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11 April 2019
Promises are often made and later broken. While there is little that anyone can do about this, in certain circumstances – specifically in relation to land or property – it may be possible to bring a claim to enforce a broken promise, known as a proprietary estoppel claim. As established by Thorner v Major (2009), in order to bring a successful proprietary estoppel claim, a claimant must establish that:
If these elements are established, the court will consider whether fairness demands a remedy and, if so, what that remedy should be.
Proprietary estoppel claims often arise in a farming and/or family context and 2018 was a bumper year for such claims. No fewer than 12 claims relying on the equitable doctrine came before the High Court over the same number of months (seven of which related to farms or farming businesses). However, this spike in cases did not translate into a high success rate, with only three claimants managing to satisfy the court in relation to the three elements required to establish an estoppel.
So, what reminders and lessons can be taken from recent cases?
Nearly a decade after Thorner, Habberfield v Habberfield (2018) confirmed that to establish a proprietary estoppel, the relevant assurance must simply be "clear enough" in the context. In this case, the claimant (Lucy Habberfield) had worked on the family farm in Somerset from the 1980s until her father's death in 2014. When he left his entire estate to her mother, Habberfield brought a claim on the basis that her parents had assured her on numerous occasions that she would take over the farm within their lifetime. Although the various representations were in themselves ambiguous, the judge found that, taken together and in context, they were sufficiently clear to convey the idea that there would be a transfer of freehold property.
The claimant (Raymond Allen James) in James v James (2018) was less fortunate. He had worked on his father's farm in Dorset for all of his adult life and was a partner in the business until a falling out saw the partnership dissolved and the claimant disinherited. Despite what he had understood, James was unable to present sufficiently clear and reliable evidence of an assurance that he would inherit the farm, as the judge differentiated between a "statement of current intentions as to future conduct" and "a promise of that conduct" (emphasising that "saying that it is your intention to do a thing is not at all the same as promising to do it"). This is a subtle but important distinction, which may prove to be a stumbling block in many cases, particularly those which centre around representations as to the deceased's testamentary intentions. A similar approach was adopted in Shaw v Shaw (2018) which concerned a claim brought by Clive Shaw, the son of a dairy farmer. It was held that statements by Shaw's parents about the provision made in their wills were insufficient to give rise to an estoppel.
Although Thorner was regarded by many as relaxing the criteria for representations (requiring only that they be "clear enough"), it is nevertheless important to think carefully about whether a representation has actually been made and identify the difference between a statement of current intention and a promise, where relevant.
Proprietary estoppel claims aim to achieve fairness in light of all of the circumstances, so the court has great discretion. As such, the outcome of a proprietary estoppel claim will be heavily shaped by the context. James is a good reminder of this, as the judge considered the personalities of those involved when finding that statements made by the father (that his son would be "farming [the father's land] one day") did not amount to assurances, noting that the father was generally reluctant to make any commitments, and that James was overly keen to inherit his father's property. Consideration will always need to be given to all of the facts of a case, including the characters involved and the dynamics between them.
Claimants must satisfy the court in relation to all elements for a claim to have any prospect of success. The majority of claims in 2018 fell at one of the hurdles at least. For example, in Smyth-Tyrrell v Bowden (2018), where the tenants' attempt to establish an interest in land in Cornwall which they had rented for many years on the mistaken belief that they could eventually acquire the freehold failed, as there was simply no promise or assurance that they would be entitled to the land. Similarly, in Dobson v Griffey (2018), the claimant (Jacqueline Dobson) asserted an interest in her former partner's farm after leaving her job to work there full time and carrying out significant renovation work. However, the judge found that there was no estoppel in circumstances where the "expectation did not spring from any assurance or other conduct of the defendant", even where the defendant (Matthew Griffey) had been aware of Dobson's expectation. In that case, the judge also found that there had been no true reliance as Dobson had not undertaken work for the purpose of receiving financial gain, but instead to make a home with Griffey. In Shaw, it was found that the claimant had not acted solely on his parents' assurances or suffered any real detriment. As discussed above, the claimant in James had failed because he could not establish an assurance, but also because he had received good remuneration for his work and could not be said to have suffered any detriment.
