Charity - Benefit to community - Development and administration of judge-made law - Law reports - Preparation and publication of accurate reports of judicial decisions - Use of law report to enable court to develop and administer the law- Benefit to members of legal profession in their practice - Charge made for law reports - Whether provision of law reports beneficial to community - Whether falling within the spirit and intendment of the preamble to the Statute of Elizabeth.
Charity - Education - Law reports - Preparation and publication of accurate reports of judicial decisions - Use of law reports - Whether provision of law reports for the advancement of education.
Charity - Company - Objects - Evidence - Evidence whether objects charitable - Objects set out in memorandum - Outside evidence whether objects could be carried out only in way which exclusively charitable - Regard to circumstances in which company came into existence and sphere in which operated.
The council was incorporated in 1870 as a company limited by guarantee. Its primary object, as stated in its memorandum of association, was 'The preparation and publication... at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England'. The memorandum however contained no statement saying what the purpose of the preparation and publication of the reports was. The reports published by the council were in fact used for the purpose of the courts in drawing the attention of judges to relevant case law and enabling them to come to a correct decision in accordance with decisions binding on them and for the purpose of members of the legal profession in practice and others engaged in a study of law. Although the council was carrying on a business, profits, if any, could not be distributed to its members but had to be applied in the further pursuit of its objects. The Charity Commissioners refused to register the council as a charity under s 4 of the Charities Act 1960, but an appeal from their decision was allowed by the trial judge ([1971] 1 All ER 436, [1971] Ch 626) who held that (i) the council was not established for educational purposes; but (ii) was established for a purpose beneficial to the community and fell within the spirit and intendment of the preamble to the Statute of Elizabeth (1601, 43 Eliz 1 c 4). The Commissioners of Inland Revenue appealed on the grounds that (i) there was no warrant for the finding that council was established exclusively for the purpose of enabling judge-made law to be properly developed and administered by the courts; and (ii) to enable the judge-made law to be properly developed and administered by the courts was not within the spirit and intendment of the preamble. The council then sought to support the decision of the trial judge, that the council was entitled to registration as a charity, on the additional or alternative ground that it was established for educational purposes.
Held - (i) While the court could not construe the objects of the council by reference to evidence outside the terms of the memorandum, once it was established what the objects were then in order to determine whether they were charitable or not, the court was entitled to look at the circumstances in which the institution came into existence and the sphere in which it operated;
(ii) The council was established for exclusively charitable purposes, and was accordingly entitled to be registered as a charity for the following reasons - (a) the publication and dissemination of reports of judicial decisions was a purpose beneficial to the community in that it made a significant contribution to the sound development, administration and knowledge of the law; furthermore the object of the council fell within the spirit and intendment of the preamble to the Statute of Elizabeth, since there were no grounds for holding that they were outside the equity of the statute;
(b) alternatively (Russell LJ dissenting) the preparation of law reports could be regarded as being for the advancement of education since their purpose was to record in an accurate manner the development and application of judge-made law and thereby disseminate knowledge of that law in a way which was essential to a study of it; the law was a learned subject one rightly regarded as a science, and accordingly books which were produced for the purpose of enabling the subject to be studied, were published for the advancement of education;
(c) the fact that the reports were used by members of the legal profession for earning fees did nor have the effect that the council's purposes were not charitable; if the publication of reliable reports of judicial decisions was for a charitable purpose it was an inevitable and necessary step in the achievement of that purpose that members of the legal profession should be supplied with the tools of their trade;
(d) the fact that in publishing the law reports the council was carrying on a business did not prevent its purposes from being charitable since the profits, if any, could not be distributed to the members of the council but could only be applied in the further pursuit of the council's objects. Decision of Foster J [1971} 1 All ER 436 affirmed.
[NOTE by A.M.: for ease of extraction and separate printing, the case references that follow, which together provide a good introduction to charity law, have also been assembled in a separate AKME charity law index file.]
Notes For the definition of charity, see 4 Halsbury's Laws 3rd Edn) 206-213, paras 486-491, for charities for educational purposes, see ibid, 218-212, paras 496-499, and for charities for other public purposes beneficial to the community, see ibid, 226-232, paras 506-513.
For cases on the subject of charitable purposes generally, see 8 Digest (Repl) 312-315,
1-12, for cases on charities for educational purposes, see ibid, 336-331, 91-126, and for cases on charities for other public purposes beneficial to the community, see ibid, 342-351, 235-312
Cases referred to in judgments*
A-G v Heelis (1824) 2 Sim & St 67, 2 LJOSCh 189, 57 ER 270, 8 Digest (Repl) 343, 246.
Beaumont v Oliveira (1869) 4 Ch App 309, 38 LJCh 239, 20 LT 53, 33 JP 391, 8 Digest (Repl) 346, 272
Bowman v Secular Society Ltd [1917] AC 406, [1916-17] All ER Rep 1, 86 LJCh 568, 117 LT 161, 8 Digest (Repl) 359, 378
British School of Egyptian Archaeology, Re. Murray v Public Trustee [1954] 1 All ER 887, [1954] 1 WLR 546, Digest (Cont Vol A) 92, 118a
Cranston, Re, Webb v OIdfield [1898] 1 IR 431, 8 Digest (Repl) 352,131
General Medical Council v lnland Revenue Com'rs, English Branch Council of General Medical Council v Inland Revenue Com'rs [1918] All ER Rep 352, 97 LJKB 578, 139 LT 225, 13 Tax Cas 819, 28 Digest (Repl) 316, 1383
General Nursing Council for England and Wales v St Marylebone Corp'n. [1959] 1 All ER 325, [1959] AC 540, [1959] 2 WLR 308, 123 JP 169, 38 Digest (Repl) 536, 348
Hunter v A-G [1899] AC 309, [1895-99] All ER Rep 558, 68 LJCh 449, 80 LT 732, 8 Digest (Repl) 320, 227.
Income Tax Special Purpose Com'rs v Pemsel [1891] AC 53I, [1891-94] All ER Rep 28, 61 LJQB 265, 65 LT 621, 55 JP 805, 8 Digest (Repl) 32I, 1
Inland Revenue Com'rs v City of Glasgow Police Athletic Association [1953] 1 All ER 747, [1953] AC 380, 117 JP 201, 28 Digest (Repl) 320, 1406
Karen Kayemeth Le Jisroel Ltd v lnland Revenue Com'rs [1931] 2 KB 465; affirmed HL [1932] AC 650, [1932] All ER Rep 971, 101 LJKB 459, 147 LT 161, 38 Digest (Repl) 317, 1395
Lopes, Re, Bence-jones v Zoological Society of London [1931] 2 Ch 130, [1930] All ER Rep 45, 100 LJCh 295, 146 LT 8, 8 Digest (Repl) 329, 115.
Morice v Durham (Bishop of) (I804) 9 Ves 399, 32 ER 656; affirmed (1805) 10 Ves 522, [1803-13] All ER Rep 451, 32 ER 947, 8 Digest (Repl) 390, 836
Royal College of Nursing v St Marylebone Corp'n [1959] 3 All ER 663, [I959] 1 WLR 1077, 114 JP 49, 38 Digest (Repl) 537, 350
Royal College of Surgeons of England v National Provincial Bank Ltd [1952] 1 All ER 984, [1952] AC 63 revising sub nom Re Bland-Sutton's Will Trusts, National Provincial Bank Ltd v Middlesex Hospital [1951] 1 All ER 494, [1951] Ch 485, 8 Digest (Repl) 327, 96
Scottish Burial Reform and Cremation Society Ltd v Glasgow City Corp'n [I967] 3 All ER 215, [1968] AC 138, [I967] 3 WLR 1132, 135 JP 30, Digest (Cont Vol C) 65, 429a
Smith v Incorporated Council of Law Reporting for England and Wales [1914] 3 KB 674, 83 LJKB 171,111 LT 848, 6 Tax Cas 477, 28 Digest (Repl) 132, 496
Smith v Kerr [1900] 2 Ch 511; affirmed CA [I902] 1 Ch 774, 71 LJCh 369, 86 LT 477, 8 Digest (Repl) 329,113
Tennant Plays Ltd v Inland Revenue Com'rs [1948] 1 All ER 506, 28 Digest (Repl) 319, 1403
Thomson v Trustees of the Honourable Society of the Inner Temple (30th May 1967) unreported
Wedgwood Re Allen v Wedgwood [1915] 1 Ch 113, [1914-15] All ER Rep 322, 84 LJCh 107, 112 LT 66 8 Digest (Repl) 348, 293
Westminster City Council v Royal United Service Institution [1938] 2 All ER 545, 38 Digest (Repl) 580, 613
Cases also cited
A-G Brown (1818) 1 Swan 265
A-G v Marchant (1866) LR 3 Eq 424
A-G v National Provincial and Union Bank of England [1924] AC 262, [1923] All ER Rep 123
Brighton College v Marriott [1926] AC 192, [1925] All ER Rep 600.
