Dean v Burne & Ors [2009] EWHC 1250 (Ch)

[2009] EWHC 1250 (Ch)Case No HC07C03107
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 June 2009
Before
MR JUSTICE BLACKBURNE
Between
ADRIAN GORDON DEANClaimant(1) PATIENCE BURNEDefendants(2) PATRICIA FOSTIROPOULOSDefendant(3) DEBORAH HONOREDefendant(4) HER MAJESTY’S ATTORNEY-GENERALDefendant(5) BISHOP BASIL OSBORNE OF AMPHIPOLISDefendant(6) RUTH NARESDefendantCase No: HC07C03020IN THE HIGH COURT OF JUSTICECHANCERY DIVISION
Between
ADRIAN GORDON DEANClaimant(1) XENIA BOWLBYDefendants(2) NATHALIE BROOKEDefendant(3) EDWIN ROBERSONDefendant(4) ELIZABETH VON SCHLIPPEDefendant(5) HER MAJESTY’S ATTORNEY-GENERALDefendant(6) JANE MOURA COLLINGRIDGEDefendant(7) MARIAM RAHIM (action discontinued)Defendant(8) SOPHIA MYRTLE OLIVE TANNERDefendant(9) HANNAH MARY TORRANCE (action discontinued)Defendant(10) RUTH NARESDefendant
Steven Moverley-Smith QC and James Kitching (instructed by Bryan Cave) for ClaimantWilliam Henderson (instructed by Treasury Solicitors) for Attorney-GeneralHubert Picarda QC and Joshua Winfield (instructed by Stone King Sewell LLP) for Defendants Ruth Nares and Jane Moura CollingridgeHearing Hearing dates: 23 rd, 24 th and 27 th April 2009
Judgment

Introduction

[1]These two actions concern a dispute among members of what in his skeleton argument for Jane Collingridge and Ruth Nares, representative defendants in both actions, Mr Hubert Picarda QC aptly described as one of the great Churches of Christendom. It is that of the Russian Orthodox Faith. The dispute is principally, if not wholly, between persons who assemble to worship in the Russian Orthodox Cathedral situated in Ennismore Gardens in the Knightsbridge area of central London. The Cathedral, known as the Cathedral of the Dormition of the Mother of God and All Saints, serves both as the parish church of what has been referred to as the London Parish and as the cathedral church serving the Diocese of Sourozh. The existence of the Parish as a community of worshippers of the Russian Orthodox church, served by a priest and regulating their affairs in a structured manner, goes back to before the last War. Its origins can be traced to 1716. The Diocese is of a later date. It was established in October 1962 and extends to the whole of the United Kingdom and the Republic of Ireland.[2]For reasons which I shall shortly explain, the unhappy differences, apparently irreconcilable, that have arisen are largely of outlook and approach to matters of worshipping practice, rather than of matters of doctrine or ecclesiology. But they include the extent to which the community of worshippers in the Parish and Diocese should be allowed to continue to worship and practise their faith in the manner that has evolved over many years, that is to say, with minimal interference or direction from the Moscow Patriarchate under whose control the Parish had been since 1946 when the then members of the Parish resolved to accept that jurisdiction. Such control was being exercised by, among other matters, the recognition given by Moscow to those who have ministered to the worshipping community and, not least, by the creation of the Diocese in 1962 and, with it, the despatch to the Diocese from time to time (as occasion has demanded) of bishops and other clergy.[3]In the spring of 2006, as I shall recall in greater detail later in this judgment, the then senior priest of the Parish and bishop in charge of the administration of the Diocese, Bishop Basil of Sergievo, felt unable any longer to give his allegiance to and recognise the authority of the Moscow Patriarchate but wished instead to transfer his allegiance to and recognise the authority of the Ecumenical Patriarchate of Constantinople. Bishop Basil so informed the Patriarch of Moscow and All Russia (to give him his official designation), His Holiness Patriarch Alexis II, who, by a Decree of the Holy Synod of the Moscow Patriarchate, relieved Bishop Basil of his responsibility for administering the Diocese. At the same time Bishop Basil had applied to be admitted to, and was immediately accepted into, the jurisdiction of the Ecumenical Patriarchate. He was accorded the title of Bishop of Amphipolis within the Patriarchal Exarchate for Orthodox Parishes of the Russian Tradition in Western Europe. I will explain later, so far as necessary, the differences between the Moscow Patriarchate and the Ecumenical Patriarchate, what community there is between them and where their essential differences lie.[4]Bishop Basil was followed on this transition by several clergy from within the Diocese of Sourozh and by a number of ordinary worshipping members. Following Bishop Basil’s release from his responsibilities by the Moscow Patriarchate, a replacement bishop, Archbishop Innokenty of Korsun, was immediately appointed to take temporary charge of the Parish and Diocese.[5]Despite this exodus, the Parish and Diocese were not left denuded of clergy or worshipping members. On the contrary, a thriving community continued (and continues) at both parochial and diocesan levels.[6]The immediate triggers for these proceedings are resolutions passed by members of the governing bodies of the Parish and the Diocese at meetings held just over a year later, in 2007. The resolutions were directed to the future use of certain property and assets available for the use of the Parish and Diocese in accordance with two particular trust deeds.[7]Taking them in date order, the meeting, in the case of the Diocese, was that of the so-called Diocesan Assembly, purportedly as constituted on 2 May 2006. It was convened by notice in writing issued by the Diocesan trustees on 18 May 2007. The meeting, which was held on 23 June 2007 and was well attended, passed the following resolution:
“Resolved …pursuant to clause 4 of the trust Deed dated 22 April 1979 relating to the Property held for the benefit of the Diocese of Sourozh that for the purposes of the said Trust Deed The Episcopal Vicariate of Orthodox Parishes of Russian Tradition in Great Britain and Ireland is the successor to the Diocese of Sourozh and that the Trustees shall hold all property and funds subject to the said Trust Deed on trust for the benefit of the Vicariate and shall use or apply the same in such manner as the Assembly of the Vicariate shall direct.”
I shall refer to that resolution as “the disputed Diocesan resolution”. I will explain later the various references in that resolution.[8]In the case of the Parish the position was similar. The meeting in question was that of the Parish Council, purportedly as constituted on 13 May 2006. It was convened by notice in writing issued by the Parish trustees on 15 June 2007 and headed “The Russian Orthodox Church in London (Charity Number 254025)” and was held on 19 July 2007. At the meeting, which like the Diocesan Assembly meeting was well attended, it was resolved that:
“Pursuant to clause 4 of the Deed of Trust dated 20th July 1944, which established the Charity and continues to be its Governing Document, the Parish Council (as constituted on 13 May 2006) hereby resolves as follows:- That the Orthodox Parish of the Dormition of the Mother of God (Ecumenical Patriarchate), being a body whose main purpose is the furtherance or promotion of the Orthodox Faith, be deemed, for the purposes of the Charity’s trust deed to be the successors of the Parish of the Cathedral of the Dormition and All Saints and so also of that Parish of Russian Orthodox Christians in the United Kingdom who at 20th July 1944 had as their Parish Priest the Reverend Father Vladimir Theokritoff.”
[9]I refer to that as “the disputed Parish resolution”. As with the corresponding Diocesan resolution I will explain the various references in it a little later.[10]The effect of the two resolutions, if valid, was and is to direct that the assets held subject to the two trust deeds, which include the Cathedral itself and other properties and monies and extend to most of the assets then available for the use of the Parish and Diocese, should thenceforth be used and applied, putting the matter shortly, to promote the religious purposes in the United Kingdom and Republic of Ireland of the Russian Orthodox Faith under the jurisdiction and subject to the ultimate control of the Ecumenical Patriarchate. The evidence before the court on the value of these assets is, at best, very approximate. The Parish trust assets are said to be in the region of £2.8 million, excluding the value of the Cathedral which must obviously be very considerable. The value of the Diocesan trust assets ranges from not less than £200,000 to possibly £1 million.[11]The questions raised by the two actions, which are brought by Mr Adrian Dean on behalf of himself and all other members of the London Parish and the Diocese of Sourozh and which are for trial before me, are whether the resolutions were validly passed, that is to say, whether on the true construction of the clauses in question and in the events that have happened, circumstances had arisen to trigger an entitlement to pass the resolutions and, even if they had, whether the meetings at which the resolutions were passed were validly convened.[12]There is another question (“the wider question”) which has been raised before me although, as will appear, it is not one which is referred to in the pleadings in either of the two actions. This is whether, irrespective of the outcome of the dispute over the two disputed resolutions, the circumstances which have occurred justify consideration of a cy-près scheme under section 13 of the Charities Act 1993.[13]With that introduction, I propose to approach the questions which arise by considering(1) the background to the existence and organisation of the Orthodox Church, in particular in relation to the Moscow and Ecumenical Patriarchates,(2) the background to the existence, organisation and development of the Russian Orthodox Church in this country,(3) an ecclesiological issue that separates the two Patriarchates,(4) the material terms of the two trust deeds and of the Diocesan Statutes,(5) the events which have led to the present dispute,(6) the extent of the migration from the Moscow Patriarchate to the Ecumenical Patriarchate,(7) the procedural course that these two actions have taken,(8) the arguments for and against the validity of the disputed resolutions and my conclusions on those questions,(9) the role in these proceedings of the Attorney-General and(10) the wider question.

The Ecumenical and Moscow Patriarchates

[14]This subject is long and complex and it is necessary to delve into some history. In setting the historical context brevity of exposition has inevitably been at the expense of complete accuracy. What follows is, I apprehend, broadly correct.[15]In the earliest centuries of the Christian era, once the Church became structured on the threefold basis of bishop, priest and deacon, the Christian world was a united body. It was united in the sense that, although organised into independent administrative dioceses, each enjoying exclusive responsibility for matters of faith and worship within its own area, each was in communion with the others. There were none of the divisions that have since marred the Christian world. Human nature being what it is, however, divisions and rivalries gradually appeared. They led, ultimately, to the Great Schism of 1054 which separated the Church in the West, under the Bishop (and Patriarch) of Rome, ie the Roman Pope or Pontiff, from the Church in the East which came to be known as the Orthodox Church. But all shared, and continued to share, a belief in the Church as being One, Holy, Catholic and, importantly, Apostolic (ie led successively by a body of bishops, each having responsibility for this own area (or diocese) and linked to the original Apostles by the laying-on of hands).[16]In due course, and following much debate and not a little dispute, five Patriarchates became established (originally there were just three). These were separate geographical areas of Christian governance, each with its own hierarchy of bishops and others and each under the leadership of an overall primate or patriarch. They remained in communion with one another and shared the same fundamental approach to matters of scripture, doctrine and Church order. The patriarchates were those of Rome, Alexandria and Antioch and, by later addition, Jerusalem and Constantinople. Constantinople as the “New Rome” (later known as Byzantium) became prominent in the eastern half of the Mediterranean and was accorded, or at any rate claimed, a primacy second only to (“old”) Rome. With the sacking of Rome, however, and, later, the rise and spread of Islam in the Near and Middle East and North Africa, the claim to primacy of the Patriarchate of Constantinople, or the Ecumenical Patriarchate as it came to be known, was strengthened. Those matters, together with the growing separation from the traditions, claims and practices of the Church in western Europe based in Rome which had culminated in the Great Schism, left Orthodoxy (or the Eastern Orthodox Church as it is sometimes known) under the leadership of the Patriarch of Constantinople.[17]That brings me to the position in Russia. For several centuries after the start of the Christian era, Russia lay beyond the Christian pale. Gradually, however, Christianity was carried into Eastern Europe and in particular into what we now know as Russia. The process culminated in the adoption of Orthodoxy as the recognised religion in Russia in 988, and with it the creation of the Russian Orthodox Church. I think I am correct in saying that its bishops traced their apostolic succession through Constantinople. Initially, at any rate, the Church in Russia was under the Patriarchate of Constantinople.[18]By the time of the fall of Constantinople to the Ottoman Turks in 1453, the Russian Church claimed independence from the Patriarch in that city. Instead, Moscow laid claim to be the “third” Rome. By 1589, its leading bishop (or metropolitan) - based in Moscow - became (I believe as a result of the efforts of the then Regent, Boris Godunov) and was proclaimed Patriarch of Moscow and All Russia. This status was recognised by the Ecumenical Patriarchate. Thus was established the Russian Orthodox Church as an independent (or autocephalous) Orthodox Patriarchate.[19]But life did not run smoothly for the new Patriarchate. In 1700, during the reign of Tsar Peter the Great, the office of Patriarch of Moscow and All Russia was suppressed although the Patriarchate continued. Instead, the Church in Russia was governed by what was known as the “Holy Synod”. This remained the position until 1917, when, for a brief period, the Patriarchate was restored and a new Patriarch was elected by a council of the Russian Church. This proved to be short-lived. Independence of the Russian Church was incompatible with the totalitarian and revolutionary aspirations of the newly established Soviet regime and the Church in Russia went through a long and difficult period in the 1920s and 1930s. Nevertheless, in the face of Nazi Germany’s attack on the Soviet Union in 1941, and with the need to rally support for resistance to the invaders, the Soviet authorities permitted the Russian Church to enjoy a period of revival; Stalin allowed a new Patriarch to be elected. But this revival too was itself short-lived and was followed by a further period of repression until finally, with Glasnost and Perestroika, a new period of revival dawned. It led to the election of the Metropolitan of Leningrad, who became Alexis II (Patriarch between 1990 and 2008), as Patriarch of Moscow and All Russia. It was during his tenure as Patriarch that the events occurred which have given rise to these proceedings.[20]The movement that led to the re-establishment of the office of Patriarch in Moscow and the events that followed, culminating in the emigration of very large numbers of Russians to the West in the immediate aftermath of the Russian Revolution, and how they set about organising their Orthodox worship in exile are set out more fully in the first witness statement of Bishop Basil. I have no reason to doubt the accuracy of what he states. At any rate, it was not challenged by any of the claimant’s evidence. “53. At the beginning of the twentieth century, in response to the social changes that were taking place in Russia - the ending of serfdom in the 1860s, the rise of capitalism and the development of industry at the end of the nineteenth century - a movement for reform arose within the Russian Church. Emperor Nicholas II at first accepted the need for change, but in the end refused to allow it to take place. As a result, it was not until after he abdicated in February 1917 that a Council could be called, which was made up of the episcopate and clergy and lay delegates elected by the dioceses. This Council opened on 15 August 1917. It proceeded to re-establish the office of Patriarch and elected Metropolitan (later Saint) Tikhon to this office. It also put into place wide-ranging changes in Church life, providing for the election (and even rejection) of bishops by clergy-laity assemblies and a greatly increased participation of the laity in Church affairs. Many other changes designed to reinvigorate the life of the Church were also introduced…54. The October Revolution broke out while this Council was meeting. All Church property was immediately confiscated by the Bolsheviks, the Council came to an end without completing its business, and violent persecution of the Church and its clergy began.55. As a result of the Revolution, hundreds of thousands of Russians fled their country, including many of the most learned and cultured members of society. Many were heavily committed to the Church, and the problem immediately arose of how to organise Church life abroad.56. In the end three groups emerged.57. The largest group was determined to continue in exile the process of reform that had begun before the Revolution. They established the so-called ‘Metropolia’ in North America (which was granted autocephaly by the Patriarchate of Moscow as the Orthodox Church in America in 1970, a decision that was never accepted by the Patriarchate of Constantinople) and (after 1931) the Archdiocese of Russian Orthodox Parishes in Western Europe under the Ecumenical Patriarchate. The latter is often called the ‘rue Daru’ or ‘Paris’ jurisdiction.58. A second group was determined to continue the life of the Church in more or less the same form that it had before the Revolution, but completely independent both of Moscow and any other autocephalous Orthodox Church. This group was known variously as the Karlovtsy Synod, the Russian Church in Exile, and (today) the Russian Orthodox Church Outside Russia (ROCOR). It preserved the pre-Revolutionary synodical form of Church government, but without a tsar and state control.59. A much smaller group was determined to preserve its ties with Moscow in spite of the subservience of the Moscow Church to the Soviet State.”

