Jiggins v Brisley
| Jurisdiction | England & Wales |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWHC 841 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: HC 02 C01313 |
| Date | 16 April 2003 |
[2003] EWHC 841 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand,
London WC2A 2LL
Anthony Elleray Qc
Sitting As A Deputy Judge Of The High Court
Claim No: HC 02 C01313
This has been the trial of a claim by Pamela Jiggins ('Pame1a'), against the estate of her late mother-in-.law Ellen Jiggins ('Ellen'). She has been represented by Mr Ayres.
The first two Defendants are Michael Brisley ('Michael') and Maureen Brisley ('Maureen'). Maureen is Ellen's surviving child and Pamela's sister-in-law. Michael and Maureen are the executors named in Ellen's last will dated 02.07.01, a grant of probate to which they obtained on 08.02.02. They have been represented by Mr Jones.
The Third to Sixth Defendants are Ellen's grandchildren, who with Pamela, are beneficiaries named in her last will. On 15.08.02, they obtained a direction from the Court that they have permission to take no further steps in the proceedings. They have taken no such steps and have taken no part in the trial.
THE CLAIM
Pamela's claim relates to 58 Siege House, Sidney Street, London, El, a lease of which for the term of 125 years commencing on 14.08.89, is registered at HM Land Registry under title number EGL 251030 ('the Flat'). The Flat is the principal asset of Ellen's estate, which otherwise comprises cash in a building society account and kept by Ellen at the Flat, totalling about £650.
Pamela alleges that the Flat is, or should be declared to be held on trust for her. She seeks a transfer of the Flat into her name or as she directs. Her claim variously involves doctrines relating to constructive or resulting trusts, proprietary estoppel and mutual wills. Her claim is wholly disputed by Maureen and Michael.
BACKGROUND
William Henry Jiggins ('Bill) was born on 28.09.19. Ellen was born on 14.11.19. They married before the Second World. War. A first child, William James Jiggins ('Billy'), was born on 07.03.39. A second son, Ronald, was born in 1940. A third son followed, but he died aged four. Maureen was born in 1944, completing the family.
The surviving children having grown up and moved to their own houses, Bill and Ellen moved into the Flat, which was a Council flat, in 1971. The Council is Tower Hamlets LBC. In about 1973, Bill retired from his trade as an asphalter on health grounds. He then worked until retirement in 1984, as a cleaner for BT. Bill and Ellen retired on their old age pensions, supplemented by a small pension Bill received from BT.
In 1979, Billy married Pamela. He was then aged 40 and she 29. They had known each other for a number of years. She grew up in the living accommodation above an off-licence at 291 Brockley Road, London, SE4, of which her parents or at least her mother, was the tenant. In 1974, Pamela took a tenancy of the adjoining 289 Brockley Road, in which she opened a hairdressing salon ('the Salon'), there operating a business which she had already begun at home at 291 Brockley Road. Billy and she lived at 289 Brockley Road following their marriage. He also had amongst other business interests, a shop at 321 Brockley Road, selling second hand or antique furniture. Pamela purchased the registered freeholds of 289, 291 and 321 from the landlord, the City of London, respectively in 1987, 1996 (following her mother's death) and 1998.
Billy's business interests included in the late 1980s, running a night club in Windsor. I have been informed that Billy acquired some criminal record but that has not had relevance in the trial, save for explaining that he was a long standing and well liked client of his Solicitor, Mr Edwards, of the East End firm TV Edwards.
Pamela and Billy did not have children.
In 1989, Ronald died. His survivors include his son, the Third Defendant.
Michael and Maureen married in 1962 and have three children, the Fourth to Sixth Defendants. Michael has long worked as a maintenance manager for a city firm of accountants. They had a Council house near the Flat, which in 1987 they purchased from the Council, in exercise of their statutory right to buy. The cash element of the purchase was raised on a building society mortgage. They continue to live in that house.
On 14.08.89, Bill and Ellen completed the purchase of the 125 year lease of the Flat from the Council. The valuation was £52,000. Their statutory discount was 70%. The premium of 30% was £15,900. That sum together with costs and fees totalling £394.65, making a total of £16,294.65, was provided in cash by Billy, from monies drawn from his bank account held jointly with Pamela. Though the defence did not admit that provision, it has been accepted by Maureen and Michael in their evidence.
