Ludlam v Courtman & Anor [2011] EWHC 742 (Ch)

[2011] EWHC 742 (Ch)Case No 4156 of 2006
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/03/2011
Before
MR JUSTICE BRIGGS
Between
CAROLINE LESLEY LUDLAMApplicant(1)TYRONE COURTMANRespondents(TRUSTEE IN BANKRUPTCY OFRespondentTHE ESTATE OF JOHN MICHAEL LUDLAM)Respondent(2) EVELYN EXLEYRespondent
Mrs Caroline Ludlam appeared in person for in person for The Respondents did not attend and were not representedHearing Hearing date: 24 th March 2011
Judgment
[1]This is an application by Caroline Lesley Ludlam (“Mrs Ludlam”) in substance for a declaration that she is the beneficial owner of a plot of land (“the Woodland”) at Somersal Herbert. Mrs Ludlam also seeks an injunction to restrain a sale of the Woodland by the First Respondent (“the Trustee”) who, in succession to the Second Respondent Evelyn Exley, is the trustee in bankruptcy of her husband John Michael Ludlam (“Mr Ludlam”).[2]Everything about this application is unorthodox. It has been made by way of Application Notice in existing proceedings by the Second Respondent against Mr and Mrs Ludlam originally issued in 2006 which, (although I do not have the court file), appear not to have been about the Woodland at all, but rather about the Ludlams’ adjacent matrimonial home, known as Montgomery House, Somersal. It has been made against Ms Exley rather than the Trustee, and Mrs Ludlam who has appeared as a litigant in person is the subject of a Civil Restraint Order made in August 2009. At the time that this application was heard during the morning of 24th March 2011, Mrs Ludlam had not obtained permission to make it pursuant to the terms of the Civil Restraint Order. Mr Ludlam had sought permission under a similar Civil Restraint Order made against him to bring an application seeking the same relief. Permission was refused by Morgan J on 20th January 2011 on the ground that Mr Ludlam did not assert that he was the owner of an interest in the Woodland. Nonetheless, in his reasons, Morgan J indicated that he would be prepared to consent to the making of an application of this kind by Mrs Ludlam. It appears that she thought that this part of Morgan J’s reasoning for refusing permission to her husband amounted to the grant of consent to her. In the light of that understandable mistake, I permitted her to pursue her application, rather than to have to return on a later date, on the basis that it appeared likely that Morgan J would give retrospective permission once available to do so (which he duly did) later on 24th March 2011.[3]The Respondents have by a letter dated 22nd March 2011 invited the court to deal with the substance of Mrs Ludlam’s claim, taking no point as to her having failed to join the Trustee, but seeking his joinder, and being content that their case be received by the court in the form of that letter and its enclosures, in an understandable desire to save costs in the light of their view that the costs of defending the application are likely to exceed the value of the Woodland.[4]The evidence before the court has therefore consisted of a short witness statement by Mr Ludlam, with exhibits, and the letter from the First Respondent with its enclosures. In addition, and pursuant to inquiries of Mrs Ludlam which I made during the hearing, a small number of further documents were then produced by her. I did not consider it necessary to adjourn the proceedings to give the Respondents an opportunity to respond to the contents of those additional documents.

