England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
Roth J

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/12/2010

Lady Justice Arden :

1. How difficult is it to gift a share? Legal title to a share in a limited company, which has a share register, may only be transferred to another person by registration of a transfer of that share in a prescribed form. The gift of the legal interest in a share is not therefore complete until registration has taken place and registration may under the company's articles of association be subject to the discretion of the directors of the company. In this case, the appellant signed a letter that, to put the matter neutrally, disposed of shares in favour of his brother. He delivered the letter with a signed stock transfer form but without the share certificate. The appellant contends that this document was not effective for the purpose of vesting the shares in his brother. He puts forward two reasons. The first reason is based on formalities. The letter, he contends, constituted a gift and not (as the judge held) a declaration of trust, and since the gift was not completely constituted it is of no effect because of the rule that equity will not assist a volunteer (which by contrast does not apply to a beneficiary under a trust). The second basis for challenging the disposition is that it was procured by a misrepresentation by two of the appellant's brothers, alternatively a mistake. The judge ruled against the appellant on these matters. The primary issue on this appeal is whether those contentions are correct in law.
2. The appellant is Mr Dinesh Shah, who was unsuccessful in two sets of proceedings tried together, a Chancery action and petition under section 994 of the Companies Act 2006. He now appeals from the orders of Roth J dated 24 February 2010 in three respects: (1) the declaration that the letter dated 11 March 2005 signed by him constituted a declaration of trust over 4,000 of his shares in Mister Dee International plc ("the Company"); (2) the dismissal of his claim that this declaration of trust was procured by misrepresentation or was executed under a mistake of law, and (3) the orders as to costs.
3. The full background to these proceedings may be found in the judge's judgment. Mr Dinesh Shah is one of five brothers, who in order of age are, Mr Ramniklal Shah, Mr Rajnikant Shah, Mr Chandrakant Shah ("CJ"), Mr Dineshkumar Shah (whom I call Mr Dinesh Shah) and Mr Mahendra Shah (also known as Mike). The Company was incorporated in 1977, and in 1995 it was converted into a plc. All the brothers were shareholders originally except for Mr Mahendra Shah. However, Mr Rajnikant Shah left the Company and ceased to be a shareholder in the 1970s. In 2003, the three brothers apart from Mr Rajnikant Shah sued CJ, who by then held 50% of the issued share capital of the Company, on the grounds that an agreement had been made between the parties to the action in 1995 that CJ would transfer sufficient shares to Mr Mahendra Shah so that he became a 25% shareholder in the Company and that would make him an equal shareholder with CJ, Mr Dinesh Shah and Mr Ramniklal Shah. Mr Dinesh Shah and Mr Ramniklal Shah then each had 25% of the issued shares, but in 1995 they had each held about 33% of the issued shares.
4. This action was tried by HHJ Howarth sitting as a judge of the High Court of Justice Chancery Division. He dismissed the claim by a judgment given orally on 11 March 2005. He found that any agreement was binding in honour only. He also recorded that it was not asserted by the claimants that an understanding in the family, said by Mr Mahendra Shah in his witness statement to go back to 1977, that Mr Mahendra Shah would have an interest in the share capital of the Company was anything more than an obligation binding in honour only (judgment, paragraph 12). This was contrary to the evidence of Mr Mahendra Shah which was that there was a specific understanding between the parties going back to 1977 that he would have an equal share in the Company.
5. Naturally, the claimants in that action were distressed by the result. They did not appeal. However, they met together on the day following the judgment, and Mr Dinesh Shah and Mr Ramniklal Shah executed and delivered letters in the same form in favour of Mr Mahendra Shah. In addition they executed and delivered forms of transfer for 4,000 of the shares which they held in the Company, leaving the consideration and date blank. The forms of transfer were subsequently completed and registered by the Company in August 2005. Mr Dinesh Shah accepts that the date did not have to be stated, but he relies on his failure to deliver the share certificate to his brother. In fact the Company held the share certificate. In August 2005, the transfer of the 4,000 shares was registered in the name of Mr Mahendra Shah.
6. The letter dated 11 March 2005 stated:

"Dear Mahendra

Re: Mister Dee International Plc

This letter is to confirm that out of my shareholding of current 12,500.00 in the above company I am as from today holding 4,000 shares in the above company for you subject to you being responsible for all tax consequences and liabilities [arising] from this declaration and letter.

