Purani Swami Dharmanandan Dasji v Daveen Mavji Bhudia & Ors [2026] EWHC 455 (Ch)

Remote hand-down: This judgment was handed down remotely on 3 March 2026 by circulation to the parties or their representatives by email and by release to The National Archives.

[2026] EWHC 455 (Ch)

Case No PT-2023-000754

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

PROPERTY, TRUSTS AND PROBATE LIST (ChD)

Date DATE: 3 March 2026

Between

PURANI SWAMI DHARMANANDAN DASJIClaimant

DAVEEN MAVJI BHUDIADefendants

HARI JADAVJI HALAIDefendants

JADAVJI RAMJI HIRANIDefendants

MANJI JINA HIRANIDefendants

NARAN HARJI GAMIDefendants

DEVSHI DAYALAL GAMIDefendants

PUNIT G PATELDefendants

LALJI MAWJI VEKARIADefendants

JITENDRA MANJI VEKARIADefendants

MANSUKH MAWJI VEKARIADefendants

PRAKASH MANJI VEKARIADefendants

KHIMJI RAMJI PATELDefendants

MITESH BHIMJI PATELDefendants

PARBAT KANJI VARSANIDefendants

HIS MAJESTY’S ATTORNEY GENERALDefendants

DEPUTY MASTER HENDERSON

B E T W E E N:

Counsel and solicitors:

The Claimant represented by Mr Matthew Mills, instructed by Keidan Harrison LLP.

The 5 th Defendant represented by Mr Julius Seal, by Direct Access.

The 6 th– 12 th Defendants represented by Mr Maxim Cardew, by Direct Access.

Hearing Hearing Dates: 11 - 13 November 2025.

JUDGMENT

Contents

Paragraphs

1 - 36 Introduction and Parties

37 – 51 Jurisdiction

52 – 67 The need for a scheme

68 – 89 The Law

90 – 145 The course of the witness evidence and the hearing

146 – 147 The main issues

148 – 150 A Constitutional Committee?

151 – 178 More facts

179 – 184 Importance of connection with the Bhuj Temple

185 – 189 Contributions by and involvement of members

190 – 199 Concerns as to possibilities of assets being hived off

200 – 203 SSMB India’s Trust Deed

204 – 220 The views of the current membership of the charity

221 – 223 Conclusions on the witness evidence

224 – 226 Should certain powers be vested in (i) the Mahant Swami and the Vice Mahant Swami or (ii) the trustees of SSMB India?

227 – 234 Overall architecture and structure of the scheme constitution

[235]Continuation of the existing rights of the Membership of the charity? 236 – 243Who should appoint the Appointed Directors? 244 – 247Powers to remove Appointed Directors

[248]Power in Directors to retire 249 – 250Who should be the first Appointed Directors under the scheme? 251 – 253Officers of the charity 254 – 255Quorum for Board Meetings 256 – 268Definition, ascertainment, and recording of the membership 269 – 287Meetings of members 288 – 300Power to amend the constitution 301 – 305Provisions as to dissolution 306 – 307Rules 308 – 310Name 311 – 312To whom or what should written notices or consents be sent? 313 – 317Drafting of the Scheme and Next Steps

[318]Need for Board to implement scheme Introduction and Parties

[1]This is my judgment following the trial of this claim.

[2]The claim concerns the English registered charity named Shree Swaminarayan Satsang (“the charity”).

[3]By his Part 8 Claim Form the Claimant sought the following relief: 3.1. An order approving a draft scheme for the charity which had been prepared on his behalf or the making of a scheme in such other terms as the Court thinks fit. 3.2. An order that the Claimant can recover his costs out of the assets of the charity. 3.3. An order for costs against the 5th Defendant. 3.4. “Further or other relief”.

[4]The charity was established in or around 2001 and 2002. It was registered as a charity by the Charity Commission on 28 June 2002.

[5]In legal form the charity is an unincorporated association or trust.

[6]The objects of the charity are specified in clause 2.01 of its existing constitution:

“To advance the Sanatan Dharma (religion) in accordance with the teachings and principles of Shree Swaminarayan sect founded and ordained by Lord Shree Sahajanand Swami.”

[7]Clause 5.01 of the existing constitution of the charity provides that a Board of Directors shall administer and manage the Organisation.

[8]Under the terms of the existing constitution of the charity, the Claimant, as Head Priest of the Bhuj Temple, Gujurat, India, is the ex officio Chaiman of the Board of Directors.

[9]The Claimant has been the Mahant Swami of the Bhuj Temple since 2006. That translates as Head Priest. From 1998 to 2006 the Claimant was the Deputy Mahant Swami; he having been appointed to take over some of the administrative burdens of the then Mahant Swami as the Mahant Swami got older. The translation of the trust deed of the Bhuj Temple in the evidence calls the Deputy Mahant Swami the “Vice Mahant”.

[10]The existing constitution of the charity provides for 11 directors in addition to the Head Priest.

[11]The 1st Defendant, Daveen Mavji Bhudia, filed an acknowledgment of service stating that he did not intend to contest the claim and asking the court to approve the Claimant’s draft scheme. He also asked for an order that the Defendants who oppose the Claimant’s draft scheme pay the Claimant’s costs and the supportive Defendants’ costs of and occasioned by the proceedings. He has not taken an active part in the proceedings. The 1st Defendant was appointed a director on 25 September 2007. He may have resigned in 2018.

[12]The 2nd Defendant, Hari Jadavi Halai, filed an acknowledgement of service to the same effect at the 1st Defendant’s. He has not taken an active part in the proceedings. The 2nd Defendant was a founder director of the charity. He may have resigned in 2018.

[13]The 3rd Defendant, Jadavji Ramji Hirani, was served with the proceedings, but has not acknowledged service or taken an active part in the proceedings. He was a founder director of the charity. He may have resigned in 2018.

[14]The 4th Defendant, Manji Jina Hirani, filed an acknowledgement of service stating that he did not intend to contest the claim. He was a founder director of the charity. He may have resigned in 2018.

[15]The 5th Defendant opposes the Claimant’s draft scheme, or parts of it. He proposed his own scheme for the charity. He was represented before me by Mr Seal. The 5th Defendant was one of the original directors of the charity. The minutes of a directors’ meeting of 26 June 2020 record his resignation and non-reappointment as a director. The 5th Defendant did not accept this. He criticised the process and pointed out that what, in substance, was his removal, was not approved by the Head Priest.

[16]Until the second afternoon of the trial, the 6th to 12th Defendants opposed the Claimant’s draft scheme and proposed their own scheme. After the short adjournment on the second day of the trial they stated, by their counsel Mr Cardew, that they did not resist the Claimant’s draft scheme and that they thought it was religiously, spiritually and morally wrong to subject the Claimant to further questioning or examination.

[17]The 6th Defendant, Devshi Dayalal Gami, was one of the original directors of the charity, and he remains one.

[18]The 7th Defendant, Punit G Patel, was purportedly appointed as a director on 13 February 2021.

[19]The 8th Defendant, Lalji Mawji Vekaria was appointed as a director of the charity at a meeting on 25 September 2007.

[20]The 9th Defendant, Jitendra Manji Vekaria, was purportedly appointed as a director on 13 June 2021.

[21]The 10th Defendant, Mansukh Mawkji Vekaria, was purportedly appointed as a director on 13 June 2021.

[22]The 11th Defendant, Prakash Manji Vekaria, was purportedly appointed as a director on 13 February 2021.

[23]The 12th Defendant, Khimji Ramji Patel, was one of the original directors of the charity, and he remains one.

[24]The 13th Defendant, Mitesh Bhimji Patel, filed an acknowledgment of service stating that he did not intend to contest the claim and asking the court to approve the Claimant’s draft scheme. He also asked for an order that the Defendants who oppose the Claimant’s draft scheme pay the Claimant’s costs and the supportive Defendants’ costs of and occasioned by the proceedings. He may have resigned in 2018.

[25]The 14th Defendant, Parbat, Kanji Varsani, was served with the proceedings, but has not acknowledged service or taken an active part in the proceedings. He was appointed a director on 25 September 2007. He may have resigned in 2018.

[26]The 15th Defendant, HM Attorney General, filed an acknowledgement of service stating that she did not intend to take an active part in the proceedings or make representations. Neither the Attorney General at the time of the acknowledgement of service, nor her successors have done so.

[27]It is clear from the terms of the charity’s existing constitution and from the evidence that the charity has always been closely associated with the Shree Swaminarayan Temple, Bhuj-Kutch, Gujarat, India (Nar Narayan Dev). I refer to this Temple as “the Bhuj Temple”. “Nar Narayan Dev” is frequently abbreviated to “N N Dev”.

[28]The Bhuj Temple is one of the six original and senior temples in the Swaminarayan Branch of Hinduism.

[29]The Swaminarayan faith is based on the teachings of its founder, Lord Swaminarayan.

[30]Before his death Lord Swaminarayan established two “gadis” for the entire religion. The gadis are seats of leadership.

[31]Every Swaminarayan temple falls within one of the two gadis.

[32]Each gadi is led by an Acharya. One is based in the original Ahmedabad Temple. The other in the original Vadtal Temple.

[33]Over the last 200 years, about 1,000 Swaminarayan Temples have been built around the world. The majority of these newer temples are created “under” one of the original six Temples.

[34]The charity is established “under” the Bhuj Temple. In this context “under” does not mean that the charity is wholly under the control of the Bhuj Temple.

[35]The charity is a substantial charity. Its financial statements for the year ended 31st March 2024 show total funds of £10,077,574. These include the building and land known as the Stanmore Temple. This appears in the Financial Statement with a value of £4,243,828. The financial statements show cash in the bank or in hand of £4,010,467.

[36]The directors of the charity are frequently referred to interchangeably as “trustees” in the evidence and by the parties and the witnesses and by me in this judgment. The directors are not “directors” in the company law sense of that word (the charity is not a company). They are not or are not all “trustees” in a narrow sense of the word because they do not or do not all hold property on trust for others or for the purposes of the charity. They are “charity trustees” within the definition of “charity trustees” in s.177 Charities Act 2011 because under the charity’s existing constitution they are the persons having the general control and management of the administration of the charity. Jurisdiction

[37]A scheme is essentially a document which amends the constitution of a charity. There are two types of scheme. The first, commonly called a regulatory, managerial or administrative scheme amends the administrative provisions of a charity’s constitution. The second, generally called a cy-près scheme, amends the purposes of a charity. There is no suggestion in this case that the purposes of the charity need to be changed. This case is only concerned with the first type of scheme.

[38]In this judgment I refer to the first type of scheme as a managerial scheme. I do not call that type of scheme an administrative scheme because doing so can lead to confusion. The possibility for confusion arises because s.69 Charities Act 2011 refers to both types of scheme as schemes “for the administration of a charity”.

[39]The court’s jurisdiction to make a managerial scheme remains part of its inherent jurisdiction in respect of charities. The essence of the jurisdiction was explained succinctly by Peter Gibson J in his judgment in Re J W Laing Trust

[1980] Ch 143

at pp.153F and 154E as arising when, taking into account all the circumstances of the charity, it was expedient in the interests of the charity to regulate the administration of the charity, but that in doing so the court “should be slow to thwart the settlor’s wishes.” I consider some elements of the law in more detail below; but that detail is not needed in order to decide the jurisdiction questions or whether a scheme is required.

[40]Proceedings in the court for a scheme in relation to a charity such as those before me are an example of “charity proceedings” within the meaning of s.115 Charities Act 2011. Accordingly, by reason of s.115(2) Charities Act 2011, the taking of the proceedings was required to be authorised by the Charity Commission. They were authorised by an order of the Commission dated 27 June 2023. That Commission order provided:

“The Commission by this order authorises: Purani Swami Dharmanandan Dasji being a charity trustee and person interested in the Charity to take proceedings as he may be advised in the Chancery Division of Her Majesty’s High Court of Justice, for the following relief: (1) an order to approve the Draft Scheme put forward by Purani Swami Dharmanandan Dasji or make a scheme in such other terms as the Court thinks fit; (2) an order that Purani Swami Dharmanandan Dasji can recover his costs out of the assets of the Charity; (3) an order for costs against Naran Harji Gami; (4) such further or other relief as the Court thinks fit.” (1) an order to approve the Draft Scheme put forward by Purani Swami Dharmanandan Dasji or make a scheme in such other terms as the Court thinks fit; (2) an order that Purani Swami Dharmanandan Dasji can recover his costs out of the assets of the Charity; (3) an order for costs against Naran Harji Gami; (4) such further or other relief as the Court thinks fit.”

[41]The relief sought in para.8 of Part 8 Claim Form is the same as that authorised to be applied for by the Commission’s order.

[42]The English courts have no jurisdiction to make schemes in respect of institutions established under and in accordance with law of a foreign state. That is not this case. It is apparent from the terms of the charity’s constitution and the background to its establishment that it was and remains established under and in accordance with the law of England and Wales.

[43]Further, and in my view conclusively, the charity is registered as a charity by the Charity Commission of England and Wales. Under s.37(1) Charities Act 2011 an institution is, for all purposes other than rectification of the register, conclusively presumed to be or to have been a charity at any time when it is or was on the register. The charity is therefore conclusively presumed to be a “charity” within the meaning of the Charities Act 2011. Under s.1(1) Charities Act 2011, for the purposes of the law of England and Wales, “charity” means an institution which(a) is established for charitable purposes only, and

(b) falls to be subject to the control of the High Court in the exercise of its jurisdiction with respect to charities. The combined effect of ss.37(1) and 1(1) Charities Act 2011 is therefore that the charity is conclusively presumed to be a charity established for charitable purposes only and subject to the control of the High Court in the exercise of its jurisdiction with respect to charities.

[44]Mr Mills raised for my consideration the fact that one of the twelve directors (the Head Priest) was resident in India. That does not cause the charity not to be established under and in accordance with the law of England and Wales; nor does it prevent ss.37(1) and 1(1) Charities Act 2011 from having the effect outlined in the immediately foregoing paragraph. Nor does it oust the court’s scheme jurisdiction.

[45]Even if the scheme was to provide for the appointment and removal of the directors by the Mahant Swami or the trustees of the Bhuj temple, the persons controlling and managing the charity would not be those appointors, but would be the directors and the charity would remain subject to the control of the English High Court.

[46]Mr Mills and Mr Cardew both raised the possibility that, by reason of no counterclaim having been made, I could not make a scheme other than the one sought by the Claimant. Mr Cardew did not agree with that proposition. In the circumstances of the present case I consider that I can make a scheme which is different from that sought be the Claimant. I do not consider that s.115(4)(a) Charities Act 2011 assists in this regard. S.115(4)(a) Charities Act 2011 provides that s.115 does not require an order for the taking of proceedings in a pending cause or matter. In the present case no proceedings, by way of counterclaim, application or otherwise seeking an alternative scheme have been taken by any of the Defendants, so there is no “taking of proceedings in a pending cause or matter” to which s.115(4)(a) could apply. If there was a counterclaim or application for an alternative scheme, there would at least be considerable doubt whether such a counterclaim or application came within the scope of s.115(4)(a). I do not have to decide that. In deciding whether to make a scheme and if so on what terms on the Claimant’s claim, I am engaged in considering, amongst other things, what is expedient in the interests of the charity. Having regard to the submissions made by the other parties I could decide that, in some respects, different provisions from those proposed by the Claimant in his proposed scheme would be expedient or would be more expedient. If I did so, I consider that generally I would be free to depart from the specific scheme which the Claimant has proposed. Even if I was wrong on that in general, the particular form of relief authorised by the Commission to be applied for and that applied for by the Claimant in the present case makes it clear that in this case I can do so. In paragraph 8.2 of his Part 8 Claim Form the Claimant asks, as authorised by the Commission by its order dated 27 June 2023, for an order approving his draft scheme or that I should “make a scheme in such other terms as the Court thinks fit.”

[47]Mr Mills raised and dismissed the possibility that the Attorney General’s presence (by counsel) might be necessary in order for the court to have jurisdiction to make a scheme. He was right to dismiss the possibility. Generally the Attorney General is a necessary party to charity proceedings. He has correctly been joined as a defendant in these proceedings.

[48]In charity proceedings such as the present the Attorney General represents the Crown as parens patriae. The Attorney General represents the public interest in having charities properly administered. In particular it is the duty of the Attorney General: 48.1. “to make representations to the court as to where lies the public interest as he sees it” (Stanway v Attorney General (unreported) 5 April 2000, per Sir Richard Scott V-C at p.4 of transcript), cited with approval by the Supreme Court in Children’s Investment Fund Foundation (UK) v Attorney General

[2020] UKSC 33

[2022] AC 155

, per Lady Arden JSC at para.91). 48.2. “to afford advice and assistance to the court in the administration of charitable trusts” (Wallis v Solicitor General for New Zealand

[1903] AC 173

, per Lord Macnaghten at pp.181-182) 48.3. to represent the beneficial interest or objects of the charities (AG v Bishop of Worcester (1851) 9 Hare 328,per Sir George Turner V-C at p.631 and Re Belling

[1967] Ch 425

, per Pennycuick J at p.432).

[49]The interrelationship between the courts and the Attorney General regarding charities is, broadly, and excluding the ancient “sign manual” jurisdiction, one in which the Attorney General calls things to the attention of the court and makes representations, while the court makes orders, directions or schemes in relation to the charity. The point is made by Sir Richard Scott VC in a longer extract from his judgment in Stanway v Attorney General than that quoted above, which longer extract is set out in Tudor on Charities (11th ed) at para.13-005 as follows:

“The Crown is parens patriae of the charity and the judges of the courts represent the Crown in supervising what the charity is doing and in giving directions, such as those sought from me. The Attorney General's function is to make representations to the court as to where lies the public interest as he sees it.”

[50]Thus, in a case such as the present, generally the court makes orders or gives directions, while the Attorney General makes representations. The absence of representations by the Attorney General does not invalidate orders or directions made by the court.

[51]Further, as is explained in Tudor on Charities (11th ed) at para.13-017, the existence of a duty on or power in the Attorney General in relation to charities does not require the Attorney General necessarily to take action in all cases to which that duty or power literally extends. The fact that in a particular case, such as the present, the Attorney General decides not to take any action should not prevent the court from exercising its inherent jurisdiction as to charities where it is satisfied that it is in the interests of charity for it to do so.

The need for a scheme

[52]A scheme amending the constitution of the charity is sought because the existing constitution is unsatisfactory or unclear in a number of respects.

[53]In summary its provisions do not expressly cover a number of more or less common or likely situations and in some respects its meaning is unclear. That imprecision has given rise to a number of issues between the persons who have been involved in running the charity. Many of those issues remain outstanding and mean, amongst other things, that there is uncertainty as to the current make up of the Board of Directors, and, consequentially, as to who should be controlling and managing the charity.

[54]The affairs of the charity came before Mr Richard Snowden QC in February 2012 on a claim (HC10C04264) made by the individuals who in the current proceedings are the 1st, 2nd, 3rd, 5th, 12th, 13th and 14th Defendants. The principal relief sought in claim HC10C04264 was a declaration as to the then composition of the Board of Directors. In the event that claim was not adjudicated upon by the Judge because a general meeting of over 200 of the members of the charity had been held on 4 February 2012 and, if that meeting had been validly called and the resolutions passed at it had been validly passed, the need for that relief would have disappeared.

[55]By his judgment in HC10C04264 dated 23 February 2012 Mr Snowden held, following a 2 days trial of a preliminary issue, that the meeting of 4 February 2012 was not a validly convened AGM or EGM of the charity and that in normal circumstances a member who wanted a resolution put on the agenda for an Annual General Meeting or for an Extraordinary General Meeting could not themself convene the meeting.

[56]Mr Snowden considered, but did not decide, that there was force in a submission that if a member requested a general meeting of the members to consider a constitutional amendment, then the Board of Directors would be obliged, by contract and/or their fiduciary duties, to give proper consideration to that request. If, in breach of such duties, the Board failed or refused to convene a meeting without good reason, then the member would have his remedy by way of an action in contract or equity seeking an order from the court to compel the Board to comply with those duties.

[57]Mr Snowden considered, but did not need to and did not decide, that there was a default or residual power in the members to convene a valid general meeting and to pass resolutions without unanimous agreement if, without that power, the affairs of the charity would be completely stymied.

[58]Mr Snowden did not determine many of the then outstanding points because the active parties to the litigation before him agreed to a form of Tomlin Order which was made on 15 June 2012. The Head Priest was not a party to the proceedings before Mr Snowden. The Attorney General was a party, but did not take an active role. The Attorney General did not object to the Tomlin Order.

[59]The Tomlin Order stayed the proceedings on the terms set out in the Schedule to it, with liberty to apply in the event that the terms were not complied with and generally in relation to the subject matter of the Schedule. The order recited that by ordering a stay on the terms set out in the Schedule, the court was not making any judgment or decision in respect of the terms.

