Achieving judicial balance where the outcome is (almost) certain

The installation of telecommunications equipment in church towers is now well-established and is underpinned by rigorous technical standards, both domestic and international, and by supportive case law within the ecclesiastical courts. Nevertheless, new installations are considered on a case-by-case basis, and in the recent interim judgment Re St James Kidbrooke [2016] ECC Swk 13, it was necessary for the chancellor to balance an objector’s right to be heard against the petitioners’ petition for security for costs.

Background

The petitioners, the Rector, churchwardens and Net Coverage Solutions Limited, sought a faculty to install twelve antennae and two dishes in the tower of St James Church, Kidbrooke, and for authority for the incumbent and the PCC to enter a licence agreement for a term of twenty years with Net Coverage Solutions Limited in respect of the operation of the said telecommunications equipment. The sole party opponent, Miss Velma Lyrae, considered that the installation would be harmful to her health and that of other local people. She did not consent to the matter being determined on the basis of written submissions and sought an oral hearing to consider her objection. The Chancellor observed:

[6]… Anyone with a sufficient interest may object to the grant of a faculty. A person who considers that he or she may be physically harmed by a proposal will invariably be considered to have standing to object and, indeed, there has been no objection to Miss Lyme’s standing in this matter. However Miss Lyrae, or someone in her position, has a potential hurdle to overcome. In Re Bentley Emmanuel Church [2006] Fam 39, summarized here, the Court of Arches made it clear that it would not normally be appropriate to refuse the grant of a faculty for telecommunications equipment if it met the standards for such equipment laid down in Government guidance and applied through the planning system. Accordingly, as long as a proposal meets such guidelines, it would not normally be appropriate for a Consistory Court to refuse a faculty for it.

[7]. If what is set out in paragraph 6 above is the general approach, nonetheless the Court of Arches envisaged that in a particular case a party opponent might be able to demonstrate by reference to scientific evidence that it would not be appropriate to grant a faculty.

Miss Lyrae indicated that she would call two witnesses, one addressing the health issue, the other dealing with matters relating to electrical engineering, but the day before the Reports were due she asked for extension of time for service of her experts’ reports. The Chancellor’s direction, which is attached to the judgment, declined such an extension; immediately upon the failure of the party opponent to serve her reports, the Petitioners applied for security for costs.

Ms Lyrae had explained in her earlier submissions that she was not in a financial position to pay to instruct experts and (although the Petitioners did not draw this to the Chancellor’s attention) that she was relying on Social Security to live on [13]. The Petitioners stated that Miss Lyrae was still objecting to the grant of a faculty but that there was no possible basis on which the Chancellor might properly decline to grant it; additionally they indicated the likelihood of seeking an inter partes order for costs against Miss Lyrae if they were successful in their petition, and were themselves prepared to pay up to £3,000 into Court to match any security which Miss Lyrae might be ordered to pay [14, 15].

From her response dated 3 October 2016, it was apparent that Miss Lyrae still hoped to be able to pay for experts’ reports, more particularly by crowd-funding. She indicated that, even on the basis that the agreement complied with standards which the Court might consider to be appropriate, she considered that the provisions of the proposed licence agreement were inadequate in the protection that they would afford to local residents, particularly in terms of monitoring [28].

Law on security for costs

The complexities of the law in this area and its associated guidance were reviewed in detail [16 to 22, and 23 to 25, respectively]. As the petition was submitted before 1 January 2016, the proceedings were governed by the Faculty Jurisdiction Rules 2013. This proved problematic since the Faculty Jurisdiction Rules 2015, which came into force on 1 January 2016, were the first measure in which express provision was made for security for costs by the ecclesiastical courts.

Whilst Rule 19.5(2) of the Faculty Jurisdiction Rules 2013 provides that “the chancellor must be guided, so far as practicable, by the Civil Procedure Rules”, the Chancellor “did no derive anything of assistance in considering the exercise of his power to order security for costs from anything in the CPR” [32], a copy of which was included as the Annex to the judgment. He therefore approached the application for security for costs seeking to apply the principles contained in the Faculty Jurisdiction Rules 2013 rule 1.1 and 1.4 [33].

After considering the issues raised [35 to 41], Chancellor Philip Petchey concluded:

“[42]…I think that the proportionate answer to resolving the competing interests in this matter in accordance with the overriding objective is not to require security for costs. It is a very serious step to make an order which is likely to have the practical effect of debarring a party opponent and I do not feel justified in making it in the present case.

 [43] Miss Lyrae should note that I am not saying that I will not in due course make a costs order against her, whether in respect of the court costs or the Petitioners’ costs or both – whether I do or not must be a matter for future submissions, the outcome of which I cannot prejudge (as she herself has pointed out).

He concluded by directing Miss Lyrae “not later than 4 pm on 1 November 2016 to reduce to paper the reasons why she considers the licence agreement inadequate and why she thinks that a faculty should not be granted [44].” The Petitioners were then required to produce a response document by 4 pm on 11 November 2016, although there was no need for them to produce any justification for the safety of the installation in addition to that accepted by the Court of Arches in In re Emmanuel Church, Bentley [2006] Fam 39.

In the light of this written material, the Chancellor “[hoped] that the issues will be clearly identified, enabling the hearing on 21 November 2016 to focus on the matters which are material to [his] decision”.

Comment

In view of the on-going nature of this case, comments will be restricted to general observations that may be made in relation to security for costs:

• In developing the commercial arrangement with Net Coverage Solutions Limited, the petitioners were carrying out their duties as charity trustees, an issue addressed in posts here, here and here. 

• It could be argued that this duty extends to seeking security for costs; the financial position of the party opponent was a factor taken into consideration by the Chancellor, who specifically commented that the petitioners did not draw some aspects of this to his attention [13].

• There are parallels with the extent to which PCCs should pursue payments for Chancel Repair Liability, as discussed here.

Two important issues had to be addressed by the Chancellor: the lacuna in the relevant law on securing costs; and the potential for the party opponent to demonstrate by reference to scientific evidence that it would not be appropriate to grant a faculty. The thorough approach adopted by the Chancellor enabled him to navigate around the former with relatively little assistance from other sources; the provision of scientific evidence is in the hands of the party opponent, and will be subject to subsequent assessment by the court. This will no doubt draw upon considerations of analogous situations in earlier case law.

Although future petitions for security for costs are now covered by the Faculty Jurisdiction Rules 2015, the requirement for a balancing exercise such as that in the instant case remains unchanged.