THE FACTS

[5]Mr Ludlam purchased Montgomery House (then known as Cottage Farm) a property of about 5.3 acres, in 1984. In 1985 he and Mrs Ludlam (who were then engaged to be married) set about acquiring additional adjacent and nearby land. Plots were taken in their joint names, in Mr Ludlam’s name and in Mrs Ludlam’s name. The Woodland, which consisted of some 3.4 acres of boggy land was acquired by Mr Ludlam from Arthur Owen Poyser for £4,000, pursuant to a conveyance dated 29th May 1985 (“the 1985 Conveyance”). The Woodland is sufficiently identified on a plan annexed to the 1985 Conveyance as lying to the north east of Montgomery House, as amounting to 3.466 acres and as connected to the nearest public highway by a right of way running along, but just within, the northern and north western boundary of Montgomery House.[6]At about the same time the Ludlams acquired, in joint names, two fields of approximately 4 acres each lying to the east and south east of Montgomery House, and Mrs Ludlam acquired in her own name a further 21 acres of nearby, but not adjoining, land to the south west.[7]Mr and Mrs Ludlam married in 1986. In December 1987 Mr Ludlam conveyed Montgomery House to himself and Mrs Ludlam as beneficial joint tenants, as appears from clause 1 of a Deed of Gift of Montgomery House dated 15th October 1990, produced to the court. In his witness statement Mr Ludlam says that in 1987 he also gifted half of his equity in the Woodland to his wife, but no documentary evidence of that gift has survived. Mr Ludlam’s statement makes no reference to his transfer of the legal title to Montgomery House to himself and his wife, and describes both Montgomery House and the Woodland as having been the subject of a gift of half of his equity, as if both properties had been dealt with in the same way.[8]Mr Ludlam said that in 1990 and on his bank manager’s and solicitor’s advice, he gave his remaining beneficial half share in both Montgomery House and the Woodland to his wife. The Deed of Gift (to which I have already referred) dated 15th October 1990 by which he gave her his half share in Montgomery House is before the court. It appears that, at the same time, he also gave her his beneficial half share in the two 4 acre fields which they had purchased in 1985 in joint names.[9]In addition to the Deed of gift of Montgomery House to which I have referred, the court has been provided with incomplete copies of three further deeds of gift of even date, all relating to land at Somersal, but in each case purporting to transfer Mr Ludlam’s half beneficial interest in property originally conveyed by one or more third parties to both of them. The first refers to a conveyance of 30th January 1987 from Poyser and Gamble to Mr and Mrs Ludlam. The second refers to a conveyance of 24th February 1980 by Poyser to Mr and Mrs Ludlam. The third refers to a conveyance of 1st March 1986 and made by Barnsdale and Lewis to Mr and Mrs Ludlam. It is not possible from the documents before the court to identify the land to which each of those deeds of gift relates, but none of them purports to relate to the 1985 Conveyance of the Woodland.[10]The solicitors dealing with the deeds of gift were Messrs Goodwin, Cockerton & Colhoun (“GC&C”). Some fragments of correspondence between GC&C and Mr Ludlam survived from 1990 and 1991, but they afford no documentary support for a conclusion that the Woodland was itself made the subject of a deed of gift in Mrs Ludlam’s favour.[11]There is however a letter of 20th January 1992 from GC&C to Mr Ludlam in which Mr Kay of that firm states:
“… I have four sets of title deeds in the name of Caroline for four acres approximately, 21 acres, 4.28 acres approximately and 3.466 acres. I presume that this covers all the land holdings at Somersal Herbert including Montgomery House.”
The letter was a reply to a fax from Mr Ludlam which has not survived, so its correct interpretation must to an extent be a matter of conjecture. Nonetheless it does appear to suggest, by reference to the 3.466 acres, that GC&C did in 1992 hold title deeds showing Mrs Ludlam as the legal or at least beneficial owner of the Woodland.[12]A letter from GC&C to Mr Ludlam dated 26th October 1998 suggests the same. It states: “Just to confirm that I have four separate sets of Title Deeds in the name of Caroline to the various fields and paddocks which are owned in addition to the 5.344 acres forming the Montgomery House title which is mortgaged to the Cheltenham and Gloucester. The total acreage would appear to be 38.08 acres.” 38.08 acres is a precise aggregate of 5.334 (Montgomery House), 4 (separate field), 4.28 (separate field), 21 (land to the south west) and 3.466 (the Woodland).[13]A letter from GC&C to Birmingham Midshires Mortgage Services Ltd dated 10th November 1998 refers to land at Somersal “edged in blue” on a plan which has not survived as being land in respect of which the title deeds could not be located. It seems wholly unlikely that the land edged in blue can have been the Woodland if GC&C held title deeds to the Woodland only two weeks previously.[14]In July 2009 Mrs Ludlam applied for first registration of the Woodland, on the basis that the title deeds had been lost or destroyed. Her signed statement in support suggested that four deeds of gift had been sufficient to transfer all the relevant land adjoining Montgomery House into her sole name, but that the deed of gift in relation to the Woodland had “been mislaid”. The application included copies of the 1985 Conveyance, incomplete copies of the four deeds of gift to which I have referred (none of which related to the Woodland) and copies of the correspondence which I have described.[15]This did not satisfy the Land Registry, and a requisition dated 29th July 2009 requested evidence from GC&C, in the form of a Statutory Declaration, statement of truth or conveyancer’s certificate, confirming the loss of the title deeds. In August 2009 Mr Ludlam wrote to Mr Cockerton and Mr Kay, by then practising as Cockertons in succession to GC&C, enclosing the requisition and asking for assistance. He received the following reply, on 14th October 2009:
“From the information supplied it appears that Waters Wood (the Woodland) consisted of land being 3.466 acres. We have carried out an extensive search of our records and do not hold any title deeds for you or Caroline. Our records show that we did hold title deeds for Caroline in respect of land being 3.466 acres at Somersal Herbert. Our records indicate that the land was sold in July 1999 and we have not held the deeds since then.”
