Tag Archives: land law

Priors, Promises and the Proper Observation of Old Books

As a Land Law teacher with a research interest in medieval legal history, I am always interested to see the two parts of my academic world coming together. Sometimes this can be frustrating, when lawyers, judges or others misrepresent the law of the past, or throw around ‘medieval’ and ‘feudal’ in an inaccurate fashion (see the sniffy references by Laws LJ to ‘medieval chains’ in Manchester Airport plc v Dutton [2000] QB 133, at 148A – while in fact describing actions which were around far later than  the medieval period – and the many references to rapacious practices with regard to ground rents and service charges on long leaseholds as ‘feudal’, which they aren’t). I also get exercised by the practice of relying on partial evidence about an old case, by citing a Year Book (medieval to ‘early early modern’ law report) without cross-referencing with the relevant plea roll (official record). Traditionally, doing a proper job of tracing the plea roll entries would have been massively time consuming, but, although it is still not easy, the advent of digitisation of many legal records (especially by the Anglo-American Legal Tradition project) has certainly speeded up the process.

Why bother? Well, it is always good to have as much information as possible about a case, if it is to be cited, and the record can fill in details of procedure and pleading not fully noted in reports. The main thing, though, is that law reports of the past, and especially the deep, medieval past, were not like modern law reports, and treating them as if they are just like something from modern reports, or indeed modern published judgments, is something of a distortion. We may find, for example, that what is relied upon as authority for a proposition of law was actually rather less definitive than would appear. The charm and frustration of early reports is that reporters were often more interested in noting lines of argument, and opinion, than in giving a clear ‘ratio’, (and frequently do not tell us what was the outcome of a case). If at all possible, then, it seems sensible to try to find both record and report, where these exist.

And so to the case I wanted to discuss. It is one which is frequently cited in texts on a tricksy part of Land Law: (freehold) covenants. I was first introduced to it as a second year undergraduate student, when our textbook referred to it in semi-anonymous terms as The Prior’s Case (1368). Clearly a proto-medieval-legal-historian even then, I wanted to know more, but nobody seemed to be able to tell me anything about it. I was given the strong steer that there was no need to ask questions. I did get as far as tracking it down in the printed Year Books, but struggled at that stage both with the black-letter printing and, of course, with the Law-French and peppering of Latin. I did learn something though – a truth about history and the doctrine of precedent in English law: people cite things they haven’t read; which they couldn’t have read. It was rather unsettling.

Now, years later, when I have got to grips with the old languages and scripts of the law, and learned a thing or two about modern lawyers and judges as well, I can take it all a bit further.  As ever with historical study, one notes that some things change, and others stay the same. I checked the Year Book report once more (with the aid of the extremely useful Seipp’s Abridgement) and then tracked down the plea roll entry relating to the case. You can see the YB report here {Seipp 1368.013; YB 42 Edw. III f. 3 pl. 14) and the plea roll entry is at CP 40/430 m. 60.

What do these tell us, and does it add to, or alter, the conventional view of the case? Well, the first thing to note is that the names of the parties have become woefully garbled over the centuries. The printed YB version of events has it as Laurence Pakenham v. a prior (anonymous), and it is as Laurence, or Lawrence, Pakenham’s case that Coke cites it: Co. Litt. 385a. In fact, the plea roll shows that the case was not brought by a man with a surname tying him to Suffolk, but was, in fact brought by Laurence de Pabenham. This Laurence was a man with ties to Bedfordshire and Northamptonshire, Pabenham (now Pavenham) being in the former county. Now, a b and a k can be hard to distinguish in certain scripts, so some slippage here is not massively surprising. An additional garbling crept in, however, at some point, renaming the case ‘The Prior of Packenham’s Case’.[i] This might seem like a small thing, but its mixing up of plaintiff and defendant means that it  is not a version of the case name which would have been given by anyone who had actually gone and had a look at either the YB report, or the passage from Coke’s First Institute, which is usually cited with it. It is all rather indicative of (a) sloppiness; and (b) a casual attitude towards the truth. Alternative facts, anyone? I would certainly not be impressed by one of my students citing – and therefore claiming to have read – something which they clearly had not read. It reminds me a little of some of the nonsensical footnotes which give away the more inept Chat GPT user.

The plea roll tells us that the defendant prior and convent were from Canons Ashby (Essebi) in Northamptonshire. This was a house of Augustinian canons. The manor to which the covenant was attached was Hinwick),[ii] and Laurence claimed that the covenant was an old one – made with his great grandfather, Hugh, by the prior and convent of Canons Ashby back in the reign of Henry III (14 Henry III, which was a LONG time before – by indenture, formalities fans – wouldn’t it be great to find that, to understand the detail of the deal?). The covenant allegedly laid down that the canons should be singing three times per week in the chapel of Hinwick, in perpetuity. Laurence claimed, further, that, though they had massed away for almost a hundred years, they had not done it for twenty years, and he had not been able to get the prior and convent to keep the covenant. Just why the canons were holding out against keeping the bargain, who knows. I imagine it might be a bit of a pain. Laurence claimed 40 l damages for their failure, anyway.

All very interesting, and serving to highlight some of the changes between the PR and YB versions, but what about the past/present question – does the case, in either version, unequivocally stand for the proposition(s) for which it is now cited?

