Category Archives: land law

Detriment, conscience and the fine art of judicial shade

As the Land Law year rolls into co-ownership/constructive trust season, I was interested/irritated* (*delete as applicable) to see the appearance of another in the seemingly unending  parade of common intention constructive trusts cases: O’Neill v Holland [2020] EWCA Civ 1583. https://www.bailii.org/ew/cases/EWCA/Civ/2020/1583.pdf

Sometimes these things make me wish that (ALERT: mostly gratuitous Legal History reference coming up, to justify inclusion in ostensibly LH-centric blog) the Statute of Uses had done a better job of stamping out the whole law-equity separation business, but never mind – they must be read and inwardly digested.

This was a Court of Appeal case, centred on (parts of) a case which had been dealt with by a District Judge, District Judge Obodai, and then, in a County Court, by HHJ Pelling. The ‘live’ part of the dispute centred around a house in Farnworth, Bolton (53 Worsley Road for those keen Land Law fans who want to enter it on their Constructive Trusts Cases Maps … well, there might be such people). Ms O’Neill wanted reaffirmation of an earlier holding that this property, held in the sole name of Mr Holland, was in fact held on trust for both of them, and that she had a 50% equitable interest. She got it.

The main point of Land Law interest was, I suppose, discussion of whether it would matter if there was not specific pleading of detrimental reliance, or a specific finding of it, in the circumstances that, as far as the CA was concerned, there was in fact evidence of detrimental reliance. Answer – no. Also, there was a bit of an attempt to expand the importance of ‘unconscionability’ as something which could make up for lack of (pleading of? or actual?) detrimental reliance. This did not work. Nevertheless, the CA seemed happy that there had been evidence of DR – with particular reference to not sorting out legal/equitable positions earlier on, as a result of a misrepresentation that Ms O’Neill would not have been able to obtain a mortgage. (A minor legal point – I confess I had to look up what an ‘equity of exoneration’ was – mentioned early on, at 12).

Apart from that, I found myself going back to a bit of an obsession – how judges in judge-only trials present their views of those who have given evidence before them. Clearly they are going to have to evaluate credibility, and prefer one version to the other, but there is quite a variation in how critical, or condemnatory they are prepared to be. I have mentioned this in previous posts. Here, the DJ went for it in a fairly strong way. As Henderson LJ put it, at para. 9, ‘It is fair to say that the District Judge was distinctly unimpressed by the evidence of these witnesses, and in particular by the evidence of Mr Holland whom she described on more than one occasion as “a stranger to the truth”.’ Also, at 49, Henderson LJ noted that Mr Holland had been held by the DJ to have given evidence which “beggared belief”. This view of the party’s honesty was thus stated, and repeated in the easily-available public judgment (and by those commenting on it …). Not for the first time, I do find myself wondering about what that must feel like – if the parties know.

On a related matter, when judges’ cases are appealed, there is an issue of the level of ‘shade’ to be ‘thrown’ on them (see how down with the kids I am!). Here, Henderson LJ, at 7.,  is a touch sniffy about the fact that the DJ’s judgment ‘[ran] to 50 pages and 184 paragraphs’ and suggested at 18 that she had ‘fallen into error’ by not using existing case law properly. At 46., he gives us ‘The relevant findings of the District Judge are contained in paragraphs 154 to 161 of her judgment. With respect to her, they could sometimes have been more clearly expressed and are not always entirely easy to follow.’ Relatively mild, I suppose. In relation to the decision in County Court, he says, at 60, ‘In my respectful opinion, Judge Pelling adopted too narrow a view of the District Judge’s findings of fact, and he was also wrong to take the view that detrimental reliance had not been pleaded sufficiently or at all by Ms O’Neill’ . Possibly slightly more ‘respectful’? I am not sure. It would certainly be interesting to consider the range of different ways of dealing with/ disagreeing with lower level decisions which are used by appeal courts, by whom, and in relation to whom. A project for somebody?