Chartered Insurance Institute v London Corp'n [1957] 2 All ER 638, [1957] 1 WLR 867.
Delius' Wlll Trusts, Re, Emanuel v Rosen [1957] 1 All ER 854, [1957] Ch 299
Foveaux, Re [1895] 2 Ch 501
Gilmour v Coats [1949] 1 All ER 848, [1949] AC 426
Geologists' Association v Inland Revenue Com'rs (1928) 14 Tax Cas 271
Hall v Derby Sanitary Authority (1885) 16 QBD 163
Hoare v Osborne (1866) LR 1 Eq 585
Incorporated Council of Law Reporting for England and Wales, Re Duty on the Estate of (?) (1888) 22 QBD 279.
Inland Revenue Comr's v Falkirk Temperance Cafe Trust 1927 SC 261.
Inland Revenue Com'rs v Forrest (1890) 15 App Cas 334.
Jones v Williams (1767) Amb 651.
Kendall v Granger (1842) 5 Beav 300.
London University v Yarrow (1857) 1 De G & J 72.
Macduff, Re, Macduff v Macduff [1896] 2 Ch 451 [1895-99] All ER Rep 154.
National Anti-Vivisection Society v Inland Revenue Com'rs [1947] 2 All ER 217, [1948] AC 31.
Nightingale v Goulborn (1848) 2 Ph 594, [1843-6o] All ER Rep 420.
Oppenheim v Tobacco Securities Trust Co Ltd [1951] 1 All ER 31, [1951] AC 297.
Strakosch (deed), Re, Temperley v A-G [1949] 2 All ER 6, [1949] Ch 529
Williams' Trustees v Inland Revenue Com'rs [1947] 1 All ER 513, [1947] AC 447
Wokingham Fire Brigade Trusts, Re, Martin v Hawkins [1951] 1 All ER 454, [1951] Ch 373.
Appeal
This was an appeal by the second defendants, the Commissioners of Inland Revenue ('the Crown'), from the judgment of Foster J, given on 1st December 1970 and reported at [1971] All ER 436, allowing the appeal by originating summons of the Incorporated Council of Law Reporting for England and Wales ('the council') against a decision of the Charity Commissioners for England and Wales that the council was not a charity and should not be entered in the Central Register of Charities under s 4 of the Charities Act 1960. The Attorney-General was joined as first defendant on the council's appeal against the decision of the Charity Commissioners. The facts are set out in the judgment of Russell LJ.
H E Francis QC and P L Gibson for the Crown.
N C H Browne-Wilkinson for the Attorney-General.
Raymond Walton QC and Spencer G Maurice for the council.
Cur adv vult
4th October. The following judgments were read.
RUSSELL LJ. The question raised in this appeal is whether a company limited by guarantee incorporated on 28th July I870 under the Companies Acts entitled The Incorporated Council of Law Reporting for England and Wales (hereinafter called 'the Association') is a corporate institution which is established for purposes which are exclusively charitable according to the law of England and Wales and is subject to the control of the High Court in the exercise of the court's jurisdiction with respect to charities. If it is such, then it is a charity within the Charities Act 1960 (see ss 45 (1) and 46); and it is entitled to be entered as such on the register of charities to be maintained by the Charity Commissioners under s 4 of the Act. The Association applied to be so registered: the Commissioners of Inland Revenue objected on the ground that the Association was not a charity; the Charity Commissioners upheld the objection and declined to register the Association; the Association appealed to the High Court by the appropriate procedure, joining as parties to the appeal the Commissioners of Inland Revenue and the Attorney-General. Foster J allowed the appeal on the ground that the Association was a charity within the fourth of the categories in Income Tax Special Purpose Com'rs v Pemsel, this contention of the association being supported by the Attorney-General; but he did not accept the additional or alternative contention of the Association that it was an educational charity, a contention which was not supported by the Attorney-General. From this decision that the Association was a charity entitled to registration as such the Commissioners of Inland Revenue appeal, and the Association seeks to support the decision on the additional or alternative ground of education.
In order to see for what purposes the Association was established and whether those purposes are exclusively charitable, attention must be focused on its memorandum and articles of association, bearing in mind, of course, that purposes merely ancillary to a main charitable purpose, which if taken by themselves would not be charitable. will not vitiate the claim of an institution to be established for purposes that are exclusively charitable. Hereunder the objects clause in the memorandum must plainly play the leading role. That is in the following terms:
'The Objects for which the Association is established are:1. The preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England.
2. The issue, periodically or occasionally, of any subsidiary or other publications relating to legal subjects which it may be considered expedient to combine with the publication of such Reports, including the Statutes of the Realm, or any part thereof, if deemed expedient.
3. The continuation (in furtherance of the above objects) of the Series of Reports called "The Law Reports" (now in course of publication by the present Council of Law Reporting) under their present or any other name, and either in their present form and according to the present system or subject to any alterations of form or system that may be considered conducive to the promotion of the above objects; and the issue periodically or occasionally of any legal Digests or other publications connected with "The Law Reports", or subsidiary thereto, or which may be considered likely to increase the utility thereof; and the acquiring by purchase or otherwise, on such terms or conditions as shall be considered expedient, the copyright of any (rival or) other publications of Law Reports which may now or shall hereafter exist or be in course of publication, and the making any agreement or arrangement for the purpose of procuring the discontinuance of such Reports, or the publishing thereof, or the discontinuance of preparing Reports for any such publication by any other persons. The taking over and assuming all the assets and liabilities of the existing Council of Law Reporting. The doing all such other lawful things as are incidental or conducive to the attainment of the above objects.'
Clause 4 of the memorandum is in the following terms:
'The income and property of the Association, whencesoever derived, shall be applied solely towards the promotion of the objects of the Association as set forth in this Memorandum of Association, and no portion thereof shall be paid or transferred, directly or indirectly, by way of dividend, bonus, or otherwise howsoever by way of profit, to the persons who at any time are or have been Members of the Association, or to any of them, or to any person claiming through any of them: Provided, that nothing herein shall prevent the payment, in good faith, of remuneration to any Editors, Reporters, Secretaries, officers or servants of the Association, or to any Member of the Association, or other person in return for any services actually rendered to the Association.'
The signatories to the memorandum were five of Her Majesty's counsel and two solicitors. By the articles of association membership of the Association was limited to 20 in number. Eligibility for membership of the Association was confined to (a) 'nominated persons' (up to two nominated by each of the four Inns of Court and the Law Society), (b) up to two more members nominated or selected by or with the approval of the Council of Management of the Association ('the council') - called 'elected members'. (c) the Law Officers and President of the Law Society -called 'ex officio members', and (d) (since 1951) any other persons up to five in number nominated by the council - called 'co-opted members'. Provision was made for retirement by rotation and resignation of membership of the Association. Article 34 provided that membership of the Association should ipso facto confer and be a requirement of membership of the council. By art 39 the management of the affairs of the Association is vested in the council which (art 37) may appoint an executive committee of the council to which supervision of the day-to-day management of the Association's affairs are delegated. I do not think that any other reference to the articles is needed.
