“Both Geoffrey and Roger took modest drawings and most of the profit went back into the business. Roger, who took the lead in most farming issues, was by all accounts an excellent farmer and Geoffrey was a great support to him.”
“109. Roger was finding it hard to adjust to his reduced role on the Farm. Stephen was noticing problems with his father’s memory and reliability and consequently he gave him fewer tasks to do on the Farm, which Roger could not accept (he commented to Pamela, “I might as well shoot myself”) and which Pamela blames Stephen for, because she would not accept that Roger was less capable than before. Pamela could simply not accept Stephen as head of the business. 110. It also marked a period when Pamela started to keep Roger away from Stephen. This coincided with a growing feeling, on Pamela’s part, that what I have described as the over-arching plan for the Farm’s future was unfair on Julie and benefitted only Stephen, with whom she was becoming increasingly disenchanted.”
“It seems to me that everything points to an over-arching plan under which Stephen would inherit the whole farm and business in due course, and that Stephen was told that this was the case by both Roger and Geoffrey. I think that Pamela is wrong to characterise that as a mere hope – in my view, on the evidence, it was more than that. It was a clear understanding and intention which Stephen was told about on many occasions. It underpinned all the decisions made in relation to the Farm, and in particular the basis on which Geoffrey retired.”
“Geoffrey was also completely clear in his evidence; “Fundamentally, had I ever believed in 2007/8 that Roger was not going to pass his interest in the Farm and the business to Stephen, then I would not have retired on the terms that I did.”
“[Stephen] reasonably understood the promises, and the aforesaid conduct, to mean that [Roger] intended that [Stephen] would in the fullness of time take over [Roger’s] role in the farming enterprise on the Farm, and that upon the later of [Roger’s] or Pamela’s death [Stephen] would inherit [Roger’s] interest in the Farm (including for the avoidance of doubt [Roger’s] interest under the Partnership) and the Farm Assets, to be the fourth generation custodian of the Farm by the Moore family.”
“145. For the reasons I have set out above, I accept that Stephen is right when he says that he was promised the Farm and the business. I take into account Mr Thomas’s submission that the promises were said to have beeen witnessed only by Stephen and Jackie and that only Stephen can remember specific occasions but I do not accept his submission that Stephen’s evidence was highly unconvincing. On the contrary, I thought that Stephen’s evidence was reliable, as was Jackie’s, and I accept it. Mr Thomas said that the evidence was that Roger was a private man who would not have discussed these matters with others, but again there is clear evidence in my view that in fact he did. I also accept that the point was made in Thorner v Major at [3] that intentions were of no importance, and that the question is whether by words and acts it would reasonably have been conveyed to Stephen an assurance that he would inherit. In my judgment, Stephen has established that on the facts. The promises were more than mere assumptions about what might happen. It strikes me as inconceivable that Stephen was not made the promises when it had been plain for years that he was being groomed to take over the farming business as part of Geoffrey and Roger’s over-arching plan. 146. It was suggested by Mr Thomas that at best the statements made were in some sense conditional on Stephen’s behaviour. For example, in Uglow v Uglow[2004] EWCA Civ 987 the Court of Appeal upheld the trial judge’s finding that the promise was really that the claimant would inherit “if all went well with the business relationship” [20(1)]. The fact is that in the present case the Farm business went from strength to strength, and in my judgment the allegations of bad behaviour made against Stephen are so trivial as to be of no effect. 147. I also take into account Cooke v Thomas[2010] EWCA Civ 227 where the trial judge accepted that the words, “you know this is all going to be yours when I am gone anyway” were held not to be a promise but an indication of intention [72]. Again, it seems to me that whether or not words actually used amounted to a mere indication of intention or were a promise is entirely a factual issue, and in the present case I have no hesitation of resolving that issue in Stephen’s favour.”
“I also accept that Stephen relied on the promises by basing his life on the Farm, and by working on the Farm, without any consideration of any alternative employment, because he truly believed, as he had been encouraged to believe, that in the fullness of time he would inherit the Farm and the business. I accept that Stephen is right when he says that he would not have worked as he did for only modest payments nor would he have carried on living in a bungalow, but in my judgment it is entirely idle speculation to ask what Stephen would have done had he not been made those promises. The fact is that promises were made, and in reliance on them he devoted his entire working life to the Farm and the business. As did the Applicant in Suggitt v Suggitt[2012] EWCA Civ 1140 , Stephen positioned his whole life on the basis of the assurances given to him and which were reasonably believed by him. Stephen’s whole-hearted commitment to the Farm and the business precluded him from pursuing any alternatives.” 21. In relation to detriment, the judge summarised Stephen’s oral evidence at [149], and recorded that none of it had been challenged. The judge concluded, at [150], that “Stephen did suffer detriment in reliance on the promises”
“161. As to Mr Thomas’s second point, in my judgment Stephen’s acquisition of Geoffrey’s share is wholly irrelevant to the question of detriment. It is right that in one sense the share derived from his work on the Farm and the over-arching plan or intention that he would inherit the whole of the Farm one day, but it was not given to Stephen in satisfaction of the equity arising from Roger’s promises to Stephen in relation to Roger’s own share of the partnership, and in any event it post-dated the detrimental reliance. Further, the partnership actually paid£500,000 for Geoffrey’s share, some of which was accounted for by a reduction in Stephen’s partnership account, a price which on Geoffrey’s evidence was set because of the promise – as well as the over-arching intention - that Stephen would have Roger’s share.”
