Julia Gibbons (as Executor of the Estate of Sydney Gordon Mills Deceased) v Mr Alfred Basil Smith
| Jurisdiction | England & Wales |
| Judge | Mr Justice Roth |
| Judgment Date | 01 July 2020 |
| Neutral Citation | [2020] EWHC 1727 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2019-000951 |
| Date | 01 July 2020 |
[2020] EWHC 1727 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
THE HONOURABLE Mr Justice Roth
Case No: PT-2019-000951
Mr Timothy Sherwin (instructed by Taylor & Emmet LLP) for the Claimants
The Defendants did not appear and were not represented
Hearing date: 21 May 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.
This Part 8 claim concerns two adjacent plots of land by Station Road, Hollingwood, near Chesterfield, Derbyshire, registered under title nos. DY14370 (“Plot 1”) and DY214014 (“Plot 2”). Together they will be referred to as “the Land” and comprise some 8.3 hectares.
It seems relatively clear that both plots are held on trust or trusts. However, the position concerning those trusts is uncertain and confused and the Claimants ask the Court to resolve a number of issues, including the identity, nature and effect of those trusts. Further, the Claimants seek orders for the sale of the Land, directions for the distribution of the proceeds of sale, and consequential directions and relief.
The named trustees of the trust of Plot 1, Mr Sydney Mills, Mr Thomas Hartshorne and Mr Eric Unwin, are all deceased. The First Claimant (Ms Gibbons) is the executor of the estate of Mr Mills. Mr Mills was also a named trustee of Plot 2. The Second Claimant (Ms Woolley) is the daughter of Mr Hartshorne and co-administrator of his estate. Further, Ms Woolley is herself a member of any club on the trusts of which Plots 1 and 2 are held.
The First to Third Defendants are the named trustees of Plot 2.
Ms Gibbons, in her capacity as Fourth Defendant, represents the estate of Mr Unwin, the final named trustee of Plot 1.
THE FACTS
Although the facts are not always clear, they are not in dispute. The account below is largely derived from the helpful skeleton argument of Counsel for the Claimants, which reflects the evidence placed before the Court.
Mr Mills, Mr Hartshorne, and Mr Unwin were all train drivers. It appears that some time before 1986, possibly in the 1960s or 1970s, they formed a club in Hollingwood for railway workers. Ms Wooley explains in her evidence:
“… my father worked on the railways his whole life, and retired as a train driver. His job, and his colleagues were very important to him. He therefore set up some clubs for employees of the railways and for people who lived in his area. My recollection is that my father together with his friends and colleagues including Mr Mills and Mr Unwin began meeting from the 1960s and 1970s.
I do not know precisely when and how he formed these various clubs. For some years, especially prior to 1986, they may have been simple informal “clubs” without constitutions or property.”
On 20 June 1986, they purchased Plot 1 from Chesterfield Borough Council for £7,500. According to the preamble to the conveyance, they were purchasing as the “ present trustees of The Chesterfield and District British Rail Staff Association (hereinafter called “the Association”)”. Pursuant to clause 2 of the conveyance, Mr Mills, Mr Hartshorne, and Mr Unwin took Plot 1:
“upon trust for the Association and according to the Rules thereof to deal therewith whether by way of sale lease mortgage charge or otherwise as the Association shall from time to time direct.”
The register of title for Plot 1 records Mr Mills, Mr Hartshorne, and Mr Unwin as the registered proprietors, and contains a Form A restriction together with a restriction as follows:
“Except under an order of the Registrar, no disposition by the proprietors of the land is to be registered unless a certificate signed by the secretary or solicitor of The Chesterfield and District Brimington Region and Staveley Area Sports and Welfare Club has been furnished that such disposition does not contravene any of the rules of the said club.”
The name of the club in the register of title is therefore not the same as that in the conveyance.
On 31 October 1990, Mr Mills, Mr Hartshorne and Mr Unwin agreed to buy Plot 2 from the British Railway Board for £19,125. The contract of sale stated that they were purchasing as “ trustees of the club or association known as Chesterfield and District Brimington Region and Staveley Area Sports and Welfare Club of Station Road Staveley.” It appears from clause 5 of the agreement that the club or association was already a tenant of Plot 2.
