Mann & Anor v Shelfside Holdings Ltd & Anor [2015] EWHC 2583 (QB)

Case No HQ13X05069

[2015] EWHC 2583 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday 15 th September 2015

Before

HIS HONOUR JUDGE SIMPKISS

(sitting as a Judge of the High Court)

Between

STUART MANNClaimants

VALLEY CORP LIMITEDClaimant

(1) SHELFSIDE HOLDINGS LIMITEDDefendant

(2) ALFRED BESTDefendant

Philip Brown (instructed by Tees Law) for Claimant

T.C. Dutton QC (instructed by Gateleys Plc) for Defendant

Hearing Hearing dates: 23 rd, 24 th, 25 th and 29 th June 2015

Judgment

His Honour Judge Simpkiss:

Introduction

[1]On 1st July 2011 the First Claimant entered into a farm business tenancy agreement (“the FBT”) with a company known as Wyldecrest Properties Limited which is a company registered in the register of companies under 6914944 (“WPL”) to rent a farm known as Park Farm, Northaw Road West, Northaw Hertfordshire (“Park Farm”) for a term of 5 years.

[2]Thereafter the Claimant ran a business from Park Farm. The Second Claimant is a company owned and controlled by the First Claimant. In connection with the business activities, both Claimants owned items of property which were kept on Park Farm. Their case is that these included items of machinery such as a tractor, quad bikes, a hay cutter, containers and other items connected with the business.

[3]The main business run at Park Farm was a livery business but other activities took place such as moto-cross and quad bike racing.

[4]The Second Defendant is the freehold owner of Park Farm. It is common ground that WPL never had any legal interest in the property and no evidence has been adduced that it had any interest out of which it could grant the tenancy to the First Claimant. The Second Defendant’s case is that on 15th or 17th February 2013 a section 146 notice was served on the First Claimant giving him 90 days notice to remedy various alleged breaches of the FTL. These mostly comprised allegations that he had erected buildings carried out works or actions on Park Farm in breach of the terms of the FBL and without planning permission. The First Claimant says that the section 146 notice was never served on him and asserted in these proceedings that it was in fact drafted at a later date. The February section 146 notice names WPL as the landlord and the second version names the First Defendant as the landlord. Neither makes any mention of the freeholder, the Second Defendant.

[5]On 7th June 2013 the Second Defendant re-entered Park Farm and took possession.

[6]The Claimants bring these proceedings to recover damages as a consequence of this re-possession. They allege that the re-possession was unlawful and that they have lost profit from the business as a result. They also claim damages for loss of items on the property which they say they have not recovered and have not been returned.

[7]The Defendants’ case is straightforward. They say that the Second Defendant is entitled to possession as freeholder. There is no tenancy binding on them and the Second Defendant was entitled to possession irrespective of the validity of the section 146 notices.

[8]The way in which the pleadings in this case have developed is thoroughly unsatisfactory, despite amendments at earlier stages, and there were very lengthy part 18 requests. There have been numerous interim applications for disclosure. At one of these in February 2015, Master Eyre gave written reasons which he attached to the order. These make clear that he considered the case to be in a chaotic state. I agree with his views.

[9]At the start of the trial (having heard 2 peripheral witnesses who were not available later in the trial period) I had a discussion with both counsel about the case. Mr. Brown set out his case and, as a result, Mr. Dutton made it clear that he considered that there were some serious pleading and evidential points. I indicated that if any application was going to be made to amend the pleadings or to admit additional evidence I would need to see the amendments and the new evidence in writing.

[10]Mr. Brown made these applications on the second morning of the trial. I rejected the application to adduce new evidence on grounds I gave in a separate ruling. The amendments to the particulars of claim, to a significant extent, either brought into the particulars of claim material that had previously been pleaded in the amended reply and defence to counterclaim or amounted to assertions of the legal consequences of previously pleaded facts. Although Mr. Dutton opposed the application, he did not make a great deal of fuss about this and did not suggest that he was prejudiced.

[11]I am therefore satisfied that the issues which I need to deal with are clarified sufficiently to enable the trial to proceed. One further development greatly assisted in narrowing or, rather, focussing the issues. Having considered the position in the light of the application hearing that morning, Mr. Dutton made a statement that he did not intend to call any evidence and intended only to cross examine the Claimants’ witnesses on issues which he regarded as relevant, on the basis that this did not mean that his side accepted all the other evidence, some of which made significant but un-pleaded allegations against the Second Defendant. Mr. Dutton made it clear that he appreciated that it was his judgment whether the evidence was relevant to the issues which arise in this case. In consequence, some of the issues which had appeared to arise no longer do and Mr. Dutton made various concessions which I will set out once I set out in more detail the issues which arise. The issues The unlawful eviction issue

The issues

[12]The case advanced in the original particulars of claim was based on a right to possession of Park Farm by reason of the FBT. It was alleged that the tenancy had not been terminated and therefore when the Defendants re-entered the property they did so unlawfully.

[13]In the original defence it was pleaded that WPL had entered into the FBT “as agent for D2” and that the First Defendant had subsequently taken over the agency “in relation to the letting”. The Defendants’ amended defence pleaded primarily that the Second Defendant was, as freehold owner, entitled to possession by reason of title paramount. The amended pleading drew attention to the omission from the particulars of claim of any case that the First Claimant’s entitlement to possession defeated the Second Defendant’s freehold title. It did however plead that in the event that the Claimants sought to amend the particulars of claim to plead that the FBT was entered into as agent for the Second Defendant then such an allegation would be admitted. In which case, the Second Defendant was entitled to re-enter Park Farm when he did because of the breaches of the tenancy agreement as set out in the section 146 notice and pleaded in the original defence.

[14]In the reply and defence to counterclaim, the Claimants pleaded various matters which, they say, demonstrates that the landlord was intended to be WPL and not the Second Defendant. There are 2 grounds relied on:a. The doctrine of apparent ownership;

b. Estoppel by representation. The precise terms of the alleged representation are important and have developed during this case. The pleading in the reply and defence to counterclaim was in the following terms: “D2 represented to C1 that Wyldecrest Properties Limited was the owner of such proprietary interest as to permit it to grant the term which it agreed to grant to the C1”.

[15]An alternative case is also pleaded to cover the eventuality that the court finds in favour of the Second Defendant’s allegation that the tenancy was granted by the Second Defendant and not WPL then the Second Defendant is bound by the FBT as an undisclosed principal.

[16]The concession made by Mr. Dutton after lunch on the second day of the trial as a consequence of his decision not to call any evidence was as follows: If the court were to find that an estoppel arose, such as to prevent the Defendants from alleging that the existence of the tenancy granted by the FTT was binding on them, then the Defendants would have to accept that their actions in re-entering Park Farm were not the actions of WPL or any other because there was no evidence that WPL had adopted or condoned the Defendants’ re-entry. Therefore it was irrelevant whether WPL was entitled to forfeit the FTA. Accordingly, the counterclaim should be dismissed.

[17]Following the amendment to the particulars of claim which I permitted at trial, the Claimants say that by reason of a representation that WPL was entitled to such interest in Park farm as would permit it to grant the term agreed, the Second Defendant is estopped. The only new allegation is that the Second Defendant is derogating from grant by re-entering.

The remaining issues

[18]The issue of the loss of the chattels arises whether the Claimant succeeds on the first issue or not. The issues are as follows:a. Whether, and if so what, chattels were on Park Farm belonging to the Claimants and have not been returned since the re-entry;

b. The value of those items;

c. In the case of certain items there are issues whether they are fixtures or fittings.

[19]The issue of the trading losses is dependent upon the decision about the lawfulness of the re-entry. If it was lawful, then this issue goes. If it was unlawful then there are factual and valuation issues which arise and about which I heard factual and expert evidence.

The witnesses

[20]The Defendants elected to call no evidence, although witness statements were served shortly before the trial they were not relied upon, save that some exhibited documents were referred to in cross-examination.

