Cook v Thomas & Anor

This appeal by the Defendants is brought from an order of Mr Recorder Stephen Eyre made on 31 July 2009 in proceedings in the Hereford County Court. The litigation arises from a most unfortunate and regrettable dispute.

The Claimant, Mrs Cook, is a widow aged 92. Her only child is Mrs Pauline Thomas, the First Defendant, who herself is now 60, and is married to the Second Defendant, Wyndham Thomas, who is 76. The proceedings relate to Tretawdy Farm, Llangrove, Ross-on-Wye, which has been the home of the Claimant since 1959, was the home of the First Defendant from the age of 9 until her marriage in 1990, and has been the home of the Defendants since 1996. The parties have fallen out and have not been on speaking terms since about 2002. Mrs Cook is undoubtedly the sole owner of the property. By these proceedings she seeks to evict her daughter and son-in-law from the house and farm. This she is entitled to do unless the Defendants can make good their claim, which is put in various ways but is essentially one of proprietary estoppel, whereby the Claimant is to be precluded from relying on her legal right to claim possession, and required to recognise a right on the part of the Defendants which is now said to be a right to live in the property during the remainder of the Claimant’s life (together with her), and to become the absolute owners of the property on her death. The recorder rejected this claim in an admirably careful and considered judgment, following a two day trial in the course of which he heard all three parties give evidence, together with one other witness.

The Claimant and her late husband moved to Tretawdy Farm in 1959. The farm extends to not quite 19 acres, so it is not unfairly described as a smallholding, with a farmhouse on it. Mr Cook kept some cows and horses on the land and tended them in his spare time from his employment, milking the cows and delivering milk locally. His wife was not at all interested in the farming. Miss Cook (as the First Defendant then was) helped her father on the farm, particularly with the milk, eventually taking the milk round over from him. She also operated a riding stables and later, from about 1970 to 1984, a riding school there.

In 1990 the First Defendant married the Second Defendant. For whatever reason (it is unnecessary for the purposes of these proceedings to try to decide why) this caused a complete rift between the parents and their daughter. They were not on speaking terms for the next 5 years or so, until Mr Cook’s death in November 1995.

The Defendants did attend Mr Cook’s funeral, however, and this led to a reconciliation which lasted for some 6 years. At the time of the funeral the Defendants lived in a mobile home which they owned, on a caravan site where they paid a modest ground rent.

During 1996 the Defendants sold their then mobile home, bought another and moved to Tretawdy Farm, planning permission having been obtained on a temporary basis to place a mobile home there. They lived in that mobile home on the farm until late 2001. At that time their mobile home was seriously damaged in a storm, and part of the roof came off, so that it was no longer habitable. Then the Defendants moved into the farmhouse. In 1996 they took over the farm and such farming activity as there has been since then (mainly sheep) has been theirs. They have repaired farm buildings.

It is clear that the farmhouse was in a dilapidated state by 1996. A number of works of repair to the house were undertaken between 1996 and 2002, some of them at the initiative or the expense (or both) of Mrs Cook and others to some extent at that of the Defendants, and some of them done by the Second Defendant.

The Defendants’ case is that, between 1996 and 2001, the Claimant’s words (on four separate occasions) and conduct was such that, they having reasonably relied on the words and conduct to their detriment, she is now not entitled to deny them either the right to live in the farmhouse and to farm the land for as long as they want or the ownership of the whole property on her death.

In about 2002 the parties fell out again. The judge heard evidence about why this was, and about an incident to do with a Landrover which seems to have been at least a significant cause. It is unnecessary to go into that for the purposes of the appeal. At some time, probably after that, the Defendants came to know, or to suspect, that under the Claimant’s will they would not inherit the property on her death. The Claimant says that she and her husband had agreed that the farm should eventually go to a particular local nature charity. By a will made after her husband’s death, and after the reconciliation with the Defendants, in 1996, she left a life interest in the property to the Defendants, and gave it to the charity subject to that life interest. She gave her residuary estate to the First Defendant. Since then she has made two further wills. Under the latest the property is to go straight to the charity, with no interest to either Defendant.

Since the date, which I take to have been in about 2002, when the parties fell out, they have continued to live in the house, but have not been on speaking terms. The house is so laid out that they can and do live separate lives. In March 2008 the Claimant’s solicitors gave the Defendants six months’ notice to quit the property. Her legal title is not in dispute, but the Defendants deny that she is entitled to turn them out, and they live in the house still, with the benefit of a stay of execution since the judgment against them.

The Defendants’ case is put in different ways in the Defence and Counterclaim: proprietary estoppel, estoppel by conduct, estoppel by agreement, constructive trust and unjust enrichment. As it seems to me, if the Defendants can make out a case it is by virtue of proprietary estoppel. If they cannot do so on the principles relevant to that, they cannot do so under any other label.

The facts on which this case is put forward centre on what was said on four occasions, described in the Defence and Counterclaim as four “promises”, on the individual and cumulative effect of these promises, on how the Defendants understood what was said to them and what they did in reliance on the promises, and on the Claimant being aware of what they were doing and allowing them to go on doing it without correcting any misapprehension that they were under. (I will use the word promise as a convenient label, without prejudging the terms or effect of what, if anything, was said.)

So far as two of the four promises are concerned, the first and last, something was said between the parties, and the dispute was as to what it was, and how it was, or should reasonably have been, understood. In the case of the other two, the Claimant denied that anything at all had been said as alleged. In each case, therefore, there was a dispute of fact to be resolved by the judge on the evidence as to what was said, and as to the relevant context in which it was said. Equally, he had to decide how whatever was said was taken and understood, as a matter of fact.

The first promise is said to have been given as part of the arrangement under which the Defendants moved to Tretawdy Farm in 1996. The Defendants say that the arrangement was at the Claimant’s initiative and request, whereas she says it was at their, or the Second Defendant’s, suggestion. In paragraph 12 of the Defence and Counterclaim they assert that the arrangement was that they would move from their then mobile home to live in another mobile home on the farm, so as to be able to tend to the Claimant’s physical needs, provide her with company and make her feel safer, to take over all aspects of the farming activity, and carry out necessary repairs to the property, including to the farmhouse, paying no rent but making a contribution to household bills, with unlimited use of the gardens and farmland for as long as they wanted, running the farm for their own benefit entirely. It is not in dispute that they did sell their mobile home and move to another on the farm, nor that they took over all the farming activity, which they carried on as suited them.

In February 1996 the Claimant applied for planning permission for the mobile home to be placed on the farm. In her letter to the planning authority, she said that she was registered disabled and 79 years old, and needed someone at hand to help in an emergency, and to help with jobs that needed doing to keep the property reasonably tidy, if she was to be able to stay at the property as she wanted. Permission was granted in April 1996 for 3 years or until she left the property, whichever was the sooner. It was renewed for a further 3 years (on the same basis) in 1999. The limitation of time was explained on the basis that permanent siting of a caravan would be contrary to the proper planning of the locality.

The Claimant denied in her Reply and Defence to Counterclaim, and in evidence, that the arrangement was made in order that the Defendants should help her with her physical needs, provide her with company or make her feel safer. She said that her letter to the planning authority overstated her dependence on the Defendants.

What the Defendants allege as the second promise is said to have been made in about 1998. What is not in dispute is that at about that time a bedroom on the first floor at the north end of the house was rebuilt so as to be usable. The Defendants’ case (paragraph 16 of the Defence and Counterclaim) is that this was done by the Second Defendant under an agreement under which he would rebuild the north end of the farmhouse and, once the work was completed, one of the bedrooms at that end of the house would become the Defendants’ own bedroom in the house for them to use when and for however long they wanted. The Claimant denies that this was the basis on which the bedroom was made habitable.

The third promise, according to the Defendants’ allegation, arose at a time which they originally put at 1999, but which can be identified from documents as October or November 2000, when the Claimant had a new roof put on a lean-to structure which adjoins the farmhouse. They say that she asked them whether they wanted the roof to be put higher and explained her enquiry by saying “because you know this is all going to be yours when I am gone anyway” (Defence and Counterclaim paragraph 16). The Claimant denied that she ever said any such thing.

The fourth promise is said to have been the arrangement under which, after the storm late in 2001, the Defendants moved into the farmhouse. Their case, at paragraph 18 of the Defence and Counterclaim, is that she told them that if the Second Defendant hurried up and got finished the work, not then complete, of decorating and completing the rooms in the farmhouse below the bedroom which was the subject of the second promise, then they could move into the farmhouse and occupy that part of it from then on as long as they needed to while she was alive, instead of waiting until her death. The Claimant admitted that she offered them accommodation in the farmhouse, out of compassion, but denied that the offer was in any respect conditional or that it carried the right to live there for ever.