It is no surprise that, in those circumstances, Mrs Ludlam’s application for first registration did not succeed. The Woodland remained, according to the Trustee’s solicitors, unregistered.[16]Mrs Ludlam told me, upon my inquiry, that the Woodland had been throughout, and remains, unoccupied, so that no case for the acquisition by title by adverse possession is, or could be, advanced.[17]Mrs Ludlam’s case is that the Woodland, or at least the beneficial interest in it, was transferred to her in 1990, and that it has remained her property ever since. She offered no explanation for Cockertons’ assertion that the Woodland had been sold in July 1999, and it does not appear that the records to which Cockertons refer as the basis for their belief have been sought. In any event, they have not been made available to the court.[18]For his part, the Trustee’s stance is one of defensive neutrality. He appears to assume that the Woodland is prima facie vested in him by reason of Mr Ludlam’s bankruptcy, although from time to time during extensive litigation between his predecessor Ms Exley and the Ludlams mainly concerning Montgomery House, Ms Exley appears to have been content to assume, but without extensive inquiry, that the Woodland belonged to Mrs Ludlam. The Respondents do not suggest that any gift of the Woodland to Mrs Ludlam in 1990 is vulnerable to be set aside as a fraud on creditors. There is nothing before the court to suggest that the Trustee is actively seeking a sale of the Woodland, or that the supposed (but as yet unidentified) purchaser of the Woodland from Mrs Ludlam in 1999 has taken any steps either to occupy or deal with it.[19]In my judgment Mrs Ludlam has failed to satisfy the court, any more than she satisfied the Land Registry, that she remains the owner of the Woodland, in particular in the light of the unhelpful response (from her point of view) of Cockertons to her husband’s request for assistance, in October 2009. Nonetheless the evidence, taken as a whole, does suggest that from 1992 until 1998 GC&C did hold title deeds to the Woodland in her name, or for her benefit, from which it may be inferred that some form of gift, either in one or two stages, of Mr Ludlam’s original sole beneficial interest in it took place prior to that period. Whether those title deeds have since been lost, or the Woodland sold, is not a matter about which the court can reach any safe conclusion on the evidence available.[20]The result is that, while it would be inappropriate for the court to declare, in a manner effective as against the rest of the world, that Mrs Ludlam is the owner (and therefore entitled to be registered as the proprietor) of the Woodland, it is appropriate for the court to declare that, as between her and her husband’s Trustee, she has the better title to it.[21]That conclusion would be sufficient to support an injunction restraining a sale of the Woodland by the Trustee, if there were any evidence of a threat to do so. All that is shown by the materials before the court is that the Trustee has requested a private examination of Mr and Mrs Ludlam in relation to the Woodland, which appears to have been the casus belli for this application.[22]I propose therefore to declare only that as between the two of them, Mrs Ludlam has a better title to the Woodland than her husband’s Trustee. An injunction would, in the circumstances, appear to be unnecessary.[23]In order to save the Ludlams a further journey to the court, and having regard to the fact that on 28th March Mrs Ludlam faces her own bankruptcy hearing, on the application of the Trustee in respect of unsatisfied costs liabilities of hers in the litigation to which I have referred, and wishes to have the court’s determination of this issue available in time for that hearing, I indicated that I would hand down this judgment without requiring her attendance and deal with the costs of the application as part of this judgment, but on a provisional basis giving the parties permission to apply for a variation of any costs order, if dissatisfied with it.[24]I consider that the costs should lie where they fall. Mrs Ludlam has been by no means wholly successful, and the Trustee has sensibly adopted a minimalist approach with a view to saving costs. I therefore make no order as to costs.