Destine Estates Ltd and Another v Janet Elizabeth Muir and Another
Jurisdiction | England & Wales |
Judge | Mr Justice Newey |
Judgment Date | 11 December 2014 |
Neutral Citation | [2014] EWHC 4191 (Ch) |
Docket Number | Case No: IBS31130 |
Court | Chancery Division |
Date | 11 December 2014 |
[2014] EWHC 4191 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol BS1 6GR
Mr Justice Newey
Case No: IBS31130
Mr Sinclair Cramsie (Direct Access) for the Claimants
Mr Charles Auld (instructed by Morrison & Masters) for the Defendants
Hearing dates: 11–13 and 17–18 November 2014
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.
In this case, the claimants seek to recover the sum of £225,000 which, they allege, was lent to the defendants when the first defendant, Mrs Janet Muir ("Mrs Muir"), bought a property known as Chowle Farmhouse in Great Coxwell, Oxfordshire.
The main protagonists
Mr Crossley Cooke
Mr David Crossley Cooke, the second claimant, is now in his mid-70s and retired. He formerly farmed, but he has also been involved in numerous business ventures. Many, though not all, of these have involved property, sometimes on a sizeable scale. His business interests have largely been run from the Estate Office on the Little Coxwell Estate in Oxfordshire, which is close to Chowle Farmhouse and, I gather, in the ownership of Mr Crossley Cooke's family.
Mr Crossley Cooke's career has had its ups and downs. In 1968, he was bankrupted, and much more recently, in late 2010, he entered into an individual voluntary arrangement ("IVA").
I was told of several other pieces of litigation in which Mr Crossley Cooke has been involved. The earliest of these involved proceedings in which Mr Crossley Cooke sought possession of some flats in a block in Chelsea. When dealing with costs, His Honour Judge Phelan, sitting in the West London County Court, said that he had concluded that "Mr Crossley-Cooke on balance appears not to be a person whose word is to be trusted". When the matter reached the Court of Appeal in July 1990, Staughton LJ observed that Mr Crossley Cooke had based his belief that he had a prospect of success in the actions on "tenuous material which objectively may not have justified it". A second case arose from the service of a statutory demand on Mr Crossley Cooke in 2009. A district judge declined to set the demand aside, but Roth J allowed an appeal from that decision (see Crossley-Cooke v Europanel (UK) Ltd [2010] EWHC 124 (Ch), [2010] BPIR 561). In the course of his judgment, Roth J noted that Mr Crossley Cooke, who had appeared before him in person, had accepted that, "with hindsight", it would have been sensible to make contact with the alleged creditor about a cheque in its favour that he had stopped. Finally, Mr Crossley Cooke played a part in a claim that a Mr and Mrs Horsey brought against a company called Gale Valley Limited. This turned on whether a particular area of land had been sold to the Horseys. Mr Crossley Cooke took the view that it had not, but His Honour Judge Denyer QC, sitting in the Bristol County Court, decided otherwise on 26 May 2010.
Mr Crossley Cooke has not generally undertaken transactions in his own name. He said in evidence that he preferred not to. He has, however, been associated with a number of companies. These have included Drumoss Limited ("Drumoss") and Tapecrown Limited ("Tapecrown").
Destine
Destine Estates Limited ("Destine"), the first claimant, is owned by one of Mr Crossley Cooke's daughters, Mrs Nicola Cammack.
The Muirs
Chowle Farmhouse has been owned by members of the Muir family for a good number of years. It once belonged to Mr Billy Muir ("Mr Muir Senior"), the father of the second defendant, Mr David Muir ("Mr Muir"). In 1993, Mr Muir Senior went bankrupt and a mortgagee took steps to recover what it was owed. However, with the help of Mr Crossley Cooke, Chowle Farm was bought by Mr Muir and his first wife, to whom I shall refer simply as "Hetty". No disrespect is intended.
For some time, Mr Muir enjoyed considerable success with a business exporting livestock. The business was, however, badly damaged by the restrictions that were imposed on imports of beef and beef products from the United Kingdom following the BSE crisis in the mid-1990s. Mr Muir eventually admitted defeat in July 1997, at which point he began to work as a lorry driver.
By now, Mr Muir's marriage had also failed. He left Chowle Farmhouse in May 1998, and later in the year he moved into a cottage rented by Mrs Muir (as the first defendant was to become). Hetty continued to live in Chowle Farmhouse with the Muirs' children, and she was joined there by Mr Sam Stratford, who had become her partner. In 2000, Hetty and Mr Stratford purchased together an area of land adjacent to Chowle Farmhouse that came to be registered at HM Land Registry under title number ON223573. Chowle Farmhouse itself, which was registered under title number ON162730, continued to be registered in the joint names of Hetty and Mr Muir.
