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Cite as: [2012] EWCA Civ 1208

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Neutral Citation Number: [2012] EWCA Civ 1208
Case No: B2/2011/2587

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
HIS HONOUR JEREMY GRIGGS

Royal Courts of Justice
Strand, London, WC2A 2LL
4th October 2012

B e f o r e :

LORD JUSTICE LLOYD
LORD JUSTICE RICHARDS
and
LORD JUSTICE ELIAS

____________________

Between:
(1) GARIELLE BRADBURY
(2) PETER GEORGE LOCKWOOD BRADBURY
(3) COLIN JOSEPH HUNTER
Claimants
Appellants
- and -

(1) ROGER TAYLOR
(2)
DENISE BURKINSHAW
Defendants
Respondents

____________________

(Transcript of the Handed Down Judgment of
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____________________

Leslie Blohm Q.C. and Philip Jenkins (instructed by Wolferstans) for the appellants
Alexander Learmonth (instructed by Foot Anstey LLP ) for the respondents
Hearing date: 17 July 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Lloyd:

  1. This appeal is against an order of His Honour Jeremy Griggs, sitting as a Deputy Circuit Judge, which he made on 16 August 2011 in the Plymouth County Court. He dismissed the claim and granted the remedy sought by the Defendants on the counterclaim. The claim had originally been brought by William Samuel Taylor, but he died on 28 November 2010 which was, as it happened, the day before the case was originally due to come on for trial. The present claimants are his executors. He was 90 years of age when he died. Like the judge, I will refer to him, meaning no discourtesy, as Bill, the name by which he was known. Correspondingly I will refer to the First Defendant, his nephew and godson, as Roger and to the Second Defendant as Denise.
  2. Bill lived at a large house called Lower Manaton, set in some 15 acres of grounds, near Callington in Cornwall. He and his wife had moved there in 1985. His wife, Audrey, died in 1997. Bill continued to live at Lower Manaton. In August 2001 Roger and Denise, with their two children, moved from their home in Sheffield to live at Lower Manaton. The issue in the proceedings concerns the basis on which they made that move. Roger and Denise put forward the case that they are entitled to the property by virtue of the principles of proprietary estoppel.
  3. Bill brought the proceedings in June 2010. It seems clear that relations between the parties had soured rather definitively some time before that, but the details of the deterioration do not matter for the purposes of the appeal. Roger and Denise discovered in June 2009 that Bill was not intending to leave the property to them by his will, as they said he had promised to do. It was this that gave rise to the dispute. Bill's claim was not for possession as such, but for a declaration that the Defendants had no beneficial interest in the property and were no more than licensees or tenants, and for an injunction to allow access to all areas in the property, and also for the recovery of some alleged loans (the last claim being withdrawn by the executors). The counterclaim was for a declaration that the property was held on trust for the Defendants.
  4. The judge found in favour of the Defendants, accepting that the proprietary estoppel case was made out. He held that the whole property was held on trust for the Defendants, subject however to their bearing the inheritance tax attributable to it. He refused permission to appeal, but permission was granted by Davis LJ on the papers.
  5. In the county court the Claimants had been represented by Mr Philip Jenkins; on the appeal he was led by Mr Leslie Blohm Q.C. Here and below the Defendants were represented by Mr Alexander Learmonth. I am grateful to all Counsel for their clear and economical presentation of the arguments.
  6. The appeal does not involve any issue of law as regards proprietary estoppel. Rather the challenge is as to the application of those principles to the facts of the case, and above all as to the justification for the findings of fact which the judge made. It is therefore appropriate to summarise early in this judgment the findings that he did make, as the basis for his decision, with particular attention to those which are said not to be justified by the evidence. Before doing so, however, I must set out some of the essential facts, including the text of a draft letter which played an important part at the trial and on the appeal.
  7. Because the case was due for trial when Bill was still alive, he had made a witness statement, which was adduced in evidence at the eventual trial. Both Roger and Denise had also made witness statements, and they gave evidence orally and were cross-examined. Other witnesses also gave oral evidence, and some put in witness statements that were read without challenge. However, not surprisingly the judge considered that he was not substantially assisted by the evidence of any of the witnesses other than Roger and Denise, on the one hand, and the witness statement of Bill on the other. Of course Bill's evidence could not be tested, but there were some documents which enabled the judge to assess his evidence carefully. It is fair to say that the judge was somewhat critical of Bill's witness statement, and that he was substantially critical of Roger's evidence. He also made some criticisms of that of Denise, while saying that she was a more impressive witness than Roger.
  8. Lower Manaton was quite a large property, and its physical layout made it easy for two separate households to co-exist in it, one in the western part and the other in the eastern part. Bill and his wife lived there, and after her death Bill lived there alone, with a large collection of books and works of art which he had built up over the years. He had spent his professional life at Sheffield, where he became director of art history at Sheffield Hallam University. It is clear that he was very attached to the property Lower Manaton, including the grounds, and had strong opinions as to how it should be preserved and maintained. For example, he was particularly opposed to the conversion of barns for residential purposes. He had had his wife's ashes buried in a particular area in the grounds, and wished to have his own buried there as well, and for the area to be preserved as it was for as long as possible.
  9. Bill and Audrey had one child, a daughter Julia, but she had suffered from multiple sclerosis and had died in an accident in the early 1980's. She and her husband, Mr John Constantine, had a child, Michael, but Bill took against Michael for the way that Bill considered he had behaved to Audrey. More recently, Bill and Michael had become somewhat reconciled after Michael had a daughter of his own, Isobel, but Michael was not in favour in 2001.
