Bourne v Lloyds Tsb Bank Plc & Anor [2015] EWCA Civ 881

Case No A3/2014/3027[2015] EWCA Civ 881
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Venue Chancery Division, Bristol District Registry
(HIS HONOUR JUDGE MCCAHILL QC)
Venue Royal Courts of JusticeDate Wednesday, 10 June 2015
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE McCOMBE
MS ALLAYNE BOURNE
First Respondent/Claimant
-v-
LLOYDS TSB BANK PLC
Second Respondent/First Defendant
MR JEREMY ALFRED BLACKER
Applicant/Second Defendant
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The Applicant appeared in person
The First and Second Respondents did not attend and were not represented
J U D G M E N T
Between
BourneAppellantLloyds Tsb Bank Plc & AnorRespondent

LORD JUSTICE McCOMBE:

[1]This is a renewed application for permission to appeal following refusal of such an application on the papers by Lewison LJ on 17 December 2014. The applicant, Mr Jeremy Blacker, seeks permission to appeal against the order of 15 August 2014, sealed on 2 September 2014, made by His Honour Judge McCahill QC sitting as a judge of the Chancery Division of the High Court at Bristol. Mr Blacker has attended this morning and has expanded upon his grounds of appeal and given me more background information about the case which he wanted to bring before me, without necessarily always keeping to the points that were raised by his grounds. Nonetheless, that said, his submissions have been very courteously made.[2]By his order, the judge appointed (or perhaps reappointed) an emanation of Lloyds Bank as sole executor of Mr Blacker's father, the deceased Lawrence Blacker, and most relevantly directed that the properties known as 15A Chilcompton Road, Midsomer Norton and 48 Chilcompton Road should be sold. The order contained other declarations and provisions to which it is not necessary to refer.[3]The short background of the case is this. Mr Blacker, the applicant, and Ms Bourne, the second respondent, are brother and sister. They are the only children of the late Lawrence Blacker, who died on 20 September 2009. On 10 July 2007, shortly after his wife's death, the deceased executed a will in which he left the entirety of his residuary estate to his son and daughter in equal shares and appointed his son and daughter as executors. The primary dispute in the action that came before Judge McCahill was as to the composition of the deceased's estate at the time of his death and whether or not the two properties that I have mentioned comprised part of his assets.[4]It seems that the relationship between Mr Blacker and Ms Bourne were difficult, even by the time of the father's death. For one reason or another, Ms Bourne renounced her executorship on 4 November 2009 and Mr Blacker has told me he actually wanted to renounce his own executorship. However, that did not happen, and pursuant to a power of attorney granted to Lloyds Bank on 22 December 2009 to represent him in the administration of the estate, the Bank applied to and obtained an attorney grant of representation on 27 September 2010, in standard form, stating it was for the use and benefit of Mr Blacker. Mr Blacker has explained to me some of the circumstances in which he contacted Lloyds Bank for assistance in relation to the estate following his father's death.[5]The legal title to the two properties that I have mentioned was undoubtedly in the deceased's name at the date of his death. Between 1988 and 1993, a material fact in the proceedings below was that Mr Blacker had carried out renovation works at number 48 and I think also to the adjoining property at number 47. On completion, Mr Blacker had moved into number 47 with his then partner and children. Ms Bourne did not move into number 48, as it seems had once been envisaged in the family, as she had alternative accommodation. Number 48 in the circumstances had been rented out since 1993 and the judge found that, at the direction of the deceased (and his motives for it were much in issue), Mr Blacker received the rental income from that property.[6]The estate also had a beneficial share in various properties in and around the town of Midsomer Norton, which were properties that had been held by the deceased in common ownership with his sister, Rosa Jones. The estate was entitled to the deceased's share in those properties.[7]A dispute arose between Mr Blacker and Ms Bourne as to the administration of the estate and in particular as to the disposal of the estate properties. Eventually, on 13 August 2013, Ms Bourne commenced proceedings in the Bristol District Registry of the High Court seeking to replace Mr Blacker (as the party for whom probate had been obtained as an attorney by the Bank) by the Bank as sole executor of the estate, not merely as attorney personal representative, and seeking directions for the sale of the property. In March 2014, Mr Blacker himself issued separate proceedings in the High Court in London against the Bank, Ms Bourne and three of his cousins, by which he challenged the due administration of the estate by the Bank and the contribution to such alleged maladministration by the other defendants. The London proceedings were stayed pending determination of the Bristol proceedings and are not before me. They were not before Judge McCahill.[8]The judge summarised Mr Blacker's claims as they were by the time of trial with regard to the properties at paragraphs 45 to 47 of his judgment in the following terms:
"45. In summary, his [Mr Blacker's] position at trial, in relation to the agricultural unit at 15A, is that there was an oral inter vivos gift of the agricultural unit, title to which was perfected with the grant of probate to his agent following the death of the deceased, under the principle set out in Strong v Bird (1874) LR 18 Eq 315. 46. The second defendant's [Mr Blacker's] principal case, in relation to number 48, is that the deceased did execute a deed of gift of number 48 of the entirety of it to him absolutely but that that deed has been lost or mislaid. 47. Alternatively, if there was no deed of gift in relation to 48, there had been an oral inter vivos gift of 48, to which title has been perfected by the grant of probate to his agent – again, under the principle of Strong v Bird."