The conveyance of Plot 2, dated 9 November 1990, declared by clause 6(c) that:
“[Plot 2] shall be held by the Purchasers upon trust for the Railway Members and Retired Railway Members of the British Rail Staff Association and according to the rules or constitution of the Association to be sold leased mortgaged or otherwise dealt with by the Purchasers as the committee of the Association shall from time to time direct…”
The “Association” was defined by recital 1(c) to the conveyance as the “ Chesterfield and District Brimington Region and Staveley Area Sports and Welfare Club of Station Road Staveley.”
There is an almost identical set of restrictions in the register of title for Plot 2 as in the register of title for Plot 1: see para 9 above.
It is apparent from the conveyances that whatever club or clubs existed by the time Mr Mills, Mr Hartshorne, and Mr Unwin bought the Land had a set or sets of rules and/or a constitution. Moreover, in the course of administering her father's estate, Ms Woolley along with her brother and cousin found some boxes of papers in his house and the house of his brother (also now deceased) relating to the club or clubs, which included the manuscript minutes of an AGM of the club held on 27 October 1991 that record as follows.
“Amendment of BRSA Rules and [illegible] of Chesterfield & District Brimington Region & Staveley Area Sports 7 Welfare Club. Proposed that all amendments to Rules be accepted”.
Unfortunately, no complete set of minutes has been found, nor has any finalised set of rules or constitution come to light. However, the documents found include:
i) A document entitled “Constitution” which states: “The Club will be called B.R.S.A. Club” and records its aims and objectives as being:
“a. To promote the Club within the local Community
b. To manage the BRSA Club
c. To ensure a duty of care to all members of the Club
d. To provide all the services in a way which is fair to everyone
e. To ensure that all present and future members enjoy fair and equal treatment”.
This “Constitution” further contains rules in respect of members, membership fees, and the management of the club through a management committee. However, this document is unsigned and undated and it is unclear whether or when this “Constitution” was adopted.
ii) A longer and more detailed document comprising a constitution and rules for the “Chesterfield and District Brimington Region and Staveley Area Sports and Welfare Club”. The “Aims and Objections” [sic] of the club are stated to be:
“To develop Social Recreation and Cultural activities amongst Railway Staff and their families and friends.”
Again, there are, rather more detailed, rules for membership and contributions, and management via a management committee. Rule 4 states that membership of the Club “shall be open to Employees of British Rail” and provides that the Club facilities shall be available also to retired members, members' spouses and their dependent children. However, rule 39 is left in draft, and this document is also unsigned and undated.
In 1996–1997, there was an attempt with legal assistance to reconstitute the club (or clubs) as a charity. Minutes of a management meeting held on 30 June 1996 record:
“Correspondence read out and dealt with on our request for Charitable status via Taylor/Emmet Solicitors. They suggested we approach the Charity Commission and probably hive off the bar to a separate unit under same Trustees and change rules to suit.
Sec to progress the subject.”
There are manuscript minutes of an Annual General Meeting held on 31 August 1997 which record:
“Discussions on Solicitors recommendation on a change of name for the Charitable status petition to “Hollingwood Welfare Association” and continue with the old title of Chesterfield & District BRSA Sports and Welfare Club as a business [illegible]. The 3 Trustees have duly signed the Document shown.
Proposed we accept the Solicitors recommendation.”
It is unclear what document was referred to in those minutes, but on 18 October 1997, Mr Mills, Mr Hartshorne, and Mr Unwin executed a deed (the “Association Deed”) entitled:
“Declaration of Trust and Rules of Charity
Hollingwood Welfare Association”
The Association Deed appears from its face to have been drawn up with the assistance of Taylor & Emmet, solicitors, and it comprises 54 clauses. It seems clear that it was intended to create a charity. Pursuant to clause 1(10), the clauses are referred to in the document as “rules”. Significantly:
i) by clauses 1(1), 1(8), and 2, Mr Mills, Mr Hartshorne, and Mr Unwin declared that they held the Land, inter alia, “on the trusts hereinafter declared”;
ii) by clause 4, the trustees were to hold the Land and all other funds...
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