UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 340 (LC)

UTLC Case Number: ACQ/35/2014

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

COMPENSATION – Compulsory Purchase – Preliminary Issues, whether (1) one of two Personal Representatives may make a valid Notice of Reference to the Tribunal, (2) the Claimant’s claim for compensation has been compromised by agreement between the parties

 

 

IN THE MATTER OF A NOTICE OF REFERENCE

 

 

BETWEEN MR SEAN DEVINE

Claimant

 

and

 

TRAFFORD BOROUGH COUNCIL

Acquiring Authority

 

 

Re: 17 Navigation Road

Altrincham

WA14 1LW

 

 

 

Determination by Written Representations

 

 

 

© CROWN COPYRIGHT 2015

The following cases are referred to in this decision:

Attenborough v Solomon [1913] AC 76

Jacomb v Harwood (1751) 2 Ves Sen 265

DECISION

 

The Issues

1.                  The issues giving rise to this determination on written representations lie within a short compass. They are defined by the Direction and Order made by Registrar Scannell dated 11^th August 2014 (“the Directions”) following an initial directions hearing on 5^th August 2014.  Two preliminary issues arise for consideration:

First, whether one of two Personal Representatives may make a valid Notice of Reference to the Tribunal;

Secondly, whether the Claimant’s claim for compensation has been compromised (i.e. settled by agreement having been reached between the parties).

For reasons which will become clear, I proposed to deal with issues in reverse order.

The Background

2.             The background history giving rise to the Directions is as follows:

(1)   On 24^th February 2009 Trafford Borough Council (“the Acquiring Authority”) made a Compulsory Purchase Order (“the CPO”) in relation to a dwelling house and outbuildings known as 17 Navigation Road, Altrincham, in the Borough of Trafford (“the Property”). At that time the Property was owned by Kathleen Devine (otherwise known as Margaret Kathleen Devine).  It was unoccupied as Kathleen Devine lived at 26 Sefton Crescent, Sale, Cheshire M33 7EN.  The CPO was confirmed by the Acquiring Authority on 14^th May 2009. 

(2)   The Property duly vested in the Acquiring Authority on 30^th November 2009 as certified by the solicitor for the Acquiring Authority on 28^th October 2009. 

(3)   On 30^th April 2010 Margaret Kathleen Devine died intestate and letters of administration were granted to Sean Devine (the Claimant), and his sister Alison Devine on 27^th September 2010 out of the District Probate Registry at Brighton.

(4)   Subsequently a claim was made by the Claimant seeking compensation in respect of the Property in answer to the Notice to Treat served on 27^th October 2009.

(5)   On 16^th August 2011 a payment was made by the Acquiring Authority to the Claimant and his sister of £99,000 together with statutory interest thereon by way of advance payment of compensation, subject to certain terms and conditions, as specified.

(6)   On 3^rd May 2014 the Claimant made a Notice of Reference to the Tribunal (received on 6^th May 2014) seeking a claim for compensation following CPO and in which the approximate value of the claim made by the Claimant was £145,469.  The Claimant provided a number of documents in support of this claim including a document headed “summary of reasons, and a calculation of the money sought in the claim.”

(7)   The response by the Acquiring Authority to the Notice of Reference was served dated 9^th June 2014 attached to which is a summary of the contentions raised by the Acquiring Authority.  Two points are raised in this summary, namely that the Claimant is one of two Personal Representatives, and that the claim should be brought by both Personal Representatives.  Secondly, it is contended that the Claimant together with his sister have accepted the proposals put forward by the Acquiring Authority settling the compensation payable in respect of the Property.  Reference is made to an email addressed to Mr Nigel Townsend of the Acquiring Authority from the Claimant’s solicitor dated 24^th January 2014 in which it is stated as follows:

“Thank you for your email of 21 inst and I am pleased to confirm to you that my client is now prepared to accept the proposals as outlined in your letter of 12 ultimo being as follows –

(1). The balance of compensation payable to my client to be based on £118,000 representing the freehold value;

(2) Payment of property and reasonably incurred surveyors fees in negotiating compensation;

(3) Properly and reasonably incurred legal fees in relation to the claim;

(4) Statutory interest.”

(8)   Following the Directions made by Registrar Scannell following the hearing on 5^th August 2014 the Acquiring Authority made a Statement of Representations dated 28^th August 2014 and subsequently amended on 14^th October 2014 in relation to the Preliminary Issues as directed by Registrar Scannell, to which I shall make further reference below..

(9)   On 12^th September 2014 the response from the Claimant was received by the Tribunal. This goes into some detail as to the two issues raised by the Acquiring Authority.

(10)  On 16^th January 2015 Her Honour Judge Alice Robinson, on consideration of the disclosed documentation in the case, made an order (“the Disclosure Order”) that the Acquiring Authority do within 14 days thereafter serve on the Claimant and the Tribunal copies of certain specified correspondence.  This was required in order to determine the second preliminary issue relating to the possible compromise of the claim by the parties. 