Yours faithfully"

7. The judge dealt with the interpretation of this document very shortly:

"44. … it is said that the documents signed on 12 March were not sufficient to give Mike legal or beneficial title to the shares, since the stock transfer form was incomplete and the letter was insufficient to create a trust. But in my judgment the letter, coupled with Dinesh's signing of the form, amounted to a sufficiently clear and unequivocal intention to create a trust in favour of Mike: cf Paul v Constance [1977] 1 WLR 527. There was no necessity to identify further in which 4000 shares out of Dinesh's total shareholding in the Company he was giving Mike the beneficial interest: Hunter v Moss [1994] 1 WLR 452."

8. Meanwhile on 9 April 2005 the three brothers all consulted Mr Pravin Malde, an accountant. He prepared a longer document in the form of a formal declaration of trust which Mr Dinesh Shah and Mr Ramniklal Shah executed. No reliance has been placed on that document on this part of this appeal.
9. On this appeal, Mr Nigel Hood, for Mr Dinesh Shah, makes a number of detailed submissions. He submits that the judge's conclusion was erroneous and that the March letter was no more than a statement of intention to make a gift that was at that moment in time at least incompletely constituted. He argues that if he is correct on this submission the disposition in favour of his brother Mr Mahrendra Shah must fail because it was an incompletely constituted gift and thus equity cannot complete it. He does not take any point on the last sentence of paragraph 44 of the judge's judgment or the fact that the letter refers to some only of Mr Dinesh Shah's shares in the Company.
10. Mr Hood submits that any reasonable person would think that the letter merely transferred shares not that it created a trust. The letter was not a free-standing document: it had to be read with the stock transfer form which was signed and delivered at the same time. These documents demonstrated that the intention of Mr Dinesh Shah was to transfer shares. It is inherently unlikely that he intended both to create a trust and also to make a gift. The reason for having the letter was to deal with the condition about settling tax liabilities. It was not clear how a draft of the letter came into being. Mr Mahendra Shah's case was that the document had been drafted that morning at a solicitors' office, but the judge had doubts about that.
11. On Mr Hood's submission, where a party intends to make a gift the court should not hold that there is a trust. As Maitland said in a passage from his Lectures on Equity (1909) at pp 73-74 which I cited in Pennington v Waine [2002] 2 BCLC 448 at 461:

I have a son called Thomas. I write a letter to him saying "I give you my Blackacre estate, my leasehold house in the High Street, the sum of £1000 Consols standing in my name, the wine in my cellar." This is ineffectual—I have given nothing—a letter will not convey freehold or leasehold land, it will not transfer Government stock, it will not pass the ownership in goods. Even if, instead of writing a letter, I had executed a deed of covenant—saying not I do convey Blackacre, I do assign the leasehold house and the wine, but I covenant to convey and assign—even this would not have been a perfect gift. It would be an imperfect gift, and being an imperfect gift the Court will not regard it as a declaration of trust. I have made quite clear that I do not intend to make myself a trustee, I meant to give. The two intentions are very different—the giver means to get rid of his rights, the man who is intending to make himself a trustee intends to retain his rights but to come under an onerous obligation. The latter intention is far rarer than the former. Men often mean to give things to their kinsfolk, they do not often mean to constitute themselves trustees. An imperfect gift is no declaration of trust. This is well illustrated by the cases of Richards v. Delbridge ((1874) LR 18 Eq 11), and Heartley v. Nicholson ((1875) LR 19 Eq 233). (emphasis added)

