Tuesday, 21st December, 1993
LORD JUSTICE DILLON: This is an appeal by the defendant in this action Mr Robert Joseph Moss against the order made by the learned judge Mr Colin Rimer QC sitting as a Deputy Judge of the High Court in the Chancery Division. The learned judge, in fact, delivered two judgments after the trial of the action. The first was judgment delivered on Friday, 16th October 1992 by way of reserved judgment after a trial which had taken place between 2nd and the 7th October. In that judgment the learned judge, as he said at the beginning of the second judgment, found as a fact that in the course of a conversation between the Plaintiff Mr David Morris Hunter and the Defendant/Appellant Mr Moss in early September 1986 Mr Moss declared himself to be a trustee for Mr Hunter of 5% of the issued share capital of a company called Moss Electrical Company Limited which has been referred to in the judgments and the other documents as MEL. Having reached that conclusion, by his order made on that date the learned judge declared that Mr Moss had held fifty shares out of the total of one-thousand issued shares in MEL on an express oral trust for Mr Hunter and that such shares were converted into the equivalent proportion of the consideration received by Mr Moss upon the sale of the entire share capital of MEL to a company called Bennett & Fountain Group plc.
The learned judge further ordered that Mr Hunter was entitled to 5% of the consideration which Mr Moss had received from Bennett & Fountain plc amounting in total to a judgment sum of £112,723.70 including interest. So there was to be judgment for that sum with costs.
The first issue that arises on this appeal is that the conclusion that Mr Moss had declared himself a trustee for Mr Hunter of fifty shares in MEL, being 5% of the share capital of that company, is challenged. Apart from that, however, after the learned judge had pronounced his order on 16th October 1992, and before his order was drawn up, he was invited by Mr Hartman of counsel, for Mr Moss, to withdraw his order and reach a different conclusion on a point of law which had not been argued in the trial prior to 16th October 1992. The position is that Mr Clark of counsel had appeared for Mr Moss at the trial. Mr Hartman who appears on this appeal only came on the scene after the trial and he made this application on which the learned judge gave a further judgment on 20th November 1992 rejecting the application. The point taken by Mr Hartman in this, as it were, second bite at the cherry was that as there was no identification of the fifty shares in MEL out of the total of one-thousand issued shares in MEL there was no sufficient certainty as to what the trust property was to be and, therefore, any attempt by Mr Moss to declare a trust was ineffective in law for want of sufficient certainty as to the trust property. That is the second point that is taken on this appeal.
Thirdly, a further point is taken as to the calculation of the compensation resulting in the sum of £112,723.70 which the learned judge awarded by his order. It is said that that resulted from a wrong turn take by everyone - and, in particular, by Mr Clark, the counsel then acting for Mr Moss - at the end of the hearing before the learned judge reserved to give his judgment of 16th October.
I should come first to the history of the matter which I take, gratefully, from the chronology provided by Mr Hartman. MEL seems to have been incorporated in 1962. Its business was that of a wholesaler in industrial electrical equipment, trading from an address in East London. It had one class of shares only - one thousand ordinary shares - and by 1983 four-hundred-and-ninety of these were held by Mr Moss the Appellant. Four-hundred-and-ten were held by his father Mr Max Moss and one-hundred by his mother. In late 1983 Mr Hunter attended for interview. In January 1984 he commenced employment with MEL. On 12th July 1985 he was appointed finance director of MEL.
At that time the managing director of MEL was a Mr Ravinder Sood. In the course of 1984 fifty ordinary shares in MEL were sold to Mr Sood to give him a shareholding of 5% in MEL. In fact, it seems that these shares came from the shareholding of Mr Max Moss, Mr Moss's father. What was done was that - as the value of the shares at that stage was not as high as it subsequently, for a time at any rate, became - there was a bonus provided for Mr Sood which enabled him to purchase the fifty shares. In September 1985 Mr Max Moss died and the balance of his shares in MEL were transferred to Mr Moss.
