| NICh 26||Ref:||McB10445|
|Judgment: approved by the Court for handing down||Delivered:||14/11/2017|
|(subject to editorial corrections)*|
(a) On 3 May 2013 the respondent instituted an inquiry (“"the statutory inquiry”") pursuant to section 22 of the Charities Act (Northern Ireland) 2008 (“"the 2008 Act”") into the charity. The appellant was at that time a trustee of the charity.
(b) On 8 May 2013 the appellant, in his personal capacity, purportedly on behalf of the charity, in accordance with the provisions of Schedule 3 Part 4 of the 2008 Act, submitted an application to the tribunal for review of the respondent’'s decision to institute the statutory inquiry.
(c) On 2 July 2013 the tribunal struck out the appellant’'s application and at paragraph 22 of its written statement of reasons stated:- “"the tribunal unanimously concludes that the applicant does not have standing to bring an application”". The tribunal failed to advise the appellant of his right of appeal.
(d) On 25 August 2015 the appellant was removed as a trustee. His appeal against his removal was unsuccessful.
(e) The statutory inquiry was closed on 20 January 2015 and the respondent published its report into the inquiry.
(f) On 17 December 2015 Horner J in AGNI v The Charity Commission  NI Ch 18 ruled that “"a single trustee does have the necessary standing to seek a review under Schedule 3 of the 2008 Act of a decision by the Commission to hold a statutory inquiry”". This decision was upheld on appeal.
(g) On 22 December 2015 the appellant submitted an application for review of the respondent’'s decision dated 3 May 2013 and requested the tribunal to extend time, as his application was outside the statutory time limit of 42 days.
(h) On 3 February 2016 the tribunal stayed the application pending the outcome of the appeal of Horner J’'s decision to the Court of Appeal.
(i) On 10 February 2017 the tribunal refused to extend time for the appellant to make his substantive appeal.
(j) On 13 March 2017 the tribunal refused to grant the appellant permission to appeal its decision dated 10 February 2017, to the High Court.
Relevant statutory scheme
“"(a) dismiss the application, or
(b) if it allows the application, exercise any power mentioned in the entry in column 3 of the Table which corresponds to the entry in column 1 which relates to the reviewable matter”".
“"Power to direct the Commission to end the inquiry”".
“"…may be brought… only on a point of law.”"
“"…may be brought only with the permission of-
(a) the tribunal, or
(b) if the tribunal refuses permission, the Court.”"
“"1. An appeal … must be made by way of an appeal notice, signed, dated and filed by an appellant.
(a) if the appellant was the subject of the decision to which proceedings relate, within 42 days of the date on which notice of the Commission’'s decision was sent to the appellant; or
(b) if the appellant was not the subject of the decision to which the proceedings relate, within 42 days of the date on which the Commission’'s decision was published.
(a) a statement of the reasons for the delay in making the appeal or application; and
(b) any information that will assist the tribunal when it considers the matters set out in Rule 4”".
“"Where an appellant has made a request under Rule 17(8) to the tribunal for a direction under Rule 3 to allow an appeal or application to be made after the time limit for doing so has expired, the tribunal must consider –
(a) What steps (if any) the Commission has taken to notify or publicise its final decision;
(b) When the appellant became aware of the Commission’'s final decision; and
(c) When the appellant became aware of the right to make the appeal or application and of the time limit for making the appeal or application”".
Tribunal’'s decision dated 10 February 2017
(a) At the time the application was filed on 22 December 2015 the applicant was no longer a trustee and therefore lacked standing. This defect could not be overcome on the basis the 22 December 2015 application was a “"resurrection”" of the previously dismissed application.
(b) Time should not be extended because:-
i. The decision of Horner J did not change the law. At all times it was open to the appellant to bring an application within time in his capacity as a single trustee of the charity. The tribunal rejected the appellant’'s submission that delay arose because the tribunal had erroneously rejected his initial application and he only became aware of the fact he did have standing to make an application when Horner J delivered his judgment on 17 December 2015.
ii. No remedy was available to the appellant. Even if the appellant was successful in the substantive appeal, the only power available to the tribunal under the 2008 Act was to order the inquiry to be closed. As this had already occurred no remedy was available to the appellant.
iii. The tribunal found, as a fact, that the decision to open a Section 22 inquiry was made by the respondent and not by one of its officers.
