Suzanne Elaine Procter v Philip John Procter
| Jurisdiction | England & Wales |
| Judge | Davis-White |
| Judgment Date | 25 May 2022 |
| Neutral Citation | [2022] EWHC 1202 (Ch) |
| Docket Number | Case No: PT-2021-LDS-000127 |
| Court | Chancery Division |
[2022] EWHC 1202 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN LEEDS
PROPERTY TRUST & PROBATE LIST (ChD)
Leeds Combined Court Centre
1 Oxford Row, Leeds LS1 3BY
HH JUDGE Davis-White QC
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: PT-2021-LDS-000127
Case No: PT-2021-LDS-000108
Mr Bruce Walker (instructed by Grays Solicitors LLP) for the Claimant in both claims
Mr Edward Peters (instructed by Ebery Williams Limited) for the 1st and 2nd Defendants in both claims
Ms Heather Murphy (instructed by Womble Bond Dickinson (UK) LLP) for the 4th Defendant in Claim no. PT-2021-LDS-000127
The 3rd and 5th Defendants in Claim no. PT-2021-LDS-000127 were not represented and did not appear
Hearing dates: 4–8, 11 April 2022
Further written submissions were received in the period up to and including 10 May 2022
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.
HH JUDGE Davis-White QC (SITTING AS A JUDGE OF THE HIGH COURT)
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 25 May 2022
HH Judge Davis-White QC:
Structure of Judgment
1. This judgment is structured as follows:
| Paragraph number | |
| Structure of Judgment | 1 |
| Introduction and Representation | 2 |
| Relevant procedural directions following the First Judgment | 18 |
| The main areas of dispute to be determined by this judgment | 27 |
| Main Issue 1: Title to the land which was originally held by Grandfather and the position of the trustees of his will trusts | 35 |
| The 1994 Tenancy | 57 |
| (a) The nature of the trust | 59 |
| (b) Restrictions on landlord's right to terminate | 63 |
| (c) Improvements, tenant's fixtures etc. | 66 |
| Main Issue 2: The WOFL Transactions | 75 |
| (a) Introduction | 75 |
| (b) The relevant parties before the court | 88 |
| (c) The issues | 96 |
| (d) The history and contemporaneous documents | 100 |
| (i) The accounts and Philip's explanations | 101 |
| (ii) Other contemporaneous documents | 116 |
| (e) The construction of contractual/property documents | 145 |
| (f) The taxation background in this case | 150 |
| (g) The 1996 Deed | 154 |
| (h) The 2003 WOFL Deeds | 162 |
| (i) The WOFL Transactions and the position after 2003 | 207 |
| Main Issue 3: The retirement of Suzie from the Partnership in 2010 | 210 |
| The Partnership Deed | 214 |
| The Relevant Facts | 217 |
| The Issues: (a) a share? | 223 |
| (b) Valuation Issues: assignability | 247 |
| (c) valuation issues: fixtures and improvements | 254 |
| (d) interest | 271 |
| Main Issue 4: The Notice to Quit | 272 |
| (1) Validity of notice to quit served by one only of a number of joint tenants of a tenancy | 274 |
| (2) fiduciary duties? | 281 |
| (3) A breach of trust? | 315 |
| (4) Relief for breach of trust | 318 |
| (5) Damages and estoppel | 328 |
| Summary of conclusions by reference to the list of issues | 340 |
Introduction and representation
2. This judgment follows my earlier judgment ( [2019] EWHC 1199 (Ch)) (the “First Judgment”) in the first set of proceedings before me (PT-2021-LDS-00127) (the “Main Proceedings”). This judgment should be read with the First Judgment. I use the same definitions as in that judgment. I have, however, cited extracts from the First Judgment in this judgment for ease of understanding.
3. The claim number in the Main Proceedings has been changed since the First Judgment. This reflects the fact that those proceedings have been transferred into the courts' electronic filing system, CE File.
4. In the Main Proceedings, Suzanne Procter (“Suzie”) is the claimant. She continues to be represented by Mr Walker of Counsel, instructed by Grays Solicitors LLP.