“Mr Thomas also says that I should take into account the competing moral and legal claims on Roger’s estate, namely those of Julie and Pamela. This it seems can and should be taken into account not when considering unconscionability, but rather when considering the question of how should the equity be satisfied.”
“(i) Deciding whether an equity has been raised and, if so, how to satisfy it is a retrospective exercise looking backwards from the moment when the promise falls due to be performed and asking whether, in the circumstances which have actually happened, it would be unconscionable for a promise not to be kept either wholly or in part: Thorner v Major[2009] UKHL 18 ;[2009] 1 WLR 776 at [57] and [101]. (ii) The ingredients necessary to raise an equity are (a) an assurance of sufficient clarity (b) reliance by the claimant on that assurance and (c) detriment to the claimant in consequence of his reasonable reliance; Thorner v Major at [29]. (iii) However, no claim based on proprietary estoppel can be divided into watertight compartments. The quality of the relevant assurances may influence the issue of reliance; reliance and detriment are often intertwined, and whether there is a distinct need for a “mutual understanding” may depend on how the other elements are formulated and understood: Gillett v Holt[2001] Ch. 210 at 225; Henry v Henry[2010] UKPC 3 ;[2010] 1 All ER 988 at [37]. (iv) Detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances: Gillett v Holt at 232; Henry v Henry at [38]. (v) There must be a sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. The question is whether (and if so to what extent) it would be unjust or inequitable to allow the person who has given the assurance to go back on it. The essential test is that of unconscionability: Gillett v Holt at 232. (vi) Thus the essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result: Jennings v Rice[2002] EWCA Civ 159 ; [2003] 1 P. & C. R. 8 at [56]. (vii) In deciding how to satisfy any equity the court must weigh the detriment suffered by the claimant in reliance on the defendant’s assurances against any countervailing benefits he enjoyed in consequence of that reliance: Henry v Henry at [51] and [53]. (viii) Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application: Henry v Henry at [65]. In particular there must be a proportionality between the remedy and the detriment which is its purpose to avoid: Jennings v Rice at [28] (citing from earlier cases) and [56]. This does not mean that the court should abandon expectations and seek only to compensate detrimental reliance, but if the expectation is disproportionate to the detriment, the court should satisfy the equity in a more limited way: Jennings v Rice at [50] and [51]. (ix) In deciding how to satisfy the equity the court has to exercise a broad judgmental discretion: Jennings v Rice at [51]. However the discretion is not unfettered. It must be exercised on a principled basis, and does not entail what HH Judge Weekes QC memorably called a “portable palm tree”: Taylor v Dickens [1998] 1 F. L. R. 806 (a decision criticised for other reasons in Gillett v Holt).”
“One line of authority takes the view that the essential aim of the discretion is to give effect to the claimant’s expectation unless it would be disproportionate to do so. The other takes the view that [the] essential aim of the discretion is to ensure that the claimant’s reliance interest is protected, so that she is compensated for such detriment as she has suffered. The two approaches, in their starkest form, are fundamentally different: see Cobbe v Yeoman’s Row Management Limited[2006] EWCA Civ 1139 ;[2006] 1 WLR 2964 at [120] (reversed on a different point[2008] UKHL 55 ;[2008] 1 WLR 1752 ). Much scholarly opinion favours the second approach… Others argue that the outcome will reflect both the expectation and the reliance interest and that it will normally be somewhere between the two… Logically, there is much to be said for the second approach. Since the essence of proprietary estoppel is the combination of expectation and detriment, if either is absent the claim must fail. If, therefore, the detriment can be fairly quantified and a claimant receives full compensation for that detriment, that compensation, ought, in principle, to remove the foundation of the claim… Fortunately, I do not think that we are required to resolve this controversy on this appeal.”
“The need to search for the right principles cannot be avoided. But it is unlikely to be a short or simple search, because (as appears from both the English and the Australian authorities) proprietary estoppel can apply in a wide variety of factual situations, and any summary formula is likely to prove to be an over-simplification.”
“In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied.”
