(back to preceding text)

22.  I have had the great advantage of considering in draft the speech to be delivered by my noble and learned friend, Lord Walker of Gestingthorpe. I agree with it and add just a brief comment on the first point.

23.  Lord Walker has quoted passages and sketched other points from the judgment of the deputy judge, Mr John Randall QC. Much of that judgment is devoted to portraying the relationship between the late Mr Peter Thorner and the appellant, Mr David Thorner, who was his first cousin once removed. At all relevant times Peter was taciturn, while David was content to assist Peter on his farm year after year for nothing, even though his only income was pocket money from his father. By most standards, the situation was unusual. But it is precisely that unusual situation which provides the context in which the remarks which lie at the heart of the case of proprietary estoppel fall to be interpreted.

24.  Given the actual situation, there was never going to be what Mr Simmonds described as a “signature event", such as a family wedding or christening, at which Peter would make a dramatic announcement, in front of the assembled family, about the destination of his estate. Indeed, since Peter was in the habit of saying so little, it was scarcely to be expected that he would ever address the matter directly. But the judge found - and the Court of Appeal accepted - that, by his oblique remarks on a number of occasions, Peter had intended to indicate to David that he was to inherit Steart Farm. David interpreted Peter’s remarks in the way that he intended.

25.  The contention for the respondents was that, even though David had correctly interpreted Peter’s remarks as assurances about inheriting the farm, his remarks were not “clear and unequivocal". There was therefore no way of saying that they were intended to be relied on and they could accordingly not give rise to an estoppel. I would reject that contention.

26.  Even though clear and unequivocal statements played little or no part in communications between the two men, they were well able to understand one another. So, however clear and unequivocal his intention to assure David that he was to have the farm after his death, Peter was always likely to have expressed it in oblique language. Against that background, respectfully adopting Lord Walker’s formulation, I would hold that it is sufficient if what Peter said was “clear enough". To whom? Perhaps not to an outsider. What matters, however, is that what Peter said should have been clear enough for David, whom he was addressing and who had years of experience in interpreting what he said and did, to form a reasonable view that Peter was giving him an assurance that he was to inherit the farm and that he could rely on it.

27.  As can be seen from paras 94 and 98 of his judgment, the judge, who enjoyed “those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case” (Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35, 37, per Lord Shaw of Dunfermline), held that it was indeed reasonable for David to understand those remarks in that way and to rely on them by going on working, for nothing, for many years. Not only can I not come to a clear view that the judge was plainly wrong in this conclusion, but I see no reason to doubt that he was right.

28.  For these reasons, as well as for those to be given by my noble and learned friend, Lord Neuberger of Abbotsbury, I would allow the appeal and restore the deputy judge’s order.

LORD WALKER OF GESTINGTHORPE

My Lords,

The issues

29.  This appeal is concerned with proprietary estoppel. An academic authority (Simon Gardner, An Introduction to Land Law (2007) p101) has recently commented:

“There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither).”

Nevertheless most scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance (see Megarry & Wade, Law of Real Property, 7th edition (2008) para 16-001; Gray & Gray, Elements of Land Law, 5th edition (2009) para 9.2.8; Snell’s Equity, 31st edition (2005) paras 10-16 to 10-19; Gardner, An Introduction to Land Law (2007) para 7.1.1).

30.  This appeal raises two issues. The first and main issue concerns the character or quality of the representation or assurance made to the claimant. The other (which could be regarded as a subsidiary part of the main issue, but was argued before your Lordships as a separate point) is whether, if the other elements for proprietary estoppel are established, the claimant must fail if the land to which the assurance relates has been inadequately identified, or has undergone a change (in its situation or extent) during the period between the giving of the assurance and its eventual repudiation.