Russian Orthodoxy in the British Isles

[21]That brings me to Russian Orthodoxy in these islands and, in particular, to the London Parish. Their origins in one sense go back to 1716 when an embassy, sent to England by Tsar Peter the Great, set up a chapel in London within which to worship. More immediately, however, according to Bishop Basil the accuracy of whose narrative of the material events I again have no reason to doubt, the London Parish’s:
“7. …origins go back to the period immediately after the Revolution, when the Russian Orthodox community was forced to abandon the Embassy Chapel. The original community divided, probably in 1927, into a ‘Moscow’ group under Metropolitan Evlogii in Paris and a ‘Church in Exile’ group. Both groups continued to use the same church building, St Philip’s Buckingham Palace Road, on alternate Sundays. In 1931 the ‘Moscow’ group moved with Metropolitan Evlogii to the Ecumenical Patriarchate, and drew up its Deed of Trust in 1944…”
This is a reference to the Parish trust deed to which I will come later. “…and in due course they bought a large parish house at 34 Upper Addison Gardens, London W11, and eventually were able to buy [in 1956 or so] what is now the cathedral in Ennismore Gardens from the Church of England.”[22]I pause to say that the Cathedral, built in 1849 and modelled on the basilica of San Zeno Maggiore in Verona, had previously served as an Anglican parish church. It is where the main administrative bodies of the Church meet on a regular basis, namely the Parish Council (of the London Parish), the Diocesan Assembly and the Diocesan Council. It is also the focal point for the religious life of the Church in this country.[23]The story resumes at paragraph 60 of Bishop Basil’s first witness statement:
“In 1945, however, the Parish moved to the Moscow Patriarchate, carried away by the euphoria that followed on the Russian defeat of Nazi Germany in World War II…”
I imagine that hand in hand with this sense of euphoria was the fact that, as I have mentioned above, there had been an earlier relaxation of control by the Soviet authorities over the Orthodox Church in the face of Nazi Germany’s invasion in 1941. Be that as it may, it is common ground that on 4 October 1946, at an Extraordinary Meeting of the Parish, a resolution was formally passed to move from the jurisdiction of the Ecumenical Patriarchate to the jurisdiction of the Moscow Patriarchate. The legitimacy of this move, at any rate as a matter of civil (as distinct from canon) law, has not been questioned.[24]The history and fortunes of the Russian Orthodox Church in the British Isles, and in particular in London, and its establishment as a vigorous community of worshippers during the second half of the 20th century are intimately bound up with a very remarkable Orthodox priest called Anthony Bloom. Bishop Basil described the position thus (in his first witness statement):
“60. …In November 1948 the then Archimandrite [a monastic title] Anthony (Bloom), a member of the Moscow Patriarchate, came to London from Paris to serve as chaplain of the Fellowship of St Albin and St Sergius. In September 1950 he was appointed parish priest of the (by now Patriarchal) London parish on the death of Father Vladimir Theokritoff. Metropolitan Anthony from his youth had always belonged to the small group of ‘Patriarchal’ Russians in Paris.”
He was consecrated as Bishop in 1957 and Archbishop in 1962 on the creation of the Diocese of Sourozh. He was later appointed Metropolitan. From 1963 until his resignation in 1974 in the wake of events in Russia he was Moscow’s Patriarchal Exarch of Western Europe.[25]The Diocese was initially centred on London (where the London Parish had become established) with a separate parish in Oxford. It consisted mainly of the families of the first emigration from Russia and converts from the Anglican community. By early 2006 the Diocese consisted of nine parishes and a further 25 smaller communities. Its clergy comprised two bishops, 24 priests and six deacons.[26]Metropolitan Anthony was ruling bishop of the Diocese until his retirement on 30 July 2003. By then he was gravely ill. He died five days later on 4 August 2003, aged 89. Bishop Basil was appointed to succeed him but only as administrator of the Diocese, not as its ruling bishop.[27]Bishop Basil’s witness statement goes on to set out Metropolitan Anthony’s approach to the manner in which Russian Orthodoxy should be practised in these islands:
“61. Metropolitan Anthony insisted that the Russian Church had committed itself to the reforms introduced by the Council of 1917-18. They could not be introduced in Russia, because of the communist government, but they could and should be put into practice abroad, where the Church enjoyed a relative freedom. The London and Oxford parishes were organised along the lines envisaged by the Council, and when it came to drawing up Statutes for the Diocese of Sourozh, the laity were given a large role, even in the election of the bishop. The Statutes of the diocese were designed to be very similar to the Statutes of the Orthodox Church in America and to the ‘rue Daru’ jurisdiction in France, which also were concerned to introduce the reforms envisaged by 1917-18 Council.”
In his evidence Mr Dean summarised the position by stating that “the (London) Parish and Diocese have an alignment with Russia but have always exercised a degree of distinctiveness and separation.” “62. The collapse of communism in 1991 led to a short-lived hope that the reforms of 1917-18 would be introduced in Russia as well, but this did not happen for various reasons. There developed a feeling amongst members of the Russian Orthodox Church in the West that the Orthodox Church in Russia was gradually becoming allied with Russian nationalism and anti-Western feeling.” This last sentiment is not shared by those who continue to accept the jurisdiction of the Moscow Patriarchate. “63. Metropolitan Anthony tried to combat these tendencies in the Russians who were now pouring into Britain. In 1993 the entire Diocese of Sourozh had an electoral roll of 603 people, but by 2001 an estimated 100,000 Russians or Russian-speakers were living in London alone. Those who had some Church experience in Russia had never known anything like what they found in Britain in the Diocese of Sourozh. Some were immediately attracted by what they found, while others considered it not properly Orthodox. The latter group openly and vigorously criticised the forms of Church life that had been introduced under Metropolitan Anthony. The parish council of the cathedral became very difficult to manage because of these diverging views. Metropolitan Anthony and others took legal advice in 2002 because of the growing differences... 64. The developing split manifested itself many ways. For example, Archbishop Anatoly [a cleric who had been sent from Moscow in the 1990s to assist in the running of the Diocese] forbade people to list the names of non-Orthodox persons when they gave in their prosfora at the Sunday Liturgy. Prosfora: small loaves offered by the laity, with lists of names to be prayed for in the Liturgy This kind of approach is particularly painful for converts to Orthodoxy whose family and friends belong to other traditions, especially since prayer for the dead is very important in Orthodoxy. This approach also affected prayers for the departed on anniversaries etc. A new authoritarianism was evident, including insistence on sacramental confession before every communion in a way that was contrary to the teaching of Metropolitan Anthony. In the cathedral a disagreement arose regarding the reading of the Hours before the Liturgy, whereas previously the cathedral had been kept quiet so that anyone present could follow the Liturgy of Preparation. Pressure was also exerted to increase the amount of Church Slavonic in the services, even though few (even most Russian speakers) could understand it.”[28]Metropolitan Anthony’s espousal of a reformist approach is reflected in the “Introduction to the 1998 Edition” of the Diocesan Statutes which described how:
“…from the time of his arrival, and especially after his consecration as bishop in 1957, Metropolitan Anthony worked for the emergence of a united Orthodox witness in Britain which would in time be of a gradual fusion of the existing immigrant Orthodox communities with the agreement and blessing of the Mother Churches from which these communities derived. As a contribution to this process he took two important steps. In 1975 he convened the first Diocesan Conference, thereby enabling the members of the diocese to worship and experience together the reality of diocesan life. The Conference was intended both to educate its participants in the Orthodox Faith and to prepare them to take an active part in the life of the Church. It met for three days and has since become an annual event, sometimes drawing up to two hundred participants from Great Britain and abroad. Metropolitan Anthony also believed that the time had come when a permanent body was needed in which clergy and laity would take an active and creative part with the bishop, not just in the administration of the diocese, but, more importantly, in the planning and execution of its mission. As a result a second step was taken when he called into being a Steering Committee and gave it the task of planning the formation of a Diocesan Assembly. The Assembly met for the first time, under the presidency of Metropolitan Anthony, on 5 February 1977. It was composed of all the clergy of the diocese and lay representatives from each of the parishes and appointed a Diocesan Statutes Committee whose members were Archpriest Basil Osborne (now Bishop Basil…), Costa Carras and Dr Andrew Walker. A first text of the Statutes was adopted by the Assembly in May 1979, but work on the Statutes continued in the Assembly until 1985… After a trial period of ten years a number of changes were introduced and the present text is that adopted by the Assembly at its meeting of 17 June 1995.”
It appears that further amendments to the statutes were made resulting in the approval of revised statutes, being the Diocesan Statutes in evidence before me, on 9 June 2001. It was in conformity (as they believed but as the claimant before me disputes) with these statutes (in their revised form) that the two meetings were convened at which the disputed Diocesan and Parish resolutions were passed.

