Suzanne Elaine Procter v Philip John Procter & Ors [2022] EWHC 1202 (Ch)

“[9] One part of the Farm Inheritance comprises freehold land (often referred to as Land at Moorlands) now owned by a family limited company, Wide Open Finance Limited (“WOFL”). Each Sibling owns 20% of the shares in that company. The remaining 40% shareholding comprises part of the estate of Father. This land is rented to the Partnership which pays rent for it. As regards that land there is no relevant dispute before me. It is unclear whether in due course there may be a dispute regarding WOFL itself. However, there is a dispute over deeds entered into by (among others) WOFL pertaining to some of the other land within the Family Inheritance and which comprises part of a golf course (the “WOFL Transactions”).”

“40 Vesting of trust property in new or continuing trustees. (1) Where by a deed a new trustee is appointed to perform any trust, then— (a) if the deed contains a declaration by the appointor to the effect that any estate or interest in any land subject to the trust, or in any chattel so subject, or the right to recover or receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become or are the trustees for performing the trust, the deed shall operate, without any conveyance or assignment, to vest in those persons as joint tenants and for the purposes of the trust the estate interest or right to which the declaration relates; and (b) if the deed is made after the commencement of this Act and does not contain such a declaration, the deed shall, subject to any express provision to the contrary therein contained, operate as if it had contained such a declaration by the appointor extending to all the estates interests and rights with respect to which a declaration could have been made. (2) Where by a deed a retiring trustee is discharged under [the statutory power] without a new trustee being appointed, then— (a) if the deed contains such a declaration as aforesaid by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, the deed shall, without any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants, and for the purposes of the trust, the estate, interest, or right to which the declaration relates; and (b) if the deed is made after the commencement of this Act and does not contain such a declaration, the deed shall, subject to any express provision to the contrary therein contained, operate as if it had contained such a declaration by such persons as aforesaid extending to all the estates, interests and rights with respect to which a declaration could have been made. (3) An express vesting declaration, whether made before or after the commencement of this Act, shall, notwithstanding that the estate, interest or right to be vested is not expressly referred to, and provided that the other statutory requirements were or are complied with, operate and be deemed always to have operated (but without prejudice to any express provision to the contrary contained in the deed of appointment or discharge) to vest in the persons respectively referred to in subsections (1) and (2) of this section, as the case may require, such estates, interests and rights as are capable of being and ought to be vested in those persons.”

“section 39 of this Act or section 19 of the Trusts of Land and Appointment of Trustees Act 1996” (see paragraph 3, Schedule 3 to the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA 1996”). The statutory power under the provision as enacted is a reference to that contained in section 39 of the Trustee Act 1925 which, prior to 1 January 1997 was in the following form (but without the square brackets): “39. Retirement of trustee without a new appointment. (1) Where a trustee is desirous of being discharged from the trust, and after his discharge there will be either a trust corporation or at least two [individuals] to act as trustees to perform the trust, then, if such trustee as aforesaid by deed declares that he is desirous of being discharged from the trust, and if his co-trustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the co-trustees alone of the trust property, the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place. (2) Any assurance or thing requisite for vesting the trust property in the continuing trustees alone shall be executed or done.”

“agricultural tenants never had the right at common law to remove tenant's fixtures (see Elwes v. Maw (1802) 3 East 38), and this exception has by necessary implication been recognised in the provisions of the Agricultural Holdings Act 1948, which contains a compendious code for the ascertainment of " tenant's rights".”

“ Tenant’s right to remove fixtures and buildings. (1) Subject to the provisions of this section— (a) any engine, machinery, fencing or other fixture (of whatever description) affixed, whether for the purposes of agriculture or not, to an agricultural holding by the tenant, and (b) any building erected by him on the holding, shall be removable by the tenant at any time during the continuance of the tenancy or before the expiry of two months from its termination, and shall remain his property so long as he may remove it by virtue of this subsection. (2) Subsection (1) above shall not apply— …… (c) to a building in respect of which the tenant is entitled to compensation under this Act or otherwise, or …. (3). The right conferred by subsection (1) above shall not be exercisable in relation to a fixture or building unless the tenant— (a) has paid all rent owing by him and has performed or satisfied all his other obligations to the landlord in respect of the holding, and (b) has, at least one month before both the exercise of the right and the termination of the tenancy, given to the landlord notice in writing of his intention to remove the fixture or building. (4). If, before the expiry of the notice mentioned in subsection (3) above, the landlord gives to the tenant a counter-notice in writing electing to purchase a fixture or building comprised in the notice, subsection (1) above shall cease to apply to that fixture or building, but the landlord shall be liable to pay to the tenant the fair value of that fixture or building to an incoming tenant of the holding. (5). In the removal of a fixture or building by virtue of subsection (1) above, the tenant shall not do any avoidable damage to any other building or other part of the holding, and immediately after the removal shall make good all damage so done that is occasioned by the removal. 74. …. (7). This section shall apply to a fixture or building acquired by a tenant as it applies to a fixture or building affixed or erected by him. (8). This section shall not be taken as prejudicing any right to remove a fixture that subsists otherwise than by virtue of this section.”

