Scottish Court of Session Decisions

This opinion relates to motions for interim interdict in two actions, in both of which the pursuer is the Right Reverend Mark Dilworth, OSB, a former Abbot of St. Benedict's Abbey, Fort Augustus. In the first action the first defenders are Lovat Highland Estates Limited, and the second defenders are the Trustees for St. Benedict's Abbey ("the Abbey Trustees"). In the second action the first defenders are F. A. Properties Limited, a wholly owned subsidiary of Lovat Highland Estates Limited, and the second defenders are again the Abbey Trustees. The pursuer seeks interim interdict against the first defenders in each action from selling, disposing, alienating, leasing or otherwise parting with possession of heritable subjects which were the subject of two separate leases by the then Lord Lovat to the Abbey Trustees. In the first action the subjects extend to 4.475 acres, known as the Upper Garden ground and form part of the grounds of the Abbey. They were leased to the Abbey Trustees by lease dated 13 November and 18 December 1889 and recorded in the General Register of Sasines on 2 January 1890. These subjects are now heritably vest in Lovat Highland Estates Limited. In the second action the subjects extend to 16 acres. They were leased to the Trustees by lease dated 16 and 19 March and recorded in the General Register of Sasines on 5 April 1883. F. A. Properties Limited are now heritably vest in these subjects. The leases were granted to the Trustees in trust for purposes in connection with St. Benedict's Abbey and for no other purpose whatever. Both leases contained the express condition that the subjects let should at no time be used for any other purpose and that in the event of the subjects ceasing to be used in connection with the Abbey, or in the event of the Abbey ceasing to be used, or not being used as a Roman Catholic Abbey of the Benedictine Order, the lease should become null and void and should cease without any declarator or process of law, and the subjects should revert to the proprietor of the Lovat Estate. The Abbey was erected on the land leased and incorporated an independent school. The school continued in existence until 1993 and the Abbey continued in use until early 1999 when the last monks left. Since then the buildings have lain empty.

In 1936 a Deed of Trust was executed by the then Abbey Trustees declaring the purposes and objects for which the Trust Estate, including the heritable property, was held by them and setting out the powers possessed by the Trustees. Among the purposes and objects declared in the Deed were the maintenance of the whole heritable properties possessed by the Trustees situated at Fort Augustus, Lasswade and Edinburgh "for behoof of said Saint Benedict's Abbey, Fort Augustus or elsewhere in Scotland where said Saint Benedict's Abbey may be located". The other purposes and objects were of a religious, educational and charitable nature connected with the Roman Catholic Church. Among the powers which the Trustees were declared to possess were the following,

Following upon the closure of the Abbey a Minute of Agreement was entered into among F. A. Properties Limited, Lovat Highland Estates Limited and the Abbey Trustees in which it was agreed that the Trust would renounce the tenants' interest in the lease of the Upper Garden ground in favour of Lovat Highland Estates Limited and would renounce the tenants' interest in the lease of the 16 acres ("the Abbey subjects") in favour of F. A. Properties Limited. It was also agreed that Lovat Highland Estates Limited would grant a valid marketable title to the Trustees of certain parts of the Upper Garden ground on which had been erected four dwelling houses. It was further agreed that F. A. Properties Limited would grant a lease of part of the Abbey subjects known as The Lodge in favour of the Bishop of the Roman Catholic Diocese of Aberdeen if called upon to do so by the Bishop. I was informed that The Lodge had been converted for use as a chapel with living accommodation for a priest. Pursuant to the Minute of Agreement Deeds of Renunciation of the two areas of land were executed by the Trustees in March 1999 and recorded in the General Register of Sasines.

Since that time the furniture and paintings in the Abbey have been sold and the library dispersed. Vestments and other artefacts are in course of being sold. I was informed that the first defenders had spend considerable sums of money in preparing the subjects for sale. They were put on the market in June 1999, and advertised by Messrs Knight Frank, Chartered Surveyors. A closing date for offers has been fixed for 12 noon on 18 October 1999, the date on which I heard this motion. I was advised that one offer had been received and that there was little likelihood of other offers being made. In the course of the hearing an undertaking was given on behalf of the first defenders that, pending the issue of a written decision on the motion for interim interdict, the first defenders would refrain from acting in contravention of the conclusions for interdict.

In moving for interim interdict, Mr Beynon submitted that there was a prima facie case for the reduction of the pretended Deeds of Renunciation. His first argument was based on the terms of the Constitutions of the English Benedictine Congregation of which St. Benedict's Abbey, Fort Augustus formed part. The English Benedictine Congregation consists of monasteries sui iuris of monks or nuns of the Benedictine Order. The supreme legislative authority of the Congregation is the General Chapter. The General Chapter is held every four years and the next meeting is due to take place in 2001. Monasteries may be erected into Abbeys by the General Chapter. In terms of statute 115, the suppression or closure of an Abbey of monks is reserved to General Chapter after consultation with the Bishop of the diocese in which it is situated. It was argued that in the light of these provisions the execution of the Deed of Renunciation was ultra vires of the Trustees. The Trustees were, it was argued, by necessary implication bound by the terms of the Constitutions by virtue of their membership of the Congregation. The General Chapter had not determined that the Abbey should be suppressed and accordingly the Trustees had purported to close or suppress the Abbey without authority.

Mr Beynon's second argument was that the Trustees had acted outwith their powers in respect that the pretended renunciations constituted gratuitous alienations. of heritable assets. Reference was made to powers (b) and (i) contained in the 1936 Deed of Trust set out above. Since they were gratuitous alienations, the first defenders as grantees were not protected by section 2 of the Trusts (Scotland) Act 1961. Mr Beynon also argued briefly that the Trustees were in breach of trust in respect that their actings disclosed a failure to exhibit the necessary standard of care.