31.  I should say at once that the respondents to the appeal did not contend that this House’s decision in Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55; [2008] 1 WLR 1752 (“Cobbe“) has severely curtailed, or even virtually extinguished, the doctrine of proprietary estoppel (a rather apocalyptic view that has been suggested by some commentators: see for instance Ben McFarlane and Professor Andrew Robertson, “Death of Proprietary Estoppel” [2008] LMCLQ 449 and Sir Terence Etherton’s extrajudicial observations to the Chancery Bar Association 2009 Conference, paras 27ff.) But Cobbe is certainly relevant to the second issue. The respondents’ case is that in Cobbe this House reaffirmed the need for certainty of interest which has, it is argued, been part of the law since Ramsden v Dyson (1866) LR 1 HL 129. The respondents argue that Re Basham [1986] 1 WLR 1498 was wrongly decided so far as it extended, not just to the deceased’s cottage, but to the whole of his residuary estate.

The facts

32.  The facts were found by the deputy judge, Mr John Randall QC, in a long and carefully-organised reserved judgment. His judgment shows, to my mind, that he took full advantage of seeing and hearing the witnesses who gave evidence before him. He was sensitive to the complexities of human nature as they appeared from the evidence which Mr David Thorner (the claimant and the appellant before your Lordships) gave about himself and about the late Mr Peter Thorner (whose personal representatives are the respondents). He found the claimant to be a “painfully honest” witness. It is noteworthy that in the Court of Appeal, Lloyd LJ (with whom Ward and Rimer LJJ agreed) expressly accepted the deputy judge’s findings of fact (para 66):

“The finding as to what was said and done is one of primary fact, which is not open to challenge, nor is it sought to be challenged. The finding as to what Peter meant by what he said and did is one of inference, but the judge’s ability to draw the inference was based on other evidence, above all as to what Peter was like, which he had and we do not. It is therefore also, in effect, immune from challenge. I proceed on the footing of the judge’s finding that Peter did intend to indicate to David that the latter would inherit the farm.”

For simplicity (and without intending any disrespect) I shall follow the deputy judge and Lloyd LJ in referring to the claimant, his father (Jimmy), his deceased cousin (Peter) and other members of the family by their first names.

33.  The account that follows is a summary, and inevitably one that loses some of the nuances, of the fuller findings made by the deputy judge. It also draws on the agreed statement of facts and issues (“the agreed statement”) prepared for your Lordships.

34.  The Thorners are a farming family living in Somerset. Jimmy and Peter were first cousins. Peter was born in 1927 and Jimmy was ten years older. David was born in 1949 and so was 22 years younger than Peter. Peter was married twice but had no children. His first wife Sarah, to whom he was devoted, died in 1976 from Crohn’s disease. In 1977 Peter married his housekeeper but they separated within two years, and were divorced in 1986.

35.  Sarah owned Steart Farm, on the edge of the village of Cheddar in Somerset. She had inherited it from her parents, and on her death Peter inherited it from her. It was then about 350 acres in extent, including some rough grazing on the Mendip Hills. Until 1988 Peter had a dairy herd, beef cattle and sheep. But by then his health was no longer good (he had a recurrent hernia, and also breathing difficulties) and in 1988 he sold the dairy herd and his milk quota. In 1992 (when he was aged 64) he was farming 583 acres, some of it rented by him as tenant. In 1998 he sold the sheep and in the course of the next year he granted some three-year farming business tenancies over most of the land, continuing to farm about 160 acres himself, primarily for beef. The agreed statement records that at Peter’s death in 2005 (aged 77) the farm comprised 560 acres, including 120 acres of which Peter was only the tenant. Of this total 400 acres were let out by Peter and 160 acres were in hand.

36.  I now go back in time to 1976. After Sarah’s death David, who was then aged 26 and already had eleven years’ practical experience of farming, began to help Peter at Steart Farm. He continued to do so, without any remuneration, until Peter’s death 29 years later. David was at this time living and working at his father’s farm at Coxley, between Wells and Glastonbury. For this he received “pocket money” (latterly, it seems, £30 a week) from his father. David has never married. Apart from farming, horses were his main interest, so far as he had time for any other interests while working on Jimmy’s farm (for pocket money) and Peter’s farm (for nothing).