“64. Tenant’s right to compensation for improvements. (1) The tenant of an agricultural holding shall, subject to the provisions of this Act, be entitled on the termination of the tenancy, on quitting the holding, to obtain from his landlord compensation for an improvement specified in Schedule 7 or Part I of Schedule 8 to this Act carried out on the holding by the tenant, being an improvement begun on or after 1st March 1948. (2) In this Act “relevant improvement” means an improvement falling within subsection (1) above. (3) ….. (4) …. 65. Tenant’s right to compensation for tenant-right matters. (a) The tenant of an agricultural holding shall, subject to the provisions of this Act, be entitled on the termination of the tenancy, on quitting the holding, to obtain from his landlord compensation for any such matter as is specified in Part II of Schedule 8 to this Act. (2) The tenant shall not be entitled to compensation under subsection (1) above for crops or produce grown, seeds sown, cultivations, fallows or acts of husbandry performed, or pasture laid down, in contravention of the terms of a written contract of tenancy unless— (a) the growing of the crops or produce, the sowing of the seeds, the performance of the cultivations, fallows or acts of husbandry, or the laying down of the pasture was reasonably necessary in consequence of the giving of a direction under the Agriculture Act 1947, or (b) the tenant shows that the term of the contract contravened was inconsistent with the fulfilment of his responsibilities to farm the holding in accordance with the rules of good husbandry. (3) Subject to paragraphs 6 and 7 of Schedule 12 to this Act, subsection (1) above shall apply to a tenant on whatever date he entered into occupation of the holding. SCHEDULE 7 Long-Term Improvements begun on or after 1st March 1948 for which Compensation is Payable Part I Improvements to which Consent of Landlord Required 1. Making or planting of osier beds. 2. Making of water meadows. 3. Making of watercress beds. 4. Planting of hops. 5. Planting of orchards or fruit bushes. 6. Warping or weiring of land. 7. Making of gardens. 8. Provision of underground tanks. Part II Improvements to which Consent of Landlord or Approval of Tribunal Required 9. Erection, alteration or enlargement of buildings, and making or improvement of permanent yards. 10. Carrying out works in compliance with an improvement notice served, or an undertaking accepted, under Part VII of the Housing Act 1985 or Part VIII of the Housing Act 1974 11. Erection or construction of loading platforms, ramps, hard standings for vehicles or other similar facilities. 12. Construction of silos. 13. Claying of land. 14. Marling of land. 15. Making or improvement of roads or bridges. 16. Making or improvement of water courses, culverts, ponds, wells or reservoirs, or of works for the application of water power for agricultural or domestic purposes or of works for the supply, distribution or use of water for such purposes (including the erection or installation of any structures or equipment which form part of or are to be used for or in connection with operating any such works). 17. Making or removal of permanent fences. 18. Reclaiming of waste land. 19. Making or improvement of embankments or sluices. 20. Erection of wirework for hop gardens. 21. Provision of permanent sheep-dipping accommodation. 22. Removal of bracken, gorse, tree roots, boulders or other like obstructions to cultivation. 23. Land drainage (other than improvements falling within paragraph 1 of Schedule 8 to this Act). 24. Provision or laying-on of electric light or power. 25. Provision of facilities for the storage or disposal of sewage or farm waste. 26. Repairs to fixed equipment, being equipment reasonably required for the proper farming of the holding, other than repairs which the tenant is under an obligation to carry out. 27. The grubbing up of orchards or fruit bushes. 28. Planting trees otherwise than as an orchard and bushes other than fruit bushes. SCHEDULE 8 Short-Term Improvements Begun on or After 1st March 1948, and other Matters, for which Compensation is Payable Part I Improvements (to which no Consent Required) 1.Mole drainage and works carried out to secure its efficient functioning. 2.Protection of fruit trees against animals. 3.Clay burning. 4.Liming (including chalking) of land. 4A. (1) Application to land in England of manure, fertiliser, soil improvers and digestate […] 5A.(1) In relation to England, production of manure arising from the consumption on the holding of relevant feeding stuff by livestock and equidae where the manure is held in storage on the holding. [….] Part II Tenant-Right Matters 7. Growing crops and severed or harvested crops and produce, being in either case crops or produce grown on the holding in the last year of tenancy, but not including crops or produce which the tenant has a right to sell or remove from the holding. 8. Seeds sown and cultivations, fallows and acts of husbandry performed on the holding at the expense of the tenant (including the growing of herbage crops for commercial seed production). 9. Pasture laid down with clover, grass, lucerne, sainfoin or other seeds, being either— (a) pasture laid down at the expense of the tenant otherwise than in compliance with an obligation imposed on him by an agreement in writing to lay it down to replace temporary pasture comprised in the holding when the tenant entered on the holding which was not paid for by him, or (b) pasture paid for by the tenant on entering on the holding. (1) Acclimatisation, hefting or settlement of hill sheep on hill land. [,,,,] (1) In areas of the country where arable crops can be grown in an unbroken series of not less than six years and it is reasonable that they should be grown on the holding or part of it, the residual fertility value of the sod of the excess qualifying leys on the holding, if any. [….]”

“12. Arbitration of rent. (1) Subject to the provisions of Schedule 2 to this Act, the landlord or tenant of an agricultural holding may by notice in writing served on the other demand that the rent to be payable in respect of the holding as from the next termination date shall be referred to arbitration under this Act. (2) On a reference under this section the arbitrator shall determine what rent should be properly payable in respect of the holding at the next termination date following the date of the demand for arbitration and accordingly shall, with effect from that next termination date increase or reduce the rent previously payable or direct that it shall continue unchanged. (3) A demand for arbitration under this section shall cease to be effective for the purposes of this section on the next termination date following the date of the demand unless before the said termination date— (a) an arbitrator has been appointed by agreement between the parties, or (b) an application has been made to the President of the Royal Institute of Chartered Surveyors for the appointment of an arbitrator by him. (4) References in this section (and in Schedule 2 to this Act) in relation to a demand for arbitration with respect to the rent of any holding, to the next termination date following the date of the demand are references to the next day following the date of the demand on which the tenancy of the holding could have been determined by notice to quit given at the date of the demand. (5) Schedule 2 to this Act shall have effect for supplementing this section.”

