Mitchell v Watkinson & Anor

This is the judgment of the Court, to which we have all contributed.

In this appeal the appellant challenges the decision of Morgan J that the paper title of her late husband, Mr Henry Arthur Lawrence Vernon Mitchell ("Lawrence"), to a small area of land in Charlton Kings, Cheltenham, Gloucestershire (“the disputed land”) was extinguished by virtue of section 17 of the Limitation Act 1980 (“the 1980 Act”) on 8 October 1986. The appellant succeeded to Lawrence’s interest in the land on his death on 9 January 2009, and was thereafter registered as the proprietor. The judgment was given on 25 July 2013 in the context of a claim by the appellant for possession and other relief, brought against the respondents, as representatives of the current members of Charlton Kings Cricket Club.

There are two principal issues in the appeal:

The background to the proceedings can be shortly stated. What follows is based upon the findings of fact of the learned Judge and/or is uncontroversial as between the parties, save where otherwise indicated.

Between 15 and 25 April 1947 Lawrence's father, Mr Arthur Mitchell ("Arthur") executed a deed of gift in favour of Lawrence in respect of 1,254 acres of land. The deed was dated 25 March 1947. The land so gifted included Ordnance Survey field number part 171, comprising four areas of land extending to about 5 acres which the Judge called: the “northern section”, the “middle section”, the “southern section” and the “pond area”. The southern section is the disputed land.

On 10 June 1947 Arthur entered into a written tenancy agreement (“the Written Tenancy Agreement”) demising these four areas of land to Messrs Mews, Staddon and Ryder

“as Trustees of the Ryeworth Cricket Club (hereinafter called respectively “the Trustees” and “the Club” the expression “the Trustees” including the trustees for the time being of the Club)…”

Arthur entered into the Written Tenancy Agreement as

“ “Landlord” which expression shall where the context so admits include the person for the time being entitled to the reversion immediately expectant on the determination of the term hereby created…”

The Written Tenancy Agreement provided that the term was to start on 25 March 1947 and was to continue from year to year and to be terminable on at least six months notice on either side expiring on 29 September. The rent was one pound per year payable half yearly on 25 March and 29 September.

A schedule to the Written Tenancy Agreement set out the “Obligations of Trustees”. These included obligations to make arrangements for laying out and maintaining the demised premises “as a proper cricket bowls and/or tennis club”, to use the demised premises “as a private cricket bowls and or tennis ground and Club pavilion only or for such other games or recreations” as the landlord approved in writing, and “not to allow (except for grazing, mowing or other agricultural purpose) any persons except the Landlord members and servants of the Club and guests of members to use the demised premises for any purpose”.

It is common ground that the Ryeworth Cricket Club (“the Club”) was an unincorporated association. The learned Judge made no finding as to the existence or non-existence of any trust document referable to the description of the tenants as “Trustees”. Hereafter we refer to the tenants as “the Trustees” or “the tenants” or by individual name, depending on the context.

On 26th September 1947, Mr Staddon, the secretary of the Club, sent a cheque for ten shillings to Johnson & Co, solicitors acting for Arthur, “for payment of half year's rent….as under (Footnote: ¹) Tenancy Agreement between Mr Arthur Mitchell and the above Club.” This was due on 29th September 1947. On 2nd October 1947, Johnson & Co replied to Mr Staddon, enclosing a receipt for the rent. In addition the letter stated: "Since the Agreement was entered into the property has been made over by Mr Arthur Mitchell to Mr H.A.L.V. Mitchell and we should be obliged if you would pay future instalments of rent to Messrs Edwards Son & Bigwood & Mathews” who were Lawrence’s agents.

That statement was not, of course, accurate, as the gift of the land to Lawrence had taken effect before the entry into the Written Tenancy Agreement. This inaccuracy has to a great extent shaped the present dispute.

Also on 2nd October 1947, Johnson & Co wrote to Messrs Edwards Son & Bigwood & Mathews, enclosing the Club's cheque for ten shillings and stating that the former had sent a receipt to Mr Staddon with a request that future payments be made to Messrs Edwards Son & Bigwood & Mathews for the credit of Lawrence. They added that under the tenancy agreement with the Club the rent was £1 per annum payable half yearly on the 25th March and 29th September.

On 4th October 1947, Messrs Edwards Son & Bigwood & Mathews replied to Johnson & Co, acknowledging receipt of the letter and cheque, and stating that they would pay the cheque into Lawrence’s account. They also noted that the Club had been asked to send the rent direct to them in the future.

