In a recent hearing in the Chancery Division, the employment status of a minister of religion arose once again…
…in this case, coloured by a factional dispute within the congregation. The Court also addressed the interesting question of whether or not a charity could maintain an action in tort for passing-off, even though it was not engaged in trading.
The facts in Celestial Church of Christ, Edward Street Parish (A Charity) v Lawson  EWHC 97 (Ch) were as follows. The Celestial Church of Christ was founded by the Revd Samuel Oshoffa in the Republic of Benin in 1947 and incorporated in Nigeria in 1958; its present written constitution dates from 1980 . After the death of Oshoffa and his successor, the Revd Alexander Bada, there was a dispute over the succession; and in March 2015 the High Court of Ogun State in Nigeria declared unconstitutional and void the purported appointment of the Revd Emmanuel Oshoffa as the third Pastor and spiritual head of the Church and injuncted him from purporting to act as such . However, the claimant Parish had at all times regarded Emmanuel Oshoffa as the Pastor and spiritual head of the Celestial Church .
The Parish was founded in 1990. Mr Lawson became deputy Shepherd of the Parish in 2007. He had been appointed by Pastor Emmanuel Oshoffa by letter dated 11 November 2011, confirmed by a further letter dated 11 February 2012; the decision to appoint him had been made within the Parish and had not been imposed upon it by the Pastor. The Parish’s written constitution refers to two governing bodies: the Parochial Committee and the Trustees. At the first meeting of the new Parochial Committee on 3 February 2013, all present agreed unanimously to the executives making decisions on all matters on behalf of the Parochial Committee .
On 8 May 2013, the elders wrote to Pastor Emmanuel Oshoffa referring to a “deteriorating state of affairs” and on 1 September 2013 seven members of the Parochial Committee Executive and eight members of the Elders’ Council wrote to Pastor Oshoffa again, stating that they had lost confidence in Mr Lawson and asking him to call a new Shepherd to the Parish . On 5 September 2013, a Parochial Committee Executives’ Meeting voted unanimously to suspend Mr Lawson for four weeks in order to investigate various allegations against him and asked the Trustees to deliberate on his suspension as matter of urgency. The Trustees subsequently voted unanimously to suspend Mr Lawson and he was so informed .
On 20 September, the Trustees issued proceedings against Mr Lawson in the Bromley County Court; but the claim was ultimately struck out with costs. Subsequently, Mr Lawson’s period of suspension was to be extended for six weeks because of his alleged refusal to comply with the terms of his suspension and his non-cooperation; however on 6 October, 93 members of the Parish wrote to Mr Lawson asserting their support and stating that they had passed a vote of no confidence in the current Parochial Committee and had dissolved it with immediate effect .
On 17 February 2014, a fire caused extensive damage to the church building. On 19 February, the ten charity trustees of the Parish and two of the four freehold trustees of the church building resolved to close the church while investigation, assessment by loss adjustors and the necessary remedial works were carried out. On the same day, Mr Lawson held a service at the church . On 4 March 2014, the Parochial Committee resolved that Mr Lawson should be dismissed as Shepherd of the church with immediate effect . That decision was confirmed by the Board of Trustees  and the Council of Elders . Subsequently, at its inaugural meeting the new Parochial Committee unanimously reaffirmed Mr Lawson’s dismissal and authorised the Trustees to proceed with the ongoing litigation in the event of mediation failing to resolve the dispute:
“It is clear that whilst the defendant may retain a substantial body of support within the Parish, those elected to the Parochial Committee by the democratic processes within the Parish are opposed to him retaining any continuing role within the Parish” .
The claimants asserted that they had the power to remove Mr Lawson even without Pastor Oshoffa’s consent .
The principal issue was the true meaning and effect of the governing constitution of the Parish, which HHJ Hodge QC, sitting as a judge of the High Court, described as
“an unsatisfactory document in many respects which … could have been clearer. In particular, it assumes the roles of a shepherd in charge and/or a Pastor’s representative without articulating any express mechanism for their appointment or removal and without identifying who the Pastor is” [19: emphasis added].
HHJ Hodge concluded as follows:
- the provisions of the worldwide constitution of the Celestial Church could not be allowed to affect the true interpretation of the governing constitution of the Parish, still less could they be treated as being incorporated within it: a number of the provisions of the worldwide constitution were at odds with the terms of the Parish’s constitution .
- the ultimate power to appoint and dismiss the Shepherd in charge was vested in the Parochial Committee without the need to look to the authority of the Pastor as conferred by the worldwide constitution .
- in the absence of any mention of such a power, the Parish’s constitution did not confer upon the Pastor the right to remove the Shepherd or Pastor’s representative as a member of the Parish .
- the defendant’s role as a charity trustee was consequential upon his appointment and continuing role as Shepherd and would automatically terminate when his role was terminated .
- following Preston v President of the Methodist Conference  UKSC 29, Mr Lawson was an officer and not an employee of the Parish and his remuneration was properly to be viewed in the nature of a stipend rather than a salary 
“Persons acting on behalf of a charity must act in good faith, responsibly and reasonably. That involves acting so as to promote and further the objects of the charity. They must also act in accordance with rules of fair procedure insofar as these are consistent with the furtherance of the charity’s objects. But the requirements of the rules of fair procedure take their colour from the factual context in which the decision falls to be made and are fact specific. It is clear on the evidence … that this was a church congregation polarised between opposition to, and support for, the position of the defendant as the Shepherd in charge … The problem for the defendant is that those in the majority on the Parochial Committee were opposed to his continuing role in the church; and they were the democratically elected body seised by the constitution of the Parish with the duty of resolving the stalemate within the Parish. This could not be left to elders from other congregations of the Celestial Church or to the Pastor. It was for the Parochial Committee to do the best they could in the circumstances. On the evidence, I am satisfied that this is what they sought to do in what they considered to be the best interests of the Parish and in accordance with, and in the furtherance of, its charitable objects” .
HHJ Hodge found that Mr Lawson had ceased to be a trustee, member or officer of the Parish. Moreover:
“Had I found that this was not the case, I would have exercised the court’s jurisdiction to remove the defendant as a charity trustee on the basis that this was necessary for the furtherance of the Parish’s charitable objectives. Although no authority on the point was cited to me, I am satisfied that the court’s equitable jurisdiction over charities extends to the removal of a person (such as the defendant) who, although not a trustee in the strict sense, satisfies the statutory definition of a charity trustee within the meaning and for the purposes of section 177 of the Charities Act 2011” [39; emphasis added].
As to the issue of passing-off, His Honour was clear that a charity could maintain an action in passing-off even though it was not engaged in trading activities in the ordinary sense of the word:
“The fund-raising activities of a charity and its reputation and image are sufficient to enable it to maintain such a claim. It was not disputed before me that the claimants have made extensive use of, and as a result have acquired substantial goodwill in, the name ‘Celestial Church of Christ, Edward Street Parish’ as an organisation operating as a registered charity, conducting religious services and handling donations, governed by rules and for whose conduct the claimants, as trustees, are ultimately responsible. I am satisfied that it would constitute the tort of passing-off for the defendant to represent himself as the Shepherd in charge of the Parish or to misrepresent his services and other activities as those of the Parish” [40: emphasis added].