AXNOLLER EVENTS LIMITED v (1) NIHAL MOHAMMED KAMAL BRAKE (2) ANDREW YOUNG BRAKE [2022] EWHC 365 (Ch)

"31. … in commercial cases where there are many documents available, and witnesses give evidence as to what happened based on their memories, which may be faulty, civil judges nowadays often prefer to rely on the documents in the case, as being more objective: see Gestmin SGPS SPA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) , [22]. Oral evidence and cross-examination are however still important. They enable proper scrutiny of the documents, and they also permit the judge to gauge the personality and motivations of witnesses. 32. The relevant facts in this case go back about fifteen years. The present case is at least partly a commercial case, and there are sufficient written records, letters, emails and so on as to make the Gestmin approach relevant to this case. I will therefore give appropriate weight to both the documentary evidence and the oral evidence, bearing in mind both the fallibility of memory and the relative objectivity of the written evidence available."

"(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."

"30. … Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion ie 'the court is entitled to draw adverse inferences'." [Emphasis added]

"41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules."

"6.3. The Seller and the Receivers do not give any warranty as to vacant possession and the Property is sold subject to the occupation of the Seller and any third parties whether or not they occupy pursuant to any Occupational Agreements as may exist at the date of Completion without obligation on the part of the Seller to identify or define the same and the Buyer having had the opportunity to inspect the property and carry out its own enquiries should be deemed to purchase with full knowledge thereof and shall not raise any objections or requisition in respect thereof. 6.4. For the avoidance of doubt the Buyer shall not be entitled to delay completion or to refuse to complete due to the existence of the Seller or any third party or any chattels belonging to them on the Completion Date. 6.5. The Buyer shall accept the Title of the Seller to the Property which has been deduced in full to the Buyer and shall not raise any requisition or objection in respect of the Title to the Property except in respect of matters arising in the period between the date of this Agreement and Completion. 6.6. Unless expressly stated nothing in this contract will confer any rights on any person pursuant to the Contracts (Rights of Third Parties) Act 1999. [ … ] 6.8. The Seller shall sell with no title guarantee. 6.9. The Seller is selling the Property acting by the Receivers under the provisions of the Charge … [ … ] 6.14. The Buyer acknowledges that the Property has been used for the purpose of running a business which has taken deposits, reservation fees or similar payments in respect of advance bookings. The Buyer acknowledges that it is not purchasing any part of such business and neither the Seller nor the Receivers shall not be liable to pay, refund, make an apportionment for, indemnify or in any other manner reimburse the Buyer in respect of any such deposits whether at Completion or any time thereafter."

"17. During 2015 and 2016, Mrs Foster on behalf of the Claimant assured the Defendants that: (i) for as long as the Claimant owned the Land, the Defendants would have exclusive possession of Axnoller House and the Arena for the Horses; and (ii) they were entitled as of right to use all Access Ways and some grazing land ("the Grazing Land") in common with the Claimant."

"46. In early 2015 I called Saffron Foster, a friend of mine. I knew she had been looking at nearby properties and I wondered if she would be interested in purchasing the Farm. I told her that we would be unable to purchase it. She said she was interested. 47. The Farm was put on the open market in early April by Strutt & Parker LLP and on 7 May 2015 final bids were invited for the farm for 15 May 2015. On or around 5 June 2015 we were informed by Opus LLP that Saffron Foster, or more accurately Sarafina Propertied Ltd (SPL) which was incorporated on 2 June 2015, was the winning bidder. Saffron bid approximately £300,000 more than Lorraine Brehme. In addition, SPL agreed to honour the wedding bookings. 48. Between 2 June 2015 and 17 February 2017, Saffron Foster was the sole shareholder of SPL 49. SPL purchased the Farm without vacant possession and on 23 July 2015 the sale completed. We were not required to move out of Axnoller house nor to vacate the stables. 50. On behalf of SPL Saffron did not require us to move any of our possessions or furniture held in trust for our son from Axnoller House and the horses that were in our care remained in at the indoor arena at Axnoller. She did not tell us at the time, but has said since, that she bought the Farm with the main purpose of ensuring that we would not lose our home. 51. During the run up to the purchase of the Farm by SPL, Mrs Brehme did all that she could to prevent Saffron from purchasing the Farm. In January 2016 an order was made, prohibiting us from communicating with any prospective purchasers and seeking employment with any prospective purchaser without the permission of the Arbitrator or PWF. On top of that, all Parties were obliged to copy each other in to all communications with the Bank, the LPA receiver or its lawyers or agents. … 52. The communications between May 2015 and July 2015 were under the microscope in what has become known in as the S283A trial. It was our case that because of all of the uncertainty caused by Mrs Brehme's actions we did not know until after completion that we would be secure in our home at Axnoller House. The Judge rejected our evidence and preferred the evidence promulgated by the other side that we always knew that we could remain at Axnoller House. Whichever way, once she had completed on the sale Safffron [sic] did make us the promises that both she and we say that she did. 53. In this way once we knew for sure that SPL was the successful bidder, we knew that we would not have to vacate our home and could continue to occupy Axnoller House in the same manner as we had done: ie as owner- occupiers. Saffron did not ask us to allow guests to use Axnoller House but I knew that having the option of doing that, if there was a demand and at times that it did not inconvenience us would increase the revenue from the business. Therefore, Andy and I did carry on as we had since 2012 and if and when we wanted to allow guests to use Axnoller House as overflow accommodation for bridal parties, we would lock up our private quarters and go to the Cottage. 54. On behalf of SPL, Saffron did not use the exact legal words contained in paragraph 17 of the re re amended Defence, but she told us that we could remain at Axnoller House, that the horses could remain with us and that we could continue to run the farm and business in the same way as before and so we did. We trusted Saffron and she trusted us and she was worthy of our trust. 55. The Claimant has alleged that from 4 August until November 2018 that we have always lived at the Cottage and that it allowed us to stay at Axnoller House on an informal basis while some works were being done to it. This is untrue. … Since 2012 we have occupied both Axnoller House and the Cottage. At the Section 283A trial in May 2020, the Judge found that prior to 2012 that our only residence was Axnoller House; from 2012 that we used the Cottage when Axnoller House was let but despite a prolonged period of occupation in 2015, our principal residence was Axnoller House. This he attributed at least in part to the promises made and carried out by Mrs Foster."

"No, no, I am not speculating. Obviously we had -- the -- I can't tell you at this point in time, no matter how good my memory is, what date Mrs Foster specifically said: you can remain at Axnoller House as long as SPL owns the property. I can't tell you the exact date. But I can – Q. You can't? A. But I can tell you that by 23 July she had most certainly made those assurances…"

"31. Before completion there was no formal agreement between Saffron and us to continue to occupy the farm. No one knew what would happen with the bidding. 32. … What I can say with certainty is that when the purchase was complete Saffron, told Alo and Alo told me that she had assured her that we could remain at Axnoller House and could continue to keep the horses in our care in the indoor arena. She was good to her word. 33. The quid pro quo was that we were to run a business from the Farm in order to service the loans which she would be taking on in order to finance the purchase and that I was to farm the 92 acres of land, and as and, [sic] when required, train Saffron's horses and her children's ponies. [ … ]" 39. … Since all of this has happened, Saffron has told us that her main aim was to protect us and allow us to continue living as we always had done at the Farm. I regard her as one of the most honourable people that I have met. [ … ] 62. I have never previously considered what the legal basis of our ongoing occupation of Axnoller House and the Arena. I hadn't had any cause to. All that I knew was that when SPL purchased the Farm we had been assured that nothing would change and that we were to continue to reside at the Farm on the same basis is that we always had done. That was to be the case for as long as the Company owned the Farm. Saffron had assured us of that in 2015. Dr Guy came along and continued those promises in the way that I have outlined above. 63. Both Alo and I understood from Saffron that we had a home for life. Alo told me at the time that during discussions she had with Saffron regarding how the loans were to be serviced and what would happen if sufficient revenue couldn't be generated, Saffron was clear that Axnoller House was our home and that nothing would change that."

