Thorner v Curtis and Others

JurisdictionUK Non-devolved
CourtHouse of Lords
Judgment Date25 March 2009
Neutral Citation[2009] UKHL 18
Date25 March 2009

[2009] UKHL 18


Appellate Committee

Lord Hoffmann

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Neuberger of Abbotsbury


and others



John McDonnell QC

Michael Jefferis

(Instructed by Stephen Gisby & Co)


Andrew Simmonds QC

Penelope Reed

(Instructed by Gould & Swayne)


My Lords,


The appellant David Thorner is a Somerset farmer who, for nearly 30 years, did substantial work without pay on the farm of his father's cousin Peter Thorner. The judge found that from 1990 until his death in 2005 Peter encouraged David to believe that he would inherit the farm and that David acted in reliance upon this assurance. In the event, however, Peter left no will. In these proceedings, David claims that by reason of the assurance and reliance, Peter's estate is estopped from denying that he has acquired the beneficial interest in the farm. The judge found the case proved but the Court of Appeal reversed him.


Such a claim, under the principle known as proprietary estoppel, requires the claimant to prove a promise or assurance that he will acquire a proprietary interest in specified property. A distinctive feature of this case, as Lloyd LJ remarked in the Court of Appeal (at paragraph 65), was that the representation was never made expressly but was "a matter of implication and inference from indirect statements and conduct." It consisted of such matters as handing over to David in 1990 an insurance policy bonus notice with the words "that's for my death duties" and other oblique remarks on subsequent occasions which indicated that Peter intended David to inherit the farm. As Lloyd LJ observed (at paragraph 67), such conduct and language might have been consistent with a current intention rather than a definite assurance. But the judge found as a fact that these words and acts were reasonably understood by David as an assurance that he would inherit the farm and that Peter intended them to be so understood.


The Court of Appeal said, correctly, that the fact that Peter had actually intended David to inherit the farm was irrelevant. The question was whether his words and acts would reasonably have conveyed to David an assurance that he would do so. But Lloyd LJ accepted (at paragraph 66) that the finding as to what Peter would reasonably have been understood to mean by his words and acts was a finding of fact which was not open to challenge. That must be right. The fact that he spoke in oblique and allusive terms does not matter if it was reasonable for David, given his knowledge of Peter and the background circumstances, to have understood him to mean not merely that his present intention was to leave David the farm but that he definitely would do so.


However, the Court of Appeal allowed the appeal on the ground that the judge had not found that the assurance was intended to be relied upon and that there was no material upon which he could have made such a finding. The judge had found that David had relied upon the assurance by not pursuing other opportunities but not, said Lloyd LJ, that Peter had known about these opportunities or intended to discourage David from pursuing them.


At that point, it seems to me, the Court of Appeal departed from their previously objective examination of the meaning which Peter's words and acts would reasonably have conveyed and required proof of his subjective understanding of the effect which those words would have upon David. In my opinion it did not matter whether Peter knew of any specific alternatives which David might be contemplating. It was enough that the meaning he conveyed would reasonably have been understood as intended to be taken seriously as an assurance which could be relied upon. If David did then rely upon it to his detriment, the necessary element of the estoppel is in my opinion established. It is not necessary that Peter should have known or foreseen the particular act of reliance.


The judge found (at paragraph 98) not only that it was reasonable for David to have understood Peter's words and acts to mean that "he would be Peter's successor to [the farm]" but that it was reasonable for him to rely upon them. These findings of fact were in my opinion sufficient to support the judge's decision.


The judge held that the equity in David's favour created by the proprietary estoppel required a declaration that Peter's personal representatives held the farm with its chattels, live and dead stock and cash at bank on trust for David absolutely. The personal representatives object on two grounds. First, they say although the judge placed reliance on the incident of the handing over of the insurance policy in 1990, the assurance was not unequivocal until affirmed by later words and conduct, after which the detriment suffered by David was a good deal less than if one took the whole period from 1990 until Peter's death and therefore did not justify an award of the whole farm.


I do not think that the judge was trying to pin point the date at which the assurance became unequivocal and I think it would be unrealistic in a case like this to try to do so. There was a close and ongoing daily relationship between the parties. Past events provide context and background for the interpretation of subsequent events and subsequent events throw retrospective light upon the meaning of past events. The owl of Minerva spreads its wings only with the falling of the dusk. The finding was that David reasonably relied upon the assurance from 1990, even if it required later events to confirm that it was reasonable for him to have done so.


The second ground of objection is that the farm when Peter died in 2005 was not the same as it was in 1990. In between, he had sold some land and bought other land. I agree with my noble and learned friends Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury that changes in the character or extent of the property in question are relevant to the relief which equity will provide but do not exclude such a remedy when there is still an identifiable property. In the present case, I see no reason to question the judge's decision that David was entitled to the beneficial interest in the farm and the farming business as they were at Peter's death.


I would therefore allow the appeal and restore the decision of the judge.


My Lords,


I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury and am in broad agreement with their reasons for allowing this appeal. I want, however, to add some thoughts of my own and will, for that purpose, gratefully adopt the description and analysis of the facts of the case provided by Lord Walker.


In Crabb v Arun District Council [1976] Ch.179 Scarman LJ (as he then was) said, at p 192, that if the plaintiff, Mr Crabb, had any such right as he had claimed, in the event successfully, "it is an equity arising out of the conduct and relationship of the parties". In the present case the relationship of the parties was a familial one - Mr Peter Thorner, the owner of Steart Farm, had no wife or children and was a first cousin of the father of Mr David Thorner, who claimed upon his cousin's death to have a right to inherit the farm - and the significance and implications of the conduct of David and Peter respectively in the years leading up to Peter's death have to be assessed in the context of that familial relationship. David's many years of unpaid work on the farm and assistance with the management of Peter's farming business took place in the context of that relationship. Peter's remarks to David, and to others, regarding David's eventual inheritance of the farm were, in the context of that relationship, unsurprising. Similarly, David's expectation of that inheritance, fed by his years of unpaid work and his understanding of his cousin's remarks and intentions, was unsurprising. The issue that has arisen is whether, Peter having in the event died intestate, David has a right in equity, arising out of his and Peter's conduct and relationship to claim the farm.


The case for David, as pleaded, relied primarily on proprietary estoppel and extended not simply to Steart Farm but to the whole of Peter's net estate (see para 19 of the Amended Particulars of Claim). However the judge, Mr John Randall QC sitting as a Deputy Judge of the High Court, confined David's equity, quite rightly in my opinion, to Steart Farm, its live and dead stock and associated chattels and the working capital standing to the credit of the farm account with the Bank. The judge founded his judgment on the proprietary estoppel that had been pleaded. The Court of Appeal, too, concentrated on proprietary estoppel and the submissions that have been addressed to your Lordships have likewise concentrated on proprietary estoppel. It should be noted, however, that paragraph 20 of the Amended Particulars of Claim had claimed, in the alternative, an equity "which should be satisfied in such manner as the Court thinks just".


One of the features of the type of cases of which the present case is an example is the extent to which proprietary estoppel and constructive trust have been treated as providing alternative and overlapping remedies and, while in no way disagreeing with my noble and learned friends' conclusion that David can establish his equity in Steart Farm via proprietary estoppel, I find it easier and more comfortable to regard David's equity as established via a remedial constructive trust. I will return to this later.


Lord Walker, in paragraph 29 of his opinion, identified the three main...

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