The Incorporated Council of Law Reporting for England and Wales v. Attorney-General and another

[1971] 3 All ER 1029

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(Judgment by: Buckley LJ)

The Incorporated Council of Law Reporting for England and Wales
v Attorney-General and another

Court:

Judges: Russell LJ
Sachs LJ

Buckley LJ

Hearing date: 28, 29, 30 June, 1 July
Judgment date: 14 October 1971

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Judgment by:
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 1870 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 Comrs ; Tennant Plays Ltd v Inland Revenue Comrs ). 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 ^[l] .

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; 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, not merely to enable him to take part in the trial of causes 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 Comrs, English Branch Council of General Medical Council v Inland Revenue Comrs ; General Nursing Council for England and Wales v St Marylebone Corpn ). 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 Corpn ).

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 Comrs v Pemsel ( [1891] AC 531 at 583, [1891-94] All ER Rep 28 at 55) as being purposes beneficial to the community, which fall within the spirit and in endment 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 ((1805) 10 Ves 522 at 531), 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 ^[m] , 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 Comrs v City of Glasgow Police Athletic Association , where Lord Normand ([1953] 1 All ER at 749, [1953] AC at 391), Lord Morton of Henryton ([1953] 1 All ER at 755, [1953] AC at 400), and Lord Reid ([1953] 1 All ER at 756, [1953] AC at 401, 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 ( [1971] 1 All ER 436 , [1971] Ch 626) 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 precedents, 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 ^[n] 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 ( [1971] 1 All ER 436 , [1971] Ch 626) 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 not 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 'improving natural knowledge'. That of the Royal Geographical Society is 'the improvement and diffusion of geographical knowledge'. Of these two bequests Selwyn LJ said ((1869) 4 Ch App at 315):

'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 puts 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 ([1952] 1 All ER at 986, 987, [1952] AC at 641, 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 ([1952] 1 All Er at 995, [1952] AC at 654) 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-Jones 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 ([1931] 2 Ch at 135, [1930] All ER Rep at 47):

'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 ([1954 1 WLR at 551, cf [1954] 1 All ER at 890, 891):

'I cannot doubt that this was a society for the diffusion of a certain branch 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 those 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 Corpn .)

The service which publication of the Law Reports provides benefits not 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 ( [1971] 1 All ER 436 , [1971] Ch 626) 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.

NOTES APPENDED TO THE JUDGMENT 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 l . 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

(9)

a testimony of our good will and magnificence 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 234 the property is described, and the words 'Halls, 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 237 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 t 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.