[21]There were also expert reports from 2 jointly instructed experts: Philip de Nahlik an accountant and Geoffrey Fairfoull who valued various of the items. No party indicated that they wished to cross-examine any of them, although in his oral evidence and witness statement the First Claimant stated that he did not accept all their conclusions and he and his partner, Ms. Davie, sought to give evidence to challenge some of the conclusions. I will deal with this later when I come to the issues relating to the chattels.

[22]For the Claimant, a number of witness statements were served and there were also gist statements of people who had been summoned but had not provided statements. In the end, Mr. Brown submitted that he intended to rely only on the evidence of the witnesses who had been called at trial plus Mr. Clive Jefferson whose statement was agreed. The two main witnesses were the First Claimant and his partner of 23 years, and the mother of their 3 children, Denise Davie. The other witnesses were all people who had had some dealings with Park Farm, either as people who kept horses there or who had farm business dealings with the Claimants. They were all transparently honest and straightforward, although the degree to which they were able to give sufficiently precise evidence of items that they had seen at the farm varied and was not always reliable – understandably since they were on the farm for other reasons and not to carry out an inventory. Their evidence was helpful where it was reliable and I will refer to those parts where necessary.

[23]I did not find the First Claimant a reliable witness. He has made some extremely serious allegations or assertions against the Second Defendant. For example, there is an allegation that shortly before the re-entry the Second Defendant made explicit threats to burn down the house in which he was living and to burn his cars. Threats are also alleged that he would harm the First Claimant’s family and children and that on one occasion he was directly threatened with a gun. Subsequently 4 cars belonging to the Claimants were burned. Other serious allegations were made about the Second Defendant’s business practices (that he is a bully and a thug) and that he had set about a course of conduct whereby he has evicted the Claimants from Park Farm at a stage when they had set up a thriving business, and taken it over for his own benefit. If these allegations are true (or could be proved) then it is extremely surprising that there is no claim made in relation to them or that the police were not informed at an early stage. The gun threat was reported to the police by the First Claimant but only after the lapse of a year. There is no independent evidence to support any of these allegations – some of which are sweeping and completely unsupported by any evidence at all.

[24]Despite the allegedly horrendous behaviour by Mr. Best towards the First Claimant and his family it is simply not believable that he would wish to continue to be a tenant, yet in the late Spring/early summer of 2013 he was forging ahead with the business, purchasing very expensive machinery and indicating to Mr. Fitzjohn (who gave evidence for him) that he was going to purchase equipment so that he could be self-sufficient in hay making. Mr. Fitzjohn said that the cost of the necessary equipment was in the tens of thousands. These are not the actions of someone who has been the subject of such serious threats.

[25]His evidence about the acquisition of the Second Claimant and of entering into the FBT was both vague and unsatisfactory. Ms. Davie had said in her evidence that she and the First Claimant had discussed what they were going to do beforehand and that the intention was that the First Claimant would take the tenancy and that the Second Claimant would carry on the business at the farm. The First Claimant was not anything like as clear about this.

[26]The background is that he had been made bankrupt in 2005. In the course of the bankruptcy the First Claimant gave Bankruptcy Restriction Undertakings on 27th September 2006 which were to last for 9 years 9 months which was at the top of the middle range of disqualification as set out by the Court of Appeal in Re Sevenoaks Stationers (Retail) Ltd

[1991] Ch 164

). He was asked in cross-examination whether he knew that he might be breaching the undertakings (and thereby committing a criminal offence) by becoming a director of the Second Claimant and by his involvement in the business. He said that he had not been and that this was, at least partly, because he did not have legal representation. I do not believe him. The undertakings would have been clear. He did not need legal advice in order to understand what he was debarred from doing or the consequences. Unless he had been completely disinterested in the effect of the undertakings, which I very much doubt, it is inconceivable that he was unaware of their length and effect. Even it that is not correct, he was at least reckless as to whether he was breaching the undertakings. His attitude towards the FBA is also informative in this regard. He was asked whether it occurred to him that some of the work which he did at the farm – such as putting up stables and building tracks and a manege – were in breach of the terms of the tenancy (which required written permission from the landlord). He said that he had been informed verbally by the Second Defendant at the time he signed it that he could do what he liked so long as he paid the rent. He said that he had read the FBA “briefly” and acknowledged that he was aware of some of the significant clauses but ignored them.

[27]The First Claimant was cross-examined about a number of matters. He found it extremely difficult to give a direct and straightforward answer to a simple and straightforward question, regularly trying to provide an answer to the point behind the question without answering the question itself.

[28]If his account of the way in which the business was managed is correct, then he doesn’t appear to have paid much attention to VAT requirements. After a long period of cross-examination during which his answers were very unclear, it became apparent that the machinery and assets were paid for through the Second Defendant because it was registered for VAT. That did not mean that all the income from the farm was channelled through the company because his evidence was that some (it was not clear what proportion) of the individuals who kept horses in livery at the farm were not charged VAT, whereas other were. This was because the Second Claimant was registered for VAT but he was not. Therefore he invoiced from some services and the company for others.

[29]The overall impression from the First Claimant’s evidence is that he is not being frank about a number of matters, is well aware of his use of Ms. Davie to mask his involvement in business in order to get round the undertakings (albeit that they have now been discharged).

[30]Ms. Davie also gave oral evidence. She said that after university she had worked in the financial sector most of her working life and therefore was well aware of financial matters and running a business. After a break, following the birth of their third child, she went back to work in 2009/2010 working with the First Claimant in a business of buying and selling cars which operated from their home. She told me that she was running this business although both of them shared decisions “mostly using my bank account”. She was asked whether this was because of the First Claimant’s bankruptcy and said that he didn’t have a bank account.

[31]I find it hard to believe her when Ms. Davie said that she was working in this business on her own account since both seem to have been heavily involved. I find it impossible to believe that she knew nothing of the bankruptcy undertaking (although she told me that she did not). She agreed that they discussed the bankruptcy, but the length of the undertaking strongly suggests that it was a significant matter and although the terms were not directly produced in court, it should have been a very serious concern to anyone setting up in a business with which he had any involvement. She accepts that they discussed the bankruptcy and knew he was disqualified but was unaware of the length or that he was prevented from becoming a director or managing a business. I find this impossible to accept. I also found her unconvincing in her attempts to persuade me that she was running the business of the Second Claimant and made all the decisions (albeit in discussion with the First Claimant) and she was unable to explain with any degree of conviction why the FBT was granted to the First Claimant and not to her. I do not believe that she has given me a frank account of the matters about which she was cross-examined. I also agree that her explanation of where the capital of £69,687 which she says she put into the Second Claimant was not anything like as clear as one would expect from someone who said she had provided that money. She said that she had raised it by mortgaging a property which she owned in France but was very vague about this.

[32]My judgment is that neither the First Claimant nor Ms Davie’s evidence was entirely candid and that I should therefore treat their uncorroborated evidence with great caution. The trespass to land claim 33. The law

The trespass to land claim

[33]The Defendant’s starting point is that where a tenancy is created by lease or tenancy agreement, the original parties to the tenancy are identified by looking at the document which creates the tenancy. It is not permissible to adduce evidence that the person was acting as agent for an undisclosed principle (Hanstown Properties v Green

[1978] 1 EGLR 85

). It is permissible to adduce evidence that the person who was acting as agent for a disclosed principle but only if that person was the tenant (Danziger v Thompson

[1944] 1 KB 654

[34]Mr. Brown referred me to passage in Woodfall vol 1 at 5.014:

“Where a lease is taken by a person as an agent for another, evidence is admissible to prove that fact, although evidence is not admissible to reveal the existence of an undisclosed principle.”

[35]Mr. Brown submitted that the Claimants could not adduce evidence to show that Mr. Best was the undisclosed principle and that he was therefore the landlord. This, he said, was why equitable principles had to come into play. He said that a freehold owner cannot on one day grant a lease to a tenant in the name of a third party which has no interest in the land (and sign the lease as representative of that third party) and on the next day go into possession of the property on the basis of title paramount.