[60]The terms of the Schedule to the Tomlin Order contained: 60.1.1. C1 - Jadavi Ramji Hirani. The 3rd Defendant in the current proceedings. 60.1.2. C2 - Khimji Ramji Patel (also known as Khimji Khetani). The 12th Defendant in the current proceedings. 60.1.3. C3 - Naran Harji Gami. The 5th Defendant in the current proceedings. 60.1.4. C4 - Hari Jadavi Halai (also known as Harish Halai). The 2nd Defendant in the current proceedings. 60.1.5. C5 - Parbat Kanji Varsani. The 14th Defendant in the current proceedings. 60.1.6. C6 - Mitesh Bhimji Patel (also known as Mitesh Bhimji Vekaria). The 13th Defendant in the current proceedings. 60.1.7. C7 - Daveen Mavji Bhudia. The 1st Defendant in the current proceedings. 60.1.8. D1 - Manji Jina Hirani. The 4th Defendant in the current proceedings. 60.1.9. D2 - Devshi Dayalal Gami. The 6th Defendant in the current proceedings. 60.1.10. D3 - Bhimji Mavji Patel (also known as Bhimji Bhudia). Died on 13th January 2021. 60.1.11. D4 – Lalji Mawji Vekaria. The 8th Defendant in the current proceedings. 60.2. An agreement as to who the then office holders were. 60.3. An agreement that without the concurrence of the Head Priest and without reasonable cause, the Board could not oust any of the then Defendants from the Board. 60.4.1. Identifying (by registration) the general members of the charity. 60.4.2. The calling of general meetings of the general members of the charity. 60.4.3. Determining the powers of a general meeting of the members of the charity. 60.5. Within 4 months of the date of the order (i.e. by 15th October 2012) or such greater period as the Board should reasonably consider to be necessary to order to conclude their discussions and consultation, the Board should apply to the Charity Commission with a view to the Commission making a scheme amending the constitution of the charity so as to make full and adequate provisions for the matters mentioned in my immediately foregoing sub-paragraph. 60.6.1. A person’s eligibility to act as a member of the Board of Directors. 60.6.2. The method by which members of the Board of Directors are to be elected or appointed. 60.6.3. The method by which a member of the Board of Directors may be dismissed or retire. 60.7. A default agreement to apply to the Charity Commission for advice. 60.8. An agreement that pending completion of the process of the making by the Charity Commission of the scheme, no meeting of the membership should be recognised by the Claimants or the Defendants as being in accordance with the Constitution of the Charity unless called by or agreed to by the Board.

[61]In the event, although there were discussions as agreed, they stalled on the issues of identifying the membership; whether a subscription should be required and, if so, what that subscription should be. No application was made to the Charity Commission for a scheme and no scheme was made.

[62]It is apparent from its terms that the charity’s constitution was not professionally drafted.

[63]The evidence was that the charity’s constitution was based on the pre-existing constitution of an English registered charity which some of the founders had been involved with called the International Swaminarayan Satsang Organisation (“ISSO”). So far as interpretation of the existing constitution is concerned, that evidence is inadmissible. Insofar as an attempt might be made to rely on it for that purpose for showing what the charity’s constitution was meant to provide, it would be evidence of the draftsman’s subjective intent. It would be one stage removed from the use of an accepted precedent because the constitution of ISSO is not a recognised precedent with an established meaning. In practical terms if the evidence was admissible for the purposes of interpretation of the charity’s constitution, any problem of interpretation would give rise to an issue of interpretation of ISSO’s constitution, and the original problem would become more complicated without taking the interpretation of the charity’s constitution significantly further forward.

[64]Mr Snowden identified various difficulties with the charity’s current constitution.

[65]The particularly important difficulties which I have identified, and which overlap with those identified by Mr Snowden are as follows: 65.1. Although clause4.01 of the charity’s constitution sets out certain requirements which a person has to satisfy to be eligible to be a member of the Organisation, and clause

4.02 prescribes how a membership might terminate, the constitution does not provide for any process of admission to membership. Those clause 4.01 and 4.02 factors might well give rise to issues as to how general meetings of the members of the charity should be convened and held. 65.2. Clause 5 of the charity’s constitution is headed “Shree Swaminarayan Satsang”. Clause 5.01 is headed "National office" and provides:

“Board of Directors shall administer and manage the Organisation as per below:- A) Head priest of Shree Swaminarayan temple Bhuj (NN Dev) India will be the ex-officio Chairman of the Board of Directors. B) The Organisation shall consist of 12 (twelve) Directors who shall be permanent members until and unless changed (for reasonable cause) by the head priest of the Shree Swaminarayan Temple Bhuj (NN Dev) and the Board of Directors. C) The Board of Directors shall appoint an advisory committee for a period of three years.”

Vice-President Vice-Secretary Vice-Treasurer Director of Public Relations Director of International affairs Director of Publications

[11]Member c) Every six years 3 eldest Directors shall resign and the remaining members of the Board of Directors shall appoint three new Directors. A member having allegiance to any other diocese or institution or temples which are not recognised by either of the Diocese at Ahmedabad or Vadtal or indulge into any such activity which is declared by either of the Dioceses as not in accordance with the preachings of the original Swaminarayan Faith or are detrimental to the cause and objective of the Organisation shall cease to be a Director of the Organisation.” 65.4.1. The Board is in substance a self-perpetuating oligarchy. 65.4.2. Over at least the last 15 years that system has resulted in disputes as to who the directors are. 65.4.3. That system itself, with a possible turnover limited to 3 out of 11 Directors every 3 years, with only the eldest retiring and their being eligible for re-appointment, coupled with its being the remaining members of the Board who have the right to appoint the replacement directors, could lead to a situation where a long-established Board loses the confidence of the general membership. 65.4.4. In its context the word “changed” in 5.01(B) is ambiguous. It is unclear whether it only permits a removal if that removal is accompanied by the appointment of a replacement director. It is also unclear whether it permits the addition of a new trustee if that is not accompanied by the removal of an existing director. 65.4.5. There is no process specified whereby a director who is “changed” under clause 5.01(B) is entitled to be informed as to what the alleged “reasonable cause” may be, or to make a case that there is no reasonable cause justifying his being “changed”. 65.4.6. No provision is expressly made for the Board to be capable of functioning at times when there are fewer than 12 members of it. 65.4.7. In recent years there has not been an advisory committee, with the consequence that no additions have been made to the pool of persons who might be appointed to be new directors. The reasons for there not having been an advisory committee were not explored before me. Mr Seal submitted that it was a result of a breach by the directors of their duty under clause 5.01(C) to appoint the advisory committee. On the other hand, it may be that there were no suitable or willing candidates, or that, given the uncertainty since at least 2012 as to who all the members of the Board were, it may be that any breach of duty lay in a failure to rectify that uncertainty. 65.4.8. There is no process specified as to how a process should operate for a director to cease to be a director under the final paragraph of clause 5.02. "(a) The Board of Directors shall hold at least 4 meetings every year apart from Annual General Meeting and such meetings shall be called ordinary meetings. The Board of Directors may also hold additional meetings and such meetings shall be called Special Meetings.” 65.5.2. The implication from the introductory words and from the inclusion of Annual General Meetings in clause 6.01(a) is that Annual General Meetings are meetings of the directors alone. 65.5.3. There is an arguable implication from the final paragraph of clause 5.02 that “members” means members of the Board of Directors. That paragraph provides for a “member” who ceases to have allegiance etc to cease to be a director of the organisation. In that context “member” means member of the Board of Directors. 65.5.4. In clause 9.01(b) “members” means members of the Board of Directors. Clause 9.01(b) deals with dissolution and its consequences in the following terms:

“Notice of 21 days shall be given to the members for a special meeting to be called for the discussion on the Organisation to cease to function or exist. For such resolution shall be decided by the casting vote of at least two thirds of the present members. Discussions and suggestions shall be taken into account as to the arrangement of the Organisation and its assets and properties, but shall not be passed and belong to any member but to Shree Swaminarayan Temple Bhuj (N N Dev) (after paying off all its liabilities). In case it is not possible ( due to legal reasons) to pass the remaining assets and properties to Shree Swaminarayan Temple Bhuj (N N Dev), the Board of Directors with the prior approval of the Head Priest of Shree Swaminarayan Temple Bhuj ( N N Dev ) shall be entitled to give it away to any similar local, religious or charitable institution. If this not possible it may be passed to any local, religious or charitable institution.” 65.5.5. The word “members” in the first part of that clause prima facie refers to the general membership. However, it refers to “special meetings” not to AGMs or EGMs. “Special Meetings” are defined in clause 6.01(a) as additional meetings of the Board of Directors. Further, in the later part of the clause where, in the event that it is not possible to pass the assets to the Bhuj Temple, it is the Board of Directors, not the general membership which, with the prior approval of the Head Priest, is mandated to decide on the destination of the assets. Hence I consider that in clause 9.01(b) “members” means members of the Board of Directors. 65.5.6. Unlike clause 6.01(a), clause 9.01 does not refer to Annual General Meetings, so it does not support the thesis that Annual General Meetings are meetings of the Board of Directors, rather than meetings of the general membership. 65.5.7. Although generally words are likely to have the same meaning throughout a document, the implication is far from irrebuttable. 65.5.8. I consider that the implications from the words “member” and “members” meaning members of the Board of Directors in clauses 6.01 and 9.01(b) and from the use of the words “Annual General Meeting” in clause 6.01(a) are rebutted by clauses 6.01(b), 7.01(c) and 8.01(a) and that in 7.01(c) and 9.01(a) and generally in the constitution to Annual General Meetings and Extraordinary General Meetings are references to General Meetings of the general membership. 65.5.9. Clause 6.01(b) provides: “Such ordinary and Special meetings will be held at such time and place (if applicable) as the Secretary in consultation with the President may determine and shall be called by the Secretary.” 65.5.10. Sub-clause 6.01(b) only deals with the holding of ordinary and Special meetings. Those are meetings, which are meetings of directors, not meetings of the general membership. The remaining clauses of clause 6.01 do not mention Annual General Meetings or Extraordinary General Meetings. To my mind these considerations indicate that the reference to “Annual General Meeting” in clause 6.01(a) is, at most, included because it was anticipated that the directors would be present at the Annual General Meeting, but that the Annual General Meeting was not intended to be a meeting only of the directors. 65.5.11. That conclusion is reinforced by reference to clauses 7.01(c) and 8.01(c). 65.5.12. Sub-clause 7.01(c) provides: “(c) The members of the Board of Directors shall ensure that regular accounts of the Organisation properties and income and expenses are maintained and audited. Such Audited accounts will be first presented to the members of the Board of Directors and a copy sent to the Head Priest of Shree Swaminarayan temple Bhuj (N N Dev) before being read in the annual general meeting.” 65.5.13. The second sentence of that clause provides for the audited accounts first to be presented to the Board and sent to the Head Priest; and then to be “read in the annual general meeting”

. If the annual general meeting was intended to be a meeting only of the directors, it would make no sense for the audited accounts to be sent to the Board and then be read to the Board at an Annual General Meeting. 65.5.14. Clause 8.01(a) deals with possible amendments to the constitution. It provides:

“8.01 Amendment of the Constitution:- (a) In all such cases where it is found necessary to amend, add or delete any provision or provisions of the constitution and rules of the Organisation, such amendment addition or deletion shall be done in the Annual General Meeting or by convening an extraordinary General Meeting and passing the same with at least two thirds majority of the members present and the Head Priest of Shree Swaminarayan Temple Bhuj (N N Dev) voting in favour of such amendment. For the meeting for such necessary amendments, additions or deletions of any provision or provisions of the constitution and rules of the Organisation, Twenty one (21) days notice shall be given to the members of the Board of Directors and at least fourteen (14) days notice shall be given for such necessary amendments, additions or deletions of any provision or provisions of the constitution and rules of the Organisation.” (a) In all such cases where it is found necessary to amend, add or delete any provision or provisions of the constitution and rules of the Organisation, such amendment addition or deletion shall be done in the Annual General Meeting or by convening an extraordinary General Meeting and passing the same with at least two thirds majority of the members present and the Head Priest of Shree Swaminarayan Temple Bhuj (N N Dev) voting in favour of such amendment. For the meeting for such necessary amendments, additions or deletions of any provision or provisions of the constitution and rules of the Organisation, Twenty one (21) days notice shall be given to the members of the Board of Directors and at least fourteen (14) days notice shall be given for such necessary amendments, additions or deletions of any provision or provisions of the constitution and rules of the Organisation.” 65.5.15. The amendments, additions or deletions are to be made (if at all) at an AGM or EGM. The notice provisions require first that 21 days’ notice be given to the members of the Board and then that at least 14 days’ notice should be given. It would make no real sense if the 14 day notice was intended to be given to the same group of people (the Board) as the 21 day notice. The strong implication is therefore that the 14 day notice is required to be given to a different group of persons. In my judgment there is no realistic candidate for that group of persons other than the general membership. 65.5.16. Looking at those matters together, I consider that as a matter of interpretation the references in the existing constitution to Annual General Meetings and to Extraordinary General Meetings are references to AGMs and EGMs of the general members. 65.6. Clause 6.01(h) provides that resolutions of the Board of Directors be forwarded to the Head Priest for his approval before they become effective. Clause 6.01(h) continues: “In the event Head Priest of the Shree Swaminarayan temple Bhuj (N N Dev) feels that the resolution is likely to create a situation in contravention of the faith and objective of Swaminarayan Faith or are not in accordance with the objectives for which the Organisation is founded, he will have the right to advice and direct such modifications he deems fit. The resolution so modified will once again be discussed and passed in the Board of Directors before the same become operative and minuted in the record books.” 65.7. The practical problem that this could give rise to is that although the Head Priest’s right to advise and direct modifications only arises in respect of resolutions which he considers are likely to create a situation in contravention of the faith and objective of Swaminarayan Faith or are not in accordance with the objectives for which the charity was founded; all resolutions have to be forwarded to him, even those which clearly would not cause a contravention of the Faith or objectives. Thus, this procedure could cause undesirable delays in dealing with many resolutions which are only concerned with simple day to day decisions in relation to the running of the Temple. 65.8. There is a similar potential problem with the requirement of clause 9.01(a) that the Head Priest’s approval is needed for the disposal of any of the charity’s “properties” and the definition of the charity’s “properties” in clause 7.01(a). That definition provides that the charity’s properties shall consist of “all immovable and movable properties”

. Thus, there may be a requirement for the Head Priest’s approval for the disposal of even the most trivial piece of equipment. 65.9. No process is specified for identifying the general membership of the charity. Sub-clause 4.01 deals with eligibility for membership in the following terms: “Any person irrespective of caste, colour or creed, who is a follower or devotee of Nar Narayan Dev Diocese at Ahmedabad or Laxmi Narayan Dev Diocese at Vadtal India and believes in the original teachings of Shree Sahajanand Swami founder of Swaminarayan sect shall be eligible to be a member of this Organisation. However, a person having allegiance to any other Diocese or institutions or temples which are not recognised by either of the Diocese at Ahmedabad and Vadtal, shall not be eligible to be a member of the Organisation.” 65.10. Sub-clause 4.02 deals with termination of membership, but the constitution does not provide how a person who is eligible to be a member actually becomes a member. 65.11. Sub-clause 7.01(c) provides, amongst other things, that audited accounts shall be read to the Annual General Meeting. However, apart from that and from the possibility that amendments to the constitution might be dealt with at an Annual General Meeting, the constitution does not specify what business (if any) is required to be dealt with at an AGM. If the clause 7.01(c) requirement that the audited accounts be “read” to the AGM is interpreted literally, no provision is made as to what a general member might do if they are not content with what they have heard.

[66]In my judgment the difficulties with the constitution explained above make it expedient in the interests of the charity and its charitable objects that a scheme should be made with a view to disposing of most if not all of those difficulties.

[67]Having reached that conclusion, it would also be expedient in the interests of the charity for a scheme to extend to a more comprehensive re-drafting of the constitution so as to make it more workable and resilient. Also to deal with various minor or drafting points which, if they had been the only difficulties with the existing constitution, might not of themselves have justified the making of a scheme. That approach is also supported by the consideration that the existing constitution itself contemplates that, with some exceptions, amendments might be made to it; thus indicating that the settlors and founders themselves intended that the provisions of the constitution might be changed in the future. I am encouraged in reaching this conclusion as to the appropriate approach by: 67.1. The fact that it coincides with Richard Snowden QC’s conclusion in his judgment 23 February 2012 as to the charity’s desperate need for a professionally drafted and workable constitution. The constitution resulting from these proceedings will be professionally drafted by counsel or solicitors in accordance with the directions given in this judgment and any subsequent judgment. 67.2. The fact that a wide ranging review of the constitution was contemplated by the terms of the Tomlin Order. The Law

[68]I have already summarised the relevant law as stated by Peter Gibson J in his judgment in Re J W Laing Trust

[1980] Ch 143

at p.153F and 154E; that is to say: taking into account all the circumstances of the charity, the court should do what is expedient in the interests of the charity, though being slow to thwart the settlor’s wishes.

[69]In my judgment the need to be “slow to thwart the settlor’s wishes” applies both to the question of whether a scheme should be made at all and to the contents of the scheme if one is to be made. However, once it becomes apparent that a scheme should be made, there is bound to be some departure from the settlor’s wishes as they were expressed in the constitutional document. Hence at that latter stage of the analysis, depending on the circumstances, it may often be appropriate to place greater weight on expediency and practicability, and less on the settlor’s wishes, at least as they were expressed in the constitutional document.

[70]In Re Royal Society’s Charitable Trusts

[1956] Ch 87

Vaisey J made a managerial scheme conflating and combining a number of special trusts and widening the trustees’ powers of investment. However, he said (at p.93 of the report) that the jurisdiction was one which “should be exercised sparingly and not indiscriminately”.

[71]In the Jersey case of Trilogy Management Ltd v YT Charitable Foundation [2014] JRC 214, Commissioner Herbert QC saw the test as mainly one of expediency (paras.133-134). He equated it with the test for the removal of a trustee (para.138), but recognised (at paras.144-147) that in both cases the wishes of the settlor were a relevant, but not a dominant factor. I respectfully agree.

[72]Mr Mills submitted that the intentions of the charity’s founders were one of the most important factors. Stated in those bald terms, I think that submission is too wide. In my judgment, in the context of the making or possible making of a managerial scheme the importance to be attached to the settlor’s intentions depends on the circumstances. At one extreme, if the particular administrative means specified by the settlor were integral to his or her design the court would be very slow to alter them. At the other extreme if the impractical provisions were plainly ancillary (an example might be an outdated power of investment), expediency would be more important than the original intentions.

[73]The words “carry into effect the wishes and intentions of the founder of the charity” used by Sir John Romilly MR in Attorney General v Dedham School (1857) 23 Beav 350 at p.355 were relied on by Mr Mills in support of his submission that the function of the court was to carry into effect the wishes and intentions of the founder of the charity. Attorney General v Dedham School was a managerial scheme case. Nevertheless in the context of the making of a managerial scheme and except in the sense that the making of a scheme enables the charity to continue and hence in broad terms enables the charitable wishes and intentions of the founder to continue to be effected, I disagree with that submission of Mr Mills to the extent that its application might involve modifying the simple test enunciated by Peter Gibson J. That is for the following reasons: 73.1. The quoted words formed part of an introductory paragraph of Sir John Romilly MR’s judgment in which he explains summarily and by reference to both pre-statutory cy-près schemes and managerial schemes the legal theory that, by a scheme, the court was giving effect to the settlor’s intentions. Charities law distinguished, and still distinguishes, between the charitable intention and the mode of executing it and, where the specified mode was impracticable, impossible, contrary to public policy or illegal, and, as a matter of construction, the charitable intention was not confined to the specified mode, the law made provision for the charitable intention to be carried into effect by another mode. Read against that background I consider that Sir John Romilly MR’s words that Mr Mills relies upon do not have the effect submitted by Mr Mills. The mode may be changed by a managerial scheme, while leaving the broad charitable intention of the settlor unchanged or very little changed. The whole of Sir John Romilly MR’s introductory paragraph reads: “The view I take of these cases is this:—What this Court looks at, in all charities, is the original intention of the founder, and, apart from any question of illegality and various other questions, this Court carries into effect the wishes and intentions of the founder of the charity; and where it sees that those intentions have not been carried into effect, it rectifies the existing administration of the charity for that purpose. If it cannot carry them into effect specifically, it carries them into effect as nearly as may be, and with as close a resemblance to them as it can.” 73.2. It is clear from Sir John Romilly MR’s judgment in the Dedham School case at p.356-357 that he was only dealing with the foundation of the scheme jurisdiction. Hence in my judgment the particular words used by him are not inconsistent with Peter Gibson J’s approach in re J W Laing Trust

[1984] Ch 143

, in which Attorney General v Dedham School was cited to him (see

[1984] Ch 143

at p.145A). 73.3. Further, Peter Gibson J’s statement of the law as to the circumstances in which a regulatory scheme might be made for a charity not only has stood unchallenged since it was made, but it was stated by Lady Arden JSC in Children’s Investment Fund Foundation v Attorney General

[2020] UKSC 33

[2022] AC 155

at para.127 (with which part of her judgment the other members of the Supreme Court agreed) to be “instructive”.

[74]A potentially more difficult question is: what “intention of the settlor” or “intention of the founder” is it which Peter Gibson J’s approach would require me to be “slow to thwart”? There are three possible issues in that regard: 74.1.(1) Is the intention of the settlor(s)/founder(s) to be ascertained by interpreting the founding document having regard to the evidence which is admissible for the purposes of interpretation or might the subjective intention of the settlor(s)/founder(s) both at the time when the charity was founded, and subsequently be relevant? 74.2.

(2) Who should be considered to be settlors or founders for these purposes? 74.3.

(3) How is the intention to be ascertained where there are several settlors/founders and they may not all have had the same intention?

[75]I discount the approach apparently permitted in one of the Australian cases which Mr Mills referred to where the Judge appears to have taken account of the evidence of a witness as to what he thought the settlor would have wanted had the settlor been alive and able to express his wishes. That approach appears to me to be far too speculative to be relevant.

[76]Mr Mills submitted that there was no restriction on the type of evidence which may be admitted in relation to the intentions of the settlors. If that submission is restricted to evidence of the settlor’s intention, I agree, though the weight (if any) to be attached to that evidence will vary with the circumstances. Insofar as that submission extends to any individual’s views as to what the settlor would have intended had he thought about the matter, I consider(i) that that is not evidence of the settlor’s intentions and

(ii) that it is not a relevant consideration for the court. In that regard I disagree with the views of Hatley JA in the Australian case of Phillips v Roberts [1975] 2 NSWLR 207, as I explain below, after first considering Peter Gibson J’s approach in Re J W Laing Trust

[1980] Ch 143

[77]In Re J W Laing Trust the settlor had, in 1922, constituted a charitable trust of 15,000 shares in his company, with the plaintiff company as trustee. The charitable trusts required, amongst other things, that the proceeds of the shares and any dividends were to be wholly distributed within the settlor’s lifetime or within 10 years of his death. The settlor died in 1978 and, by the time of the hearing before Peter Gibson J in January 1983, the capital of the trust had not been distributed. The trust’s investments had increased substantially and by 1983 were valued at £24 million. The income distribution policy had fostered Christian evangelical causes both at home and overseas which had come to depend on the charity. The greater part of the distributions had been made to individuals or bodies unsuited to receive large sums of capital, including the work of the Christian Brethren who did not accept any organisation as a governing or controlling body. The settlor had indicated before his death that he wished to withdraw the stipulation that the capital should be distributed within 10 years of his death. The scheme which Peter Gibson J ordered removed that stipulation.

