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

Weekly Law Reports The Law Reports Cited authorities 38 Cited in 54 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Date1979
Year1979
CourtChancery Division
[CHANCERY DIVISION] MIDLAND BANK TRUST CO. LTD. AND ANOTHER v. GREEN AND ANOTHER (No. 3) [1970 G. No. 334]

1978 Dec. 6, 7; 21

Oliver J.

Conspiracy - Husband and wife - Civil liability - Conspiracy between husband and wife to defeat option granted to their son - Whether spouses one person in law - Whether liable for damages for conspiracy - Practice - Judgment by default - Application to set aside - Judgment entered against party refusing to comply with order for discovery - Application to set judgment aside on basis that court acting without jurisdiction - Exercise of court's discretion on application by party in contempt

W, having granted his son an option to purchase a farm conveyed that farm to his wife, E, for £500 in breach of contract and with the intent thereby to defeat the option. The son brought an action against W and against the estate of who had since died, claiming that the option was binding on E's estate, an order for specific performance, damages in lieu of or in addition to specific performance, and damages for conspiracy. After the death of W and the son, the action was continued by the son's executors against E's remaining executor and against W's executrix, the defandant. W's executrix failed to comply with an order for discovery, her defence was struck out and the action proceeded thereafter against her undefended. At the trial, Oliver J. dismissed all claims against the wife's estate but ordered an inquiry as to damages against W's estate.

On the defendant's motion to set aside the judgment on the grounds that the plaintiff's claim to damages for conspiracy disclosed no reasonable cause of action and that she had a good defence in that W and E were at all material times lawfully married to each other and therefore were incapable in law of conspiring together: —

Held, (1) that, although the court would not usually consider an application to set aside a judgment by a person in contempt of court, the substance of the application went to the the court's jurisdiction and, since finality had not yet been reached in the proceedings and there was no question of re-opening disputed questions of fact, the court would exercise its discretion and consider the motion on its merits (post, pp. 602B–H, 606C–D).

Gordon v. Gordon [1904] P. 163, C.A. applied.

In re Barraclough, decd. [1967] P. 1 and Hadkinson v. Hadkinson [1952] P. 285, C.A. distinguished.

(2) Dismissing the motion, that the common law rule that a husband and wife conspiring together could not be guilty of the crime of conspiracy was based on public policy; that, since the rule did not extend to criminal offences committed as a result of conspiracy, there was no basis for importing into the law of tort the primitive, inaccurate and anachronistic maxim that spouses were one person when civil liability could only arise if, pursuant to the conspiracy, the spouses had executed their design and their acts had caused damage to the plaintiff; and that, accordingly, public policy did not require that immunity from civil liability should be given to spouses in circumstances where the unmarried would be liable (post, pp. 616G–617A, 620D–E, 621A–C, 622F–623A).

Anon. (1345) Y.B. (R.S., ed. Pike) 19 Edw III Mich. 24; Phillips v. Barnet (1876) 1 Q.B.D. 436; Director of Public Prosecutions v. Blady [1912] 2 K.B. 89; Gottliffe v. Edelston [1930] 2 K.B. 378, Broom v. Morgan [1953] 1 Q.B. 597, C.A. and Mawji v. The Queen [1957] A.C. 126, P.C. considered.

The following cases are referred to in the judgment:

Allen v. Flood [1898] A.C. 1, H.L.(E.).

Anon. (1345) Y.B. (R.S., ed. Pike) 19 Edw. III Mich. 24.

Anon. (1364) Y.B. (Fitzherbert) 38 Edw. III Hil. 3a.

Anon. (1366) Y.B. (Fitzherbert) 40 Edw. III Pasch. 10.

Anon. (1367) Y.B. (Fitzherbert) 41 Edw. III Mich. 30.

Auten v. Rayner (No. 3), The Times, March 15, 1960.

Barker v. Dixie (1736) Cas.temp.Hard. 264.

Barraclough, decd., In re [1967] P. 1; [1965] 3 W.L.R. 1023; [1965] 2 All E.R 311

Bracken v. Gilpin [1921] W.N. 274, C.A.

