Following the Arches Court's decision at [2022] EACC 1, noted above, the court issued directions on its own initiative to determine the original petition at an oral hearing. Thereafter the petitioners’ counsel wrote to the court taking issue with the directions made, which the court treated as an application to vary or set aside the directions.
The court noted that orders on the court's own initiative were encouraged by rule 18.3 of the Faculty Jurisdiction Rules 2015. Further, the order complied with rule 18.3(5), concerning a party's right to apply to set aside, vary or stay such an order.
The Arches Court had ordered the remission of the petition for redetermination under rule 27.8(2)(b). The petitioners argued that the absence of an order for a new hearing under rule 27.8(2)(c) meant that the directions for an oral hearing were unlawful. The court held that the Arches Court's decision placed no fetter on the consistory court; the direction for a re-determination did not preclude that re-determination being at a hearing.
It was not argued that, if the court had such a discretion to order a hearing, it should not do so. However, the court reviewed its decision of its own initiative, and reaffirmed its decision. It would be more efficient than a disposal on paper, which would still require a visit to the church and a fuller written judgment. It would prevent further miscommunications such as those that had affected the previous hearing. Finally, it should be recalled that the default position is that faculties were determined at a hearing; if the expediency test is not met in relation to disposal on paper, proceedings would default to a hearing.
The costs of the application were reserved to the hearing, the court noting that the costs order made on the appeal did not relieve the petitioners from any liability for the costs of the petition itself. Given that the petitioners had declared themselves unable to fund the litigation, the court ordered security for costs of the re-determination. [Jack Stuart]