"JUDGE MATTHEWS: What I am not clear about is what his answer is to [the] original question, which is: did Mr Brake have any conversation with Mrs Foster at the time in 2015 in which the assurances were given? MR JOHNSON: Yes. JUDGE MATTHEWS: Not did he have a conversation subsequently. MR JOHNSON: Anticipating my submissions I will say that what we got was effectively the answer no to that, my Lord, but if it's unclear -- JUDGE MATTHEWS: I think it's unclear and I want to be clear about this. Mr Brake, are you saying that you did or you did not have any conversation with Mrs Foster in 2015 in which she gave you these assurances? A. She -- at some time shortly after completion she came to Axnoller with a horse and I had a conversation with her then and -- JUDGE MATTHEWS: At some time after completion? A. Yes. JUDGE MATTHEWS: You had a conversation with Mrs Foster at Axnoller? A. Yes, and she said -- I would have said something like thank you so much and she said: well, you're safe now, you're not going to be out on the street. JUDGE MATTHEWS: But that's it? A. Well, that's as much as I can remember."

"5. In early 2015, Alo telephoned me to tell me that her home, Axnoller Farm, was to be sold as a result of the dispute with her former business partner, Lorraine Brehme. I was aware of the dispute between the Brakes and Ms Brehme. [ … ] 7. Alo knew that I had been looking at farms in the area with equestrian facilities with a view to acquiring one. I had looked at a farm very near to Axnoller in the spring of 2014. I knew Axnoller well having been there on numerous occasions. I explained to Alo that I would be interested in making an offer to purchase Axnoller. I did not have capital to purchase it, particularly as the time scales were very tight, so I would need to borrow the money. … 8. From the outset, I was very clear to Alo that I was happy for her, Andy, Tom and their horses to remain at Axnoller. My initial intention was that Alo and Andy would work and develop a business to service the finance. I didn't ever say so to Alo but my only motivation behind purchasing Axnoller was to save her and her family from having nowhere to live. … [ … ] 9. … I wanted to make the Farm to generate an income and employed Rebecca Holt to run it as a wedding venue using the three holidays cottages and the party barn for the weddings. I said Alo and her family could live at the main house. [ … ] 12. In late April 2015, I instructed Michelmores (on recommendation from Alo) and made an offer of £2.5m to buy Axnoller, confirming that vacant possession was not an issue for me. … [ … ] 14. I left Michelmores and Alo in charge of arranging the loan facility and dealing with all of the formalities, including the incorporation of SPL. I trusted Alo completely and, given that my purchase of Axnoller was giving her and her family a place to live, I knew that she would take care of everything. [ … ]"

"6. I told the Brakes on behalf of SPL that that they could continue to reside in Axnoller House and to have exclusive use of it and the arena building which houses their horses."

"4. In early 2015, Mrs Brake, her good friend, telephoned my client to explain that her home, West Axnoller Farm, was to be sold as a result of the dispute with her former business partner, Lorraine Brehme. My client was keen to assist Mr and Mrs Brake and therefore decided to purchase West Axnoller Farm via a company called Sarafina Properties Limited. 5. My client was happy to allow Mr and Mrs Brake to remain at the property. Her initial intention was that Mr and Mrs Brake would develop a wedding and events business which would utilise the property. However, it should be noted that my client's main aim was to ensure that Mr and Mrs Brake did not lose their family home. That being said, my client was of the view that the business would be a success and would generate sufficient profits to service the debt.. 6. My client understands that before final bids were submitted, the Cottage was excluded from the sale. However, my client was of the view that if Sarafina Properties Limited was the successful bidder, then Mr and Mrs Brake could live at Axnoller House. [ … ] 8. The sale of the farm to Sarafina Properties Limited completed on 23 July 2015. As my client intended, Mr and Mrs Brake remained at Axnoller House and the horses in their care remained at the indoor arena. My client understood that the LPA receivers selling on behalf of the bank sold subject to the occupational rights of Mr and Mrs Brake. My client had no concerns of this nature and made it clear to Mr and Mrs Brake that they could continue to live at the property and, in due course, run a business from the property. [ … ] 10. My client would ask the Court to note that she has never had keys to Axnoller House, or ever lived at the property and despite her company owning the property, she would not have turned up unannounced or uninvited. As far as she was concerned, this was Mr and Mrs Brake's family home."

"(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved – (a) at trial, by their oral evidence given in public; and (b) at any other hearing, by their evidence in writing. (2) This is subject – (a) to any provision to the contrary contained in these Rules or elsewhere; or (b) to any order of the court."

"(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally. (2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial."

"(1) If – (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence."

"(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served. (2) Paragraph (1) does not apply if and to the extent that– (a) the witness gives consent in writing to some other use of it; (b) the court gives permission for some other use; or (c) the witness statement has been put in evidence at a hearing held in public."

"27.2. All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless – (1) the court orders otherwise; or (2) a party gives written notice of objection to the admissibility of particular documents."

"(1) Where a party intends to rely on hearsay evidence at trial and either – (a) that evidence is to be given by a witness giving oral evidence; or (b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence; that party complies with section 2(1)(a) of the Civil Evidence Act 1995 serving a witness statement on the other parties in accordance with the court's order. (2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement – (a) inform the other parties that the witness is not being called to give oral evidence; and (b) give the reason why the witness will not be called. (3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which – (a) identifies the hearsay evidence; (b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and (c) gives the reason why the witness will not be called. (4) The party proposing to rely on the hearsay evidence must – (a) serve the notice no later than the latest date for serving witness statements; and (b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so."

"Section 2(1) of the Civil Evidence Act 1995 (duty to give notice of intention to rely on hearsay evidence) does not apply – (a) to evidence at hearings other than trials; (aa) to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence; (b) to a statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceedings; or (c) where the requirement is excluded by a practice direction."

"I've done a million M&A-type transactions, you do not start writing about things that are completely extraneous to the deal, you do not start talking about somebody else giving you assurances, that is something for the disclosure letter and things like that, which Saffron did."

"The 2015 assurances were documented between Dr Guy and Mrs Foster in the disclosure letter and she made it quite clear both at the meeting on 15 December plus in her disclosure letter that she had allowed us to remain at Axnoller from 23 July 2015 until the day that he purchased the business, that she on behalf of SPL allowed us to remain, so we were there legally occupying Axnoller House and the equestrian bit."

"The vendor has made the purchaser aware that she did not purchase West Axnoller Farm with vacant possession and allowed Mr and Mrs Brake to live there between July 2015 and the present date."

"Well, because it's patently obvious that she told Geoffrey that she had allowed to us remain at Axnoller between July when the company purchased the farm and the date that this document was signed. So he was fully aware that we were there lawfully and upon her say-so."

"Because this deals with warranties in the SPA, why would it?"

"JUDGE MATTHEWS: You said the disclosure letter had them. A. Well, not the assurances in the terms that they are written in her witness statements or in the letter from Isadore Goldman because it's not -- when you are doing a deal you don't start -- JUDGE MATTHEWS: All right. You say: well, they are not in the disclosure letter. A. They are not but she did disclose it, yes -- JUDGE MATTHEWS: Sorry, I want to be clear what your evidence is. Your evidence is therefore, to me, that the disclosure letter does not contain the 2017 promises? A. Well, not the promises. JUDGE MATTHEWS: The 2015 assurances? A. The disclosure letter discloses that she allowed to us stay lawfully. JUDGE MATTHEWS: Yes, that we've seen. That's the bit you've been taken to. But it doesn't contain anything about the 2015 assurances? A. Well, in the judgment, your judgment in the section 283A trial, my Lord, you specifically referred to this document as evidencing the assurances and that's why I -- JUDGE MATTHEWS: Did I? A. You did."

