Charity Commission for England and Wales v Cambridge Islamic College (2018)
When determining whether a registered charity's name was "too like" another registered charity's name for the purposes of the Charities Act 2011 s.42(2)(a)(ii), the words "too like" were to be given their ordinary meaning; that was a broad and open-ended meaning rather than one that focused entirely on visual or aural similarity.
The Charity Commission appealed against a decision quashing its direction made pursuant to the Charities Act 2011 s.42(1) requiring the Cambridge Islamic College (CIC) to change its name because it was "too like" the name of the Cambridge Muslim College (CMC).
The respondents were registered charities. Following a complaint by CMC, the Commission had to consider whether any of the sub-paragraphs in s.42(2)applied and, if so, whether it should exercise its discretion to direct CIC to change its name. The Commission held that s.42(2)(a)(ii) applied because CIC's name was "too like" that of CMC and that s.42(2)(d) applied because the name was likely to give the impression that the charities were connected when they were not. The Commission considered that the words "Muslim" and "Islamic" were interchangeable and that ordinary members of the public would be unable to differentiate between the two charities, despite their differing objectives. There was evidence that there was also confusion within the Muslim community, who knew the difference between the words. Allowing CIC's appeal against the direction, the First-tier Tribunal found that the words "Muslim" and "Islamic" were not "too like" each other when applying the "at a glance" visual or aural assessment detailed in the Commission's operational guidance policy (OG 330 Names of Charities). The tribunal accepted that there was some confusion between the words as terms when taking a conceptual approach, but considered that that was not the applicable test. It quashed the direction on the basis that neither s.42(2)(a)(ii) nor s.42(d) had been satisfied.
Was the "too like" test limited to visual and aural similarity? There was no justification, either in the wording of s.42(2)(a)(ii) or from its context and aims, for limiting the comparison to aural and visual similarity. The words "too like" were to be given their ordinary meaning; that was a broad and open-ended meaning rather than a meaning focusing entirely on visual or aural similarity. The fact that s.42(3) provided that any direction given on the basis of the "too like" test had to be given within 12 months of a charity's entry on the register did not support a limited interpretation on the basis that it would be unlikely that a view about conceptual similarity could be formed at that time. The similarity in meaning of the words was as apparent on the day of registration as was the similarity in their appearance and sound. Whilst the OG 330 guidance was useful for the public to gain some understanding of how the Commission applied its risk-based approach to considering s.42, it could not change the meaning of the statutory provision. Further, other parts of the guidance indicated that the Commission applied a broader test. The fact that s.42(2)(a)(i) focused on the aural and visual character of a name did not indicate that conceptual similarity was irrelevant. The other sub-sections of s.42(2) were not limited to aural and visual tests, and there was no reason to construe s.42(2)(a) as being so limited. The inclusion of conceptual similarity as part of the test did make it more difficult to see where the boundaries of the "too like" test lay, but that was a difficulty which the Commission was expected to grapple with in applying the other subsections of s.42(2). The inclusion of other factors of similarity did not make the Commission's task unduly onerous or subjective (see paras 23-28 of judgment). An attempt to rely on a settled practice informed by an established meaning of the identical provision in the Companies Act 2006 in connection with the register of companies was rejected (paras 29-37).
Making the decision afresh - The names were not "too like" when a range of factors was considered. Whilst the test was not limited to visual and aural similarity, those indicators were relevant. "Islamic" and "Muslim" were obviously different words that looked and sounded different. There had been sufficient evidence before the tribunal as to the distinction that the witnesses for CIC drew between the two terms on a conceptual level, and of the large number of charities that co-existed where the only difference in their names was the same difference that existed in the instant case. The tribunal had noted that the respondents' names included "Cambridge" and "College" but noted that other organisations included those identical words. Just as a difference which was limited to exchanging one commonly used word with another, such as replacing "association" with "society" or "trust", might not be enough to prevent two names from being too like if the shared words were more likely the be the readers' focus, so the similarity limited to commonly used words was not enough in the instant case to make the names "too like" when the different word was visually, aurally or conceptually similar (paras 39-42). There was no appeal against the aspect of the tribunal's decision relating to s.42(2)(d).
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26 Oct 2018
Upper Tribunal (Tax)
 UKUT 351 (TCC)