Finally, this touched on another of my obsessions – questioning gendered writing in legal documents. As another page on the blog makes clear, I am not in favour of the rather frequent use of ‘emasculation’ in legal discourse, to indicate weakening/ worsening. I wonder whether similar concerns apply to the description of things, including judgments, as ‘seminal’ (here, at 27, we have the ‘seminal speech’ of Lord Diplock in Gissing v Gissing [1971] AC 886.’ Does it need the sperm-related subtext? (Could a speech ever be ‘ovular’, and if not, why not?). Or can this usage be excused on the ground that the word is wider than human sperm, and takes in all sorts of ‘seeding’? A point to ponder.

GS

29/11/2020

 

 

Destructive trusts: a family fight over beneficial interests

[This is a modern Land Law comment – sorry legal history chums!]

Amin v Amin [2020] EWHC 2675 (Ch) is a recent constructive trusts case, a judgment by Nugee LJ on appeal from the London county court.

https://www.bailii.org/ew/cases/EWHC/Ch/2020/2675.pdf

It has some interesting aspects from the point of view of explanation of ‘the rules’ on common intention constructive trusts (nothing especially new, but nicely put) but also a good one to read to get an idea of the sorts of disputes which this body of law may be called upon to handle, and also issues of practical case-crafting  and handling of evidence, at different stages of proceedings.

The basic facts of the dispute were that Mrs Amin was sole legal owner of a house in London. She regarded herself as having the whole legal and equitable interest in it. Her husband, Mr Amin, and her sons, Raja and Zubaire, claimed that they were entitled to an equitable interest by way of a common intention constructive trust. (The dispute initially arose as a possession proceeding by Mrs Amin, and a counter-claim by Mr Amin and the sons for a declaration of their interest, and thus entitlement to stay). This way of proceeding meant that it was a virtual  ‘all or nothing’ case – Mrs Amin claimed everything, and Mr Amin and the sons counter-claimed 100% of the equitable interest.The county court judge decided in favour of Mr Amin and the sons – the house was held by Mrs Amin on trust for them, and she must transfer the legal title to them. She appealed.

The judgment, which has just appeared on BAILI, describes quite a number of property dealings within a large family, and is of considerable interest from a ‘law meets culture’ point of view. One fact to bear in mind, and which is of some relevance, is that the Amin parents were not officially married as far as English law was concerned. They had been through a religious form of marriage, the nikkah, but technically were not married. As Land Law students know, there is a fairly stark line between cases involving married (or once-married) couples and those who are, strictly, ‘cohabitants’. The Amins would surely not have seen themselves in the same bracket as those involved in informal living together situations, but in some ways, Land Law does (certainly a factor to consider in relation to suggestions for reform of cohabitation/property law). There is also some discussion of what may look to modern Land Law students like an (allegedly) unusual or old-fashioned financial relationship between the parties, in which Mr Amin ‘did not allow’ Mrs Amin to have her own bank account. I have often been told, when discussing cases like Burns v Burns that modern female cohabitants would not end up in such a dependent financial position. Perhaps we might reconsider that.

Nugee LJ provides a good summary of where he thinks the law is on common intention constructive trusts, and what has to be shown, by whom. It may be picked up as blurring some boundaries but (heretically, I know) I am less interested in that. FWIW, the judge had applied the Jones v Kernott [2011] UKSC 53 test – using financial and other criteria to decide ‘what shares (if any) were intended’. (Land Law students will notice that this is drawing together two questions which we have tended to keep apart in teaching – the ‘is there an interest’ question, and the ‘if so, how much’ question). The case put by Mrs Amin’s lawyer in this appeal included a strong idea of it being wrong not to make separate, overt findings on all of the separate elements as to whether there a common intention at all, and if so what was its nature, and whether there was appropriate detrimental reliance. We have some further discussion on the (paper thin in my view- I am very skeptical about the idea of objective deduction in these cases) distinction between imputing and inferring intentions.  There is a nice quotable quote on the supposed separation of ‘is there a CICT’ and ‘how much of a share do people get?’: ‘I do not think the two stages can always be neatly distinguished’ [33] – the point is that the same evidence may well cover both bits: [34] ‘it seems to me to make no sense to try and make a sharp divide between evidence that enables an inference to be made as to their common intention that the beneficial interests should not follow the legal ownership, and evidence that enables an inference to be made as to what they intended those beneficial interests to be. Those questions are necessarily bound up together.’ Hackles will no doubt rise at this, but, really, it is a common dynamic in many areas of law, including Land Law, to move back and forth between ‘steppy’ tests and ‘holistic’ (cue whale music …) tests.