[9]As I have said, the Bristol proceedings came before Judge McCahill at a three-day hearing between 12 and 14 August last year. The judge found in favour of Ms Bourne, and in doing so made certain findings which Mr Blacker now seeks to challenge on appeal. The first is in relation to the executorship. The judge considered the rival claims of the parties as to who should be personal representative of the deceased's estate. He concluded that it was more advantageous to the estate to allow Lloyds to continue the administration in its own right, as it had been in the saddle for a considerable time. He found no significant reasons to remove them and to replace them with a new professional personal representative which would entail, in his judgment, further unnecessary expense for the estate.[10]As for number 15A, the judge concluded that the whole of that property, agricultural and residential, was owned by the deceased and formed part of his estate. As to 48 he found the same and he ordered both properties to be sold.[11]So far as the other properties that were co-owned by the deceased and his sister Rosa Jones, in reaching his conclusions on the things that mattered in those proceedings, the judge found it convenient to deal with the history of those jointly-owned properties, although he made no order affecting their destination or fate. He did so to set out family background and set out the circumstances in paragraphs 126 and following of his judgment. However, no part of his order made any declaration or direction as to how any such property was to be dealt with. Nonetheless (and I shall come to it), paragraph 4 of the grounds of appeal seem to challenge the learned judge's recital of the background to these properties, both legal and factual, and Mr Blacker has expanded upon those written submissions in argument this morning.[12]In grounds of appeal in addition to the disagreement about the properties held by the deceased with his sister and/or his family to which I have just referred, Mr Blacker wishes to contest the judge's appointment of the Bank as personal representative and his findings in relation to number 48, not, apparently, as to number 15.[13]The test that it is necessary for me to apply, as I reminded Mr Blacker during argument, is it is for him to show that his proposed appeal has a real, as opposed to a fanciful, prospect of success, or that there is some other compelling reason why permission to appeal should be granted on any of these grounds.[14]My conclusions on those matters are as follows. As I have said, the first ground challenges the judge's decision to replace Mr Blacker as nominal personal representative with Lloyds Bank as sole personal representative in its own right in circumstances in which Lloyds Bank was also a defendant in the London proceedings. The judge carried out a balancing of the relevant factors, and found, as I have said, it would be in the interests of economy and efficiency to appoint the Bank as executor, given its involvement in the administration of the estate since 2010. The judge found that Lloyds had engaged professionally with Mr Blacker in the London proceedings and had acted properly in its preparation of the interim accounts. It was concluded overall that there was no substance to Mr Blacker's complaint and that his intention, as the judge found having seen all the witnesses, was merely to delay the proceedings in the due administration of the estate. I refer in that respect to paragraphs 144-145 and 169-184 of the judge's judgment.[15]Mr Blacker does not and did not oppose his replacement as executor as such, but he maintains on the appeal that an independent third party should have been appointed in lieu of the Bank, because its involvement in the London proceedings gave rise to a conflict of interest which would prejudice Mr Blacker as beneficiary of the estate.[16]For my part, I am not persuaded there is merit in this submission. The judge concluded that there was no conflict of interest based on a thorough assessment of the relevant facts and the conduct of the parties throughout the administration of the proceedings, and as such this was a conclusion, having heard the evidence of the witnesses, that he was entitled to reach.[17]In refusing permission on paper, Lewison LJ said this:
"Since probate was in fact granted to Lloyds I question whether it was necessary to appoint them as replacement executor. But assuming that it was, the judge carefully considered the pros and cons of their appointment. He also considered, and rejected on the facts, the allegation that there was some conflict of interest. These were decisions that he was entitled to reach. He did not apply the wrong legal test."