[78]At p.153G Peter Gibson J referred to evidence which showed that the settlor throughout his life was a man of strong religious convictions and particularly interested, and personally involved, in the activities of the religious group known as the Christian (or Open) Brethren. At p.154E, after stating that “the court should always be slow to thwart a settlor’s wishes”, Peter Gibson J continued:

“but in this case the settlor himself, as early as 5th October 1932, indicated to the plaintiff by letter that he wished the plaintiff to be at liberty to disregard the requirement as to distribution. On 26 January 1939, the settlor wrote again to the plaintiff, referring to the capital value of his gift as then worth £30,000, and saying: “considering that the capital value is more, and in view of many Christian activities, I wish to withdraw the stipulation that the capital should be distributed within 10 years after my death”

It is clear that even then, after that comparatively modest increase in capital value in that comparatively short period of the charity’s existence, the settlor appreciated that the requirement as to distribution was inexpedient.” “considering that the capital value is more, and in view of many Christian activities, I wish to withdraw the stipulation that the capital should be distributed within 10 years after my death”

[79]Those passages of Peter Gibson J’s judgment show that the settlor’s wishes, as they may have come to be after he founded the charity, are a relevant consideration. I consider that the amount of weight which should attached to them depends on the circumstances in which a scheme is sought.

[80]In Phillips v Roberts [1975] 2 NSWLR 207: 80.1. A testatrix left the residue of her estate to her trustees on trust, in pursuance of her charitable intention to benefit generally her fellow citizens by the improvement of Biblical knowledge and instruction, to establish a Church at a certain address, and directed that the main purpose of such Church should be to further the study of the Bible. It was held that it was impractical to give effect to the trust for the establishment of the Church, but that the will exhibited a general charitable intention, so that there was no complete failure of the gift. That part of the case was not appealed. 80.2. At the request of the first-instance judge, the Attorney General and the trustees prepared draft cy-près schemes. 80.3. In the course of deciding which was the more appropriate scheme, the judge received evidence of a witness as to his opinion as to what would have been the reaction of the testatrix to the Attorney General’s scheme. Partly in reliance on that evidence, the judge rejected the Attorney General’s scheme and accepted the trustees’ scheme. 80.4. The Attorney General appealed to the New South Wales Court of Appeal. The appeal was heard by three Justices of Appeal: Hutley, Samuels and Mahoney JJA. 80.5. In his judgment at p.212D Hutley JA said: “It might be suggested that the evidence of an associate of the testatrix as to how she would have reacted to proposals for the disposition of her property of which she had never heard is not in the same position as evidence of intention; it is speculation as to how her will would operate. The distinction is a real one, but irrelevant. His Honour was trying to find out what she would want in a hypothetical position and can only do so from her associates. It is not irrelevant, and the weight was a matter for His Honour.” 80.6. At pp.212G – 213D Hutley JA held that even if the evidence was wrongly received, the first instance judge had come to the right result on the ground that the scheme which the trustees proposed and which he ordered was, as a matter of pure construction, closer to the intentions of the testatrix expressed in her will than that proposed by the Attorney General and that the judge could have come to the same result without the assistance of the challenged evidence. The challenged evidence was merely confirmatory of the result which the construction of the will would have produced. He considered that the appeal should be dismissed. 80.7. The passage of Hutley JA’s judgment at p.212D cited by me above supports Mr Mills’s submission in its widest form, as also does the paragraph which follows it in Hutley JA’s judgment where he held that the evidence in question was not properly characterised as evidence of the testatrix’s intention, because it did not fill out her expressed intention at all. What it did (said Hutley J at p.212F) was to fill in a gap in her expressed intention; it provided for what her reaction, it was believed, would have been by those in her confidence, if she were faced with the novel situations. With all due respect to Hutley JA, I do not agree that such “filling of the gap” is a permissible approach. I agree that if there was a gap in the testatrix’s intentions, no amount of evidence as to what she would or might have thought could fill that gap. Unless evidence as to what the testatrix would or might have thought was in, substance, a shorthand and unsatisfactory way of implying or inferring what her intention actually was, the so-called evidence would not really be evidence of anything other than the witness’s view as to what the testatrix would have wanted. In my judgment speculative evidence of that kind is not evidence of “the circumstances of the charity” as referred to by Peter Gibson J in Re J W Laing Trust nor, indeed, is it really evidence at all. If admitted it would open wide the doors to a flood of so-called evidence as to what witnesses thought the testatrix would have wanted. 80.8. Samuels JA at p.214C held that it was unnecessary to decide the point as to the admissibility of the evidence as to what the testatrix would have done. He dismissed the appeal on the ground that the will itself demonstrated an intention incompatible with the scheme proposed by the Attorney General. 80.9. Mahoney JA held at p.221C that the manner of application of the gift under the scheme directed by the first instance judge would not be a manner as close as possible to that directed by the testatrix, nor would it be one which would be apt to achieve the purposes that she intended should be achieved. 80.10. At p.221E Mahoney JA explained that the judge had before him a mixture of factual material, ranging from letters written by the testatrix over a substantial time, to statements made by one of the plaintiff trustees, Mr Phillips, as to her interests, and as to what “she would want” or would not want as to the manner in which the gift should be applied. 80.11. At p.221F Mahoney JA explained that the evidence was admitted without objection as to substantial portions of it. In his view some of the evidence would, had objections been pressed to it, have been inadmissible in form. He considered that the question to be determined by the Court of Appeal was to what extent the evidence, accepting it to be before the court, was to be used in determining whether the proposals made by the Attorney General should be accepted. 80.12. Mahoney JA’s analysis focussed on cy-près schemes, not on regulatory schemes. In that context he considered that it was not legitimate to choose what should happen to the gift by reference to statements made outside the will of the kind in question in the case before him. 80.13. Mahoney JA dissented from the other two JJA and held that the appeal should be allowed.

[81]In summary my views on Phillips v Roberts are that: 81.1. Only one, Hutley JA, of the three Justices of Appeal’s reasoning included a decision that the evidence as to what the witness thought that the testatrix would have done was admissible. 81.2. If it was admissible Hutley JA considered that the weight to be attributed to it was a matter for the first instance judge. 81.3. Phillips v Roberts was a case of a cy-près scheme; not a regulatory scheme and is distinguishable on that ground. 81.4. Phillips v Roberts is a decision of an overseas common law court and as such is not binding on me, though it may be useful as a guide. 81.5. Contrary to the decision of Hutley JA, evidence as to what a witness thought a settlor would have done, unless it was, in substance, a shorthand and unsatisfactory way of implying or inferring what a settlor’s intention actually was, would not be admissible in the present case as evidence of the intentions of the settlor or of a “circumstance of the charity” as referred to by Peter Gibson J in Re J W Laing Trust.

[82]As regards the question raised above of who counts as a settlor or founder for the purpose of admissibility of such secondary evidence: by reason of Peter Gibson J’s adjuration to have regard to all the circumstances, I consider that the following would count as settlors or founders: 82.1. All those who provided property or money to the charity at or around the time of its creation would be settlors. The essential meaning of a settlor is a person who settles or puts assets into a trust or foundation. 82.2. The persons who created the charity in the sense of that they were the principals who executed or on whose behalf the documents were executed which specified the trusts on which the charity’s assets were to be held. 82.3. Benefactors who donated to the charity after it was created could be called “settlors” in that they gave or settled money on the trusts of the charity. However, I consider that generally such donors’ intentions would be likely to operate so as to confirm the intentions apparent from the constitution at the times that they made their gifts. That is because they were giving to an already established charity. 82.4. Similarly, and for the same reason, the intentions of persons who have done large amounts of voluntary work for the benefit of the charity would be likely to operate so as to confirm the intentions apparent from the constitution.

[83]Even if persons in the last two categories (subsequent donors and persons doing voluntary work for the charity) were not “settlors” within the meaning of Peter Gibson J’s use of the word in Re J W Laing Trust, their donations, work and intentions could be taken into account in considering “all the circumstances”.

[84]Not all of those who were involved in arranging for the founding of the charity would necessarily be settlors or founders. The essential meaning of “settlor” is a person who puts assets into a trust or foundation. I consider that it was in this sense that Peter Gibson J used the word “settlor” in Re J W Laing Trust. The mere fact that a person was or became the first trustee of a charity would not make them a settlor or founder. Re J W Laing Trust is instructive in that regard. In that case the person who Peter Gibson J called the settlor was Sir John Laing (then Mr J. W. Laing) who was the individual who in 1922 transferred 15,000 shares in his company to Stewards’ Co Ltd as trustee to hold on a charitable trust. After the transfer, the Stewards’ Co Ltd executed a memorandum under seal addressed to Mr Laing which acknowledged receipt of the shares and specified very summarily the terms of the charitable trust. Peter Gibson J held ([1984] Ch at p.147F-H) that the charitable trust was completely constituted on 30th August 1922, the date of the memorandum. There was no suggestion that the Stewards’ company as the first trustee and the party to the memorandum was the settlor. The settlor in that case was Mr Laing.

[85]That approach is reinforced by reference to the common means of constituting a private trust by first setting up a trust with a nominal amount of money, typically £10, with the real settlor adding substantial sums of money or other assets at a later date. The £10 might or might not have been supplied by the true settlor (typically it might be provided by the true settlor’s solicitors or accountants, though one way or another the true settlor is likely to have been charged for it), but the supplier of the £10 would be merely a nominal settlor. Similarly, a charitable trust can and often is initially constituted with assets of relatively little value.

[86]On the other hand in Re J W Laing Trust, although the Stewards’ company was not a settlor, it might have been called a founder of the charity because it was its execution of the memorandum which caused the charity to come into existence.

[87]My above conclusions as to settlors or founders are subject to the very important proviso that the weight which should be given to the intentions of any settlor or founder will depend on all the circumstances. Thus, generally, the wishes of settlors or founders who made smaller and later contributions to a charity might weigh less heavily than the wishes of more substantial and earlier contributors. At one extreme a person who gives a small sum to a long established, large, national charity might be described as a “settlor”, but often such a person’s wishes would weigh nothing or only very lightly in determining what should be effected by way of a managerial scheme.

[88]I consider that the answer to the third question posed by me as to how the intentions of settlors or founders is to be ascertained where there are several settlors/founders and they may not all have had the same intention, is that that depends on all the circumstances. The court might, depending on the circumstances, be swayed by the relative numbers having different intentions or by the time or times at which those intentions came into existence.

[89]On the question of how the intentions of the settlors or founders should be determined, I consider that the primary and most important source for ascertaining those intentions is the governing document of the charity by which the original settlors or founders chose formally to specify their intentions, and on the terms of which, in the absence of evidence to the contrary, subsequent contributors to the charity can be presumed to have made their contributions. Such extrinsic evidence as to the intentions of the settlors or founders as is not admissible on any issue of interpretation of the founding document, but which is admissible in relation to the intentions which (per Peter Gibson J) the court should be “slow to thwart” is, in my judgment, generally of secondary relevance or weight. The weight to be given to such secondary evidence will also be affected by its nature. The course of the witness evidence and the hearing

[90]The Claimant made 3 statements in Gujarati and 3 statements in English which were translations of his Gujarati statements.

[91]The Claimant gave oral evidence through an interpreter on the first afternoon of the trial, starting at about 1:30 pm.

[92]The Claimant is aged 91. He speaks very little English. He cannot read English. It was apparent that he was hard of hearing.

[93]Some difficulty with language and hearing were immediately apparent to me in the course of the swearing in of the Claimant.

[94]After being sworn and confirming the truth of his statements, the Claimant was cross-examined by Mr Seal for the 5th Defendant.

[95]The Claimant’s difficulties with understanding the questions asked of him became greater as Mr Seal’s cross-examination progressed.

[96]The Claimant was asked about the views of the founders as to making amendments to the constitution. The Claimant said that when they started they wanted to do so in accordance with Lord Swaminarayan’s faith.

[97]In relation to the appointment of new trustees, the Claimant said that new trustees were meant to be nominated every 5 years with the names of the nominees being sent to Bhuj, but that had not happened.

[98]On the question of who could change the rules in the existing constitution, the Claimant said that they would come to him to give a “yes” or a “no”. They used to come to him to change the rules, but not later. The trustees would get together and say the change they would like to make and he (the Claimant) could decide. Depending on how it was interpreted, both by the interpreter and by the court, that was a surprising answer because, so far as the documentary evidence was concerned there had not been any changes made to the constitution of the charity after it was registered as a charity. The point was not explored in cross-examination or submissions, but it is possible that there was confusion between the provisions of the constitution, and rules made under the provisions of the constitution. Thus, clause 8.01(b) of the constitution provides that the Board of Directors will frame “further rules for the general administration of the Organisation”. Such rules not to be in contravention of the constitution or the rules of the Organisation or against the directive, if any of the Head Priest.

[99]The Claimant was asked whether he wanted to change the rule under which changes to the constitution had to be made by a 2/3rds vote in favour by the members and a vote in favour by the Head Priest. The Claimant said that he was not sure. They always wanted to be part of the Bhuj Temple. The Claimant said that he was not sure that two thirds of the members’ support was needed to change the rules. He said he had not seen the rules of the charity previously.

[100]The Claimant was asked whether he knew that someone on his behalf had put forward a different set of rules. The Claimant’s response was that they would have done; that he did not ask them to; that they did so on their own without a request. He said that if his signature was on a document, then what was said in the document had his consent.

[101]After a little more questioning he said that he did not know what was in the scheme and that “right now” he did not remember.

[102]Mr Seal politely pressed the Claimant on that. The Claimant’s response was that he was not educated and for 70 – 80 years had not been in education.

[103]The Claimant then began to give such surprising responses to some of Mr Seal’s questions as to throw serious doubt on whether he understood what the proceedings were about. In particular: 103.1. The Claimant said that he had never spoken to lawyers about changing the constitution. 103.2. The Claimant said he had never sat with lawyers. 103.3. The Claimant said that he and Mr Pindoria had sat down many times but this matter (changing the constitution) had not come up. 103.4. The Claimant said that for 40 years he had not known that these changes could be made. 103.5. The Claimant said that no one had ever come to ask him about changing the rules. 103.6. The Claimant said that he did not know anything about asking or wanting the Judge (me) to change the rules of the charity.

[104]As a result of those responses and the difficulty the interpreter appeared to have in explaining the questions to the Claimant in a way in which he understood, I was concerned that the Claimant was too tired for his cross-examination usefully to continue that afternoon. My concerns were reinforced when the Claimant told me that he had only arrived in England by air from India on the previous day.

[105]The Claimant expressed the wish through the interpreter “to get on with it” (his cross-examination) that afternoon.

[106]Mr Cardew drew my attention to CPR 21 and possible issues as to the Claimant’s ability to litigate.

[107]At about 2:45 pm I rose for half an hour so that the parties and their advisers; in particular the Claimant and his advisers could consider(i) what further steps in the way of reasonable adjustment could be made with a view to enabling the Claimant to give his best evidence and

(ii) possible issues of capacity to litigate. I gave the Claimant the customary warning not to discuss his evidence with anybody, but waived that requirement so as to permit the Claimant to discuss with his counsel and English solicitors the steps which might be taken by way of further reasonable adjustment with a view to enabling the Claimant to give his best evidence and for his solicitors and counsel to consider the possible issue of the Claimant’s capacity to conduct the proceedings.

[108]At about 3:15, I heard further from counsel. I then adjourned the hearing until 10:00 on the following day with a view to(i) the Claimant’s solicitors if possible obtaining an expert report as to the Claimant’s capacity;

(ii) depending on the outcome of that, possibly making an application for a litigation friend; and

(iii) considering in more detail what arrangements might be made in respect of how the Claimant gave his evidence. My warning and its exception to discussing the case were to continue, but with the exception also extending to an interpreter and an appropriate expert.

[109]At 10:00 on 12 November the hearing resumed. Earlier that morning the Claimant’s solicitors had filed(i) a letter from them to the court dated 12 November 2025;

(ii) a third witness statement made by Mr Harrison, the partner at the claimant’s solicitors with conduct of the claim and

(iii) a capacity assessment of the Claimant made by Dr Bharat Thacker. In summary: 109.1. Dr Thacker had attended the Claimant by video link for about 15 minutes the previous evening. 109.2. During the assessment it became very obvious to Dr Thacker that the Claimant was hard of hearing. It appeared that he could only really understand his dialect of Gujarati words. Any strange Gujarati words, or English, were beyond him. 109.3. Dr Thacker expressed the opinion that the Claimant did have mental capacity to understand things which he was readily aware of, but only when spoken slowly and loudly and in his dialect. 109.4. Dr Thacker’s conclusion was that the Claimant had capacity to conduct litigation relating to the constitution of the charity. 109.5. Mr Harrison’s statement dealt with his instructions by or on behalf of the Claimant in 2020, 2022 and in April 2024. Mr Harrison stated that he was not on notice of anything that would give him concerns that the Claimant lacked capacity. 109.6. Mr Harrison stated that in light of allegations made by the Defendants to the effect that the Claimant was not behind the claim and that it was being driven by Mr Pindoria, he ensured that Mr Pindoria did not attend the April 2024 meeting. Mr Harrison said that he was specifically told by the Claimant that Mr Pindoria had been consulting with the Claimant and that the Claimant had been providing his instructions. Mr Harrison stated that the Claimant specifically told him again, as I read Mr Harrison’s statement, at the April 2024 meeting, that he had re-read his earlier witness statements and that the statements were accurate. 109.7.1. Wrote that they were satisfied that the Claimant had capacity to issue the claim and sign his witness statements. 109.7.2. Were concerned that Dr Thacker’s assessment was too brief and simplistic to be reliable. 109.7.3. Wrote that they were aware of the presumption of capacity, and of the lack of any formal or informal diagnosis that could satisfy limb 2 of the test under s.2(1) Mental Capacity Act 2005. Limb 2 of s.2(1) is the requirement that the reason why a person is unable to make a decision for themselves in relation to the matter must be because of an impairment of, or a disturbance in the functioning of, the mind or brain. 109.7.4.1. The claimant be permitted to be absent from court for the day so that a more thorough in-person capacity assessment could be undertaken. 109.7.4.2. In the meantime, the defendants’ witnesses be cross-examined. 109.7.4.3. One of the Claimant’s disciples, Swami Ghanshyam Prasad Dasji (“Swami Ghanshyam”) be permitted to accompany the Claimant to any capacity assessment and interpret any questions which the assessor might have, even if the questions concern the case. 109.7.4.4. If the Claimant should be found to have capacity, an application should be filed seeking further reasonable adjustments and/or special measures. 109.7.4.5. If the Claimant should be found not to have capacity, a litigation friend should be appointed and the Claimant would not be cross-examined again.

[110]In the light of subsequent developments during the hearing I do not need to go into detail or further detail concerning the 12 November letter; Mr Harrison’s 3rd statement or Dr Thacker’s report.

[111]When the hearing resumed at 10:00 on 12 November Mr Mills made submissions to the effect of what I have summarised above from the letter of 12 November. Mr Seal submitted that it was unsatisfactory that the Claimant should be called back at a later juncture. He submitted that the questions he had asked had not been susceptible to any misunderstanding and that the Claimant should come straight back to complete his evidence after he had been assessed. Mr Cardew did not resist Mr Mills’s proposal. He submitted that the Claimant appeared to have had some difficulties with the use of the wrong dialect by the interpreter. The use of a different interpreter might further the overriding objective. Mr Mills submitted in reply that Mr Seal’s objections would be answered by my giving such weight as I considered appropriate to the Claimant’s evidence bearing in mind what would have been the process and limited cross-examination.

[112]In substance I gave effect to the proposals in the 12 November letter and in Mr Mills’s submissions and the hearing continued on 12 November in the absence of the Claimant. I also ordered under CPR 21.3(4) that in the event that it should prove that the Claimant did not have capacity to conduct the litigation, the steps taken in the litigation up to that time and to be taken on 12 November should be effective, so as to enable the trial to continue.

[113]Before cross-examination of the Defendants’ witnesses began, Mr Cardew handed up a document which, on its face, appeared to be a copy of the minutes of an Extraordinary General Meeting held on 12 June 2002. These minutes listed the trustees present, all except one of whom signed against their name. The non-signatory was Devshi D Gami. The minutes recorded apologies from Nanji R Hirani. The minutes recorded as follows:

“Amendments to the original constitution including those made on 13 December 2001 fax were discussed and approved at the meeting.”

[114]The following witnesses were then sworn and gave evidence until 12:50: 114.1. The 5th Defendant. 114.2. Mr Jadavji Halai

[115]After Mr Jadavji Halai’s evidence was complete I adjourned until 13:50. Towards the end of that adjournment I was told that the parties were negotiating and they asked for some more time. This I gave them and the hearing resumed at 14:30

[116]When the hearing resumed at 14:30 on 12 November Mr Mills informed me that subject to the approval of the Claimant himself a compromise had been reached between the Claimants’ advisers and the 6th – 12th Defendants. This was not truly a compromise, not only because at that time the Claimant himself had not agreed to it, but also because the nature of the proceedings were such that, whatever the parties might or might not agree, I would need to be satisfied that what was proposed in the way of a scheme was expedient in the interests of the charity did not involve an undue departure from the wishes of the settlors or founders.

[117]Mr Mills informed me that what had been agreed at that stage between the Claimants’ advisers and the 6th – 12th Defendants was as follows: 117.1. The Claimant’s proposed scheme was endorsed by the 6th – 12th Defendants with one amendment. 117.2. That one amendment was that rather than future amendments to the constitution (not made by the Court or the Charity Commission) only being capable of being made by a written resolution of the trustees of the charity with the prior written approval of the Board of Trustees of the Bhuj Temple, the scheme would provide for such amendments to the constitution only to be capable of being made by a vote of the ordinary members of the charity with the approval of the Bhuj Temple. 117.3. Neither of the Claimant and 6th – 12th Defendants would seek their costs from each other or from the charity.

