Shergill & Ors v Khaira & Ors [2014] UKSC 33

A dispute arose within a Sikh sect over trusteeship of Gurdwaras in Birmingham and High Wycombe. The Supreme Court held that religious issues are justiciable where necessary to determine civil rights, overturning the Court of Appeal's permanent stay of proceedings.

Facts

The appeal concerned divisions within a Sikh sect associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and High Wycombe. In 1987, meetings of Sikhs in the Midlands resolved to establish a Gurdwara under the guardianship of the First Holy Saint of Nirmal Kutia, Johal, in India. The Birmingham Gurdwara was purchased in September 1987 using donations from devotees and transferred to four original trustees in November 1987.

On 15 January 1991, the original trustees executed a Deed of Trust (“the 1991 Deed”) declaring the property was held for a religious society following the teachings of the First Holy Saint “or his successor”. Clause 5 empowered “the Saint or his successor” to remove and appoint new trustees at any time. Constitutions were adopted in 1991, 1993 and 2003 applying to the three Gurdwaras, with postscripts identifying particular named successors.

The First Holy Saint died in late 2001 and was succeeded by Sant Harbhajan Ji, who died in March 2002. The appellants claimed that Sant Jeet Singh was then recognised as the Third Holy Saint. Purporting to exercise powers under clause 5, Sant Jeet Singh removed the first to fourth respondents as Birmingham trustees and the fifth and sixth respondents as Wycombe trustees, replacing them with the appellants. The respondents disputed his authority and his status as successor.

Issues

Four issues emerged: (i) whether clause 5 of the 1991 Deed was invalid in so far as it purported to confer the power to appoint and dismiss trustees on persons other than the First Holy Saint; (ii) whether “successor” in the 1991 Deed was limited to the immediate successor (Sant Harbhajan Ji) or extended to each subsequent Holy Saint; (iii) whether Sant Jeet Singh was in fact a successor to the First Holy Saint; and (iv) whether Sant Jeet Singh had departed from mainstream Sikhism such that he was unfit to be the successor.

The overarching question on the appeal was whether the whole dispute was non-justiciable, as the Court of Appeal had held, on the basis that there were no “judicial or manageable standards” by which to judge issues turning on religious belief.

Arguments

Appellants

The appellants contended that trustees have implied authority, where a charitable trust is set up on somewhat indefinite terms, to declare more specific trusts, relying on Attorney-General v Mathieson [1907] 2 Ch 383. They further submitted that the respondents, having acted as trustees under the 1991 Deed for many years, could not challenge its validity. They argued that “successor” extended to each successive Holy Saint, and that the third and fourth issues, though touching on religion, were justiciable because they were necessary to determine civil rights over trust property.

Respondents

The respondents contended that the 1991 Deed was invalid in so far as it purported to extend the power of appointment beyond the First Holy Saint, as it went beyond the terms of the 1987 memoranda under which donations had been collected. They further argued that section 36(1) of the Trustee Act 1925 crystallised the power to appoint trustees on the First Holy Saint’s death and could not be delegated. They contended that “successor” was limited to Sant Harbhajan Ji, and that the third and fourth issues were non-justiciable because they depended upon religious belief.

Judgment

The first two issues

The Supreme Court declined to determine the first two issues on this interlocutory appeal, considering the law surprisingly undeveloped, the issues insufficiently pleaded and fact-sensitive. However, the Court expressed tentative views. As to the first issue, the Court considered that Mathieson provided two strands: trustees appointed under a trust deed cannot generally challenge its validity; and trustees of a charitable trust set up in indefinite terms have implied authority to declare more specific trusts, provided they do not depart from the general objects of the donors. Clause 5 did not appear inconsistent with the 1987 memoranda. The Court doubted the respondents’ section 36(1) argument, considering it arguable that the Mathieson principle permitted the inclusion of provisions extending the power of appointment. As to the second issue, section 61(c) of the Law of Property Act 1925 meant “successor” could naturally include successive holders, and there was no indication the trust was time-limited.