12. Accordingly, if the stock transfer form manifested an intention to make a gift, submits Mr Hood, the letter should not be construed as a declaration of trust. The stock transfer form was required to transfer the shares, and this is the single most important document to enable the gift to be completed and the ordinary person would regard it as crucial. This is the document which should be given precedence in the process of interpretation. In that process, account has to be taken of the fact that the brothers were not lawyers, and it would be surprising if they, as laypersons, would have intended to create a trust.
13. In my judgment, this line of argument starts from the wrong point. In interpreting a document, the court should not have regard to the subjective intention of its maker but to the intentions of the maker as manifested by the words he has used in the context of all the relevant facts. Here there is no doubt that Mr Dinesh Shah manifested an intention that the letter should take effect forthwith: see the words "as from today". To give effect in law to those words, there has to be a disposition only of a beneficial interest, since, for the reasons given above, legal title did not pass until registration. The parties clearly intended registration to take place in due course because otherwise Mr Dinesh Shah would not have simultaneously executed and delivered a stock transfer form. Judged objectively, did the words used convey an intention to give a beneficial interest there and then or an intention to hold that interest for Mr Mahendra Shah until registration? Mr Dinesh Shah used the words "I am …holding", not, for example, the words "I am assigning" or "I am giving" and the concept that he holds the shares for Mr Mahendra Shah until he loses that status on registration can only be given effect in law by the imposition of a trust. Accordingly Mr Dinesh Shah must be taken in law to have intended a trust and not a gift. Added to that, as Norris J points out, he calls the document "a declaration" in his letter, which is more consistent with its being a declaration of trust than a gift.
14. Mr Hood also relies on another proposition which he derives from paragraph 61 of my judgment in Pennington. He submits that there is a principle of benevolent interpretation applicable to gifts which ought to ensure that the intention to make the gift in this case is effectuated to the exclusion of a declaration of trust in this case. In Pennington I referred to the decision of the Privy Council in T Choithram International SA v Pagarani [2001] 1 WLR 1. In that case the donor signed the trust deed setting up a foundation and then simply made an oral declaration of gift of all his wealth to the foundation. The Privy Council held that the gift to 'the foundation' could only properly be construed as a gift to the purposes declared by the trust deed and administered by the trustees. Lord Browne-Wilkinson, giving the judgment of the Privy Council, referred to the arguments that the courts below had accepted, namely that—

"the court will not give a benevolent construction so as to treat ineffective words of outright gift as taking effect as if the donor had declared himself a trustee for the donee (see Milroy v Lord). So, it is said, in this case TCP [the donor] used words of gift to the foundation (not words declaring himself a trustee): unless he transferred the shares and deposits so as to vest title in all the trustees, he had not done all that he could in order to effect the gift. It therefore fails. Further it is said that it is not possible to treat TCP's words of gift as a declaration of trust because they make no reference to trusts. Therefore the case does not fall within either of the possible methods by which a complete gift can be made and the gift fails." (See [2001] 1 WLR 1 at 11.)

15. I pointed out that Lord Browne-Wilkinson disagreed with this conclusion and went on to interpret the disposition as a declaration of trust:

"Although equity will not aid a volunteer, it will not strive officiously to defeat a gift [my emphasis]. This case falls between the two common-form situations mentioned above. Although the words used by TCP are those normally appropriate to an outright gift—"I give to X"—in the present context there is no breach of the principle in Milroy v Lord if the words of TCP's gift (ie to the foundation) are given their only possible meaning in this context. The foundation has no legal existence apart from the trust declared by the foundation trust deed. Therefore the words "I give to the foundation" can only mean "I give to the trustees of the foundation trust deed to be held by them on the trusts of the foundation trust deed". Although the words are apparently words of outright gift they are essentially words of gift on trust. But, it is said, TCP vested the properties not in all the trustees of the foundation but only in one, ie TCP. Since equity will not aid a volunteer, how can a court order be obtained vesting the gifted property in the whole body of trustees on the trusts of the foundation? ... In their Lordships' view there should be no question. TCP has, in the most solemn circumstances, declared that he is giving (and later that he has given) property to a trust which he himself has established and of which he has appointed himself to be a trustee. All this occurs at one composite transaction taking place on 17 February. There can in principle be no distinction between the case where the donor declares himself to be sole trustee for a donee or a purpose and the case where he declares himself to be one of the trustees for that donee or purpose. In both cases his conscience is affected and it would be unconscionable and contrary to the principles of equity to allow such a donor to resile from his gift.' (See [2001] 1 WLR 1 at 11–12.)"

