Cook v Thomas and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Sullivan,Lord Justice Laws |
| Judgment Date | 17 March 2010 |
| Neutral Citation | [2010] EWCA Civ 227 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5 2009/1798 |
| Date | 17 March 2010 |
[2010] EWCA Civ 227
Mr Recorder Stephen Eyre
Before: Lord Justice Laws
Lord Justice Lloyd
and
Lord Justice Sullivan
Case No: B5 2009/1798
8HR01124
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HEREFORD COUNTY COURT
John Stenhouse (instructed by Kidwells Law) for the Appellants
Ewan Paton (instructed by Shawcross & Co) for the Respondent
Hearing date: 11 February 2010
Lord Justice Lloyd:
This appeal by the Defendants is brought from an order of Mr Recorder Stephen Eyre made on 31 July 2009 in proceedings in the Hereford County Court. The litigation arises from a most unfortunate and regrettable dispute.
The Claimant, Mrs Cook, is a widow aged 92. Her only child is Mrs Pauline Thomas, the First Defendant, who herself is now 60, and is married to the Second Defendant, Wyndham Thomas, who is 76. The proceedings relate to Tretawdy Farm, Llangrove, Ross-on-Wye, which has been the home of the Claimant since 1959, was the home of the First Defendant from the age of 9 until her marriage in 1990, and has been the home of the Defendants since 1996. The parties have fallen out and have not been on speaking terms since about 2002. Mrs Cook is undoubtedly the sole owner of the property. By these proceedings she seeks to evict her daughter and son-in-law from the house and farm. This she is entitled to do unless the Defendants can make good their claim, which is put in various ways but is essentially one of proprietary estoppel, whereby the Claimant is to be precluded from relying on her legal right to claim possession, and required to recognise a right on the part of the Defendants which is now said to be a right to live in the property during the remainder of the Claimant's life (together with her), and to become the absolute owners of the property on her death. The recorder rejected this claim in an admirably careful and considered judgment, following a two day trial in the course of which he heard all three parties give evidence, together with one other witness.
The facts in outline
The Claimant and her late husband moved to Tretawdy Farm in 1959. The farm extends to not quite 19 acres, so it is not unfairly described as a smallholding, with a farmhouse on it. Mr Cook kept some cows and horses on the land and tended them in his spare time from his employment, milking the cows and delivering milk locally. His wife was not at all interested in the farming. Miss Cook (as the First Defendant then was) helped her father on the farm, particularly with the milk, eventually taking the milk round over from him. She also operated a riding stables and later, from about 1970 to 1984, a riding school there.
In 1990 the First Defendant married the Second Defendant. For whatever reason (it is unnecessary for the purposes of these proceedings to try to decide why) this caused a complete rift between the parents and their daughter. They were not on speaking terms for the next 5 years or so, until Mr Cook's death in November 1995.
The Defendants did attend Mr Cook's funeral, however, and this led to a reconciliation which lasted for some 6 years. At the time of the funeral the Defendants lived in a mobile home which they owned, on a caravan site where they paid a modest ground rent.
During 1996 the Defendants sold their then mobile home, bought another and moved to Tretawdy Farm, planning permission having been obtained on a temporary basis to place a mobile home there. They lived in that mobile home on the farm until late 2001. At that time their mobile home was seriously damaged in a storm, and part of the roof came off, so that it was no longer habitable. Then the Defendants moved into the farmhouse. In 1996 they took over the farm and such farming activity as there has been since then (mainly sheep) has been theirs. They have repaired farm buildings.
It is clear that the farmhouse was in a dilapidated state by 1996. A number of works of repair to the house were undertaken between 1996 and 2002, some of them at the initiative or the expense (or both) of Mrs Cook and others to some extent at that of the Defendants, and some of them done by the Second Defendant.
The Defendants’ case is that, between 1996 and 2001, the Claimant's words (on four separate occasions) and conduct was such that, they having reasonably relied on the words and conduct to their detriment, she is now not entitled to deny them either the right to live in the farmhouse and to farm the land for as long as they want or the ownership of the whole property on her death.
In about 2002 the parties fell out again. The judge heard evidence about why this was, and about an incident to do with a Landrover which seems to have been at least a significant cause. It is unnecessary to go into that for the purposes of the appeal. At some time, probably after that, the Defendants came to know, or to suspect, that under the Claimant's will they would not inherit the property on her death. The Claimant says that she and her husband had agreed that the farm should eventually go to a particular local nature charity. By a will made after her husband's death, and after the reconciliation with the Defendants, in 1996, she left a life interest in the property to the Defendants, and gave it to the charity subject to that life interest. She gave her residuary estate to the First Defendant. Since then she has made two further wills. Under the latest the property is to go straight to the charity, with no interest to either Defendant.