That is an outline of the Defendants’ case as regards the express representations on which they base their estoppel case. As regards reliance, they say that after the first promise they gave up their mobile home, in respect of which they had security of tenure such as they did not have while in the mobile home at Tretawdy Farm. They moved to the farm, took over all the farming operations, bought additional sheep quota and acquired extra farm stock. After the second promise the Second Defendant commenced the reconstruction of the north end of the farmhouse. No particular act of reliance is alleged in relation to the third promise by itself. After the fourth promise, it is said, the Defendants hurried the completion of the rooms below the bedroom and held off doing repairs to their mobile home.

More generally, they rely on extensive repairs and improvements done to the farmhouse and the farm between 1997 and 2004, taking over the farming responsibilities, running the farm as their own and improving the farm, providing companionship to the Claimant, giving up the security of their previous mobile home, giving up their previous employment and taking local seasonal employment, and assisting with household and domestic bills, expenses and chores. They contend that the Claimant knew at all times of these activities of theirs, approved and acquiesced in them and encouraged them. Broadly speaking, all of that was denied.

Thus, the judge was faced with the need to find the facts as to what was said by the Claimant to the Defendants or either of them, how it was in fact taken, and what was done by them in reliance on anything she said to them or her conduct generally.

He had witness statements from each of them, and from one other witness, a Mr Boulton, who was called on behalf of the Claimant, but who had little evidence of importance to give on the most critical issues. The Defendants gave evidence first, since in effect the burden was on them to make out their proprietary estoppel case. Mrs Thomas gave evidence for the first morning and part of the afternoon. Mr Thomas gave evidence for the rest of that afternoon. Mrs Cook gave evidence in turn for the second morning and for quite a part of the afternoon. Mr Boulton gave evidence relatively briefly after that, leaving little time for submissions. Counsel made some brief submissions, principally commenting on a statement from the judge as to his understanding of the law, so that they could correct him if necessary. They then put in sequential written closing submissions (having already put in written openings), those from Mr Stenhouse extending over some 27 closely typed pages, in response to a somewhat less full submission from Mr Paton.

The Claimant is quite deaf, and special steps were taken, as is apparent from the transcript, to endeavour to make sure that she heard and understood what was being said, above all during her own oral evidence.

Her deafness may, in practice, have afforded the judge less of a problem as regards accepting the reliability of her evidence than another factor, namely the strength of her emotion about the Defendants and what she perceived to have been their behaviour.

The judge gave himself an impeccable direction as to the significance of demeanour and the impression made by witnesses during oral evidence (paragraph 30). He said at paragraph 31 that he was satisfied that none of the witnesses was deliberately trying to mislead him, and that they honestly believed to be true what they said in evidence. However, in the case of each of them, there were things which could be shown not to have happened at the time or in the way he or she said in evidence.

As regards Mrs Cook, despite her being hard of hearing, he said that she gave her evidence clearly and directly (as is apparent from the transcript) and with full understanding both of the points made orally and of the documents. However, her own documents showed that her evidence about the Landrover incident was incorrect in some respects. The judge considered her as a witness at some length in paragraphs 32 to 34. He concluded that her sense of grievance about this had caused her to exaggerate, and her anger and bitterness towards the Defendants was apparent. He said that she had allowed her recollection of past events to be coloured by her current belief and perception as to the nature of the Defendants’ conduct. He had to bear in mind the possibility that this emotion had also affected her recollection of the comments or promises made to the Defendants.

The judge said that Mrs Thomas was an impressive witness, giving evidence in moderate, reasoned and considered terms. However there were features of her evidence that could be shown to be wrong, and he concluded that to some extent she had allowed her recollection of what had actually happened to become coloured by her belief as to what should have happened or as to what was right. He gave three examples of this at paragraph 37, though the first of them was only as to an inconsistency between the Defendants’ respective evidence, on which he held that Mrs Thomas was correct.

The judge had greater reservations about Mr Thomas’ evidence, which included inconsistencies with his wife’s evidence and an assertion, made for the first time in cross-examination, that there had been another promise or representation made in the first year after they moved to Tretawdy Farm.

Mr Stenhouse, on behalf of the appellants, did not criticise in any respect the judge’s overall assessment of the witnesses, set out at paragraphs 30 to 38 of the judgment, which I have summarised above. Nor did he challenge in any material respect the summary of the law which the judge had set out at paragraphs 19 to 29. He argued that the judge had not in all respects applied the law correctly, even though he had stated it correctly. The main burden of his appeal, however, was on the judge’s findings of fact. He contended that the judge’s findings about the four promises, and about how they were taken and what was done in reliance on them, were against the weight of the evidence.

So far as the first promise is concerned, the judge dealt with that at paragraphs 42 to 46. He summarised fairly the Defendants’ case, and the Claimant’s attitude to it. He then said this, at paragraphs 44 to 46:

“44.

I note that the move of the Defendants to Tretawdy came relatively shortly after the resumption of relations following Mr Cook’s funeral. That is a factor which would make both sides reluctant to commit themselves. Against that it is to be remembered that by June of 1996 the Claimant was making a will allowing the Defendants to remain at Tretawdy for life and giving the residuary estate to Mrs. Thomas. That was action indicating that Mrs Cook believed that normal family relations had been resumed.

45.

I find that although the Claimant gave the Defendants permission both to station a mobile home at Tretawdy and to farm the land and to do so free of charge she gave no assurance that they would be able to do so indefinitely nor that she would not subsequently revoke that permission. Even if I were to accept the Defendant’s contention that the suggestion for the move came from the Claimant (as to which it is difficult to come to a conclusion) I would find that it was a suggestion to which the Defendants readily acceded. The opportunity of farming at Tretawdy was welcome to the Defendants as undoubtedly was the prospect of the return of Mrs. Thomas to her childhood home. On the issues of whether assurances were given and of the basis on which the Defendants moved to Tretawdy I found the Second Defendant’s evidence helpful. In cross-examination he said the suggestion that the Defendants should move to the land had been made over a cup of tea. It was “initially fairly informal” he said adding that “at that stage nothing more was said” and confirming that at least some of the initial work was done because it was necessary to enable him and his wife to farm the land.

46.

All parties doubtless hoped that the arrangement would work out well and would continue but I find that there was no commitment or assurance on either side. The Defendants were not committing themselves to remaining at Tretawdy and the Claimant was not promising that they would be able to do so regardless of future problems between the parties. In those circumstances the “first promise” standing alone cannot give rise to a proprietary estoppel.”

In this respect, therefore, he accepted (as was common ground) that something had been said but held that it did not amount to, and was not taken as involving, any commitment on either side.

At paragraph 47 he referred to and rejected Mr Thomas’ evidence of another promise, in the sense of a statement that the property would be theirs after the Claimant died, made in the first year after they moved to Tretawdy Farm.

Then at paragraph 48 he turned to the second promise. On this he rejected the Defendants’ evidence. He explained this at paragraph 48 as follows:

“I am unable to accept the Defendants’ evidence in this regard. It is true that the bedroom at that end of the farmhouse was refurbished but until the Defendants moved in after the storm the remainder of that part had not been refurbished. The significant feature here is that until after the storm of late 2001 the Defendants had not used the bedroom. It had been used only by “Ray” the brother of the late Mr. Cook on his visits from Australia. I find that provision for such use had been the intention from the outset. The Defendants acted commendably in refurbishing the bedroom but I find that they did not do so in response to an assurance that they would have rights in that room but in order to provide accommodation for Ray on such visits. In making this finding I am influenced by the Defendants’ evidence that immediately following the damage to their mobile home in the storm of late 2001 their intention was to obtain accommodation from the local authority. This reaction was not consistent with a belief that they had a right to use the bedroom.”

In relation to the third promise, by contrast, which the Claimant denied altogether, he accepted the Defendants’ evidence that she had referred to the property as “all going to be yours when I am gone” or words substantially along those lines. He went on to hold, at paragraph 51, that it was not a representation giving rise to an estoppel because of the Defendants’ evidence as to how it was taken.

“51.

