Kelston Maurice Sparkes (Appellant (Plaintiff) v Rodney Smart (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE STUART-SMITH |
| Judgment Date | 10 April 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0410-6 |
| Docket Number | 90/0456 |
| Date | 10 April 1990 |
| Court | Court of Appeal (Civil Division) |
[1990] EWCA Civ J0410-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
HIS HONOUR JUDGE Da CUNHA
(Sitting as a High Court Judge)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Ralph-Gibson
and
Lord Justice Stuart-Smith
90/0456
MR. M. EVANS (instructed by Messrs Harris & Harris, Bristol) appeared on behalf of the Appellant (Plaintiff).
MR. C. GOSLAND (instructed by Messrs Lyons Davison & Co., Bristol) appeared on behalf of the Respondent (Defendant).
This is an appeal by Kelston Maurice Sparkes, to whom I shall hereafter refer as "Kelston", from a judgment and orders made by His Honour Judge Da Cunha, sitting as a Deputy High Court of the Queen's Bench Division at Bristol on 6th June 1988. The case concerns an unhappy and regrettable family dispute over an agricultural holding known as Halfway Farm, Stanton Drew, in the county of Avon ("the farm"). The family is the Smart family. There is a complete list of the dramatis personae given in an early paragraph of the judgment. For the purposes of this appeal, however, I need only refer by name to five members of the family as follows:
William Smart, the father of the family ("William");
Lionel Smart, who is William's brother ("Lionel"); Rodney Smart, the youngest son of the family and the respondent to the appeal ("Rodney"); and Kelston, William's son-in-law, who is married to Kathleen his second daughter.
At the outset of the events with which the appeal is concerned the freehold of the farm was owned by Coates Estates ("Coates") and managed by Orchard Executor and Trustee Company, which was a company set up by a firm of solicitors named Meade-King and Company ("Meade-King"). The company was formed to carry out the various managerial duties undertaken by the firm of solicitors on behalf of their clients amongst which was supervising the agricultural letting of the farm by Coates to William. Thomas Everett ("Everett") was the partner of Meade-King especially charged with looking after the Coates' affairs and was also a director of the Orchard Executor and Trustee Company.
The relevant history can be summarised as follows. William was born in 1905. By a tenancy agreement made on 23rd January 1943 between the predecessors in title to Coates as Landlord, William as tenant and Lionel as surety William became the tenant from year-to-year of the farm. The agreement contained the usual covenants entered into by the tenant including a covenant not to assign, sub-let or part with possession of the property or any part thereof.
William and his wife continued living in the farm where they brought up their family of four daughters and two sons. During the 1939–45 war and post-war years each member of the family in due turn was expected to and did take part in any way which was appropriate in the running of the establishment. Each child left school at the earliest age and helped in the house or on the farm itself. William's wife suffered from increasing rheumatoid arthritis, which added to the difficulties of managing the home and bringing up the family. Her last two children were twins one of whom was Rodney. They were born in 1946. Kathleen was born on 3rd January 1932. Rodney started work on the farm in 1960 at the age of 14 1/2 and has continued working at the farm until the present day.
In about 1972 William decided to "encourage Rodney" by taking him into partnership on a profit-sharing basis only. William retained the ownership of the live and dead stock on the farm and remained the sole tenant under the agreement. However, instead of being paid a wage Rodney was given a share of the profits. However, as time progressed the increasing disablement of his wife together, I am certain, with the effect of advancing years caused William to decide to stop active participation in the farm. He, therefore, lit upon a plan under which the partnership would be dissolved, Rodney would buy at a price fixed by Lionel both the live and dead stock on the farm and would, thereafter, be entitled to the whole of the profits of the farming operation. The valuation and the accounts on the dissolution of the partnership were formally drawn up and approved by Lionel with a net balance owing by Rodney to William. In addition there was recorded a figure of £2,000 "for the transfer of the tenancy". It appears that at this time William and Rodney clearly had in mind that Rodney should acquire either a sub-tenancy or receive an assignment of the tenancy of the farm.
