no attempt is made to deal with the initial delay of approximately 2 months, despite the terms of the letter of 28 January 2011.
46. The CogNott congregation (led by the first defendant) sought advice from various quarters thereafter, but none of it appears to have been helpful. The congregation including the third defendant came to believe, as a result of advice received in June and September 2011, that it ought not to bring any applications or commence proceedings, and that it had no chance of obtaining a declaration that it was not bound by the November Order. Much later, in around August 2013, a licensed conveyancer (Rose Davis) who was also a member of the congregation looked at the matter, eventually resulting in further litigation advice in 2014 from the third defendant's present solicitors and counsel, culminating in the application before me in January 2015.
47. The third defendant's solicitors, though originally instructed by the first defendant, now act for the third defendant alone, representing the congregation. The first and second defendants are of course members of that congregation, and the first defendant remains senior pastor.
48. No good reason has been made out justifying the delay down to January 2015. When the court rejected the January 2011 application, the third defendant could have made an application in proper form then but would still, as the court told him, have been expected to explain the delay down to that point. He did not do so. Mr Cowen bravely argues that the delay is excusable, and that the third defendant was let down by the congregation's advisers. I cannot reach that conclusion. Privilege is maintained in relation to legal advice, though the gist is referred to. As Rose Davis, the licensed conveyancer referred to earlier, candidly stated in her witness statement:

"… in all honesty the congregation had been advised time and time again that nothing could be done about the situation and this had wearied them over time."

49. Whatever advice was given at different times has not been shown to have been wrong, because the court has not seen it, though said to include written advice. Moreover, even if there was fault by the lawyers, that still does not excuse the excessive delay in this case. In my judgment, the excessive delay in this case is on any view inexcusable, and fatal to the success of the third defendant's application, on whatever basis it is put. I reach that conclusion after making proper but not overmuch allowance for the difficulties faced by a litigant in person, and after considering the application of the relevant rules and legal principles in the light of the overriding objective. However viewed, the delay in this case is way beyond any margin that a litigant in person might otherwise expect. As was said by Maurice Kay LJ in Tinkler v Eliott [2013] CP Rep 4 at [32]:

"I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person 'did not really understand' or 'did not appreciate' the procedural courses open to him for months does not entitle him to extra indulgence."

50. The point on delay is relevant because the usual way of setting aside an order made in a party's absence is by application under CPR 39.3. That allows a party who fails to attend the trial to apply for the judgment or order made against him to be set aside. However, CPR 39.3(5) provides that the court may grant the application "only" if the applicant:

(a) acted promptly when he found out that the court had exercised its power to … enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) had a reasonable prospect of success at the trial."

51. In my judgment, it is clear that the third defendant does not get over the first hurdle of acting promptly, and I have no discretion, even were I minded to exercise it, to override that requirement.
52. I do not consider that the requirement of CPR 39.3(5)(b) was met either. The third defendant knew that a trial was taking place on the 10 November 2010, and that he had been joined as a party to represent the congregation. He did not attend because of the first 2 defendants' capitulation the day before. He was making common cause with them and had given witness statement evidence of his own in support of their case through their solicitors. He must have realised that the consequence of the capitulation was that the congregation's case, which was in fact intended to be advanced through them and their lawyers, would not be put, and would therefore fail, or at least that there was a real risk of that.
53. As to CPR 39.3(5)(c), I have already said that I cannot say that CogNott's arguments have no chance of success if CogNott was a separate albeit unregistered charity. As to that issue, though I entertain serious doubts about the prospects of success, I would (subject to the issue of abuse mentioned below) resolve those doubts in the third defendant's favour were that the only point against him on this application. The prospects of success on that issue are not in my judgment great, and can hardly be said to carry "a degree of conviction", as it is sometimes put, but are more than fanciful, and would require a fully contested trial for its ultimate determination. However, the form of the 1974 transfer, which declares express trusts in favour of a charity, rules out the alternative case that Mount Street was acquired for the members of the CogNott congregation as an unincorporated non-charitable association. On that alternative case, there is no realistic prospect of success.
54. Mr Cowen, to avoid these difficulties, argues, by reference to Nelsons v Clearsprings (Management) Limited [2007] 1 WLR 962 that CPR 39.3(5) has no application, as the third defendant has never been served or made a party, and the judgment obtained against him was irregular.
55. This argument fails. Even if I accept the basic premise that the November Order itself was irregularly obtained, it does not follow that it has no force as against the third defendant, or that I am required to set it aside. Moreover, in the Nelson case itself, Sir Anthony Clarke MR recognised at [45] [49] and [50]:

(a) that depending on the particular circumstances it might make sense to dispense with service and to refuse to set aside the judgment in order to avoid the expense of fresh proceedings and unnecessary service;

(b) that it is not the case that the discretion to set aside an irregular judgment can only be exercised in one way, namely by setting aside the judgment;

(c) that there may be circumstances in which it will not be appropriate to set aside the judgment, as for instance when the defendant has delayed inexcusably in making his application to the court after learning that the judgment has been entered against him.