[118]Mr Cardew told me that the 6th – 12th Defendants did not resist that. He told me that the 6th – 12th Defendants thought that it was religiously, spiritually and morally wrong to subject the Claimant to further questioning or cross-examination.

[119]Mr Seal submitted that the members alone should vote on future changes to the scheme; but that matters affecting spiritual guidance should not be subject to amendment, or at least not without the consent of the Head Priest.

[120]Mr Cardew informed me that, of the 6th to 12th Defendants’ witnesses, he would only be calling the 8th Defendant. The following witness statements had been served and filed by the 6th - 12th Defendants: 120.1. A statement of the 6th Defendant dated 23rd February 2024. 120.2. A statement of the 12th Defendant dated 23rd February 2024. 120.3. A statement of the 8th Defendant dated 23rd February 2024.

[121]The general rule under CPR 32.2(1)(a) is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public. However, CPR 32.2(2) provides that CPR 32.2(1)(a) is subject(a) to any provision to the contrary contained in the CPR or elsewhere; or

(b) to any order of the court.

[122]CPR 32.5(5) provides that if a party who has served a witness statement does not –(a) call the witness to give evidence at trial; or

(b) put the witness statement in as hearsay evidence; any other party may put the witness statement in as hearsay evidence.

[123]The statements of the 6th and 12th Defendants were not put in as hearsay evidence, or at least not separately from any reference to them which might be capable of being made pursuant to Master Clark’s orders.

[124]The position in relation to the 6th and 12th Defendants’ statements as it would have been by reference only to CPR 32.2(1)(a) and 32.5(5) is affected in the present case by reason of the proceedings being CPR Part 8 proceedings and the orders made by Master Clark on 3rd October and 25th November 2024.

[125]CPR 8.6 provides:(1) that no written evidence may be relied on at the hearing of a Part 8 Claim unless - (a) it has been served in accordance with rule 8.5; or (b) the court gives permission.

(2) The court may require or permit a party to give oral evidence at the hearing.

(3) The court may give directions requiring the attendance for cross examination of a witness who has given written evidence

[126]By her order dated 3rd October 2024 Master Clark ordered, amongst other things, that: 126.1. The parties had permission to rely on specified witness statements. The specified statements included the 6th and 12th Defendant’s statements dated 23rd February 2024 and the statement of Mr Pindoria dated 5th June 2024. The latter to be in a redacted form. 126.2. The parties had permission to call their witnesses to be cross-examined at the disposal hearing limited to a List of Issues for Cross-Examination which was to be agreed or, failing that, decided at a further case management hearing.

[127]By her order dated 25th November 2024 Master Clark ordered, amongst other things, that the parties had permission to cross-examine witnesses on the subjects in the List of Issues for Cross-Examination annexed to the order.

[128]I consider that the combined effect of CPR 8.6 and Master Clark’s orders was that a party could rely on the witness statements referred to in Master Clark’s order of 3rd October 2024, even if they chose not to or could not call a particular witness to be cross-examined. In the event none of the parties sought to rely on the statements of the 6th or 12th Defendants.

[129]At about 14:45 Mr Premji Ramji Bhudia, a witness for the 5th Defendant, was called and gave evidence.

[130]At about 15:30 Mr Seal informed me that he would not be calling Mr Naran Ganji Pindoria, a witness for the 5th Defendant, because he was “unavoidably detained in India”. His statement was not put in as hearsay evidence and in the event none of the parties sought to rely on his statement.

[131]At about 15:30 Mr Premji Patel, a witness for the 5th Defendant, was called and gave evidence.

[132]There was a short adjournment from about 15:55 to 16:00.

[133]At about 16:00 Mr Cardew asked whether the 8th Defendant, Mr Lalji Mawji Vekaria, could take with him into the witness box an annotated copy of his statement which showed the “updates” which he wished to make to it. I refused that request. The 8th Defendant, was called and gave evidence.

[134]After he had taken the oath and at the start of the 8th Defendant’s evidence Mr Cardew took the 8th Defendant to a copy of his statement made on 23 February 2024 and asked him whether there were any updates which he wished to make to that statement. The updates which the 8th Defendant said he wished to make were as follows: 134.1. To add the word “Bhuj” to his description of the Gadi under which the charity exists. 134.2. To “withdraw” paragraphs 7 - 11 of the statement. Paragraphs 7 and 8 did not contain any substantive evidence; though they did indicate that at the time the statement was made the 8th Defendant did not accept all the points in the Claimant’s 1st statement. Paragraphs 9 – 11 set out the 8th Defendant’s evidence as to who he said were the current trustees of the charity. 134.3. To “withdraw” paragraph 15(1) of the statement. This referred to a letter dated 11 November 2013 from the Claimant making various allegations against some of the trustees of the charity. 134.4. To “withdraw” paragraph 15(2) of the statement. This alleged, amongst other things, a plan by the Claimant and 4 of the trustees or former trustees of the charity to hive off the charity’s assets to a new organisation controlled by the Claimant. 134.5. To “withdraw” paragraph 15(3) of the statement. This referred to a letter dated 12 August 2017 from the Claimant, addressed to the trustees of the charity. In this letter the Claimant suggested a transfer of the properties and assets of the charity to Shree Swaminarayan Mandir Bhuj UK and other assets and activities to a new charitable company with Shree Swaminarayan Mandir Bhuj UK as its sole member. The letter stated that the Claimant and three other swamis were the members of Shree Swaminarayan Mandir Bhuj UK “so the charity is under the control of Bhuj Mandir”. 134.6. To withdraw his criticism of the Claimant contained in paragraph 15(8) of his statement. 134.7. To withdraw paragraphs 16 – 30 of his statement. In very brief summary, these paragraphs deal with the intended and actual role of the Head Priest in relation to the charity; the role of Mr Bharat Pindoria; criticisms of various parts of the Claimant’s proposed scheme; and support for the 6th – 12th Defendants’ proposed scheme. 134.8. To change paragraph 31 of his statement from being a statement that he disagrees with the 5th Defendant’s proposed scheme other than insofar as it is compatible with the 6th – 12th Defendants’ proposed scheme to a statement that he disagrees with the 5th Defendant’s proposed scheme other than insofar as it is compatible with the Claimant’s proposed scheme. 134.9. To withdraw paragraphs 33 – 35 of his statement. Paragraphs 33 – 34 criticise or disagree with various parts of the Claimant’s first statement. Paragraph 35 is a request to the court to reject the Claimant’s proposed scheme and to make the 6th – 12th Defendants’ proposed scheme.

[135]Subject to those “updates”, the 8th Defendant confirmed the truth of his statement.

[136]Much of the material in the parts of the 8th Defendant’s statement which he wished to “withdraw” merely comprised references to and commentary on documents. Under CPR 32 PD 27.2 all documents contained in bundles which have been agreed for use at a hearing are admissible at that hearing as evidence of their contents, unless(a) the court orders otherwise; or

(b) a party gives written notice of objection to the admissibility of particular documents. I did not “order otherwise” and no party gave written notice of objection to the admissibility of particular documents. Accordingly, the documents referred to by the 8th Defendant in the parts of his statement which he wished to withdraw which are contained in the trial bundle are admissible as evidence of their contents.

[137]Insofar as the material sought to be withdrawn would have constituted evidence of the 8th Defendant had he confirmed the truth of that material, the analysis was simplified by an answer the 8th Defendant gave in a question asked of him by Mr Seal in cross-examination. Under CPR 32.11 where a witness is called to give evidence at trial, he may be cross-examined on his witness statement, whether or not the statement or any part of it was referred to during the witness’s evidence in chief. In answer to a question from Mr Seal, the 8th Defendant said, in effect, that the parts withdrawn were true at the time he made the statement, but that he no longer wished to make those statements. Insofar as the parts withdrawn comprised criticisms of or disagreements with the Claimant as to matters of fact or as to the Claimant’s statements and scheme, that was understandable having regard to the agreement made between the Claimants’ advisers and the 6th – 12th Defendants on 12 November explained above. However, statements as to matters of fact which the 8th Defendant said were true statements when he made them do not cease to be true reason of his no longer wishing to make them because of his agreement with the Claimant, and are statements which, by reason of his answer to Mr Seal, are evidence of the facts so stated given by the 8th Defendant in the witness box.

[138]The cross-examination of the 8th Defendant concluded at about 16:30 on 12 November and I adjourned the hearing until 10:00 on 13 November.

[139]Shortly before midnight on 12 November the Claimant’s solicitors filed the following: 139.1. An application notice dated and issued on 12 November 2025 seeking orders that(1) the Claimant be permitted to give evidence via an intermediary, namely Swami Ghanshyam Prasad Dasji and

(2) the intermediary be permitted to give such context as he feels necessary to a question asked of the Claimant to enable the Claimant to give his best evidence. The application notice also set out evidence relied upon in support of it. 139.2. A witness statement by Swami Ghanshyam Prasad Dasji dated 11 November 2025 in support of the application. 139.3. A letter addressed to me dated 12 November (“the Second 12 November letter”). This stated, amongst other things, that Mr Seal and Mr Cardew had both confirmed that they did not intend to ask the Claimant any further questions by way of cross-examination. Accordingly, the letter suggested that I might not need to determine the application if no further questions were to be asked of the Claimant. 139.4.1. They attended the Claimant on 12 November 2025 at around 8.00 pm at the Shree Kutch Satsang Swaminarayan Temple, Kenton, Harrow. The assessment lasted about one hour. 139.4.2. The Claimant was 91 years old. He wore bilateral hearing aids and had poor visual acuity due to age related degeneration. He required Gujarati interpretation due to minimal English proficiency. 139.4.3. The Claimant was orientated in time, place and person. 139.4.4. The Claimant’s long-term memory was intact, but he had poor working memory, frailty, and short-term memory loss. 139.5. A draft order containing the relief sought on the application notice.

[140]Dr Bhavika Vagani’s and Dr Nirav Varsani’s capacity report was not ideal because neither of them appeared to have a relevant professional specialty; but I was and remain satisfied by their written capacity assessment; by the earlier report of Dr Thacker and by the evidence of Mr Harrison and of Swami Ghanshyam Prasad Dasji in his statement of 11 November 2025 that the Claimant did have capacity to conduct the litigation.

[141]Soon after 10:00 on 13 November 2025 I released the Claimant from his obligations not to discuss his evidence while he was under oath on the footing, assented to by all counsel, that there would be no further cross-examination of him, nor any re-examination.

[142]Mr Mills informed me that accordingly no order was sought on the Claimant’s application dated 12 November 2025.

[143]Mr Seal informed me that signed consents now existed for all of the trustees proposed by the 5th Defendant except for Mr Dinesh Varsani whose consent had been sent by email and except for Ms Sheila Gorsia who had not yet consented.

[144]Having regard to the fact that the 6th – 12th Defendants now agreed with or at least did not object to the Claimant’s proposed scheme and did not now propose their own rival scheme, while the 5th Defendant still did so, I directed that Mr Mills should start the oral submissions; followed by Mr Cardew; then Mr Seal; then Mr Cardew in reply; then Mr Mills in reply.

[145]Mr Mills then began his oral submissions. The main issues

[146]The main issues are: 146.1.1. To the members? 146.1.2. To the Mahant Swami or the Bhuj Temple? 146.1.3. To the directors? 146.2. Insofar as powers were given to the Mahant Swami or the Bhuj Temple, should those powers be restricted to matters of the faith and/or compliance with the terms of the constitution? 146.3. Should there be a Constitutional Committee comprising two barristers and one member of the charity with wide-ranging powers, including powers to receive, vet and determine all applications for membership; to receive, vet and determine all applications for all nominations for the Board of Directors; to call AGMs and to receive and determine any other matter of substance referred to it by any member; with all the Constitutional Committee’s determinations and decisions to be final and conclusive? 146.4. How should the voting membership be defined and ascertained?

[147]The distance between the parties was reduced by: 147.1. The changed approach of the 6th – 12th Defendants resulting in their not objecting to the Claimant’s proposed scheme and their ceasing to promote their own, as explained above. 147.2. The consequence of that changed approach that, in respect of the important question of whether the Claimant’s power under clause 6.01(h) of the existing constitution to direct modifications to resolutions of the Board of Directors before they became effective, there ceased to be an issue as to whether it should continue. That is because both the Claimant’s and the 5th Defendant’s proposed schemes provided for it to continue. Despite that I remained concerned about the practical impact of requiring all resolutions of the Board of Directors, whatever their subject matter having to be sent to Bhuj and be considered by the Mahant Swami before they became effective. I expressed those concerns in the course of argument, after which Mr Mills accepted that that concern could be dealt with as I next mention. 147.3. Mr Mills’s acceptance on the Claimant’s behalf that resolutions of the directors which were not likely to create a situation in contravention of the faith or be contrary to the objectives of the charity would not need to be sent to Bhuj. That is to say they could take effect without needing to be considered or approved by the Mahant Swami of the trustees of the Bhuj Temple. Even without this acceptance by Mr Mills, I would have decided and do decide that the scheme should so provide. That is because in this context practicality both makes it expedient in the interests of the charity and outweighs the need to be slow to thwart the wishes of the settlors or founders. Even with modern communication methods, it cannot be practical or in the interests of the charity that every management decision however secular in nature should have to be sent to Bhuj for consideration after it is made and before it becomes effective. I bear in mind in that regard that if, as I consider should be the case, subject to the exercise of a power to retire the Mahant Swami should remain ex officio a director, notice of meetings of the Board of directors, with an agenda, generally will need to be sent to him in advance of the meeting. But there is a substantial practical difference between that, when the absence of a response would not prevent a resolution from taking effect, and a requirement for a post-resolution response which might not be forthcoming for days or weeks, if at all. 147.4. Mr Mills stating that as regards the exercise of powers under the new constitution of the charity, the Claimant was neutral as between(i) the Mahant Swami and

(ii) the trustees of the Bhuj Temple. A Constitutional Committee?

[148]The concept of a Constitutional Committee was put forward by and on behalf of the 5th Defendant in his draft scheme. Ultimately Mr Seal on behalf of the 5th Defendant did not press for the inclusion of a Constitutional Committee. In his brief opening statement he said that the 5th Defendant would be in agreement with any proposal which addressed the calling of general meetings, membership and the filing of accounts. In his oral submissions after the evidence, he said that he had “rowed back” from the proposal of a Constitutional Committee. He said that it was one way of solving the problems with the constitution and compliance with it.

[149]With respect I think Mr Seal was correct to row back from the concept of a Constitutional Committee. I consider that the provision of a Constitutional Committee along the lines of that proposed in the 5th Defendant’s draft scheme would not be expedient in the interests of the charity, or at least would be considerably less expedient than the alternative of dealing with the constitutional problems in other ways, including the ways which I will direct in the course of this judgment. That is for the following reasons: 149.1. It would involve a very substantial departure from the wishes and intentions of the settlors or founders as contained in the existing constitution. 149.2. It would concentrate a large amount of power in a very small group of people. 149.3. It would add a fourth layer of management to the existing three layers of the members, the directors and the Mahant Swami. That in itself would make the administration of the charity more cumbersome and expensive. 149.4. The wide supervisory powers which it was proposed that it should have at the instance, possibly, of only one member of the charity could well stultify or at least delay the decisions of the directors and their implementation. 149.5. It was not proposed that there should be a requirement that the barristers should have any particular expertise or should be followers of the faith. As a result there would be a serious risk that the Constitutional Committee’s wide powers might be exercised in a way which was contrary to the faith.

[150]As regards future amendments to the constitution: ultimately much of the substance of this issue fell away because of(i) the Claimant’s acceptance on 12 November 2025 that the power to make future amendments to the constitution should be vested in the membership, subject to the approval of the Mahant Swami or the Bhuj Temple;

(ii) the non-objection of the 6th to 12th Defendants to that approach; and

(iii) that approach matching the 5th Defendant’s proposal. Subject to refining the drafting so as to make the position clear, this proposal reflects what in my view is the existing position and it is not expedient in the interests of the charity to change that position. More facts

[151]I read and heard a large amount of evidence. Much of it related to what the parties contended were the intentions or wishes of the settlors or the founders.

[152]The parties all put emphasis on the importance of the intentions and wishes of the settlors or founders as expressed extrinsically to the terms of the charity’s constitution. I consider that generally such evidence is at most only of secondary relevance or importance. That is because: 152.1. Firstly and most importantly the original settlors or founders chose to express their intentions formally in the terms of the existing constitution. 152.2. Secondly, persons who gave time or money to the charity after it was established gave their time and money (if they thought about the point at all) to the charity on the terms of its existing constitution. 152.3. Thirdly, in the present case there many settlors and founders. The evidence showed(i) that different settlors and founders had different intentions; in particular as to whether the Mahant Swami’s powers should extended beyond questions relating to the faith and to the compatibility of decisions or actions with the faith; and

(ii) that there must be many settlors or founders whose views were not in evidence before me. 152.4. Fourthly, insofar as there were conflicts in that extrinsic evidence I consider that the terms of the existing constitution are the best evidence of the intentions of the settlors or founders because it represents the considered and formal approach of the settlors and founders.

[153]It was common ground and is immediately apparent from the terms of the charity’s existing constitution that the charity was intended to have a close relationship with the Bhuj Temple and its Head Priest, currently the Claimant.

[154]The relevant relationships between the Swaminarayan faith and the Swaminarayan Gadis (seats of leadership or dioceses), Mandirs (temples), Acharyas (leaders or archbishops) and Mahant Swamis (Head Priests) are as follows: 154.1. The Swaminarayan Sampradaya or sect is a very traditional branch of the Hindu faith, based on the teachings of its founder Shree (Lord) Swaminarayan or Lord Shree Sahajanand Swami. 154.2. Lord Swaminarayan oversaw the construction in Gujarat of the 6 original Swaminarayan Temples at Ahmedabad, Bhuj, Dholera, Gadhada, Junagadh and Vadtal. 154.3. Lord Swaminarayan established two Gadis (dioceses) for the entire faith. The two Gadis are the Ahmedabad Gadi and the Vadtal Gadi. The Gadis are based in the original Ahmedabad and Vadtal Temples. 154.4. Each Gadi is led by an Acharya. 154.5. Every Swaminarayan temple falls within one of the two Gadis. 154.6. In his first statement the Claimant described the two Acharyas as the leaders of the faith. 154.7. Each of the 6 original Temples has a Mahant Swami (Head Priest). 154.8. Over the last 200 years about 1,000 newer Temples have been created around the world.

[155]The existing constitution of the charity shows that the Head Priest of the Bhuj Temple was intended to be involved in both the religious and in the secular aspects of the administration of the charity. The existing constitution refers to the Head Priest at the following places in respect of the following matters: 155.1.1. By reason of the fact that the Head Priest is an ex officio director and Chairman of the Board of Directors, so even without clause 3.01D he would be consulted or at least have the opportunity to be consulted. 155.1.2. By reference to clauses 3.01 (A), (B) and (C) which give powers, unconstrained by a requirement to consult,(a) (A) to establish, organise, build, run and manage Swaminarayan Temples, schools, colleges, hospitals and other religious and charitable institutions;

(b) (B) to perform or organise religious and cultural activities relating to the Shree Swaminarayan sect;

(c) (C) to publish, sell and distribute books and other things approved by the Board of Directors. 155.2. Under clause 3.01(E) no persons are to be received in the temple for the purpose of staying or preaching without a letter of authority from the head priest of Shree Swaminarayan Temple Bhuj (N N Dev) or the Acharaya of Shree Nar Narayan Dev Diocese at Ahmedabad. 155.3. Under clause 4.02(C) the membership of persons engaging in conduct detrimental to the purposes of the charity is to terminate, if so decided upon “by a resolution of the Board of Directors or the head priest”. 155.4. I have set out clause 5.01 in full above. Under that clause the Head Priest is the ex officio chairman of the Board of Directors and, with the Board, has power to change the directors. 155.5. Sub-clause 6.01(h) is a long but important clause. It provides that resolutions of the Board of Directors are to be forwarded to the Head Priest for his approval before they become effective. It then provides that in the event that the Head Priest feels that the resolution is likely to create a situation in contravention with the faith and objectives for which the Organisation is founded, he will have the right to advise and direct such modifications as he deems fit. The clause requires the resolution so modified once again to be discussed and passed by the Board of Directors before it becomes operative and is minuted in the record books. 155.6. Under clause 7.01(c) copies of the audited accounts are required to be sent to the Head Priest. 155.7. Sub-clause 8.01(a) deals with amendments to the constitution. Amendments require at least a 2/3rds majority of the members present, with the Head Priest voting in favour of the amendments. 155.8. Sub-clause 8.01(b) provides for the framing by the Board of Directors of further rules for the general administration of the charity. There is a proviso that rules may not be framed which are against the directive of the Head Priest. 155.9. Sub-clause 9.01(a) permits the Board of Directors “with the approval of the Head Priest” and the appropriate legal formalities, to dispose of properties. 155.10. Sub-clause 9.01(b) provides for the dissolution of the charity “by the casting vote of at least two thirds of the present members” at a “special meeting”. The clause then provides for discussions and suggestions to be taken into account as to the management of the charity and its assets and properties, subject to provisos or, possibly, default provisions that they shall not be passed to or belong to any member, but to the Bhuj Temple. Finally, it provides that if that is not legally possible, the Board of Directors, with the prior approval of the Head Priest, shall be entitled to give them away to any similar local, religious or charitable institution, or, if that is not possible, to be passed to any local, religious or charitable organisation.

[156]Sub-clause 6.01(h) of the constitution is a strong indication that as regards the day to day running of the charity, the Head Priest’s role was or was principally to ensure that the charity was administered in accordance with the faith and with the charity’s objectives. However, the other clauses mentioned above which give the Head Priest various powers are not expressly constrained by that approach.

