Shirt v Shirt
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice McFarlane,Lord Justice Lewison |
| Judgment Date | 27 March 2012 |
| Neutral Citation | [2012] EWCA Civ 1029 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2011/1123 |
| Date | 27 March 2012 |
[2012] EWCA Civ 1029
Master of the Rolls
Lord Justice McFarlane
and
Lord Justice Lewison
Case No: A3/2011/1123
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
CHANCERY DIVISION
(HIS HONOUR JUDGE PURLE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher McNall (instructed by Nigel Davis Solicitors) appeared on behalf of the Appellant.
The Respondent appeared in person.
Introductory
This is an appeal brought by Alan Shirt, whom I shall call "Alan", against an order reflecting part of a judgment given by HHJ Purle QC, sitting as a Deputy High Court Judge in the Chancery Division of the Birmingham District Registry on 17 December 2010, the order having eventually been drawn up on 30 March 2011.
The aspects of his decision which are the subject of this appeal are (i) the Judge's rejection of Alan's contention that, pursuant to a proprietary estoppel or constructive trust, he was entitled to the freehold of the entirety of Syda Farm near Chesterfield, (ii) the judge's rejection of the contention that Alan had any claim arising from the loss of a tenancy of another farm some two miles away called Rufford Farm and (iii) the Judge's decision to make no order for costs in relation to the whole proceedings.
The freehold of Syda Farm has been in the Shirt family for decades. At all times material to these proceedings until his death on 21 August 2011, after the proceedings below were concluded, Syda Farm was owned by Stanley Shirt ("Stanley") who was the father of Alan, and two other sons and one daughter. Stanley also had the tenancy of Rufford Farm until 2007.
In 1974, a farming partnership was formed between Stanley, his wife (and Alan's mother) Marie, and Alan. The farm was recorded as an asset of the partnership, as was the tenancy of Rufford Farm. Marie died in 2004 and Alan and Stanley continued in partnership until about September 2006, when it appears that they sadly fell out, whereupon the judge found they carried on two separate businesses.
Stanley lived at all times in a house on Syda Farm; Alan lived in a house at Rufford Farm, but that tenancy came to an end in 2007, and he eventually left and started living in a caravan on Syda Farm in about November 2009. The tenancy of Rufford Farm was lost because Stanley failed to pay the rent.
These proceedings were started by Stanley on the basis of a claim for possession against Alan and his wife because their caravan was on the farm. That claim for possession was effectively withdrawn shortly before the hearing, as it became clear that, as one of the joint beneficial owners of Syda farm in equity, because it was partnership property, Alan had the right to be in occupation. However, the claim against him was effectively continued on the basis that his occupation interfered with Stanley's use of Syda Farm, and there were other allegations pursued by Stanley against Alan in relation to allegedly stolen animals and other wrongdoing.
Alan's estoppel case was pleaded on the basis that Stanley (i) had told Alan that Syda Farm would be "coming to him" in 1976 and (ii) had made similar statements in 1977, between 1974 and 1980, in 1981 and on three occasions in 1986. Perhaps most significantly, it was pleaded that in about 1986 when the partnership was encountering 'serious financial difficulties', Stanley told Alan that, "the farm is yours if you want to work for it," and went on to say that his two brothers and his sister are, "making their way in life."
It was also alleged in Alan's pleadings that, "in reliance and acting upon the representations made to him", he worked at Syda Farm and in the farming business, "undertaking a range of arduous tasks well in excess of those which could ordinarily have been expected of an employee or partner." It is also alleged that he did so, "for little money". Alan did not receive a regular wage and regularly had to ask Stanley for money.
Alan's claim as pleaded was for (i) a declaration that he was "legally and beneficially entitled to the farm", by which he meant Syda Farm, subject to any rights of Stanley to remain thereat, (ii) declaration that Stanley, "holds the legal estate in the farm on trust for Alan absolutely upon such terms as the court may expect", (iii) an order that Stanley, "shall forthwith execute all documents and so on to give effect to such declaration", and (iv) damages on the basis that Alan had lost succession right to Rufford Farm as a result of Stanley's failure to maintain the tenancy of Rufford Farm (any succession claim would have been brought under the provisions of part 4 of the Agricultural Holdings Act 1986, which applied to the tenancy).