“Scarman LJ’s reference to the minimum does not require the court to be constitutionally parsimonious, but it does implicitly recognise that the court must also do justice to the defendant.”
“49. It is no coincidence that these statements of principle refer to satisfying the equity (rather than satisfying, or vindicating, the claimant’s expectations). The equity arises not from the claimant’s expectations alone, but from the combination of expectations, detrimental reliance, and the unconscionableness of allowing the benefactor (or the deceased benefactor’s estate) to go back on the assurances. … 50. To recapitulate: there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract. I have already referred to the typical case of a carer who has the expectation of coming into the benefactor’s house, either outright or for life. In such a case the court’s natural response it to fulfil the claimant’s expectations. But if the claimant’s expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the court can and should recognise that the claimant’s equity should be satisfied in another (and generally more limited) way. 51. But that does not mean that the court should in such a case abandon expectations completely, and look to the detriment suffered by the claimant as defining the appropriate measure of relief. Indeed in many cases the detriment may be even more difficult to quantify, in financial terms, than the claimant’s expectations...Moreover the claimant may not be motivated solely by reliance on the benefactor’s assurances, and may receive some countervailing benefits (such as free bed and board). In such circumstances the court has to exercise a wide judgmental discretion. 52. It would be unwise to attempt any comprehensive enumeration of the factors relevant to the exercise of the court’s discretion, or to suggest any hierarchy of factors. In my view they include, but are not limited to… misconduct of the claimant… or particularly oppressive conduct on the part of the defendant… To these can safely be added the court’s recognition that it cannot compel people who have fallen out to live peaceably together, so that there may be a need for a clean break; alterations in the benefactor’s assets and circumstances, especially where the benefactor’s assurances have been given, and the claimant’s detriment has been suffered, over a long period of years; the likely effect of taxation; and (to a limited degree) the other claims (legal or moral) on the benefactor or his or her estate. No doubt there are many other factors which it may be right for the court to take into account in particular factual situations.”
“… the equitable doctrine should be as flexible as the circumstances allow in order to give effect to the equity; the aim is to look at all the circumstances to decide in what way the equity can be satisfied; the approach is a cautious one, in order to achieve the minimum equity required to do justice; there is a wide range of possible relief; and it [is] not necessarily a question of providing compensation for either the detriment or the reliance or the expectation. It may be necessary to exercise a wide judgmental discretion. Proportionality lies at the heart of the doctrine of promissory estoppel; the court must take into account whether in all the circumstances the promise and the benefit is proportionate to the detriment and the remedy must also be proportionate.”
“175. Miss Shea submitted that I should exercise my discretion, when deciding how the equity should be satisfied, by mirroring as closely as possible the arrangements which would have obtained had the dispute not arisen. I agree. 176. The effect of this is that both Pamela and Roger should continue to receive what they were intending and expecting to receive, up until their deaths. Stephen will take over the farming for all practical purposes; but the assets of the enterprise which will now be in his name alone will be fixed with the obligation to pay the agreed sums out to support Roger and Pamela going forwards. 177. Roger and Pamela should remain at Manor Farmhouse for as long as that meets their needs, with Stephen responsible for maintaining and repairing it, with the potential to move to Ashburton (on the same terms namely a licence for their lives jointly or severally) should Roger no longer require to reside at Manor Farmhouse and subject to Geoffrey’s agreement. Roger and Pamela would continue to receive a weekly sum of£200 . Stephen should be required to pay from Partnership funds for all reasonable health and care costs for Roger (and Pamela should the need arise), and Stephen has indicated that he is willing to do this. Subject to that, Roger’s partnership share should be transferred to Stephen. Pamela is entitled to dispose of all the non-farm assets she and Roger have accumulated as she wishes. 178. This is, as Miss Shea observes, a just and equitable outcome. It honours what Roger always intended and reflects what would have transpired had the dispute not arisen. It means that the farm can continue to be farmed by the next generation of the Moore family, as in my judgment Roger always intended. It is also in my judgment proportionate to the detriment.”
“The adverb “plainly” does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”
“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it satisfied that his decision cannot reasonably be explained or justified.”
“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them… The reasons for this approach are many. They include: (i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. (ii) The trial is not a dress rehearsal. It is the first and last night of the show. (iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. (iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. (v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). (vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
“the largest amount of cash (or the equivalent net value of property appropriated in lieu thereof in accordance with any powers hereinafter contained) which can be given on the trusts of this Clause without any Inheritance Tax becoming payable in respect of the transfer of value which I am deemed to make immediately before my death.”
“I declare (but without imposing any binding trust or legal obligation) that it is my wish that my Trustees shall regard my said Wife during her lifetime as the beneficiary having the greatest claim on the capital and income of the Discretionary Fund.”