The ecclesiological position

[29]It is convenient at this stage to touch on an ecclesiological matter which, as I understand it, is contentious between the Moscow and Ecumenical Patriarchates. It is relevant to Bishop Basil’s decision to transfer his allegiance from Moscow to the Ecumenical Patriarchate. Ecclesiology is that area of ecclesial study concerned, inter alia, with matters of church order, including governance, jurisdiction and ministry.[30]The matter concerns the existence of geographically distinct areas of Orthodox governance and jurisdiction and whether, canonically, they may be permitted to overlap. It is described thus in Bishop Basil’s first witness statement: “69. The traditional ecclesiology of Orthodoxy insists that no bishop has episcopal authority outside his own diocese, which is territorially defined. According to the 34th Apostolic Canon, in any area the bishops of that area must know who is ‘first’ among them and do nothing that would affect the others without his approval. On the other hand, ‘he should not do anything that would affect them without their advice and consent’. Over time this arrangement developed to apply not just to metropolitan districts, but also to the relationship between metropolitans and patriarchs, and finally to relationships between the various autocephalous Churches themselves.” “Autocephaly” is the status enjoyed by those Orthodox Churches (for example, the Cypriot Orthodox Church and the Georgian Orthodox Church and, not least, the Patriarchates themselves) where the most senior bishop (whether archbishop, metropolitan or - and necessarily - patriarch) is not answerable to some higher expatriate ecclesiastical authority although it will usually be in communion with other Churches. “70. In all of this there is no mention of ‘nation’ or ‘race’ or ‘culture’, as the Church is not built on any of these.71. With the rise of European nationalism, however, this principle was challenged in the nineteenth century by the Bulgarian community in Istanbul, who insisted on having over them a Bulgarian bishop who would be independent of the local bishop (who happened to be the Patriarch of Constantinople). A council of all Orthodox Churches was called by Constantinople in 1872 and proceeded to condemn this position as what it called ‘ethnophyletism’, that is, the structuring of the Church on ethnic or cultural grounds. The inevitable result of ‘ethnophyletism’ is the appearance of ‘overlapping’ dioceses, which is contrary to the foundations of Orthodox ecclesiology. This was accepted by all the Orthodox Churches at the time (except the Church of Bulgaria, which went into temporary schism).72. The problem has not gone away, however, and has become acute in the so-called ‘diaspora’, or areas where Orthodox Christians have settled outside their traditional homelands. In these areas a certain number of Orthodox autocephalous Churches have declared that they are responsible for the members of their own ethnic communities, leaving it to others to take care of their ethnic communities.73. In addition, since 1990 we have seen the revival in Russia of the notion of Moscow as the ‘Third Rome’ and a conscious attempt by Moscow to displace Constantinople, the ‘New Rome’, as the ‘first’ among the Orthodox autocephalous Churches. Since 2000 we have also seen, in the Russian Church, the development of a theory of Russian ‘canonical territory’, which embraces whole countries of the former Soviet Union, areas much larger than any diocese, and ignores the fact that the Orthodox Church is built up of groupings of dioceses locally established and territorially defined. When ‘ethnophyletism’ is combined with the notion of ‘canonical territory’, a kind of ‘radical autocephaly’ is created, whereby a national Church claims as its members all those Orthodox who consider themselves members of that nation or ethnic group no matter where they may live throughout the world. The Statute of the Russian Church adopted in 2000 makes just such a claim.” “70. In all of this there is no mention of ‘nation’ or ‘race’ or ‘culture’, as the Church is not built on any of these.[31]This topic is taken up in the following passage from the witness statement, adduced in evidence on the claimant’s behalf, of Professor Gillian Evans, Emeritus Professor of Medieval Theology and Intellectual History, Faculty of History, in the University of Cambridge. It appears in a section headed “Territoriality and Movement of Bishops between Jurisdictions”. “26. From an early stage in the development of church order, as West and East moved apart into linguistic division (Greek and Latin) at the end of the Roman Empire, and long before the Schism of 1054, the underlying concept of the way the one Church was able to be present in each place seems to have developed differently in East and West.27. In the West dioceses tended to be seen as ‘parts’ of a ‘whole’, sub-units of the unitary jurisdiction of Rome. In the Orthodox East they have been seen as ‘microcosms’ of a ‘macrocosm’. This difference of understanding is fundamental. The strong continuing principle everywhere has always been that ‘local churches’ are local in a territorial sense, but Orthodoxy holds its autocephalous Churches together in a mystical rather than a jurisdictional unity.28. The practice from the period of the early Church was for a priest who wanted to move to another diocese to obtain letters from his bishop, to the bishop of the other diocese, to testify that he had been properly ordained and was in good standing, and that the bishop whose vicar he was, was prepared to let him go. This practice demonstrated a mutual respect for the territorial integrity of each diocese and the territorial jurisdiction of both bishops.29. There is an acceptance that this is the normal and proper process for bishops too. This acceptance is evident in the consciousness of Bishop Basil in his description of the Paris Jurisdiction …[in] his First Witness Statement:
“The ‘Paris jurisdiction’ came into existence in 1931, when Metropolitan Evlogii (Georgievsky) ceased to accept the authority of the Moscow Patriarchate and placed himself under the authority of the Ecumenical Patriarchate, based in Constantinople (Istanbul). My understanding is that he did this because of the way in which the Russian Church was then quite clearly under the control of the State and the NKVD (KGB). He left without having been released by Moscow and was accepted by Constantinople on the ground that, as he was operating in Western Europe, he should never have been directly under Moscow in the first place.” (Emphasis added in the original)
There was no question of the pastor taking any people with him in these early arrangements of the Church. 30. The normal mechanism for transfer (of a priest) from bishop to bishop is canonical release and acceptance by the ‘new’ bishop. Ordination as a bishop is for life. Roman Catholics say it confers a ‘character’. The holding of a particular bishopric is not for life. A bishop might be transferred to another diocese, or made a metropolitan, or archbishop or even retire. He would still be a bishop. An extreme example is the Bishop of Rome, who is allowed by canon law to retire and if he did would cease to be Pope but remain a bishop. 31. This fundamental separability of bishop and diocese remains in Orthodoxy, even if in Orthodoxy the ‘norm’ is for a bishop to remain in his particular pastoral position…” “The ‘Paris jurisdiction’ came into existence in 1931, when Metropolitan Evlogii (Georgievsky) ceased to accept the authority of the Moscow Patriarchate and placed himself under the authority of the Ecumenical Patriarchate, based in Constantinople (Istanbul). My understanding is that he did this because of the way in which the Russian Church was then quite clearly under the control of the State and the NKVD (KGB). He left without having been released by Moscow and was accepted by Constantinople on the ground that, as he was operating in Western Europe, he should never have been directly under Moscow in the first place.” (Emphasis added in the original)[32]Neither Professor Evans not Bishop Basil was cross-examined on their evidence and, for reasons which I shall later explain, I did not consider that in reaching my conclusions on the questions of construction arising under clause 4 of each of the trust deeds, it was necessary that they should be. This particular extract from Professor Evans’ evidence was not, as I follow the evidence, controversial in the understanding of Bishop Basil whose only comment (contained in his third witness statement) was directed to paragraph 30, and was that:
“It is not normal for an Orthodox bishop to retire. He normally dies ‘in harness’. Nor is it normal for a bishop to be transferred from one diocese to another in Orthodoxy. When this does happen, it is done by ‘economy’ ie against the canonical norm but for the good of the Church.”
[33]An important aspect of Bishop Basil’s approach to this is to be found in paragraphs 10 to 12 of his third witness statement in which he found a measure of agreement between his views and those of Professor Evans:
“10. The position of the Ecumenical Patriarchate is that it is the sole legitimate jurisdiction in Western Europe, with the power to allow by ‘economy’ the existence on its territory of ‘diaspora’ jurisdictions that are cared for pastorally by their so-called ‘Mother Churches’. The canons of the Church do not allow the simultaneous existence of two churches on the same territory. This latter point is effectively accepted by Professor Evans in paragraph 27 of her Statement. 11. The position of the Russian Church is that it can establish dioceses outside its own canonical territory to take care of its own national flock wherever they move abroad throughout the world. I have called this ‘radical autocephaly’ in the past and the Ecumenical Patriarch has called it ‘autocephalicism’. In any case, it is contrary to the fundamental principles of ecclesiology, which make it clear that all local dioceses and local churches are strictly defined territorially. This point is effectively admitted by [Professor] Evans in paragraph 46 of her Statement. 12. Thus those members of the London Parish and the Diocese of Sourozh who moved to the Ecumenical Patriarchate were doing what the canonical tradition of the Orthodox Church requires.”
[34]The key point, concerned with the legitimacy of his move and the move of those among the clergy and body of worshippers who followed him from the jurisdiction of the Moscow Patriarchate to that of the Episcopal Patriarchate, is to be found in his comments on paragraph 42 of Professor Evans’ statement. In that paragraph Professor Evans said this:
“With regard to the Diocesan Proceedings, there is a connected issue as to the nature and status of the alleged successor body to the Diocese, namely the Episcopal Vicariate of Orthodox Parishes of Russian Tradition in Great Britain and Ireland … specifically, whether the Vicariate has any geographic or functional equivalence to the Diocese. A diocese is a fundamental unit of Church order. A vicariate is, by definition, an artificial construct intended to provide for the pastoral care of a body of the faithful in an ecclesiologically temporary or unsatisfactory situation in the absence of normal arrangements for a diocese to have a bishop.”
[35]Commenting on that passage, Bishop Basil said this in his third witness statement:
“33. …The Vicariate exists as part of a larger Archdiocese of Western Europe, whose history and spiritual life was shaped by the same influences that shaped the lives of the Diocese of Sourozh under Metropolitan Anthony. No matter how much authority is given to the bishop in charge of a vicariate, he will never be a proper diocesan bishop.”
Bishop Basil then explained, in paragraph 34, that Professor Evans’ statement “points up the anomaly of having ‘overlapping’ dioceses in Western Europe” and then adds:
“No amount of ‘metaphorical and mystical unity’ can change the non-canonical nature of this situation. It is contrary to fundamental canons and is not accepted, except by ‘economy’, by the Ecumenical Patriarchate, which has jurisdiction in Western Europe (but only for the Orthodox), as the locum tenens of the Pope of Rome.”
He returns to the same issue in paragraphs 39 and 40 of his third witness statement where he states that “the move to the Ecumenical Patriarchate in 1931 was correct canonically, while the move to the Moscow Patriarchate in 1946 was contrary to the canons” (see paragraph 39) and in the ensuing paragraph:
“…The belonging of any particular diocese to the Orthodox Church is dependant upon the acceptance of its bishop as a person into the appropriate synod of bishops, in this case through Archbishop Gabriel of Comana in Paris, who is part of the synodical structure of the Ecumenical Patriarch which has jurisdiction in Western Europe. As the synod of bishops of the Moscow Patriarchate has no jurisdiction outside the borders of Russia, the move was from a non-canonical to a canonical position.”
[36]The point, as I understand it, is that the Moscow Patriarchate had no right to exercise its jurisdiction over Orthodox Christians worshipping outside the borders of Russia (ie the territories historically regarded as within the jurisdiction of the Moscow Patriarchate) and that, given the schism between Orthodoxy and the Church in the West dating back to 1054, jurisdiction over Orthodox worshippers in Western Europe falls to the Ecumenical Patriarch as locum tenens of the Patriarch of Rome. (This, needless to say, is a matter of controversy between the two Patriarchates.) It is this view which in part, as I follow matters, informed Bishop Basil’s approach, which he regards as canonically justified, when he took the important decision in May 2006 to move from the Moscow to the Ecumenical Patriarchate and did so without obtaining his “release” from the Moscow Patriarchate and was followed by a number of the clergy and lay members of the Church.

The Trust Deeds and the Diocesan Statutes

[37]That brings me to the two trust deeds and the Diocesan Statutes.[38]The Parish trust deed is dated 20 July 1944 and was made by three persons referred to in the deed as “the Trustees”. It has two recitals which I should set out:
“Whereas certain persons are or may hereafter be desirous of transferring property by deed or will or otherwise for the benefit of that Parish of Russian Orthodox Christians in the United Kingdom who at the date hereof have as their Parish Priest the Reverend Father Vladimir Theokritoff (hereinafter called “the Parish”) or their successors which expression shall mean such Parish Community or Congregation as shall be deemed to be the successors of the Parish in accordance with terms of this deed And Whereas at a general meeting of the Parish held on the Nineteenth day of December One thousand nine hundred and forty three the Trustees were duly appointed and authorised to execute this deed”
[39]The operative part of the deed then provides, so far as material, as follows:
“1. The Trustees shall hold all property which shall come into their hands upon trust to deal with the same for the benefit of the Parish or their successors in such manner as the Council of the Parish or their successors (hereinafter called ‘the Council’ which expression shall mean the body entitled by the constitution of the Parish or their successors to act as their Council or manage their affairs) by a duly passed resolution shall direct…”
There is then a proviso which makes clear that the existence and exercise by the trustees of their power of sale is not to be lost by any resolution passed by the Council. “2. The Parish is a religious community and the benefit of the Parish or their successors shall mean the promotion of the religious life of the Parish or their successors and shall include the payment of money to any priest, deacon, catechist, teacher, choirmaster, verger, churchwarden caretaker or other parish official for the promotion of the Orthodox Faith within the Parish or their successors and the purchase of real or personal property to be used and enjoyed by any such person or by the Parishioners or any section thereof for the promotion of the said Faith as aforesaid and the repair and maintenance of any property so purchased … 3. If in the opinion of the Council it shall hereafter become impossible to use or expend any part or the whole of the trust property for the benefit of the Parish or their successors and the Council shall pass a resolution to apply such part or the whole of the trust property for some other purpose being the furtherance or promotion of the Orthodox Faith such resolution shall by its terms declare that it is a resolution to liquidate the trust as to such part or whole of the trust property…” The clause then goes on to require a confirming resolution of the Council, to be passed not less than six months later, before the liquidating resolution can take effect. “4. After the said the Reverend Father Vladimir Theokritoff shall have ceased to be the Parish Priest of the Parish and also on all subsequent occasions upon which any doubt shall or may arise relating to the continuity of the life of the Parish and the identity or the body community or congregation which shall be entitled to the benefit of this deed, the Council of the Parish as constituted immediately before such cessation or other occasion as aforesaid shall be entitled to pass a resolution declaring what body community or congregation shall be deemed for the purpose of this deed to be the successors of the Parish and the expression ‘their successors’ in this deed shall be construed accordingly Provided that the body community or congregation so declared to be the successors as aforesaid shall be a body community or congregation whose main purpose as such is the furtherance or promotion of the Orthodox Faith.”[40]Clause 5, the only other provision in the deed, is concerned with the appointment of new trustees and I do not need to set it out.[41]The Diocesan trust deed is dated 22 April 1979. It closely follows the wording of the Parish trust deed. It too was made by three persons who are referred to in the deed as “the Trustees”. As with the Parish trust deed it contains two recitals which I should set out:
“Whereas certain persons are or may hereafter be desirous of transferring property by deed or will or otherwise for the benefit of the Russian Orthodox Diocese of Sourozh having at its head at the date hereof The Very Reverend Metropolitan Anthony (Bloom) (hereinafter called ‘the Diocese’) or their successors which expression shall mean the Diocese Parish Community or Congregation which shall be deemed to be the successors of the Diocese in accordance with the terms of this Deed And Whereas at a General Meeting of the Assembly of the Diocese held on the Twenty fifth day of November One thousand nine hundred and seventy eight the trustees were duly appointed and authorised to execute this Deed”
[42]The operative part of the Diocesan trust deed then sets out provisions in similar terms to those of the Parish trust deed:
“1. The trustees shall hold all property which shall come into their hands upon trust to deal with the same for the benefit of the Diocese or their successors in such manner as the Assembly of the Diocese or their successors (hereinafter called ‘the assembly’ which expression shall mean the body entitled by the Statutes of the Diocese or their successors to act as their Assembly or manage their affairs) by a duly passed resolution shall direct…”
There is then the same proviso as follows the corresponding provision in the Parish trust deed although, by mistake, for I think that it is a mistake, the proviso refers to “Council” - the expression is appropriate only to the Parish trust deed - rather than to the Assembly. “2. The Diocese is a religious community whose proceedings are regulated by Orthodox Canon Law and by whatever Diocesan Statutes it shall hereafter adopt in accordance with Orthodox Canon Law; until any such Statute [sic] shall be duly adopted the proceedings of the Diocese shall be regulated by the principles of the Common Law of England and Wales The benefit of the Diocese or its successors shall mean the promotion of the religious life of the Diocese or its successors and shall include the payment of money to any bishop priest deacon catechist teacher choirmaster or other diocesan official for the promotion of Orthodox Christian Faith Worship and Pastoral care within the Diocese or its successors for the time being; the purchase or taking on lease of real or personal property to be used and enjoyed by any such person or by the members of any parish included in the Diocese or any group of such members for the promotion of the said Faith Worship and Pastoral care and the repair and maintenance of any property so purchased or taken on lease… 3. If in the opinion of the Assembly it shall hereafter become impossible to use or expend any part of [sic] the whole of the trust property for the benefit of the Diocese or its successors and the Assembly shall pass a resolution to apply such part or the whole of the trust property for some other purpose being the furtherance or promotion of the Orthodox Faith such resolution shall by its terms declare that it is a resolution to liquidate the trust as to such part or the whole of the trust property and the trustees shall thereupon carry out the terms of the liquidating resolution” Unlike the Parish trust deed there is no need for a confirming resolution. “4. After the said The Very Reverend Anthony (Bloom) shall have ceased to be the Diocesan Bishop of the Diocese and also on all subsequent occasions upon which any doubt shall or may arise relating to the continuity of the life of the Diocese and the identify of the body community or congregation which shall be entitled to the benefit of the Deed the Diocesan Assembly as constituted immediately before such cessation or other occasion as aforesaid shall be entitled to pass a resolution declaring which body community or congregation shall be deemed for the purpose of this Deed to be the successor of the Diocese and the expression ‘their successors’ in this Deed shall be construed accordingly provided that the body diocese community or congregation so declared to be the successors as aforesaid shall be a body diocese community or congregation whose main purpose as such is the furtherance or promotion of the Orthodox Faith”[43]There is then a power to appoint new trustees, in the same terms mutatis mutandis as in the Parish trust deed and there are also administrative provisions, not to be found in the Parish trust deed, concerned with powers for the trustees to raise money, make investments and carry out any business or commercial activity.[44]It is to be noted that the Parish trust deed refers to the existence of a Council and to resolutions of that body, and also to a resolution passed at a general meeting of the Parish held in December 1943 at which the Parish trustees were appointed and authorised to execute the Parish trust deed. These references appear to assume a body of rules governing the Parish at that time although there was no evidence before me to indicate what those rules - or constitution - might have stated. Similarly in the case of the Diocesan trust deed: it refers to Diocesan Statutes yet to be adopted and to the Assembly of the Diocese and, in the second recital, to a general meeting of the Assembly.[45]At a later date Diocesan Statutes were adopted. In the passage from the Introduction to the 1988 edition of those Statutes set out earlier, there is reference to the first meeting of the Assembly, in February 1977 (which was before the Assembly meeting mentioned in the second recital to the Diocesan trust deed), at which the resolution was passed to execute that deed. The edition of the Diocesan Statutes in evidence before me comprised the Statutes as revised in June 2001. It seems fairly plain therefore that, following their adoption, the Statutes as they existed from time to time governed election to and proceedings of the Assembly and also, as will appear, elections to and proceedings of the Parish Council. It is to those Statutes, in their June 2001 form, that I now turn. I need only refer in outline to their material terms.[46]The Statutes are divided up into a series of “Articles”. Article 1, headed “The Diocese”, explains that the Diocese of Sourozh is a Diocese of the Patriarchate of Moscow and that its territorial limits are determined by the boundaries of Great Britain and Ireland (ie the United Kingdom and Republic of Ireland). It adds that its “doctrine, discipline and worship …are those of the One, Holy Catholic and Apostolic Church, rooted in the Holy Tradition and taught by the Holy Scriptures, the Ecumenical and Provincial Councils and the Holy Fathers”. It states that members of the Diocese are “those Orthodox Christians who live in Great Britain and Ireland under the authority of its Bishop, receiving communion from his clergy and abiding by the provisions of these statutes” and that all references to “the Holy Synod” are to the Holy Synod of the Patriarchate of Moscow.[47]Article II, headed “The Diocesan Bishop”, defines that person as “endowed with the full authority given to him by Tradition as a successor of the Apostles”, and as “the head of the local Church whose life he guides” and as representing the Diocese in the episcopate of the Orthodox Church. It then goes on to describe his various functions and that in accordance with church tradition he assumes his office for life. The article nevertheless envisages that a vacancy may occur if the bishop should resign, retire or be retired or is “transferred by the Holy Synod”. Other possibilities are set out. The Article describes the procedure for selecting his successor, the gist of which is that the Assembly is empowered to elect a candidate for appointment whose name is then submitted to the Holy Synod for approval, but makes it clear that if the Holy Synod should not approve the candidate so selected the same procedure must be followed to find an alternative.[48]Article III, headed “The Presbytery”, defines that expression as “the body which brings together all the presbyters” - that is all those who fulfil the role of priest - “serving in the Diocese to assist the Bishop in fulfilling his role as pastor of the Diocese” and for other purposes. Article IV is concerned with the Diocesan Assembly. This is defined as “the body in which the Bishop, clergy and laity of the Diocese take part in the direction of its life”. Its functions are set out, including taking decisions on matters of policy affecting the Diocese as a whole and how its membership is made up and selected. It also sets out how its meetings are convened, and how frequently, and how those meetings are to be conducted. Article V provides for a Diocesan Council which is described as “an executive body whose purpose is to facilitate the working of the Assembly and to implement its decisions”. Detailed provisions are then set out which deal with that body.[49]Article VI is headed “Local Eucharistic Communities”. These are described as being of three kinds, namely parishes, local congregations and monastic communities. Parishes are referred to as “those established communities which have a formal structure” as set out later in the Article. It provides that the Parish or local congregation has at its head the Bishop. It defines a parish as a “Community, having at its head a presbyter, the parish priest, whose members have accepted responsibility for the maintenance and development of Church life in a particular place or area, and who have undertaken to organise themselves under elected parish officers and with a parish council in accordance with these Statutes”. It provides for the establishment of a parish or local congregation by any group of members of the Diocese asking to be recognised as such by the Bishop and for its dissolution if the Bishop “feels that a parish or a local congregation has ceased or should cease to function as such” in which event, after consultation with the Presbytery and the Assembly, he dissolves it. The Article provides for parish meetings, parish officers and “the parish council”. That body is defined as “the executive body of the parish meeting, presenting to it proposals for the furtherance of parish life and implementing its decisions”. There is also provision for parish bye-laws and it concludes with a statement that “property purchased in the name of the parish shall, in the event of a dispute in the parish, remain with the Diocese or with that section of the parish that adheres to the Diocese”.[50]Article VII is concerned with monastic communities and Article VIII with the diocesan Electoral Roll. Qualification for the Roll is “any Orthodox Christian, sixteen years of age and above, who has been resident in the area covered by the Diocese for a period of six months, has received Communion in the Diocese within the previous year and intends to remain a member of the Diocese”. In that event, the person in question may obtain inclusion on the Roll by a request that his or her name be added to the electoral list of a particular local eucharistic community. Other Articles are concerned with Church Courts and what is referred to as “canonical procedure” and for Assembly bye-laws and amendments to the Statutes. They provide for any amendments to be submitted to the Holy Synod for final approval.[51]In the Introduction to the 1998 edition to the Statutes, after referring to the spirit in which they were drawn up, namely “the truly ground-breaking work done by the Moscow Council of 1917-18”, it is stated that in the course of working on them “it became clear that certain aspects of the British legal tradition would need to be incorporated among their provisions”. The Introduction then goes on to refer to various requirements to be met if charitable status was to be enjoyed and explained that “while our Statutes are based on the ancient canonical tradition of the Church, the centuries-long missionary and diaspora experience of the Patriarchate of Moscow and more recent attempts to develop statutes within this tradition”, in various matters “the amendments reflect the situation of the country in which we now live”. There is also reference to a need “to take into account any changes introduced into the Statutes of the Moscow Patriarchate”.[52]The Diocesan trust deed itself refers to the need for the Diocesan Statutes to be adopted “in accordance with Orthodox Canon Law”. The evidence before me was that, although aware of the existence of these Statutes, the Patriarchate in Moscow never formally approved them, although, equally, it had not disapproved them. The Patriarchate was content, it would seem, for the Diocese of Sourozh to operate in accordance with those Statutes and also, therefore, for its constituent parishes to do so likewise.