What I find more interesting and thought-provoking are the issues concerning the way in which the case was presented, and the evidence. Since this was an appeal, there were already limits on what could be done by way of going over the evidence, and deciding whether there was anything wrong with the initial decision. Greater limitations were imposed by a decision by Mrs Amin not to provide a transcript of oral evidence from the first hearing. Nugee LJ remarked on this more than once. He also highlighted the original judge’s doubts about Mrs Amin’s allegations of domestic abuse [8.11] though these were ‘not directly relevant to the proceedings’. Again, that might bear some exploration – what is relevant to proceedings is, to some extent, a matter of choice and perspective. Comment on the offences of false accounting of another witness were also mentioned (I do wonder whether people realise this sort of public and permanent comment will be made when they agree to be witnesses. I suppose they do).

I can see that, in such cases, judges do have to make comments on the credit-worthiness of witness/parties, but it is always a rather uncomfortable thing. I am sure that I would feel deeply insulted and mortified to see myself referred to as ‘[not having made] a good witness’ as was the case with Mrs Amin here, a description based on the fact that, in the initial judgment,

‘The Judge found her oral evidence to be confused and imprecise, and referred to her complete inability at times to recall any precise detail contained in her witness statement – something that happened so frequently that he formed the view that it was almost as if the statement had been written for her by someone else’.  [at 8]

It is also interesting to note the nature of the outcome (100% equity to Mr Amin – now deceased – and the sons) was the logical outcome of the way the case was put. Though this was portrayed as particularly harsh by Mrs Amin’s lawyer, both sides had gone for an ‘all or nothing’ approach, and neither had suggested a plan to share out the equitable interest, so, if Mrs Amin lost, this was always on the cards (though the practical effect could be less harsh, as she could seek indemnity from the beneficiaries on the mortgage payments which she, as legal owner, was still liable to pay).

So – an interesting case in a number of respects: legal, evidential, cultural. It is a bit out of the ordinary for such cases in dealing with a wider family group, whose relations are both personal and financial. It also leaves some untied ends relating to the position of the two Amin daughters, whose interests may well be affected. All in all, a messy situation meets an unsatisfactory area of law. Good luck with it, Law students of England and Wales.

A fine body of metaphors?

Lawyers and legal historians do love a body metaphor, don’t they – they are all over the place, from descriptions of marriage (one flesh, unity, man as head woman as body versions …) to Baker’s ‘The Law’s Two Bodies’, to all of those rather repulsive metaphors about precedent and childbirth (which somehow segues into horse breeding – you know the one I mean: Bagnall, Cowcher, Denning, Eves), and the even more dodgy ‘emasculation’ references (male bits = good; no male bits = weak and useless). I suppose it all goes back a long way; maybe calling a collection of law a ‘corpus’ did not help. Some interesting possible routes along the lines of Corpus Iuris > Corpus Christi > transubstantiation > it’s OK to make fanciful metaphors about bodies when discussing very definitely disembodied, world of the mind, types of things. Wouldn’t it be an interesting experiment to just … not. The campaign against body metaphors for things that are intellectual constructs starts here (once I have removed several ‘corpus’ references from chapter I’m currently working on …

A’ things hae an end … post-Christmas musing

Twelfth night is upon us, and although I have taken the decorations down, I am looking at a pile of still-to-be-gobbled Christmas puddings. This may explain why my mind has been turning on a pudding-related issue from a late-medieval legal treatise today.

