References: [2003] EWCA Civ 1883, [2004] 2 PandCR 18
Links: Bailii
Coram: Peter Gibson LJ
Ratio: Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later behaviour of parties in interpreting a deed. The court related the conveyance plan to the features on the ground and concluded that, on the facts, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan.
The judge had been incorrect in not allowing the defendant to plead an estoppel. However there had been insufficient detriment suffered to establish an estoppel, and the defence failed. The appeal was dismissed.
Statutes: Land Registration Act 1925 70(1)(g)
Jurisdiction: England and Wales
This case cites:

• Cited – Lyle v Richards HL ((1866) LR 1 HL 222)
  A lease described the southern boundary of the premises as ‘a straight line of about 355 fathoms from John Vincent’s house . . to a bound-stone’, which was then described, the demised premises being ‘particularly delineated by the map’, that map . .
• Cited – Eastwood v Ashton HL ([1915] AC 900)
  A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . .
• Cited – Wickham Tools v Schuler AG HL ([1974] AC 235)
  Lord Wilberforce referred to the Watcham case as: ‘a precedent which I had thought had long been recognised to be nothing but the refuge of the desperate.’ but ‘Whether in its own field, namely that of interpretation of deeds relating to real . .
• Not Followed – Watcham v Attorney-General of the East Africa Protectorate PC ([1919] AC 533)
  The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as ’66 3/4 acres, or thereabouts’, but included . .
• Cited – AJ Dunning and Sons (Shopfitters) Ltd v Sykes and Son (Poole) Ltd CA ([1987] Ch 287, [1987] 2 WLR 167)
  A transfer of part of land identified the land by reference to a red line on a plan being part of a registered. The court held that the seller’s covenants of title implied under the rules took effect subject to the interests of the registerd owners . .
• Cited – Sussex Caravan Parks Ltd v Richardson CA ([1961] 1 WLR 561)
  Harman LJ described the Watcham case: ‘a case which has been long under suspicion of the gravest kind from real property lawyers.’ . .
• Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA (Bailii, [2002] EWCA Civ 159, [2003] 1 P and CR 100, [2003] 1 FCR 501)
  The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
• Cited – Gillett v Holt and Another CA (Times 17-Mar-00, Gazette 23-Mar-00, Bailii, [2000] EWCA Civ 66, [2001] Ch 210, [2000] 2 All ER 289, [2000] 2 WTLR 195, [2000] Fam Law 714, [2000] 1 FCR 705, [2000] 3 WLR 815, [2000] 2 FLR 266)
  Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
• Cited – Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd HL ([1970] AC 572, [1970] 1 Lloyds Rep 269, [1970] 1 All ER 796, [1970] AC 583)
  The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
  Held: Evidence of behaviour after a contract . .

(This list may be incomplete)
This case is cited by:

• Cited – Ali v Lane and Another CA (Bailii, [2006] EWCA Civ 1532, Times 04-Dec-06, [2007] 1 EGLR 71, [2007] 1 P and CR 26, [2007] 2 EG 126)
  The parties disputed the boundary between their neighbouring plots of land.
  Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
• Cited – Piper and Another v Wakeford and Another CA (Bailii, [2008] EWCA Civ 1378)
  The parties disputed the boundary between their land.
  Held: The judge had been entitled to rely on the evidence he had accepted, and had been entitled to find on the factual basis asserted. . .
• Cited – Pennock and Another v Hodgson CA (Bailii, [2010] EWCA Civ 873)
  In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
  Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
• Cited – Dixon and Another v Hodgson and Others CA (Bailii, [2011] EWCA Civ 1612)
  The parties were in a boundary dispute. The court warned of the danger of deciding where a boundary is by simply relying on the physical appearance of the ground features to the neglect or exclusion of the title documents. The Recorder had found . .
• Cited – Cameron v Boggiano and Another CA (Bailii, [2012] EWCA Civ 157)
  The parties disputed the boundary between their neighbouring properties. . .
• Cited – Taylor v Lambert and Another CA (Bailii, [2012] EWCA Civ 3)
  The court heard an appeal against a judgment in a boundary dispute, the losing party having latterly dicovered aerial photopgraphs. There appeared to be a difference between the total area as specified in a 1974 conveyance off of part and the area . .

(This list may be incomplete)

Last Update: 19 November 2018
Ref: 191206

The post Beale v Harvey: CA 28 Nov 2003 appeared first on swarb.co.uk.

References: [2004] EWCA Civ 381, [2004] RPC 46
Links: Bailii
Coram: Pill LJ, Mummery LJ, Jacob LJ
Ratio:
Jurisdiction: England and Wales
This case is cited by:

• Doubted in part – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL (House of Lords, [2004] UKHL 46, Bailii, [2005] RPC 169, (2005) 28(7) IPD 28049, [2005] 1 All ER 667)
  The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
  Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
• See Also – Rockwater Ltd v Technip France Sa (Formerly Coflexip Sa), Technip Offshore UK Limited (Formerly Coflexip Stena Offshore Limited) CA (Bailii, [2004] EWCA Civ 522)
  . .
• Cited – Halliburton Energy Services, Inc v Smith International (North Sea) Ltd and others PatC (Bailii, [2005] EWHC 1623 (Pat), [2006] RPC 25, [2005] Info TLR 323, [2006] RPC 2)
  A claim was made for a method of design in which certain calculations were to be carried out recursively, modifying the results each time until a particular criterion was satisfied. Though the method was susceptible of solution by computer, but the . .
• Cited – W L Gore and Associates Gmbh v Geox Spa PatC (Bailii, [2008] EWHC 2311 (Pat))
  The claimants sought a declaration of non-infringement of four patents relating to waterproof fabrics for shoes.
  Held: The patents could not be set as invalid for obviousness. . .
• Cited – W L Gore and Associates Gmbh v Geox Spa PatC (Bailii, [2008] EWHC 2311 (Pat))
  The claimants sought a declaration of non-infringement of four patents relating to waterproof fabrics for shoes.
  Held: The patents could not be set as invalid for obviousness. . .

(This list may be incomplete)

Last Update: 20 November 2018
Ref: 195024

The post Rockwater Ltd v Technip France Sa (Formerly Coflexip Sa), Technip Offshore UK Limited (Formerly Coflexip Stena Offshore Limited): CA 1 Apr 2004 appeared first on swarb.co.uk.

References: [2004] EWCA Civ 987, [2004] WTLR 1183.
Links: Bailii
Coram: Lord Justice Mummery, Lord Justice Waller Lord Justice Jonathan Parker
Ratio: The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
Held: The judge was right to have found that the promise was bound up with the claimant being a partner in part of the farm. That partnership had later foundered. The earlier assurance was not irrevocable, and no estoppel arose.
Jurisdiction: England and Wales
This case cites:

• Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA (Bailii, [2002] EWCA Civ 159, [2003] 1 P and CR 100, [2003] 1 FCR 501)
  The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
• Cited – Ramsden v Dyson HL ([1866] LR 1 HL 129, [1866] 12 Jur NS 506)
  The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
• Cited – Wayling v Jones CA (Gazette 02-Aug-93, [1993] 69 PandCR 170)
  The plaintiff and defendant were in a homosexual reationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .

(This list may be incomplete)
This case is cited by:

• Cited – Thorner v Curtis and others ChD (Bailii, [2007] EWHC 2422 (Ch))
  The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary . .
• Cited – Thorner v Major and others CA ((2008-09) 11 ITELR 344, [2008] 2 FCR 435, Bailii, [2008] EWCA Civ 732, [2008] WTLR 1289, [2009] 3 All ER 945)
  The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
  Held: . .
• Cited – Thorner v Major and others HL (Bailii, [2009] UKHL 18, Times, HL, [2009] 13 EG 142, [2009] WTLR 71, [2009] Fam Law 583, [2009] 2 FLR 405, [2009] 1 WLR 776)
  The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
• Cited – Gill v Woodall and Others ChD (Bailii, [2009] EWHC B34 (Ch), [2009] EWHC 834 (Ch))
  The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .

(This list may be incomplete)

Last Update: 20 November 2018
Ref: 199572

The post Uglow v Uglow and others: CA 27 Jul 2004 appeared first on swarb.co.uk.

References: [1990] 1 AC 723
Coram: Lord Goff of Chieveley
Ratio: The government of Norway sought evidence here to support a claim for tax in Norway.
Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim will not be enforced here, where the claimant is asserting a sovereign right or where the central interest of the claimant is governmental in nature, however, Lord Goff said: ‘It is of importance to observe that that rule is limited to cases of direct or indirect enforcement in this country of the revenue laws of a foreign state. It is plain that the present case is not concerned with the direct enforcement of the revenue laws of the State of Norway. Is it concerned with their indirect enforcement? I do not think so. It is stated in Dicey and Morris, at p. 103, that indirect enforcement occurs (1) where the foreign state (or its nominee) in form seeks a remedy which in substance is designed to give the foreign law extraterritorial effect, or (2) where a private party raises a defence based on the foreign law in order to vindicate or assert the right of the foreign state. I have been unable to discover any case of indirect enforcement which goes beyond these two propositions. Even so, since there is no authority directly in point to guide me, I have to consider whether a case such as the present should nevertheless be held to fall foul of the rule. For my part, I cannot see that it should. I cannot see any extraterritorial exercise of sovereign authority in seeking the assistance of the courts of this country in obtaining evidence which will be used for the enforcement of the revenue laws of Norway in Norway itself.’
Lord Goff discussed the phrase ‘civil or commercial matters’, and said of itsuse in the 1856 Act: ‘Here we find the first mention in an Act of Parliament, at least in this context, of the expression ‘civil or commercial matter.’ It is plain that here the word ‘matter’ is used as referring to the relevant proceedings; because in section 1 the ‘matter’ is required (consistently with the long title and section 2 of the Act) to be pending before the foreign court or tribunal. This reinforces the natural inference that, in section 1 of the Act, the expression ‘civil matter’ is being given no restricted meaning, and would be understood in this country as referring to civil, as opposed to criminal, proceedings. It is true that this gives no weight to the words ‘or commercial’ so far as the law of this country is concerned: but it is not surprising to find these words added in relation to a jurisdiction which will be invoked by courts or tribunals in foreign countries, many of which differentiate between civil and commercial matters.’
Statutes: Evidence (Proceedings in Other Jurisdictions) Act 1975, Foreign Tribunals Evidence Act 1856
Jurisdiction: England and Wales
This case cites:

• Approved – Attorney-General of New Zealand v Ortiz CA ([1982] 3 WLR 570, [1982] 3 All ER 432)
  The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its . .
• Appeal from – Re State of Norway’s Application (No 2) CA ([1988] 3 WLR 603)
  The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .

(This list may be incomplete)
This case is cited by:

• Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA (Bailii, [2006] EWCA Civ 1370, Times 27-Oct-06, [2007] 2 WLR 1062)
  The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
  Held: The claims were . .

(This list may be incomplete)

Last Update: 22 November 2018
Ref: 245569

The post Re State of Norway’s Application (No 2): HL 1989 appeared first on swarb.co.uk.

References: [2001] EWCA Civ 493
Links: Bailii
Ratio: Renewed application for permission to appeal – whether deed validly signed.
Statutes: Law of Property (Miscellaneous Provisions) Act 1989
Jurisdiction: England and Wales
This case is cited by:

• Leave given – Shah v Shah CA (Times 15-May-01, Bailii, [2002] QB 35, [2001] EWCA Civ 527, [2001] 3 WLR 31, [2001] 4 All ER 138)
  The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .

(This list may be incomplete)

Last Update: 22 November 2018
Ref: 200929

The post Shah v Shah and others: CA 7 Mar 2001 appeared first on swarb.co.uk.

References: [2004] EWCA Civ 1599, Times 21-Dec-2004
Links: Bailii
Coram: Lord Justice Clarke The Lord Chief Justice Of England &Amp; Wales Lord Justice Rix
Ratio: The parties had agreed that their dispute should be resolved before the Jewish Beth Din according to Jewish substantive and procedural law. K was granted an interim freezing order. The defendant sold the asset, and K sought to assert a charge.
Held: Jewish law specifically provide that the decision of the Beth Din operated in personam only. Such an order could not be translated into an order in rem by seeking to enforce the award in the English Courts. Mr Jason’s submission to the Beth Din and its orders could not translate into a proprietary estoppel or constructive trust. English law is not relevant for the purpose of discovering a remedy which Jewish law does not provide.
Statutes: Arbitration Act 1996 48
Jurisdiction: England and Wales
This case cites:

