17th, Thursday July 2003

J U D G M E N T

1. LORD JUSTICE PETER GIBSON: I will ask Longmore LJ to give the first judgment.

2. LORD JUSTICE LONGMORE: A few days before they were incorporated, the claimant company, Century UK Ltd SA, "acquired" a large property, which we are told has nine bedrooms and stands in three and a half acres, called the Gables, in Bury Road in the town of Newmarket from a Mr and Mrs Kenneth Nurse. The majority shareholder and moving spirit of the company was Ivan Allan. He arranged for a lady called Mrs Susan Hanley to look after The Gables on his behalf. He tended to live there for short periods only, during what was obviously a busy life, while he was devoting himself to the pleasure of horse-racing. He had the use of many other properties, including at least two in London.

3. In 1986 he met a lady called Glory Clibbery (whom I will call "Miss Clibbery") and began a relationship with her. She and her mother Marguerite (whom I will call "Mrs Clibbery") at the time were living in Battersea but Miss Clibbery moved into one of Mr Allan's London apartments in or near Piccadilly.

4. In 1987 Mr Allan invited Mrs Clibbery to live in The Gables. In a witness statement of 20th June 2001, which was made after the dismissal of proceedings brought by Miss Clibbery in the Family Division but which, for the purpose of the present proceedings for summary judgment, must be accepted as accurate, Mrs Clibbery said this:

"At the time all my friends lived in London, as did Glory.

However, I agreed to move into The Gables. Ivan Allan, confirmed to me that I could live at The Gables for as long as I wished.

At that time, a Susan Hanley looked after The Gables on behalf of Century. However, I was involved in the general running of the house -- doing some of the gardening, cleaning and other household chores.

After approximately one year, Susan Hanley left The Gables. I took over the running of the house. This was not discussed, rather the situation just evolved."

Mrs Clibbery then sets out the nature of the activities which she did on behalf of Mr Allan.

5. In a second statement of 9th August 2002 she said this:

"As I saw it, she [that is Miss Clibbery] and Ivan were a couple, I was the mother/mother-in-law and so part of the family. It was perfectly natural in the circumstances for Ivan to tell me that I could stay at The Gables for as long as I wished and for me to be happy to work for him or his company free of charge and to pay out money where necessary. I thought I was simply acting for the benefit of what I saw as a family.

The Gables therefore became my home and has remained as such since 1987."

6. Unhappily the relationship between Mr Allan and Miss Clibbery broke down in acrimonious circumstances. As I have said, Miss Clibbery issued proceedings in the Family Division in relation to the Piccadilly flat where she was residing. On 2nd October 2000 Mr Allan sent a letter to Mrs Clibbery, terminating, or purporting to terminate, any right she had to occupy The Gables. She did not move out and Mr Allan took no steps to regain possession pending the outcome of the Family Division proceedings. Those proceedings were dismissed by His Honour Judge Crickler on 12th April 2001. At about that time Miss Clibbery moved into The Gables with her mother. On 27th April 2001 Mr Allan sent her a letter terminating any licence she might have to occupy The Gables. Neither Miss Clibbery nor Mrs Clibbery have yet moved out.

7. On 18th June 2001 Mr Allan caused his company to institute proceedings for possession under rule 113 against both Miss Clibbery and Mrs Clibbery. Those proceedings were met by a defence served on 25th July, claiming a declaration that the company held The Gables on trust for Mrs Clibbery and a declaration that Miss Clibbery was entitled to reside at The Gables as Mrs Clibbery's licensee.

8. After evidence had been filed, an application for summary judgment came before Deputy Master Mark in the Chancery Division on 23rd September 2002, who held (1) that sums that were said to have been spent on the property by Mrs Clibbery were spent on the basis that she would be repaid for them, but (2) that there was a sufficient, if fragile, case that Mrs Clibbery worked looking after the property and performing secretarial duties because she had been told that she could stay as long as she wished.

9. The company appealed, and on 21st March 2003 Mr Peter Leaver QC, sitting as a Deputy Judge of the Chancery Division, allowed the appeal. He held that he was a court of review and ought not to interfere with the decision of the Deputy Master unless he had exceeded the generous ambit with which reasonable disagreement was possible. Next, he held that any payments made by Mrs Clibbery for work done on the property had been reimbursed, or were at least reimbursable. He further held that the helping out on the part of Mrs Clibbery, as she was asked to do by Mr Allan, was not a detriment which could give rise to what he called promissory estoppel. The Deputy Judge said further that no proprietary estoppel was being alleged. He therefore gave judgment for the company.