However, my finding that the comment was made cannot be the end of the matter. Was it an assurance on which the Defendants relied to their detriment and of a kind from which it is now unconscionable for the Claimant to resile? It is important to note that the First Defendant’s evidence was that this was the first (and she says the only) occasion on which the Claimant had said anything of this kind. Mrs. Thomas accepted in cross-examination that until then nothing had been said about the Defendants’ long term prospects at Tretawdy. In addition the Defendants’ evidence throws light on how the comment was understood. In cross-examination Mr. Thomas said that he did not regard the comment as being “out of order” and that this was because the First Defendant was the Claimant’s only child. He took the comment to be a restatement of what would normally be expected to happen. Similarly Mrs. Thomas said, in re-examination, that the comment did not come as a surprise to her. She had assumed that because of the years she had lived at Tretawdy and because of the resumption of good relations the family home would become hers. However, nothing had been said about that until that comment was made.”

On that basis he held, at paragraph 52, that it “was intended to be and was regarded as an indication of her expectation and belief that if all proceeded smoothly the Defendants would be able to live at the farmhouse” after her death. “It was not intended to be nor was it taken by the Defendants to be an assurance that the Claimant was committing herself” to leaving Tretawdy to them, nor that she would not change her mind as to the destination of the property. He also held at paragraph 53 that it did not lead to any change in the Defendants’ actions. They do not allege any acts in reliance on this promise as such. Further works were done but not until after the storm damage in 2001. By then the Defendants say they had received the fourth promise as well.

As regards the fourth promise, he recorded that the Claimant had accepted in cross-examination that she told the Defendants that they could move in if they refurbished the north end of the farmhouse and they could stay as long as they wanted, but she went on to qualify this by saying that what she meant was that she had not put any fixed time limit on how long they could use the rooms. She expected them to make other arrangements in due course, but they did not do so. The judge rejected the Defendants’ evidence as to what was said, but he went on to consider whether on the Claimant’s evidence there was a representation on which an estoppel case could be based. He dealt with this at paragraphs 58 to 60 as follows:

“58.

However, it is important to consider whether even on the Claimant’s account of matters a proprietary estoppel arose. The Claimant’s position is that she was not giving an assurance of rights in return for the performance of works but was stating the obvious and providing accommodation out of humanity. Was there an offer of accommodation coupled with an indication that work would be needed to make that accommodation habitable and without any indication of a continuing entitlement? Alternatively, did the storm damage trigger an assurance which led to a change in the relationship and which was relied on in circumstances where it would be unconscionable for the Claimant to go back on the assurance? I have concluded that the context was of importance here and that Mrs. Cook’s interpretation of the arrangement was correct. These dealings were a response to the storm damage and her provision of accommodation was not coupled with an assurance or indication that the Defendants would be entitled to remain living in the house indefinitely even if the relationship between them and the Claimant broke down.

59.

In his closing submissions Mr. Stenhouse places considerable weight on the answer given by Mrs. Cook in cross-examination that she told the Defendants that the bedroom at the north end was “all I can offer for now” (my note records the answer as “all I can offer for the time being” but the point is the same). Mr. Stenhouse says that the words “for now” indicate that something more was to come in the future. He says that they support the contention that on this occasion a promise of a greater entitlement in the future was being given and also feed back into the interpretation of the earlier promises. I find that this is to place too great a weight on words spoken in an informal setting and in the context of providing accommodation for the Defendant who had just lost the roof over their mobile home. Such words are not to be construed as if they were part of a carefully drafted legal document. I do not find that these words turn the offer of accommodation following the storm into a promise or assurance of a future entitlement to own Tretawdy.

60.

Thus I find that none of those dealings amounted to the Claimant giving the Defendants an assurance that notwithstanding any future breakdown in the relations between the parties they would inherit Tretawdy. Nor did they involve assurances that the Defendants would be entitled to remain living in the farmhouse and farming the land despite such a breakdown. It follows that one of the key preconditions for a proprietary estoppel is absent.”

He then made some observations which Mr Stenhouse criticises, and to which I will return, and he came back to the point at paragraph 65, where he said this:

“It follows that none of the four “promises” viewed separately gives rise to a proprietary estoppel preventing the Claimant from recovering possession of Tretawdy from the Defendants. As well as considering each of the four “promises” separately I have reflected on their combined effect. I am conscious that the questions of whether assurances were given and of whether the Defendants acted to their detriment as a consequence cannot be entirely divorced from each other. I am also conscious that I have found that in 2000 Mrs. Cook made a comment to the effect that the property would be the Defendants’ after her death. Moreover, there is no doubt that the Defendants performed works of refurbishment on Tretawdy. That is potentially a powerful combination in favour of the Defendants’ contentions. The nature and effect of the Defendants’ actions are to be seen in the context of their dealings with the Claimant. Similarly, the assessment of the Claimant’s words and deeds will be influenced by the reaction of the Defendants. However, even on that footing I conclude that there was no assurance or representation emanating from Mrs. Cook combined with detrimental action from the Defendants which makes it unconscionable for the Claimant to insist on her legal rights in the circumstances which have arisen. Consideration of the overall context does not cause me to alter my assessment of the nature of the dealings set out in my analysis of the four promises.”

For that reason he rejected the Defendants’ counterclaim. He found it unnecessary to deal with an alternative case for the Claimant, that even if there were any estoppel the equity arising would have been more than adequately satisfied by the benefits which the Defendants had received from living and farming at Tretawdy rent free since 1996. The Claimant relies on that point by way of a Respondent’s Notice. The judge made an order for possession against the Defendants and awarded the Claimant damages for their use and occupation of the property from 1 December 2008, and he also ordered them to pay the Claimant’s costs of the proceedings.

Mr Stenhouse’s grounds of appeal focussed primarily on criticisms of the judge’s findings of fact. If he had complied with paragraph 3.2 of the Practice Direction supplementing CPR Part 52, he would have identified the clear majority of the grounds of appeal as being against findings of fact, not as raising a point of law. Thus, under ground 1 he contended that the judge had considered each promise separately without reference to the others, and that he failed to consider them together and to ask himself whether any finding that one or more of them was made by the Claimant would make it more or less likely that others were made. More directly and fundamentally, under ground 2, he argued that the judge was wrong to reject the Defendants’ evidence in relation to each of the promises. The decision on each promise was against the weight of the evidence. This point lay at the heart of his arguments; it became the focus of, first, his lengthy skeleton argument and, eventually, his oral submissions in support of the appeal. Under grounds 3 and 4 he put forward points of detail, that the judge had not given proper weight, first, to the statement which the judge did find to have been made by way of the third promise and, secondly, to the terms of the Claimant’s 1996 will under which the Defendants would have received a life interest for their joint lives and that of the survivor.

Under ground 5 it was said that the judge took into account matters which were not relevant: the fact that the Claimant paid for some improvements to the house herself, the fact that the parties have not been on speaking terms since 2002 and the fact, as he saw it, that to uphold the Defendants’ claims would force the Claimant to choose between staying at or leaving Tretawdy.

Ground 6 put a point of law, namely that the judge failed to analyse or apply the principles of a remedial or common intention constructive trust, but treated each as essentially the same as proprietary estoppel.

Then the grounds reverted to points of fact. At ground 7, the judge was said to have failed to take account of the effect of the Claimant’s action in standing back and allowing the Defendants to act to their detriment, over years. At ground 8 the judge’s analysis and treatment of the Defendants’ detrimental reliance was said to be plainly and obviously wrong, lacking entirely in any analysis of the Defendants’ actions over many years in relation to the house and the farm. At ground 9 the judge is said to have failed to appreciate or have regard to the fact that the farm had become the Defendants’ farm, a position permitted by the Claimant, equivalent to an outright gift to the Defendants during their lifetimes, and the farmhouse having likewise become the Defendants’ home.

Ground 10 identifies what were said to be the judge’s failures to apply correctly directions which he had given himself as to the law. The only one of these which does not appear elsewhere in the grounds of appeal is his failure to take proper account of conduct pre-dating a promise, which is relevant insofar as it can provide an explanation for a promise and a guide as to its nature and quality.

Ground 11 complains of the judge’s failure to accept, in the alternative, the claim in unjust enrichment. Ground 12 goes back to the facts and the assessment of the Claimant as a witness. Ground 13 complains of the judge’s order that the Defendants pay mesne profits. Lastly ground 14 relates to the judge’s order for costs.

Thus in reality the only points of law concern the judge’s failure to address separately the heads of claim as regards constructive trust and unjust enrichment. I will come back to those briefly later, though what I have said at paragraph [11] indicates my conclusion on the point. I will also deal separately later with the last two grounds, which are consequential points.