• Cited – Gillett v Holt and Another CA (Times 17-Mar-00, Gazette 23-Mar-00, Bailii, [2000] EWCA Civ 66, [2001] Ch 210, [2000] 2 All ER 289, [2000] 2 WTLR 195, [2000] Fam Law 714, [2000] 1 FCR 705, [2000] 3 WLR 815, [2000] 2 FLR 266)
  Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
• Cited – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD (Gazette 09-Oct-03, [2004] Ch 142, [2003] EWHC 1994 (Ch), Bailii)
  The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
• Cited – Edwards, Drummond Smith v Flightline Limited CA (Bailii, Times 13-Feb-03, [2003] EWCA Civ 63, Gazette 03-Apr-03, [2003] 1 WLR 1200, [2003] 3 All ER 1200)
  The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .
• Cited – Cretanor Maritime Co Ltd v Irish Marine Management Ltd CA ([1978] 1 WLR 966, [1978] 3 All ER 164, (1978) 1 Lloyds Rep 425)
  A freezing order is relief in personam and creates no proprietary rights in the assets from time to time subject to it. Buckley LJ said that where an injunction required assets up to a stated value to be kept within the jurisdiction: ‘There must . .
• Cited – Stockler v Fourways Estates Ltd ([1984] 1 WLR 25)
  The rule that an ordinary freezing order does not entitle a party in whose favour it was granted to say that he had a property or security interest in the respondent’s assets in question, applies where a freezing order fixes on a single specified . .
• Cited – Palmer v Carey PC ([1926] AC 703)
  A lender financed a trader in goods, on the basis the proceeds of sale of the goods be paid into an account in the name of the lender, and that the lender recoup himself on a monthly basis in respect of sums advanced, with the balance being released . .
• Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC ([2004] EWHC 122 (Comm Court), Bailii, [2004] 1 WLR 2027)
  The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
• Cited – Coupland v Arabian Gulf Oil Co QBD ([1983] 1 WLR 1136)
  The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort which could proceed here . .
• Cited – Swiss Bank Corporation v Lloyds Bank Ltd CA ([1982] AC 584, [1981] 2 All ER 449, [1981] 2 WLR 893)
  An equitable charge is created when property is expressly or constructively made liable to the discharge of a debt or some other obligation, and the charge confers on the chargee a right of realisation by judicial process such as a sale order. . .

(This list may be incomplete)

Last Update: 27 November 2018
Ref: 220222

The post Ernst Kastner v Marc Jason, Davis Sherman, Brigitte Sherman: CA 2 Dec 2004 appeared first on swarb.co.uk.

cobbe_yeomanChD2005
References: [2006] 1 WLR 2964, [2005] EWHC 266 (Ch)
Links: Bailii
Coram: Etherton J
Ratio: A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement existed. Claims were made for a constructive trust, proprietary estoppel and restitution.
Held: The court set out principles for establishing a proprietary estoppel. The defendant had encouraged the plaintiff to make applications for permission, and sought later to take unconscionable advantage of them. There was no reason in principle why a constructive trust should not be as equally available as a remedial instrument in a ‘post-acquisition’ case as in a ‘pre-acquisition’ case in order to prevent injustice from the defendant’s unconscionable conduct in circumstances where the facts are capable of giving rise to a proprietary estoppel. A lien was granted in favour of the claimant over the property.
Statutes: Law of the Property (Miscellaneous Provisions) Act 1989 2
This case cites:

• Cited – Walford v Miles HL ([1992] 2 AC 128, [1992] 1 All ER 453, [1992] 2 WLR 174, [1992] ANZ Conv R 207)
  The buyers and sellers of a company agreed orally for the sellers to deal with the buyers exclusively and to terminate any negotiations between them and any other competing buyer. The sellers later decided not to proceed with their negotiations with . .
• Approved – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA (Bailii, [2002] EWCA Civ 159, [2003] 1 P and CR 100, [2003] 1 FCR 501)
  The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
• Cited – Attorney General of Hong Kong v Humphreys Estate (Queen’s Gardens) Ltd PC ([1987] 1 AC 114)
  An agreement in principle was marked ‘subject to contract’. The Government would acquire some flats owned the plaintiff Group of companies in return for the Government granting, inter alia, a lease to the Group of some Crown lands. The Government . .
• Cited – London and Regional Investments Ltd v TBI Plc and Others CA (Bailii, [2002] EWCA Civ 355)
  TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
• Mentioned – Pridean Limited v Forest Taverns Limited; John Hipwell and David Marshall CA (Bailii, [1996] EWCA Civ 1060, (1996) 75 P and CR 447)
  The claimant owned a public house. It set out with the defendant to to acquire the premises or to take a lease of them. The defendant went into occupation, and carried out works. Negotiations continued, but broke down over the form of protection to . .
• Cited – Banner Homes Group Plc v Luff Developments and Another CA (Gazette 10-Feb-00, Times 17-Feb-00, Bailii, [2000] EWCA Civ 18, [2002] 2 All ER 117, Bailii, [2000] EWCA Civ 3016, [2000] 2 WLR 772, [2000] Ch 372)
  Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
  Held: Although there was no formal . .
• Cited – Ramsden v Dyson HL ([1866] LR 1 HL 129, [1866] 12 Jur NS 506)
  The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
• Cited – Gillett v Holt and Another CA (Times 17-Mar-00, Gazette 23-Mar-00, Bailii, [2000] EWCA Civ 66, [2001] Ch 210, [2000] 2 All ER 289, [2000] 2 WTLR 195, [2000] Fam Law 714, [2000] 1 FCR 705, [2000] 3 WLR 815, [2000] 2 FLR 266)
  Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
• Cited – Holiday Inns Inc v Broadhead ((1974) 232 EG 951)
  The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, . .
• Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD ([1968] 1 WLR 1555, [1968] 2 All ER 1073)
  The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
• Cited – Ravenocean Ltd v Garner ChD (Unreported, 19 January 2001)
  The claimant asserted a constructive trust arising from an oral agreement by the defendant to sell his land to the plaintiff. It was conditional on the claimant obtaining planning permission. Pursuant to the agreement, and relying on it, the . .
• Cited – Shah v Shah CA (Times 15-May-01, Bailii, [2002] QB 35, [2001] EWCA Civ 527, [2001] 3 WLR 31, [2001] 4 All ER 138)
  The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
• Cited – Kinane v Mackie-Conteh CA (Bailii, [2005] EWCA Civ 45)
  The court upheld a declaration by the trial judge that the claimant was an equitable chargee under an equitable charge of the defendant’s property, notwithstanding that the claimant relied on an oral agreement by the defendant for the grant to the . .
• Cited – Carl Zeiss Stiftung v Herbert Smith No.2 CA ([1969] 2 WLR 427)
  The court approved the statement in Snell’s Principles of Equity that: ‘A constructive trust is a trust which is imposed by equity in order to satisfy the demands of justice and good conscience without reference to any express or presumed intentions . .
• Cited – Gissing v Gissing HL ([1970] 3 WLR 255, [1971] AC 886, [1970] 2 All ER 780, Bailii, [1970] UKHL 3)
  The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
  Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
• Cited – Lloyds Bank plc v Rosset HL ([1991] 1 AC 107, [1990] 2 WLR 867, [1990] 1 All ER 1111, Bailii, [1990] UKHL 4, Bailii, [1990] UKHL 14)
  The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
• Cited – Grant v Edwards and Edwards CA ([1986] 1 Ch 638, [1986] 2 All ER 426, Bailii, [1986] 3 WLR 114, [1986] EWCA Civ 4, [1986] Fam Law 300, [1987] 1 FLR 87)
  A couple were not married but lived together in a house in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names was . .
• Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD (Bailii, [2004] EWHC 2547 (Ch), (2005) 2 PandCR 8)
  The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
• Cited – Oxley v Hiscock CA (Bailii, [2004] EWCA Civ 546, Times 14-Jul-04, [2004] 2 FLR 669, [2005] Fam 211)
  The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
  Held: The shares were to be assessed . .

