Clowes Developments (UK) Ltd v Walters and Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR. JUSTICE HART |
| Judgment Date | 20 April 2005 |
| Neutral Citation | [2005] EWHC 669 (Ch) |
| Docket Number | Case No: BM330424 |
| Court | Chancery Division |
| Date | 20 April 2005 |
[2005] EWHC 669 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
From The Birmingham District Registry
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Hart
Case No: BM330424
Mr Jonathan Marks QC and Miss Kate Livesey (instructed by Messrs. Flint Bishop & Barnett) for the Claimant.
Mr Geraint Jones QC and Mr Robert Darbyshire (instructed by Messrs. Knight & Sons) for the Defendants.
Hearing dates: 15,16,17,18 & 22 March 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Hart:
This is a claim for possession of property known as Boulton Edge Farm, Back Lane, Chellaston, Derby. The property, which consists of a farmhouse and about one acre of land, forms part of registered title number DY30009, of which the claimant ("Clowes Developments") has been the registered proprietor since 18 th August 1989. The second and third defendants (respectively "Claire" and "Nigel") resist the claim on the ground that they have acquired a title by virtue of section 15 of the Limitation Act 1980.
Claire is the daughter of the late Gerry Walters. Nigel is her husband. The first defendant ("Mrs Walters") is his widow.
The history of this case goes back a long way. Gerry Walters had acquired the property together with about 12 acres of land in 1966. He bought it as a home for himself and his family (Mrs Walters and their children, Chris Scott and Claire) and for the purposes of his business as a smallholder. Claire was the youngest and at that date aged about 5. The business was principally one of market gardening, but Gerry Walters seems also to have tried to make a go with pigs, and at one stage with turkeys. Gary Walters was something of a character. One witness described him as larger than life. But his business ran into difficulties, and by 1972 it looked as though his house and holding were at risk from his mortgagees. Fortunately for him, he was able to interest a friend of his and local estate agent, Mr Alan Caddy, in a deal from which both in the long run might benefit. Mr Caddy would buy Mr Walters' property at an existing use value (£21,500) but on terms which would give Mr Walters a 30% share of development profit should residential planning permission be obtained for any part of the land. Mr Walters was to have an option to buy the property back at market value if permission was not granted within seven years. In the meantime Mr Walters could continue to occupy the house and the land immediately surrounding it rent free.
These agreements (with the exception of Mr Walter's licence to occupy the house and its immediately surrounding land) were elaborated in a contract dated 3 rd March 1973 between Mr Caddy and his partner (who later dropped out) on the one hand and Mr Walters. Mr Caddy could not, however, really afford to do the deal. He therefore sold on to a property development company, Mayfair Property Development Company Ltd ("Mayfair"), by contracts dated 15 th March 1973 and 30 th June 1973. Mayfair was owned by another mutual acquaintance of Gerry Walters and Mr Caddy, Mr Charles Clowes ("Mr Clowes"). Mr Caddy protected his interest in the development value of the property by taking a restrictive covenant from Mayfair. Mayfair (through Mr Clowes) was content for Mr Walters to continue to live at the property.
Despite this deal Mr Walters' business continued to flounder, and on 7 th August 1974 he was declared bankrupt. The potential financial benefit of the agreement with Mr Caddy thereupon vested in the trustee in bankruptcy, Mr Gillanders. Mr Walters however continued to enjoy the benefit of the licence which Mr Caddy had granted him and which Mr Clowes/Mayfair was content to honour.
Then, on 13 th January 1981, aged only in his late forties, Mr Walters died. Mr Clowes was advised by his solicitor, Mr Holmes of Flint Bishop & Barnett, that he should have a document signed by Mrs Walters recording the basis of her occupation. This was duly done, Mrs Walters signing a document dated 27 th March 1981 in the following terms:
"I Ann Felice Walters of Boulton Edge Farm Chellaston Derby hereby acknowledge that I hold my farm and land as Licensee of Mayfair Property Development Co Ltd rent free as Licensee only and I agree to give vacant possession of the whole or any part thereof at any time".