When William approached Everett enquiring, inter alia, whether the landlords would consent to an assignment or sub-tenancy he received an answer in the negative but qualified in these terms as reported subsequently by William to Rodney and related by Rodney in evidence:
"Mr. Everett said that he could not have the tenancy transferred to me because of an old lady, an owner, one of the owners, was very ill and not in a fit state to sign any documents but that I could go on, still carry on farming the farm. All it would mean is I would pay the rent to my father and he would pay it to Meade-Kings, and I did not have to worry because I was covered by—if anything happened to my father I was covered by the new Act".
Everett did not have access to his contemporaneous documents or attendance when giving notes evidence before the judge and, not surprisingly, his recollection was not good when doing this many years subsequently. When this conversation was put to him in cross-examination he accepted that he might well have said something to this effect. In fact Everett had a standing instruction from Coates not to permit the sub-letting or assignment of any of the agricultural tenancies under his control. This, however, is not inconsistent with his giving a less abrupt and more humane answer to the enquiries made by William as to whether his plan to hand over to his son could be put into effect.
William died on 29th September 1982. Since 2nd January 1981, however, there had been a report on his mental condition to the Court of Protection. On 2nd March 1981 the Official Solicitor consented to act on his behalf. In a proof of evidence, prepared by William in September 1979 when obviously "compos mentis", which was admitted under the Civil Evidence Act at the trial William described the position following upon the landlord's refusal in these terms:
"I approached my landlords requesting them to permit me to sub-let the farm to my son. They refused permission. They indicated, however, that they would have no objection to me remaining as tenant and to my son paying me the rent which I would then pay to them. This arrangement was then adopted from April 1978 onwards".
Some members of the family gave evidence before the judge which did not agree with the evidence given by Rodney. However, the judge accepted that in early January 1978 William called a family meeting which was attended by all the family. He asked them whether they had any objection to his proposal, namely to hand over the running of the farm to Rodney. Rodney said that none of them raised any objection and after considering the evidence this was accepted by the judge. In reaching his conclusion the judge also had in mind a letter dated 14th April 1977 written by Everett to William referring to the latter's enquiry about assigning the lease or granting a sub-tenancy. Having referred to one of his clients, a Mrs. Pierce, as an elderly lady who found herself in a very difficult position in relation to the other members of the family interested in the estate, the letter continued:—
"As I am sure you will appreciate, it is impossible for Mrs. Pierce to give us instructions at the moment and, therefore, she has asked us to write to you apologising for the present situation, pointing out her difficulties and informing you that no action can be taken at the present time.
I will bear in mind your request for the transfer of your tenancy to your son and if the situation changes, I will let you know".
This was the basis upon which the judge came to certain conclusions, to which in my judgment he was fully entitled to come, in connection with the refusal by Coates to consent to a transfer by the father of the tenancy to Rodney:—
"…On his part, I am satisfied at the relevant time Mr. Everett did understand what was happening but probably felt that so long as he did not formally consent to an assignment or the creation of a sub-tenancy for Rodney and the rent continued to be paid by William Smart then it was not in anyone's interest that he looked into the matter more closely.
However, no matter what he may now recollect, and I have considerable sympathy for him for it was many years ago and he was very actively engaged in his partnership practice, he must surely have realised that this comparatively elderly farmer with an ailing wife was anxious to finish with practical farming and to devote his remaining time and energy to her daily care.
That in turn meant from the request he had come to make (and not for the first time), to share [have] his tenancy assigned to Rodney or to be allowed to sub-let to him, together with the reality of the situation, that was that the son living in the farmhouse and working the farm, that he had or was about to give Rodney everything short of a sub-tenancy, namely a licence to occupy the land and buildings exclusively and in return to pay his father the rent the lease demanded. And this is exactly what the father did".
In 1979 Coates decided to sell the...
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