“SCHEDULE 2 Arbitration of Rent: Provisions Supplementary to Section 12 Amount of rent 1(1) For the purposes of section 12 of this Act, the rent properly payable in respect of a holding shall be the rent at which the holding might reasonably be expected to be let by a prudent and willing landlord to a prudent and willing tenant, taking into account (subject to sub-paragraph (3) and paragraphs 2 and 3 below) all relevant factors, including (in every case) the terms of the tenancy (including those relating to rent), the character and situation of the holding (including the locality in which it is situated), the productive capacity of the holding and its related earning capacity, and the current level of rents for comparable lettings, as determined in accordance with sub-paragraph (3) below. …… 2(1) On a reference under section 12 of this Act, the arbitrator shall disregard any increase in the rental value of the holding which is due to— (a)tenant’s improvements or fixed equipment other than improvements executed or equipment provided under an obligation imposed on the tenant by the terms of his contract of tenancy, and (b) landlord’s improvements, in so far as the landlord has received or will receive grants out of money provided by Parliament or local government funds in respect of the execution of those improvements. (2). In this paragraph— (a)“tenant’s improvements” means any improvements which have been executed on the holding, in so far as they were executed wholly or partly at the expense of the tenant (whether or not that expense has been or will be reimbursed by a grant out of money provided by Parliament or local government funds) without any equivalent allowance or benefit made or given by the landlord in consideration of their execution, (b)“tenant’s fixed equipment” means fixed equipment provided by the tenant, and (c)“landlord’s improvements” means improvements executed on the holding by the landlord. (3). Where the tenant has held a previous tenancy of the holding, then— (a)in the definition of “tenant’s improvements” in sub-paragraph (2)(a) above, the reference to any such improvements as are there mentioned shall extend to improvements executed during that tenancy, and (b)in the definition of “tenant’s fixed equipment” in sub-paragraph (2)(b), the reference to such equipment as is there mentioned shall extend to equipment provided during that tenancy, excluding, however, any improvement or fixed equipment so executed or provided in respect of which the tenant received any compensation on the termination of that (or any other) tenancy.”

“any building or structure affixed to land and any works on, in, over or under land, and also includes anything grown on land for a purpose other than use after severance from the land, consumption of the thing grown or of its produce, or amenity, and any reference to fixed equipment on land shall be construed accordingly”

“5.In 1991 we were in the CAP [common agricultural policy]; farm profits declined and diversification was the thing. So in May 1991, we began building the Golf Course.”

“ [143] By Deed dated 1 September 1996, Father, Mother and Philip described as the “Owners”) and who were at the time trustees of Grandfather’s Will Trusts) entered into a deed with each of the Partners (the “1996 Declaration”). This Deed is one of those whose effect I have to rule upon being part of the “WOFL transactions”

“the Owners hereby acknowledge and confirm with the Partners that the Partners are entitled to the full value of the Works in the [Land]” [144] The background to this Deed is explained in the witness statement of Philip. I accept his evidence on this point. The position can be summarised as follows. The Partnership had constructed what are described in the 1996 Deed as the “Works”, which for convenience I shall refer to as the “Golf Club Works”. [145] In the normal way, and had the Partnership had the benefit of an AHA tenancy as submitted on behalf of Philip and Jamie, the Golf Club Works would have constituted tenant’s improvements. [146] WOFL also owned some freehold land adjacent to Spring Hill House which it had purchased from the family. It was intended that WOFL would in due course sell the land to a developer, as residential development plots, once full planning permission had been obtained. The problem was that such sale would be likely to trigger a capital gains tax liability on the part of WOFL. The tax saving plan was that WOFL would use the sale proceeds to purchase the Golf Club Works from the Partnership. It was hoped that WOFL would then be able to claim rollover relief. [147] The sums received by the Partnership would, in effect, reimburse it for its expenditure on the Golf Club Works. WOFL would then lease the Golf Club Works to the Partnership so that it could continue to operate the golf club.”

“[157] In October 2003 a number of documents were executed as below, which form some of the documents which are part of the WOFL Transactions, upon whose effect I am asked to rule. [158] By an assignment made on 3 October 2003 between (1) each of the Partners (defined as “the Assignors”); (2) WOFL and (3) Father, Mother and Philip, defined as “the Land Owners”, the Assignors assigned the “Workings in Land” for the sum of £225,000 to WOFL (the “First WOFL Assignment”). The Landowners consented to that assignment and acknowledged that “the Assignors prior to the assignment herein were the owners of and were entitled to the full value of the Workings in Land which are now vested in the Assignee.”

“The Assignors are the owners of and are entitled to the full value of the golf clubhouse and ancillary buildings upon the land at Skelton …shown [on the annexed plan] (“the Workings in Land”)”

“The Assignors are the owners of and are beneficially entitled to the full value of the beneficial workings in land…shown [on the annexed plan] (“the Workings in Land”)”

“The Assignors are the owners of and are beneficially entitled to the full value of the beneficial workings in and…shown [on the annexed plan] (“the Workings in Land”)”

“Plot 2333 was originally purchased by the Partnership. Legal title was originally conveyed to Mother, Father, Philip and Suzie to be held beneficially for Father, Mother and each Sibling as to one-fifth each. Father later gifted his one-fifth beneficial interest to Mother on 23 August 1996. Mother later gifted, by declaration of trust, her, by then, two-fifths beneficial interest to the three Siblings on 7 May 2006.”

“The Investments are of freehold land which are shown at cost.”

“Prior to the WOFL transactions, there had already been an apportionment of the rent payable by the Partnership under the 1994 AHA tenancy, from 1999 onwards, as between (a) the area of the demise that had been turned into the golf course, and (b) the other areas of the demise. Thus of the overall rent of £15,475 p.a., £4,434 p.a. was apportioned to the golf course area of the demise, and £11,041 p.a. to the other areas of the demise. That apportionment was based on the respective acreages of those areas, in line with advice which had previously been given by the family accountants concerning the apportionment of rent. That rent was payable for the underlying land occupied by the golf course area, but not for the golf club works that were subsequently the subject matter of the WOFL transactions (on the basis that the Partnership had paid for those itself). That apportionment of the 1994 AHA tenancy rent between the golf course area of the demise and the other areas of the demise was then reflected in the annual agreed accounts of the Partnership, which from 2000 onwards divided the Partnership P&L accounts between its main farming activities and the golf course.”

“If the company is to acquire the workings in land etc., from the partnership then the partnership must charge the company VAT on the market value of the workings in land etc., sold to the company.”

“GW Procter and Ps propose to accept a loan from NWB of £60,000 for the purpose of repayment of the balance of the loan from Wide Open F to the Ps, before 31 March 2001. My information is that the figure quoted on the 14/9/00 was £53,306 and that a Tax Rebate of 25% i.e. £13,326 would be receivable by WOFL, Jan1 - 2012 but please check. The money introduced into WOFL would be used in July-Aug 2001, to purchase new works for the Golf Course (i.e. the Ps), on a commercial basis. We would reinvest the surplus funds in WOFL between 31 Mar 01 and Aug 2001 on the market.”