A year later, on 17 th May 1982, Mrs Walters consulted solicitors, Messrs Taylor Simpson and Mosley, about her position. She was able to give them a resume of the position about the sale to Mr Caddy, the retention by Mr Walters of a 30% interest in development value and her understanding that on Mr Walters' discharge from bankruptcy provision had been made for the relevant value to be paid to the trustee. She also had papers evidencing planning applications by Clowes Developments. She wanted to know who owned the farm and what her legal position was. This is all recorded in a contemporaneous attendance note. The solicitors wrote to Mr Holmes for information, and he replied on 21 st May 1982 setting out the position that the monies due from Mr Caddy to Mr Walters on a redevelopment would amount to about £8,000 per acre payable when Mr Caddy released Mayfair from its restrictive covenant, and that some three acres of the relevant land (i.e. part of the original 12 acres but not including any of the land then occupied by Mrs Walters) currently had outline permission and concluding:
"Since the original sale in 1972 Mr Walters was allowed to live on the farm as Licensee rent free and after his death the writer arranged for a similar arrangement to apply to Mrs Walters who agreed on the 27 th March 1981 that she would occupy as Licensee only rent free, and she agreed to give vacant possession of the whole or any part of the land at any time."
This was copied to Mrs Walters with a covering letter which asked her for her recollections of what had been agreed on 27 th March 1981. She seems not to have replied for nearly a year. When she did so, her letter dated 17 th May 1983 read in material part as follows:
"Thank you for sending me the copy of the letter from Mr Holmes, setting down my position in black and white. I realize now that I probably panicked a bit after my husband's death as I did not feel that my situation was very secure. However, time goes by and there are no further developments except that the houses are creeping closer and Mr Clowes has taken control of the land and let it to a farmer, so I will just sit tight until something definite happens."
Something did happen later that year. Planning permission had been obtained in respect of some 2.7 acres of the former holding and Mr Caddy had received a payment for the release of the restrictive covenant. 30% of this (a sum of about £7000) was duly accounted for by Mr Caddy to the trustee in bankruptcy. Mr Holmes wrote to Taylor Simpson Mosley on 31 st October 1983 advising them that this had been done, adding
"the covenant was released in favour of Mayfair Property Development Co (Derby) Ltd (Mr Clowes) who we understand are quite willing for Mrs Walters to continue occupation for the time being under the Licence agreed in March 1981"
This letter was passed on to Mrs Walters. At that time the occupants of the farm appear still to have been Mrs Walters and her three children. Chris moved out in 1984 and Scott somewhat later. At some point in the early 1980s Claire had partially removed herself while involved in doing up a house elsewhere with her then boyfriend, but she was in full time occupation again by 1985 and has been so ever since. In 1986 or 1987 Nigel, by then Claire's boyfriend and now her husband, moved in.
In April 1988 Mrs Walters moved out, going to live at first in Derby and later in Lyme Regis. The move seems to have been envisaged as a permanent one from the outset: Mrs Walters took with her most of the furniture in the house and the kitchen equipment. No notice of the fact that she had moved out was ever given to Mayfair.
By 1989 Nigel and Claire were living on their own at the farm and had decided to set up an aviary at the farm, for the purposes of business to be carried on by them specialising in exotic birds. For that purpose they were advised that they needed to apply for planning permission. The application, made in Claire's name (she was still Miss Walters at this date) on or about 28 th April 1989, was made on the footing that she was not the owner of the land, and certified that she had given notice of the application to the owners who were identified as "C W Clowes Inv Ltd Brailsford Hall Brailsford". It is clear from a contemporary letter written by her to Mr Clowes that she had in fact earlier spoken to Mr Clowes about the application and ascertained from him that he had no objection. The necessary permission was granted on 20 th June 1989.
That was not the first occasion that year that she had spoken to Mr Clowes. He had visited the farm in March 1989 with a surveyor called Jane Adams to do a valuation. They seem barely to have introduced themselves to Nigel and Claire, and not to have asked after Mrs Walters. The purpose of the visit was to establish a value for the farm. Claire remembers it as a case of her having been told by them that it was for the purposes of "land taxation". It seems likely that it was in fact for the purpose of ascertaining an appropriate figure to be inserted in a transfer then in contemplation of the whole of title number DY 30009 from Mayfair to Clowes Developments (then known as C W Clowes (Investments)...
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