There are some matters which require no proof. The making of the law of this country is partly by statutory enactment (including therein subordinate legislation) and partly by judicial exposition in the decision of cases brought before the courts. It cannot be doubted that dissemination by publication of accurate copies of statutory enactments is beneficial to the community as a whole; and this is not the less so because at least in many instances the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment, or otherwise interested in that field. The fact that to perhaps the majority of those who acquire and study a copy of (for example) a Finance Act it constitutes what might be described as a tool of their trades or professions or avocations in no way lessens the benefit to the community that results if accurate versions of that Finance Act are published and not kept like a cat in a bag to be let out haphazard. The same is to be said of the other source of our law, judicial decisions and the reasons therefor, especially in the light of our system of precedent. It is in my view just as beneficial to the community that reliable reports of judicial decisions of importance in the applicability of the law to varying but probably recurrent circumstances, or demonstrating development in the law, should be published; and all the more so if the publication be supervised by those who by training are best qualified to present the essence of a decision correctly and to distinguish the ephemeral from the significant. To state that the publication also supplies many professional men with the tools of their trade does not seem to me in any way to detract from the benefit that accrues to the community from the fact that the law does not remain locked in the bosom of the judiciary.
Now the first contention of the Crown is shortly stated. When the stated objects of the Association are considered they amount to no more (it is said) than to carry on the trade of publishers and sellers of law reports; there is (it is said) no difference between the objects of the Association and the objects of the publishers of the All England Law Reports with the one exception that the Association is to make no profit from its trade that is not to be applied in the production and publication of law reports, i e the Association is in that sense non-profit making. This short contention does not in my judgment supply the answer to the case. The fact, that the Association carries on a trade or business is admittedly not inconsistent with a charitable character in its objects. The difference between the two cases is in my view a vital distinction. The element of unselfishness is well recognised as an aspect of charity, and an important one. Suppose on the one hand a company which publishes the Bible for the profit of its directors and shareholders: plainly the company would not be established for charitable purposes. But suppose an association or company which is non-profit making, whose members or directors are forbidden to benefit from its activities, and whose object is to publish the Bible: equally plainly it would seem to me that the main object of the association or company would be charitable -the advancement or promotion of religion.
It was next contended by the Crown that a main purpose, even if not the only main purpose, of the Association is to advance the interests of the legal profession by supplying it with the tools of its trade. Reference hereunder was made to the fact that the Association and its unincorporated predecessor were brought into being by members of the legal profession; to the fact that it is to be supposed that the main body of 'consumers' would be such members; to the fact that Scrutton J in Smith v Incorporated Council of Law Reporting for England and Wales*(very much by the way) remarked that the Association 'publish the Law Reports for the benefit of the profession' and to the fact that Lord Simonds's Law Reporting Committee appointed by the Lord Chancellor in I939 contained this reference in its report to the aims of the Association:
'No other purpose was to be served than to produce the best possible reports at the lowest possible price for the benefit of the profession and of the public at large.'
To this may be added the comment of Professor Goodhart (a member of that committee) that the committee recommended continuance of the Law Reports in their established form 'as they performed an essential function for the legal profession'. I am not persuaded of the validity of this contention. It seems to me that if the publication of reliable reports of decisions of the courts is for the benefit of the community and of general public utility in the charitable sense, it is an inevitable and indeed necessary step in the achievement of that benefit that the members of the legal profession are supplied with the tools of their trade. I do not see how the benefit to the public, assuming it to be a charitable object, could otherwise be achieved. So it would be if there were a non-profit making association under gratuitous professional supervision for the production at moderate expense of pure medical drugs or efficient surgical instruments. But the only main object or purpose in such case would be, it seems to me, the relief of the sick. We were in this connection referred to a number of cases, some on one side of the line and some on the other, where the question was whether a main object was the promotion of the interests of a professional body or organisation. I do not find these helpful. Here the Association consists of members who as such can derive no conceivable benefit from their gratuitous supervision of the activities of the Association. Nor to my mind is the contention now under consideration fortified, as was I think at least at one stage in argument suggested, by the fact that clause 3 of the memorandum of association does not open with the words 'The Objects for which the Association is established are to advance and promote the proper development of law by the following means:'.
Accordingly I reject the contention that the Association is not established for purposes which are exclusively charitable insofar as that contention is based on the submission that a main purpose or object is to supply members of the legal profession with the tools of their trade.
I come now to the question whether, if the main purpose of the Association is (as I think it is) to further the sound development and administration of the law in this country, and if (as I think it is) that is a purpose beneficial to the community or of general public utility, that purpose is charitable according to the law of England and Wales. On this point the law is rooted in the Statute of Elizabeth*, a statute whose object was the oversight and reform of abuses in the administration of property devoted by donors to purposes which were regarded as worthy of such protection as being charitable. The preamble to the statute listed certain examples of purposes worthy of such protection. These were from an early stage regarded merely as examples, and have through the centuries been regarded as examples or guideposts for the courts in the differing circumstances of a developing civilisation and economy. Sometimes recourse has been had by the courts to the instances given in the preamble in order to see whether in a given case sufficient analogy may be found with something specifically stated in the preamble, or sufficient analogy with some decided case in which already a previous sufficient analogy has been found. Of this approach perhaps the most obvious example is the provision of crematoria by analogy with the provision of burial grounds by analogy with the upkeep of churchyards by analogy with the repair of churches. On other occasions a decision in favour or against a purpose being charitable has been based in terms on a more general question whether the purpose is or is not within 'the spirit and intendment' of the Elizabethan statute and in particular its preamble. Again (and at an early stage in development) whether the purpose is within 'the equity' or within 'the mischief' of the statute. Again whether the purpose is charitable in the same sense as purposes within the purview of the statute. I have much sympathy with those who say that these phrases do little of themselves to elucidate any particular problem. 'Tell me', they say, 'what you define when you speak of spirit, intendment, equity, mischief, the same sense, and I will tell you whether a purpose is charitable according to law. But you never define. All you do is sometimes to say that a purpose is none of these things. I can understand it when you say that the preservation of sea walls is for the safety of lives and property, and therefore by analogy the voluntary provision of lifeboats and fire brigades are charitable. I can even follow you as far as crematoria. But these other generalities teach me nothing.' I say I have much sympathy for such an approach; but it seems to me to be unduly and improperly restrictive. The Statute of Elizabeth was a statute to reform abuses; in such circumstances and in that age the courts of this country were not inclined to be restricted in their implementation of Parliament's desire for reform to particular examples given by the statute, and they deliberately kept open their ability to intervene when they thought necessary in cases not specifically mentioned, by applying as the test whether any particular case of abuse of funds or property was within the 'mischief' or the 'equity' of the statute.
For myself I believe that this rather vague and undefined approach is the correct one, with analogy its handmaid, and that when considering Lord Macnaghten's fourth category in Pemsel's case* of 'other purposes beneficial to the community' (or as phrased by Sir Samuel Romilly in Morice v Bishop of Durham* 'objects of general public utility') the courts, in consistently saying that not all such are necessarily charitable in law, are in substance accepting that if a purpose is shown to be so beneficial or of such utility it is prima facie charitable in law, but have left open a line of retreat based on the equity of the statute in case they are faced with a purpose (eg a political purpose) which could not have been within the contemplation of the statute even if the then legislators had been endowed with the gift of foresight into the circumstances of later centuries.