Littleton’s Tenures is not an especially easy or exciting read, and I had been putting (or pudding?) off checking some bits of it for a project I’m working on. Finally made myself do it today, only to be sidetracked by Littleton Bk 3 c 2 ‘§ 267, a passage on something called ‘hotchpot’. Without getting too tedious, this is to do with ensuring fair shares of property to a group, by looking at assets together. To the extent that I had ever thought about the word, I suppose I would have seen a connection with the ‘hotpot’ produced in great quantities once upon a time by Coronation Street’s Betty Turpin. But Littleton sees it not as a stew, but as a metaphorical ‘puddyng’ in which we might expect to see a variety of ingredients. His description is a little reminiscent of some of those Great British Bake Off technical challenges – ‘for in this pudding [puddyng] is not commonly put one thing alone, but one thing with other things together’. But what things, Littleton, what things? Are we talking sweet or savoury – or one of those sweet v. meat horrors?

We need to know!

GS

5/1/2020

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) https://www.bailii.org/ew/cases/EWHC/Ch/2019/869.pdf

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. Major. 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.

 

GS

18/4/2019

Regency Villas v Diamond Resorts [2018] UKSC 57 Easements in the Supreme Court: a few thoughts

Now, where were we? Sporting and recreational easements, some weird assumptions about general familiarity with golf courses …

Not one of its more earth-shattering judgments, and no more dodgy golf-focused worldviews in evidence, but the Supreme Court has now brought this long-running case to an end, to the delight of Land Law text book writers and law students studying this particular part of compulsory Land Law units.

The judgment came out (I refuse to use the slimily deferential ‘handed down’ and am not sufficiently down with the kids to say that it was ‘dropped’, despite the involvement of the so-called ‘Beyonce of the Law’ in the case …) in November 2018, and can be found (alongside summaries) via https://www.supremecourt.uk/cases/uksc-2017-0083.html

Law students will be delighted to learn that the SC did not come up with a unanimous view – I know you love it when they disagree and you have to get to grips with the differences! Lady Hale, Lord Kerr and  Lord Sumption agreed with Lord Briggs, whilst Lord Carnwath did not, and gave his views in a dissent at the end.

The overall result was that the appeal was dismissed: the argument that the recreational rights in question could not be easements did not find favour with the SC. It is, therefore clear that it will not be a sufficient challenge to a claimed easement to say ‘it can’t be an easement: it’s recreational’. So far, so unsurprising. The case also shows that the scope of allowable recreational easements is being stretched to include rights beyond walking and using the servient tenement as a garden, and also (at least on the facts of this case) to include the use of a wide array of facilities not in existence, perhaps not contemplated, at the time of grant.  It illustrates the lack of ‘teeth’ of the classic ‘requirement’ of accommodation of a dominant tenement and the ‘non-ouster’ idea which has arisen under the heading of ‘lying in grant’.

Much turns on the convoluted history of the land in question and on the wording of transfers. Lord Briggs gives a summary, (from [3] onwards).

In 1981, at the time of a key transfer, facilities in the alleged ST included:

  • golf course
  • outdoor heated swimming pool
  • three squash courts
  • two tennis courts
  • a restaurant, billiard/snooker room and TV room
  • gymnasium, including sauna and solarium
  • Italianate gardens
  • putting green
  • croquet lawn
  • outdoor jacuzzi/spa pool
  • ice/roller skating rink
  • platform tennis courts
  • a soft ball court (sic – softball?)
  • riding stables.

 

There were some difficulties and changes. In particular, the pool was closed and filled in. An indoor pool replaced the gymnasium. The putting green, croquet lawn, jacuzzi/spa pool and roller skating rink were closed and the riding stables demolished. The number of timeshare appartment was increased substantially. A dispute arose as to the rights of the timeshare owners to use the facilities without charge. The dispute took legal shape in the main issue of whether they had an easement or easements to use the facilities on the ‘ST’.

At first instance, the answer was that they did have easements. In the Court of Appeal, that was upheld in a general sense, though there was some variation in terms of the content of the easements: there was a net reduction, with the removal of rights to the new swimming pool and facilities in the basement of the mansion house. In the SC, the ‘servient owners’ sought a decision that none of the alleged rights were easements, and the ‘dominant owners’ wanted to hear that all of them were (i.e. that there were easements in relation to both ‘existing’ and ‘post-transfer’ facilities).