“I have spoken to Customs & Excise today who have agreed a 14 day extension on forwarding of evidence they require confirming that the Club House etc., are to be purchased by the company, then they will proceed with the registration.”

“I enclose herewith a letter from H M Customs & Excise and you will be pleased to note that they regard the sale of the properties to be exempt from VAT which means no VAT needs to be charged therefore there is no need to register Wide Open Finance Ltd unless you wish to.·”

“…we are exploring ways to transfer it to the P[artnership]’s account. Ps would use it to reduce Bank o/d and loans and thus annual interest payments. a. Buy assets from Ps… Clubhouse Complete GC Workings.”

“I acknowledge receipt of your letter dated 14th July 2003, notifying your election to waive exemption with effect from 1st July 2003, in relation to the land I buildings named below: · Buildings & Beneficial Workings · In Land at Wide Open Farm & Park Farm Skelton Yorkshire YO32 2RF”

“Sale of golf course = not sale of underlying land”

“3. The sale of the building plot is to release cash, to alleviate the pressure being exerted by the bank on our overdraft facility. 4. The proceeds of the sale are not for distribution to anyone during my and Jean's lifetime. They are to be used for the benefit of the business. 5. To obtain roll-over relief the monies must be used to buy another business asset (simply paying off partnership debt does not attract roll-over relief). Rather than buying another asset we don't need, it is proposed to buy an asset from Wide Open Finance Ltd as set out in the note of 20th November; this is a similar mechanism to the one we used with the previous plots.” (2) Ms Rickatson was subsequently sent deeds relating to the then WOFL Transactions. In an email dated 15 December 2011 to Mr Knowles she started substantively by saying: “I accept and appreciate (and always have)the point about roll-over relief. However it is clear to me that there will undoubtedly be pressure on the partnership overdraft given the level of losses that are accruing so if the funds are used to keep the bank at bay they will not be available to buy an asset from Wide Open Finance nor to pay Suzie's CGT bill. Are the assets within WOFL worth anything anyway as they are (I understand) by and large affixed to land not owned by WOFL - altho' there is a parcel of land owned as well?).” (3) Mr Walker places emphasis on the comment about WOFL and says it was “never contradicted”

“The partnership runs the farm and the golf course on the 1975 Trust land. (NB: three acres of land under the golf course is in The Glebe Field (No.151), which is contained within the 1st 1997 Settlement).”

“The deed to which you refer did not simply purport to confirm that the workings in land belonged to the partnership, it did so unequivocally. The deed's aim was to solidify and reflect the actuality of the situation; it being clearly stated that it was "for the avoidance of doubt". We are instructed that "the Improvements" you refer to had never attached to the land and were never intended to be.”

“It is possible to cite in extenso from a number of speeches in the House of Lords and judgments of the Supreme Court. In this case, the essential principles were not in dispute and it seems to me that the most convenient course is to set out the convenient summary contained in the judgment of Jacob J in Global Display Solutions Limited v NCR Financial Solutions Group Limited [2021] EWHC 1119 (Comm). Permission to appeal against the decision made by the Judge on the construction of the relevant agreement was refused. An appeal succeeded on a separate point regarding an award of exemplary damages: [2021] EWCA Civ.1399. The key is that the overall process is a unitary exercise involving an iterative process which involves not just a consideration of the words of a contract but a consideration of the same against the relevant background knowledge and the commercial consequences of competing constructions. However, in general, the parties’ negotiations are inadmissible as an aid to construction of an agreement.”

“[316] The basic legal principles as to the interpretation of contracts were not in dispute. They are conveniently summarised in the judgment of Popplewell J. in Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Ltd [2018] EWCL 163 (Comm), which is quoted in Chitty on Contracts 33rd edition paragraph 13-047: “The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.” [317] This summary is a synthesis of the principles that have been authoritatively stated in a trilogy of Supreme Court decisions in the past 10 years: Rainy Sky SA v Kookmin Bank [2011] UKSC 50; Arnold v Britton [2015] UKSC 36; Wood v Capita Insurance Services Ltd. [2017] UKSC 24. [318] In Rainy Sky, Lord Clarke described the exercise of construction as being essentially a “unitary exercise” in which the court must consider the language used and ascertain what a reasonable person, with the relevant background knowledge, would have understood the parties to mean. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Where the parties have used unambiguous language, the court must apply it: Rainy Sky paragraphs [23] and [25]. [319] Whilst this unitary exercise of interpreting the contract requires the court to consider the commercial consequences of competing constructions, commercial common sense should not be invoked retrospectively, or to rewrite a contract in an attempt to assist an unwise party, or to penalise an astute party. This is clear from the judgment of Lord Neuberger in Arnold v Britton [and what]he said at paragraphs [15] – [22]. At paragraph [20], Lord Neuberger said: “Fourthly, while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Experience shows that it is by no means unknown for people to enter into arrangements which are ill-advised, even ignoring the benefit of wisdom of hindsight, and it is not the function of a court when interpreting an agreement to relieve a party from the consequences of his imprudence or poor advice. Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party”. [320] In Wood v Capita, Lord Hodge set out the applicable principles following Rainy Sky and Arnold v Britton as follows: “[10] The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. In Prenn v Simmonds [1971] 1 WLR 1381, 1383H1385D and in Reardon Smith Line Ltd v Yngvar HansenTangen (trading as HE Hansen – Tangen) [1998] 1 WRL 896, 912-913 Lord Hoffmann reformulated the principles of contractual interpretation, some saw his second principle, which allowed consideration of the whole relevant factual background available to the parties at the time of the contract, as signalling a break with the past. But Lord Bingham of Cornhill in an extrajudicial writing, “A New Thing Under the Sun? The Interpretation of Contracts and the ICS decision” (2008) 12 Edin LR 374, persuasively demonstrated that the idea of the court putting itself in the shoes of the contracting parties had a long pedigree. [11] Lord Clarke of Stone-cum-Ebony JSC elegantly summarised the approach to construction in the Rainy Sky case [2011] 1 WLR 2900, para 21f. In the Arnold case [2015] AC 1619 all of the judgments confirmed the approach in the Rainy Sky case: Lord Neuberger of Abbotsbury PSC, paras 13-14; Lord Hodge JSC, para 76 and Lord Carnwath JSC, para 108. Interpretation is, as Lord Clarke JSC stated in the Rainy Sky case (para 21), a unitary exercise; where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. But, in striking a balance between the indications given by the language and the implications of the competing constructions the court must consider the quality of drafting of the clause (the Rainy Sky case, para 26, citing Mance LJ in Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd (No 2) [2001] 2 All ER (Comm) 299, paras 13, 16); and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest: the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. [12] This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated: the Arnold case, para 77 citing In re Sigma Finance Corpn [2010] 1 All ER 571, para 12, per Lord Mance JSC. To my mind once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each. [13] Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance. But negotiators of complex formal contracts may often not achieve a logical and coherent text because of, for example, the conflicting aims of the parties, failures of communication, differing drafting practices, or deadlines which require the parties to compromise in order to reach agreement. There may often therefore be provisions in a detailed professionally drawn contract which lack clarity and the lawyer or judge in interpreting such provisions may be particularly helped by considering the factual matrix and the purpose of similar provisions in contracts of the same type. The iterative process, of which Lord Mance JSC spoke in Sigma Finance Corpn [2010] 1 ALL ER 571, para 12, assists the lawyer or judge to ascertain the objective meaning of the disputed provisions.” [321] There is discussion in the case-law as to the circumstances in which consideration of the factual matrix or context may lead to an interpretation of words which is not, according to conventional usage, an “available” meaning of the words or syntax which the parties had actually used, and the correction of an obvious drafting mistake by interpretation. I consider that argument in context below.”