In a case such as the present, in which in my view the object cannot be thought otherwise than beneficial to the community and of general public utility, I believe the proper question to ask is whether there are any grounds for holding it to be outside the equity of the statute; and I think the answer to that is here in the negative. I have already touched on its essential importance to our rule of law. If I look at the somewhat random examples in the preamble to the statute I find in the repair of bridges, havens, causeways, sea banks and highways examples of matters which if not looked after by private enterprise must be a proper function and responsibility of government, which would afford strong ground for a statutory expression by Parliament of anxiety to prevent misappropriation of funds voluntarily dedicated to such matters. It cannot I think be doubted that if there were not a competent and reliable set of reports of judicial decisions, it would be a proper function and responsibility of government to secure their provision for the due administration of the law. It was argued that the specific topics in the preamble that I have mentioned are all concerned with concrete matters, and that so also is the judicially accepted opinion that the provision of a court house is a charitable purpose. But whether the search be for analogy or for the equity of the statute this seems to me to be too narrow or refined an approach. I cannot accept that the provision, in order to facilitate the proper administration of the law, of the walls and other physical facilities of a court house is a charitable purpose, but that the dissemination by accurate and selective reporting of knowledge of a most important part of the law to be there administered is not.
In my judgment accordingly the purpose for which the Association is established is exclusively charitable in the sense of Lord Macnaghten's fourth category. I would not hold that the purpose is purely the advancement of education; but in determining that the purpose is within the equity of the statute I by no means ignore the function of the purpose in furthering knowledge in legal science.
I would dismiss the appeal.
SACHS LJ. The right of the Incorporated Council of Law Reporting to be registered as a charity under section 4 of the Charities Act 1960 depends on whether it is one 'which is established for charitable purposes' (see the definition of 'charity' in s 45 (1)). By s 46 'charitable purposes' is defined as meaning purposes which are exclusively charitable according to the law of England and Wales'. For the best part of four centuries the question whether the purposes of any given trust or institution are charitable has been decided by reference to the preamble of the Charitable Use Act 1601 - 'the Statute of Elizabeth I'. Since 1891 the courts have followed the guidance given in the classic speech of Lord Macnaghten in Income Tax Special Purpose. Com'rs v Pemsel* where it is stated that '"Charity" in its legal sense comprises four principal divisions'. In every case since then the issue has been whether the purposes of any given trust or institution fell within one of those divisions. The result of the present case depends on whether the purposes of the council fall within the second - 'trusts for the advancement of education', or alternatively within the fourth - 'trusts for other purposes beneficial to the community' not falling within any of the other heads.
To come to a conclusion whether those purposes fall within either of the two above divisions - and, in particular, whether it falls within the fourth - it is necessary to have regard to what, since the judgment of Sir William Grant MR in Morice v Bishop of Durham* in 1804 has been termed 'the spirit and intendment' of the above preamble, words commonly regarded as having the same meaning as 'the equity of the statute'. It so happens that there are available to us through judgments given in open court the contents of two documents substantially contemporaneous with the Statute of Elizabeth I which throw useful light both as to the spirit and intendment of that statute in relation to administration of the law in general and to the word 'education' in reference thereto: the charters of an Inn of Chancery (Clifford's Inn), rf Smith v Kerr* and an Inn of Court (Inner Temple), rf Thomson v Trustees of the Honourable Society of the Inner Temple * dated respectively 1618 and 1608. It is, however, preferable first to approach each of the questions that arise in the instant case apart from what can be learnt from these documents.
Before considering more closely what are the answers to these questions with the aid of the education to be derived from studying the judgments in the 41 reports cited to us and the mass of learning shown to have been devoted, at any rate, over the last two centuries to the relevant problems, it is convenient at the outset to mention some points which have often been repeated in those judgments. First, the word 'charity' is 'of all words in the English language... one which more unmistakeably has a technical meaning in the strictest sense of the term... peculiar to the law' (per Lord Macnaghten in Pemsel's case*), one that is 'wide and elastic' (per Lord Ashbourne in Re Cranston, Webb v Oldfield*), and one that can include something quite outside the ordinary meaning the word has in popular speech (cf Lord Cozens-Hardy MR, Re Wedgwood, Allen v Wedgwood*). It is thus necessary to eliminate from one's mind a natural allergy, stemming simply from the popular meaning of 'charity', to the idea that law reporting might prove to be a charitable activity. Secondly, it is dear that the mere fact that charges on a commercial scale are made for services rendered by an institution does not of itself bar that institution from being held to be charitable - so long, at any rate, as all the profits must be retained for its purposes and none can enure to the benefit of its individual members (cf Scottish Burial Reform and Cremation Society Ltd v Glasgow City Corp'n*). Thirdly, that there have, over at any rate the past century, been a number of references to the oddity that the tests by which the courts decide whether an institution is charitable depend entirely on the preamble of the Statute of Elizabeth I. The most recent is one opining that this state of affairs was 'almost incredible to anyone not familiar with this branch of the English law' (per Lord Upjohn in the Scottish Burial case). To this I will return later.
Turning now to the points of substance argued before us, there came in limine the question as to what material we were entitled to look at to determine whether the purposes of the council were charitable. Counsel for the Crown contended that in substance the court could and should only look at paragraph 3 of the memorandum of association and in particular at its important first sub-paragraph:
'The Objects for which the Association is established are: 1. The preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England.'
This contention involved the proposition that we could neither look at any of the facts to which the trial judge referred under the heading of 'the historical background' nor at any available evidence as to what at any time since July 1870 had been the use to which the Law Reports are put. That in effect would mean looking at para 3(1) as if it were situate in a vacuum. That cannot be right.
Moreover he went on to submit that (a) the courts cannot look at the motives of the founders in order to show the purposes of an institution - at any rate, when those purposes as otherwise ascertained might be shown not to be charitable, and (b) the absence in the opening phrase of paragraph 3 of general words such as 'for the purpose of the advancement and promotion of the science of law' was fatal to the council's claim even if on the facts it was shown that that was the exclusive purpose of their activities and that that purpose was charitable. Whilst the first of those submissions was correct (cf Keren Kayemeth Le Jisroel Ltd v Inland Revenue Comr's * per Lawrence LJ), the second was not. The courts look at the substance of what is being effected.
A further question discussed was whether the use of the words 'is established' in the s 45 (1) definition of 'charity' is to bind the court to look only at facts as existing at the date the 1960 Act came into force, or whether the court could or should look at the facts as at the date of the incorporation of the council. It makes no practical difference in the present case whether one looks at the circumstances of 1870 or of 1970, but to my mind it is the foundation date that matters when considering whether an institution is established for charitable purposes.
Whilst appreciating what has been said as to the courts not being permitted, where plain language is used in a charter or memorandum, to admit extrinsic evidence as to its construction, it is yet plain from the course adopted by the courts in many cases that they are entitled to and do look at the circumstances in which the institution came into existence and at the sphere in which it operates to enable a conclusion to be reached on whether its purposes are charitable. Such matters were likewise regularly taken into account over the 117 years of the operation of Scientific Societies Act 1843, when the issue was whether buildings belonged to any Society instituted for purposes of science, literature or the fine arts exclusively'.
The necessity for this course is all the more obvious when the purposes of an ancient institution become the subject of examination, remembering that if it started as a charity it so remains. An example of the above approach is to be found in Smith v Kerr* (the Clifford's Inn case) where at first instance Cozens-Hardy J fully examined the circumstances affecting Clifford's Inn, and Sir Richard Henn Collins MR on appeal followed the same course, to ascertain the purpose to which the funds were to be applied. (The question whether in fact it has applied or is applying some of its funds to non-charitable purposes is, of course, a separate issue which arises when tax. or rate exemptions are under consideration.)
As to the circumstances in which the council came into existence and the sphere in which it has since operated, the facts are admirably marshalled in the affidavit of Professor Goodhart with the accustomed lucidity of that eminent jurist. Reference can also be made to the 1853 Report of the Society for Promoting the Amendment of the Law, an extract from page 4 of which is aptly cited in the judgment of Foster J: In the main the relevant circumstances and sphere are within judicial knowledge and need no detailed exposition in this judgment. The kernel of the matter is the vital function of judge-made law in relation not only to the common law and to equity, but to declaring the meaning of statutory law. No one - layman or lawyer - can have reasonably full knowledge of how the law affects what he or his neighbours are doing without recourse to reports of judicial decisions as well as to the statutes of the realm.
