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Family Feuds and Estoppel

By D

Cook v Thomas & Thomas [2010] EWCA Civ 227

This case was well describd by the Court of Appeal as “a most unfortunate and regrettable dispute”.

The facts were as follows. C is the sole legal owner of a small ara of farmland with farmhouse in Wales by survivorship from her husband. It is currently also occupied by her daughter and her husband, Mr & Mrs T. Prior to her marriage Mrs T (or Miss T as she then was) helped C’s husband to farm cattle for milk on the land, a small local business carried on in his spare time, and also operated a small riding stables. Her marriage to Mr T ended this relationship and caused a siginificant and enduring family rift. Mr & Mrs T therefore occupied a mobile home elsewhere and communicaiton was limited. On the death of C’s husband Mr & Mrs T attended the funeral and a degree of rapprochment was achieved. The upshot of this was that planning permission was sought to place a new mobile home on land near the farmhouse and that Mr & Mrs T moved into it. The planning permission was partially granted on the basis of C’s statement that she needed assistance in her home that Mr & Mrs T would apparently provide although it was asserteed by C in Court that this was an exaggerration. After storm damage tothe mobile home Mr & Mrs T later moved into the house itself. Various works were carried out and paid for on the house by C and also by Mr & Mrs T. Mr & Mrs T were also permitted to run the farming operations entirely as they saw fit and for their own benefit. This domestic bliss collapsed after an argument over a landrover and since that point the partis had been living in the house but entirely seperately.

The foundation of Mr & Mrs T’s case was four statements made to them at different times which are referred to as the four promises. They contended that these amounted to an understanding that they could remain in the farmhouse until C died and then that it would be given to them. They had acted to their detriment in relaiance on the promises by doing works to the house and providing companionship and a degree of care to C.

The original case was heard by Mr Recorder Eyre sitting in Hereford County Court and it was this decision that was the subject of the appeal. He had sat for two days to hear the evidence of the three parties and a fourth witness. It had not been easy for him, particularly because of the deafness of C and he had therefore been concerned to ensure that she was at all times able to understand the proceedings and the questins being put to her, a fact commended by the Court of Appeal. He had made findings as to the reliability of all the main witnesses, holding that while they clearly believed what they said there was areas in which their evidence had been coloured by their personal animosity toward one another and their views as to what was right. He was therefore faced with the unenviable task of making untagling the evidnce and making findings of fact regarding each of the four promises from a number of self-conflicting and inconsistent positions. His judgement was described by the Court of Appeal as an “ admirably careful and considered judgment”.

The leading judgement was given by Lord Justice LLoyd, Laws and Sullivan assenting. While a number of different arguments of various sorts of estoppel, constructive trust and unjust enrichment were advanced the Court of Appeal considered that it was a case of proprietary estoppel and that if Mr & Mrs T could make their case on that basis “they cannot do so under any other label”. Accordingly, the playing field was set.

Mr Stenhouse, on behalf of the appellants, did not criticise in any respect the judge’s overall assessment of the witnesses, set out at paragraphs 30 to 38 of the judgment, which I have summarised above. Nor did he challenge in any material respect the summary of the law which the judge had set out at paragraphs 19 to 29. He argued that the judge had not in all respects applied the law correctly, even though he had stated it correctly. The main burden of his appeal, however, was on the judge’s findings of fact. He contended that the judge’s findings about the four promises, and about how they were taken and what was done in reliance on them, were against the weight of the evidence.

Mr Stenhouse did not have a great day out. The Court was critical of his grounds of appeal, holding that they did not properly comply with the practice direction to CPR 52 as they were primarily related to findings of fact rather than of law. They were less than complimentary about his skeleton argument and oral submissions as well.

Ultimately, the Court felt that the appeal revolved around the findings of fact made by the Recorder. It addressed a number of the well-accepted authorities on the ability of an appellate Court to overturn findings of fact made by a lower court which has had the benefit of hearing the evidence, particularyl when the evidence is of a detailed nature and involves handling other issues involving the understanding of the witnesses. It was certainly not prepared to hold, as Mr Stenhouse argued, that the transcript itself provided showed that the Judges findings were wrong, gave incorrect weight to the evidence, were unjustified and also provided enough for the Court of Appeal to substitute the proper findings.

The Court also referred to the now leading case of Thorner v Major and pointed up the vital flaw in the case of Mr & Mrs T that, irrespective of promises made, it was hard to see what detriment they had suffered in reliance on them given that they had lived, rent free, for some considerable time.

Mr Stenhouse finally argued that the Recorder had made an unjusitified decision by not specifically adressing in his judgement the four promises and the resulting actions of Mr & Mrs T as a whole and had also taken into account irrelevant factors by considering works on the property paid for by C. The Court of Appeal disagreed that the Recorder had to provide detailed further reasoning on the overall picture above and beyond his reasoning on each of the four promises in order to demonstrate that he had considered the overall picture. It also found the argument inconsistent as in looking at an overall picture it was surely relevant to take into account items that C had paid for herself.
All in all then a case which turns on its facts and does not really provide any useful point of law. It is perhaps as much a lesson, with apologies to Mr Stenhouse, on how not to conduct an appeal and a reminder of the reluctance of the Court of Appeal to overturn findings of fact made by lower courts.
Permission to appeal to the Supreme Court was denied.

D is a solicitor specialising in landlord and tenant matters with a London firm.


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