The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay.
Held: The appeal was allowed. The matter was justiciable and should be allowed to go to a hearing. The dispute related to the ownership, possession or control of property held on trust. It may have been within the power of the trustees to agree to the clauses in the disputed documents, and were unable to challenge its validity, deriving their own status from it.
The Court referred to a type of foreign act of state under the head of non-justiciability which it said ‘refers to a case where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter’ (even though it would otherwise be within the English courts’ jurisdiction under, for example, the Brussels Regulation and Lugano Convention or the rules of court). Lord Oliver of Aylmerton went on to say that such cases ‘generally fall into one of two categories’:
(i) The first was where the issue was ‘beyond the constitutional competence assigned to the courts under our conception of the separation of powers’, of which the ‘paradigm cases are the non-justiciability of certain transactions of foreign states and of proceedings in Parliament’. The distinctive feature of such cases was that ‘once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable’. Buttes Gas falls into this category.
(ii) The second category was of cases not involving private legal rights or obligations or reviewable matters of public policy, and included ‘issues of international law which engage no private right of the claimant or reviewable question of public law’. Such issues were not justiciable in the abstract, but ‘must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable’. Examples of this second category, where no private right or reviewable question of public law was engaged, are Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56, where the Nabob was seeking to sue for an account due under an international treaty, and JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, where the House of Lords stated that it is ‘axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law’
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
[2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, UKSC 2012/0234, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243
Bailii, Bailii Summary, WLRD, SC Summary, SC
England and Wales
Citing:
Appeal from – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
Cited – Craigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .
Cited – In re Orphan Working School and Alexandra Orphanage’s Contract 1912
An established trust had collected subscriptions over many years, ptting those subscriptions wth other funds derived from the sale of one school property for the purchase of another. That property in turn came to be sold, and questions arose as to . .
Cited – Attorney-General v Mathieson CA 1907
The Rev John Wilkinson, ran charities in Stoke Newington in London, including ‘the Mildmay Mission to the Jews’. He was given received andpound;1350 from ‘a lady’ locally who suggested that the money be used for a convalescent home. He pointed out . .
Cited – Underhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Jeeves v Imperial Foods Ltd, Pension Scheme ChD 27-Jan-1986
Walton J explained that there may be many ‘occasions in law in which a fund is held on trust, but at the particular point there is no final definitive trust deed’. He went on to say that ‘it may very well be that . . a person who had contributed to . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
Cited – Bruker v Marcovitz 14-Dec-2007
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – . .
Cited – Al-Haq, Regina (On the Application of) v Secretary Of State for Foreign and Commonwealth Affairs Admn 27-Jul-2009
The claimant sought a declaration that the UK was in breach of its international obligations. The claimant was a non-governmental human rights organisation based in Palestine. The respondent argued that the issue was beyond the court’s jurisdiction, . .
Cited – Barker v O’Gorman ChD 1971
The plaintiff sought to challenge to a proposed union between the Methodist Church and the Church of England on the ground that the Methodist Conference had no power to vary the doctrinal standards of the former church. . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Syndicat Northcrest v Amselem 30-Jun-2004
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Long v Lord Bishop of Cape Town PC 13-Feb-1863
After constitutional government had been granted to a colony, the Crown, by letters patent appointing a bishop, could no longer grant any coercive ecclesiastical jurisdiction to him. The church could be nothing more than a voluntary association.
CA Costs – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
Cited by:
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
At SC – Khaira and Others v Shergill and Others ChD 23-Mar-2016
. .
At SC – Shergill and Others v Khaira and Others ChD 3-Mar-2017
The court considered the identification of one of the ancient Sikh gurus in order to ascertain the rights of current gurdwaras . .
At SC – Khaira and Others v Shergill and Others CA 27-Oct-2017
‘This appeal raises technical but important issues on the entitlement of a party who is awarded the costs of an interlocutory appeal to an immediate assessment of those costs. Two issues of general application arise. First, is the party entitled to . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.
Trusts, International
Leading Case
Updated: 02 November 2021; Ref: scu.526418