What in that state of affairs is the purpose of law reports? There is in substance only one purpose. To provide essential material for the study of the law - in the sense of acquiring knowledge of what the law is, how it is developing and how it applies to the enormous range of human activities which it affects.
At this juncture it is apposite to recall that the profession of the law is a learned profession. It was one of the earliest to be recognised as such, well before the Statute of Elizabeth I: to establish that point there is no need to have recourse to examples of this recognition such as the traditional House of Commons appellation 'honourable and learned' to members of the profession. Similarly it is plainly correct to speak of law as a science and of its study as a study of science in the same way as one speaks of the study of medicine or chemistry. If further exemplification were needed of the categories of learning and science the pursuit of which have been held to be charitable, one can turn to the names of the institutions listed in Tudor on Charities*: there one finds such divers names as The Royal Literary Society, the British School of Egyptian Archaeology, and the Institution of Civil Engineers. That the law is such a science happens to be illustrated by Sir Frederick Pollock's celebrated essay on 'The Science of Case-Law' (in Jurisprudence and Ethics 1893, p 237); but this merely provides from within the profession an authoritative view which plainly accords in principle both with the decisions affecting the above cited institutions and that under the Scientific Societies Act 1843 (see Westminster City Council v Royal United Service Institution*). It may at this point be of relevance to note that Lord Macnaghten's phrase 'advancement of education' has consistently been taken to be an enlargement of the phrase 'advancement of learning' used by Sir Samuel Romilly for his second division of charities in Morice v Bishop of Durham*: in other words, there can be no question but that the latter is included in the former, as is illustrated by the authorities.
Against that background I turn to the question whether the council's purposes are educational. It would be odd indeed and contrary to the trend of judicial decisions if the institution and maintenance of a library for the study of a learned subject or of something rightly called a science did not at least prima facie fall within the phrase 'advancement of education', whatever be the age of those frequenting it. The same reasoning must apply to the provision of books forming the raw material for that study, whether they relate to chemical data or to case histories in hospitals; and I can find no good reason for excluding case law as developed in the courts. If that is the correct approach, then when the institution is one whose individual members make no financial gain from the provision of that material and is one which itself can make no use of its profits except to provide further and better material, why is the purpose not charitable?
On behalf of the Attorney-General the only point taken against this conclusion was that the citation of the reports in court cannot be educational - in part, at any rate, because of the theory that the judges are deemed to have complete knowledge of the law. For the Crown the main contention was that the use by the legal profession of the reports was in general (not merely when in court) a use the purpose of was to earn professional remuneration - a use for personal profit; and that it followed that the purpose of the council was not charitable.
Taking the latter point first, it is, of course, the fact that one of the main, if not the main, uses to which law reports are put is by members of the legal profession who study their contents so as to advise clients and plead on their behalf. Those reports are as essential to them in their profession as the statutes; without them they would be ill equipped to earn professional fees. Does it follow, as submitted by counsel for the Crown, that a main purpose of the reports is the advancement of professional interest and thus not charitable? The argument put thus is attractive, not least to those who, like myself, are anxious not to favour or to seem to favour their onetime profession. But the doctor must study medical research papers to enable him to treat his patients and earn his fees; and it would be difficult indeed to say that because doctors thus earn their emoluments the printing and sale of such papers by a non-profit making institution could not be held to be for the advancement of education in medicine.
Where the purpose of producing a book is to enable a specified subject, and a learned subject at that, to be studied, it is, in my judgment, published for the advancement of education, as this, of course, includes as regards the Statute of Elizabeth I the advancement of learning. That remains its purpose despite the fact that professional men - be they lawyers, doctors or chemists -use the knowledge acquired to earn their living. One must not confuse the results flowing from the achievement of a purpose with the purpose itself, any more than one should have regard to the motives of those who set that purpose in motion.
As to the point that the citation of reports to the judiciary is fatal to the council's claim, this, if independent of the contention concerning professional user to earn fees, seems to turn on the suggestion that as the judges are supposed to know the law the citations cannot be educative. That, however, is an unrealistic approach. It ignores the fact that citation of authority by the Bar is simply a means by which there is brought to the attention of the judge the material he has to study to decide the matter in hand; in this country he relies on competent counsel to quote the extracts relevant to any necessary study of law on the point in issue, instead of having to embark on the time-consuming process of making the necessary researches himself. Indeed, it verges on the absurd to suggest that the courteous facade embodied in the traditional phrase 'as, of course, your Lordships know' can be used to attempt to conceal the fact that no judge can possibly be aware of all the contents of all the law reports that show the continuing development of our ever changing laws. The Law Reports (including vol 1 of the Weekly Law Reports) for 1970 alone contain some 5,200 pages; incidentally, if one confined one's views to the three volumes of the Weekly Law Reports there would still remain over 4,000 pages. For my part I feel no diffidence in expressing my indebtedness to counsel in the instant case, as I have done in other cases this term dealing with other subjects, for educating me in the law of charitable purposes by the citation of the 41 authorities previously mentioned.
For these reasons I reject the contention that the use(r?) of the Law Reports by the legal profession for earning fees of itself results in the purposes of the council not being charitable and thus return to the question whether they are charitable on the footing that their substantially exclusive purpose is to further the study of the law in the way already discussed. Such a purpose must in my judgment be charitable unless the submission that the advancement of learning is not an advancement of education within the spirit and intendment of the preamble is upheld; but for the reasons already given that submission plainly fails. Accordingly, having regard to the fact that the members of the council cannot themselves gain from its activities, its purposes in my judgment fall within the second of Lord Macnaghten's divisions.
Despite the above conclusion, it seems desirable to consider as compactly as is practicable whether had the council's purpose not fallen within the second division it would nonetheless have come within the fourth as being beneficial to the community. The Charity Commission, after a year's consideration of the council's application to be registered as a charity, wrote a letter dated 6th December 1967 which contained the following phrase:
'The Commissioners did not dispute that the advancement of the administration of law was a charitable purpose.'
The Attorney-General supports that view: the Crown opposes it. Foster J rejected the Crown's contention.
Being myself convinced that the correct approach is that which the learned first instance judge referred to as Lord Wilberforce's wider test (see Scottish Burial case*) - a test that clearly also attracted Lord Reid with whom Lord Guest agreed - I do not propose to consider the instant case on the basis of analogies. The analogies or 'stepping stones' approach was rightly conceded on behalf of the Attorney-General not to be essential; its artificiality has been demonstrated in the course of the consideration of the numerous authorities put before us. On the other hand, the wider test - advancement of purposes beneficial to the community or objects of general public utility - has an admirable breadth and flexibility which enables it to be reasonably applied from generation to generation to meet changing circumstances; it has thus such patent advantages that for my part I appreciate the wisdom of the legislature in refraining from providing a detailed definition of charitable purposes in the 1960 Act and preferring to allow the existing law to be applied. Any statutory definition might well merely produce a fresh spate of litigation and provide a set of undesirable artificial distinctions. There is indeed much to be said for flexibility in such matters.
The first question to be considered in relation to the wider test is whether the advancement of the administration of the law in its broad sense (which would include the elucidation, proper application, and betterment of the law) is something beneficial to the community. To pose that question to one whose function it is to administer the law provokes unease and a tendency to lean over backwards to avoid giving an affirmative reply. But such a mental posture is no more conducive to a balanced view than to elegance. Looking at the issue squarely and attempting to use the eyes of the generality of subjects of either Elizabeth I or Elizabeth II there is, however, manifestly only one answer - of course it is beneficial to the community. The answer being eminently a matter of first, impression derived from an overall view of the preamble coupled with the general trend of some centuries of decisions, no useful purpose can be served by citation of specific authorities. It is an impression formed without reference to the contents of either of the two previously mentioned charters*, to which I will, however, return.
