In a recent round-up we made brief mention of two strongly-worded judgments by June Rodgers Ch which highlighted a general ignorance of and blatant disregard for the faculty jurisdiction. Readers of our post Churchyard boundary dispute: “a most unpleasant case” will be aware that where appropriate, diocesan Chancellors do not mince their words. In Re Emmanuel Church, Leckhampton [2014] Gloucester Cons Ct  and Re St Giles Uley [2014] Gloucester Cons Ct Rodgers Ch certainly didn’t mince hers; and the emboldened sections in the two judgments indicate her considerable exasperation at the behaviour of some of the parties involved.

In Re Emmanuel Church, Leckhampton, the conduct of the priest-in-charge and the churchwardens was described as “really, really stupid” although there was “no evidence they have caused the church actual financial loss”: they were fortunate that the Chancellor considered that “it would not further the mission of the Church to visit the burdens and costs of consequent litigation upon [them] personally”.  In Re St Giles Uley, however, “[the] failures by the Petitioners have given rise to substantial costs, estimated, subject to assessment at about £4,000, the vast majority of which arise from untangling [the] mess”.

The Leckhampton case was about the sale of a painting of Mary Queen of Heaven by the German 19th century Nazarene painter, Franz Ittenbach [15] that had been given to the church in 1949. It was introduced without a faculty, but the Chancellor was satisfied that it had been an outright gift to the church and did not belong to the donating family or their heirs [15]. The parish, which previously had been at the Anglo-Catholic end of the spectrum, had become Evangelical; and the Chancellor

“… was told that it was antipathetic to the worship in this church; it seemed to them to be a ‘Roman Catholic’ item. They wanted rid of it. They decided it had to go. The Priest in Charge said that she knew about faculties regarding church building, but that: ‘At no time in my experience as an ordinand, curate, or vicar have I ever been aware of anyone telling me that I need a Faculty to sell an item of church property’ ” [15].

To cut a long story short, the priest-in-charge and PCC sold the painting without a faculty: what they should have done, said the Chancellor, was to have put the diocesan authorities on notice of their intentions, together with their reasons for wanting to sell the painting, got a proper valuation and an expert opinion on where the painting might have been sold – and applied for a faculty [17]. The painting was sold at auction for a hammer price of £20,000 [19]. On the pre-sale documents the priest-in-charge had signed a declaration on behalf of the churchwardens confirming that they had “the right to sell the items listed, either as owner or as agent for the owner” [18].

Which, of course, absent a faculty they did not. The Chancellor concluded that “Monumental stupidity is involved, some degree of arrogance, and, even possibly [I make no finding as to the latter], a degree of evasiveness” [25]. Nevertheless, she granted a confirmatory faculty, even though the priest-in-charge-and the churchwardens had been

“… really, really stupid … they have not been dishonest. In their misguided way, they supposed, albeit erroneously, they were acting for the good of the Church. But further, there is no evidence they have caused the church actual financial loss, in that I have held that the auction was fair and an open market price achieved and Mr Alden Bennett [the purchaser], although whether he was misled or acted incautiously I make no finding, has otherwise acted honourably” [33].

She concluded by ordering “That the Diocesan Registrar sends copies of this Judgment forthwith to secretaries of trade bodies for auctioneers and fine art and antique dealers in the United Kingdom”, presumably in the hope that it would reduce the likelihood of a repetition.

In Re St Giles Uley the issue was internal reordering. The nub of the issue, in the Chancellor’s words, were that the Petitioners

“… signally failed to comply [with Rule 4(2), about giving proper notice] and gave their proposals the minimum of publicity that they felt they could get away with. Worse, when their failure to make any adequate public display was drawn to their attention, I extended the time within which objections could be made. I am saddened that even with this having happened, the Petitioners continued to be coy about presenting a full and frank display of just what they were proposing” [49].

There had been “a complete failure by the Petitioners to comply with the spirit let alone the letter of the rules under which they were to operate” [54] and the petition was set aside. The Petitioners’ excuses for the breaches “[did] not hold water. They are totally inexcusable in the circumstances…” [56].  The Petitioners were to bear their costs of the Petition.

Comment

Whilst Emmanuel Church, Leckhampton and St Giles Uley focus on the shortcomings of the clergy and PCC members, there are clearly lesson to be learned all round. Taken together, these two cases seem to demonstrate what we have long suspected: that some ministerial training programmes seem to be seriously defective in teaching ordinands about the basics of professional practice. Why that should be, we can only speculate. Lack of time is obviously an issue; but we also wonder whether there might be an element of distrust in the law as being in some way inimical to grace.  But the law is the law: it’s binding on parties and not merely some esoteric add-on thought up by ecclesiastical lawyers to keep themselves amused. Or as Chancellor Rodgers put it: “this is not just some legal gobbledygook”.

Likewise, these cases (and Emmanuel Church, Leckhampton in particular) demonstrate the problems resulting from the Church’s reliance on unpaid officials and ministers,  a fact alluded to in the judgment [25].  In this case, however, changes have been introduced: a terse comment in the church’s blog of 22 September 2014 states that following a review of the South Cheltenham Team, the post of Team Vicar has been made a half-time stipendiary post[1].

Although churchwardens are ex officio officers of the Ordinary, Hill notes[2] “save for the compulsory vacation of office upon a churchwarden becoming disqualified[3], there is no power to remove or suspend a churchwarden for misconduct”.  Likewise, possible action against PCC members is very limited, although they might be reminded of their duties as charity trustees and directed towards the CofE’s document A brief outline of what every PCC member needs to know about church finances.

It is difficult to see what additional action could have been taken by the Chancellor during the course of the proceedings. This included, inter alia: directions in Uley which could not have been more “clear or simple”; forwarding copies of the Leckhampton Judgment to secretaries of relevant trade bodies; and a requirement for the public display of the judgments on church noticeboards and the diocesan web site.

On this last point, it would be helpful if all dioceses followed the example of the Chichester Consistory Court which, in addition to examples of common issues relating to the faculty jurisdiction within the diocese, provides a link to all its judgments since January 2000 as well as notices of proposed works. However, as the Gloucester cases demonstrate, such information has to be read and acted upon, not ignored.

Frank Cranmer and David Pocklington

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[1] The Parish Update (No 8 of January, 2014) indicated that it was the intention of the Priest in Charge to leave the Emmanuel Church and the Team in summer.

[2] M Hill, Ecclesiastical Law (3rd edition, Oxford University Press, 2007), at 3.47. page 86.

[3] Under one of the three general disqualifications in s8(1)(a)-(c) Churchwardens Measure 2001.