[36]The question in this case is whether equity will intervene. This will only occur if the Claimant can succeed in bringing his claim within the principles of estoppel by representation or apparent authority. Estoppel

[37]The principles applicable in order to establish and estoppel by representation are well known. The person claiming the estoppel must prove the following:a. A representation by words or conduct of an existing fact;

b. Which is clear and unambiguous; and

c. Is inconsistent with the factual situation which the maker is now seeking to advance.

[38]The principle is succinctly explained by Lord Denman CJ in Pickard v Sears (1897) 6 Ad & E 469:

“but the rule of law is clear, that, where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time; and the plaintiff, in this case, might have parted with his interest in the property by verbal gift or sale, without any of those formalities that throw technical obstacles in the way of legal evidence. And we think his conduct, in standing by and giving a kind of sanction to the proceedings under the execution, was a fact of such a nature, that the opinion of the jury ought, in conformity to [two authorities cited] to have been taken, whether he had not, in point of fact ceased to be owner”

. Apparent ownership

Apparent ownership

[39]The first point to note is that this is a very different legal animal to the doctrine of apparent authority. The latter arises where the owner (“O”) or principal allows or is taken to have allowed someone else (“A”) to hold himself out as having authority to enter into a contract as agent for the principal. Apparent authority arises where A enters into a disposition of property as owner and the true owner is not involved in the sales process. O is then fixed with whatever has gone on between A and the third party by some form of estoppel. Ostensible or apparent ownership applies where there is a sale so that the true owner is debarred from contending that A is unable to pass title to the purchaser. The authorities all relate to transactions involving goods.

[40]Mr. Brown referred me to Bowstead on Agency 19th ed 8-129: “8-129 Where a principle, by words or conduct, represents or permits it to be represented that his agent is the owner of any property, any sale, pledge, mortgage or other disposition for value of the property by the agent is as valid against the principal as if the agent were its owner, with respect to anyone dealing with him on the faith of such representation”.

[41]The comment below this states that the proposition is more complex and can apply to cases which do not strictly depend on agency principles. Where, for example, there is no actual authority, and the third party does not think that the agent is an agent, but the owner. “The rule is regarded, by longer standing pedigree than that of apparent authority in contract, as based on estoppel, though it is an even looser application, or, apart from the fact that the estoppel confers title, it is difficult to see that a third party can rely on the representation of someone of whose existence he may not be aware. The estoppel is therefore said to be based on representation in the loose sense, or negligent conduct”.

[42]Mr. Brown referred me to VLM Holdings Limited v Ravensworth Digital Services Limited

(2003) EWHC 228

) which he said showed the flexibility and extent of the doctrine where Mann J applied the principle referred to in Lord Denman’s judgment: “The effect was that the claim of the true owner failed. While Lord Denman refers to conduct which led another to believe that (in that case) the sale was proper, it does not appear from the facts that there were any dealings between the owner and the defendant which would of themselves have led the defendant to that belief. The defendant had his belief as a result of uncommunicated conduct on the part of the plaintiff”.

[43]This case is somewhat removed from the present one. VLM owned a copyright and granted a licence to a subsidiary (“UK”) to exploit the copyright in the UK. UK in turn granted a sub-licence to an estate agency, Spicehaart. UK went into liquidation and VLM terminated all licences granted to it and gave an exclusive licence to Ravensworth. In the course of the litigation the issue arose as to whether the Spicehaart sub-licence survived the termination of the head licence granted by VLM to UK. The judge decided that the effect of the sub-licence was to operate as a grant by VLM to Spicehaart of permission to use the copyright which was not therefore brought to an end by the termination of the licence to UK. This was because the copyright was not proprietary in nature. This contrasts with the position of a lessor/lessee which is a very different legal world. The alternative argument was that VLM was estopped from contending that the sub-licence was terminated.

[44]The sub-licence had a recital in it to the effect that the sub-licensor was the owner of the copyright. It was a representation of ownership of the underlying copyright. In other words, that the sub-licence had an existence independent of the licence. The directors of VLM were parties to the sub-licence and were therefore taken to have made the representation.

[45]Mann J said (paragraph 70) that the conduct of VLM was very similar to that in Pickard v Sears and that although VLM had not communicated with Spicehaart as such, it had allowed UK to include the recital in the sub-licence and generally to behave as though it was the owner. There was therefore an estoppel preventing VLM from asserting that it, rather than UK, was the true owner of the copyright.

[46]I agree with Mr. Dutton that whether applying the principles of estoppel by representation or of apparent ownership, it is important to keep in mind some basic principles of landlord and tenant law, quite apart from the cases on the admissibility of extrinsic evidence of undisclosed principals.

[47]The first of these is the effect of the termination of the interest in the demised property of a tenant’s immediate landlord before the end of the term of the sub-tenancy. As between immediate landlord and tenant there is a relationship created by the tenancy which cannot be terminated otherwise than in accordance with the terms of the tenancy or at the expiry of the term. It cannot be forfeited for breach of most of the tenant’s covenants without service of a section 146 notice.

[48]As noted by Simon Brown LJ in Pennell v Payne (

[1995] QB 192

197B):

“At common law, the general rule is that, when the head tenancy comes to an end, any subtenancy derived out of it is also automatically and simultaneously comes to an end. This general rule applies without question when the head tenancy come to an end by effluxion of time, by a landlord’s notice to quit, or by forfeiture …”

[49]If the immediate landlord does not in fact own or have any interest in the property which he purports to let then the situation is as follows:a. The purported tenancy is effective to create the relationship of landlord and tenant between the parties to the tenancy;

b. The contracting parties are estopped from denying the tenancy’s efficacy in creating an estate in land. This estoppel may be “fed” if the purported landlord subsequently acquires the freehold or a superior interest in the land;

c. So far as concerns anyone who actually owns a proprietary interest in the land, the purported tenancy is of no effect.

[50](Bruton v London & Quadrant Housing Trust

[2000] AC 406

). As Lord Neuberger said in Mexfield Housing Ltd v Berrisford [2011] EWSC 52: “The Bruton case was about relativity of title which is the bedrock of English land law”.

[51]Mr. Dutton QC submits that there is no room for the application of the doctrine of apparent ownership in relation to real property. This is confined to title to goods and chattels. In particular he points out that ownership of freehold land is dependent upon registration under the Land Registration Act 2002. I agree that this gives rise to difficulties in many situations. For example, it is difficult to see how the doctrine of apparent ownership could be applied to a disposition of land where the true owner negligently gave rise to a situation where someone else is permitted to sell land as owner. If, however, the true owner of land had stood buy, knowing that someone whom he knew had no interest in the land was giving someone else permission to build on that land or agreeing the position of a boundary, then it is equally difficult to imagine that the court would not intervene.

[52]The analysis, in my judgment, is that the doctrine of estoppel by representation would intervene in the above situation and that the doctrine of ostensible ownership adds nothing where land transactions are involved. The true owner in the example above will be estopped if his conduct is construed as amounting to a representation that the other party has authority to enter into the boundary agreement or to give the permission.

[53]The present case will, in my judgment, stand or fall on the estoppel by representation case. The relevant facts and representations.

[54]WPL was incorporated on 26th May 2009. The First Defendant is also a limited company which was incorporated on 20th December 2000. Until 26th May 2009 it was called Wyldecrest Properties Limited when it changed its name to the current one. On 4th July 2014 it changed its name again to Wyldecrest Parks Limited. The Second Defendant is a director of the First Defendant and has been since 14th July 2009. Hanif Waseem has also been a director for the same period of time. Mr. Waseem (although his address is different) was also a director of WPL since July 2009 and the First Claimant’s evidence that it is the same person was not challenged. The Second Defendant is not recorded as ever having been a director of WPL and it is not proved that he owns any shares or has any interest in it.

[55]The Second Defendant is the registered proprietor of the freehold interest in Park Farm and has been at all material times.

