Greasley v Cooke
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WALLER,LORD JUSTICE DUNN |
| Judgment Date | 18 June 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0618-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Plaint No. 7800199 |
| Date | 18 June 1980 |
[1980] EWCA Civ J0618-2
The Master of the Rolls
(Lord Denning)
Lord Justice Waller and
Lord Justice Dunn
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Alfreton County Court
(His Honour Judge Brooke Willis)
MR. J. H. LECKIE (instructed by Messrs. Rickards & Cleaver) appeared on behalf of the Plaintiffs (Respondents).
MR. J. WEEKS (instructed by Messrs. Waterhouse & Co. London agents for Messrs. Robinsons) appeared on behalf of the Defendant (Appellant).
This is a family case. The lady most concerned is Miss Doris Cooke. In 1938, when she was 16, she went as a maid servant to help in the house of a widower Mr. Arthur Greasley. He was a butcher. He had his house and shop at 32 George Street, Riddings in Derbyshire. He had three sons and a daughter. They were teenagers. Doris Cooke, at the age of 16, went into that house as a maid servant. She was paid ten shillings a week.
Ten years later in 1948 the widower died. Doris Cooke stayed on. She looked after the family for nearly 30 years until 1975. During that time some members of the family had left: others had died: and she was left alone in the house. The house has become vested in some surviving members of the family. They wish to turn Doris Cooke out. She is 62 years old now. This is her home The judge has ordered her out. She appeals.
I must tell more of the story. When Doris Cooke was in her twenties, living in the house, one of the sons (Kenneth) formed an attachment for her. She and Kenneth lived as husband and wife from 1946 onwards. Kenneth ran the butcher's shop and Doris Cooke - living as his wife - ran the household. Two other sons left. Hedley left and got married. He had no children. Howard (another son) left and. got married. He had three children. The daughter Clarice remained. She was very ill mentally. The position was that, for many years, Kenneth was living there with. Doris Cooke as his wife. Clarice, the invalid daughter, was looked after by them both, but particularly by Doris Cooke. Doris Cooke was entirely one of the family.
The title of the house descended in this way: Old Arthur Greasley (before any of the sons were married or had left) made a will by which he left the house to two of his sons (Howardand Kenneth) in equal shares, Howard died. He did not make a will. His half-share, on his intestacy, went to his children. Kenneth and Clarice died in 1975. Kenneth left his half-share to Hedley. So the title was in Hedlay and the children of Howard. After Kenneth's death in 1975 they gave Doris Cooke notice to quit. They brought proceedings to turn her out of the house. They said that she had no title; she was not a tenant: she paid no rent: and had no status in the house at all.
The matter was taken to the county court. Pleadings passed between the parties. I will read a paragraph from the defence:
"The Defendant received no payment from any person for her services after the death of Arthur Greasley in 1948. The Defendant reasonably believed and was encouraged by members of the family to believe that she could regard the property as her home for the rest of her life and accordingly did not ask for any payment".
On that ground, she asked to be allowed to stay in the house for the rest of her days: and she counterclaimed for a declaration that she was entitled to occupy it rent free for the rest of her life. Then the case came on before the county court judge. It took a most unusual course. The plaintiffs - Hedley and Howard's daughters - had instructed a solicitor. Their solicitor simply got up and said that he withdrew the claim for possession against Doris Cooke. Mr. Weeks, counsel for Doris Cooke, rose and said, "But there is my counterclaim to be dealt with". The judge said, "Yes; you must prove your counterclaim. You must prove that she is entitled to be there for the rest of her life". So Mr. Weeks called Miss Doris Cooke and asked her a few questions. Doris Cooke said, according to the judge's note:
"Lived there 42 years. I went there in service to Mr. Arthur Greasley. I was 16 years" - she went through the story as I have told it - "Kenneth died he had no children. Clarice died 20/8/75 mental trouble from 1947. Paid 10/- week by Arthur Greasley. Not paid wages after that. I looked after house. Kenneth & I looked after Clarice. Kenneth said he would do the right thing by me. Hedley said no need to worry I'd be looked after".
The plaintiffs' solicitor did not cross-examine. He asked no questions. He said nothing. Mr. Weeks submitted that the counterclaim succeeded and he should have the declaration sought. The judge was troubled. He pointed out that Doris Cooke had spent no money on the house. Mr. Weeks referred to Pascoe v. Turner (1879) 1 Weekly Law Reports 431: and to Snell's Equity, 27th Edition, page 565. The judge Reserved his decision.
On giving judgment the judge rejected Miss Cooke's counterclaim. She appeals and for a very good reason. If her counterclaim fails, it means that she has no right to stay in the house at all. The plaintiffs can bring an action tomorrow and evict her. Their counsel told us that was indeed their intention. She will have no answer because the issue will be res judicatam.
The judge made this important finding: "On the facts that I have found I am prepared to accept, although the evidence is not very strong, that the Defendant believed, because of what was said to her by Kenneth and Hedley, that she would be allowed to live at and remain in the house as long as she wished though if Kenneth 'intended to do the right thing by her one might have expected him to do so by his Will".
Having made that finding, the judge propounded thisproposition of law:
"If the Defendant is to succeed she has to prove that she acted to her detriment as a result of her belief and that the owners of the house encouraged her in her actions or stood by knowing that her actions were because of her belief. In both Inwards v. Baker and Pascoe v. Turner it was the expenditure of money on the property which raised the equity which provided the estoppel. There is no question of any expenditure of money in this case …
"I have not the slightest doubt that the Defendant did that' - looked after Kenneth and the mentally ill Clarice - "and that looking after the mentally ill Clarice was an unpleasant and hard task but the vital question is has she proved that she did that work without payment because of her belief that she would be entitled to live in the house as long as she wished …
"I have accepted that they led her to believe she would be able to remain in the house … That means that long before any question as to the Defendant's future arose she was doing all those acts which she has to prove were done relying on her belief that she would be able to remain in the house as long as she wished … There' is no evidence which satifies me that the Defendant acted in any way to her detriment as a result of the belief, induced in her mind by the words or conduct of Kenneth or Hedley. That means then she is not entitled to call on equity to protect her from what would otherwise be unequitable".
The judge decided the case on that point. Before us Mr. Leckie sought to raise many other points on behalf of the plaintiffs. But we cannot go into them. We must insist that the only points which can be; raised on appeal are those which were considered by the judge in the county court.
The first point is on the burden of proof. Mr. Weeksreferred us to many cases, such as Reynell v. Sprye (1852) 1 Gex Macnachten & Gordon's Reports 656 at page 708; Smith v. Chadwick (1882) 20 Chancery Division 27 at page and Brikom Investments Ltd. v. Carr (1979) 2 Weekly Law Reports 737 at pages 746-747 where I said that, when a person makes a representation intending that another should act on it:
"It is no answer for the maker to say: 'You would have gone on with the transaction anyway'. That must be mere speculation. No one can be sure what he would, or would not, have done in a hypothetical...
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