- DEPUTY JUDGE RANDALL: The three cases which have been tried together before me concern the land and deceased estates of two brothers, Edward and Harry Poulton, both of whom died in the 1970s and to whom I shall refer for convenience, and with no disrespect intended, individually by their first names and together as "the brothers". All the land concerned is at Three Gates Farm, Lee Common, near Chartridge in Buckinghamshire.
- In a nutshell, Mr Eastaugh ("the claimant") on the one hand is in competition with Mr Crisp and Miss Craft (together, "the defendants") on the other hand with respect to a variety of possible interests in and rights over this land. Claims in respect of the estates are largely, though not wholly, incidental to that competition.
- The defendants rely on titles to the land gained by virtue of Transfers from the Administrator of both estates, Mr Stuart Poulton, to whom I shall similarly refer to as "Stuart". He is the grandson of Harry, and his sole surviving blood relative. He has become involved in this matter through, and I over-simplify somewhat, being contacted by Mr Crisp, and persuaded to seek and obtain grants to the estates of each of the brothers, and to sell the defendants their respective lands at Three Gates Farm as Administrator, for an aggregate sum of £250,000. The defendants have succeeded in obtaining registered titles on first registration to the disputed land following these Transfers, one possessory and granted while the 1925 Land Registration Act ("LRA 1925") was in force, and the other absolute and granted after the 2002 Land Registration Act ("LRA 2002") had come into force.
- There are a number of important disputes of fact, including as to documents and events going back 30 years, and what at the outset appeared to be a formidable array of resultant legal questions. By the time of oral closing submissions, which were preceded by an exchange of closing skeletons, and after some judicial encouragement, a number of legal points had been chased down by counsel and ended up either agreed or no longer regarded as relevant by either side. However, a number of significant legal issues remain 'live'. It is convenient to mention some legal points as they arise during my account of the facts, but I will deal with the main ones when I address the particular issue to which they relate.
- Before I turn to that factual history, I must first summarise the matters in issue in the three actions before me, and say something about the witnesses who gave evidence before me.
- The three actions
By proceedings commenced in June 2005 against both defendants, the claimant asserts leasehold ownership of "the blue land", a term which I will define later, by virtue of a 99 year lease granted in 1972, and freehold ownership of "the red land", which again I will define later, by virtue of a 1977 conveyance (which, as has become clear, extended only to part of the red land, known as field 28) alternatively a 1977 will. His pleadings allege and complain of the defendants' demands for vacant possession of both by demanding the removal of his belongings in August 2002, and by their exclusion of him from the land earlier that year. Allegations of trespass are also included. He seeks declarations, rectification of the register in respect of both the blue and the red land, and other relief including damages for trespass. In subsequent Part 18 Further Information, the claimant indicated additional pleas, alternative to that of the 1977 conveyance, of (i) part performance (which was not pursued) and (ii) a possessory title resulting from occupation since 1977. By a counter-claim served in July 2005 the defendants together claim damages for trespass to Edward's cottage, and Mr Crisp claims arrears of rent under the 1972 lease put at £16,750 and damages for breach of a number of covenants in that lease including an implied covenant for maintenance and repair. I shall refer to these proceedings as "the first action".
- Linked to the latter part of that counter-claim is the most recently commenced of the three actions before me, by which Mr Crisp seeks to forfeit the 1972 lease on a number of grounds, including an alleged denial of title in specified paragraphs of the Reply and Defence and Counter-claim in the first action, non-payment of rent, and like breaches of covenant to those mentioned in the said counter-claim (save for the implied covenant for maintenance and repair which is not relied on in this action). Mr Crisp seeks further to rely on passages in paragraphs 3 to 5 of the Defence in this very action as additional denials of title. I shall refer to these proceedings as "the forfeiture action".
- A few days after commencing the first action, the claimant instituted proceedings against Stuart, asserting the existence of a valid will of Edward dating back to December 1977, under which he was residuary beneficiary and sole executor, and asking the court to pronounce for that will in solemn form and to revoke the grant of Letters of Administration, which was made to Stuart on the basis of an intestacy. I shall refer to these proceedings as "the probate action".
- The witnesses
Mr Eastaugh is 76 years old, had heart surgery in early 2000, and has some difficulty with his hearing. I am quite satisfied that his evidence on some matters as to which he was quite definite was inaccurate; for example, what the principal topic of discussion was when he went to Mr Honniball's office in mid-May 1999, the purpose for which he had produced the two-page memorandum which was there discussed a few days earlier, and (going back to 1977) the circumstances in which the Channer brothers were asked to witness Edward's will.
- I should also record that Mr Matthew Brett, who appeared for the Defendants, cross-examined him as to credit with regard to whether or not he had declared the property interests to which he lays claim in these proceedings in his applications for means-tested state benefits, and that, after being informed by me of a witness's privilege against self-incrimination, he chose not to answer further questions about that. In those circumstances, Mr Brett did not press ahead with similar questions about Mr Eastaugh's declarations of means to the Legal Services Commission, which earlier in the cross-examination he had intimated he was minded to ask.
- I have therefore had to consider whether I should find, as Mr Brett submits, that Mr Eastaugh was dishonest in giving evidence before me, or merely mistaken. I am not persuaded of the former and therefore take the latter view, notwithstanding Mr Brett's attempt to damn the same by applying the label "charitable" to it. Insofar as the subject of his evidence was events in the 1970s, it is self-evident that there is every room for mistaken or inaccurate recollection. People become convinced that things were done properly in the past, when in truth they were not, over periods far, far shorter than 30 years. That difficulty can only be exacerbated by Mr Eastaugh's age. As to his evidence about the conversation with Mr Honniball in mid-May 1999, even this was some seven years ago and occurred before the claimant's admission to hospital. I shall find that the explanation for his inaccurate evidence on this point is a distorted recollection, which has focused unduly on the last part of the meeting, when an offer to purchase his leasehold interest, the true extent of which was then unknown to Mr Honniball and the defendants, was made by Mr Crisp. The claimant has, over time, become convinced, albeit wrongly, that the whole meeting had a more surreptitious purpose, so far as the others present were concerned, than in fact it did.
- However, it nevertheless follows that the claimant has, in a number of respects, been demonstrated to have been an unreliable witness. I must therefore exercise considerable caution before acting on uncorroborated evidence of recollection from him. That has been my approach in reaching my conclusions of fact in this case.
- Mr Eastaugh was somewhat wary in his dealings with the defendants, though happy to take the benefit of their desire to ingratiate themselves with him. The 1977 will and the 1977 conveyance were not produced or mentioned until later than might have been expected. I do not however consider it safe to infer from that, as Mr Brett submitted I should, that the claimant knew that one or more of the key documents from the 1970s upon which he relies in these proceedings would not stand up to scrutiny. His wariness of the defendants is sufficiently explained by an appreciation on his part that he did not have a formally granted or registered legal title either to the estate of Edward or Harry, or to the land comprising Three Gates Farm, red or blue.
- Mr Crisp projected a self-confident image, though I have come to the view that underneath it he was, and has since 1999 been, decidedly nervous about the strength of his position with regard to the land. One illustration is the way in which he, to use his own word, "panicked" on receipt of the letter of 30 May 2002 [2/174(b)], and as a result made the claimant an offer in settlement of £200,000 via a solicitor who had previously advised the claimant. It should also be noted that in addition to paying Stuart as Administrator of the two estates a total of £250,000 for the Transfers, and funding the payments to other possible claimants to Harry's estate and the various legal expenses incurred, Mr Crisp has already spent some considerable time and money in clearing and improving the land, and transforming the cottages from their former derelict condition to the attractive properties depicted in the photographs taken earlier this year which are included in bundle 1.
- Mr Crisp chose to play his cards close to his chest in his dealings with Mr Eastaugh, due more to such nervousness than, as he suggested in the witness box, to his desire to maintain a high level of privacy in respect of his property and business affairs. Whilst he was under no legal duty to disclose to Mr Eastaugh the facts of his having located Stuart, his exchange of conditional contracts with Stuart, or his having obtained a possessory registered title over the red land, this secretive approach on his part was in contrast to his desire to elicit whatever information he could from conversations with Mr Eastaugh, including conversations which were superficially just social or friendly ones. I reject the explanation for non-disclosure in late 1999 of the defendants' purchase and newly granted registered title, which is volunteered in paragraph 13 of Mr Crisp's witness statement that,
"…we were informed of Jack's ill health and his need for a triple by-pass… we felt we did not need to cause him any undue stress."
- He sought surreptitiously to tape-record a conversation with Mr Eastaugh while the latter was in a recovery hospital, recuperating from surgery and MRSA, which not only is unattractive conduct, whether or not he had come to the view that Mr Eastaugh was not trustworthy (the explanation he proffers), but also affords a further instance of seeking to obtain, and use for the purposes of building up his claim to the land, information in what were superficially just social or friendly conversations.
- Furthermore, if it had been true, as Mr Crisp states in paragraph 24 of his witness statement, that Mr Eastaugh had:
"…always said to me that he would like me to buy the farm and he would do what he could to help me to achieve this",
which I also reject, then I do not believe he would ever have put forward the 'not wishing to cause him any undue stress' explanation for non-disclosure of his purchase earlier in the same witness statement. I also note that Miss Craft, who, although she had far less dealings with Mr Eastaugh than Mr Crisp, was present at a number of their conversations, including over Sunday lunch at their home, did not give evidence of hearing this statement being made by Mr Eastaugh (contrast paragraphs 5 and 6 of her witness statement).
- Because Miss Craft had far fewer dealings with Mr Eastaugh than Mr Crisp, her evidence was therefore within a narrower compass. She indicated in her evidence that she intuitively felt uncomfortable in Mr Eastaugh's presence, and therefore avoided speaking with him on her own, and I accept that evidence. However, I do not accept the evidence in paragraph 3 of her witness statement that she can herself confirm that Mr Eastaugh:
"…was always made fully aware of our desire to purchase Three Gates Farm…"
Mr Crisp's oral evidence did not go that far, and, indeed, rather indicated to the contrary.
- I conclude, particularly in respect of Mr Crisp's evidence but also to some extent of Miss Craft's, that there is a real risk that an unduly favourable spin or gloss has, possibly subconsciously, been put on what was said during their dealings with Mr Eastaugh, and on their motives for acting as they did. Therefore I consider it appropriate to exercise some caution before accepting such evidence insofar as it is controversial, and have done so in reaching my conclusions of fact. I also generally prefer their oral evidence to their witness statements, where the latter go further than the former.
- Just as the claimant was wary of the defendants in his dealings with them, so were the defendants wary of him. The logic of their position suggested that they would have had no reason to fear being more open with the claimant as to the steps they had taken, though, I repeat, they were not legally bound to do so.
- Mr Stuart Poulton was a strikingly careful and straightforward witness who, for example, did not hesitate to accept that his affidavit in support of an application for a grant of Letters of Administration in respect of Harry's estate [2/42C-42F] had not included any mention of the fact that he had previously signed a Deed of Renunciation, nor to say that he had no idea why Mr Honniball, whom he had told of that Deed, had not included this when drafting the same. When asked about what had passed between him and Mr Crisp in conversation about Mr Eastaugh, Stuart was careful to identify "rumour" as such. His denial of having "completed" in respect of Edward's land, which took both counsel by surprise (contrast paragraph 7 of his witness statement, and the resultant registration of a possessory title at HM Land Registry ("HMLR")) was in my view attributable to a combination of not being a lawyer himself and an awareness that, pending determination of Mr Eastaugh's claim in the probate action to propound Edward's 1977 will and revoke the Letters of Administration granted to him in 1999 (the subject matter of the one action to which Stuart himself is party), the destination of that estate remains uncertain. In all other respects I accept Stuart's evidence.
- Mr Honniball has acted as solicitor for the defendants and for Stuart throughout these proceedings. By no later than his receipt of Mr Eastaugh's Part 18 Further Information in mid-December 2005, he was aware that he was himself in the position of a witness on a disputed matter of fact, namely, what was said at the one meeting which Mr Eastaugh attended at his offices. This presented him with certain difficulties, including that he had, it seems deliberately ("as Mr Eastaugh was not to be my client" - witness statement, paragraph 5), kept no note of that meeting, and that in one potentially material respect his own recollection of what was said differed from that of his client, Mr Crisp. Miss Craft, though her presence was undisputed, gave no evidence at all about what occurred at that meeting.
- Mr Colin Channer and Mr David Channer are brothers. Both were independent witnesses with no obvious axe to grind. Each had a genuine recollection of signing the document which turns out to be an alleged will, even though it was almost 30 years ago, because it was so unusual for them to be invited to sign a formal or legal document, particularly then, when they (like all of us) were a lot younger than now. No one suggests that they were ever asked to sign a document by the claimant, or at either of the cottages on Three Gates Farm, on any other occasion. It follows that their recollections must have been of signing what turns out to be the alleged will. Their accounts are not word-for-word identical, as one sometimes sees in this situation, and this can only add weight to their evidence. As a general approach to their evidence, I find each to have been a genuine witness trying to tell the truth as he recalled it, and reliable. I shall find that both were right about the document being covered over, save for the dotted lines on which they signed, such that they did not know the nature of the document they were signing. The only really material difference between their evidence was as to whether Edward was present, with Colin saying he was not and David being unable to recollect one way or the other. I shall deal with the issue of due attestation later, as one of the issues relating to the red land.
- I also had the benefit of receiving expert evidence as to handwriting and document examination from Mr Robert Radley, in the form of a report and an accompanying letter, both dated 19 May 2006. Mr Radley was not required for cross-examination.
- The factual history
Between 1887 and 1904 James and Jane Poulton had six children, four of whom survived into adult life. Of those four, three were sons: Harry, the eldest, Arthur, and Edward, the youngest. They had one daughter, Amy. However they had only two grandchildren: Ronald, son of Harry by his first wife Edith, and William Payne, the son of Amy and her husband, who was also named William. So far as the evidence relates, each of those two grandchildren produced only one great grandchild: Stuart, the son of Ronald, and Sandra, the daughter of William Payne junior. There is a family tree in the bundle [1/158], although it requires at least four corrections. Wherever practicable, I will refer to the various members of the Poulton family by their first names.
- In 1907 Sir Arthur Liberty, founder of the well-known Regent Street store, acquired Three Gate Bottom Farm, Arrewig Lane, Chartridge, Bucks, which has latterly become known as simply Three Gates Farm, thereby adding the same to his substantial estate in and around the Chiltern Hills. He immediately rented it out to James, who was one of his employees.