37.  David worked very hard at Peter’s farm. From 1986 (after Jimmy had given up farming) most of David’s time was spent helping Peter at his farm, in a variety of tasks from night-time calving to farm paperwork of all sorts. David also provided Peter (who was on his own from about 1979) with companionship and emotional support. Peter particularly needed help with paperwork for reasons that the deputy judge described in a passage (quoted by Lloyd LJ) which is also relevant to the first issue in the appeal:

“31. Peter was described in evidence as ‘a man of few words.’ There are perhaps two relevant aspects to that. First, Peter was a relatively private man who generally kept his thoughts about his business and financial affairs to himself. Second, he had literacy problems, not finding reading easy, and finding writing particularly difficult. He never took to paperwork, and regarded the increasing amount required as an unwelcome imposition, although that may well have been as much a generational matter as a reflection of his literacy problems. There is however also some evidence that once ‘cattle passports’, movement records and the like became mandatory, he was concerned that the paperwork from his farm should be right. I detect no necessary inconsistency between these various features of the evidence.

32. There is evidence from a number of witnesses (including David, Richard Adams and Graham Livings) which I accept, that Peter was not given to direct talking. The simplest example (though it went a good deal further than this) is that when Peter said ‘What are you doing tomorrow?’ he generally meant ‘Would you come and help me tomorrow?’ Indeed Mr Selby, a long-serving police officer in the Avon & Somerset Constabulary, observed that lack of directness in conversation is a common feature he has encountered more generally when speaking to farmers in the area. I will not speculate as to whether it is confined to farmers in this area of Somerset. In assessing whether there is any significance to be attached to the somewhat indirect manner in which a number of Peter’s statements now relied [on] by David were expressed or communicated, this is a factor to [be] borne in mind.”

38.  Resisting the temptation to quote more of the judgment (which has many acute observations on the evidence) I set out the balder terms of para 11 of the agreed statement:

“By 1985 David was working 18 hours a day, seven days a week, on his father’s farm and Steart Farm, with Steart Farm taking up more than half his time. David lived with his parents, received pocket money from them and received no payment whatever from Peter. But Peter considered himself entitled to David’s help and expected David to do whatever he asked. David was at Peter’s beck and call.”

39.  In 1986 Jimmy gave up farming and David moved with his parents to Barton House, a house with four acres of land. It was closer (about ten minutes’ drive) to Peter’s farm. For a short time David kept some horses and calves there but in 1987 he allowed his brother Kevin (who had a young family) to take over the use of this land. David told Kevin that he was becoming more and more involved at Steart Farm, where he believed his future lay.

40.  So I come to the deputy judge’s findings which are directly relevant to the first issue. Paragraphs 12 and 13 of the agreed statement are in the following terms:

“During the 1980’s David came to hope that he might inherit Steart Farm. That hope became an expectation in 1990 when Peter gave him the 1989 Prudential Bonus Notice on two assurance policies on his own life and said ‘That’s for my death duties’. By so doing Peter intended to indicate to David that he would be Peter’s successor to Steart Farm upon his death and that David’s understanding to that effect was correct. This remark and conduct on Peter’s part strongly encouraged David or was a powerful factor causing him to decide to remain with his parents in Somerset (even though they had given up their own farm) and continue his very considerable unpaid help to Peter at Steart Farm, rather than move away to pursue one of the other opportunities which were then available to him, and which he had been considering. There was no evidence that Peter knew of those opportunities.

Over the following years Peter made other remarks to David which were based on the unspoken mutual understanding and which encouraged the expectation which David had formed that he would be Peter’s successor to Steart Farm upon his death and encouraged David to continue with his very considerable unpaid help to Peter there; and those remarks were reasonably understood and relied upon by David in that way.“

The words in italics are qualified by a footnote to the effect that the respondents’ counsel (but not the appellant’s counsel) regard them as an inference which an appellate court can re-open.

41.  In amplification of this I should, I think, set out some of the deputy judge’s crucial findings in his own words. These passages were quoted by Lloyd LJ also. The first covers the position down to 1990:

“86. During the 1980’s David came to hope that he might inherit Steart Farm. As he put it in evidence, from 1985 Peter ‘made various noises that made me think that I might well inherit, but nothing very definite.’ Significantly, the evidence of Richard Adams, who saw quite a lot of Peter in the first half of the 1980’s, is that ‘By the mid-80’s I had no doubt that Peter intended David to have the farm. I cannot point to any specific statements from that period, it was more a question of the nature of their relationship'.”

