Goodchild v Bradbury
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,LORD JUSTICE MAY,LADY JUSTICE SMITH |
| Judgment Date | 15 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1868 |
| Docket Number | A3/2006/1104, A3/2006/1104(a) |
| Court | Court of Appeal (Civil Division) |
| Date | 15 December 2006 |
[2006] EWCA Civ 1868
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(HIS HONOUR JUDGE ELLERAY QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Chadwick
Lord Justice May
Lady Justice Smith
A3/2006/1104, A3/2006/1104(a)
MR P REED (instructed by Parrott & Coales) appeared on behalf of the Appellant.
MR J LEVINSON & MR M BEAUMONT (instructed by Bruce, Lance & co) appeared on behalf of the Respondent.
This is an appeal from an order made on 18 April 2006 by Mr Anthony Elleray QC, sitting as a deputy judge of the High Court in the Chancery Division, in proceedings brought by the appellant, Mr Leslie Goodchild, to set aside two transfers of property, known as the Orchard, Mill House, Bledlow in Buckinghamshire. The first of those transfers is dated 15 February 2001 and was made by the appellant by way of gift to his great nephew, the first respondent, Mr Shane Bradbury. The second transfer is dated 5 June 2001 and was made by Mr Shane Bradbury to the second respondent, Mr Stephen Hillier, for a consideration of £1,800.
The basis of the appellant's claim was that the first transfer was procured by the exercise of undue influence and so should be set aside in equity; and that the subsequent transferee, Mr Hillier, took his transfer with notice that the first transfer was liable to be set aside because he knew all the facts.
The appellant was born on 5 May 1923, so he was some 77 years of age when he executed the first transfer in February 2001. He brings these proceedings by his litigation friend, a solicitor to whom he gave an enduring power of attorney in February 2003. In March 2003, that power was registered on the basis of the attorney's belief that the appellant was then becoming incapable of managing his affairs.
The appellant was one of the four children of his parents. His brother was killed in the last war; one sister, Mrs Ivy Bradbury, died in 1988; and the other, Miss Doris Goodchild, died in 2002. Mrs Ivy Bradbury was the grandmother of Mr Shane Bradbury. There are two other grandchildren, Alicia and Tracey, the sisters of Shane. Alicia Bradbury is the co-attorney of the appellant.
The appellant inherited Mill House Farm from his father, who died in the late 1940's. His sister Doris inherited a neighbouring farm, Pitch Green Farm. The appellant lived with his sister at Pitch Green Farm until the early 1970s, when he moved to Mill House, although he continued thereafter to take his meals at Pitch Green Farm. It was clear that there was a very close – although, it seems, often stormy—relationship between the appellant and his sister. Miss Doris Goodchild moved to live with him in Mill House in the mid- 1980s. She remained there until 1998.
As I have said, Mrs Ivy Bradbury died in 1988. She was survived by her husband, Mr Arnold Bradbury. At or about the time of his grandmother's death, Mr Shane Bradbury moved in to live with his grandfather at a house known as Hill View, which was also in the neighbourhood. Mr Shane Bradbury moved from Hill View to live with the appellant at Mill House soon after Miss Doris Goodchild had moved out. She went to a nursing home in 1998. The appellant and Mr Shane Bradbury then lived together at Mill House from 1998 until the beginning of 2003. The appellant then moved out of Mill House and went to live at Hill View, which had become vacant on the death of Mr Arnold Bradbury at the beginning of that February 2003.
The property, which was the subject of the two transfers dated respectively 15 February and 5 June 2001, is a plot of one acre or thereabouts adjacent to Mill House, which, at the time of the first transfer, was in the ownership of the appellant as part of Mill House Farm. The circumstances in which the first transfer was executed were described by the judge at paragraphs 66 to 69 and 72 to 75 of his judgment. After referring, at paragraph 62, to the fact that, in August 1999, Mr Shane Bradbury brought his future wife, now Mrs Vikki Bradbury, to live at Mill House and that, by the Autumn of 2000, they had decided to marry, the judge went on to say this:
“66. The planned wedding was the catalyst for the gift of the Orchard by Les to Shane as a wedding present. Mr Hiller became involved. As he has pleaded and asserted, Les in telling him of the gift said 'The field was no good to me and I have got enough land, boy.” Mr Hiller tells me he acted in effect for Les and Shane in arranging the transfer of the Orchard. As he saw it, Shane was no more able than Les, to arrange a legal matter such as a transfer of land.