- On 22 September 1929 the claimant was born in Australia. Two of his uncles were farmers in Queensland, so he had some agricultural background. In 1954, after leaving university in Australia, he joined the British Merchant Navy for two years. Since leaving in 1956 he has lived in England.
- On 31 October 1947 one of the two grandchildren, Harry's only child Ronald, was tragically killed in a road accident while still in his twenties, and only a few months after the birth of his first and only child, Stuart.
- In 1953, following the death the previous year of Sir Arthur Liberty's nephew and successor, Ivor Stuart Liberty, the freeholds of all the tenanted farms in the Liberty estate were sold off by the latter's deceased estate, represented by his executor, one Vincent Ranger. One such sale was that of Three Gates Farm to Harry, which took place on 20 March 1953, for the sum of £1,400. The farm as then sold comprised 38.7 acres. Though relatively small parts of two of the fields have since been conveyed away, as I shall explain in more detail later, the extent of the land comprising Three Gates Farm is largely the same now as it was when conveyed to Harry half a century ago. It comprises four fields or plots on land rising from either side of Arrewig Lane, which marks the low point of a dry valley. It is convenient to identify them by their numbers on the 1898 Ordnance Survey map as recorded in the 1953 conveyance, and shown on some of the plans in the court bundle, namely field 3, plot 26, field 28 and field 30.
- The plot which might be regarded as the centre of the farm is number 26, which comprises two semi-detached cottages, being the nearest thing there was to a farmhouse, and their gardens. Plot 26 was divided into two along the line of the party wall, projected on across the gardens with the eastern or possibly north-eastern part, adjoining field number 28, being Edward's cottage and garden. The western or possibly south-western part, closest to Arrewig Lane and (over the lane) field number 3, was Harry's cottage and garden. A very detailed plan of plot 26 may be found within the 1959 conveyance, to which I shall come [2/15]. The terms of clause 4 of the 1959 conveyance suggest that there may not have been a satisfactory fence between the two parts of plot 26 prior to 1959.
- As is recorded in the first schedule to the 1953 conveyance, the other three fields were in agricultural use. Field 3, comprising about 4.4 acres adjoining Arrewig Lane on its southern or south-western edge, and to the south or south-west of Harry's cottage on the opposite side of that lane, was pasture, and had a number of farm buildings on it. Such buildings are depicted on the 1:2500 plan used as the base for the plan incorporated in the Particulars of Claim in the first action which, as he apparently marked it up himself, I shall call simply "the claimant's plan" [1/10].
- The uses of fields 28 and 30 were respectively described in the 1953 conveyance as "grass and arable" and simply "arable". A detailed plan of field 28 may be found within the 1959 conveyance [2/14]. It is crossed by a private right of way which follows close by its western boundary and leads to the southern or south-eastern edge of Cindry Bottom Wood (as to which I note the letter at 2/90), and by what I am told, notwithstanding the notation on that plan and the reservation in the 1959 conveyance in favour of Harry, is a public footpath. This latter footpath heads north, firstly across the length of field 28, then (following its southern and eastern boundaries) field 30, and beyond. Field 30 is essentially rectangular in shape, and lies to the north-east of Cindry Bottom Wood, which I infer remained part of the Liberty Estate until at least the 1980s (see, for example, 2/165).
- On 19 May 1958 Harry conveyed back to Vincent Ranger approximately 3.1 acres out of the western or south-western side of field 30, thereby reducing the part of field 30 which remained in Three Gates Farm to approximately 15.4 acres, and the total holding to 35.6 acres. By comparison of a number of the plans before the court, and in particular from the base used for the claimant's plan, these 3.1 acres appear to have been used to extend Cindry Bottom Wood to its east or north-east.
- Also in 1958, in London, the claimant met Amy through ballroom dancing. They got talking, the facts that Amy had three brothers who farmed in the Chilterns, and that the claimant had some agricultural background from Australia, came up, and, as the claimant had a car, in due course they went to visit Amy's brothers together. Thus started the association between the claimant and members of the Poulton family, and in particular with Harry and Edward, which continued for the remainder of the brothers' lives.
- On 4 June 1959 Harry conveyed to Edward the eastern or north-eastern part of parcel 26 on which his cottage stood, and the adjoining field 28, for the sum of £562. The land Edward thus acquired has been referred to throughout the trial as the "red land", in accordance with the coloured edging on the claimant's plan, and I shall so refer to it in this judgment. The most convenient modern map or plan within the papers before the court to show what is comprised in the red land is the HMLR Title Plan for BM246735 [2/30].
- In 1961 Harry was widowed, but he remarried two years later, his new wife being one Hilda Vincent ("Hilda"). In the meantime, in or about 1962, according to the claimant's witness statement, Harry let out his fields, which would be numbers 30 and 3, to the Stevensons, on an agricultural lease. Apparently disputes subsequently arose about the use of part (I infer field 3) for the storage and dismantling of commercial vehicles, but Harry did not recover possession until 1971 (for non-payment of rent).
- On 2 December 1964, a slice off the western end of field 3, and whose measurements by my calculation equate to almost exactly one acre, was conveyed by Harry to Terence Kiley for the sum of £500, thereby reducing the part of field 3 which remained in Three Gates Farm to approximately 3.4 acres, and the total holding to approximately 34.6 acres. Throughout the trial the land thereby conveyed away has been referred to as "the green land", and the land Harry thereafter retained, being most of the original fields 3 and 30 together with his part of plot 26, has been referred to as "the blue land", in each case again in accordance with the coloured edging on the claimant's plan. I shall continue so to refer to both in this judgment. The most convenient modern map or plan within the papers before the court to show what is comprised in the blue land is the HMLR Title Plan for BM289820 [2/33]. As for the green land, the conveyance plan itself gives the clearest depiction of its extent and position [2/20].
- In 1967 Harry, by this time estranged from Hilda, made a will. This was subsequently extensively amended in manuscript, perhaps in July 1971 (see Stuart's affidavit, subsequently mentioned).
- On 1 August 1968, Terence Kiley, who was apparently preparing to emigrate to Australia, conveyed the green land to his father James for a nominal consideration of £1.
- In 1969 Arthur died.
- On 14 September 1970 Edward made a will, leaving all his estate to his sister Amy.
- In May 1971 Harry wrote to his grandson Stuart and his wife, in terms which suggest that he believed himself to be very, and potentially terminally, ill, and also that his sister Amy, to whom he referred as "Mrs Payne", had moved into some form of home "for good", as he put it.
- On 3 November 1971 James Kiley, who was apparently preparing to join his son in Australia, conveyed the green land to the claimant for £700.
- On 26 December 1971 Harry wrote to the claimant indicating a willingness to let fields 3 and 30 at the respective rents of £24 per calendar month, i.e. £288 per annum, and £200 per annum. These were the fields which had hitherto been let to Mr Stevenson, and which had been repossessed for non-payment of rent. The claimant responded from an address in London NW9, apparently enclosing £100 on account. His instructions to his then solicitors appear to contemplate continued farming of the subject land.
- On 23 February 1972 Harry, while in hospital, signed an independently witnessed tenancy agreement purporting to let fields 3 and 30 (as reduced by the sales off) to the claimant, for a term of 99 years. This represented the blue land, save for Harry's part of parcel 26. In accordance with the earlier letter, the rent for field 3, being 3.5 acres but with buildings, was £288 per annum and that for field 30, being 15.5 acres, £200 per annum. Under its provisions, the claimant was entitled to apply to have the farm buildings on field 3 declared obsolete after a minimum of three years; after such declaration, the rental for field 3 was to be pro-rata that for field 30. This indicates that at this time the occupation of the buildings on field 3 was regarded as being of material value, but also that the buildings were regarded as being near the end of their usable life. Rent reviews were to be seven-yearly.
- On 3 March 1972 Messrs Blaser Mills and Lewis, solicitors, wrote to the claimant to inform him that they had strongly advised their then client Harry not to enter into an agricultural tenancy agreement in view of his "precarious state of health", and of the advantages for his estate of the land being available for realisation with vacant possession in the event of his death. Nevertheless, on 23 March 1972 Harry, having discharged himself from hospital and having dispensed with the services of Blaser Mills and Lewis, signed an agreement for a lease, to which I will refer for short as simply "the 1972 lease". This was drawn up by the claimant at Harry's request, and was witnessed by Harry's younger brother Edward. It let all the blue land to the claimant for a term of 99 years or, more strictly in view of its detailed provisions, a minimum term of 100 years and 6 months (a difference which doubled the stamp duty payable: see 2/81 to 2/88, and the stamps on 2/45), at an aggregate rent of £500 per annum, payable quarterly in advance, comprising £288 and £200 for the two fields as before, plus £12 for the cottage. A contemporaneous letter from the claimant to his then solicitors described the cottage as:
"…in very poor condition and with no services whatsoever" [2/79],
and Harry was given free use of it for his lifetime, together with access to his car in a garage on field 3.
- Various items including the farm buildings were declared obsolete. The date on which rent for field 3 was to drop to pro-rata that for field 30 was fixed at 26 March 1975. Otherwise rent reviews were, as before, to be seven-yearly, though in the event none have taken place. £200 for field 30 equates to a rate of £12.96 per acre. Although both counsel addressed me on the basis that rent had throughout accrued at the rate of £500 per annum, on further consideration of the terms of the lease, it appears to me that, on its true construction, the rent for field 3 automatically dropped on 26 March 1975 to £44.92, with the result that the aggregate annual rental, payable quarterly on the 26th days of March, June, September and December, dropped from £500 to £256.92 per annum, or £64.23 per quarter. Neither counsel took up my offer to receive contrary submissions in writing. My calculation of £44.92 is based on the field acreages from the first schedule. The usage of field 30 is recorded as "arable", and of field 3 as "arable and farm buildings".
- The 1972 lease included at clause 2 covenants:
(4) To farm and cultivate the premises in accordance with the rules of good husbandry.
(7) To reside personally in the farmhouse and not to assign underlet or part with the possession of the premises or any part thereof without the previous licence in writing of the Landlord."
At clause 3 it included a provision for re-entry and forfeiture in the event of breach.
- On 26 March 1972 Harry died, survived by his estranged wife Hilda. The claimant moved into his cottage, which was within the scope of the newly granted 1972 lease.
- In about 1972, Channer Brothers, an agricultural contracting firm comprising father Jim and his sons Colin and David, commenced working as agricultural contractors at Three Gates Farm. Colin and David Channer never met Harry, and dealt initially with Edward. They worked on fields 30 and 28, as appeared from David Channer's evidence as to the events in December 1977. There is no evidence as to whether they also did any work on field 3.
- On 26 June 1972 the claimant made the only recorded payment of rent under the 1972 lease, the sum of £125 due on that day, which was paid to Blaser Mills and Lewis, the solicitors, who, at the time, were acting for Stuart. However, their application on Stuart's behalf for probate of the unamended 1967 will was opposed by Hilda and not proceeded with. The original of that will remained on their files for some years, before eventually being destroyed.
- On 16 November 1972, as no grant had been taken over Harry's estate, the claimant, on the advice of his then solicitors, opened a separate bank account into which to deposit accruing rent, and deposited the sum of £125, which had accrued due on 26 September 1972. The claimant pursued in correspondence his desire for a formal record to be made of the then condition of the holding, as he had it in mind to commence improvements (see, for example, 2/89 and 2/95).
- On 23 July 1974 Amy died.
- In about 1974 - 1975 the Channer brothers first met the claimant, and thereafter had direct dealings with him concerning their work on fields 30 and 28.
- With effect from 26 March 1975 the aggregate rent for the blue land payable under the 1972 lease automatically dropped to £256.92 per annum, as I have already explained.
- On 6 December 1976 a closing order was made in respect of Harry's cottage [2/55].
- Documents demonstrate that, between about October 1976 and March 1977, the claimant had rented accommodation in Chartridge Lane, Chesham, although he continued to use Three Gates Farm as his correspondence address for some purposes, and may have had the use of accommodation there too.
- On 14 January 1977 the claimant received notice from the Chiltern District Council requiring him to cease use of Harry's cottage, following the closing order. He moved into Edward's cottage that year.
- On 3 February 1977 Edward signed a purported conveyance of field 28 to the claimant for a nominal consideration of £1. This instrument ("the 1977 conveyance") was drawn up by the claimant, who said that he had advised Edward to use solicitors, but that Edward had declined to do so, giving two reasons: (i) he felt that he had been badly treated by a local firm who had acted for him in connection with the 1959 conveyance, and (ii) he could not afford it. Given the correspondence available dating back to 1972, I find no reason to reject the claimant's evidence on that point. According to the claimant, there had been an earlier similar conveyance in 1976, but without the reservation in favour of Edward. There are important issues about the 1977 conveyance, with which I shall deal when I come to issues relating to the red land.
- At this point it is convenient to note that, for the five years or so from Harry's death, possible claims to a grant over his estate of his grandson Stuart, of his estranged widow Hilda, of his younger brother Edward, and, briefly, of the claimant as an alleged creditor of the estate, were canvassed between solicitors and the Oxford District Probate Registry, albeit in a relatively desultory manner. This is evidenced by the correspondence dating from that period in bundle 2. My overall conclusion from that correspondence is that, at that time, the claimant was as concerned as anyone that the estate be put on a proper footing. His motivation appears to have been that he was keen to improve the land over which he had been granted the long lease.