[56]The First Claimant’s relationship with the farm started just before Christmas in 2010 when he saw an advertisement offering Park Farm House for rent. He went to the farm house and met the Second Defendant for discussions. The First Claimant’s evidence was that they agreed to split the cost of new carpets and that he was told that his landlord would be “my company Wyldecrest Properties Limited”. Shortly after this he entered into an assured shorthold tenancy (“the AST”) in which the landlord was identified as Wyldecrest Properties Limited. Others standard documentation relating to the AST was in similar terms as were subsequent cheques or direct debits for the rent.

[57]In his pleaded case (either in the particulars of claim or the re-amended reply and defence to counterclaim) the Claimants allege the following representations:a. The Second Defendant represented to the First Claimant that WPL was the owners of “such proprietary interest as to permit it to grant the term which it agreed to grant to the First Claimant” (ie a 5 year FBT).

b. The Second Defendant told the Claimants that he was the director and chairman of Wyldecrest Properties Limited and that any company with the name “Wyldecrest” belonged to him. This was before the AST, when the First Claimant was asked by the Second Defendant to undertake some work at Shirkoak Park in March 2011 (a different property in Tenterden where the First Claimant agreed to do some refurbishment work for the Second Defendant) and when they discussed his entering into the FBT in June/July 2011.

c. Signs at the Second Defendant’s premises indicated that it was the offices of “Wyldecrest Properties”.

d. During discussions between the Second Defendant and the First Claimant leading up to the signing of the FBT the Second Defendant said that the landlord would be WPL.

e. The Second Defendant signed the FBT on behalf of WPL.

f. A direct debit mandate originator form was provided by the Second Defendant in the name of WPL.

g. The Second Defendant did not inform the First Claimant that WPL was acting as agent for him.

[58]It is also alleged that the First Claimant relied on these alleged representations in agreeing the terms of the FBT and signing it.

[59]Ms. Davie was not present at any of the conversations with the Second Defendant and the First Claimant’s evidence is therefore the only relevant source of any evidence of representations. He was not cross-examined about this issue. The relevant evidence is therefore as follows:a. At about the time of the AST, the Second Defendant told the First Claimant that he was the director and owner of any company that had the “Wyldecrest” name or of companies “starting with Wylde” and that it was part of his group of companies. “Wyldecrest Properties Limited” owned and operated many mobile home parks in the UK. He also told the First Claimant that he was a director and chairman of WPL on several occasions, including during the lead up to the FBT.

b. At the time of the grant of the AST, the letting agents and the Second Defendant told the First Claimant that the landlord would be “his company Wyldecrest Properties Limited”.

c. Sometime after 14th February 2011 the Second Defendant asked the First Claimant to undertake some building work at Shirkoak Park saying that his company “Wyldecrest Properties Limited” needed 3 residential mobile units refurbished. Invoices for this work were made payable by “Wyldecrest Properties Limited”.

d. At the time the First Claimant and the Second Defendant were discussing a tenancy of the whole farm, the Second Defendant told him that he “could do what [he liked] with Park Farm so far as generation of income was concerned if [he] entered into an FBT on his terms”. “The place would be yours to do what you liked with it, treat the place like it’s your own”.

e. During negotiations for the FBT the Second Defendant told the First Claimant that WPL would be his landlord on 3 occasions and the latter believed that he was entering into a FBT with WPL as landlord.

f. When the First Claimant attended the Second Defendant’s premises in order to sign the FBT (at 35a Rainham New Road, Rainham, Essex) he saw signs displayed indicating that it was the offices of “Wyldecrest Properties Limited” and there were cars parked outside with similar signage on them.

g. At the time of signing the FBT the Second Defendant provided the First Claimant with a direct debit mandate originator form in the name of “Wyldecrest Properties Limited”. It was only later that the First Claimant was told to pay the rent into the First Defendant’s account and the WPL did not have a bank account.

h. In paragraph 32 of his witness statement, the First Claimant says: “Therefore in reliance of D2’s representations I entered into possession and paid rent under the FBT to D1 as requested by D2 ….”.

i. In paragraph 28 of the statement the First Claimant says: “I relied on D2’s representations that Wyldecrest Properties Limited had sufficient proprietary interest in Park Farm to grant the FBT I was entering into with Wyldecrest Properties Limited in agreeing to the terms of the FBT and signing the same and paying the rent thereunder”.

[60]The First Claimant describes entering into the FBT. He was not legally represented and, as stated above, signed it at the Second Defendant’s office in Rainham. He says that he read the agreement and then crossed out clause 12, which provided that either party could terminate the 5 year tenancy on 12 months notice.

[61]The FBT defines the landlord as “Wyldecrest Properties Limited” and the address is given in clause 22.1.1 as 35a New Road, Rainham. By clause 5.1 it is agreed that the agreement would come into operation on 1st July 2011 and “shall subsist for 5 years”. Clause 5.2, which provided for termination on 12 months notice, is crossed out.

[62]The FBT is signed by the First Claimant and by the Second Defendant, who signs on behalf of the landlord.

[63]The AST was for a term of 12 months from 14th February 2011 and was signed on behalf of WPL by an agent and not by the Second Defendant.

Argument and decision

[64]In his closing submissions Mr. Brown said that the Second Defendant could not sign the FBT one week and then turn round and claim possession by title paramount the next. He said that the transaction was a sham put in place by the true freeholder. There are a number of problems with this submission. Firstly, there is no pleading that the transaction was a sham or a device to enable the Second Defendant obtain possession at will. This is not just a minor pleading point which can be ignored. Such a case would be a wholly different one requiring evidence in support. The absence of a pleaded case is fatal to this argument.

[65]In any case a sham transaction is one which is dressed up to look like one thing but is in fact something else. The alternative situation is where one party presents a transaction which is in fact a sham and the other knows nothing about it. This is a fraud. Not only is this not pleaded, there is no evidence that the wool was deliberately pulled over the First Claimant’s eyes.

[66]The high point of the Claimants’ case is that, as a result of the representations set out above, the First Claimant was led to enter into the FBT with the understanding that WPL had “sufficient proprietary interest in Park Farm to grant the FBT”. This is his evidence in paragraph 48 of his witness statement. This leads to 3 issues: On the evidence were representations made to that effect? if they were, was it reasonable to rely on them? and, finally, where does this lead?

[67]Mr. Brown submits that the First Claimant was granted by the FBT a 5 year tenancy terminable only upon breach and service of a section 146 notice or at the end of the term. He says that a reasonable person would understand from the representations by the Second Defendant that WPL had the right to grant a 5 year term which would not be determined otherwise than above.

[68]Mr. Dutton QC submits that the court should not read paragraph 48 of the First Claimant’s witness statement as alleging an express representation that WPL had sufficient proprietary interest to grant the FBT. I agree. The representations which are alleged are set out elsewhere in the statement and I read this paragraph as setting out the First Claimant’s understanding as a result of what is alleged before.

[69]He then refers to the First Claimant’s evidence that he believed that the Second Defendant was acting as agent for WPL. Therefore, he says, any representation is made by WPL and not the Second Defendant. In my judgment this is disingenuous in the circumstances and it is necessary to examine what representations might be construed as having been made by the Second Defendant and what might reasonably have been understood by them.

[70]This is an unusual case and one of the difficulties is that it is not usual for a tenant to investigate the immediate landlords’s title to grant the lease. As set out earlier, the landlord party to the grant of a tenancy is bound as between him and his tenant but the superior landlord is not. Another potential problem arises where, for instance, the immediate landlord grants a tenancy in breach of the terms of a mortgage against sub-letting. If the mortgagee goes into possession the sub-tenancy would not usually be binding on the mortgagee.

[71]A number of the representations were made in relation to the grant of the AST, which was for 12 months and only related to the residential property. That cannot, in my judgment, have any real bearing on the FBT.

[72]Nor is the representation that the Second Defendant was a director of WPL take that matter anywhere. It is difficult, however, to construe the fact that the Second Defendant has said that the landlord would be WPL otherwise than as meaning that WPL would be able to enter into the FBT. If, the next day, the Second Defendant had contended that WPL had no interest in the property and could not enter into the FBT at all. The real question is whether it goes further than that, and can be construed or reasonably understood as a representation that WPL had a freehold interest or that its interest would necessarily endure for the next 5 years.