42.  This is what the deputy judge said about the Prudential bonus notice:

“94. One day in 1990, when Peter was still only in his early 60’s, he handed David a Prudential Bonus Notice, relating to two policies on Peter’s life which appear then to have had a value of about £20,000 between them, and said ‘That’s for my death duties’. David duly retained the document, the original of which was disclosed to the defendants’ former solicitors, and (after it was eventually retrieved from a file, during the course of the trial) a copy of which is now exhibited. One can only speculate as to whether the timing was coincidental, or whether Peter had heard from a mutual contact that David was considering other career avenues at about that time, and felt that he should say something to encourage David to continue helping him at Steart Farm (David makes an observation to similar effect in his witness statement). This simple action and short accompanying comment by Peter marked something of a watershed, in that it was the first direct reference made by Peter to David with regard to matters concerning his estate and passing and marked the point at which David’s hope of inheriting (born of the various hints referred to in para 86 above) became an expectation. Given the clear picture which has emerged from the evidence of Peter as a man of few words, who generally maintained his privacy about his personal financial affairs (even David only learnt after his death of the extent of his monetary resources), and who hardly ever spoke in direct terms, I am satisfied that in making such a remark, and handing such a document to David to keep, Peter was intending to indicate to David that he would be Peter’s successor to Steart Farm, upon his death, and that David’s understanding to that effect was correct. I find that this remark and conduct on Peter’s part strongly encouraged David, or was a powerful factor in causing David, to decide to stay at Barton House and continue his very considerable unpaid help to Peter at Steart Farm, rather than to move away to pursue one of the other opportunities which were then available to him, and which he had been mulling over.”

43.  David’s mother Dorothy died in 1992. Her death was a heavy blow to Jimmy, and David did his best to support his father. In relation to this period (about the mid-90’s) the deputy judge found:

“98. From time to time, Peter made remarks to David in conversation which, though not saying so directly, carried with them the implication that David was to have [a] continuing long-term involvement with Steart Farm. Peter would point out to him little things about the farm which would only be of relevance to someone with such an involvement (as they were of no immediate relevance at the time they were made), and which it was only necessary to communicate to someone who would be there after Peter had gone, and the undocumented knowledge in his head was no longer available. The underlying context of such remarks was of course the remark made in 1990 coupled with the handing over of the bonus notice, which I have already dealt with, and David’s continuing heavy commitment to wholly unremunerated work on Steart Farm. Understandably, the evidence does not date these remarks with any precision. One such remark was when Peter made a point of drawing to David’s attention a cattle trough which, he explained to him, never froze up in winter. I find that this and other such remarks encouraged the expectation which David had formed (in the circumstances I have already explained) that he would be Peter’s successor to Steart Farm, upon his death, and encouraged David to continue with his very considerable unpaid help to Peter there. I am also satisfied that it was reasonable for David to understand them and rely on them in that way. That being the case, it is unnecessary for me to undertake the somewhat artificial exercise of attempting to make a specific finding, in respect of each of Peter’s more indirect remarks, as to whether Peter positively intended each such remark to convey to David the meaning, and bring about the reliance, which it did.”

44.  In 1997 Peter made a will, drafted for him by his solicitors. He left pecuniary legacies totalling £225,000, and the whole of his residuary estate to David. David knew nothing about this, although he was named as sole executor. But a year later Peter fell out with one of the pecuniary legatees and (apparently for that reason) telephoned his solicitor saying that he wanted to cancel his will. He said he would arrange to make another will. His solicitor correctly advised him by letter that if he wished to revoke the will by destruction he would have to do it himself, that the consequence would be an intestacy, and that he should consider making a new will as soon as possible. With his letter the solicitor sent Peter the 1997 will. It has never been found, and the deputy judge inferred that Peter did destroy it. He never made a new will, and died intestate, on 13 November 2005, a week after Jimmy’s death. It was David who found him dead at Steart Farm.