In June 1986 Mr Moss stated an intention to give Mr Hunter fifty ordinary shares in MEL. The obvious object of that was to put Mr Hunter in the same position as Mr Sood. But it seems that the value of the shares was thought to have risen somewhat and also there was a fear of what the fiscal consequences might be particularly, perhaps, as at that time there were proposals by a company called Bennett & Fountain Group plc, which I think I have mentioned, to buy the share capital of MEL. One of the problems was whether there would be a capital gains tax liability on Mr Moss; another may have been whether there might be an income tax liability on Mr Hunter. At any rate, Mr Moss stated his intention to give Mr Hunter fifty shares and then attempts were made to work out a scheme by which those shares would be transferred to Mr Hunter without attracting any tax consequences. That scheme, however, proved abortive and in a discussion with Mr Moss in early September 1986 the learned judge held that a trust was declared.
Following that, on the 30th September 1986 the agreement proposed for the sale of the share capital to Bennett & Fountain was signed and completed fairly soon thereafter. I will go into the details of the transfer later.
In 1988 and in 1989 there were dividends paid on the Bennett & Fountain shares and there was also a Rights Issue. In 1989 Mr Moss paid Mr Hunter the net dividends on what was thought to be the appropriate proportion attributable to Mr Hunter's 5% in MEL
of the Bennett & Fountain shares which had been issued to Mr Moss. Unfortunately, thereafter the parties fell out and the writ in this action was issued on 17th July 1990.
So far as the first point is concerned, whether there was a firm declaration of trust, the learned judge has set out his findings of fact very carefully in his October judgment. There were various assertions in evidence by Mr Hunter which were denied by Mr Moss. The learned judge has preferred the evidence of Mr Hunter to that of Mr Moss. Mr Hartman does not seek to go behind the judge's preference for Mr Hunter's evidence, but he says that, even on the learned judge's findings of fact in favour of Mr Hunter, the requisite degree of certainty of intention to declare an immediate trust cannot be inferred. The learned judge at page 15 of his judgment sets out part of his summary of Mr Hunter's evidence. He says at 15B:
"Mr Hunter's evidence is that, by about early September 1986, the ... scheme ... "
that was being considered with another company for getting around the fiscal problem, ... was abandoned."
The learned judge goes on:
"Instead, the parties reverted to the original arrangement which had been proposed at the meeting of 22nd June 1986 ... "
and the parties include Bennett & Fountain,
"under which B & F would pay £3 million in cash and shares for MEL. So far as his 5% in MEL is concerned, Mr Hunter says that, at about this time Mr Moss told him that, despite all efforts, a solution could not be found to what was regarded as being a problem with regard to it and it was getting in the way of the proposed sale. Mr Hunter says ... "
the judge continues,
" ... that, during that conversation, Mr Moss asked him if he would mind if he, Mr Moss, held on to Mr Hunter's shares for him until a solution was found and that, in the meantime, he would ensure that Mr Hunter received all the dividends that he was entitled to. Mr Hunter is unsure whether Mr Moss said in terms that he would, in the meantime, hold the shares "in trust" for him, but he says that that is the sense of what Mr Moss said to him. In summary ... "
says the judge,
" ... he said that Mr Moss made clear to him that, pending the finding of a solution to the perceived difficulties, he would hold 5% of MEL's issued shares for Mr Hunter and would account to him for all dividends due in respect of such holding."
That, at 15F-G, is the crucial finding. It is also picked up at various other places in the judgment. At 36D-E the learned judge says:
"I have found that, shortly afterwards (in about early September 1986), Mr Moss had a conversation with Mr Hunter in which he said words whose substantive sense was that he would henceforth hold 5% of the MEL shares either for, or in trust for, Mr Hunter, and that he would pay him the dividends due in respect of such holding."
The judge said at page 37B-C:
" ... I find that, as from that conversation in early September 1986, Mr Moss held 5% of MEL's issued shares (i.e. 50 shares) on trust for Mr Hunter. Even if he did not in terms use the words "in trust", the sense of what he then said was that he would thenceforth hold the shares on such a trust."
