The Ethiopian Orthodox Tewahedo Church of St Mary Debre Tsion is an unincorporated association and a registered charity; there is a trust deed establishing the charity which is dated 11 June 1992. The congregation worships in what was formerly St Philip’s Church, Battersea: it leased the building from the Church of England from 2007 and acquired the freehold in 2011. There has been a long-running dispute as to precisely who are the persons entitled to control the trust: see Bisrat & Ors v Kebede & Ors [2017] EWHC 2123 (Ch). The two factions within the church had been to court several times and had agreed to establish a new Charitable Incorporated Organisation with a view to resolving their differences, but the disagreements remained.
At a recent members’ meeting, the supporters of one faction had elected their representatives to one of the charity’s governing bodies and none of the supporters of the other faction had been elected. The defendants invited the Court to declare the vote invalid, on the basis that the members who had voted for the claimants’ nominees did so because of a campaign by the claimants and without exercising their own judgment about what would best further the CIO’s purposes. As such, according to the defendants, those members were in breach of their duty.
Sitting as a Deputy Judge of the High Court, in his most recent judgment – Re The Ethiopian Orthodox Tewahedo Church St Mary of Debre Tsion, London [2020] EWHC 1493 (Ch) – Mark Cawson QC refused to declare the vote invalid because there was insufficient evidence to support the conclusion that the members had breached their duty, ‘albeit that the respective sides may have exercised their votes in a fairly uniform way’ [56 & 57]. However, he suggested that the duty on members was to act in the way that they subjectively believed were ‘the views most likely to further the purpose of the CIO/Church’ [52] and required members to exercise their independent judgment. The legislation establishing CIOs is silent on the matter – as, in this case, is the CIO’s constitution. His Lordship suggested nevertheless that, before future elections,
“it would do no harm for the Chair of the relevant meeting to remind members that, in voting in respect of the composition of the Clergy Council, they do owe a duty to the CIO/Church to exercise an independent judgment, and to vote in the way that they, in good faith, consider the interests of the CIO/Church would be best furthered” [59].
Comment: Anne-Marie Piper and her colleagues at Farrer & Co point out that:
“the legislation says nothing about exercising independent judgment (and neither did the CIO’s constitution, in this case). There are reasons to doubt the soundness of this – it is surely possible to act, in good faith, in reliance on someone else’s advice – but since this is the only judicial commentary on the duty that we currently have, for now it is the law.”
I can understand her misgivings on the issue of relying on advice. But it is inconceivable that the law could contemplate the members of a CIO consciously acting in bad faith.
Is the exercise of ‘independent’ judgement incompatible with acting on the advice of a person one trusts? It is often the case that trustees are bound to obtain and consider advice before deciding on an issue which arises in the course of administering a charity and the same surely applies to members. A trustee may honestly believe that an expert knows better than himself. This is one of the questions which arises out of the Supreme Court’s decision ion the CIFF case.
Caveat, I’m a charity trustee not a lawyer, but I can’t see how one could decide anything (per s.220 of the Act) without exercising independent judgment – or it’s not a decision at all. That also seems to be the effect of the emphasis in the judgment in Children’s Investment Foundation Fund (UK), referred to by the judge in this case: “the member must exercise [his] powers … in the way that *he* decides … [best] further the purposes of the CIO”
I agree with Francesca Quint that there’s no reason why one can’t independently judge that the best decision is to follow some advice or other (or even, to follow another’s decision?). The only question is, did this person decide for himself that this was the best course, or did he simply capitulate? On that question, the judge’s reasons for finding that on balance enough voters probably decided for themselves, seem perfectly cogent.
I’d be interested in others’ views whether, perhaps especially in a religious context where unity (“Tawahedo”?) is held especially dear, there may occasionally be a positive duty to vote *against* one’s best judgement in the narrow sense, on the basis that dissension will be reduced. Perhaps the CIO’s own best interests will not be served – perhaps it will even perish – but the purposes of the CIO may be better furthered thereby.