Dorothy Marian Horsford v Peter William Davis Horsford
| Jurisdiction | England & Wales |
| Judge | Mr M H Rosen |
| Judgment Date | 12 March 2020 |
| Neutral Citation | [2020] EWHC 584 (Ch) |
| Date | 12 March 2020 |
| Docket Number | Claim No PT-2018-000177 |
| Court | Chancery Division |
[2020] EWHC 584 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Mr M H Rosen QC sitting as a Judge of the Chancery Division
Claim No PT-2018-000177
(1) Introduction
The Claimant, familiarly known as Marian, is now 88 years old. She married Davis Horsford is 1954 and they had three children, Helen (now Mrs Blunn) born in 1957, Elizabeth (“Liz”, now Mrs Koufou) in 1960 and the Defendant Peter (now married to Gail) in 1964. Marian and Davis separated in 2011 and Davis, in his early 90s, now lives in a care home, suffering from dementia. Neither Peter nor Liz have any children but Helen has two daughters.
In 1967 Marian and David bought College Farm, some 414 acres of arable farmland and buildings in Cambridgeshire and in 1987 she was given the adjoining 137 acres (approximately) and buildings of Whitleather Lodge Farm by her father. By then Peter had finished 3 years at Writtle Agricultural College and, after a stay in Australia, joined his parents' farming partnership on an equal basis.
In the following year 1988, Marian gifted the house and an acre of Whitleather Lodge Farm to Peter, and the rest of it to all three of her children, who then transferred it to Peter for a price of £35,000 to each of Helen and Liz.
There were a number of later developments affecting the two farms, including some reconfiguring after the A14 was routed through their land in 1995, improvement to buildings, the gift of some “development land” by Marian and Davis to Helen and Peter in October 2007, the purchase of “Additional Land” by Peter on trust for the partnership in June 2013 and October 2015, and a valuable leasing of some of the land for a Wind Farm for a term of 27 years as from 26 February 2014.
The present proceedings (that is, between mother and son), issued on 9 March 2018 and heard at trial between 27 November and 6 December 2019, arise from Marian's retirement from the partnership, then subject to a written partnership agreement dated 19 June 2012 (“the 2012 PA”) by a notice dated 15 December 2016 taking effect on 30 June 2017, and the service of an option notice by Peter dated 23 November 2017 to buy her interest rather than allow the partnership to be dissolved.
Marian claims payment of the price for her share in the partnership (for which the partners variously held College Farm and Whitleather Lodge Farm on trust) which she calculates as more than £2.52 million, payable in half yearly instalments over 5 years commencing on 31 December 2017, taking into account valuations of relevant land largely but not entirely based on an expert determination of a Mr Jeremy Zeid dated 3 December 2018 (referred to further towards the end of this judgment).
As well as disputing some elements of that calculation, Peter defends and counterclaims on the grounds that he has an equity arising by way of proprietary estoppel as a result of his having relied to his detriment on assurances by his parents Marian and Davis that he would inherit their shares in the partnership assets on death.
These are but some of the various disputes which have riven this family apart. Peter's eldest sister Helen is on the side of Peter (who is represented by Christopher Stoner QC and Sebastian Kokelaar of counsel, instructed by Birketts LLP). Liz is on the side of Marian (represented by Stephen Jourdan QC and Ciara Fairley of counsel instructed by Leeds Day) who attended throughout the trial but did not give evidence.
(2) The issues
Following numerous directions (which I need not set out in detail), the main issues for resolution at the trial arising from the parties' pleadings may be summarised as follows:-
(a) Did Peter acquire an equity by way of proprietary estoppel which prevents Marian from enforcing her rights under the Partnership Agreement, because (i) she made a promise to Peter, in sufficiently clear terms, that he would inherit her share in the partnership assets (ii) he acted in reasonable reliance on that promise and (iii) he suffered detriment in consequence of such reasonable reliance?
(b) Has any such equity in Peter's favour been extinguished or released or barred by the PA 2012 and/or laches?
