Thorner v Curtis and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Rimer,Lord Justice Ward |
| Judgment Date | 02 July 2008 |
| Neutral Citation | [2008] EWCA Civ 732 |
| Docket Number | Case No: A3 2007/2767 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 July 2008 |
[2008] EWCA Civ 732
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JOHN RANDALL QC SITTING AS A DEPUTY HIGH COURT JUDGE
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Lloyd and
Lord Justice Rimer
Case No: A3 2007/2767
Miss Penelope Reed (instructed by Gould & Swayne) for the Appellants
John McDonnell QC and Michael Jefferis
(instructed by Stephen Gisby & Co) for the Respondent
Hearing dates: 21 May 2008
Introduction
These proceedings would not have been necessary but for the decision of the late Mr Jesse Peter Thorner (always known as Peter) to revoke the will which he had made in 1997, and his failure to make another will. Under that will David Thorner, the Claimant, whom I will call David, would have inherited the residue of Peter's estate, subject to some legacies, and thereby would have acquired Steart Farm, Cheddar, which Peter had farmed with a great deal of unpaid help from David over the best part of 30 years. Peter's revocation of his will is not fully explained, but it seems to have been motivated by his desire to exclude from benefit one of the legatees. As it is, Peter died intestate, and his next-of-kin were his siblings, and their issue by substitution, of whom the Defendants and Appellants are three (two sisters and a niece), being his personal representatives under a grant of letters of administration.
David claims that, Peter having died intestate, his estate is bound by conscience, as Peter was during his life, to give him Steart Farm, and he asserts a claim to that by way of proprietary estoppel. The claim came to trial before Mr John Randall Q.C. sitting as a judge of the Chancery Division in Bristol, who held that he was so entitled: [2007] EWHC 2422 (Ch). The Defendants challenge that conclusion by this appeal.
The judge was satisfied that Peter intended David to have Steart Farm, notwithstanding the revocation of his will, but intention, though necessary, is not sufficient by itself to create a will, and David can only succeed if he can prove a proprietary estoppel, which is independent of Peter's ultimate intentions.
The facts
David's father was Jimmy Thorner, who was a first cousin of Peter. They were both farmers in Somerset. Jimmy had four children, all sons, of whom David was the second, whereas Peter had no children. Peter, who was born in 1927, married Sarah Evans, who inherited Steart Farm from her parents. She died in 1976. Peter was devastated by her loss. He engaged a housekeeper after her death, Veronica, whom he married in 1978. This marriage was not happy; they separated within 18 months, and were divorced in 1986.
Peter kept dairy and beef cattle, as well as sheep, and cared for the cattle above all. His agent Mr Hares said Peter had never taken a holiday in the last 30 years of his life. He suffered a ruptured hernia twice, first in the early 1980's and then again in the early 1990's. This prevented him from carrying out heavy physical work on the farm, and increased his need for help, though it did not affect his strong and proud personality. While not always easy to get on with, he was a popular member of the farming community, well-regarded for his skills in relation to livestock, and he was supported by unpaid help on the farm from a number of people, including above all David. In the course of describing Peter on the basis of the evidence he had heard, the judge said this at paragraphs 31 and 32:
“31. Peter was described in evidence as “a man of few words”. There are perhaps two relevant aspects to that. First, Peter was a relatively private man who generally kept his thoughts about his business and financial affairs to himself. Second, he had literacy problems, not finding reading easy, and finding writing particularly difficult. He never took to paperwork, and regarded the increasing amount required as an unwelcome imposition, although that may well have been as much a generational matter as a reflection of his literacy problems. There is however also some evidence that once 'cattle passports', movement records and the like became mandatory, he was concerned that the paperwork from his farm should be right. I detect no necessary inconsistency between these various features of the evidence.