The trial took place over eight days in September and October 2010 and HHJ Purle QC gave judgment orally on 17 December 2010, some two months after the completion of the hearing. The Judge rejected Alan's claims. He also rejected Stanley's claims and made no order for costs. He accepted that the farm was a partnership asset but considered that both Stanley and Alan, and indeed Marie, had treated it and believed it to be as owned not merely legally but also beneficially in law by Stanley.
The estoppel claim
So far as the contention that Alan had a claim based on estoppel or constructive trust, the Judge considered the evidence in a little detail and then said this in paragraph 13:
"I take into account Stanley's denials, Alan's apparently truthful testimony, the inherent probabilities and the fact that critical events are very distant in time. I am not persuaded on the balance of probabilities that the promises Alan now relies upon were in fact made in sufficiently clear terms so as to give rise to a proprietary estoppel or a constructive trust."
In so concluding, it seems to me that he took into account in addition to the general points made in that paragraph the following points, which he mentions in his judgment.
First, in so far as any statement had been made at any meeting between Alan and Stanley, where Stanley had said that Alan could expect to enjoy the farm, Stanley would have intended and Alan would have understood the reference to be to the farming business, not including the land. It is clear, as I have said and as the Judge said, that the freehold of Syda Farm was treated as a partnership asset in the accounts, but at the relevant time, up to 1986, the understanding was that it was not, and he concluded that the parties both would have understood the reference to the farm in any assurance or arguable assurance to be a reference to the business not including the farm.
Secondly, insofar as the various statements relied on by Alan were made at meetings with bankers and other people providing finance or interest, the Judge rejected that they had been made. He considered that, if they had been made, they would have led to a formalisation of the arrangement, because that would have been expected, required or recommended by the bank or other financial institution.
Thirdly, in 1997, Alan through solicitors had proposed an arrangement or rearrangement of the partnership to Stanley which was inconsistent, in the Judge's view, with the notion that Alan had been led to believe, and expected, that he would own the farm in accordance with his pleaded case, let alone that he would own the farm at once. If, the Judge reasoned, Alan had thought that he would own the farm, even if it was only after his father died, he would not have proposed an arrangement in 1997 which involved him owning only half of the farm with no contractual or other arrangement whereby he would own the whole.
Fourthly, the Judge thought it "inherently unlikely" that, "not only [Stanley] but also Marie Shirt were named on solemn undertakings" to Alan. Yet the terms of the will which Marie made were plainly inconsistent with the notion that she understood that Alan would inherit the farm or become the sole owner of the farm to the exclusion of the other children of Stanley and Marie.
Fifthly, the Judge thought it was unlikely that Stanley would have committed himself to an arrangement which would have involved cutting the other three children out of any interest in his estate, given that Syda Farm was really his only significant asset.
I add that the judge might also have said that Alan's claim, namely that effectively he owned the farm at the time of his pleaded case and had the right to have it transferred to him, was not really consistent with his case that he anticipated having it left to him, or conveyed to him, on his father's death.
At any rate on the face of it, it seems to me that the conclusion was one which was well open to the Judge and the reasons that he gave were plainly reasons which were a proper basis for his decision. It is particularly relevant that the Judge emphasised that the last of the statements was made as long ago as 1986, nearly a quarter of a century before the hearing, and in those circumstances, it was entirely reasonable for the judge to emphasise as he did the time which had passed since the alleged promise was made.
Against this, Mr McNall who appears on behalf of Alan, relies on a number of points. First, he seeks to put in new evidence in the form of wills that were made by Stanley in 2004 and two other wills in 2005, which leave the farm to Alan. He says that these wills are inconsistent with Stanley's case.
Accepting, as I am prepared to do for present purposes, that it is open to Alan to put in these wills as new evidence—although it is fair to say that there is no reason to think...
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