In February 2012 London Consistory Court granted a faculty for the building of a school and community building on the burial ground belonging to Christ Church, Spitalfields. Although letters of objection had been received, the petition was formally unopposed. Construction of the building began in August 2012. In August 2014 Spitalfields Open Space Limited (‘the applicant’) made an application to the consistory court for a restoration order under section 13(5) of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, requiring the demolition of the building. The application was made on the basis that the construction of the building was unlawful by virtue of section 3 of the Disused Burial Grounds Act 1884. Following an interlocutory hearing and the subsequent consideration of written representations the chancellor gave a judgment in which he held (1) that the points raised by the applicant should have been raised in 2011 in the proceedings on the petition and that they represented an attempt to re-litigate settled issues and as such amounted to an abuse of process with the result that he directed that the proceedings be stayed; (2) that if the court did not have the power to order a stay of its own initiative, it should in any event decline to exercise its discretion to grant a restoration order for the same reasons; (3) that the Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure (‘the Amendment Measure’) – which gave the court power to grant a faculty authorising the construction of buildings on disused burial grounds notwithstanding the prohibition in the 1884 Act – had received final approval by the General Synod, had been laid before the Ecclesiastical Committee and was to be laid before Parliament and that the impending change in legislation afforded an additional reason why the court should not exercise its discretion to grant a restoration order.

On appeal by the applicant (and two individuals added as appellants with permission of the appeal court), the Court of Arches drew attention to rule 19(5)(2) of the Faculty Jurisdiction Rules 2013 (FJR) which provides that a chancellor must, where no express provision is otherwise made in the FJR, be guided by the Civil Procedure Rules (CPR). The rules in the CPR relevant to this case were rules 3(4)(2) (striking out statements of case) and 24(2) (summary judgment). The chancellor's rulings in respect of abuse of process were probably to be regarded as summary judgment rather than striking out; that was certainly the case in respect of his ruling in relation to the Amendment Measure. The Court of Arches held that the chancellor was not entitled to impose a permanent stay of the application for abuse of process. The applicant had not been incorporated until a year after the grant of the faculty. There was no reason why anyone reading the petition – which incorrectly stated that the land in question was not consecrated – would have appreciated the relevance of the prohibition in the 1884 Act. The issue of the faculty did not therefore result in the question of the application or otherwise of the 1884 Act having been settled in the faculty proceedings. Issue estoppel could not arise in respect of the application for a restoration order because there had been no parties opponent to the faculty proceedings. In any event it was to be doubted whether issue estoppel could ever arise so as to prevent a challenge to a claimed breach of a statutory prohibition existing for the public benefit. As to any wider issue of abuse of process, the application could not be castigated as ‘a blatant abuse of the process of the court’, especially given the misrepresentation in the petition that the land was not consecrated. The public interest required that the matters raised by the application be properly investigated. For the same reasons, declining to exercise the discretion to grant a restoration order was also erroneous. Furthermore, it fell outside CPR rule 3(3)(2)(a) and (b) and could not properly constitute summary judgment under CPR rule 24(2).

The ruling in relation to the Amendment Measure could not stand for three reasons. At the date of judgment, the Measure had not completed its progress through Parliament. If it was enacted, it was not possible to know when it would be brought into force. The new power conferred on the consistory court by the Amendment Measure was a discretionary one which required a full investigation of the facts, which meant that it could not be dealt with when considering whether to strike out or to give summary judgment. It was not the case that the applicant had no real prospect of succeeding on the application and in any event the importance of the issue was such that it ought to have been disposed of at trial rather than summarily. The appeal was accordingly allowed in respect of all three rulings. [Alexander McGregor]

Each party was ordered to bear its own costs below, the Court accepting that this was a pragmatic rather than principled conclusion. The rule in Re St Mary the Virgin, Sherborne [1996] Fam 63, that the petitioner should bear the first-instance court costs was not applicable in proceedings for a restoration order and the respondents to the appeal were ordered to pay the court costs below. As to the appeal, the second interested party, the London Borough of Tower Hamlets, was ordered to pay half of the applicant’s costs with the other half paid by the respondents and first interested party. That order was on the basis that the normal rule from the Sherborne case on appeal in the Court of Arches is that the parties’ costs follow the event. In relation to the court costs of the appeal, the court rejected the argument that the respondents and first interested party should not have to pay those costs. They had been given an opportunity to avoid the costs of an appeal prior to the appeal, which opportunity the respondents and first interested party had declined. The respondents and the first interested party were to pay one half of the appeal court costs and the second interested party the other half. [RA]