Analysis
Stanley Shirt, the claimant (C), owned the freehold of the family farm (Syda) and an agricultural tenancy (Rufford), which he lost in 2007 as a result of failure to pay the rent. He had three sons and a daughter. In 1974 C entered into a farming partnership with his wife, Marie (M), who died in 2004, and his son, Alan (A). Both farms were recorded as partnership assets. In 2006 C fell out with A and thereafter they carried on two separate businesses. A lived in a house on Rufford until the tenancy came to an end, when he moved into a caravan on Syda. C brought a claim for possession against A which was effectively withdrawn shortly before the hearing, since in equity A had the right to be in occupation, but a claim for ouster was continued on the basis that A’s occupation interfered with C’s use of Syda and allegations were made against A in relation to allegedly stolen animals and other wrongdoing. A pleaded estoppel against C’s claim, relying on statements that ‘the farm’ would be ‘coming to him’ made from 1974 and, in particular, that in 1986 when the partnership was encountering serious financial difficulties, C told A that ‘the farm is yours if you want to work for it’. He also claimed damages for the loss of succession rights to Rufford as a result of C’s failure to pay the rent.
C’s claim to Syda was upheld. The judge was not persuaded on the balance of probabilities that the promises upon which A relied were made in sufficiently clear terms to give rise either to proprietary estoppel or a constructive trust. C and M considered that when talking of ‘the farm’ they were referring to the partnership business rather than the land on which it was carried out and A had the same understanding. Despite all the critical endeavours undertaken in and following 1986 to save the partnership business by negotiating with the bank, it was not unconscionable to deny A the proprietary interest he sought since the partners were eventually able to persuade their bankers to accept a substantially smaller sum in full and final settlement, saving them over £200,000, which was distributed via the partnership capital accounts, thus reflecting a proper reward. The judge considered the tenancy of Rufford was a partnership asset and C had acted in breach of his duty as a partner to preserve partnership assets but the loss of which A complained was his loss of the ability to obtain succession rights attached to that tenancy and those rights were not partnership assets but belonged to A on the death of his father. No award was made as to damages or costs, as while A’s argument on estoppel had not succeeded the ouster claim and dishonest misappropriation claim made by C had also failed and C’s conduct had been unacceptable with regard to his evidence on some issues.
A appealed, stating that there was no evidence to support the judge’s findings, seeking to put in new evidence in the form of wills that were made by C in 2004 and 2005, leaving the farm to A, and claiming C was an unreliable witness and had admitted to making representations such as A had alleged. He complained about amplifications the judge made to his oral reserve judgement, two months after the hearing concluded and after getting the transcript of that judgment, and disputed the findings in relation to Rufford and the order as to costs.
Held
Appeal dismissed subject to qualification about the loss of the tenancy of Rufford Farm [52, 53, 70, 71 and 74].
Even if the new evidence of the draft wills was allowed, this did not advance A’s case as they did not purport to leave him Syda outright or for his life and were not inconsistent with the judge’s view that the most that was promised was that A would have the farming business for life [23]. The reliability of C as a witness was not crucial to the rejection of A’s case. That a witness could be unreliable in certain matters did not mean he was unreliable in other matters, and the judge had rested his decision to reject A’s case that clear and unequivocal representations were made not on C’s evidence but on other matters, including A’s own evidence [25]. There was nothing in C’s evidence or the closing words of his representative to suggest that S admitted, let alone clearly admitted, that he made any representations such as were alleged by A [27, 59 and 60].
A judge who gave oral judgment immediately after a hearing could make amendments to the transcript after he received it, not only to the punctuation and syntax but also to add to it by way of amplifying and clarifying findings, and indeed amplifying and clarifying the reasoning recorded in his oral judgment. It followed that, if a judge chose to give oral judgment some time after the hearing, he should have the similar opportunity to amplify and improve the judgment when he received it back in transcript form. However if a judge decided to make points that were additional or contradictory to what was in the original judgment then it should be made clear on the face of the transcript what had been done. If such significant amplifications and clarifications were made to a judgment not given immediately after the hearing, but some time after the hearing, it was almost inevitable that at least one of the parties would wonder if the judge really had concentrated on the issues when he gave his reserve judgment orally. In such a case, it was inevitable that, if there was an appeal, the appellate court would look at the reasoning in the judgment particularly carefully. The clarifications and amplifications that the judge made in this case had not caused any injustice. No new or contradictory material was added and no new points made. However, because of the concern expressed on behalf of A, references to the High Court judgment were limited to the judgment in its original form, and not in its amplified form [40].
The judge should have held that the loss of the contingent opportunity to succeed to Rufford was a loss of something that A held, effectively, on trust for the partnership since, while only A could succeed to the tenancy of Rufford and it was therefore his right to apply, the original tenancy was a partnership asset. If the tenancy had continued, A could have applied to succeed to the tenancy because he was working on the land. It was only because there was a partnership that he could have made the application. The order the judge made was not affected because nothing in the order reflected this aspect of his decision, but it might affect the basis on which the partnership accounts were drawn up. They should be drawn up so as to take into account the fact that through C’s wrongful inaction, the partnership lost the benefit of A’s right, contingent on his father’s death, to apply to succeed to the tenancy [45].
The judge’s view that the correct order was ‘no order as to costs’ was eminently sensible. Although his judgment was reversed in respect of the way in which the loss of the tenancy of Rufford arose, and whether the loss of the opportunity to succeed to it should be dealt with in the partnership accounts, that did not begin to justify any amendment to the order on costs that he made. He took an overall view, and it should not be sensitive to a small change [51].
<![CDATA[ JUDGMENT Master of the Rolls: Introductory [1] This is an appeal brought by Alan Shirt, whom I shall call Alan, against an order reflecting part of a judgment given by HHJ Purle QC, sitting as a Deputy High Court Judge in the Chancery Division of the Birmingham District Registry on 17 December 2010, the …Continue reading "Shirt v Shirt [2012] EWCA Civ 1029"