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  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  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’  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” .
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.