Nugent v Nugent
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWHC 4095 (Ch) |
| Docket Number | Case No: 2BS30659 |
| Court | Chancery Division |
| Date | 20 December 2013 |
[2013] EWHC 4095 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Mr Justice Morgan
Case No: 2BS30659
Mr Michael Jefferis (instructed by Stephen Gisby & Co) for the Claimant
Mr Christopher McNall (instructed by Kirwans) for the Defendant
Hearing dates: 9 December 2013
Introduction
The issue considered in this judgment is whether the court has, following the Land Registration Act 2002 ("the 2002 Act"), an inherent power to order the cancellation of a unilateral notice registered against a title registered under the 2002 Act and, if so, in what circumstances, and how, such a power should be exercised.
The application which raised the above issue was an application by the Defendant, the registered proprietor of land at Court Farm, Llantilio Crossenny, Monmouthshire, under title number CYM533447, for an order of the court cancelling a unilateral notice which had been registered against that title by the Claimant, to protect the interest which he claims in these proceedings. The application was made so as to enable the Defendant to raise funds, whether by selling or charging the land or some part of it, in order to pay for her defence of these proceedings. The application was opposed by the Claimant on a number of grounds. One important matter that was argued related to the jurisdiction of the court to make such an order. There was also argument as to when it was appropriate to allow a defendant to have access to an asset for the purpose of raising funds to defend the claim against him or her, when ownership of that asset was claimed by the Claimant.
At the hearing, I gave permission for the Defendant to rely on further evidence on one particular matter and for the Claimant to answer that evidence. I then indicated that I would give my decision in writing following that exchange of evidence. I duly received the further evidence but, in addition, I was shown an exchange of correspondence following the hearing and in that correspondence the parties appeared to be moving towards agreement in principle as to how matters should be addressed, although there are still important matters of detail to be worked out. The parties have not asked me to refrain from, or defer, giving a judgment in this case. As the application raised an important issue as to the court's jurisdiction and as the parties have not yet agreed the necessary details as to the disposal of the application, I consider that I ought to give judgment on the questions of principle which have been raised. In view of the degree of consensus which is now emerging between the parties, I consider that it is not necessary, and it may not be helpful, to go into matters as to the detailed background to this application. I will explain matters to the extent necessary to show how the present issues arise. Further, it seems better to leave the parties to work out on a co-operative basis the detail of how the matter is to be taken forward.
Mr Mc Nall appeared on behalf of the Defendant/Applicant and Mr Jefferis appeared on behalf of the Claimant/Respondent.
The proceedings
Mrs Nugent was born on 5 May 1914 and is now 99 years old. She was married to George Nugent, who died in 1984 (the papers also refer to his death as being in 1986). Before that date, Mrs Nugent and her husband jointly owned Court Farm, the land to which I have referred. Since 1986, the farm has been owned by Mrs Nugent alone. The farm comprises a farmhouse, some outbuildings and about 74 acres of land.
Mrs Nugent has two children, Richard and Stephen. Richard has two children, one of whom is the Claimant, David Nugent. Stephen also has two children. In these proceedings, David Nugent claims against Mrs Nugent that, in equity, he is entitled to the farm or would be entitled to the farm on Mrs Nugent's death. His case is that he was promised the farm by Mrs Nugent and her late husband and that he acted to his detriment in reliance on those promises. Mrs Nugent has now made it clear that she does not intend to leave the farm to David on her death. David says that Mrs Nugent is acting unconscionably and that the court has power to intervene on his behalf, even in Mrs Nugent's lifetime. He seeks various heads of relief against Mrs Nugent. In particular, he claims a declaration that Mrs Nugent is not free to sell more of the farm than is reasonably needed to meet her needs and debts and that the balance of the farm and its proceeds held on her death should be left by will to David Nugent and if it is not so left, then it is to be considered as being held in equity for his benefit. He also seeks an appropriate order during Mrs Nugent's lifetime to satisfy the equity which he says has now arisen. David Nugent will no doubt seek to rely on the principles as to proprietary estoppel explained in Gillett v Holt [2001] Ch 210 and Thorner v Major [2009] 1 WLR 776.
The claim to an equity based on a proprietary estoppel is resisted by Mrs Nugent. In her Defence, she pleads that there were no promises of the kind alleged made by her late husband or by herself and that David is not entitled to any relief in relation to the farm.
The unilateral notice
On 18 June 2012, David Nugent's solicitors registered a unilateral notice against Mrs Nugent's registered title to the farm in order to protect the interest which he claims. The notice, as registered, states that it is in respect of "an order" of the court in these proceedings but that it is not accurate. The notice is registered to protect David Nugent's claim but the court has not made a relevant order in his favour. However, it was not suggested that anything turned on the way in which the unilateral notice has been expressed.
The application
In her Defence, Mrs Nugent drew attention to a statement in the Particulars of Claim that David Nugent accepted that Mrs Nugent was free to sell some part of the farm as was reasonably needed in order to meet her needs and debts. Mrs Nugent then pleaded that David Nugent should accordingly release the unilateral notice which prevented her dealing with the farm. David Nugent contends that the costs to be incurred by Mrs Nugent in defending his claim by denying the promises which were made do not come within her "needs and debts", as that phrase is used in his pleading. Accordingly, David Nugent was not prepared to release the notice and on 4 October 2013, Mrs Nugent made the application which is now before me.
By her application, Mrs Nugent sought an order that the Chief Registrar to the Land Registry be directed forthwith to cancel the unilateral notice. The order was sought under the inherent jurisdiction of the court. Shortly before the hearing of this application, Mrs Nugent's solicitors put forward a different formulation of the order which was to be sought. As reformulated, Mrs Nugent sought an order providing for the notice to remain on the register but in circumstances where David Nugent must give his consent to all endeavours by Mrs Nugent to raise monies against the title (whether by sale, charge, or otherwise) for the sole purpose of funding Mrs Nugent's defence to this claim but subject to a cap by reference to Mrs Nugent's solicitors' present estimate of the costs involved. As explained earlier, following the hearing of the application, the parties appear to be moving towards agreement on the way forward.
Litigation friend
At the hearing, it emerged that Mrs Nugent does not currently have capacity to conduct her defence of these proceedings. I indicated that I would be prepared to appoint her son, Stephen Nugent, as a litigation friend to enable the hearing of the application before me to be effective. I was invited to appoint Stephen Nugent for a period longer than the period needed to deal with the present application. I have concluded that I should only appoint him for the purposes of dealing with the present application. That appointment will continue for that purpose until all of the consequential matters in relation to this application are dealt with. The appointment is made under CPR rule 21.6. It will remain open to Stephen Nugent to seek to be Mrs Nugent's litigation friend on a different basis. He may seek to rely upon CPR rules 21.4 and 21.5 if he wishes. It will be open to David Nugent to make submissions against Stephen Nugent being appointed on that basis. My order, which is limited to the present application, does not carry with it any implications one way or the other as regards the appropriate response to any future application or the opposition to it.
Jurisdiction
Counsel for Mrs Nugent submitted that the High Court has jurisdiction to make an order cancelling the unilateral notice and that in all the circumstances that the court ought to make such an order, at least to the extent needed to allow Mrs Nugent to raise funds to defend this claim, whether that is to be by selling or charging the land, or some appropriate part of it. He submitted that before the coming into force of the 2002 Act, the court had repeatedly held that it had an inherent jurisdiction to vacate cautions registered under the Land Registration Act 1925 and that that jurisdiction was regularly exercised. He submitted that there was nothing in the 2002 Act which took away or curtailed that jurisdiction so that the court was now able to order the cancellation of a unilateral notice. He then submitted, on the facts, that the present case was an appropriate one for the jurisdiction to be exercised.
Counsel for David Nugent submitted that the High Court has no such inherent jurisdiction. He submitted that a unilateral notice is a creature of the 2002 Act which identifies the circumstances in which such a notice may be...
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