  10. It is not in dispute that Bill proposed to Roger and Denise that they should move down to Lower Manaton and share the house with him, and that they agreed to do so. It seems that Bill may have felt a need for someone else to be living at the property after a lawnmower which he prized, and a chainsaw, were stolen from outbuildings at Lower Manaton. Denise's evidence was that Bill first spoke to her about it in late 2000. Roger had favoured the idea of moving down to Cornwall for some time past by then, but there seems to be no doubt that Denise was much less keen on the idea, not wanting to leave Sheffield where her family were based and, by 2000, where their elder child was already at school.
  11. Relationships between Bill and Roger had not always been good. In the late 1960's Roger had been unable to repay a loan made to him by Bill, and Bill had made Roger bankrupt, but it is clear that the relationship was a lot better by 2000.
  12. In 2001 Bill's current will was one which he had made in 1998. Under it Roger and Denise were both to be executors, together with two of his solicitors. The disposition of Lower Manaton by that will was as follows. Roger and Denise were to be allowed to occupy the property for seven years after his death, on stated terms and conditions. If at the end of the seven years his trustees (who would include Roger and Denise), or a majority of them, were satisfied that the terms and conditions had been complied with, then Lower Manaton was to pass to Roger and Denise outright. Otherwise it was to be sold and the proceeds were to be distributed by way of legacies, of which Roger and Denise were each to receive 5,000. It is clear from the solicitors' file that they had advised Bill against appointing either Roger or Denise as an executor, given the intended terms of this trust, but he did not follow that advice. The terms of this will were not made known to Roger or Denise at that time. They did not get to know of it until the process of disclosure in the course of the litigation. However, the existence of the will casts light on Bill's conduct in 2000 and 2001. He made a new will in November 2002, in different terms. His instructions to his solicitors about that will also throw some light on his attitude at that time.
  13. The draft letter of July 2001 which I have mentioned existed only in the form of a rough draft (not a fair copy) in Bill's handwriting on the back of a printed document which, we were told, was not itself dated specifically but was consistent with the draft having come into being in July 2001. The draft is not very clearly written and has a fair number of deletions and insertions. For present purposes the text (ignoring deletions, except in one place - shown below by striking-through - where it is needed for the sense, and not distinguishing insertions as such) can be set out as follows with reasonable confidence as to accuracy. It has a date 23 VII '01 at the top.
  14. "Roger
    It would be as well to write out the terms of my offer to you to live here.
    You would have the use of the E part of this house as I have told you: to the S hall door on the ground floor & to the door on the corridor on the 1st floor. I would expect some give & take until the division is complete. You would also have the use of the 14 acre garden. You would pay no rent but would cover your own expenses eg telephone food heating and half the rates, and insurance, half security costs. It would be understood that that the property & any of the furniture etc would be properly cared for. I would expect help with maintenance. The only condition, otherwise, that I made would be that you would be solvent & fully able, at all times, to meet these financial commitments & that you should be in possession of a reasonable income from at least some of the several business ventures you are involved with at present.
    I did not expect any thanks (nor did I get any!): instead I was given a number of conditions including decorating the kitchen, gutting the bathroom, signing a contract that I should not change my mind & guaranteeing that no one should be allowed to contest your occupancy when I am dead.
    Your suggestions or rather conditions concerning the alterations should be made as proposals for discussion when you are here. If you were paying rent, say 150 per week, there would be need for a contract. As it is there will be no contract, as this is a friendly arrangement.
    My offer (I have not changed my mind) still stands.
    Yours"
  15. Roger and Denise denied having received any letter in those terms or along those lines from Bill. If a letter was sent by Bill to them in late July 2001, for which that was some sort of draft, then the letter as sent is unlikely to have been in exactly the same words as the draft, and it is impossible to tell whether and to what extent the substance may have differed from the draft.
  16. Roger and Denise had already placed their Sheffield house with letting agents before 23 July 2001, but nothing decisive had happened in that respect by then. They moved to Cornwall with their children during August 2001. The proposed arrangements were made to divide Lower Manaton, and the parties lived there for the rest of Bill's life.
  17. In Bill's November 2002 will, Lower Manaton was disposed of in a different way. Roger and Denise were to be allowed to have the use of the property for their joint lives and that of the survivor, on stated terms and conditions. Subject to that, the property was to be sold and the proceeds divided between named charities. Roger was in any event to receive Bill's motor car and 10,000, and Denise was to receive 10,000. Neither Roger nor Denise was to be an executor. The instructions for the will disclose a mistrust of Roger's financial reliability: "he would blow all the money". Bill made a later will in 2005 under which Roger and Denise would obtain even less benefit as regards Lower Manaton, being allowed to stay there for only 6 months after his death, though they would have had 30% of his residuary estate. His final will was made in 2009, and gave them nothing as regards Lower Manaton. It did give them a share of residue, but this was subject to a condition of forfeiture if they challenged the will, and we were told that this has taken effect.
  18. In June 2009 Bill wrote a letter to Denise and Roger in which he told them of his present intentions as regards his will (though not in detail), which were to include benefits for his grandson Michael and the latter's daughter, and as regards the property, making it clear that they were welcome to stay at Lower Manaton during the rest of his life, but that they would have no right to stay there after his death. In the course of this letter he said this about the original invitation:
  19. "Initially, I invited you to live here, rent-free, in a different environment, in a not unpleasant house and garden; and should you accept it would be occasional company for me and the occupation of an unused part of the house. That is all it was: no undercurrents or hidden messages. That it has turned sour has caused me some distress and uncertainty for you."
