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“Gifts to the Nation…are happily frequent; gifts to repay debt comparatively rare, this last being a dull objective but bringing in its accomplishment certain comforts”
The High Court has allowed an application by an anonymous applicant to be joined to a claim made by the Attorney General.
The claim seeks directions as to the future of a charitable trust – the National Fund – created by an anonymous donor more than 90 years ago, which settled some £500,000 for the purpose of paying off the National Debt.
When the trust was established, the National Debt totalled £7.6 billion. The National Fund is now worth approximately £520 million with the current National Debt standing at £1,821.3 billion.
Background
The National Fund was established by a deed dated 9 January 1928. The anonymous donor hoped his gift would form the “nucleus” of a fund, which could be accumulated in an attempt to free the country from debt.
The Attorney General’s claim, issued in May 2018, seeks directions as to whether the Court has power to alter the trusts contained in the 1928 deed. Having learned of the proceedings and shortly before the Court was due to consider the matter, the Applicant lodged a joinder application.
The Applicant, a distant relative of the donor, contends that the trust fails either in part or entirely with the effect that the fund falls into the donor’s residuary estate on the following grounds:
- There was a lack of a genuine charitable intention at the time the gift was made;
- Impossibility and impracticability of the gift; and / or
- Section 9(1) of the Superannuation and Other Trusts (Validation) Act 1927 does not immunise the trust from a claim by a third party.
Outcome
In allowing the Applicant to be joined as a party, the Court has recognised the possibility that the original trusts were ineffective and provided useful commentary in relation to the ‘prospects of success’ test as the basis for a joinder application.
The Court had to be satisfied that the Applicant was able to demonstrate 1) an arguable case in respect of the challenge of the original gift, 2) some prospect of success and 3) that their participation in the proceeding is desirable in the circumstances.
In assessing whether this threshold was reached, Chief Master Marsh commented that it was not his duty to decide in “arithmetical terms” what the Applicant’s prospects might be. The Court was satisfied here that the Applicant could demonstrate a valid challenge, albeit with some reservation as to the likely success, thereby meeting the relatively low threshold set out above.
Chief Master Marsh helpfully clarified that the stronger an applicant’s case on the core issues, the more desirable it is for the joinder to be granted. In this case the Applicant was assisted by the fact Section 9(1) of the 1927 Act had not previously been considered by the Court and the common-sense approach in it being preferable for the Court to deal with the challenge by a genuinely interested party, which had previously been foreseen, at the same time as the main claim.
Watch the space for October 2020 when the substantive claim is back before the Court. No doubt practitioners and those in the charity sector will eagerly await the judgement hoping for further commentary on this historical gift, the cy-pres doctrine which applies when charitable funds cannot be used for their intended purpose and to see whether the anonymous donor is identified.
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