John Michael Gee v John Richard Gee
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 13 July 2020 |
| Neutral Citation | [2020] EWHC 1842 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: C31BS166 |
| Date | 13 July 2020 |
[2020] EWHC 1842 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews (sitting as a Judge of the High Court)
Case No: C31BS166
Nicholas Pointon (instructed by Thrings LLP) for the Claimant/Applicant
The Second Defendant/Respondent in person
The First Defendant did not appear and was not represented
Hearing dates: 8 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my judgment on an application made by notice by the claimant dated 2 June 2020, for various orders arising out of a judgment given on 11 June 2018 in his favour at a trial before Birss J which took place in April 2018 over 6 days. That judgment is to be found under neutral citation number [2018] EWHC 1393 (Ch). The claimant's application is supported by a witness statement dated 2 June 2020 of the claimant's solicitor Robert James, and a further witness statement of Mr James dated 6 July 2020. The second witness statement was made in response to two witness statements made in opposition to the application, that of the second defendant, and that of the second defendant's wife (Helen Gee), both dated 1 July 2020. All of these witness statements exhibit documents relied on in the course of the application.
On this application, the claimant was represented by counsel, Nicholas Pointon, instructed by Thrings LLP. Although the second defendant had been represented by counsel and solicitors at the trial and at subsequent hearings, in November 2019 the second defendant ceased to be represented, and took part in this application as a litigant in person. His wife, who is a qualified accountant, was with him in the room during the application and acted as a kind of “McKenzie Friend”, quietly giving him advice and finding him documents. But, as is usual in such cases, the second defendant spoke on his own behalf. The application was conducted on the Microsoft Teams videoconferencing platform (which is now permitted on judicial laptop computers, and which has better functionality than Skype for Business). There were one or two minor technological glitches, but nothing substantive, and the hearing proceeded in much the same way as it would have done in a courtroom. I record here that there was no live evidence given, and that there was no application to cross-examine any witness on his or her witness statement.
The litigation and the order
The litigation concerns a family farm, Denman's Farm, in Cumnor, Oxfordshire. The parties to the litigation and this application, and others involved in it, are all members of the same family. The first defendant is married to Pamela, and they have three surviving children, the claimant, the second defendant, and a daughter, Jeanne Pamela Humphrey, known as “Tussle”. By his first wife, the claimant had three children, Charles, Jeffrey and Sasha. He is now however married to Sandra. The second defendant is married to Helen, who as I say is a chartered accountant, and they have two children, Jack and Ottilie. The first defendant's grandfather, John P Gee, bought the first land now part of Denman's Farm in 1924, and the farm has passed down the generations since then.
The claimant had sued the first defendant (his father) and the second defendant (his brother) in a proprietary estoppel claim relating to the family farm. The claim related to assurances made by the first defendant to the claimant over many years, in reliance upon which the claimant had worked on the farm at low wages, rather than striking off on his own. The farming business was carried on by a company, John P Gee and Sons Ltd (“the company”), which had a tenancy of the farmland. In 2014 the first defendant owned all the shares in the company save one, which belonged to Pamela, his wife. At that time, the freehold reversion of the farmland belonged to the first claimant as to 7/18, to Pamela as to 7/18, and to the company as to 4/18. But in November 2014 the first defendant transferred all his shares in the company and his 7/18 share in the land to the second defendant. At the same time, Pamela transferred her one share in the company and her 7/18 share in the land to the claimant.
In his judgment, the judge held that the proprietary estoppel claim was made out. After considering the circumstances of the case, he held that the equity raised in favour of the claimant should be satisfied in such a way that the claimant ended up with 46% of the land but 52% of the company, and the second defendant and their sister Tussle each having 27% of the land but 24% of the company. There were further hearings on 22 October 2018 and 21 December 2018 about the steps that would be needed to reach that position. The final order was made on 14 February 2019. At the trial and at these further hearings both sides were represented by leading counsel. Although the judge himself refused permission to appeal, there was the possibility that either or both of the defendants would seek permission to appeal from the Court of Appeal.
So far as material, the order provided as follows:
“(1) in this order “the Effective Date” means:
a. If the Defendants (or either of them) do not apply to the Court of Appeal for permission to appeal this order, 1 February 2019.
b. If the Defendants (or either of them) apply to the Court of Appeal for permission to appeal this order and such permission is refused, the date of the order refusing permission.
c. If the Defendants (or either of them) apply to the Court of Appeal for permission to appeal this order and such permission is granted, the date of the final determination of that appeal.
(2) For the purpose of giving effect to the Claimant's accrued rights in relation to J P Gee and Sons Ltd (“the company”) and the freehold land registered under title number ON 270596 at HM Land Registry (“the Freehold Land”) the Claimant and Second Defendant shall make the transfers set out below.
(3) The Second Defendant do within two months of the Effective Date transfer 12,480 shares in the company to the Claimant to be held for the Claimant absolutely.
[ … ]
(5) The Second Defendant do within two months of the Effective Date transfer to the Claimant a 32.985% beneficial undivided share in the Freehold Land such share to be held for the Claimant absolutely.
[ … ]
(15) The parties shall make any necessary claims for holdover relief with the intent of minimising any tax liabilities that may arise in respect of the implementation of paragraphs (2) to (6) of this order.
(16) Any tax liabilities arising from the implementation of paragraphs (2) to (6) of this order shall (irrespective of the person or body primarily liable for the said tax) be paid by the Claimant and the Second Defendant in the same proportions as their shareholding of the company, being 52% and 48% respectively…
(17) There be liberty to each party to apply to the court for the purpose of varying this order should further or additional liability to tax arise in consequence of the terms of this order which were not within the contemplation of the parties at the date hereof.”
It will be noted that the order mis-names the company, as “J P Gee and Sons Ltd”, rather than “John P Gee and Sons Ltd”. This does not invalidate the order or make it unenforceable. If there were another company with that name, or no company with that name but another company with a similar name, in which the second defendant held shares, it would be necessary to resolve the ambiguity, perhaps by resort to the so-called slip rule, in CPR rule 40.12. But in the circumstances that there is only one company with a similar name to that in the order in which the second defendant has shares, there can be no confusion. It is perfectly clear which company the judge was referring to, and the order bites on that company. There is no need for any amendment to the order.
Applications for permission to appeal
The defendants did apply to the Court of Appeal for permission to appeal. Permission was refused by Rose LJ on 24 May 2019. The order was actually sealed and sent out on 28 May 2019. In accordance with CPR rule 40.7(1), the order took effect from the day when it was made by the judge, and not the day when it was sealed or sent out by the court staff. That means that “the Effective Date” for the purposes of the order was 24 July 2019 rather than 28 July 2019. As it happens, the second defendant made a further application to the Court of Appeal by application notice dated 10 October 2019 asking the Court of Appeal to reopen the appeal under CPR rule 52.30. On 14 January 2020 Rose LJ refused this further application. This did not, of course, affect the meaning of “the Effective Date”. It is obvious that I am not in a position to go behind the dismissal of these applications, and that the order of 14 February 2019 must be treated by me as definitive. My function on this application is simply to decide whether the second defendant has complied with his obligations under the order, and (if he has not) whether it should be enforced against him, and if so how.
Subsequent events
Following the order, there was correspondence between the parties about the implementation of the order. In June 2019 the second defendant recognised his obligation to transfer both shares and land to the claimant by the end of the following month. On 17 July...
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