16. I continued:

"[61] Accordingly the principle that, where a gift is imperfectly constituted, the court will not hold it to operate as a declaration of trust, does not prevent the court from construing it to be a trust if that interpretation is permissible as a matter of construction, which may be a benevolent construction. The same must apply to words of gift. An equity to perfect a gift would not be invoked by giving a benevolent construction to words of gift or, it follows, words which the donor used to communicate or give effect to his gift."

17. The principle of interpretation applied by Lord Browne-Wilkinson and then invoked by myself is no more than the principle that used to be referred to as ut res valeat quam pereat. This principle, once called "a rule of common law and common sense" (per Lord Brougham in Langston v Langston (1834) 2 Cl & Fin 194), can apply to trusts in order to effectuate rather than frustrate the settlor's intentions (see Re Baden's Trust Deed [1969] 2 Ch 388). In this case, the application of the principle would be a novel one because this is not a case of a declaration of trust or no declaration of trust, but the question of a gift or a declaration of trust. But that is not a distinction which would prevent the principle from applying.
18. Mr Hood further submits that my judgment in Pennington explains that one of the reasons for the rule that equity will not assist a volunteer is that it gives the donor a chance to change his mind:

"[62] The cases to which counsel have referred us do not reveal any, or any consistent single policy consideration behind the rule that the court will not perfect an imperfect gift. The objectives of the rule obviously include ensuring that donors do not by acting voluntarily act unwisely in a way that they may subsequently regret. This objective is furthered by permitting donors to change their minds at any time before it becomes completely constituted. This is a paternalistic objective, which can outweigh the respect to be given to the donor's original intention as gifts are often held by the courts to be incompletely constituted despite the clearest intention of the donor to make the gift. Another valid objective would be to safeguard the position of the donor: suppose, for instance, that (contrary to the fact) it had been discovered after Ada's death that her estate was insolvent, the court would be concerned to ensure that the gift did not defeat the rights of creditors."

19. The court should not, therefore, on Mr Hood's submission defeat this policy consideration by interpreting the letter as a declaration of trust if it was intended to be a gift.
20. However, in my judgment, the principle of benevolent construction is not invoked in this case. The words of the March letter are sufficiently clear to enable the court to reach the conclusion that there is a declaration of trust without the level of doubt which causes it to have recourse in other circumstances to the principle referred to above. In other words, there is no need for benevolent interpretation in this case and thus paragraph [61] of Pennington does not assist.
21. Moreover the court has to give each of the documents delivered that day meaning and so it is not able to give the stock transfer form precedence or effect to the exclusion of the March letter. Those documents are not in fact on the judge's interpretation or mine conflicting since the trust merely applies up to the point of registration. Mr Dinesh Shah then ceases to hold the shares for Mr Mahendra Shah and the trust is at an end.
22. Accordingly the answer to the question posed at the start of this judgment is that it is not difficult to make a gift of shares but it may take time to complete the gift by registration of the shares in the donee's name. One of the ways of making an immediate gift is for the donor to declare a trust. In my judgment that is what happened in this case. No error by the judge is shown. It is therefore unnecessary to consider whether the March letter was an incompletely constituted gift or if it was whether it was completed by the act of registration so that it cannot now be challenged on the grounds that the March letter was an incomplete gift.
23. I accordingly turn to Mr Hood's submissions on the alternative argument on the letter, namely that it was procured by a misrepresentation made by Mr Rajnikant Shah that Mr Dinesh Shah was under a legal obligation to execute the March letter and stock transfer form. Mr Dinesh Shah's pleaded case was that, before the March letter was signed, Mr Rajnikant Shah represented to him that Mr Mahendra Shah was entitled to request that the original understanding in 1977 was observed and that Mr Dinesh Shah and Mr Ramniklal Shah should each transfer to Mr Mahendra Shah the 4,000 shares which they should have given to Mr Mahendra Shah in 1995 when they in fact agreed to a state of affairs in which CJ increased his holding in the share capital of the Company from 33% to 50%. The disposition of 4,000 shares in the case of both Mr Dinesh Shah and Mr Ramniklal Shah represented 8% of their shareholdings in 1995 and would, if then made, have then reduced each of their holdings from 33% to 25%. By making that disposition in March 2005, they would be giving Mr Mahendra Shah his rightful entitlement, that is, giving back shares that belonged to him in the first place. Mr Dinesh Shah also pleaded that Mr Mahendra Shah expressed agreement with Mr Rajnikant Shah, thereby adopting his representations.
24. The judge dealt with this part of the case as follows:

