Midland Bank Trust Company Ltd v Green (No. 3)

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE FOX,SIR GEORGE BAKER
Judgment Date10 June 1981
Judgment citation (vLex)[1981] EWCA Civ J0610-3
Docket Number81/0341
CourtCourt of Appeal (Civil Division)
Date10 June 1981
Between:
Thomas Geoffrey Green (Since Deceased)
(Plaintiff)
and
(1) Walter Stanley Green (Since Deceased)
(2) Robert Derek Green
(3) Beryl Rosalie Kemp (The last name added as a Defendant by order to carry-on dated 27th January, 1973)
(Defendants)

(By original action and the above-mentioned Order to carry-on)

And Between:
Midland Bank Trust Co. Ltd.
and
Margaret Ann Green
and
(1) Robert Derek Green
(2) Beryl Rosalie Kemp
(Defendants)

(By order to carry-on dated 16th November, 1973)

[1981] EWCA Civ J0610-3

Before:

The Master of the Rolls

(Lord Denning)

Lord Justice Fox

Sir George Baker

81/0341

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

CIVIL DIVISION

On Appeal from an Order of Mr. Justice Oliver

Royal Courts of Justice

MR. J.L. MUNBY (instructed by Messrs. Lee Bolton & Lee) appeared on behalf of the Defendant/Appellant Beryl Kemp.

MR. JONATHAN PARKER. Q.C. and MR. MALCOLM WATERS (instructed by Messrs. Sidney Torrance & Co. for J. Levi & Co., Leeds) appeared on behalf of the Plaintiffs/Respondents.

THE MASTER OF THE ROLLS
1

This is another chapter in the long story of the Green family of Lincolnshire. I told the first part in [1980] Ch. 590. So many years have passed that several of the principal actors have died and are now represented by executors of their estates.

2

The story started over 20 years ago. In March, 1961 Walter Green agreed to grant his son Geoffrey an option to purchase Gravel Hill Farm. The option to remain effective for ten years. But the solicitors failed to register the option as an estate contract. So Walter Green was enabled to sell the farm and give a good title to a purchaser, even though the purchaser had full notice of the option. Walter took advantage of their failure to register the option. On 17th August, 1967 he defeated the option by conveying the farm to his wife Evelyne for £500 although it was worth £50,000. In 1968 Geoffrey the son who had been defeated in this way brought an action ("the 1968 action"). He brought it against Walter for breach of contract. Walter was afraid he would lose the action. So he got rid of most of his assets so as to defeat any Judgment which might be recovered against him. That action started in 1968. Because of the lapse and chances of time it has not even yet come up for decision.

3

In 1970 Geoffrey, the son, brought an action ("the 1970 action") against his father and mother, Walter and Evelyne's estate claiming that the option had not been defeated, that it had been validly exercised by him, and that he was entitled to specific performance of the agreement to sell him the farm. Alternatively Geoffrey claimed damages against Walter and Evelyne for conspiracy. It is the claim which we have to consider in this appeal. I will read out the way it is formulated in the claim (page 15):

4

"Further, or in the further alternative, the said Conveyance was executed pursuant to an agreement or arrangement made between the said Walter Stanley Green and the said Evelyne Green whereby they conspired together to defraud and injure the Plaintiff by completing a sale or what purported to be a sale of Gravel Hill Farm by the said Walter Stanley Green to the said Evelyne Green and to deprive the Plaintiff of the benefit of the said option." And then amongst the prayers are damages for conspiracy.

5

In 1972 Geoffrey, the son, sued the solicitors for negligence in failing to register the option. Five years later Mr. Justice Oliver held the solicitors liable ( [1979] 1 Ch. 384). The solicitors appealed. The case was settled for much less than the damages suffered by Geoffrey.

6

Meanwhile Walter died, and his daughter Mrs. Kemp was granted probate of his estate. As executrix she was in the course of time made a Defendant in both the 1968 and 1970 actions. Eventually, after appeals in the 1970 action, the House of Lords held that the option had been validly exercised and that the conveyance to Evelyne was a valid conveyance of the farm to her ( [1981] 2 W.L.R. 28).