  20. The terms of the 1998 will would have provided interesting material for the cross-examination of Bill, had he lived, given that at paragraph 15 of his witness statement he said "Roger would be the last person that I would leave the house to", and at paragraph 16 "There never was any intention of leaving my house to him, or anyone else".
  21. The judge noted this conflict at paragraph 23 of his reserved judgment, and referred, in general terms, to other criticisms of Bill by the Defendants' Counsel, on the basis of material some of which we have also seen, but which does not call for further mention now. He asked himself whether this error in the witness statement was a deliberate misleading of the court, or a failing memory, and was prepared to find that it was the latter, but such a mistake on a crucial issue in the case meant that he needed to treat his evidence with very considerable care before making findings based on it which were contrary to other important evidence in the case.
  22. In paragraph 22 he had said this, which I quote because of the reliance sought to be placed on it in support of the appeal:
  23. "His partner Denise was a more impressive witness, calm and measured in her answers in cross-examination, although in her case too I was less than impressed with her evidence about gifts said to have been made to her and other members of the family by Bill which only surfaced after Bill's death. That evidence was not something with which I am directly concerned it was accepted that it only went to credit."
  24. In paragraph 21 he had said that he found Roger "a distinctly unsatisfactory witness in many respects", argumentative and dogmatic in the witness box in relation to many matters put to him. The judge had "considerable reservations about his evidence as a whole".
  25. At paragraph 12 of his judgment the judge started to tell the story, according to the evidence put before him, on which the proprietary estoppel claim was based. Denise said that Bill had first spoken to her about herself and Roger moving to Lower Manaton, at a time in late 2000 when the two of them were alone and Roger was not present. At that stage he was speaking of such a move in general terms, not on the basis that any move would be imminent or at any particular time. He asked her what she thought about the house and gardens, and whether she liked it or would like it. He said the property would offer a better lifestyle for the children. He also said that, if they wanted it, he would leave the property in his will either in equal shares to her and Roger, or wholly to her, and would also leave some money "but not enough to buy two Porsches". She asked about his grandson Michael, to which Bill said that he would not be getting anything because of the way he had treated Audrey. Bill also told her that there would be a condition in his will that they would have to live there for seven years and that it could not be sold in the meantime. Denise was concerned about having to move away from her family in Sheffield, and about having to live at Lower Manaton for seven years. She discussed this with Roger after this conversation.
  26. A few months later, according to her evidence, Bill raised the subject again and suggested that she and Roger should move down sooner rather than later, to which, so she said, she replied that it would not work, and Bill agreed, because of the difficulties of sharing accommodation. Later still Bill returned to the subject and proposed that the house be split between them physically, as it had been during a previous ownership. She remained reluctant, because of having to leave Sheffield and to be far away from her family, but she said that eventually she concluded that with the large garden it would be better for the children, they would be financially secure and it would show Bill that they were committed to continuing to run Lower Manaton after he died.
  27. Roger's evidence was clearly of less significance for the judge, having regard to the comments about his credibility that I have already mentioned. However, the judge did note that, while Roger denied that he had asked Bill for a contract to deal with the circumstances of their occupation, Denise had wanted the security of a letter to say that the agreement was permanent and that he would not change his mind; Roger said that Bill had agreed to provide such a letter but never did.
  28. Having then recorded his assessment of the witnesses, the judge proceeded at paragraph 27 to make his findings of fact. He found that the relationship between Bill on the one hand and Roger and Denise on the other was good in the period up to August 2001. He accepted Denise's evidence about the conversation between Bill and herself in 2000 about the property, the first of the relevant conversations of which she gave evidence, as mentioned above. He dealt with his findings on this aspect of the case at paragraphs 28 to 30, as follows:
  29. "28. Having made the decision, at that stage still a revocable one, to leave them the property in his will, and having included in the will a number of conditions by which he sought to ensure that the property would be maintained in what he regarded as an appropriate fashion, he was keen to put in place the necessary arrangements. I find that he was keen that Roger and Denise should move to the property but was aware that he had to be subtle in his approach. He never spoke to both Roger and Denise about it together. I am entirely satisfied that he wished to do enough to entice them to come and live there. He was alive to the point Denise made to him that if they were to live together in the property it would not work He therefore put forward the proposal of the property being split between them, so that they could live there independent from him, and vice versa.
    29. Bill was all too aware of Denise's reluctance to move. I find that he did put some pressure upon her to do so. It was in his interest, as he himself accepted, to have others living there in order to increase security there. I accept Denise's evidence that she understood that it was a condition of them moving there that they should continue to reside there for seven years after his death, as a result of him having said as much to her when he first mooted with her the suggestion of the property being left to them. I reject the suggestion that she became aware of that suggestion as a result of looking through his papers. Denise just did not strike me as the sort of individual who would act in that way. I accept her account that she did not do so.