- Dating back to 7 December 1977 is the alleged will of Edward, which appointed the claimant as executor, left three pecuniary legacies totalling £500, and left the residue to the claimant ("the 1977 will"). This again was drawn up by the claimant. I shall deal with it later, as one of the issues relating to the red land. Evidence from the Channer brothers, albeit called for the purpose of impugning the due attestation of the 1977 will, establishes that, at the time of this alleged will (which the defendants accept was signed at or about when it was dated), they were working as agricultural contractors on fields 28 and 30, identified by Mr David Channer from plan D1, of which a partial and uncoloured photocopy may be found at 1/232 in the court bundle. This makes sense, as these were the two fields which had been described as being in arable usage in both the 1953 conveyance and the 1972 lease. There was nothing in the evidence to suggest that the nature or extent of their work had markedly altered over the five years or so for which they had by then been working there, and as there were only two long-term arable fields available to work on at Three Gates Farm, it is inherently probable that they worked on both throughout, whether or not they ever did any work on field 3 too. Thus, the blue and red land was being farmed together while Edward was still alive, and while the blue land was the claimant's under the 1972 lease. I see no reason to infer that this would have changed following Edward's death, and that the claimant, being a "legalistic" person, as Mr Brett put it, is likely to have continued to farm and work on field 30, being part of his 1972 lease, while discontinuing farming of field 28, leaving it unproductive. The claimant was only legalistic in the sense that he had the ability to draw up documents largely based on copying the text of others, and was capable of a degree of analytical thought (see his two-page memorandum dated 8 May 1999, and more generally the correspondence through the 1970s and 1980s in bundle 2). It would make little sense for the claimant on the one hand to be sufficiently casual about legal requirements to have the Channers witness Edward's will without him being present, as the defendants submit occurred, yet on the other hand to be so scrupulous about land ownership as to farm field 30 and do nothing with its neighbouring field 28 once Edward died, as Mr Brett submitted, a submission which I reject. All the more so, given that the claimant knew of, or had known of, both the 1977 will and the 1977 conveyance, either of which he might reasonably have thought gave him a good claim to the red land, and given the absence of anyone else in the area who was at all likely to challenge him over using the red land together with the blue. What is not in evidence, however, is for how long after December 1977 the services of the Channer brothers as agricultural contractors continued to be used at Three Gates Farm.
- On 1 January 1978, although the claimant had little recollection of it, Edward signed a short tenancy agreement, again drawn up by the claimant, letting his cottage to the claimant at £16 per week subject to three months' notice on either side ("the 1978 tenancy agreement"). There are important issues about this document too, with which I shall again deal when I come to issues relating to the red land, where it is relevant to the claimant's adverse possession claim so far as it concerns Edward's cottage and garden.
- On 25 January 1978 the claimant wrote to the Chief Environmental Health Officer at Chiltern District Council requesting its approval, with regard to the closing order thereon, for his use of the subject farmhouse, i.e. Harry's cottage, for:
"…exclusively agricultural purposes, of storage of agricultural materials, small equipment and tools, chemicals, agricultural documents and records, and clothing and food in connection with my daily work on the associated farm."
There is absolutely no reason to suspect that this was a stage-managed or intentionally self-serving letter, and it therefore affords some evidence of the claimant's regular involvement in active farming on Three Gates Farm in January 1978.
- On 16 February 1978 Edward died. I have found that the claimant was already living in his cottage since some time in the previous year. At some time later (which has not been identified, but both parties agree it does not affect the outcome of any of the issues) the claimant moved out of Edward's cottage itself and into a caravan located close to that cottage and within its garden. I did ask the claimant about the date of this move at the end of his evidence, but what my question in fact provoked was a revision by the claimant of his earlier evidence as to when his next move occurred, being that from the caravan in the garden of Edward's cottage to a mobile home situated on field 28. I shall revert to that later.
- In the early 1980s the claimant resumed taking some steps to try and bring about an administration of Harry's estate. I do not have the answer sent by Fishburn Eppel, the solicitors then acting for the claimant, to Stuart's Brighton solicitors' letter of 1 December 1981 [2/158], but one way or another some 15 months later, on 10 March 1983, Stuart, acting on those solicitors' advice, signed a document headed Deed of Renunciation. It was noteworthy that when Stuart gave evidence he was able to give a fair, layman's summary of the effect of such document in ordinary language, namely, that he was not to carry on trying to sort the estate out, but that he had not lost the right to any benefit under the estate. As the original was held, curiously, by the claimant, and produced in court with no indication, by stamping or otherwise, of it ever having been filed in the Oxford District Probate Registry, the probability must be, contrary to the claimant's evidence and belief, that it was never filed. There is some corroboration for that in Mr Honniball's oral evidence, namely that after he contacted the Oxford District Probate Registry they retrieved their old file, that he entered into correspondence with them about it, and that it was clear that they had no note of the Deed of Renunciation on their file. Taking the law from chapter 30 of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 18th edition 2000, such a renunciation, while taking effect from its signature (it was not required to be sealed), may be withdrawn at any time until filing. Furthermore, the court, acting by the Registrar of the District Probate Registry, may give leave for it to be withdrawn even if it has been filed: Non-Contentious Probate Rules 1987, rule 37(3).
- In October and November 1984 the claimant was in correspondence with the Forestry Commission over the activities of a shooting syndicate in Cindry Bottom Wood. Again, there is no reason to suspect that these were stage-managed or intentionally self-serving letters. Cindry Bottom Wood has a lengthy boundary with field 30, though also adjoins the north-west corner of field 28. The events described in these letters, albeit written from the claimant's perspective, afford some evidence that he must have been on field 30, and perhaps the north-west corner of field 28, from time to time in 1984. I also note that in the November letter [2/163] he describes himself as "a farmer".
- In December 1984 and January 1985 the claimant was sufficiently aware of activity in Cindry Bottom Wood to be able to provide Mr Stuart Liberty with details of poaching activity taking place thereon on a number of dates around the turn of the year (see the latter's reply to a letter from the claimant at 2/171).
- The claimant states in paragraphs 58 to 59 of his witness statement that the last cereal crop grown on Three Gates Farm was in 1990 to 1991 and that thereafter the land was taken out of production. He spoke, principally in his oral evidence, of taking up what is commonly known as the "set-aside scheme". As to the period after 1991 until 1999, I entirely accept Mr Brett's submission that the absence of any documentary evidence from the claimant as to his participation in that scheme is most unsatisfactory and not properly explained, although in fairness to him it is always possible that such documentation was amongst the "accounting documents" which he said were not moved to his new place of residence in 2000. The reference to seven hectares in paragraph 58 of the claimant's witness statement is not easily reconcilable with any combination of the acreages I have mentioned for fields 30, 28 or 3. Taking the evidence as a whole, including (a) what is known about the (at best mixed) usage of field 3, including the presence of a number of buildings, (b) the usages recited in the 1953 conveyance and the 1972 lease, (c) the evidence of David Channer, (d) the other relevant references in the correspondence which I have already mentioned, and (e) the relative appearance of fields 28 and 3 in the 1999 photographs, I think it safe to infer that cereal growing did take place on field 30 and at least part of field 28. Notwithstanding the considerable caution which I find it necessary to apply to uncorroborated evidence from the claimant based on recollection, I accept that his evidence on this point is substantially correct and that the probability is that these two fields continued to be used for cereal production up to a harvest in 1991 or possibly a year either side.
- The report of Dr C J Smith, Senior Conservation Adviser of the Buckinghamshire Farming and Wildlife Advisory Group, based on an inspection of the land carried out on 5 April 1991 and produced ten days later, provides independent support for this, as it describes the land as:
"managed for arable cropping, though without the ruthless intensity of neighbouring estates, so that tall and species-rich hedges remain, as well as areas of rough grass land" (my emphasis, 1/208).
- Although the much shorter covering letter speaks of "rough grassland", that is consistent with and explained by the main report's reference to "areas" of the same. After all, even back in 1953 field 28 had been described as "grass and arable" in the conveyance of that year. Had all active farming on field 28 ceased when Edward died in 1978, as Mr Brett at one stage suggested I should infer, then, 13 years later (in 1991) it would certainly not have given the appearance of being "managed for arable cropping". As an additional observation, although my finding does not depend on it, I would have expected field 28 to look considerably more overgrown 21 years later (in 1999) than it does in the photographs [at 1/254], whether or not the area in the foreground had been grassland since before 1953 - even grassland requires some mowing (in the absence of grazing), weed control, etcetera.
- In or about 1992 the claimant moved from the caravan in the garden of Edward's cottage to a mobile home located on field 28. It is the white or cream coloured mobile home which may be seen on the right-hand side of the photographs [at 1/248 and 1/250]. It was positioned to the west of the public footpath and not far from the point where the boundaries of plot 26 and of fields 27 and 28 meet. Although initially the claimant put this move at 1995, very near the end of his oral evidence, when I asked him the different question of when he had moved from Edward's cottage into the caravan in its garden, he volunteered that he thought the date of 1995 had been wrong and that his move from that caravan to the mobile home on field 28 had taken place in the early 1990s, which, after some thinking aloud, he ultimately put at about 1992. Again, I am very conscious for the need for caution in respect of evidence of recollection from the claimant. However, I do not accept Mr Brett's suggestion that the change from 1995 to 1992 must be taken as a deliberate and cynical attempt by the claimant to improve his position on adverse possession. The claimant is well capable of adding or subtracting 12 years from a date, and I am confident, as indeed is implicit in Mr Brett's submission, will – well before he entered the witness box - have understood the need for 12 years' continuous possession to obtain title by so-called 'adverse possession'. The substitution of the date 1992 for 1995 as a dishonest ploy makes little sense, as, according to his own witness statement at paragraph 44, the defendants excluded the claimant from Three Gates Farm, asserting ownership of the whole farm, in April 2002, and there are written demands for vacant possession of the land (by the removal of the claimant's remaining goods) later that year. All this is quite apart from the claimant's admitted move off the land in 2000, into, first, a nursing home, and then a Housing Association flat. Had the claimant been giving dishonest evidence, as Mr Brett suggests, he would surely have given a revised date no later than 1990. Further, the approximate date of 1992 ties in with other matters. First, there is the cessation of cereal cropping, as I have just found. Second, there is the documentary evidence of the claimant's growing interest in wildlife and conservation issues, as evidenced not only by Dr Smith's involvement in the spring of 1991 but also by his own preparation of extensive manuscript lists of plants, mammals, birds and insects to be found on "Ted Eastaugh's 40-acre farm, Arrewig Lane", dated 25 August 1991, of which at least extracts are included (together with Dr Smith's report) in exhibit JHE15 to the claimant's witness statement [1/214 to 219].
- According to the claimant's two-page memorandum, dated 8 May 1999, on 21 March 1994 a Mr Colin Stephens completed his purchase of Arrewig Farm with the assistance of a loan of £60,000 from the claimant. Apparently there is litigation underway, or threatened, in relation to that. All I need say about it is to record that, on the claimant's own case, from this date such monies as he had been putting aside in respect of the rent due for the blue land were no longer available to him (they formed part of the £60,000), and after then he did not put any further money aside in respect of accruing rent.
- On 11 September 1995, enforcement action in respect of Three Gates Farm was commenced by the local planning authority. Its Enforcement Notice was issued in respect of all of the red, blue and green land. The alleged breach of planning control was the use of the land "for the storage of motor vehicles, scrap metal, paper and timber." The notice required (i) the cessation of such storage for non-agricultural purposes and (ii) the removal:
"from the land shown edged red on the attached plan [of] motor vehicles, scrap metal, paper and timber unconnected with the agricultural use of the land."
- This suggests that it appeared to the planning enforcement/control officer, or officers, responsible for preparing the notice that the whole of the subject land, i.e. the whole of Three Gates Farm, was in common usage or occupation, and that its use was either actually, or at least potentially, agricultural. I do not think it safe to infer from the issue of this notice that the uses of which it complains had only recently commenced, let alone that the claimant had only just moved from the caravan adjacent to Edward's cottage into the mobile home: (a) the uses complained of in the notice did not include reference to the mobile home or residence in it, which one might have expected, and (b) in any event, it by no means follows that commencement of the uses complained of would have occurred at the same time as, or immediately following, the claimant's move from the caravan on plot 26 into the mobile home on field 28. Furthermore, the local planning authority seems thereafter to have let the matter drift, in that there is no evidence to explain why, after the issue of such notice in 1995, there were still motor vehicles and scrap metal on field 28, and timber on field 3, in 1999, as some of the defendants' photographs clearly demonstrate. This is not indicative of a local planning authority which can safely be taken, in the absence of direct evidence, as having been generally efficient in enforcement matters concerning this land.
- In February-March 1999 the defendants were selling their then home, Three Bears Cottage. They were keen on, to use the common phrase, 'doing up' old properties, and had heard from someone in the area of the empty and overgrown cottages at Three Gates Farm. Mr Crisp went to have a look. He drove a short way onto field 28 through an open or ungated entry, and that is when he first met the claimant, who came out to meet him. Not unnaturally, perhaps, the claimant's initial tone was less than welcoming, although all he initially said was, "Can I help you?" or something to that effect. Mr Crisp succeeded in making conversation, and the tone became more friendly. Mr Crisp offered a mobile home, which he had himself used while renovating his previous property, for sale, and either then or in a subsequent conversation, sold the claimant some bottles of gas.
- Mr Crisp sought and was granted permission to bring his family to the land to go for walks. Apparently there was then no signage to indicate that the footpath was public. They subsequently did so and on one occasion picked sloes on either field 28 or field 30. What was said about ownership and occupation of Three Gates Farm in their early dealings is important, principally with regard to the defendants' alternative plea of estoppel in relation to the red land, though they also rely on the same as tending to negate animus possidendi for the purposes of resisting the claimant's adverse possession claim.
- However, their general approach to one another during 1999 is perhaps significant. Each was somewhat wary of the other, but each sought to ingratiate himself with the other for his own different purposes. The claimant was an elderly man in his 70th year, living on his own in somewhat challenging physical conditions. He was glad enough to take up offers of help, hospitality and superficial friendship from the defendants, both before and after his admission to hospital. However, he remained wary of them. It must have become clear to the claimant quite early on, from Mr Crisp's several visits to Three Gates Farm (about four or so occurred prior to the Sunday lunch mentioned below), and from his questions, albeit intermittent and deliberately limited in number, about it, that the defendants were interested in the possibility of acquiring land in the immediate area. As I have already found, the claimant's wariness of the defendants was linked to an appreciation on his part that he did not have any formally granted or registered legal title either to the deceased estates of Edward or Harry, or to the freehold of any of the red or the blue land.
- The defendants, for their part, found the prospect of acquiring and 'doing up' Three Gates Farm very attractive, both as somewhere then to live and as an opportunity for capital profit. However, it was obvious to them that the presence of someone living on the land raised a potential obstacle to those prospects. There appear to have been a number of occasions on which they detected, rightly or wrongly, a possibility that the claimant might voluntarily move off the land, including at one stage by moving onto the green land, which he already owned, and at another by moving onto certain fields owned by Mr Bousfield, if the claimant were entitled to acquire them. It is noteworthy that on each such occasion the defendants immediately offered help, including, if it would assist, at least some funding, e.g. funding the obtaining of Mr Honniball's advice about the latter question, and/or the deposit for an acquisition from Mr Bousfield. Their befriending of the claimant was only superficial, and motivated by a desire to elicit as much information from him as possible to inform their pursuit of the land at Three Gates Farm and to facilitate, if at all possible, his voluntary departure from the land.