Lord Briggs’s account continued with a run through the familiar ‘rules’ as to which rights may be easements, referring to Re Ellenborough Park, and the source for its fourfold test, Cheshire’s textbook (that’s IMPACT for you, REF fans). Singled out for discussion are ‘accommodation’ and ‘ouster’. The idea that ‘accommodation’ is a useful criterion has never convinced me. Except in ‘land support’ cases, it really is a matter of value judgment. The strategy of many writers and judges is to say what sort of thing does not accommodate (usually with a reference to cricket grounds, about which we are all, naturally, well-informed: tiresome cultural assumptions) and to make not-terribly-helpful statements about the matter being one of facts, context etc. etc. Following this pattern, Lord Briggs [40] gives us some mention of the Oval and makes it clear that accommodation is only ‘in a sense’ a legal concept, and mostly a question of fact [43].

Having slightly ducked defining ‘accommodation’, he goes on to decide whether ‘recreational and sporting rights’ such as those in issue here, can be ruled out as not ‘accommodating’ (whatever that may mean) [44]. This is an important point: does it matter that a claimed right amounts to ‘an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement)’. One would imagine that it might. But not so. Because the mode of tenure of the DT at a particular time is to be fed into the calculation of accommodation – so because these were (at the moment) timeshare appartments, the right to use sporting and recreational facilities on adjacent land (whatever they may be at any given time) accommodated them in such a way as to justify a permanent right. [53] No argument of proportionality, nor tails wagging dogs, was to defeat this [54]. It does seem a significant reduction in the utility of the ‘accommodation’ criterion – but then a fairly vacuous criterion can be given whatever meaning we desire. Perhaps people should be able to make whatever deal they wish, to burden their land to whatever extent they wish. If so, however, we should stop pretending that property principles impose definite limits.

Lord Briggs did not consider that the rights amounted to an ouster of the servient owner, depite the suggestion that the dominant owner might have ‘step in’ rights to come in and manage and maintain the facilities if the servient owner did not [62]. Nor did the argument that classing the rights in issue as easements would impose obligations on the servient owner, in the view of Lord Briggs, hold water [66].

He recognised that this was something of an extension to the concept of an easement, but thought that the law ought to allow it. One argument in favour was that the ‘common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land’ [76]. This, of course, means being open to intensification of the use of land. It is interesting to consider how such a ‘principle’ (which also underpins Making Land Work) interacts with ideas of public good, planning and environmental concerns. Secondly [77] he notes developments in other common law jurisdictions which have indeed allowed some extension to recreational easements (though not obviously involving the sort of intensive artificial and perhaps environmentally harmful management required to maintain a  golf course).

Part of the route to arriving at approval of these rights as easements involved going against the Court of Appeal’s approach of ‘unbundling’ the various rights and treating them as separate, depending on date of creation of the relevant facilities, amongst other criteria. Instead, Lord Briggs reverts [85] to the first instance policy of treating them as a bundle of rights over such facilities as exist on the ST at any given time. This avoids potential issues of futurity and perpetuity (at which we may breathe a sigh of relief) but does also introduce some new artificiality, in creating the idea of rights associated with a country club [89]. Is there an agreed list of such rights? Not being likely ever to be associated with such an organisation, I would not know, but would suggest that there might be arguments around the edges.

Lord Carnwath dissents from paragraph 94 onwards. He is concerned about the extent of the imposition on the ST: [95] …’An easement is a right to do something, or to prevent something, on another’s land; not to have something done… The intended enjoyment of the rights granted in this case, most obviously in the case of the golf course and swimming-pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management. … Thus the doing of something by the servient owner is an intrinsic part of the right claimed.’ He is not convinced that the authorities cited justify the extension required to make easements from the rights claimed [96]: ‘In effect what is claimed is not a simple property right, but permanent membership of a country club.’ He also makes light work of the ‘non-ouster’ conclusion [102] and expresses concern at the potential extent of ‘future’ rights over the ST [109-114]. All of this seems very fair comment to me.

Anyway, the decision has been made. The climate seems to be in favour of expansion of the sorts of rights which can be easements. It will be interesting to see how far this stretches. Does recreation have to be ‘active’? Could it in fact involve spectating at sporting events (and allow us to put an end to the tedious cricket examples …)? And why should somebody be allowed a right to play golf free of charge on the ST, but not be allowed an easement to have a lovely (and golfer-free) view over it? Is the positive/negative distinction above challenge, if ‘accommodation’ can be reduced to this feeble level?