The disclosed documentation

3.             The disclosed documentation produced as a result of the Disclosure Order demonstrates a course of conduct between the parties as to the proposed settlement of the claim for compensation.  The details are as follows: in an open email dated 11^thDecember 2013 from the Claimant’s solicitors (sent on behalf of Mr Geraint Clwyd-Jones, a partner in the firm instructed by the Claimant, by Ms Rhiannon Jones) refers to the fact that he was instructed by the Claimant to inform Mr Townsend that his client would be prepared to agree a settlement in respect of the compensation claim at a figure of £118,000, together with statutory interest on the balance, and legal and surveyor’s costs properly and reasonably incurred.  In his response dated 12^th December 2013 Mr Townsend confirmed that he would recommend settlement of the claim (in full and final settlement) based upon the payment of the balance of compensation to the Claimant based upon the figure of £118,000, together with surveyor’s fees (properly and reasonably incurred and negotiating compensation), legal fees (properly and reasonably incurred in settling legal matters relating to the claim), and statutory interest on the compensation element. 

4.             The correspondence then reveals that on 21^st January 2014 Mr Townsend sought to follow up his previous email as no response had been received.  Following this the open email dated 24^th January 2014 was received by Mr Townsend from Mr Geraint Clwyd-Jones in which it was stated that the Claimant was prepared to accept the proposals as outlined in the letter dated 12^th December 2013, and information was sought as to the question of surveyor’s fees and legal costs (see paragraph 4, above).  There was further correspondence on the subject of fees in so far as the valuer’s fees and the legal fees were concerned (see the email dated 30^th January 2014) when Mr Townsend sought additional information so that progress of the settlement of the compensation claim could be concluded.  There was a follow-up email dated 26^th February 2014 from Mr Townsend seeking to progress the settlement of the claim, and there was a further follow-up email dated 3^rd April 2014 as there had been no response to the earlier email.

5.             In an open letter dated 14^th April 2014 to Mr Townsend  from Mr Geraint Clwyd-Jones  further information on the outstanding items was provided, and the sentiment was expressed that  this “long-standing protracted matter” could “be settled and finalised once and for all.”

6.             However, on 3^rd February 2015 a bundle of documentation was received from the Claimant sent directly to the Tribunal under cover of a letter dated 30^th January 2015.  In his letter the Claimant wished to draw the attention of the Tribunal to certain key elements of the case and he raised a number of issues, some of which appear to be outside the zone of compensation for compulsory purchase.  Annexed to this letter is an updated calculation of claim as at 30^th January 2015 in which the Claimant sought total compensation of £156,658.77 as to which a number of explanations are made and correspondence annexed. 

7.             The question therefore arises as to whether it is possible at this stage for these matters to be raised having regard to the issue raised by the Acquiring Authority that the claim for compensation has effectively been compromised by virtue of the correspondence passing between the Claimant’s solicitors and representatives of the Acquiring Authority in late 2013 to early 2014, as set out above.

Has the Claim been Compromised?

8.             Turning to the essential legal requirements of a valid compromise, as set out in paragraph 3-01 of Foskett on the Law and Practice of Compromise (7^th Edition) a contract will not be found arisen unless:

(1)   Consideration exists;

(2)   An agreement can be identified which is complete and certain;

(3)   The parties intend to create legal relations; and

(4)   In some cases, certain formalities have been observed.

9.             In my judgment it is clear based upon the various features to which I have made reference above in the correspondence passing between the Claimant’s solicitors and the representatives of the Acquiring Authority that the first, second and third requirements are satisfied, and that the fourth requirement is not in point.  I consider that the evidence as contained in the documentation demonstrate that there is no doubt that a compromise was reached as to the payment of compensation by the parties.  I consider that by reference to the exchange of the written communications to which I have made reference, above, the negotiations between the parties did crystallise into a contractually binding agreement as evidenced in particular by the letter dated 14 April 2014 from the solicitor acting on behalf of the Claimant when the whole course of the negotiations is seen in the round.  In my judgment, therefore, I consider that a binding agreement was entered into between the Claimant and the Acquiring Authority whereby in particular the claim for the payment of compensation of £118,000 was agreed.

Whether one or two Personal Representatives may make a valid Notice of Reference to the Tribunal?

10.         Having reached a determination on the issue of compromise, it would seem that it is not strictly necessary to make a decision on this point.  However, for the sake of completeness I have come to the conclusion that it is clear on the principles of law that I consider that it has absolutely no merit.  As the Acquiring Authority states in its Statement of Representations, the general rule is that Personal Representatives must act unanimously when exercising their discretion or making decisions relating to a deceased’s estate, being the general rule against delegation (“delegatus non potest delegare”). The basis of this principle against delegation is that a donee of a power cannot refer the power invested in him or her to the execution of another.  Thus, one Personal Representative cannot exercise judgment and discretion of behalf of another unless permitted to do so under the terms of the will, or under the Letters of Administration where there is no will, or by statute such as where there is a power of attorney permitted by section 25 of the Trustee Act 1925. 

11.         However, there is a second general rule that in the case of personalty (as here) in the case of executors their authority over pure personalty is several as well as joint, so that one can dispose of pure personalty without the concurrence of the other or others. This rule also probably applies to joint administrators so that the acts of one joint representative are binding on the other or others, subject to certain exceptions. This is the rule referred to in the case of Jacomb v Hardwood (1751) 2 Ves Sen 265, (and see Attenborough v Solomon [1913] AC 76).  Thus the Claimant can seek to make a claim for compensation which is therefore binding on his sister.

12.         This being so, the answer to the second preliminary issue is in the negative.

Judge Edward Cousins

 

18^th June 2015