The remaining grounds of appeal put, in effect, in different ways the basic point made at ground 2, namely that the judge should not, and could not properly, have made the findings of fact adverse to the Defendants that he did as regards what was said and done, how it was taken and what was the Defendants’ reaction to the Claimant’s words and conduct. Mr Stenhouse submitted that the Court of Appeal could see enough from the transcript of the evidence to be able not only to tell that the judge’s findings were unjustified, but also to be able to substitute the proper findings. Such a submission is even more bold than the basic contention that a judge’s findings of fact are untenable. Nor did Mr Stenhouse assist by setting out with any clarity what the findings are that he argued ought to have been made. Essentially he said the judge ought to have believed the Defendants, and should not have believed the Claimant except to the extent that her evidence was against her own interest so that it could be treated as an admission.

In a case in which the judge has had the benefit of oral evidence from the witnesses, has made findings of fact which are rationally explained, has described in detail his assessment of the respective witnesses as regards their reliability, and where his findings of fact differentiate with care as to what evidence from which witness is accepted in relation to which part of the history, no one witness being accepted as wholly reliable or rejected as wholly unreliable, an appellant who seeks to show that the judge’s findings of fact, or some of them, are unsustainable faces a seriously difficult task. The judge’s findings as to what was said between the Claimant and the Defendants are primary findings of fact, and his findings as to how the Defendants reacted to what was said to them are at least partly findings of fact, even if there may be elements of inference in that process. It has been said many times, Benmax v Austin Motor Co [1955] AC 370, Biogen Inc v Medeva Inc [1997] RPC 1 and Assicurazioni Generali SA v Arab Insurance Group [2003] 1 WLR 577 being only three of the examples of high authority, that an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue.

That is the challenge which Mr Stenhouse has taken up. In doing so he invited our attention to certain passages in the transcript. Since the hearing I have taken the opportunity to read the entire transcript. Some of the flavour of the trial is apparent from the transcript of what was said. Nothing in it seems to me to suggest that the judge’s overall assessment of the witnesses, set out in his paragraphs 30 to 38 (which I have summarised above) was in any way inadequate or inappropriate.

As regards his assessment of particular passages in the evidence, it seems to me that in the present case the court must be even more than normally wary of a proposition that the weight of a witness’ evidence can properly be judged from the written record of what was said. That is always a dangerous assumption, if credibility is in issue. It is particularly so here, given the Claimant’s deafness and the consequent need for the judge to consider and assess, from his observation of the process, quite how reliable any given answer was. Thus, Mrs Cook sometimes answered in affirmative monosyllables a series of questions put to her in cross-examination. However, the judge, understandably and properly, intervened from time to time to make sure both that she had understood what had been put to her and that he understood exactly what she was accepting; an example of this is quoted at paragraph [88] below. In the case of Mrs Cook, but also in the case of Mr and Mrs Thomas, he asked a few questions after the close of re-examination. It is evident from the transcript that he took care throughout the evidence to ensure that he understood properly what the witness’ evidence was, and the product of that is well demonstrated in his judgment.

At the centre of the arguments for the appellants is Mr Stenhouse’s attack on many of the judge’s conclusions as regards the four promises. I will take these in turn, though bearing in mind also the submission that the position needs to be seen in the round. Notwithstanding that argument, it is inevitable that, in order to assess findings of fact, each occasion has to be taken one by one.

Starting, then, in 1996, Mr Stenhouse took it as common ground that, whoever initiated the idea, the Defendants did move to Tretawdy in 1996, giving up their previous mobile home and its site, acquiring a new one, and taking over the farming, with (at the lowest) the Claimant’s permission, the arrangement under which they did so not having been expressly limited in time in any way. The Defendants’ pleaded case was that in return for their looking after the Claimant’s physical well-being, providing her with company and making her feel safe, and taking over entirely the farming business, and carrying out necessary repairs and improvements to the house, the Defendants would have the right to station a mobile home in the garden of the house for as long as they needed, rent free though paying a contribution to the household outgoings, and they would also have unlimited use of the gardens and farmland for as long as they wanted, and to run the farming business entirely as their own for their own benefit. Nothing in the Claimant’s witness statement supported that, except that she did agree to them living in a mobile home on the land once planning permission had been obtained, and that she did allow them to run the farming business and to use the outbuildings for that purpose, she wanting nothing to do with the farming. The First Defendant dealt with this in her witness statement, though in cross-examination she said that the important conversations had been between her mother and her husband, not involving herself. Her most directly relevant evidence in the witness statement was in paragraph 40 as follows:

“In about January 1996 Wyndham was over at the Farm doing various chores for my Mother when she started to ask questions about how we paid for our park home in Ross. Wyndham explained that we paid ground rent of a few pounds a week. Then she suddenly said that we should try and get planning permission for a mobile home in the gardens of Tretawdy Farm and asked if we would be prepared to come and live on the farm in a mobile home in the gardens if we could get planning permission. She said that there would be no ground rent to pay. She said we could have the farmland as our own land, it would be ours and we could work it as our farm and farm business, as long as we were there to help her with the various things that she needed to do and could not manage to do by herself, which was actually most things. She said that she would feel safer with someone there”

In the course of cross-examination, her first reference to the point, denying that it had been their suggestion to her, was this (transcript 1 page 19 H):

“She didn’t say any of it to me at all. She said to my husband that she would like us to come and live there and he came and asked me what I thought of the idea.”

That was followed by this exchange (transcript 1 page 20A):

“Q. The gist of the arrangements, and planning was applied for shortly afterwards, the gist was that you would site a mobile home on the land and you would live there. You wouldn’t pay rent, you would pay some money toward electricity and water and you could start some mostly sheep farming on your account on the land?

A. Yes.”

A little later there was this exchange, after some questions about 1997 (transcript 1 page 23G):

“Q. Again at that time and by that time, from your statement, nothing else had been said by your mother about your position on the farm, your long term future or your rights. It was simply the original arrangement that you would come and live there and farm there that you made the previous year?

A. Yes.

Q. Nothing else had been said?

A. No.”

In re-examination, she was asked more questions about this, first these (transcript 1 page 42D-E):

“Q. Then what happened, as you recall?

A. Then one day when he went on his own, he came back and said that she has asked him if we paid ground rent for our mobile home in Ross, and he said, “A little” and she said, “If you came and put a mobile home here in Tretawdy, in the garden, you wouldn’t have to pay ground rent and you could be here for me and you could farm the farm as you own.”

Q. Did you discuss that with your husband?

A. I did.”

Later these, moving into impermissible leading questions, as Mr Paton observed (transcript 1 page 44C-E):

“Q. When she suggested that you and Wyndham take over the farm, what did you understand was the effect of that in terms of whose business it was?

A. That it would be our business.

Q. For ever or for a limited period of time?

A. For the foreseeable future.

Q. Did she place any time limited on it?

A. No.

Q. Has she never placed any time limits on it?

A. No.”

The Second Defendant, who had confirmed what his wife had said in her witness statement without adding anything significant on this point, dealt with the point in cross-examination as follows (transcript 2 page 20B-21B):

“Q. I think it was you who made the suggestion that may be you could help some more if you had your mobile home on the land.

A. I think that is wrong. My mother-in-law, Mrs Cook, was the one who suggested that to myself over a cup of tea in the farmhouse on a Sunday when I was there doing a few little jobs.

Q. It was an idea you were quite keen on and you returned to that idea.

A. I discussed it with my wife and we decided, all right, we’d do it.

Q. At that state we’ve seen that she had to apply for planning permission.

A. Correct.

Q. And we know that you moved a mobile home on to the land.

A. Mmmm.

Q. From what your wife said this morning, and I presume you agree, at that stage it was fairly informal. Not a lot was said beyond, “You can move your home on here and start farming. You’ll pay no rent but pay some money towards electricity and water”. That was as far as it went at that stage.

A. Yes, probably, yes.

Q. So there you were, you had bought and sold a mobile home just before that. I think your wife said it was bought for £10,400 and sold for £10,000 so you made a slight loss.

A. Mmmm.

Q. You acquired a different mobile home, you moved it on and you bought some sheep farming equipment -----

A. Yes.

Q. ---- and you started.

A. Yes.

Q. The idea was that the farming activity would be entirely on your account. It was for you and Pauline to do with as you wished.

A. Yes, correct.

Q. And as far as the home being there, no rent. Mr Boulton put a meter in for you for electricity.

A. That’s correct?

Q. And you paid towards water as well.

A. Mmmm.

Q. You would be using water quite a lot.

A. Mmmm.

Q. At that stage that is all that was said?

A. Yes.”

Nothing that the Claimant said in her oral evidence added to this, save perhaps her vehemence in saying that she wanted nothing to do with the farming: “I had enough of animals”: transcript 3 page 22E-F.