“CLASS 1 ….. Head A 1. Any building or part of a building and any permanent or semi-permanent structure in the nature of a building, occupied (as well as used) only for the purposes of the trade. 2. Any land occupied (as well as used) only for the purposes of the trade”

“the property described in the First Schedule hereto and each and every part thereof together with the appurtenances thereto belonging together with all additions alterations and improvements thereto which may be carried out during the term and shall also include all Landlord’s fixtures and fittings from time to time in and about the same.”

“ “I do not think it is normally convincing to argue that, if the parties had meant a phrase to have a particular effect, they would have made the point in different or clearer terms. That is a game which all parties can normally play on issues of interpretation. Save in relatively rare circumstances (e.g. where the document concerned contains a provision elsewhere in different words which has the effect contended for by one of the parties), it does not take matters further.””

“That they were purchasers without notice is, I think, admitted on all hands; but it remains to be ascertained what it is of which they were purchasers. Now, on that head it was contended, in the first place, that they had obtained a legal estate, and, of course, if they are purchasers for value without notice, and if they have obtained a legal estate, the clear rule of a Court of Equity would apply, namely, that their legal estate could not be taken away from them. But the way in which it was said they had obtained a legal estate was this: It was said that at the time Stephens conveyed to them upon the occasion of their purchases, he had no legal estate, but that he afterwards, by virtue of the reconveyance to him, obtained a legal estate; that by the first conveyance he was estopped, and that the estoppel created by the first conveyance was, to use the technical expression applied to such cases, fed by the estate which Stephens acquired under the reconveyance, and that thus the legal estate became complete. Now, in my opinion, that argument was founded altogether on a fallacy. There is no estoppel whatever in this case. The conveyances to the purchasers were innocent. They were ordinary conveyances by grant; the operative words of which, as is well known, would create no estoppel; and the estoppel, if it arose at all, would arise by virtue of the first recital in the conveyance. The recital was in substance the ordinary one in such cases. It recited that Stephens was seised or otherwise well and sufficiently entitled to the property in question, free from incumbrances. If the recital had been a recital simply that Stephens was seised, there might have been an estoppel, but the recital is one out of which no estoppel can arise, because it is not precise or unambiguous. It is a recital which, in substance, amounts to a statement that he had an estate either at law or in equity, and the fact that it states that the estate, whatever it was, was free from incumbrances, creates no estoppel for the purpose of making the legal estate pass. There is, therefore, no estoppel operating so as to convey the legal estate to the purchasers. What, then, is it which the purchasers are purchasers of? They are purchasers of the equity of redemption, which Stephens had to convey to them, and which he did convey to them by the purchase deeds.”

“ If upon the true construction of the deed the statement is that of both or all the parties, the estoppel is binding on each party; if otherwise, it is binding only on the party making it”

“After a lease has been granted, another lease of the same premises is sometimes granted, the term being either concurrent with or subsequent to that of the existing lease. A concurrent lease, provided it is made by deed, operates as a lease of the reversion upon the existing term. If the concurrent term is equal to or exceeds the residue of the existing term, the concurrent lessee is entitled to the rent for the whole of such residue, and afterwards to possession for the remainder (if any) of his own term. The concurrent lessee is also entitled to sue for service charge contributions. If the concurrent term expires during the existing term, the concurrent lessee is entitled to the rent during his own term. In effect, the lessee under the concurrent lease is inserted between the lessor and the lessee under the existing lease, so that the lessee under the existing lease the position of an underlessee. The rule of law that a legal term may be created to take effect in reversion expectant on a longer term is confirmed by statute.”

