Chancel Repair: Ecclesiastical Duty and Financial Liability

It seems that, in the case of Hauxton Parochial Church Council v Stevens (1929) Probate 240, Mr Stevens, the lay rector, was imprisoned for contempt after neglecting the admonition of the ecclesiastical court to repair the chancel of his parish church (House of Commons Official Report volume 264, column 521).  However, neither the ecclesiastical court nor the secular court could force the lay rector to pay for the repair by the usual civil enforcement procedures (bailiffs etc).

The Chancel Repair Act 1932, which was passed in the wake of the Hauxton case, sought to enforce the lay rector’s liability, where it still existed, by conferring a civil jurisdiction on the secular courts.  However, that jurisdiction was not very clearly expressed in the 1932 Act.

The 1932 Act was first examined in Wickhambrook Parochial Church Council (‘PCC’) v Croxford (1935) 2 King’s Bench 417.  Mrs Croxford was one of several lay rectors of Wickhambrook church.  She received tithe rentcharge of £39.  The chancel required repairs costing £123.

The PCC sued Mrs Croxford under the 1932 Act for the entire cost of the repairs.  The county court dismissed the PCC’s claim on the ground that Mrs Croxford could not be liable to repair the chancel because she had not sufficient tithe income to pay for it.

The PCC appealed and was successful.  The Court of Appeal agreed that Mrs Croxford was liable to pay £123, even though her tithe income was only £39.  (To mitigate hardship, it stipulated a payment by instalments.)

The question of liability turned on the interrelation of the ecclesiastical law governing chancel repair and the 1932 Act.  Under ecclesiastical law the rector had the duty to repair the chancel, physically to do the work.  This is not quite the same as a liability to pay the cost of repair.  The distinction between ecclesiastical duty and financial liability is important.

S.2(3) of the 1932 Act provides that the secular court ‘if it finds that the [rector] would … have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court’ must order him to pay the entire cost of the repair.   The secular court has no discretion to inquire further into the case.  If the lay rector would have been liable to admonition by the ecclesiastical court to do his ecclesiastical duty, he is liable to pay the costs of repair.

The Court of Appeal concluded that Mrs Croxford would have been liable to be admonished to repair.  In reaching this conclusion the Court construed s.2(3) thus:

‘the only question … is whether the [ecclesiastical] court had the power to [admonish].  The word ‘liable’ shows … that the question … is whether the defendant could, consistently with the [ecclesiastical] law, have been admonished and not … whether the defendant would in fact have been admonished in the particular case’ (p.440).

The county court had taken the opposite view.  It apparently accepted that Mrs Croxford could have been admonished by the ecclesiastical court, but found that she would not have been, for two reasons.  First, she did not have sufficient funds to carry out the repairs.  Second, she was not the only lay rector.  The PCC could have pursued the other lay rectors for the cost of repairs, as well as Mrs Croxford, but it chose to proceed against Mrs Croxford alone.

Thus the county court held that ‘an ecclesiastical court, sitting as a court of conscience as well as a court of law, would have declined to [admonish Mrs Croxford]’ (p.424).

It is argued that the county court’s interpretation of s.2(3) was correct.  The Court of Appeal’s ‘rigorist’ interpretation suggests that a lay rector will be liable to pay the cost of repair, even if he would not have been admonished by the ecclesiastical court.  It therefore imposes a greater burden on the lay rector than did the ecclesiastical law.  Instead of merely enforcing a pre-existing duty, it lays down a new and stricter basis of liability.

The ecclesiastical court would have admonished a lay rector who wilfully refused or neglected to perform his duty.  It would surely not have admonished a lay rector who was unable to perform his duty for lack of funds.  Yet the Court of Appeal decided that the lay rector must pay the whole cost of repair, regardless of means to do so.

This raises the question of the extent or measure of the lay rector’s liability to pay for repair.  The 1932 Act translated a physical duty into a financial liability. 

The county court held that Mrs Croxford would not have been admonished by the ecclesiastical court.  It concluded from this that she should not be required to pay anything at all and should be allowed to retain her tithe income when the chancel stood in need or repair.

This decision was clearly unsatisfactory.  However, the Court of Appeal went to the opposite extreme, holding that a lay rector’s liability was not limited to his tithe property but was an unlimited personal liability.

In reaching its conclusion on the extent of liability, the Court of Appeal reviewed the existing ecclesiastical law.  Phillimore had suggested that a lay rector was only liable to be admonished if he had sufficient tithe income to repair the chancel, thus supporting the county court’s decision on Mrs Croxford’s liability.