"On 17 February 2017, Chedington bought all the shares in Sarafina Properties Ltd from Mrs Foster. A disclosure letter provided by her as vendor on the same date said: 'The Vendor has made the Purchaser aware that she did not purchase West Axnoller Farm with vacant possession and allowed Mr and Mrs Brake to live there between July 2015 and the present date'."

"Q. Do you see 27 June 2016? A. Yes. Q. There is a standing order for Alice Wyatt in relation to a car. A. Yes. Q. What is Alice Wyatt's car doing on these bank statements? A. I'm not really sure what this has do with possession but I'm going to say to his Lordship I'm not -- I don't understand what this has to do with our remaining rights to Axnoller House. JUDGE MATTHEWS: I think you must answer. A. I'll answer the question, it's fine, I have no problem with it. Alice had essentially -- this car was a car used in the business and that Alice had lent us, had basically done the finance for it. Q. It was your car, Mrs Brake, wasn't it? A. Well, no -- well, yes, I used the car, amongst other people. Q. And the reason it was in Alice Wyatt's name was to conceal it from your trustee in bankruptcy and your creditors? A. I don't think it's in any way unlawful for a family member to buy you a car and that's what happened."

"Q. This was your parking ticket, wasn't it, Mrs Brake? A. The reason why Alice is dealing with is because she owns the car, right? So that's the first point. The second point is I cannot tell you at this stage that – whether Alice had come to visit or anything or whether she got a ticket. So that's the best I can -- Q. It's much simpler than that, isn't it, Mrs Brake? A. Well, it could be -- it could be my parking ticket. Q. Just wait for the question. This was your parking ticket and you wrote the email that we see at the foot of page 4288.1 while pretending to be Alice Wyatt? A. No, I don't think so. Q. You were effectively deceiving the people to whom you were making the appeal? A. Well, if I was -- I don't have a recollection of this incident because it's really, really small; I mean, it's just a parking ticket."

"Q. The explanation for all of this, Mrs Brake, is this, isn't it: you had put your car into the name of Mr Brake's niece to avoid your trustee in bankruptcy and creditors becoming aware that you were operating a car and you maintained that fiction when you appealed against the penalty notice? A. Absolutely not. Two questions there, not one. But the first one is Alice owned the car. It was financed fully, so actually the finance company owned the car and Alice let us use it. There's no -- there was no deceit about that. We did not own the car. And it was none of the trustees' business about whether Alice wanted to finance a car that we drove because you are allowed to have family help you when you're bankrupt is. It's not against the law. So that's the answer to your first question. The answer to your second question, whether there was some kind of deceit going on with the parking people, to be honest I can't remember but it may be that there was a porkie pie told but I don't remember and it wasn't some great scheme, it was simply that a parking ticket was given and so we just dealt with it, but I don't know. Q. I take it from that answer that you accept that you wrote the email -- A. No, I don't. Q. -- at the foot of the page. Just wait for the question. A. Sorry. Q. I take it from that answer that you accept that you wrote the email at the foot of page 2488.1? A. It could as easily have been Simon. I just didn't write it. I don't have a recollection of this email particularly. It wasn't a big thing in my life."

"Would you say, Sherryl, that I wanted the business to succeed? A. Yes. Q. Would you say that I treated it like my own? A. Yes. Q. Would you have difficulty of even identifying that I didn't own the business? A. Yes. Q. It looked like it was my business, didn't it? A. Yes. Q. I've always acted like it was my business? A. Yes. Q. My baby? A. Yes."

"A. I'm heavily involved in anything I am absolutely a control freak you are absolutely right I am not someone who says you know oh I didn't know that happened, yes, you are right."

"I am a controlling and – I, like, have to have control of the situation…"

"I am going to send you the bank statement for June as I would like you to reconcile the wedding payments from each wedding that we have not yet done (and show Simon how you do it) and also I would like to be sure that we have not overpaid (accidentally) any suppliers et cetera. Also please can you get together the files for the June management accounts so that Simon is not left floundering trying to do those. He can do the last day. Thank you."

"I was slightly concerned about the cost of the loans and therefore did consider that there was an element of risk but I was satisfied that I could eventually cover the cost by income generated by the farm. I own a wedding venue in Australia and know they can generate good levels of profit"

"In terms of us being set up as directors of Sarafina I think wait until I tell you. It may be useful not to be until the affairs of Stay in Style are finally put to bed."

"Dear Alo Please find the bank details below. They are for both my personal account and also the tax money. Alder will hold both so I don't spend it! However I am going to pay off my credit card. And take the kids to Lanzarote (not nearly glamorous enough for you!) I really am so excited and grateful you have given me the option to pay my school fees as it does worry Charley and I so much. THANK YOU no one ever does anything like that for me. I am so pleased that it has worked out for you and Andy. It has been a pleasure to help. Now I think you and Andy should take some time out. So bloody likely! I'm longing to see the table you bought… See you when I'm back from Oz."

"Hon Saff Fortune favours the brave! You were incredibly brave to trust me and to lend us your very good name (as opposed to using our appallingly bad name)! I can't imagine why no one does things like that for you. You are lovely. Mad as a box of frogs but lovely. I will sort out the money on Monday and email you when done. Don't forget to sign the docs that C shredded and get them witnessed by the butler. Seriously Saff if you or Charley ever need us just ask. Both Andy and I are eternally grateful to you. Love you muchly. Sláinte Alo"

"29. I have been shown my e-mail exchange with Alo in February 2017. Alo was always very thankful to me because I had been able to purchase Axnoller when she could not. I had made clear to Geoffrey that I would probably gift the profit to Alo and Andy if I could (I did not know exactly what would be available after I had paid all of my expenses and tax). When I told Alo that I was going to do this she refused to accept it. I said that she needed money and I did not. She told me that I must have something that I could use the money for and she suggested school fees. I was amazed that she was refusing to accept money when she had nothing. I come from a wealthy family and everyone assumes that I have a lot of money. No one ever tries to give me anything. In fact, although our family has money it is tied up in various trusts. Regular expenses such as school fees are something that concern me. The purpose of my email was to thank Alo for thinking of my needs. Whilst my appreciation may seem odd to Geoffrey, it makes perfect sense to me and frankly, I do not see how my actions, intentions and responses can possibly be misconstrued as an attempt to defraud anyone."

"the clear evidence that shows that Dr Guy took an active part in negotiating the purchase price and the way in which it should be allocated."

"24. Instead of such a split across two companies, I suggested Mrs Brake consider a gift in relation to her arrangements with Mrs Foster. It was, however, entirely a matter for her and Mrs Foster. 25. Further, there was never any suggestion that the Brakes would receive the entirety of the business profits of SPL / AEL. I was never privy to the anticipated profit share."

