Langdale v Danby
Jurisdiction | UK Non-devolved |
Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Roskill,Lord Bridge of Harwich,Lord Brightman |
Judgment Date | 29 July 1982 |
Judgment citation (vLex) | [1982] UKHL J0729-3 |
Date | 29 July 1982 |
Court | House of Lords |
[1982] UKHL J0729-3
Lord Diplock
Lord Fraser of Tullybelton
Lord Roskill
Lord Bridge of Harwich
Lord Brightman
House of Lords
My Lords,
I have had the advantage of reading in advance the speech about to be delivered by my noble and learned friend, Lord Bridge of Harwich. For the reasons he gives I too would allow this appeal.
My Lords,
I have had the privilege of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. I agree with it, and for the reasons given by him I would allow this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich. For the reasons given by him, I too would allow this appeal.
My Lords,
The appellants are Mr. and Mrs. Langdale. Mr. Langdale is a solicitor. Through most of the period covering the events giving rise to this appeal he was a partner in the firm of Payne & Payne, of Hull. He is now a consultant with that firm.
In July 1964 Mr. and Mrs. Langdale bought an estate near Hull. The estate included a cottage, number 33, Dale Road, Elloughton, for which the Langdales had no immediate use. But they foresaw that the day might come when it would provide a home for one of their three young daughters when they grew up and married. They decided to offer the cottage for sale at a price of £2,650 but on terms that they would reserve for themselves the right of pre-emption and an option exercisable within twenty one years to re-purchase the cottage at the same price. The cottage was put on the market on these terms through estate agents. A Mr. and Mrs. Ford offered to purchase. The terms of the contract and the option deed were agreed with the Fords' solicitor but contracts were never exchanged. In the event, the Fords could not find the purchase price and the deal fell through.
The respondent, Mr. Danby, was then introduced to the Langdales by his employer, a builder named Cogan, who had done some work to the cottage. Mr. Danby was in urgent need of accommodation for himself and his family. The upshot of the negotiations was that the cottage was sold by the Langdales to Mr. Danby on exactly the same terms as those which had been agreed, subject to contract, with the Fords. But Mr. Danby had no money at all. The purchase was financed by a mortgage loan from the Skipton Building Society of £2,250 with the balance of the purchase price and costs, £412. 14s.9d, left outstanding and secured to the Langdales by a second mortgage. Moreover, Mr. Danby could not even afford to employ a solicitor. Mr. Langdale therefore agreed to undertake all the necessary conveyancing work for no fee except disbursements. In the event all that Mr. Danby had to pay was £7. 16s. 0d. The conveyance, the two mortgage deeds, and the deed granting the rights of pre-emption and option were all executed on 12th March 1965.
In 1979 the Langdales, requiring the cottage for a daughter who was about to be married, wished to exercise the option. Mr. Danby was unwilling to sell. He evidently consulted a number of solicitors. The Langdales offered to re-purchase for £6,150, £3,500 above the option price. This offer was refused. Formal notice to exercise the option was given on 2nd July 1969. By this time the solicitor acting for Mr. Danby was a Mr. Bosomworth, then a partner in the firm of Simpson, Curtis & Co., but subsequently practising on his own account as John Bosomworth & Co. He has acted for Mr. Danby in this matter ever since.