Broom v. Morgan [1953] 1 Q.B. 597; [1953] 2 W.L.R. 737; [1953] 1 All E.R. 849, C.A.

Burgoine v. Taylor (1878) 9 Ch.D. 1, C.A.

Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435; [1942] 1 All E.R. 142, H.L.(Sc.).

Director of Public Prosecutions v. Blady [1912] 2 K.B. 89.

Edwards v. Porter [1925] A.C. 1, H.L.(E.).

Firebrass v. Pennant (1764) 2 Wils.(K.B.) 254.

Gordon v. Gordon [1904] P. 163, C.A.

Gottliffe v. Edelston [1930] 2 K.B. 378.

Greenhalgh v. Mallard [1947] 2 All E.R. 255, C.A.

Hadkinson v. Hadkinson [1952] P. 285; [1952] 2 All E.R. 567, C.A.

Hoskyn v. Metropolitan Police Commissioner [1978] 2 W.L.R. 695; [1978] 2 All E.R. 136, H.L.(E.).

Jones v. Monson (1909) 119 N.W. 179.

Manby v. Scott (1663) 1 Mod. 124.

Marrinan v. Vibart [1963] 1 Q.B. 234; [1962] 2 W.L.R. 1224; [1962] 1 All E.R. 869.

Mawji v. The Queen [1957] A.C. 126; [1957] 2 W.L.R. 277; [1957] 1 All E.R. 385, P.C.

Midland Bank Trust Co. Ltd. v. Green [1978] 3 W.L.R. 149; [1978] 3 All E.R. 555.

Midland Bank Trust Co. Ltd. v. Green (No. 2) [1979] 1 W.L.R. 460.

Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1978] 3 W.L.R. 167; [1978] 3 All E.R. 571.

Mogul Steamship Co. Ltd. v. McGregor, Gow & Co. (1889) 23 Q.B.D. 598, C.A.

Mulcahy v. The Queen (1868) L.R. 3 H.L. 306, H.L.(I.).

Pearce v. Merriman [1904] 1 K.B. 80.

People v. Martin (1954) 122 N.E. 2d 245.

Phillips v. Barnet (1876) 1 Q.B.D. 436.

Poulterers' Case, The (1611) 9 Co.Rep. 55b.

Price v. Crofts (1657) Raym. 180.

Quinn v. Leathem [1901] A.C. 495, H.L.(I.)

Reg. v. Jackson [1891] 1 Q.B. 671, C.A.

Reg. v. Kowbel [1953] 3 D.L.R. 809; [1954] 4 D.L.R. 337.

Rex v. McKechie [1926] N.Z.L.R. 1.

Rex v. Robinson and Taylor (1746) 1 Leach 37.

Savile v. Roberts (1698) 1 Raym. 374.

Schafer v. Blyth [1920] 3 K.B. 140.

Shenton v. Tyler [1939] Ch. 620; [1939] 1 All E.R. 827, C.A.

Sorrell v. Clarke (1965) 109 Sol.J. 354, C.A.

Sorrell v. Smith [1925] A.C. 700, H.L.(E.).

Subley v. Mott (1747) 1 Wils.(K.B.) 210.

Sweeney v. Coote [1907] A.C. 221, H.L.(I.).

Tooth & Co. Ltd. v. Tillyer (1956) 95 C.L.R. 605.

United States v. Dege (1960) 364 U.S. 51.

Wenman v. Ash (1853) 13 C.B. 836.

Wennhak v. Morgan (1888) 20 Q.B.D. 635.

White v. Proctor [1937] Ont. 647.

Worthy v. Birk (1922) 224 Ill.App. 574.

The following additional cases were cited in argument:

Anon. (1444) Y.B. (Fitzherbert) 22 Hen. VI Hil. 38a, pl. 6.

Anon. v. Lord Gort (1823) 1 Coop.temp.Cott. 211n; 1 Hog. 77.

Barker v. Dawson (1836) 1 Coop.temp.Cott. 207n.

Brown v. Attorney-General for New Zealand [1898] A.C. 234, P.C.

Chuck v. Cremer (1846) 1 Coop.temp.Cott. 205.

Dalton v. People (1920) 189 Pac. 37.