(This list may be incomplete)
This case is cited by:

• Cited – Van Laethem v Brooker and Another ChD (Bailii, [2005] EWHC 1478 (Ch))
  The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
  Held: ‘A [constructive] trust arises in connection with the . .
• Cited – Powell and Another v Benney CA (Bailii, [2007] EWCA Civ 1283)
  The claimants asserted an interest under a constructive trust in land held by the defendant.
  Held: The judge had found acts of detriment suffered by the claimants. Though elements of the judgment might be criticised, the appeal failed. . .
• Cited – London Borough of Bexley v Maison Maurice Ltd ChD (Bailii, [2006] EWHC 3192 (Ch))
  The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
  Held: The . .
• Cited – St Pancras and Humanist Housing Association Ltd v Leonard CA (Bailii, [2008] EWCA Civ 1442)
  The claimant sought possession of a garage. The defendant claimed adverse possession.
  Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
• Appeal from – Yeoman’s Row Management Ltd and Another v Cobbe CA (Bailii, [2006] EWCA Civ 1139, [2006] 1 WLR 2964)
  The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and . .

(This list may be incomplete)
Leading Case
Last Update: 28 November 2018
Ref: 223286

The post Cobbe v Yeomans Row Management Ltd and Others: ChD 25 Feb 2005 appeared first on swarb.co.uk.

References: [2005] UKPC 24
Links: PC, Bailii, PC
Coram: Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Millett, Lord Walker of Gestingthorpe
Ratio: (Jamaica) Parties had entered into a joint venture, before one fell into severe financial difficulties. A scheme of arrangement was proposed in which plots which were part of the development would be apportioned, but steps were not taken to complete this. The land was transferred to VandS. FIS obtained an order for possession. VandS appealed, saying it was a tenant of the properties.
Held: The claimants pleaded that no no estoppel per rem judicata arose. No such estoppel could arise in respect of an order which was not final, such as an interim order or a judgment obtained in default of appearance. The appeal was dismissed.
Jurisdiction: Commonwealth
This case cites:

• Cited – Ramsden v Dyson HL ([1866] LR 1 HL 129, [1866] 12 Jur NS 506)
  The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
• Distinguished – Patrick v Beverley Gardens Development Company Ltd PC ([1979] AC 547)
  A resident magistrate (whose summary order for possession of land, made on proceedings commenced by an information, lay at the foundation of arguments about estoppel) had no jurisdiction to decide a question of title to land. . .

(This list may be incomplete)

Last Update: 30 November 2018
Ref: 228319

The post Vehicles and Supplies Ltd and others v Financial Institutions Services Ltd: PC 28 Jun 2005 appeared first on swarb.co.uk.

References: [2005] EWCA Civ 856, [2005] BCLC 379
Links: Bailii
Coram: Auld, Parker, Arden, LJJ
Ratio: The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally salaried, but the Inland Revenue had taxed the benefits received. It was argued for them at the time that no intention to create legal relations existed. The claimants now said that they had a status as contractual tenants, and had agreed to resign from the company on the basis that financial provision would be made to allow them to find alternative accomodation. It was then proposed to purchase a property in which they could live, and an approach was made to the Charities Commission to approve the arrangement. The Commission declined. The applicants now claimed a proprietary estoppel.
Held: The company and the community were separate in law. The decision to seek possession was that of the company alone, and was not he same as the decision to expel him from the community. It bordered on the fanciful to say that the decision of the company was in breach of natural justice. They acted fairly and properly. The appellant had accepted the decision of the community to expel him. No intention to create contractual relations was established. The approach taken by the Charity Commission was to be regretted.
Jurisdiction: England and Wales
This case cites:

• Cited – Byrne v Kinematograph Renters Society Ltd ([1958] 1 WLR 762)
  The court formulated the principles of natural justice: ‘What then are the requirements of natural justice? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to . .
• Cited – Baird Textile Holdings Limited v Marks and Spencer Plc CA (Bailii, [2001] EWCA Civ 274)
  The court considered the requirements to establish a proprietary estoppel: ‘It is on authority an established feature of both promissory and conventional estoppel that the parties should have had the objective intention to make, affect or confirm . .
• Cited – Faramus v Film Artistes’ Association HL ([1964] AC 925, [1964] 1 All ER 25)
  Parties to a contract may be bound to act in it according to the rules of natural justice. . .
• Cited – Lee v Showmens Guild of Great Britain CA ([1952] 2 QB 329, [1952] 1 All ER 1175)
  Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
  
• Cited – Shearson Lehman Hutton Inc and Another v Maclaine Watson and Co Ltd and Others ([1989] 2 Lloyd’s Reports 570)
  The court considered the requirements of natural justice in the light of the decision in Gaiman: ‘Nor do I consider my conclusions to be inconsistent with the decision of Megarry J in [Gaiman] because Megarry J held that the principles of natural . .
• Cited – McInnes v Onslow-Fane ChD ([1978] 3 All ER 211, [1978] 1 WLR 1520)
  The applicant had been granted a boxing manager’s licence for several years. He appealed its refusal now over a few years.
  Held: The case was in the application for a licence rather than in a forfeiture or an expectation class, and there was . .
• Cited – Gaiman v The National Association for Mental Health ChD ([1970] 3 WLR 42, [1971] Ch 317, [1970] 2 All ER 362)
  The court considered the articles of an association without share capital but limited by guarantee. One article provided that a member should cease to be a member of the association if he were requested by resolution of the council to resign. It was . .
• Cited – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL (Gazette 09-Jun-99, Times 21-May-99, Gazette 02-Sep-99, House of Lords, Bailii, [1999] UKHL 24, [1999] 1 WLR 1092, [1999] BCC 600, [1999] 2 All ER 961, [1999] 2 BCLC 1)
  The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
• Cited – Booker v Palmer CA ([1942] 2 All ER 674)
  The owner of a cottage agreed to allow a friend to install an evacuee in the cottage rent free for the duration of the war.
  Held: There was no intention on the part of the owner to enter into legal relationships with the evacuee. Lord Greene . .
• Cited – Nagle v Fielden CA ([1966] 2 QB 633, [1966] 2 WLR 1027)
  The applicant, a lady jockey appealed refusal by the Jockey Club to issue to her a jockey’s license based simply on the fact of her sex.
  Held: Her appeal succeeded. The refusal was against public policy. Where a man’s right to work was in . .

(This list may be incomplete)
This case is cited by:

• Cited – The New Testament Church of God v Reverend Stewart CA (Bailii, [2007] EWCA Civ 1004, Times 20-Nov-07, [2008] ICR 282, [2008] IRLR 134, [2008] HRLR 2)
  The appellant appealed a finding that the respondent had been its employee, saying he was a minister of religion.
  Held: The judge had been entitled to find an intention to create legal relations, and therefore that the claimant was an . .

(This list may be incomplete)

Last Update: 30 November 2018
Ref: 228431

The post Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd: CA 12 Jul 2005 appeared first on swarb.co.uk.