[157]In his first statement the Claimant said that the majority of the newer Temples followed the faith in accordance with the teachings and traditions of one or other of the original 6 Temples. The Claimant said that the charity was established under the Bhuj Temple which, he said, meant that it followed the teachings and traditions the Bhuj Temple. He said it was “the clear intention” of everyone involved in setting up the charity that it would always closely follow the teachings and traditions of the Bhuj Temple. The Claimant was not cross-examined as to this.

[158]In a part of the 8th Defendant’s statement which he wished to withdraw, but which he said in cross-examination was true at the time he made it but no longer wished to make, the 8th Defendant did not agree that establishment under the Bhuj Temple meant that it followed the teachings and traditions of the Bhuj Temple. In that part of his statement the 8th Defendant said that: 158.1. Temples built under the Swaminarayan umbrella were not bound to follow the teachings of the original temples, but were to follow the teachings of the dioceses (gadis). 158.2. In the case of the charity and its temple at Stanmore the relevant diocese was the Nar Narayan Dev Diocese. That is the Ahmedabad Gadi. 158.3. The charity follows the teaching of the Swaminarayan faith as directed by the Nar Narayan Dev Diocese, not the Bhuj Temple.

[159]If there is a difference between following the faith in accordance with the teachings and traditions of one or other of the original 6 Temples and following the teachings of the Ahmedabad Gadi; important though that difference may be, it is not important so far as the issues before me are concerned. That is because it is not suggested that there should be any change to the objects of the charity.

[160]The Claimant said that it was as a result of the charity being established under the Bhuj Temple that the charity’s constitution expressly gave the Mahant Swami (the Head Priest) powers in relation to the charity’s trustees, preachers, members and any amendments to its constitution.

[161]In a part of the 8th Defendant’s statement which he wished to withdraw, but which he said in cross-examination was true but no longer wished to make, the 8th Defendant said that having spoken to the 6th and 12th Defendants as founding trustees of the charity, he could confirm that it was never intended that a Head Priest would have an active and hands-on role in the management of the charity, let alone any casting or veto rights/voting powers. The 8th Defendant said that that had also always been his understanding.

[162]In cross-examination by Mr Mills, the 5th Defendant said that it was not true that he told the visiting Swamis in 2002 that the Bhuj Temple would have substantial rights. Mr Mills took the 5th Defendant to a passage in an email dated 7December 2012 from Bhimji Bhudia to, amongst others, the 5th Defendant. The passage reads:

“All the founding trustees would remember that when the Charity wanted help with the construction/refurbishment of Edgware mandir and the purchase and refurbishment of Stanmore Mandir, the Trustees – namely Khimji Patel, Manji Hirani, Naran Gami [....] told the public that this Charity and this temple belongs to Bhuj, in a way that Mahant Swami of Bhuj Mandir is an Ex-officio Chairman, Trustee and has a Full Veto in this Charity.”

[163]The 5th Defendant’s response was that the veto was only for faith guidance, not for management. When Mr Mills pointed out to the 5th Defendant that in the draft constitution which he (the 5th Defendant) was proposing, the Mahant Swami would become a trustee and that it would include a provision that resolutions of the Board would have to be considered by the Mahant Swami who could modify them if he felt that they were likely to create a situation in contravention of the faith, the 5th Defendant responded to the effect that the Mahant Swami’s rights were that the Mahant Swami was there, as I understood the 5th Defendant’s evidence, in both the existing constitution and in his proposed constitution, for spiritual guidance and his role was in respect only of that. He said that the Mahant Swami had a right of veto only on religious grounds and that is what the founders intended. I think that, as a matter of interpretation of the existing constitution, that describes the Mahant Swami’s current role too narrowly.

[164]Sub-clause 6.01(h) of the existing constitution gives the Mahant Swami a right of veto in respect of directors’ resolutions not only if he feels that the resolution is likely to create a situation in contravention of the faith and objectives of the charity; but also if he feels that the resolution is not in accordance with the objectives for which the charity is founded. The objectives are the advancement of the faith. Thus, the latter ground of possible objection by the Mahant Swami under clause 6.01(h) would be on the ground that the resolution did not advance the faith. In my judgment that ground could reasonably be described as an objection on religious grounds even if the resolution objected to concerned secular matters. However, an objection to a resolution in respect of secular matters which advanced the faith indirectly by, for example, making the Temple more attractive to prospective worshippers or increasing the likely return on its investments could not be objected to by the Mahant Swami.

[165]Further, the requirements in the existing constitution that, additionally to a decision by another body (i.e. the Board of Directors or the members), a vote or decision in favour by the Mahant Swami was required could be described as giving the Mahant Swami a right of veto in respect of the matter concerned. However, the constitution does not restrict the grounds on which the Mahant Swami could decide how to vote to religious grounds. Similarly with(i) his power under clause 4.02(C) to terminate the membership of persons engaging in conduct detrimental to the purposes of the charity;

(ii) with the clause 8.01(b) power to give a directive in respect of further rules framed by the Board of Directors;

(iii) his clause 9.01(a) power to approve disposals of properties; and

(iv) his clause 9.01(b) power to approve the exercise of the default dissolution power of the giving of properties to any similar local, religious or charitable institution.

[166]As I have already said, I consider that the differences between the written and oral evidence as to the intentions of the settlors and founders as to the intended role of the Mahant Swami and the Bhuj Temple can and should be resolved by reference to the terms of the existing constitution. Resolution of the differences in the evidence in that way does not mean that the relevant provisions of the existing constitution should remain unchanged. It may be expedient in the interests of the charity to change them and considerations of practicability may, in relation at least to some provisions, carry more weight than the need to be slow to thwart the settlors’ or founders’ intentions.

[167]In his first statement the Claimant referred to an occasion in 2021 when one of the trustees proposed that the charity’s constitution should be amended to remove all references to the Bhuj Temple. In practice, said the Claimant in his first statement, this would have allowed the charity to stop following the faith as practised by the Bhuj Temple. As one of the senior guardians of the faith, the Claimant objected to that. “Therefore”, said the Claimant, he instructed counsel to draft a scheme to amend the charity’s constitution.

[168]In his first statement the Claimant said that he feared that if the authority of the Bhuj Temple was lost, the trustees or members of the charity could move it in a new religious direction. He said that he believed that the role of a Mahant Swami in one of the original six temples was to practise and maintain their faith and traditions so that they could be passed on to future generations as they have been for the last 200 years. He said that in order to achieve that, it was common for the original six temples to have constitutional oversight over the newer and smaller temples. The Claimant referred by way of example to the constitutions of temples in Willesden and Oldham.

[169]In his first statement the Claimant said that it was “the clear intention” of everyone involved in setting up the charity that it would always follow the teachings and traditions of the Bhuj Temple. However, that intention is not reflected in the objects clause of the charity.

[170]The objects of the charity as specified in clause 2.01 of the existing constitution are to advance the faith in accordance with the teachings and principles of the Shree Swaminarayan sect, with no express reference in the objects clause to that faith as practiced by the Bhuj Temple. That the objects of the charity are not limited to the advancement of the faith in accordance with the traditions and practice of the Bhuj Temple is supported by the fact that the membership provisions extend to all those who are followers or devotees of Nar Narayan Dev Diocese at Ahmedabad or Laxmi Narayan Dev Diocese at Vadtal.

[171]The objects clause for the Willesden Temple referred to by the Claimant, like that of the charity, makes no express reference to the Swaminarayan faith as practised by the Bhuj Temple. By way of contrast, the part of the objects clause of the Oldham Temple which deals with the advancement of the faith provides for the advancement of the Hindu faith based upon the original teachings of Lord Shree Swaminarayan “as propounded by the Nar-Narayan Dev Gadi”.

[172]The Claimant himself was not the Mahant Swami (Head Priest) of the Bhuj Temple at or around the time of the founding of the charity in 2002. From 1998 to 2006 the Claimant was the Deputy Mahant Swami. It follows that having regard to my above conclusions as to who could be a settlor or founder, that the Claimant was not a settlor or founder of the charity. He does not say that he was. However, as a person who was involved in the creation of the charity he might give evidence as to the intentions of the settlors or founders.

[173]In his first statement the Claimant said that the founders of the charity were 7 individuals who previously had been involved in charity called the International Swaminarayan Satsang Organisation (“ISSO”) which was an English registered charity which ran several temples in England. The chairman of ISSO’s board of trustees was the Acharya for the Ahmedabad Gadi.

[174]The 7 individuals who the Claimant considered to have been the founders of the charity were: 174.1. Jadavji Hirani (the 3rd Defendant). 174.2. Khimji Patel (the 12th Defendant). 174.3. Naran Gami (the 5th Defendant). 174.4. Hari Halai (the 2nd Defendant). 174.5. Manji Hirani (the 4th Defendant). 174.6. Devshi Gami (the 6th Defendant). 174.7. Bhimji Patel (deceased).

[175]In his first statement the Claimant said that those 7 individuals approached him in early 2002 when he was in England with the previous Mahant Swami. The Claimant said they told him that they were frustrated by the direction of the ISSO. He said they asked for his blessing to build a new temple in Edgware which was directly aligned with the Bhuj Mandir and would not be independent of the Bhuj Mandir.

[176]In his first statement, the 5th Defendant, Naran Gami, did not include Bhimji Patel as one of the founding directors, but otherwise his list of the founding directors of the charity was the same as the Claimant’s.

[177]A chronology by reference to the more important documents is as follows 177.1. 14 September 2001: minutes of a meeting of the trustees recorded that a bank account had been opened and that an application had been posted to the Charity Commission on 12 September 2001. 177.2. 12 October 2001: Minutes of a meeting of trustees record that a letter dated 5 October 2001 from the Charity Commission was read and Khimji Patel confirmed that over £1,000 had been deposited in the bank account. 177.3. 29 October 2001: minutes of a meeting of trustees record that a draft constitution would be ready by 11 November 2001. 177.4. A letter dated 8 November 2001 from Mrs Young of the Charity Commission Registration Department to M Hirani headed “Shree Swaminarayan Satasang (the charity)” refers to a fax dated 18 October. In this letter Mrs Young asked a number of questions. She then referred to a “submitted governing document of the charity”. She wrote that the governing document submitted contained elements of both a constitution and a declaration of trust. She wrote that the two types of governing document were suitable for different types of organisation. Therefore she asked the trustees to consider the contents of the Charity Commission booklet CC11 – Choosing and preparing a governing document. She wrote that in respect of the charity it appeared that the Head Priest of the Shree Swaminarayan Temple Bhuj (NN Dev) India had a controlling interest in the work of the charity. She asked Mr Hirani to supply full details of the Head Priest’s relationship with the charity, indicating why it was considered necessary for him to have the power to alter decisions previously voted upon by the members and remaining trustees. 177.5. The form of constitution which Mrs Young referred to in her letter of 8 November 2001 was not before me; but a response dated 8 November 20001 was. 177.6. The response dated 11 November 2001 is signed by 11 or 12 of the trustees (the photocopy is of poor quality and it is not possible to be sure of the number). 177.7. The third paragraph of the response dated 11 November 2001 states:

“We write to confirm that whoever believes in the teachings of Shree Sahajanan Swami (founder of Swaminarayan Sect) is eligible to become a member. 1. General members Congregation member) 2. Committee Member (Advisory) 3. Permanent Member (Director / Trustee).” 177.8. In its 6th paragraph the response states: “We further write to confirm that the Head Priest as Shree Swaminarayan Temple Bhuj (N.N. Dev) has the controlling interest in the work of the charity as he is our spiritual leader and therefore manages and controls hundreds of Swaminarayan Temples and Charitable Organisations worldwide. We therefore agree for him to have the power to alter the decisions regarding faith and objectives of Organisation previously voted upon by the trustees.” 177.9. The 8th paragraph of the response states: “[...] However, if the need arises, we have the flexibility to increase the number of seats. This will be done by the Head Priest of Shree Swaminarayan Temple Bhuj (N.N. Dev) and the Board of Directors (Trustees). 177.10. The response concludes by stating that Bhimji Patel would write to confirm what was said in the response and to clarify any other issues which the Commission might have. 177.11. 12 November 2001: a letter from Bhimji Patel to Mrs Young of the Charity Commission. This states, amongst other things: “We consider the charity to be under (affiliated to) Shree Swaminarayan Temple Bhuj (NN Dev), and being the Head Priest of the Shree Swaminarayan Temple Bhuj (NN Dev) he is our spiritual leader and therefore has power to alter any such decisions that are likely to create a situation in contravention with the faith and objective of the Swaminarayan faith (Sect) to maintain the regularity of the organisation.” 177.12.1. Repeats Mrs Young’s comments about the importance of distinguishing between a constitution and a declaration of trust. 177.12.2. States: “I understand that the Head Priest of the Shree Swaminarayan Temple Bhuj (NN Dev) plays an important role in the charity. However, under English Charitable Law it is important that it is the trustees who have control of the charity. Therefore, the charity should bear in mind that if registered as a charity, the Head Priest of Shree Swaminarayan Temple Bhuj (NN Dev) could only have powers equal to the other trustees. The trustees may therefore consider that registering as a charity would not be an appropriate way for the charity to proceed. In my opinion the trustees of the charity have a great deal to consider before registration could be awarded to the charity. Therefore, for the time being, I will be closing your application. We have not fully considered your application and so have not reached a conclusion as to whether the charity is charitable. [...]” 177.13.1. The distinction they make between a trust and a constitution is, I think intended to be the distinction between an institution which is controlled and managed by trustees who appoint and remove themselves; and an institution with both trustees and a membership under which the membership has various powers. There is no bright line distinction between the two. The assets of an unincorporated association in which many rights are vested in the membership will still have its assets held on trust. An institution with a constitution more akin to that of a private trust may still give powers to third parties; typically powers to appoint and remove trustees and requirements for their consent to particular actions. 177.13.2.1. S.353(1) Charities Act 2011 provides that “trusts” for the purposes of the Act, and unless the context otherwise requires, means: “(a) in relation to a charity, means the provisions establishing it as a charity and regulating its purposes and administration, whether those provisions take effect by way of trust or not, and (b) in relation to other institutions has a corresponding meaning.” 177.13.2.2. S.177 Charities Act 2011 provides: “In this Act, except in so far as the context otherwise requires, “charity trustees” means the persons having the general control and management of the administration of a charity.” 177.13.3. Thus, the persons who are charity trustees are ascertained by determining who has the general control and management of the charity. Nevertheless, when it comes to drafting the governing document for a charity, Mr Bird’s point, as so interpreted, has some force because it is important to be clear who is intended to have the general control and management of a charity or of particular parts of its activities or decisions. 177.13.4. I disagree with Mr Bird’s statement that, if registered, the Head Priest could only have powers equal to the other trustees. There is no legal reason why there should not be various tiers of governance and authority in a charity. From a practical point of view having an over-complicated governance structure may cause difficulties with the efficient or proper management of charity. From a practical point of view vesting great power in one individual is generally undesirable because of the attendant risks of deliberate or accidental misuse of the power and because of the difficulties which can arise in appointing a successor and with what should happen during the any period when there is no individual in existence holding the relevant office. 177.14. 12 June 2002: minutes of a meeting recorded as an Extraordinary General meeting record the presence of 10 trustees. Apologies for absence were recorded in respect of Nanji R Hirani. They record that amendments to the original constitution “including those made on 13th December 2001 fax” were discussed and approved at the meeting. 177.15. 28 June 2002: registration of the charity as a charity. 177.16. 14 May 2004: letter from the then Head Priest of the Bhuj Temple to the charity blessing the charity’s proposed purchase of the site of the Stanmore Temple for £4,200,000 with a loan from the Royal Bank of Scotland of £3,200,000. 177.17. 13 August 2004: minutes expressed to be of a meeting of a “Committee” record that it was agreed to hold an AGM on 9 October 2004. Although termed a meeting of the Committee, from the number and identities of the individuals attending it, it looks more like a meeting of the directors. 177.18. 18 May 2007: minutes of a meeting of the Board of Directors record the reading out of a letter from the Mahant Swami which was “acted on”. 177.19. 25 September 2007: minutes of a directors’ meeting. They record 11 directors, including the Mahant Swami, as being present. Also 4 “Advisors”

. These minutes recorded that new directors had been appointed. Also 2 advisors to the directors and 19 committee members. 177.20. December 2010: Part 8 claim was issued which led to Richard Snowden QC’s judgment and the Tomlin Order. 177.21.1. All the persons declared trustees at the end of the meeting of 25 September 2007 were the lawful trustees of the charity. 177.21.2. The Mahant Swami should be the Chairman and trustee of the Board of Directors. 177.21.3. All publications of the charity must incorporate the following words: “Shree Swaminarayan Satsang (Under Shree Narnarayan Dev, Bhuj)” 177.21.4. No changes should be made to the constitution of the charity. If an amendment was found necessary, then it could only be carried out with the prior written approval of the Mahant Swami. 177.21.5. No amendment could be made to clause 8.01 (Dissolution) without the prior written approval of the Mahant Swami. 177.21.6. For the avoidance of doubt, under clause 8.01 (Dissolution) all assets of the charity should pursuant to clause 09.01 (Dissolution) be transferred to Shree Swaminarayan Mandir Bhuj. 177.22. 23 February 2012: Richard Snowden QC’s judgment. His conclusions were: “89. In conclusion I find that the Meeting held on 4 February 2012 was not validly convened as an Annual General Meeting or an Extraordinary General Meeting of the Organisation. It also follows that the resolutions purporting to amend the Constitution, to replace the Board and to appoint the Interim Management Committee were not validly passed. The events of 4 February 2012 therefore do not provide a legal basis for the trial of the Part 8 Claim to be adjourned.

[90]Although that is the legal position, I am very conscious of a number of more practical points which may be relevant to the future conduct of the Part 8 Claim.

[91]The first is that if the accounts which I have been given of the events at the Meeting on 4 February 2012 are broadly accurate, there is a considerable wave of popular support among the Members of the Organisation to make a clean start by amending the Constitution and replacing the existing Board of Directors.

[92]The second point is that, as is apparent from my judgment, I think that there is a proper procedure which can be adopted under the Constitution by those who would wish to see a general meeting convened for such a purpose. I say nothing about whether the Board, having regard to their contractual and/or fiduciary duties, would be obliged to respond positively to a request for such a meeting, but it is at least possible that someone may choose to put that process in motion.

[93]The third point is that it is obvious that what this Organisation desperately needs is a professionally drafted and workable constitution. I note that if this cannot be adopted consensually at a general meeting, the Part 8 Claim already contains a prayer for a scheme to this effect.

[94]The fourth point is that this is a case which cries out for some form of consensual settlement of the disputes which are currently plaguing the Organisation. Without in any way commenting on the merits of the issues raised in the Part 8 Claim or how the parties have reached the current position, I simply cannot see how it can be in the best interests of the wider faith community for this litigation to continue. [Mr Snowden then cited a passage from Davis J’s judgment in Southampton City Council v Southampton Medina Mosque Trust Limited

[2010] EWHC 2376 (Ch)

