The Court of Appeal (CA) has dismissed an appeal against a High Court decision refusing to grant members of the management committee (appellants) of a Masjid (a place of worship and community centre) summary judgment on an application for an injunction preventing a number of its worshippers from entering or remaining on the charity’s premises (see Legal update, Charity trustees did not have absolute right to exclude community from place of worship (High Court)).
The CA noted the following points:
- The respondents, as worshippers at the Masjid, had a direct and personal interest in ensuring that the charity was being properly administered by the management committee as charity trustees. Where the management committee sought to bar them from attending prayers, thereby depriving them from the benefits the charity was intended to provide, there was no reason why they should not be able to raise as a defence the allegation that, in issuing the prohibition and bringing the action, the management committee was misusing its powers for an ulterior purpose.
- The judge was entitled to conclude that the fact that the defendants had neither pleaded their proposed defence, nor yet applied to amend, did not prevent him from assessing that they had a real prospect of success in such a defence. Assessing whether a defendant had any real prospect of defending a claim (under CPR 24) is evaluative, not a pure exercise of discretion, but the rule does not prescribe what material the judge can and cannot look at. As CPR 24 recognises, summary judgment applications will often be made before a defence has been pleaded. The defendant must explain what their proposed defence is and give evidence to support it. The judge, as here, must then assess the evidence, not the pleadings.
The CA also dismissed the appellants’ argument that the respondents’ proposed defence amounted to charity proceedings, for which Charity Commission authorisation or court permission had not been sought (under section 115(8) of the Charities Act 2011). When the appellants issued their claim, the proceedings were not charity proceedings. While an action could change from not being charity proceedings to being charity proceedings if further relief was sought, the pleading of a defence could not, itself, amount to bringing or taking charity proceedings.
Case: Bhamani v Sattar [2021] EWCA Civ 243 (26 February 2021) (Peter Jackson, Baker and Nugee LJJ).