“3 . SUBJECT to the provisions for dissolution hereinafter contained the partnership shall continue until determined pursuant to the provisions hereof notwithstanding the death of any individual partner …. 5. THE capital of-the partnership shall consist of the value of the live and dead stock farm machinery and other assets of the business heretofore carried on by Mr. Procter on Mr. Procter's lands after deduction of the liabilities of the business· formerly carried on by Mr.· Procter which liabilities shall be borne and paid by the present partnership … 7. THE partners shall be entitled to withdraw such sums on account of their respective shares of profit and in respect of the balances standing to their credit on current account as the Senior Partners shall from time to time jointly agree …… 14. (1) THE partnership shall he dissolved on the expiry of six months' notice of dissolution given in writing by the Senior Partners or the survivor of them to the remaining partners (2) In each of the undermentioned cases the partnership shall be dissolved as regards the partner in question (so he shall be deemed to have retired) but not otherwise:- (i) on the giving of one month's notice by the Senior Partners or the survivor of them that the partner in question's conduct is in the opinion of the person or-persons giving such notice calculated to prejudicially affect the carrying on of the business of the partnership (ii) on the giving of one month’s notice by the Senior Partners or the survivor of them that the partner in question is in wilful or persistent breach of the terms of the partnership (whether express or implied) (iii) If the partner in question becomes bankrupt and the Senior Partners give one month' s notice that as a result thereof he should retire (iv) On the death of the partner in question (3) If a partner is deemed to retire by reason of any of the matters referred to in sub-clause 12(2) hereof other than by reason of his or her death he or she shall receive the following (in the remainder of this clause referred to as a "partnership share"):- (i) The amount standing to the credit of his or her capital account at the date of the retirement (ii) The amount standing to his or her credit on his or her current account (iii) The share of the profits of the partnership that he or she would have received if he or she had remained a partner until the end of the accounting period in which the retirement occurred”

“On the dissolution of a partnership every partner is entitled, as against the other partners in the firm, and all persons claiming through them in respect of their interests as partners, to have the property of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm”

“In the absence of any express provision in the partnership agreement or in an ad hoc agreement between the partners, the entitlement of the deceased or outgoing partner in respect of his share will, in the normal way, strictly be represented by his proportionate share in the net proceeds remaining after all the partnership assets have been sold and the partnership debts and liabilities paid and discharged. However, where there is an implied recognition on the part of the outgoing partner that the other partners will continue the business, those other partners will be treated as entitled to acquire his share at a valuation and the court will direct the necessary accounts and inquiries for that purpose.”

“The alternatives are either that it worked a general dissolution [involving a sale of the assets including goodwill, which would include the right for the purchaser to use the firm name As described elsewhere by Goff J in the judgment. ] as the plaintiff contends, or that the plaintiff thereby retired leaving the partnership subsisting between the other three.”

“…once given that it is found that a partner has retired, I do not see how as a general rule he can be entitled to a sale which is inconsistent with retirement, involving as that does the other partners taking over the business for themselves, and which, so far as goodwill is concerned, would give him not that which he ought to have, a share of the goodwill as it was when he retired, but something different, a share of the goodwill as at a fortuitous date, the date of the sale. In my judgment, what he is entitled to is the value of his share at the date of his retirement, including, of course, the then goodwill, the ascertainment of which must at all events normally be a matter of inquiry, accounting and valuation, not sale. Once that conclusion is reached then sections 42 and 43 of the Partnership Act 1890 do apply, and whatever is due to the plaintiff, whether under section 42 or on the general account, is a debt due to him from the continuing partners. Accordingly he is merely an unsecured creditor and has no right to interfere or to ask the court to interfere in his debtors' business or to ask that it be saved for him to have recourse thereto to satisfy his demand; and I must, as I do, accept the defendants' submission that the appointment of a receiver and manager is not an appropriate remedy at all.”

“Tenancy on the balance sheet 812 I might add here that the tenancy was not included on the balance sheet as an asset of the Partnership. That, I have always understood, is commonplace. As have always understood it, accounts do not include tenancies protected under the agricultural holdings regime as assets on a balance sheet. The fact there was no reference to the tenancy in the accounts is not, therefore, something which I ever regarded as being an omission.”

“(11) Treatment of tenant's improvements after 1994 811. In 1994, upon the surrender of the 1973/1978 tenancies in June of that year, there is no different treatment of tenant's improvements in the accounts of the Partnership. They remained assets of the Partnership, as they had been throughout. That did not occur to me as odd because I had regarded the Partnership as having tenanted rights from the commencement of its trading. However, I am equally clear that in 1994 the intention was to ensure that the Partnership's rights were protected as they would be by the surrender of the old tenancies, leaving the Partnership alone as the trading entity and tenant of the Farm and entitled to compensation if the tenancy ended.”

“ Finally, it is said that all positive dealings with a joint tenancy require the concurrence of all joint tenants if they are to be effective. Thus, a single joint tenant cannot exercise a break clause in a lease, surrender the term, make a disclaimer, exercise an option to renew the term or apply for relief from forfeiture. All these positive acts which joint tenants must concur in performing are said to afford analogies with the service of notice to determine a periodic tenancy which is likewise a positive act. But this is to confuse the form with the substance. The action of giving notice to determine a periodic tenancy is in form positive; but both on authority and on the principle so aptly summed up in the pithy Scottish phrase "tacit relocation" the substance of the matter is that it is by his omission to give notice of termination that each party signifies the necessary positive assent to the extension of the term for a further period. For all these reasons I agree with the Court of Appeal that unless the terms of the tenancy agreement otherwise provide, notice to quit given by one joint tenant without the concurrence of any other joint tenant is effective to determine a periodic tenancy.”

“Tacit relocation is not an indefinite prolongation of a lease. It is the prolongation each year of the tenancy for a further one year, if the actings of the parties to the lease show that they are consenting to this prolongation. For, as in all contracts, a tacit relocation or reletting must be based on consent. In the case of tacit relocation the law implies that consent if all the parties are silent on the matter. Hence, where there are joint tenants, tacit consent by both of them is necessary to secure the prolongation and to enable tacit relocation to operate. Silence by both is necessary to presume that both the tenants wish the tenancy to continue for another year. On the other hand, if both are not silent, and if one gives due notice of termination, the consent necessary for tacit relocation to operate is demonstrably not present, and tacit relocation will no operate beyond the date of termination in the notice”

“In property law, a transfer of land to two or more persons jointly operates so as to make them, vis a vis the outside world, one single owner. "Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner:" Megarry and Wade, The Law of Real Property, 5th ed. (1984), p. 417. The law would have developed consistently with this principle if it had been held that where a periodic tenancy has been granted by or to a number of persons jointly, the relevant "will" to discontinue the tenancy has to be the will of all the joint lessors or joint lessees who together constitute the owner of the reversion or the term as the case may be. At one stage the law seems to have flirted with adopting this approach. Thus in Doe d. Whayman v. Chaplin (1810) 3 Taunt. 120….. Despite this flirtation, the law was in my judgment determined in the opposite sense by Doe d. Aslin v. Summersett (1830) 1 B. & Ad. 135. The contractual, as opposed to the property, approach was adopted. Where there were joint lessors of a periodic tenancy, the continuing "will" had to be the will of all the lessors individually, not the conjoint will of all the lessors collectively. This decision created an exception to the principles of the law of joint ownership: see Megarry and Wade,5th ed., pp. 421-422.”

