Baines-Clarke and Another v Corless and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Patten,Lord Justice Thomas,The Chancellor of the High Court |
| Judgment Date | 31 March 2010 |
| Neutral Citation | [2009] EWCA Civ 1318,[2010] EWCA Civ 338 |
| Date | 31 March 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2009/1635 |
[2009] EWCA Civ 1318
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mrs Justice Proudman)
Before: LORD JUSTICE RIMER
Case No: A3/2009/1635
THE APPLICANTS APPEARED IN PERSON, BY MR SIMON BAYNES CLARKE
THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED
(As approved)
Lord Justice Rimer:
This is a renewed application for permission to appeal, Arden LJ having refused permission on the papers on 1 September 2009. She regarded the proposed appeal as amounting to no more than a challenge to the findings of fact made by the trial judge, Proudman J, and was of the view that no case had been made that the judge was not entitled to find the facts that she did.
The trial raised several issues, but the only part of the judge's order that is the subject of the proposed appeal is that part by which she dismissed the claim of the claimants/applicants (Simon Baynes Clarke and his wife Sarah) that the defendants/respondents (Michael Corless and his wife Joanne) hold certain land on constructive trust for the owners of three adjoining properties, which owners include the applicants and the respondents.
The land in question is an estate road serving the properties and part of what the judge called the “western strip” that abuts that road. The respondents acquired that land for themselves in December 2004. They bought it from the developers of the three properties, Allum Estates Limited. The applicants' case at the trial was that in January 2003 the owners of the three properties (including the present parties) reached an agreement that if they could acquire such land from Allum, it was to belong to all of them via a management company. The complaint was that, in later buying for their own benefit, the respondents breached that arrangement. The case was that they did not, however, acquire the land free of the burden of that arrangement and that the principle which finds an articulation in Pallant v Morgan [1953] Ch 43 operates to compel them to hold it on the trusts of the original arrangement.
The judge found that what she called a “consensus” along the lines asserted by the applicants was made at the January 2003 meeting, although there is perhaps some inconsistency between her paragraphs 52 and 55 as to whether the consensus was directed not just in forcing Allum out but, in consequence, at also acquiring the amenity land, as it was described, from Allum. Whatever the resolution of that inconsistency, if that is what it was, the judge in paragraph 55 described the consensus as not “binding on the defendants' conscience in the acquisition of the amenity land”, a reference to their December 2004 purchase. She characterised the consensus as in the nature of:
“… an informal agreement between neighbours as to how to proceed against the common enemy, rather than an agreement intended to give rise to legal consequences between themselves.”
If wrong on that, the judge also considered whether the respondents continued to be bound by the consensus down to December 2004, and she gave her reasons between paragraphs 57 and 69 for concluding that by September 2004 the consensus had been abandoned. She also found that the applicants had placed no reliance on what had happened in January 2003, with the net result that the respondents' acquisition of the land was something that did not affect their consciences. The applicants' claim to the benefit of a constructive trust therefore failed.
The grounds of appeal are extensive and challenge, first, the judge's conclusion that the consensus reached in January 2003 was no more than an informal agreement between neighbours and did not bind the respondents' consciences. I consider that there is at least some arguable merit in that point that would in principle justify the giving of permission to appeal. That part of the grounds of appeal also asserts that, if she did not in fact do so, the judge should have held that the consensus extended to the acquisition of land from Allum.
The judge herself recognised that she might have understated the burden of the January 2003 consensus by going on to give her reasons why, in any event, it had been tacitly abandoned by September 2004. If her decision in that latter respect is incapable of serious challenge, an appeal on the first ground, even if successful, would be of no benefit to the applicants and permission on such ground would not be justified.
The grounds of appeal devote, however, some six pages to identifying factors that it is said the judge did not take, but should have taken, into account in arriving at her abandonment conclusion, and they are explained in the skeleton argument prepared by Mr Paul Stafford of counsel who appeared for the claimants at the trial, although before me this morning they have appeared in person by Mr Baynes Clarke.
These grounds show, as Arden LJ correctly identified, that this is essentially a fact-based appeal, which it is well known is the type of appeal that usually involves the scaling of a high mountain. Having considered the grounds and the supporting skeleton argument, I am still left with a real concern that they may all add up to nought. I feel, however, unable to conclude that the challenge to the judge's findings of fact is one that has no real prospect of success even though I express no view that it is likely to succeed. I am, however, at least satisfied that the grounds cross the permission to appeal threshold. I accordingly give permission to appeal.
Order: Application granted.
[2010] EWCA Civ 338
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Before: The Chancellor of The High Court
Lord Justice Thomas
and
Lord Justice Patten
Mrs Justice Proudman
Case No: A3/2009/1635
HC 07C 03305
Mr John McDonnell QC and Mr Paul Stafford (instructed by A J Powell & Co) for the Appellants
Mr Tim Morshead (instructed by Thomas Eggar Solicitors LLP) for the Respondents
Hearing dates: 9 th and 10 th February 2010
Lord Justice Patten:
Introduction
This is an appeal by the claimants, Mr and Mrs Baynes Clarke, against the dismissal by Proudman J ( [2009] EWHC 1636 Ch) of their claim for a declaration that the access road together with some adjoining land in a housing development known as Carmelstead Close, Lewes Road, Haywards Heath is held by the defendants, Mr and Mr Corless, on a constructive trust. The two issues on this appeal are whether an agreement between the parties in January 2003 was sufficient in its terms and effect to support the imposition of a trust upon the defendants’ acquisition of the land in question and whether the claimants continued to rely upon the agreement up to the time when the purchase took place in December 2004. The judge found against the claimants on both issues.
It will be necessary for me to consider in more detail the evidence presented to the judge about a number of the key events. But, by way of introduction, the history of the dispute can be summarised as follows.
In 2000 Allum Estates Limited (“Allum”) bought a large detached house in Lewes Road called Carmelstead from a Mr Burleigh with a view to carrying out a development in its garden. The property consisted of a large rectangular plot running longitudinally on a north-south axis from the Lewes Road in the south. Carmelstead itself is situated at the southern end of the plot close to the road and this enabled Allum to build two detached houses on the land behind.
The two new houses each have a garden at the rear and a parking area at the front. They were divided by a newly-built brick wall. In order to create the necessary garden space at the rear, the houses were sited centrally in the plot acquired from Mr Burleigh but Allum retained land on the western side of the plot which it used to construct a new access road running from some entrance gates to Lewes Road situated in the far south-eastern corner of the plot in front of Carmelstead. The access road curves around the front of Carmelstead and then passes to the west of the house in a northerly direction so as to connect with the front drives and parking areas of the two new houses. There is a grass strip (“the western strip”) between the access road and the western boundary of the plot, the northern end of which was used to accommodate a sewage treatment plant (“STP”) serving all three houses. The access road, as constructed by Allum, terminates in what has been described as a turning circle in front of the farthest of the two new houses (North Heath) which is owned by the defendants. The area in question is not in fact circular but is much wider than the access road itself and was designed to allow the residents and their guests to turn their cars there if necessary in order to avoid reversing along the access road back on to the main road.
North Heath was transferred to the defendants by Allum on 2 nd July 2001. The transfer included the grant of a vehicular right of way (in common with Allum and its successors in title) over the access road (including the...
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