References: [2003] EWCA Civ 14
Links: Bailii
Coram: Clarke LJ, Scott Baker LJ
Ratio: The court discussed the significance of Johnson v Gore Wood. Clarke LJ: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
iii) The burden of establishing abuse of process is on B or C or as the case may be.
iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process.
vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.’
Jurisdiction: England and Wales
This case is cited by:

• Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD (Bailii, [2006] EWHC 74 (Ch), Times 27-Apr-06, [2007] Ch 197, [2006] 2 P and CR 23, [2006] 3 All ER 1029, [2006] 6 EGCS 170, [2007] 2 WLR 403)
  The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
  Held: The . .
• Cited – Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD (Bailii, [2009] EWHC 1839 (Ch))
  The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
• Cited – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD (Bailii, [2011] EWHC 908 (Ch))
  The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
• Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA (Bailii, [2013] EWCA Civ 1466)
  The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .

(This list may be incomplete)

Last Update: 04 December 2018
Ref: 241332

The post Dexter Ltd v Vlieland-Boddy: CA 2003 appeared first on swarb.co.uk.

References: [2006] EWCA Civ 495
Links: Bailii
Ratio: The appellant had been fostered by the deceased, and on her death continued to live in her house held under a secure tenancy of the respondent. The council sought possession, saying that he was not a member of the deceased’s family within section 113, and that in any event he had not occupied the property for twelve months as required. The court found an estoppel against the council which had given written re-assurance to the deceased that the son would take over the tenancy. The court ordered possession saying the claimant had not met the residency qualification. He had been asked by his firm to work at their London offices.
Held: The claimant’s appeal succeeded. The judge had in his judgment failed properly to address the law and the evidence. There was no evidence to contradict the claimant’s asserted history which established the residency period. He had said that despite the secondment he always intended to return to the house.
Statutes: Housing Act 1985 85 113
Jurisdiction: England and Wales
This case cites:

• Cited – Crawley Borough Council v Sawyer CA ((1987) 20 HLR 98)
  The court considered whether a tenancy had ceased to be secure by reason of the tenant’s failure to continue to fulfil the condition set by section 81 of the Act of 1985, namely occupation of the property ‘as his only or principal home’. For about a . .
• Cited – Brickfield Ltd v Hughes CA ((1988) 20 HLR 108)
  In considering whether a secure tenancy was lost by the tenant abandoning his residence there, the court set out the applicable principles. Where absence is more prolonged than is to be explained by holiday or ordinary business reasons and is . .
• Cited – Camden London Borough Council v Goldenberg and Another CA (Times 01-Apr-96, (1996) 28 HLR 727)
  The appellant had lived for a number of years with his grandmother; had then married; had thereupon moved with his bride for three months into a house owned by friends who were abroad; had, throughout that time, left the bulk of his belongings at . .

(This list may be incomplete)

Last Update: 04 December 2018
Ref: 241402

The post Steven We Ping Wall v Sheffield City Council: CA 23 Mar 2006 appeared first on swarb.co.uk.

References: [2006] EWCA Civ 756, Times 17-Jul-2006
Links: Bailii
Coram: Ward LJ, Smith LJ, Cresswell LJ
Ratio: The parties’ solicitors were to complete the sale and purchase of land. The purchaser asked for an extension of time beyond the appointed hour to complete. The vendor’s solicitor responded that he would take his client’s instructions. The purchaser said this amounted to an estoppel despite the absence of any explicit promise that the time would be extended. The court was asked also as to whether a solicitor could make a payment from uncleared funds, and what was the latest time for completion in a day.
Held: No estoppel arose. The vendor’s solicitor had made no promise to provide an answer and was under no obligation to provide one. The judge had been correct to hold that completion had to take place by the close of the working day, and not at midnight, and that payment could only take place using cleared funds.
Jurisdiction: England and Wales
This case cites:

• Cited – Legione v Hateley ([1982-1983] 152 CLR 406)
  (High Court of Australia) Purchasers of land were put on notice that unless they paid the price by 10th August the contract of sale would be rescinded. On 9th August the purchasers’ solicitor telephoned the vendor’s solicitors and spoke to the . .
• Cited – Reardon Smith Line Ltd v Minister of Agriculture, Fisheries and Food HL ([1963] AC 691, [1963] 1 Lloyds Rep 12)
  Lord Devlin said: ‘If I employ a builder to repair my dwelling-house and he agrees to complete the work within six days or pay a penalty, that does not mean that he can keep me awake by working from midnight to midnight in order to finish the job. . .

(This list may be incomplete)

Last Update: 04 December 2018
Ref: 242520

The post Northstar Land Limited v Maitland Brooks Jacqueline Brooks: CA 14 Jun 2006 appeared first on swarb.co.uk.

References: [2006] Pens LR 177, [2007] 1 All ER 308, [2007] ICR 412, [2006] PLR 177, [2006] EWHC 1426 (Ch), Times 07-Aug-2006
Links: Bailii
Coram: Lewison J
Ratio: The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and the amendment was ineffective. No estoppel arose as against the members: ‘An avoidance of pedantry, and the need to protect beneficiaries may well be powerful factors in choosing between rival constructions; but once the requirements of a valid means of alteration of the rules has been determined as a matter of construction, either a document satisfies those requirements or it does not.’ and ‘it was a substantive requirement of a document amending the rules that it was signed by the trustees and by or on behalf of the company. Since, in my judgment, the court has no power to authorise a departure from the rules, or to waive one of their requirements, it follows that the rules have never been validly amended. ‘
As to the estoppel, a group estoppel was alleged, saying that the amendments had been given effect since 1991. In fact those who had left the scheme, and who might have asserted the estoppel had been treated as if the amendment had not been made, and ‘the entitlement to pension of members who have the right to retire for part of their service and who had attained the age of 60 at the date of winding up falls within section 73 (3) (b) of the Pensions Act 1995. ‘
Statutes: Pensions Act 1995 73
This case cites:

• Cited – Douglas Harvey Barber v Guardian Royal Exchange Assurance Group ECJ ((1990) ICR 616, C-262/88, [1990] ECR I-1889, [1991] 1 QB 344, R-262/88, Bailii, [1990] EUECJ R-262/88)
  Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
• Cited – Coloroll Pension Trustees v Russell and others (Judgment) ECJ (Times 30-Nov-94, C-200/91, Bailii, [1994] EUECJ C-200/91, [1994] OPLR 179)
  The trustees of a pension fund have the same equal treatment obligations as do employers. The effect of the judgment in Barber was that: ‘i) For pensionable service prior to 17 May 1990 (the date of the Barber judgment) it was not unlawful for male . .
• Cited – Bestrustees v Stuart ([2001] Pens LR 283)
  The court considered the validity of a purported alteration in the rules of a pension scheme. It was said to have altered the rules in accordance with a power of alteration contained in clause 16 of the scheme under consideration.
  Held: ‘I . .
• Cited – Everard v Paterson CEC ((1816) 2 Marsh 304, Commonlii, [1816] EngR 521, (1816) 6 Taunt 625, (1816) 128 ER 1178)
  The plaintiff sued on a bond which was conditional on performance of an arbitrators’ award ‘made in writing under their hands’. The pleading alleged that the arbitrators had made and published their award in writing; but it did not allege that the . .
• Cited – Chadwick v Clarke CCC ((1845) 1 CB 700)
  The plaintiff and defendant were directors of an insurance company. The board resolved to rent a house from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to . .
• Cited – Technocrats International Inc v Fredic Ltd QBD (Bailii, [2004] EWHC 2674 (QB))
  The court was asked to consider the effectiveness of an unsigned assignment of a chose in action: ‘An assignment is only a legal assignment if it complies with s.136 of the 1925 Act. What that section requires is that there should be an ‘absolute . .
• Cited – Redrow Plc v Pedley and Lewis ChD (Bailii, [2002] EWHC 983 (Ch), [2002] Pens LR 339)
  The company had a final salary pension scheme. The respondents were variously trustees of the scheme, and representative employees. To calculate benefits, it was necessary to determine the ‘total remuneration from the Employers’. The employees . .
• Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA ([1982] QB 84, [1981] 1 All ER 923, [1981] 2 WLR 554, [1982] 1 Lloyds Rep 27)
  The court explained the nature of an estoppel by convention.
  Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
• Cited – Chadwick v Clarke CCC ((1845) 1 CB 700)
  The plaintiff and defendant were directors of an insurance company. The board resolved to rent a house from Mr Chadwick for one year. A memorandum of agreement was prepared and agreed, but it was never signed. The memorandum recorded an agreement to . .
• Cited – Waterson’s Trustees v St Giles Boys’ Club IHCS (1943 SC 369)
  The House considered a testamentary direction by the testatrix to give effect to any ‘informal writing under my hand’. At her death she left holograph directions, but they were not subscribed with a signature.
  Held: This document was not . .
• Cited – Steria Ltd and others v Hutchison and others ChD (Bailii, [2005] EWHC 2993 (Ch))
  . .
• Cited – Hearn v Younger ([2005] Pens LR 49)
  . .
• Cited – Icarus (Hertford) Ltd v Driscoll ChD ([1990] 1 Pens LR 1)
  . .
• Cited – Hoover Ltd v Hetherington ChD ([2002] Pens LR 297)
  . .
• Cited – ITN v Ward ChD ([1997] Pens LR 131)
  . .
• Cited – Lansing Linder Ltd v Alber ChD ([2000] Pensions LR 15)
  Pension scheme rules were amended varying the ages etc for retirement. The rules gave the company power to amend the rules with the consent of the Trustees. The original rules permitted early retirement on an immediate, but actuarially reduced, . .

(This list may be incomplete)
This case is cited by:

• Appeal from – Trustee Solutions Ltd and others v Dubery and Another CA (Times 17-Aug-07)
  When apportioning the assets of a pension fund on its winding up under the statutory scheme, the trustees had to take careful note of the differing historic retirement ages throught the scheme and between men and women. . .

(This list may be incomplete)

Last Update: 05 December 2018
Ref: 242661

The post Trustee Solutions Ltd and others v Dubery and Another: ChD 21 Jun 2006 appeared first on swarb.co.uk.

References: [1966] 2 QB 617, [1965] EWCA Civ 3, [1965] 3 All ER 837, [1966] 2 WLR 28
Links: Bailii
Coram: Lord Denning MR, Dankwerts LJ
Ratio: The plaintiff builders had been chasing payment of their undisputed invoice. Knowing that the builders were in financial difficulties, the defendant offered rather less, saying that if it was not accepted, she would pay nothing. She made the payment in full and final satisfaction of the debt.
Held: The claim for the balance succeeded. The pressure applied had been improper, and there was no ground in equity to disentitle the plantiff recovering the rest.
When a debtor offers to pay only that which he admits he is already due to pay, that is not something which can amount to good consideration for the creditor abandoning the rest, save possibly in certain special circumstances. The doctrine of promissory estoppel only applies when it is inequitable for the creditor (or other representor) to insist on his full rights.
Lord Denning MR said: ‘This principle [the principle of promissory estoppel] has been applied to cases where a creditor agrees to accept a lesser sum in discharge of a greater. So much so that we can now say that, when a creditor and a debtor enter upon a course of negotiation, which leads the debtor to suppose that, on payment of the lesser sum, the creditor will not enforce payment of the balance, and on the faith thereof the debtor pays the lesser sum and the creditor accepts it as satisfaction: then the creditor will not be allowed to enforce payment of the balance when it would be inequitable to do so. This was well illustrated during the last war. Tenants went away to escape the bombs and left their houses unoccupied. The landlords accepted a reduced rent for the time they were empty. It was held that the landlords could not afterwards turn round and sue for the balance, see Central London Property Trust Ltd. v. High Trees House Ltd. This caused at the time some eyebrows to be raised in high places. But they have been lowered since. The solution was so obviously just that no one could well gainsay it.
In applying this principle, however, we must note the qualification: The creditor is only barred from his legal rights when it would be inequitable for him to insist upon them. Where there has been a true accord, under which the creditor voluntarily agrees to accept a lesser sum in satisfaction, and the debtor acts upon that accord by paying the lesser sum and the creditor accepts it, then it is inequitable for the creditor afterwards to insist on the
Danckwerts LJ said that the case of Foakes v Beer: ‘settled definitely the rule of law that payment of a lesser sum than the amount of a debt due cannot be a satisfaction of the debt, unless there is some benefit to the creditor added so that there is an accord and satisfaction.’
Jurisdiction: England and Wales
This case cites:

• Cited – Central London Property Trust Ltd v High Trees House Ltd KBD ([1947] 1 KB 130, [1956] 1 All ER 256, [1947] LJR 77, [1947] 175 LT 332, [1947] 62 TLR 557)
  The plaintiff leased a block a flats to the defendant in 1939, at an annual rental of andpound;2500. High Trees had difficulty in filling the flats because of the war, and the parties agreed in writing in 1940 to reduce the rental to a half. No time . .
• Cited – Hirachand Punamchand v Temple CA ([1911] 2 KB 11, [1911] 2 KB 330)
  The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .

(This list may be incomplete)
This case is cited by:

• Cited – Bradford and Bingley Plc v Rashid HL (Bailii, [2006] UKHL 37, Times 14-Jul-06, [2006] 1 WLR 2066, [2006] 4 All ER 705, [2006] 29 EG 132, [2006] 2 All ER (Comm) 951)
  The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
• Cited – Collier v P and M J Wright (Holdings) Ltd CA (Bailii, [2007] EWCA Civ 1329, [2007] NPC 136, [2008] 1 WLR 643, [2007] BPIR 1452)
  The claimant appealed against refusal of an order to set aside a statutory demand. He said that he had compromised a claim by the creditors. He argued for an extension to the Rule in Pinnel’s case, so that where a debtor agrees to pay part of a . .
• Cited – In Re Selectmove Ltd CA (Times 13-Jan-94, Ind Summary 17-Jan-94, [1995] 1 WLR 474, Bailii, [1993] EWCA Civ 8, [1995] STC 406, [1995] 2 All ER 531)
  The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
  Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .

(This list may be incomplete)

Last Update: 05 December 2018
Ref: 243135

The post D and C Builders Ltd v Rees: CA 1966 appeared first on swarb.co.uk.

References: [2006] EWCA Civ 1139, [2006] 1 WLR 2964
Links: Bailii
Coram: Mummery LJ, Dyson LJ, Sir Martin Nourse
Ratio: The defendants orally agreed to sell the claimant a block of flats for andpound;12 million if he first obtained planning permission for it on terms as to a sharing of subsequent development profits. The claimant spent over andpound;100,000 and gained planning permission, whereupon the defendant resiled from the oral agreement and demanded andpound;20 million instead of andpound;12 million as the purchase price.
Held: The appeal failed. The Court upheld the grant to the claimant of a lien secured on the property for 50 per cent of the development value attributable to the obtaining of the planning permission. The 1989 Act had not displaced the doctrine of proprietary estoppel: ‘section 2 has no application to this proprietary estoppel claim. No concluded agreement was made. There can be no question of an action of enforce the Second Agreement. The section is irrelevant to an action to enforce a cause of action for proprietary estoppel which does not depend on the existence of a concluded agreement for sale or on the enforcement of it, but on the inducement and encouragement to get Mr Cobbe to apply for and obtain planning permission in the belief and expectation that he would get a binding contract for the sale of the Property for andpound;2 million plus overage.’
Statutes: Law of Property (Miscellaneous Provisions) Act 1989 2(1) 2(5)
Jurisdiction: England and Wales
This case cites:

• Cited – Yaxley v Gotts and Another CA (Gazette 14-Jul-99, Times 08-Jul-99, Bailii, [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, Bailii, [1999] EWCA Civ 3006, [2000] 1 All ER 711)
  The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
• Appeal from – Cobbe v Yeomans Row Management Ltd and Others ChD ([2006] 1 WLR 2964, Bailii, [2005] EWHC 266 (Ch))
  A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .

(This list may be incomplete)
This case is cited by:

• Cited – Anderson Antiques (UK) Ltd v Anderson Wharf (Hull) Ltd and Another ChD (Bailii, [2007] EWHC 2086 (Ch))
  The claimants owned land against which they said, the defendant had wrongfully registered notices. They sought removal of the notices, damages, and an injunction to prevent further notices being registered. The first defendant asserted an oral . .
• Appeal from – Yeoman’s Row Management Ltd and Another v Cobbe HL (Bailii, [2008] UKHL 55, Times, [2008] 35 EG 142, [2008] 31 EG 88, [2008] WTLR 1461, [2008] 1 WLR 1752, HL)
  The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
  Held: The appeal succeeded in part. The finding . .

(This list may be incomplete)
Leading Case
Last Update: 05 December 2018
Ref: 244479

The post Yeoman’s Row Management Ltd and Another v Cobbe: CA 31 Jul 2006 appeared first on swarb.co.uk.

References: [1862] EWHC Ch J67, [1862] 45 ER 1284, (1862) 4 De GF and J 517, [1862] EngR 908, (1862) 4 De G F and J 517, (1862) 45 ER 1285
Links: Bailii, Commonlii
Coram: The Lord Chancellor Lord Westbury
Ratio: The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him ‘for the purpose of furnishing himself with a dwelling-house’. The memorandum was not by deed. The son built his home on the land. When the father died, the elder son disputed his brother’s title.
Held: The Master of the Rolls said younger son was entitled to a life interest. Lord Westbury LC allowed the younger son’s appeal, saying: ‘About the rules of the Court there can be no controversy. A voluntary agreement will not be completed or assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift . . so if A puts B in possession of a piece of land, and tells him, ‘I give it to you that you may build a house on it,’ and B on the strength of that promise, with the knowledge of A, expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance.’ The Lord Chancellor awarded the younger son the fee simple since ‘no one builds a house for his own life only.’
This case is cited by:

• Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL (Bailii, [2008] UKHL 55, Times, [2008] 35 EG 142, [2008] 31 EG 88, [2008] WTLR 1461, [2008] 1 WLR 1752, HL)
  The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
  Held: The appeal succeeded in part. The finding . .

(This list may be incomplete)
Leading Case
Last Update: 05 December 2018
Ref: 245427

The post Dillwyn v Llewelyn: ChD 12 Jul 1862 appeared first on swarb.co.uk.

References: [2007] EWHC 463 (Ch)
Links: Bailii
Coram: Briggs J
Ratio: The claimant said the defendant had failed to complete his promise to arrange for the issue of shares in a company in return for a loan. The defendant denied the contract.
Held: It had been agreed to treat the claimant as a fifty per cent participant, and an estoppel had been created as against the defendants.
As to damages: ‘The ‘but for the breach’ analysis called for by the application of the basic equitable principle requires the court to decide what would hypothetically have happened if, instead of committing the breach of trust, the Kents as trustees had in all respects complied with their fiduciary obligations. In this respect equity follows the law, in which for example damages are quantified by reference to the difference between the effect of the breach and the position which the claimant would have been in, had the defendant complied with his contract. ‘ Damages were awarded accordingly.
Jurisdiction: England and Wales
This case cites:

• Cited – Walsh v Lonsdale CA ([1882] 21 ChD 9)
  Lonsdale purported to grant to Walsh a seven year lease with rent payable in advance. The lease was not embodied in a deed, and when Walsh went into possession, an annual tenancy with rent payable in arrear was created. Walsh did not pay in advance, . .
• Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL (Gazette 06-Sep-95, Times 21-Jul-95, Independent 10-Aug-95, [1996] 1 AC 421, Bailii, [1995] UKHL 10, [1995] 3 All ER 785)
  The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .

(This list may be incomplete)

Last Update: 06 December 2018
Ref: 250019

The post Harris v Kent and Another: ChD 14 Mar 2007 appeared first on swarb.co.uk.