"76. On 31 October 2016 I received a call from Dr Guy. He telephoned during the day and asked if his daughter and her trainer could use the indoor arena that he had spotted on Google Maps. I was not very forthcoming and simply told him that the indoor arena was unfinished and could not be used commercially. He was undeterred and asked if there was a deal to be done whereby, he could pay to finish the building. I explained that we did not own the farm and that it was owned by Saffron Foster. I said I doubted she would have any interest. Still insistent, he asked if he could come and see me. Before I had time to really think about things, he arrived on our doorstep in his open top Bentley. [ … ] 78. As soon as Dr Guy left, I rang Saffron and relayed to her the events of the day. We were both still suspicious that this was a rouse [sic]. She said to me that really, it was entirely up to Andy and me whether we wanted to enter into discussions with this man. … [ … ] 85. Having spoken to Saffron and with her input on 7 November 2016 we went over to Chedington Court. Dr Guy wanted to pin down some of the variables and on 8 November 2016 in an email timed at 20:57 I wrote to Dr Guy again, this time I told him essentially what Saffron had said to me. I told him that I had finally managed to pin down Saffron that whilst she said she would be prepared to sell in principle, it would only be with our blessing. She had reminded me that when she bought the Farm, she had done so to keep a roof over our head and to allow us to have a livelihood, that was a promise that she had made to us. She had indicated that she would be happy with circa £4M for the property and if we wanted to do a deal then it was up to us to negotiate whatever deal we wanted to in terms of the business. [ … ] 89. By 8 November 2016, we were at the point of trying to arrive at a valuation for the Farm. Dr Guy wrote to me and said that he hoped to have the 'size of deal' worked out by Friday. This was in response to my email to him of 8 November attaching detailed projections of the future turnover expectations of the business. On 9 November saying he was very encouraged by the projections and suggesting we meet so we could 'flex the model'. We met on 11 November and at the meeting Dr Guy and I discussed the methodology for arriving at a valuation. [ … ] 90. It was in this way that Dr Guy and I arrived at a figure to be paid to us as part of the deal. In Dr Guy's eyes this was to compensate us for the current and future value of our input into the business – the Golden Handshake."

"7. Shortly before completion, my client discovered that Lorraine Brehme had obtained certain injunctions which would prevent Mr and Mrs Brake from working in a wedding and events business for 6 months. Therefore, my client decided that for those six months, she would utilise the services of Mr Brake as a farmer. My client has told me that she had a huge degree of confidence in Mr Brake's farming abilities. 8. The sale of the farm to Sarafina Properties Limited completed on 23 July 2015. As my client intended, Mr and Mrs Brake remained at Axnoller House and the horses in their care remained at the indoor arena. My client understood that the LPA receivers selling on behalf of the bank sold subject to the occupational rights of Mr and Mrs Brake. My client had no concerns of this nature and made it clear to Mr and Mrs Brake that they could continue to live at the property and, in due course, run a business from the property. 9. As far as my client was aware, the entire contents of Axnoller House belonged to Mr and Mrs Brake and nothing was moved from the property on or around 23 July 2015. 10. My client would ask the Court to note that she has never had keys to Axnoller House, or ever lived at the property and despite her company owning the property, she would not have turned up unannounced or uninvited. As far as she was concerned, this was Mr and Mrs Brake's family home. 11. My client recalls that in late 2016, Mrs Brake informed her that Dr Guy had visited the farm and asked if it was available to buy. My client's initial view was this was not a serious offer and that perhaps it was a rouse [sic] orchestrated by Lorraine Brehme. The property was not for sale and my client had not expressed an intention of selling it. 12. On this basis, my client asked Mrs Brake to negotiate the sale of the farm to Dr Guy but to start with a high sale price and to see what happened. 13. My client understands that after some negotiation between Dr Guy and Mrs Brake a sale price was agreed and that a part of that sale price would be paid to Mr and Mrs Brake. My client further understands that Dr Guy received tax and financial advice that the sale of the shares in the company which owned the property would be the best way to deal with the sale. Therefore, the money for the shares was due to my client (less any amounts required to repay any debt). 14. As part of the discussions regarding the sale, my client recalls meeting Dr Guy on 16 December 2016. From her perspective, the key points discussed were as follows: a. That the farm was purchased out of receivership in 2015, without vacant possession, b. That she had procured the purchase of the farm to save Mr and Mrs Brake from losing their home and livelihood. c. That she had allowed Mr and Mrs Brake to remain at Axnoller House and to keep the horses at the farm. d. That she had allowed the weddings that were already booked to be honoured. e. That she had never lived at the farm or had any day to day involvement in the running of the business. f. That Mr and Mrs Brake were prevented from working for the business for 6 months but that after that they played an active role. [ … ]"

"214. I telephoned Mrs Foster in or around the end of January and asked her if she would provide a witness statement in these proceedings. She said that although she had received threatening letters from Dr Guy's solicitors in 2020, she would. However, a short time after this, Mrs Foster telephoned me and said that her father Lord Vestey had died. Her stepmother had died shortly before him. "215. On Mrs Foster phoned me in tears. She said that she was not coping at all well with the death of her father and stepmother and was not well. She said she could not give evidence because she felt so intimidated by Dr Guy who was threatening to sue her for fraud and whilst at her best, she would have come to Court to confirm her position. She was not well enough to do so now. She said that she would provide a statement to her solicitor, which she has."

"25. Dr Guy promised that, in the event that he (via his investment vehicle) purchased the share in SPL/the Claimant and the Claimant wished to obtain vacant possession: (i) a sum would be paid in compensation to terminate the occupation rights of the Defendants; (ii) that sum would be sufficient to enable the Defendants to find an alternative property with similar facilities for them and the Horses; and (iii) in any event, vacant possession would not be sought until the expiration of the period of five years from the date of the share purchase or when a suitable property was found to enable the Defendants to move there. ('the 2017 Promise')."

"27. Mrs Foster and the Defendants were induced by the 2017 Promise to agree to Dr Guy (through his investment vehicle) acquiring control of the Claimant and to replace Mrs Foster as the individual with responsibility for observing and protecting the Defendants' rights to occupy Axnoller House and to have exclusive use of the Arena. 28. To reflect the 2017 Promise, written heads of terms were circulated to the Defendants and Mrs Foster in January 2017, providing for the Defendants to remain at Axnoller House for five years after the share sale. Dr Guy confirmed his agreement to these terms which, of necessity, included an agreement on behalf of the Claimant once it became under Dr Guy's control. No contract was executed. The Defendants were agreeable to the termination of their occupation rights but only upon the fulfilment by the Claimant of the 2017 Promise."

"There wasn't one meeting where he said this is going to happen or these are the promises. This was a series – a period of time between November 2016 and actually April 2017 when he made a series of promises on behalf of SPL…"

"Q. Again no sign of the 2017 promise. So, Mrs Brake, the question to you is this: where is it? A. It's in the disclosure letter. Q. What disclosure letter? A. Sorry, the 2015? Q. No, I am talking about – we've now looked at four documents described as heads of terms subject to contract. A. Yes. Q. There is no sign of the 2017 promise in any of them. A. In all – there are many, many documents that evidenced the 2017 promises from Dr Guy. They are in the form of emails, contracts of employment, meeting notes and the Heads of Terms would not be the right place to start talking about everything that has been promised between the parties because that is not how you do a deal."

"22. In the course of the negotiations my wife and I only met with Mrs Foster once for about 40 minutes which I believe, having refreshed my memory by reference to an email referring to the meeting, took place on 15 December 2016 [70] at my home, Chedington Court. My wife, Kate, and Mrs Brake were also there. Nothing of substance was discussed, by this time the heavy lifting on negotiation was done and the principal terms of the deal such as price, vacant possession and share sale had been agreed and were reflected in a heads of terms document which had been passed to the lawyers. I recall Mrs Foster expressed how pleased she was that a solution had been found that allowed the Brakes to continue working at the Estate and she hoped the deal would be concluded. She made no reference to the Brakes residing at Axnoller House nor any arrangement whatsoever in that respect."

"110. On 15 December 2016, Dr and Mrs Guy met with Saffron to discuss the deal. The meeting lasted around 2 hours. Andy and I were also there. Saffron told him that she: a) had bought the Farm out of receivership in 2015, without vacant possession, b) had done so to save us from losing our home, and livelihood. c) had allowed us to remain at Axnoller House and to keep the horses at the Farm. d) had allowed the weddings that were already booked to be honoured. e) had never lived at the Farm or run the business. f) Andy and I were prevented from working for the business for 6 months but that after that they ran it for her. I told him again about: a) the Partnership dispute, and the problems with Lorraine Brehme b) The Court Orders Lorraine Brehme had obtained, including the Freezing Injunction and the Orders preventing them buying the Farm or working for the business for 6 months."