Next comes the question whether the particular purpose of the council's activities sufficiently contributes to that advancement. Does it benefit a sufficiently wide section of the community? As satisfactory administration of the law in practice depends on there being a proper system of law reporting, it can well be said that the whole community benefits from the purposes of the council: but even if the benefits were confined to those who have to make judicial decisions and to the members of the legal profession advising clients and appearing for them in court, nonetheless a sufficiently large section of the community would derive the relevant benefits.
Adopting the test propounded by my brother Russell LJ, I next turn to consider whether there is any reason for excluding these benefits from the range of those that are capable of being classified as charitable, and can find no such reason. Finally as regards this head comes the question whether the contribution is made in a charitable manner. This point having been fully discussed in the judgments of my brethren to an effect with which I agree it is not necessary to go over the ground again. In my judgment, the way in which the council operates qualifies it for inclusion amongst charities as defined by the 1960 Act once it is shown that its purposes can properly be said to be charitable if operated in a charitable manner.
Accordingly if, contrary to my view, the purposes of the council do not fall within the second division, they are nonetheless charitable because they would then fall within the fourth.
In conclusion it seems appropriate to return to the contents of the two charters* granted within a score of years of the enactment of the Statute of Elizabeth I. On the footing that it is permissible to refer to them - and quite rightly, to my mind, no objection was taken before us to this being done - we are in the same position as was this court in Smith v Kerr*, where Sir Richard Henn Collins MR said:
'. . . we are not left to speculation, nor have we to look for obscure hints from remote times, because... we have a most authoritative contemporary record...'
There he referred to Lord Coke's account of the functions of Clifford's Inn; here we can look at the accounts in two royal charters of what was regarded as beneficial to the 'Commonwealth' and 'Realm of England'.
Rather than merely cull selected extracts from these two charters, it has seemed best to append to this judgment a full note of so much of them as has been set out and discussed in the respective judgments of Sir Richard Henn Collins MR in Smith v Kerr* and the deputy judge of the Mayor's and City of London Court, in Thomson v Trustees of the Honourable Society of the Inner Temple*. The passages in the Clifford's Inn charter sidelined 1, 3 and 4 and in the Inner Temple charter 5 and 8 speak for themselves; not least the last mentioned reference to 'the welfare of this Realm of England, flourishing for so many ages by the administration of the said Laws'. Taken as a whole these documents in my judgment of themselves provide compelling and perhaps conclusive evidence that advancement of the administration of the law was regarded as beneficial to the community in the first quarter of the seventeenth century.
Though the contents of these charters have been cited primarily in relation to Lord Macnaghten's fourth division, they also may be said to provide material touching the second. The references in the Inner Temple charter (sideline 10) to the 'Entertainment and Education of the Students and Professors of the Laws' when coupled with the earlier passages (sidelines 6 and 7) and phrases in the Clifford's Inn charter such as the 'furtherance of the Practisers and Students of the Common Law' (sideline 3) are in point, having regard to the fact that professors appears to mean 'those who profess the law'.
Accordingly I would dismiss this appeal. [Note follows judgment]
BUCKLEY LJ. The question for determination in this case is whether the Incorporated Council of Law Reporting is a body established for exclusively charitable purposes. If it is, the council is entitled to be registered as a charity under the Charities Act 1960; otherwise, it is not so.
The council was incorporated in l870 under the Companies Acts 1862 and 1867 as a company limited by guarantee, the word limited' being omitted from the name by licence of the Board of Trade. The first object for which the council was incorporated was and still remains the preparation and publication in a commercial form at a moderate price and under gratuitous professional control of reports of judicial decisions of the superior and appellate courts in England. All of the other objects stated in the council's memorandum of association which have already been read should as a matter of construction, in my opinion, be regarded as subsidiary to the council's first object, which is, I think, not only a primary purpose but the primary purpose for which the council was established, which the other stated purposes subserve. It has therefore been proper that the argument has been concentrated on the first object.
To ascertain for what purposes the council was established one must refer to its memorandum of association and to that alone. It is irrelevant to enquire what the motives of the founders were, or how they contemplated or intended that the council should operate, or how it has in fact operated (see Hunter v A-G*; Bowman v Secular Society Ltd*; Keren Kayemeth Le Jisroel Ltd v Inland Revenue Com'rs*; Tennant Plays Ltd v Inland Revenue Com'rs*. But in order to determine whether an object, the scope of which has been ascertained by due processes of construction, is a charitable purpose it may be necessary to have regard to evidence to discover the consequences of pursuing that object. It would be immediately evident that a body established to promote the Christian religion was established for a charitable purpose, whereas in the case of a body established to propagate a particular doctrine it might well be necessary to consider evidence about the nature of the doctrine to decide whether its propagation would be a charitable activity.
In the present case no problem arises about the meaning of the council's objects. The question is whether their pursuit should be regarded as charitable. In this respect it is proper to have regard to evidence about the purposes which the pursuit of those objects will serve.
The Crown contends that the council's objects are not charitable, because, as it says, their purpose is to serve the interests of the legal profession, providing an essential tool of the practising lawyer. The Crown admits that this may be beneficial to the community, but says that it is not a purpose within the 'spirit and intendment of the preamble to the Statute of Elizabeth'.
The Crown points out that the initiative in setting up the unincorporated Council of Law Reporting, which was the precursor of the respondent corporation, and in procuring the incorporation of the latter body was that of members of the legal profession; and that the incorporated council is by the terms of its memorandum of association a body controlled by members of the legal profession; and that its publications constitute an essential part of the professional equipment of every practising lawyer in this country, nor merely to enable him to take part in the trial of cases and the administration of justice but to enable him also to advise his clients in non-litigious matters and to provide those expert services, such as draftsmanship, which a practising lawyer offers. The Crown contends that the advancement of the interests of members of the legal profession per se is not a charitable purpose (see General Medical Council v Inland Revenue Com'rs, English Branch Council of General Medical Council v Inland Revenue Com'rs; General Nursing Council for England and Wales v St Marylebone Corp'n*). On the other hand, if a body is established for a charitable purpose, it will be not the less a charity because the pursuit of that purpose will or may confer incidental benefits on the members of a profession (Royal College of Surgeons v National Provincial Bank Ltd; Royal College of Nursing v St Marylebone Corp'n*).
For the council it is argued that its objects are charitable on the ground that they fall within the scope either of purposes for the advancement of education, using that term in a broad sense, or of the fourth head of Lord Macnaghten's celebrated enumeration of charitable purposes in Income Tax Special Purpose Com'rs v Pemsel* as bring purposes beneficial to the community, which fall within the spirit and intendment of the Statute of Elizabeth. It is emphasised that the members of the council, who are not more than 20 or so in number at any one time, are precluded by the council's constitution from obtaining any profit or benefit as members from its activities. The council's publications can be bought by the general public and are, as the evidence shows, bought by a wide variety of users, including academic bodies, commercial and industrial bodies (including public utility undertakings), public authorities, government and public departments and offices, trade unions, and a wide variety of libraries, professional institutes and miscellaneous bodies, as well as a great many bodies and persons concerned with the administration and practice of the law, and all of these not merely in this country but also in many other countries within the Commonwealth and elsewhere. These circumstances, it is said, demonstrate that the council's publications constitute a general public purpose or, to use Sir Samuel Romilly's language in argument in Morice v Bishop of Durham*, an object of general public utility, and that this falls within the spirit of the preamble. In this connection counsel for the council has referred us to Duke on Charitable Uses, where it is said that the building of a sessions house for a city or a county has been held to be charitable. (See also A-G v Heelis* per Leach V-C.) We also were referred to Inland Revenue Com'rs v City of Glasgow Police Athletic Association*, where Lord Normand (p391), Lord Morton of Henryton (p400), and Lord Reid (p401, 402) all expressed the view that the promotion of the efficiency of the police would be a charitable purpose. By analogy it was contended that the advancement of the administration of justice is a charitable purpose and that the objects of the council are charitable on this ground. Alternatively the council has contended that its objects are educational in that they result in dissemination of information about the latest state of and development in the science of the law and so are educational in a broad sense. In this connection we were referred to Smith v Kerr* relating to the funds of Clifford's Inn, and to Re British School of Egyptian Archaeology, Murray v Public Trustee*.
