The recently-decided case Re St Andrew’s Chinnor  ECC Oxf 4 concerns a petition which sought permission for the introduction of a ‘desk type’ ledger stone in the churchyard, contrary to the wishes of the incumbent and PCC. The outline of the case is summarized below, but the area of interest is the approach of the Deputy Chancellor, the Reverend Christopher Rogers, in his application of summary jurisdiction within the consistory court.
The petitioner sought to introduce a ledger stone in the form of a desk tablet as a memorial to her husband, which fell outside the requirements of the Churchyard Regulations. The Rector stated by e-mail that she “would object”, having turned down similar applications, but that given that she was leaving the diocese she would leave it to the churchwardens to address . Despite being given clear warning by letter from the Registry of the costs consequences of becoming a party opponent (Rule 10.3, Faculty Jurisdiction Rules 2015), the churchwarden nevertheless chose to do so , citing three grounds for his objection . Following further correspondence with the churchwarden , the Deputy Chancellor indicated that he was minded to grant the requested faculty on a summary basis, and invited reasons to dissuade him from that course within 14 days .
Basis for summary judgment
The Deputy Chancellor’s basis for summary judgment is explained in the following extract [emphasis in original]:
“. Where a petition is disputed, as in this case, it would normally proceed to a full hearing, save that the parties can agree for it to be dealt with on the basis of written representations. In the present case however, the Grounds of Objection do not in my view disclose grounds which would have any real prospect of success were the matter to proceed, for the reasons set out below.
. The Faculty Jurisdiction Rules 2015 (‘the Rules’) do not include a section equivalent to Part 24 of the Civil Procedure Rules (‘the CPR’), allowing for applications for summary judgment. Nor do they include a rule dealing with striking out a statement of case or part thereof. Rule 1.4(1) does however provide that the court ‘must further the overriding objective by actively managing cases.’ Rule 1.4(2)(c) goes on to provide that includes ‘deciding promptly which issues (if any) need full investigation and a hearing in court and accordingly disposing of others summarily or on consideration of written representations.’ [emphasis added]
. In the circumstances I have a duty to consider in a case such as the present one whether the issues raised need full investigation, or whether they should be dealt with summarily. The overriding objective is defined at Rule 1.1(1) as being ‘to enable the court to deal with cases justly,’ which Rule 1.1(2) states as including a concern for saving expense, dealing with the case in a way which is proportionate to the importance of the case and the complexity of the issues, and ensuring that it is dealt with expeditiously and fairly.
. The Rules do not however provide for any test to be applied when deciding whether to dispose of cases summarily. I therefore take note of the test under Part 24.2 of the Civil Procedure Rules, that summary judgment may be given if a party has no real prospect of succeeding in either bringing or defending a claim, or on a particular issue. This seems reasonable given the similarity of the overriding objective in the CPR and in the Rules, and the absence of any other criteria or rule dealing with the same. Furthermore, as dealt with below, I do not consider the Grounds of Objection to have any prospect of success, and this petition would not therefore depend on the precise formulation of the test.”
Reviewing the grounds for objection, the Deputy Chancellor ruled: the first of the Grounds, that a previous application had been made and refused by the Rector, was irrelevant ; the second, that the Rector was applying the rules, was similarly irrelevant ; and the third, that the archdeacon instructed the Rector to apply the diocesan churchyard regulations was similarly irrelevant. He therefore concluded:
“. The Grounds of Objection do not therefore disclose any, or any real, prospect of successfully opposing the petition. In furtherance of the overriding objective, I further consider that to allow these Grounds of Objection to be considered at a hearing, or even on further written representations (having given the party objector the opportunity to make representations at this stage) to be grossly disproportionate to the subject matter. This leaves me with the question of whether the petition ought to be granted on its own merits. As stated above, the test for that is whether there is a good and substantial reason as to why the ledger stone should be so approved.
.There have been a number of decisions by chancellors making clear that the simple existence of other ledger stones in breach of churchyard regulations is not a reason to allow further breaches: such ledger stones do not set a precedent. That is clearly the law. “
The Deputy Chancellor granted a faculty on the basis that: there was nothing offensive about the desk-style ledger stones which populate the particular area of the churchyard ; there were already several examples of the type of stone in that area ; and he was concerned that the church should be seen to be acting consistently towards applicants .
With regard to costs, the Deputy Chancellor considered ordering the party opponent to pay the costs of his earlier directions, and of this judgment. However, he ordered that the petitioner pay only the standard costs of making the application. His reasoning in this respect was twofold: (1) he was aware of the burdens involved in being a churchwarden during an interregnum, and while he considered the churchwarden’s actions in opposing this petition without good grounds to have been unreasonable, he was trying in good faith to uphold the diocesan churchyard regulations, and his objections arose from a failure to understand the law; and (2) The apparent inconsistency in the application of the diocesan churchyard regulations within the parish is a matter for the incumbent prior to the interregnum rather than the churchwarden.
Outline of case
Re St. Andrew Chinnor  ECC Oxf 4 The petitioner wished to place a ‘desk type’ ledger stone in the churchyard. The Rector had indicated that she would object, as the type of stone was not covered by the churchyards regulations, which require ledger stones to be laid flush with the ground. However, the incumbent had recently approved such a stone, and there were other examples of the type of stone in the same area of the churchyard. Following the departure of the rector, one of the churchwardens objected to the stone. The Deputy Chancellor granted a faculty on the basis that (a) there was nothing offensive about the desk-style ledger stones which populate the particular area of the churchyard; (b) there were already several examples of the type of stone in that area; and (c) he was concerned that the church should be seen to be acting consistently towards applicants.
In the modern day, and allowing that CoE is an established religion, is the consistory court a court like a State court, or a private tribunal like those of the Beth Din or Islamic tribunals, decisions, in the absence of compliance, to be enforced in England and Wales publicly as provided by the Arbitration Act 1996? In the alternative, is the consistory court private but created by statute?
Consistory courts have existed since shortly after the Norman Conquest, and their present statutory basis is the Ecclesiastical Jurisdiction Measure 1963. An article by Alexander McGregor gives a summary of their role and development, http://www.law.cf.ac.uk/clr/networks/Church%20of%20England.pdf. dp
The consistory courts of the C of E (though not those of the Church in Wales) are part of the overall system of courts and their decisions are reviewable by the High Court. A diocesan chancellor must either have a seven-year general qualification under s.71 Courts and Legal Services Act 1990 or have held high judicial office. The Dean of Arches and Auditor must either hold a ten-year High Court qualification under the 1990 Act or have held high judicial office.