Case No: HQ14D02898
Neutral Citation Number: [2016] EWHC 46 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15 January 2016

Before :

SIR DAVID EADY
Sitting as a Judge of the High Court
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Between :

	FRANK KOFI OTUO
	Claimant	
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	(1)	JONATHAN DAVID MORLEY
(2)	WATCH TOWER BIBLE AND TRACT SOCIETY OF BRITAIN	

Defendants	

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The Claimant appeared in person 
Mr Eliot Willis (instructed by the Watch Tower Legal Department) for the Defendants

Hearing dates: 10 & 11 December 2015

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Judgment
Sir David Eady : 
1.	Mr Otuo claims damages for slander in respect of words alleged to have been spoken at a meeting in July 2013, at which he was seeking a review of his “disfellowship” (i.e. expulsion) from the Jehovah’s Witnesses. This had taken place following a meeting in 2012 and thereafter been made public at a gathering in July of that year.  He now seeks permission to add a claim for breach of contract in respect of the process leading to that expulsion.  There was an earlier claim for slander in respect of the 2012 meeting regarding defamatory words spoken on that occasion, but that was struck out on limitation grounds, although there is pending an application before the Court of Appeal whereby that ruling is sought to be overturned.  Unfortunately, it seems that it will not be heard until November of 2016.
2.	One of the grounds on which Mr Willis resists the present application is that there is nothing new about the facts on which the Claimant now seeks to rely as constituting a breach of contract and, if he wished to pursue such a claim, he should have brought it forward in the earlier action so that all issues could be resolved at the same time and, correspondingly, the Defendants would not have to be vexed with litigation twice over arising from those events.  He cited in support of this submission the well known case of Henderson v Henderson (1843) 3 Hare 100.  While it might have been more convenient, as a matter of case management, for all matters relating to the 2012 expulsion to be dealt with in the same action, and resolved at the same time, the fact is that for the moment the earlier claim stands as struck out and may, or may not, so remain.  The main policy consideration underlying the Henderson line of cases is that it is desirable to have all related issues dealt with together and for the parties to be confident that there will then be finality.  Regrettably, however, there cannot yet be finality: no substantive issues have been resolved.  It seems to me, therefore, that I should deal with the present application on its own merits – rather than ruling either that it should have been pleaded in the first case or that the application should have been made in the earlier proceedings (despite the claim having been struck out).  It is important to remember that the limitation period relevant to a claim in contract has not yet expired.  
3.	Apart from the Henderson point, Mr Willis resists the application on the basis that there has never been any contract, express or implied, between the Second Defendant and the Claimant and that there is accordingly no real prospect of success.  More specifically, he argues that any relationship between the parties does not arise from an intention to create legal relations, but can only be of a religious or spiritual nature.  In this context, he cited Sharp v Bishop of Worcester [2015] EWCA Civ 399 and Moore v President of the Methodist Conference [2013] UKSC 29.
4.	I should first address the Claimant’s pleaded case.  He founds his claim in contract upon his request in June 1992 to be admitted as an international member of the Jehovah’s Witnesses.  This was made, while he was in Ghana, to a Mr Daniel Osei Yaw of the Patasi congregation.  That request, he says, was put before the Body of the Elders and thereafter he was informed by Mr Yaw and “a fellow Elder” of the same congregation, called Mr Francis Bugyei, that they were authorised agents of the Second Defendant’s organisation and they were prepared to admit him to it as an international member (on certain terms with which he claims he had subsequently always complied).  This cannot be right, submits Mr Willis, because the Second Defendant did not come into existence until 1999.  Furthermore, he cannot be a member of that body since, as its articles of association make clear, membership is confined to those who are (a) elders and (b) invited to join.  That contention is clearly borne out by clauses 1.3 and 1.3.1 of the articles.  Neither of these conditions applies in the Claimant’s case.
5.	The Claimant contends, in any event, that his relationship with the Second Defendant is governed by certain rules to be found in a book entitled “Organised to do Jehovah’s Will”.  That, however, was not put in evidence before the court at the time.  (At the hearing, and subsequently in correspondence, reference was made to other books, such as “Organised to Accomplish Our Ministry” and “Shepherd the Flock of God”.  The latter was said by the Defendants to be of no relevance.  As to the former, they offered to consider whether certain parts of it might be produced once the Claimant had made clear what passages he was relying upon and for what purpose.)  
6.	More importantly, the Claimant needs to plead exactly how his contractual relationship with the Second Defendant is alleged to have come into existence notwithstanding the clear provisions of the articles to which I have referred.  If he is alleging membership of, or contractual relations with, some other body which is said to have breached its obligations in relation to the expulsion of 2012, then that would also need to be spelt out.  It would surely only be appropriate to grant leave to amend the particulars of claim in this action if the contractual claim can satisfactorily be formulated against an existing party.