The learned judge declined to accept the view that the council's objects are educational, mainly, I think, on the ground that in many respects they are not used for instructional purposes. He did, however, take the view that they are charitable on the ground that the purpose of the publication of the Law Reports is to enable judge-made law to be properly developed and administered by the courts, a purpose beneficial to the community and within the spirit of the preamble.
What then does the evidence establish about the need for reliable law reports and the reasons for publishing them? As the uncontradicted evidence of Professor Goodhart makes clear, in a legal system such as ours, in which judges' decisions are governed by precedent, reported decisions are the means by which legal principles (other than those laid down by statutes) are developed, established and made known, and by which the application of those legal principles to particular kinds of facts are illustrated and explained. Reported decisions may be said to be the tissue of the body of our non-statutory law. Whoever, therefore, would carry out any anatomical researches on our non-statutory corpus juris must do so by research amongst, and study of, reported cases.
Professor Goodhart recalls that Sir Frederick Pollock in his paper entitled The Science of Case-Law published in 1882* pointed out that the study of law is a science in the same sense as physics or chemistry are sciences, and that the material with which it is concerned consists of individual cases which must be analysed and measured as carefully as is the material in the other sciences. At about the same time the 'case system' of teaching law was introduced at the Harvard Law School, which has since become generally adopted. Accurate and authoritative law reports are thus seen to be essential both for the advancement of legal education and the proper administration of justice. As Professor Goodhart says:
'Accuracy in the Law Reports is, therefore, as important for the science of law as is the accuracy of instruments in the physical sciences.'The legal profession has from times long past been termed a learned profession, and rightly so, for no man can properly practice or apply the law who is not learned in that field of law with which he is concerned. He must have more than an aptitude and more than a skill. He must be learned in a sense importing true scholarship. In a system of law such as we have in this country this scholarship can only be acquired and maintained by a continual study of case law.
I agree with the learned judge in thinking that, when counsel in court cites a case to a judge, counsel is not in any real sense 'educating' the judge, counsel performing the role of a teacher and the judge filling the role of a pupil; but I do not agree with him that the process should not be regarded as falling under the charitable head of 'the advancement of education'.
In a number of cases learned societies have been held to be charitable. Sometimes the case has been classified under Lord Macnaghten's fourth head, sometimes under the second. It does nor really matter under which head such a case is placed, but for my own part I prefer to treat the present case as falling within the class of purposes for the advancement of education rather than within the final class of other purposes for the benefit of the community. For the present purpose the second head should, in my judgment, be regarded as extending to the improvement of a useful branch of human knowledge and its public dissemination.
In Beaumont v Oliveira* bequests to the Royal Society and the Royal Geographical Society were held to be charitable. The object of the Royal Society is 'improvlng natural knowledge'. That of the Royal Geographical Society is 'the improvement and diffusion of geographical knowledge'. Of these two bequests Selwyn LJ said (p315):
'In the case now before us, both the bequests are bequests to corporations, the objects and purposes of which are the diffusion and improvement of particular branches of knowledge. They subsist for these purposes and no others, therefore for public purposes - therefore, for the advancement of objects of general public utility - therefore for purposes analogous and similar to those mentioned in the statute of Elizabeth - therefore for charitable purposes . . .
This put the two bequests squarely under the fourth head of charity.
In Royal College of Surgeons of England v National Provincial Bank Ltd* the question arose whether the college was a charity. It was held that its object was 'the due promotion and encouragement of the study and practice of the art and science' of surgery. Lord Normand said (AC p641, 642):
The words "the study and practice of the . . . art and science" of surgery do not in my opinion, mean "the academic study and professional practice of the art and science of surgery". They signify rather the acquisition of knowledge and skill in surgery both by abstract study and by the exercise of the art in the dissecting room and the anatomy theatre, and they are capable of covering both the discovery of new knowledge which is the fruit of research, and the learning of existing knowledge either by students who are qualifying or by qualified surgeons desirous of improving their knowledge and skill. On that construction, the professed objects of the college all fall into the categories of the advancement of science or of the advancement of education, and are charitable.'
Lord Normand thus classified the college as a charity within Lord Macnaghten's second head. Lord Morton of Henryton (AC p654) said that the object of the college might be regarded as being directed to the relief of human suffering or to the advancement of education or science or to all these ends.
In Re Lopes, Bence-]ones v Zoological Society of London*, the Zoological Society of London, the objects of which are defined in its charter as being 'the advancement of zoology and animal physiology and the introduction of new and curious subjects of the animal kingdom', was held to be a charity. Farwell J said:
'Its first object is "the advancement of zoology and animal physiology". That is clearly educational, for the advancement of scientific knowledge, and therefore charitable"This treats the case as falling within the second head.
Finally, in Re British School of Egyptian Archaeology, Murray v Public Trustee*, an association whose objects included conducting excavations, discovering and exhibiting antiques, publishing accounts of its activities and training students, was held by Harman J to be an educational charity. The learned judge said:
'I cannot doubt that this was a society for the diffusion of a certain brand of knowledge, namely, knowledge of the ancient past of Egypt; and that it also had a direct educational purpose, namely, to train students in that complicated branch of knowledge known as Egyptology. In my... view this is clearly a charity from the educational aspect ...
In my judgment, the council was established for the purpose of recording in a reliably accurate manner the development and application of judge-made law and of disseminating the knowledge of that law, its development, and judicial application, in a way which is essential to the study of that law. The primary object of the council is, I think, confined to this purpose exclusively and is charitable. The subsidiary objects, such as printing and publishing statutes, the provision of a noting-up service and so forth, are, in my judgment, ancillary to this primary object and do not detract from its exclusively charitable character. Indeed, the publication of the statutes of the realm is, in my judgment, itself a charitable purpose for reasons analogous to chose applicable to reporting judicial decisions.
The fact that the council's publications can be regarded as a necessary part of a practising lawyer's equipment does not, in my judgment, at all prevent the council from being established exclusively for charitable purposes. The practising lawyer and the judge must both be lifelong students in that field of scholarship for the study of which the Law Reports provide essential material and a necessary service. The benefit which the council confers on members of the legal profession in making accurate reports available is that it facilitates the study and ascertainment of the law. It also helps the lawyer to earn his livelihood, but that is incidental to or consequential on the primary scholastic function of advancing and disseminating knowledge of the law, and does not, in my judgment, detract from the exclusively charitable character of the council's objects. (Cf Royal College of Surgeons of England v National Provincial Bank Ltd, Royal College of Nursing v St Marylebone Corp'n*.)
The service which publication of the Law Reports provides benefits nor only those actively engaged in the practice and administration of the law, but also those whose business it is to study and teach law academically, and many others who need to study the law for the purposes of their trades, businesses, professions or affairs. In all these fields, however, the nature of the service is the same; it enables the reader to study, and by study to acquaint himself with and instruct himself in the law of this country. There is nothing here which negatives an exclusively charitable purpose. Although the objects of the council are commercial in the sense that the council exists to publish and sell its publications, they are unselfregarding. The members are prohibited from deriving any profit from the council's activities, and the council itself, although not debarred from making a profit out of its business, can only apply any such profit in the further pursuit of its objects. The council is consequently not, in my judgment, prevented from being a charity by reason of any commercial element in its activities.