[73]In reality, the Claimants’ case amounts to this and no more: WPL would be the landlord and would be the party with whom the First Claimant would enter into the FBT as landlord. This is no more than would usually be the case when a party enters into a lease or tenancy agreement. There is no representation as to WPL’s title beyond that it had sufficient interest to enter into the FBT on the day that it did to grant a valid FBT or any other type of tenancy. This would be so provided WPL had some sort of interest in the property, such as a weekly tenancy or a licence. If and when the licence or tenancy comes to an end then, as a matter of law, the FBT would not be binding on the freeholder. I am unable to find that the representations amount to or can be reasonably understood as meaning that WPL had a freehold interest in the property or that its interest was at least going to last until the end of the 5 year term. The situation is, in my judgment, removed from that of an owner of goods who permits a third party to sell those goods and, thereby, represents by words or conduct that the third party has title.

[74]I therefore conclude that the Claimants have not established that an estoppel by representation against the Second Defendant and the case of apparent ownership adds nothing to this claim. It follows that the Claimants’ cannot contend that the Second Defendant went into possession of Park Farm unlawfully.

[75]I should mention that in paragraph 5B of the amended particulars of claim it was pleaded in the alternative that WPL had entered into the FBT as agent for the Second Defendant. At the application for permission to amend it was made clear that this was only being pleaded because the Second Defendant had asserted that this was the case in his witness statement. It was accepted by Mr. Brown at that time, that this claim would fall away if the Second Defendant was not called. That issue was not therefore a live one by the end of the trial.

[76]I have not made any findings in relation to the section 146 notice or the further 146 notice which, in his statement, the First Claimant alleges was made well after the event and a not a genuine document. As the Defendants called no evidence their credibility is not relevant and it is accepted by Mr. Dutton QC that his client cannot rely on the section 146 notice. That issue is not therefore relevant. The First Claimant obviously believes that the Second Defendant has cynically allowed him to build up the livery business and other parts of Park Farm and then moved into possession and reaped the benefits personally. That case is not pleaded and does not therefore arise for decision. The trespass to goods claim 78. Introduction

[77]On 7th June 2013 the Claimant was evicted from Park Farm. His case is that there were a large number of goods and chattels on the property which then came under the control of the Second Defendant. The evidence is that, apart from some children’s clothing stored in a car which Ms. Davie was allowed to take, all the remaining goods and chattels remained on Park Farm.

The trespass to goods claim

[78]Following the eviction there were communications between the First Claimant’s solicitors and Mr. Scott of Legal Resolutions who were acting for the Second Defendant. I will refer to these later. On 14th June 2013 the First Claimant went to Park Farm as a result of an agreement between the parties’ representatives and in order to collect goods which he said belonged to him. He organised some security men and the police to attend as well as a number of people of various trades who were to assist in the repossession and removal of the chattels. He had several lorries with him. The Claimant says that there were difficulties getting onto the site and that after a short time, during which he tried to remove the stabling and some fencing, the Second Defendant asserted that he was trespassing and he was no longer able to reclaim his goods. He says that he was prevented from removing most of his goods “other than a small number of items” and was not subsequently allowed back to collect the remainder.

[79]Counsel produced schedules which very helpfully divided up the items into various categories. Mr. Fairfoul also made a schedule which sets out which items he saw when he inspected Park Farm, together with his comments. There are a number of points of principle to be decided which will determine the issues in relation to groups of items and I do not intend, unless necessary, to deal with each individual item in turn. I will summarise the results at the end of this judgment. The law

[80]There was no dispute about the legal principles to be applied. Mr. Dutton submitted that there were 4 questions to be answered in relation to each item claimed:a. Have the Claimants proved the things which they say were on the farm on 7th June 2013 and which of those items was not recovered on 14th June 2013 or disappeared between the 2 dates? This is an issue of fact.

b. Of those things, which are to be regarded as “goods” for the purpose of the Torts (Interference with Goods) Act 1977? This is a combined question of law and fact.

c. If the goods are not to be returned to the Claimants by the Defendants, what should the Defendants be required to pay for them? For the most part this question will be answered by the evidence of the joint expert, but there are some areas where he cannot do so or has left alternative prices which the court will need to choose between.

d. If the goods are to be returned by the Defendants, what, if anything, should be paid by them as compensation for their late return. The court will have to choose between compensation by reference to the use made of the items by the Defendants and the use that could have been made of them by the Claimants if they had had them in their possession.

[81]The relevant sections of the Tort (Interference with Goods) Act 1977 are: “1. Definition of wrongful interference with goods In this Act “wrongful interference” or “wrongful interference with goods” means:a. conversion to goods

b. trespass to goods (also called trover)

c. negligence so far as it results in damage to goods or to an interest in goods

d. subject to section 2 any other tort so far as it results in damage to goods or to an interest in goods In this Act “wrongful interference” or “wrongful interference with goods” means: a. conversion to goods b. trespass to goods (also called trover) c. negligence so far as it results in damage to goods or to an interest in goods d. subject to section 2 any other tort so far as it results in damage to goods or to an interest in goods ……..

[2]Abolition of detinue …….

[3]Form of judgment where goods are detained (1). In proceedings for wrongful interference with goods against a person who is in possession or control of the goods relief may be given in accordance with this section, so far as appropriate. (2). The relief is:a. an order of delivery of the goods, or payment of any consequential damages, or

b. an order for delivery of the goods, but giving the defendant the alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages, or

c. damages. (3). Subject to the rules of the court a. relief shall be given under only one of paragraphs (a), (b) and (c) of sub-section (2) b. relief under paragraph (a) of sub-section (2) is at the discretion of the court and the Claimant may choose between the others. (4). …… (5). ….... (6). An order for delivery of goods under sub-section 2(a) or (b) may impose such conditions as may be determined by the court or pursuant to rules of the court and, in particular where damages by reference to the value of the goods would not be the whole value of the goods, may require an allowance to be made to the claimant to reflect the difference. For example, a bailor’s action against a bailee may be one in which the measure of damages is not the full value or the goods, and the court may order delivery of the goods, but require the bailor to pay the bailee a sum reflecting the difference.”

[82]“Goods” is defined by section 14 as including “all chattels personal other than things in action and money”.

[83]The only other relevant point of law relates to “fixtures”. I was referred to Elitestone v Morris

[1997] 1 WLR 687

and the judgment of Lord Lloyd of Berwick. He starts by referring to the difficulty which arises from the use of the word “fixture” since the natural understanding of the meaning of the word does not match up with its legal use in this context. Thus, a building might usually be thought to be “fixed” to the land if it is attached in some way, but the authorities show that such a building or structure is not always a “fixture” in law.

[84]Lord Lloyd approved the 3 fold distinction set out in Woodfall at 13.131: “An object which is brought onto land may be classified under one of three broad heads. It may be(a) a chattel;

(b) a fixure; or

[85]He then explained how the decision depended on the circumstances of each case, but mainly on the degree of annexation and the object of the annexation. Of these it is clear that the purpose of the annexation is the more important. For example, it does not prevent a house being annexed to the land that it is not attached in any way to the land but resting on its own weight on pillars.

[86]When it comes to the object of annexation, Lord Lloyd made it clear that there were a number of factors to be considered. In some cases, whether the object was attached to the land to enable its better enjoyment or to make a permanent improvement to the freehold is a helpful test but in others, such as a house, it is not. The application of common sense is important and whether, if the object is to be removed, the act of removal will result in its destruction – in which case it is probably part of the land. A house that is constructed so as to be moveable will probably be a chattel.

[87]Lord Clyde also referred to the importance of the object being recoverable in its constituent parts if it was to be removed and that to the relevance of whether it was put on the property as a temporary or permanent measure. If the only thing you can do with the object is to recycle its constituent parts then it is probably not a chattel. In one case a dry stone wall was held to be a fixture although its stones could have been removed without causing any damage to either the land or the stones, so that they could have been used to build a wall elsewhere.

