Consistory court evidence or “Call My Bluff”: Episode 1

The first (of two) posts on information submitted as evidence to consistory court 

In our monthly reviews of consistory court judgments, it is not uncommon to encounter assertions in the submissions of petitioners, the amenity societies, and even “experts” which are less than robust. However, in this ecclesiastical variant on “Call My Bluff“, the Chancellor/Commissary-General invariably sees through the weasel words, exaggerations &c, and the published judgments reveal how the perpetrators are diplomatically taken to task, as appropriate. However, whilst statements made on checkable facts are easy to identify, those that transcend the binary “true or bluff” question to matters of opinion or the assessment of a particular “expert” are more complex to assess. The following discussion includes a number of examples on which future petitioners might wish to ponder.

The role of the petitioners

Prior to considering “true of bluff” examples within recent consistory court judgments, it is useful to examine the roles of the PCC, the churchwardens and the incumbent, in whose name most petitions are generally sought. Their respective vires are defined by the Canons of the Church of England, and other ecclesiastical law. Their relationship to the consistory courts is less well set out. The summary below highlights important features of this relationship, as identified by the courts. The corollary to this is the extent to which the courts take into consideration their past decisions and policies, in addition to those within the instant petition.

Role of the PCC

In Re All Saints West Burnley [2017] ECC Bla 6, Chancellor John Bullimore noted [emphasis added[:

“[61]. …an important principle frequently invoked by chancellors in their rulings, namely that it is for PCC’s, the democratically elected representative body in the parish, to decide how to use the funds at their disposal. All members of the PCC are (eventually) answerable at the APCM for their decisions; it is not for chancellors therefore to criticise their particular choices as such, or to engage with, let alone rule on, objections raised by others to the effect ‘it is a waste of money’…”.

Similarly, in Re St Peter East Bridgford [2016] ECC S&N 4, Deputy Chancellor Jacqueline Humphreys said:

“[19] …Divine worship is the central activity of any church and funds spent on enhancing that is an appropriate use of PCC funds…

[20]. However, it is the function of the incumbent and PCC to determine the appropriate division of resources between the various competing demands upon them. That money should be spent on Divine Worship and on meeting the needs of the poor is a given. It is foundational to any body that calls itself Christian. The appropriate balance between these objectives, and others, is to be determined by the incumbent and PCC in accordance with the law. It is no part of a Chancellor’s function to second guess that division”.

With regard to votes taken by the PCC, in Re St Peter & St Paul Heydon [2017] ECC Nor 2 Chancellor Ruth Arlow emphasised:

“The PCC voted on the proposals on three occasions; finally approval was given, 7 votes for and 2 against, the two dissenters being the two churchwardens, who became parties opponent. The Chancellor stated that as a “largely democratic body, the PCC had decided to pursue the application”; the vote of each PCC member was of equal value, whether the voter in question is the churchwarden, resident in the village or even the incumbent is irrelevant [8]”.

Thus, ecclesiastical courts are reluctant to question the decisions of a PCC, providing these are within its legal powers. In addition to the decisions it does make, the absence of (as in Re St. Wilfrid Standish [2017] ECC Bla 2), or a changed to a PCC policy in a particular area, such as its application of the Churchyard Regulations, may be equally important.

Role of the incumbent

The churchmanship of the incumbent is occasionally raised as an objection to a petition. In Re St Peter East Bridgford, supra,  where the incumbent’s “Anglo-Catholic” style of worship was disliked by a small number of the congregation [13], the Deputy Chancellor observed:

“[17]. …where such actions are part of the lawful custom and practice of an incumbent, which, presumably, form part of his spiritual formation, it is likely that to enable such practices to be performed freely and well will enhance not only his worship, but the worship of the whole community. This is because the incumbent has a duty to lead that community in worship, and he will best be able to set an example to them, if he is free to worship in the manner that enables him to engage most fully and devoutly in his role”.

Objectors to petitions

Nevertheless, in some parishes there is often someone intent on raising his or her objection to a faculty, to the ultimate cost of the parish. In Re Halifax Minster [2016] ECC Lee 6 Chancellor Mark Hill commented: “[i]t is unfortunate that this uncontroversial petition to regularise a regrettable mistake [on illegal disposal of kneelers] has been so strenuously resisted on such fanciful grounds”. The issue was highlighted in the obiter comments of Chancellor Peter Collier in Re St Michael Crambe [2015] York Const, Ct, in which he observed:

“[12]. It is a shame that the raising of the objection produces the inevitable outcome that the petitioners will have to pay the costs of the petition as it is now classed as an opposed petition and the costs of such have to be paid for by the parish rather than the DBF.