Tribunal’'s decision dated 13 March 2017
(a) Satisfied that the statutory inquiry was opened pursuant to a decision of the respondent.
(b) The application was considerably out of time.
(c) No remedy was available to the appellant even if he was successful in the substantive appeal.
(d) The appellant could have appealed the decision of the tribunal dated 2 July 2015 to strike out his first application. The tribunal found that he was a person who was “"fully aware “"of his right of appeal to the High Court.
Grounds of appeal
“"The tribunal erred in law in failing to exercise its discretion and grant the appellant’'s application. This is important as the matter at issue is an important public law issue. The tribunal erred in law by not finding that this deficiency in procedure led to unfairness to the appellant, sufficient to justify the tribunal allowing the application”".
The other grounds set out in the notice of appeal relate to the substantive appeal.
Submissions of the appellant
(a) Failed to give weight to the unique circumstances of his case. He had filed a valid appeal within time. The only reason the appeal was not heard was because the tribunal incorrectly interpreted the relevant legislation and as a result erroneously struck out his appeal. As soon as the appellant became aware of Horner J’'s ruling, which identified the tribunal’'s error, the appellant immediately initiated this appeal.
(b) Wrongly concluded the appellant had no remedy in the event he was successful in respect of the substantive appeal.
(c) Reached a decision on the substantive issue without hearing all the evidence.
(d) Reached a decision on the substantive issue which was wrong in law and in fact and consequently took an irrelevant factor into account.
(e) In the exercise of its discretion failed to apply the principles set out in Davis v NI Carriers  NI 19. In its judgment the tribunal failed to refer to these principles and conspicuously failed to take into account the following Davis principles:-
(i) Whether the refusal to extend time would mean the merits of the case would not be considered
(ii) Whether the appeal raised a substantive legal issue regarding the interpretation of the 2008 Act; and
(iii) Whether the appeal raised an issue of general public importance.
(a) The time for appeal was sped.
(b) The applicant did not have a good explanation for his delay as he could have appealed the tribunal’'s decision striking out his original appeal.
(c) Granting the application would divert resources from the work of the Commission.
(d) Certainty in public administration would be undermined.
(e) The tribunal could grant no remedy to the applicant even if the appeal was successful.
(f) There was no point of substance as the legal issue in contention is presently being taken in other cases and will be determined in these other cases.
Legal Test to be applied on appeal from the exercise of discretion by the Charity Tribunal
“"an error of law, such as when the Employment Tribunal goes wrong in principle in its approach to the discretion, or when it makes a decision which is so wrong that no reasonable Employment Tribunal, properly directing itself, could have made it on the material before it”" (paragraph ).
“" In relation to case management the ET has exceptionally wide powers of managing cases brought by and against the parties who are often without the benefit of legal representation. The ET’'s decisions can only be questioned for error of law. A question of law only arises in relation to their exercise, when there is an error of legal principle in the approach or perversity in the outcome. That is the approach, including failing to take account of a relevant matter or taking account of an irrelevant one, which the EAT should continue to adopt rather than the approach in Terluk v Berezovsky  EWCA Civ 1345 as summarised in the headnote quoted above. It is to be hoped that this ruling will put an end to the `apparent confusion in authority’' on the point …
. Fifthly, the EAT’'s application of the Terluk approach led it into substituting its own decision on the exercise of the discretion for that of the ET. That was an error of law on its part. The ET did not err in law by reaching a decision that the EAT would not have made, had it been considering the application to adjourn. What is fair in the interests of the parties is, in the first instance, a matter for assessment by the ET. The EAT ought only to intervene if the ET has erred in principle or produced a perverse outcome in the sense that no reasonable tribunal could have concluded that it was fair in all the circumstances to refuse the adjournment.