"14. As part of the discussions regarding the sale, my client recalls meeting Dr Guy on 16 December 2016. From her perspective, the key points discussed were as follows: a. That the farm was purchased out of receivership in 2015, without vacant possession, b. That she had procured the purchase of the farm to save Mr and Mrs Brake from losing their home and livelihood. c. That she had allowed Mr and Mrs Brake to remain at Axnoller House and to keep the horses at the farm. d. That she had allowed the weddings that were already booked to be honoured. e. That she had never lived at the farm or had any day to day involvement in the running of the business. f. That Mr and Mrs Brake were prevented from working for the business for 6 months but that after that they played an active role."

"32. I had made clear early in the negotiations that I expected vacant possession and there was no negotiation on the point, as it was a given from day one, and that was part of the justification for the high price of £7m that I agreed to pay. Had it been raised as an issue at any point it would have featured heavily in discussions. I do not believe I would have agreed to buy the Estate without vacant possession. … "

"1. INTERPRETATION In this Agreement (including the Schedules) the words and expressions listed in Part 1 of Schedule 3 shall (unless the context otherwise requires) have the meanings set out therein and the provisions of Part 2 of Schedule 3 shall apply to the interpretation of this Agreement. 2. SALE AND PURCHASE The Vendor shall sell and the Purchaser shall purchase the Sale Share subject to the terms of this Agreement and with full title guarantee. 3. CONSIDERATION 3.1. Subject to adjustment in accordance with the provisions of this Agreement the total consideration for the sale of the Sale Share shall be: 3.1.1. the sum of … £3,288,244.61 which shall be satisfied in cash upon Completion (the "

"The Vendor has made the Purchaser aware that she did not purchase West Axnoller Farm with vacant possession and allowed Mr and Mrs Brake to live there between July 2015 and the present date."

"Although these will still need tweaking and bonus plans to be agreed, would you be kind enough to look over them and see that you are happy with the proviso that we look at them properly when there is more time? I have followed the Heads of Terms which I have attached."

"b. Once the requirements for 'vacant possession' are fulfilled, Mr and Mrs Brake, their son, staff and horses will be allowed to continue to occupy Axnoller House and West Axnoller Cottage in the manner that they do now at peppercorn rent until 31 March 2018 on a licence or assured shorthold tenancy. For the avoidance of doubt the charges to be paid by the Acquirer include all utility charges associated with Axnoller House but not West Axnoller Cottage."

"I think you know our circumstances. We need to vacate Axnoller House as the business has grown and we need it to be employed permanently in the business. From that point of view Wellwood is perfect for us. … You are aware that we are cash buyers … As you know we would be able to move very fast to completion."

"5. Obligations of Employer [ … ] 5.9. To allow Mr and Mrs Brake and their son Tom to occupy Axnoller House on licence or assured shorthold tenancy for peppercorn rent until at least 1 April 2018. For avoidance of doubt, the Employer will be responsible for the payment of all utility and council tax charges of Axnoller House but not West Axnoller Cottage unless otherwise agreed. [ … ]"

"The following conditions will apply during the garden leave period: You must vacate Axnoller House and move back to your place of residence, The Cottage, by close of business on 9th November; You must return any property belonging to [AEL] or [Chedington] still in your possession to Colin Maddock by close of business on 9th November. … You are no longer required to attend work unless specifically requested to do so. You must refrain from attending West Axnoller Farm or any premises belonging to [AEL] or [Chedington], unless requested to do so; You must not contact any of our customers, suppliers, employees, officers or representatives; You shall remain employed by [AEL/Chedington] and must be available during normal working hours to deal with any work related matters that may arise; You must not undertake any other business or profession without our prior written consent, or be or become an employee, officer or agent of any other firm, company or person. You must remove all your property from West Axnoller Farm, Axnoller House and from any other premises owned by [AEL] and/or [Chedington]. This includes removing all your furniture, vehicles, machinery and horses out of our properties by 30 th November, at the latest."

"On behalf of the Licensor, we hereby give You notice of termination in respect of any licence to occupy or use the Property and/or any of the land and buildings at West Axnoller Farm, Beaminster DT8 3SH as shown outlined in red on the enclosed plan and which are owned by the Licensor ("

"I think must have been because I know that at the end of it there was some document called settlement or something like that which presumably deals with employment"

"Dear Stuart, I can confirm that we were not employed [by Sarafina]"

"4.1. The title of the job which you are employed to do is Facilities and Land Manager at West Axnoller Farm, but you are also required to undertake such other roles and duties as the Employer considers appropriate having regard to your skills and experience. 4.2. You are employed to carry out the following duties: 4.2.1. Responsibility for the general management, upkeep and running of the Land, gardens and buildings at West Axnoller Farm; including all day-to-day management and running thereof. This includes all the land and buildings at West Axnoller Farm and is not limited to the buildings and land occupied by the events and wedding business and includes all land and buildings at West Axnoller Farm. 4.2.2. Responsibility for liaising with any tenants and occupiers of the Equestrian facility, West Axnoller Cottage (once acquired) and West Axnoller Bungalow and managing and coordinating any work required to the land and outside spaces at West Axnoller Farm. 4.2.3. In consultation with the Employer, responsibility for the scheduling and logistics of the development works at West Axnoller Farm. 4.3. In addition to your normal duties, you may be required to undertake further duties from time to time. [ …] 5.2. Your Employer undertakes to ensure that any occupiers of the land only stock the land in consultation with you and in line with the widely accepted standards of both land and animal husbandry and so as not to ruin the view of the wedding and event business with overstocked, trampled and untidy fields."

"rustic chic", as Mrs Brake put it in evidence. Mr Brake in cross-examination put it this way (day 14, page 99): "

"29. My Lords, this appeal is concerned with proprietary estoppel. An academic authority (Simon Gardner, An Introduction to Land Law (2007), p 101) has recently commented: 'There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither).' Nevertheless most scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance: see Megarry & Wade, The Law of Real Property , 7th ed (2008), para 16–001; Gray & Gray, Elements of Land Law , 5th ed (2009), para 9.2.8; Snell's Equity , 31st ed (2005), paras 10–16 to 10–19; Gardner, An Introduction to Land Law (2007), para 7.1.1."

