KSH Farm Ltd v KSH Plant Ltd
| Jurisdiction | England & Wales |
| Judge | Mark West |
| Judgment Date | 14 July 2021 |
| Neutral Citation | [2021] EWHC 1986 (Ch) |
| Docket Number | Case No: CC-2019-LDS-000011 |
| Court | Chancery Division |
[2021] EWHC 1986 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN LEEDS
BUSINESS LIST (Ch D)
Cloth Hall Court,
Quebec Street,
Leeds LS1 2HA
UPPER TRIBUNAL JUDGE Mark West
Sitting as a Judge of the High Court
Case No: CC-2019-LDS-000011
Edward Bennion-Pedley (instructed by Gordons LLP) for the Claimants
James Fryer-Spedding (instructed by Berrymans Lace Mawer) for the Defendants
Hearing dates: 8–12 March 2021
Further written submissions: 26 March 2021
Further oral submissions: 29 March 2021
Approved Judgment
Introduction
In this judgment the parties are designated as follows:
the First Claimant, KSH Farms Ltd: KSHF
the Second Claimant, Claire Jowitt: Claire
the First Defendant, KSH Plant Ltd: KSHP
the Second Defendant, Rupert Jowitt: Rupert
At all material times Claire has lived and worked at a farm at The Hall, King Sterndale, Buxton, Derbyshire (“the Farm”), a property owned initially by Claire and her late father and now owned by her alone. At one time Rupert had his own garage business, Froggatt Edge Garage Services Ltd (“the Garage”), which he sold for £55,000 on 3 May 2017.
Scheme of the Judgment
In this judgment the headings and corresponding paragraph numbers are as follows:
A Summary of the Case 3–10
B The Court's Approach To The Case 11–12
C Witnesses
Claire 13
Rupert 14
Mr Jones 15
Mr Sheldon 16–19
M Murray 20
Mr Foden 21
Mrs Bannister 22
Mr Mycock 23
Mr Philps 24
Impressions Of The Subsidiary Witnesses Generally 25–27
Mrs Gregory 28–30
Ms Morris 31–33
D Expert Report 34
E The Facts
Rupert's Garage 35–39
Claire and Rupert's Meeting; the Beginning of the Relationship 40–57
Rupert Moves Into the Farm 58–79
Rupert and Eric Miller 80–97
The Clamark Dispute 98–109
The Marriage 110–111
The Sale of the Garage 112–121
The Selden Site 122–128
After The Marriage: April — August 2017 129–160
The Breakfast Incident 161–170
Rupert's Departure from the Farm 171–182
Mrs Bannister's Account 183–186
After Rupert Left The Farm 187–191
The Handwritten Notes 192–206
The Payments/Alleged Loans:
Claire's Account 207–219
Rupert's Account 220–228
Oral Evidence 229–235
The Clamark Negotiations Continue 236–239
1 October 2017 240–241
4 October 2017 242–255
9 October 2017 256–271
10 October 2017: Text Messages 272–283
Claire's Alleged Site Visit:
Claire's Account 284–285
Rupert's Account 286–291
Mr Foden's Account 292–299
Mr Sheldon's Account 300
Mr Murray's Account 301–307
Findings 308–311
10 October 2017: Telephone Call
Mr Jones's Evidence 312–317
Claire's Evidence 318–322
The First Versions of the October Agreement 323–341
10 October 2017: The Signing Of The October Agreement
Claire's Witness Statement Account 342
The Final Version Of The October Agreement 343–344
Claire's Oral Evidence 345
Rupert's Account 346–350
Mr Sheldon's Account 351–358
Mr Murray's Account 359–364
Findings 365–370
After The Signing: Text Messages 371–374
Mrs Bannister's Account 375–376
10 October 2017: Solicitors' Emails 377–380
11 October 381–393
Subsequent Actions And Text Messages; The Payment On 17 October 394–405
1 November 2017 406–420
The Evidence Of Mr Philps 421–426
Subsequent Actions, Text Messages And Payments 427–448
Winter/Spring 2018 449–461
Summer 2018 462–484
Trespass at the Farm 485–489
Mr Murray's Evidence 490–494
Mr Mycock's Evidence 495–496
Mr Philps' Evidence 497
Mr Foden's Evidence 498–499
Mrs Bannister's Evidence 500–503
Abandonment Of The Trespass Claim 504–506
Damage to Property 507–518
Mr Foden's Evidence 519
Mr Murray's Evidence 520–522
Letter Before Action 523
F The Approved List of Issues
G The Money Claim 525–528
Issue 1 529–535
Issue 2 536–547
Issue 3 548
Issue 4 549
H The Assets Claim
Issue 5 550–556
Issue 5A 557–565
Issue 7 566
Issue 6 567
Duress 568–609
Undue Influence 610–626
The Question Of Continuing Duress/Undue Influence 627–637
Affirmation 638–647
Rescission 648–650
Passing Of Title 651–655
Issues 8–12: Conversion Of Chattels 656–658
I The Trespass Claim
Issues 13, 17 And 18 659
Issue 16 660–662
Issue 14.1 663–665
Issue 14.2 666–668
Issue 14.3 669–670
Issue 14.4/14.5 671–675
Issue 15 676
Logs/Hay 677–680
J Conclusion 681–684
Summary of the Case
Claire and Rupert are husband and wife. They were married on 25 April 2017, but separated later the same year, in fact only 4 months later, over the August Bank Holiday weekend. These proceedings arise out of that separation. Divorce proceedings are pending, but not yet finalised. During their relationship they operated two businesses together, KSHF, owned solely by Claire and KSHP, owned solely by Rupert. KSHP was originally named Froggatt Edge Farm Services Ltd, but was renamed on 16 August 2017. For ease of reference I shall refer to it throughout as KSHP.