There is a similar passage in his October judgment at page 34A-B which I need not read.
I find it impossible, in the context in which this matter comes before us, to go behind the learned judge's summary at page 15F-G:
" ... pending the finding of a solution to the perceived difficulties, he would hold 5% of MEL's issued shares for Mr Hunter and would account to him for all dividends due in respect of such holding."
I do not think we can prefer the view that the substance of the learned judge's finding, or the evidence, is at page 15D-E:
" ... Mr Moss asked him ... "
(Mr Hunter)
" ... if he would mind if he, Mr Moss, held on to Mr Hunter's shares for him until a solution was found and that, in the meantime, he would ensure that Mr Hunter received all the dividends that he was entitled to."
The learned judge is, no doubt, working from his own notebook and recollection of the witnesses' evidence, but the transcripts of the evidence of Mr Hunter have not been put before us.
I do not see that it is open to us to reject the learned judge's finding repeatedly stated in the course of his judgment. One understands clearly what is meant by " ... pending the finding of a solution to the perceived difficulties." The whole purpose can only have been, however, that the declaration of trust that the learned judge found was intended to be an immediate declaration of trust to have effect so as to enable the sale to Bennett & Fountain to go through in the hope that some other solution would come to light, but it had to have an immediate effect. He could not have been intending at that juncture to mean that he would simply shelve the idea of transferring shares and giving Mr Hunter any rights in respect of what had been referred to as "Mr Hunter's 5% in MEL" until a solution at some later date was hopefully found which would enable Mr Moss's favourable wishes to Mr Hunter to be given effect to without adverse tax consequences for either of them. Therefore, I do not think it is open to Mr Hartman to dispute the learned judge's conclusion of fact which is the crucial conclusion which he seeks to challenge in this part of his Notice of Appeal. The finding must stand.
I pass then to the second point of uncertainty. It is well established that for the creation of a trust there must be the three certainties referred to by Lord Langdale in his judgment in Knight v Knight 49 ER 68. One of those is, of course, that there must be certainty of subject matter. All these shares were identical in one class: 5% was fifty shares and Mr Moss held personally more than fifty shares. It is well known that a trust of personalty can be created orally. We were referred to the well-known passage in the judgment of Turner LJ in Milroy v Lord (1852) 4 De G F & J 264 where he said at 274:
"I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift."
"The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust."
In the present case there was no question of an imperfect transfer. What is relied on is an oral declaration of trust. Again, it would not be good enough for a settlor to say, "I declare that I hold fifty of my shares on trust for B," without indicating the company he had in mind of the various companies in which he held shares. There would be no sufficient certainty as to the subject matter of the trust. But here the discussion is solely about the shares of one class in the one company.
It is plain that a bequest by Mr Moss to Mr Hunter of fifty of his ordinary shares in MEL would be a valid bequest on Mr Moss's death which his executors or administrators would be bound to carry into effect. Mr Hartman sought to dispute that and to say that if, for instance, a shareholder had two-hundred ordinary shares in ICI and he wanted to give them to A, B, C and D equally he could do it by giving two-hundred shares to A, B, C and D as
Tenants in Common, but he could not validly do it by giving fifty shares to A, fifty shares to B, fifty shares to C and fifty shares to D because he has not indicated which of the identical shares A is to have and which B is to have. I do not accept that. That such a testamentary bequest is valid, appears sufficiently from the cases of In re Clifford (1912) 1 Ch 29 and In re Cheadle (1900) 2 Ch 620. It seems to me, again, that if a person holds, say, two-hundred ordinary shares in ICI and he executes a transfer of fifty ordinary shares in ICI either to an individual donee or to trustees, and hands over the certificate for his two-hundred shares and the transfer to the transferees or to brokers to give effect to the transfer, there is a valid gift to the individual or trustees/transferees of the fifty shares without any further identification of their numbers. It would be a completed gift without waiting for registration of the transfer. (See In re Rose (1952) 1 Ch 499). In the ordinary way a new certificate would be issued for the fifty shares to the transferee and the transferor would receive a balance certificate in respect of the rest of his holding. I see no uncertainty at all in those circumstances.