- Within a few weeks the defendants engaged their solicitor Mr Honniball to undertake an index map search at HMLR to find out if there were any relevant registered titles in the area. There were not.
- On Saturday, 8 May 1999, the claimant prepared a two-page memorandum raising the question of whether he could enforce what it is simplest to call an alleged promise by Mr Bousfield to sell him two fields in the area. A copy appears at 1/296-7. Sunday, 9 May 1999 was, I am satisfied from the documents of 8 May and 11 May, the date of the one occasion on which the defendants entertained the claimant to Sunday lunch at their home. The claimant took with him the two-page memorandum which he had prepared the previous day, and the large plan, now forming exhibit D1.
- On Tuesday, 11 May 1999, Mr Crisp took that memorandum and plan to Mr Honniball. He also passed on the latest background information he had obtained from the claimant, presumably at the Sunday lunch. It is noteworthy that, at this stage, Messrs Honniball and Crisp were contemplating the possibility of Mr Crisp funding the claimant's deposit on the purchase of additional fields from Mr Bousfield, in return for his agreement to move off the land at Three Gates Farm should Mr Crisp be able to buy them: see Mr Honniball's attendance note at 1/297A.
- Within about ten days of 11 May the claimant went with the defendants to see Mr Honniball at his office in Thame, Oxfordshire. The defendants had offered to meet the cost of this at the Sunday lunch meeting and, insofar as Mr Honniball made any charge for it, that was included in his billing to the defendants. There is an apparently stark conflict of evidence about this meeting, in that the claimant says that the principal topics of conversation were a request for documentary evidence to support his ownership of Edward's part of Three Gates Farm and Mr Honniball making an offer on his clients' behalf of a substantial sum for a surrender of his lease. Mr Honniball and Mr Crisp deny that Mr Honniball had any such conversation with, or made any such offer to, the claimant. They assert that the principal topic of discussion was the question raised by the two-page memorandum. The claimant denies that, saying that the two-page memorandum was not produced for either the defendants or Mr Honniball, but, rather, for an altogether different solicitor named Goodman who was a friend of his.
- I am quite satisfied that the defendants' account is the correct one. The very fact that Mr Honniball is able to produce a copy of the two-page memorandum speaks for itself, and I find no reason to doubt his recollection in this respect. That said, Mr Honniball was very unwise in keeping no note of what occurred at this meeting. The explanation he gave, namely, that the claimant "was not to be his client", simply does not withstand a moment's reflection. Not only was anyone to whom he gave legal advice, however basic, in the course of his work as a solicitor in his own offices, to be regarded as a client for at least some purposes, as Mr Honniball himself belatedly recognised and observed while giving oral evidence, but also the very fact that Mr Honniball knew that the person he was advising had a potentially conflicting interest with the defendants, who undoubtedly were his clients, concerning their contemplated purchase of Three Gates Farm, made it more rather than less important that, if any such meeting was to take place at all, there was a reliable contemporaneous note to show that the subject matter of the discussion and advice had been quite distinct from the area of potential conflict.
- Towards the end of the meeting, after the claimant's rights, or lack of them, against Mr Bousfield had been discussed, Mr Crisp says that he "turned the subject to the lease which [the claimant] said he had on part of the farm", and asked him if he would be prepared to sell it for £50,000. Mr Honniball had the misfortune to differ in his recollection on this point from his own client, Mr Crisp, a misfortune which he compounded by (a) himself preparing both his own and Mr Crisp's witness statements, (b) including in the former, i.e. his own statement, a paragraph which reads:
"I understand from Mr Crisp that it is possible that at this meeting Mr Crisp was aware that Mr Eastaugh had a lease of part of the land and that he at the meeting offered to pay Mr Eastaugh a sum of money to surrender such lease which apparently Mr Eastaugh said he was not able to do",
but (c) not including in the former any express indication that this differed from his own recollection.
- I prefer Mr Crisp's recollection to Mr Honniball's on this point. I also find that it is a flawed or distorted recollection of this short part of the conversation which explains the claimant's belief that he received an offer at the meeting. Nor, if it matters, do I accept the suggestion that this part of the conversation took place as the defendants and the claimant were passing through the reception area (as Mr Honniball speculated), or anything of that nature. The defendants were clearly private about their business and property affairs, and Mr Crisp said nothing to this effect in either his witness statement or his oral evidence.
- Later that month, on 24 May 1999, the first meeting occurred between Stuart, the defendants and Mr Honniball to discuss the possible purchase of both the blue and the red land by the defendants. In June 1999, it might have been very late May, but both Stuart and Mr Crisp said June, and in any event before the exchange of conditional contracts, Stuart provided a copy of the 1972 lease to the defendants through Mr Honniball. That seems to have been the first specific evidence the defendants had of any particular division in ownership of the land making up Three Gates Farm.
- On either 7 June or 15 June 1999 conditional contracts were exchanged for the purchase of the red land by the defendants for £175,000, the sale being with full title guarantee, but subject to all existing rights of occupancy, if any, of the claimant [2/28A]. The same day, conditional contracts were exchanged for the purchase of the blue land, again by the defendants, for the sum of £75,000. Again, the sale was with full title guarantee, but subject to all existing rights of occupancy, if any, of the claimant [2/28D].
- In the summer of 1999 Mr Crisp took a number of photographs of Three Gates Farm, as it then was. Taking their page numbering from my copy of bundle 1, amongst these photographs it is convenient to note that the cottages may be seen in both the photographs at p.236. Field 3 may be seen in all three photographs at p. 258. Field 28 (viewed looking downhill) may be seen in the upper photograph at p.254, with a closer view of the area immediately adjoining the claimant's mobile home in both photographs on p.248. Field 30, or the approach to it, may be seen (viewed looking uphill) in the lower photograph on p.254.
- On 15 October 1999 Letters of Administration were granted to Stuart in the estate of Edward. In October or November 1999, by a Transfer I have not seen, Stuart, as administrator of the estate of Edward, conveyed the red land to the defendants. It is common ground that at this time and, indeed, throughout 1999, the claimant was in actual occupation of at least field 28, if not all the red land, as he was admittedly resident in a mobile home on field 28 at this time. The photographs at pp.248, 250 and 281(b) show his washing hanging out to dry. On 19 November 1999, the defendants were registered at HMLR as proprietors on first registration of the red land with possessory title only, under title number BM246735 [2/29].
- On 31 January 2000 the claimant was admitted to hospital in London for coronary artery bypass surgery. He had the misfortune to suffer from serious complications, including MRSA and pneumonia, and remained as an inpatient, first in London, and then more locally, for a total of eight weeks, for part of that time in a life-threatening condition. While in hospital the defendants visited him several times, and on one of those occasions Mr Crisp secreted a tape recorder in his pocket and left it running.
- In the event, no steps were taken before trial to have copies made of the tape or to have a transcript of the recording agreed, or, in default of agreement, proved by appropriate evidence. In the absence of such, and having reviewed the sound quality himself overnight, midway through his cross-examination of the claimant, Mr Brett did not, in the end, rely on this tape or seek to use it in cross-examination. I should, therefore, simply note that the very limited passage about this conversation, contained in paragraph 15 of Mr Crisp's witness statement, simply asserts that the claimant:
"…did not claim any ownership of Ted's land, but did for the first time say that he had a Lease of Ted's land which he had not previously mentioned and which he would not at that stage elaborate on",
and that this short passage was not itself challenged in cross-examination of Mr Crisp.
- By the end of this eight-week period, at or about the end of March 2000, I infer that a return to the claimant's mobile home on field 28 was out of the question. He first moved to a convalescent home at Chesham Bois. He asked the defendants to help him transfer his possessions from the mobile home to the convalescent home, and they did so. This included transferring files and records, which they found, into an old van parked outside the convalescent home.
- Although, as Mr Brett realistically accepted, it would not be right to treat the claimant's departure to hospital, for what he then expected to be a relatively short stay, as giving up possession of his then place of residence, i.e. the mobile home and the red land on which it stood, the move to the convalescent home and then the Housing Association flat in the spring of 2000, accompanied by the removal from the mobile home of many of his personal possessions, did amount to giving up possession of the red land. Spring 2000 will, therefore, be a significant date when it comes to considering the claim for the same based on adverse possession. Mr Brett accepts, in paragraph 4 of his supplemental written submissions in closing, that the claimant did not, on the evidence, part with possession of Three Gates Farm until the year 2000.
- At paragraph 44, the claimant's witness statement asserts that in April 2002 Mr Crisp prevented him from entering Three Gates Farm by intercepting him at the locked gates, asserted ownership of the whole farm, told the claimant that he had no right to enter, and threatened physically to eject him if he did. The following month the claimant discovered that the defendants had acquired a registered possessory title to the red land, and by a solicitor's letter, dated 30 May, threatened an application to cancel the same [2/174b].
- It is admitted on the pleadings that on 27 August 2002 the claimant received a telephone call from Mr Crisp requiring him to remove all of his belongings from the farm, and apparently (from the solicitor's letter sent the following day – 2/174e) threatening their removal. The four-month gap between the defendants' exclusion of the claimant, and written demands for vacant possession, in respectively April and August of that year, makes no material difference on the facts of the case.
- On 28 August 2002 the claimant's new solicitors wrote the letter I have just mentioned [2/174e]. In it they claimed that the red land had been left to the claimant in the last will of Edward.
- Between 27 and 29 September 2003, the three children of Hilda (by then deceased) by her first marriage, accepted £5,000 each from Stuart, in fact funded by Mr Crisp, in settlement of all claims via their mother's estate to the estate of Harry. I do not know what, if any, steps were taken in respect of any possible claims of Amy's son William Payne junior, or grand-daughter Sandra. However, they do not appear to have been involved in any of the earlier disputes over who was to take the grant over Harry's estate and, in any event, this would not directly affect the issues on which I have to decide.
- On 14 October 2003 Stuart swore an affidavit prepared by Mr Honniball in support of a grant of Letters of Administration over Harry's estate. Very properly, this fully explained the position as to the 1967 will and its eventual destruction. It also exhibited the releases signed by Hilda's three children in return for the payments I have just mentioned. Regrettably, however, it was silent as to the fact that the deponent had previously signed a Deed of Renunciation. Stuart said he had no idea why the affidavit which Mr Honniball drafted for him said nothing about this, and I accept that as an entirely genuine answer.
- As Stuart was able to give a clear, basic explanation of what he believed to have been the effect of the deed of renunciation which he had signed during his oral evidence, there is no reason to think that he did not do so in his conversations with Mr Honniball. Neither counsel chose directly to ask Mr Honniball why he had not included reference to it. It did not, after all, present a major obstacle to the application. Had the application asserted that it was believed that the document had never been filed, and that Stuart wished to retract it in the changed circumstances since 1983, which were dealt with in the affidavit, the registrar would have re-checked the old file and, having done so, would presumably have accepted the position. Alternatively, the registrar would quite probably have acceded to a request for a direction permitting a retraction, under rule 37(3), again given the changed circumstances.
- However, it is axiomatic that in pursuing an application for a grant from a Probate Registry of the Court, where the Court may well have to act on the word of one party, full disclosure of all relevant known facts should be made and, ultimately, Mr Brett wisely did not seek to justify the omission. However, Mr Brett did stoutly maintain his case that, should it arise, the omission did not mean that his clients were deprived of the statutory protection available to a purchaser who has acted in good faith (see sections 37(1) and 55(1), Administration of Estates Act 1925 ("AEA 1925")). The claimant's suspicion of some wrongdoing or sharp practice, albeit unfounded, which this non-disclosure, once discovered, has fuelled, is but one illustration of why the making of full disclosure in such matters is so important.
- In the event, on 14 November 2003 Stuart did obtain Letters of Administration to Harry's estate, under section 116 of the Supreme Court Act 1981 [2/42A].
- In the late November or December of 2003, by another Transfer, which again I have not seen, Stuart, as Administrator of the estate of Harry, conveyed the blue land to Mr Crisp alone. There is no evidence as to why Miss Craft, who was party to the contract, was not a co-transferee. There also appears to be some minor anomaly over the price paid: the Office Copy Entries suggest £60,000, which may be contrasted with £75,000 (including a 5 per cent deposit) on the contract. However, this too has not been explored in evidence, and neither point appears to matter.
- On 3 March 2004 Mr Crisp was registered at HMLR as sole proprietor on first registration of the blue land with title absolute, under title number BM289280 [2/31].
- On 17 March 2004, the claimant's solicitors wrote mentioning, for the first time, and enclosing a copy of the conveyance of 3 February 1977, albeit with no plan. On 24 March 2004, in a further letter, the claimant's solicitors gave the explanation that their client had not produced the conveyance 18 months earlier because he had "mislaid" it.
- In April 2004, the Channer brothers each made statutory declarations, which later stood as their witness statements in these proceedings.
- On 27 July 2004, in a further letter, the claimant's solicitors wrote thus:
"It is not our intention to make a claim relating to the grant of letters of administration to the estate of Harry Poulton. As you are aware, our Client holds a lease over the property and if a claim is going to be made it will be in accordance with the terms of the lease."
- In late 2004, possibly on into early 2005, the defendants carried out extensive works to renovate the two cottages on parcel 26, the progress of which is depicted in photographs [1/260-65]. The end result was the cottages as they now stand, which again is depicted in photographs [1/266].
- On 18 April 2005, the claimant was registered at HMLR as proprietor on first registration of the green land with title absolute, under title number BM300424 [2/34], over 30 years after he had taken a conveyance of it from James Kiley.
- On 23 June 2005, the claim form in the first action was issued. The Particulars of Claim alleged that all the red land was conveyed to the claimant in 1977, relying in the alternative on the subsequent will made in the same year. Title to the freehold interest in the blue land was put in issue for the first time. On 28 June 2005, the claim form in the probate action was issued, seeking to propound the alleged 1977 will of Edward.
- On 20 July 2005, the Defence and Counterclaim in the first action was served. The Reply and Defence to Counterclaim came on 9 September. On 7 October 2005, the defendants' Part 18 Request for Further Information was served.