5. The first and second defendants, Philip Procter (“Philip”) and James Procter (“Jamie”) are Suzie's brothers (together the “Brothers”). They continue to be represented by Mr Edward Peters of Counsel, instructed by Ebery Williams Ltd.
6. I refer to Suzie, Philip and Jamie collectively as the “Siblings”. As in the First Judgment, I refer to the Siblings by the names that they use for each other, and as were used before me, as a matter of convenience and intend no disrespect.
7. Both sets of proceedings before me involve a bitter family dispute between the three Siblings. In the First Judgment, I described that dispute as a war (possibly of attrition). The dispute at bottom is over what I have described as the Procter Family Inheritance. That Family Inheritance comprises approximately 600 acres. Of this some 128 acres or so comprises a golf course constructed between about 1990 and 1995.1 The remainder is farmed as arable land by the family partnership, the present partners of which are the Brothers. Suzie “retired” from the Partnership in 2010. I use quotation marks for “retirement” as the precise legal effect of the same is hotly disputed. The land as a whole (leaving aside any agricultural tenancy) was valued by Suzie some time ago now as having a value of some £7.5 million or so, though this is disputed.
8. The land in question is held under various family and will trusts. The position is further complicated by title to certain parcels of freehold land having been left vested in the names of the trustees of Grandfather's will trusts (the sole remaining trustee by survivorship being Philip) with the beneficial interests, in part, being vested in family trusts.
9. Suzie's bottom line position is that she should have a one-third share of the overall inheritance. This may depend upon the exercise of relevant powers of appointment/advancement by the trustee under the relevant family trusts. However, she says, among other things, that as matters stand, it is not possible for her to receive a one-third share because her Brothers have certain alleged legal rights over or in relation to the land which has the effect of depressing the overall value of the land at the level of the freehold title, whilst favouring her Brothers. This affects both her own beneficial interests in certain small portions of the farmland but also the value of the land in which the family trusts have a beneficial interest. The issues in this case, at least in part, represent her attempt to undo or deny apparent interests of the Brothers in or over the land which she says have this effect.
10. The third defendant in the Main Proceedings, George Knowles is a solicitor formerly used as a family solicitor by members of the Procter family. He was originally joined as defendant because he was one of the trustees of various Procter family trusts. The current position is that he has been replaced as trustee with regard to such trusts, they being referred to in the first Judgment as the 1975 Trust, the First 1997 Trust and the Second 1997 Trust. He was dispensed by the court from playing an active role in the proceedings. A description of those trusts is set out at paragraphs [33] to [60] of the
First Judgment. Mr Knowles was not represented and did not appear before me on this occasion.11. The fourth defendant, Womble Bond Dickinson (Trust Corporation) Limited (formerly Bond Dickinson (Trust Corporation) Limited) (the “Trust Corporation”) is, as its name suggests, a company offering corporate trustee services. It is now the sole trustee of the relevant Procter family trusts. It was represented before me by Ms Heather Murphy of Counsel, instructed by Womble Bond Dickinson (UK) LLP. As I shall explain, Ms Murphy attended on the second day of the trial (the first day being a reading day). She addressed me on a particular issue regarding the holder of title to the freehold of certain Procter Family land. Then, on the basis that the Siblings were, between them, raising any case that the Trust Corporation might wish to raise as trustee of the relevant Procter Settlements in relation to the matters before me and that an application by the Trustee Corporation for a vesting order regarding freehold title was adjourned until after the handing down of my judgment, she and her solicitors withdrew from the hearing.
12. The fifth defendant, Wide Open Finance Limited (“WOFL”), is a company owned by members of the Procter family. It owns various portions of land that form part of the family farm that I defined in my first judgment as the “Farm Inheritance”. It was originally not a party to the Main Proceedings but was joined following the First Judgment. This is because WOFL was a Party to certain transactions in 2003 relating to part of the Farm Inheritance that has been turned into a golf course. The effect of those transactions was in issue in the Main Proceedings but in the First Judgment I declined to determine their effect. This was because WOFL itself was not a party to the proceedings, I had only heard limited...
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