The Court of Appeal has handed down judgment in Mohammed v Daji [2024] EWCA Civ 1247, a significant case relating to the ownership of the Abbey Mills Mosque in West Ham and the split within the Tablighi Jamaat movement of Islam. The judgment of Newey LJ discusses various aspects of judicial fact-finding about the intentions of donors to a charitable trust, as well as judicial findings of fact.

Ted Loveday acted for the Appellants, led by David Holland KC of Landmark Chambers and instructed by Richard Norridge and Dan Saunders at Herbert Smith Freehills LLP. Andrew Westwood KC acted for the same parties at first instance.

Charity fundraising

The judgment contains an important review by the Court of Appeal of the legal principles relating to charity fundraising. This includes the following points, which are explained in Newey LJ’s judgment at paragraph 39 onwards:

1) A donation to charity will be held for the purposes intended by the donors. This will be “ascertained objectively by reference to the terms on which the donor made his gift to the recipient, construed against the factual background known to the donor”.

2) In broad terms, there are three classes of gift to a charity:

3) A gift which can be used for the general purposes of the charity.

4) A gift for a specific purpose which is different from, and typically narrower than, the charity’s general purposes (frequently called ‘special trusts’ or ‘restricted funds’.

5) A gift for indefinite charitable purposes which gives the person entrusted with the money “implied authority for and on behalf of the donor to declare the trusts to which the sums contributed are subject”. This class was recognised in Attorney-General v Mathieson [1907] 2 Ch 383, which the Court of Appeal has now confirmed (at paragraph 41) still accurately represents the modern law.

6) Where the terms of a donation are set out in a written agreement or deed, the court is primarily required to interpret the language in that document in order to identify the parties’ intentions. However, the position is different where the donation has not been reduced to writing. In those cases, when deciding what had been agreed at the time, the court may have regard to evidence about the parties’ “understanding of what was agreed” and of “subsequent conduct” (see paragraph 44).

This summary of the key principles will be useful for those assisting charities with the wording of appeals to donors – and it is a healthy reminder of the importance of setting down any significant donation agreements in writing.

Judicial fact-finding

The appeal concerned, in part, the assessment of evidence of recollection of a meeting in November 1994. Civil litigators will be familiar with the decision of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). In that case, Leggatt J suggested that judges should place “little if any reliance at all” on the memories of witnesses and instead base their decision on written documents. There is ongoing debate about the limits to that approach (see e.g. Kogan v Martin [2019] EWCA Civ 1645).

The judgment continues a recent trend to qualify the comments in Gestmin. At paragraph 45 of the judgment, Newey LJ cited a 2023 lecture of Popplewell LJ calling for “reconsideration” of Gestmin (available here) in which Popplewell LJ had stated that “some of the judicial pronouncements on this topic may require reconsideration, particularly in relation to the extent to which contemporaneous documents and inherent probabilities are treated as assuming almost exclusive primacy over recollections”. Contrary to what might be suggested by aspects of the judgment in Gestmin, it is now clear that judges are very much open to continuing to rely on witnesses’ memory in suitable cases. If the memory is sufficiently reliable, it may even be held to outweigh parts of the contemporaneous material. It remains to be seen whether the Court of Appeal, in a future case, will go further and expressly overrule all or part of Gestmin.

The judgment

The Court of Appeal’s judgment is available here

The first-instance judgment of HHJ Cadwallader with neutral citation [2023] EWHC 2761 (Ch) is available here

Any inquiries regarding the case should be directed to Herbert Smith Freehills LLP.