“The tenancy came to an end when one of the lessees gave notice to quit. It may be that, as between the lessees, the giving of the notice to quit was a breach of trust, theoretically giving rise to a claim by the appellant against Mrs. Powell for breach of trust. Even this seems to me very dubious since the overreaching statutory trusts for sale imposed by the Law of Property Act 1925, do not normally alter the beneficial rights inter se of the concurrent owners: see re Warren [1932] 1 Ch. 42, 47, per Maugham J.; and Bull v. Bull [1955] 1 Q.B. 234. But even if, contrary to my view, the giving of the notice to quit by Mrs. Powell was a breach of trust by her, the notice to quit was not a nullity. It was effective as between the lessor and the lessees to terminate the tenancy. The fact that a trustee acts in breach of trust does not mean that he has no capacity to do the act he wrongly did. The breach of trust as between Mrs. Powell and the appellant could not affect the lessors unless some case could be mounted that the lessors were parties to the breach, a case which Mr. Reid, for the appellant, did not seek to advance.”

“The son is, of course, the legal owner of the house; but the mother and son are, I think, equitable tenants in common. Each is entitled in equity to an undivided share in the house, the share of each being in proportion to his or her respective contribution. The rights of equitable tenants in common as between themselves have never, so far as I know, been defined; but there is plenty of authority about the rights of legal owners in common. Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner. Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account. If one of them should go so far as to oust the other he is guilty of a trespass: see Jacobs v. Seward. Such being the rights of legal tenants in common, I think that the rights of equitable owners in common are the same, save only for such differences as are necessarily consequent on the interest being equitable and not legal. It is well known that equity follows the law; and it does so in these cases about tenants in common as in others.”

“It must be observed that both Lord Browne-Wilkinson [1992] 1 A.C.478, 493 and Slade L.J., 89 L.G.R. 357, 373 in the Court of Appeal recognise the possibility that there might be a trust which would affect a joint tenant in this position. It would have to be a trust of a more specific character and both Lord Browne-Wilkinson and Slade L.J. clearly felt great difficulty about the possible existence of such a trust having regard to the expiring subject matter of the trust, and the role of the trustee for sale. However, any such trust as there visualised would probably have to be one which arose under the principles discussed in Jones v. Challenger [1961] 1 Q.B. 176, and as illustrated by Bull v. Bull [1955] 1 Q.B. 234 and In re Evers' Trust [1980] 1 W.L.R. 1327. In the present case no argument has been advanced based upon the existence of any such trust or trust obligation. The difficulties, factually, in the present case are obvious. They include the fact that the wife had left the property and ceased to live there or wish to live there some nine months before she served the notice. However, no such trust is relied upon. The only trust obligation that is put forward is that found in section 26(3) and that obligation, as I have held, does not apply to the service of the notice. Therefore, it follows that the husband fails on the first step in his argument and none of the further steps (which themselves are not without difficulty) need to be considered.”

“ that when property was required by husband and wife jointly for the purpose of providing a matrimonial home, neither party had a right to demand the sale of the property while that purpose still existed, for that might defeat the object behind the trust; but with the end of the marriage that purpose was dissolved and the duty to sell was restored”. (2) Similarly, in Re Evers Trust the headnote to the case report records: “that in exercising its discretion on an application under section 30 of the Law of Property Act 1925 the court had to have regard to the underlying purpose of the trust for sale and decide whether at the particular time and in the particular circumstances when the C application was made, it would be right, having regard to that underlying purpose, to order a sale; that in considering the circumstances of the purchase of the cottage, the inference was irresistible that the parties had purchased it as a family home for themselves and the three children for the indefinite future, and, since there was no evidence that the father had any need to realise his investment whereas the sale of the property would put the mother in a very difficult position, it D would be wrong to order a sale at the present time and in the existing circumstances.”

“It is, of course, very familiar law that if a trustee obtains a renewal of a lease of property vested in him as trustee, whether by virtue of a right of renewal or not, he must hold the new lease for the benefit of his cestui que trust. The leading authority upon that is Keech v. Sandford. The principle is that the trustee owes it to his cestui que trust to obtain a renewal, if he can do so, on beneficial terms, and that the Court will not allow him to obtain a renewal upon beneficial terms for himself when his duty is to get it for his cestui que trust.”

“ While, therefore, I am bound to differ from the actual decision of the learned judge, I feel that I am giving effect to his own view.”

“ Tenants in common do not stand in a fiduciary relation to each other: Kennedy v. De Trafford [1897] A. C. 180; and one of two mortgagors, tenants in common, is not debarred from buying for himself the undivided equity of redemption in the whole.”

“So the principles upon which the House of Lords decided the Hammersmith and Fulham Borough Council case were recognised in Featherstone v Staples and were not treated by Slade Ll as being inconsistent with the possibility of the court, in an appropriate case, directing one of two or more joint tenants at law, who were also trustees for sale, to serve a counternotice, if the equitable considerations under the trust for sale so dictated. On this application, which is an interlocutory one, at a fairly late hour of the day, I do not propose to enter into a lengthy debate on the extent to which the Hammersmith and Fulham Borough Council v Monk case is consistent with those three authorities in the Court of Appeal, which recognised the jurisdiction that I am being asked to exercise in this case. In my view, it is at least arguable that they can perfectly well coexist. It seems to me that the speech of Lord Browne-Wilkinson recognises explicitly in the Hammersmith and Fulham case the possibility of there being trust considerations existing which might in an appropriate case (and if the court had an opportunity of intervening at an early enough stage) have an effect upon the way in which the trustees for sale should be directed to behave. Monk's case was concerned with what the results of what one of the two trustees for sale had actually done vis avis the landlord. That is a different situation, in my judgment, from what I am asked to look at, which is how the trustees for sale should be directed to behave vis avis the landlord. So I see no incompatibility between those two lines of authority.”

