Sargeant v Reece
| Jurisdiction | England & Wales |
| Judgment Date | 04 October 2007 |
| Neutral Citation | [2007] EWHC 2663 (Ch) |
| Court | Chancery Division |
| Date | 04 October 2007 |
| Docket Number | HC 04C03502 |
[2007] EWHC 2663 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
HC 04C03502
Miss Penelope Reed (instructed by Arnold Thomson of Towcester, Northants) for the Claimants
Mr Christopher Tidmarsh QC and Miss Karen Walden-Smith (instructed by Hewitsons of Northampton) for the Defendant
HEARING DATES: 10 th, 11 th, 12 th and 13 th JULY 2007
APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
EDWARD BARTLEY JONES QC
APPROVED JUDGMENT
INTRODUCTION :
The issue before the court is whether an agreement in writing dated 21 st September 1995 (“the 1995 Agreement”) entered into between Joseph Sargeant (“Joseph”) and Hilda Joyce Reece (“Hilda”) should be rectified. The rectification claim relates to 45.535 acres of agricultural land situated in Milton, Northamptonshire which is now known to the parties as “the Crem Land”. It was not always so known by this name and that fact forms one of the many reasons why problems have arisen.
In essence, Joseph (or more correctly now his estate) says that by virtue of the 1995 Agreement he acquired the whole Hilda's beneficial interest in the Crem Land. It is common ground that this was, indeed, the legal effect of clause 6 of the 1995 Agreement. But Hilda says that the 1995 Agreement did not reflect the true “common intention” of herself and Joseph and that, accordingly, the 1995 Agreement should be rectified so as to ensure that she has at all times retained, and now retains, her interest in the Crem Land, as tenant in common in equity with Joseph (and now his estate) in equal shares.
The bulk of the Crem Land undoubtedly has development potential. Sometime in the future it is likely to be sold for very substantial amounts of money.
Joseph and Hilda were brother and sister. Sadly, Joseph died during the course of this action (on 10 th May 2005 at the age of 82). A grant of probate was made to his executors on 30 th March 2006. Those executors are his widow (Audrey Mary Sargeant), his daughter (Jane Louise Skinner (“Mrs Skinner”)) and his solicitor, Mr Michael Arthur Thomson. They have been joined as parties to this action, in Joseph's place. However, and as nothing turns on what the executors have, subsequently, done, for ease of exposition I shall use the word “Joseph” to refer to both Joseph and his estate.
Joseph was a farmer throughout his life. Whilst Hilda has never engaged in active farming nevertheless she was closely associated therewith. It is helpful to point out at this stage (because it makes it easier to understand events which might in a purely urban commercial context seem highly surprising) that Joseph and Hilda showed many traits which are often said to be found in farming communities. Both appear to have been secretive about their affairs, for no good purpose whatsoever. Thus, as I shall explain below, part of the problems arose because certain professionals acting for Joseph and Hilda at the time of the 1995 Agreement were unaware of the negotiations which Joseph and Hilda were conducting (through other solicitors) to grant an option to developers over the Crem Land. Both were self-willed, indeed obstinate. Hilda's son, Mr Charles Reece, gave evidence before me. I found him to be a most impressive witness and he describes Joseph as a man who always had an “air of infallibility” about him (deriving Mr Reece said, in his belief, from the fact that Joseph had survived the war having been a Lancaster bomber pilot). Conversely, Mr Reece described his mother, Hilda, as being strong willed, taking his advice only when she wanted to and not necessarily following it. As will be seen below, after the 1995 Agreement issues arose as between Joseph and Hilda (particularly, but not exclusively, over the Crem Land) which would have fractured any ordinary commercial relationship. And yet whilst the professionals were writing letters to one and other, getting into an increasingly complex series of discussions and negotiations, Joseph, according to Mr Reece's evidence, would visit Hilda almost daily for a cup of tea in the afternoon after he had finished farming. There are clear indications, here, that the professionals were conducting Joseph and Hilda's affairs in a separate, and parallel, universe from the one in which Joseph and Hilda were conducting their own relationships. These factors need to be taken into account when judging, subsequently, the true effect of what occurred (particularly after the 1995 Agreement).