"24.— Assured agricultural occupancies. (1) A tenancy or licence of a dwelling-house is for the purposes of this Part of this Act an "assured agricultural occupancy" if— (a) it is of a description specified in subsection (2) below; and (b) by virtue of any provision of Schedule 3 to this Act the agricultural worker condition is for the time being fulfilled with respect to the dwelling-house subject to the tenancy or licence. (2) The following are the tenancies and licences referred to in subsection (1)(a) above— (a) an assured tenancy which is not an assured shorthold tenancy; (b) a tenancy which does not fall within paragraph (a) above by reason only of paragraph 3 [, 3A, 3B] or paragraph 7 of Schedule 1 to this Act ([or more than one of those paragraphs]) [and is not an excepted tenancy]; and (c) a licence under which a person has the exclusive occupation of a dwelling-house as a separate dwelling and which, if it conferred a sufficient interest in land to be a tenancy, would be a tenancy falling within paragraph (a) or paragraph (b) above. [(2A) For the purposes of subsection (2)(b) above, a tenancy is an excepted tenancy if it is— (a) a tenancy of an agricultural holding within the meaning of the Agricultural Holdings Act 1986 in relation to which that Act applies, or (b) a farm business tenancy within the meaning of the Agricultural Tenancies Act 1995.] (3) For the purposes of Chapter I above and the following provisions of this Chapter, every assured agricultural occupancy which is not an assured tenancy shall be treated as if it were such a tenancy and any reference to a tenant, a landlord or any other expression appropriate to a tenancy shall be construed accordingly; but the provisions of Chapter I above shall have effect in relation to every assured agricultural occupancy subject to the provisions of this Chapter. (4) Section 14 above shall apply in relation to an assured agricultural occupancy as if in subsection (1) of that section the reference to an assured tenancy were a reference to an assured agricultural occupancy. 25.— Security of tenure. (1) If a statutory periodic tenancy arises on the coming to an end of an assured agricultural occupancy— (a) it shall be an assured agricultural occupancy as long as, by virtue of any provision of Schedule 3 to this Act, the agricultural worker condition is for the time being fulfilled with respect to the dwelling-house in question; and (b) if no rent was payable under the assured agricultural occupancy which constitutes the fixed term tenancy referred to in subsection (2) of section 5 above, subsection (3)(d) of that section shall apply as if for the words "the same as those for which rent was last payable under" there were substituted "monthly beginning on the day following the coming to an end of". (2) In its application to an assured agricultural occupancy, Part II of Schedule 2 to this Act shall have effect with the omission of Ground 16. (3) In its application to an assured agricultural occupancy, Part III of Schedule 2 to this Act shall have effect as if any reference in paragraph 2 to an assured tenancy included a reference to an assured agricultural occupancy. (4) If the tenant under an assured agricultural occupancy gives notice to terminate his employment then, notwithstanding anything in any agreement or otherwise, that notice shall not constitute a notice to quit as respects the assured agricultural occupancy. (5) Nothing in subsection (4) above affects the operation of an actual notice to quit given in respect of an assured agricultural occupancy."

"1.— (1) In this Schedule— "the 1976 Act" means the Rent (Agriculture) Act 1976; "agriculture" has the same meaning as in the 1976 Act; and "relevant tenancy or licence" means a tenancy or licence of a description specified in section 24(2) of this Act. (2) In relation to a relevant tenancy or licence— (a) "the occupier" means the tenant or licensee; and (b) "the dwelling-house" means the dwelling-house which is let under the tenancy or, as the case may be, is occupied under the licence. (3) Schedule 3 to the 1976 Act applies for the purposes of this Schedule as it applies for the purposes of that Act and, accordingly, shall have effect to determine— (a) whether a person is a qualifying worker; (b) whether a person is incapable of whole-time work in agriculture, or work in agriculture as a permit worker, in consequence of a qualifying injury or disease; and (c) whether a dwelling-house is in qualifying ownership. 2. The agricultural worker condition is fulfilled with respect to a dwelling-house subject to a relevant tenancy or licence if— (a) the dwelling-house is or has been in qualifying ownership at any time during the subsistence of the tenancy or licence (whether or not it was at that time a relevant tenancy or licence); and (b) the occupier or, where there are joint occupiers, at least one of them— (i) is a qualifying worker or has been a qualifying worker at any time during the subsistence of the tenancy or licence (whether or not it was at that time a relevant tenancy or licence); or (ii) is incapable of whole-time work in agriculture or work in agriculture as a permit worker in consequence of a qualifying injury or disease. 3.— (1) The agricultural worker condition is also fulfilled with respect to a dwelling-house subject to a relevant tenancy or licence if— (a) that condition was previously fulfilled with respect to the dwelling-house but the person who was then the occupier or, as the case may be, a person who was one of the joint occupiers (whether or not under the same relevant tenancy or licence) has died; and (b) that condition ceased to be fulfilled on the death of the occupier referred to in paragraph (a) above (hereinafter referred to as "the previous qualifying occupier"); and (c) the occupier is either— (i) the qualifying [surviving partner] of the previous qualifying occupier; or (ii) the qualifying member of the previous qualifying occupier's family. [(2) For the purposes of sub-paragraph (1)(c)(i) above and sub-paragraph (3) below– (a) "surviving partner" means widow, widower or surviving civil partner; and (b) a surviving partner of the previous qualifying occupier of the dwelling-house is a qualifying surviving partner if that surviving partner was residing in the dwelling-house immediately before the previous qualifying occupier's death.] (3) Subject to sub-paragraph (4) below, for the purposes of sub-paragraph (1)(c)(ii) above, a member of the family of the previous qualifying occupier of the dwelling-house is the qualifying member of the family if— (a) on the death of the previous qualifying occupier there was no qualifying [surviving partner]; and (b) the member of the family was residing in the dwelling-house with the previous qualifying occupier at the time of, and for the period of two years before, his death. (4) Not more than one member of the previous qualifying occupier's family may be taken into account in determining whether the agricultural worker condition is fulfilled by virtue of this paragraph and, accordingly, if there is more than one member of the family— (a) who is the occupier in relation to the relevant tenancy or licence, and (b) who, apart from this sub-paragraph, would be the qualifying member of the family by virtue of sub-paragraph (3) above, only that one of those members of the family who may be decided by agreement or, in default of agreement by the county court, shall be the qualifying member. [(5) For the purposes of sub-paragraph (2)(a) above, a person who, immediately before the previous qualifying occupier's death, was living together with the previous occupier as if they were a married couple or civil partners shall be treated as the widow, widower or surviving civil partner of the previous occupier.] (6) If, immediately before the death of the previous qualifying occupier, there is, by virtue of sub-paragraph (5) above, more than one person who falls within sub-paragraph (1)(c)(i) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be treated as the qualifying [surviving partner] for the purposes of this paragraph. 4. The agricultural worker condition is also fulfilled with respect to a dwelling-house subject to a relevant tenancy or licence if— (a) the tenancy or licence was granted to the occupier or, where there are joint occupiers, at least one of them in consideration of his giving up possession of another dwelling-house of which he was then occupier (or one of joint occupiers) under another relevant tenancy or licence; and (b) immediately before he gave up possession of that dwelling-house, as a result of his occupation the agricultural worker condition was fulfilled with respect to it (whether by virtue of paragraph 2 or paragraph 3 above or this paragraph); and the reference in paragraph (a) above to a tenancy or licence granted to the occupier or at least one of joint occupiers includes a reference to the case where the grant is to him together with one or more other persons. 5.— (1) This paragraph applies where— (a) by virtue of any of paragraphs 2 to 4 above, the agricultural worker condition is fulfilled with respect to a dwelling-house subject to a relevant tenancy or licence (in this paragraph referred to as "the earlier tenancy or licence"); and (b) another relevant tenancy or licence of the same dwelling-house (in this paragraph referred to as "the later tenancy or licence") is granted to the person who, immediately before the grant, was the occupier or one of the joint occupiers under the earlier tenancy or licence and as a result of whose occupation the agricultural worker condition was fulfilled as mentioned in paragraph (a) above; and the reference in paragraph (b) above to the grant of the later tenancy or licence to the person mentioned in that paragraph includes a reference to the case where the grant is to that person together with one or more other persons. (2) So long as a person as a result of whose occupation of the dwelling-house the agricultural worker condition was fulfilled with respect to the earlier tenancy or licence continues to be the occupier, or one of the joint occupiers, under the later tenancy or licence, the agricultural worker condition shall be fulfilled with respect to the dwelling-house. (3) For the purposes of paragraphs 3 and 4 above and any further application of this paragraph, where sub-paragraph (2) above has effect, the agricultural worker condition shall be treated as fulfilled so far as concerns the later tenancy or licence by virtue of the same paragraph of this Schedule as was applicable (or, as the case may be, last applicable) in the case of the earlier tenancy or licence."