That evidence by itself fails to make out the Defendants’ pleaded case. It does not warrant the contention that the Defendants were committed or obliged to look after the Claimant’s physical well-being, provide her with company or make her feel safe. It may well be that both sides hoped that the newly restored relationship, after a break of more than 5 years, would work. If it did, the Claimant may have hoped that she would have some company and that she might feel safer than she would otherwise have done.

On the other hand, the Defendants would have, at least in effect, security as regards their mobile home for as long as planning permission subsisted for it. Mr Stenhouse may be right in arguing that they would not have had the same legal security of tenure as they had had on a protected site where they had been before. No reference was made to that in the evidence, so far as I can gather, and whether any of the parties turned their minds to that point, and if so what they thought about it, is altogether uncertain. Therefore this point is of no significance.

It is clear that the Claimant washed her hands of the farming business, and that she allowed the Defendants to take that activity over and run it as they wanted, for their own benefit, with no payment to her. Mr Stenhouse’s argument was that this agreement, taken with it being acted on by the Defendants and that action being knowingly acquiesced in by the Claimant, had the effect of giving the farm to the Defendants, by an inter vivos gift (see his ground of appeal 9), not at law, of course, but in equity. As he put it in oral submissions, the agreement in 1996 gave them the right not to be turned out ever.

He relied in particular on the absence of any express limitation of time or reservation of a right to bring the permission to an end. He said, correctly, that on the evidence whatever was said was completely open-ended.

The judge found that the Claimant gave the Defendants permission to place a mobile home at Tretawdy and to farm the land and to do both free of charge. Mr Stenhouse’s submission that the words alleged by the Defendants in the Defence and Counterclaim were proved to have been said is not correct. Nor was there any basis in the evidence on which he could have found the pleaded allegation to have been proved. The terms of the Defendants’ oral evidence, in particular, as quoted above, show that it was a limited and informal family arrangement, not remotely resembling a contract, such as it is made to appear in the Defence and Counterclaim at paragraph 12. From the evidence as to what was said, and from the context including the recent reconciliation after a lengthy break in the relationship, it seems to me that what the judge said at paragraph 46 is entirely apt. I see no basis on which it could be argued that he was not entitled to come to the conclusion that he did, at paragraph 45, as to what was actually said, and at paragraph 46 as to its effect.

There is no substance in Mr Stenhouse’s argument that the lack of any express reference to the permission to farm and to station the mobile home being limited in time meant that they were necessarily unlimited in time and therefore perpetual. That proposition makes no sense either in practice, as between these parties in the circumstances in which they were at the time, or as a matter of law. It is as much as to say that, by agreeing that her daughter and son-in-law could do something which they were not otherwise entitled to do, the Claimant was granting them a licence to do it not merely for the time being but irrevocably and for ever.

Mr Stenhouse also criticised the judge’s finding of no commitment by asking, forensically, how else a commitment could be demonstrated other than by what the Defendants in fact did. That can best be considered together with his more general point that the effect of the parties’ respective conduct (including statements) needs to be taken as a whole, looking back from the end of the process. I will come to that later, once I have dealt with his challenges in relation to the other three promises.

The judge held that the alleged second promise, said to have been made in April 1998, had not been made at all. The First Defendant said this about it in her witness statement at paragraph 56:

“In April 1998 Wyndham retired and this meant that he had far more time to do the major repair works to the house. My Mother asked if Wyndham would start all the major restoration works. My Mother said that if we did these works and completed the bedroom on the north side, we would be able to have the bedroom as our own room from then on and we could use it whenever we wanted for as long as we wanted. Obviously we accepted what she said and Wyndham agreed to start the works.”

She was asked about this in cross-examination, in the following passage (transcript 1 page 26 C-H):

“Q. Again perhaps this is a question for him rather than you but your mother recalls that it was more a case of him offering to do the works and her agreeing rather than her asking him to do them.

A. I agree but she said that if we would like to do up the house and sort out the bedrooms on the north side of the house then we could have it to use as our own.

Q. She doesn’t recall saying that to you. Your mother doesn’t recall having a discussion in that detail of that sort. It is possible that what was said was that if the room was done up it would be there for you to use as a guest room if you wanted. Because you had the mobile home at that time. Was it along those lines, “There’s a room here for you if you need it”?

A. It was a room that we could use, yes. We only had one bedroom in the mobile home.

Q. Just so we’re clear, she wasn’t saying anything like, “Do this and this bedroom is yours forever.” She was saying if you help with the work - this is your case – this room will be here for you should you require it.

A. No, she said, “You can use it as your own.”

MR RECORDER EYRE: Did you think the room was yours to use as and when or the room was yours come what may for ever? Do you see any difference between those?

A. No, not really

MR PATON: Because at this time, in 1998, you were in the mobile home. You were reasonably content living in that and doing your farming.

A. Yeah.

Q. You didn’t especially want or ask to come and live in the farmhouse instead.

A. No, we didn’t.

Q. So the question of this room was really a question of, “There’s a room here if you want it.”

A. Yes.

Q. Again nothing else was said at that time about the long term future, anything of that sort.

A. It was when she had the roof put on the lean-to that ----

Q. I will come to that in due course.”

Mr Stenhouse asked some questions on this in re-examination (transcript 2 page 8F-9B):

“MR STENHOUSE: I will put it in that way. (To the witness) So when your mother came to you, you say she came to you and your husband, and said, “If you get on and do these works on the north side of the property, because I want to improve the north side of the property, you can have this bedroom.” That is what you say she said.

A. Yeah.

Q. You actually did those works.

A. Yes.

Q. So what was your reason for doing those works?

A. The fact that we had only one bedroom in our mobile home and if we ever wanted someone to stay then the bedroom was ours to use.

Q. Was there anything said that imposed any time limit on that?

A. No.

Q. Has there ever been anything said that imposed any time limit on it?

A. No.”

In turn the Second Defendant gave some relevant evidence in cross-examination (transcript 2 page 26C-F):

“Q. Her evidence about those works being started to the north side, she recalls her mother saying that there would be a room in the house that you could use at the time you were living in the mobile home and you took that as meaning, what that meant as well, was that if this room is done up there will be a guest room, a spare room that you can use if you want to. Does that fit with what you remember?

A. Yes, she said there was a room there; if we wanted to we could use it. But she used it first of all.

Q. In fact you didn’t actually use it in all the time that you were in the mobile home. You didn’t have cause to actually use that room.

A. No, only when we had a visitor.

Q. Uncle Ray?

A. That’s right, yes.

Q. You didn’t take it from what she said and she didn’t say to you at that time, “This room will always be yours for ever and ever”? That is not what she said.

A. She never said nothing of that then.”

Nothing in the Claimant’s evidence supported what the Defendants said on this. There was therefore a dispute of fact between the parties as to whether anything, and if so what, had been said about this. The judge had to resolve that dispute by forming a view as to whether the Defendants’ evidence was reliable and if so what it amounted to. He accepted that the bedroom had been made usable, but said that the reason for this was to provide a guest room for when the late Mr Cook’s brother visited from Australia. The mobile home did not have a spare bedroom. In those circumstances, it seems to me impossible to contend that the judge’s conclusion in paragraph 48, in which he explains his reasons for coming to his particular conclusion, is against the weight of the evidence.

Mr Stenhouse placed a good deal of reliance on the third promise, as regards which the judge rejected the Claimant’s evidence and held that she had said what the Defendants contended, namely that she had made a statement that the property would be the Defendants’ after she died. His factual finding in favour of the Defendants on this, having rejected their evidence on the second promise, is an example of his care in examining the evidence and coming to his factual conclusions.

The Defendants pleaded that the Claimant said “you know this is all going to be yours when I am gone anyway”. The Claimant denied having said anything of the kind. The judge held that she had “made a comment substantially along the lines of that alleged”. So far so good for the Defendants, but they did not allege that they had done anything in reliance on this statement as such. The judge rejected their proprietary estoppel case insofar as it was based on this statement for two reasons: first because he held that it was not taken as an assurance but as an indication of the Claimant’s current intention, and secondly because there was no reliance or detriment in relation to it. He set out in paragraph 51 the evidence from the Defendants on which he relied to come to the first of those conclusions. He explained his conclusion on that in paragraph 52 and as regards absence of reliance in paragraph 53.

The First Defendant said this in her witness statement on the first point:

“64.

Obviously, we took what she said as a clear statement to us that the farmhouse would also be given to us on her death to go with the rest of the farm, which as far as we were concerned had already been given to us and which we were now running completely as our own and in which my Mother has no involvement at all.”