Since the date, which I take to have been in about 2002, when the parties fell out, they have continued to live in the house, but have not been on speaking terms. The house is so laid out that they can and do live separate lives. In March 2008 the Claimant's solicitors gave the Defendants six months’ notice to quit the property. Her legal title is not in dispute, but the Defendants deny that she is entitled to turn them out, and they live in the house still, with the benefit of a stay of execution since the judgment against them.
The Defendants’ case
The Defendants’ case is put in different ways in the Defence and Counterclaim: proprietary estoppel, estoppel by conduct, estoppel by agreement, constructive trust and unjust enrichment. As it seems to me, if the Defendants can make out a case it is by virtue of proprietary estoppel. If they cannot do so on the principles relevant to that, they cannot do so under any other label.
The facts on which this case is put forward centre on what was said on four occasions, described in the Defence and Counterclaim as four “promises”, on the individual and cumulative effect of these promises, on how the Defendants understood what was said to them and what they did in reliance on the promises, and on the Claimant being aware of what they were doing and allowing them to go on doing it without correcting any misapprehension that they were under. (I will use the word promise as a convenient label, without prejudging the terms or effect of what, if anything, was said.)
So far as two of the four promises are concerned, the first and last, something was said between the parties, and the dispute was as to what it was, and how it was, or should reasonably have been, understood. In the case of the other two, the Claimant denied that anything at all had been said as alleged. In each case, therefore, there was a dispute of fact to be resolved by the judge on the evidence as to what was said, and as to the relevant context in which it was said. Equally, he had to decide how whatever was said was taken and understood, as a matter of fact.
The first promise is said to have been given as part of the arrangement under which the Defendants moved to Tretawdy Farm in 1996. The Defendants say that the arrangement was at the Claimant's initiative and request, whereas she says it was at their, or the Second Defendant's, suggestion. In paragraph 12 of the Defence and Counterclaim they assert that the arrangement was that they would move from their then mobile home to live in another mobile home on the farm, so as to be able to tend to the Claimant's physical needs, provide her with company and make her feel safer, to take over all aspects of the farming activity, and carry out necessary repairs to the property, including to the farmhouse, paying no rent but making a contribution to household bills, with unlimited use of the gardens and farmland for as long as they wanted, running the farm for their own benefit entirely. It is not in dispute that they did sell their mobile home and move to another on the farm, nor that they took over all the farming activity, which they carried on as suited them.
In February 1996 the Claimant applied for planning permission for the mobile home to be placed on the farm. In her letter to the planning authority, she said that she was registered disabled and 79 years old, and needed someone at hand to help in an emergency, and to help with jobs that needed doing to keep the property reasonably tidy, if she was to be able to stay at the property as she wanted. Permission was granted in April 1996 for 3 years or until she left the property, whichever was the sooner. It was renewed for a further 3 years (on the same basis) in 1999. The limitation of time was explained on the basis that permanent siting of a caravan would be contrary to the proper planning of the locality.
The Claimant denied in her Reply and Defence to Counterclaim, and in evidence, that the arrangement was made in...
To continue reading
Request your trial
-
Asen Kotsev v The Sofia District Public Prosecutor's Office (a Bulgarian Judicial Authority)
...primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue: see eg Cook v Thomas [2010] EWCA Civ 227, [48]. 28 In the present case the judge based her finding that the Appellant had deliberately absented himself on his sing......
-
Theodossiades v Smith and Others
...Group [2002] EWCA Civ 1642; [2003] 1WLR 577, E I Dupont de Nemours v ST Dupont [2003] EWCA Civ 1368; [2006] 1WLR 2793 at [94] and Cook v Thomas [2010] EWCA Civ 227 at [48]. In the end I have come to the conclusion that it is not necessary to decide this issue. For reasons which will becom......
-
Frank Perry (Appellant/Claimant) v Raleys Solicitors (Respondents/Defendants)
...be resisted as a matter of both principle and on the merits. On the issue of principle, Mr Quiney relied on the statement of Lloyd LJ in Cook v Thomas [2010] EWCA Civ 227 (at paragraph 48) that: "In a case in which the judge has had the benefit of oral evidence from the witnesses, has made......
-
Dorinel Cojanu v Essex Partnership University NHS Trust
...57 I take into account the settled case law which sets out that findings of fact are difficult to overturn on appeal: Per Lloyd LJ in Cook v Thomas [2010] EWCA civ 227 at [48]: “an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses......
-
Informal Care and Private Law: Goveranance or a Failure Thereof?
...2005) at ch 11 for a general discussion of private law remedies for “good Samaritans” in English Law. 66. See e.g. Cook v h omas , [2010] EWCA Civ 227; Walsh v Singh, [2009] EWHC 3219 (Ch); Sloan, supra note 8 at 121-39; Sarah Nield, “Testamentary Promises: A Test Bed for Legal Frameworks o......