"1.— Interpretation and commencement. (1) In this Act— (a) "agriculture" includes— (i) dairy-farming and livestock keeping and breeding (whether those activities involve the use of land or not); (ii) the production of any consumable produce which is grown for sale or for consumption or other use for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not); (iii) the use of land as grazing, meadow or pasture land or orchard or osier land; (iv) the use of land for market gardens or nursery grounds; and (v) forestry; (b) "forestry" includes— (i) the use of land for nursery grounds for trees, and (ii) the use of land for woodlands where that use is ancillary to the use of land for other agricultural purposes. (2) For the purposes of the definition in subsection (1)(a) above— "consumable produce" means produce grown for consumption or other use after severance or separation from the land or other growing medium on or in which it is grown; "livestock" includes any animal which is kept for the production of food, wool, skins, or fur or for the purpose of its use in the carrying on of any agricultural activity, and for the purposes of this definition "animal" includes bird but does not include fish."

"SCHEDULE 3 PROTECTED OCCUPIERS IN THEIR OWN RIGHT PART I DEFINITIONS Qualifying worker 1. A person is a qualifying worker for the purposes of this Act at any time if, at that time, he has worked whole-time in agriculture, or has worked in agriculture as a permit worker, for not less than 91 out of the last 104 weeks. 2.— (1) A person is, for the purposes of this Act, incapable of whole-time work in agriculture in consequence of a qualifying injury or disease if— (a) he is incapable of such work in consequence of— (i) an injury or disease prescribed in relation to him, by reason of his employment in agriculture, under section 76(2) of the Social Security Act 1975, or (ii) an injury caused by an accident arising out of and in the course of his employment in agriculture, and (b) at the time when he became so incapable, he was employed in agriculture as a whole-time worker. (2) A person is, for the purposes of this Act, incapable of work in agriculture as a permit worker in consequence of a qualifying injury or disease if— (a) he is incapable of such work in consequence of any such injury or disease as is mentioned in sub-paragraph (1) above, and (b) at the time when he became so incapable, he was employed in agriculture as a permit worker. (3) Where— (a) a person has died in consequence of any such injury or disease as is mentioned in sub-paragraph (1) above, and (b) immediately before his death, he was employed in agriculture as a whole-time worker, or as a permit worker, he shall be regarded for the purposes of this Act as having been, immediately before his death, incapable of whole-time work in agriculture, or work in agriculture as a permit worker, in consequence of a qualifying injury or disease. 3.— (1) A dwelling-house in relation to which a person ("the occupier") has a licence or tenancy is in qualifying ownership for the purposes of this Act at any time if, at that time, the occupier is employed in agriculture and the occupier's employer either— (a) is the owner of the dwelling-house, or (b) has made arrangements with the owner of the dwelling-house for it to be used as housing accommodation for persons employed by him in agriculture. (2) In this paragraph— "employer", in relation to the occupier, means the person or, as the case may be, one of the persons by whom he is employed in agriculture; "owner", in relation to the dwelling-house, means the occupier's immediate landlord or, where the occupier is a licensee, the person who would be the occupier's immediate landlord if the licence were a tenancy. Supplemental 4.— (1) The provisions of this paragraph shall have effect for determining what is whole-time work in agriculture for the purposes of this Part of this Schedule. (2) A person works whole-time in agriculture for any week in which— (a) he is employed to work in agriculture, and (b) the number of hours for which he works in agriculture, or in activities incidental to agriculture, for the person or persons by whom he is so employed is not less than the standard number of hours. (3) Where a person is employed in agriculture as a whole-time worker, any week in which by agreement with his employer or, where he has two or more employers, by agreement with the employer or employers concerned he works less than the standard number of hours shall count as a week of whole-time work in agriculture. (4) If in any week a person who is employed in agriculture as a whole-time worker is, for the whole or part of the week— (a) absent from work in agriculture by reason of his taking a holiday to which he is entitled, or (b) absent from work in agriculture with the consent of his employer or, where he has two or more employers, with the consent of the employer or employers concerned, or (c) incapable of whole-time work in agriculture in consequence of an injury or disease (whether a qualifying injury or disease or not), that week shall count as a week of whole-time work in agriculture. (5) If in any week a person (whether employed in agriculture as a whole-time worker or not) is, for the whole or part of the week, incapable of whole-time work in agriculture in consequence of a qualifying injury or disease, that week shall count as a week of whole-time work in agriculture. 5.— (1) The provisions of this paragraph shall have effect for determining what is work in agriculture as a permit worker for the purposes of this Part of this Schedule. (2) A person works in agriculture as a permit worker for any week in which he works in agriculture as an employee for the whole or part of the week and there is in force in relation to him a permit granted under section 5 of the Agricultural Wages Act 1948. (3) If in any week a person who is employed in agriculture as a permit worker is, for the whole or part of the week— (a) absent from work in agriculture by reason of his taking a holiday to which he is entitled, or (b) absent from work in agriculture with the consent of his employer or, where he has two or more employers, with the consent of the employer or employers concerned, or (c) incapable of work in agriculture as a permit worker in consequence of an injury or disease (whether a qualifying injury or disease or not), that week shall count as a week of work in agriculture as a permit worker. (4) If in any week a person (whether employed in agriculture as a permit worker or not) is, for the whole or part of the week, incapable of work in agriculture as a permit worker in consequence of a qualifying injury of disease, that week shall count as a week of work in agriculture as a permit worker. 6. For the purposes of this Part of this Schedule a person is employed in agriculture as a whole-time worker if he is employed to work in agriculture by the week, or by any period longer than a week, and the number of hours for which he is employed to work in agriculture, or in activities incidental to agriculture, in any week is not less than the standard number of hours. [ … ] PART III SUPPLEMENTAL [ … ] 12.— (1) In this Schedule "the standard number of hours" means 35 hours or such other number of hours as may be specified in an order made by the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly."

"The holding is unquestionably used for pasture, grazing and haymaking, which is agriculture; and if you stop there, it cannot be doubted that the holding is agricultural land within the meaning of the Act. Assuming that the breeding of horses is not 'livestock breeding,' and so not agricultural, does it make any difference that the holding is also used, to the extent and in the way I have indicated, for that purpose? I share the view of the learned county court judge that it does not. The activities in relation to the stud farm which I have described, so far as they consist of the grazing of horses, pasturing of cattle and making of hay, are clearly agricultural. So far as they consist of the breaking-in of horses for riding, the little schooling that is done, the showing of horses to customers, and the jumps and jumping on the five-acre field I have mentioned, they are not, in my judgment, inconsistent with the agriculture carried on. The area of the holding is relatively large. Provided the use of land otherwise than for agriculture does not substantially impede the use for agriculture, the former use does not, in my judgment, prevent the land being agricultural land within the meaning of the Act."

"49. All of these references depend upon the construction of particular statutory provisions which are not directly relevant in the present case. The relevant statutory provisions seem to be similar one to another, but if they applied in the present case, the result would not be, as it seems to me, that for which Mr. Monnington contends. In particular, whether logical or not, it seems that there is a well-established distinction in each relevant area that while the grazing of horses is an agricultural activity, the keeping of horses (that is to say, stabling them and looking after them) is not. Only if the predominant activity in any particular case were grazing and other activities were ancillary to it, could the whole be treated as agricultural. … 50. Mr. Monnington submitted that, contrary to the submission of Mr. Hanham, the word 'agriculture', as an ordinary English word, encompassed the keeping of horses intended for recreational use. I reject that submission. In my judgment the ordinary meaning of 'agriculture' in the English language is as the dictionary definition records: the cultivation of the soil, the gathering in of crops and the rearing of livestock. Livestock are at any rate stock kept for the production of food, wool, skins, or fur, or for use in farming of the land. Livestock do not, as a matter of ordinary English, include horses kept for recreation, although the expression does include 'working horses used in agriculture'."

