Scottish Court of Session Decisions

LORD PRESIDENT (Cooper).—There has been established for many years in the City of Aberdeen a charitable organisation known as the "Scotstown Moor Children's Camp," its purpose being to provide for needy and ailing children a short holiday at Scotstown Moor, near Aberdeen. Between 1905 and 1939 this organisation appears to have carried out its beneficent function with complete and increasing success, first utilising canvas tents for the accommodation of the children, and ultimately securing a feu of three acres and erecting thereon three blocks of stone and brick buildings. It appears that during the ten years prior to 1939 an average of 520 children per annum were provided with a fortnight's holiday, and that the demand remained high, especially from the poorer eastern quarter of the city. The modus operandi of financing the enterprise was partly by cash subscriptions from the public, donations and legacies, but also to a material extent by gifts in kind of food stuffs for the purpose of providing for the catering at the camp.

In 1939 the camp had to be discontinued for reasons associated with the war, and some of the buildings were in 1944 requisitioned by the Air Ministry, by whom they were released only in May 1947. The trustees are now faced with the question of the future, and they are in the comparatively fortunate position of having a site and buildings valued at about £4000 and about £4000 in funds. After sundry investigations they have presented to us a petition for approval of a cy près scheme upon the allegation that it is no longer possible to carry out the objects of the association; and their proposal is to transfer the buildings, site and funds to the local battalion of the Boys' Brigade and, in effect, to terminate their enterprise.

As is customary, we remitted to a reporter, who has provided us with a very full and satisfactory report; and in relation to that matter I pause to make an observation upon a point of procedure. Following the presentation of our reporter's report, the petitioners presented and asked that we should receive a note which, from a casual examination of it, consists of lengthy and detailed criticisms of, and answers to, the reporter's comments and suggestions. We declined to receive that note, and I think it right to say that it is not in accordance with the settled practice of this Court for such written answers to be presented to reports made by reporters whom we appoint.

In the course of his argument to-day, Mr M'Donald, including in his oral argument the substance of the note which we have refused to receive, maintained that the reporter, who was of opinion that we had no jurisdiction in the matter, was wrong, and that the cy près scheme should be approved.

I wish once again to emphasise the point taken by Lord President Clyde in Glasgow Domestic Training School, that the jurisdiction which this Court exercises in relation to charitable trusts is not a general discretionary jurisdiction to divert the funds of charities from one object to another as we may think appropriate. We are not a charitable endowments commission clothed with subordinate legislative powers. The exercise of our cy prèsjurisdiction is conditional and dependent upon our ability in the first instance to determine that the object or purpose of the charity has failed, or, where particular methods have been prescribed for the achievement of the object, that those methods have in altered circumstances become impracticable.

Now in this case, as I said, the object which is prescribed for this organisation is to provide for needy and ailing children a holiday in the country, and no methods are prescribed for the achievement of that object. It would manifestly be competent for the association to achieve it in any practicable method they care to select. The question accordingly comes to be whether the petitioners can satisfy us that the object of their association has in a substantial sense failed, and I am bound to say that that seems to me to be an exceedingly difficult onus for them to undertake. For one reason, it is, I think, a matter of judicial knowledge that similar organisations with similar objects are operating to this day in many parts of the country. We know that in the Camps Act of 1939 provision was made for the carrying on of enterprises of this kind under official auspices, and in the latest Education (Scotland) Act of 1946, section 3, one of the duties imposed upon education authorities is to establish, maintain and manage, or assist the establishment, maintenance and management of, camps and holiday classes and various other quasi-educational and recreational institutions of that kind. In addition, I would note that from one paragraph of the report which is before us it appears that there is at the moment in Aberdeen another organisation which, so far as appears, is still carrying on the very object for which the present petitioners exist.

What then is said in favour of the prima facie unacceptable view that the object of this charity has failed ? It is said in the first place that the food rationing regulations are fatal to the whole enterprise. I am afraid that I fail to understand that argument. It is not possible to determine whether, in terms of sundry regulations to which reference was made, this organisation could or could not obtain a special licence for the Scotstown Moor Camp. What seems abundantly plain is that the children who may be invited to go to the Scotstown Moor Camp are just as much entitled to their individual rations as they would be if they remained at home, or went on holiday to any other place whether with their parents or otherwise; and while the rationing regulations may well introduce into the life of this organisation, as into the life of other citizens of the country, a good deal of worry, I cannot understand why that feature in isolation, or even in combination with the other factors relied upon, should be regarded as fatal to the enterprise. It is said in the second place that there are financial difficulties because, during the nine years throughout which the enterprise has been dormant, the public support has fallen off. Such a result, as our reporter points out, was only to be expected; and I do not see why a revival of activity at Scotstown Moor Camp should not elicit a revival in some measure of the local public support previously attracted by this scheme. But, apart from that, the association is not bankrupt, but on the contrary has substantial assets which place it far beyond immediate financial difficulties. It was said in the third place that owing to disuse and to the requisitioning, and owing to a fire which destroyed one of the buildings, the premises would require to be reconditioned at considerable expense. I do not know how much money would be necessary, and it appears that no estimates have been obtained; but this at least is clear, that the buildings are no essential part of the object for which this organisation was formed. Indeed, until comparatively recent times, the organisation had no buildings at all, but relied upon canvas; and if the trustees prefer to recommence operations on a more modest scale than obtained in 1939, there is no reason why they should not do so. The mere fact that they may have to do so is, as is shown by the case of Ness, no reason for regarding their primary object as one which is now incapable of achievement.

I forbear making any reference to the alternative project advanced in the petition, because in my view that question has not arisen. We are still at the stage of having to satisfy ourselves that we have jurisdiction to intervene at all, and, for aught yet seen in the petition, the report, and the oral arguments addressed to us, I am not satisfied that we possess the indispensable basis for the exercise of the Court's jurisdiction.

My motion accordingly would be that the appropriate course with a view to avoiding unnecessary expense to the petitioners would simply be to continue this case, upon the footing that, if and when they have exhausted further efforts to resuscitate this enterprise even on a more modest scale, the case might be open in the light of new circumstances to be reviewed a second time.

I would only add that the official contacts which appear to have been made by the petitioners seem to have been made chiefly with the health authorities, central and local, and I would suggest for their consideration that it might be to their advantage to explore the matter from the standpoint of the central and local education authorities.

LORD CARMONT .—I agree, and have nothing to add.

LORD RUSSELL .—I also agree.