    30. I find therefore that there were representations by Bill to Denise and to Roger that the property would be left to them if they were to move from Sheffield and move into one half of the property with him being in the other half. They may not have been express representations but they were sufficiently clearly understood by both Roger and Denise and, as I find, they were intended to be so understood by Bill as meaning that if they moved from Sheffield to Lower Manaton in Cornwall and made their contribution as he had spelled out orally but confirmed in the letter dated 23 July 2001 he would leave the property to them in his will. I am satisfied that Denise was persuaded to move to Cornwall by the representations made to her by Bill. She wanted assurances and I am satisfied that she was given them: the letter of 23 July 2001, when Bill said that his offer still stands and he had not changed his mind I interpret as such an assurance. I find that the copy letter which was in evidence was a contemporary document and not something written ex post facto to justify his assertion that there was no representation that they would be left the property. Although Roger denied ever having seen that letter or anything like it at the time, I am quite satisfied that it represented what [Bill] was saying to Roger at the time, and through Roger to Denise. It matters not whether Bill actually sent them such a letter, although on balance I am inclined to the view that he did. I am wholly unpersuaded that the effect of the letter or any equivalent oral representations that Bill made at the time had the effect of reserving for him the right to dispose of his estate as he saw fit. Any reservations which he may have had he kept to himself. I am quite satisfied that he was keen to have Roger, Denise and their family living in the house at Lower Manaton and that he knew that they realised that if they accepted his offer of living there it was on the basis that he would in due course leave the property to them on his death."
  30. Having dealt in that way with the issue of representations by Bill, the judge went on to discuss detrimental reliance. He held that the move itself amounted to detrimental reliance, even though, as he recognised, there were substantial benefits for Roger, Denise and the children from the move. He also accepted that the contribution made by Roger and Denise to Bill's care was an aspect of detrimental reliance, even though individual instances may not have amounted to a great deal. In addition he found that the work done and expenditure incurred by Roger in improvements to the property was also detrimental reliance, and that despite the fact that, in terms of the immediate use of the property, Roger, Denise and the children were beneficiaries of much of the work. The judge recognised that the enhancement to the value of the property may have been less than the amount spent on the works. There was evidence (independent of that of Roger, who put the figure higher) that almost 100,000 was spent on the work, leaving out of account the value of Roger's own time and work, but that the effect of the work was to increase the value of the property by some 46,000. At the end of paragraph 31 the judge said this about the improvement works:
  31. "I do not need to make findings about the value of Roger's personal contribution as I am satisfied that the work done and the expenditure incurred was on a sufficient scale as to amount to detrimental reliance, regardless of its precise cost or value."
  32. The judge then referred to some of the principal cases to which he had been referred, including Thorner v Majors [2009] UKHL 18, [2009] 1 WLR 776. In paragraph 33 the judge said this, after his reference to that case:
  33. "The context in which Bill enticed Roger and Denise to move to Cornwall when Denise had been reluctant to do so because of the strength of her family ties which inevitably would be severed by such a move satisfies me that the representations in this case were sufficient to give rise to a proprietary estoppel."
  34. Then he moved on to consider what relief should be given, placing particular reliance on the Court of Appeal's decision in Jennings v Rice [2002] EWCA Civ 159, [2002] 1 FCR 501. The argument for the Claimants was that, if the case for a proprietary estoppel were found to be established, it would be altogether disproportionate to give Roger and Denise the whole property. That would be far more than was needed or appropriate in order to remove any element of unconscionable behaviour on the part of Bill. The judge's reasoning on this aspect is set out in the last two paragraphs of his judgment. Correcting a misnumbering in the presentation of his judgment as delivered, they are paragraphs 37 and 38, as follows:
  35. "37. In my judgment this is not a case in which I should engage in an exercise of seeking to evaluate the various benefits and detriments suffered. Apart from the difficulty in pursuing such a task in this case other than in the most general way, it seems to me that it would be artificial in the extreme. I am satisfied that there was a bargain, albeit, as Bill himself categorised it, a non-contractual bargain: it was a family arrangement which was going to involve give and take on both sides. It was acted on by both sides for a number of years and both sides derived significant benefits from it. As I have already indicated there is a dispute as to the cost and the value of the works carried out at the property by Roger. Bill had the benefit of knowing that there was someone present in the house even though he continued to live an independent existence for as long as he was able. I have not referred, save in passing, to the art lectures which he gave at the property on a regular basis over a number of years. He clearly enjoyed being able to pursue this activity which was really only made possible by the presence of Roger and Denise in the property. The attendees at the lectures and at the social receptions afterwards may well primarily have been friends of Roger and Denise but a cross-evaluation of the respective benefits and detriments for both sides would be quite impossible.
    38. I have already found that Bill did make a representation to the Defendants that if they moved to the property with their family he would leave it to them in his will, provided various conditions were met. In my judgment Roger and Denise fulfilled their side of the bargain by moving, by being present at the property, by looking after it and maintaining and restoring the fabric of it to a very considerable extent, as well as providing succour and support to him from time to time. I find that this is precisely the sort of case envisaged by Robert Walker LJ in Jennings v Rice at paragraph 45 of his judgment where the expected benefit and the expected detriment were in general and in an imprecise way equivalent, or at any rate not obviously disproportionate, and in the circumstances I propose to find that the Defendants are entitled to receive the property Lower Manaton absolutely"