45.  Towards the end of his life Peter made further remarks to David similar to those recorded in para 98 of the judgment. The deputy judge was satisfied (para 111) that all these remarks further encouraged David to continue to give unpaid help to Peter, and that it was reasonable for David to understand them and rely on them in that way. I need not set out the details of this evidence.

The proceedings below

46.  At trial all the elements of proprietary estoppel, as pleaded by David, were in issue: assurances, reliance and detriment. I have already set out the deputy judge’s findings as to the oblique assurances that Peter made to David.

47.  As to detrimental reliance, the deputy judge remarked (para 129):

“Though hope only became expectation in 1990, it is at least relevant background that by then David had already put in a huge amount of unpaid work at Steart Farm, over the preceding fourteen or so years.”

He concluded (para 131):

“With regard to all that David did at Steart Farm, and in looking after Peter, for the further fifteen or so years up to his death, there is again no need for me here to repeat the various relevant findings I have already made earlier in my judgment. David’s contribution was not only unremunerated, but also far in excess of that made by any of the others who helped at Steart Farm, whose roles I have reviewed in paras 74-80 above. He was encouraged to continue with his considerable and unremunerated commitment to this work by what was said and done by Peter on the various occasions I have already identified. There is a clear and sufficient link between that encouragement from Peter and what David did for him and on his farm.”

He went on (in para 132, which contained a review of the expert evidence on farm finance and management) to reject the submission that David had actually done less than he was asserting at trial. Detrimental reliance is no longer at issue in the appeal.

48.  The deputy judge’s order was that David should receive the land, buildings, live and dead stock and other assets of Peter’s farming business, including about £24,000 in the farm’s current account, but should indemnify Peter’s personal representatives in respect of inheritance tax payable on Steart Farm (parts of which had development value exceeding the agricultural value). The order also directed an account of income to be taken.

49.  The personal representatives appealed with permission granted by Mummery LJ. There were four grounds of appeal, the first three all reflecting different lines of attack on the issue of assurances: that there was no clear promise; that the bonus certificate incident was insufficient; and that the judge placed undue weight on David’s expectation and the detriment suffered by him; the fourth ground attacked the quantum of relief as exceeding the minimum necessary to satisfy the equity.

50.  So in the Court of Appeal the argument centred on whether the oblique assurances given by Peter to David, in 1990 and on numerous subsequent occasions, were sufficient to found a proprietary estoppel. In his discussion of the authorities Lloyd LJ referred to J T Development Ltd v Quinn [1991] 2 EGLR 257, 261 (Ralph Gibson LJ) and Uglow v Uglow [2004] WTLR 1183, para 9 (Mummery LJ) as supporting the application to proprietary estoppel of the observations (in relation to estoppel by representation generally) of Lord Denning MR in Sidney Bolsom Investment Trust Ltd v E Karmios & Co (London) Ltd [1956] 1 QB 529, 540-541 (a case about statutory notices relating to business tenancies):

“But in order to work as an estoppel, the representation must be clear and unequivocal, it must be intended to be acted on, and in fact acted on. And when I say it must be ‘intended to be acted upon,’ I would add that a man must be taken to intend what a reasonable person would understand him to intend. In short, the representation must be made in such circumstances as to convey an invitation to act on it.”

51.  It was ultimately on this ground, as I read Lloyd LJ’s judgment, that he decided (with the concurrence of Ward and Rimer LJJ) that the appeal must be allowed. The crux of his decision seems to be in para 72:

“In the present case, the judge did not in terms consider whether the implicit statement which he found to have been made in 1990, to the effect that Peter intended David to succeed to the farm on his death, was intended to be relied on. Since he was unable to find that the implicit statement was made for the purpose of persuading David not to pursue some other opportunity, it seems to me that there was no material on the basis of which the judge could have found, if he had asked the question, that the implicit statement was intended to be relied on or, in other words, was intended as a promise rather than, at most, a statement of present intention, which might well be maintained in fact (as it was, although not in the event carried through), but as to which there was no commitment.”

This reasoning was reiterated, with a warning that diluting the ingredients of proprietary estoppel would be a dangerous precedent, at the very end of the judgment (para 75).

The main issue before the House