In broad terms there are three parts to the claim.
The first claim is a money claim for £102,714 in respect of various sums paid by Claire and/or KSHF to Rupert and/or KSHP between September 2017 and July 2018, as to which there is a dispute as to whether the sums paid were loans or not and whether £50,000 was paid pursuant to a document executed on 10 October 2017, referred to hereafter as “the October Agreement”. There is a dispute as to the status and enforceability of that document and the circumstances in which it was executed. There is a fundamental dispute between Claire and Rupert as to the nature of and the power balance within their relationship, both essentially alleging coercion against the other, although in very different ways. Claire describes a relationship in which Rupert was the dominant partner, exercising control over, amongst other things, her appearance and holding out the prospect of a relationship which she wanted with him in order to extract, for example, loans. She describes Rupert as volatile and prone to rages. By complete contrast, Rupert alleges that Claire isolated him from his friends and treated him appallingly by, for example, making him sleep on the kitchen floor and preventing him from buying food. On 10 October 2017 the parties executed the October Agreement. Again their accounts are completely at variance. Rupert says that Claire attended the site where he was working (“the Selden site”) and demanded that he sign the Settlement Deed (relating to a dispute with her brother) which he said he had not seen before. He refused to sign it on the basis that he wanted to obtain legal advice or get something from it. Rupert's account was that it was Claire who proposed to separate them financially and that it was she who pressured him to sign the October Agreement. By contrast, Claire says that Rupert knew about the Settlement Deed in advance and that he needed to sign it, but that he went quiet when she asked him to do so, avoiding her telephone calls. By 10 October she was facing an ultimatum from her brother, who was requiring her to sign or risk the deal going off. She denied that she had gone to the site and said that it was Rupert who required the October Agreement and who forced her to sign it and that she did so under protest, telling him that what he was doing was not legal and had no effect. She said that she spoke to her solicitor on the day and told him of the pressure which Rupert was applying to her.
The sums involved in the money claim and the dates on which they were paid are as follows:
(a) from KSHF to KSHP:
27 September 2017 £10,000
1 November 2017 £ 9,000
25 November 2017 £10,000
26 November 2017 £10,000
29 November 2017 £ 8,500
1 December 2017 £ 1,500
4 December 2017 £10,000
£59,000
(b) from Claire to KSHP:
14 September 2017 £ 500
1 October 2017 £ 1,000
1 October 2017 £10,000
4 October 2017 £15,000
7 February 2018 £ 2,214
12 July 2018 £10,000
£38,714
(c) from Claire to Rupert:
17 October 2017 £ 5,000
The second claim is an asset claim for delivery up and/or damages in respect of 14 items of farm machinery and equipment and a Ford Transit van, together with logs and hay, removed from the Farm in or about August 2018, as to which there are disputes about the beneficial ownership of the assets and whether KSHF was bound to transfer the items to KSHP pursuant to the October Agreement.
The third claim is a trespass claim arising out of Rupert and KSHP's continued use of the Farm after Claire says that she asked him not to, the removal of significant quantities of topsoil and logs, the removal of an oil tank and the dumping of building waste and other damage.
In fact the ambit of the third claim was much reduced because, in opening for the Claimants, Mr Bennion-Pedley accepted that the general trespass claim could not be made out and he withdrew paragraphs 54, 55 and 56 of the Amended Particulars of Claim and the claim for aggravated damages in paragraphs 61 and 62.
What was therefore left of the trespass claim was the claim for damages for the removal of significant quantities of topsoil and logs, the removal of an oil tank, damage to two stone walls and the dumping of rubble (or building waste) and stone.
The Court's Approach To The Evidence
Given the personal rancour involved in the dispute between the two estranged spouses and the stark and irreconcilable conflict of evidence between them, in writing this judgment and reaching my conclusions, I have particularly borne in mind the recent guidance of Warby J (as he then was) in R (Dutta) v. GMC [2020] EWHC 1974 (Admin) at [39], notably...
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