[13]. I have observed on other occasions previously but would underline again that it may be appropriate that Incumbents and PCCs when explaining re-ordering plans to their congregations should explain the process including the fact that any objections raised in response to the Public Notice will inevitably cause significant delay, may add to the building costs of the project and will almost certainly mean that the parish will have to pay additional registry costs.”

True or Bluff?

Exaggeration and inaccuracy

Matters of opinion are by their nature subjective, but in their enthusiasm, some parties become carried away in an exaggeration of the situation. This becomes problematic when aspects of their assertions are readily verified by the court; however, such hyperbole is readily identified and is seldom fatal to the overall conclusion of the court. In Re New Lonan Churchyard [2017] EC Sodor 1* [the “treble clef” wooden headstone case], the objectors claimed that a headstone was “oversized and far too large, a foot [304.8mm] taller than the maximum laid down by the Diocesan Churchyard Regulations” [9]. Although the Chancellor agreed that it was “significantly too thick, by 80mm” [6], he noted that it was only “fractionally too high by 70mm”.

Physical dimensions are not the only features of evidence that are checkable by the court, or facts that are well-known by the Chancellor. In Re St Barnabas Eltham [2017] ECC Swk 4 Philip Petchey Ch. gently reminded the Twentieth Century Society:

“[8] I think that is wrong to say that the choir stalls were designed for the space; I think that they came, with the pews, from St Michael’s, Lant Street. Also, as I have said, I think that the post-war restoration was carried out by Thomas Ford’s son and not Thomas Ford himself (although Alan Ford worked for a practice that bore his father’s name)”.

Another form of exaggeration occurs when documents or opinions in support of an argument do not have the degree of authority implied, or there is a degree of ambiguity in the manner in which material is presented. With regard to the latter, in Re St Mary and St Cuthbert Chester-le-Street [2017] ECC Dur 1, the Church Buildings Council alleged [at 18] “the illustration showing how [one of the four 50 inch screens] would look in situ is somewhat misleading as it uses the westernmost piers which are significantly larger than those to the east and which would therefore ‘hide’ the TVs more effectively when folded back”. At L&RUK we are not in a position to judge whether this allegation has any merit, but note that in other fora, “favourable” presentations of proposed works &c are not uncommon.

Presentation and consistency

The majority of faculty petitions are submitted by representatives of the churches concerned, and consequently the views of the incumbent, churchwarden and the PCC are significant, whether as formal evidence or agreed policies (or their absence). In addition to the factual content of such information, the manner in which it is presented is also of importance.

Chancellors sometimes describe a presentation as “chaotic”, although a faculty may ensue in spite of, rather than because of, the presentation of the case by the petitioners and their professional adviser. In Re St. George Donnington [2016] ECC Chi 7I [at 25]. Chancellor Mark Hill observed:

“[20]. “…Notwithstanding the best attempts of the petitioners and inspecting architect to camouflage, conceal and confuse the situation, I have succeeded in finding amongst the jumble of papers a compelling need for the proposal to provide a modest extension with toilet facilities…”.

Although a such a petition may be deemed to make the case for the required changes, it will not pass the seal unless all the necessary information (including feedback from the associated consultations) is included. In the petition for reordering considered in Re All Saints Waldron [2016] ECC Chi 3*; there was no mention of the design, make and number of chairs or benches which would replace the pews that would be removed.

Future petitioners (and their professional advisors) would do well to heed the advice proffered by Chancellor Hill in para. 25 of Re St George Donnington: the role of consultation; the obligatory Statement of Significance; and the burden of proof on the petitioners. To this might be added the value of a pre-submission “sanity check” to ensure the petition is both sound and self-consistent. In Re St John the Baptist Knaresborough [2017] ECC Lee 4, the petition as presented was “doomed to failure” as “the Court could never sanction work to a bench surrounding a tree which presented a current and future risk [as identified in the tree assessment, submitted by the petitioners, of independent arboricultural consultants ]” [11].

On self-consistency, in Re St Stephen Burnley [2017] ECC Bla 7, the churchwarden explained that the church was dependent on fund raising events in order to remain financially viable; he commented [our emphasis]:

“[11]. …the costs of maintaining a Victorian building is a significant financial responsibility [sic]. It is essential for our future that we “free up” the space inside the church…the removal of the pews is essential to accommodate the column radiators. These are ‘necessary due to the unusually wide dimensions of the church which makes it impossible to adequately heat the centre of the church with just side radiators”

However, his assertion re: column radiators was contradicted by the DAC heating engineer (at [26]), and the requirements imposed by the wide dimensions of the church were not a feature of the petitioners’ subsequent plans [28].

