Bourke and Another v Favre and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Nugee |
| Judgment Date | 02 February 2015 |
| Neutral Citation | [2015] EWHC 277 (Ch) |
| Docket Number | Case No. HC-2013-000366 |
| Court | Chancery Division |
| Date | 02 February 2015 |
[2015] EWHC 277 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Mr. Justice Nugee
Case No. HC-2013-000366
MR. R. PEARCE QC (instructed by Wilson Solicitors LLP) appeared on behalf of the Claimants.
Mrs. E. Talbot Rice QC (instructed by Withers LLP) appeared on behalf of the Defendants.
I preface this judgment by saying first that it is given while I am sitting in the Applications Court and is necessarily neither polished nor lengthy. I do however consider it important to give the judgment as soon as possible. Second I will refer, as counsel did, to the parties by their first names, without of course intending any disrespect.
This is an application to amend the particulars of claim. The background to the case and the facts are well known to the parties and it is not necessary for me to set them out in any great detail. Very briefly, the action concerns a landed estate in Chettle in Dorset, consisting of a principal house known as Chettle House, and various other houses and cottages and farm land and the like. In 1966 the estate was owned by Esther Bourke in part absolutely, in part in reversion contingently on the death of her brother without issue, which in the event happened. After apparently she had been diagnosed with terminal cancer, Esther gave the estate, other than Chettle House, to her daughter Susan, the first defendant, Susan being persuaded to marry so as to enable the gift to be given in consideration of that marriage and thereby avoid estate duty. Susan was the eldest of Esther's three children, the others being Patrick, the first claimant, and Edward or Teddy, who has since died, but his widow Barbara is the second defendant. Peter, the second claimant, is Patrick's son, and Fiona, the proposed third claimant, is Peter's wife.
The existing claims are two-fold. One is the claim based on the terms of a supposed oral agreement made by Susan, Edward and Patrick with Esther in 1966 at the time of the gift of the estate by Esther to Susan. The other is Patrick's claim for adverse possession of Home Farm. The proposed new claims are, firstly, an alternative claim based upon proprietary estoppel, and, secondly, three new adverse possession claims, one by Patrick to a copse, the other two by Peter and Fiona (a) to various parcels said to form part of the curtilage of Chettle House, namely the North and South Rookeries and the Tennis Court, and (b) to the vegetable garden.
I was referred to a number of well-known cases for a statement of the relevant principles, namely the decision of the Court of Appeal in Worldwide Corporation v. GPT Ltd. [1998] EWCA (Civ) 1894, the decision of the Court of Appeal in Swain Mason v. Mills & Reeve LLP [2011] 1 WLR 2735, and the decision of Hamblen J in Brown v. InnovatorOne plc [2011] EWHC 3221 (Comm). In Brown's case at paras.5 to 13 there is a statement of the principles by Hamblen J drawn from the other two Court of Appeal cases and various other cases, which strikes me as an admirable, accurate and succinct statement of the principles. I will not read it all out but those paragraphs are to be regarded as incorporated in my judgment as principles guiding me. I was also referred to a subsequent Court of Appeal decision, Hague Plant Ltd. v. Hague & Ors. [2014] EWCA (Civ) 1609 for a discussion in the judgment of Briggs LJ of what is for these purposes to be regarded as a late amendment: see paras.31 to 34. Again, I am not going to read out those paragraphs but they are to be regarded also as incorporated in my judgment. Mrs. Talbot Rice QC, who appeared for the defendants, sought to persuade me on the basis of what Briggs LJ there said, that whenever the trial date has been fixed and the amendment posits a risk to the trial date, it counts as a "very late" amendment as opposed to a simply "late" amendment. Put like that, I do not accept the proposition. That seems to me far too mechanical a view of the judgment, which is not to be read like a statute. Worldwide and Swain Mason were clearly cases of very late amendments being made either during the course of a trial or very shortly before it. The current application is not as late as that, but it is, on any view, a late application and, as Briggs LJ says, this is a factor of almost infinitely variable weight. I do accept that in any case where an amendment poses a risk of the loss of a trial date which has been fixed, that is a significant factor to put into the scale.