].” 177.23. 15 October 2012: Richard Snowden QC’s Tomlin Order made. 177.24. 7 December 2012: email from Bhimji Patel to persons who were or may have been the then trustees of the charity. In this email Bhimji Patel wrote, amongst other things (typos in the original): “The founding Trustees stipulated to the charity commission and further put in the constitution the open membership available to the charity. At the time of the registration of the Charity, the charity commission agreed with the membership provision within the constitution. This was signed by the founding trustees of the charity. This cannot be amended now without permission of members as per the constitution. All of the founding Trustees would remember that when the Charity wanted help with the construction/refurbishment of Edgware mandir and the purchase and refurbishment of Stanmore Mandir, the Trustees - namely Khimji Patel, Manji Hirani, Naran Gami, myself and Mahant swami together with Jadavji Nanji Halai (Hari Halai's Father) told the public that this Charity and this temple belongs to Bhuj, in a way thet Mahant swami of Bhuj Mandir is an Ex-officio Chairman, Trustee and has a Full Veto in this Charity. We furthermore told the public that this is their charity and that they are all members of this charity. Whoever does seva byway of Tan, Man and Dhan is a member of this Charity. Khimji Patel, Manji Hirani and Jadavji Halai out of all should very well be able to remeber this as Khimji Patel and Manji Hirani together with the Mahant swami and other saints from Bhuj Temple were the ones announcing in the Microphone to the Public / members in our other Swaminrayan Temples (remember?) As a founding Trustee myself and others said to the congregation members of people to be encouraged to diversify members of the charity and as we have a open membership ( similar to ISSO, Willesden Mandir and Harrow Mandir) we did not have a special application form but merely asked those in the congregation to be a member of the charity and we showed numerous members the constitution which showed that members who believe in preaching of swaminarayan bhagwan are entitled to membership. We therefore set up a database of members obtained from members who attend the temple including those who came from various utsavs which we use to invite members to our temple especially on main festivals which has enabled the charity to raise funds to buy and run the mandir at Edgware and Stanmore as well as inviting members to attend an AGM arranged by the Trust Board whilst at Edgware mandir.” 177.25. 11 December 2013: letter from the Mahant Swami to the trustees and/or some former trustees of the charity. Amongst other things, this letter states that at the time of the establishment of the charity they were told that the Mahant Swami would be a trustee and would have a full power of veto. Also, that if there were disputes among the trustees or they carried out inappropriate actions, because the members had not been given any powers, the Mahant Swami would have the right to interfere in the matter with full power and veto. 177.26. 12 July 2017: meeting between Bates Wells Braithwaite (“BWB”), Mitesh Patel, Hari Halai and three Swamis. 177.27.1. Referred to the last few years having been difficult for everyone and the fact that the governance issues had not been resolved. 177.27.2. Stated that he had spoken to the Bhuj Mandir trustees and leading swamis with a view to coming to a permanent and final solution to the difficulties regarding the future of the Stanmore Mandir. 177.27.3. Stated that he had concluded that the best approach was for “the already existing charity of Bhuj Mandir in the United Kingdom to take on the responsibility of running the Stanmore Mandir.” 177.27.4. Stated that he and three other Swamis were [the] members of Shree Swaminarayan Mandir Bhuj UK “and so the charity is under the control of Bhuj Mandir. The company is a company limited by guarantee (company number: 10120963) and had charitable status (charity number 1171929). 177.27.5. Wrote in the letter’s ante-penultimate paragraph: “I hope you will agree to my suggestion as set out in this letter to transfer all properties and assets to Shree Swaminarayan Mandir Bhuj UK and other assets and activities of the Temple to a new charitable company, with Shree Swaminarayan Mandir Bhuj UK as the sole member. We have received advice on the steps that need to be taken to achieve the transfer, which we can discuss with you, and I expect that you will need legal support to ensure that the appropriate procedure is followed.” 177.28.1. Said that they had acted for some of the trustees of the charity in and after the High Court proceedings. These were the proceedings which had ended with the Tomlin order. 177.28.2. Said that subsequently BWB was introduced to Shree Swaminrarayan Mandir Bhuj (charity number 1171929) “SSMB” and advised it in relation to its registration with the Charity Commission. 177.28.3. Said that in July 2017 they were invited to a meeting with representatives of SSMB in order to discuss the possibility that the charity might transfer its assets to an alternative structure. 177.28.4. Said that that meeting took place on 12 July 2017 and enclosed a copy of their note of that meeting. 177.29. 4 November 2017: minutes of a directors’ meeting. These record that there was a discussion about the Tomlin Order and how to implement it. They also record that BWB letters were discussed regarding SSMB (UK) and that the Board would think about that. 177.30. 2 February 2018: letters from Hari Halai, Daveen Bhudia, Mitesh Patel and Parbat Varsani stating that they were willing to offer their resignations as trustees on terms that the trustees accepted that in full and final settlement of any and all claims the charity and others might have against them. 177.31. 6 July 2018: letter from Jadavji Hirani to the trustees. Jadavji Hirani confirms that he is resigning as a trustee and vice-secretary with immediate effect due to his health. 177.32.1. Devshibhai (Devshi Gami) “agreed to resign and has resigned”. 177.32.2. Khimjibhai (Khimji Patel) “agreed to resign and has resigned”. 177.32.3. Naranbhai (Naran Gami) agreed to comply with clause 5.01(c), him being the third oldest director. 177.32.4. Those three left the meeting and the remaining Board of Trustees (which must have comprised only Bhimji Patel and Lalji Vekjaria) decided on their re-appointment. 177.32.5. They decided to re-appoint Devshi Gami and Khinji Patel; but not Naran Gami. 177.33. 4 September 2020: minutes of a purported AGM. This was a meeting only of the directors. The meeting purported to be pursuant to the terms of the Tomlin order and to resolve on various changes to the constitution. 177.34.1. The Head Priest had only attended two trustee meetings, one in 2007 and one in 2009. These led to the High Court litigation which ended in 2012. 177.34.2. Since 2012 there had been no further involvement of the Head Priest and the charity had been progressing well, managed by the Board of Trustees. 177.34.3. That on 12 August [2020] all eleven trustees received a letter from the Head Priest demanding that they resign and had over the entire the charity Charity assets to SSMB. Shree Swaminarayan Mandir Bhuj Limited (SSMB Ltd) was a company limited by guarantee of £100 by Shree Swaminarayan Mandir Bhuj India. 177.34.4. That that was an attempted takeover of the charity and transfer of its assets worth over £15m by the Head Priest. 177.34.5. As a result of the attempted takeover, four trustees involved in the matter resigned from the charity’s Board of Directors. Importance of connection with the Bhuj Temple

[178]It was common ground that there should remain a strong connection with the Bhuj Temple. The real issue was: how strong or in what ways?

[179]The Claimant’s evidence was to the effect that the very strong connection with the Bhuj Temple gave the members confidence in the charity and its administration and inspired them to give their time and money to the charity.

[180]Under cross-examination by Mr Mills, Jadavi Halai agreed that he joined the temple because of its close association with the Bhuj Temple.

[181]Premji Bhudia was an original trustee. He said in cross-examination that the Head Priest was there to control religious guidance.

[182]In cross-examination Premji Patel said that he did not make his donations to the charity because of the connection to the Bhuj Temple. Premji Patel’s donations were substantial (see below).

[183]I find that the position was simply that some donors were motivated to give by reason of the close connection with the Bhuj Temple; others less so or, as in the case of Premji Patel, not at all. Contributions by and involvement of members

[184]In his second statement the 5th Defendant says that when the Edgware property was bought in 2002, both ordinary members and members who became members of the Board of Directors made contributions amounting to approximately £300,000 by way of interest free loans and gifts. Approximately £250,000 was raised by way of bank loan. The 5th Defendant was not able to contribute money but he contributed long hours performing carpentry and general building work. He took time off work for about 2 months without pay. As a result he lost earnings of about £4,000 at that time. After the property was bought for the Stanmore Temple he worked at the Stanmore Temple full-time without pay for a year to convert it into a Temple. He put his loss of earnings for that year at £30,000.

[185]In his statement Jadavi Halai said that he was a founding member of the charity. He found the building for the charity’s first temple in Edgware. It was a derelict church. He found the building; negotiated the price and with other members, organised the funding for its purchase. The members funded the purchase and refurbishing cost of approximately £500,000. He was fully involved in running the temple, but did not become a trustee. He attended all or most of the early meetings, some of which were held in his house.

[186]In about 2005 the charity moved to Stanmore. In his statement Jadavi Halai said that it was he who looked for and found the new land and building, which was a leisure centre. He negotiated the price and, working with other members, organised the bank loan to fund the purchase. From 2013 to 2017 he and his wife were in charge of the kitchen department full-time, apart from a short break assisted by other members. With other members he was the organiser of Rath Yatra event in 2015 and in setting up the new Vaishnav takeaway restaurant which provided an annual income of about £100,000 for the charity. He opposed the Claimant’s scheme because it deprived the members of any say in the running of the temple.

[187]In his statement Premji Bhudia said that he contributed £50,000 towards the Edgware Temple as an interest free loan which has since been paid back. He said he contributed £15,000 as a gift for the purchase of the god idols for the Edgware Temple. He contributed £6,000 as a donation on the occasion of the opening ceremony for the Stanmore Temple.

[188]Premji Patel said that since 2002 his substantial donations or interest-free loans to the charity were as follows: 188.1. Interest free loan: £200,000. 188.2. Donation on 10th anniversary of the Temple and other gifts: £20,000. 188.3. Gold and Silver donations to the Idols: approximately £63,000. 188.4. Donation towards Idols for the ladies’ side at Stanmore: £5,000.

[189]From the balance sheet figure of £10,077,574 for the year ended 31st March 2024 it is clear that over the years there must have been substantial gifts and work done by others. Concerns as to possibilities of assets being hived off

[190]If too much power is vested in any one person or group, unconstrained by a requirement for the consent of another person or group, there is a risk that the charity’s assets could be removed from it or be made applicable at the discretion of a single person or group. Mr Mills criticised the 5th Defendant and his counsel, Mr Seal, for being concerned about this possibility. Mr Mills submitted in effect that to have regard to it would involve approaching the issues on the basis that the power holders were going to misbehave in some way or another and that that was an unduly pessimistic approach. I do not agree with those submissions of Mr Mills. An unchecked concentration of power in one individual or group can lead not only to the possibility of the deliberate abuse of power, but also may result in the charity and its purposes not being fulfilled because of a genuine belief that a particular action would be beneficial, albeit that on analysis it might not be for the benefit of the charity or its charitable objects. There are two examples from the past history of this charity where a person or group of persons proposed changes which would or might not have been for the benefit of the charity or for the advancement of its charitable objects.

[191]I have already referred to the Claimant’s concern that a proposal in 2021 that the charity’s constitution should be amended to remove all references to the Bhuj Temple would have allowed the charity to stop following the faith as practised by the Bhuj Temple. For the reasons I have explained above, stopping the charity from following the faith practised by the Bhuj Temple might not have been contrary to the objectives of the charity because the relevant faith was not defined by reference to the teachings and practice of the Bhuj Temple; but even if it was not contrary to the objectives of the charity to make such a change, amendments to the constitution removing all references to the Bhuj Temple would(i) very possibly have altered the implications or inferences which could be drawn about the faith from the terms of the constitution and

(ii) would have involved a major departure from the intentions of the settlors and founders to establish an English charity with a Temple in England.

[192]The second example is the Claimant’s proposal put forward by him, his solicitors and a minority of the then trustees in 2017 that the charity’s assets should be transferred to another charity, ultimately controlled by the Claimant.

[193]On 12 August 2017 a letter from the Mahant Swami was sent to the trustees of the charity. In this letter the Mahant Swami, amongst other things: 193.1. Referred to the last few years having been difficult for everyone and the fact that the governance issues had not been resolved. 193.2. Stated that he had spoken to the Bhuj Mandir trustees and leading swamis with a view to coming to a permanent and final solution to the difficulties regarding the future of the Stanmore Mandir. 193.3. Stated that he had concluded that the best approach was for “the already existing charity of Bhuj Mandir in the United Kingdom to take on the responsibility of running the Stanmore Mandir”. 193.4. Stated that he and three other Swamis were [the] members of Shree Swaminarayan Mandir Bhuj UK “and so the charity is under the control of Bhuj Mandir”. 193.5. Stated that the company was a company limited by guarantee (company number: 10120963) and had charitable status (charity number 1171929). 193.6. Wrote in the letter’s ante-penultimate paragraph:

“I hope you will agree to my suggestion as set out in this letter to transfer all properties and assets to Shree Swaminarayan Mandir Bhuj UK and other assets and activities of the Temple to a new charitable company, with Shree Swaminarayan Mandir Bhuj UK as the sole member. We have received advice on the steps that need to be taken to achieve the transfer, which we can discuss with you, and I expect that you will need legal support to ensure that the appropriate procedure is followed.”

[194]The registered name of company number 10120963, the charitable company there referred to as Shree Swaminarayan Mandir Bhuj UK, is Shree Swaminarayan Mandir Bhuj. I refer to it as SSMB (UK).

[195]In his first statement the Claimant said that in 2016 he suggested that the charity could be merged into the Bhuj Temple’s new charity, SSMB (UK). He said that unfortunately, even though SSMB (UK) was a successful charity, not all of the trustees agreed with the proposal.

[196]In his statement dated 12 October 2023, the 5th Defendant said that in 2017 Daveen Bhudia (D1), Hari Halai (D2), Mitesh Patel (D13) and Parbat Varsani (D14) who at that time were trustees of the charity expressed support for the transfer of the charity’s assets to SSMB(UK), controlled by the Claimant. He said that that was opposed by the majority of the Board of Directors and that the 4 who supported the transfer of the charity’s assets resigned. As a matter of fact it is unclear whether they resigned. Hari Halai, Daveen Bhudia, Mitesh Patel and Parbat Varsani, by letters dated 2 February 2018 addressed to the trustees, stated that they were willing to offer their resignations as trustees on terms that the trustees accepted that in full and final settlement of any and all claims the charity and others might have against them. I was not taken to any evidence that those conditional offers to resign were accepted.

[197]In his statement dated December 2023 the Claimant said that it was incorrect to say that SSMB (UK) was a charity controlled by him. He said it had an independent board of directors who were indirectly appointed by the Bhuj Mandir.

[198]In his statement dated 30 April 2024 the Claimant said that: 198.1. The Indian charity which ran the Bhuj Temple in Gujarat was called the Shree Swaminarayan Mandir, Bhuj – Kutch (“SSMB India”). 198.2. The Mahant Swami appointed the other trustees of the Bhuj Temple. 198.3. He did not want to transfer the charity’s assets to any other organisation. 198.4. He only wanted the charity to flourish in accordance with the religious teachings of the Bhuj Temple. 198.5. SSMB (UK) was originally created to purchase land and to agree contracts to develop a religious school. The current directors of SSMB (UK) were trustees from the Swaminarayan Temples in Bolton, Cardiff, East London, Oldham, Willesden and Woolwich. It was still trying to find a location on which to build a school, but “for now” operated as a religious education charity. 198.6. If SSMB India legally controlled a company abroad, it could be taxed in India on the assets of that company. 198.7. In 2021 “we” (which I take to mean SSMB India) were able to incorporate a company in Delaware USA called Shree Swaminarayan Mandir Bhuj Inc. (“SSMB Delaware”) without any shareholders. 198.8. The trustees of SSMB India can appoint and remove the directors of SSMB India. 198.9. SSMB Delaware is now the sole subscriber and member of SSMB (UK). 198.10. “Now” (i.e. as at 30 April 2024) SSMB India could exercise control over SSMB Delaware which, in turn, could exercise control over SSMB (UK).

[199]In 2017 when the Claimant wrote his letter asking the trustees of the charity to transfer the charities assets to SSMB (UK), SSMB (UK) was, on the Claimant’s evidence, controlled by him. Whatever the Claimant’s motives were in requesting the transfer, the very fact that he felt that he could make the request shows that without some checks, an attempt to transfer assets away from the charity is a real possibility. SSMB India’s Trust Deed

[200]A copy of a notarised translation into English of a certified copy of the Trust Deed of SSMB India was exhibited by the Claimant to his statement dated 30 April 2024. The Trust Deed is dated 6 September 2005. Its provisions are instructive, not only on the question of the Mahant Swami’s powers in respect of the appointment of SSMB India’s trustees, but also more widely in relation to the submissions as to the constitutional provisions of other Swaminarayan Temples in the UK which showed one way or another particular provisions which matched those which the party referring to them said should or should not be included in the scheme for the charity.

[201]SSMB India’s Trust Deed provides, amongst other things: 201.1. For wide objects, including “Religious Field”; “Educational Field”; “Medical Field”; “Rural Development Field”; and “Other”. The “Other” class of objects is itself very wide. 201.2. For a Board of Trustees comprising(1) the Mahant Swami and a maximum of 11 members; plus

(2) Chief Kothari and a maximum of 15 members. 201.3. Nomination/appointment of the Mahant Swami and Chief Kothari to be conducted “by Hari Bhakt and disciples of the Religious sect and they are firm to the religion of Kutch district, and by their majority opinion, they are elected in General meeting.” 201.4. “Nomination/appointment of other trustees apart from Shri Mahant Swami, Chief Kothari will be conducted by disciples, Hari Bakht and Sant of Bhuj Mandir & Brahmchari as per pre religious sect of the trust.” 201.5. Tenure of the Mahant Swami for life and except for him, a five year period for all trustees. 201.6. The Mahant Swami to preside over General body meetings and Board of trustees meetings and to manage all such meetings. There is a separate provision for the Trustees to appoint one managing trustee to preside over Board of trustee meetings. It is unclear how these two provisions interrelate. 201.7. The Mahant Swami to look after all the activities of the trust to guide the trustees, members and workers of the trust. 201.8. For a “Vice Mahant” to be nominated from the board of trustees for a period of five years. The Vice Mahant to act as Mahant in the absence of the Mahant Swami and to work as per direction given by the Mahant Swami. 201.9. In its section 7, for a “Membership”. The provisions as to membership include the following: “1. Any person having full faith and trust on objects, aims and activities of this trust of 21 years of age and who has taken Kanthi from Bhuj Swaminarayan Mandir Mahant or sacrifice of Swaminarayan Bhagvan, shall be qualify for member of the trust.

[2]To admit any person as member or not, will depend upon the decision of the board of trustee. No reason will be disclose for rejection of membership.

[3]Sants of Mandir, Brahmchari and Sankhya Yogi sisters will be considered as members of the trust. [...]

[5]All members can take part in General Body meeting and participate in discussion.” [...] 201.10. Nomination of trustees by the Membership at meetings of the General Body. 201.11. Giving of “necessary direction & guidance to the board of trustees” by the Membership at meetings of the General Body. 201.12. “Coram” [sic – quorum] of General meeting to be 101 members.

[202]In the circumstances as to his giving of oral evidence explained above, the Claimant was not cross-examined about the possible differences between his written evidence and the contents of the SSMB India Trust Deed; nor was I addressed in detail about the contents of the SSMB India Trust Deed in the course of submissions. The idiosyncrasies of the translation also mean that care needs to be taken in deducing too much from it. However, bearing those things very much in mind nevertheless I take from the SSMB India Trust Deed that: 202.1. The appointment of at least some of its trustees is not effected by the Mahant Swami, but by the “Membership”. 202.2. The definition of the Membership probably restricts it to persons who have particular faith related or religious qualifications, but having regard to the quorum for General meetings of 101, the number of members is significantly larger than the number of trustees. 202.3. The Membership have various important powers.

[203]References were made in the course of evidence and submissions to the terms of the constitutions of other English Temples which were “under” the Bhuj Temple with a view to showing that particular provisions were or were not to be found in them and hence, so the submissions went, that it would be appropriate for the constitution of the charity to contain similar provisions. Different temples’ constitutions favoured different parties on different points. I place no weight on them. There was no evidence that one set of provisions worked better than others. Insofar as the provisions reflected a closer or more remote connection with the Bhuj Temple and the Mahant Swami and in what respects, the differences merely emphasised that not all temples “under” the Bhuj Temple had the same provisions. Insofar as the administrative provisions of a constitution in some way reflected the tenets or practice of the faith, the constitution of the head Temple, SSMB India, is more likely to do that than one of the English Temples. The views of the current membership of the charity

[204]It is essential to the success of the charity and to the furthering of its objectives that it should have a substantial membership. For that reason alone the views of the current members are of some relevance to what the constitution of the charity should provide.

[205]The parties and the witnesses are or were eligible to be members of the charity.

[206]The only attempts to canvas the opinion of the broader current membership were those made by the 5th Defendant.

[207]In January 2021 consultation forms were handed out at the Temple. There were two kinds of form. One simply asked for feedback towards changing the current constitution and creating a new scheme. The other comprised a series of statements with single tick boxes after them, all of which statements favoured the 5th Defendant’s approach to what should be in the scheme. It also contained a larger box for suggestions and comments. The 5th Defendant said that because of Covid attendance at the temple was less than it had been before the pandemic, but nevertheless 125 forms were returned. He said that on the question of whether the selection of new trustees should be made at the AGM, the members strongly supported the choosing of the trustees at the AGM.

[208]There was a further WhatsApp discussion on 23 January 2021 and outdoor meetings at the Temple on 30 January 2021 and 7 April 2021. The 5th Defendant does not say how many people attended these meetings. He says that in accordance with the views expressed at these meetings he instructed Francesca Quint of Radcliffe Chambers to draft a constitution reflecting the views of the members.

[209]The 5th Defendant says that Ms Quint’s scheme was distributed to the members. After that outdoor meetings took place at the Temple on 17 April 2021, 1 May 2021 and 19 July 2021

[210]The 5th Defendant says that on 30 July 2021 he distributed copies of both his scheme and the Claimant’s scheme together with a comparison table summarising the differences between the two schemes and inviting the members to express their preference. The 5th Defendant’s covering letter also contains a comparison between the two schemes and states that it enclosed a letter from Keidan Harrison on behalf of the Bhuj Mandir dated 16 July 2021 and a response by Julius Seal on “our” behalf dated 23 July 2021.

[211]The 5th Defendant said he received 90 responses, of which 89 expressed a preference for his scheme and one expressed a preference for the Claimant’s scheme. He did not attach copies of the responses which were received, citing data protection as the reason for his not doing so.

[212]These attempts were subject to criticism by Mr Mills and Mr Cardew as to the methodology, in particular as to how the membership was determined by the 5th Defendant; who was asked; the one-sided nature of the questions asked; the lack of evidence as to the numbers of questionnaires handed out; and the lack of detail as to the results.

[213]In cross-examination by Mr Mills the 5th Defendant said that in 2017 he was given a list of members’ names and telephone numbers by the then trustee, Bhimji Patel. In cross-examination by Mr Cardew, the 5th Defendant said that the list was a list of the people who were at the AGM in 2012.

[214]Mr Mills took the 5th Defendant to a passage in a letter written on 12 November 2001 by Bhimji Patel to the Charity Commission. The letter was written with a view to providing the Charity Commission with the information it had requested in a letter dated 8 November 2001. The passage in the letter dated 12 November 2001 which Mr Mills put to the 5th Defendant was the following:

“We have no paid or unpaid membership (as per our constitution clause 3.01), whoever believes in the teachings of Shree Sahajanand Swami founder of Swaminarayan sect is eligible to be a member (open membership). However we get a gathering of approximately 100 people during our congregations depending on various places.”

[215]The 5th Defendant’s comment on that part of that letter was: that was at the beginning, before the Temple was founded, when they were trying to put some ideas together. The 5th Defendant continued by saying that he was not sure that the membership was intended to be casual. He said that the members formed the charity and that it was not the founders’ intention that the members should not have power to manage the charity.

[216]The 5th Defendant’s comment that the letter of 12 November 2001 was at the beginning, before the Temple was founded, when they were trying to put some ideas together, fits with the chronology in that minutes of what is termed an Extraordinary General Meeting on 12 June 2002 record that amendments to the original constitution including those made on 13 December 2001 fax were discussed and approved at the meeting. Further, I found the 5th Defendant generally to be an impressive witness. He did not exaggerate and accepted factual points which were put to him and which might be thought to weigh against the terms of the scheme which he was proposing.

[217]Earlier in his cross-examination by Mr Mills the 5th Defendant had said that some 500 to 1,000 people now attended the Temple. The Claimant said in his statement dated 12 September 2022 that about 10,000 attended for the Diwali celebrations and that approximately 130 people actively volunteered in some capacity for the charity.

[218]In cross-examination by Mr Cardew, the 5th Defendant said that he had not shared the list of members, but he had it with him. He accepted that he went through no process to check that the people on the list were members. In re-examination the 5th Defendant repeated that he had the list with him. He said he would produce it if necessary. None of the barristers asked him to produce it. The 5th Defendant said that he had not produced the replies because the members did not wish to have them sent to everyone.