Dawson v. United States (1926) 10 Fed. 2d 106.

Estep, Ex Parte (1955) 129 Fed.Supp. 557.

Gros v. United States (1943) 138 Fed. 2d 261.

Johnson v. United States (1946) 157 Fed. 2d 209.

King v. Bryant (1838) 1 Coop.temp.Cott. 212n; 3 Myl. & Cr. 191.

Marks v. State (1942) 164 S.W. 2d 690.

Merrill v. Marshall (1904) 113 Ill.App. 447.

Morrison v. Morrison (1845) 1 Coop.temp.Cott. 212n; 4 Hare 590.

Parry v. Perryman (1838) 1 Coop.temp.Cott. 207n.

Pegram v. United States (1966) 361 Fed. 2d 820.

People v. MacMullen (1933) 24 Pac. 2d 794.

People v. Miller (1889) 22 Pac. 934.

People. v. Pierce (1964) 395 Pac. 2d. 893.

Ralston v. Ralston [1930] 2 K.B. 238.

Reg. v. Whitehouse (1852) 6 Cox C.C. 38.

Rex v. Cope (1719) 1 Str. 144.

Rex v. Peel, “The Times,” March 8, 1922.

Smith v. State (1905) 89 S.W. 817.

State v. Clark (1891) 33 Atl. 310.

State v. Struck (1957) 129 Atl. 2d 910.

Thompson v. United States (1955) 227 Fed. 2d 671.

United States v. Shaddix (1942) 43 Fed.Supp. 330.

Valle v. O'Reilly (1824) 1 Coop.temp.Cott. 21 In., 1 Hog. 199.

Vint v. Hudspith (1885) 29 Ch.D. 322, C.A.

Wilson v. Bates (1838) 1 Coop.temp.Cott. 212n; 3 Myl. & Cr. 197.

Wright v. United States (1957) 243 Fed. 2d 569.

MOTION

On March 24, 1961, the father, Walter Stanley Green, granted to his son, Thomas Geoffrey Green, an option to purchase a 300-acre farm, known as Gravel Hill Farm, at Thornton-le-Moor in Lincolnshire, at a price of £75 per acre. The option was to be exercisable over a period of 10 years. However, the solicitor who was instructed to draw up the agreement, omitted to register it as a land charge. In August 1967, the father, having discovered the omission and having determined to frustrate the option, conveyed his farm to his wife, Evelyne Green, for £500 in breach of the agreement and with the intention of defeating the option.

On January 27, 1970, the son issued a writ against his father and against the estate of his mother, Evelyne Green, who had died on March 28, 1968. The writ claimed against both defendants a declaration that the option was binding on the mother's estate, and sought an order for specific performance, damages in lieu of or in addition to specific performance, and damages for conspiracy, and as against the father, damages for conspiracy.

On February 8, 1972, the father died, and the applicant, his personal representative, Beryl Rosalie Kemp, was added as a defendant, by an order to carry on dated January 19, 1973. On March 11, 1973, the son died, and his executors, Midland Bank Trust Co. Ltd. and Margaret Ann Green, his widow, were substituted as plaintiffs, by an order to carry on dated November 16, 1973. On October 7, 1975, the applicant's defence was struck out for failure to comply with an order for discovery, so that thereafter the action continued against her as undefended. At the trial of the action Oliver J. gave judgment on October 21, 1977, dismissing all claims against the mother's estate, but ordering an inquiry as to damages against the estate of the father. No defence of plene administravit or plene administravit praeter had been entered on behalf of the applicant, and accordingly she became liable personally for any excess of damages and costs, over and above such assets as had come to her hands as executrix. The extent of such assets was about £9,000, and the probable figure for damages...

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1 books & journal articles
  • Conspiracy: Marital Exemption and Polygamy
    • United Kingdom
    • Journal of Criminal Law, The No. 80-4, August 2016
    • 1 August 2016
    ...are spouses is of no relevance in the tort of conspiracy. In Midland Bank Trust Co. Ltd andanother vGreen and another (No.3) [1979] Ch. 496 Oliver J made reference to this point explicitly, andthat the protection is known as the fiction of unity of marriage.On this Blackstone (Commentaries,......

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