I therefore reach the conclusion that the council is a body established exclusively for charitable purposes and is entitled to be registered under the Act of 1960. It is consequently unnecessary for me to consider whether the learned judge was right in his view that enabling judge-made law to be properly developed and administered by the courts is a charitable purpose. It may well be so, but I should, I think, myself find difficulty in reaching the conclusion that the council is a body established exclusively for that purpose. If this ground were to be relied on, it would, I think, be necessary to consider what other purposes are served by the council's activities besides the administration of law in the courts and whether all those other purposes are charitable. The reasons, however, which I have stated, for which I would dismiss this appeal, embrace all the council's activities, so that it is unnecessary to consider them individually.
Russell LJ, in the judgment which he has just delivered, has preferred to base himself on a wider ground, as I understand it, that the publication of accurate reports of judicial decisions is beneficial to the community not merely by assisting the administration and development of the law in the courts but by making the law known, or at least accessible, to all members of the community, including professional lawyers whose advice on legal matters other members of the community are likely to seek, thus making a sound knowledge and understanding of the law more available. to all. I agree that on this basis also the council is to be regarded as a body established for charitable purposes and, indeed, for exclusively charitable purposes as falling under Lord Macnaghten's fourth head. Such an activity is, in my judgment, clearly properly described as of general public utility and as beneficial to the community. In the absence of any ground for holding that such an activity is not within the spirit of the preamble to the Statute of Elizabeth, and I think that there is no such ground, it should, in my judgment, be held to be charitable.
Appeal dismissed. Leave to appeal to the House of Lords refused.
NOTES APPENDED TO THE JUDEMENT OF SACHS LJ
Charters of Clifford's Inn and the Honourable Society of the Inner Temple as set out and discussed in (a) Smith v Kerr* and (b) Thomson v Trustees of the Honourable Society of the Inner Temple* in the respective judgments of the Master of the Rolls and the Deputy Judge of the Mayor's and City of London Court.
(a) Clifford's Inn
The material words are these. After naming the parties, Lord Cumberland and Lord Clifford being the two grantors, it witnessed that the grantors -
'having an honourable intent and care that the capital messuage commonly called Clifford's Inn before mentioned, with the appurtenances thereto belonging being the ancient inheritance of the said Earl and Lord Clifford and of their ancestors, and which hath been for many years heretofore by the allowance of the said Earl and his ancestors the Earls of Cumberland and Lord Cliffords used and employed as an Inn of Chancery for the furtherance of the study and practice
(1) of the Common Laws of this His Majesty's Realm of England, and during all that time hath been ordered and governed by the Principal and Rules of the said House for the time being in very good sort and with great discretion both to the good
(2) of the Commonwealth and to the honour of the said Earl and Lord Clifford and their ancestors, may now upon the humble suit and earnest desire of the said Principal and Rules and others the Practisers and students of the said Society be assured estated and settled as [I think that means "so as"] the same shall and may for ever hereafter continue and be employed as an Inn of Chancery
(3) for the furtherance of the Practisers and Students of the Common Laws of this Realm as aforesaid And that the Principal Rules and other the gentlemen of the said Society may from henceforth be assured of a certain estate therein Do principally for that purpose intent and consideration and for and in consideration of the sum of £600 to them by [here follow the names of 13 persons] for and on behalf of themselves and the rest of the gentlemen of the same Society of Clifford's Inn aforesaid at or before the sealing and delivery of these presents well and truly satisfied contented and paid [here follows a receipt and a provision for a common recovery to the uses, intents, and purposes thereafter in the deed mentioned, and a grant of the premises, with certain exceptions, to be held by two trustees who are named and their heirs for ever to the only and proper use and behoof of the trustees named and of their heirs for ever] To the intent and purpose aforesaid To be holden of the Chief Lord and Lords of the Fee and Fees thereof by the rents and services heretofore due and of right accustomed and yielding and paying therefore yearly for ever unto the said Francis Earl of Cumberland and Henry Lord Clifford their heirs and assigns the yearly rent of four pounds. [Then it goes on:] After the said recovery and recoveries fine and fines or any or either of them shall be had acknowledged and suffered executed entered and recorded as aforesaid to the use and behoof of [the 13 gentlemen first named] and of their heirs for ever according to the intent and true meaning of the present indenture and to the intent that the said Earl and Lord Clifford their heirs and assigns shall and may for ever hereafter levy receive perceive and take up the said yearly rent of four pounds. [Then it goes on:] And it is further agreed by and between the said parties to these presents and the true intent and meaning hereof and of all the said parties is that the said capital messuage now called by the name of Clifford's Inn shall for ever hereafter retain and keep the same usual and ancient name of Clifford's Inn, and shall for ever hereafter be continued and
(4) employed as an Inn of Chancery for the good of the gentlemen of the Society and for the benefit of the Commonwealth as aforesaid and not otherwise, nor to any other use intent or purpose.'
(b) The Honourable Society of the Inner Temple
The recitals and expression of intention of King James I contained in the Letters Patent are important and are as follows:
'Whereas our Realm of England, having been for so many ages exceedingly
(5) prosperous in the arts of peace and war, and having by the singular providence of God in his own time devolved upon us by hereditary right, is sensible that great part of its welfare is justly owing to the ancient and proper Laws of the Realm, tried through a long series of ages, and particularly adapted to that populous and warlike nation, and approved by constant experience And whereas the Inns of the Inner and Middle Temple, London, being two out of those four
(6) Colleges the most famous of all Europe, as always abounding with persons devoted to the study of the aforesaid Laws and experiences therein, have been by the free bounty of our progenitors, Kings of England, for a long time dedicated to the use
(7) of the Students and Professors of the said Laws, to which as to the best Seminaries of learning and education very many young men, eminent for rank of family and their endowments of mind and body, have daily resorted from all parts of this Realm, and from which many men in our own times, as well as in the times of our progenitors, have by reason of their very great merits been advanced to discharge the public and arduous functions as well of the state as of justice, in which they have exhibited great examples of prudence and integrity, to the no small honour of the said Profession, and adornment of this Realm, and good of the whole Commonwealth, as is to us so abundantly manifest; Know Ye Therefore, that we, being desirous of perpetuating, as far as in us lies, the welfare
(8) of this Realm of England, flourishing for so many ages by the administration of the said Laws, and compassing not so much the continuance of the ancient renown of the said Inns as an accession of new honour, and to leave upon record to all posterity a testimony of our good will and manificence to the Profession and to the Professors of the said Laws, Have of our special Grace, certain knowledge, and mere motion, given and granted, and by these Presents for ourselves our heirs and successors do give and grant to our well-beloved and faithful Councillor Sir Julius Caesar. . .'
The recitals demonstrate the nature and stature of the Inns at the time and the words 'being desirous of perpetuating, as far as in us lies, the welfare of this Realm of England' are an indication of the purpose of the gift. At the top of page 334 the property is described, and the words Walls, Houses, Edifices, Cloisters, Buildings, Chambers, Gardens, Courts', and further down, on page 235, the words 'Church, Edifices and Buildings of the Church... commonly called the Temple Church', present a picture which is familiar today. The Habendum clause on page 137 after the words appropriate to convey the fee simple proceeds as follows in the translation,
'Which said Inns, Messuages, Houses, Edifices, Chambers and other premises we will, and by these presents for ourselves, our heirs and successors, strictly
(10) command, shall serve for the Entertainment and Education of the students and Professors of the Laws aforesaid, residing in the same Inns for ever.'
The Latin words from 'strictly command' onwards are 'mandamus pro hospitacione & educacione studencium & professorum legum predictarum in eisdem hospitiis perpetuis et temporibus futuris commorantium deservire.' It has been suggested by counsel on both sides that the word 'hospitacione' would be better translated as 'accommodation', using that word in its widest sense, rather than 'entertainment', and the words 'professorum legum' would be better translated as 'those who profess the Laws' rather than 'Professors of the Laws'; while the word 'commorantium' would be better translated as 'abiding' rather than 'residing'. It appears to me, though I make no pretence of Latin scholarship, that these suggestions are correct and I accept them.
Solicitors: Solicitor, Inland Revenue; Treasury Solicitor; Linklaters & Paines (for the council).
Christine Ivamy, Barrister.
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