We reported on 24 March the judgment in this now famous case: Jesus College Cambridge – the Rustat Memorial and then on 13 April that Rustat Memorial: no appeal planned.
Now, the Deputy Chancellor of Ely has ruled on the matter of costs.
Law Gazette College escapes costs over ‘slave trade’ memorial case
Church Times Application for costs over Rustat memorial fails
The full text of this latest decision can be found here.
In paragraph 3, the Deputy Chancellor writes
…In this further judgment I will refrain from reproducing the more tendentious of the written representations I have received. I have borne them firmly in mind; but in a consistory court judgment which may attract more general interest than such judgments usually excite, I have no wish to inflame firmly, and genuinely held, feelings any more than is strictly necessary…
Readers who take the time to read all 27 pages may wonder what might be more tendentious than some of the remarks quoted therein.
This has to be right. Bodies need to be able to apply for faculties without the risk of having to meet opposition costs over which they have no control.
Why? I mean, why should bodies applying for faculties be protected from such risks? Almost no other litigants have that protection.
In this case, the application by the opponents was for costs not simply because their case had prevailed, which does not entitle them to costs in such cases, but because the college had misconducted the case and put the opponents to unnecessary expense. That seems a reasonable principle. In this case, the judge ruled that the college had not misconducted the case, and so costs were not awarded.
An applicant for a faculty is not a litigant in the same way – they are asking permission in a process which is largely uncontested. The potential award of costs would mean that many worthwhile changes to buildings would become more risky. Those of us for whom our buildings are a home and a place of worship care greatly about them – but we also experience the inconveniences which occur because it takes so much effort to change things. And that diverts energy from our core purpose.
I understand that there are risks and that you want to be relieved of them. My question was, why do you think you should have that privilege?
The parallel secular process is applying for planning permission and/or listed building consent.
Suppose someone wanted to build an extension on their house but a neighbor whipped up a huge campaign against it and submitted a ton of evidence. Do you believe that the homeowner should pay for all of the cost of that campaign? Nothing would get done.
No, the parallel secular process is applying for judicial review of a planning decision. There are risks attached to costs in that.
Why is this a privilege? It simply means that well financed campaigns will make it impossible to use church buildings for the purpose for which they were designed.
It’s a privilege in that almost all other forms of litigation carry that risk.
The editors of the excellent Law & Religion UK website work on Sundays, and the costs judgment in the Rustat memorial case is reported today. L&R also posts a monthly round-up of Ecclesiastical Court judgments (ten in the last month), which cover a wide range of subjects. Whilst the faculty system may be a thorn in the flesh to some, it is there to protect against abuses: unauthorised interference with graves being just one random example.