32. There is evidence from a number of witnesses (including David, Richard Adams and Graham Livings), which I accept, that Peter was not given to direct talking. The simplest example (though it went a good deal further than this) is that when Peter said “What are you doing tomorrow?” he generally meant “Would you come and help me tomorrow?” Indeed Mr Selby, a long serving police officer in the Avon & Somerset Constabulary, observed that lack of directness in conversation is a common feature he has encountered more generally when speaking to farmers in the area. I will not speculate as to whether it is confined to farmers in this area of Somerset. In assessing whether there is any significance to be attached to the somewhat indirect manner in which a number of Peter's statements now relied by David on were expressed or communicated, this is a factor to borne in mind.”
Peter was not particularly close to his siblings, but there were family loyalties, shown in particular when Jimmy and David stepped in to help after Sarah's death in 1976.
Steart Farm is on the edge of the village of Cheddar. In 1976 it comprised about 350 acres. Peter acquired some more land later, between 1987 and 1992. In 1987 he had 187 cattle and 45 sheep, but in 1988 he sold his dairy herd, leased out his milk quota and concentrated thereafter on beef and sheep. In 1992 he farmed 583 acres, some of it rented, and had 285 cattle and 164 sheep. By the end of 1998 he sold his sheep, and after that farmed only about 160 acres himself, primarily for beef and grass. In 1999 he granted some 3 year farm business tenancies of part of the land. In 2004 he further reduced his stock, from almost 250 head down to just less than 100. In 2005 he moved from the traditional farmhouse to a newly converted adjacent barn, and lived there until his death in November 2005.
David was born in 1949, left school at 15 and joined his father on the family farm, between Wells and Glastonbury. In 1976 when Sarah Thorner died, Jimmy and David went over to help Peter. That was the start of David's help at Steart Farm, which continued so that, by the time in the later 1970's when Peter's second marriage was failing, David used to go over to help on his own, though sometimes his father came as well. He found Peter's paperwork in a considerable mess, to the extent that cheques had been received but not paid in, and available grants not pursued. The judge described the general nature and extent of the help that David gave in paragraphs 62 and 64 of his judgment:
“62. David undertook a wide range of work for Peter on Steart Farm, including helping with the animals, mending fences and gates, taking cattle to and from market (preparation for the former, including the paperwork, would take up much of the previous day – Sunday before Monday market), working on the farm buildings, vehicles and equipment, bringing in the hay. He also undertook a great deal of Steart Farm's paperwork and administration. This included writing out cheques for signature and dealing with the completion of grant applications, the special payment scheme, the Rural Payments Agency, rights of way issues, cattle identification reports, cattle movement books, and cattle passports. It may well be that a Mr Richard Binning (as to whose qualities witnesses' views varied widely) also gave Peter some assistance with regard to some aspects of paperwork and administration, but I am quite satisfied that David made the principal contribution. Peter and David together made plans for both BSE (in the early 1990s) and then later Foot & Mouth Disease, although in the event Steart Farm was spared both. Calving took place over most of the year, due to Peter's particular methods. When David was helping with calving, sleep could easily be no more than an hour's dozing at a time in the seat of a Land Rover.
…
64. By 1985, shortly before his parents moved [in 1986, on his father's retirement from farming], David was working 18 hours a day, 7 days per week, split between his father's farm and Peter's farm, the latter taking up more than half of his total time. He had very little by way of any social life, but was a remarkably hard worker, as several witnesses observed. This continued to be the pattern after David had moved to Barton House with his parents. There is clear evidence, supporting David's own, that he continued to work very long hours after the move, splitting his time between the 'homestead' at Barton House and Steart Farm, from Fred Cremin and Simon Selby. Both were genuinely concerned for David's own health. If the former rang him, he was hardly ever at home, and would often ring back at midnight, saying that he had just got in. There were very few days when David did not go to Steart Farm at least once.”
Peter's land agent, Mr Hares, gave evidence that Peter always wanted to discuss any proposed transaction with Jimmy and David before taking a decision. He confirmed that David had given Peter a huge amount of help over 30 years, and had been essential to the running of the farm, to the extent that, had he not done it, the farm would have ceased to trade...
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