Yet another farming/proprietary estoppel case …

Once again, farming and family squabbles are to the fore in a recent proprietary estoppel case: just out (dropped?) on BAILI – Guest v. Guest [2019] EWHC 869 (Ch)

The case was heard in Bristol by HH Judge Russen. Spoiler – the claimant was found to have made out his case. Not massively surprising in terms of outcome, but it does reinforce some ideas I have about this fertile area for land law.

  1. I suspect that this comes from spending much of my time with my Legal History hat on, looking at much shorter old common law reports, but I am often a bit taken aback by the level of judicial comment about impressions of the character of parties and witnesses. No doubt it is important to the decision that the judge makes a choice as to which of two disagreeing parties is to be preferred, but how much further is it appropriate to go? Does it help future decisions? Do people appearing in court know the level of detail of such comments (and general dirty laundry airing – arguments, personal letters, accusations of laziness, forgery, being a poor farmer…) which will be included in these public reports. Aside from the excellent follow-up on Valerie Burns (Dawn Watkins (2013) Recovering the Lost Human Stories of Law: Finding Mrs Burns, Law and Humanities, 7:1, 68-90) I am not sure what work has been done in this area. I think it would be a nice project for somebody.
  2. Farmers. A great deal seems to emerge from these cases about the relationships between farmers, business, land law and family. This case includes some interesting assumptions about what should happen to farms over generations (preference for sons over daughter being in charge? Strong idea of a male head of the family? Perhaps some lingering idea of primogeniture, or at least it being the destiny of the eldest son to farm the land). There is some idea that the mysteries of proprietary estoppel are making their way around the farming world – with a reference to the claimant here knowing about Davies v. Davies, though his mis-spelling of ‘Proprietary Stopol’ (which the judge chooses to include) suggests word-of-mouth transmission of the concept. Another interesting project would be an investigation of knowledge of this doctrine, and the extent to which it may have affected conduct in family-run farms. The impression given by a number of these cases is that, while farmers have to juggle many schemes and regulations, and take advice on how to organise their business in order to take advantage of subsidies and tax breaks, they are not necessarily taking account of proprietary estoppel, particularly in its modern incarnation, post Thorner v. Majors. This case suggests some awareness that it is important to have records of what is said (there are a number of secret recordings mentioned), so perhaps things are moving, but it also suggests that the defendants had a somewhat out of date reliance upon the idea that it would always be legitimate to change things by altering wills.





Guest appearance

More farmer/proprietary estoppel fun …

The first instance case is here (and I did a little note on some aspects here). It went off to the CA. And now apparently there is to be a season finale – Guest v Guest in the Supreme Court.

Here is a quick summary.

Previously in Guest v Guest …

Guest concerns the charmingly named Tump Farm, near Chepstow. It was one of those family fall-out cases. Andrew, one son of the family, wanted a declaration that he was entitled to a beneficial  interest in the farm, and a life interest in a house, as a matter of PE, after he had worked on the farm for decades. At first instance, Andrew won on the PE point and was awarded a financial ‘outcome’ which would mean Tump Farm would have to be sold. There was an attempt to appeal both the existence of an equity and the remedy, but permission was only granted in respect of the remedy. So off we went to the Court of Appeal on that point.

The objection was that the judge had got wrong the basis upon which he should select a remedy. He had, said lawyers for the parents, been wrong to start with Andrew’s subjective expectation: he should have been approaching the matter with a view to either (a) avoiding an unconscionable result or (or and?) looking at what the parents must be taken to have intended. To cut a long story short, this would have ended up giving Andrew less.

There was discussion in the CA as to whether the judge had been wrong to use a 2-stage test rather than a three stage test (crudely, (i) is there an equity? (ii) so what should we do? as opposed to (i) is there an equity? (ii) how big is it? (ii) so what should we do?). The CA decided this was not wrong, and nor was it wrong to accelerate Andrew’s interest. Thus, while the expectation in terms of property interest may have been that Andrew would obtain a substantial interest on his parents’ death, there was also an expectation that he would be able to take over the business sooner, and, because of the quarrels, he could not reasonably do this without an earlier estoppel award (interesting interaction between property and business considerations here). Nor was the judge wrong to go for a clean-break solution which would mean that the farm had to be sold. So farms were not magically different to other sorts of property.

And now off the the SC, apparently. If there was betting on appeal cases (and why is there not – I will state here that I have long had the idea of online gambling for law students and legal scholars, in a game I tentatively call ‘Supremo’ – or would that be wrong?).

Anyway, looking forward to a slew of punning headlines, working with the name Guest. in legal periodicals, when this one ‘drops’.

GS 11/3/2022

Image – something fittingly bovine.

January 2023 – It has been to the SC. I will at some point probably get around to updating, but see this.