10. There is now an appeal to this court, and I say at once that, for my part, it seems to me that this is a case where there ought to be a full trial of the issues, despite the careful judgment of the learned deputy judge. Mr Andrew Glennie has appeared for Mrs and Miss Clibbery and has submitted, rightly in my judgment, that the court must proceed on the basis that the alleged assurance was given. Mr Reynolds QC for the company has made powerful submissions about the context in which the assurance must have been given, namely that it was given in a family context and that it is impossible to imagine that it was intended that whatever assurance was given was to last beyond the existence of the relationship. He emphasised that there was nothing to suggest that Mr Allan could not at any time that he wished use the property himself. An exclusive licence to occupy the property for the remainder of Mrs Clibbery's life is not claimed.

11. Nevertheless, it does seem to me that it is arguable that the deputy judge misunderstood the position in two ways:

(1) the claim, for what it is worth, is a claim for proprietary estoppel; and

(2) it is arguable, contrary to what the deputy judge has currently held, that the conduct of Mrs Clibbery, undertaken at Mr Allan's request, could conceivably form sufficient detriment to warrant a proprietary estoppel of the kind which was being alleged.

12. Mr Glennie has accepted that he has put his case far too high in the pleadings, where he has claimed a constructive trust. He now confines his claim to a non-exclusive licence to occupy the premises for the rest of Mrs Clibbery's life based on the doctrine of proprietary estoppel as recently set out by this court in Gillett v Holt[2001] Ch 211.

13. Since I have come to the conclusion that it is appropriate for there to be a full trial where the context and the reasonable understanding of whatever words were used should be addressed, it is wise to say no more on that point. I will, however, add that Mr Glennie wished to raise a new point -- not quite the same point as taken before the deputy judge -- on the title to the property. He submitted that it was Mr Allan who had granted the licence, but the claim had been brought by the company, who had pleaded its own title. As I indicated at the beginning of this judgment, in fact the company was not incorporated until some days after the conveyance from Mr and Mrs Nurse. On any ordinary view of the matter, however, by the time Mr Allan granted the licence to Mrs Clibbery to occupy The Gables, he must have been acting on behalf of the company. Mr Glennie was pressed by the court to suggest any scenario other than Mr Allan's agency on behalf of the company. His response was, well, that may well have been the position, but that is not good enough for the purposes of an application for a summary judgment. That is a point which should be nailed now, as it is perfectly clear to me that, when Mr Allan granted such licence as he did to Mrs Clibbery, he must have been acting as the agent of the company.

14. I say in conclusion that Mr Glennie has said that various other ways of working out any proprietary estoppel may be open to the court at a trial, and when it was pointed out to him that that was not in his pleading and, indeed, all that there was in his pleading was a claim for a constructive trust which has now been abandoned, he said that he was entitled to maintain proprietary estoppel (and any necessary way of working it out) under the head of "further or other relief". In my judgment, it would be far better if Mr Glennie pleaded what he really was contending for, so that the court at the trial will know what the genuine issues between the parties are.

15. Apart from that, I for my part would allow the appeal, set aside the judgment of the deputy judge and direct that the matter proceeds to trial.

16. LORD JUSTICE MANCE: I agree that there should be a trial on the issue of proprietary estoppel. I also agree that we can and should now determine that there is nothing in the title point so that this point can no longer be raised hereafter.

17. LORD JUSTICE PETER GIBSON: The Deputy Master expressed the view that:

"There is a sufficiently ... fragile case that [Mrs Clibbery] worked as she did because she could stay for as long as she wished."

That was based on Mrs Clibbery's first witness statement, in particular where she makes the specific assertion that if she had thought that she could not remain in the Gables for as long as she wished she would not have assisted Mr Allan and that she took the steps she did purely on the basis that she was told by Mr Allan that she could remain in possession of the property as long as she wished.

18. The difficulties in Mrs Clibbery's way in succeeding at the trial are obvious. Her bold claim is to be able to stay for the rest of her life in The Gables, a substantial property of nine bedrooms and, we were told, some three and a half acres, albeit her possession would not be exclusive. She claims that her entitlement enabled her to continue in possession whether or not the relationship between her daughter and Mr Allan broke down. That would be a surprising result. Nevertheless, for the reasons given by Longmore LJ, I too am persuaded that this is a case which will have to go to trial to find the facts, unless a sensible compromise is reached. I would hope that the parties would take steps to reach such compromise. In my judgment, the deputy judge took too robust a view, albeit it is what many would think of as a strongly commonsense view, of the matter. I too would not allow any further argument on the question of title.

19. For these reasons, as well as those given by my Lord, I too would allow this appeal.

Order: Appeal allowed. We will award the successful defendants 80 percent of the costs before the Deputy Judge and this court. The successful defendant, Mrs Clibbery, will have 90 percent of her costs. The Master's order as to costs, we note, was costs in the case. That is reinstated. The Appellant's costs to be subject to detailed assessment if not agreed.