. Finally, Article 6 of the Convention does not compel the ET to the conclusion that it is always unfair to refuse an application for an adjournment on medical grounds, … there are two sides to a trial, which should be as fair as possible to both sides. The ET has to balance the adverse consequences of proceeding with the hearing in the absence of one party against the right of the other party to have a trial within a reasonable time and the public interest in prompt and efficient adjudication of cases in the ET.”"
(a) There was an error of legal principle; or
(b) It made a finding of fact that no reasonable tribunal could have reached on the evidence and which had a material effect on its value judgment; or
(c) It failed to take into account a relevant matter or took into account an irrelevant one; or
(d) There is perversity in the outcome.
Test for Leave to Appeal
Principles for extending time
“"1. Whether the time is sped: a court will, where the reason is a good one, look more favourably on an application made before the time is up;
2. When the time limit has expired, the extent to which the party applying is in default;
3. The effect on the opposite party of granting the application and, in particular, whether he can be compensated by costs;
4. Whether a hearing on the merits has taken place or would be denied by refusing an extension;
5. Whether there is a point of substance (which in effect means a legal point of substance when dealing with cases stated) to be made which could not otherwise be put forward; and
6. Whether the point is of general, and not merely particular, significance…
7. …that the rules of court are there to be observed.”"
“"Although the FTT gave permission to appeal to the Upper Tribunal in the belief that there was a lack of case law on the approach to be adopted to an application for an extension of time pursuant to Section 83G(6), there was no real difference of approach between the parties before me. That is not surprising. Applications for extensions of time limits of various kinds are common place and the approach to be adopted is well established. As a general rule, when a court or tribunal is asked to extend a relevant time limit, the court or tribunal asks itself the following questions:-
1. What is the purpose of the time limit?
2. How long was the delay?
3. Is there a good explanation for the delay?
4. What will be the consequences for the parties of an extension of time? and
5. What will be the consequences for the parties of a refusal to extend time?
The court or tribunal then makes its decision in the light of the answers to those questions.”"
“"(b) any person mentioned in the entry in column 2 of the Table.”"
Column 2 of the Table provides-
“"The persons are –
(a) the persons who have control or management of the institution…”"
“"once a section 22 inquiry has been initiated individual trustees would be powerless to take action in the Charity Tribunal against what, it is said, may be a scandalous abuse of the Commission’'s powers. While the interests of individual trustees are protected by the trustee’'s right of appeal against decisions to suspend or remove a trustee, that right of appeal only arises after the Commission has undertaken an inquiry”".
In the same way, if standing were to be assessed at the date of an application to review the Commission’'s decision to institute a statutory inquiry, a trustee of a charity could find that by that time he has already been stuck off as a trustee consequent upon the institution of the statutory inquiry and therefore unable to seek a review. Such a trustee would therefore be left powerless to take action in what may be a case where the Commission has acted improperly or unlawfully. I am satisfied that such an interpretation does not accord with the intention of the Northern Ireland Assembly.
“"….predicated on him being, at the time of the opening of the section 22 inquiry, a trustee of the charity”".
Notwithstanding this finding by the tribunal as to the interpretation of the 2008 Act, it then held, in contravention of its own interpretation, that the appellant lacked standing because he was not a trustee at the date of his application.
“" The Attorney General advances a broad policy ground for his wider interpretation of the power to apply for review, namely that a dominant voice should not be able to shut out what may be an oppressed or dissenting minority and that once a section 22 inquiry has been initiated individual trustees would be powerless to take action in the Charity Tribunal against what, it is said, may be a scandalous abuse of the Commission’'s powers. While the interests of individual trustees are protected by the trustee’'s right of appeal against decisions to suspend or remove a trustee, that right of appeal only arises after the Commission has undertaken an inquiry.
 We have no reason to suppose that in this, or in any, case the Commission would abuse its powers but the exercise of the power to initiate an inquiry may impact on anyone involved in the control or management of an institution. Issues may arise in an institution by reason of different interests within the institution. Limiting the power of review to those in overall control may disadvantage others. The right of a trustee to appeal a decision to suspend or remove a trustee may come too late in the process to address that disadvantage. Reliance on an overarching supervisory role of the Attorney General to address any such disadvantage may be unwelcome in drawing that office into all such disputes …”"