Mr Hartman, however, relied on two authorities in particular. One is a decision of Oliver J (as he then was) in the case of Re London Wine Company Shippers Limited (1986) PCC 121 which was decided in 1975. That was a case in which the business of the company was that of dealers in wine and over a period it had acquired stocks of wine which were deposited in various warehouses in England. Quantities were then sold to customers (but in many instances the wine remained at the warehouse) by the company. There was no appropriation - on the ground, as it were - from bulk, of any wine, to answer particular contracts. But the customer received from the company a certificate of title for wine for which he had paid which described him as the sole and beneficial owner of such-and-such wine of such-and-such a vintage. The customer was charged for storage and insurance, but specific cases were not segregated or identified.
Subsequently, at a stage when large stocks of wine were held in various warehouses to the order of the company and its customers, a receiver was appointed by a debenture holder. The question that arose was whether the customers who had received these certificates of title had a good title to the quantity of wine referred to in the certificate as against the receiver appointed under a floating charge. The learned judge held that it could not be said that the legal title to the wine had passed to individual customers and the description of the wine did not adequately link it with any given consignment or warehouse. And, furthermore, it appeared that there was a lack of comparison at the time the certificates were issued in that, in some cases, the certificates were issued before the wine which had been ordered by the company had actually been received by the company. It seems to me that that case is a long way from the present. It is concerned with the appropriation of chattels and when the property in chattels passes. We are concerned with a declaration of trust, accepting that the legal title remained in Mr Moss and was not intended, at the time the trust was declared, to pass immediately to Mr Hunter. Mr Moss was to retain the shares as trustee for Mr Hunter.
Mr Hartman also referred to a case of Mac-Jordon Construction Limited v Brookmount Erostin Limited (1991) 56 BLR 1, a decision of this court. The position there was that Mac-Jordon were sub-contractors for Brookmount as main contractors. There was retention money kept back by Brookmount which, on the documents, was to be held on a trust for the sub-contractors, but it had not been set aside as a separate fund when a receiver was appointed by the main contractor, Brookmount's, bank. It was, consequently, held that Mac-Jordon was not entitled to payment in full of the retention moneys in priority to the receiver and the secured creditor. It was common ground in that case that, prior to the appointment of the receivers, there were no identifiable assets of Brookmount impressed with the trust applicable to the retention fund. At best, there was merely a general bank account.
In reliance on that case Mr Hartman submits that no fiduciary relationship can attach to an unappropriated portion of a mixed fund. The only remedy is that of a floating charge. He refers to a passage in the judgment of Lord Greene MR In re Diplock (1948) 1 Ch 465 at the foot of 519 where he said:
"The narrowness of the limits within which the common law operated may be linked with the limited nature of the remedies available to it ... In particular, the device of a declaration of charge was unknown to the common law and it was the availability of that device which enabled equity to give effect to its wider conception of equitable rights."
So Mr Hartman submits that the most that Mr Hunter could claim is to have an equitable charge on a blended fund. He mentions the decision of Chitty J decision in In re Earl of Lucan
45 Ch 470 which points out that, where there was merely an equitable charge which did not grant perfect and complete rights to the chargee and it was given by way of gift to a volunteer, there could be no specific performance in favour of the volunteer who would have no priority over the creditors of the grantor. As I see it, however, we are not concerned in this case with a mere equitable charge over a mixed fund. Just as a person can give, by will, a specified number of his shares of a certain class in a certain company, so equally, in my judgment, he can declare himself trustee of fifty of his ordinary shares in MEL or whatever the company may be and that is effective to give a beneficial proprietary interest to the beneficiary under the trust. No question of a blended fund thereafter arises and we are not in the field of equitable charge.