In para.14 of Brown v. InnovatorOne, Hamblen J lists four factors which are likely to be included in the relevant factors in any case as follows: (1) the history as regards the amendment and the explanation as to why it is being made late; (2) the prejudice which will be caused to the applicant if the amendment is refused; (3) the prejudice which will be caused to the resisting party if the amendment is allowed; (4) whether the text of the amendment is satisfactory in terms of clarity and particularity. I will take each of those four factors in turn.
So far as the history is concerned, I agree with Mrs. Talbot Rice that the history of these amendments shows that they were made later than they really should have been. The dates are well known to the parties but, very briefly and dealing first with the proprietary estoppel claim, the claim as issued confined this aspect of the case to the contractual claim. Even before issue, one might have thought that such a claim faced some fairly predictable hurdles. First, the Court would be asked to find that an oral agreement had been made in 1966, almost 50 years ago, and one that went beyond a purely informal and non-binding understanding or agreement between members of the same family, but was intended to be fully legally binding. Second, there was a predictable defence based on section 40 of the Law of Property Act 1925. One might have thought in those circumstances that the claimants before issuing proceedings would have given consideration as to whether they needed or had any alternative ways of putting that claim. It is not irrelevant that Peter himself, I am told, is a partner in a firm of solicitors and specialises in property disputes.
The proceedings were issued in November 2013. A defence was served in January 2014. That indeed made it clear that the defendants' case was, firstly, that the land was given to Susan absolutely with no terms attached, the defence referring to advice from counsel having been given to Esther before executing the conveyance containing the gift, that whoever was given the land in consideration of marriage once they married could dispose of the land in whatever manner they saw fit. The defence also relied on a lack of consideration and on section 40 and, for good measure, section 53 of the Law of Property Act. The service of the defence of course gave the claimants a second opportunity to consider the strengths of their pleaded case and whether they ought to think about any alternative claims. Indeed, the service of the defence led to the service of a reply in April 2014, by which time the trial window had been fixed for March 2015.
The first indication of a proposal to amend did not come until September 2014. That was said to be prompted by the drafting of the witness statements. No indication was given to the defendants at that stage of the nature of the proposed amendment, the only statement being "We would mention that our clients will be applying for permission to amend the claim". The defendants' solicitors, on 29 th September, invited the claimants to send a finished draft of the amended pleading or, at the very least, full particulars of the proposed amendment, and suggested that pleadings should come before the exchange of witness statements because otherwise further evidence would be required which would cause unnecessary and avoidable expense. That was followed up by a further letter on 3 rd October saying:
"You indicate you are applying for permission to amend the claim but provide no further information. Our Mr. Kertesz invited your Mr. Bourke on 29 th September to provide a finished draft of the amended pleadings or at the very least full particulars of the proposed amendment. Mr. Bourke has not done so. Until you have clarified the nature of your claim and we have an opportunity to consider your proposed amendments with our clients and leading counsel, our clients are realistically unable to prepare their defence or their evidence."
The response, on 6 th October, from the claimants' solicitors referred to a letter of 18 th November 1966, which was said to be very significant. It said:
"This evidence is a significant departure from the position that Mrs. Favre has repeated on numerous occasions. The effect of this letter and the evidence of your clients in respect of it in their witness statements will require further consideration by leading counsel and our clients. Until our clients have considered your clients' evidence, they are not in a position to comment further on the pleadings. Our clients may need to amend their claim but at present are not in a position to confirm whether they will, as it will depend upon your clients' evidence."
I have seen the letter of 18 th November 1966. No doubt several points may be made on it but, among other things, it does apparently refer to advice that had been given by counsel emphasising that there must be no strings attached to the conveyance by way of settlement upon marriage, that being apparently for Revenue reasons. The writer of the letter indicated:
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