56. In my judgment the inexcusable delay in this case is itself a sufficient reason for refusing relief, even on the footing that the judgment is irregular. Further I would, if necessary, dispense with service under CPR 6.16. I consider the circumstances of this case to be exceptional. The third defendant not only knew about the proceedings, the scope of the preliminary issues, his status as a representative party and the trial date. He also participated by supporting the first 2 defendants' case with evidence. In those circumstances, the observations of the Supreme Court in Abela & Others v Baadarani [2013] 1 WLR 2043 at [37] and [38] are pertinent. The reality is that the third defendant was content to leave it to the first 2 defendants to fight the preliminary issue for the congregation. He should not now be allowed to resile from that position. Taking points on service now is playing games.
57. I should mention at this point that some criticism is voiced by the third defendant's solicitor as to the conduct of the first 2 defendants' solicitors in taking a witness statement from the third defendant, who as a party should (it is said) have prepared his own and been responsible for assembling all the evidence which the congregation wished to rely upon. Added to that is the fact that the first 2 defendants' solicitors apparently contemplated the issue of a witness summons to secure the third defendant's attendance. This was said to demonstrate that the third defendant was never more than a mere witness. There is nothing in these points. It is not said that the first 2 defendants' solicitors overlooked evidence that the third defendant would have led if left to his own devices. On the central issue, there was a community of interest between the first 3 defendants. It is perfectly open, and may even be desirable in the interests of avoiding duplication, for parties acting in the same interest to leave it to one of them to shoulder the burden of assembling and leading the evidence, especially where one of them is not legally represented. That apart, there is no property in a witness, and, although unusual, a party is in principle a compellable witness at the suit of another party: see Halford v Brookes & Another (CA, 31 July 1981)^[3].
58. Mr Cowen also argues that as the third defendant was never properly served, he never became a party and cannot therefore be bound by the November Order even though named as a party. He says there is nothing to stop the third defendant and other members of CogNott from bringing a new claim for the same relief. In my judgment, if they did so, that claim would be struck out as an abuse. Even if the premise that the third defendant never became a party is accepted, the fact remains that the third defendant and other congregation members were content to follow the first defendant's lead and leave to it her and her husband to fight the congregation's case for them. It would in my judgment be an affront to the administration of justice, and an abuse, if congregation members could in those circumstances turn around after the event and start again. That would be so in my judgment even if no order had been made joining the third defendant and if no representation order of any kind had been made, as abuse of process arguments may apply beyond the immediate parties to associates^[4]. The third defendant and other congregation members cannot in those circumstances be better off because an order was made that he be joined as a representative party but never (according to him) became one. Fresh proceedings would, in all the circumstances, be an impermissible collateral attack on the November Order. This is therefore another reason for refusing relief. If fresh proceedings would be an abuse of process, the attempt to revive the present proceedings must also be, for the same reasons.
59. The reason the third defendant is said never to have become a party is because the claim form was never served upon him. However, the rules do not in terms require service of the claim form upon a new party. The order joining a new party "must" be served on all parties and any other person affected by the order: CPR 19.4(5). This obviously includes the new party. That may not have happened in this case. I say "may" because, whilst there is no indication on the court file that the original order of 30 April 2010 was served on the third defendant (and the court did not have a proper address for service) an amended version made on 20 May 2010 which I have located on the court file contains a service record indicating that it was sent to the claimants' solicitors "to serve D3". The claimants' solicitors have not said that they did so. I am however told that they have had some trouble reconstituting their file from storage. I have therefore assumed that they did not serve this Order upon the third defendant.
60. The court "may" also, under CPR 19.4(6), give consequential directions as to filing and service of a claim form upon any new defendant and other matters, but is not bound to do so. If (as here) the court makes no consequential directions, the new party is able to require the party joining him to supply without charge copies of all statements of case (which includes the claim form) and other documents and orders: CPR 5APD.3. Whether or not the new party exercises those rights is up to him. If he already has copies of the documents from another source, or does not need them, he will not ask for them. He cannot however claim not to have become a party. Were it otherwise, he could, on Mr Cowen's argument, stay out of the proceedings despite the court's joining him, unless the court should give, which it is not bound to do, directions as to service.
61. The matter is complicated by the terms of CPR 19APD3.3, which provides, citing Kettleman v Hansel Properties Ltd [1987] AC 189, that a new defendant does not become a party to the proceedings until the amended claim form has been served on him. As however no directions were given in this case requiring service of the claim form, it is difficult to see how this paragraph of the Practice Direction can have effect. Kettleman was a case on very differently worded rules prior to the CPR coming into effect, and cannot govern the meaning of the new rules. The point may also only be relevant to limitation. Be that as it may, I doubt whether it can be said that, reading the Rules and Practice Direction as a whole, service is a precondition of becoming a party. The point is perhaps academic, as I am, for the reasons given, prepared to dispense with service if necessary, and regard any attempt to revive these proceedings as an abuse of process.
62. Various other discretionary factors are taken on both sides. I have limited my consideration to those factors which appear to me to matter, without overlooking all other arguments which have been put. A point is also taken on section 115 of the Charities Act 2011, which does not arise in the light of my conclusions on the main arguments.
63. In the result, the third defendant's application is dismissed.

Note 1   See Phipson on Evidence 18th ed., para 24-06 ff.     [Back]

Note 2   This must be a reference to the Order made on 20 May 2010, referred to in paragraph 59 of this judgment, which was entered and sealed on 26 May 2010. This Order set out the whole of the April 30 Order with one amendment.    [Back]

Note 3   The transcript is available on LexisNexis.     [Back]

Note 4   Phipson ibid at para 43-57 ff; Sec State for Trade and Industry v Bairstow [2004] Ch 1 at [38].    [Back]