Reflections on The Split – S2, E3: Non-molestation orders, a rehab romance and protecting the family wealth
In the case of Shergill & Ors v Khaira & Ors  UKSC 33, The Supreme Court discussed the approach to be taken to cases raising non-justiciable issues, and the approach to cases raising questions of religious doctrine.
The appeal arose out of divisions which had arisen within a Sikh sect associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and High Wycombe. The Gurdwaras had been founded under memoranda agreed in 1987. In 1991, the trustees under the memoranda executed a trust deed, vesting the power to appoint trustees in "the First Holy Saint", the leader of the relevant Sikh sect, and "his successor".
The appeal raised two issues arising out of the trusts on which the Gurdwaras are held. These were:
The Court of Appeal confined itself to issue 2. They decided that the whole dispute was non-justiciable and ordered a permanent stay of the entire proceedings, thus making it unnecessary to deal with issue 1.
The appellants appealed against this decision and the case was referred to the Supreme Court.
The Court of Appeal's decision to stay the proceedings was not justified in the light of the first two issues, especially as they logically were to be considered first. The question whether the trustees had had power to execute the 1991 deed turned solely on the English law of trusts and did not involve an unjusticiable issue. The second issue turned on the interpretation of the 1991 deed; a pure question of interpretation, of a deed clearly intended to be governed by English law, could be resolved by an English court.
Secondly, the court questioned whether the trustees could get round the provision in Attorney General v Mathieson  2 Ch. 383 that trustees who had been appointed under a trust deed could not challenge the deed's validity. However, the court expressed its views tentatively and stated that if the trustee wished to raise the issue at trial, they should be free to do so.
Finally, the Court of Appeal had misunderstood the authority in Buttes Gas & Oil Co v Hammer (No.3)  A.C. 888 when determining whether the issue was non-justiciable. The issue in that case had been non-justiciable because it was political, not because judges had been incapable of determining it.
By Katie Allard, Paralegal
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