7

This left outstanding Geoffrey's claim in the 1968 action for damages for breach of contract and his claim in the 1970 action for damages for conspiracy. In each case against the executrix Mrs. Kemp. Owing to the negligence of someone or other she failed to plead plene administravit in either action. But after many procedural wrangles she was allowed to plead it in the 1968 action for damages for breach of contract, but not in the 1970 action for damages for conspiracy. That is in [1972] 1 W.L.R. 460. As Walter had stripped himself of his assets, his estate is so small that Mrs. Kemp is not worried about the 1968 action. She is protected by the plea of plene administravit there. But she is worried about the 1970 action for damages for conspiracy because she has not been allowed to plead plene administravit there. If she is held liable, she will have to pay all the damages for loss of the option less anything recovered against the solicitors who failed to register. So as a last resort to protect herself she has applied to strike out the claim for conspiracy on the ground that there is no such tort as a conspiracy between husband and wife.

8

Meanwhile she has issued a writ against the lawyers who failed to plead plene administravit in the 1970 action. That action is being held up pending our decision in this present case about conspiracy, because if there is no claim available against her for conspiracy she has nothing to worry about and the 1970 action will fail. But if there is a claim against her for conspiracy she will then look to the lawyers who she says failed to plead plene administravit. So they are much interested in the outcome of these proceedings.

9

After that introduction we come to the one point of law in this case. If a husband and wife agree with one another to injure a third person and by their concerted action do injure him, are they liable in damages for the tort of conspiracy? Or are they immune from liability by reason of the doctrine that husband and wife are one and cannot conspire together?

10

I would like to thank Mr. Munby for his most able discourse. Hie has brought before us all the learning upon the subject from the Book of Genesis down to the present day. 1 trust he will forgive us if we do not discuss it in detail. That was done by Mr. Justice Oliver in the Court below [1972] 1 Ch. at pages 511/526). The point of principle raised by Mr. Munby is this. He says that the doctrine of unity between husband and wife is an established doctrine in Ehglish law. So well established that the doctrine and its ramifications are still part of our law today: and must still be applied by the Courts except insofar as it has been altered by statute. One of the ramifications of the doctrine (that husband and wife are one) is that they cannot be guilty as conspirators together. So they cannot be made liable in damages for a conspiracy.

11

The authorities cited by Mr. Munby show clearly enough that mediaeval lawyers held that husband and wife were one person in law: and that the husband was that one. It was a fiction then. It is a fiction now. It has been eroded by the Judges who have created exception after exception to it. It has been cut down by statute after statute until little of it remains. It has been so much eroded and cut down in law, it has so long ceased to be true in fact, that I would reject Mr. Munby's principle.

12

I would put it in this way. Nowadays, both in law and in fact, husband and wife are two persons, not one. They are partners—equal partners—in a joint enterprise, the enterprise of maintaining a home and bringing up children. Outside that joint enterprise they live their own lives and go their own ways—always, we hope, in consultation one with the other, in complete loyalty one with the other, each maintaining and deserving the trust and confidence of the other. They can and do own property jointly or severally or jointly and severally, with all the consequences that ownership entails. They can and do enter into contracts with others jointly or severally or jointly and severally, and can be made liable for breaches just as any other contractors can be. They can and do commit crimes jointly or severally and can be punished severally for them. They can and do commit wrongs jointly or severally and can be made liable jointly or severally just as any other wrong-doers. The severance in all respects is so complete that I would say that the doctrine of unity and its ramifications should be discarded altogether, except insofar as it is retained by judicial decision or by Act of Parliament.

13

I turn now to our particular case—conspiracy.

14

So far as criminal conspiracy is concerned, a husband and wife cannot be found guilty of conspiring with one another. That is now statutory in Section 2 (2) (a) of the Criminal Law Act, 1977. But they can be found guilty if the two of them jointly conspire with a third person.

15

Mr. Munby says that the tort of conspiracy should be treated in the same way as the crime of conspiracy. He says that husband and wife cannot be made liable in tort for conspiracy with one another. But they can, he admits, be made liable if the two of them jointly conspire with a third person. For instance, he agrees that if the...

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