How is it now used? We can see a modern citation of The Prior’s Case in Bath Rugby v Greenwood and others [2021] EWCA Civ 1927,[iii] Nugee LJ, at 37, referred to it as an ‘example of noticeable antiquity’, and quoted Clauson J, in In Re Ballard’s Conveyance,[iv] who was, in turn, coming at The Prior’s Case through Coke in Spencer’s case (1585),[v] was a case which might bear further scrutiny in terms of its accuracy and relevance.  Anyway, the Spencer version of the point of the case is given as follows:

 The Prior’s case was one where the prior of a convent had covenanted that he and his convent would sing all week in the chapel of a manor for the lords of the manor. … a successor in title to the manor was able to enforce the covenant: “for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said.

Nugee (38) thought that it was fairly obvious that the benefit would be annexed in this sort of case because it is ‘usually obvious which land such a covenant benefits … a covenant to sing for the lord of the manor in the chapel of the manor benefits the lord of the manor as owner of the manor,..’ There is probably scope for interrogating that sort of benefit, but let’s leave it at that. It is about passing of benefit of covenants, including positive covenants, by annexation to land/property rights.[vi] The Prior’s Case is also used as authority for the idea that there is no need for a servient tenement, in covenants, unlike easements.[vii]

The case itself was a little less clear cut. It featured quite a lot of argument as to whether Laurence had made a fatal error by claiming as the heir of Hugh. The thing was that there was another person who seemed to have a better claim to be Hugh’s heir – a young girl called Margaret, a minor, who was descended from Hugh via a senior branch to that from which Laurence sprang. (In the YB, Coke and ever thereafter, Margaret is written out of the story, which becomes one of an older and younger brother: interesting in its effacing of females, but ultimately not crucial to the legal argument). The prior’s side made a lot of this in argument. Laurence and his lawyers tried to get around this by basing his argument on his land rights: he was tenant in tail of the land to which the chantry was appurtenant (Hinwick), so, while Margaret might be ‘senior’ in terms of blood, he had the link via the land, and that meant that only he could in fact sue on this. Both YB and plea roll suggest that the court found the answer far from obvious, and it was repeatedly delayed, and adjourned.[viii] Coke seems to have skated over that aspect of things, and stated that there was a straightforward finding for Laurence, and so a decision that the covenant was annexed to the manor, so that it could be enforced by Laurence, as the person holding it.

The YB suggests that things were going in Laurence’s favour, but I have not yet turned up a final decision, and I am not sure that we can take it on trust from Coke that there was a definite decision that looks like annexation of the benefit to land (let alone to an estate) prevailing. As is often the case, Coke may have tidied things up rather, bringing an older legal world within the norms of his own day, and effectively making substantive rules out of a dispute about pleading. This passage rather sums up his approach:

Observe reader your old books, for they are the fountains out of which these resolutions issue, but perhaps by these differences the fountains themselves will be made more clear and profitable to those who will make use of them’.. [ix]

Even taking this as a definite judgment, it is very much something to which some context would need to be added and questions asked. There is at least potentially something of a mismatch between the idea of the attachment of a benefit to a manor and attaching it to land, or an ‘ordinary’ estate in land.

So, long story short, I am not sure The Prior’s Case quite stands for the straightforward proposition for which it tends to be used, and there is room for improvement in the way in which lawyers use old cases in new cases and practitioner texts. It strikes me as interesting that legal practice has created its own rewritten versions of the past, for use in modern law. Who would have thought that stereotypically pompous and conservative lawyers would actually be happy working in a post-truth environment? Aside from the questionable implied claims to scholarship and a basis in authority which are embodied in garbled citations of this case, there is something decidedly odd about purporting to respect precedent whilst not actually making an effort to look up records or reports. To the extent that all of this suggests an idea of historical scholarship, it is the historical scholarship of several generations ago, with its passing acquaintance with documentary sources and its reliance on the words of great men (Coke, Blackstone, others, but mostly Coke).

GS

4/12/2023

[DRAFT: DO NOT CITE WITHOUT PERMISSION; This is a ‘work in progress’ and the search for the end of the case goes on!]

Update, 7/12/2023

Two more things:

  1. the case is mentioned in Simpson. As Pakenham’s Case (with YB ref) and there is an explanation of the extension of the running of the benefit of covenants in land, beyond basic warranties, in this case.[i] It rather assumes – perhaps because of the date of the case, that this was about a post-1290 arrangement, but that is not what the plea roll implies.
  2. I am still waiting for a chance to check the plea rolls thoroughly, but there is a hint in a secondary work that the case was not in fact simply decided in favour of Laurence, as modern accounts assume. Now, I confess that I have not yet managed to get to the British Library to check out the manuscript cartulary (see how easy it is to admit that!), but it looks very much as if there was a settlement, with Laurence agreeing to pay the canons for their services: see G. Baker, History and Antiquities of the County of Northampton  2 vols (London, 1822), II, 10, citing Ashby Cartulary in possession of R Orlebar esq of Henwick co Bedford, fo. 204. This is MS Egerton 3033. Sadly, the current disruption at the BL is keeping me from getting my eager little hands on it. 

[i] A.W.B. Simpson, A History of Land Law, 2nd ed. (London 1986), 116-18.

Image: This, I think is the church in question. Note absence of singing canons. Proves my point, I think.

 

[i]  Preston & Newsom: Restrictive Covenants Affecting Freehold Land, eleventh edn (London: Sweet & Maxwell, 2020), Table of Cases and 1-023.

[ii] Inquisition Post Mortem of Laurence’s father, with the right lands. Inquisitions Post Mortem, Edward III, File 78 | British History Online (british-history.ac.uk)

[iii] This case involved rugby rather than singing masses. (I will hold back from making points about the similarity between religion and sport, sport as the modern Opium des Volkes, etc., though I may just be thinking it). Basic issue: did a covenant from 1922 against particular commercial uses mean that Bath Rugby (Club) could not develop the land in question as they wished, to which the answer would be yes, if the benefit of the covenant had been annexed to identifiable land.

Covenants superfans will note at once that, because of the date, there was no tangling with s. 78(1) LPA 1925 or the top fun which is the case of  Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594. If you know, you know.

In the end, the answer was that the land was not identified precisely enough, so the covenant did not work to stop the development.

[iv] [1937] 1 Ch 473 at 482.

[v] 5 Co Rep 17 b

NB – Spencer’s case is about the passing of the burden: Ps are original lessors, so not passing of benefit.

[vii] L. Turano, Intention, interpretation and the “mystery” of s. 79 of the Law of Property Act 1925’, Conv. 2000 Sep/Oct, 377-97, 379; Megarry, Robert, William Wade, Stuart Bridge, Elizabeth Cooke, and Martin Dixon. 2019. The Law of Real Property Ninth ed. London: Sweet & Maxwell, 31-014. ‘in an old case a Prior covenanted with the lord of the manor that he and his convent would sing divine service in the chapel of the manor. It was held that the lord’s successors in title could sue the Prior for non-performance.’

[ix] Co Rep at 17b, p 76.

Positively charged easements? A few thoughts on Gosling v Bradbury [2023] EWHC 199 (Ch)

TW: modern land law, not legal history …

Still with me? OK. This recent easements case is quite interesting (to those of us who like such things) in its treatment of a slightly involved easement.[i] It takes us into a bit of thinking about classification of easements as positive or negative, and into the issue of ancillary easements/rights. It also hints at a rather intriguing question with regard to accommodation and change from supply of something positive to the dominant land, to allowing the continuance of something potentially negative in effect.

The action took place in rural Worcestershire, near Droitwich. Simplifying the facts to their essentials, there were two adjacent pieces of land, Ford Farm (FF) and Rashwood Lodge (RL). It was claimed on behalf of RL that RL had an easement over FF, to obtain water from a borehole on FF, using an electrical pump, located in a barn on FF. The right to the water was fairly uncontroversial – there was an express grant of such a right, from 1982. The issue concerned the electrical pumping. Bradbury had interrupted the electricity supply to the pump, and this meant that the water was no longer pumped to RL. This only came to the attention of the occupant of RL, Ms Dawe, when her supply dried up, so that she could no longer water her horses. [Note to self, insert picture of sad horse here].

What possible argument did Bradbury of FF have for interrupting the electricity supply? Well, the argument made for this not being contrary to an easement in favour of RL was that, although the easement created in 1982 included a right to receive water from the borehole via pump and pipes, and, indeed, a right to go onto FF to check and maintain the equipment, it did not say anything about a right to a supply of electricity.

The judgments suggest that Bradbury, who had acquired FF recently, was well aware of the existence of an easement, but wanted to ‘take back control’ of the land, stop others coming onto it, and perhaps renegotiate the deal with RL so that it was more along the lines of a licence. If this was the plan, it did not work, however.

The right to have the pump powered by electricity, with wiring and apparatus on FF, was held to be a right ancillary to the explicit easement relating to the water received by means of the pump. There was an attempt to argue that, because an ancillary right could not impose a positive obligation on the servient owner,[ii] Bradbury could not be obliged to pay for and allow the supply of electricity, via apparatus on his land. Essentially, Bradbury was trying to say that the interruption of the current was not a positive interference with a genuine easement, but a cessation of positive action to support a claimed but invalid easement. This did not work. Zacaroli J ruled:

‘28. The ancillary right, as declared to exist in this case by the judge, is defined as the right to enjoy the passage of electricity across [FF], including, the right for [Bradbury] to arrange for the supply of electricity onto [FF], the right to make use of infrastructure already in situ on [FF] or to install their own infrastructure and apparatus, and associated rights of access. These impose no positive obligations on [Bradbury or successors in title], but merely require them to suffer things to be done on Ford Farm. They do not, as [counsel for Bradbury] contended, require the appellants to provide and maintain electric wiring and arrange a supply of electricity.’

I think it is quite interesting for easements in general, because it does show the room for disagreement around positivity and negativity. We tend to treat them as clear and distinct, but are they always? That construction of a requirement ‘to suffer things to be done’ is so beautifully liminal in its positioning between active and passive. Not to mention its biblical resonances. The whole situation was also made a little vaguer by the fact that RL and its occupants had not been asked to pay a share of the electricity for some time, though it was maintained that they would have been willing to pay. This non-demand/non-payment circumstance allowed Bradbury to suggest that FF was being burdened with the cost of the electricity, as well as having to ‘host’ the machinery, cables etc. That, of course, would tend to make it look a little more like a requirement for positive input on the part of the servient owner, and so less like a legitimate easement. If we think about Regency Villas, it would tend to take us into the territory that so concerned Lord Carnwath.

It is worth mentioning a couple of other unsuccessful lines of argument which were run on behalf of Bradbury. First of all, there was an attempt to suggest that the easement was to receive water, and that did not actually require the pump, or the electricity, because water would naturally flow from the borehole onto RL anyway. This was ruled out partly because it was an attempt to introduce a line of argument by the back door on appeal, contrary to general rules on appeals which I won’t discuss here, but mostly because the easement was actually in terms of receiving water through the pump and pipes on FF. The fact that it might be possible to get it in some other way was neither here nor there.  Secondly, there was a disallowed argument about the alleged unsafe condition of the water which was coming up from the borehole: apparently it was contaminated by arsenic. This was ruled out of order, again, because it was being brought in in a procedurally inappropriate manner. An interesting potential issue though: what if something which starts off as clearly ‘accommodating’ the dominant tenement turns nasty and damaging? Does ‘accommodation’ cease then, bringing down the whole easement? Not according to  Zacaroli J: even if this had been shown, he did not think that the easement ‘fell away’. It was not necessary to get into this in great detail (sadly for Land Law fans!) but he suggested, almost in passing, that it would be particularly unlikely to change our view of whether the easement ‘accommodated’ in these circumstances:

‘37. …I do not need to decide this point, but I doubt that this requirement is intended to impose a further qualitative or quantitative requirement that the right granted in the particular circumstances is one which does in fact provide a benefit. Moreover, if (which is not disputed) there was a benefit to Rashwood Lodge when the water easement was granted in 1982, it is difficult to see why, assuming there are now unacceptable levels of arsenic in the water – the validly granted easement will have for that reason fallen away, particularly if the problem with arsenic in the water is temporary or can be got around.’

Anyway, Bradbury was found to have been in the wrong, and to have interfered with an easement which did bind FF and its owners. And, just in case anyone was still fretting about positivity and negativity, and the fact that the outcome would be likely to be that Bradbury would have to take positive action, Zacaroli reassured us that:

  1. Although an easement does not impose positive obligations on the servient landowner, if the owner of the servient land is found to have wrongly interfered with a negative easement, it may be open to the Court to require it to take some positive action to undo that which it did via its wrongful interference.’

 

So there we are: positively crystal clear, and without a trace of arsenic; a case about boreholes which is not wholly boring.

 

GS

15/11/2023

 

[i] First instance: [2020] EWHC 3906 (Ch) DJ Shorthose.

[ii] True: ‘14. Any ancillary right must itself, however, be capable of subsisting as an easement: William Old International Limited v Arya [2009] EWHC 599 (Ch), per HHJ Pelling QC at §31.’

Image – general suggestion of electrical power: Photo by Frames For Your Heart on Unsplash

Feu[dal] and [not] far [enough] between

I know that there are much bigger issues out there at the moment, and that there are even bigger problems with leasehold itself, but, politicians and journalists covering planned leasehold reforms, can we STOP CALLING LEASEHOLD FEUDAL?!. Accepting (as some historians don’t) that ‘feudal is a useful term, the lease isn’t, and never was. Yes, there were leases in the medieval world being referred to in a vague, flabby, days-of-yore, way, but they just didn’t occupy the same position as they have done in more recent times. ‘Medieval serfdom’ did not involve leases in anything much like the 1925 Law of Property Act s. 1 sense. ‘Capitalist’ is the word you are looking for.

I had high hopes that somebody had had a word, when I saw the Observer headline for the story – OK, they were pushing the ‘antiquated’ line, despite the fact that the worst abuses seem to be relatively modern, but ‘unfair’ is appropriate, but reading on, we have the full package of ‘feudal’ and William the Conqueror. How is this, from that piece, for a bit of not-joined-up history:

This is a form of rentier capitalism that dates back to the 11th century, when the feudal system was enshrined in law by William the Conqueror. Before the Second World War, almost all flats were rented rather than owned. The number of properties owned on a leasehold basis expanded hugely from the 1970s onwards as large houses were broken up into smaller flats and buying flats to live in became commonplace.

Nothing much happened in relation to leases, nor to land tenure, nor property practices in general, between 1066 and 1939 … ???

There is, I suppose, a little more justification for the ‘feudal ground rent clauses’ variation, in spirit, if not in letter, if the idea is that they are within the control of one party, and can be varied, in the manner of medieval villein services (though, even here, a decent medievalist could tell us that, while there might not be much in the way of common law control on services at a very early point, custom did rather a lot to curb arbitrary changes). And, usually, the ‘feudal’ label seems to be attached to leasehold in general, rather than this aspect of it. (Forfeiture is also picked out as having feudal associations at times: again, not terribly accurately).

And yes, it matters – both in terms of history and in terms of the present. In terms of history, it is a classic example of contempt for the people of the past.  As others have pointed out with regard to the tedious descriptions of violence or barbarism as ‘medieval’, this chronological ‘othering’ trick is a way to avoid seeing the wrongs and problems of the present. Ludicrous ground rent clauses are not the fault of greedy modern landowners out to exploit those not in a position to refuse, they are all down to medieval legal structures and William the Conqueror. Lazy.

Good to get that out of my system!

GS

5/11/2023

Image – in honour of the date, but also, the state of my head when confronted with another ‘leasehold is feudal’ reference. Photo by Jonas Frey on Unsplash

 

Judges, character and credibility

We legal historians have occasion to look at an array of different sorts of reports and records of cases, from the terse medieval plea rolls, via Year Books with their play-like format, through the slightly anarchic years of printed reports of varying standard and reliability, to the fuller, somewhat more easily understandable, reports of the nineteenth and twentieth centuries. There have been developments in recent years, however, which will one day need to be considered as part of a full history of the communication of legal decisions, via ‘official record’ and report. I am thinking of the huge expansion of material relating to cases which is now recorded and published in an easily accessible way. I think that it is arguable that the advent of the prepared essay style judgment, published online, has brought with it legal historically important changes,

One development which has impacted upon my professional world is the practice of publishing fuller and fuller judgments. This expansion is very noticeable in my main ‘day job’ legal subject, Land Law. I presume that, in the case of judges at lower levels in the hierarchy, the trend to longer judgments is prompted, at least in part, by a wish to ensure that, should a case be appealed, the lower-level judge would not be accused of having dealt with some point inadequately. Clearly, we are not the main consideration of judges, in their decisions to be more or less verbose, but it is something of a pain for those of us who want to encourage students to read cases (good luck with some of the massive proprietary estoppel ones in particular!).

It is not just length and the problems that presents for law professors and law students which is worthy of note, though: it is what is included. An issue I have mentioned before is that of judicial comment on witnesses, and the practice of judges including in written judgments and putting out into the public domain their views on the witnesses who appear before them. While judges in cases in which they sit alone, and in which there is a need to decide between different versions of the facts, must clearly make a decision as to which witnesses to believe, and should, in order to give a reasoned judgment, state which witnesses they regarded as more accurate, I am not convinced that it is necessary to go further into character assessment, publishing to the world comments on parties and non-party witnesses which might be hurtful, offensive or damaging to the individuals who have given evidence, and may well (I imagine) not have been expecting this sort of material to be disseminated.

Yesterday, I was reading a particularly interesting example of the genre: Gilpin v Legg [2017] EWHC 3220 (Ch). In this case, which concerned leases, licences and beach huts, the judge (HHJ Paul Matthews, sitting as a Judge of the High Court, in Bristol) commented in the following way, on various witnesses:

The father of a claimant was a ‘careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.’ (7)

A male claimant (a doctor) was ‘a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.’ (8)

A female claimant was ‘a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light.’ (9)

Another male claimant ‘gave clear and straightforward evidence, and was obviously trying to assist the court.’ (10)

A male defendant was ‘an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful.’ (11)

A male solicitor (the defendant’s litigation solicitor) ‘was a professional but slightly excitable, even enthusiastic witness.’ (12).

Another witness was ‘an elderly lady’. (13)

Though there was a need to express a view on the parties’ evidence, I am not sure that anyone needed the comments about a defendant’s ‘feistiness’ or why he might have adopted an ‘aggressive tone’ at some point’ or a claimant’s ‘prickliness’. I have to say that I would be fairly nervous – and quite possibly ‘prickly’ – if I had to speak in court, and knew that comments about me were going to be published in this way. And I am not sure that the ‘elderly’ or ‘excitable’ comments, in particular, were at all useful.

It does not seem to me that this sort of material helps anyone involved in modern legal practice, or that proper transparency and reasoning requires it. Of course, I am not just thinking about the present, and whether this is a good way of handling the assessment of credibility. There are legal history angles! The inclusion of this sort of material makes for an interesting comparison/contrast with some of the early reports of medieval common law cases, in which there are personal comments, but these relate to serjeants pleading before the Common Pleas or King’s Bench, rather than witnesses or parties. I do wonder what legal historians of the future will make of this sort of commentary. It does strike me that they might find it interesting to survey this sort of comment, cross-matching with characteristics of the commenting judge, and such matters as gender, age and professional status of the witnesses being subjected to these published assessments. They might well conclude that early 21st century judges were – in the formulaic incantation – ‘doing their best to assist’ legal historical scholarship.

GS

4/11/2023

Image – I am going with ‘prickly’ …. Photo by Klara Kulikova on Unsplash

Hedge funds and attempted enclosures: Darwall  v. Dartmoor National Park Authority and another [2023] EWCA Civ 927

The CA judgment in Darwall is out. I will confess that I thought it would go the other way – not because natural pessimism led me to expect things to turn out in the way opposite to my preference, but just because, given that changes to the extent of access to the countryside have become part of the likely programmes of political parties, it seemed as if it might be a plausible choice for the CA to say ‘this is one for Parliament to sort out, not us’. Got that one wrong.

Anyway, no doubt I will revisit this, and may update/beef up as I wade through the CA livestream, but it seems worth noting a few immediate thoughts. So –

What is it about?

Alexander and Diana Darwall sought a declaration that people had no right to ‘wild camp’ on Dartmoor, where they owned (a lot of) land. ‘Wild camping’, is, helpfully, defined for us by Underhill LJ as:

a modish phrase which I understand to mean camping overnight in a place which is not a dedicated campsite

There had been an idea that there was such a right in the National Park there, even though there was not generally such a right in England. In the High Court, (: [2023] EWHC 35 (Ch)) Darwall won, and the relevant National Park authority appealed.

Why is it interesting?

Well, it is a fight on the borderline of the extent of a landowner’s power to exclude and the right of the public to obtain access to England’s wild places.

Essentially, it was uncontroversial that the public had access to the National Park for purposes of (for example) walking – so there were definitely some limits to the Darwalls’ rights as landowners, but was wild camping (i.e. camping other than at a designated site, with permission) allowed as well, or not? In the High Court, a judge (Flaux J) had said no. The CA (Vos MR, Underhill and Newey LJJ) however, were convinced that that was incorrect:

‘57. I, therefore, conclude that the grant to the public of “a right of access to the [Dartmoor Commons] on foot and on horseback for the purpose of open-air recreation” does allow members of the public to rest and sleep, whether by day or by night, whether on the ground or in a tent. I do not think that the use of the word “open-air” means that a tent cannot be used for the necessary incidents of walking …’ [Vos]

Despite being about pretty big principles, the CA case was argued on the less-swashbuckling territory of construction of certain legislation specific to Dartmoor itself, and particularly the following words: “the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation” –  Dartmoor Commons Act 1985 s. 10(1).

 

What not-entirely-legally-relevant hares has it set off running in my head?

I thank myself for asking. Well I do I find it rather interesting that there is considerable variation, in the judgments and in newspaper coverage, in the way in which the Darwalls are described. They are ‘farmers, landowners and commoners’ in one place [H Ct 4; CA, 33], which gives a certain spin to things to most people, I would imagine. Farmers – well, they are often treated as a bit special in Land Law, aren’t they (see various proprietary estoppel cases which seem to view farmers and their ways as not like other people, even if they are running rather large concerns in a business-oriented way)? And ‘commoners’ sounds very rustic and old world. Not quite how things are here – as various journalistic sources tell us, Alexander Darwall is not a life-long tiller of the soil, herder of beasts etc., but somebody who was primarily a hedge fund manager, acquiring land in the National Park relatively recently, and using it for, amongst other things, pheasant shooting and deer stalking (see, e.g. the Guardian , which also notes certain political activities).

I also rather enjoyed some of the gymnastics involved in trying to argue that camping was, or was not ‘open air recreation’ (either because canvas meant it was not ‘open air’ or because recreation had to be something physically active and could not be stationary) (see e.g. CA at 55).

Almost finally, one thing which often strikes me as worthy of further study, though I have not made a thorough-enough study of it to say much about it, is the judicial performance of emotion. Expressions of ‘real sympathy’ for the landowners at 72 (CA, Underhill LJ) – what do we think? In a judgment which otherwise seems to be at pains to keep to the statutory construction task, that choice did stand out to me as interesting.

Actually finally, and despite his being on ‘the wrong side’, I do have to award a special gold star for creativity to Timothy Morshead KC, who is reported to have made an allusion to a famous poem by Keats, relating to those ‘long in city pent’, which, although it does mention not being in motion at all times, seems to describe access to the countryside on a day basis, rather than camping, neatly supporting his clients’ case (H Ct, 40).

 

A good one for a Land Law reading list?

Yes – clearly an important area, and something which is ripe for a bit of debate about the limits of rights in and to land. Also shows that fights about pretty fundamental principles can be tied up in painstakingly detailed analysis of the wording of statutes, so rams home the Land Law lecturer’s favourite instruction: you need to be precise! Also –it weighs in at a mere 20 pages: see, proprietary estoppel case judges – you don’t actually have to get into 3 figures…

 

GS

5/8/2023

Photo by serena saponaro on Unsplash

Vampire Property Law: fiend simple absolute in possession?

I can’t believe that it has taken me until now to bring together two important themes in my life: Land Law (taught it almost my whole academic career) and vampire stories (Dracula, Buffy, more versions of Dracula, the Vampyre, Carmilla, even Twilight – despite Bella Swan). What is there to say about Land Law and Vampires? Well, it dawned (!) on me as I watched an episode of latest fun trashy binge-watch The Vampire Diaries, (no, not even mildly embarrassed … vampires are cool and sexy and fascinating, especially when not the tortured goody-goody type, and obviously beat werewolves any day) that there are lots of unanswered points (!) in relation to the Undead and their interactions with systems of property.

 

(Vampires outside a house …)

Can I come in?

Yes, that one. It’s a common ‘rule of the game’ that a vampire cannot come into a home unless invited. From the point of view of suspense and narrative, it’s great – because often the person in the house doesn’t know the stranger on the doorstep is a vampire, and we groan at the uninformed acquiescence (because there’s no idea of informed consent here, is there?) as the vampire gains freedom to enter at will. Also, there is the comedy potential of a vampire denied entry walking into an invisible barrier.

The Vampire Diaries makes great play of this, and there are certainly resonances for those of us involved in another area regarded as a little … undead … – Land Law. In series one, Damon (everyone’s favourite evil-but-good-but-evil vampire) and Alaric (slightly Harrison Ford-ish human with a magic ring – actually played by the bonehead boyfriend from another jurisprudential classic, Legally Blonde) banter about the rule, revealing that there are some doubts as to exactly who has the right to invite somebody in, in particular with regard to short term lets, motels etc. s.2 ep. 18 went totally for the Venn diagram overlap between vampires and Land Law, by having a conveyance of a house to (slightly drippy but alive and human) Elena, so that she could use her right to invite/refuse to keep out undesirable vampires, but let in her then paramour, Stefan (he of the tortured soul, frequently demonstrated by moping in a tight vest) and other vampire allies.

There is more right-of-entry-related fun in later series. Season 7, for example, goes for it in a big way. In episode 2, Lily, vampire mother of Stefan and Damon Salvatore, during an evil phase, keeps her sons out of the house by signing it over to a compelled Matt Donovan (a rather dim human) and making him refuse them entry. Thrillingly, there is talk of land registration (be still my apparently not undead beating heart)! And also a nugget on the workings of the whole thing – apparently if human Matt were killed and then brought back to life, that would simply ‘open the door’ – so, the seals would not go back up when he returned from the dead. [Issues of property entitlements, succession and return from the dead could, frankly, be fleshed out rather more …] Another human registered proprietor for the Salvatore house (for the same reason as Matt) is the compelled cleaner, Lucy (season 7 ep. 6). [I do wonder how to categorise the interests of Lily’s family in the house – un-life tenants?] Another house which features some property-based refusal of entry issues is the place Bonnie Bennett bought to keep drippy Elena’s coma-coffin, and wanted to use as a love nest for herself and dodgily accented vampire Enzo. In s. 8 ep. 11, Stefan (in an evil phase – keep up!) somehow managed to have title transferred away from Bonnie, thus allowing him to get in, shutting Enzo out and leaving the latter vulnerable to slaughter. I don’t claim any knowledge at all of the property law of New York, so don’t really understand how it is that the realtor has the ability to assume title of the property, but that is what happens (she is, of course, compelled – interesting to wonder how vampire compulsion could be brought up in a property dispute …)

Good stuff, but still so much that we need to know, e.g. …

To which buildings does the rule apply?

  • The stories are mostly, if not all, about homes. So are commercial premises ruled out (along the lines of rules restraining mortgage repossessions etc.? And what of a ‘mixed use’ property? Vampire story writers, I encourage you to look up the case law on ‘dwelling house’ under the Administration of Justice Act 1973 s.8 (or equivalent in your jurisdiction).
  • And what of static caravans? These might be regarded as chattels rather than fixtures. Does the rule apply?

Can we have a little more detail on the right to invite?

  • Is legal title required before a person has the right to invite?
  • Can one of two co-owners invite a vampire in? (This, shockingly, is not mentioned in the Trusts of Land and Appointment of Trustees Act 1996 – unless we consider it to come under ‘powers of an owner’. Surely it would be a breach of trust, though.)
  • What about houses subject to a mortgage? Or a long leasehold? Could a vampire move in to one house and acquire an easement to enter neighbouring properties? How would a licence for vampire entry work with s. 62 of the Law of Property Act on reconveyance? So many unanswered questions …
  • Given Manchester Airport v. Dutton [1999] EWCA 844, can a mere licensee invite a vampire in?
  • What happens when the house is sold, or if the ‘inviter’ dies and the property passes to a donee? Is a new invitation required?
  • Can conditions be placed upon an invitation?
  • Does an invitation to a vampire to enter amount to severance of an equitable joint tenancy (as well as likely severance of a carotid artery)?
  • Can vampires keep their own homes, i.e. the ones they had prior to being ‘turned’? This seems to be assumed, but why is it that they do not lose their rights on becoming technically dead, the right passing to the (living) person entitled under a will or intestacy, enabling that person to shut them out?
  • Could a vampire ever be ‘in actual occupation’ for the purposes of Sch. 3 para. 2 of the Land Registration Act? It doesn’t specifically say that life is required …
  • What happens if a vampire is granted a life interest in land?
  • Could a vampire ever acquire an easement by prescription, or would it always fall down on the nec vi, nec clam, nec precario thing (since any prescribing would be done at night, with force, and possibly with (compelled/sneakily acquired) permission?
  • Finally, bringing in Legal History as well … Given that the undead ‘live’ (exist? un-die?) rather a long time (as long as they avoid staking etc.), and that regimes of property law can change, how do we decide what is the correct set of Land Law rules to apply to all of this. Is the critical date that of the vampire’s turning, of the building of the house, or the current date? And where would any disputes be taken? I am sure there is a whole issue about standing of and jurisdiction over the undead which needs to be sorted out.

(Vampires clearly inside a house …)

There’s just so much we need to know, isn’t there? And very oddly, there is not much in the way of existing scholarship.[i] Too much other stuff to do at the moment, but, like the undead, my article on Vampire Property Law for the Mystic Falls Law Review is a project which will keep (as long as it avoids direct sunlight, decapitation, or a stake through the heart …)

GS

11/3/2021

updated 20/1/2022

 

(Main Image – what is very obviously a vampire, from an AALT scan of a Common Pleas roll of 1489: ‘vampires and legal history’ is a thing. Don’t get me started on ‘mortmain’ …)

[Later thought – on the basis of this case – surely there is scope for a bit of vampiring up of the legal/property aspects of cryptocurrency such as Bitcoin …. Yes, need to get out more …]

[i] Honourable exceptions in terms of general law/vampire study: Anne McGillivray’s ‘”He would have made a wonderful solicitor”: law, modernity and professionalism in Bram Stoker’s Dracula‘, in Lawyers and Vampires : Cultural Histories of Legal Professions, edited by David Sugarman, and W. W. Pue, (2004), c. 9; Anthony Bradney . ‘Choosing laws, choosing families: images of law, love and authority in “Buffy the Vampire Slayer” Web J.C.L.I. 2003, 2).

Towards a Theory of Vampire Property Law

I can’t believe that it has taken me until now to bring together two important themes in my life: Land Law (taught it almost my whole academic career) and vampire stories (Dracula, Buffy, more versions of Dracula, the Vampyre, Carmilla, even Twilight – despite Bella Swan). What is there to say about Land Law and Vampires? Well, it dawned (!) on me as I watched an episode of latest fun trashy binge-watch The Vampire Diaries, (no, not even mildly embarrassed … vampires are cool and sexy and fascinating, especially when not the tortured goody-goody type, and obviously beat werewolves any day) that there are lots of unanswered points in relation to the Undead and their interactions with systems of property.

 

Can I come in? Yes, that one. It’s a common ‘rule of the game’ that a vampire cannot come into a home unless invited. From the point of view of suspense and narrative, it’s great – because often the person in the house doesn’t know the stranger on the doorstep is a vampire, and we groan at the uninformed acquiescence (because there’s no idea of informed consent here, is there?) as the vampire gains freedom to enter at will. Also, there is the comedy potential of a vampire denied entry walking into an invisible barrier.

The Vampire Diaries, however, has had a couple of scenes playing with this whole idea, with resonances for those of us involved in another area regarded as a little … undead … – Land Law. In series one, Damon (everyone’s favourite evil-but-good-but-evil vampire) and Alaric (slightly Harrison Ford-ish human with a magic ring) banter about the rule, revealing that there are some doubts as to exactly who has the right to invite somebody in, in particular with regard to short term lets, motels etc. It’s not fully fleshed out, but it hints at one of the issues. There is much that we need to know:

To which buildings does the rule apply?

  • The stories are mostly, if not all, about homes. So are commercial premises ruled out (along the lines of rules restraining mortgage repossessions etc.? And what of a ‘mixed use’ property? Vampire story writers, I encourage you to look up the case law on ‘dwelling house’ under the Administration of Justice Act 1973 s.8.
  • And what of static caravans? These might be regarded as chattels rather than fixtures. Does the rule apply?

Who has the right to invite?

  • Is legal title required before a person has the right to invite?
  • Can one of two co-owners invite a vampire in? (This, shockingly, is not mentioned in the Trusts of Land and Appointment of Trustees Act 1996 – unless we consider it to come under ‘powers of an owner’. Surely it would be a breach of trust, though.
  • Given Manchester Airport v. Dutton [1999] EWCA 844, can a mere licensee invite a vampire in?
  • What happens when the house is sold, or if the ‘inviter’ dies and the property passes to a donee? Is a new invitation required?
  • Can conditions be placed upon an invitation?

 

Miscellaneous

  • Does an invitation to a vampire to enter amount to severance of an equitable joint tenancy (as well as likely severance of a carotid artery)?
  • Can vampires keep their own homes, i.e. the ones they had prior to being ‘turned’? This seems to be assumed, but why is it that they do not lose their rights on becoming technically dead, the right passing to the (living) person entitled under a will or intestacy, enabling that person to shut them out?
  • Could a vampire ever be ‘in actual occupation’ for the purposes of Sch. 3 para. 3 of the Land Registration Act? It doesn’t specifically say that life is required …
  • What happens if a vampire is granted a life interest in land?
  • Could a vampire ever acquire an easement by prescription, or would it always fall down on the nec vi, nec clam, nec precario thing (since any prescribing would be done at night, with force, and possibly with (compelled/sneakily acquired) permission?
  • Finally, bringing in Legal History as well … Given that the undead ‘live’ (exist? un-die?) rather a long time (as long as they avoid staking etc.), and that regimes of property law can change, how do we decide what is the correct set of Land Law rules to apply to all of this. Is the critical date that of the vampire’s turning, of the building of the house, or the current date?
  • And where would any disputes be taken? I am sure there is a whole issue about standing of and jurisdiction over the undead which needs to be sorted out.

There’s just so much, isn’t there? And oddly, not much in the way of existing scholarship (honourable exceptions in terms of general law/vampire study: Anne McGillivray’s ‘”He would have made a wonderful solicitor”: law, modernity and professionalism in Bram Stoker’s Dracula‘, in Lawyers and Vampires : Cultural Histories of Legal Professions, edited by David Sugarman, and W. W. Pue, (2004), c. 9; Anthony Bradney . ‘Choosing laws, choosing families: images of law, love and authority in “Buffy the Vampire Slayer” Web J.C.L.I. 2003, 2 – the abstract of which looks promising, and which I’m trying to find). It’s a shame I am on study leave next year, or I would definitely be suggesting this for a Final Year Research Project. Ah well, like the undead, it will keep (as long as it avoids direct sunlight, decapitation, or a stake through the heart …)

GS

11/3/2021

And an update, 15/3 – the latest episode of VD (yes, we are using that) which I saw (s.2 ep. 18) went totally for the Venn diagram overlap between Vampires and Land Law, by having a conveyance of a house to (slightly drippy but alive and human) Elena, so that she could use her right to invite/refuse to keep out undesirable vampires, but let in her paramour, Stefan (he of the tortured soul, frequently demonstrated by moping in a tight vest) and other vampire allies.

(Image – what is very obviously a vampire, from an AALT scan of a Common Pleas roll of 1489: ‘vampires and legal history’ is a thing.)

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

There is a good note on it in the Conveyancer – Sam Bannister, ‘‘Over-acquiring and under-quantifying: continuing issues with the common intention constructive trust: Amin v Ami’n, Conv. 2021, 2, 222-229 – so I won’t go over things nicely covered there, but just make a few more observations on the case, which is 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 for a declaration of the interests of Mr Amin and the sons). This way of proceeding meant that it was a virtual  ‘all or nothing’ case – Mrs Amin claimed everything, the counter-claim was for 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 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 with slightly wider cultural perspectives.

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 – see Bannister note.  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 stages in consideration of  CICTs –  ‘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 creditworthiness 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.

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. 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.

 

GS

18/4/2019

Update

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.