Therefore, I agree with the learned Deputy Judge on the conclusion of the uncertainty point which he dealt with in his November judgment.
There then rests the slightly tangled question of what the relief to be granted should be. As I have said in dealing with the history, Mr Sood the managing director was granted fifty shares in MEL and, when the share capital of MEL was sold to the Bennett & Fountain Group, Mr Sood received 187,500 Bennett & Fountain shares in exchange for his fifty MEL shares. The claim for Mr Hunter in his pleaded case at all stages until the end of the trial was that he, like Mr Sood, should be entitled to 187,500 Bennett & Fountain shares or, rather, to their equivalent at the agreed price under the sale to Bennett & Fountain. Mr Moss - in respect of his shares in MEL which, by then, were all the shares except Mr Sood's because he held, as trustee, Mr Hunter's shares and it seems that he had received his mother's shares - for his whole holding received 13,500,000 shares in Bennett & Fountain plus £150,000 in cash.
We have the position, therefore, that Mr Sood received, and Mr Hunter was claiming, 187,500 shares. However, Mr Moss's receipt included a cash sum. The question, therefore, arose whether Mr Hunter should receive the proportion of shares that Mr Sood received or a proportion of the cash sum and a proportion of the shares which Mr Moss had received. By the time of the trial I think Mr Moss had disposed of all his shares, but nothing turns on that. The learned judge said at page 39A of his October judgment:
"It was not disputed by Mr Clarke ... "
he was then the counsel for Mr Moss,
" ... that, if I were so to find, Mr Hunter's beneficial interest in the 50 MEL shares became translated, upon the completion of the MEL acquisition by B & F on 28th October, 1986 into, at any rate for the most part, a corresponding proportion of the B & F shares which Mr Moss received in exchange for his MEL shares.
"Mr Hunter's pleaded case is that he became entitled to 750,000 10p B & F shares, now represented by 187,500 20p shares. As I have said, that is the holding which Mr Sood acquired in exchange for his 50 MEL shares. However, Mr Clarke submits that, in this respect, Mr Hunter's pleaded case is inaccurate."
I stress that this is Mr Clarke's submission.
"He says that the correct position is that Mr Hunter is more properly to be regarded as having become entitled in equity to 5% of the total consideration paid by B & F for the MEL shares; i.e. 5% of the cash sum of £150,000 paid to Mr Moss, or £7,500; and 177,631.57 20p B & F shares - that number of shares being the post-consolidation equivalent of the number of B & F shares which Mr Moss received for each fifty MEL shares.
"Mr Davidson agreed that that was probably the more correct way of identifying Mr Hunter's entitlement, and agreed Mr Clarke's figures. For my part, having considered the matter further whilst preparing this judgment, it appears to me that, strictly, the cash element of Mr Hunter's entitlement is £7,894.73 rather than £7,500, that sum being the cash amount received by Mr Moss in respect of each 50 of his 950 MEL shares. I will give Mr Clarke the opportunity of pointing out any error in that reasoning but, subject to that, I proceed on the basis that Mr Hunter's equitable interest in 5% of MEL's issued shares became translated upon its acquisition by B & F and after adjustments to take account of B & F's subsequent share consolidation, into (1) £7,894.73 in cash, and (2) 177,631.57 20p B & F shares."
The Deputy Judge then proceeds to hold that the appropriate remedy by way of monetary compensation in place of his beneficial interest in 177,631.57 shares was 39p per share. That is the mid-market price on the 30th November 1989.
Then he, again, returns to the point that no cash sum has been claimed in the pleadings and the case was exclusively put forward on the basis of 187,500 shares. It was, however, not suggested by Mr Clarke that any deficiency in the pleading put Mr Hunter out of court on the point. And, indeed, the learned judge understood Mr Clarke to accept that if he were, in principle, to find in favour of Mr Hunter then it would be right also to award him the cash sum. The learned judge then held that it would be right to do so. It is relief which Mr Hunter is entitled to as a consequence of having established his beneficial interest in 5% of MEL's shares. He goes on then to deal with interest and there are calculations of interest.
