COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
LANDS TRIBUNAL (HH JUDGE RICH QC)
London, WC2A 2LL
Thursday 15 November 2001
B e f o r e :
LORD JUSTICE ROBERT WALKER
MR JUSTICE LADDIE
| TRUSTEES OF ST JOHN'S HOSPITAL
|- and -
|KEEVIL & ANR
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Anthony de Freitas (instructed by Forrester & Forrester for the respondents)
Crown Copyright ©
LORD JUSTICE ROBERT WALKER:
"Keevil fully accepts that the proposal for his Son to succeed to the tenancy by negotiation is one which the Trustees will want to consider carefully. He would like to know the Trustees reaction but has in his mind that nothing could really be achieved until the next term day in a year's time.
My own view is that there could be some advantage to the Trustees in agreeing to a succession. It would be an opportunity to revise the rent again and also an opportunity to modernise the Tenancy Agreement so that, for example, a resumption clause in the case of development could be included. It is of course recognised that in context of the Bypass proposals the land to the North of the A4 may not be available in practical terms for agriculture for very much longer."
"The Trustees are minded to agree to your succession to your father's tenancy if that is what is intended. However, formal letters need to be exchanged to take effect at Michaelmas (the term date of the tenancy) and the question of the rent payable needs also to be considered.
As you know, Mr Gray of Smith-Woolley acts for the Trustees, and I have asked him to be in touch with you."
"I think you may have heard recently from Christopher Couchman about the future of your father's tenancy of the Hospital's land at Bailbrook. Of course we discussed your possible succession to the tenancy in 1989 and my clients have since considered, and in principle, approved you as a successor to your father provided we can reach agreement on terms and subject to my preparing formal documents for exchange in order to evidence the succession and the terms which relate to it.
I think it would be a good idea for you and I to meet so that we can have a discussion about matters and be sure that we have taken account of the aspirations of both sides in evidencing the succession.
You will know that the term date of the tenancy is Michaelmas and the Trustees would be working towards a succession at that date. As I explained in 1989 they would also be looking for a rent review and the inclusion of a resumption clause in the present tenancy agreement.
There is a general wish to keep things simple both because the tenancy is over a small acreage and because of the threat posed by the bypass.
It might be prudent for you to take advice on this matter but on the other hand I imagine that costs need to be kept in proportion and we may find when we meet that there is unlikely to be any real difficulty.
If you are agreeable to a meeting then perhaps you could telephone me in order to arrange a convenient time."
"NOW THIS MEMORANDUM WITNESSETH AS FOLLOWS:-
a. PROVIDED and on the basis that (as the Tenant and the Successor hereby respectively acknowledge) the assignment hereby permitted shall constitute an 'occasion' for the purposes of Section 37(1) and 37(2) of the 1986 Act the Landlords hereby permit the Tenant (notwithstanding the provisions of Clause 7 of the Tenancy Agreement) to assign the benefit of the Tenancy Agreement to the Successor on the 29 September 1992 and on no other date.
b. THE Tenant and the Successor hereby further acknowledge and confirm that:-
i. The rent payable in respect of the Tenancy shall from the 29 September 1992 be £180 per annum exclusive of value added tax.
ii. The Successor is a 'close relative' of the Tenant and is an 'eligible person' for the purposes of Part IV of the 1986 Act.
c. THE Landlords, the Tenant and the Successor hereby respectively agree and confirm that:-
i. In view of the increased rent payable from the 29 September 1992 that date namely the 29 September 1992 shall be a date as from which there took effect an increase of rent for the purpose of paragraph 4 (1)(b) of Schedule 2 to the 1986 Act.
ii. Save as amended hereby all the terms, provisos and conditions of the said Agreement will remain in full force and effect and in particular nothing shall affect or prejudice the future effect and application of the said Clause 7.
d. THE Successor will immediately after taking possession of the premises comprised in the Tenancy release the Landlords from all liability (if any) to make compensation to the Tenant or to make any other payments to him in respect of any matters arising under the Tenancy Agreement or otherwise.
e. THE Successor hereby covenants with the Landlords that:-
i. As from the date of completion of the assignment to him he will observe and perform the Agreements stipulations conditions and provisos contained in the Tenancy Agreement on the part of the Tenant and will pay the rent thereby reserved.
f. THE Successor further agrees that with effect from 29 September 1992 the Tenancy Agreement dated the fourth day of October 1961 shall be deemed to include an additional clause making it lawful for the Landlords at any time upon giving to the Successor not less than three months previous notice in writing to expire on any quarter day to resume possession and determine the tenancy of any part of the holding for any purpose not being the use of the said land for agriculture and whether the use of the land for any of such purposes is to be made by the Landlord or by a purchaser, lessee, assignee or other person deriving title from or through the Landlords.
AS WITNESSED the hands of the Tenant, the Successor and of Smith-Woolley duly authorised Agents of the Landlords this sixteenth day of October 1992."
There follow the signatures (all witnessed) of the father, the son and Smith Woolley (signed by Mr Gray).