[219]I accept the 5th Defendant’s evidence that he received 90 responses to his letter or questionnaire of 30 July 2021, of which 89 expressed a preference for his scheme and one expressed a preference for the Claimant’s scheme. The process by which the 5th Defendant obtained that result was unsatisfactory in terms of ascertaining views which were representative of the congregation of 500 to 1,000 members and I place very little weight on the result of the 5th Defendant’s process.

[220]Nevertheless, the overall outcome is not a surprising one. Put very broadly, given a choice between a scheme which gave more power to the members and one which gave less power to them, it is not surprising that members would prefer the scheme which gave them more rather than less power. Conclusions on the witness evidence

[221]As a practical matter in the present case the witness evidence as to the settlors’ or founders’ intentions did not go to the particular or general points in relation to the constitution where clarification or addition is needed, except: 221.1. The broadly stated evidence to the effect that a close or very close relationship with the Bhuj Temple was intended. There was substantial extrinsic evidence to that effect, but even without regard to that extrinsic evidence, I could and do decide as a matter of interpretation of the constitution that a close or very close relationship with the Bhuj Temple was intended. 221.2. The conflicting evidence as to whether the Mahant Swami was intended to have an effective veto in respect of all aspects of the charity’s administration or only in respect of religious matters. I consider that what he was intended to have were the rights given to him by the existing constitution which, taken together, lie somewhere in between those two extremes.

[222]Having regard to those conclusions, it is not necessary for me to attempt an assessment of the quality or credibility of the various witnesses further than I have already done. In particular the circumstances and abbreviated nature of the Claimant’s cross-examination means that the inconsistencies between his statements and some of the documents were not explored and the Claimant was not given an opportunity to explain them. I suspect that many if not all of them may have been caused by difficulties or inexactitudes in translation or understanding.

[223]Not only is it unnecessary for me to attempt any further assessment of the quality or credibility of the various witnesses, but it is undesirable that I should do so. All the witnesses remain members of the same religious community under the umbrella of the charity. The witnesses who are or were directors of the charity are or were respected members of the community. Many of the parties and witnesses will be working together in the future to benefit the charity and to advance its purposes. Any findings which I might make as to their quality or credibility as witnesses would be likely to interfere with that. Further, the parties before me minimised the amount of time spent exploring allegations of past failures or breaches of duty and, in my view properly and rightly, focussed on the future of the charity and its constitution. In those circumstances it would be unfair and contrary to the interests of the charity for me possibly to taint individuals or their reputations by making adverse comments on the quality or credibility of their evidence. Should certain powers be vested in(i) the Mahant Swami and the Vice Mahant Swami or

(ii) the trustees of SSMB India?

[224]Various powers are given under the existing constitution of the charity to the Mahant Swami. In the Claimant’s proposed scheme it was proposed that similar and other powers should be vested in the trustees of SSMB India. In submissions Mr Mills said on behalf of the Claimant that he was not concerned whether the powers were vested in the Mahant Swami or in the trustees of SSMB India.

[225]There are 26 or 28 trustees of SSMB India, including the Mahant Swami and the Chief Kothari. It was submitted by Mr Mills that if necessary they could reach decisions quickly. Mr Mills referred to an example where 20 of the 26 had done that in relation to the charity. I accept that that will usually be possible, but it may not always be possible. Even if it was, I consider that it is not in the interests of the charity for substantial powers in relation to its administration to be vested in a large body of trustees whose own constitution is governed by Indian law and might be changed with little or no regard to the interests of the English charity. Giving the same powers to the Mahant Swami as Head Priest of the Bhuj Temple is different and, as between vesting the powers on the trustees of SSMB India and the Mahant Swami, significantly more in the interests of the charity. That is because the Mahant Swami‘s role in relation to the Bhuj Temple is likely to continue, whatever happens in the way of changes to the body managing the Bhuj Temple. Similarly with the position of Deputy or Vice Mahant Swami. Those appear likely to be offices which will remain unchanged whatever re-arrangements are made in respect of the management of the Bhuj Temple. Further, the Mahant Swami is acknowledged to be the religious leader of the Bhuj Temple and of the Swaminarayan temples elsewhere which are “under” the Bhuj Temple.

[226]The Mahant Swami is an elderly man and, it is apparent from what I have said above about the course of evidence, that when he is tired he may have difficulty in putting his mind properly to issues which are before him, particularly if they originate in documents or requests in the English language. SSMB India’s Trust Deed provides for a “Vice Mahant” to be nominated from the board of trustees to act as Mahant in the absence of the Mahant Swami and to work as per directions given by the Mahant Swami. The present Mahant Swami was himself the Vice Mahant Swami before he became the Mahant Swami. For those reasons I consider that it would be expedient in the interests of the charity and would not depart substantially from the intentions of the settlors and founders for the powers vested in the Mahant Swami by the constitution of the charity to be exercisable in the alternative by the Vice Mahant Swami, and the scheme should so provide. Overall architecture and structure of the scheme constitution

[227]There are and will remain three decision making bodies or individuals: 227.1. The Mahant Swami or the Deputy Mahant Swami. 227.2. The Board of Directors, from amongst whom there will be office holders. 227.3. The Membership.

[228]The existing constitution provides for the Board of Directors to comprise the Mahant Swami as ex officiodirector and chairman of the Board and 11 other members.

[229]The Claimant’s scheme proposes that the Mahant Swami should have the option of relinquishing his position as ex officiodirector and chairman of the Board. That proposal is expedient in the interests of the charity. Insofar as it may thwart the intention of the settlors or founders, that thwarting is overridden by the expediency of not forcing the Mahant Swami to perform a role which he may not want or which he may come to consider that he has become unfit for. It should be included in the scheme.

[230]Under the Claimant’s proposed constitution there would be between 4 and 11 trustees or directors additionally to the Mahant Swami. I refer to the Board members other than the Mahant Swami as “the Appointed Directors”. In comparison with a requirement that there be 11 Appointed Directors, the proposal that there be between 4 and 11 of them avoids the possibility that the death or resignation of an Appointed Director might make the Board incapable of functioning. That possibility should be avoided, but I consider that it should not be achieved by permitting there to be a Board of only 5 persons (the Mahant Swami and 4 Appointed Directors) on anything other than a short term basis pending the appointment or co-option of additional directors.

[231]Until the disputes arose as to who were the directors, the Board and the charity appear to have functioned satisfactorily with 11 Appointed Directors, so subject to re-starting the Board with identified persons as its members and to dealing with the validity of decisions taken during periods when there is a vacancy, there is little reason to change the size of the Board. Further, I consider that a rolling programme of retirement of members of the Board is expedient in the interests of the charity so as to achieve both a substantial degree of continuity and experience and the possibility of the regular introduction of new directors with fresh enthusiasm or representative of newer members. That sort of rolling programme is more likely to be successful if more than one Appointed Director has to retire annually. Accordingly, I consider that it is expedient in the interests of the charity that the Board should comprise the Mahant Swami (subject to the possibility of his relinquishing his position) and 11 Appointed Directors but with: 231.1. Provision that on the occurrence of a vacancy and pending the appointment of a replacement Appointed Director the Board may, subject to the quorum requirements, operate and make valid decisions for so long as it has at least 5 members. 231.2. Power in the Board to co-opt individuals to fill casual vacancies pending the appointment of a replacement Appointed Director under the general provisions for the appointment of the Appointed Directors.

[232]The existing constitution provides that every 6 years the 3 “eldest” directors should resign. The Claimant’s proposed scheme proposes 3 year terms for the Appointed Directors. As does the 5th Defendant’s proposed scheme. I consider that it is expedient in the interests of the charity for the terms of tenure of the Appointed Directors to be reduced to 3 years for the following reasons:(i) 6 years is a long time for an individual to bear the burden of being a director of as large an organisation as the charity has become since it was founded

(ii) 6 year terms would not hold what in my view is the appropriate balance in the interests of the charity between (i) continuity and experience and (ii) possible new appointees.

[233]In order to enable the possible turnover of Appointed Directors, the scheme should provide that once the Board has been established with 11 Appointed Directors, broadly 4 should resign at the AGM next after the initial AGM; 3 at the AGM held in the next year and 3 at the AGM held in the year after that; then 4; then 3; then 3 and so on in subsequent years. The drafting as to the grouping of Appointed Directors for resignation in that way will need to take account of the possibility of a member or members of a group have resigned or been removed or replaced in the period before their resignation by rotation becomes compulsory. I have in mind that for these purposes there should be three groups of Appointed Directors, with the drafting providing for the resignation of one group per AGM and with vacancies or replacements counting as members of the group which lost a director in the relevant period before the relevant AGM. Resigning Appointed Directors under these provisions should be eligible for re-appointment.

[234]In recent years there has not been an advisory committee as required by the existing constitution. Neither the Claimant’s nor the 5th Defendant’s proposed schemes include provision for an advisory committee or for a person to have been on the advisory committee or an equivalent for a period of at least 6 years before they are eligible to be a director. The requirement in the existing constitution weighs quite heavily in favour of its retention or in the retention of a similar system because of the experience it will provide to and individual before they take on the role of an Appointed Director. However, on this point I consider that the desirability of a balance in the interests of the charity between(i) continuity and experience and

(ii) possible new appointees and the practical reality of the advisory committee having fallen into disuse overrides the benefit of keeping it or an equivalent in place means that, despite the departure from the intentions of the settlors and founders which it involves, it would be expedient for the scheme to remove the requirements as to an advisory committee, and I so direct. Continuation of the existing rights of the Membership of the charity?

[235]Having regard to(i) the Membership’s rights under the existing constitution of the charity;

(ii) the very large contributions made by its members to the charity, both in terms of money and work; and

(iii) the concerns as to the possibilities of assets being hived off, I consider that it is expedient in the interests of the charity and substantially in accordance with the wishes of the settlors and founders that the Membership’s existing rights under the constitution should not be removed and the constitution should be amended to make it clear what they are. Who should appoint the Appointed Directors?

[236]The difficulties adverted to above with the provisions of the existing constitution which provide for the Boad appointing its own members mean that it is likely to be expedient in the interests of the charity for the scheme to provide for the primary appointors of the Appointed Directors not to be the Board itself.

[237]Broadly the choice as to appointors is between(i) the Mahant Swami or the Deputy Mahant Swami (I have already directed that it is they rather than the trustees of SSMB India who should be the relevant decision makers so far as the Bhuj Temple is concerned) and

(ii) the members in General Meeting. That choice is reflected in the rival proposed schemes of the Claimant and the 5th Defendant respectively.

[238]The following factors favour the members in General Meeting being the Appointors: 238.1. The fact that the charity now has a large number of attendees and supporters which number is far greater than the number (100 or so) which it had when it was established with its existing constitution. 238.2. The very large contribution made by its members to the charity, both in terms of money and work. 238.3. The concerns as to the possibilities of assets being hived off. 238.4. The difficulties and uncertainties which have arisen under the current provisions in relation to the resignation, removal and replacement of the directors. 238.5. The geographical distance between the Bhuj Temple and the charity’s Temple in Stanmore which means that as a practical matter the Mahant Swami and his Deputy are unlikely to be as familiar with candidates as the members. More so with the loss of the advisory committee. 238.6. The charity’s substantial assets which are many more times more valuable than they were when it was established with its existing constitution. 238.7. The vesting by the trust deed of SSMB India of some rights of appointment of trustees in a membership, albeit one with required qualifications and of smaller size than the membership of the charity.

[239]The following factors favour the Mahant Swami or the Deputy Mahant Swami being the appointor: 239.1. The greater association with the Bhuj Temple which would result. 239.2. The administrative costs and difficulties with holding elections by the members.

[240]The Claimant’s proposed scheme proposed, and Mr Mills submitted, that if the Mahant Swami had the power to appoint new trustees, his power in that regard should only be exercisable after consulting the directors and (insofar as reasonably practicable) the members. Such a requirement to consult would mitigate the likely unfamiliarity of the Mahant Swami with candidates for a directorship. However, I consider that the degree of such mitigation would be fairly small because of(i) the depth of the required consultation might be limited or, if in great depth it would be difficult and time-consuming for an important man such as the Mahant Swami to conduct;

(ii) the present Mahant Swami’s ability to conduct a meaningful consultation with English speaking consultees would be constrained by his lack of English;

(iii) there would be no obligation to follow the views of the consultees.

[241]Mr Mills submitted by reference to a Report of the Charity Commissioners (Report of the Charity Commissioners 1991 (1992), para.41) and Charity Governance (2nd ed, 2014) paras. 8.25, 8.27 and 8.163, that it was not uncommon for a third party to have power to appoint and/or remove trustees of a charity. Indeed, but it does not follow from the fact that it is not uncommon that it would be appropriate for or in the best interests of this charity.

[242]Taking into account the matters mentioned in this part of this judgment under the heading “Who should appoint the Appointed Directors?”,I consider that it is expedient in the interests of the charity for the primary appointors of the Appointed Directors not to be the Board itself, but for the primary power of appointing the Appointed Directors to be vested in the Members in General Meeting and that on these questions expediency overcomes the need to be slow to thwart the settlors’ and founders’ intentions. I direct that the scheme should so provide.

[243]It is expedient in the interests of the charity and does not significantly depart from the intentions of the settlors and founders that the Board should have power to fill casual vacancies, such casual appointees’ appointments only to last until the next AGM unless the appointee concerned is re-elected. I direct that the scheme should so provide. Powers to remove Appointed Directors

[244]I consider that it is expedient in the interests of the charity and does not depart significantly from the wishes and intentions of the settlors and founders for the provision at the end of clause 5.01 of the existing constitution which provides for Directors to cease to be Directors in certain circumstances, in substance to continue and to be extended as follows: the Mahant Swami or the Deputy Mahant Swami and, separately and additionally, the Board, shall have power, subject to procedural safeguards, to remove directors who they consider: 244.1. Have allegiance to any diocese or institution or temple which is not recognised by either the diocese of Ahmedabad or the diocese of Vadtal. 244.2. Have indulged in any activity which is declared by either of the dioceses to be not in accordance with the Swaminarayan faith or to be detrimental to the advancement of the objects of the charity. 244.3. Have been guilty of misconduct or mismanagement in the administration of the charity. 244.4. Become incapable of managing his or her affairs. 244.5. Failed without reasonable excuse to attend three consecutive Board meetings.

[245]Having regard to the same matters as I have considered above on the question of who should appoint the Appointed Directors, together with the consideration that if a significant number of members have real concerns about an Appointed Director they should be able to do something about that concern without having to rely on the Board, the Mahant Swami or his Deputy or go to the Charity Commission (though of course they would be able to do that if they thought fit), I consider that it would be expedient in the interests of the charity and that such expediency overrides the departure which it involves from the wishes and intentions of the settlors and founders, for the constitution to include a provision broadly to the effect of clauses 5.15 and 5.16 of the Claimant’s proposed scheme, but with some changes.

[246]In this and the subsequent parts of this judgment, where I have put a provision in square brackets that indicates that the provision in square brackets represents my provisional view and that if asked, I would consider a different provision either at the Consequentials Hearing or at a later hearing.

[247]The changes which I direct to the effect of clauses 5.15 and 5.16 of the Claimant’s proposed scheme are as follows: 247.1. If a request calling for the investigation of an Appointed Director and specifying the matters to be investigated signed by not less than [50 Members or 10% of the Voting Members, whichever is the lesser] is delivered to the Board, the Board shall within 7 days of receipt of the requisition, at the cost of the charity, appoint a barrister of not less than seven years standing to investigate and to provide the Board with a report within [42 days] of the barrister’s appointment on whether the Appointed Director has engaged in conduct detrimental to the charity or been guilty of misconduct or mismanagement in the administration of the charity. 247.2.1. Such of the Appointed Directors as are not the subject of the requisition shall convene an EGM to be held within [50 days] of receipt of the report, the business of which shall be or shall include(i) the laying of the report before the EGM and

(ii) a proposed resolution for the removal of the Appointed Director who is the subject of the requisition. 247.2.2. the Appointed Director who is the subject of the requisition shall be removed from office if that resolution for his or her removal is passed by a 2/3rds majority vote at that meeting. Power in Directors to retire

[248]The Directors should have power to retire and thereby to cease to be Directors by giving written notice to the Board, unless their retirement will cause there to be fewer than 5 Directors (including the Mahant Swami). Who should be the first Appointed Directors under the scheme?

[249]The Claimant has proposed the 4 persons who were or remain directors of the charity, that is to say: Devshi Dayalal Gami, Naran Harji Gami (the 5th Defendant), Khimji Ramji Patel and Lalji Mawji Vekaria. The 5th Defendant in his proposed scheme has proposed the same 4 persons plus an additional 8. The 5th Defendant said that there were written consents of 7 of the 8 to act. However, there were no statements of their fitness to act before me. In those circumstances I am not willing to appoint them as new trustees of the charity. If they remain willing and able to act, they can stand for election at the initial AGM which I am going to direct.

[250]Pending the holding of that initial AGM the Appointed Directors shall comprise Devshi Dayalal Gami, Naran Harji Gami (the 5th Defendant), Khimji Ramji Patel and Lalji Mawji Vekaria plus such other persons, if any, as the Board may, but shall not be obliged to co-opt under the power co-opt which I have directed above. Officers of the charity

[251]Clause 5.02(b) sets out a list of 9 officers which the Board of Directors should elect from among themselves.

[252]After the initial AGM has been held and there is a sufficient number of Appointed Directors to fill the specified offices, no reason was advanced to me as to why that position should be changed. It should continue but with the Board being obliged to re-elect the officers after each AGM and in the event of a vacancy.

[253]During the interim period pending the holding of the initial AGM when there may be significantly fewer than 9 Appointed Directors, an abbreviated list of officers should apply. My provisional view is that it should comprise [a President, a Vice President, a Secretary and a Treasurer]. Quorum for Board Meetings

[254]Clause 6.01(d) of the existing constitution provides for a quorum of at least one third of the members of the Board.

[255]In order to prevent the risk of such an important decision making body as the Board being quorate with a very small number of persons present, by reason of possibility that the Board will comprise substantially fewer than 12 persons, and will do so for some of the time between the scheme coming into force and the initial AGM, it is expedient in the interests of the charity that the quorum should be whichever is the larger of 3 persons or one third of the number of members of the Board. I so direct. Definition, ascertainment, and recording of the membership

[256]The provision in the existing constitution as to eligibility for membership is workable and it is not expedient to change the substance of it except(i) to clarify it and

(ii) possibly to exclude persons under the age of 18.

[257]By way of clarification, the following wording, taken from some of that in the Claimant’s proposed scheme would be satisfactory:

“Any person, irrespective of caste, colour or creed, shall be eligible for membership of this organisation if he or she: (1) is a follower or devotee of Nar Narayan Dev Diocese at Ahmedabad or Laxmi Narayan Dev Diocese at Vadtal, India and believes in the original teachings of Shree Sahajanand Swami the founder of the Swaminarayan sect; and (2) does not owe allegiance to any diocese or institution or temple which is not recognised by either of the Dioceses at Ahmedabad and Vadtal.”

[258]The existing constitution does not require that persons should have reached any particular age in order to be eligible for membership. The Claimant’s proposed scheme proposes a minimum age of 18. The 5th Defendant’s proposed scheme proposed a minimum age of 21.

[259]The existing constitution does not expressly provide for any benefits or rights for members except for rights to attend General meetings and to vote in General meetings concerning changes to the constitution and dissolution. The existing constitution contains no provision making membership a pre-condition to eligibility to worship at the Temple or to participate in other activities of the charity. In recent years, having regard to the fact that no attempt has been made to keep an up to date list of members, in practice it has not been necessary to be a member in order to be able to attend at the Temple for worship or for other activities of the charity. On the evidence before me I do not consider that it is necessary or expedient to introduce such a requirement. Having regard to that and to the need for votes under the constitution to be cast responsibly, it is expedient in the interests of the charity and not greatly against the intentions of the settlors or founders that there should be a requirement for voting rights of members under the constitution only to be capable of being exercised by members who are aged 18 or over. I specify 18 rather than 21 because 18 is the age of majority and, generally, of legal capacity in civil law in England.

[260]In order to reduce the possibility of AGMs or EGMs being taken over by persons who have not previously been involved with the Temple, it is expedient in the interests of the charity and not significantly contrary to the wishes of the settlors or founders that there should be a minimum period of membership before a member becomes eligible to vote. The Claimant’s draft scheme proposed a minimum period of 3 months. I consider that a minimum of 6 months without a break would be more in the interests of the charity and I direct that the scheme should so provide. I direct that “Voting Members” should be defined as members who have been registered as members for at least 6 months without a break in their membership during that period and who are at least 18 years old. My reason for adding the requirement that the registration should be without a break is to make it clear that a person who might have been a member some time previously cannot rejoin only days before a General meeting and count the period of their previous membership as part of the 6 month eligibility requirement.

[261]Issues which caused difficulties with implementing the terms of the of 2012 Tomlin Order and which remained issues before me were whether payment of a subscription should be a pre-condition of membership and, if so, what the subscription should be and/or how it should be set.

[262]A common reason for institutions with a membership charging members a subscription is so that the subscriptions provide money to run or to contribute towards the running of the institution. It is apparent from the healthy financial situation which the charity has achieved without subscriptions in the approximately 24 years of its existence, that this reason bears little weight in the present case.

[263]It is not necessary for a person to have to pay a subscription as a term of their agreeing to become a member on the terms of the constitution in order that they should become contractually bound by the terms of the constitution. The consideration consists of the mutual promises (Clarke v Earl of Dunraven, The Satanita

[1897] AC 59

[264]It was submitted by Mr Mills that even a fairly nominal subscription would introduce a degree of formality to the membership process and would also make it easier to define when a person had lost their connection with the charity and when they had ceased to be a member. Against that, Mr Seal submitted that the charity had never charged a subscription; charging a subscription would discriminate against poorer devotees of the Temple and that it was unnecessary to charge a subscription. I would add to the arguments against charging a subscription, the fact that it would add to the administrative burden and costs of running the charity.