The events which have led to the present dispute

[53]In the section above headed “Russian Orthodoxy in the British Isles” I referred to the long ministry of Metropolitan Anthony and his reformist approach to matters of worship and governance within the Diocese of Sourozh. I mentioned how this came under challenge with the influx of Russians into this country following the collapse of the Soviet Union in 1991. This is taken up and developed by Bishop Basil in his description of what it was that led to his decision to move from the jurisdiction of the Moscow Patriarchate to that of the Ecumenical Patriarchate: “10. The Diocese of Sourozh as it developed during the twentieth century was, in a sense, an anomaly in the Patriarchate of Moscow. Its spiritual ethos was very much that of the ‘Paris’ jurisdiction of Russian tradition under Constantinople, which also sought to put into practice the provisions of the Moscow Council of 1917-18… It shared the same independence from the influence of Moscow and was also moving consciously towards a ‘local’ Church with no particular ethnic identity. In 2000 Metropolitan Anthony said: “For example, here [in London] a whole group of people (not very numerous) at the moment accuses me of not being loyal to ‘Russian Orthodoxy’, of not building a Russian Church ...But from the very start I always said that we were building the Church as close as possible to the original ancient Church, when people who had nothing at all in common were united onlyby Christ and their faith. Slaves and lords,people ·of all languages, stood next to each other. This was my goal here: to bring together all sorts of people, who could say that they had one thing in common, the Lord.”…11. For very personal reasons, however, Metropolitan Anthony as founder of the Diocese maintained his early allegiance to the Moscow Patriarchate. The fact that there was almost no communication between the Diocese in Britain and the Church in Russia until 1991, except through politically controlled visits in both directions,made this fairly easy to do.12. The Diocese gradually grew throughout the United Kingdom, deriving its spiritual tradition from pre-Revolutionary Russia (as did the ‘Paris’ jurisdiction). By the time of the formal constitution of the Diocese as a registered charity in 1979, it had put down its roots in this country. Apart from the Cathedral Parish, almost all the Parishes celebrated their services in English, many of them according to the Western calendar…13. With the collapseof communism, however, a huge economic emigration from Russia began and continues to this day. The effect of this on the Diocese of Sourozh was foreseen by Metropolitan Anthony himself. In a private interview with myself during those years Patriarch Alexis of Moscow told me that, when he warned Metropolitan Anthony, after the collapse of communism, that we had to expect huge numbers of Russian-speakers to emigrate to Britain, Metropolitan Anthony replied at once, “This will destroy everything I have tried to do.”14. Because the first wave of Russian émigrés who were the spiritual ancestors of the Diocese of Sourozh were unable to return home or even communicate with their homeland, the only way forward for them was to live their spiritual tradition in this country. By the late 1990s, however, the presence of tens of thousands of new Russian immigrants who could communicate easily with their homeland proved to have huge implications. Their previous Church experience was quite different from those Russians who had lived their Orthodoxy freely in the West for more than half a century. We can see some parallels in the situation faced by the Roman Catholic Church as the result of the arrival of large numbers of Polish and other economic migrants during the past few years.15. One way of understanding the difference in pastoral care needed by the two groups - those who had learned to live their Orthodoxy in Britain and the new Russians - is to consider the difference between ‘church-building’ and ‘chaplaincy’. Chaplaincy deals with people whose roots are elsewhere: university students, the army, the merchant marine, prison populations, detention centres, etc. Church-building takes place among people who are rooted in their local situation. Thosewho came from Russia, for the most part, sought in the Church a ‘home away from home’, in other words, a chaplaincy. They saw that whatwas done in London was not what they were used to in Russia, and felt it should be changed to suit their own expectations.16. Whenever Metropolitan Anthony spoke about the future it was in terms of an Orthodoxy rooted in Britain.It was this that drew converts to his Parishes and it was thisthat encouraged so many people to contribute to the purchase of the Cathedral in Ennismore Gardens … These people would not have contributed to a ‘chaplaincy’ for Russian immigrants. Nothing was further from their minds.” “For example, here [in London] a whole group of people (not very numerous) at the moment accuses me of not being loyal to ‘Russian Orthodoxy’, of not building a Russian Church ...But from the very start I always said that we were building the Church as close as possible to the original ancient Church, when people who had nothing at all in common were united onlyby Christ and their faith. Slaves and lords,people ·of all languages, stood next to each other. This was my goal here: to bring together all sorts of people, who could say that they had one thing in common, the Lord.”…[54]Irina von Schlippe, one of those who followed Bishop Basil when he transferred to the jurisdiction of the Ecumenical Patriarchate, had a similar view of the material events:
“11. The general character changed with the influx of newcomers from Russia, mostly recent converts, who were used each to their own local church practices, but had been allowed to practise their religion for only a relatively short period of time. My frequent visits to Russia in my work with St Gregory’s as well as to churches in Western Europe attended by members of our family have given me a chance to observe contemporary church life in many different settings. 12. The newcomers treated the church as a national club. This often happens in the initial stages of immigration, but these newcomers to our established community were uncharacteristically free with criticisms of their hosts, a feature which I had never met before in my lifetime experience in Orthodox churches situated on three continents. 13. They were typically entirely subservient to some of the clergy and very rude to others. 14. Very distressingly, they would refuse to obey instructions, receive guidance and sometimes even accept information from women, even those in official positions in our community (e.g. church warden, chair of Diocesan Assembly). In our community, we are used to the laity, particularly women, taking a prominent part in our church life (as distinct from our Eucharistic worship at the altar) and found the discriminatory attitudes of the newcomers strange and completely unacceptable. 15. Each time I returned home from my work in Russia, I noted that the feeling of animosity and restlessness in the Cathedral had increased. This was most painful when the newcomers began to circulate among the worshippers during services, disrupting even the most solemn moments (e.g. the Lord’s Prayer or the blessing of the Eucharist) by asking people to sign petitions. It became more and more difficult to worship in the calm and reverent manner to which we had become accustomed over 40 years and more. 16. A very important change in practice was suddenly imposed, which made life very difficult indeed. We were told that we could no longer ask for prayers at the altar for non-Orthodox people … All my life I have been sending prosforas before the Liturgy with the names of my family, friends and benefactors, to be offered in prayer by the priest. Suddenly the practice of the Moscow Patriarchate of restricting prayers to members of the Orthodox faith meant that our community was completely disrupted: we all have family members who are not Orthodox. I could no longer ask for prayers for my late father or any of his family - they were Catholics - or for my Anglican son-in-law and his relatives, let alone the many dear British colleagues in our charity. 17. I and other Church members felt that some of our closest friends were now treated as inferior and not deserving of Church prayers because some authority had decided this from on high. Prayers for the living and the dead at the altar, bringing them into the assembled community in prayer, are exceptionally important for the Orthodox. Its loss is upsetting and unacceptable 18. The many pinpricks of a mundane nature (e.g. wearing a headscarf, the number of prostrations required and so on) were in themselves minor, but their cumulative effect was so negative that we felt we could no longer worship freely in our own Church, after more than 40 years (in my case) of regular attendance and participation. 19. I also became more and more aware of the changes In the way the Cathedral operated. 20. I cannot remember a time when all essential work of the Parish and Diocese had to be paid for. We always operated on a volunteer basis. It was an honour to clean the church and Parish centre (and I have to say that some of the cleaning was done by people who were socially highly placed), to do all the administration, to prepare and serve whatever food was offered, to sing, to copy music, to run the Sunday school and children’s camps - in short, to operate the whole system. In fact, we (each and all) financed most of the expenses, with the cleaners (for example) even paying for cleaning materials out of their own pockets. 21. In recent years, with numbers growing, the people doing the work were still the same old group, because the new Russian members wanted payment for it. From what I read in Mr Adrian Dean’s statement …,the Cathedral now has many paid staff and since May 2006 the monthly cost remuneration at the Cathedral has reached the previously unheard-of level of £19,000. Maybe the operation is better run now, but the community effort used to be a major unifying factor in the original Sourozh community, and its continuation now in the Vicariate is most valuable.”
[55]Pamela Grealy, another of those who followed Bishop Basil, had a similar story to tell:
“5. After Perestroika, when Russians were able to travel more freely, large numbers came to London and to the Cathedral. Bishop Anthony asked Moscow to send a Russian Bishop to help serve the increasing numbers of people. Archbishop Anatoly was Assistant Bishop to Metropolitan Anthony and consequently became Bishop Basil’s Assistant Bishop. 6. By 2003, Bishop Anthony was seriously ill and there were concerns as to who might succeed him. He came under pressure from a small minority to propose a Russian Bishop as his successor and to align the church services more closely to those of churches and monasteries in Russia. 7. At Parish meetings a few people strongly and persistently criticised the running of the Cathedral and its services which did not conform to practice in Russia. In an attempt to find solutions Bishop Anthony held extra parish meetings. He met with individuals and groups of people in an attempt to understand and support them and give accurate information to the parish generally. 8. However, letters and petitions were organised and sent to Moscow. Bishop Anthony came under a great deal of pressure from a few people, witnessed in disbelief by many who knew that the Bishop was terminally ill and very weak. 9. Evidence of a campaign which began during Bishop Anthony’s leadership and gathered momentum after his retirement can be found in the Minutes of the Meeting of the Diocesan Assembly which was held on 1 February 2003. The meeting took place at the Cathedral, Ennismore Gardens, in order to consider the implication of Bishop Anthony’s retirement and his desire that the Holy Synod should appoint Bishop Basil of Sergievo as the Ruling Bishop of the Diocese of Sourozh… 10. At the meeting Metropolitan Anthony said that for the first time in more than 50 years he came with pain in his heart. The crisis in the Diocese was at breaking point and must end. We understand each other. He said that he thought we must rebuild the Diocese in unanimity, unity and mutual trust, which was currently lacking. He was aware of a small group working to reform the Diocese and achieve their own aims, but this would only lead to further tension and destruction. The Diocese was now in a period of crisis. There was a small active group that wanted to forget the vocation of universality and concentrate on all things Russian, but we should return to the early evangelical ways of the Apostles who went outside the Jewish community. We must not be traitors to the way the Diocese was born, but should build Christ’s body while sharing the inheritance of the martyred church in Russia. 11. …it is significant that Bishop Basil was not accepted by Moscow as the ruling Bishop but appointed as Administrator, after which the campaigners focussed on him and the agitation of a few people grew in momentum. 12. Disquiet arose from the actions of this small group, who gave others the choice of taking part or being made to feel disloyal to their Mother Church and Russia. I, and many others including members of the Parish Council and parishioners, attended parish meetings convened by Bishop Anthony and later by Bishop Basil to discuss problems raised by this group who called themselves the Laity Initiative Group. We felt the answer lay in an increased effort to work towards unity. The problem baffled those who struggled with these displays of anger because as a parish we had been united across nationalities by intermarriage and close friendships. 13. The Parish Council also came under attack for being out of touch, even though the Russian community was represented on it and we had two Russian Church wardens.”