[88]In the event this issue only concerns the manages and the fencing since Mr. Dutton QC conceded in closing that the stabling put up by the Claimants was not a fixture.

[89]On final point arises. Mr. Dutton QC referred to Mancetter Developments v Garmanson

[1986] QB 1212

. This case is authority for the proposition that if tenant’s fixtures are removed and leave the premises in a damaged condition, then the tenant must restore the premises to a reasonable condition and make good the damage. A failure to do so is waste, actionable in tort.

[90]The issue of whether the items are landlord or tenant’s fixtures is not relevant in this case because that is an issue between the landlord and tenant and neither WPL nor the receiver is a party to these proceedings and has no interest in the land. What items have not been returned to or reclaimed by the Claimants?

[91]Mr. Dutton QC produced a schedule in which he highlighted the items in 3 colours. Red referred to the times which the Defendants say were either not on Park Farm on 7th June 2013 or, if they were, have been recovered on 14th June 2013. The Claimants had vacated the house on 17th May 2013, they say because of attacks on them.

[92]Apart from item 2 (the manege grader) which it was common ground should have been in the next category (green) as it was identified by Mr. Fairfoull when he visited Park Farm, he was unable to find any of these items. Item 11 should also be in red because Mr. Fairfoull did not find a bailer trailer of 20 foot but one of 16 foot. The green coloured items were those which the Defendants accepted were at the property and were chattels. This includes the stables, stable flooring, cross-country fences and green tape. The Defendants had not previously agreed that all these items were goods but, in the light of the evidence, now agreed that they were.

[93]The yellow coloured items are those which the Defendants still do not agree are goods although there is no doubt that they remain on the farm. These comprised the manages, post and rail fences and lighting round the manages and the fencing and gates around the farm. Mr. Dutton QC also includes troughs “and other related items”.

[94]The item number references to the numbers in counsels’ schedules. The red items

[95]The issue of what goods were on Park farm is highly dependent upon the credibility of the First Claimant. The other witnesses gave some corroborative evidence but, for the most part, they were not able to provide evidence of exactly what they saw on the property and when and therefore are not of much assistance.

[96]I have already set out my judgment of the First Claimant’s reliability. I am not prepared to accept his evidence in the form of statements that items were on the property unless there is some corroboration in the form of documents or that there is some reason other than his assertion to that effect for finding that the item was there. I also keep in mind that the Claimant was evicted from the property in circumstances when he appears not to have expected it and therefore it is probable that a great deal of equipment would have been on Park Farm on 7th June 2013. The evidence of both Ms. Davie and the First Claimant was that most of the paperwork was in a container on Park Farm which they were unable to access and has since been lost. What is much less clear is what was reclaimed on 14th June 2013 and this is when his credibility is most relevant.

[97]Two of the red items can be excluded at once: item 27 which is vehicle hire for the vehicles hired in order to recover items on 14th June 2013 and item 36 for storage of goods. These cannot be heads of loss for trespass to goods and would not be recoverable in relation to the eviction.

[98]Mr. Fairfoull visited Park Farm on 19th May 2015. He was provided with the schedule of items which the Claimants said had not been returned and during his visit he identified some of the items which were still on the property. He referred to each item on the Claimants’ schedule, stating whether he had found them and providing a value at 7th June 2013 and at the date of the report (3rd June 2015), where he has been able to.

[99]The Claimant has produced invoices which he says relate to the purchase of the items he claims and for the most part this wasn’t challenged. The dates and amounts of those invoices appear on the schedules.

[100]Following the eviction, the Claimants instructed his current solicitors on Monday 10th June 2013. They sent a list of 37 items which he intended to collect. In cross-examination the First Claimant says that these were the ones he remembered at that stage. It would be unsurprising if the First Claimant did not have a complete list in his mind. The reaction of the Defendants’ representative (Mr. Scott) was that nothing could be collected until the Claimants had proved ownership. There is clear evidence from the correspondence that there was little or no attempt at any serious co-operation at this stage despite the fact that it was obvious that the Claimants had a lot of goods at Park Farm.

[101]On 12th June 2013 Mr. Scott sent an email to the Claimants’ solicitors agreeing in principle to the collection of goods from Park Farm which were on the list previously sent, with the exception of the stables in respect of which they disputed ownership. The First Claimant went to Park Farm on 14th June 2013 with a significant number of other people. In his statement he says that there were 10 security staff, 2 police officers, an electrician, a contractor with a tractor, and representatives from a plant hire and haulage company with lorries, all to assist in the removal of the items. In cross-examination the First Claimant said that he had arrived with “30 or 40 people” and accepted that he had been there for about 2 hours. He also said that the police presence had been arranged by Mr. Scott.

[102]In his statement the First Claimant says that on arrival the 2 police officers spoke to the Second Defendant and were told that he would not agree to the re-possession of the goods and that the First Claimant was trespassing. He says that the collection of goods was therefore prevented save for “a small amount of my and C2’s goods”. He does not say what he did collect. He also says that he was able to look into his shipping container and saw that he had stored items and that they were missing – including item 39 the Kubota B2530 tractor which he says Mr. Hopson (who had managed the livery stable for him) used to take water drums to the lower fields.

[103]Later that day Mr. Scott sent an email to Tees Law stating that the Claimants had no right of access to Park Farm, had had plenty of time to collect items and that no further visits would be allowed. Tees Law replied the following Monday 17th June 2010 stating that the Defendants had refused to deliver up 11 of the 37 items listed in the earlier letter. Another 4 missing items were added which included the show jumps, the IFOR Williams triple axle car transport trailer, the jack leg portacabin and the manege grader. Amongst the missing goods were the saws and other items which form items 3, 4, 5 and 6 on the list. It was said that the container in which they had been stored was recovered but that there was nothing inside it.

[104]Further requests were made by Tees law on 21st June and 10th July 2013 for permission to collect items and particular items were identified in the letter of 17th June 2013. No other items were identified as missing at this state. Although further efforts were made through Tees Law at a later stage the Claimants have not been given access to collect anything more.

[105]Mr. Roger Hare was one of the people who came with the First Claimant on 14th June 2013. He had previously sold and delivered the stables and a store room to the First Claimant and described the structures and how he had erected them. He went on 14th June 2013 in order to dismantle and remove the stables (for which he was still owed part of the price (£4,000)). He took his van and another lorry with which to transport the dismantled buildings. These items proved to be a sticking point with the Second Defendant and the police also suggested that they should not be removed while they were still housing horses. His evidence was that he had been told by the First Claimant that he would have 4 hours on site to do this job.

[106]Significantly, since he was called by the Claimants, Mr. Hare says that while he was discussing with the police and the owners of the horses whether the stables should be taken away, the First Claimant was removing other items. Mr Hare says that he left at about 11.00 am having arrived at 9.00 am. He produced a list produced by the First Claimant and put an asterisk against those which he said that he had seen on Park Farm on 2013.

[107]Of these items only 2 are claimed which are no longer on the property: item 9 the Kuhn mower conditioner and item 38 the IFOR William triple axle trailer. He saw a JCB and also a lorry with a crane on the back. He was unable to say how much the Claimants had removed from the site as he was concentrating on the stables.

[108]I have no reason to doubt Mr Hare’s honesty and he does not appear to have any connection with the Claimants other than being a creditor. At first blush Mr. Hare’s evidence that he saw these items on the site is compelling, but his statement is dated 8th May 2015 and he gave no evidence whether they were still there when he left. Significantly, when the the First Claimant was asked about item 38 (because the purchase invoice date is 27th June 2013) he said that this was a mistake and then said that it was a pro-former invoice obtained in order to get a value. This was not mentioned prior to his oral evidence. He did not produced any other proof of purchase and I reject his evidence on this. He had not ordered this trailer and it had not been delivered. This means that Mr. Hare’s evidence that he saw the trailer cannot be right and therefore his asterix’s on the schedule are unreliable. Even if it was in fact purchased, for the reasons already given, I do not accept that there is reliable evidence that it was left on the property after the visit on 14th June 2013.