“in my judgment, what the court has to look at is whether there are equitable interests which operate to vary the prima facie position which certainly obtained in 1974, namely that either of the two ( or any of the ·three, as it was in those days) joint tenants could serve a tenant's notice to quit at an appropriate time under the tenancy at law, and, had a notice under the relevant legislation been served by the landlord, could have declined to serve a counternotice. On that issue, are there any such equitable interests which arise, it seems to me that it is that a result was achieved, consequent upon the family discussions in 1991 and thereafter, leading up to the deed of retirement, which positively had the effect of an agreement that Mr Roger Cork should remain as the occupying farming tenant of this farm.”

“[5] …According to Suzie, the Parents’ wishes were that the three Siblings should benefit equally and that powers of appointment and advancement under relevant family trusts should be exercised to that end. According to the Brothers, their Parents’ settled intention was that the entirety of the Farm Inheritance should be kept intact. For what it is worth, my assessment of the evidence shows that the Parents had both aims in mind and, from time to time, changed their position as to which should give way to the other and when.”

“[93]…. In my assessment, it is not accurate of Suzie to say that the Partnership was not intended to create any enforceable rights or obligations. Rather, the Partnership operated on the basis that the partners would not enforce their legal rights or obligations but rather they would act as requested, or required, by Father. Similarly, beneficial ownership of parcels of land within the Family Inheritance were passed by Father and/or Mother to the Siblings, either directly (as direct beneficial owners) or indirectly (through an interest in a Family Trust), but in each case, and notwithstanding the legal rights and obligations, the Siblings would permit Father to decide how the same or the income from them would be dealt with. ……. [95] I do not consider that the legal structures put in place were a “sham”

“17.200…..Thus, once a valid notice to quit has been served, the tenancy will automatically come to an end on the expiry of the notice, even though the party giving it has purported to waive or withdraw it. The parties may, by a new contract, create a new tenancy which is what is sometimes meant by “waiving” a notice to quit, but the old tenancy no longer exists.1” 1 Tayleur v Wildin (1868) L.R. 3 Ex. 303; Clarke v Grant [1950] 1 K.B. 104. And see Smith’s Leading Cases (13th ed.), Vol.2, p.124. For “waiver” of notice to quit see paras 17.264 and following.”

“The order made by Judge Krikler did not restrain the wife from serving a notice to quit upon the council. But since there is likely sooner or later (probably sooner) to be a case in which, at the time when the notice was served, an order to this effect had been or could have been made under one or other of the jurisdictions enumerated by my noble and learned friend, I would offer some observations on what the consequences would be. In my view, the existence of an injunction could not in itself vitiate the notice given by the wife. The principle laid down by this House in Hammersmith and Fulham London Borough Council v. Monk [1992] 1 A.C. 478 is that the term created by the grant of a periodic joint tenancy is defined by reference to the absence of a notice by the landlord or one or other of the joint tenants signifying that he is not willing that it should continue. If this negative condition is not satisfied, the term comes to an end. For my part, I do not see how the existence of an injunction against the wife in proceedings to which the landlord was not a party and of which it had no knowledge could enable a court to deem the negative condition to be satisfied.”

“ 87J. The First Defendant, with the Second Defendant, has wrongly asserted that they hold the entirety of the 1975 Trust Land, including the residential properties Park Farm House, Moor Park and Wide Open Farm House, under a tenancy enjoying security of tenure under the AHA. In doing so, the First and Second Defendants, have sought to secure for themselves a very valuable interest, at the expense of the 1975 Trust and the Claimant. If successful, the First and Second Defendants’ claims would seriously undermine the value of the relevant land, both as to its capital value and its potential to generate revenue, at the expense of the 1975 Trust and to the personal benefit of the First and Second Defendants.”

“87J. Paragraph 87J wholly mischaracterises the issue of the AHA protected tenancy, and is denied. The First Defendant, with the Second Defendant, needed to understand how the 1975 Trust land (including Park Farm House, Moor Park and Wide Open Farm House) were held. They took advice from Peter Williams, an expert in this field. The thrust of his Advices, which have been disclosed, is that an AHA protected tenancy exists, reflecting the unbroken paying of rent by the Partnership for the land in question over the entire relevant period. The 1st and 2nd Defendants have neither sought to, nor secured for themselves a very valuable interest at the expense of the 1975 Trust or the Claimant. First, the interest has no value, because it is not capable of being assigned. Secondly it has not been secured at the expense of the 1975 Trust. Given that it has existed at all relevant times, the AHA protected tenancy is simply the legal consequence of the arrangements under which the land is held. Thirdly it has not been at the expense of the Claimant. The Claimant was until 2010 a partner and a tenant under the AHA protected tenancy. It is admitted that the existence of the AHA protected tenancy has an effect on the capital value of the land, but repeated that this is simply the legal effect of the statutory framework on arrangements entered into in Father and Mother's lifetimes.”

“140.7 If, which is denied, the Claimant did have any liability in respect of the closing balance on her capital account, that balance would need to be based upon a true valuation of the business and its assets rather than book values, and would need to include assets which have been treated by the Partnership as its assets despite not being recorded in the Partnership accounts – including assets such as Spring Hill House used as security for the Partnership’s extensive borrowings. These assets would also have to include the 1994 Tenancy if, contrary to the Claimant’s case, the same subsisted and enjoyed security of tenure under the AHA.”

“As to sub-paragraphs 6 and 7, it is denied that the Partnership accounts are inaccurate. In particular the Claimant's contention that Spring Hill Farm House is a Partnership asset is inconsistent with paragraphs 84.4 and 127 of the Particulars of Claim and is denied. Nor does the 1994 Tenancy have any value, since it is non-assignable.”