[56]There had been other problems: Metropolitan Anthony had asked Moscow to send another bishop to assist him. In February 2002 Bishop Hilarion arrived. Initially, at least, Metropolitan Anthony had thought of Bishop Hilarion as his likely successor. But there developed a clash of approach, and of personality, between the Metropolitan and the new arrival. Complaints and concerns about Bishop Hilarion’s style and the possibility that he might be named to succeed Metropolitan Anthony surfaced within the Orthodox community. Eventually, Metropolitan Anthony asked Moscow to recall Bishop Hilarion. Moscow duly obliged (in June 2002) by transferring him to Brussels. In an article by Bishop Hilarion, and another by Metropolitan Anthony, which appeared in August 2002 in the quarterly magazine of the Diocese, Bishop Hilarion and Metropolitan Anthony set down in writing their accounts of the relevant events. Metropolitan Anthony’s article concluded with a request to Bishop Hilarion, who by then had left the Diocese, to “have pity on the Russian Church and order your supporters to stop their sabotaging activities”. On the face of it, matters were not as they should be in the Diocese.[57]Another, similar problem occurred when in 2004 Bishop Basil, by then in charge of the Diocese, albeit as administrator only, requested assistance from Moscow to help with the needs of the growing numbers of Russian migrants in London. In May of that year Father Andrei Teterin was sent to serve in the Cathedral. Initially he was well received. After a while, however, he began to criticise the form of services conducted within the Diocese claiming that they deviated from Russian Orthodox traditions. As a result, he came to be seen by some, and particular by Bishop Basil, as a disruptive influence and, not least, as disrespectful to Bishop Basil himself. Encouraged by a group of supporters, Father Andrei spoke out against Bishop Basil and the manner of worship in the Cathedral. In December 2005 Bishop Basil suspended him from his duties within the Diocese. A letter of complaint about Bishop Basil’s treatment of him was sent to Moscow. In February 2006, Father Andrei was recalled to Moscow. There was unhappiness among some within the Diocese over the way that this affair had been handled. In particular - and in reaction to these criticisms - six Russian-speaking members of the Parish Council who had been critical of his conduct were removed by Bishop Basil from their membership of the Council. The legality of this was questioned. It left the Parish Council without any representation from the newly arrived Russian immigrant community. Bishop Basil declined to take up a request from the Moscow Patriarchate to reinstate any of the six whom he had removed.[58]It was in this atmosphere of growing unhappiness, at any rate on the part of some and Bishop Basil in particular, that Bishop Basil took the momentous decision to move from the jurisdiction of the Moscow Patriarchate to that of the Ecumenical Patriarchate. The material events were as follows.[59]On 24 April 2006 Bishop Basil wrote to the Patriarch of Moscow asking to be “released from the Patriarchate of Moscow”. He set out his reasons. They included the changes in the character of the Russian Orthodox presence in Britain caused by the influx of 250,000 Russian-speakers from the former Soviet Union, the problems that this had created and a belief that “there are elements in the Moscow Patriarchate that support those who have been seeking to undermine my authority in the Diocese and are interfering in my conduct of its affairs”. He described the situation as “intolerable” and as “contrary to the principle of Orthodox ecclesiology which prohibits the interference of one bishop in the diocese of another”. He stated that the events of the previous few years, both before and after Metropolitan Anthony’s death, had convinced him that the Diocese should leave the Moscow Patriarchate and become a diocese of the Ecumenical Patriarchate with a status similar to that of the Archdiocese of Russian Churches based in Paris. He pointed out that the Archdiocese and the Moscow Patriarchate were in communion with one another and said that it was only reasonable to acknowledge the changes that had taken place in the Russian Orthodox community in Britain and accept that a restructuring of the Russian Orthodox presence in Britain was necessary. He expressed the view that the new arrivals from Russia “should continue to be the focus of attention of the pastoral work of the [Moscow] Patriarchate, while the Diocese of the Sourozh, in the form in which it has developed over the years, should be allowed to align itself with the ecclesial entity that most resembles it, the Archdiocese of Russian Parishes that is based in Paris and forms part of the Ecumenical Patriarchate”. In that event, he stated, “the Diocese of Sourozh, now given a new name, would then continue to offer all the help it can to the new arrivals, while the Patriarchate would intensify its efforts to provide a Church home for the same people”.[60]A week later, on 1 May 2006, Bishop Basil sent a letter addressed to the clergy of the Diocese and members of the Diocesan Assembly to inform them of his decision and of his reasons for it. He pointed to what he described as the “conflict” between “those who wish to see the cathedral and the Diocese brought more directly into line with the Mother Church under the control of the Department of External Relations [of the Moscow Patriarchate] than was ever the case while Metropolitan Anthony was alive” and “those who wished to continue along the path set out by the founder of the Diocese, who was its head for more than forty years”. He explained that they were faced with two different tasks which should be kept separate:
“On the one hand there is a great need for pastoral care for the newly arrived Russians, and on the other, the development of the Diocese of Sourozh along the lines envisaged by Metropolitan Anthony. We have a thriving diocese with some thirty communities scattered throughout Britain …”
He stated that:
“We have to accept that the two groups have different interests and needs. Those who have embraced the vision of Metropolitan Anthony should be given the opportunity to carry this vision forward, while those who wish to create parishes that are outposts of the Patriarchate should be free to do so.”
He went on to state that he was seeking acceptance within the Ecumenical Patriarchate and that if his proposal was accepted by the two patriarchates “the clergy of the Diocese would normally be expected to follow their bishop”. (I pause only to observe that this view - the centrality of the bishop’s role to the life of the diocese - is echoed in a short witness statement made by Archbishop Gregorios of Thyateira and Great Britain under the Ecumenical Patriarchate and, as such, head of the Greek Orthodox Church in this country.) Bishop Basil then added:
“I do not wish to force such a move on anyone, however, and will grant canonical relief to any of the clergy who wish to remain in the Moscow Patriarchate - or go elsewhere. The laity are, of course, free to position themselves where they wish. The nature of our situation is such that I have not been able to take the clergy and the Diocesan Assembly into my confidence and develop a common position. In the end, the decision to ask for release has had to be mine and mine alone. That is the nature of the bishop’s role in the Orthodox Church, but I do hope that the large majority of you will understand the reasons behind the position I have adopted and will feel able to follow me…”
[61]This accorded with the understanding of the claimant, Mr Dean, that Bishop Basil had not indeed discussed with others, other than with two senior priests, his intentions and that there had been little in Bishop Basil’s public conduct to suggest that he was planning to sever his links with the Moscow Patriarchate.[62]The following day, 2 May 2006, Bishop Basil wrote to Archbishop Bartholomew, the Ecumenical Patriarch, based in Istanbul, to ask him to “accept me with my clergy into your jurisdiction as a separate diocese alongside the Archdiocese of Western Europe”. He asked “to be received …with those clergy and parishes that wish to follow me”.[63]Bishop Basil wrote this letter without awaiting his “release” from the Moscow Patriarchate. There is an issue, which I do not need to decide, whether it was proper for him to have sought acceptance into the Ecumenical Patriarchate without first obtaining his release from the Moscow Patriarchate.[64]By a letter dated 5 May 2006 the Patriarch of Moscow wrote to Bishop Basil expressing surprise at the contents of his letter but expressing understanding for and sympathy with the difficulties “arising from the new realities created in Great Britain as a result of the arrival over a short period of a mass of Russian-speaking faithful”. The Patriarch stated that the “division of the Diocese on national and cultural lines, which you suggest, cannot in any way contribute to a resolution of contradictions or to a healing of the existing painful manifestations and the strengthening of Orthodoxy in the British Isles”. He expressed the view that what Bishop Basil was proposing was “a step backward” and risked “losing ecclesiological peace and stability in Universal Orthodoxy”. He said that he was ready to receive him in private meeting “to discuss the existing difficulties and to determine further joint action”. He did not, however, provide the release that Bishop Basil was seeking.[65]It appears that the Moscow Patriarch’s reply to Bishop Basil’s letter was written before the Patriarch had learned of the letter Bishop Basil had sent to the Ecumenical Patriarch requesting acceptance into the latter’s jurisdiction. It further appears that, having heard of that approach, the Moscow Patriarch was unwilling to meet Bishop Basil unless he retracted the letter which he had written to the Ecumenical Patriarch. Bishop Basil indicated that he was not willing to do so. This led to the issue of two decrees, both dated 9 May 2006, by the Moscow Patriarch. The first released Bishop Basil from his duty of administering the Diocese of Sourozh and retired him “without the right to transfer to another jurisdiction” until an analysis had been carried out of the situation in the Diocese by a Special Commission. The second decree appointed Archbishop Innokenty, Archbishop of Korsun, as temporary acting administrator of the Diocese of Sourozh. A meeting in early June 2006 of the Holy Synod of the Moscow Patriarchate affirmed the decrees.[66]By now, thought was being given by the Parish Council to whether circumstances had arisen to trigger clause 4 of the Parish trust deed. The matter was considered at a meeting of the Parish Council on 8 May 2006. The minutes of the meeting, which Bishop Basil attended, indicate that advice was given that “the time had not yet come when the Council should make such a decision”.[67]On 13 May, four days after the pronouncement of the two decrees, Bishop Basil wrote to the clergy of the Diocese of Sourozh indicating that he would be retired from his position as administrator of the Diocese on 14 May. It followed an earlier letter (of 11 May) to the same effect. In his letter Bishop Basil stated that:
“After I am removed you will obviously still be priests and deacons of the Diocese, but under the guidance of its new head. I have already sent you letters of release, which you should keep in case you wish to use them at some future date to join the Archdiocese of Russian Parishes in Western Europe …”
That is a reference to a “To whom it may concern” letter, apparently dated 1 February 2006, in which Bishop Basil released the priest named in it from his duties in the Diocese of Sourozh (I assume there were similar letters to other priests and deacons) and gave him authority, wherever he might go, to exercise his ministry without hindrance.[68]Bishop Basil’s removal as administrator of the Diocese was announced in the Cathedral the following day, Sunday 14 May. Two days later, on 16 May, Bishop Basil wrote what he described as an “open” letter to members of the Diocese explaining his reasons for seeking release from the Moscow Patriarchate and the timing of his decision. In the letter he explained that it had become clear to him that the Moscow Patriarchate wanted to make the Diocese of Sourozh “conform to their idea of a ‘normal’ diocese outside Russia, that is, one which is under the direct control of the Department of External Church Relations … whose primary concern is for the new arrivals from the former Soviet Union”. The letter dealt at some length with the events, which I have briefly summarised, that led up to his decision to move from the Moscow Patriarchate and to seek acceptance by the Ecumenical Patriarchate. He referred to the fact (and the duration) of his status as administrator of the Diocese (rather than as ruling bishop), apparent lack of support from Archbishop Anatoly, the difficulty experienced in working alongside Archbishop Anatoly who, although not the administrator of the Diocese, was senior to him in age and rank, the problems he had encountered with Father Andrei and the pressure coming from what he described as “the opposition” which (he felt) was wearing him down. He concluded his letter by stating that he regarded his actions “as the only way to make a positive move forward in the interests of the Diocese as a whole…”.[69]On 8 June 2006 the Holy Synod of the Patriarchate of Constantinople in Istanbul accepted Bishop Basil within the jurisdiction of the Ecumenical Patriarchate. There is an issue which, again, I do not need to determine over the validity of this step in view of the fact that the Moscow Patriarchate had not by then released Bishop Basil from its jurisdiction; this was reflected in the action of the Holy Synod of the Moscow Patriarchate declaring on 12 June 2006 that the Ecumenical Patriarchate’s acceptance of Bishop Basil into its jurisdiction was canonically invalid.[70]The response of those who supported Bishop Basil’s move was to convene meetings of the Diocesan Assembly and of the Parish Council with a view to the exercise of the powers in clause 4 of the two trust deeds. Nothing came of these moves as, on 6 July, two days before the intended Assembly meeting, a notice of cancellation of the meeting was sent. This was followed on 11 July by a similar notice cancelling the Parish Council meeting which was due to take place on 15 July. In the event therefore neither meeting took place, and no attempt to exercise the powers in clause 4 was to be made until the following year.[71]On 19 July 2006 the Department of External Church Relations of the Moscow Patriarchate reported on the outcome of an investigation into the Diocese of Sourozh. This had followed one of the 9 May decrees of the Moscow Patriarch which had called for an inquiry. The report of the Commission appointed to conduct the inquiry was critical of Bishop Basil while acknowledging that the facts presented to it might be incomplete as a result of the unwillingness of Bishop Basil and what the report described as “his close entourage” to co-operate. It referred to Bishop Basil’s “poor execution of his administrative duties in running the Diocese and his lack of real pastoral contact with the Russian-speaking flock”. It noted that there was “no evidence that anyone wished to make ‘the first concern’ of the Sourozh Diocese the care for new arrivals from the former Soviet Union, to the detriment of continuing care for English people and representatives of the old emigration”. It went on to state that for some years after Metropolitan Anthony’s death church life had kept its original features in full in accordance with his vision of the future of the Diocese and that there was no “evidence that the Moscow Patriarchate put in doubt the traditional diocesan mission to English speakers”. It described as “his personal problem” Bishop Basil’s difficulties in running the Diocese “which should not have been dealt with by changing jurisdictions” and considered that the personal nature of Bishop Basil’s decision to go over to another jurisdiction did not “correspond to the spirit and the letter of the statutes of the Diocese of Sourozh, to which Bishop Basil professes loyalty”. It also stated that:
“Members of the Commission emphasized that the accusation[s] of nationalism among Russian-speaking supporters of the Russian Orthodox Church were refuted by numerous testimonies of witnesses. English people questioned by the Commission had not noticed any prejudiced attitudes towards them on the part of other members of the Parish and Diocese. There is no evidence of any significant national conflict in the Parish or in the Diocese.”
These findings are controversial in the understanding of events of Bishop Basil and those who supported his move to the Ecumenical Patriarchate. Equally, it is important to point out that there is powerful evidence to be found in the eloquent and measured witness statements of Mr Dean and Brian Bridge to support the Commission’s findings.[72]These obvious difficulties notwithstanding, the Cathedral celebrated its 50th anniversary in mid-October 2006 culminating in a well attended service in the Cathedral, conducted by Metropolitan Kyrill of Smolensk and Kaliningrad and members of the Diocese attended by senior bishops from the Serbian, Roman Catholic, Anglican and other Churches, together with many others.[73]In November 2006 Bishop Elisey was appointed Assistant Bishop in the Diocese and, later, Dean of the Cathedral. He subsequently succeeded Archbishop Innokenty as acting Administrator of the Diocese before being appointed Bishop of Sourozh in December 2007.[74]On 27 March 2007, the Moscow Patriarchate released Bishop Basil from its jurisdiction. Unhappily, however, this was not the end of the matter. Some weeks later on 18 May 2007 (and as I have already mentioned), the Diocesan trustees gave notice to all persons who were members of the Assembly as constituted on 2 May 2006 of an Assembly meeting to be held on 23 June 2007. This was followed by a similar notice, given on 15 June, by the Parish trustees to all persons who were members of the Parish Council as constituted on 13 May 2006 of a Parish Council meeting to be held on 19 July 2007. The two meetings duly took place, that of the Assembly on 23 June and that of the Parish Council on 19 July, at which resolutions were passed purporting to exercise the powers conferred by clause 4 of the relevant trust deed. They were in the terms set out in paragraphs 7 and 8 of this judgment.[75]These proceedings followed some months later, on 8 November 2007.