[265]Mr Mills sought to answer the discrimination point by submitting that the trustees could be given power to waive or reduce the subscription in appropriately deserving cases. I do not consider that the creation and possible exercise of such a power would be in the interests of the charity. It could well be embarrassing for a member of the congregation to have to declare his poverty to the trustees and they might choose not to do so and thereby not to become a member in order to avoid that embarrassment. I consider that such a possibility weighs heavily against charging a substantial subscription. The figures mentioned in the Claimant’s proposed scheme were £100 for three years or £1,000 for life. For a person at or near the poverty line, I consider that those figures are substantial; though if the £100 for three years was payable at the rate of £33.33 per year it would be less so.

[266]A drawback with charging a smaller subscription is that the costs of administering the receipt of the subscriptions, including bank charges, would absorb a larger proportion or the whole of the subscription, particularly if the subscriptions were allowed to be paid in cash.

[267]I consider the detriments of charging a small or any subscription outweigh the benefits and that it is not expedient in the interests of the charity to change the constitution so as to provide for the charging of a subscription.

[268]In order that the identities of Voting Members can be ascertained at AGMs and EGMs, the constitution needs to provide for the registration of members and for the production and maintenance of a complete, up to date, list of members. It is expedient in the interests of the charity that it should do and does not involve any significant departure from the intentions of the settlors and founders. It is an almost purely practical provision as are the following subsidiary provisions which it is expedient in the interests of the charity to specify in the constitution provided for by the scheme: 268.1. A requirement for the Board to maintain, either itself or by a delegate, an up to date register of members. 268.2. A requirement that the register of members contain a list comprising in respect of each member their name and address and, where given, their email address; the date on which they became a member and, if they were under 18 when they became a member, the date on which they would attain 18. 268.3.1. A requirement that an applicant for membership completes and signs an application form. 268.3.2.1. The applicant’s name. 268.3.2.2. The applicant’s postal address. 268.3.2.3. In the case of an applicant whose postal address is not in the UK, an email address for the applicant. 268.3.2.4. Whether they are under the age of 18, and, if so, the date on which they will attain 18. 268.3.2.5. Certification by the applicant that they satisfy the eligibility requirements for members. 268.3.2.6. An undertaking to comply with the terms of the constitution of the charity. 268.3.2.7. An appropriate provision in respect of data and data protection consenting to the use of the data at least to the extent of publishing a list of members’ names. The detail of this clause to be drafted in the first instance by or on behalf of the Claimant for the parties’ and the court’s consideration and so as to tie in so far as possible, with my direction below as to the publication of a list of members. 268.3.3. Provision for approval of applications by the Directors or their delegates, but so that(i) no application shall be unreasonably refused and

(ii) only the Board of Directors can refuse an application, so that if one of the Board’s delegates considers that an application should be refused, they must refer the application to the Board of Directors. 268.3.4. A requirement that all applications are dealt with promptly and at latest within [28 days] of their being received. 268.4. Power for the Board of Directors to terminate a person’s membership and to remove them from the register of members if, after following the appropriate procedure, they are satisfied that the person has engaged in conduct detrimental to the charity or to the furtherance its objects. 268.5.1. Written notice of the Board’s intention to consider the termination of the member’s membership of the charity be given to the member. 268.5.2.1. Specify the grounds on which the membership is proposed to be terminated. 268.5.2.2. Specify the date, time and place of the meeting of the Board (“the time of the Specified Meeting”) at which it intends to consider the termination of the member’s membership of the charity; such date to be not earlier than [28 days] after the date on which the notice is treated as having been received. 268.5.2.3.1. he or she may, not later than 48 hours before the time of the specified meeting, make written representations to the Board as to why their membership should not be terminated or why the possibility of such termination should be not be considered at the time of the Specified Meeting, but at a later meeting. 268.5.2.3.2. he or she may attend part of the relevant meeting to make oral representations (in addition or in the alternative to making written representations). 268.5.2.4. In the case of a member whose last known address is in the UK be posted by pre-paid first class post to the member’s last known address and shall be treated as having been received on the day on which it would have been received in the normal course of post. 268.5.2.5. In the case of a member whose last known address is not in the UK be sent by email to the email address given by the member on their membership application form or to such other email address as the member may have informed the Board of Directors should be used for him or her in place of that email address. 268.5.3. The Board of Directors shall consider at the relevant meeting, such representations, if any, as have been received or made and decide whether or not to terminate the member’s membership. 268.6. A person who has had their membership terminated by a decision of the Board of Directors may not re-apply for membership until at least 2 years have passed since that removal. 268.7. A person’s membership shall terminate on receipt by the Board of Directors of a written notification from the member of their resigning their membership. 268.8. The constitution shall provide for the publication either generally or to the members, so far as is permissible under the data protection laws, the information contained in the register of members, with the published list to be updated at least once every 3 months and upon the convening of an AGM or EGM. The form of such publication to be the subject of submissions at the Consequentials Hearing or a later hearing; in particular as to whether a hardcopy list should be displayed in a noticeboard at the Temple or be available for inspection at an office in the Temple and/or be available on a website. The form of this clause may be dictated to some extent by the data protection laws and will be drafted so as to interrelate with their requirements and with the contents of the membership application forms. The data protection laws were touched on in argument but time did not allow for a detailed examination of their relevant provisions. Meetings of members

[269]It is expedient in the interests of the charity and such expediency overrides any departure which it involves from the wishes and intentions of the settlors and founders for the constitution to make the following provisions in respect of meetings of members.

[270]The Board must convene an Annual General Meeting (“AGM”) within 12 months of the scheme coming into effect. This will be the initial AGM referred to above.

[271]The Board must convene an AGM in each subsequent year and not more than fifteen months may elapse between successive AGMs.

[272]The business of the AGM shall include, but need not be limited to: 272.1. Consideration of an annual report from the President. 272.2. Consideration of the latest annual accounts of the charity 272.3. The appointment of the auditors. 272.4. The retirement and election of Directors.

[273]The Board may convene an Extraordinary General Meeting (“EGM”) of the Members at any time.

[274]The Board shall convene an EGM when required to do so by the above directed provisions in respect of requests for investigations of Appointed Directors.

[275]The Board shall within [28 days] after receiving a request in writing from no fewer than [50] Voting Members stating the business that is to be discussed, convene an EGM to consider the business specified in the request: 275.1. Arrange for an EGM to be held within [50 days] after receipt of the request to consider that business. 275.2.1. The notice convening the meeting shall specify the date, time and place of the meeting and the business to be transacted at the meeting, and shall be sent so as to be received or be treated as having been received not later than [21 days] before the date of the meeting. 275.2.2. In the case of a member whose last known address is in the UK the notice convening the meeting shall be posted by pre-paid first class post to the member’s last known address so as to be received or be treated as having been received not later than [21 days] before the date of the meeting. 275.2.3.1. The notice shall be sent by email to the email address given by the member on their membership application form or to such other email address as the member may have informed the Board of Directors should be used for him or her in place of that email address so as to be received or be treated as having been received not later than [21 days] before the date of the meeting. 275.2.3.2. If such a member has not provided an email address, no notice need be sent to him or her. 275.2.4. By posting a notice on [an appropriate notice board in the Stanmore Temple and on the charity’s website].

[276]If the Board fail to convene a meeting as required by the foregoing provisions, any member or group of Members may proceed to convene the relevant meeting, but in doing so they must comply with the above provisions as to notice.

[277]There will be no proxy voting. Only Voting Members physically present at the AGM or EGM may vote and each Voting Member shall have one vote. There shall be no remote voting by video link or otherwise.

[278]The President, or in his absence the Vice President, shall chair an AGM or EGM. If there is no President or Vice-President or they are not present within 15 minutes after the time specified for holding the meeting or if there is a dispute as to who the President or Vice-President is or whether they are directors, the Voting Members present must choose one of their number to chair the meeting.

[279]In the case of an equality of votes, whether on a show of hands or a poll, the chair of a meeting of an AGM or EGM shall be entitled to a second or casting vote.

[280]The scheme must specify a quorum for an AGM or EGM (as to the quorum, see below).

[281]If:(i) a quorum is not present within 30 minutes from the time appointed for the meeting; or

(ii) during an AGM or EGM a quorum ceases to be present, the meeting shall be adjourned to such time and place as the Board shall determine, provided that if the Board does not give notice of the re-convened meeting within [14 days] of the date of the adjournment, any member or group of Voting Members may proceed to convene the re-convened meeting, but in doing so they must comply with the following provisions as to notice.

[282]At least [7 clear days’] notice of the re-convened meeting must be given, stating the date time and place of the meeting.

[283]If no quorum is present at the re-convened meeting within 15 minutes of the time specified for the start of the meeting the Voting Members present at that time shall constitute the quorum for that meeting.

[284]The members present at an AGM or EGM may resolve that the meeting shall be adjourned.

[285]The person who is chairing the meeting must decide the date time and place at which meeting is to be re-convened unless those details are specified in the resolution for adjournment.

[286]No business shall be conducted at an adjourned meeting unless it could properly have been conducted at the meeting had the adjournment not taken place.

[287]If a meeting is adjourned by a resolution of the members for more than [7 days], at least [7 clear days’] notice shall be given of the re-convened meeting stating the date, time and place of the meeting. Power to amend the constitution

[288]In accordance with what Mr Mills accepted on the Claimant’s behalf, in broad terms the power to amend the constitution should be vested in the membership, subject to the consent of a representative of the Bhuj Temple. For the reasons also given above, that representative should be the Mahant Swami or the Vice Mahant Swami.

[289]The current constitution provides for a 2/3rds majority vote in favour of a proposed change to the constitution, with the Mahant Swami voting in favour of the proposed change. For the reasons given above the voting rights of the membership should be limited to Voting Members.

[290]The Claimant’s proposed scheme proposed a 75% majority. That would make it less likely that an amendment could be made. 75% is the majority which is required under s.280A Charities Act 2011 (introduced by the Charities Act 2022) and hence can be presumed to be the default position approved by Parliament. However, I consider that it would not be expedient in the interests of the charity to introduce that higher hurdle to the making of amendments to the constitution under the constitutional provision. The requirement in the constitution will remain a 2/3rds majority of the Voting Members present at the meeting.

[291]A practical difficulty with requiring a vote in favour by the Mahant Swami in this context and more generally is that it means that for a change to the constitution to be effected the Mahant Swami would have to attend the AGM or EGM where the resolution for the change was being put. Alternatives would be(i) to permit the Mahant Swami to cast a written or electronic vote;

(ii) to require the prior written consent of the Mahant Swami or the Deputy Mahant Swami;

(iii) to require either the prior or subsequent (within as specified period) written consent of the Mahant Swami or the Deputy Mahant Swami;

(iv) to provide that a proposal, if passed with by the 2/3rds majority of the Voting Members present at the meeting, would be effective unless the Mahant Swami or the Deputy Mahant Swami voted against the proposal; or

(v) to provide that a change to the constitution resolved upon by the 2/3rds majority should only be effective if the Mahant Swami or the Deputy Mahant Swami within a specified period (say 28 days) after the passing of the resolution did not object in writing to the resolution. The last two of these alternatives would put an onus on the Mahant Swami which does not exist in relation to changes to the constitution under the existing constitution. Putting that onus on the Mahant Swami or the Deputy Mahant Swami would lead to a possibility that a resolution changing the constitution might become effective when, for good reason or bad, the Mahant Swami and the Deputy Mahant Swami were unable to vote against or veto the proposal in time. The casting of a vote in writing or electronically might be difficult to work into the mechanics of an election which was being held in person. Requiring the prior written or subsequent consent of the Mahant Swami would make little difference to the position under the current constitution. The main difference it would make is that the Mahant Swami or the Deputy Mahant Swami would be able to give or refuse their consent after they knew the result of the vote of the members. Having regard to these considerations I consider that requiring the prior or subsequent written consent of the Mahant Swami or the Deputy Mahant Swami, with the subsequent written consent required to be given, if at all, within [28 days] after the vote at the AGM or EGM concerned (i) is expedient in the interests of the charity; (ii) is more expedient than maintaining the requirement of a positive vote in favour; (iii) is more expedient than the other alternatives; and (iv) is so much more expedient than those things that expediency in this context overrides the requirement to be slow to thwart the settlors’ or founders’ intentions. Accordingly, the scheme should provide for future changes to the constitution (other than any which might be made by the Charity Commission or the court) to require a 2/3rds majority vote in favour of the Voting Members present at the relevant AGM or EGM and the prior or subsequent written consent of the Mahant Swami or the Deputy Mahant Swami, with the subsequent written consent required to be given, if at all, within [28 days] after the vote at the AGM or EGM concerned.

[292]The provisions as to notice in clause 8.01(a) of the current constitution shall cease to apply. The general procedural provisions as to AGMs and EGMs specified above will apply to the convening and holding of meetings to amend the constitution.

[293]The existing constitution provides that no amendment may be made to the objects clause without the prior written consent of the Charity Commission. There is no reason to change this requirement.

[294]The existing constitution provides that no amendment may be made to clause 9.01 without the prior written consent of the Charity Commission. I direct certain changes to clause 9.01 below. With those changes effected, there is no reason to change the requirement that no amendment may be made to clause 9.01 without the prior written consent of the Charity Commission.

[295]The existing constitution provides at the end of its clause 8.01 that no amendment may be made to clause 5.01(A) (National Office) or clause 9.01(A) (Disposal of Organisation Properties).

[296]The reference to clause 5.01(A) (which must be the intended reference in the proviso at the end of clause 8.01) is to the provision that the Head Priest of the Bhuj Temple will be the ex-officio Chairman of the Board of Directors. It was proposed by the Claimant and I have directed that the Mahant Swami (Head Priest) will be given the option of not being a Director or Chairman of the Board. Accordingly, the effect of clause 5.01(A) in keeping the Mahant Swami in post might be avoided by the Mahant Swami himself. It follows that the purpose of clause 5.01(A) of protecting the position of the Mahant Swami may be waived by him. Once that position is reached the proviso at the end of clause 8.01 as to clause 5.01A or (A) will not serve any real purpose because the Mahant Swami could prevent a change to the constitution which might affect his powers by not giving his prior written consent to the change. For that reason and so as to simplify the constitution it is expedient in the interests of the charity and I direct that the proviso at the end of clause 8.01 as to clause 5.01(A) should be removed.

[297]Clause 9.01(a) (which must be the intended reference in the proviso at the end of clause 8.01) provides that the Board may with the approval of the Head Priest and the appropriate legal formalities dispose of any of the charity’s properties. I can see little reason why the partial entrenchment of this provision should not remain, and a good reason why it should. That good reason is that the requirement for the Mahant Swami’s consent to the sale of the charity’s properties would enable him as Head Priest of the Bhuj Temple “under” which the charity exists to maintain some control over where the charity has its Temple, which may well be relevant to obtaining a reasonable geographical spread of Temples “under” the Bhuj Temple.

[298]Clause 7.01(a) of the existing constitution contains an apparently very wide definition of “the properties” of the charity. I have already said that it is so wide that it may be that it extends to the most trivial of assets. I am not over-concerned about that in other contexts in the constitution, but in clause 9.01(a) I consider that it is expedient in the interests of the charity and that such expediency overrides any departure which it involves from the wishes and intentions of the settlors and founders, that the constitution should have added to it a provision making it clear that the “properties” referred to in clause 9.01(a) means only the land owned or leased by the charity.

[299]The constitution should have added to it a provision that no amendment shall be made to it which would cause the charity to cease to be a charity within the meaning of the Charities Act 2011.

[300]The constitution should provide that the power of amendment contained in it is additional to and does not exclude the s.280A Charities Act 2011 power of amendment. Provisions as to dissolution

[301]Clause 9.01(b) of the existing constitution deals with possible dissolution and its consequences. To repeat, it is in the following terms:

“Notice of 21 days shall be given to the members for a special meeting to be called for the discussion on the Organisation to cease to function or exist. For such resolution shall be decided by the casting vote of at least two thirds of the present members. Discussions and suggestions shall be taken into account as to the arrangement of the Organisation and its assets and properties, but shall not be passed and belong to any member but to Shree Swaminarayan Temple Bhuj ( N N Dev ) (after paying off all its liabilities). In case it is not possible ( due to legal reasons) to pass the remaining assets and properties to Shree Swaminarayan Temple Bhuj (N N Dev), the Board of Directors with the prior approval of the Head Priest of Shree Swaminarayan Temple Bhuj ( N N Dev ) shall be entitled to give it away to any similar local, religious or charitable institution. If this not possible it may be passed to any local, religious or charitable institution.”

[302]The Claimant’s proposed scheme does not suggest any changes to clause 9.01(b). I have explained much earlier in this judgment why I interpret the first part of clause 9.01(b) as referring to members of the Board of Directors.

[303]The 5th Defendant’s proposed scheme would modify the first part of the clause so as to refer to an EGM rather than a “special meeting”.

[304]In deciding whether it is expedient in the interests of the charity to change the body which decides on a dissolution from the Board of Directors to the general membership I have regard to the same considerations as stated above which favoured the general membership having the primary power to appoint the Appointed Directors and to the administrative costs and difficulties with holding elections by the members, particularly if the charity is in danger of becoming insolvent. In the context of a decision to dissolve the charity, there is a further important consideration. That is that if the charity should in the future fall into financial difficulty, it will be the Directors who will be primarily liable for the debts. In legal form the charity is an unincorporated association or trust and generally has no legal personality of its own. It is the directors with whom contracts will be made and who will be liable for debts which may arise. It would give directors and future directors some comfort if they knew that if the worst appeared to be coming to the worst, they could terminate the operations of the charity; wind it up and use the proceeds of sale of its valuable assets to pay off the debts before it became insolvent. Having regard in particular to that consideration, I consider that it is not expedient in the interests of the charity to change the body which decides whether or not there should be a dissolution. That body should remain the Board of Directors acting by a 2/3rds majority of those present at the relevant meeting.

[305]Under the existing constitution, the destination of the net assets following a dissolution is the Bhuj Temple unless that “is not possible” due to legal reasons. Having regard to the considerations which I had regard to on the question of who should have the primary power to appoint the Appointed Directors and in particular to the very large contribution made by its members to the charity, both in terms of money and work, and to the concerns as to the possibilities of assets being hived off, I consider that it is expedient in the interests of the charity and that the departure from the intentions of the settlors or founders as expressed in the existing constitution should be overridden, so that the destination of the net assets on a dissolution of the charity should be determined, subject to the prior written approval of the Mahant Swami or the Deputy Mahant Swami, at an EGM in accordance with the general provisions directed above in respect of changes to the constitution. I so direct. Rules

[306]Clause 8.01(b) provides:

“The members of the Board of Directors will frame further rules for general administration of the Organisation. Such rules, however, shall not be in contravention of its constitution and rules of the Organisation, and against the directive, if any, of the Head Priest of Shree Swaminarayan Temple Bhuj (N N Dev).”

[307]I was not shown any rules made under this provision. Except for tidying the grammar and clarifying the clause, there is no reason to change it. Name

[308]The Claimant suggested that the name of the charity should be changed from “Shree Swaminarayan Satsang” to “Shree Swaminarayan Mandir Stanmore”. Mr Mills submitted that “Satsang” and “Mandir” meant similar things, broadly “a sacred gathering”. Except in very broad terms I am not willing to take judicial notice of that, particularly because insofar as the matter is within my own knowledge, the word “mandir” tends to indicate a holy place or temple, while “satsang” has the broader meaning. Mr Mills also submitted, which I accept, that adding the word “Stanmore” would help to identify which Swaminarayan Temple in the UK the charity relates to. However, the Claimant said in his statement dated 30 April 2024 that the change of name was only a suggestion at that time and that he was happy not to pursue the point.

[309]The existing constitution does not identify Stanmore as the area of operation of the charity.

[310]In those circumstances I consider if the name is going to be changed, the change should be effected by a change of the constitution by the members at an AGM or an EGM. I will not make a direction that the name be changed. To whom or what should written notices or consents be sent?

[311]Many of the provisions in the constitution as it will exist pursuant to the scheme will provide for the giving or notice to or the making of requestions to the Board of Directors. A provision should be included as to how that can be done as a practical matter, with ancillary provisions as to the dates or times when the notice or requestion is to be treated as having been received.

[312]Ancillary provisions as to the dates or times when notices are to be treated as received by others, such as members, should be included. Drafting of the Scheme and Next Steps

[313]The generally preferred method is for the Attorney General by his counsel to draft the scheme. However, the Attorney General has not played any part in these proceedings and I consider that it would be likely to delay matters further to the prejudice of the charity to take time at this stage attempting to order him to do so.

[314]It is the Claimant’s case. A considerable amount of drafting has already been carried out on his behalf. Accordingly, my provisional view, subject to any submissions which may be made at the Consequentials Hearing, is that I should direct the Claimant (by his solicitors and counsel) to draft a scheme giving effect to the directions in this judgment.

[315]I have already indicated that there should be a comprehensive re-drafting of the constitution and why. I so direct. The scheme will bring into effect a complete constitution contained in a single document; possibly, but not necessarily, with schedules dealing with particular matters such as any detailed interim provisions pending the holding of the initial AGM. It will not merely provide for the amendment of existing clauses. The re-drafted constitution need not and probably should not follow the same format or numbering system as the existing constitution. The draftsperson should bear in mind that the constitution is a document which will need to be read by persons such as new Appointed Trustees who are unlikely to be lawyers and may have less knowledge of the history of and background to the charity than the parties to this litigation.

[316]It may be that when the comprehensive re-drafting of the constitution comes to be done in accordance with this judgment, that it will become apparent that some further additions or some minor variations or additions are required or are desirable in order for the constitution to be clear and workable and in order to avoid any inconsistencies. The draftsperson may deal with these in his or her draft. Insofar as necessary they can be considered at the hearing at which the scheme is finalised.

[317]At the Consequentials Hearing a timetable will be fixed for the serving of the draft scheme; comments on it by the other parties and provision to the court of a time estimate and dates to avoid for a later hearing at which the scheme can be finalised. Need for Board to implement directions in scheme

[318]When the order for the scheme constitution is made, the order may require the Board to take the steps required by it pending the holding of the initial AGM after the scheme comes into effect.

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