    though subject to bearing the inheritance tax attributable to the value of the property.

  36. For the Claimants Mr Blohm submitted that the judge went wrong in several respects. He argued that there was no adequate finding of a sufficient representation, or that that there was no basis in the evidence for such a finding, especially given the terms of the July 2001 letter. He also contended that there was no proper basis for a finding of detrimental reliance by Roger and Denise. He submitted that the award of the whole property, even subject to inheritance tax, was altogether disproportionate and wrong in law. He also argued, seeking permission to amend his grounds of appeal for this purpose, that the judge was wrong in paragraph 22 of his judgment, in the passage which I have quoted at paragraph [20] above, to disregard his adverse view of Denise's story about gifts of works of art as being relevant "only" to credit.
  37. I will deal with this point first. At the time of Bill's death there were many works of art at Lower Manaton. They were not the subject of the proceedings brought by Bill or of the counterclaim by Roger and Denise. After Bill's death the question of an inventory arose, at the instance of the Claimants as executors. Roger and Denise contended, in response to this, that some of the works had been given to one or other of them or to them as a family. This remained an issue foreign to the proceedings, which the judge did not have to, and indeed probably could not (unless by agreement between the parties), determine. There was, however, before the county court judge a schedule of the works of art, showing what Roger and Denise asserted as regards gifts. They had prepared this pursuant to an order made on 27 January 2011, as part of the order by which the executors were substituted as claimants. The credibility of the principal witnesses clearly was relevant and within limits it was open to the Claimants' Counsel to cross-examine Roger or Denise or both on points arising from the question of ownership of the works of art, seeking to show that their evidence on matters more directly relevant should not be accepted.
  38. In a supplemental skeleton argument, Counsel for the appellants contended that the judge was wrong to treat this issue as relevant only to credit. It was relevant to that, but they contended that it was also probative on the issue directly before the court, because it concerned the same sort of issue, namely whether Bill had given to Roger and Denise valuable assets by word of mouth during his lifetime. They also submitted that in the passage quoted above from paragraph 22 of the judgment the judge found that Denise was not to be believed on the question of the gifts of works of art. This was said to vitiate the judge's finding elsewhere that he accepted Denise's evidence on the issue of representations, because he gave no reason for accepting that evidence, having disbelieved her on the gifts of the works of art. As Counsel for the respondents pointed out, this point did not feature in any of the twelve itemised grounds of appeal, even after amendments made in July 2012. Therefore Mr Blohm sought permission at the hearing of the appeal to amend to add a further ground, which he articulated as follows (I record it in terms because it was reduced to writing in what I understand to have been only a single copy during the hearing, which is with my appeal papers):
  39. "The learned judge erred in that, having found that Bill did not give the items set out in the Schedule to Denise, he treated this as a mere issue of credit."
  40. The issue of ownership of works of art did not feature in any of the witness statements prepared for the trial. Mr Jenkins, for the Claimants, raised the point in the course of his cross-examination of Roger. Mr Learmonth interposed to point out that these items were not in issue in the proceedings to which the judge said that he was aware of that, and that he understood that it went to credit. Mr Jenkins did not address questions to Roger about the detail of the schedule of gifts. He put it to him that, if there had been the volume of gifts which he now contended for, Roger and Denise would have been paying a good deal more than the annual figure of 12 which was the estimated figure of their contribution to the insurance of antiques. Roger's response was that he did pay more than 12. Then the cross-examination passed to other matters. Mr Jenkins raised the subject again when cross-examining Denise. He showed her several items which were shown in the Schedule as having been given to her. He made the point that these gifts were not mentioned in her witness statement, even though they would have been relevant to show how generous Bill was to them. Some rather inconclusive cross-examination then followed, and Counsel then moved away from this topic. So the whole of the evidence on this point, apart from the Schedules themselves, consisted (in terms of the transcript) of less than two pages of Roger's evidence and just over two pages of that of Denise.
