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Brooker v Chisholm (Dartford County Court, HHJ Simpkiss, 11 April 2022)

In Brooker v Chisholm (Dartford County Court, HHJ Simpkiss, 11 April 2022), Gavin Bennison, instructed by Jo Ord of Farrer & Co LLP, successfully appealed a trial judge’s finding of fact in a proprietary estoppel claim, between grandfather and granddaughter, that was described by the trial judge as a ‘tragic’ case.

The claimant and defendant were granddaughter and grandfather respectively. In May 2005, the defendant’s partner died. The defendant, then aged 76, settled an Inheritance Act claim with his partner’s estate on terms which permitted him to purchase her house, in which he had been living since the 1980s, for an agreed discount from its market value. He also obtained a lump sum from the estate. However he could not obtain a mortgage and so turned to his granddaughter the claimant, then aged 26, for assistance.

The defendant contended at trial that, at a family gathering in late 2006, the claimant and defendant orally agreed that the claimant would purchase the property using the defendant’s settlement monies, taking out the mortgage in her own name, and that in return he would be allowed to live in the house for the rest of his life. The claimant’s evidence, supported by that of her mother and father, was that the agreement reached was different: the defendant was to be permitted to live in the house only so long as the claimant could afford to pay the mortgage whilst living elsewhere, and if her circumstances changed she would be entitled either to move into the house or to sell it. The property was duly purchased in December 2006 and the defendant entered into occupation.

In 2013, the claimant split from her then-partner and sought to move into the property. The defendant refused. The claimant was then required to move into rental accommodation for the rest of her thirties, which put financial strain on her in addition to the burden of the mortgage. In 2018, after the defendant had been living rent-free in the property for over 12 years and the defendant was aged 86, the claimant reluctantly sought possession of the property. The defendant defended the claim on the basis of proprietary estoppel.

At a one-day fast track trial in March 2019, the trial judge, in an ex tempore judgment extending to little more than 17 lines of text, rejected both sides’ case. He found that the claimant had merely represented to the defendant that he could “live at the property” following its purchase, without any further qualification or conditions. But he held that that was sufficient to generate a proprietary estoppel binding the claimant. He made an order that “both the claimant and the defendant are entitled to possession of the property” and required the claimant to continue to pay the mortgage.

Very sadly, between the trial and the appeal (heard just over three years after the trial), the defendant was diagnosed with Alzheimer’s disease and appeared at the appeal with a litigation friend.

The claimant appealed the trial judge’s order on seven grounds, six of which obtained permission. At the appeal hearing, eventually heard in April 2022, HHJ Simpkiss only considered it necessary to hear argument on the first two of those grounds and allowed the appeal on both grounds, namely:

  1. The trial judge’s finding of fact was one that no reasonable judge could have made and accordingly could not stand (as per Volpi v Volpi [2022] EWCA Civ 464). The claimant’s evidence as to the oral agreement reached between the parties in late 2006 had not been challenged in cross-examination; the defendant’s evidence had failed to come up to proof; and there had accordingly been no evidential basis for the trial judge to reject the claimant’s case as to what had happened. HHJ Simpkiss described the order made at trial as “extraordinary”, the trial judge’s judgment as “wholly inadequate” and “not so much short as non-existent”, and remarked that “the arguments by the claimant were not addressed to any degree”.
  2. If, contrary to the judge’s decision on Ground 1, the trial judge’s finding of fact were to stand, it would not in any event have been an “assurance of sufficient clarity” to be capable of founding a proprietary estoppel (Davies v Davies [2016] EWCA Civ 463 at [38](ii)). The judge accepted the claimant’s submission, relying principally on remarks made by Lewison J in Parker v Parker [2003] EWHC 1846 (Ch), that the minimum degree of clarity which needs to be specified (expressly or impliedly) in order for an assurance to be capable of generating a proprietary estoppel is the duration of the proprietary interest that is promised to the promisee. Simply saying “you can live there” would never be enough.

The trial judge’s order was therefore set aside and the claimant granted an order for possession of the property in 28 days, with costs of the claim and appeal.

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