Mr Edwards' firm acted for Billy and Ellen in their purchase, and on the introduction of Billy. The file was conducted by a then employee of the firm, Ms Goodhart. Though Mr Edwards recalls receiving instructions from Billy to handle the conveyancing, he passed the matter over to Ms Goodhart and he does not recall meeting Bill and Ellen. His firm gave Bill a receipt for the cash provided by Billy. In applying for registration of their title to the Flat, Bill and Ellen through Mr Edwards' firm, ticked a standard form declaration that they were owners holding for themselves as beneficial joint tenants.
The land certificate was kept by Mr Edwards' firm. However on or by 31.05.90, it was released to Billy, since he then deposited it with his bank Allied Irish Bank plc, as a demonstration of good faith if not as security, in relation to business borrowings from the bank.
By late 1992, Billy had some financial difficulties, including in regard to the night club, which closed. On 01.10.02, a creditor petitioned for his bankruptcy, in reference to a debt of £26,034.50, which arose from his endorsement of a third party's gambling debt cheques payable to him, in favour of the creditor. The third party's cheques were dishonoured. Billy compromised the petition by agreeing to continue to pay off the debt, by instalments.
, Billy asked Bill and Ellen in late 1992 or early 1993, to transfer the Flat into Pamela's name. In early 01.93, Billy instructed Mr Edwards to act on such transfer. He advised that Bill and Ellen should be separatel.y represented, and he asked Ms Sherry, a Solicitor then with the firm of Edward. Fail Bradshaw Waterson, another local firm, to act for Bill and Ellen, which she did. Her telephone attendance note records Mr Edwards thinking that the Flat was being transferred to secure debts, which readily explains his concern as to conflicts of interest.
Ms Sherry had an initial meeting with Bill and Ellen, at which someone else was present. The third party presence, is evident to her from her file, since by a letter dated 12.01.93, written to Mr Edwards, she referred to having had by then the opportunity of speaking to her clients 'privately'. An earlier letter dated 08.01.93, written to Bill and Ellen, referred to the initial meeting being on 07.01.93.
Maureen says the initial meeting with Ms Sherry took place in the Flat and that Billy was present. There are issues which arise on her evidence, as to what was said at that meeting and as to its location. Ms Sherry has no recollection of visiting the Flat and that such would have been an unusual course, if the clients were ambulant. She does not recall who was the third party. On the latter point, the obvious inference would be that the third party was Billy, even in the absence of Maureen's evidence. I shall return later in this Judgment, to issues which arise on that evidence.
By her letter dated 08.01.93, to Bill and Ellen, Ms Sherry set out in the first three paragraphs, her instructions that the Flat had been purchased under the right to buy provisions, was out of time for discount claw back, and was to be transferred to Pamela free of charge. The letter set out her advice to Bill and Ellen. Her main, and sensible, concern, was the protection of Bill and Ellen's occupation of the Flat. She recorded instructions that the Flat purchase money had been lent by Pamela but that there had been no trust deed, protecting Pamela's interest and Bill and Ellen's rights of occupation. She advised the clients to seek a lifetime lease from Pamela.
Ms Sherry's next attendance note records a telephone call, from Bill asking her to come to see Ellen and him: 'leaving the property to your son'. That note does suggest a visit or visits to the Flat.
On 12.01.93, Ms Sherry wrote to Mr Edwards having seen Ellen and Bill again. The letter noted that her clients did not wish to transfer the Flat into Pamela's name. I will cite the second and third paragraphs of the letter:
'We are advised by our clients that they understood when purchasing (the Flat) that their son and daughter-in-law had advanced them the money to purchase (the Flat) as a gift. They are supported in their belief by the fact that no chargeor trust deed was entered into at the time of purchase. Our clients did tell their son that they would leave the property to him on the death of the survivor of them as recompense for their son and daughter-in-law having made the gift.
My clients have also asked me to advise you that they have today drawn up wills leaving the whole of their estate to (Billy and Pamela) and are content for you to pass this information onto your clients They do stress however that until the survivor of them the property must stay in their name'.
The reference in the last sentence to survivor was plainly meant as a reference to the death of the survivor, in the context of the two paragraphs.
On 13.01.93, Bill and Ellen made wills in similar...
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...v Day [2005] EWHC 1455 (Ch); McKenzie v McKenzie [2003] 2 PNCR DG 6; Humphreys v Humphreys [2004] EWHC01 (Ch) and [2005] 1 FCR 712. In Jiggins v Brisley [2003] EWHC 841 (Ch) and [2003] WTLR 1141 at [65] and [102] it was so treated by Mr Elleray QC himself when sitting an as deputy judge of......