12/1/2019

Disclaimer – these are my own musings, not legal advice, and subject to revision (except the negative views of cricket and golf, which will be with me until my last breath).

Don’t estop me now: credibility and comments on intelligence

-Warning: explicit Land Law content. If you do not want to read musings on land law, stop right now …

James v James [2018] EWHC 43 (Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2018/43.html

Having had a year away from land law teaching, I am catching up on recent cases, including this one on proprietary estoppel (as well as testamentary capacity). I am not going to say anything about the actual legal points, despite the fact that this is what I am supposed to be preparing, but will comment on another interesting aspect of the approved judgment: a tendency to elaborate upon and explain the decision making process in terms of views about individuals (I think of this as the Eggheads tendency – after the quiz show where people can’t just say the answer is b, they have to ‘talk us through’ the thought-process which has led to that conclusion).

There is detailed discussion of  various witnesses:  HHJ Paul Matthews does not restrict himself to saying he believes X or believes X more than Y, and some of this material seems to go beyond credibility and into intelligence or education. For example, one of the major characters was, the judge found,  ‘a slow but clear witness. He was not good at reading. He was dogmatic, sometimes rather contrary, and not good at following legal reasoning’. [8] And ‘For the most part, I think that [S.] had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases, I am afraid I think he went further, and told me things that were simply not true.’[9] Some of this is honesty/credibility-related, but calling somebody ‘slow’ and criticising their reading seems to go beyond that.

 

In relation to a group of female witnesses, the judge shared his impressions at [11] that two were ’quiet and calm’. One ‘rather shy but clear and straightforward, but another, while she ‘gave evidence in a quiet tone’ also ‘ avoided eye contact and her body language suggested internal conflict.’  Some material for consideration of appropriate female witness behaviour there, I think – plus signs of great self confidence on the judge’s part of his ability to ‘read’ mental state from ‘body language’. I am not entirely convinced that has a place in an official account like this. Another ‘good’ female witness was ‘loyal.. to her husband,’ but ‘distressed by the litigation and wanted it to be over’ [12]. Yet another female witness was ‘a slow witness, with clear, trenchant views’ [13].

 

In relation to an older female witness, there is some doubt, but it is not expressed in quite such critical terms: [14] ‘[S.J.], … although she often took her time to answer, was clear and decisive when she did. Despite her advancing years, she was generally very much on the ball. But she was confused as to [a particular point]. On the other hand, she had little or no trouble in following accounts. It is plain that she had a head for business. Sometimes her answer was that she could not remember things, though I noted that that was the answer more often given when the question was a difficult one, not susceptible of a simple answer in her side’s favour. She also appeared confused about [another point]. Her answers did not square with what she said in her witness statement…. I have accepted her evidence without reserve where corroborated by other independent evidence, but otherwise with more caution.’ The first part of this sounds a bit like ‘She’s marvellous, considering …’ – a little patronising?

 

Also interesting is the decision of the judge to mention his views as to the competence and intelligence of a female solicitor in the case: ‘She struck me as a highly competent, intelligent solicitor …’ [16] while in  dealing with a male solicitor-witness, [17], there was, apparently, no need to affirm his intelligence. Likewise the male experts were ‘as one would expect … highly professional’ [18]. Might have been best avoided?

 

Clearly, the format of a civil trial requires a judge to make decisions about credibility, and comments on parties are not new, but I do wonder how it helps to hear that the judge does not rate a party’s speed of thought, and whether the study of ‘body language’ is now a respected and scientific subject, taught at judge school.

For a contrasting approach, see another proprietary estoppel case, Habberfield v Habberfield [2018] EWHC 317 (Ch), in which the judge is much less … well … judgey about individuals, and almost entirely sticks to saying which evidence he prefers on particular points. We don’t learn who is intelligent and who is ‘slow’, and yet it doesn’t detract from our understanding …  [no idea why this bit has gone red!]

Park up your troubles: newspaper coverage of neighbour dispute cases

Land law thoughts: warning – almost completely not about Legal History!

