Nihal Mohammed Kamal Brake v The Chedington Court Estate Ltd
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 25 February 2022 |
| Neutral Citation | [2022] EWHC 366 (Ch) |
| Docket Number | Case No: F00YE085 |
| Court | Chancery Division |
[2022] EWHC 366 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: F00YE085
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Mrs Nihal Brake and Mr Andrew Brake appeared on their own behalf and that of Mr Tom D'Arcy
Andrew Sutcliffe QC and William Day (instructed by Stewarts Law LLP) for The Chedington Court Estate Ltd
Hearing dates: 12–29 October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is my judgment on the trial of a claim, made by claim form issued on 3 April 2019, for (i) delivery up of possession of a property known as West Axnoller Cottage (but which I shall simply call “the cottage”), historically forming part of West Axnoller Farm, near Beaminster in Dorset, (ii) an injunction and various declarations as to the status of the parties in relation to the cottage, (iii) delivery up of certain chattels at the cottage, and (iii) and an inquiry as to damages. The claimants claim to have been unlawfully evicted from the cottage by the defendant on 18 January 2019. The defendant admits taking possession of the cottage on 18 January 2019, but resists the claim to delivery up of possession of the cottage or the chattels. It also denies the claims for damages.
I am giving judgment simultaneously in another action between (in effect) the same parties, called Axnoller Events Ltd v Brake (where the claimant is a wholly owned subsidiary of the defendant in this case). That case has been colloquially referred to as the “Possession Proceedings”, to distinguish it easily from this case, which is called the “Eviction Proceedings”. Rather than refer readers of this judgment to the other judgment for certain background and other information, I am going to set out certain material in effect twice, once in each judgment, so as to make each judgment self-contained. In any event, the two cases differ in certain details, and this approach means that each judgment can be tailored to the needs of the particular case.
This claim is only one part of wider litigation between the parties. Until recently, the claimants were represented by solicitors and leading and junior counsel. However, in March last year both counsel withdrew from the litigation generally, and in particular from representation in the present claim. The claimants' solicitors continued on the record until June 2021, when they also withdrew. The trial of this claim had originally been listed for May last year, but after an application to adjourn was made to me I vacated that listing and relisted it for last October: see [2021] EWHC 982 (Ch). Because it was envisaged that the claimants would represent themselves, the first claimant Mrs Brake conducting the advocacy on behalf of all, and she has a number of medical conditions, I agreed that this trial (like that in the other case) would be conducted in half days only.
BACKGROUND
I set the context for the present claim by providing some background, which refers to some of the other litigation between the parties. I have adapted this from similar statements in earlier judgments of mine. In September 2004, the first claimant (then Mrs D'Arcy, but whom I shall call by her current name, Mrs Brake) acquired West Axnoller Farm (“the Farm”), near Beaminster in Dorset, from local landowners, the Vickery family (who continued to have substantial landholdings locally). This property included a substantial dwelling-house known subsequently as Axnoller House. In 2006 Mrs Brake began to operate a holiday letting business at the Farm, subsequently joined in partnership in 2008 by her husband, the second claimant (“Mr Brake”). Just outside the southern boundary of the Farm, on the other side of the private lane leading to the Farm, lies another, smaller residential property known as West Axnoller Cottage (the “cottage”).
Although the cottage had historically formed part of the Farm, in July 2002 a Mr and Mrs White had purchased it from the Vickery family and were living there when Mrs Brake bought the Farm. In 2006 Mrs Brake bought and was registered (again under her former name of D'Arcy) as proprietor of two further small parcels of land from the Vickery family, one on either side of the cottage. Mrs Brake borrowed money from bankers Adam & Co in 2006, secured by a first legal charge on the Farm (but not on the two small parcels either side of the cottage). The financial crisis of 2008 made it impossible to obtain further bank finance to expand the business being carried on at the Farm. Mr and Mrs Brake (“the Brakes) therefore looked for an outside investor.