The passages to which the judge referred in paragraph 51 are fairly summarised there, and I have set the passage out at paragraph [35] above, so that I do not need to quote from the transcripts on this point. Mr Stenhouse submitted that, whatever the Claimant may have meant subjectively, the Defendants took it as a promise. But that does not seem to me to be made out on the Defendants’ own evidence, as summarised by the judge in that paragraph. Moreover, the absence of any specific act or other reliance is apparent from the case as alleged. In particular, no work is alleged to have been done on the house after this statement (late in 2000) until after the next event in the history, namely the storm of late 2001, the Defendants’ urgent need for at least temporary alternative accommodation, and the arrangement made at the time, relied on by the Defendants as the fourth promise.

Mr Stenhouse did not, of course, criticise the judge at paragraph 50, nor as to what he said at paragraph 51. He argued that the conclusion at paragraph 52 was not supported by the evidence, nor did it follow from paragraph 51. As regards reliance he said that the statement needed to be seen in the sequence of statements, and in the context of the work that had been done already on the house, and the farming that had been proceeding since 1996, including work to the farm buildings.

He pointed out that the words which the judge held to have been used were virtually identical to those which, in Gillett v Holt [2001] Ch 210 at 228, were held to be completely unambiguous in forming the basis of a proprietary estoppel. So far as that argument is concerned, while the coincidence between the words used in the two distinct situations is apparent, Mr Stenhouse’s submission takes no account of the fact that the situations were altogether different, not least because the First Defendant was the Claimant’s only child, who would inherit the property if the Claimant died without having left a will, and to whom it would be natural, other things being equal, for the Claimant to leave the property by her will. Mr Gillett was in a completely different position in relation to Mr Holt, both as regards the absence of any family relationship and as regards what he had been doing for Mr Holt over many years.

Mr Stenhouse also submitted that the judge failed to take proper account of the presumption of reliance, in support of which he cited Greasley v Cooke [1980] 1 W.L.R. 1306, at 1311. In that case, which has almost nothing in common with the present case as regards either the facts or the process of the litigation, the Court of Appeal held that, once a promise or representation had been proved by the party alleging the proprietary estoppel, being one which was calculated to influence the person to whom it was made, there is a presumption that that person relied on the promise to his or her detriment, so that the burden of proving otherwise lies on the other party. The need to consider the matter on the burden of proof arose from the odd course taken in the county court, and the extremely limited evidence given there. In the present case, there is no need for a presumption. The matter was fully investigated in evidence. The judge held against the Defendants on detrimental reliance on a consideration of their evidence. If he was justified in his conclusion on that, it cannot assist the Defendants to say that the judge did not consider the presumption. A presumption is only relevant in the absence of the relevant evidence.

Another point made was that, in the light of the fact (known to the Claimant but not to the Defendants) that under her 1997 will the Defendants were to have a life interest in the property, it is all the more likely that the Claimant did intend to, and did, convey to the Defendants her fixed intention that they should have the property after her death. I do not follow that argument at all. Reference to the will shows that she did not intend the property to belong to the Defendants after her death, but only that they could stay there for life. This might make it less likely that she would have made the statement, and certainly less likely that she would have made it in an unequivocal way. Moreover, even as regards the benefit which they would have got under her will as it then stood, the fact that a will has been made in given terms by no means shows that those intentions are regarded by the testator as immutable.

Turning back, therefore, to the evidence and to what the judge drew from it, it seems to me plain that he was entitled to regard as important what the Defendants demonstrated from their oral evidence as to the way in which they took the statement. Since, on any basis, this was the first (and only) time when the Claimant ever said anything of the kind, if the Defendants’ present contention is to be believed, one would expect them to have regarded it as a most important episode in the history, a turning point in the relationship, after which everything would be seen differently. The evidence which the judge fairly summarised at paragraph 51 shows a very different response. Moreover, the fact, which he noted at paragraph 53, that the statement made no immediate difference to the position between the parties also shows that this was not seen as anything so very important as is now contended.

Mr Stenhouse’s submission that everything done by the Defendants after the third promise should be taken as having been influenced by that statement does not stand happily with the fact that nothing was done for the first year after the statement that could be regarded as reliant on or influenced by the statement. The Defendants went on farming, but they had been doing that since 1996 under the original arrangement. However, that submission can better be seen as part of his more general point that the judge failed to have proper regard to the facts as a whole. I will come back to that.

As for the fourth promise, it is common ground that something was said at the time of the storm in 2001, as it is in relation to 1996. The question is what was said, and what was its effect? The Claimant’s version is that she invited the Defendants in out of humanity, allowing them to use the rooms at the north end of the house, which were mostly in a poor state so that they would need to do them up if they were going to use them. She put no time limit on the invitation. The Defendants said that it was, in effect, an agreement that if they completed the refurbishment of the north end of the house, they could move in and stay there as long as they wanted. The judge preferred the Claimant’s version, having considered the evidence given.

Mr Stenhouse placed significant reliance on what the Claimant said in cross-examination about this stage in the history. I will come to that, but it is necessary also to see what the Defendants said.

In the Claimant’s witness statement she said:

“17.

In 2001/2002, however, during a severe storm, the roof of the caravan blew off and I remember distinctly my daughter and son-in-law standing at the kitchen door to Tretawdy, soaking wet and asking whether they could come into the farmhouse.

18.

The caravan was clearly uninhabitable and as I have plenty of room in the farmhouse, I invited them to live in the house with me and I allowed them to use an upstairs bedroom, a lounge, kitchen and share the bathroom; I did not intend this to be a permanent arrangement.”

For her part the First Defendant said this:

“65.

In 2001 there were heavy gales. These took part of the roof off our mobile home. It meant that the mobile home could not be lived in. We spoke to my Mother about it, and we said that if she wanted we could apply for an old peoples’ bungalow in the village to live in. She refused to hear of it, and insisted that there was plenty of room in the house and we already had our bedroom so if we got on and finished repairing and refurbishing the ground floor room on the north side, we could move into the whole north side of the house and that would be our home from then on instead of waiting for her to pass away.”

Those passages of evidence were amplified orally. I will set out an extended passage from the First Defendant’s evidence under cross-examination (transcript 1, page 30H to 32D):

“Q. Your mother said that you could come and stay in the room.

A. Yes.

Q. That is, I’m sure you would agree, what any mother would do if she was on good terms with her daughter and son in law. That was an act of generosity, kindness and you took it as such.

A. Yeah.

Q. She didn’t stand with you in the kitchen or in the house and discuss with you in detail the precise terms of your occupation: what you would do, what you would pay and so on. It was just a case of, “Can we stay here? We’ve got no home otherwise.”

A. Yes, we did say that we would apply to the council for a bungalow in the village but she wouldn’t hear of it.

Q. She doesn’t quite recall it that way. She recalls that being mentioned but she didn’t particularly express a view. But in any event it was left that you would come and stay in the room because your mobile home had had its roof blown off and it was the winter.

A. Yeah.

Q. There wasn’t a detailed discussion about the terms of occupation of that room of the house?

A. No.

Q. The priority was to get in out of the cold and rain and have a roof over your head.

A. Yeah.

Q. Because you then had to move in – you were a married couple, your husband was retired by that time – it was in your interests to make your living quarters pleasant and habitable and nice. That was a nice thing for you to have done to your room and to the rooms that you would use.

A. They had to be made habitable, yes

Q. So at this time Wyndham suggested that he should do some works of that sort to the ground floor room and so on and finish off some works elsewhere to make those rooms more habitable and pleasant because it was your home from that point.

A. My Mother suggested that if we made the sitting room habitable then we could move in as there was plenty of room in the house for all of us.

Q. Because at that stage the ground floor room was not in great condition.

A. No, you wouldn’t have lived in it.

Q. So part of the arrangement is that if you were going to come and stay there rather than just having a single bedroom, or a bedroom upstairs, you would have some use of an additional room as a lounge.

A. Yeah.

Q. A sitting room and a kitchen and bathroom. So it is in your interests to make that nice while you live there.

A. Well, we had make – it had to be made habitable. We couldn’t have lived in it as it was.

Q. Otherwise you wouldn’t have lived in it?

A. No.

Q. So again Wyndham did some works and again I ask you, perhaps you won’t know, your mother recalls that in this, as other jobs, she would give him some cash for materials used and he would do those works and that is how it went. Do you recall that?

A. Not that I know of.

Q. At this point, when you came in out of the rain, literally and metaphorically, nothing more was said by your mother other than, “You can live here and you can do the works.”