The extent of the migration

[76]Bishop Basil was accompanied on his migration from the jurisdiction of the Moscow Patriarchate to that of the Ecumenical Patriarchate by several priests. In his evidence he refers to 16 out of the 31 priests and deacons of the Diocese as having moved to the Ecumenical Patriarchate and that roughly half of the parishes and smaller communities have moved to the Episcopal Vicariate. He refers to what he describes as “major splits” in several of the remaining communities, including the London Parish. Precisely how many members of the Diocese and of the London Parish followed his migration and how many maintained their allegiance to the Moscow Patriarchate and remained members of the Diocese of Sourozh (or of the Parish) is not clear. Mr Dean states that Archbishop Anatoly remained as bishop in the Diocese together with ten priests (whom he named) and five deacons (whom he also named).[77]Membership of the Parish roll (strictly I think, according to the Diocesan Statutes, it is the Parish “list”) comprised 424 persons in August 2005 (according to Mrs Grealy) and 622 persons in September 2006, several months after Bishop Basil’s resignation (according to Mr Dean). Mr Dean’s evidence is that 99 persons had resigned their membership of the Parish after May 2006 and that at the 16 July 2006 Parish Council elections (where only Parish members may vote) 227 persons voted as compared with 187 at the July 2005 elections. Mr Grealy thought that the 227 persons who voted in July 2006 represented half only of the electorate and that this number would have been far larger “if the overwhelming number of people in the Parish had been in favour of the recent developments”. Her evidence was that 300 letters of support for the Vicariate (ie supporting the move to the Ecumenical Patriarchate) were received, of which 136 came from persons on the electoral roll of the Parish and 165 came from regular worshippers who were not on the roll.[78]Mr Dean states that, as at July 2008 - the date of his main witness statement, approximately 500 persons (comprising both members and non-members) constituted the average congregation in the Cathedral for the main Sunday liturgy and that, in addition to 1,000 established members of the Diocese, around a further 3,000 persons attended services at the Cathedral at least once or more often during the year. He also states that (as at July 2008) the clergy of the Diocese comprised two bishops, fifteen priests and seven deacons.[79]Without going into the matter in any detail, not least because it has not been necessary to do so for the purpose of the issues which I have had to decide, the evidence of Mr Dean indicates a vigorous programme of activities in the Parish (as a parish within the jurisdiction of the Patriarchate of Moscow) and of the Diocese of Sourozh since Bishop Basil’s departure. In a section of his evidence headed “continuation of the Parish and Diocese after May 2006” he states that the life and mission of the Parish and Diocese continued undiminished after the events which had culminated in Bishop Basil’s retirement from the Diocese in May 2006. He sets out in some detail the activities that took place in the twelve months following his departure. They are also summarised in the particulars of claim in the two actions. They include the well-attended 50th anniversary celebrations of the Cathedral in October 2006 to which I have already referred.[80]It is not in dispute that that in that sense the life of the Parish (as part of the Moscow Patriarchate) and of the Diocese of Sourozh has continued. Indeed, in their defence in the Parish action, the Parish trustees “accept that the fact of Bishop Basil’s subsequent transfer to the Ecumenical Patriarchate may in itself have had no material impact on the membership, composition or activities of the Parish or the Diocese as they existed prior to that date”. There is a similar acceptance on the part of the defendant trustees to the Diocese action in respect of the membership, composition and activities of the Diocese of Sourozh following Bishop Basil’s release from the Moscow Patriarchate in March 2007.

These proceedings

[81]The Part 8 claim form in each action was issued on 8 November 2007. As I have mentioned, the claimant in both, Adrian Dean, claims on behalf of himself and all other members of (in the one action) the London Parish and (in the other action) the Diocese. Mr Dean is Secretary of the London Parish and Treasurer of the Diocese. He has made a lengthy and impressive witness statement in support of the relief claimed which sets out, in some detail, the background to and material events leading up to the proceedings brought in his name. The defendants were, initially, the trustees of the Parish trust deed (in the one action) and of the Diocesan trust deed (in the other action) and, in both cases, Her Majesty’s Attorney-General. (I have some observations later about the role played in these proceedings by the Attorney-General.) The relief claimed was for declarations(a) that the Parish (or, as the case may be, the Diocese) had been at all material times and remained the sole “beneficiary” under the relevant trust deed and(b) that the disputed resolutions were of no effect, invalid or ultra vires. Further or other relief and costs were also claimed. The claim in each case was brought with the authority of the Charity Commission as appears from orders dated 17 October 2007 attached as an appendix to the particulars of claim to which it related. (These being charity proceedings, other than by the Attorney-General or in relation to an exempt charity, the authority of the Charity Commission was needed: see section 33 of the Charities Act 1993.)[82]On 7 April 2008 a defence was served by the trustee defendants to each claim. The key allegation in each is an assertion, echoing paragraph 4 of the relevant trust deed, that, according to their understanding or perception of events, doubt had arisen as to the continuity of the life of the Parish (or Diocese) or as to the identity of the body, community or congregation to which or for whose benefit the assets of the relevant trust deed were applicable and that (as it was put in the Diocese action) “it was their duty, acting in good faith and on legal advice, to call the meeting at which the [disputed] resolution was passed in order that the said doubts might be resolved”.[83]In each defence, however, it was stated that the trustee defendants were defending the claim only for the limited purpose of clarifying the issues, correcting errors of fact in the particulars of claim and ensuring that all relevant matters were before the court. The trustees were not themselves adopting any position on the underlying question over the validity and effect of the disputed resolution. In due course, evidence was filed on their behalf. This included evidence from Bishop Basil.[84]In the light of the neutral stance apparently adopted - at any rate according to the defences served - by the defendant trustees, Mr Dean applied to the court for the joinder, and, on 14 April 2008, Deputy Master Bartlett joined other defendants, the sixth to ninth defendants in the Parish action and the fifth defendant - Bishop Basil - in the Diocese action. In the Parish action he appointed the sixth to ninth defendants to represent themselves and all other members of the Orthodox Parish of the Dormition of the Mother of God (Ecumenical Patriarchate) and, in the case of the Diocese action, appointed Bishop Basil to represent himself and all other members of the Episcopal Vicariate of the Orthodox Parishes of Russian Tradition in Great Britain and Ireland. He permitted Mr Dean, as claimant in each action, to make amendments to the claim form and particulars of claim to include references, where appropriate, to the new defendants. He gave directions for the service of further evidence.[85]Further evidence was served on behalf of Mr Dean. The further evidence coming from the other side of the record was, in each case, on behalf of the defendant trustees. It was not on behalf of the newly joined representative defendants who, in the case of the Parish action, although served, failed even to acknowledge service. Bishop Basil, the representative defendant in the Diocese action, acknowledged service but indicated through solicitors that “the Bishop on behalf of himself and all other members of the Episcopal Vicariate… does not intend to defend the claim and does not intend to take any steps in the proceedings other than to acknowledge service”. That was scarcely helpful.[86]To all outward appearances, therefore, the representative defendants were taking no position on the underlying dispute. It was in this state, with the trustee defendants claiming to adopt a neutral stance but having served evidence for the assistance of the court which, however, challenged parts of Mr Dean’s evidence, and with the representative defendants taking no part at all, that the two actions came on for trial before me on 20 February 2009.[87]Seated in the public gallery in court on that occasion were several persons, most of whom, I understood, were members or supporters of the Episcopal Vicariate. They were concerned that no one was apparently present to put forward any argument to counter the case advanced on behalf of Mr Dean. Although a defendant and represented by counsel (Mr William Henderson), the Attorney-General had indicated, through Mr Henderson, that she supported the case to be argued on Mr Dean’s behalf. At the request of a spokesman for the supporters of the Episcopal Vicariate I adjourned the hearing to the following Monday, 23 February, to enable those opposed to the relief that Mr Dean was seeking to be properly represented. Given the failure of the existing representative defendants to play any active role in the proceedings I joined Mrs Nares as tenth defendant in the Parish action to represent herself and other members of the Orthodox Parish (Ecumenical Patriarchate) and as sixth defendant to the Diocese action to represent herself and the other members of the Episcopal Vicariate. I also made limited provision for her costs.[88]On the following Monday, 23 February, when the matter returned before me it appeared that there had been difficulties during the intervening weekend in finding representation for Mrs Nares. At her request I adjourned the two trials to 21 April to enable her to be properly represented and gave directions enabling her to adduce limited further evidence relevant to a particular issue which, at that stage, she proposed (on advice) to raise in defence of the claims. In the event that issue was not pursued. I also gave directions concerned with those parts of the evidence already filed on behalf of the trustee defendants on which Mrs Nares might wish to rely and also concerning the expert evidence of Professor Evans.[89]On 8 April, the two actions again came before me. On this occasion Mrs Nares applied for her costs, both incurred and to be incurred, to be borne at the expense of the two trust funds and for other costs-related relief. I dismissed the applications with costs. I also acceded to a separate application that the Parish action be discontinued against the ninth defendant, Mrs Hannah Torrance, one of the earlier representative defendants. (In January 2009, that action had been discontinued against another of the original representative defendants, Ms Mariam Rahim.)[90]Although I did not give permission for her to do so (it was not directed to the one issue on which I had given her permission to file further evidence) Mrs Nares adduced in evidence at the trial a second witness statement by Mrs Grealy and a third witness statement by Bishop Basil. The evidence was adduced in both actions. Rather than disregard that further evidence it seemed simpler to allow it to be relied upon subject to permitting Mr Dean, should the need arise, to answer it at some later stage. In the event, as I shall now explain, it has not been necessary for him to do so.[91]At the invitation of Mr Moverley-Smith QC who with Mr James Kitching has appeared for Mr Dean, when the matter came on for trial on 23 April, I agreed to hear argument on the question of the construction of clause 4 of the two trust deeds without him having to open his case on the other issues, not least the disputed issues of fact concerned with the events leading up to and following Bishop Basil’s decision to move his allegiance to the Episcopal Patriarchate and culminating in the calling of the meetings of the Parish Council and Diocesan Assembly at which the disputed resolutions were passed. This was on the basis that if I should be in his favour on the questions of construction there would be no need to go into that further evidence resulting in saving in time and costs.[92]This approach took Mr Picarda rather by surprise but I made clear to him that, in arguing the construction issue, he should take me to any passages in the evidence that he wanted to rely upon on the basis that, for the purposes of the argument on construction, I would accept that evidence. As his address to me had not finished by the time the court adjourned at the end of the first day of the trial, Mr Picarda had plenty of time to marshal whatever passages from the evidence he wanted me to consider. In the course of the following day’s hearing he referred me to large parts of the evidence.[93]In the event, as I shall next explain, I was in Mr Dean’s favour on the construction issues so that there has been no need to explore and come to conclusions on the disputed issues of fact - and there are many - and on certain ecclesiological points which I might otherwise have had to go into.

