The International Journal
of Not-for-Profit Law
Volume 1, Issue 2, December 1998
The case of Gaudiya Mission v. Kamalaksha DAS Brahmachary, decided by the Court of Appeal on 30 July 1997, concerned the territorial scope of the jurisdiction of the English courts and of the Charity Commission in relation to a charity that was established in India but also operated in England. The Court of Appeal, reversing an earlier decision of the High Court, held that a foreign charity that is established for purposes that would be charitable under English law and which carries on some of its activities in the UK is not required to register with the Charity Commission, and is not subject to the requirements of the Charities Acts.
The case concerned a dispute between rival factions of a mission registered in India under the Societies Registration Act 1860 which enjoys charitable status in India. The mission operated several centers in India and a temple in London. The dispute centered on a battle for control of the London temple and its assets between the mission and the priest in charge of the London temple, who with others had established a rival UK registered charity. The case resulted from the litigation of a preliminary issue as to whether the mission was a “charity” for the purposes of the requirement in section 33 Charities Act 1993 that the Charity Commission should give its consent to the proceedings.
The Court of Appeal reached its conclusion on three grounds. First, that the principle of implied territoriality of legislation and practical considerations of enforceability led to the conclusion that the 1993 Act is not intended to apply to charities established outside England and Wales (charities established in the two other legal jurisdictions within the UK, Scotland and Northern Ireland, are not subject to the Charity Commission but are regulated by other bodies). Second, that it is the established principle and practice of the English courts not to subject to English law institutions established for public purposes under other legal systems, on the grounds that a foreign charity and those engaged in its administration are beyond the control of the court. Third, that a specific precedent existed in the form of the decision of the House of Lords in Camille and Henry Dreyfus Foundation Inc. v Commissioners of Inland Revenue  (36 Tax Cases 126) for the proposition that the term “charity” in a UK statute is prima facie limited to institutions regulated by and subject to the jurisdiction of the laws or courts of the UK.