  41. That being the state of the evidence on the point, it seems to me to be somewhat fanciful to suggest that the judge was wrong to treat this point as relevant only to credit. After the judge's own comment to that effect, which I have mentioned above, it seems to me that if Mr Jenkins had wished the judge to understand that he contended that it was of greater relevance, first, he should have said so at the time and secondly, in any event, he must have pursued the cross-examination more thoroughly, so as to provide the judge with a proper evidential basis on which to make findings either way on the point, or as to credit. Moreover, I do not accept that the judge's words "I was less than impressed with her evidence" amount, in the context, to a finding that she was not telling the truth. This experienced judge, giving a reserved judgment, took care as to what he said about the witnesses and about the factual issues that he had to decide. The language he used in this part of paragraph 22 is not that of a finding of a lack of truthfulness in the giving of evidence. To the contrary, it seems to me to show that he took care, in explaining why he found Denise an impressive witness, to show that he had in mind this point on which her evidence may have been less reliable. Given the brevity of the treatment of this aspect of the case in cross-examination, I would have found it surprising if the judge had made a definitive finding as to whether Denise was telling the truth in this part of her oral evidence. Thus, I cannot accept the premise of the proposed new ground of appeal: the judge did not find that Bill did not give the listed works of art to Denise. He made no finding either way on that.
  42. I can understand why the appellants wished to raise this point, because in other respects they face a serious uphill task in seeking to challenge the judge's findings based on his acceptance of Denise's evidence. But there is no substance in this particular argument, and I would not give permission to amend the grounds of appeal so as to raise it.
  43. I therefore move on to the points on which the appellants do have permission to appeal, and first to the question whether the judge's findings as to representations were soundly based.
  44. As appears from the passages which I have quoted from the judgment, the judge accepted Denise's evidence as to what Bill had said to her, and held that Bill had acted deliberately in what he said, in pursuing over time his attempt to persuade her that the family should move to Lower Manaton from Sheffield. It is clear that Bill knew that Roger favoured the idea of moving and that Denise did not, so he knew that it was she who needed to be persuaded. He was no doubt deliberate in choosing to raise the subject with her in the absence of Roger. Equally, he must have realised that what he said to her would be passed on to, and discussed with, Roger, at any rate if it had any effect on her. So one point made in the grounds of appeal, namely that there had been no promise to Roger, is without substance. Since the family would move (or not) as a whole, any representation to either of the adults would amount to a representation to both of them.
  45. I understand the basis of the judge's findings on this point to be that he accepted Denise's evidence as to the sequence of her conversations with Bill. First, late in 2000, Bill raised the question of whether she would like to move to Lower Manaton, but in general terms, not in relation to a proposal for an imminent move, and he said that he had it in mind to leave the property to both of them (or maybe just to her), but subject to the condition of living there for seven years after his death. This is supported by the consistency of the proposal with what he had in fact provided for in his then current will. That conversation did not lead to anything in particular at the time, but it made Denise (and, through her, Roger) aware of what Bill intended or had in mind as regards the property, including, in terms, that they would inherit it, though subject to conditions. In the next conversation, some months later, Bill raised the question of Roger and Denise moving to Lower Manaton sooner rather than later, that is to say, in effect, while he was still alive. The first proposal to that effect was rejected, because of the perceived difficulty of their sharing the same living space. This led to the next proposal, again some months later, that the house should be divided physically, so that Bill would live in one part and Roger, Denise and the children in the other. It was in response to this proposal, in the context of what Bill had said before, that Denise was ultimately persuaded to agree to an immediate move.
  46. The real focus of Mr Blohm's submissions in this respect was that the judge's findings were incompatible with the terms of the July 2001 letter, in either or both of two respects: it showed that there was no operative representation, at the time of the move, as to what the position would be after Bill's death, and even if there had been it showed that Roger and Denise did not rely, or were unreasonable in relying (if they did), on any such representation. In support of his submission he referred to the evidence that Denise had wanted at least something in writing as an assurance of Bill's intention, to give her some security, and for that matter that Roger had himself wanted a contract. He pointed to the last part of the letter as showing both that Roger had asked for something in writing (whether or not properly described as a contract) and also that Bill refused to provide one. He also pointed to the fact that the letter is expressed as setting out the "terms of" Bill's offer but that those terms do not include any provision as to the position after Bill's death.
  47. That is true, so far as it goes. However, it is also clear from the letter that there had been discussion of the position as it would be after Bill's death: see the words "that I should not change my mind and guaranteeing that no one should be allowed to contest your occupancy when I am dead". That is consistent with what Denise had said of Bill's earlier conversations with her and, of course, with the terms of his will at the time. Moreover the terms of Bill's offer, confirmed in the letter, were as to his offer to them "to live here". In that context it makes sense that the letter should deal with practicalities of the sharing of the property, in physical as well as financial and other practical respects.