The disputed resolutions

[94]The issues which divide the parties on the construction and application of clause 4 are whether differences between worshipping members of the Parish and Diocese on matters of religious practice and outlook can amount to a “doubt” within the meaning of clause 4 and, if so, whether the differences, taken together with the other events summarised earlier and which culminated in Bishop Basil’s removal as administrator bishop of the Diocese in May 2006 and the decision by him and others to move to the jurisdiction of the Ecumenical Patriarchate, were such as to trigger an entitlement in the named bodies in the two trust deeds (the Parish Council and the Diocesan Assembly) to exercise the power to pass the resolution for which clause 4 of each of the deeds provides.[95]Mr Moverley-Smith submitted that the successor provisions in clause 4 were only triggered, relevantly to the present dispute, where there is doubt both in relation to the continuity of the life of the Parish (or, as the case may be, of the Diocese) and in relation to the identity of the body, community or congregation entitled to the benefit of the deed. He submitted that the “and” appearing between the references to “continuity of the life of the Parish” and “the identity of the body …” is used conjunctively to mean “and” (which, as he pointed out, is the word’s ordinary and natural meaning) and not disjunctively to mean “or”. He supported this by a textual examination of the use of “and” and “or” elsewhere in the clause. He submitted that the expression “continuity in the life of the Parish” (or Diocese) means continuity in the life of the Parish (or Diocese) as an institution. He submitted that the word “identity” in the expression “identity of the body, community or congregation” means the institutional identity of the body, community or congregation as distinct, for example, from its religious identity or characterisation. He submitted that, irrespective of whether the “and” was used conjunctively or disjunctively, there was, even on the evidence filed on behalf of the trustee defendants, Mrs Nares and Mrs Collingridge, no doubt as to the identity of the Parish (or Diocese) and no doubt as to the continuity of the life of either the Parish or Diocese at the time - May 2006 - critical to the validity of the disputed resolutions. He therefore submitted that the successor provisions had not, in the events that happened (as disclosed by the evidence filed), been triggered so that the disputed resolutions were of no effect even if, which he did not accept, the meetings at which they were passed had been validly convened.[96]Mr Picarda, on behalf of Mrs Nares and Mrs Collingridge, submitted that the language of clause 4 is wide and general and should not therefore be given a restricted interpretation. He submitted that the expression “life of the Parish” appearing in the clause means the religious life of the Parish (and likewise in the case of the Diocese). It refers, he said, not just to the activities which take place in the Parish, for example the holding of services, but also to the religious spirit - its “particular spirituality” as he put it - in which the Parish (or Diocese) lives its life, extending to mode of worship and liturgical practices and the way in which the various activities are carried out by parishioners, for example the provision of voluntary support. The continuity of the life of the parish (or of Diocese) refers therefore to the continuity of these practices. Likewise, he submitted, the expression “identity of the body community or congregation” means the religious identity or characterisation of the body community, community or congregation and not simply to its institutional identity. He submitted that the “doubt” needed to trigger the operation of clause 4 does not require a single event but may be incremental: a conglomeration over time of small occurrences may suffice. In contrast to Mr Moverley-Smith, he submitted that properly understood the “and” appearing between “continuity of the life of the Parish” and “the identity of the body …” is used disjunctively: it is sufficient to trigger the operation of the clause if doubt in relation to one only of the two limbs is present. He went on to submit that, if his construction of the clause was correct, there was an abundance of evidence to indicate that, by May 2006, events had occurred culminating in Bishop Basil’s move from the Moscow Patriarchate to the Ecumenical Patriarchate to show that a doubt had arisen (or might arise) as to the continuity of the religious life of the Parish and, for good measure, as to its religious identity in the sense of the congregation which could legitimately claim to be eligible under clause 4 but that if there were any question over that based upon a comparison of the evidence on which Mrs Nares and Mrs Collingridge relied and that of Mr Dean (and of the witnesses on which he relied), the issue could only properly be resolved by cross-examination.[97]In evaluating these submissions it is important to consider clause 4 in conjunction with the other clauses of the trust deed. I shall do so by reference to the Parish trust deed: subject only to those changes made necessary by the fact that the Diocesan trust deed is concerned with the Diocese, and not just a parish, the Diocesan trust deed follows almost word for word the provisions of the Parish trust deed and must, I think, have done so deliberately, intending that its meaning and effect should be the same as the Parish trust deed. Such other differences as exist between the two deeds, for example the omission from clause 4 of the Diocesan trust deed of the confirming resolution and the additional administrative provisions in clause 5 of the deed, are not material to a true understanding of the meaning and effect of clause 4 in the Diocesan trust deed.[98]Clause 1 establishes that the trust property is to be dealt with “for the benefit of the Parish or their successors”. The first recital, taken in conjunction with clause 1, explains and identifies “the Parish”. It means, by clause 1, “a religious community” and, by the first recital, “that Parish [and therefore that religious community] of Russian Orthodox Christians in the United Kingdom who at the date hereof [ie 20 July 1944] have as their Parish Priest the Reverend Father Vladimir Theokritoff …or their successors.” Clause 1 goes on to define the expression “successors”, namely “such Parish Community or Congregation as shall be deemed to be the successors of the Parish in accordance with the terms of this deed”, a reference to clause 4. The Parish is therefore a community or group of Russian Orthodox Christians. It is not to be equated with a defined geographical area (as with a civil parish, the smallest administrative area in the system of local government in this country, or with a parish in the Church of England). The only qualification is that the community is in the United Kingdom; subject to that requirement, the Parish is not expressed to be confined to any part of the United Kingdom, much less to London.[99]Clause 2 also explains what is meant by “the benefit of the Parish or their successors”: it is “the promotion of the religious life of the Parish or their successors” which, as the clause later explains, is “the promotion of the Orthodox Faith within the Parish or their successors”. It is this requirement, that the property be applied for “the benefit of the Parish or their successors” as explained in clause 2, that makes the trusts of the trust deed charitable in nature.[100]Clause 4, with which the construction issue is concerned, is to be contrasted with and, in my view, to be understood in the light of clause 3. Clause 3 directs what is to happen if, in the opinion of the Council of the Parish, it should subsequently become impossible to use or expend the whole or any part of the trust property for the benefit of the Parish or their successors. In that event, the Council is to be obliged, by resolution, “to liquidate the trust” (as to the whole or part in question) and apply the property so liquidated for the furtherance or promotion of the Orthodox Faith. The underlying charitable nature of the trust - that the property be applied for the promotion of the Orthodox Faith - is thereby emphasised. In essence, the provision is cy-près in nature: if, by reason of impossibility, the immediate trusts affecting the trust property can no longer as to any part of the property be carried out the trust property is nonetheless to be applied to advance the underlying charitable aim of the trust which is to further and promote the Orthodox Faith. The expression “liquidate” I understand to mean realise (so far as may be necessary) and pay over to another or others. Having so acted, the Council and the trustees have no further role to play in respect of that property. Implicit in this is that, after liquidation, the property in question is no longer applicable for the benefit of the Parish or the Parish’s successors within the meaning of the trust deed. Were it otherwise the trustees would continue to hold the property and apply it in accordance with clauses 1 and 2.[101]Clause 4, by contrast, is concerned with the continuity of life and identity of the Parish. Its purpose, whenever an event occurs which triggers its operation, is to require the Council to identify, by resolution, the successors to the Parish for the time being (ie the successors to that community of Russian Orthodox Christians situated in the United Kingdom which is, or by earlier operation of clause 4 has been declared to be the successor to, the Parish led by Father Vladimir at the time the trust deed was entered into). Operation of the clause is triggered by two quite different circumstances. The first is when Father Vladimir ceases to be the Parish priest. This occurred in 1950. The second is when, and so often as, a doubt arises or may arise in relation to(1) the continuing life of the Parish and(2) the identity of the body entitled for the time being to the benefit of the trust deed. It is to be noted, however, that, so for so long as Father Vladimir remained priest of the Parish, the “doubt alternative” (as I shall describe the alternative triggering event) could not apply. This is because the doubt alternative is prefaced by the words “and also on all subsequent occasions” (emphasis added): it can only apply once Father Vladimir has ceased to be the Parish priest. The reason for this may be that, for so long as Father Vladimir continued to be priest of the Parish, the Parish must have continued in existence (ie enjoyed continuity of life and remained identifiable). In other words, the fact that Father Vladimir was still priest assumed that he had worshippers to whom to minister, and, that being so, that there was an identifiable body community or congregation to which the trust deed could apply. The fact that, as it is common ground happened, the Parish moved in 1946 from the Ecumenical Patriarchate to the Moscow Patriarchate does not seem to have mattered. The faith was the same: the Orthodox Faith. The community of Orthodox Worshippers seems to have been content to follow their priest, Father Vladimir. The change could not have constituted any kind of break in the continuity of the life of the Parish or cast doubt on the identity of the body community or congregation constituting the Parish since, by definition, the Parish (and therefore its identity) was focused on the continued presence of Father Vladimir as their priest.[102]Given that context, clause 4 is concerned, in my judgment, to ensure that there is an identifiable “Parish” ie, a community of Russian Orthodox Christians which is to be entitled to the benefit of the trust deed. Provided therefore that such a body continues in being (has continuity of life as a functioning group of Orthodox Christians) and can be identified as such (ie, is not simply a disparate assortment of Orthodox Christians), the operation of the clause is not triggered. It is only when a doubt has arisen or may arise as to those matters that the operation of the clause is triggered. By “doubt” I understand a matter genuinely and reasonably to be regarded as giving rise to doubt. I put it that way because “doubt” appears impersonally in the clause: it is not expressed to be a doubt felt by any identified person or persons.[103]If there is doubt - and operation of the clause is triggered - it is the task of the Parish Council, as constituted immediately before the triggering event giving rise to the doubt, to declare who the successor body is or, as it is put, “what body community or congregation shall be deemed for the purpose of this deed to be the successors of the Parish”.[104]I do not therefore consider that the clause is triggered when there is a difference of approach to matters of religious practice, important though those are, or to matters of conduct in the daily life of the Parish (for example, a willingness to provide voluntary support) as described in the evidence to which Mr Picarda referred me or to wider, ecclesiological, issues as described by Bishop Basil (such, for example, as the extent to which the Parish - and Diocese - should be permitted to conduct their affairs independently of the Moscow Patriarchate or even whether they should be subject to any control by Moscow). The essence of the matter, in my judgment, is that the doubt that must (or may) arise to trigger operation of the clause is over whether there is any continuity of the life of the Parish or over the identity of the very body, community or congregation for the promotion of whose religious life (as Orthodox Christians) the trust property is to be applied. It is not enough that there exists some dispute over the way in which the life of the Parish is to be continued or over the religious identity (or particular spirituality) of the body of worshippers who make up the Parish which, in essence, is the complaint of those represented by Mrs Nares and Mrs Collingridge.[105]Since the Diocesan trust deed is, in all material respects, the same as the Parish trust deed, it follows that clause 4 of that deed is to be construed in the same manner.[106]On that understanding of the true meaning and effect of the clause, both in the Parish trust deed and in the Diocesan trust deed, it is clear on the evidence that no relevant doubt arose, or showed any sign of arising, in May 2006 which is the critical time to consider.[107]In his second witness statement, Bishop Basil stated (at paragraph 3):
“No-one disputes that the Diocese of Sourozh and the London Parish under the Moscow Patriarchate remain in existence as legal entities and canonical bodies after my removal as bishop and replacement by first Archbishop Innokentii and then by Bishop Elisey. What has happened, however, is that large-scale changes in the composition of the London community during the years leading up to the summer of 2006 led to radical changes in the life of the London Parish and therefore of the Diocese. As a result a significant number of clergy and laity felt unable to stay within the Moscow Patriarchate and moved to the Ecumenical Patriarchate in order to continue to live their life in the Church as they had learnt to do over many years under Metropolitan Anthony.”
That paragraph in terms accepts that the Diocese and the Parish remained in existence after Bishop Basil’s departure. Later in that same witness statement Bishop Basil said this (in paragraph 25):
“…In my letter of 24 April 2006 to Patriarch Alexis, I asked for release so that those who wished to leave the Moscow Patriarchate with me could do so and form a body that would exist alongside the Diocese of Sourozh. …”
This passage likewise recognises the continued existence of the Diocese.[108]In his third witness statement Bishop Basil stated, when commenting on a distinction drawn by Professor Evans between the person holding the office of bishop and the office he holds:
“The distinction between ‘person’ and ‘office’ is a characteristic aspect of the ‘institutionalisation’ of the understanding of the Church in mediaeval and modern western thought. The approach of the Eastern Church is personal and incarnational, as opposed to impersonal and institutional. As a result, for example, in the case of the Diocese Sourozh, there was no proper diocesan bishop between the retirement of Metropolitan Anthony at the end of July 2003 and the appointment of Bishop Elisey as ‘ruling’ bishop of [the] Diocese in 2007. As the Bishop of Sergievo, I was merely the administrator of the diocese, succeeded in this role first by Archbishop Innokentii of Korsun and then by Bishop Elisey as Bishop of Bogorodsk. Throughout this period the diocese was ‘widowed’ and without a proper bishop. Until the appointment of Bishop Elisey to the see of Sourozh, the fundamental structure of diocesan bishops surrounded by his clergy and people did not exist. A locum tenens was in place and diocesan life continued, but not in its proper fullness, since there was no diocesan bishop.”
The fact that there is a vacancy in the office of “ruling bishop” of the Diocese of Sourozh does not mean that the Diocese ceases to exist during that vacancy or that there is any doubt as to its identity or as to the continuity of its life (even if that life is impaired or without “proper fullness” to use Bishop Basil’s expression) in the meantime. As I have pointed out, the Diocesan Statutes provide for this in Article II: the life of the Diocese continues during the interregnum, as does its existence as an identifiable body, community or congregation, despite impairment of the fullness of its spiritual life, for so long as the interregnum continues.[109]Perhaps it is a small point but Mrs Grealy referred to having been “a parishioner of the Parish for 21 years from 1986 until 2007…” In her understanding, therefore, there was no lack of institutional identity in relation to the Parish or in the continuity of its life when Bishop Basil left in May 2006: she remained a member of it until the following year. The fact that for reasons explained elsewhere in her evidence Mrs Grealy felt unable to remain and that she therefore left to follow Bishop Basil and become a member (and later churchwarden) of the Orthodox Parish of the Dormition of the Mother of God subject to the authority of the Ecumenical Patriarchate does not lessen the fact that the Parish that she had left continued and, although there may be argument about its extent or quality, that the life of the Parish continued too.[110]Nor is there any issue as to the continuity of activities in Parish and Diocese both before and after Bishop Basil’s departure. The life of both plainly continued. There is an abundance of evidence (to some of which I have referred) to indicate that it did. That life may have been a fractured life as a result of the unhappy differences that had arisen but there was a continuity of life all the same.[111]Since, therefore, there was not on the evidence any doubt as to either of those two matters in or by May 2006, there was no occasion for the Council and, separately, the Assembly to pass the disputed resolutions which each purported to do at the meetings held in June (in the one case) and July (in the other) of the following year.[112]That leaves unanswered the question whether the “and” in the phrase “continuity of the life of the Parish and the identity of the body community or congregation…” (and in the corresponding phrase in the Diocesan trust deed) is used conjunctively or disjunctively. As no relevant “doubt” had arisen by May 2006 in relation to either limb of that expression, it is not necessary to resolve the issue. For what my view on it may be worth, however, I consider, although with some hesitation, that the “and” is used disjunctively. Take, for example, the Diocesan trust deed. I can envisage as a quite likely possibility that, although the life of the Diocese is thriving (so that there is no doubt relating to the continuity of its life), there is a proposal to divide the Diocese into two separate parts. The wish to do so may spring from the very success of the life of the pre-existing whole. In that event a doubt could be said to have arisen relating to the identity of the body community or congregation which on the division is to be entitled to the benefit of the Diocesan trust deed: is it one only of the two parts into which the Diocese is to be split (and, if so, which of those parts) or is it both? It would be odd if, merely because there is no doubt as to the continuity of the life of the Diocese (into the sense above described), the operation of the clause is not thereby triggered. The contrary argument is that, in the event of a splitting into two of the Diocese, there would be a doubt as to the continuity of the life of the Diocese precisely because, with the division in two of the Diocese, the life the Diocese as it existed prior to division does not continue: the Diocese as such would no longer exist and its life (ie the life of the undivided whole) would therefore no longer continue. I probably do not do justice to the submission but that is as I understood it. If I have correctly understood it, the submission is one that I have difficulty in accepting: it seems almost to equate the first limb with the second whereas I consider that each has a distinct, though related, content.

