Transcript of the Judgment published | Last updated 31.10.07

Transcript of the Judgment of the judicial review held before the high court on the 5th of October, is now published and is avaible from here Read the full High Court of Justice Jusdgment pdf 237k

To follow are verbatim extracts from numbered paragraphs of the transcript
 
Mr Justice Sullivan’s comments:

On the promise to consult | P 23
Moreover, it has to be interpreted in such a way as to make sense of the promise that there would be consultation on how beneficial interests should be protected, rather than to make a nonsense of that assurance and to make it ineffective.

On the need for information | P 25 
Any reasonable person asked to comment on a draft order giving trustees that power, ……would be bound to say: "Show me the lease and the agreement, and then I will be able to answer your question", or at the very least they would say: "If for some reason you are unable to show me the lease and the project agreements themselves, then at least tell me sufficient about them to enable me to form a view about whether entering into them would be expedient in the interests of the trust".
 
On the need for fairness | P 27
I find it difficult to understand how the Commission could have thought that this was a fair process. One would have thought that the alarm bells would be ringing loud and clear,….
 
On confidentiality and fairness | P 30
The Commission, in apparently changing its position and giving the assurance sought by the Trustees that the lease would not be made public, appears to have lost sight of the need for there to be an effective and fair consultation in line with the minister's assurance.

On the need for disclosure by the trustees | P 31
….but it (the Charity Commission) was under an obligation to ensure that those who were consulted had sufficient information to be able to make a meaningful response to the question: should consent be given to the Trustees entering into this particular lease…?

On the Palm Court exhibition in January 2006 and why this
was not sufficient information | 33
…. it is clear that what Firoka were presenting at that stage were outline
proposals, and indeed in a subsequent report they were correctly
described by the general manager of the Trustees as "outlined concepts".
It was clear that the detail would be worked up later, and it is clear from
the extensive documentation in the bundle that there was a lengthy
period of negotiation, and that there were various versions of the lease.
At the end of the day what mattered was not what was shown in outline
at the exhibition in January 2006, but what had been finally agreed and
incorporated into the lease and the project agreement in November 2006,
and it is clear from the documents that changes had occurred over the
intervening months …

On the final date for agreement | P 38
If the lease is not signed by 17 November [sic] - the date should be 17 October. then Firoka will be entitled to treat the Trustees as being in fundamental breach…

On Firoka’s threat to walk away | 40
It is interesting to note that Mr Kassam does not state in terms that even
if full disclosure had been required, he would have walked away, merely
that he would have given serious consideration to doing so. Moreover,
his expressed concern, at least in his witness statement, is about
disclosure in full. It says nothing about the extent to which he might
have been persuaded to agree to some form of redacted disclosure, or
summary or gist of what had been agreed. So if one looks at the evidence
as it emerges from the horse's mouth rather than second hand, some of
the submissions made by Mr Hickman on behalf of the Trustees as to the
likely outcome of relief being given in this case are not made out. …

The Judges’ ruling | P 44
I grant the relief sought. I grant a declaration that the Order is unlawful, and I quash the Order.

Arguing about who should pay the costs:

Mr Wolfe for JOC | P 52
Before the proceedings it was their (the Trustees)  pushing of the Commission on the question of disclosure which led to the position we now find ourselves in….So, I do ask that the court make an order that the Trustees pay the claimant's costs,

Mr Hickman for the Trustees | P 58
We are an innocent party to this…..
we say that there was a mistake on the part of Mr Harris….

Judge to Mr Hickman | P 69
Someone is trying to instruct you. You are being prodded from behind, or will be.

Mr Wolfe on disclosure | P 73
So the Commission was open minded...and it was the Trustees who piled in… putting heavy pressure on them not to do so.

Mr Wolfe summing up | P 76
So, my Lord, whichever way one looks
at it,… in my submission it has been the Trustees in the end in the driving seat.