- 11 October 2005 is the date which appears on the section 146 notice served by Mr Crisp in respect of the claimant's lease of the blue land [2/52]. It appears that it may have been served on 20 October: see the Particulars of Claim in the forfeiture action [1/61]. Also on 20 October 2005, Mr Crisp served a notice, under section 48 of the Landlord and Tenant Act 1987, giving the name and address for service of the landlord in respect of the blue land [2/54].
- The claimant's response to the Part 18 Request, which is important and, again, to which I shall have to come, was served on 15 December 2005. The claim form in the forfeiture action was issued on 26 January 2006 and the Defence followed on 28 March 2006.
- I now come to: The issues relating to the red land.
(1) The 1997 Conveyance.
(a) Authenticity.
Mr Brett, for the defendants, points to the suspiciously late production of this conveyance, coupled with the absence of its plan. The claimant's explanation in solicitors' correspondence, that the conveyance had been "mislaid", did not fit comfortably with his evidence that it was kept in a marked file or envelope in a filing cabinet, though I strongly suspect that that evidence gave an unduly flattering picture of the state of organisation of documents in his possession. However, Mr Radley's evidence, subject to the usual handwriting experts' qualifications as to the limitation of the materials available to them, is that there is "strong positive evidence" that Edward signed it [1/315].
- I am satisfied that there was a plan attached when the document was first signed; the claimant who prepared it was a reasonably careful man with documents etcetera. I note the comments in Mr Radley's letter about the staple holding together the two pages of the conveyance. However I am not satisfied that the claimant deliberately removed the plan from the conveyance just before it was sent to Mr Radley. I find no sensible reason why he might have done such a thing and the submission is, in reality, founded on a speculation. The document, albeit missing its plan, is authentic.
- (b) Construction.
Mr Brett raises the question of whether the green marking on the missing plan was, in fact, within the pink edged area as the text suggests it should be, with a view to using this as the basis for a submission that the conveyance is void for uncertainty. He raises this on the basis of the manner in which the claimant himself later marked up the plan at 1/198. I refer to Mr Brett's written closing submissions at pages 2 and 3. I am quite satisfied (1) that the likelihood is that the original plan was drawn correctly, in accordance with the text, with the green-edged land being within the pink land, and (2) in any event, that if there had been such a slip in the marking up of the plan, equivalent to the slip made by the claimant when marking up 1/198, that clearly would not have affected the true construction of the parcels clause of the 1977 conveyance. It reads:
"…all that field or enclosure of land of area 15.417 acres … situate on the north eastern side of Arrewig Lane … being numbered 28 on the Ordnance Survey Chart number … and for the purpose of identification only delineated and edged pink in the plan annexed hereto …"
- On that wording it seems to me to be, frankly, beyond doubt that the primary definition of the subject land is provided by the field numbering from the Ordnance Survey chart and by the corresponding acreage. The words "for the purpose of identification only" put it beyond sensible contrary argument that the pink markings on the plan are of lesser definitional significance. This is a convenient moment at which to note that the conveyance goes on to include a reservation to Edward Poulton, during his lifetime, of the free and unhindered use of and access to the area delineated and edged green in the plan annexed and, more particularly, in respect of the asbestos cement building situate within the area edged green. That building may be seen in the upper photographs on 1/281A and 1/281B, and ultimately its location was agreed to be very close to the boundary with plot 26, as marked on the plan at 1/281C. This conveyance never was void for uncertainty, and extends only to field 28.
- (c) Sealing.
Section 52(1) of the Law of Property Act 1925 ("LPA 1925") provides:
"All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed."
The statute contains no definition of a deed, which, therefore, has to be supplied by the common law. In Stromdale & Ball Ltd v Burden [1952] 1 Ch 223 at p.230, Danckwerts J starts by referring to the text on p.7 of the second edition of Norton on Deeds, which was published just three years after the LPA 1925 was enacted. After some description of conventional forms of "sealing" he continues thus:
"But with the spread of education the signature became of importance for the authentification of documents and, since 1925, has become essential, by reason of the provisions of section 73 of the Law of Property Act 1925. Meticulous persons executing a deed may still place their finger on the wax seal or wafer on the document, but it appears to me that, at the present day, if a party signs a document bearing wax or wafer or other indication of a seal, with the intention of executing the document as a deed, that is sufficient adoption or recognition of the seal to amount to due execution as a deed."
118. Gray's Elements of Land Law, at paragraph 7.35, states the position thus:
"In modern times it was inevitable that the archaic mystique of the seal should become the subject of critical scrutiny. Personal signatures had clearly acquired far greater practical significance than the seal in establishing documentary authenticity [a foot note to the passage I have just read]. In 1989 long-standing denigration of the practice of sealing led to the statutory abolition of the redundant formality or "mumbo-jumbo" of the seal."
The source of the word "mumbo-jumbo" is no less than that great master of equity, Lord Wilberforce, speaking in a House of Lords debate. Gray continues:
"There is now no requirement of sealing in respect of deeds executed by an individual on or after 31 July 1990, although seals often continue to be used in practice in order to dignify documents of transfer."
- In First National Securities v Jones [1978] Ch 109, the Court of Appeal famously held that a printed or written circle, particularly if with the letters "LS" within it, would, in modern times, suffice, subject of course to any other relevant circumstances, as a seal for the purposes of execution as a deed. However, for the proposition now advanced by Mr Simon Perhar, who appears on behalf of the claimant, that an instrument may be taken as sealed without any form of addition beyond the inclusion of the word "sealed" in the caption, "signed, sealed and delivered" adjacent to the relevant party's signature, it is only an obiter dictum of Sir David Cairns within the three judgments which goes far enough to support him. Buckley LJ, at 118D-F, put his reasoning thus:
"But it is a very familiar feature nowadays for documents which are intended to be executed as deeds that they do not have any wax, or even wafer, seal attached to them but have printed at the spot where formerly the seal would probably have been placed, a printed circle, which is sometimes hatched and sometimes has the letters "L.S." within it, which is intended to serve the purpose of a seal if the document is delivered as the deed of the party executing it.
In the present case there is not only the circle with the letters "L.S." within it upon the document, printed as part of the printed version of the document, but also there is the feature that the mortgagor has placed his signature across that circle. In my judgment those features and the attestation, in the absence of any contrary evidence, are sufficient evidence to establish that the document was executed by the first defendant as his deed."
- Reginald Goff LJ, at 119C-E, referred to the passage from Danckwerts J which I have quoted as one which:
"… strongly supports the view that an instrument having nothing physically affixed to it but merely indicating where the seal should be is capable of being executed as a deed … In my judgment, in this day and age, we can, and we ought to, hold that a document purporting to be a deed is capable in law of being such although it has no more than an indication of where the seal should be …"
- Sir David Cairns, in a short concurring judgment, firstly agreed with the reasons which had already been given by the two judges from whom I have quoted. He continued thus (at 121A-D) :
"For my part, I would say that even if the first defendant's signature had not been written over the circle containing the letters "L.S.", I should have been prepared to hold that the document was a valid deed … while in 1888 the printed indication of a locus sigilli was regarded as being merely the place where a seal was to be affixed, I have no doubt that it is now regarded by most business people and ordinary members of the public as constituting the seal itself. I am sure that many documents intended by all parties to be deeds are now executed without any further formality than the signature opposite the words "Signed, sealed and delivered" usually in the presence of a witness, and I think it would be lamentable if the validity of documents so executed could be successfully challenged."
- This question was considered further by Sir Nicholas Browne-Wilkinson, then Vice-Chancellor, in TCB v Gray [1986] 1 Ch 621 at p.633G-H. The then Vice-Chancellor said this:
"I was pressed by Mr Reid for TCB with a line of cases culminating in First National Securities v Jones … in which the courts have adopted a benign approach in deciding that a document has been executed as a deed … Yet no case in the High Court has been cited to me in which the court has gone so far as it would be necessary to go in this case, there being nothing to indicate that something amounting to sealing took place beyond the fact that the words of the document refer to its having been sealed. If I were to hold that this document was in fact sealed, I would not only be flying in the face of what actually happened but also disregarding the statutory requirement that the document should be sealed. I think it would be wrong to extend the legal fiction any further and I decline to do so."
(The reference to a statutory requirement of sealing was applicable to the facts of TCB v Gray but is not applicable to this case.)
- In light of the then Vice-Chancellor's judgment in TCB v Gray, it would be wrong for me to fly in the face of what actually happened and treat this document as having been sealed when there is nothing on it to indicate that something amounting to sealing took place beyond the fact of the words of the document, "signed, sealed and delivered". I note in passing that it is also the case that the claimant acknowledged in his evidence, as is apparent from the face of the document, that the conveyance was not stamped, though Mr Brett took no point on that.
- (d) Estoppel.
In response to the citation of Sir David Cairns's dictum in First National Securities v Jones, Sir Nicholas Browne-Wilkinson V-C in TCB v Gray stated, on 634E, that he agreed:
"But for myself I prefer to hold that in the ordinary case a person so executing a deed is subsequently estopped from denying that he has sealed it rather than to find as a fact that something has occurred which we all know has not occurred."
- On the facts of TCB v Gray, reliance by the relevant bank on the fact that the document had been duly executed was simply obvious. However, even there the matter was not dealt with simply by implication. At 634A-C, the then Vice-Chancellor made express reference to the need for reliance, with the conclusion that there was reliance to the bank's detriment on the facts of the case, and thus that:
"The case, therefore, has all the necessary elements of a classic estoppel."
- This passage was first relied on by Mr Perhar in his oral submissions in reply. The Defence in the first action, at paragraph 5, had pleaded in terms:
"In any event the said document is not sealed and is therefore not a deed."
The Reply simply joined issue with that passage. In those circumstances the defendants included within their Request for Further Information this request:
"Is it accepted that the document dated 3rd February 1977 (purporting to convey EP's land to the Claimant) is not sealed?"
The claimant's response read thus:
"It is not accepted the document dated the 3rd February 1977 was not sealed, it is averred that the document is suitably and sufficiently drafted in itself to be sealed and/or a deed, and in particular it contains a signed attestation that it is signed, sealed and delivered."
- There is not a hint of a plea of estoppel. Nor has there been any application before me to amend, in order to add one. Had such an application been made when Mr Perhar first relied upon the point, i.e. in oral submissions in reply, it would almost certainly have to have been refused, as the evidence had already been called and the cross-examination had taken place. Reliance is clearly a necessary part of estoppel. It was obvious on the facts of TCB v Gray, and there perhaps could have been inferred. However it is far from obvious on the facts of this case.
- Snell's Equity, 31st ed., chapter 10 on Estoppel, albeit under the sub-heading Promissory Estoppel, says this, while dealing with change of position (at para. 10-11):
"More recently, the requirement has been stated in terms of reliance by C of such a kind that it would be unjust or inequitable for E to go back on the promise. Reliance may take the form of inaction rather than action and it is sufficient that the representation had a material influence on C's conduct. It has been suggested by Lord Denning that once C has established that a promise was made which was intended to be acted on, there is a presumption that C relied upon it [and the footnote first refers to Brikom Investments v Carr [1979] QB 467, at 483A]. But the better view is that the burden of proving reliance remains on C throughout (although there may be cases in which it is so obvious that it is unnecessary to make an express finding of reliance)."
- There is no hint on the facts that the representation had any material influence on the claimant's conduct. When I pressed Mr Perhar repeatedly as to what he could point to in the evidence as amounting to such reliance, he could only point to the obligations which his client took on by himself entering into the 1977 conveyance. However, when one looks at its terms [2/27-28], the material obligations are purely formal and it would be fanciful to regard entering into them as detrimental reliance.
- On reviewing my own notes of the claimant's evidence I observed that the claimant twice referred to having previously paid rent to Edward for this land. However, there is no documentary or other evidence to support this, and I am absolutely certain that if an estoppel had been pleaded, relying on this as reliance, Mr Brett would have wished to explore the matter in cross-examination and to make submissions about it. Further, to lay alongside this thoroughly inadequate reference to the possibility of the claimant having given up some earlier lease, formal or informal, of the same land upon receiving the conveyance, there is the claimant's express statement in evidence that the document had no practical effect on what he did.
- I conclude that there is no case of estoppel upon which the claimant is entitled to rely, nor which is made out on the facts in any event.
- (e) Conclusion.
The 1977 conveyance is caught by section 52(1), LPA 1925, and was, therefore, ineffective to pass the legal estate or fee simple in field 28 to the claimant.
- (f) In Case The Matter Goes Further.
In case the matter goes further and it is found that, contrary to my judgment, this conveyance was not caught by section 52(1), LPA 1925 and, therefore, was effective to pass a legal title or fee simple of field 28 to the claimant, I should record that it was ultimately common ground that the claimant's interest would, in those circumstances, not be defeated by the defendant's possessory title, first registered under the LRA 1925, for the following reasons:
(i) By reason of the provisions of section 70(1)(f) and (g), LRA 1925. The claimant was in actual occupation of the land throughout 1999 and, in particular, at the time of the Transfer, being the relevant date (see Abbey National v Cann [1991] 1 AC 56 and Lloyd's Bank v Rossett [1989] Ch 350 in the Court of Appeal and [1991] 1 AC 107 in the House of Lords, all as cited in Gray's Elements of Land Law at paragraph 12.180); and
(ii) The registered title was only possessory. Therefore, section 6, LRA 1925 applies. It provides that:
"Where the registered land is a freehold estate, the registration of any person as first proprietor thereof with a possessory title only shall not affect or prejudice the enforcement of any estate, right or interest adverse to or in derogation of the title of the first proprietor, and subsisting or capable of arising at the time of the registration of that proprietor, but, save as aforesaid, shall have the same effect as registration of a person with absolute title."
The position is not materially changed by the LRA 2002, so far as relevant.
- Two further matters may be conveniently noted at this point:
(i) The land was not in an area of compulsory registration in 1977. Compulsory registration was only introduced in respect of the relevant part of Buckinghamshire in or about 1984; and
(ii) It is well established that the fact that an interest in land, such as an unregistered fee simple, could have been protected by other means is no bar to it being protected as an overriding interest (see Ferrishurst Ltd v Wallcite Ltd [1999] Ch 355 at 370E per Robert Walker LJ, as he then was).
- (2) Effect of the 1977 Conveyance, given the provisions of s.52(1) LPA 1925.
Ultimately, the answer to this issue was common ground and runs as follows:
(i) The signing of the 1977 conveyance gave rise to a specifically enforceable contract in favour of the claimant for the purchase of field 28 for the sum of £1.00.