The Court of Appeal rejected Phillimore’s dictum.  It considered that he did not take account of the position where, as in this case, there were several lay rectors.  ‘The parties sued might escape [liability] because of the insufficiency of their [individual] receipts, although the total receipts … might be sufficient to attract liability’ (p.431).  It rejected the contribution rules suggested by Phillimore to settle liability between lay rectors as ‘very unsatisfactory and illogical’.

Instead the Court of Appeal turned to other authorities.  It found that they contain ‘no trace of any condition limiting the liability of the lay rector’ (p.436).  On this basis it concluded that ‘the liability of a lay rector is personal and is not limited to the amount of his receipts …’ (p.437).

Yet the Court of Appeal misunderstood these authorities.  That they did not expressly limit liability did not justify the conclusion that liability was personal and unlimited.  As discussed, the pre-1932 ecclesiastical courts were concerned to enforce a physical duty, not a financial liability.  Therefore they were not concerned to establish the extent of a liability which they had no jurisdiction to impose.

The Court of Appeal referred to a case in which a bishop had ordered the sequestration of the tithes of a spiritual rectory to secure repair of the chancel (p.435).  The fact that sequestration was limited to the tithes actually supports the view that rectorial liability was limited to the property held by the rector qua rector.

The ecclesiastical court’s power to order sequestration was, of course, limited to spiritual rectors (clergy).  It had no power to order sequestration against a lay rector.  It was for this reason that the Chancel Repair Act 1932 was enacted.  However, even the power over the clergy was limited to property held ex officio.  A clergyman’s private or family property would have been beyond the reach of the ecclesiastical courts.  Thus, even if sequestration could lawfully extend to all  benefice property, glebe as well as tithe, to secure the repair of the chancel, it still did not impose an unlimited personal liability.

The 1932 Act was carelessly drafted, but it should not have been difficult to interpret it so as to achieve a just result in this case.  An ecclesiastical court would not have admonished a lay rector who was willing to perform his duty but lacked the tithe income to do so.  A conscientious lay rector who cannot fully perform his duty will perform it cy pres, by offering such tithe income as he has towards the repair of the chancel.

Thus it is argued that a secular court should conclude that, provided the lay rector has paid over his tithe income to the PCC, or into court, he would not have been liable to be admonished by an ecclesiastical court and so should not be subject to further liability.

However, the decision in Croxford was upheld by the House of Lords in Aston Cantlow PCC v Wallbank (2003) UK House of Lords 37.  Mr and Mrs Wallbank were owners of Glebe Farm (the name is significant).  As such, they were lay rectors of Aston Cantlow church.  The estimated cost of chancel repair was £95,000, vastly more than Mrs Croxford’s liability.

The liability to repair the chancel had, apparently, been attached to Glebe Farm under a private Act of Parliament of 1743.  As a result of this Act the parishioners gave land to the then rector in return for the extinguishment of their liability to pay tithes to him.

This arrangement was to their mutual advantage.  The parishioners ceased to be burdened with tithes.  The lay rector was relieved of the administrative burden of collecting the tithes from the parishioners.

Glebe Farm was part of the land given to the rector in 1743.  The Wallbanks were aware that Glebe Farm carried the liability to repair the chancel when they acquired it.

The House of Lords held the Wallbanks liable for the full cost of the chancel repairs.  They rejected arguments that the liability was unenforceable because it contravened the Wallbanks’ human rights.  Although the House of Lords questioned the soundness of the Croxford decision, they did not overrule it. 

This was doubly unfortunate for the Wallbanks.  Not only did their human rights claim fail, but their counsel’s preoccupation with the human rights claim meant that the question of the common law liability was neglected and the opportunity to overrule Croxford was missed.

There was some uncertainty about the conveyancing history of Glebe Farm.  The very name of the property suggested that it comprised rectorial glebe, not rectorial tithe.  Ecclesiastical law suggests that a rector is required to defray the cost of chancel repair from his tithe, not his glebe.  The glebe is for his personal maintenance.  All previous reported cases on chancel repair concern either tithe property only, or property comprising both glebe and tithe.

If the Wallbanks’ property comprised only glebe it is arguable that it did not carry the liability for chancel repair at all.  If the issue had arisen, the burden of proof would have been on the PCC to establish that the land represented tithe rather than glebe.

The historical facts of the Wallbank case reinforce the view that the Croxford rule of unlimited personal liability is flawed.  The rector in 1743 would never have accepted the tithe commutation land on the understanding that he faced financial ruin if the profits proved insufficient to pay for the repair of the chancel.  It is also unlikely that the parishioners sought to impose unlimited liability on the rector when they made over their land to him.  They merely wished to be free of the obligation to pay tithes.