Day and Another v Day

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeThe Chancellor,Lord Justice Lewison,Lord Justice Elias
Judgment Date27 March 2013
Neutral Citation[2013] EWCA Civ 280
Docket NumberCase No: B2/2012/1310

[2013] EWCA Civ 280

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CENTRAL LONDON COUNTY COURT

Mr Recorder Chapman QC

1CL10438

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE CHANCELLOR OF THE HIGH COURT LORD JUSTICE ELIAS

and

Lord Justice Lewison

Case No: B2/2012/1310

Between:
Day & Anr
Appellant
and
Day
Respondent

Mr Michael Norman (instructed by Anthony Harris & Co) for the Appellant

Mr Timothy Becker (instructed by Mr Terence Anthoney Day by Direct Public Access) for the Respondent

Hearing dates : 21st February 2013

The Chancellor
1

The appellants, James Harry Day and Michael Harry Day, and the respondent, Terence Anthony Day, are the executors of the will of their mother, Eileen Alice Day ("Mrs Day"). Mrs Day died on 21 December 2008.

2

This is an appeal from the order of Mr Recorder Chapman QC on 15 May 2102 in the Central London County Court, by which he dismissed the claim of the appellants for rectification of a conveyance dated 6 June 1985 of Mrs Day's home, 25 Ashby Road, Sholing, Southampton, to herself and the respondent to be held by them as beneficial joint tenants ("the Conveyance"). The claim was to rectify the Conveyance so as to provide that the Property was held by Mrs Day and the respondent on trust for Mrs Day absolutely.

The factual background

3

In 1954 the Property was conveyed into the joint names of Mrs Day and her husband. On his death in 1976 the Property vested in Mrs Day by survivorship. She continued to live there as her home.

4

On 13 May 1985 Mrs Day executed a general power of attorney, pursuant to the Powers of Attorney Act 1971, in favour of Alan Gordon Froud, a solicitor with Sotnicks of Southampton. On 6 June 1985 Mr Froud executed the Conveyance on Mrs Day's behalf, as Mrs Day's attorney. As I have said the Conveyance conveyed the Property from Mrs Day to herself and the respondent to be held by them as beneficial joint tenants. It was expressed to be "in consideration of natural love and affection"

5

On the same day, 6 June 1985, the respondent and Mrs Day, again acting by Mr Froud as her attorney, executed a mortgage in favour of Gateway Building Society ("the Gateway mortgage") over the Property to secure an advance of £23,000. The money was paid to the respondent. On 21 October 1985 Mrs Day and the respondent were registered at the Land Registry as joint proprietors of the Property. The Gateway mortgage was subsequently discharged. On 1 November 1988 Mrs Day and the respondent executed a legal charge in favour of Midland Bank plc ("the Midland charge") to secure all money owed by the respondent to that bank. The Midland charge was subsequently discharged, and at the date of the hearing before the Recorder the Property was free of any charge or mortgage.

6

By her last will, which was executed in November 2008, Mrs Day appointed the appellants and the respondent to be her executors and she directed, among other things, that the Property be sold and the sale proceeds be divided between her children equally.

7

Mrs Day died on 21 December 2008. She was survived by six children. Probate of her will was granted on 15 April 2009 to the appellants and the respondent.

8

In the absence of rectification as claimed by the appellants, on Mrs Day's death in 2008 the respondent became by survivorship the sole legal and beneficial owner of the Property.

The proceedings

9

In the Particulars of Claim the appellants made the following allegations, among others. At the time the Conveyance was executed Mrs Day was staying with her daughter Diane in Canada. The Conveyance and the Gateway mortgage were executed in order to enable funds to be raised for the benefit of the respondent, with the Property being used as security, and it was no part of the agreement between Mrs Day and the respondent that he should acquire a beneficial interest in the Property. By error, the Conveyance declared that Mrs Day and the respondent were beneficial joint tenants. In those circumstances the Conveyance should be rectified so as to replace the provisions declaring and giving effect to a beneficial joint tenancy with a declaration that Mrs Day and the respondent held the beneficial interest in the Property on trust for Mrs Day absolutely.