(ii) This falls squarely within the definition of an estate contract under section 2(4) of the Land Charges Act 1972 ("LCA 1972").
(iii) The claimant's interest was not registered under the LCA 1972, whether as a class C(iv) land charge or at all.
(iv) The defendants were "purchasers" of the freehold of field 28 for valuable consideration, within the definition in section 17, LCA 1972 and a fortiori within the definition in section 4(6). Those definitions do not require that the purchaser act in good faith, so no question arises as to the ambit of that phrase.
(v) Section 4(6), LCA 1972 has the effect of making such an unregistered estate contract void against a purchaser for money or money's worth, as the defendants were: see generally, Midland Bank Trust Company v Green [1981] AC 513.
(vi) The question of whether, in these circumstances, the claimant has any valuable right of action for damages against the estate of Edward, which has, of course, been swelled by the receipt of £175,000 from the defendants for the red land, or otherwise (see e.g. Midland Bank Trust Company v Green (No 3) [1982] Ch 529) is not before me, as no such claim is raised on the pleadings.
- (3) Equitable Doctrine of Notice.
There was no evidence that the defendants purchased the red land with actual notice of the 1977 conveyance and/or of the claimant's interest thereunder. Ultimately, notwithstanding some submissions made in opening, both parties agreed that the question of whether the defendants were affected by constructive notice under the traditional equitable doctrine of notice does not arise since, as I have indicated, the question of whether the claimant's interest is binding on the defendants is resolved either (had I found for the claimant on sealing) by section 70(1)(f)(g) LRA 1925, or (on the basis that I have found, namely that the conveyance was caught by section 52(1) LPA 1925) by section 4(6) LCA 1972. I, therefore, need say nothing more about it.
- (4) The 1977 Will
By the probate action the claimant seeks to propound this as the true will of Edward. If he succeeds in that, the relief sought is that I should pronounce for the same in solemn form and revoke the Letters of Administration granted to Stuart in 1999. The claimant's primary interest is entitlement to the red land, though he has a secondary interest in his beneficial entitlement to the residue of the estate, which has now been swelled as aforementioned. At the relevant time in 1977, section 9 of the Wills Act 1837 was in these terms:
"No will shall be valid unless it shall be in writing and executed in manner herein-after mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary."
- This gives rise to a clear-cut question of fact. Before addressing it, it is convenient to note two further points raised by Mr Brett, which are not controversial. First, the mere presence of the testator is not enough; the witnesses must actually see or have the opportunity of seeing the signature or the act of acknowledgment (In the Goods of Gunston, Blake v Blake [1881-5] All ER 870). Second, the witnesses do not need to know that the document is a will.
- So was the 1977 will validly attested? Mr Radley's opinion was that there is "limited positive evidence" that Edward signed the will. In the event, the challenge mounted by the defendants is not to impugn that signature, but as to proper attestation. In approaching the question of fact which that raises, Mr Perhar relies on a long-established principle recently restated by Mr David Donaldson QC sitting as a Deputy High Court Judge in Otuka v Alozie 19 December 2005, unreported. At paragraphs 43 and 44 of the learned Deputy Judge's judgment, he said this:
"43. There was agreement on the approach which the court must adopt in addressing this question, and indeed the law in this regard is well- settled. Where, as here, the will on its face appears to be duly executed there is a presumption in favour of due execution. And that presumption increases in force where (as in the present case) the will contains a clause - known as a "perfect attestation clause" - stating that the signature has been appended in the presence of the subscribing witnesses. As it was put by Lord Penzance in Wright v Rogers, (1869) LR 1 P&D 678 at 682
"The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the execution of a will, and in that light a perfect attestation clause is a most important element of proof."
44. It will be clear from what I have already said that the high standard for rebuttal of the presumption has not been satisfied by the Claimants."
- In this case I have heard oral evidence from both the witnesses whose signatures appeared below the so-called "perfect attestation clause", as well as the only other surviving person who was in the room at the time, the claimant. The claimant says that the will was signed in Edward's cottage around his kitchen table, there being no concealment of the fact that it was a will, Edward signing it in front of the Channers, and the will then being passed across the table to be witnessed by them. However both of the Channers speak of signing it in Harry's cottage, seeing nothing of it being signed by anyone else, signing it themselves with all but the space for their own signatures covered up, and believing it to be something to do with farm business.
- Although David Channer could not recall whether Edward was present or not, it is clear from his evidence that the only other person he saw sign it was his brother, and there has been no suggestion from anyone that Edward acknowledged his signature in their presence. I accept the evidence of the Channers, including as to the cottage in which this signing took place. It was signed by them in Harry's cottage, with all of the document, save for the space for the witness's signatures, covered up.
- Given those and the other circumstances, and given my general approach to the claimant's evidence which I have already explained, I accept Colin Channer's evidence that Edward was not present at all. It follows that the evidence of the Channers is sufficiently clear and cogent to rebut the presumption spoken of by Lord Penzance, and quoted recently by Mr Donaldson, QC.
- In opening, a good deal of attention was directed to the defendants' fall-back position so far as concerned title to the red land, namely section 37(1) AEA 1925. The section operates to protect a purchaser as defined in section 55(1) of the same Act in respect of transactions entered into by an administrator between the grant and revocation of Letters of Administration.
- However, in the event, as must follow from my findings of fact, there is no question of any order for revocation being made. The question of whether or not the defendants so conducted themselves in relation to the purchase of Edward's land as not to be purchasers "in good faith" for the purposes of the AEA 1925 does not, therefore, arise for decision. Suffice it to say that Mr Perhar's argument in that regard did strike me as one which would have been difficult for him to make good in any event.
- (5) Adverse Possession
(a) General Principles
The principal point of reference for these is the decision of the House of Lords in Pye v Graham [2002] UKHL 30, [2003] 1 AC 419. I refer in particular to the speech of Lord Browne-Wilkinson, and to the passages between paragraphs 39 and 42, where he makes clear the two aspects of possession for these purposes, namely, factual possession, and an intention to possess, still commonly referred to, by lawyers at least, by the latin words animus possidendi. It follows from what is said there, that it matters not for the question of intention if the occupier:
(i) Would have paid rent, had he been asked to do so, during the 12 year period: see the facts of Pye itself;
(ii) Believed himself to be a tenant: compare Lodge v Wakefield MBC [1995] 2 EGLR 124; or
(iii) Believed himself already to own it: compare Hughes v Cork [1994] EGCS 25.
As is well known, time stops running if possession is discontinued. The twelve years must be continuous. There is no dispute as to this.
- Finally, I turn back to Lord Browne-Wilkinson's speech in Pye, this time at paragraph 60, where he states that:
"It is true that, from the decision in Powell onwards judges have stressed the commonsense caution to be shown towards self-serving evidence such as that which can be given by a squatter as to his own intention at a past time."
That is an approach which I readily adopt in decision-making on this point.
- (b) A pleading point
Mr Brett drew attention to the familiar provisions of CPR 16.4(1) and 16PD13.1 as to the need for a party to plead its factual case. He submitted that the Further Information under Part 18, in which an alternative claim founded on adverse possession was first intimated by the claimant, did not amount to a "statement of case" for the purposes of the CPR at all, though accepted that was wrong when I drew his attention to CPR 2.3(1). Now, it is true to say that the Further Information was very short on this point. However the defendants chose not to ask for further information about this new alternative plea, not wishing, as Mr Brett frankly accepted, to encourage the claimant to improve the state of his case. Such a forensic approach is legitimate in itself, but it deprives any subsequent complaint of want of particularity in the original pleading of much of its force. When a point was raised in opening as to whether or not the claimants were going to pursue this alternative plea, and if so how, after the first overnight adjournment the claimant put in his very short second witness statement, providing at least some evidence in support of the plea. It is so short that I can quote the relevant passage:
"Ted Poulton died on 16 February 1978. From that date I was the only person with exclusive possession of [the red land]. I farmed the land and it was transparent and visible to all that I was the owner. Mr Stuart Poulton was fully aware of my possession and use of the land. Mr Stuart Poulton knew I was on the land …"
Mr Brett did not renew any pleading objection at that stage. In my judgment the
extremely terse form of the pleading of this alternative point does not operate as a bar to the claimant pursuing his claim in these circumstances. It was pleaded in a statement of case, albeit shortly. It was repeated in the claimant's opening skeleton argument at paragraph 11.6, and it was the subject of the short supplementary witness statement, to which objection was not in itself taken, as I have indicated, filed at the beginning of the second day of the trial, before the oral evidence started.
- The defendants' real point here is that the evidence given by the claimant of acts of possession is very sparse, compared to that encountered in many other cases.
- (c) Edward's cottage and part of plot 26
Mr Brett realistically accepts that the evidence establishes that the claimant resided in Edward's cottage from some time in early 1977. Some time after Edward's death, not more specifically identified, he moved out, into a caravan immediately adjacent to that cottage in its garden. All agree that this move does not make a material difference. As I have previously indicated, the claimant subsequently moved into a mobile home located in field 28; initially his evidence was in 1995, but finally his evidence was in the early 1990s, probably about 1992. However, although plot 26 was becoming increasingly overgrown at this time, I do not find sufficient evidence that the claimant's actual possession of Edward's part of plot 26 was abandoned when he made this further move of residence over a matter of a few metres. The move was, as Mr Brett put it, if anything a case of "expansion".
- Mr Brett falls back on the execution of the 1978 tenancy agreement. This being a written periodic tenancy it is outside the scope of paragraph 5(1) of Schedule 1 to the Limitation Act 1980 (and the equivalent provisions in its predecessor Act of 1939), and within the scope of paragraphs 4(1) and 8 of the same Schedule (which again reflect equivalent provisions in the 1939 Act). Paragraph 4 provides that:
"The right of action to recover any land shall, in a case where-
(a) the estate or interest claimed was an estate or interest in reversion or remainder or any other future estate or interest …
be treated as having accrued on the date on which the estate or interest fell into possession by the determination of the preceding estate or interest."
- Although the claimant said in evidence that the 1978 Tenancy Agreement was not implemented, it was undoubtedly signed, and I find it impossible to infer on that evidence from the claimant alone that the parties to it had no intention to create legal relations. The fact that the rent remained unpaid for the short period of six weeks prior to Edward's death, for which I in any event only have the claimant's uncorroborated evidence of recollection, does not deprive the document of legal force. Nor does the non-payment of rent in itself stop time running under the Limitation Act (see Halsbury's Laws of England, 4th edition, volume 28, Limitation of Actions (1997 Re-issue) at paragraphs 956, 961 and 984).
- Thus, the crucial question is whether the contractual tenancy created by the 1978 tenancy agreement, and the statutory tenancy that arose by virtue of Rent Act protection for such a periodic tenancy of a dwelling at a rent of £16 a week, which the parties agree was not a "low rent" within the statutory definition, determined no later than 1988, such that twelve years' adverse possession could then run consistently with the provisions of Schedule 1 of the Limitation Act 1980 (and its 1939 predecessor) before the claimant went out of possession in 2000.
- As Mr Brett points out, none of the conventional methods of termination arise on the facts. There was no surrender of any form, no notice to quit on either side, and so forth. In his client's extremity in answering these powerful submissions, Mr Perhar plucks from obscurity a single sentence from Hill & Redman's Law of Landlord and Tenant (loose-leaf edition), paragraph 8486:
"Where rent accruing under a yearly tenancy has not been paid for a long time, a presumption that the tenancy has been determined arises."
- The footnote is to Stagg v Wyatt [1838] 2 The Jurist 892. A short examination of the report of that case shows that it clearly does not go as far as the summary in Hill & Redman suggests. I accept much of the general thrust of Mr Brett's written further submissions as to this case.
- At most, Stagg v Wyatt demonstrates that, where the facts justify it, it may be legally justifiable to presume a determination of the tenancy, which strikes me as little more than the equivalent of, in modern language, inferring an implied surrender. Given the claimant's continued residence in the cottage, or a caravan in its garden, until well after 1988 this is not something I would be willing to presume or to infer on the present facts in any event.
- It follows that the claim to title by adverse possession of Edward's part of plot 26 does not get off the ground, in light of the 1978 tenancy agreement and the terms of paragraphs 4 and 8 of Schedule 1 to the Limitation Act 1980 (and the predecessor provisions in the 1939 Act).
- (d) Field 28
As preliminary matters, I should mention, in the context of field 28, that:
(i) One of the gates, though in some disrepair, was closed, and another gateway was left simply open. Mr Perhar draws attention to the dictum in the seminal judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 471 about the Court's approach to "open land". However here the boundaries of field 28 were quite adequately defined, notwithstanding the open gateway.
(ii) Mr Brett gently argued that it would be possible for me to come to different conclusions as to possession of different areas within field 28, in particular arguing for a distinction to be drawn between the land on either side of the public footpath. I find that to be unrealistic. There was no form of internal division, and nothing to indicate differing uses, let alone different users or occupiers. My findings will apply to the whole of field 28 as one unit.
(iii) Mr Brett submitted that the initial answer given by the claimant to Mr Crisp at their very first meeting, which I shall deal with under the heading 'estoppel' below, negated an intention to possess the land or animus possidendi. Given the nature of the intention required as a matter of law, with which I have already dealt, I cannot accept that submission. In any event, there are other factual objections to it, which again will be dealt with when I get to the issue of estoppel.
- Turning to the main issue, Mr Brett forcefully argued that the quality of evidence adduced by the claimant is simply not good enough to make out a case for adverse possession, especially given the approach endorsed by Lord Browne-Wilkinson in paragraph 60 of Pye, cited above.
- I have anxiously considered that submission, as it is undoubtedly the case that the claimant's evidence is much thinner than that reflected in many of the reported cases. Mr Perhar answers with the point that, with work by the Channers up to December 1977 established, and the terms of the report of Dr Smith of April 1991 [1/208], there is independent corroboration for the claimant's evidence on this point.
- Further, he makes the point that, on the facts of this case, there is simply no other candidate for having been in possession of any part of the red land between Edward's death and the year 2000. The paper owner was dead. His estate was unadministered, and his only living relative did not even visit. I see force in that point. It is inherently less likely that land would go out of anyone's possession, than it is that it would change from the possession of one to the possession of another.