More recently, in Re St. Mary and St. Cuthbert Chester-le-Street [2017] ECC Dur 1* [at 34] the petitioners seriously undermined their own position relating to  the justification of the case for undertaking the proposed works, q.v..

Opinions. Decisions, and Undertaking

The issue of consistency has been found to extend to the opinions or decisions of former PCCs and incumbents, although not in relation to the undertakings given by a rector. In Re St Luke Charlton [2016] ECC Swk 10, the Chancellor said:

“[17]. …I think that it is indeed likely that as a matter of law, an undertaking by one Rector would not be binding upon his successor and perhaps not binding upon himself. However that may be, it does seem to me that any such undertaking is potentially relevant to the decision making process on a subsequent occasion”.

In this case, however, there was no written record or oral evidence to determine the alleged comments precisely.

Antipathy towards certain forms of churchmanship

In Re St Andrew Hexham [2014] Newcastle Const. Ct, Euan Duff Ch. the petitioners sought a faculty to dispose by sale of the painting “The Descent of Christ from the Cross” (a.k.a. “The Deposition”) from the workshop of Pieter Coecke Van Aelst, and to remove the copy of the painting hanging in the St Etheldreda Chapel. The petitioners’ contention that the painting was “more in tune with another period and more Catholic than Anglican” was rebuffed by the Chancellor on the grounds of the logic of the argument, and the consistency of the petition with the approach of previous PCCs.

He noted that a painting of this genre (by Andrea del Sarto, 1486 to 1530, showing Mary and the infant Christ meeting Elizabeth and the infant John the Baptist), was prominently located above the high altar: “whilst the image above the high altar is much easier and gentler than the more difficult representation of the Descent of Christ from the Cross, it is equally from another period and, in my judgement, more Catholic than Anglican [20]. On the second point he commented [26], “the current PCC has taken the view that display in the Abbey is not appropriate. Quite clearly previous PCCs from 1947 through to 2011 took a different view in relation to the painting or its copy.”

This disregard for painting &c which are perceived as being more appropriate to the Anglo-Catholic parts of the Church is not uncommon in this area. In Re St. Ann Oldland [2017] ECC Bri 2, the petitioners were distinctly sniffy about the church’s painting entitled ‘Ecce, Homo’, attributed to Bartolomé Esteban Murillo, the leading painter in Seville in the later 17th century; they indicated that “their “style of service does not use painting and objects as objects of devotion to bring people closer to our Lord”. However, having noted the comments of the CBC, they agreed to follow its recommendations and a faculty was granted on this basis [22].

Perhaps the ultimate example of distain for supposedly “Roman Catholic” paintings &c is Re Emmanuel Church, Leckhampton [2014] Gloucester Cons Ct. The PiC admitted that she had proposed to “get rid of” the painting Mary Queen of Heaven by the German 19th century Nazarene painter, Franz Ittenbach. Although sold at a hammer price of £20,000, it had been destined for a skip (and may in fact have been so disposed of [15]); however, its ultimate value to the purchaser, after restoration, was estimated as being in excess of £40,000. The Chancellor stated:

“[25]. …This wretched and lamentable history is a textbook example of how not to do things…Monumental stupidity is involved, some degree of arrogance, and, even possibly [I make no finding as to the latter], a degree of evasiveness…I note and warn further, that if this faculty is refused, the Priest in Charge and the Church Wardens might expect to be sued personally by the auctioneers and the “buyer” for their losses, including the Priest in Charge facing a very unpleasant dispute as to what she did or did not say about permission to sell to the auctioneers. Her word and her truthfulness would be on trial in such an action…”

However,

“[33].The conduct of the Priest in Charge and the Church Wardens in this matter has, as I have set out above, been dismal. They have been really, really stupid. But they have not been dishonest. In their misguided way, they supposed, albeit erroneously, they were acting for the good of the Church”.

Comment

Part 2 of the post looks at evidence submitted to the court other than that provided directly by the incumbent and PCC: public petitions; expert witnesses; and from those parties that are permitted to comment on a proposal.

Footnote

This post is based on reported judgments and the assessment of the respective Chancellors &c; we would not presume to elaborate on these. Readers, however, may reach their own conclusions on the veracity or otherwise of the submissions presented in the above cases.

Cite this article as: David Pocklington, "Consistory court evidence or “Call My Bluff”: Episode 1" in Law & Religion UK, 30 August 2017, http://www.lawandreligionuk.com/2017/08/30/consistory-court-evidence-or-call-my-bluff-episode-1/

2 thoughts on “Consistory court evidence or “Call My Bluff”: Episode 1

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