The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER 1994

Recent Irish Cases Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University The following case summaries have been reprinted f r om t he Irish Law Times and Solicitors Journal w i t h t he kind permission of t he publishers.

be joined as a plaintiff and that the East- ern Health Board should be joined as a defendant. Held by Keane J in adjourning the fur- ther hearing of the case in order to enable a new draft cy-pres scheme to be prepared: (1) Although all the parties had agreed that the bequest of the books was charitable in nature, the court could require argument on the point as this was not a case in which it was solely concerned with the resolution of issues between private parties. The cy-prés ju- risdiction could only be exercised in respect of charitable donations and be- quests. (2) Given that only a small proportion of the library was devoted to medicine and surgery, it was difficult to regard the bequest as being for edu- cational purposes. Even if it was for such purposes, it did not constitute a charitable gift for the advancement of education as it was not intended to be for the benefit of the public. Because of the terms of the bequest, any educa- tional function served by the library would benefit only the office holders specifically mentioned by the testator. (3) A gift of a library is not charitable per se. However, such a gift can have chari- table status if it established that it is for the public benefit through being open to the public or conducive to the attain- ment of other charitable objects. (4) The testator had not intended that the li- brary should be used by any persons other than the three named office hold- ers. Access to the books was limited and they could not be removed from the library. Accordingly the bequest did not constitute a charitable gift for the advancement of learning falling within the fourth category of charitable trusts. This category covers trusts for purposes beneficial to the community which do not fall within any of the other three categories relating to trusts for the relief of poverty, the advancement of educa- tion and the advancement of religion. (5) It was well established that a gift for the benefit of a hospital was charitable. The particular books were of limited practical value to the surgeon, physi- cian and chaplain. Nevertheless, the library provided a place of intellectual relaxation for these office holders where they could escape from the stressful environment of the hospital. Thus despite being for their benefit, the bequest could be regarded as a gift for the advancement of Dr Steevens' Hos- pital and thus charitable within the

fourth category. (6) The testator had in- tended to benefit Dr Steevens' Hospital and no other institution. Thus it was impossible to infer a general charitable intention. But as the hospital no longer existed the original purposes of this ab- solute and perpetual charitable bequest could not be carried out according to the directions and spirit of the gift. There- fore it was appropriate to alter the original purposes so as to allow the property to be applied cy-pres. (7) In considering how the property should be applied cy-prés and whether a scheme should be framed in the manner proposed by the plaintiffs, it was desir- able that the original intentions of the testator should be adhered to as far as possible. However, the court should not attempt to envisage how the particular donor would now dispose of his prop- erty. Instead the court had to consider how a hypothetical benefactor of the present day with the same background and interests as the donor and a chari- table disposition would act. It would also be reasonable to credit him with a desire to associate his charitable work with the building in which Dr Steevens' Hospital was located, as his eighteenth century equivalent had wished the hos- pital to be the object of his benevolence in perpetuity. (8) Notwithstanding the presence of conservation facilities in Trinity College, there was no evidence that the physical condition of the books would be better preserved by being kept in the college rather than in the hospital building. Although the books could be compared with others of the same era if they were held at Trinity College, removing them from the sur- roundings of the library in the hospital would make it impossible for scholars to appreciate their overall significance as a private library built up in the eight- eenth century. Accordingly any cy-prés scheme framed by the court had to pro- vide for the retention of the books in their original setting in the hospital. The matter should be adjourned so that con- crete proposals for a scheme to facilitate this could be drafted. (9) The Eastern Health Board would not be acting out- side their powers under the Health Acts 1947-1991 if they undertook the custody and management of the books. Section 78 of the 1947 Act and section 60(3) of the Health Act 1970 empowered them to acquire any estate or interest in land for their statutory purposes, and they had the implied power to do any acts

In the Matter of the Trust of the Worth Library: The Provost, Fellows and Scholars of the College of the Holy and Undivided Trinity near Dublin and Patricia Donlon v. Attorney General and the Eastern Health Board: High Court (Keane J) 18 June 1993 Trust - Charity - Cy-pres scheme - Bequest of books for benefit of certain office holders for time being in hospital - Closure of hos- pital and sale of building - Appointment of first named plaintiffs as trustees and re- moval of books to their premises - Purchaser of hospital building seeking return of library - Application for order framing cy-pres scheme - Whether bequest charitable - Na- ture of charity testator intended to benefit - Whether conditions had arisen for exercise by court of cy-pres jurisdiction- Charities Act 1961, section 47 Facts By his will dated 11 November 1723, Dr Edward Worth left a large col- lection of books on a variety of topics to trustees to be kept in a room at Dr Steevens' Hospital for the 'use, benefit and behoof' of the physician, chaplain and surgeon for the time being for the hospital. Following his death in 1732, and in accordance with the bequest, the books were kept in a room which be- came known as 'the Worth Library.' On the closure of the hospital in 1988 its governors, as the trustees of the books, decided to transfer the library to Trinity College and accordingly appointed the college as trustees in their place. They also sought the advice of the Commis- sioners of Charitable Donations and Bequests for Ireland as to the estab- lishment of a cy-pres scheme allowing for the removal of the library to Trinity College. In the meantime the commis- sioners approved its transfer to Trinity College on a temporary basis for safe- keeping. Later in 1988 the Eastern Health Board purchased the hospital for use as their headquarters and sought the return of the library. On 5 February 1991 the commissioners ap- pointed Trinity College and the director for the time being of the National Li- brary as trustees and vested the trust property in them. On 31 May 1991, in accordance with section 51(1) of the Charities Act 1961, the Attorney Gen- eral gave his consent to the application of the trustees to the High Court for an order framing a cy-pres scheme. On 20 January 1992 Costello J ordered that the director of the National Library should