References: [2007] EWCA Civ 684
Links: Bailii
Coram: Mummery, Sedley,Moore-Bick LJJ
Ratio: The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered first, but the respondents charge was intended to secure finance to repay it in part, and the respondents said the apellants had agreed to give them priority even though at first no there had been no direct communication between them.
Held: The court upheld the judge’s findings on the facts. There had been passive acquiescence by the appellant and its appeal against the finding of an estoppel failed.
Statutes: Land Registration Act 1925, Law of Property (Miscellaneous Provisions) Act 1989 2
Jurisdiction: England and Wales
This case cites:

• Cited – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD ([1982] QB 133, [1981] 2 WLR 576, [1981] 1 All ER 897, [1979] 251 EG 159, Bailii, [1979] EWHC Ch 1)
  The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
• Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA ([1982] QB 84, [1981] 1 All ER 923, [1981] 2 WLR 554, [1982] 1 Lloyds Rep 27)
  The court explained the nature of an estoppel by convention.
  Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
• Cited – Yaxley v Gotts and Another CA (Gazette 14-Jul-99, Times 08-Jul-99, Bailii, [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, Bailii, [1999] EWCA Civ 3006, [2000] 1 All ER 711)
  The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
• Cited – Republic of India and Another v India Steamship Co Ltd (Indian Endurance and Indian Grace) (No 2) HL (Gazette 12-Nov-97, Times 23-Oct-97, House of Lords, Bailii, [1997] UKHL 40, [1997] 4 All ER 380, [1997] 3 WLR 818, [1998] AC 878)
  When a action in rem against a ship was in fact parallel to an action in personam begun in India and awaiting a decision; an action was not to be allowed here.
  Lord Steyn: ‘It is settled that an estoppel by convention may arise where parties to . .

(This list may be incomplete)

Last Update: 07 December 2018
Ref: 254462

The post Scottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd: CA 5 Jul 2007 appeared first on swarb.co.uk.

References: [2007] EWHC 2423 (Ch)
Links: Bailii
Coram: John Randall QC
Ratio: Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did not affect the result. The bank’s claim under estoppel was made out.
This case cites:

• Cited – Yorkshire Bank Plc v Hall; Hall; Hall and Mann CA (Times 14-Jan-99, Bailii, [1998] EWCA Civ 1961, [1999] 1 WLR 1713, [1999] 1 All ER 879)
  The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own . .
• Cited – Tarjomani v Panther Securities Ltd CA ((1983) 46 PandCR 32)
  The tenant disputed whether he had surrendered the property in the lease.
  Held: The court considered the basis of an implied surrender: ‘In my judgment, it is indeed estoppel that forms the foundation of the doctrine. The doctrine operates . .
• Cited – John Nethken Zionmor v Mayor and Burgesses of London Borough of Islington CA (Bailii, [1997] EWCA Civ 2460, (1997) 30 HLR 822)
  The council appealed a finding that the claimant, a secure tenant, had not surrendered his tenancy. He had sought to exercise his right to buy the property, but was said to have left the premises before the lease was completed. The property was . .
• Cited – Abbey National Building Society v Cann HL ([1990] 1 All ER 1085, [1991] 1 AC 56, Bailii, [1990] UKHL 3)
  Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
• Cited – British Credit Trust Holdings v UK Insurance Limited QBD ([2003] EWHC 2404 (Comm), Bailii)
  The claimant was permitted to amend the particulars of claim in an insurance dispute in order to seek declaratory relief in respect of insurance claims arising after the proceedings had started.
  Held: The lease had been surrendered by a deed. . .
• Cited – Maridive and Oil Services (SAE) and Another v CNA Insurance Company (Europe) Ltd CA (Bailii, [2002] EWCA Civ 369, [2002] 2 Lloyd’s Rep 9, [2002] 2 LLR 9, [2002] 1 All ER (Comm) 653)
  The Civil Procedure Rules have allowed the Courts to accept an amendment to introduce a cause of action arising out of facts occurring subsequent to the commencement of the proceedings. There is no absolute rule of law or practice which precludes an . .
• Cited – Church of England Buidling Society v Piskor CA ([1954] Ch 553)
  Weekly tenancies had been granted by the purchaser of the property, title to which was unregistered, before completion. The society now sought possession of the property. The tenants argued that although their tenancies were equitable, they were . .
• Cited – Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another CA (Times 01-Dec-95, Gazette 11-Jan-96, [1996] Ch 207)
  The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

(This list may be incomplete)
This case is cited by:

• Cited – Cook v The Mortgage Business Plc CA (Bailii, [2012] EWCA Civ 17, [2012] HLR 21, [2012] 1 WLR 1521, [2012] 1 PandCR 18, [2012] 5 EG 82, [2012] 1 EGLR 89, [2012] 15 EG 96)
  The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .

(This list may be incomplete)

Last Update: 10 December 2018
Ref: 260346

The post Hardy and others v Fowle and Another: ChD 26 Oct 2007 appeared first on swarb.co.uk.

References: [2007] EWHC 2422 (Ch)
Links: Bailii
Coram: John Randall QC
Ratio: The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary estoppel. The court asked the question of whether in establishing an obligation to make a disposition in a will, an express promise had to be found.
Held: Where the assurances relied on fall significantly short of express promises made in terms as such, it will be all the more important for the claimant to be able to support his case with clear and substantial detrimental reliance, and perhaps with evidence from others corroborating the meaning and intention which he (the claimant) imputes to the deceased’s words or actions. An estoppel had arisen in this case by the father’s conduct. In the circumstances of this estate the expectation created could be fulfilled without causing injustice to other beneficiaries, by applying the minimum equity principle.
This case cites:

• Cited – Gillett v Holt and Another CA (Times 17-Mar-00, Gazette 23-Mar-00, Bailii, [2000] EWCA Civ 66, [2001] Ch 210, [2000] 2 All ER 289, [2000] 2 WTLR 195, [2000] Fam Law 714, [2000] 1 FCR 705, [2000] 3 WLR 815, [2000] 2 FLR 266)
  Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
• Cited – Inwards v Baker CA ([1965] QB 29, Bailii, [1965] 1 All ER 446, [1965] 2 WLR 212, [1965] EWCA Civ 465)
  An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
  Held: The court formulated the . .
• Cited – Ramsden v Dyson HL ([1866] LR 1 HL 129, [1866] 12 Jur NS 506)
  The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
• Cited – Uglow v Uglow and others CA (Bailii, [2004] EWCA Civ 987, [2004] WTLR 1183.)
  The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
  Held: The judge was right to have found that the promise was bound up with the claimant being . .
• Cited – Wayling v Jones CA (Gazette 02-Aug-93, [1993] 69 PandCR 170)
  The plaintiff and defendant were in a homosexual reationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .

(This list may be incomplete)
This case is cited by:

• Appeal from – Thorner v Major and others CA ((2008-09) 11 ITELR 344, [2008] 2 FCR 435, Bailii, [2008] EWCA Civ 732, [2008] WTLR 1289, [2009] 3 All ER 945)
  The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
  Held: . .
• At First Instance – Thorner v Major and others HL (Bailii, [2009] UKHL 18, Times, HL, [2009] 13 EG 142, [2009] WTLR 71, [2009] Fam Law 583, [2009] 2 FLR 405, [2009] 1 WLR 776)
  The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .

(This list may be incomplete)

Last Update: 10 December 2018
Ref: 260349

The post Thorner v Curtis and others: ChD 26 Oct 2007 appeared first on swarb.co.uk.