  48. Mr Blohm showed us some of the cross-examination of Denise on this point, as well as that of Roger. She accepted that she knew that even if a will was made, it could later be changed. She said that that was why she had said to Bill specifically that he might change his mind, and he assured her that he would not. In her witness statement she had said that she was anxious to have something in writing before they moved to Lower Manaton, which she told Roger of, and that she understood that he said this to Bill who, according to what Roger told her, kept promising it, but never did write it down. He also relied on what Denise had said at paragraph 108 of her witness statement about the July 2001 letter. She there said that they did not receive a letter in those or any similar terms from Bill at that time, and also said "If I had, I would never have agreed to move to Lower Manaton. The only reason I agreed to move here was because Bill promised me that he would leave Lower Manaton to us in his will."
  49. That witness statement was made in October 2010, when Bill was still alive, in response to his assertion that he had sent such a letter to them and thereby showed that he was not making any promise as to the position after his death. It does not seem to me that a comment such as that by Denise, in her witness statement made at that stage, as to what she would have done if she had received such a letter, can necessarily be taken as particularly revealing. The letter itself indicates that there had been some discussion as to the position after Bill's death, and that is consistent with Denise's evidence as to what he had said to her earlier, which the judge believed. Moreover, the passage in Bill's witness statement to which this is, in effect, a response includes paragraphs 15 and 16 to which I have referred at paragraph [18] above, which are contradicted by the terms of Bill's 1998 will itself.
  50. It is also to be noted that Bill's letter said in terms that he had not changed his mind, a point which might well have been seen as meeting Denise's concern, expressed to Bill in terms, that he might change his mind.
  51. Mr Blohm submitted that the letter is fatal both to the Defendants' case as to a continuing representation, whatever may have been said to Denise previously, because it showed that Bill was not willing to make any commitment as to the position after his death, and also as to their case on reliance, particularly because of the passage in Denise's witness statement at paragraph 108. After receiving such a letter, he submitted, any reliance on whatever Bill had said previously to Denise could not be regarded as reasonable.
  52. That argument has to be seen in the light of the evidence accepted by the judge as to what Bill had said previously to Denise, and the intention with which he said it. The terms of the letter are not in any respect incompatible with the judge's findings of a prior representation to Denise, and through her to Roger as well, that Bill would leave the property to them if they came to live at Lower Manaton on the basis proposed. The reference to the possibility of their occupancy after his death being disturbed shows that that subject had been raised, which is consistent with what Denise had said and what the judge accepted from her. Mr Blohm's point was that what Bill did not do, and by this letter said he would not do, was to confirm this in writing. However, if one starts from the position that Bill had made such a promise to Denise, orally (as the judge did, having heard the evidence), then it seems to me that his statement towards the end of paragraph 30 that neither the letter, nor his failure to put anything down in writing, amounted to a communication to them that he reserved to himself the right to deal with the property as he thought fit in his will, and that if Bill had any reservations he kept them to himself, is one which it was well open to the judge to make.
  53. I therefore reject Mr Blohm's submissions based on the letter, and on Bill's failure or refusal to confirm his intentions in writing, to the effect that either there was no continuing or operative representation at the time when the Defendants moved from Sheffield to Lower Manaton, thereby acting (as they said) or starting to act in reliance on what Bill had said to Denise previously, or that if there was any such representation despite the terms of the letter, they were unreasonable in relying on it.
  54. The grounds of appeal put this aspect of the appeal in a number of slightly different ways. As regards the points which I have not yet dealt with in terms, I believe it is enough to say that it seems to me that the judge did make proper and sufficient findings as to the representations and their cumulative effect on Denise, and through her also on Roger.
  55. I therefore reject the grounds of appeal concerned with representations and with reliance. I turn last to the question of the remedy.