Two areas of legal interest which are more frequently covered by the right wing press than the rest of what used to be called ‘Fleet Street’ are (i) succession (when there is a family dispute); and (ii) neighbour disputes. I think there’s a Ph.D. or at least a dissertation for somebody on the way these are covered, but until it appears, here is a start in pulling together some thoughts on the neighbour disputes ones, prompted by a report in this morning’s Mail: https://www.dailymail.co.uk/news/article-6172095/Neighbours-ten-year-war-30-inch-parking-space-ends-warring-parties-paying-bills.htmlc

The case involved use of a parking space at a property in Berkshire. If the owner parked in a particular part of the space, that restricted or denied access to the neighbouring property’s back garden.

As it’s the Daily Mail, and I have read a number of such articles there, I was not surprised to see the piece highlighting the following:

  • The amount of money spent on legal action (£120,000)
  • The length of the dispute (10 years)
  • Descriptions of the disputed land: ‘a 30 inch parking space’ (imperial, obviously) and ‘a thin strip of concrete’ (concrete – a bit modern and insignificant). In fact, although it almost suggests this is an ownership issue, it isn’t: it’s an easement case.
  • A kick for lawyers, even though the piece also makes it clear that it could have been settled amicably, and the parties are ‘stubborn pensioners’ (not quite on-brand there, Daily Mail) who have engaged in ‘bickering’ and a ‘frenzy’ of legal action. The implication seems to be that lawyers encouraged the legal action (those ‘pettifogging’ slurs go deep into history) even though I would be very surprised if lawyers involved in such a case did not try and encourage the parties to come to a sensible agreement.
  • Legal bills described as ‘eye watering’ – without any context as to what was provided by the lawyers (over ten years?). It may be that they over-charged, but it isn’t possible to tell from this. The disproportion is really between the value of the land/right in question and the amount of money: and unless the evil lawyers were forcing the parties to litigate against all reason, that’s hardly their fault.
  • A photograph of the ‘winner’, who gets the right to use the path: pictured with a walking aid, though, in fact, according to the story, he does not live at the property, but rents it out. In a way, this makes the story look like ‘nasty people stop mobility-impaired man using access to his house’, when it is more ‘people use car space in a way which potentially reduces financial gain on second home’.
  • Extra facts – the applicant ‘lives with his wife’ in an ‘impressive £1.5 million 5 bedroomed house in nearby village of Cookham. The losing respondents, however, had moved down South from Scotland. This may help the DM reader to decide who is the more sympathetic ‘stubborn pensioner’ in the dispute.

A more legal explanation (including the fact that it’s about easements and prescription – lost modern grants, Prescription Act and all that getting an airing) can be seen at: http://www.bailii.org/ew/cases/EWLandRA/2018/2017_0077.pdf

This is the judgment of the Land Registration Tribunal. Here, we have metric measurements (the horror!) and some ‘nice points’ about exactly how acquiescence is to be understood (still a bit unsatisfactory, it seems to me, but let’s leave that for now), but  almost no criticism of lawyers (it does in fact speak of solicitors ‘taking up the cudgels’ after initial disputes between the parties (para 12) – which seems a little unnecessarily fighting talk-ish). Nothing about Scotland, or the applicant’s ‘impressive’ home.

Lots to compare and contrast, and the makings of an interesting study, if more examples were included.

Shaming and sheep (Baa baa black … ram?)

Reading some early modern material, in the (forlorn) hope that I might find something useful on tenancy by the curtesy (a recent obsession), I came across more than one reference to a strange procedure allegedly used in relation to free-bench (the equivalent to dower, for land held by ‘unfree tenure’, according to various manorial customs.

The procedure was allegedly used in cases in which a widow, who would, in the usual course of things, be entitled to free-bench, had had an illegitimate child after her husband’s death. ‘Incontinence’ (and, indeed, remarriage) would often mean that she lost the right. But there was, apparently, a way out: all she had to do was present herself in the manor court, riding (possibly backwards) on a (possibly black) ram, (possibly holding its tail) and reciting the following verse:

“Here I am

Riding upon the back of a black ram,

Like a whore as I am;

And for my Crincum Crancum

I have lost my Binkum Bankum;

And for my tail’s game

Have done this worldly shame;

Therefore pray, Mr Steward, let me have my land again.”