On the question of the balance of convenience Mr Beynon argued that if the first defenders were to proceed with a sale of the subjects the consequential loss to the Trust would be considerable. The tenants' interest in the leases had a value, and the Trust had been deprived of that value. There would be no question of the Trustees as individuals being able to pay damages to the Trust for breach of trust since the present Trustees were all monks of the Benedictine Order who had little, if any, means.

In opposing the motion Mr Rae for the defenders drew attention to the factual background. The Abbey was no longer functioning and the buildings stood empty. The community of monks had dispersed. The nature of the agreement between the Trustees and the first defenders required to be looked at as a whole. The Minute of Agreement disclosed a number of interlocking obligations undertaken both by and in favour of the Trustees. In particular F. A. Properties Limited had, in return for the renunciations, undertaken to enter into a lease of The Lodge in favour of the Bishop of Aberdeen for use as a chapel and living accommodation for a priest. The dwelling-houses constructed on the Upper Garden ground were to be disponed absolutely by Lovat Highland Estates Limited in favour of the Trust for occupation by monks. When the Minute of Agreement was looked at fairly and as a whole, it could be seen that the renunciations did not constitute gratuitous alienations.

Further, argued counsel, the leases had been granted for a single purpose, namely use for purposes in connection with St. Benedict's Abbey, on condition that should the subjects cease to be used in connection with the Abbey, the lease would come to an end and the subjects would revert to the proprietor of the Lovat Estate. While it was accepted that until renunciation the tenants' interest in the lease had a value, any value must in effect have been reduced to nil by the limitations on use of the subjects. The practical effect of the renunciations was to benefit the Trustees by relieving them of the burden of maintaining and using the subjects.

In executing the renunciations the Trustees were acting within the powers conferred on them by the 1936 Deed of Trust. It was clear that the provisions of power (i) were fulfilled in respect that the Diocese of Aberdeen would benefit from the lease of The Lodge, and the Trust would benefit from the acquisition of ownership of the four houses and plots on the Upper Garden ground. In those circumstances, any purchaser from the Trustees was protected by section 2 of the 1961 Act. In any event, the actings of the Trustees only related to the heritable property used by the Abbey. They were not purporting to suppress the Abbey at their own hand. It was clear from the Trust purposes that the entity of St. Benedict's Abbey fell to be distinguished from the bricks and mortar of the Abbey buildings at Fort Augustus. This was illustrated by purpose (a) which involved maintaining the heritable property "for behoof of said Saint Benedict's Abbey, Fort Augustus or elsewhere in Scotland where said Saint Benedict's Abbey may be located". The other purposes of the Trust were wide and not restricted to activities at Fort Augustus Abbey.

On the question of balance of convenience, the subjects had been on the market since June 1999. The closing date had been fixed in September 1999. The intention of the first defenders to sell the Abbey had been public knowledge for a number of months. Despite this the motion for interim interdict had been brought on the morning of the closing date for offers. The winding up of the Abbey had proceeded by the consent of the majority of the community. The tenants' interest in the leases could have no significant value.

I deal firstly with the pursuer's argument that the renunciations of the leases were ultra vires because the Trustees were acting contrary to the provisions of the Constitutions of the English Benedictine Congregation. The English Benedictine Congregation is a voluntary association. The pursuer seeks to prevent what he sees as a breach of the statutes of that association. He however makes no averment that he personally has suffered any loss either to his reputation or to his own property. Nor is it suggested that he will be able to make such averments. It is well established that the Court will take no concern with the internal resolutions or agreements of voluntary associations. In Murdison v Scottish Football Union (1896) 23 R. 449, Lord Kinnear said at page 466,

The Constitutions of the English Benedictine Congregation fall to be regarded as an agreement between the members of the Congregation as to the manner in which the affairs of the Congregation are to be conducted. In the absence of any suggestion that the pursuer has suffered or will suffer patrimonial loss or loss to his reputation, the question as to whether the Trustees have acted contrary to the statutes of the Congregation is not a matter of which the Court can take cognisance. In this branch of his argument the pursuer has accordingly failed to identify a civil wrong. The first argument advanced by Mr Beynon is therefore ill founded..

The pursuer's second argument was that the renunciations of the leases are gratuitous alienations and so were outwith the Trustees' powers. In my view it is artificial to look at the renunciations in isolation. The Deeds of Renunciation are simply the formal means by which certain of the provisions of the Minute of Agreement require to be given effect to. It is to the Minute of Agreement that one must look to ascertain the precise nature of the Trustees' actings and of the agreement which they have entered. When one does that one sees that in return for the renunciation of the leases the Trustees are receiving the proprietorship of the four houses and the plots of ground on which they stand, and the Diocese of Aberdeen is receiving a lease of The Lodge for use as a chapel and priest's house. As I understand it, the four houses are to be used to accommodate monks who formerly occupied the Abbey. Looked at in that way, the Deeds of Renunciation do not fall to be regarded as gratuitous alienations. In my view, the provisions of the Minute of Agreement fall within the power conferred on the Trustees by paragraph (b) of Clause In the Second Place of the 1936 Deed of Trust.

If I am wrong in that conclusion and the renunciations do fall to be regarded as gratuitous alienations, then it is clear in my view that they fall within the power conferred on the Trustees by paragraph (i) of Clause In the Second Place in the light of the benefits to be received by the Trust and the Diocese of Aberdeen.

I therefore conclude that the Trustees' actings were not in breach of trust and that the pursuer has failed to identify any wrong committed by the Trustees. He accordingly has failed to make out a prima facie case. In these circumstances questions of balance of convenience do not arise and I shall refuse the motions for interim interdict.