"Mr Gray arrived at the meeting with a draft memorandum of agreement already prepared. Having heard both his evidence and that of Mr Ross Keevil, I find that the meeting was short, that there was no discussion of the terms, save that Mr Gray indicated that the rent was to be increased to £180 a year, but Ross was told that if he got his father to sign the memorandum then, and this is in my judgment a matter of importance, subject to the Claimants' formal approval, the tenancy could be transferred to him. Specifically I find that there was no discussion of the part resumption clause, which forms clause (f) of the memorandum, nor was it drawn to Ross's attention. On the other hand, I accept that Mr Gray did not give any assurance that the document was not one which Ross needed to worry about, nor did he misrepresent it to Ross. Nevertheless, I do accept that Ross was left with the impression that the document contained no terms which were to his disadvantage save the rent increase which was spelled out.
I think it convenient to interpolate in this account of the facts some conclusions at which I have arrived on certain of Miss McAllister's submissions on behalf of the Claimants. I accept that Mr Gray owed the Keevils no duty of care: none has been suggested. Nor was he under any duty to ensure that the Keevils were independently advised. Miss McAllister has however asked me to find specifically that Mr Gray's conduct was entirely proper. I do not so conclude. I would not have expected a professional man to introduce such a term as the part resumption clause into a document proffered in this way, without specifically and expressly discussing and agreeing it with the laymen with whom he was in negotiation. I find as a fact that he knew that Ross was not professionally advised on this matter, even though his father was so advised in regard to the sale of the milk quota. Indeed he had in his letter of 27th April advised Ross that he might manage without such advice. I am sure that in doing so he was acting honestly and with good intentions. He was however as mistaken as he was in assuming that he was himself competent to document the transaction which he was negotiating."
The proceedings below
"It is clear however from the terms of the [1992 agreement] that it was assumed that the rights of succession did apply and [the son's] succession was to be treated as an occasion of succession for the purposes of the Act. The common intention was therefore that the tenancy should continue. That, of course, is only consistent with the clear intention of the parties that the transfer, which they envisaged and indeed intended, would be effected by an assignment. The words of the document which they used for that purpose, in my judgment make it quite impossible to say that [the father] or indeed the [Hospital] performed any unequivocal act which amounted to an acceptance that the tenancy had ended. On the contrary their acts assumed that it had not. I therefore conclude that the [Hospital] fail on this alternative basis also."
The appeal: estoppel
"The reality is that there was a common mistake, induced by Mr Gray, as to the true position in law, and … the parties acted under such common misapprehension."
The judge was also right to recognise the risk of injustice arising out of an assertion of estoppel which was raised almost for the first time during closing submissions, after the evidence has been completed. I say 'almost for the first time' because Miss McAllister's opening skeleton did refer (echoing Scott LJ in Rodenhurst) to the trustees having been kept in the dark and having been prejudiced as a result. But the skeleton argument of Mr Anthony de Freitas (who appeared below, as in this court, for the Keevils) referred to the trustees having disclaimed detrimental reliance at the pre-trial review. If estoppel was in the forefront of the Hospital's case then its position on detrimental reliance should have been made much clearer. Then the unpleaded matters which were ultimately relied on could have been put to the Hospital's witnesses.
"It follows that for estoppel by convention to apply there must be, first, an assumption (shared and communicated between the parties) underlying the transaction and, secondly, unfairness or injustice in allowing the party seeking to benefit to go back on that assumption.
How then does one determine when it is unfair or unjust to allow the party to be estopped to go back on the common mistaken assumption?
As I have already suggested, it is a pre-condition of establishing such unfairness that the party to be estopped must be in some way responsible for the other party acting to his prejudice under the mistaken assumption."
Simon Brown LJ then referred to what Kerr LJ had said in The August P Leonhardt  2 LLR 28, 35, as to the need for the alleged representor to be in some sense "open to criticism". Simon Brown LJ continued:
"Once, however, that pre-condition is satisfied so that in that sense at least the representor (a term here used loosely to encompass also the party putatively estopped under the principle of estoppel by convention) is open to criticism (or at any rate would be if he then held to his rights), what else is required before it will be held unconscionable for him to go back on the common assumption?
The answer seems to me to be this: sufficient in the way of prejudice to the party who has acted to his detriment in reliance upon the mistake to tip the overall balance of justice in favour of an estoppel.
I am not, let me make plain, suggesting that the only relevant considerations in play are, first, the relative responsibility of the parties for the action taken pursuant to their shared mistake and, secondly the prejudice to their respective positions thereby occasioned. On the contrary, within the parameters indicated, it is right that this quintessentially equitable doctrine should remain sufficiently flexible to respond to the demands of justice in a wide variety of situations. But those two considerations, to my mind, are likely in the great majority of cases to be determinative."
Morritt LJ (with whom Evans LJ agreed) recognised the need for unconscionability and referred to The August P Leonhardt, but not to what Kerr LJ had said on this particular point.
The appeal: surrender and regrant
MR JUSTICE LADDIE:
LORD JUSTICE PILL: