Tag Archives: proprietary estoppel

[E]stop in the name of love

Yes … wrenched pun heralds a note on the fact that yet another proprietary estoppel case has come out, Gladstone v White [2023] EWHC 329 Ch. Not a massively exciting one in terms of legal doctrine, but some things to notice about the judgment, and the ‘human interest’ reporting of the case in various parts of the press. And vaguely historical because it features an old stately home in Bucks …

Basic facts

The main contenders in the case were solicitor Leigh White and David Gladstone (a former diplomat, i.a. having been the High Commissioner to Sri Lanka). White claimed an interest in Gladstone’s land, (Wotton House, a  Grade I listed ‘£15 million mansion’). White was, until recently,  in the mansion and refusing to leave; she had been there since the pandemic, when Gladstone (a man in his late 80s) had moved out to self-isolate. He now wanted to come back and wanted her out.

There had been a close relationship between White and Gladstone, though there was disagreement as to whether this amounted to her being a ‘surrogate daughter’ (and thus just the person to be left the property) or her being rather more in the nature of a friendly and competent adviser (and thus not likely to expect to benefit in property terms).

So what happened? Read on …

 

The Legal Bit

Well  … White’s claim was that she had an interest by virtue of proprietary estoppel. She said he had assured her that she would be left this interest, and she had acted to her detriment in reliance on it, so that it would be unconscionable for him not to give her the interest. He disagreed and wanted her out. On Gladstone’s side the argument was that there was no assurance which amounted to something White might reasonably have relied upon to her detriment, and not really any detriment, so no proprietary estoppel.[i] White lost on all fronts – and I don’t have anything very much to say about the law – it is applying the precedents in a fairly unsurprising way.

 

A long story

Several Land Law academics have commented on the length of this case – and, indeed, other proprietary estoppel cases. This one, from Trower J,  weighs in at 123 pages. Many of us recently had to slog through 108 pages of Guest v. Guest. There is a genuine issue here, for teachers of Land Law – we all like the idea of students reading primary sources, of actually going to the case law, but it is becoming increasingly unrealistic to expect them to be on top of such long cases. (There are a few interesting points in another recent one, Mate v. Mate, a measly-by-comparison 92 pages, but that is not going on any of my reading lists). If it takes us a long time to get through one, we have to expect that it will take students, less (tragically) immersed in the background, and the other cases in the area, much, much longer. Obviously, judgments are not principally written for teaching purposes (unlike, we may think, the old Year Books) but I do wonder whether it is wholly necessary for them to be quite so discouragingly long.

As many of us work with assessment regimes with strict word limits for student answers, there does seem a particularly striking contrast between that insistence on efficiency of expression and the apparently complete lack of limits on the length of judgments. I wonder if the current generation of students, word-limited as they are, will produce shorter judgments when some of them rise to the heights of judgehood. Or will they take these cases as a challenge to produce ever longer judgments?

It certainly appears self-indulgent at times, to have 100 plus page judgments, and I do think that Guest could have benefited from some pruning. There is, perhaps, more reason to have longer judgments in lower courts, so as to set down all of the findings of fact, and the ‘workings out’, and to minimise the possibility of appeals and criticism on the basis that a first instance judge has not considered something or other, or not considered it properly. Still, it is a bit of a heart-sinker, seeing that you are on ‘p. 1 of 123’ in a judgment …

It could probably lose some of the narrative bits. Evidence of Gladstone’s ‘frail’ state of health was, of course, very relevant, as was White’s career as a solicitor, (first, because she was basing her case in having suffered detriment by giving it up to work at Wotton, and, secondly, because, given the knowledge of legal matters which it implied,  it had implications for whether or not it was reasonable for her to rely on certain words as indicating that she would have a property interest). I am not sure that it was pertinent that Gladstone was ‘cultivated’ and ‘sensitive’ (34), or moved in ‘sophisticated circles’ (64), or the name of the architect who had done some revamping (even if that name is Ptolemy Dean. Ptolemy! Good Lord!). [And the suggestion that ‘David could be long-winded (128) may be thought to sit a little uninsightfully in a 123-page judgment….] So, we could do without some of the narrative elements, but nobody would want to redact the excellent passage in paragraph 421 in which we are treated to the exact wording of a quarrel in which somebody called White ‘a fucking nobody’ (though the judge does not use inverted commas, which does make it look rather as if the words are his.)

The coverage

Not that many Land Law cases find their way into the press. Not as exciting as big criminal cases, or Wagatha Christie style defamation cases, I suppose, but still, they do occasionally push the right journalistic buttons – different buttons for different papers. With this one, we have a mixture of:

  • Wealth/prominence of the property owner (Millionaire ex-ambassador, or even ‘multimillionaire’)[ii] The Mail gives us the additional nugget that he was a descendant of William Ewart Gladstone (old families – marvellous …) and throws in the fact that Tony Blair and his wife Cherie Booth had bought ‘a former coach house’ on the estate (how very downmarket! And, at the same time, extravagant!)
  • Value of the property (all accounts). Suspect it was this that drew in that well-known legal journal, the Tatler.
  • The fact that the losing party was a lawyer (always a bit of schadenfreude when lawyers lose lawsuits, I think).[iii]
  • The size of the legal bill faced by the losing lawyer (compounds, or adds an extra degree of piquancy to the schadenfreude felt by journalists, so it seems to me, anyway). £1 million is mentioned …[iv]

Only the Times, as far as I can see, went with a designation of ‘squatter’ for White. And, for a couple of points about Gladstone in his ambassadoring days, you’ll need to look at the Sri Lankan Times.

Anyway – law students, I am not sure I would bother plodding through this one: you have enough on with Guest v. Guest. It would be a rather good plot for a drama, though, should any TV or radio dramatists stumble upon this: class elements, stately home, tension, got to be Winslet as the lawyer-claimant, Nighy as the landowner; and a chance for a bit of a cameo from Michael Sheen as Tony Blair … come on, you know it makes sense.

GS

2/3/2023.

[i] (There were other things going on, to do with trusts and undue influence, but let’s keep it simple, and think just about Wotton and about the proprietary estoppel case).

[ii] See, e.g., Express.

[iii] See, e.g., Mail.

[iv] See, e.g., Metro and Sun.  In fact, this looks like a conservative figure, if my sums are correct!

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.

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!]