Mr and Mrs Muir married in 2000. By then, Mr Muir was working for Mr Crossley Cooke as the manager of an antiques centre in Wantage and overseeing information technology programmes for businesses with which Mr Crossley Cooke was associated. During the period with which I am primarily concerned, Mr Muir was working for Mr Crossley Cooke (and companies associated with him) at the Little Coxwell Estate Office.
In 2003, Mr Muir entered into an IVA.
Mr Muir Senior died some four or so years ago.
The Drumoss proceedings
In 1999–2000, Drumoss lent Mr Muir money and was registered as the proprietor of a second charge over Chowle Farmhouse. The charge appeared to have been signed by both Mr Muir and Hetty.
In 2003, Drumoss took proceedings to recover its loan and interest and to enforce the charge registered in its favour. Mr Muir did not resist the claim, but Hetty did. She claimed that she had not signed the deed in question.
The proceedings came on for trial, but they were settled by a Tomlin order of 15 November 2005 ("the Tomlin Order"). The schedule to this provided for Hetty, Mr Muir and, to the extent applicable to him, Mr Stratford to transfer all their interests in Chowle Farmhouse and ON223573 to Drumoss or its nominee(s). In return, Drumoss was to pay £320,000 to Hetty, up to £95,000 to discharge a mortgage held by Bristol and West Building Society and £45,000 to the supervisor of Mr Muir's IVA.
Mr Crossley Cooke told me, and I accept, that Mr Muir Senior instigated the negotiations that resulted in the Tomlin Order and that Mr Crossley Cooke understood from Mr Muir Senior that the Muirs wished to buy Chowle Farmhouse.
The sale to Mrs Muir
Following the Tomlin Order, the Muirs were given the chance to buy Chowle Farmhouse. Mr Muir said that Mr Crossley Cooke told him that purchasing Chowle Farmhouse would get the Muirs back on the property ladder and that the opportunity was too good to miss.
Then, as now, Mr Crossley Cooke was hoping to develop neighbouring land, and at the time he thought that it would be beneficial if Chowle Farmhouse were included in the scheme. The idea, Mr Crossley Cooke explained in cross-examination, was that, when the time came, the Muirs would join in. Mr Crossley Cooke said that this was the "whole reason" he was willing to lend money for the purchase of Chowle Farmhouse. For her part, Mrs Muir explained in cross-examination that Mr Crossley Cooke had been quite open about his plans and that she knew that he wanted to develop land in the area, including Chowle Farmhouse, at some point in the future.
On 7 December 2005, Mrs Muir met a Mr Francis Smith of Ascot Assured Limited about obtaining a mortgage. In the course of the meeting, a "mortgage fact find" document was completed and signed by Mrs Muir. Among other things, this gave the price of the property being purchased as £650,000 and the amount Mrs Muir wished to borrow as £500,000. Mrs Muir also said that the difference between these figures was to be funded from an inheritance and that she earned £150,000 a year as an industrial cleaning contractor.
Similar information was given in a mortgage application form addressed to Kensington Mortgages that was completed on the same occasion. This spoke of Mrs Muir having earned £150,000 in 2004–2005 as the proprietor of an industrial cleaning business. It also put the purchase price at £650,000 and the loan required at £500,000. Mrs Muir signed the form to confirm the accuracy of the information given in it.
Mrs Muir accepted that information given in the "mortgage fact find" document and mortgage application form was false. More specifically, she said that she did not have an industrial cleaning business, did not earn anything like £150,000 a year and did not have an inheritance she could use for the purchase of Chowle Farmhouse. As Mrs Muir said in a witness statement, she had virtually no income.
When in the witness box, Mrs Muir maintained that she was told to provide the incorrect information by Mr Smith with the endorsement of Mr Crossley Cooke, who, she said, was in the room. However, Mr Crossley Cooke himself denied having even known about the false information or been present at Mrs Muir's meeting with Mr Smith. Moreover, the account Mrs Muir had given in a witness statement was both vaguer and significantly different. She said:
"I seem to recall that Francis Smith the mortgage broker suggested that my income might be £150,000 a year. I do not know whether he got that figure out of his own head or whether it was given to him by Mr Crossley Cooke."
The Muirs hoped to be able to fund their mortgage instalments by setting up a bed and breakfast...
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