England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE BRAY)

		Royal Courts of Justice Strand London, WC2 Monday, 7 October 2002

Monday, 7th October 2002

1. LADY JUSTICE ARDEN: This is a renewed application for permission to appeal from the order of His Honour Judge Bray, sitting at the Northampton County Court, dated 3 July 2002, whereby the judge granted possession of a property known as 23 Furnace Lane, Finedon, Northamptonshire, and dismissed the first defendant's counterclaim.
2. This application is by Mr Liam Sevier, the first defendant in this action. He is today represented by Mr Neil Ferguson, who also appeared at the trial. The matter came before Kay LJ on paper on 10 September 2002 when His Lordship refused the application on the footing that the objection to the judgment was not well taken and that the judge had clearly accepted the evidence of the claimant and was so entitled.
3. The judge's judgment was a written judgment and runs to some 26 paragraphs. The claimant sought possession of one of a row of cottages of which she was the legal owner. The appellant is her half-brother. He is disabled as a result of a car accident which occurred in the middle of the 1990s and he resides in the cottage with the second defendant who helps to care for him.
4. The judge set out the history. The cottages had been purchased in 1978 in the claimant's name. The party's mother, Miss Sevier, moved into one of them with three of her children. The cottages were gradually restored and the children in question moved out into their own cottages, in the defendant's case into 23 Furnace Lane, which is the property in issue in the action. The other children had now moved out of their cottages, but the appellant continues to reside in No.23.
5. The judge set out the parties' various cases. The claimant claimed that the appellant was simply a licensee of the property. The defendant contended that there was an agreement when the cottages were purchased whereunder if he worked to renovate the cottages he would be given one himself. Alternatively, his case was that the claimant allowed him to enter the property and to carry out renovation works in the belief he would have a beneficial interest. He therefore contended he was entitled to an interest in the cottage under the doctrine of proprietary estoppel.
6. The judge went into the history of the case which went back at least to the 1960s. He made findings about Mr Sevier's beneficial interest in the cottage, the purchase price was some £8,999. It was common ground that the most Mrs Sevier (who is now deceased) could have paid toward this sum was the deposit which came from a joint bank account in the name of the claimant and herself. The judge found in favour of the claimant that £725, the deposit moneys, came from the claimant's own bank account, and that the balance came from a joint account in the names of Mrs Sevier and the claimant. Accordingly, he found that Mrs Sevier's financial contribution to the cottages amounted to a proportion of the moneys in the joint account which went towards the deposit, namely £175, of which her share on the evidence was very modest. Accordingly, he found that Mrs Sevier's financial contribution to the cottage was minimal. Moreover, he held there was no evidence of common intention that the cottages should be held by the claimant and Mrs Sevier in any particular shares. Such an intention could not be presumed; accordingly, in the judge's judgment the purchase was effectively made by the claimant as sole legal and beneficial owner.
7. The judge then examined the claim that there was an agreement between all the members of the family that if the children worked on the cottages they would each be given a cottage of their own. The judge weighed the evidence in support of the agreement with the statements of Liam and his sister, Claire, but there was no direct reference in their statement to any agreement involving the claim. The claimant denied there was such agreement, and her evidence was supported by that of the third child, who stated that although his mother had told him he would have a cottage the claimant was not a party to such agreement. On that basis the judge rejected the defence based on an express trust created by the claimant. The judge held that Mrs Sevier was not intending to create a legal or beneficial ownership by virtue of her statements, in any event she had no capacity so to do.
8. The judge then turned to proprietary estoppel. He referred to Re Basham [1986] 1 WLR 1498, which was approved by the Court of Appeal in Gillett v Holt [2002] 3 WLR 815. In this judgment it is sufficient for me to refer to the general statement of principle by Mr Nugee QC, sitting as a Deputy Judge of the Chancery Division, in Re Basham.

"The plaintiff relies on proprietary estoppel, the principle of which in its broadest form may be stated as follows. Where one person, A, has acted to his detriment and belief which was known to and encouraged by another person, B, that he either has or was going to be given a right in or over B's property, B cannot insist on his strictly legal rights if to do so would be inconsistent with A's belief."