Judge’s final words | P 82
...it is clear that the claimant ought to recover his costs.   in large measure the Trustees are the authors of their own misfortune, but they have been ably assisted and abetted, I am afraid, by the Commission. In reality, the running today was made very largely by the Trustees, …but again I bear in mind that they are not the decision-making body; that of course is the Commission…they were both equally to blame for this unfortunate set of circumstances, so the proper order for costs would have been a 50/50 order.

Legal challenge 2

If necessary at least two members of the SaveAllyPally campaign, who are London residents, and so are beneficiaries of the charity, will ask the Chancery division of the High Court to rule:

• Whether the trustees must continue to ensure the historic parts of the palace, especially the former television studios in the south-east wing - birthplace of television - are maintained and preserved and kept available for the public to visit, and

• Whether the proposed lease, project agreement and associated plans and documents, and the proposed uses, are consistent with the public purposes of the charity. In other words, whether they must continue, like all other charities, to provide "public benefit".

• Whether it is true or not that the charity has never balanced its books in living memory.

Francesca Quint of Counsel is advising.

	The opening of the Alexandra Palace View from the dome. The Illustrated London News May 1873

Background

Charities, like all trusts, can only do what their deeds allow them to do. These "powers" must agree with the charity's "objects"- those public purposes the charity was set up to perform.

The objects and purposes of the Ally Pally charity were set out in the 1900 Act, s 17: "the park palace and other lands shall be available for the free use and recreation of the public for ever". It does not say "the park or palace".

The lease would change the purposes of this charity by closing most of the palace off from not-for-profit access by the public. At present the managment can close off parts for commercial use (exhibitions, the pub, a hotel), but only areas named in the various Acts and only for a certain number of days in the year. For 20 years self-interested senior palace management (backed by council chief executives) have been ignoring this - in effect squatting on nearly all the public parts. They are now trying to claim squatter's rights.

Like most of the rest of the building, the south-east wing has to be used for charitable purposes only. Planning permission obtained after a long public enquiry in 1983, provides that this be connected with its world-famous television history.

Under the existing law, this area must properly remain available for the free use of the public - who therefore may see for themselves the actual studios where television was born and developed. The costs of this educational activity can be provided from the profits of activities permitted in some parts of the building such as a hotel in the south-west wing.

This should be more than enough, and further grants from English Heritage and others and other donations should be available for repairs and restoration as the museum/exhibition is charitable.

This would not be the case with a commercial activity there.

Neither will the tax advantage that the charity enjoys be available -
a considerable sum.

The order together with the lease purport to change that purpose and those provisions.

This is ultra vires the commission's limited powers given by Parliament under s 17 of the Charities Act 1993 to make an order for a lease.

Only in limited, exceptional circumstances can a charity's purposes and objects be changed. It must be proved that the original purposes can no longer be attained. Then s 13 of the Charities Act 1993 can be used. Instead, Parliament was only asked for, and granted a s 17 scheme which is meant for minor administrative changes which should not be contentious.

On this basis Parliament's Standing Committees on Statutory Instruments allowed the draft SI for the s 17 scheme to go before the House as a non-contentious, merely administrative Order.

Don Foster, Simon Hughes and other MPs insisted on the statutory instrument (giving the commission power to grant an order for a 125-year lease) being debated in Committee.

There were grave doubts about the information provided to the commission and Parliament about the charity's financial history in order to procure the scheme (see below).

Also that the commission, under their own operational guidelines, should have considered taking the trusteeship from the (obviously incompetent) Labour-led council as trustee.

Here is the Hansard report of the debate on the s. 17 scheme. Although the government won because the vote was whipped, the undertakings given by the Minister in reply to concerns and fears, made to her by Simon Hughes and Don Foster during the debate were these:

Column Number: 020 (Fiona Mactaggart:)

... The scheme does not amend the charity's purposes. The trustees have a legal responsibility to ensure that those purposes are achieved, and the charity commissioners, as the regulatory body, will hold them to that. The scheme does not provide for the palace to be sold for commercial development; it [merely] provides the power to lease it and the immediate surrounding area for 125 years.

But:

The charity's purposes are being changed by the order. The palace is to be sold for commercial development.

The order refers to the proposed lease. Neither the terms of this lease, nor a plan of the exact land to be leased, have been included as an appendix to the published draft order, so made this "consultation" largely meaningless (because one cannot comment on something one is not allowed to see)

The area of the Palace in the proposed lease to be reserved for the purposes of this charity is in reality confined to the theatre and a tiny corner for a TV museum.

Legal challenge 1

Kate Harrison of Harrison Grant is representing objectors in seeking leave for a Judicial Review by the High Court of the Charity Commission's decision to allow the disposal of Alexandra Palace to Firoka Ltd. This will initially be done under the Environmental Law Foundations' scheme.

Kate was the solicitor who helped Greenpeace succeed in their recent landmark victory about nuclear energy policy in a Judicial Review of the Energy Minister and British Nuclear Fuels in the High Court. David Wolfe of MATRIX has been retained.

We will post progress about the case here as it develops.

Letter before claim

To the Charity Commissioners
Harmsworth House
13-15 Bouverie Street
London EC4Y 8DP

29^th June 2007

Dear Sirs

Re: Order of the Charity Commission for England and Wales dated 4^th May 2007

Proposed Judicial Review

The proposed Claimant
We act on behalf of Mr J O’Callaghan on his own behalf and on behalf of the campaign to save Alexandra Palace. We are writing this letter in accordance with the pre-action protocol for judicial review.

The Proposed Defendant
The Charity Commissioners

The matter being challenged
The Order of the Charity Commission for England and Wales to authorise the trustee to enter into a lease for the charity known as Alexandra Park and Palace (281991).

The Issue
On 4^th May 2007 the Charity Commission made an Order to allow the Trustees of Alexandra Park and Palace, Charity number 281991, to enter into a lease of Alexandra Palace. That decision turned, in part, on the terms of the proposed lease. It followed a short period of consultation and took into account consultation responses. However, the decision was unlawful in that the proposed lease and related documents were not made available to consultees. Consultees were not, accordingly, able to make full and proper representations within the consultation process. Even now, only a redacted copy of the lease has been made public. Had consultees, including Mr O’Callaghan, been provided with the lease they would have been able to make further material representations including as to whether the lease should be permitted at all and, even if was to be permitted, as to its terms.

It is well established law that to be legally adequate consultation must accord with the following principles:

• Consultation must be at a time when the proposals are still at a formative stage
• The proposer must give sufficient reasons for any proposal to allow the consultee to give an intelligent and considered response
• Adequate time must be given for consideration and response and
• The responses must be conscientiously taken into account in finalising any proposals.

The details of the action that the proposed Defendant is expected to take
We write to ask that the Commission agree within 14 days to withdraw its consent to the lease; alternatively agree that, if a judicial review is commenced, the Commission will submit to judgment and allow their earlier decision to be quashed. If that agreement is not forthcoming, we are instructed to commence judicial review proceedings without further notice.

Request for documents
In addition we would be grateful if you could provide an unredacted copy of the lease and related documents, including the Master Agreement development plans and maps of the area to be leased at the earliest opportunity and, in any event, within 14 days.

Details of Legal advisers dealing with the claim

Kate Harrison, Harrison Grant Solicitors, 15 Wolsey Mews, London NW5 2DX

Details of interested parties
We are, of course, copying this to the Trustees and the potential lessee. We are also sending a copy to the Treasury Solicitors.

The Trustees solicitors are Howard Kennedy 19 Cavendish Square London W1A 2AW

The potential lessees’ solicitors are Lewis Silkin 5 Chancery Lane Clifford’s Inn London EC4

We look forward to hearing from you by Friday 13^th July 2007.

Yours faithfully
 
Harrison Grant