7.	In view of the deficiencies of the draft now before the court, it would perhaps have been unnecessary to address other matters.  But I will add a few words on the authorities cited by Mr Willis.  I do not believe it can be said, in general terms, that purely because the context of personal relations is religious, therefore there can be no intention to create binding and enforceable legal relations.  It must depend on the particular circumstances.  If a body takes upon itself the right to summon people before it, for the purpose of determining such issues as breaches of rules or obligations, and assumes the right to exercise powers of punishment or expulsion, it does not seem to me to be self-evident that such disputes must inevitably fall outside the jurisdiction of the courts.  As with clubs or other associations of members, it may well be possible to infer in some circumstances that there are mutual obligations (e.g. in relation to considerations of natural justice) which the courts could rule upon, and in respect of which could give certain limited remedies, such as by way of declaration.  I quite understand that it would be very difficult for the court to grant injunctive relief forcing a religious body or congregation to take back a member who was not welcome for some reason (whether good or bad), or to grant monetary compensation, but that is a separate matter.  
8.	At the moment, however, I am not persuaded that Mr Otuo has made out an arguable case that the Second Defendant has entered into binding contractual relations with him, either in 1992 or later.  In particular, in the light of its articles, I certainly do not see how he can be classified as a member of that body.  Nor am I persuaded that he has made out an arguable case that he will be able to show that an actionable breach of some particular obligation or rule has occurred.  I was accordingly of the view that I must reject the present application to amend the particulars of claim.
9.	After the hearing, I received a number of emails from the parties between 11 and 24 December 2015. The Claimant wished, in an attempt to boost his case on contract, to refer me to extracts from the two booklets Shepherd the Flock of God and Organised to do Jehovah’s Will.  These are apparently the current versions of earlier works which have subsequently been revised. I should make clear that the Defendants have submitted that they are completely irrelevant to any issue the court has to decide, but they nonetheless took the opportunity to respond to the Claimant’s submissions about them. As for Shepherd the Flock of God, the Defendants emphasised in a letter dated 11 December that the Claimant has never been appointed as an “elder” and that, accordingly, he would never have been formally supplied with a copy, since its sole purpose is to provide scriptural guidance as to their responsibilities which are, in any event, of a spiritual nature and not regarded as contractual.  A fortiori, therefore, it could not give rise to any legally enforceable agreement to which the Claimant was a party.  Since they regard it for these reasons as irrelevant, they declined to produce a copy.
10.	They made further comments about Organised to Accomplish Our Ministry, which is said to have been an earlier version of Organised to Do Jehovah’s Will.  Again, they say that it was never intended to be a legally binding or enforceable document; nor does it appear as such on its face.  It contains “matters of religious doctrine, practice and belief based on the Bible”.  Its purpose, as explained in the preface (which is relied upon by the Claimant, at least in part), was to draw attention to basic “scriptural responsibilities” on the part of those who are Jehovah’s Witnesses. In so far as it refers to “duties”, those are the duties undertaken voluntarily by some ministerial servants and elders.  They do not apply to all those who are baptised.  In any event, they are duties said to derive from the Bible and are not enforceable legally as a matter of contract. 
11.	The Claimant addressed particular passages which I have read (and upon which the Defendants have also since commented), but I can see nothing which lends support to his claim to have entered into contractual relations with the second Defendant.  In the event, therefore, the written submissions of the parties made subsequently to the hearing do not affect my original conclusion. 
12.	Indeed, in a letter of 24 December the Claimant reiterated his reliance upon the “oral agreement” he says that he made in 1992. His references to the written material were, he submitted, only intended “to reinforce the probability that there was indeed a contract offer from the two representatives of the second Defendant” (i.e. Messrs Yaw and Bugyei).  As I have said already, I am not persuaded that it is even arguable that anything either of them said was intended to create legal relations and, in any event, the second Defendant did not even come into existence until 1999.  The Claimant seeks to overcome that problem in his letter of 24 December, where he draws attention to a passage on page 27 of Organised to Accomplish Our Ministry, referring to “the International Bible Students Association in London, England (1914)”.  This is mentioned rather loosely as a “legal instrumentality” and a “legal corporation”.  The Claimant submitted, as |I understand it, that the second Defendant had operated through that body in England and Wales prior to its own incorporation (and presumably, so the argument goes, entered into the contract with him through that entity).  I am afraid that this makes no sense, since it cannot have operated at all prior to its own inception.
13.	I was then invited to consider the decision of Globe J in A v The Trustee of the Watch Tower Bible and Tract Society [2015] EWHC 1722 (QB).  That was a case in which the second Defendant seems to have agreed to meet any award of damages in a historic child abuse case – where the primary defendants were Jehovah’s Witness congregations held to have been vicariously liable for breaches of duty owed to the anonymous claimant (who had been sexually abused over several years following 1989).  Those were very different circumstances and the decision in no way supports the claim that the second Defendant entered into a contract with him in 1992.