- I must not allow my displeasure at the rather casual manner in which the claimant has set about proving his adverse possession case to cause me to refuse to make a finding of fact which is otherwise as a matter of conscience justified, even after applying what I will call the Lord Browne-Wilkinson approach, in effect, to punish the claimant. I am satisfied, bearing in mind the appropriate approach, what I have said about the claimant's own evidence, and the independent evidence available, that the claimant was in possession, in both the factual and the mental sense, of field 28 from 1978 to 2000. Adapting what was famously said in another context (giving leave to amend), courts do not exist for the sake of imposing discipline, but for the purpose of doing justice on the evidence which is available.
- (e) Conclusion
There is no dispute between the parties that any interest in the red land which does arise under the Limitation Acts by adverse possession in the claimant's favour is effective as against the defendants' registered possessory title, given :
(i) the provisions of section 6, LRA 1925 which I have quoted above;
(ii) the provisions of section 70(1)(f) and (g) of the same Act; and
(iii) the availability of rectification of the register under both LRA 1925 and LRA 2002 in order to give effect to such an overriding interest.
The result is that the claim to title by adverse possession fails in respect of Edward's half of plot 26, but succeeds in respect of field 28.
- (6) Estoppel
(a) General principles
Mr Brett accepts that the relevant established principles of law include that a representation must be clear and unambiguous, and that it must be reasonable in all the circumstances for the defendants to have relied on it as they did, but emphasises that the underlying purpose of all the established principles is to prevent the estopped party from acting unconscionably.
- (b) The defendants' case
Mr Brett in his closing written submissions at page 16 relies on representations (and I quote):
"(a) That the claimant held a lease in relation to Three Gates Farm and that he did not know who owned the land … and,
(b) That he was looking out for the land …
Taken together these statements amount to a clear and unequivocal representation to the effect that the claimant had no freehold interest in any of the land at Three Gates Farm, and no intention to possess the land to the exclusion of the paper owner."
- (c) The position on the facts
In my judgment, applying the uncontroversial principles I have mentioned, the plea of estoppel in relation to the red land fails on the facts. Mr Crisp's oral evidence as to when the claimant mentioned the existence of a lease to him was not internally consistent at all points, as at an early stage of his oral examination-in-chief he appeared to be saying that it had come up in his very first conversation at the site with the claimant. His witness statement overstated the extent of his exchanges with the claimant. However, looking at Mr Crisp's oral evidence as a whole, and largely accepting it, my findings are these:
(i) In his very first conversation on the site with the claimant, the one relevant question he asked was, "Who owns this?" or words to that effect. The answer he received from the claimant was that he was "looking after the land", or words to that effect. As Mr Crisp said in terms at one point in his evidence, beyond that exchange or comment the question of ownership did not otherwise come up in their first conversation. There was nothing about that very limited exchange to draw any distinction between the different parts of the land, now so familiar to those involved with this case as 'the red land' and 'the blue land', or as Harry's land and Edward's land, and Mr Crisp took the comment, as he had to, as relating to the whole of Three Gates Farm. It may be that it was also in that first conversation that the claimant said that he had been there "for decades".
(ii) Mr Crisp visited the land and spoke to the claimant on a further three or so occasions prior to the invitation to Sunday lunch on 9 May 1999. Mr Crisp's recollection was that the claimant told him of the alleged existence of a lease in the claimant's favour before that Sunday lunch, and I am inclined to accept that evidence, as it ties in with other matters. Thus, he must have heard of it from the claimant in one of those intervening visits and conversations, after his first visit, but before the Sunday lunch. When the claimant mentioned it, he did not differentiate between different areas of the land, and Mr Crisp only found out that the 1972 lease related to particular parts, but not the whole, of the land, when Stuart provided him with a copy of it in or about early June 1999, before the exchange of contracts.
(iii) Another thing that came up in one of these intervening conversations, and logically it would have been when the lease was mentioned, was that a continuing unadministered intestacy of the landlord had caused the claimant difficulties over the years, and that there was one living relative somewhere on the South Coast. Mr Crisp chose to ask the claimant nothing further about that, but used his contact with a local farmer, a Mr Brown, to obtain the name of Stuart Poulton, and possibly also an approximate location of Hove. With that name the search did not take Mr Crisp long, as Directory Enquiries came up with three listings for Poulton in the relevant area, and the second number which Mr Crisp tried was Stuart's. I note that the first meeting with Stuart attended by the defendants and Mr Honniball took place on 24 May, and that this fits in with my findings. In one of their conversations the claimant mentioned to Mr Crisp that two brothers had previously lived on and farmed the land, though he did not give their name.
(iv) Although Mr Crisp had obtained the name Poulton for the brothers, and for their surviving relative on the South Coast, from Mr Brown, as I have already noted, Mr Crisp chose not to mention this in his next or any subsequent conversation with the claimant. This is a clear, early example of the defendants' wary approach to their dealings with the claimant, which can perhaps best be described as 'playing their cards close to their chest'. When asked in cross-examination why he had not mentioned it, Mr Crisp could only answer that he "just didn't"; an answer accompanied by a slightly embarrassed laugh and a shrug of his shoulders.
(v) After the defendants found out from Stuart's copy of the 1972 lease in early June 1999 that it extended only to the blue land, they made no further inquiry of the claimant before proceeding to an exchange of 2 conditional contracts with Stuart, and in due course taking a Transfer of the red land towards the end of 1999.
- (d) Conclusions
My conclusions are as follows:
(i) As a matter of strict logic, it could be said that the one relevant question and answer which I have held to have been spoken at the first meeting gave rise, at that stage, to an implied representation by the claimant that he did not himself own any of the land, but that would be equally applicable to either freehold or long-leasehold ownership. Had matters stopped there, I would have held it unreasonable for the defendants to rely on that one question and answer, in what would have appeared to be an entirely casual discussion between people who had only just met, as the basis for entering into a £250,0000 property transaction, without clarifying or confirming matters any further. Looking at it from the claimant's point of view, the claimant could not reasonably have expected Mr Crisp to do any such thing in reliance on that single question and answer.
(ii) In any event, things did not stop there. Once the claimant said something about a lease, it should have been immediately apparent that any such implied representation from that single question and answer at the first meeting could no longer safely be relied on. Furthermore, at this stage there was still no reference to differentiation between different parts of Three Gates Farm. Mr Crisp took what was being said, as he had to, as applicable to the whole. Further, the references to a lease were accompanied by an indication that the identity of the owner of the related freehold reversion was not known.
(iii) The defendants gained further information about the position before they exchanged contracts in June 1999. They learned that there existed at least one long lease, the 1972 lease, which covered only part of the land. This again demonstrated that the previous conversations with the claimant could not safely be relied on as having referred, as they may have appeared to at the time, to the whole of Three Gates Farm.
(iv) At no stage in 1999 did the claimant make any representation, beyond whatever was implicit in the original single question and answer, as to the freehold ownership of the red land, and that is the true subject matter of the alleged estoppel.
(v) By the time of the exchange of contracts there was no clear or unequivocal representation by the claimant, whether expressed or implied, which could reasonably have been relied on by the defendants with regard to the ownership of the red land.
(vi) On the facts as I have found them, the defendants' plea of estoppel fails. They took a calculated risk in exchanging contracts on the terms they did, and chose, as they were perfectly entitled to do, to play their cards close to their chest in their dealings with the claimant.
- The issues relating to the blue land
(7) Harry's Estate
First, it is convenient to recall that there is not, and never has been, any pleaded claim by the claimant for revocation of the grant to Stuart of Letters of Administration over the estate of Harry. As the question of the claimant's locus standi to do so was canvassed in opening, I will say just this. Such an application is generally made by a party who would also seek to take a fresh grant. Technically, it appears that a creditor of an estate (and I am not to be taken as assuming that is the claimant's true position) may make such an application, Williams, Mortimer and Sunnucks op cit at p.37, although the circumstances of the one case there cited as an example, Re French [1910] P 169, are completely different from the present case. In the absence of any application to revoke the grant, the provisions of s.37(1) AEA 1925, briefly discussed above in the context of the red land, are irrelevant here.
- However, had Mr Perhar sought to pursue, as he appeared in opening to be contemplating, some other legal ground of invalidating the grant, founded on non-disclosure in the supporting affidavit, it appears to me that the provisions of s.204(1) LPA 1925 would have represented a formidable obstacle in his way. In the event, discretion proved the better part of valour, and Mr Perhar made no such attempt.
- (8) Grounds for forfeiture
The validity of the 1972 lease being common ground, the principal argument here has been in relation to Mr Crisp's claim to forfeit the same. It is convenient to deal first with the claim to forfeit for (alleged) denial of title in the claimant's pleadings, and then separately with the claim to forfeit on the grounds of non-payment of rent and other breaches of covenant. Although the claim for forfeiture was brought in separate proceedings, commenced in January 2006, after the money counterclaim in the first action, it has not been suggested that prior service of that counter-claim in any way bars the forfeiture action.
- (i) Denial of title
To quote Arden LJ in the case of Abidogun v Frolan Health Care [2001] EWCA Civ 1821, [2002] L&TR 275, "this subject is arcane and complex". In those circumstances I have the good fortune to be able to take the current law from two decisions of the Court of Appeal.
(1) The ratio of Warner v Sampson [1959] 1 QB 297 (I phrase it thus, since the observations of Lord Denning in his judgment in that case to the effect that denial of title should be treated as defunct are clearly obiter dicta and inconsistent with both that decision and the decision in Abidogun and,
(2) Abidogun v Frolan Health Care, to which I have just given the reference.
There are also two helpful decisions at first instance, of Mr Thomas Morrison QC and of Lindsay J, which are dealt with in Abidogun. I shall not take time to rehearse that which is clearly set out in those two judgments of the Court of Appeal, which I have read and considered.
- Three possible tests for what constitutes a denial of title are supported by the authorities I have been shown. The first two are taken from the judgment of Tindal CJ, quoted by Hodson LJ in the Warner case at p.318, which dates back to 1840: Doe d. Williams and Jeffrey v Cooper 1 Scot NR 36. They are: (1) setting up title of a rival claimant, and (2) asserting a claim of ownership in himself. The third and more modern test is put it in terms of the ordinary law of contract, and the test thus formulated would be (3) has the tenant repudiated the relationship of landlord and tenant by clearly and unambiguously demonstrating that he will no longer be bound by it? (see Abidogun at para. 15).
- In the context of that modern, contractual test, it should be noted that a party to a contract may, on occasion, act or threaten to act in a particular way because he is mistaken in good faith as to the true contractual position, but will not, without more, thereby be taken to have repudiated the contract, particularly if he makes it clear by his words and actions that he is ready and willing to abide by his true contractual obligations as determined (if it comes to it) by the Court, or on occasion an arbitrator: see the decision of the House of Lords in Woodar v Wimpey [1981] WLR 277, and of the High Court of Australia in DTR Nominees v Mona Homes (1978) 138 CLR 423. I also note that in Abidogun, para. 23, the following submission is cited by Arden LJ with apparent approval:
"… the tenant can properly put forward questions in good faith for the decision of the Court, as Lindsay J had held, and here, in this case, there was nothing to suggest that Frolan would persist in its denial if the court decided issues against it."
- The critical question in the present case is whether the paragraphs in the two pleadings relied on satisfy any of the foregoing three tests. In my judgment they do not do so. In paragraph 2 of the Reply in the first action it is stated:
"It is noted in paragraph 1. of the Defence that the Defendant's admit the Claimant's right to possession of HP's land and therefore it is averred the Defendants' entry and use of that land without the Claimant's consent amounts to trespass. Further it is denied that the Defendants are or can be freehold owners of both EP's and HP's land as alleged or at all, the former being vested in the Claimant, the latter as issue is taken with the conveyance to the First Defendant as set out hereinbelow."
- The latter reference includes paragraphs 8, 9 and 11 which read thus:
"8. Save that it is denied that Stuart Poulton had an interest in Three Gates Farm and that such conveyance was capable of passing any interest in the same to the Defendants, no admission is made as to paragraphs 9. and 10. of the Defence, the matters being outside the Claimant's knowledge and the Defendants are put to strict proof of the same.
9. It is averred that the Stuart Poulton had not and still has not applied for a grant of representation in respect of HP's estate and had previously signed a deed renouncing any right to apply for such.
11. It is admitted that there was a transfer of the freehold interest in HP's land as set out in paragraph 14. of the Defence, it is denied that the said transfer was valid. Paragraphs 8. and 9. hereinabove are repeated."
- Similarly, in the Defence to the forfeiture action paragraphs 3 to 5 read thus:
"3. Save that it is admitted that a lease was entered into on 23rd March 1972 Paragraphs 2 to 4 of the Particulars of Claim are not admitted. The Claimant is not the Defendant's landlord under this lease. The Defendant repeats his entitlement to the Premises as set out in paragraph 3 of the Particulars of Claim ...
4. Save that it is denied that the Claimant has any interest in the lease at exhibit 2 Paragraphs 5 and 6 of the Particulars of Claim are not denied.
5. Paragraph 7 of the Particulars of Claim is denied. It is denied that the Claimant is the Defendant's Landlord and, whether the Claimant is the Defendant's Landlord or not it is denied that the Defendant is in breach of the covenants of his lease as alleged or at all."
- Those passages do not expressly satisfy any of the above three tests. The question is therefore whether they do so by necessary implication, or, as it is put, indirectly. I note that a similar issue was considered on the facts of Warner v Sampson in the judgments of Lord Denning at p.311, and Hodson LJ at p.319.
- When pressed, the only way in which Mr Brett could formulate an argument that these passages set up the title of a rival claimant was to submit that, if the denial on the pleading succeeded, and in the absence of any other candidate, the freehold reversion would be an asset of an unadministered intestate estate, and hence vested in the President of the Family Division. He, indeed, is a most improbable rival claimant in the context of the doctrine Mr Brett seeks to invoke, although this, logically, could be the ultimate legal consequence of a bare denial coupled with a failure by the putative landlord to adduce any acceptable evidence to establish his freehold interest.
- The claimant did not, in the event, assert any title in himself, though Mr Perhar was playing with fire when in his oral opening submissions he toyed with the possibility of running adverse possession in relation to the blue land. Fortunately for his client, no such claim ever made its way into a pleading, nor, ultimately, was pursued before me.
