Davies v Davies
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lord Justice Longmore |
| Judgment Date | 27 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1226 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2015/2273 |
| Date | 27 October 2016 |
[2016] EWCA Civ 1226
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COMBINED COURT
(HIS HONOUR JUDGE PEARCE-HIGGINS QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Longmore
Lord Justice Briggs
A2/2015/2273
The Appellant appeared in person
Mr B Stimmler (instructed by Ellis Hass & Co) appeared on behalf of the Respondent
This appeal arises out a family dispute over the beneficial ownership of a barn and surrounding land amounting to 1.3 acres near Suckley in Worcestershire. I will call it the barn land.
The Appellant is the legal owner of the barn land in which the Respondent, her son, claimed an equitable interest. The judge at first instance, His Honour Judge Pearce-Higgins QC, found that the Respondent enjoyed an equity in the barn land by way of proprietary estoppel, that the equity was worth £68,000 and that it should be secured by way of a charge over the Appellant's land.
The point raised by this appeal is the narrow one of which proportion of the Appellant's land should be charged with the sum of £68,000. In his reserved judgment, Judge Pearce-Higgins appears originally to have intended to impose the charge over the barn land, i.e. the property in which the Respondent has an equitable interest. However, in paragraph 6 of his order the judge appears to have actually imposed a charge over the rest of the Appellant's land known as Mosewick Farm, to which the barn land was then adjacent but into which it has now been incorporated.
The Appellant has lived in Mosewick Farm for very many years. The Appellant has been granted permission to appeal only that section of the order which relates to the identity of the land to be charged.
The facts
Mrs Margaret Davies is the Appellant and was the First Defendant in the first instance proceedings. In about 1959 the Appellant and her husband, Mr Thomas Lewis Davies, moved into Mosewick Farm. The farm was then about 50 acres and included a farm house. They have four children. Mr Sidney Davies, the Respondent and Claimant in the first instance proceedings, is the second son. Mr Gregory Davies, who has assisted the Appellant in bringing this appeal, is the Appellant's grandson.
In about 1963 the Appellant and Mr Thomas Davies purchased Barrow Mill Farm, which was comprised of 38 acres and which brought the total size of the farm up to 88 acres. This included the barn land. The Respondent moved into a caravan on the barn land in or about Easter 1975 and undertook some conversion work to the barn. The dispute between the parties related to the capacity in which the Respondent has occupied his property since then and in particular whether he enjoyed an equitable interest in the barn land.
On 21 June 2011 the Respondent issued proceedings against the Appellant seeking a declaration that the barn land was held by the Appellant on trust for the Respondent and an order that the freehold title of the property should be conveyed to the Respondent. On 8 September 2011 the Appellant filed a defence and counterclaim relating that the Respondent at all times had been a licensee or tenant of the Appellant and accompanied that by a notice to quit the barn land.
The case was allocated to the multi-track. On 13 May 2013 the trial hearing commenced before Judge Pearce-Higgins. As it was common ground that the value of the barn land exceeded the jurisdictional limit of the County Court, the judge transferred the matter to the High Court and proceeded to hear it as a Deputy High Court Judge under section 9 of the Senior Courts Act.
In his final approved judgment handed down on 27 September 2013 the judge found, among other things, that the Respondent did enjoy an equity in the barn land and that his beneficial share should be valued at £68,000 out of a then current valuation for the barn land of £170,000. At paragraph 29 of his judgment headed "Satisfying the equity", he said:
i. "Bearing in mind the family relationships, it is my judgment that any order that leads to the Claimant [that is the Respondent in these proceedings] as owner of the land is likely to lead to trouble with the Defendants as his neighbours. Further, in any event, I suspect the property will have to be sold. The Claimant and his wife may be able to find funds to buy out the First Defendant and both said that if they were able to buy, they would hope to complete the conversion works. I think it unlikely. The First Defendant was not sure what would happen to the property if the claim failed. There is no evidence that the First Defendant and her family have the energy or resources to complete the conversion. I expect in reality that whatever the result, the property will be sold. In my judgment, the best way to satisfy the equity the Claimant has is to quantify it and provide for that sum to be paid by the First Defendant within a certain time and if not, order the property to be sold to provide the necessary funds for payment of the Claimant."
At the hand-down hearing, the judge had to convert his decision into a workable method for ensuring that the Respondent obtained the value of his share on quitting the barn land. He was told by the Appellant's counsel, Robert Pearce QC, that the Appellant wanted to combine the barn land with Mosewick Farm into one title and use it as security for a loan with which to pay both the value of the Respondent's beneficial share and any costs liability arising from the case which she had then by in substance lost.
There followed a discussion between counsel and the judge about how the Respondent should be protected in the meantime. At the suggestion of the Respondent's counsel, Mr Stimmler, the judge decided that he should impose an immediate charge. It is not at all clear whether he meant a charge over the property in dispute, i.e. the barn land, or a charge over Mosewick Farm into which the Appellant wished to incorporate it.
Counsel then together prepared and agreed an order for the judge to sign, which he duly did. By order also dated 27 September 2013, the judge ordered that on payment of the £68,000 the Respondent's equity would be extinguished and that this sum, plus £22,500 in costs which he ordered by way of interim payment on account, would be secured by way of a charge over Mosewick Farm. Although he gave judgment for the costs on account of her liability to pay 90 per cent of the Respondent's costs, he did not give judgment for £68,000. That is entirely understandable. He had merely valued the Respondent's interest at £68,000 and made provision for it to be extinguished if the Appellant could afford to do so by payment.
The Respondent was to vacate the barn land by 28 October 2013 and his valued share was to carry interest thereafter. The order permitted the Appellant to apply for further time in which to pay provided that she did so in time for a hearing on 12 November 2013, which the judge reserved to himself. The implication was that if the Appellant neither paid nor obtained an extension then the Respondent could enforce his charge.
The Appellant neither paid the £68,000, nor the costs, nor obtained, if indeed she even sought, an extension of time, nor did she appeal the September order. The Respondent was left to seek to realise his interests and get his costs paid with the rights conferred him by that order. I will call it the September order in the rest of this judgment.
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