A. No.

Q. What she is saying is, since you have no home, you can come and live in these rooms in the house. She didn’t impose on you a condition that you must do these works to the house before you move in. That was your choice.

A. We couldn’t have moved in without doing the work to the house.

Q. That was your decision and your choice. She didn’t say “I will only let you live here if you do these works.” You and Wyndham thought you should do these … because otherwise it wouldn’t be so nice.

A. Nice didn’t have anything to do with it I’m afraid.

Q. Habitable, pleasant.

A. Habitable, yes.”

The Second Defendant gave similar evidence in cross-examination, of which the following exchanges are particularly relevant (transcript 2 page 30C-D and 31E):

“Q. As far as what your mother-in-law said it went no further then, “Of course you can stay in the house. You’ve nowhere else to go.”

A. Mmmm.

Q. Because you had your roof blown off. You were obviously grateful for that assistance.

A. The words I said to my wife, I said, “Get in touch with the council and see if they can find us accommodation up in the village”. My mother-in-law’s words, “No way, there’s a room upstairs for you and you can come in here.”

…

Q. At this stage – this is in late 2001 – again there is no detailed discussion or agreement about the terms on which you live in the house. The result is that you move in and do some works to those parts of the house and things go on from there.

A. I don’t think there was any mention of works that we’d do to the house at all. Just move in.

Q. Just move in?

A. Yes.”

It seems to me that the evidence in those passages falls far short of the case set up by the Defendants in their pleading and in the First Defendant’s witness statement.

I will also set out an extended passage from the Claimant’s evidence under cross-examination, in two parts (the intervening answers are not so material). In this passage, at first the Claimant appeared to accept the truth of a case properly put to her (although, as I have just mentioned, it had barely, if at all, been made good by the Defendants’ own evidence). Then, however, in response to questions from the judge by which he sought clarification of her understanding and her evidence, she gave more explicit evidence as to what had been said. Part of this is what Mr Stenhouse particularly relied on. The evidence is as follows (transcript 3 page 29F-30F and 32A-B):

“Q. Now I will ask you some questions about the storm that took place in 2001.

A. Yeah.

Q. You remember that storm?

A. I can remember it, yes.

Q. And you remember the roof of their mobile home blown off?

A. Yes.

Q. At that, as a result of that you told Wyndham that if he hurried up and got all of the work done on the inside of Tretawdy Farm finished on the north side he and Pauline could move in?

A. Yeah.

Q. And so he did those works, do you agree?

A. Yes.

Q. And they moved in?

A. Yes.

Q. And they have been there ever since?

A. Yes.

Q. And you told them that they could live there for as long as they needed to live there, do you remember?

A. Yeah.

Q. And that is what happened, they have lived there for as long as they have wanted to live there and they still do want to live there?

A. Yeah, it’s the same as the will, stay there until they died.

Q. So far as you are concerned you were really just saying what was already in your will, is that right?

A. Well except for it can’t be the same because the will is when I’m dead, isn’t it.

Q. Well, yes, I know, but you knew what your will said, they wouldn’t know what your will said?

A. Yeah, okay.

MR RECORDER EYRE: Forgive me, Mr. Stenhouse, what Mr. Stenhouse is saying to you is that you said that or words to that effect to Mr. and Mrs Thomas, I have noted that you accept you said something along the lines of well they can stay as long as they like, is that right?

A. When they moved in (Inaudible) … not, I didn’t say as long as they liked.

Q. Right, well Mr. Stenhouse put to you that you told them that they could live as long as they wished, I think you used those words, didn’t you?

A. My words were they could have the utility, make it into a kitchen and they would have to get their water more or less from the bathroom, which is next to it, it’s my kitchen (inaudible) and my final words were that is all I can offer you for now.

…..

MR RECORDER EYRE: You said in answer to Mr. Stenhouse “I didn’t put a time limit on it”, and then I think you were going to say something else, and I wanted to know what that was?

A. (Inaudible) I can’t …

Q. Right well –

A. It’s just that had I been in that position I would have been very grateful in an emergency, but I should have looked for other accommodation really, it really wasn’t very good if you know what I mean.

MR STENHOUSE: Well –

A. It was a stopgap.”

At the end of her evidence, in response to supplementary questions asked by the judge, she gave this further evidence (transcript 2 page 27C-E):

“Q. I think we are all agreed that your son-in-law did work on the north side of the house?

A. Yes.

Q. What do you think he was getting in return for doing that work?

A. Well living rent free and farming free.

Q. And in 2001 when the roof was blown off the mobile home.

A. Yeah.

Q. And Pauline and Wyndham came to the house, did you say anything about how long they would be able to stay for?

A.

Well no, I just, I said that is all I can offer you. Those were my exact words. I just took it for granted that they would do something about it which I should have done myself.”

It seems to me that this oral evidence provides ample support for the judge’s conclusions. Some of the Claimant’s answers appeared to show an acceptance of the Defendants’ case, but the judge was entitled to seek clarification of that, to ensure that she had really understood the questions and to check whether her monosyllabic answers represented her true recollection of the relevant events. The First Defendant’s acceptance that there had not been a “detailed discussion about the terms of occupation” and the Second Defendant’s evidence that there was no mention of works to be done to the house at that time failed to make good their pleaded assertion that there was in effect an agreement that if they made the north end of the house habitable, they could live in it for ever.

Whatever was said was in the context of the crisis of the Defendants’ accommodation being rendered uninhabitable in the storm, so that they needed somewhere urgently. The Claimant invited them in, and said they could stay. In order to use the accommodation at the north end of the house they would need to repair and improve it. Any mention of the need to do that is at least as easily explained by the needs arising from the practical position as by a bilateral agreement along the lines alleged: if you repair the rooms you can use them for as long as you like.

Mr Stenhouse submitted that the Claimant’s words about this being all that she could offer for now showed a commitment that more would be provided later. He sought to draw from that comment the result that, once the Defendants had acted in reliance on the statement, the Claimant was obliged to give the Defendants her entire interest in the whole property, subject only to reserving a life interest in part of the house for herself. If that was the effect of what she said, it is hard to see what more could have been “offered” later, other than her moving out and letting the Defendant use the whole house. To the contrary, it seems to me that those words were a clear indication that what was then offered was limited, whether or not some other arrangement might be made later. The judge was entitled to take that as inconsistent with the Defendants’ version of the arrangement which was that it was so open-ended that the Claimant was not thereafter entitled to go back on it, at any rate once the rooms had been made habitable.

The judge was also entitled to take into account the fact that he had rejected the Defendants’ account of what had been said in respect of the second promise, and that their version of the fourth promise was put forward on the basis that the second promise had been made as they said. If, as he held, the second promise had not been made, there had not been a prior discussion or arrangement about doing up the north end of the house generally, so it would not make sense to treat the fourth promise as following on from something that had been said before.

Mr Stenhouse argued that the judge was wrong in giving attention to the Claimant’s intention and interpretation of what was said. If the judge had considered what the Claimant intended, subjectively, by what she said, rather than the objective meaning of what was said, that would have been an error. However, it does not seem to me that this is what the judge did. Rather, he considered the objective effect of what was said, and found that it was to the same effect as the Claimant’s interpretation and understanding. I reject the submission that the judge fell into this error in respect of all or any of the other occasions as well, or as regards the overall effect of what was said and done.

For those reasons I conclude that the judge’s decision as regards the fourth promise, set out at paragraphs 58 to 60 of his judgment, was one which he was entitled to come to and which was fully supported by the evidence given.

Mr Stenhouse argued that the judge had wrongly failed to consider the position cumulatively, despite what the judge said at paragraph 65 of his judgment. It is the case that the question whether it is unconscionable for a promisor to go back on his or her promises or representations is to be decided as at the moment when he or she does seek to act inconsistently. Quite when that moment should be taken to be in the present case might be open to debate. It is no later than the giving of notice to quit. It might be said to be when the Defendants got to know that the Claimant’s will did not give them the property outright. That, at any rate, led them to stop doing any further improvements to the house. Probably nothing turns on that issue.

At all events, it was necessary for the judge to consider the facts, as he had found them, as a whole and to come to a view as to whether the combined effect of what the Claimant had said and done, on the one hand, and the overall conduct of the Defendants on the other, meant that the Claimant could not turn the Defendants out. Mr Stenhouse’s submission went further than that, because he argued that, looking at the four relevant episodes cumulatively, the judge should have accepted the Defendants’ evidence more fully and rejected that of the Claimant. I cannot accept that. In relation to what was said and done on each occasion there was no alternative for the judge to examining the evidence as to each, though he did, properly, take into account the extent to which they were said to be interdependent.

