References: W.D.C.598/1941
I do not think that the Special Commissioners' decision on the Income Tax charity appeal has much bearing on the present claim. On the assumption that the University was a body of persons established for charitable purposes only (which I do not gather is disputed), under Section 30(1) of the Finance Act 1921, as amended by Section 24 of the Finance Act 1927, it was incumbent upon the University to show that the trade of the Press was exercised in the course of the actual carrying out of a primary purpose of the University. I apprehend that the view which the Special Commissioners probably took was that it could not be said to be a "primary purpose" of Cambridge University to carry on business as printers and publishers, any more than would be the case if, say, one of the large public schools set up a similar business. What those sections were looking at were clearly cases such as the Brighton College case (X.T.C. 213), or the case, say, of trades set up by St. Dunstan's to be carried on by blind ex-servicemen, where the trade was the means whereby the charitable body actually carried out its primary charitable object.
The considerations applied to Section 39 of the War Damage Act 1941, however, are different. The University must show (a) that the proprietary interest of the University in the premises is held exclusively for the advancement of education, learning, science or research, and (b) that the premises are exclusively used for that purpose. No doubt the University would say that the fact that it is not a primary purpose of the University to carry on business as printers and publishers is nihil ad rem. They would say that the University was established for the charitable purpose of "the advancement of education, learning, science or research", and that the carrying on of this business was one (albeit not the "primary") method whereby the University achieved its purpose, as evidenced by the fact that it published nothing (or practically nothing) other than "learned" literature. It would say, therefore, that its proprietary interest in the premises was "held" exclusively for the charitable purpose of the advancement of education, learning, etc. in a broad sense of those expressions, and that the premises were in fact "used" exclusively for that purpose.
But I do not think this view should be admitted, at any rate without a decision of the War Damage Commission. In his letter of the 7th July 1941 to Mr Burnett in the case of the Church of England Temperance Society (papers W.D.C. 116/1941) Mr. Blatch, referring to paragraph (a) of section 39 (1) says:- "I think... that the Courts would decide that in order to fulfil the condition imposed by the section, the proprietary interest in the land must be legally fettered in such a way that the land cannot be used except for one or more of the purposes mentioned in the section."
Applying this test, and assuming for the moment that the present actual user of the premises is solely that of the printing and publishing "learned" books, and that this can be said to be a charitable purpose for the advancement of learning, in a broad sense, the onus is upon the University to show that it cannot legally use the premises otherwise than for this purpose. In my opinion there are grounds for contending that, up to the present at any rate, the University has not discharged this onus. According to the report of the Inspector, Cambridge 1, of the 21st October 1939 to the Chief Inspector (Charity Claims) the references in the University Statutes to the Press are few. It is stated that "The University Press is wholly the property the Chancellor Masters and scholars of the University." The extracts appear to relate solely to the management of the Press. There appears to be no provision restricting the user of the Press. In his letter of the 28th December 1939, to the Inspector, Cambridge 1, Mr S. C. Roberts, the Secretary of the Press, says:- "The University is not bound by any Rule other than those arising out of Statutes and Ordinances of the University relating to the Press. In practice, however, the University Press confines its activities to the printing and publication of works of the educational value... the Press does not publish fiction or juvenile literature." What I understand him really to be saying is that the Press can print and publish what it likes, educational or otherwise, but that in practice it confines itself to works which have an educational value. I think this probably represents the legal position; at any rate, it is for the claimants (the University) to show the contrary.
It can also be contended that the carrying on, on purely commercial lines, of a printing and publishing trade, even though the books printed and published may have a general "educational value" is not a charitable purpose for "the advancement of education, learning, science or research" within the meaning of the section. It is mainly commercial enterprise, undertaken not primarily for the advancement of education but for the making of a profit.
I think, therefore, that the prima facie view is that neither condition (a) or (b) of section 39 (1) is satisfied, and that the University should be left to displace this view on appeal to the Commission, if it can.
J. N. Preston
26th September, 1941