"[1] The pursuer owns Braeside Farm, Moodiesburn. In 1989 the then proprietors of Braeside gave the defender an oral lease of Woodcroft Field, extending to 33.633 acres, which forms part of the farm. The lease ran from year to year. The anniversary date was 7 February. The subjects were let to the defender to be used by him for the business of a riding school. In connection with that business the defender was allowed to graze his horses on the subjects and to crop hay for their winter feed."

"[21] On the view that I have taken, it is the purpose of the lease that defines the nature of the tenancy at the outset. It is possible that actual use may later become relevant; for example, if the tenant substantially abandons agricultural use of the holding ( eg Wetherall v Smith [1980] 1 WLR 1290; Hickson and Welch v Cann (1977) 40 P & CR 218). In this case, however, the originally agreed use has continued throughout. Therefore, even if actual use were to be the criterion, it is clear that the character of the let in this case remains commercial. [22] On my interpretation of the sheriff's findings 6 and 17, I cannot accept his finding 23 ( supra ). It is a finding of mixed fact and law. In that finding the sheriff concluded that the subjects were used 'to a substantial extent' for the grazing of the horses largely on the basis that the horses grazed all the time, whereas the riding school was operated mainly at weekends. He therefore saw grazing as being the predominant use. That, in my view, is a fallacious approach. The grazing was part of a commercial enterprise. The land was grazed only because the horses were part of that enterprise. Therefore, no matter how extensive the amount of the grazing, the grazing was always ancillary to the commercial purpose of the lease. The sheriff erred, in my opinion, in concluding that grazing was the predominant use. This is clearly a commercial lease."

"24. … The Court of Appeal decided that the uses of the land for the pasturing of the cattle, the grazing of the horses and the making of hay were agricultural and that the other activities in connection with the stud farm were not inconsistent with, and did not impede, the agricultural uses. Such non-agricultural uses therefore did not prevent the land from being agricultural land within the corresponding English definition. I find the logic of this decision unconvincing; but it may be that it can be distinguished on the basis that the tenancy was expressly granted as an agricultural tenancy and that the running of a stud farm was a permissible rather than an obligatory use of the land."

"With regard to horses, keeping or grazing working horses which are used for farming the land is within the definition (but now very rare), as is keeping or grazing of horses for the production of food or hides (rare but not unknown in Britain). As to horses used for recreation: it is now well established that, although the keeping of horses used for recreation does not come within the definition of 'agriculture', the use of land has grazing land for such 'non-agricultural' horses does satisfy the definition. Where land is used for grazing horses used for recreation, the grazing (as opposed to mere keeping) must be the predominant or substantial use. Although the grazing of stud horses is within the definition, the operation of a stud farm for breeding and rearing horses for the purposes of recreation is not; and nor is the use of land for gallops, ie for the exercise of racehorses over it."

"Grazing is per se an agricultural use, as defined by s 96(1), irrespective of whether the animals grazed are themselves 'livestock' (above). Thus land used for grazing horses will be used for 'agriculture', even if land used for keeping or exercising horses is not. If the substantial user is predominantly for grazing, it follows that the land can qualify as an agricultural holding within the 1986 Act. The land must be used for grazing in connection with a trade or business to qualify as an agricultural holding, but the business need not itself be agricultural in nature. Land let for private grazing on a non-commercial basis is not, however, agricultural land within the meaning of the 1986 Act."

"Whether AEL relies on the notice to quit of December 2018 or the notices to quit of July 2020, each post-dates the commencement of these proceedings. On any analysis, these proceedings were premature."

"It appeared to be suggested that the letter which was given in 8 November 2018 to terminate the Brakes' employment with immediate effect represented adequate notice giving the Brakes until 30 November 2018 to move out of the House. … The argument does not bear scrutiny because, aside from the fact that Dr Guy accepted that the notice period for terminating the Brakes' contract of employment was a minimum of nine months, if it was suggested that the termination letter gave the Brakes until 30 November 2018 to vacate the House, that does not explain why it is that AEL considered that it was in a position to commence possession proceedings on 15 November 2018, served on or around 22 November 2018."

"33. I consider that the appropriate course in the present case would have been for the plaintiffs, after the second demand, either to have started fresh proceedings upon the second demand, or to have applied to amend the statement of case to rely upon it. … 34. Contrary to the proper procedure, the appellants simply relied on the second demand in their reply. This was irregular, but it nonetheless amounted, in procedural terms, to the making of a new claim contrary to CP 16PD-10.2. Indeed, it was irregular because it amounted to the making of a new claim in the reply. A reply is a statement of case, and the appellants' new alternative case was clear from 14 th March 2000 onwards. Irregular though it was, I see no basis for treating it as a nullity. The respondents could of course have applied to strike out the reference in the reply to the second demand, e.g. under CPR 3.4(1) and (2). If the court had simply struck out the reference, without more, the new claim would have gone. But, on any such application, the court would also have had to consider what other courses might be open to it, pursuant to its general powers to make orders to deal with cases justly (cf. CPR 1.1(1) and 3.1(2)(m)) and/or pursuant to the specific provisions of CPR 3.10. … 35. Had the respondents applied to strike out the reference to the second demand in the reply, at any time during the remaining five and a half months of the contractual limitation period up to 30 th August 2000, the appellants would, without much doubt, have been stirred into applying to amend their particulars of claim and/or into commencing fresh proceedings. The court would, in my view, have been likely to decline to strike out the reply. Rather, it would have allowed the particulars of claim to be amended to plead the second demand, which would have regularised the reply. As it is, however, no such application was made. The respondents, presumably, either did not see anything wrong with the reliance placed on the second demand in the reply or preferred to let sleeping dogs lie. [ … ] 37. The question whether the new claim introduced by the reply constituted the bringing or maintenance of a suit, action or other proceeding within the terms of the third condition in the Bond is a question of construction of the Bond. But the concept of bringing or maintaining a suit, action or other proceeding can only be understood by reference to the domestic procedural law of whatever is the legal system under which it is suggested that such a suit, action or other proceeding has been brought or maintained. Once one concludes, as I do, that the reply on 14 th March 2000 introduced a claim, which was, though irregular, nonetheless not a nullity, and that the irregularity can be cured by allowing the claim to be proceeded with by subsequent amendment of the particulars of claim, I have no doubt that the third condition was satisfied as from 14 th March 2000."

"54. … There is no absolute rule of law or practice which precludes an amendment to rely on a cause of action which has arisen after the commencement of the proceedings in circumstances where (but for the amendment) the claim would fail. The court has a discretion whether or not to allow the amendment in such a case; a discretion which is to be exercised as justice requires. In the present case I have no doubt that, had the claimants sought to amend their particulars of claim (so as to rely on the demand of 13 March 2000) within the period from 12 April to 30 August 2000, they should have been permitted to do so. There was no reason why they should have been required to commence new proceedings."

"74. There was, thus, an error of procedure because of the failure to comply with that practice direction but the error did not invalidate the step taken in the proceedings: see CPR 3.10. However irregular, the claim made in the reply stood. Had this been a statutory period of limitation to which CPR 17.4 applied, I would have treated the reply as claiming a remedy in the proceedings and as putting in issue the same facts as arose out of the new claim. All the material averments for the new claim were already pleaded - a good second demand and a continuing failure to pay. Had the claimant sought to amend the particulars of claim relying on the failure to pay after that second demand and before the expiry of the contractual time-bar, then permission would undoubtedly have been given."

"44. Mr Glen, as part of the appeal, kept open the point as to whether the judge should have allowed the claimant to rely upon the notices to quit served after the trial but there is no absolute bar on relying on a cause of action which post-dates the issue of the proceedings and, in my view, the judge was entitled in this case to allow an order for possession to be made on the basis of the last set of notices."