In the end, it seems to me that Mr Stenhouse’s criticism of paragraph 65 of the judgment came down to arguing either that no reasonable judge could have come to that conclusion, and that therefore it must be wrong, or that he had failed to give adequate reasons for his conclusion.

This argument was sought to be supported by other points as well, including that the judge had failed to take proper account of his correct self-direction on law, at paragraph 22, that conduct pre-dating an assurance can be relevant in a number of different ways. As for that, I see no indication in the judgment that the judge failed to take proper account of any relevant conduct. He looked at the evidence as regards the first promise in the light of the circumstances as they then stood, which were not in dispute. Nothing had been done by then which was relevant in support of the Defendants’ case, unlike the history in Thorner v Majors [2009] UKHL 18 where the claimant had been helping the deceased voluntarily for years before anything was said to him that could amount to a promise or representation.

The argument for the Defendants that their commitment to the arrangement made in 1996 was shown by what they went on to do, on the farm and in the house, is another way of putting the point that whatever conduct the judge finds to have occurred has to be seen as a whole, in particular when looking back from the moment at which the promisor seeks to go back on the promise. Another more specific variant of the point is that, once the Claimant had said what she did by way of the third promise, all conduct thereafter should be taken to have been in reliance on that statement.

I cannot accept any of these supporting arguments, nor the main point that the judge could not properly have come to the conclusion that he stated at paragraph 65. It was not necessary for the judge, having dealt carefully and at length with the relevant conduct in making his findings as to the sequence of events, to set out any extended analysis of the matter looked at as a whole. Nothing in paragraph 65 suggests that he failed to take into account any relevant matter, or that he took into account any irrelevant matters. Mr Stenhouse’s contention that the facts as found must lead to only one possible conclusion, in favour of his clients, is not correct. I see nothing wrong with the judge’s conclusion as regards either the individual episodes or as to the cumulative effect of what was said and done on each side.

Mr Stenhouse also criticised the judge for what he submitted were irrelevant matters taken into account as mentioned in paragraphs 61, 62 and 64 of the judgment. The first of these is the fact that the Claimant paid for some works herself. When considering the dealings between the parties, and what was done in relation to the property by way of works of repair or improvement, it must be potentially relevant to take account of who paid for the work. Accordingly it was legitimate for the judge to note that the works were paid for partly by the Claimant and partly by the Defendants.

At paragraph 62 the judge said that he took into account the limited connection between the timing of the works done by the Defendants and the alleged promises. This was plainly relevant to his assessment of the Defendants’ case as regards reliance. Mr Stenhouse submitted that there is no rule that requires works of reliance or other detriment to be carried out within any given time after a representation has been made, and he is right as to that. However, in assessing the facts, it is legitimate to take account of the passage of time between the alleged representation and the conduct said to amount to reliance and detriment in order to decide whether the latter really did follow from the former. If there is a noticeable delay, it may be capable of explanation, such as for reasons of lack of funds or otherwise, but absent such a reason given in evidence, a significant delay may well point to a lack of connection between the representation and the acts said to have been done in reliance on it.

At paragraph 64 the judge referred to the right which the Defendants claimed had arisen by reason of the acts and events which they alleged, namely a right to live in the house (together with the Claimant, though not on speaking terms with her) and to use the land for the rest of her life, and to own it on her death. It seems to me that the judge was entitled to make the comment that this is unusual, because of the factor of the parties sharing the house though on hostile terms as between them. It may be that, on a strict analysis, this factor would be more relevant to the question of how the equity should be satisfied, if the Defendants could prove it, rather than to the prior question whether the equity had been established at all. However, a central feature of this case is that the Defendants did contend, in any event, that they were entitled to remain in the house and the farm for as long as they liked, regardless of the Claimant’s wishes and circumstances. I do not accept Mr Stenhouse’s submission that the judge was not entitled to take this into account.

I can now turn to some of the subsidiary grounds of appeal. At ground 6 it is argued that the judge was in error in not dealing separately with the allegation of a common intention constructive trust, the alleged common intention arising from the four promises and the Defendants’ acts in reliance on them, to the knowledge of the Claimant. As a matter of law, Lord Scott of Foscote, in Thorner v Majors, said that this kind of constructive trust was a better way of analysing this type of case than proprietary estoppel, but he was on his own in that respect. All the other members of the House of Lords proceeded on the basis of proprietary estoppel. That is therefore not a very promising start for this argument. Moreover, if one considers the factual basis of the argument, in relation to the judge’s findings of fact, which I would uphold as I have explained, the case falls at the first hurdle. There was no common intention that the Defendants should be able to stay in the farmhouse for ever, regardless of what happened and of the Claimant’s wishes. There was no more than an open-ended licence, which was capable of being terminated on reasonable notice. On this point, I agree with the judge’s reasoning at paragraph 67.

At ground 11 Mr Stenhouse advocated an alternative unjust enrichment claim. As pleaded this was to the effect that the Claimant had been unjustly enriched by the Defendants’ conduct – presumably above all that of repairing and improving the farmhouse, but perhaps also doing work on the farm itself and repairing or improving outbuildings. It was said that it would be unjust for her to retain that benefit, and that the fair and just recompense would be for them to have a beneficial interest in the property.

So far as work to the farm and its buildings is concerned, it is plain that the Defendants were free to do what they wanted with it, and they decided for themselves what to do, for their own benefit and convenience. The documents included farm accounts which showed that they made a loss each year on the farming. The First Defendant referred to their farming as being more a hobby than a business, and clearly it was unsustainable as a business. Whether, and if so in what way and for how long, to carry it on was up to them. In relation to the house, all or most of the work they did was also for their own benefit in making parts of the property habitable which they were going to use. I see no tenable basis of an unjust enrichment claim on these facts as found. The judge dealt correctly with this claim at paragraph 68.

After the judge had handed down his judgment on the main issues, he heard argument on consequential matters. We were provided with a transcript of the argument at this stage but not of the judge’s judgment. However, the view that he took is clear from the terms of his order, from his observations in the course of argument and, as regards costs, from the fact that he did not call on Mr Paton in reply. We did not think it appropriate to require the parties to incur the additional expense and delay of obtaining a transcript of the judgment delivered on these points. The first of the consequential matters is the monetary judgment claimed, by way of mesne profits or, putting it more generally, damages for trespass, in respect of the period during which the Defendants had stayed in the property after the expiry of the notice to quit. That date was in September 2008, the notice having been for a period of 6 months. The judge awarded damages (under the name of mesne profits) as from 1 December 2008, even though at the end of his written judgment he had said that his “current inclination” was that an award of mesne profits was not appropriate. Once he had heard the submissions of both Counsel on the point, he concluded that such an award would be right, even though from a later date than had been claimed. Since, on the footing of the judge’s conclusion on the main issues, the Defendants had had no right to be in the property from that date onwards, he was well entitled to award damages for their trespass, by way of their use and occupation of the property. There is nothing in this ground of appeal.

The last ground of appeal is as to costs, on which the judge ordered the Defendants to pay the whole of the Claimant’s costs of the claim and counterclaim, with an interim payment on account of those costs. Mr Stenhouse’s argument to the judge, renewed on appeal, is based on the fact that, as the Defendants discovered shortly after the trial, the Claimant was conducting the litigation with the backing of a legal expenses insurance policy. He argued before the judge that this should have been disclosed, in accordance with CPR rule 44.15, but that only applies if the premium is sought to be recovered – in effect if it is an ATE policy, which this was not.

Secondly he argued that this insurance backing enabled, and caused, the Claimant to be inflexible and unwilling to consider compromise in her approach to the litigation, and that, by analogy with the attitude sometimes taken by the court to parties who unreasonably refuse to consider mediation, the Claimant should be deprived of all or a substantial part of her costs. The judge thought that argument to be untenable. I agree with him. On no basis could his award of the whole of the successful Claimant’s costs be said to be outside the ambit of his discretion as to costs.

For those reasons I would dismiss this appeal. I have not dealt in terms with every one of the fourteen separate grounds of appeal, but many of them are overlapping and repetitious. I have dealt with the substance of all the points taken. Far from the judgment being riddled with flaws as Mr Stenhouse submitted, it seems to me to be a clear and carefully reasoned treatment of the issues in the case, which were above all factual, showing thoughtful judgment in relation to the evidence of the respective witnesses as regards each factual dispute, and a proper appreciation and application of the relevant legal principles. I do not need to add to the length of this judgment by dealing with the Respondent’s Notice. As at first instance it is unnecessary to consider the point which it raises.

I agree.

I also agree.