Then there is discussion after judgment in which it appears that the Deputy Judge had mis-calculated the number of days for which interest would be running on the basis, which was common to the parties, on which the award should be made. Accordingly, that was adjusted to produce the figure of £112,723.70. Mr Clarke specifically said, subject to that interest adjustment, that he agreed with the learned judge's calculation on the cash sum which he had checked, that it did seem to be right. He is, therefore, clearly accepting the basis on which the learned judge was following Mr Clarke's suggestion, proceeding with the agreement of Mr Davidson, picking up any mathematical errors on anyone's part en route.
Mr Hartman says that the true calculation is the calculation which was pleaded of 187,500 shares and he adds in relation to that that when net dividends were paid in 1989 they were paid on the equivalent of 187,500 shares. What actually happened at that time was that Mr Moss said to Mr Hunter, "I owe you some dividends. You must calculate them." They were calculated by Mr Hunter on the footing that his notional shareholding in Bennett & Fountain was the same as Mr Sood's. This would actually produce in total, for mathematical reasons which it is unnecessary to go into, a smaller sum than the £112,000 the learned judge awarded. It comes down, as set out in the revised Notice of Appeal, from the £112,723.70 to £104,707.55. As I see it, however, Mr Clarke put forward the methodology that Mr Hunter was entitled to his percentage of the consideration which Mr Moss received on the sale to Bennett & Fountain, that is to say, to the proportion attributable to fifty shares of cash and shares received by Mr Moss for his holding. That seems to me to have been, in principle, correct unless there was some other arrangement made whereby Mr Hunter had agreed that he would have, on the transfer, shares only as Mr Sood was, apparently, willing to have. But although the claim was put forward on a basis of shares only, and the dividends were accounted for, without considering the problem, on that basis, I do not see any evidence of any supplementary agreement which would have prevented the ordinary tracing rule applying, that he would be entitled to the due portion of the consideration received by Mr Moss.
Mr Davidson accepted, although it had not been pleaded, Mr Clarke's proposal and when the mathematics had been ironed out that was something in which the learned judge's order was really representing the consent of the parties to the proper way of giving effect to the learned judge's finding that a trust for fifty ordinary shares in MEL had been validly created by Mr Moss in favour of Mr Hunter. The consent swept out of the way any other possible arguments that there might have been. It has been suggested that, therefore, any interference with the learned judge's finding as to the amount to be awarded would require the consent of the learned judge below, or of this court, under the recently inserted Rule 1 (b) of Order 59 and Mr Hartman asks us, so far as is necessary, to grant such consent. If I were with him on the substantive conclusion I would, indeed, be prepared to grant leave. But it seems to me that there was, indeed, consent between the parties to this way of doing it which was also, as I see it, a correct way.
Therefore, I would not interfere with the financial award by the learned judge except for correcting yet one more minor point which has come to light, and that is that Mr Davidson has discovered - and the point is put forward at the end of his skeleton argument - that the net dividend payments which Mr Hunter received in 1989 were calculated on an assumed beneficial holding of 187,500 Bennett & Fountain shares whereas, on the learned judge's conclusion, he was only the beneficial owner of 177,631.57 such shares. Consequently, there was, when the net dividends were paid by Mr Moss, an overpayment of £498.95 for which Mr Hunter should give credit. That is best done by adjusting the figure which the learned judge awarded of £112,723.70 by deducting £498.95. Subject to that very minor adjustments, I would dismiss this appeal.
LORD JUSTICE MANN: I agree.
LORD JUSTICE HIRST: I also agree.
Order: Appeal dismissed with costs. Legal Aid taxation of Respondent's costs. It was agreed by both parties that the sum of £200, representing interest, should be added to the overpayment of £498.95 and the total deducted from the judgment sum. Leave to appeal was refused. Money available in court to be released to Hewitson Becke & Shaw (solicitors) who will deal with it as agreed between the parties and will give account to the other side as to calculation of interest.
