Lloyd Dorian Williams v Gerwyn Lloyd Williams
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Newey |
| Judgment Date | 23 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1465 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001457 |
[2023] EWCA Civ 1465
Lord Justice Newey
Lord Justice Nugee
Case No: CA-2022-001457
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
HIS HONOUR JUDGE JARMAN KC (sitting as a Judge of the High Court)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Guy Adams (instructed by Red Kite Law LLP) appeared on behalf of the Appellant
James Pearce-Smith (instructed by Michelmores LLP) appeared on behalf of the 1 st and 2 nd Respondents
Approved Judgment
I will preface this judgment by saying what should be obvious to everybody in court, that it has not been considered at great length and will not come out as a polished judgment, but we thought it better that the parties should know where they stand straightaway given that the substantive appeal is due to be heard in under two weeks' time.
The question in this application is whether the Appellant, Mr Dorian Williams, already has, or can, and should, now be granted, permission to appeal on Ground 3 of his Grounds of Appeal. He undoubtedly does have permission from Lewison LJ on Ground 5 of his Grounds of Appeal, and his appeal is due to be heard shortly.
The underlying facts are not of central importance to today's application, but, briefly, the Appellant brought an action against two of his siblings, Mr Gerwyn Williams and Mrs Susan Ham, and the executors of his father's estate, asserting that he was entitled to ownership of two farms in Neath in Wales, which were farmed together as a single holding, one called Crythan of about 50 acres, and one called Cefn Coed of about 144 acres.
His claims were put forward on two alternative bases: firstly, that the farms had been contributed as assets to a partnership which was established between himself and his parents in 1985, with the result, so it was said, that on the death of his parents (his mother in 2013 and then his father in 2018) the entire interest in the farms passed or “enured” to him; and secondly, that he had a claim to both farms by proprietary estoppel on the basis that his parents encouraged him to believe that they would be his, and that he had acted in reliance on that.
The action was tried by HHJ Jarman KC, sitting as a judge of the High Court in Cardiff, in June 2022. He handed down judgment on 4 July 2022 at [2022] EWHC 1717 (Ch). In that judgment he dismissed both ways of putting Mr Dorian Williams' claims. He later also refused him permission to appeal.
The Appellant applied for permission to appeal in his Appellant's notice, relying initially on 6, and after an amendment on 7, grounds of appeal. Grounds 2 and 3 were directed at the partnership issues in relation to Crythan and Cefn Coed respectively. Ground 5 was directed at a subsidiary issue. Cefn Coed had been acquired in the joint names of the Appellant and both his parents. There was in the conveyance or transfer no express declaration of trust, and that gave rise to a question whether it was acquired by them as beneficial joint tenants or as beneficial tenants in common.
The Judge held that they were tenants in common in equal shares, with the result that the Appellant was entitled to a third share. By Ground 5 he contended that the Judge should have held that Cefn Coed was initially acquired by the three of them as joint tenants. That, as I understand it, would mean that on his mother's death Cefn Coed would be held by him and his father jointly, and since his father had severed the joint tenancy in 2014, the Appellant would now hold a half interest as tenant in common with his father's estate.
The permission for appeal application came before Lewison LJ. He dealt with it, as is very common with permission applications in this Court, on paper. His decision is dated 20 October 2022. It is headed after the title, “ORDER made by the Rt. Hon. Lord Justice Lewison.” There is then a box marked “Decision” which reads: “Granted on Grounds 3 and 5. Refused on all other Grounds.” Then he made provision for a partial stay of costs.
There is then a separate box marked “Reasons”, which in this case set out in some detail his reasons for his decisions. Paragraph 2 of the reasons is headed “ Partnership asset”, and deals specifically with the claim in relation to Crythan. Paragraph 3 reads as follows:
“Cefn Coed was bought in the names of Mr and Mrs Williams and Dorian; and there was no express declaration of beneficial ownership. In the light of Stack v Dowden it is arguable that the judge began from the wrong starting point. But if there was a beneficial joint tenancy at the outset it was severed by notice given on 4 March 2014. Permission to appeal on grounds 3 and 5 is granted, limited to the question whether Dorian is entitled to a beneficial interest in Cefn Coed.”
The Respondents, with I think some justification, thought that the precise ambit of the permission that Lewison LJ had thereby granted was not entirely clear. On 25 October they wrote to the court, headed “Urgent” asking, quite simply, in relation to paragraph 3 of the order:
“Could you please clarify whether permission has been granted to appeal the issue of whether or not Cefn Coed Farm is a partnership asset?”
The Response came by e-mail the next day:
“Dear Sirs
Thank you for your letter.
Lewison, Lord Justice has confirmed that Permission to Appeal on the question whether Cefn Coed was a partnership asset has not been granted.”
The Appellant sought to challenge that in a number of different ways, which it is not necessary in this brief judgment to go through, ultimately culminating in an application to the Supreme Court, which was refused by the Supreme Court.
After these various applications had failed, he asked for an extension of time (under the direction of the Court, because he needed one) to put in a replacement appeal skeleton. That replacement appeal skeleton sought to argue both Ground 3 and Ground 5. Indeed, its introduction reads as follows:
“This appeal raises an important point of principle as to the proper approach of a court to the evidential value of partnership accounts, and, in particular, where the evidential burden lies in the face of partnership accounts, which are on the face of it conclusive as to an issue in proceedings.”
It then elaborates under “Ground 3 – partnership property” from paragraphs 22 to 55 the questions of partnership property in relation to Cefn Coed; and for good measure paragraphs 56 to 65 sought to argue that if the Appellant was right on the impact of the partnership accounts in relation to Cefn Coed, the same should apply to Crythan, despite the fact that there was no doubt that Lewison LJ had refused permission for Ground 2 of the Grounds of Appeal which raised that question.
The application for an extension of time also came before Lewison LJ, who again decided it on paper. His order this time is dated 21 September 2023. I think since this is the order which we are asked to review, I should read most of it. In the box marked “Decision”, he simply says, “See below”. In the box marked “Reasons”, he said as follows:
“1. The reasons for the grant of limited permission to appeal made it clear that permission was limited to the question whether Dorian was entitled to a beneficial interest in Cefn Coed. That limitation meant that no permission was granted in relation to the question whether Cefn Coed was a partnership asset. I was asked to clarify whether permission had been granted on that question and confirmed that it had not been. The formal parts of the order must be read in the light of the reasons given for it. I also confirmed the limitation in my order of 25 November 2022 [he says 2021, but must mean 2022], when the Appellant asked for reconsideration of my grant of permission. Despite that, and despite the Appellant's many attempts to re-open my order, the proposed skeleton argument ignores that limitation.
2. To the extent that the formal parts of my order and para 3 of my reasons refer to ground 3, that may have created an ambiguity. If so, that was an accidental error which I correct under CPR 40.12.”
Then he gives reasons why he does that, and concludes that paragraph:
“… The order should therefore be read as if no permission...
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Lloyd Dorian Williams v Gerwyn Lloyd Williams
...was refused by Lewison LJ, and an application to re-open this decision was subsequently also refused: see Williams v Williams [2023] EWCA Civ 1465. 16 In 1987 Mr and Mrs Williams sold two fields at Crythan for £15,000 and used the money to reduce the AMC borrowing on Cefn Coed to £25,000. ......