Non-justiciability

The Court held that the Court of Appeal had misunderstood Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888. Non-justiciability properly refers to cases inherently unsuitable for judicial determination by reason of subject-matter, falling into two categories: (i) matters beyond the constitutional competence of the courts (such as certain transactions of foreign states or proceedings in Parliament); and (ii) claims or defences based neither on private legal rights nor on reviewable public law. Even where an issue would be non-justiciable in the abstract, it must be resolved where necessary to determine a justiciable claim of legal right.

The Court reviewed authority on religious disputes. Unincorporated religious communities are treated as voluntary associations governed by a civil contract. Courts will adjudicate disputes where civil rights or interests are engaged, including where trust property is held for religious purposes. The Court endorsed the principle in Craigdallie v Aikman (1813) 1 PC Dow 1 and General Assembly of the Free Church of Scotland v Overtoun [1904] AC 515, that where schism divides a religious body, property follows those adhering to the fundamental religious principles identified in the trust or contract of association. The Court quoted Lord Eldon in Attorney General v Pearson (1817) 3 Mer 353:

“[W]here a congregation become dissentient among themselves, the nature of the original institution must alone be looked to as the guide for the decision of the Court, and that to refer to any other criterion, as to the sense of the existing majority, would be to make a new institution, which is altogether beyond the reach, and inconsistent with the duties and character, of this Court.”

The Court also quoted Lord Justice-Clerk Aitchison in McDonald v Burns 1940 SC 376 as to the circumstances in which the civil courts entertain actions arising out of judgments of ecclesiastical bodies, and endorsed Lord Drummond Young’s opinion in Smith v Morrison 2011 SLT 1213 that “in every case … it is the trust deed or other agreement that determines what are the fundamental principles on which the congregation associated.”

Applying these principles, the Court held that determining whether Sant Jeet Singh has power to appoint and dismiss trustees may require investigation of the fundamental tenets of the First Holy Saint and the Nirmal sect, the nature of the institution at Nirmal Kutia, the steps required for succession, and whether Sant Jeet Singh’s teachings and qualities comply with the trust’s religious aims. These issues, though religious in character, are justiciable because their resolution is necessary to determine civil rights over trust property. The Court also considered Blake v Associated Newspapers Ltd and Ex p Wachmann, disapproving reliance upon them as authority for non-justiciability of religious issues where civil rights are engaged.

The Court allowed the appeal, restored the order of Judge Cooke (including permission to amend the particulars of claim), and remitted the proceedings to the High Court, indicating that expert evidence would likely be appropriate given the fourth issue.

Implications

The judgment clarifies the doctrine of non-justiciability in English law. It confines the doctrine to two well-defined categories and rejects any broad principle that religious or theological disputes are inherently beyond the courts’ competence. Where the resolution of a religious question is necessary to determine private legal rights (particularly over property held on trust) or reviewable public law questions, the courts must adjudicate, applying objective standards derived from the trust instrument or contract of association.

The decision reaffirms the longstanding line of authority from Craigdallie v Aikman through Free Church of Scotland v Overtoun to Varsani v Jesani, extending its application across all religious communities in the United Kingdom, including Sikh, Hindu and Muslim communities. It confirms that religious voluntary associations are governed by their contractual constitutions and that courts will intervene where governing bodies act ultra vires or in breach of natural justice, particularly where civil interests such as remunerated office or property rights are affected.

The judgment also tentatively signals that the principle in Attorney-General v Mathieson permits trustees of loosely defined charitable trusts to declare more specific trusts, and casts some doubt on whether beneficiaries or trustees may challenge such deeds, though these points remain to be worked out at trial. The Court expressly kept its observations on the first two issues at a tentative level so as not to prejudge the trial.

Practically, the decision matters to religious communities holding property on trust, to trustees of such property, and to legal practitioners advising them. It underlines that religious disputes with civil consequences cannot be shielded from judicial scrutiny by their theological character, though the courts will not pronounce on the truth or reasonableness of religious doctrine as such. It also highlights the availability of the cy-près jurisdiction as a possible means of avoiding determination of religious controversy.

Verdict: Appeal allowed. The Supreme Court set aside the Court of Appeal’s stay of proceedings and restored the order of Judge Cooke, including permission to amend the particulars of claim. The proceedings were remitted to the High Court for further directions, with the Court indicating that expert evidence was likely to be appropriate in light of the newly raised fourth issue.

Source: Shergill & Ors v Khaira & Ors [2014] UKSC 33