A pragmatic view must be taken in relation to each claim; solicitors must give clear advice as to the likely weakness of any action, and potential claimants should not seek to proceed with a claim in circumstances where their expectations have simply not been fulfilled.
The success of a proprietary estoppel claim will regularly turn on the witness evidence and whose version of events is preferred by the judge. This, as well as the fact that a key witness will often have died, leaves much scope for uncertainty, particularly as those on the stand are asked to reliably tell their story, which may have unfolded over many years. Against this background, any documentary evidence which is available may prove determinative. This was the case for at least two of the successful claimants in 2018. In Thompson v Thompson (2018), where the claimant (Gilbert Thompson) left school aged 15 to work full time on his father's farm and continued to do so until he fell out with his mother following his father's death, the judge was able to rely on the documentary evidence obtained from the files of professionals who had advised the family over many years. Likewise, in Habberfield there was independent documentary evidence of an intention that the claimant would one day assume ownership of the relevant property. Conversely, in James, documentary evidence that the deceased had taken advice as to potential inheritance issues proved extremely unhelpful (particularly in the absence of any documentary evidence to support the claimant's position).
When no documentary evidence exists, a measured approach is often preferred when witnesses take the stand (as was the case in Thompson where the judge was highly critical of the defendant's "attempted character assassination" of her son).
Where a claim is successful, the court has broad discretion as to how to compensate the claimant. However, judgments continue to be divided as to whether the court should aim to give effect to the claimant's expectation, or to compensate the detriment suffered.
Unfortunately, the Court of Appeal passed up the opportunity to provide clarity in the farming case of Moore (2018), where the unsuccessful defendant's (Roger Moore) appeal was rejected and the question of the appropriate award was returned to the court of first instance. However, some relevant guidance was given, as it was held that the trial judge had wrongly attempted to give effect to the son's (Stephen Moore) expectation of future entitlement, by replicating what would have happened had no dispute arisen. The court felt that the judge should have instead focused on the minimum provision required to achieve a fair outcome. Speaking more generally, the Court of Appeal appeared to accept that it was not necessary to be limited by the son's expectation, with one of the three judges acknowledging that it was "logically attractive" to compensate the son for the detriment suffered. The court also noted that it was possible to order a solution which accelerated a claimant's entitlement (which could be particularly desirable where relations between the parties have broken down irreparably and a clean break is appropriate). However, in this case, an order was also made to reflect the need for proper provision for the defendants during the remainder of their lifetime.
The judge in James also commented on this issue, favouring the approach of giving effect to the claimant's expectation (instead of compensating the detriment, as one of the judges seemed to favour in Moore). However, he did acknowledge that there may be exceptional cases where such a remedy is disproportionate.
While there is some benefit to the continuing ambiguity, in that a good argument can be made for either approach, the uncertainty also makes it more difficult for potential claimants to decide whether to pursue a claim. Accordingly, it seems likely that the Court of Appeal will have to grapple with the question and give further guidance at some stage. In the meantime, it is expected that judges will continue to take a cautious approach, aiming to make the minimum award needed to do justice.
With two of the three successful claims in 2018 currently subject to appeal, the recent cases demonstrate that proprietary estoppel is as relevant today as it has ever been. While there is certainly room for further development and clarification, particularly in relation to the appropriate award following a successful claim, the three main principles of proprietary estoppel are sufficiently clear and form a good base from which to identify the initial strengths and weakness of a potential claim. However, building a true picture of the merits will require a much deeper analysis, as the likely outcome of any matter will be heavily dependent on context.
As well as providing a potential solution to some, these proprietary estoppel cases should also act as cautionary tales, discouraging empty promises and encouraging thoughtful wealth planning and good communication with loved ones. Failure to take a considered and consistent approach may result in costly litigation and the breakup of family assets and/or relationships, keeping the courts busy in 2019 and beyond.
For more information on this topic please contact Ashleigh Carr at Forsters LLP by telephone (+44 20 7863 8333) or email (firstname.lastname@example.org). The Forsters LLP website can be accessed at www.forsters.co.uk.
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