Citation:  ALL ER (D) 142 (Nov);  EWHC 3170 (CH) (High Court, Chancery Division, 12 November 2012)
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
The London Alevi Cultural Centre and Cemevi holds religious services and provides education for the Alevi community (an ethnic/religious minority community of the Turkish diaspora) in Hackney, London. This case concerned the internal affairs of the London Alevi Cultural Centre and Cemevi (the charity), a charitable unincorporated association.
The charity had developed two factions: a traditionalist group (the claimants in this case) and a secular humanist group (the defendants in this case).
The charity had a constitution which had been adopted in September 1994 (the 1994 constitution). Under this constitution membership of the charity was open to residents of London over 18 who accepted the charity’s objects. A new draft constitution was prepared in 2006 (the 2006 constitution); this restricted membership to persons who had obtained two references from existing members. The turning point was the annual general meeting (AGM) held in May 2009. At that meeting, the first claimant (Cifci) and the first defendant (Erbil) were both elected to the charity’s management committee. The first defendant became chairperson.
At the subsequent first meeting of this management committee, the first defendant announced the abolition of the requirement to have two referees for membership. This provoked the entire claimant group on the management committee to resign, with the object of triggering a new AGM.
The question then was, had the 2006 constitution actually been adopted by the charity? If so, a new AGM would be required. The claimant group wrote to the Charity Commission on the issue, claiming that the 2006 constitution had been adopted at an extraordinary general meeting (EGM). The Charity Commission responded that the May 2009 meeting had been properly conducted, since the 2006 constitution had not, in fact, been adopted. No copy of the (allegedly new) 2006 constitution had been forwarded to the Charity Commission, as was required.
In May 2011 the Charity Commission appointed interim charity trustees on the ground that, if the 1994 constitution was the valid one, then the term of the management committee would have expired at the end of August 2010. The claimant group then commenced proceedings under section 33 of the Charities Act 1993, claiming that the 2006 constitution had been validly adopted at a general meeting in 2006.
The court held that the claimant group had failed to show (on the balance of probabilities) that the 2006 constitution had been validly adopted at any AGM or EGM of the charity. The main reason for this finding was that a copy of the 2006 constitution had not been submitted to the Charity Commission. Not to do so was ‘inconceivable’ (at ), and ‘surprising’ (at ).
Moreover, there was no evidence of any decision at all in relation to the draft 2006 constitution. It had not been adopted by acquiescence, nor by common assumption, nor was there any form of estoppel by convention involved (at –). Therefore, the charity had at all times been governed by the 1994 constitution (at ), and the first defendant had been validly elected as chairperson in 2009.
No issues relating to persons who had joined the charity between October 2009 and August 2010 (when there was a disputed management committee), or after May 2011 (when the Charity Commission’s interim trustees were in place), arose. These persons fulfilled the membership requirement under the 1994 constitution, as they were persons who lived and worked in London.
Implications of this case
This case again deals with an internal dispute within a charity. The Charity Commission of England and Wales had declined to interfere in the internal dispute, merely authorising the charity to take the dispute to court. Since the court decision, new elections have been conducted, and a new management committee has been put in place in line with the court’s decision.