England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF CITY JUSTICE CENTRE
(MR JUSTICE WYN WILLIAMS)

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		24 November 2010

Lord Justice Pitchford:

1. On 26 June 2006 Mrs Catherine Ellen Morris ("the claimant") commenced an action in the county court against five defendants who were as follows: (1) her former husband, Edward Richard Morris; (2) the executors of the estate of the first defendant's mother, Olive Marjory Morris; (3) the EM Morris Partnership; (4) Robert Morris, the first defendant's son by his first marriage; and (5) Sarah Morris, the first defendant's daughter by his first marriage.PRIVATE 
2. The claimant and the first defendant married on 19 May 2001, although they had lived together since 1992. The subject of the claim was Ty Canol Farm in Caerphilly, the home at which at all relevant times the claimant and the first defendant lived. The farm had been in the Morris family since the first defendant's grandfather's time. At the relevant times it was owned by Olive Marjory Morris, the first defendant's mother. She and the first defendant carried on the farming business in partnership as the third defendants, that is to say, the EM Morris Partnership.
3. The marriage between the claimant and the first defendant broke down in September 2004 when the claimant commenced divorce proceedings. Olive Morris died on 11 January 2005. The first defendant was named as executor of her will of 9 September 2004. In her will Mrs Morris senior left her estate to her two grandchildren, the fourth and fifth defendants.
4. The claim was brought to establish the claimant's beneficial interest in the farm on alternative bases. First, constructive trust on Pettit v Pettit ([1970] AC 77) principles and, second, proprietary estoppel. Her claim succeeded in the county court where His Honour Judge Wyn Williams QC (now Wyn Williams J) made declarations that: (i) the freehold interest in Ty Canol Farm be held by the first defendant as executor of the estate of Olive Marjory Morris upon trust for the claimant; and (ii) the claimant's share of the beneficial interest in that property is 25 per cent.
5. That order was the subject of an appeal to the Court of Appeal by Edward Richard Morris. The notice of appeal did not make it clear whether Mr Morris was appealing in his personal capacity as the first defendant or in his capacity as executor of the estate of his mother, that is to say, as the second defendant. However, on 22 February 2008 the Court of Appeal, Pill LJ, May LJ and Sir Peter Gibson, allowed the appeal and the order was made in respect of Edward Richard Morris in his capacity as executor, that is, as second defendant.
6. However, the order of the court perfected on 22 February 2008 named only the second defendant as the appellant in respect of whom the following was ordered: (1) the appeal be allowed; (2) the order of Wyn Williams J dated 11 June 2007 be set aside; (3) the action be dismissed; (4) the appellant's costs of this appeal and the court below be paid by the respondent, such costs to be assessed if not agreed.
7. It follows that the order for costs made by Wyn Williams J in the county court of the trial against the first, third, fourth and fifth defendants remained in existence, notwithstanding the plain implication that each of them should have the benefit of the costs order made in the Court of Appeal. A late attempt to obtain rectification of Wyn Williams J's original order under the slip rule was inevitably unsuccessful. Accordingly, the remaining defendants had no alternative but to launch a second appeal against Wyn William J's order. They received permission to proceed with that appeal from Patten J on 27 October 2009.
8. The claimant has apparently made no response to the appeal and has not appeared either by counsel or in person to resist it. There seems to me to be no answer to the present appeal and I would allow it. I would order that in respect of these defendants, first, third, fourth and fifth, the appeal be allowed, and that the original action against them be dismissed.
9. As to the costs consequences, Mr Guy Adams, who appears on behalf of the first, third, fourth and fifth defendants before us this morning, having taken instructions takes the realistic stance that there is no prospect of obtaining any monetary advantage by reversing the order for costs made in the original trial. What he seeks and what I would order is that as between the claimant and the present appellants there be no order for costs in the original trial in the court below.
10. As to the costs of the present appeal, there is no doubt that the responsibility for this hiatus which has required a second appeal to this court is that of the appellants themselves and I would make no order for costs in respect of the present appeal.

Lord Justice Elias:

11. I agree.

Lord Justice Carnwath:

12. I agree.

Order: Appeal allowed