[109]There are a number of problems with the First Claimant’s evidence about the goods:a. The First Claimant has not identified what he removed from Park Farm on 14th June 2013. Under cross-examination he said that it was difficult to remember after 2 years but it is surprising that no list was made at the time. He told me that he had taken the security equipment (for security for the house to which he and his family had moved), 4 cars which had been “petrol bombed” and a Case tractor.

b. Although item 36 (storage charges) is not recoverable, it is revealing. The First Claimant said that the invoice was for the collection of goods from a container, namely “housing stuff”. The invoice however pre-dated the eviction as it was dated 18th May 2013. The First Claimant said that this was a mistake but it suggests that it related to their move from the house and that items were removed from a container before the eviction. We only have his word what these were.

c. Item 38 is claimed but in cross-examination he said that it had never been delivered.

d. Under cross-examination he agreed that there was some duplication in the amounts claimed. Item 43 is a claim of £19,857.32 for timber, electric fencing, troughs and “other related items”. The First Claimant explained that this was in fact the total amount that he had spent at Farm and Country on a miscellany of items many of which were duplicated elsewhere in the schedule.

[110]I therefore reject all the claims to the red items as I am not satisfied that they were on the property after 14th June 2013 and some were probably not on the property on 7th June 2013. The yellow items

[111]The first issue concerned the maneges. When the First Claimant entered into the FBT there was a livery establishment operating on Park Farm. He describes it as a low grade operation and this was not challenged. There was a manege near the entrance to the property. The evidence was that the First Claimant expanded and refurbished the original manege and installed 2 new ones. Mr. Alldis gave evidence about their construction. A manege is a rectangular area with post and rails around it. The area is dug out and a hardcore base is built up in or to provide drainage. On top of that is a layer of pink granite or hoggin. That is then covered with a permeable membrane to keep the weeds down and to prevent the surface drifting down into the base. The surface is then laid down on top of that. There are various types and qualities of surface which Mr. Alldis said was usually made up of a 4 inch depth of fibre or rubber and sand.

[112]Mr. Alldis said that it common to purchase second hand surface material and the surface of the original manege had been topped up with second hand material. He had, for example, tried to buy the surface used in the 2012 Olympics which had been recovered and sold. Mr. Fairfoull, who relied on an equestrian expert, agreed that the surface material had a good value. The Olympic site was obviously dismantled after the games and therefore was always temporary. The joint expert has valued the whole manege (and has not been asked to value the constituent parts of it) which he has done by reference to the overall cost of installation. Mr. Alldis said that the surface material can often be worth as much as £35 to £40 per metre but this would not include the cost of removal as to which there was no evidence.

[113]Applying the legal principles set out earlier, I am satisfied that a manege is not a temporary structure. Its removal completely would leave a hole in the top soil and if the surface material was removed it would leave the permeable membrane exposed and new surface material would need to be laid. Like a stone wall it can be said that a manege is used to better enjoy the land but it is also part of the structure. Its removal would mean, at best, that its constituent parts could be recycled and, like the stone from a dry stone wall, the materials would have a value. I find that the manages are part of the land and it is not open to the Claimants to argue that they can take part of the manage. The Claimants’ claim in respect of the manages therefore fails.

[114]Next I turn to the manege lighting and the manege post and fail fences. The post and rail fencing (item 25) was erected in about November 2011 (the invoice is dated 21st November 2011) and the manege lights included in item 42) were invoiced at the same time. The First Claimant said that item 25 related to the work he did to the original manege. Posts were hammered into the ground and rails nailed to the posts. The invoice is for £5,820.60 inc VAT. Mr. Fairfoull was not able to establish which fencing was referred to in item 25 but I accept that First Claimant’s evidence on this point. He gave a replacement cost (namely the original cost) but reduced it to 20% as a value on 7th June 2013 because of the cost of removal and transportation.

[115]In my judgment item 25 is a fixture. It cannot be removed without knocking it down, destroying the fence and reclaiming those posts and rails that were not damaged in the process. It is not temporary because it is part of the manage. Had I found that it was not a fixture, then I would have awarded compensation at the figure of £1,067.10 which Mr. Fairfoull bases on an ex VAT invoice. This appears to be wrong because Mr. Dutton QC’s schedule agrees that the original invoice includes VAT.

[116]I make the same finding in relation to the manage lighting. The photographs show that these lights are on gantry’s around the manages and they don’t appear to be temporary structures. They are clearly part of the manage itself although they could be more easily reclaimed. Mr. Fairfoull put a value of £1,250 on them if they had been recovered and it is not clear whether this includes VAT. That is the figure of compensation that I would have awarded if I had not decided that they are not fixtures (albeit tenant’s fixtures). The First Claimant’s oral evidence in relation to “wiring” item 35 was that the “wiring” was the electric wiring he had put in place in order to power these lights around the manages. He said he had removed the lights (providing some confirmation that quite a lot of goods were removed on 14th June 2013). There can be no claim against the Defendants for the lights and I find that the wiring is to be treated as a fixture for the reasons given above. The Claimants have not and could not make any claim to the lights which have been taken away as these would have been tenant’s fixtures.

[117]Next I turn to the fencing which the First Claimant put up around the farm. This is largely item 43 (which is part of the goods purchased from Farm and Country). The First total expenditure at Farm and Country was spent on fencing, where that fencing work was done and how much was renewal or repair (ie to replace existing fencing) and how much was entirely new. There was practically no evidence about it, although it is clear that some fencing work was done by the Claimants. Other claimed items relating to fencing are items 32 and 34 described as “fencing”. He also said that he had put in 7 new gates.

[118]The evidence about his is extremely vague and it is not possible to do more than guess at the value of any recovered elements from this fencing and the gates. Item 55 (a timber gate) was not found by Mr. Fairfoull on his inspection.

[119]I am satisfied that the fencing under items 43, 32 and 34 (which are probably included within the cost of item 43) are fixtures for the same reason as the post and rail fences round the manages or else were repair and improvements to existing features. The Claimants are not entitled to recover in respect of them.

[120]The electric fencing and electro tape are clearly not fixtures but it is not clear from the evidence whether this was in use or in a roll ready for use. Mr. Fairfoull found no evidence of any electro tape and in the light of my previous findings I am not satisfied that it remained on the farm after 14th June 2013 when the Claimants collected some items.

[121]The Defendants had originally questioned whether the jumping fences were fixtures or fittings but having heard evidence from April Gingell, who sold fences to the Claimants, Mr. Dutton QC did not contend in his final submissions that any of the jumps were fixtures and this was clearly right.

[122]The remaining items under in the yellow list are items 61 and 62 (staple on plate and pipe fitting). Mr. Fairfoull identified “tie rings” but said he could not identify this one. He could see no evidence of the pipe fittings. The First Claimant said that item 62 was “a bit of plumbing” and was a back plate. I have not been satisfied that this was within the definition of goods and not a fitting. On the scant evidence available it seems to me more likely that this was merely an improvement to some plumbing.

[123]I reject the claim to items 3 to 6 (saws and strimmers etc). Firstly, the First Claimant’s only evidence is his oral testimony which I have already said is unreliable. He did point out, through his solicitors that these items were missing and explained in court that they had been in a container which he said was empty on 14th June 2013. There is no credible evidence about what he took away that day, whether these items were on the property on 7th June 2013 and when he had previously seen them in the container. There are a number of possibilities, including: that they were not there at all, taken by the Claimants on 14th June 2013, stolen or otherwise removed from the container before 7th June 2013 or stolen subsequently. It is impossible to find, with any confidence, that these items were in the container on 7th June 2013 and I find that the Claimants have not proved their case with regard to them. The green items

[124]As it is common ground that they remain at Park Farm, this is a quantum issue.