The role of the Attorney-General

[113]In his skeleton argument Mr Picarda described as “unsatisfactory and controversial” the fact that the Attorney-General had expressed a view, initially through the Treasury Solicitor and later, before me, through counsel, on the construction of clause 4. This was that the construction contended for by Mr Dean, as expounded in argument by Mr Moverley-Smith, was correct. Mr Picarda described this as “siding with one side against the other” and stated that this “risks compromising the role of the Attorney-General in the protection of charity and the promotion of ADR”. He went so far as to say that for the Attorney-General to enter the fray in a case where, as he put it, “one party [ie Mr Dean’s] has limitless means” and has shown “inflexibility” in relation to ADR was “likely to prejudice a fair trial”. These are strong criticisms.[114]Leaving aside the fact that, on the evidence, those whom Mr Dean represents are not of limitless means, indeed the cost of these proceedings has been a matter of anxiety both to Mr Dean and to the court, I do not consider that the criticisms are justified. There is no doubt that, these being charity proceedings, the Attorney-General is a proper party. In Wallis v Solicitor General for New Zealand [1903] AC 173 at 181-182 Lord Macnaghten said that:
“It is the province of the Crown as parens patriae to enforce the execution of charitable trust, and it has always been recognised as the duty of the law officers of the Crown to intervene for the purpose of protecting charities and affording advice and assistance to the Court in the administration of charitable trusts.”
[115]Mr Henderson, appearing for the Attorney-General, recognised, however, that this duty does not extend to requiring the Attorney-General to advance arguments in favour of a particular charitable interest against those of another charitable interest where she considers on advice that the arguments of that particular interest would fail. Even less does it do so in a case where representatives of the competing interests are parties to the proceedings. Mr Henderson accepted that in substance the issues currently for decision lie between Mr Dean, as representative of the London Parish and Diocese of Sourozh under the control of the Moscow Patriarchate, and those defendants who had been appointed to represent the members of the competing bodies under the Ecumenical Patriarchate. He accepted, indeed asserted, that where there are issues between two established bodies or interests as to which of them or their adherents is entitled to benefit from a particular charitable trust, and those issues have to be determined by way of litigation, the court would expect the competing bodies or their representatives to be parties (see Ware v Cumberledge (1855) 20 Beav 503 at 510-512) and argue the matter without the Attorney-General becoming involved.[116]But, as he pointed out, the original representative defendants were joined to the two actions for the purpose of representing, respectively, the members of the Ecumenical Vicariate and the Orthodox Parish (Ecumenical Patriarchate) but then declined to involve themselves in the actions. Moreover, the representative defendants originally joined indicated that they did not propose to defend but (when the matter was before Deputy Master Bartlett on 14 April 2008) said (I was told) that they would rely instead on the Attorney-General to protect their position.[117]The fact therefore that the Attorney-General expressed a view on the merits of the construction argument was entirely explicable and cannot be a source of criticism.

The wider question

[118]In the forefront of Mr Picarda’s skeleton argument was the submission that, in the events that have happened, a scheme should be made to enable the assets of the two trusts to be divided and applied cy-près between those members of the Russian Orthodox community in this country who like Mrs Nares and Bishop Basil have now accepted the jurisdiction of the Ecumenical Patriarchate and those like Mr Dean who have remained loyal to the Moscow Patriarchate. The matter is explored in paragraphs 6, 7 and 36 to 42 of the skeleton argument. It finds expression in the proposed addition by Mrs Nares and Mrs Collingridge of the following issue to the list of issues for determination by the court as proposed on behalf of the Attorney-General:
“…should the court approach this matter on a basis that does not address the issues raised by the Claimant, but raises the following issues, namely: 9.1 rather than focussing on the technical issues of construction and the evidence surrounding the exercise of the [clause 4] powers, should the court take a broader view of the realities and the evidence of plainly conflicting factions and even in the absence of a counterclaim of its own motion and under its own inherent jurisdiction (and without the need to require prior approval from the Charity Commission under s.33 of the Charities Act 1993) make a Scheme under s.13(1)(e)(iii) of the Charities Act 1993 (as was directed in Varsani v Jesani [1999] Ch 219) on the basis that the relevant trust had ceased to provide a suitable and effective method of using the property, regard being had to the spirit of the gift and social and economic circumstances? 9.2 if so, what would be the nature of such a Scheme?” 9.1 rather than focussing on the technical issues of construction and the evidence surrounding the exercise of the [clause 4] powers, should the court take a broader view of the realities and the evidence of plainly conflicting factions and even in the absence of a counterclaim of its own motion and under its own inherent jurisdiction (and without the need to require prior approval from the Charity Commission under s.33 of the Charities Act 1993) make a Scheme under s.13(1)(e)(iii) of the Charities Act 1993 (as was directed in Varsani v Jesani [1999] Ch 219) on the basis that the relevant trust had ceased to provide a suitable and effective method of using the property, regard being had to the spirit of the gift and social and economic circumstances? 9.2 if so, what would be the nature of such a Scheme?”
[119]Mr Picarda submitted that, in the light of the approach adopted by the Court of Appeal in Varsani v Jesani and given, as he submitted was the case, the schism within the body of Russian Orthodox faithful in this country, a scheme would be appropriate. He submitted that even though the question of the scheme was not formally before the court, I could make a general direction that there was a case for a scheme and leave it to the Charity Commission to undertake the necessary enquiries and then prepare and establish the scheme with the matter coming back to the court if necessary. He submitted that the absence of any authorisation under section 33 to apply for a scheme was not fatal to this request. Section 33, he said, was merely a filter to avoid charities being vexed with frivolous and ill-founded claims with a consequent risk of a needless depletion of assets. Here, he submitted, charity proceedings were properly on foot to determine the construction and application of clause 4 of the trust deeds. The existence and circumstances of the split within the community were apparent from the evidence before the court. Moreover, the two Part 8 claim forms initiating the proceedings - the bringing of which the Charity Commission had authorised - claim “further or other relief”. If the court considers that a scheme was or might be appropriate, there was no reason why the court should not say so.[120]Mr Moverley-Smith opposed any suggestion of a scheme. He pointed out that no pleaded application for a scheme was before the court, let alone any which had Charity Commission authority which Mrs Nares needed under section 33(5) but for which no application had been made. On the contrary, he said, the trustees of the Diocesan trust deed initially applied in the Diocesan action, by an application dated 9 April 2008, for permission to counterclaim for a scheme. In support of that application was a witness statement by Mr Nicholas Wright of the firm of solicitors acting for the trustees which stated in terms that his client trustees had been advised to seek the Charity Commission’s permission under section 33 to file and serve a counterclaim seeking the establishment of a scheme. Subsequently, however, the solicitors advised by letter dated 24 April 2008 that, following the hearing before Deputy Master Bartlett and following advice from counsel, their client trustees had decided to withdraw the application. Mr Moverley-Smith reminded me that scheme applications can be complex and expensive and applications for them should follow established procedures. The court should, he submitted, be reluctant to act suo motu in such a matter. He cautioned against my giving any support to a scheme not least when a variety of factors would need to be established before it could be determined whether in principle a scheme would be appropriate and feasible (for example, the extent of the so-called “split” in terms of numbers of orthodox worshippers, the value and nature of the property the subject of the two trust deeds). It had not been necessary, he said, in order to obtain the court’s ruling on the true construction of clause 4 to go into many of the matters mentioned in the evidence on which Mr Picarda relied on, in suggesting that a scheme should be directed or at least considered.[121]Mr Henderson, whose submissions on the matter I invited, submitted that, if it thought appropriate, the court could indicate that consideration should be given to the making of a scheme but that ordinarily this should only be on the application by a party to the proceedings where that party had first obtained, where he needs it, the authority of the Charity Commission under section 33 to make such an application and had supported the application by appropriate evidence. He submitted that that was not this case where the evidence had been directed simply to the questions raised by the two claim forms, the possibility of a scheme not being one of them. This was reflected in legal advice given to the Attorney-General, as set out in a letter from the Treasury Solicitor dated 5 February 2009 and made available to the other defendants, in which, among other matters, the view was expressed that on the facts as they were understood to be the cy-près jurisdiction arising under section 13(1)(e)(iii) was not available and the decision in Varsani v Jesani was distinguishable.[122]There is, I should mention, an oddity in the requirement for the prior authority of the Charity Commission (or if authority is sought but refused then with the court’s leave) before charity proceedings may be taken relating to a charity other than an exempt charity in that section 33(4) provides that section 33 does not require any order authorising the taking of proceedings “in a pending cause or matter”. In Associated Nursing Services plc v Kells & ors, 16 October 1996, an unreported decision of my own to which Mr Henderson drew my attention, the question was whether a defendant needed authorisation to serve a counterclaim to charity proceedings in circumstances where he had not sought to obtain the Charity Commissioners’ authority to do so. I expressed the view that section 33(4) did not obviate the need for authorisation where the counterclaim was in the nature of a wholly distinct claim and in no sense arose out of the subject matter of the action.[123]I do not think that the existence of section 33(4) avails a person who wishes to make a counterclaim in existing charity proceedings. Section 33(4) can be traced back to section 17 of the Charitable Trusts Act 1853. Prior to the Judicature Act 1873 it was not possible to bring a counterclaim in existing proceedings. That apart, it is not clear why the existence of a pending cause or matter should obviate the need for authority to bring charity proceedings. This is well illustrated in Amrik Singh v Virender Pal Singh Sikka & ors (unreported) 2 December 1998 to which my attention was also drawn. In that case the Court of Appeal refused permission to appeal out of time against an order staying proceedings seeking particular relief where, although the relief was claimed in charity proceedings which the Charity Commissioners had authorised, the authorisation did not expressly extend to the particular relief that was sought. In giving reasons for refusing permission to appeal Peter Gibson LJ (with whom Butler-Sloss LJ agreed) considered that the absence of authority from the Charity Commissioners to pursue the particular head of claim was fatal. He also considered that it was not sufficient that the relief for which authority had already been obtained included “further or other relief”. It does not appear to have been suggested in that case that as the cause of action which the appellant wished to pursue was being made in proceedings brought by him which already had the Charity Commissioners’ approval section 28(4) of the Charities Act 1960 (the predecessor of section 33(4) of the Charities Act 1993) was in point and therefore obviated any need for such approval. In these circumstances the better view I think appears to be that, even if there are existing charity proceedings on foot relating to a charity other than an exempt charity, a person who wishes to claim relief in those proceedings, whether as an addition to claims he is already making or by way of counterclaim, requires authorisation under section 33(2) or section 33(5) unless the relief sought is clearly within the scope of any authorisation already given.[124]Given the fact that the possibility of the scheme is not a matter that has been explored in the evidence, and indeed was apparently abandoned at an earlier stage of these proceedings, let alone the subject of a duly authorised formal application, it would be quite inappropriate of me to order a scheme or even to indicate that a scheme is desirable. Nor would it be profitable to express views on the scope of section 13(1)(e)(iii) or the impact on the jurisdiction to order a scheme of the decision in Varsani v Jesani. I consider that before applying for a scheme it is incumbent on Mrs Nares, or whoever else (other than the Attorney-General) may be desirous of promoting one, to apply first to the Charity Commission for authority to make the requisite application. Such a step is desirable not least because the Charity Commission is the body primarily charged with the task of making schemes of this kind and, given its experience in such matters, is best placed to do so. It is not right that the appropriateness of the scheme should be raised, in effect as an afterthought, in proceedings, admittedly charity proceedings, directed to other matters.[125]That said, I am of the view, after carefully reading the evidence before the court, that the question whether on the facts there is jurisdiction to direct a scheme, and if there is whether it is desirable and practicable to do so, could profitably be considered by the Charity Commission. It will be for those desiring a scheme to apply to the Charity Commission and to lay before the Commission what evidence they rely on. I would merely say that, in the very unhappy circumstances which have arisen, I have the impression, which I acknowledge that a closer examination of the facts may prove to be mistaken, that there is a small but nevertheless significant body of worshippers, based mostly in the London area, who in all conscience have found that they can no longer worship and practise their faith and otherwise make use of the facilities made available out of the property of one or other of the two trust deeds in the manner that they previously did. This would appear to be as a result of the large influx of migrants from the Russian Federation to this country since the break-up of the former Soviet Union who now form, as I understand it, the large majority of those who make up the Russian Orthodox community in the London area and whose positions on matters of worship and church order differ from those which have developed over the years among the persons represented before me by Mrs Nares and Mrs Collingridge.

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