9. The judge made certain findings of fact. He found that the appellant had carried out certain work. He also held that he was satisfied on the evidence that the claimant had never encouraged the defendant (that is the appellant) either actively or passively, to believe that if he carried out the works to Nos.18 and 23 he would be entitled to an interest in No.23. He held that the children moved out of the other cottages to provide themselves with living space and greater freedom. The claimant continued to pay for the materials and spend money on the property. She offered to sell the properties to the other members of the family once they moved in. Claire and Terry, two other children, had moved out of their cottages without making a claim to ownership. In the circumstances the judge dismissed the counterclaim.
10. There are a number of grounds raised in the written grounds of appeal; but Mr Ferguson relies on one claim only for the purposes of seeking permission today. His primary submission is that the judge failed to give adequate reasons for dismissing the counterclaim; alternatively, the judge was wrong to reject the first defendant's evidence that he had carried out work to the property in the belief that he would have a beneficial interest, that the claimant was aware of and acquiesced in that belief and that the claimant stood by and acquiesced in the building works. Mr Ferguson submits that the judge was wrong in his conclusions and should have found that the claimant was aware of and acquiesced in the first defendant's said belief and stood by and acquiesced in the works.
11. In his written argument he refers to evidence that was given at the trial. He has referred to a witness statement of Mr Sean Kaye, who said that he had an understanding which came from speaking with the whole family, including the claimant, of the arrangement in relation to the Furnace Lane properties. He also relies on evidence given by Claire, the sister of the appellant. She was cross-examined at the trial and in the course of her cross-examination, according to counsel's note which he read to us because we have no transcripts for the purposes of this application, said:

"The idea was that we were there [in the cottages] on Mum's wishes, and the agreement was that we were to work on the cottages and have a home freehold for life. ... we had an agreement, all 3 of us with my mother, Grethel [that is, the claimant] knew about it."

12. Likewise there was evidence from the appellant himself that there was an agreement which was discussed many times and in front of the claimant. It was a family project which was discussed in her presence.
13. Mr Ferguson accepts that the judge correctly identified the issue which was put before him for decision in paragraph 21 of his judgment, which reads:

"I now turn to the issue of proprietary estoppel. The submission made on behalf of the Defendant is that he carried out building works to no.18 and thereafter to no.23 in the belief that he would have a beneficial interest in no.23 and that the claimant knowingly acquiesced in his occupation of the property upon that basis. She is therefore estopped from denying his claim to an interest in the property."

14. It is the middle sentence of that paragraph which summarises the submission which was made to him on behalf of the defendant.
15. As I have explained already the judge made findings as to the work done by the defendant and also found that the claimant never encouraged the defendant to believe that if he carried out that work he would be entitled to an interest in No.23. However, there is no finding on the question whether or not the appellant carried out the work in the belief that he would have a beneficial interest in No.23; nor, arguably, is there a finding as to whether or not the claimant knowingly acquiesced in his occupying the property on that basis.
16. Mr Ferguson has taken us to the decision of the Court of Appeal in English v Emery [2002] 3 ALL ER 385. In that case there were three appeals on the basis that the judge at trial had not given sufficient reasons, and the Court of Appeal held that, although the judge did not have to identify and explain every factor which had weighed with him in his appraisal of the evidence, he should identify the issues the resolution of which had been vital to his conclusion and explain the manner in which he had resolved them.
17. Mr Ferguson has persuaded me that in respect of the matter of proprietary estoppel and in relation to the issues to which I have referred there is an argument which might properly be raised on an appeal as to whether the judge had given sufficient reasons for rejecting the defendant's claim in the circumstances of the case and the evidence as explained to us. Mr Ferguson is, however, very conscious of the costs of an appeal. He drew our attention to the fact that at page 394 to 395 of the decision in English v Emery the Court of Appeal stated as follows:

"If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings."

18. With that passage in mind Mr Ferguson has invited us to offer such an invitation to the judge. I have considered that matter. In my judgment it is right to take that course in this particular case for a number of reasons. First, the costs of an appeal may be substantial; second, that the trial only occurred in July 2002 so this matter may be sufficiently fresh in the judge's mind for him to provide further reasons; and third, this may be a case which is or might be resolved by the giving of further reasons. Accordingly, in my judgment, it is right to invite the judge if he wishes so to do to supplement the reasons that he gave for rejecting the submission of the defendant identified in the second sentence of paragraph 21. This is not an invitation for to the judge to have a second bite at the cherry, but rather to articulate the reasons which form part of his reasoning at the time.
19. What I would propose is that before any such invitation is sent to the judge a copy of the order made today (if my Lord is agreeable to it) should be sent to the respondents and they should be invited within seven days to indicate whether they have any objection to this course, in which case the matter can be brought back either on paper in the first instance or otherwise in court. But subject thereto at the expiration of that period the order should then be sent to the judge with a copy of this judgment and I would put that matter in the hands of the appellant's solicitors with the invitation which I have indicated. I will indicate that the judge should have minded to respond with extra reasons to provide those extra reasons within the one month or, if he is unable to do so, communicate with the Civil Appeals Office. If the judge does not wish to give any further reasons then an order should be drawn by this court giving permission to appeal. On the other hand if the judge does give additional reasons it would be necessary for this matter to be brought back. In the first instance it may be brought back by the appellant, though the court may wish the respondents to be given notice when it has seen the reasons the judge gives.
20. LORD JUSTICE DYSON: I agree.
(Application granted; costs to be costs in the appeal; Community Legal Services funding assessment.)