The initial omens for a rectification claim are not propitious. This action was commenced by Joseph on the 8 th November 2004. And, yet, the rectification claim was not mounted until the defence was amended after the death of Joseph. Thus, the rectification claim was not made until some 11 years after the 1995 Agreement, and in circumstances where Joseph has not had the opportunity to provide evidence in response thereto. Further, Hilda is now, unfortunately, old and infirm. Whilst she has provided a witness statement, it is self evident that this does not reflect the “ipsissima verba” of her recollection but, rather, has been prepared for her by her lawyers. Further, Hilda was unable to attend for cross-examination. I found the oral evidence of one of the witnesses called on Hilda's behalf in support of the rectification claim (the accountant Mr Smith) to be utterly valueless (either for or against rectification). I found it extremely difficult to assess the true meaning, and effect, of the evidence given by another major witness called on Hilda's behalf (Mr Arnold – the solicitor). Nevertheless, despite these difficulties, Mr Tidmarsh Q.C. on behalf of Hilda advances a cogent case as to why the 1995 Agreement should be rectified.
That something went badly wrong with the 1995 Agreement so far as it affected the Crem Land is undoubted. But, of course, that of itself is not sufficient for the equitable remedy of rectification to be granted. What is necessary is that there should have been in existence, at the time when the 1995 Agreement was entered into, a “common intention” as between Hilda and Joseph in the form now claimed by Hilda. Further, the right to rectification should not have been lost, subsequently, through, for example, laches, waiver or acquiescence.
THE FAMILY/THE LAND :
Joseph and Hilda were the children of Henry Charles Sargeant (“the Father”). There was a third child, their brother Charles Henry Sargeant (“Charles”). Charles was tragically killed in the Paris air disaster on 3 rd March 1974.
It is important in this case to identify with clarity the family's landholdings, because the professionals, in their correspondence, are sometimes unclear in describing precisely what land they are talking about. The Father owned three freehold farms:—
(1) Grafton Lodge Farm, Grafton Regis. This comprised of 514 odd acres and included a dwellinghouse (Grafton Lodge) in part of which Hilda lived at the time of the 1995 Agreement. This farm (“Grafton Lodge Farm”) lay some 8 miles south of Stockwell Farm and Maple Farm;
(2) Stockwell Farm (41 odd acres) and Maple Farm (137 odd acres). Both these farms were in Milton Malsor, a village on the outskirts of Northampton. Just to the north and north- east of this village runs the M1 motorway (as it passes to the south of Northampton). Part of Maple Farm was situated on the Northampton side of the motorway. The town of Northampton was, undoubtedly, encroaching southwards towards the motorway. A part of Maple Farm lying to the north of the motorway undoubtedly had in-fill development potential. I shall refer to the fields originally owned by the Father as part of Maple Farm and lying on the Northampton side of the motorway as “the red land”.
The Father conducted a partnership business, of farmers and butchers, with Joseph and Charles under the name of “H. C. Sargeant & Sons”. It would seem that the Father had granted an agricultural tenancy or tenancies of Grafton Lodge Farm, Stockwell Farm and Maple Farm (including the red land) to that partnership.
The Crem Land was slightly different. It was purchased, freehold, by the Father, Joseph and Charles by Conveyance dated the 14 th August 1959. An express trust in that Conveyance provided that the Crem Land was to be held by each of them on trust for sale upon the trusts applicable thereto as part of their partnership. The Crem Land was purchased from the trustee in bankruptcy of a Mr Penn and, hence, was on occasions referred to as “Penn's Land”. Other appellations, from time to time, include “Land at Milton” (in the accounts), “45 acres at Collingtree”, and “fields off Rowntree Road”. The appellation “the Crem Land” appears to have arisen only after the date of the 1995 Agreement. This less than euphonious name is derived from the proximity of the land to the municipal crematorium.
The Crem Land is roughly “T” shaped. The head of the “T” adjoins, broadly, the north western boundary of the red land. The leg of the “T” extends towards the motorway, and the crematorium, crossing the Northampton to London railway line as it does so. Field 173 (5.4 acres or thereabouts) lies to the west of the railway line and may not have ideal development potential. But the remainder of the Crem Land when taken with the red land forms (at the risk of inaccuracy through the generality of the description) part of a square area of land bounded to the west by the railway line, to the south by the motorway, to the east by other agricultural land and, with a few fields or a golf course intervening, to the north the ever...
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