“67. Following a phone call, on 30 October 2000, Mr Hiller wrote to Blaisers Mills Winter Taylors ('Blaisers'), High Wycombe solicitors. He wrote, 'Uncle Les wishes to transfer over one acre of land to my friend Shane as a wedding gift at the start of December latest'. He enclosed the deed which Les and Shane had given him. It is not obvious why Blaisers were chosen by Mr Hillier. They had not acted for him before. If they had acted for Les, that had been well in the past.
“68. At Blaisers, the file was handed to an assistant solicitor Mr Seager. On 6 November 2000 Mr Hillier visited him. Mr Hillier again said that the matter was a wedding gift. He told Mr Seager that Shane would probably try to build a house on the land. Mr Seager noted the need for a site meeting to decide matters such as access and covenants restrictive of building. He identified the need for a plan.
“69. The site meeting took place on 13 November 2000. Mr Seager's unchallenged account of it is backed by his attendance note. He was met outside the farmhouse by Les, Shane and Mr Hillier. Mr Seager took Les into the sitting room by himself. He describes his having to fight for Les's attention over the sound of the television, which was on. His meeting alone with Les he thinks took two minutes. He was satisfied that Les knew what he was doing from his own free will and that duress was not involved. Mr Seager then walked the Orchard with Shane and Mr Hiller. They returned to Les. Mr Seager repeated the need for a plan, which Mr Hillier was to arrange. Upon access, Les recalled some past discussions with the County Council concerning a possible separate access, a matter which Mr Hillier was to check: otherwise there would have to be shared access along the Mill House drive. Les was noted as saying that it would be possible to get two houses on the Orchard, subject to planning. Mr Seager noted the need for restrictive covenants against nuisance and annoyance and industrial use.
…
“72. On 5 December 2000, Mr Seager wrote a retainer letter to Les at Mill House, setting out his fees. He commented on the need for better plans dealing with the access. On 7 and 12 of December 2000, Mr Hillier made further telephone calls to Mr Seager. On 18 December 2000 Mr Hillier obtained better plans from surveyors which he had retained for the purpose and which he sent to Seager on 22 December 2000. The marriage in the meanwhile had taken place.
“73. On 1 January 2001, Les countersigned a copy of the retainer letter. On 8 January 2001, Mr Seager wrote to Les c/o Mr Hillier at Mr Hillier's address enclosing a draft transfer. He drew attention to clause 13.5 which restricted residential development to two houses. On 12 January 2001, Mr Hillier reported that the restrictive covenant should increase the limit to six dwellings and informed Mr Seager of an approximate value of the Orchard of £1,800. On 17 January 2001, Mr Seager sent Les again c/o Mr Hillier an amended copy of the draft transfer. He sought specific confirmation that Les was happy that the restrictive covenant should be limited to six houses. He was to receive a letter signed by Les to that effect on 24 January 2001, the letter being written for Les by I think Mr Hillier. In fact Les had suffered a stroke at the Red Cross on 15 January 2001 and was in hospital. He presumably signed that confirmatory letter there.
“74. On 25 January 2001, Mr Seager wrote again to Les, this time at Mill House, chasing a signed copy of the plan that was to be incorporated in the transfer. The letter observed that the covenant limiting residential use to six houses 'could obviously have an impact on the value of Mill House Farm itself'.
“75. On 9 January 2001, Les signed a cheque for Blaisers' fees. On 19 February 2001, Mr Seager confirmed to Shane and Les that he had completed the transfer which he had dated 15 February 2001 saying he would complete the transfer for Shane.”
The judge does not refer, in those paragraphs, to the occasion on which the appellant signed the transfer; but it is clear that he must have done so at some point between 17 January 2001, when the amended draft transfer was sent by Mr Seager, and 15 February 2001, the date which Mr Seager inserted in the transfer. As I have indicated, on 15 January 2001 the appellant had suffered a stroke and was in hospital.
It can be seen from the judge's description of the circumstances in which the first transfer was executed by the appellant, that the second respondent, Mr Hillier, was closely involved in the process throughout. The judge described Mr Hillier as an intelligent and business-minded man. The judge found that the sale of the property from Mr Shane Bradbury to Mr Hillier had been agreed between them before the first transfer. The judge made^ the following findings at paragraphs 78 and 79:
“78. I have no doubt that in conversations over that Christmas, the question was raised between Mr Hillier and Shane as to the value of...
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