(c) Unless prevented by such an equity in Peter's favour, what sums is he liable to pay Marian on purchase of her share under the PA 2012 relating to: (i) the value of land under clause 19.7 of the PA 2012 and whether it should (A) take account of ‘marriage value’ and be valued as a whole and then be apportioned to Marian's Land Capital Account — or not, because what has to be valued is Marian's beneficial interest in College Farm alone; and (B) apportion the value of the Wind Farm between College Farm and the Additional Land, and Whitleather Lodge Farm, or divide it equally between the partners; and (ii) whether Peter is liable to reimburse Marian for half of Mr Zeid's fees (£3,747.74) as paid by her in full, pursuant to a term to be implied in the 2012 PA?
(d) Finally, how should any equity in Peter's favour be satisfied or order for payment from one side to the other be framed?
Peter had raised other issues, in particular (i) whether Marian was liable to make restitution of £50,000 paid by him out of partnership funds to discharge a loan from NatWest to a separate partnership between her and Davis called “DM Properties” and if so, whether Peter was entitled to set it off against the £23,954 outstanding on Marian's current account; and (ii) whether the PA 2012 was varied as he alleged or Marian was right as regards adjustments to her Capital Account. However, Peter abandoned his contentions in these respects before the end of the trial.
This judgment approaches the remaining issues which were tried, essentially in two broad stages: (1) whether Peter acquired an equity in relation to inheriting her share of the partnership and retained it on and after the PA 2012; and (2) whether he is obliged or not to pay Marian the sums which she calculates under the PA 2012 under her Capital and Land Capital Accounts for the acquisition of her share following her retirement, together with reimbursement of half Mr Zeid's valuation fee.
(3) The evidence
As usual there were a large number of bundles before the court, containing copy documents to which, in most cases, no reference was made. However, given the detail of the dealings between the parties over many years, including accounting and taxation aspects, this was not a case where they could be criticised for not having restricted the documents to what was eventually needed, in advance.
The parties agreed that as the oral evidence related to the proprietary estoppel claim and it logically came first, Peter's evidence should be heard before Marian's. Peter gave evidence himself, including some documents not previously adduced for which the Court gave permission, and called on his behalf his wife Gail, Helen and her husband Gordon Blunn and Mr Philip Hutley of Strutt & Parker, who had advised Peter, Marian and Davis as regards the written partnership agreement in 2011–2012.
On Marian's side it was said shortly before the trial that her memory was failing and that she was prone to confusion and that whilst there was no medical issue, it had therefore been decided that evidence from her would not assist in deciding on the material facts. On her behalf Liz gave evidence, largely hearsay (although not subject to any formal counter-notice under the Civil Evidence Act), and she also called Mr Ian Greenwood, the partnership accountant between 1995 and 2007.
Peter was suspicious of Marian's failure to give evidence and indeed it emerged from Liz's cross-examination that the reasons given were not wholly correct: she contradicted them and proudly defended her mother's acumen, emphatic that Marian's memory was not a problem but she was depressed.
Peter submitted that the Court can draw adverse inferences from the failure of a party to give evidence (see Prest v Prest [2012] UKSC 34 at paras 43 and 44) especially when the person not giving evidence in the present instance is the Claimant herself ( R (Stapleton) v Revenue & Customs Prosecution Office [2008] EWHC 1968 at paras 36 – 38, and that in this case the Court should infer that Marian did not give evidence because under cross-examination she would have supported Peter's factual case on proprietary estoppel.
Whilst it might have been better for Marian to give evidence and the decision that she should not do so voluntarily may be regarded as tactical, in all the circumstances of this case (some of which appear further hereafter), I decline to draw that inference. It may well have been feared that her evidence would not advance her case, and that she would have been easily confused: after all, in dealing with half a century of family history, especially on questions as to the partnership and of fairness and equality as between the three siblings, Peter often seemed confused. That does not mean that she would have positively supported his case on positive aspects against her and I consider that unlikely.
On the contrary, I also bear in mind that under CPR 33.2, Marian complied with sections 1 and 2 of the Civil Evidence Act 1995 and Peter did not apply for an order that he be entitled to call Marian to be cross-examined on the contents of those parts of Liz's statement that recorded her evidence under CPR 33.4 so as to test it rather than simply having to consider the weight to be attached to a written statement. So there may have been tactical decisions on this aspect from both sides.
Of course, the weight to be attached to Liz's testimony, largely as a commentary to what Marian has stated in the past, is limited. However much of it was based on Marian's contemporaneous...
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