With those remarks I agree.[18]Turning to ground 2, this concerns whether the deceased made an inter vivos gift of number 48 to Mr Blacker before he executed his will in 2007. The principal case below was that the deceased had executed a deed of gift of number 48 in favour of Mr Blacker which was subsequently lost or mislaid; and, as I have said, there was the alternative submission that there had been a gift perfected by the grant of probate to the Bank as Mr Blacker's agent under the principle in Strong v Bird (for reference see above).[19]The judge found that number 48 was at the date of the death of the deceased owned solely and absolutely by the deceased and that Mr Blacker had never held any interest in the property. He held that all the contemporary documentation appeared to militate against the existence of an inter vivos gift of number 48, such that the only evidence in favour of its existence was the oral evidence of Mr Blacker himself. The judge saw the witnesses, including Mr Blacker, and did not find him to be a credible witness. Moreover, in drawing inferences from the inter vivos dealings by the deceased with his assets the judge reflected that he (the deceased) was "canny and shrewd", careful with his money, familiar with solicitors and the importance of documenting transactions and above all "scrupulously fair in his dealings with his children" (see paragraphs 91 and 102-104 of the judgment).[20]Counsel for Mr Blacker, who was represented below as he no longer is, argued that the decision of the deceased that Mr Blacker should received all the rental income from number 48 was consistent with Mr Blacker's contention that the deceased had given number 48 to Mr Blacker in that it was a direction that income should go to the owner. The judge rejected that submission and considered that the redirection of the rent in fact reflected the exercise of the dominion of an owner over the property (see paragraph 95). In his interpretation of the rental arrangement, the judge took as a starting point the original intention of the deceased that number 47 should be earmarked for Mr Blacker and number 48 for Ms Bourne. It was as a result of the building works carried out by Mr Blacker that the deceased decided and explained to Ms Bourne, as the judge found, that he would instead allow Mr Blacker to keep the rental income from number 48. The arrangement, said the judge, was a mere permission and one which had subsisted only during the lifetime of the deceased (see paragraph 210 of the judgment).[21]The judge found this interpretation and the attendant finding that there was no gift of the property of itself to be more consistent with the principle of strict equality maintained by the deceased towards his children. Further, the judge was persuaded that if the deceased had given the property to Mr Blacker he would have told Ms Bourne about the arrangement and indeed would have made arrangements with solicitors as he had in relation to other matters.[22]On appeal in the written grounds, Mr Blacker argues that he received the rent monies in respect of the property which were far in excess of the monies spent on the renovation of them. He maintains, therefore, he did receive the rent in the capacity of owner rather than as caretaker. In my judgment, the judge's findings in relation to this ground of appeal were based upon his review of the evidence given by both parties, the documentary evidence such as it was in relation to the family history, and was based to a substantial degree on his assessment of oral evidence. That is the type of finding which an appellate court would be highly unlikely to interfere with. The judge preferred Ms Bourne's evidence and explained his reasons for doing so. He, sadly for Mr Blacker, found Mr Blacker to be an incredible witness. That is a function that trial judges have to exercise and will very rarely be reversed by an appellate court. The judge carried out a detailed evaluation of the oral and documentary evidence in drawing his conclusions as to the intentions of the deceased, and overall, having looked at those carefully, I see no error of fact or law in the conclusions. Accordingly, in my judgment, this affords no arguable ground of appeal either and I agree with Lewison LJ's view. Ownership of the properties jointly owned with Rosa Jones or her family[23]As I have already said, those are matters in respect of which the judge made no order. Appeals lie to this court against factual findings giving rise to consequential orders, ie interests have been affected by them and the court has ordered something to happen. Nothing was said in any of the orders made by the judge after this trial relating to those properties.[24]The judge sympathised with Mr Blacker in so far as the latter felt excluded and aggrieved by the decision not to appoint him as a fourth trustee. But he emphasised, correctly, that this decision made no difference to the actual ownership of the property. Thus it is not entirely clear what substance any appeal against that finding could have. Lewison LJ said this about that point:
"The only way in which land can be held by more than one person is by means of a legal joint tenancy. The judge said that as regards the beneficial interest it was held as tenants in common in equity. The grounds of appeal under this head are legally incoherent."
[25]That is a stark way of putting it, but in my judgment it was correct. There is nothing of consequence in the statement of history or the analysis of the legal holding which affects the grounds of appeal that actually matter in this case. Accordingly, there could be no purpose in granting permission to appeal on that ground.[26]For those reasons, the three grounds of appeal that are advanced seem to me to have no real prospects of success as is required, and accordingly the renewed application is refused.