[125]As a matter of principle I find that any compensation should be measured as the value of the item at the date of exclusion (7th June 2013) and Mr. Fairfoull has done that in his report. Replacement cost might have been appropriate if the Claimants had established that they were going to set up a new business and replaced them. The evidence points the other way. There is no evidence that the Claimants made any serious effort to find a new property on which to set up a livery business and the First Claimant’s evidence was that he had asked Mr. Perks to look for a new farm “a couple of months ago”. There is no documentary evidence to support a case that there was any attempt to do this before and the strong impression was that the recent enquiry was, at best half, hearted. No replacements have been purchased.

[126]I have also found that the compensation figures should be exclusive of VAT. This should be the case whether compensation paid as the value of the goods lost by the Claimants or the benefit accrued to the Defendants. In the former case, the goods were used for a business and the VAT paid on purchase was, or should have been, accounted for to the HMRC and the same would apply on the purchase of any replacement. If the items are retained then there is no VAT.

[127]My findings in relation to these items are as follows:a. Item 2 should be valued at £1,300 which is the 2013 value.

b. Item 11 should be in the list of red items and I find that there is no credible evidence that this item was on the premises after 14th June 2013 or that the Defendants are responsible for its loss.

c. Next there is a series of individual items which were purchased by the Claimants, in some cases second hand and in some new. Items 10 and 13 were clearly purchased second hand from the sums originally paid. I find that the compensation figures are £800 (price paid in this case because the replacement cost given by Mr. Fairfoull is for a more sophisticated machine) and £500 respectively, being Mr. Fairfoull’s value on 7th June 2013. In relation to the buggy (item 13) this was purchased in April 2011 and at the time of Mr. Fairfoull’s visit was in a dilapidated state and the photograph does not suggest that it is useable. I find that this is not in a returnable state and that the compensation must therefore be paid.

d. Item 18, the show jump set, is given a replacement value of £1,079 excluding VAT by Mr Fairfoull and this would be the correct measure of compensation sum for that item but I am not satisfied that the show jumping sets on the premises were those purchased by the Claimants. The invoice is dated September 2013 and the First Claimant said in compensation that he had taken a container from the premises when asked about these. The evidence about these was therefore a mess and reliant on the First Claimant’s credibility and I therefore disallow this item.

e. Item 19, mounting blocks, and item, a horse shower, should be compensated for at the value on 7th June 2013 of £75 as stated by Mr. Fairfoull. Item 20 at £89.50 for the same reason. Similarly, I find that the value at 7th June 2013 should be applied to item 21 (£1,200 ex VAT).

f. Item 12 is a claim to 250 bales of hay. Mr. Fairfoull found some bales on the farm but all in a poor condition and Mr. Hopson told him that they belonged to him. It is therefore clear that any bales of hay on the farm on 7th June 2013 have been lost and the Defendants should pay compensation. It is very unlikely that bales of hay were taken on 14th June 2013. The First Claimant estimated that there were 100 to 150 bales of hay on 7th June 2013 – a far lower number than claimed. He had not cut any hay on 7th June and therefore any stock from the previous year would have been reaching its low point.

g. Mr. Fitzjohn gave evidence that the grassland produced about 1500 to 2000 bales a year. He couldn’t recall how many were left by June 2013. Mr. Alldis said that he saw the hay store in early 2013 when there was “quite a lot of it”. None of the other witnesses who spoke about the hay had a very clear recollection. It is not unreasonable to suppose that there were 100 to 150 and since the Defendants made no attempt to record the amount, I find that there were 125. Mr. Alldis was asked about the cost of each bale and gave a value of £35 to £45 in June 2013. This was along the lines of the figures given by Mr. Alldis and I find that the compensation should be based on a value of £40 per bale giving a total of £5,000.

h. Item 24 is the cross-country fences. Mr. Fairfoull valued these at £315 on 7th June 2013. He said that there was a low value because of the cost of dismantling them. Ms. Turner said that the fences she sold to the Claimants were moveable ones and it doesn’t therefore appear that they are the ones viewed by Mr. Fairfoull. They cost the Claimants £1574 but there was no evidence whether they were subject to VAT. If they were sold then they would have to be moved and they are substantial – although moveable. Mr. Fairfoull’s value of £315 which takes account of these costs but if they are kept by the Defendants then they will have the benefit of them without the cost of removal. Any compensation should therefore exclude removal costs and the compensation figure should be £750.

i. Item 28 is 15 tack lockers which Mr. Fairfoull said were in good condition in a storage container and valued at £500 on 7th June 2013. Item 29 is rubber flooring valued by £425 on 7th June 2013 and item 33 is a quantity of green tape valued at £13.33. I accept these as the compensation values.

j. Item 30 is a Wessex PTO driven grass scarifier which cost £2,400 including VAT. Mr. Fairfoull said that it was in fact a paddock sweeper and the First Claimant said that you could change the brushes. He gave a value of £1,900 ex VAT on 7th June 2013 which I find is the compensation value.

k. Item 37 is a heavy duty chain harrow and I accept Mr. Fairfoull’s valuation of £700 ex VAT as at 7th June 20013 as the compensation.

[128]Next I turn to the stables. These are comprised in items 14, 15, 16, 17 and 26. It is now conceded that these are moveables and not fixtures.

[129]Mr. Fairfoull described the units as “basic rather than premium” and that they had been erected on hard core and not concrete without any drainage or guttering. He has produced a range of value for each and there is nothing to justify the court doing anything other than chose the mid-point of the range. Items 14 and 15 are £3,412 each; Item 16 is £7,125; item 17 is £1,575. Item 26 comprises various internal stable partitions which are in good condition. Mr. Fairfoull’s valuation is £3,050 which I accept.

[130]Item 21 is a storage container. There is a container on the site but in cross-examination the First Claimant said that he had removed it on 14th June 2013. Therefore he cannot recover this. Mr. Fairfoull’s value on 7th June 2013 of £1,200 is an ex-yard price. There is no evidence of the cost of removal (which might have been added in order to give a fairer value of the benefit that the Defendants might retain if they kept it. In these circumstances the compensation figure would have been £1,200 if the Claimants had succeeded in the claim to this item. The invoice produced by the First Claimant also post-dates the eviction.

[131]Item 31 is a portacabin and kitchenette. The invoices produced by the Claimants are dated 15th September 2012 and were for £4,900 plus VAT for 2 such portacabins but the Claimants claim for one. One therefore appears to be on the property and in a poor condition. Mr. Fairfoull valued it at 7th June 2013 at £2,450 and the replacement cost would have been less than the amount paid. I do not read his report as valuing it in the dilapidated state that he found it in. I find that its condition is not suitable for return by the Defendants and that it is likely to have deteriorated significantly between 7th June 2013 and Mr. Fairfoull’s inspection. Compensation should therefore be paid for this item of £2,450 ex VAT.

[132]Finally, I turn to the issue of compensation to be paid by the Defendants as a result of the goods remaining in their possession since 7th June 2013. The Claimants have not been able to recover them and I have not been told of any effort on the part of the Defendants to let the Claimants do so. In these circumstances it is my judgment that compensation should be paid to the Claimants for those items which the Defendants are likely to have made use of. I have received no evidence in relation to this point, nor on how to value it. Both counsel invited me to do my best and with that in mind, the only logical way to do this is to award interest on the compensation values (whether or not the goods are in fact returned) from 7th June 2013 to date and until they are either returned or the compensation paid.

[133]It is clear that the Defendants have benefitted from the retention of the stables and the evidence shows that the livery business continued and that the Defendants received rent or other payment as a result. I therefore find that all the items which could be used in that business should bear compensation for use: Items 14, 15, 16, 17, 19, 20, 24, 26, 28 and 29. Items 10, 30 and 37 were also capable of use on Park Farm and there is no evidence that they were not used. They should also bear this compensation. The green tape has not been used and the portacabin does not appear to have been used. The hay has been used and should also bear the compensation interest.

[134]I find that the appropriate interest rate is the court rate of 8%. My calculation of the total of compensation for the items is £33,076.63 interest to 31st July 2015 is £5,676.13 but this, and any other figures, may be the subject of correction once the parties have seen this judgment. If any corrections are needed to the figures, then this can be done at the final hearing to deal with outstanding issues such as costs or by agreement.