  56. The appellants' attack on the judgment in this respect is that the judge was wrong to treat it as a case in which it was appropriate to fulfil the expectation of inheritance. The argument was that the equity arose not only from the encouraged expectation but from the combination of the expectation, the detrimental reliance and the unconscionableness of allowing the representation to be resiled from, that therefore all of these elements needed to be assessed and put in the balance, and that in the present case to conduct such an assessment would show that to give the whole property, even subject to inheritance tax, to the respondents would be altogether disproportionate. This was particularly so, according to the submission, given the substantial benefits obtained by the respondents during Bill's lifetime by virtue of the arrangement. Mr Blohm referred to the proposition, supported by some of the authorities and referred to in terms by the judge early in his paragraph 34, that the remedy should give to the person who has the benefit of the equity the minimum that is necessary to do justice, and he submitted that the judge had, in particular, failed, wrongly, to consider the benefits obtained by the respondents because he did not address the question whether the benefit to be provided by way of remedy would be disproportionate having regard to the detriment which had been suffered, and that if he had done he would have recognised that there had been very little, if any, real detriment to the respondents.
  57. This is not, and could not be, a challenge to the judge's finding that Roger and Denise did act in reliance on Bill's representations. Instead it involves an argument that in so doing either they suffered no detriment or, more relevant to the issue of remedy, such detriment as they suffered is to be balanced against the advantage they gained and should be found not to be substantial. In that regard, there are several elements to which no conventional or measurable value can be assigned, such as, on the one hand, the advantage of living in a house with large and pleasant grounds where the children could play more freely than in Sheffield, on the one hand, and to the contrary the fact that Denise was living there a long way away from her family. Other factors could more realistically (even if not without difficulty) have some kind of value assigned to them, including the cost and value of works done to the property. It seems to me that it was clearly legitimate for the judge to take the view that, despite the immediate advantage that some of those works may have provided in terms of the occupation of the property by Roger, Denise and their children, they would not have been done if Roger and Denise had not believed that they were assured of more than the ability to live at Lower Manaton for Bill's lifetime. The judge recognised the advantage of the works to the occupiers, but held that the carrying out of the works did amount to detrimental reliance. That is not a conclusion which is open to challenge.
  58. It is also to be noted that the judge required the respondents to bear the inheritance tax attributable to the value of Lower Manaton, which plainly reduces the value of the award to them, and might be said to reduce it below what they might reasonably have expected.
  59. Thus it seems clear that the judge directed himself correctly as to the law, which had not been in dispute between the parties, and as to which he cited the most relevant passages from prior authority. He took into account all relevant factual considerations, including, in terms, the advantages to Roger and Denise of living at Lower Manaton, while retaining their house in Sheffield, which for a time they let out. On that basis he carried out an evaluative exercise as regards the benefits and disadvantages, and as to how Roger and Denise would be placed if the representation were permitted to be resiled from. It does not seem to me that he committed any error in carrying out this process, or in coming to the outcome that he did.
  60. In his oral submissions Mr Blohm argued that the case was not to be treated as a case of a quasi-bargain, as well as saying that, even if it was, the benefit accorded by the order was disproportionate. I do not find that a very useful enquiry in the circumstances of this case. I can accept that there will be different degrees of similarity to a contractual bargain in the facts of cases in which reliance is placed on a proprietary estoppel, in the absence of a contract. So long as the judge has the facts clearly in mind, with the material elements of advantage or disadvantage to those concerned, as this judge plainly did, and has understood the law correctly, as, again, this judge did, the parties having been in agreement in their submissions on that, it is inherently difficult to show that the judge has misdirected himself in coming to a conclusion as to the appropriate remedy. Certainly in the present case, I find no error in the judge's reasoning or his conclusion.
  61. At the hearing we were told that the Court of Appeal had recently decided an appeal concerning a proprietary estoppel claim based on assurances as to inheritance, but the judgment was not then available. Since then, and after I had formulated my reasons as expressed above, the judgment has become available. We were supplied with copies and with brief submissions about it on each side. The case is Suggitt v Suggitt [2012] EWCA Civ 1140, decided by Sir Nicholas Wall P, Arden and Sullivan LJJ. I have read the judgment of Arden LJ and the submissions about it. Nothing in that material causes me to alter my reasoning or my conclusion. The law was not in dispute in that appeal (any more than it is here) and the case turned on the facts. It is not helpful to argue about the facts of one case by comparison with those of another.
  62. For all those reasons I would dismiss the appeal.
  63. Lord Justice Richards

  64. I agree.
  65. Lord Justice Elias

  66. I also agree.


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