Gareth Hughes v Carys Pritchard
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 12 June 2023 |
| Neutral Citation | [2023] EWHC 1382 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2020-CDF-000002 |
[2023] EWHC 1382 (Ch)
HIS HONOUR JUDGE Keyser KC
sitting as a Judge of the High Court
Case No: PT-2020-CDF-000002
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
In the Estate of Evan Richard Hughes deceased (probate)
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Penelope Reed KC and Elis Gomer (instructed by Allington Hughes Law) for the Claimant
Alex Troup KC (instructed by Hugh James) for the Second and Third Defendants
Hearing dates: 16 and 17 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 12 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
HIS HONOUR JUDGE Keyser KC
HHJ Keyser KC:
Introduction
Evan Richard Hughes (“the Deceased”) died on 7 March 2017 aged 84 years, having lived all his life on Anglesey. At the time of his death his main assets were the bungalow (Arfryn) where he lived, 79 acres of farmland known as Bwchanan, 58 acres of farmland known as Yr Efail, a cottage known as Derwyddfa, and a 50% shareholding in a family building company called J. Parry & Hughes Ltd (“the Company”).
The Deceased was survived by two of his three children: Gareth Hughes, the claimant, and Carys Pritchard, the first defendant. Another child, Elfed Hughes, had predeceased the Deceased, having committed suicide in 2015. Elfed's widow, Gwen Hughes, is the second defendant. Elfed and Gwen Hughes had three children: Stephen Hughes, Siôn Hughes and Geraint Hughes. Stephen Hughes, the third defendant, represents himself and his siblings in these proceedings. For ease of reference and without intending any disrespect, I shall henceforth refer to the parties and other family members by their first names.
The Deceased had made three wills, dated respectively 18 December 1990 (“the 1990 Will”), 7 August 2005 (“the 2005 Will”) and 7 July 2016 (“the 2016 Will”). The 2016 Will appointed Gareth and Carys as the executors and trustees of the will. It gave Arfryn and Derwyddfa to Carys and Yr Efail to Gareth. It gave the Deceased's remaining agricultural land, including Bwchanan, on trust for Gwen for life and thereafter in equal shares to such of her children as survived her. The residuary estate was left to the Deceased's eight grandchildren in equal shares. The main difference between the 2005 Will and the 2016 Will was that the former would have given all the Deceased's agricultural holdings, including Yr Efail, to Elfed or his family.
In these proceedings, Gareth claimed a grant of probate in solemn form of the 2016 Will. Gwen and Stephen resisted that claim on various grounds and cross-claimed for a grant of probate in solemn form of the 2005 Will. (Carys took no active part in the proceedings, other than giving evidence for Gwen and Stephen.) By an order made on 11 June 2021 after a trial His Honour Judge Jarman QC, sitting as a Judge of the High Court, held that the 2016 Will was invalid on account of the Deceased's lack of testamentary capacity and instead admitted the 2005 Will to probate. The neutral citation for Judge Jarman's judgment is [2021] EWHC 1580 (Ch). However, by a judgment dated 24 March 2022, with the neutral citation [2022] EWCA Civ 386, the Court of Appeal set aside Judge Jarman's finding that the 2016 Will was invalid for lack of testamentary capacity and pronounced for the validity of the 2016 Will in solemn form.
The Court of Appeal's decision made it necessary to consider the alternative head of Gwen and Stephen's cross-claim, which was that a proprietary estoppel arose in favour of Elfed's estate in respect of the Deceased's agricultural land including Yr Efail. Judge Jarman had held that, if he were wrong about the invalidity of the 2016 Will, such an estoppel would have arisen; though, as the point did not fall for his decision in the light of his finding as to the invalidity of the 2016 Will, he dealt with the point relatively briefly. The Court of Appeal granted Gareth permission to cross-appeal against Judge Jarman's conclusion that, if the 2016 Will were valid, Elfed's estate would have been entitled to receive Yr Efail by reason of an equity arising under the doctrine of proprietary estoppel. It was common ground before the Court of Appeal that Judge Jarman's findings in respect of representations made to Elfed should stand. The Court held that his findings in respect of reliance were also sufficient and not open to challenge. However, the issues of detriment and remedy were remitted to this Court for further consideration. Those issues were argued before me over two days, on the basis of the evidence that was before Judge Jarman and an agreed note of the oral evidence 1, and this is my judgment upon them.
I am grateful to Miss Reed KC and Mr Gomer, counsel for Gareth, and to Mr Troup KC, counsel for Gwen and Stephen, for their detailed and helpful submissions.
Proprietary Estoppel: the Law
A claimant seeking a remedy on the grounds of proprietary estoppel is required to establish: (i) that a sufficiently clear and unequivocal representation or promise was made or assurance given to him by another (the promisor) in relation to identified property owned, or to be owned, by the promisor; (ii) that he relied on the representation, promise or assurance; and (iii) that he suffered detriment in consequence of his (reasonable) reliance. See, for example, Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776, at [18], [29], [56], [61]. If those three requirements are met, the court must consider what if any remedy ought to be granted. The principle that has been said to permeate the different elements of the doctrine of proprietary estoppel is that equity is concerned to prevent unconscionable conduct. For this reason, the analytical framework of the doctrine is not intended to divide the elements of proprietary estoppel into watertight compartments. The court must look at the matter in the round and take a holistic approach. See Gillett v Holt [2001] Ch 210 at 225c-d; Davies v Davies [2014] EWCA Civ 568 at [58].
In the present case, Judge Jarman has determined that the first and second requirements (representation and reliance) have been met. I shall set out his specific findings later. The remaining questions are whether the third requirement (detriment) has been met and, if it has, what if any remedy ought to be granted.
In the course of the hearing I was referred to several authorities that were said to be relevant as demonstrating how the doctrine of proprietary estoppel has been applied to particular factual situations. I have considered these cases but shall not refer to them. Although such cases have some general value in giving one a “feel” for the operation of the doctrine, the court is ultimately tasked not with performing a “compare and contrast” exercise but with applying settled principles to the facts of the individual case.
Detriment
In Gillett v Holt, Robert Walker LJ said at 233:
“The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the
expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.There are some helpful observations about the requirement for detriment in the judgment of Slade LJ in Jones v Watkins 26 November 1987. There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded—that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved.”
The court's estimation of the detriment is not an exercise in forensic accounting but rather an evaluative exercise. In performing the evaluation, the court must take into account any countervailing benefits obtained by the promisee as a result of his reliance. See Davies v Davies at [38], [51] and [56].
Unconscionability
Unconscionability is, perhaps, not so much a further element in the cause of action in proprietary estoppel but the thread that binds the other elements together. The matter was explained, with reference to the case before him, by Lord Walker of Gestingthorpe in Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752, at [92]:
“Mr Dowding [counsel for the appellant] devoted a separate section of his printed case to arguing that even if the elements for an estoppel were in other respects present, it would not in any event be unconscionable for Mrs Lisle-Mainwaring [the appellant] to insist on her legal rights. That argument raises the question whether ‘unconscionability’ is a separate element in making out a case of estoppel, or whether to regard it as a separate element would be what Professor Peter Birks once called ‘a fifth wheel on the coach’: Birks & Pretto (eds), Breach of Trust (2002), p 226. But Birks was there criticising the use of ‘unconscionable’ to describe a state of mind ( Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437, 455). Here it is being used (as in my opinion it should always be used) as an objective value judgment on behaviour (regardless of the state of mind of the individual in question). As such it does in my opinion play a very important part in the doctrine of...
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