On 4th October 1979 Mr. Danby commenced proceedings in the Beverley County Court challenging the validity of the option on the sole ground that it was a clog on the equity of redemption under the second mortgage. On 29th October 1979 the Langdales issued their writ in the Chancery Division claiming specific performance of the option contract. On 9th November 1979 the Langdales issued a summons for summary judgment under Order 86 of the Rules of the Supreme Court. On 21st November 1979 Mr. Danby issued a cross-summons for transfer of the High Court proceedings to the Beverley County Court. Both summonses came before Master Dyson on 27th November 1979, when they were adjourned to the judge. They were heard and determined by Oliver J., as he then was, on 13th December 1979. In the light of the subsequent course of these proceedings, it is of the first importance to notice both the sequence and the substance of the affidavit evidence put before the court on this occasion. No doubt anticipating the issue of both writ and summons for summary judgment, affidavits were sworn in support of the Langdales' claim on 23rd October 1979 by both Mr. and Mrs. Langdale and by Mr. Danby's former employer, Mr. Cogan. Mr. Langdale's affidavit, confirmed by his wife, asserts categorically that at the time of the 1964 agreement he and his wife made clear to Mr. and Mrs. Danby that the offer to sell the cottage for £2,650 was only on terms of the right of pre-emption and option to re-purchase within 21 years at the same price; that in any event these were the only terms on which they were prepared to sell to anyone; and that it was because Mr. Danby could not afford to go to a solicitor that he undertook to have the conveyancing work done for him without charge except for disbursements. The affidavit of the wholly independent Mr. Cogan is sufficiently important to be worth quoting verbatim. Mr. Cogan deposed:
"I knew that the cottage was up for sale because Mr. Langdale had told me. I overheard him discussing the cottage with his wife and I asked him afterwards if he had thought about letting it. Mr. Langdale told me that he would not consider letting it. I told him that I wanted a house for the Defendant. Mr. Langdale said that he would let the Defendant have the cottage at a reasonable price but that he wanted to be able to have the cottage back at the price the Defendant was to pay if the Defendant wanted to sell or if Mr. Langdale wanted it back.
I told the Defendant about my conversation with Mr. Langdale and told him the terms upon which he was prepared to sell the house. I suggested that he should go round to see him. Later after the Defendant had visited the Plaintiffs and agreed the terms of the sale, he discussed the bargain with me and asked my opinion. I told him that it was the best thing he could do in the circumstances because I could not help him financially and could not find him a house to rent."
Presumably with these affidavits before him, Mr. Bosomworth swore an affidavit in support of the cross-summons to transfer the High Court proceedings to the County Court on 22nd November 1979 in which he deposed:
"….. the dispute does not appear to give rise to any difficult questions of law, such as would make a High Court trial desirable. It appears, rather, to require the application of well-established principles to facts which will be agreed, or almost agreed."
Master Dyson having indicated his view that the Langdales were entitled to specific performance and adjourned the summons to the judge, it was only on the day of the hearing before Oliver J., 13th December 1979, that Mr. Bosomworth swore a further affidavit, which contained the following two paragraphs:
"3. I am informed by the Defendant and verily believe that it was explained to the Defendant by the first named Plaintiff that the Deed was to protect the Plaintiffs as to who was to be their neighbour and that if he the Defendant wanted to sell the property the subject matter of this action he had to give to the Plaintiffs the opportunity to buy it first ….
6. In my respectful submission the Defendant should have been separately represented in the transaction and that a reasonable option would have been to re-purchase at a price to be agreed or at a price fixed by an independent valuer."
There was no affidavit from Mr. Danby.
Mr. Bosomworth was in court at the hearing before Oliver J. As appears from the judgment of Oliver J., counsel then appearing for Mr. Danby expressly asserted, as he had before the master, that there was "no suggestion of any misconduct or anything of that sort against the plaintiffs, and he then conceded that the only question to be decided was clog or no clog." The learned judge referred to paragraph 6 of Mr. Bosomworth's latest affidavit and added:
"It has not been suggested—at any rate up to this stage—that the transaction was in any way open to attack as being induced by undue influence or anything of that sort."
Oliver J. decided the "clog on the equity" point in favour of the Langdales and against Mr. Danby. His decision on this point is now no longer in issue. He accordingly gave judgment in favour of the Langdales for specific performance.
It would be tedious in the extreme to rehearse in detail the long history of the consequential proceedings to which the Langdales were obliged to resort to secure the enforcement of the judgment given in their favour on 13th December 1979. I hope it is not unfair to summarise the history by saying that Mr. Danby, presumably with the advice and co-operation of his solicitor, resorted to every conceivable device to deny the Langdales the fruits of their judgment for as long as possible. In the course of these manoeuvres the mortgage loans were repaid. When eventually ordered to complete the transaction and give vacant possession on 30th June 1981 Mr. Danby failed to do so. In July the conveyance of the cottage to the Langdales was ordered to be and was executed on Mr. Danby's behalf by a Chancery Master. Still the Danbys did not move. Eventually a writ of possession was issued and executed on 17th September 1981 when the Danby family were evicted amidst a blaze of publicity which one...
To continue reading
Request your trial