Herbert v Doyle and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lady Justice Arden,Lord Justice Jackson,Mr Justice Morgan |
| Judgment Date | 13 October 2010 |
| Neutral Citation | [2010] EWCA Civ 241,[2010] EWCA Civ 1095 |
| Docket Number | Case No: A3/2008/3063 & A3/2009/1253,Case Nos: A32008/3063, |
| Court | Court of Appeal (Civil Division) |
| Date | 13 October 2010 |
[2010] EWCA Civ 1095
Mark Herbert QC (Sitting as a High Court Judge)
Before: Lady Justice Arden
Lord Justice Jackson
and
Mr Justice Morgan
Case No: A3/2008/3063 & A3/2009/1253
(2008) EWHC 3423
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
Mr Timothy Becker for the Appellant
Miss Amanda Tipples (instructed by Messrs Moore Blatch) for the Respondents
Hearing date: 17 May 2010
Lady Justice Arden:
This is an adjourned application for permission to appeal, with appeal to follow if permission is granted, from the order dated 27 November 2008 of Mr Mark Herbert QC sitting as a deputy judge of the Chancery Division.
The appellant, Mr Herbert, brought these proceedings to obtain an order requiring the respondents, Mr Doyle and Mr Talati, to convey to him three freehold car parking spaces, referred to as “the green parking spaces”. Mr Doyle and Mr Talati disputed Mr Herbert's claim, and counterclaimed on the basis that there had been other arrangements between the parties relating to the same property.
The principal points in issue in this application for permission concern the judge's conclusion (to which I refer below as “the judge's constructive trust holding”) that the parties had come to an agreement, made orally, which created a constructive trust over their respective parts of the property. The agreement, which I will call the agreement of April 2003, involved (among other matters) the exchange of parking spaces and the grant by Mr Herbert to Mr Doyle and Mr Talati of extensions to an existing lease to cover two areas known as a compressor house and the staff room extension.
The proceedings became factually, legally and procedurally complex. There were no less than three judgments given by the judge, together with a subsequent hearing (said to be a “mention”) to settle the terms of the order of 27 November 2008 culminating in a further ruling by him on 19 December 2008 (“the December ruling”) which gave rise to subsequent submissions by letter and email to the judge on which he adjudicated on 23 December 2008. Not surprisingly, the judge having refused permission to appeal, this Court has explored avenues for a more cost-effective resolution of the matters in dispute. On 27 October 2009, Mummery LJ adjourned it to enable the parties to see if they could come to some agreement. Unfortunately these hopes were not realised and on the second occasion Mummery LJ adjourned the application to come before the full Court.
In his judgment on 29 October 2009, Mummery LJ recorded in his judgment that the crux of the matter was then limited to only one of the parking spaces, namely a space known as F2, which the judge had determined should be exchanged for a space, known as D1, which the respondents had shown was too narrow:
“From what I have been told by Mr Becker on behalf of Mr Julian Herbert, there is not really any substantial dispute any more—costs apart—about the staff room extension, which he is willing to grant, and the lease of the compressor house, which he is willing to grant. The dispute boils down, as Ms Tipples explained, to a question of parking spaces for 2 Mansfield Mews. Mr Julian Herbert wants three parking spaces for that property. He is willing to replace them for the respondents. It seems from what Ms Tipples has said that a draft transfer has been provided. This really is not a sticking point between the parties. The sticking point is about the provision of the additional space F2 in place of D1.”
However, even this dispute has opened up the original basis of the judge's order in favour of the respondents. Accordingly the legal issue raised by the application now is largely whether the judge's constructive trust holding was, following the decision of the House of Lords in Cobbe v Yeoman's Row Management Ltd at [2008] 1 WLR 1752, delivered shortly before his judgment handed down on 4 August 2008 (“judgment (1)”), “ Cobbe-compliant”, that is, in accordance with the law of constructive trust as explained in that decision. Mr Doyle and Mr Talati had to show that there was a constructive trust for the purposes of section 2(5) of the Law Reform (Miscellaneous Provisions) Act 1989 (“the 1989 Act”), because otherwise the agreement of April 2003 would have fallen foul of the requirement imposed by section 2(1) of the 1989 Act that dispositions of interest in land be in writing.