 

This would, so we are told, act as condign penance, and she would not be forfeited.

The sources in which I have seen this are 17th and 18th C, and the procedure is sometimes linked to particular manors in Berkshire, Devon and ‘parts of the West’. [See, e.g., Anon., A Treatise of femes coverts or the Lady’s Law (London, 1732), 128; G. Jacob, A New Law Dictionary 6th ed. (London, 1750) under ‘free bench’; G. Williams, A Dictionary of Sexual Language and Imagery in Shakespearean and Stuart Literature vol. I (London, 1994), 333].

Is this just ‘horrible legal history’ or was it really ‘a thing’? It does chime in with various rough music and carnivalesque/misrule practices, but it is hard to see that performing a humiliating verse in this manner would have been thought to cancel out the ‘shame’ of producing an illegitimate child, evidence of sexual misbehaviour by a widow which was frequently seen as serious and deserving of severe property consequences. (And is it actually possible to ride backwards on a ram?) Early modern England – bit of a mystery.

 

 

Mysterious goings-on in Clerkenwell

The revival of mystery plays, and a more visual form of religious practice, is in the news today: https://www.theguardian.com/world/2018/jun/24/england-cathedrals-back-to-middle-ages-mystery-plays-pageants-chester-st-albans .

Anyone with an interest in things medieval will probably have had to deal with the various surviving mystery plays at one point or another – they have something to contribute to many fields beyond medieval literature/drama/popular theology, even to my rather technical work on legal history. They crop up so regularly that it is easy to assume that everyone in the middle ages thought mystery plays were great. Recently, though, I came across a case which suggests otherwise. I had filed it under the rather un-academic title ‘PrioressGrumpyPants’, I am afraid. Time to share it.

The scene:

Clerkenwell, Middlesex, somewhere in the (Augustinian) priory of St Mary

The cast:

The prioress

The king (probably Edward I, but dating is not certain)

The people of London (various, noisy and unruly, according to the prioress, who calls them sauvage gent)

The modern reader

The plot:

The prioress of Clerkenwell is not happy. She is in charge of the priory’s finances, and, like virtually all medieval nunneries, Clerkenwell’s finances are always a bit insecure. A particular annoyance is that she is not getting as much in the way of crops from her fields as she ought to – mainly because of the habit of people of London of coming onto the land and trampling the crops, with their fights or wrestling matches – and their mystery plays (lur miracles & lutes). She petitions the king to ask him to do something about it, saying that the common law has been no help. The response is a bit mealy-mouthed, suggesting that there has been some sort of instruction to a local official, the constable.

The modern reader is not convinced that one constable would be able to do much against the weight of Londoners wanting to use this land for their terrible unruly dramas. She understands the prioress’s financial worries, and is, of course, interested in her as a medieval woman with exceptional power and influence, testing the boundaries of medieval gender constructions, but does feel that grumbling about the unwashed hordes engaging in religious drama might be a little at odds with the idea of religious people as, you know, interested in promoting religion and suchlike. She also wonders if the Londoners might have made a good case for the religious orthodoxy of wrestling matches, based on Jacob’s bout noted in Genesis 32:24-32.

GS

24/6/2018.

 

References and reading

The record is SC8/98/4858 and you can see a summary (and even a scan of the document) on the National Archives website: http://discovery.nationalarchives.gov.uk/details/r/C9149425

If you want to read more on medieval nuns (and who wouldn’t?), the best place to start is still E. Power, Medieval English Nunneries c. 1275-1535 (Cambridge, 1922)  (and see her point at p. 36, that ‘[T]he dry-as-dust pages of the medieval law-books hide many jewels for whoever has patience to seek them …’ I would have disputed the dry as dust dig, but it’s broadly pro-legal history, so she is all right by me.)

A good entry into medieval mystery plays is: P. Happé, English mystery plays: a selection (Harmondsworth, 1975). Or go and see them – seeing the York cycle long ago was one of the things that started me off on this whole medieval thing …