"39.     In the light of all this conflicting evidence, it is necessary to bear in mind what actually has to be decided. The key question is whether it was represented to Dinesh or he considered that he was under a legal obligation to transfer his shares to Mike. I very much doubt that Mike took the result of the trial with the equanimity that he sought to suggest. The result was a devastating blow for him, not simply because he failed to obtain a 25% shareholding in the Company but because he was saddled with debt, to which was now added a share in the costs of the litigation and judgment against him for £50,000 plus interest. Whether or not he ever became hysterical does not matter; I consider that he would have been a very worried man.

40.     I find implausible Dinesh's evidence that there was no discussion between the three of them in the course of the trial as to what would happen if they lost, but while I expect that he and Ramnik told Mike not to worry and that they would look after him, I doubt that this would have gone as far as a specific understanding that they would each transfer 4000 shares to Mike. I can accept that when the brothers gathered at Mike's house on the evening after the judgment, Dinesh was reluctant or even disinclined to transfer his shares to Mike, and may have had to be persuaded to do so. But even making such allowances in Dinesh's favour, I find it utterly implausible and reject the evidence that he was told, whether by Mike or Rajni or both, that Mike was legally entitled to 4000 of Dinesh's shares and/or that Dinesh was under a legal obligation to transfer those shares to his younger brother.

41.     Dinesh had just been through a trial where one of the key issues had been whether any understanding there may have been about the shareholding in the Company was legally binding on CJ or simply, in the words used by Judge Howarth, "something that was being done for the sake of the family". By the end of the trial, at the very latest, Dinesh would have been well aware of this distinction. Moreover, he had just been fighting a case alongside Mike and Ramnik claiming, in effect, that Mike should achieve an equal shareholding by the transfer to him by CJ of one half of his shareholding. That is of course inconsistent with the statement (allegedly made the day after the trial was over) that Dinesh and Ramnik in fact held 8% of the shares in the Company on trust for Mike since 1977. Indeed, I note that Judge Howarth referred to the belief (presumably by Dinesh, Mike and Ramnik) that there was "some sort of understanding within the family in general that [Mike] should have an equal part in the running of the company, and a legal part in the ownership of the shares in the company." But he significantly added: "It is not alleged that that understanding in any way was a legally binding obligation of anybody. It was an obligation binding in honour only."

42.     I can well see that Rajni, as the brother who was more detached from the recent events, may have had to persuade Dinesh to transfer his shares in order to support Mike at such a difficult time. But I consider that any such persuasion was on the basis of family obligation and loyalty, not as a legal duty. This point was not put to Dinesh in cross-examination, since Mike's case was that Dinesh never had to be persuaded at all and was simply implementing the arrangement agreed in the course of the previous trial. But when I asked Dinesh whether he considered that he was under a legal as opposed to a moral obligation to Mike, he said that he agreed to make the transfer because Rajni told him that if he didn't Mike may commit suicide and he would be responsible. He said that he was very upset for his younger brother, but was not thinking about whether Mike was in a position to claim the shares from him in court.

43.     On this basis, I conclude that there was no misrepresentation to, or mistake on the part of, Dinesh at the meeting on 12 March 2005…"