“1. Notwithstanding the very substantial (and mostly IHT free) value of the farm compared to their other assets (of which they provided a list) it is their firm intention that Stephen (now a Partner in the business) should have the farm and House although already they know that Julie is not happy with that potential inequality and will disapprove of it. … 3. Whilst [Pamela] would not expect to go on living in Manor Farm House (Stephen would take it over) she would want somewhere to live (the cottage?) hence account of that might need to be taken in [Roger’s] Will (on reflection it could be covered by the residue and/or NRBDT [i.e. Nil Rate Band Discretionary Trust]). 4. By reference to the combine[d] “non- farm” assets, the cottage to be left to Julie/Andy in any event, there would be approx 300K gross and it was agreed that pro rata Julie should have 100K, each of her children 75K and 50K to Stephen’s Daughters aged 2 and 4… 5. Then I went through my usual NRBDT routine and I was satisfied that they understood the principle for trying to maximise use of both NRB whilst retaining flexibility of decision after [the] first had died. Hence that would be included in both Wills.”
“If however she survives [Roger] then she will have control of his interest in the farm about which she will have two years within which to make decisions (assuming it is 100% APR then it can go into the NRB. However, thereby she will be able to decide what to do about her occupation of the house (again subject to Geoffrey’s decisions as to the future).”
“In my judgment, Mr Lush’s evidence that Roger’s central aim was to provide for Pamela was not what he believed at the time; whilst Roger clearly must have intended that Pamela would be provided for, the central aim of the wills was to ensure the continuation of the business by Stephen.”
“It is also clear that the primary intention of Roger and Pamela in January 2007 as recorded by Mr Lush was that Stephen should have the Farm. There were no reservations about this, whether on account of Stephen’s behaviour or otherwise… In so far as Pamela was to be protected, it was by the use of the nil rate band discretionary trust, and I accept Mr Lush’s evidence that it was intended that this trust was sufficiently flexible to do that.”
“particularly accepted that this had been done in great haste due to their imminent departure on holiday and that therefore some fairly early review would be desirable both for better definition and according to whatever Geoffrey decides to do with his business/land interest when he retires. (September?).”
“100. …What is completely clear is that Roger’s intention was that “the property was to pass down the various generations, and he considered that should be done regardless of comparative values”
“In the circumstances, I entirely reject the suggestion that there was any real change in Stephen’s behaviour following Geoffrey’s retirement.”
“Even after what was according to Pamela by 2011 a period of bitter unhappiness with Stephen’s behaviour (none of which other than the purchase of the Nissan was relied on by Mr Thomas) the intention was still that Stephen would inherit.”
“You state, in your letter of 16 April, that it is Roger’s intention to transfer his interest in the Partnership to Julie and her husband, Andrew. It is entirely a matter for Roger if he wishes to do that. Stephen cannot stop Roger assigning the whole or part of his interests in the Partnership to Julie and Andrew or otherwise. If such assignment proceeds, please let me know.”
“Stephen accepts that if his Father now wishes to divest himself of his interest in the business, he is free to do that by way of an assignment of his interest to Stephen’s sister, Julie, and his brother-in-law, Andrew. There is nothing that Stephen can do to stop that.”
“We did, however, say that plainly we could not object to Roger assigning his interest in the Partnership to Andrew (jointly to Julie, Stephen’s sister or otherwise), if that is what Roger wanted to do. I have not heard anything further from you with regard to that.”
“You have persecuted me legally for 12 months and continually tried to control me. This is affecting my family adversely and so this offer is non- negotiable. You have a week to respond. If there is none then I will instruct valuation with view to sell.”
“Each case is different, and turns on its own facts. The question is always whether the promises were made. In my view, there is evidence that they were, and the question in relation to the correspondence is whether it can be elevated into being clear evidence that in fact they were not.”
“It was clear to me that Stephen was deeply fond of his father and distressed at his state of his mind at that time; I have to say that I agree with Miss Shea that it would have been inflammatory of Stephen to assert an equity over Roger’s share in circumstances where Stephen simply wished things to get back to how they were…”
“… as Mr Butler explained, there was no question of Geoffrey actually treating the value of his current account as being his – at all times the driving factor was tax efficiency. Partnership profits were understood and agreed to be retained within the business subject to agreed levels of drawings…”
“At that stage it had never been contemplated by anyone that the Partnership would not endure until Roger’s death. The concept of dissolution of the Partnership was unknown to Roger and Stephen, and if anyone had asked them in 2008 whether it would have been permitted under the Partnership for one partner to seek to terminate the Partnership prior to death, the response would have been negative. I agree with Ms Shea that the basis of the planning in 2008 is compelling support for the implication of an agreement that the Partnership was to be for the joint lives of Roger and Stephen, and that this was borne out by the evidence at trial…”