Park v Cho & ors [2014] EWHC 55 (Ch)

WTLR Issue: March 2017 #167

YOUNG GEUN PARK

V

1.TAE HYEON CHO

2.IL SOO SEOK (acting on behalf of the Korean Residents Society)

3.HER MAJESTY'S ATTORNEY GENERAL

Analysis

In November 2007 the claimant stood for election as chairman of the Korean Residents Society (the ‘society’). He was unsuccessful and, the result of the election being disputed, commenced proceedings in the Queen’s Bench Division against the first and second named defendants acting on behalf of the society. The trial took place on 12 March 2008 at the conclusion of which Judge Mackie QC declared that the election had been conducted by the Election Committee in breach of the duties owed to the claimant, gave directions as to the conduct of a further election and ordered the first and second named defendants to pay the claimant’s costs. They in turn issued third party proceedings against the current chairman of the society seeking an indemnity against the costs they have been ordered to pay and a default judgment was given on 23 March 2011. In subsequent proceedings before Master Leslie it was submitted that the original proceedings were likely to be charity proceedings within s33 of the Charities Act 1993 pursuant to which such proceedings required to be authorised by an order of the Charity Commission and, in those circumstances, on 4 November 2011 he ordered that the proceedings and execution be stayed and transferred to the Chancery Division for hearing by a Master. On 7 March 2012 Deputy Master Henderson directed that the claim, together with its enforcement be stayed until, inter alia, the claimant had obtained authority under s33 of the 1993 Act. The Charity Commission observed that it did not have power under s115 of the Charities Act 2011 (following the repeal of the Charities Act 1993) to authorise the substantive proceedings retrospectively and that it was unclear whether the enforcement proceedings fell to be authorised thereunder as they amounted to proceedings brought in a pending cause or matter. In view of that uncertainty the Charity Commission concluded that it could authorise the enforcement proceedings if and insofar as the same met the definition of charity proceedings pursuant to s115(8) of the 2011 Act and by order dated 12 February 2013 authorised the claimant, being a person interested in the charity, to take or continue to take the enforcement proceedings. The claimant duly applied to the court for an order that the stay imposed by Deputy Master Henderson be lifted on the ground that he had obtained authority from the Charity Commission and Master Marsh ordered that the stay be lifted on 4 July 2013. The first and second named defendants then sought permission to appeal against that order.

Counsel details

Mr Neil Vickery (42 Bedford Road, London WC1R 4LL, tel 020 7831 0222, e-mail clerks@42br.com) for the first and second defendants/appellants.

Mr Joshua Winfield (11 New Square, Lincoln’s Inn, London WC2A 3QB, tel 020 7831 0081, e-mail clerks@radcliffechambers.com) instructed by Messrs Bates Wells & Braithwaite London LLP (2-6 Cannon Street, London, EC4M 6YH, tel 020 7551 7777, e-mail mail@bwbllp.com) for the claimant/respondent.

Cases referenced

Cases in bold have further reading - click to view.

  • Adorian v Commissioner of Police of the Metropolis [2009] 1 WLR 1859
  • Ford's Charity (1855) 3 Drew 324
  • Gray v Raper (1866) LR 1 CP 694
  • In re Hutton (a bankrupt) [1969] 2 Ch 201
  • In re National Employers Mutual General Insurance Association Ltd [1995] 1 BCLC 232
  • In re Saunders [1997] Ch 60
  • Muman v Nagasena [2000] 1 WLR 299
  • Rendall v Blair (1890) LR 45 Ch D 139
  • Seal v Chief Constable of South Wales Police [2007] UKHL 31
  • Strachan v The Gleaner Co Limited [2005] 1 WLR 3204
  • Wilson v Banner Scaffolding Limited “The Times” 22 June 1982
  • (

Legislation referenced

Legislation in bold has further reading - click to view.

  • Charitable Trusts Act 1853, s17
  • Charities Act 1993, s33
  • Charities Act 2011, s115
  • Companies Act 1948, s231
  • Insolvency Act 1986, ss130, 285
  • Mental Health Act 1983, s139