- There is nothing in the passages from the pleadings from which I have quoted that suggests to me, reverting to the more modern formulation of the test, that the claimant is indicating by necessary implication a repudiation of the relationship of landlord and tenant, and unequivocally demonstrating that he is no longer prepared to be bound by it. On the contrary, the passages are drafted on the basis that he is a tenant, and is simply questioning the true identity of his correct landlord to the extent I have quoted. The claim to forfeit for denial of title fails.
- (ii) Breach of Covenant
Mr Crisp is entitled to rely on breaches going back before the date on which he acquired title from Stuart, by virtue of s.141(1) LPA 1925, as to which see Woodfall, Landlord and Tenant (loose-leaf edition), at paragraph 16.043.
(a) Non-payment of rent
- Two preliminary points arise as to the period for which rent is recoverable, and the rate at which it is payable.
- As for the first, s.19 of the Limitation Act 1980 suggests that only arrears of rent which accrued due within six years before the service of (in this case) the counter-claim, which was on 20 July 2005, are recoverable. However Mr Brett ingeniously seeks to turn the claimant's reliance on the absence of a notice under section 48 of the Landlord and Tenant Act 1987 to his client's advantage. He submitted that, by virtue of the service of that notice, the rent in this case is to be treated, and he emphasises the statutory words "for all purposes", as not being due until 20 October 2005. Thus, he submits, none of the arrears of rent claimed in the action, which go right back to 1972, are statute barred. (See further section C of his opening skeleton argument, at p.6).
- It is convenient here to note, as I have ascertained for myself, that the case of Dallhold Estates v Lindsay Trading [1994] 1 EGLR 93 CA establishes, first, that s.48 applies to an agricultural holding which includes a dwelling house, and, second, that s.48 does not itself destroy the right to claim rent due before the service of the notice which it requires (see at 97A-B and J).
- If s.48 is read literally there is some force in Mr Brett's submission, particularly given the inclusion of the words "for all purposes". The point has been shortly argued before me without citation from either Hansard, under Pepper v Hart [1993] AC 593, or the report of the Nugee Committee. However, in my judgment a purposive approach to the construction of s.48 is appropriate to avoid what would otherwise be a considerable hardship to tenants, taking away protection hitherto offered by s.19, Limitation Act 1980. In Hussain v Singh, a correct reference to which is [1993] 2 EGLR 70, Beldam LJ giving, in effect, the judgment of the court, said this (at 71D-E and 71J-K):
"The 1987 Act was intended as a sequel to the Landlord and Tenant Act 1985, with the object of improving the position of tenants by ensuring that proper and full information of the identity of the landlord together with an appropriate address was available should it prove necessary to serve any notices on him - being in part intended to implement the recommendations of the Nugee Committee … In my view it is clear that the provisions of Part II of the Act were intended to be a sanction to persuade the landlord to comply with the provision of subsection (1) - it being a very easy matter for a landlord to give the requisite notice and the rent which he was prevented from recovering until such a notice had been given would then once more be treated as being due."
- It would be most undesirable that I should construe an enactment intended to improve the position of tenants, and to apply a persuasive sanction to landlords, in such a way as to expose tenants to a potentially indefinite liability to pay arrears of rent, from which they were previously protected by s.19, Limitation Act 1980. Looking closely at the words of s.48 I do not find it necessary to do so. I construe the words "otherwise due from the tenant to the landlord" in s.48(2) as excluding from its operation arrears no longer recoverable by virtue of s.19, Limitation Act 1980.
- The second preliminary point is the quantum of the arrears of rent. Although the rent payable was initially £500 per annum, having considered further the terms of the 1972 lease it appears that the rent fell automatically, with effect from 26 March 1975, by virtue of the inclusion of the words "subject to the provisions of section [sic] 6 hereafter" in clause 1 of the Lease, and of the terms of clause 6 itself which reads:
"It is hereby agreed that from and after the date of the twenty-sixth day of March 1975 the rent for all of Field No.3 owned by the Landlord shall be determined on the same pro-rata basis per acre as the rent for the whole Field No.30 and that the items of equipment described in the Second Schedule shall be returned to the Landlord on that date or retained by the Tenant on terms to be then agreed between them."
- By reference to the acreages set out in the First Schedule, I calculate the annual rent per acre for field 30 as £12.96 and thus the new reduced annual rent for field 3 on "the same pro rata basis per acre" at £44.92. Thus from 26 March 1975 the aggregate annual rent fell from £500 to £256.92. On the 24 contractual quarter days prior to 20 July 2005, and thus not barred by s.19, Limitation Act 1980, rent accrued due at that rate, amounting in aggregate to six times £256.92 p.a., i.e. £1541.52.
- Since 20 July 2005 another four contractual quarter days have passed, giving rise to an additional liability of £256.92. Accrued arrears of rent up to and including those payable on 26 June 2006 are thus £1,798.44.
- (b) Other breaches of covenant
Mr Crisp has not ultimately relied on alleged breaches of the repairing covenant, nor of the obligation personally to reside in the farmhouse. As Mr Brett correctly indicated, in the unusual factual situation these claims would have given rise to questions of peculiar complexity, as if there were not enough of those in this case in any event.
- The relevant covenants are thus those for good husbandry, at clause 2(4), and against sub-letting, at clause 2(7). On the facts here there can be no serious case that field 3 has been maintained in accordance with the former covenant. Leaving substantial piles of wood to disappear over an inevitably lengthy period of time, simply by rotting away, could not on any definition amount to good husbandry.
- There has actually been very little evidence with regard to field 30, the other relevant field for these purposes, one way or the other. The position in respect of the set-aside scheme is wholly uncertain. No documents have been produced by the claimant. Neither party has made reference to any of the provisions of the scheme. I note in Halsbury's Laws, 4th edition, volume 1(2), Agriculture (1990 Reissue) at para. 338, that the scheme itself prima facie includes requirements for obtaining the prior approval of set-aside arrangements, where land is subject to an agricultural tenancy.
- I decline on this limited evidence of fact, and absent any citation of the relevant statutory materials, to make the ruling which Mr Brett invited me to make in relation to field 30, namely that any use of the set-aside scheme by an agricultural tenant would necessarily involve breach of a good husbandry covenant. It is not necessary for me to do so in this case, and I note that such a ruling would potentially be of wide-ranging effect. In any event, breach of the good husbandry covenant is clearly established, at least in respect of field 3. That being the case, it will be up to Mr Crisp to seek to establish any additional loss in respect of field 30, if he can do so, on the assessment of damages to which the defendants are entitled (on their counterclaim in the first action) in any event.
- So far as the covenant against sub-letting is concerned, there was clearly a past breach, again in respect of field 3, in the form of the sub-letting to a Mr Matt Rand Wolf, who was the person directly responsible for the deposits of wood which I have mentioned. The offending deposits of wood have now been removed, albeit after some expenditure to that end on the defendants' part.
- (9) Relief from forfeiture
(i) Relief from forfeiture for denial of title
I fear that I should deal with this too, if briefly, in case I am wrong as to whether any denial of title occurred at all. Although the judgments of the Court of Appeal in Abidogun established the applicability of s.146, LPA 1925, and hence the jurisdiction to grant relief, on its facts the Court of Appeal did not have to consider how the general approach to relief from forfeiture might be applied in this particular and obscure context. I therefore rely on the general principles set out in Woodfall op cit paras. 17.165 -17.167, and 17.169.
- Subject to the question of terms, I would have been inclined to grant relief in respect of this ground. The serving of a pleading is a deliberate act. However, the matter raised in the claimant's pleading was raised in good faith in the circumstances I have mentioned, and, insofar as it was ill-thought out in legal terms, it must be taken to have been a mistake or poor judgment on the part of the claimant's lawyers to include it in precisely the terms they did (this all assumes I was wrong under the earlier issue). The defendants have suffered no lasting damage as a result, nor do they require any compensation, save in respect of costs. There is no reason to think that the denial would be repeated after judgment in these actions. The loss to the claimant of the benefit of a 99-year lease is out of all proportion to any notional disadvantage suffered by the defendants.
- However, the terms on which such relief should be granted would in my judgment have been that the claimant pay Mr Crisp's costs of the forfeiture action assessed on the standard basis, for, on this premise, that action would have succeeded in respect of all live heads. This is something which, on the claimant's own case, he cannot do, and accordingly my conclusions below in relation to relief from forfeiture on the other grounds (where I shall apply the decision of Arden J, as she then was, in Inntrepreneur v Langton [2000] 1 EGLR 34, herself citing and applying the judgment of Sir John Pennycuick in Barton Thompson v Stapling Machines Company [1966] Ch 499), would equally apply here. So, by reason of the claimant's admitted inability, as things stand, to make any financial payment to the defendants within a time (which would have to be specified by the court) within the reasonably near future, I should have felt obliged to refuse the relief which I would otherwise have granted on the terms I have indicated.
(ii) Relief from Forfeiture - Breach of Covenant
- A section 146 notice was served in this case, and no point has been taken as to its form or content.
- (a) Non-payment of rent
For the relevant principles see Woodfall op cit at paras. 17.178 to 17.185. The amount of the arrears is £1,798.44. It is an invariable term of relief in respect of arrears of rent that, to quote Woodfall at para. 17.180:
"… the arrears, if not already available to the lessor, shall be paid within a time specified by the court. If the tenant cannot pay the arrears relief may be refused. It appears that there must be evidence before the court that the rent will definitely be paid rather than that it may be repayable in the future and that there is no discretion otherwise to grant relief (Footnote 7, citing Inntrepreneur v Langton). The tenant will normally also have to pay the landlord's costs."
The relevant passages from the judgment of Arden J in Inntrepreneur v Langton, the reference to which I have already given, may be found at 36G-H, 38B-D and 38F.
- (b) Breaches of the covenants for good husbandry and against sub-letting
Compensation for loss in respect of such breaches arises in respect of field 3 in both cases, and might arise in respect of field 30 too with regard to good husbandry. The relevant principles may be found in Woodfall op cit paras. 17.156-17.165 and 17.169. The description of the works which have had to be done by the defendants is set out in Mr Crisp's witness statement, para. 19 [1/228-9]. The counter-claim estimates an aggregate cost of £10,000 (para. 37(a), at 1/26). Subject to an assessment of how much of the £10,000 is recoverable, the terms of relief would require the payment of such compensation, again within a fixed and reasonably short period of time to be specified by the Court.
- As to the prospects of future compliance, there is no reason to expect further sub-letting of field 3. As to the farming of field 30, the claimant expressed the desire to resume using agricultural contractors to do the work, provided he could farm field 28 with it so that the activity would be economically viable. He has established title to field 28 by adverse possession, in the first action. Given his track record, his age, and his medical condition, his assertion of a desire to resume farming nevertheless causes me no little scepticism. However, given the claimant's impossible position with regard to relief flowing from his inability to make the payments which would be conditions of any grant of the same, I do not have to decide this point. For completeness, I should also simply note the absence of any proposals from the claimant for future compliance with the good husbandry covenant in respect of field 3.
- (c) Costs
I have yet to hear applications in respect of costs. However, for the purposes of considering the terms for relief from forfeiture, my provisional view is, and I shall proceed on the assumption that, the defendants having lost the forfeiture action so far as denial of title is concerned, but having won it on other grounds, would end up with only a modest net entitlement to costs in respect of it.
- As to his client's ability to commit to paying any sums within a fixed and relatively short period of time as a condition of relief from forfeiture, Mr Perhar had no alternative but to concede that his client currently had no funds to enable him to do so. The fact that he may be able to do so if and when, as the phrase goes, "his ship comes in" and he settles or wins the action against Mr Stephens (which he has apparently so far declined to settle, in the face of an offer of £60,000), is nothing to the point: see per Arden J in Inntrepreneur v Langton.
- So, the end result is that, in respect of the 1972 lease of the blue land, applying the principled approach of Pennycuick J and Arden J in the cases I have mentioned, for want of the ability on the claimant's part to demonstrate that he could pay the comparatively modest sums of (a) £1,798.44 rent arrears, (b) compensation for putting right the breaches of covenant in respect of field 3, and, if any, field 30 (being part, but by no means all, of the sum estimated by the defendants at £10,000), and (c) whatever proportion of the defendants' relevant costs of the forfeiture action I award them in due course, I have no alternative but to refuse relief from forfeiture. If ever there was a case of spoiling a ship for a ha'path of tar, this must be it.
- If I am wrong on the denial of title point, the same would then also be true in respect of Mr Crisp's entire costs of the forfeiture action.
(10) The monetary claims and cross-claims within the first action
- So far as the counter-claim is concerned, this has effectively been dealt with under the two previous issues. Mr Crisp is entitled to a judgment for £1,798.44 arrears of rent, and to an inquiry as to damages with regards to his recoverable losses for breaches of the covenant of good husbandry (which will relate to field 3 and, so far as he can prove it, field 30), and for breach of the covenant against sub-letting (which will relate to field 3 alone).
- As to the claim, there is no suggestion put forward by Mr Perhar that any real loss has been occasioned to the claimant by reason of such trespass as the defendants have committed on field 28. All the evidence suggests to me that there is no substantive loss there. Accordingly, I propose to award the claimant nominal damages for trespass in the sum of £50.
- Overall conclusion
In conclusion, therefore:
(1) In the first action, on the claim I propose to declare (a) that by reason of the provisions of s.52(1) LPA 1925, the 1977 conveyance was void for the purpose of conveying or creating a legal estate, and (b) that the claimant's interest in the specifically enforceable contract thereby created is void against the defendants and their registered title by virtue of the provisions of s.4(6) LCA 1972. I propose to make no separate declaration in this action with regard to the will, as the matter will be adequately covered by the order I propose to make in the probate action. I propose to declare that the claimant has acquired freehold title to field 28 by adverse possession, and that the same constitutes an over-riding interest in respect of title BM246735, and to order rectification of the register in respect of that title so as to create a separate title in respect of field 28, and to show the claimant as the registered proprietor thereof. I have awarded him nominal damages of £50 for trespass. On the counter-claim there will be the money judgment for arrears of rent and the inquiry as to damages which I have just mentioned.
(2) The forfeiture action succeeds on the grounds of non-payment of rent and breaches of the covenants for good husbandry and against sub-letting. Relief from forfeiture on those grounds is refused. The further claim for forfeiture based on denial of title fails. In view of the responsible and helpful approach of the defendants in not pressing any claim in respect of the repairing covenants and the covenant for personal residence, I am prepared to make no separate order in respect of those claims.
(3) The probate action will be dismissed, with the Court pronouncing against the validity of the 1977 will.