10

In his Defence the respondent admitted that the reason for the Conveyance was to assist the respondent in raising funds, but he alleged that "there was no express or implied agreement that [he] should not acquire a beneficial interest in the Property". He alleged that there was no formal consensus between himself and Mrs Day. He denied that there was any discussion or consensus between them regarding the legal title and the beneficial ownership of the Property, and he "denied that it was contemplated that the beneficial ownership should not pass to him". He denied that there was any error in the Conveyance. He alleged that it was executed as intended by Mrs Day and himself. He denied that the appellants are entitled to an order for rectification.

The trial

11

The appellants, in accordance with the court's directions, served a number of witness statements, but the respondent failed to do so. At the opening of the trial, counsel for the respondent applied for permission to serve a witness statement made by the respondent. The appellants objected, and the Recorder refused to permit him to do so. In accordance with an earlier order of the court, the respondent, not having served any witness statement, was not permitted to give any oral evidence.

12

The Recorder heard a number of witnesses for the appellants, including the appellants themselves, Mrs Day's daughter Diane, two other sons and the former wife of one of them.

13

There was in evidence a letter dated 17 August 2009 from the respondent to the first appellant, James Day, in which he said that he drafted Mrs Day's last will and the one that preceded it and that, at the time of her final will, he was unaware that his name "had been added to the title deeds some 24 years earlier".

The Recorder's judgment

14

In his careful judgment the Recorder set out the oral and documentary evidence and then summarised the law. For the purpose of this appeal, it is sufficient to describe briefly the reasoning by which he arrived at his decision to dismiss the claim for rectification. He said that the Conveyance was not in the nature of a bilateral transaction, such as a contract, but was in the nature of a voluntary settlement since it was made without any consideration in money or money's worth. He said that, in the case of a voluntary settlement, it is the mistake and intention of the settlor that matters, and he referred in that connection to Re Butlin's Settlement Trusts [1976 ] Ch 251. Accordingly, he observed, in the ordinary way the critical question would be whether the Conveyance failed to embody Mrs Day's intention. The Recorder's conclusion on that issue was that, on the balance of probabilities, Mrs Day never intended or understood that the Conveyance vested a beneficial interest in the respondent. His reasoning was as follows:

"26. … I rely on her remarks to her family that showed a continuing belief that the property was hers to dispose of on her death and I also rely on her last two wills, which were obviously executed in that belief. I consider the probability is that she thought that the 1985 transactions were only intended to give [the respondent] security for his borrowings, and once those borrowings had been repaid, the property would be entirely hers again. "

15

The Recorder considered that the respondent, on the other hand, had never laboured under any mistake. He said:

"26. … If anything turned on [the respondent's] intentions in 1985, and for the reasons that I have given I do not think that they do, I am not satisfied, on the balance of probabilities, that he was labouring under any mistake. He denied that his name was on the deeds and suggested that he had forgotten all about his name being put on the deeds in the 1980s. That does not have the ring of truth to me. I think the probability is that he knew exactly what the effect of the 1985 Conveyance was, but kept quiet about it and let his mother believe that the house was still hers to dispose of, and indeed he encouraged that belief by drafting two of her wills, including the last one, in terms under which she disposed of the house by her will."

16

The Recorder said that, therefore, if Mrs Day had personally executed the Conveyance, he would have made an order for rectification of the Conveyance so as to provide that she remained the sole beneficial owner. He considered, however, that the fact the Conveyance was executed by Mr Froud on her behalf, pursuant to the general power of attorney, precluded any right to rectification. His reasoning was, in short, that, in executing the Conveyance in the terms which it contained, Mr Froud was acting within the scope of his authority and most probably without any mistake as to those terms and their effect. The Recorder's analysis, more fully, was as follows in paragraphs [27] and [28] of his judgement:

"27. … There is no evidence that Mrs Day gave Mr Froud any particular instructions about the proposed transaction. Indeed, there is no evidence that she ever met or personally communicated with Mr Froud at all. It seems likely to me that everything was arranged by [the respondent] and that all that Mrs Day did was to execute a general power of attorney in the presence of Mr Bradshaw, the solicitor's clerk from Sotnicks, who witnessed her signature. There is no evidence that Mrs Day made any mistake in executing the general power of attorney. It seems that it...

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