25. Mr Hood submits that the judge failed to deal with the evidence of Mr Rajnikant Shah, who corroborated the evidence of Mr Dinesh Shah that he had been led to believe that he was under a legal obligation to give 4,000 shares in the Company to Mr Mahendra Shah. But the judge did deal with that evidence at the end of paragraph 40, and in my judgment what he said was sufficient to provide Mr Dinesh Shah with reasons why he rejected that evidence. It is also clear from paragraph 42 why the judge took the view that the obligation was binding in honour only. He had heard Mr Dinesh Shah give evidence and did not consider that his evidence demonstrated that he was led to believe that there was a legal obligation. We have read a transcript of his evidence. He covered this point on two occasions and while he asserted that he considered that he was under a legal obligation to sign the March letter, by the end of this evidence he also attributed his signature to other factors such as the risk that Mr Mahendra Shah might harm himself. The judge cannot be criticised for not placing weight on the 1977 agreement; it would have been inherently unlikely for Mr Dinesh Shah to have been under any belief that he was under a legal obligation to give shares to Mr Mahendra Shah in the light of the judgment of HHJ Howarth and the fact that the claimants in that action had not asserted that there was an understanding about equal participation which was binding in law.
26. Finally, Mr Hood relied on a letter dated 21 December 2005 in which Mr Mahendra Shah's solicitors had said that the March letter was executed as "part of arrangements made between members of the family". But this does not assist Mr Dinesh Shah not least since Mr Mahendra Shah's pleaded case was that the March letter had been executed pursuant to arrangements made during the course of the trial that shares would be transferred to Mr Mahendra Shah if the action failed, and the judge rejected this (judgment, paragraph 40).
27. At the end of the day, the ultimate question which the judge had to decide was not what Mr Mahendra Shah said but what Mr Dinesh Shah understood. The evidence of Mr Dinesh Shah, as it developed and as the judge evaluated it, did not establish that the March letter was executed pursuant to his understanding that there was a legal obligation rather than a moral one. The judge was entitled to evaluate the evidence of Mr Dinesh Shah. He did not have to accept his assertions in evidence that he acted under the belief that he had a legal obligation to exclude the March letter. There is nothing to show that he was clearly wrong to do so. Accordingly, this ground of appeal must fail.
28. Finally Mr Hood appeals against the judge's orders as to costs. The judge made an order that the costs of the action be paid by Mr Dinesh Shah to Mr Mahendra Shah, and a further order that Mr Dinesh Shah pays 70% of Mr Mahendra Shah's costs in defending the petition under section 994 of the Companies Act 2006. He also made orders for interim payments with which we are not concerned.
29. The main reason why the judge made these orders was that Mr Dinesh Shah had lost the action and failed to obtain any relief against Mr Mahendra Shah on the petition. Mr Mahendra Shah had conducted in the judge's view his defence of the petition in a way which caused unnecessary cost and the judge made the deduction of 30% to take account of this point.
30. On this appeal, Mr Hood limits his attack on the judge's orders as to costs to a single point. He submits that the judge was wrong to make an immediate order for the costs of the action to be paid to Mr Mahendra Shah when there would be difficult questions as to whether particular costs were incurred in the action or in the petition. He accepts that he has a difficult hurdle to overcome because the judge made his order in the exercise of his discretion and Mr Dinesh Shah thus has to show that the judge was wrong in principle or misdirected himself or that his judgment was perverse.
31. In Mr Hood's submission, the judge should not make an order for costs in the action (which in principle Mr Dinesh Shah did not oppose) until an order was also made against CJ. It might turn out that the particular matters might be treated as proper deductions from the liability of CJ which might have a bearing on the allocation of costs as between the action of the petition. The judge rejected this argument. He held that it was for the costs judge to allocate costs as between the action and the petition.
32. Mr Hood submits that the judge was wrong on this and that the matter could be dealt with before a High Court judge once bills of costs for the two sets of proceedings were available. In my judgment, the submissions of Mr William McCormick QC, for the respondent, Mr Mahendra Shah on this point (the only point on which he was invited to make oral submissions to this court) are to be preferred. The expertise in these matters lies with the costs judges. Moreover, it would not be a proper or usual use of the time of a High Court judge and advocates to deal with a matter of apportionment, which would be more efficiently dealt with by costs judges with assistance from those with immediate practical experience in solicitors' bills of costs, such as costs draftspersons.
33. In my judgment, therefore, the appellant's challenge to the judge's exercise of discretion on costs on the limited basis on which was taken must be dismissed.
34. Accordingly I would dismiss these appeals.

Lord Justice Elias:

35. I agree.

Mr Justice Norris:

36. I also agree.