In February 2010 the Brakes entered into a partnership with a limited partnership called Patley Wood Farm LLP (“PWF”), whose principal was Mrs Lorraine Brehme (“Mrs Brehme”). The partnership (known as “Stay in Style”) was to carry on the business of providing luxurious weekend and other breaks, and hosting events such as weddings. The Brakes contributed the Farm as partnership property, although still subject to the charge to Adam & Co to secure existing borrowings. With funds contributed by Mrs Brehme, on 8 April 2010 the partnership acquired the cottage, the legal title to which was transferred to the Brakes and Mrs Brehme jointly, who were registered as proprietors. At first the cottage was used as accommodation for a housekeeper and then for a personal assistant (Simon Windus) and his family. After the Windus family left in 2012 it was used (inter alia) for the Brakes and Mrs Brake's son, the third claimant, to stay in when the main house was let.
Differences arose between the Brakes on the one hand and PWF on the other, as partners in Stay in Style. In accordance with the partnership agreement, these were referred to arbitration, which ended on 21 June 2013 with an award in favour of PWF, and the dissolution of the partnership. Following a failure to pay orders made against them for costs in the arbitration, the Brakes were adjudicated bankrupt on 12 May 2015. Mr Duncan Swift was appointed trustee in bankruptcy with another person, who later retired and was not replaced. The partnership itself subsequently went into administration (in 2016), and then into liquidation (in 2017). On Mrs Brake's bankruptcy, the two small parcels of land either side of the cottage vested in Mr Swift, as did the benefit of a claim by the Brakes to a proprietary estoppel interest in the cottage as against PWF. But the partnership's beneficial interest in the cottage did not vest in Mr Swift, and he took no steps in relation to it, leaving it to the administrators and then liquidators of the partnership to deal with.
Prior to this, in October 2014 Adam & Co, the bank which had lent money to Mrs Brake against the security of the Farm, had appointed receivers under the Law of Property Act 1925. After marketing the property, the LPA receivers sold it in July 2015 to a newly incorporated company, Sarafina Properties Limited (“Sarafina”), said to be a corporate vehicle for the Hon Saffron Foster (“Mrs Foster”), a daughter of Lord Vestey, as well as a friend of Mrs Brake. Sarafina did not purchase the wedding and events business of the partnership. It was not the receivers' to sell. But Sarafina honoured existing bookings, and continued in the same line of business, albeit that, as explained below, for the first six months, Mrs Brake was restrained by injunction from working in it.
In February 2017 Sarafina was sold to The Chedington Court Estate Ltd (“Chedington”, the defendant), and its name was changed to Axnoller Events Limited (“AEL”). Chedington is an investment vehicle for Dr Geoffrey Guy (“Dr Guy”). I refer to Dr Guy, Chedington and AEL collectively as “the Guy Parties”. Mr and Mrs Brake were employed to continue to run the wedding and rental accommodation business as before. Relations between the parties broke down, and on 8 November 2018 notice by letter was given to each of the Brakes of the termination of their employment. This also gave notice to them of the termination of any licence to stay in Axnoller House and required them to remove their possessions by 30 November 2018. The Brakes did not do so, but continued to stay in Axnoller House. These events led both to proceedings in the employment tribunal against Chedington and others by each of the Brakes (“the Employment Claims”), and to proceedings in the High Court by AEL against the Brakes and Mrs Brake's son Tom D'Arcy to recover possession of the Farm (“the Possession Claim”). In fact, Tom D'Arcy was later removed as a defendant.
Following this, in January 2019, Mr Swift as trustee in bankruptcy entered into a transaction with the liquidators of the partnership in relation to the cottage, to acquire the liquidators' rights in it. Chedington entered into back to back transactions with Mr Swift in order to acquire those rights. The Brakes allege that Chedington and Mr Swift acted collusively, implementing “unlawful arrangements to create the false appearance that Chedington had acquired title to the cottage”. Chedington subsequently took possession of the cottage, the Brakes say unlawfully. They therefore commenced eviction proceedings against Chedington (“the Eviction Claim”). This is my judgment on that claim. So the position on the ground currently is that the Brakes are in occupation of the house, but seek possession of the cottage, whereas the defendant is in occupation of the cottage, and its subsidiary seeks possession of the house.
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