The Charity Commission for England and Wales has published a response to the ruling in Watch Tower Bible & Tract Society of Britain & Ors v The Charity Commission [2016] EWCA Civ 154, in which the Court of Appeal ruled that Watch Tower might apply for judicial review of the Commission’s Production Order for the disclosure of sensitive documents as part of its statutory inquiry but dismissed Watch Tower’s application for review of the Commission’s decision to open the inquiry in the first place. Unsurprisingly, the Commission has welcomed the second but has reservations about the first.

“The commission is disappointed that the Court of Appeal found in favour of Watch Tower in one respect, deciding that the challenge to the commission’s Order seeking documents from the charity should be heard by the Administrative Court rather than the Tribunal. This decision was reached because of the specific wording of section 320 of the Charities Act 2011, which limits the Tribunal’s jurisdiction to hear challenges to such Orders. The commission continues to believe that the specialist Tribunal is the correct venue to hear such challenges. The commission has concerns that this judgment may cause confusion to charities and trustees wishing to challenge an Order under section 52 of the Charities Act 2011, as they will now need to work out whether the Administrative Court or the Charity Tribunal is the right place to bring the challenge.

Subject to any appeals, the next step in the litigation will be for the Administrative Court to consider whether Watch Tower has put forward arguable grounds to challenge the Production Order, and therefore whether the Production Order should be assessed by the Administrative Court at a full hearing. The commission continues to defend the issuing of the Order. Subject to any appeal by Watch Tower, its challenge to the opening of the commission’s inquiry is at an end” [emphasis added].

Which raises the question, does the Commission propose to seek permission to appeal to the Supreme Court over the judicial review of its Production Order? Or does the Watch Tower Bible & Tract Society intend to seek permission to appeal over the refusal to review the Commission’s original decision? Watch this space…