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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Spencer v Estate of John Mitchell Spencer & Ors [2023] EWHC 2050 (Ch) (09 August 2023) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2023/2050.html Cite as: [2023] EWHC 2050 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
Fetter Lane London, EC4A 1NL |
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B e f o r e :
____________________
MICHAEL JOHN SPENCER |
Claimant |
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- and - |
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(1) ESTATE OF JOHN MITCHELL SPENCER (DECEASED) (2) PENELOPE ANNE SPENCER (3) JANE MARY FLOWER |
Defendants |
____________________
Ms Caroline Shea KC and Sarah Haren KC (instructed by Thrings) for the Defendants
Hearing dates: 12-16 June, 19-21 June 2023
____________________
Crown Copyright ©
Mr Justice Rajah:
THE BACKGROUND
PROPRIETARY ESTOPPEL THE LAW
'Where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B's property, B cannot insist on his strict legal rights if to do so would be inconsistent with A's belief.'
This passage was quoted with approval by the Court of Appeal in Wayling v Jones (1993) 69 P&CR 170 and in Gillett v Holt [2001] Ch 210, 226F.
" it is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a 'mutual understanding' may depend on how the other elements are formulated and understood. Moreover, the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round."
"The aim [of the remedy] remains what it has always been, namely the prevention or undoing of unconscionable conduct. In many cases, once the equity is established, then the fulfilment of the promise is likely to be the starting point, although considerations of practicality, justice between the parties and fairness to third parties may call for a reduced or different award. And justice between the parties may be affected if the proposed remedy is out of all proportion to the reliant detriment, if that can easily be identified without recourse to minute mathematical calculation, and proper regard is had to non-monetary harm."
"Take the example where the daughter spends the whole of her working life on the family farm, working at low wages, in the promised expectation that she will inherit it. The question whether giving her the farm is disproportionate is not to be answered in such a case simply by comparing the monetary value of the farm with the net present value of the wages differential. Modern capital values of farmland are typically so high that the farm would always be worth much more than any valuation of the detriment. But that does not make a full in specie enforcement of the expected inheritance disproportionate. It will be proportionate (or at least not out of all proportion) because the daughter has fulfilled her part of the family understanding, and it is only fair and proportionate that the parents should now perform theirs."
CONSTRUCTIVE TRUST
APPROACH TO THE EVIDENCE
ASSURANCES
When first raised?
i) He sets out a specific recollection of the first meeting on 19 December 2018 (" Jane really conducted the meeting on behalf of the clients and gave most of the instructions to me, Michael said very little"). He sets out the circumstances in which Michael "clearly told me at our first meeting that the will did not reflect the promises that had been made to him" and that "Michael was complaining about the will not making provision for the land not being his right from the first meeting". . He says this happened at the end of the meeting after Jane had left and this is why it was not included in either his typewritten or manuscript attendance note and also why he returned to the topic in the second meeting. "I can recall" he said "after that meeting he was very unhappy with the will because, he maintained to me that the land which his father owned had always been promised to him" and "I remember him saying to me at the end of the meeting in December 2018 that he would see how it went and otherwise he was going to bring a claim". He says he should have documented the discussion at the end of the meeting in his December 2018 attendance note.
ii) He explains an undated manuscript attendance note on Mischcon de Reya headed notepaper ("the Mishcon attendance note") which records "Father told you he would make sure you could keep the land and farm it" as a note of what Michael said to him at the second meeting on 22 January 2019. He states that on that occasion he gave "clear advice" to Jane and Michael that Michael may have a proprietary estoppel claim or 1975 Act claim and purports to set out his recollections of Jane's reaction.
iii) He expresses a specific recollection of Jane leaving a meeting: "I recall that either at [the second] meeting or the December 2018 meeting (I cannot be sure which) Jane left the meeting and said that she was going to get her own solicitor who she described I thought oddly as "a proper solicitor".
i) A witness statement in this form should never have been prepared by Mr Russ;
ii) He should not have put a Statement of Truth or a Confirmation of Compliance to it;
iii) He should not have put a Certificate of Compliance to it. I heard no argument on this point but it seems to me to be quite wrong for a solicitor who is a witness to self certify that he has "discussed with and explained to" himself the purpose, proper content and proper practice in preparation of a witness statement as required by paragraph 4.3 of the Practice Direction. Paragraph 4.3 envisages that the Certificate of Compliance will be given by a different person to the witness who has themselves a separate responsibility for ensuring that the witness has understood his or her obligations. If there is no different person within the meaning of the Practice Direction then paragraph 4.4 makes clear that an application can be made without notice and without a hearing for dispensation from the obligation to have a Certificate of Compliance.
iv) He should have corrected his witness statement at the earliest opportunity, first in correspondence and then by filing a corrective witness statement.
v) He should never have allowed his witness statement to stand as his evidence in chief without correction.
"Telephone in Mr Spencer who, now he has read the papers from Duncan & Toplis, was absolutely livid and wanted to reconsider his Proprietary Estoppel claim. He said the file made it clear that his father had been misleading him as to his intentions."[underline added].
This suggests Michael had already received advice about "his Proprietary Estoppel claim" and wished to reconsider it. The fact that the call is brief and the note does not spell out what Michael says his father had told him, tends to suggest that none of this was coming as a surprise to Mr Russ as it had already been discussed.
"[Michael] now considers having read the papers, that he should be pursuing a proprietary estoppel claim. He had been promised the farm all his life and has worked for low wages for a large period before he went into partnership on the basis that he would inherit the farm. His sister is going to consultant [sic] somebody else and has no difficulty with TR acting for him".
Jane subsequently emailed Mr Russ to say that she and Michael had spoken, she understood the potential for a conflict of interest, she agreed to Mr Russ continuing to act for Michael and she would engage another solicitor. The proposed mediation with Penny was called off.
General assurances
The Colsterworth Truck Stop
The Buckminster tenancy conversation
The conversations with Michael Laffey
Unpleaded assurances and other evidence
Conclusions on assurances
John's 2018 Will
"the inherent revocability of testamentary dispositions (even if well understood by the parties, as Mr Gillette candidly accepted that it was by him) is irrelevant to a promise or assurance that 'all this will be yours'.
If the assurance is reasonably relied upon by the promisee to his detriment, then it is too late for the promisor to change his mind. The assurance itself is initially revocable. It is the detrimental reliance which makes it irrevocable.
DETRIMENTAL RELIANCE
"Michael Spencer was a very capable farmer and the results of the firm in terms of its financial performance are and were far better than many similar size farms which reflects on a very capable farming policy and extreme hard work on behalf of Michael Spencer and his family."
UNCONSCIONABILITY
SATISFYING THE EQUITY
"In the end the court will have to consider its provisional remedy in the round, against all the circumstances, and ask itself whether it would do justice between the parties, and whether it would do injustice to third parties. The yardstick for that justice assessment will always be whether, if the promisor was to confer the proposed remedy upon the promisee, he would be acting unconscionably. "Minimum equity to do justice" means, in that context, a remedy which will be sufficient to enable that unconscionability question to be answered in the negative."