Section 2 of the 1989 Act in material part provides:
“2 .—(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each… (5) …nothing in this section affects the creation or operation of resulting, implied or constructive trusts.”
I shall have more to say about the decision of the House of Lords in Cobbe later in this judgment, but significantly it emphasised that the terms of an oral agreement giving rise to the constructive trust had to achieve a certain level of certainty, or completeness, to fall within section 2(5).
The December ruling principally concerned the terms of the lease for the compressor house and staff room extension, and the question whether a small strip of land (“the strip”) between the surgery and three of the parking spaces previously transferred to the respondents should be retransferred to Mr Herbert if he performed his part under the agreement of April 2003. In the course of this appeal, an application was made to amend the grounds of appeal to raise new grounds about these matters.
The litigation has been extremely costly for these neighbours. The respondents claim that they had incurred costs of £313,418.36 in respect of the costs of the action down to 23 December 2008. Mr Herbert has acted from time to time in person, but informs us that he has incurred costs of some £50,000 (excluding the costs of this appeal). The judge's costs orders are also the subject of the application for permission to appeal. We have not been given any figure for the value of the property in issue but it seems most unlikely that this expenditure is justified by reference to that value. We have not been given details of how the costs have been incurred, but the factual and legal complexity of the case must regrettably have had a part to play in this. All this could have been saved if a written agreement had been made in the first place or at least if the parties had made their arrangements subject to contract. As I said in Kinane v Mackie-Conteh [2005] WTLR 345, the policy of section 2(1) of the 1989 Act is “to protect the public by preventing parties from being bound by a contract for the disposition of an interest in land unless it has been fully documented in writing.” It needs to be repeated loud and clear that that is the rule which Parliament had laid down in section 2 of the 1989 Act, and that that is a rule admitting of few exceptions under section 2.
I shall need to set out the background in some detail. However, to continue my brief overview of this convoluted litigation, in their defence Mr Doyle and Mr Talati contended that Mr Herbert was entitled to a conveyance of the green parking spaces only if he took certain additional steps. In judgment (1), the judge accepted the contentions of Mr Doyle and Mr Talati and made orders accordingly.
Mr Herbert thereupon, in something of volte-face, indicated that he was not then willing to take the additional steps. Mr Doyle and Mr Talati applied to the judge after he had given judgment (1) for permission to amend their claim to assert that Mr Herbert could not deny that they had acquired proprietary interests in land as a result of the parties' agreement. On 30 September 2008, the judge gave judgment (“judgment (2)”) permitting this amendment.
Following a further hearing, the judge on 27 November 2008 gave judgment (“judgment (3)”) on the newly-pleaded case in favour of Mr Doyle and Mr Talati. Mr Herbert seeks to appeal to this court from the orders made following this judgment. The issues of law raised by this appeal are not without substance, even though the point that divides the parties falls within a very small compass. I have no doubt that, now that all attempts to compromise the appeal have come to nought, permission to appeal should, save as explained below, be granted in this case. This may well be the first case in which this court has had to consider questions as to Cobbe-compliance.
Background
Mr Herbert owns the freehold of a house and large garden, known as Mansfield House, Ringwood, Hampshire. Mr Doyle and Mr Talati own the freehold of an adjacent property, consisting of a dental surgery, together with nine parking spaces. They also leased part of the ground floor in the main house from Mr Herbert. They carried on their practice as dental practitioners from the freehold and leasehold premises, and they and their clients used the parking spaces. Difficulties have arisen between the parties stemming from the fact that Mr Herbert wished to redevelop the former walled garden of Mansfield House and to build mews houses, but to do so he needed (among other matters) to persuade Mr Doyle and Mr Talati to exchange some of their parking spaces for others on his property (“the red parking spaces”).
Mr Herbert obtained the necessary planning permission to redevelop Mansfield House on 8 November 2000, but the respondents...
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