It is common ground that the Club paid a rent of £1 per year to Lawrence’s agents until 1964, that in 1965 the payment of rent increased to £20 per year, payable by two instalments, and that payment of rent in this sum continued until the last payment was made on 8th October 1974. This was after the death of the last surviving tenant named in the Written Tenancy Agreement, Mr Staddon, who died on 22nd June 1974. The other two, Mr Mews and Mr Ryder, had died on 18th May 1948 and 5th November 1972 respectively.

It was common ground before the Judge (as it was before us): (1) that there existed a tenancy which was vested in these three tenants in 1947 and under which Lawrence was their landlord, (2) that this tenancy vested in Mr Staddon alone by survivorship following the deaths of the other two, (3) that when Mr Staddon himself died on 22nd June 1974 the tenancy did not come to an end but formed part of his estate and continued up to and after 8 October 1974, and (4) that this tenancy had never been determined or replaced by a new tenancy. However, the nature and source of the tenancy, and in particular whether it was “without a lease in writing” within the meaning of paragraph 5(1) of Schedule 1 to the 1980 Act, was and is hotly contested.

There was no evidence before the Judge as to whether Mr Staddon left a will, and no evidence as to whether his estate was administered by anyone. The Judge stated that there was nothing to enable him to identify any person in whom the tenancy was vested after the death of Mr Staddon or to determine whether the tenancy was vested in the Probate Judge under section 9(1) of the Administration of Estates Act 1925. This latter was accepted to be the default position if Mr Staddon had died intestate and there had been no grant of letters of administration.

To complete this brief history: on 14th March 1975 Lawrence conveyed the middle section to four members of the Club for £2,500. This land was described as "now used as a cricket field". The conveyance stated that the purchasers were to hold the land conveyed on the trusts declared by a deed of even date made between the purchasers of the one part and the Club of the other part. The whereabouts of that deed are unknown; it was not put before the Judge, who considered it likely that the trusts involved title being held for the benefit of members of the Club on some terms or other. Evidence was adduced on the basis of which he indicated that the purchase price appeared to have been financed by loans eventually repaid by the Club. At the time of the trial two of the purchasers/trustees were surviving and holding the legal title to the middle section on the trusts in question.

At some point in 1979 Lawrence conveyed the northern section to a Mr Phillips.

On 18th January 2002 title in relation to land which included the disputed land was registered in Lawrence’s name at HM Land Registry.

In about 2003 the Club merged with another club to form the Charlton Kings Cricket Club.

On 9th January 2009 Lawrence died. His widow, the appellant, obtained probate of his will and on 7th June 2011 she was herself registered as, and remains, the registered proprietor of the disputed land. The claim for possession was issued in October 2011.

Sections 15 and 17 of the 1980 Act provide as follows:

Part 1 of Schedule 1 to the 1980 Act, so far as material, provides:

The learned Judge held as follows (so far as relevant to this appeal):

Mr Michael Driscoll QC, who with Mr Tim Harry appeared for the appellant, took issue with the Judge’s conclusions in two main respects:

For these reasons he submitted that the Judge should not have held that Lawrence's paper title to the disputed land had been extinguished.

Mr Stephen Jourdan QC, who with Mr David Mitchell appeared for the respondents, submitted that these contentions were wrong, and that the learned Judge was correct in his conclusions.

We now look at the competing arguments in more detail.

The estoppel ground of appeal

The parties do not dispute that there is a distinction between a lease in writing and a tenancy whose terms are evidenced in writing, and that this distinction matters for the purposes of paragraph 5(1) of Schedule 1 to the 1980 Act, albeit not for much else. Notwithstanding the recommendation of the Law Commission to remove it, when the 1980 Act was enacted Parliament chose to retain this distinction. Thus, where a tenancy is “without a lease in writing” paragraph 5 causes the landlord’s cause of action for recovery of possession to be treated as accruing (and the limitation period as starting to run) as from the date of the last payment of rent, subject to the other requirements of the legislation.

The appellant submits that the court should seek to arrive at a legal analysis of the events described which gives effect to the intentions of Arthur, Lawrence and the Trustees. That, argues Mr Driscoll, would result in an analysis that there was only ever one tenancy, and this was under the Written Tenancy Agreement. In his submission the appropriate analysis would not be that there was first a tenancy under the Written Tenancy Agreement in June 1947 and then a second tenancy by conduct a few months later, which impliedly rescinded the first and incorporated the terms of the Written Tenancy Agreement. He submits that it is inconceivable that anyone in 1947 would have thought that was the case; everyone would have assumed that the Written Tenancy Agreement simply continued.

Mr Driscoll submits that the analysis for which he contends can be achieved using different forms of estoppel.

We note that it is not part of the appellant’s case that if the Judge was correct in rejecting the appellant’s estoppel arguments, there could nevertheless still be “a lease in writing”. It is not therefore necessary to consider the guidance set out in Long v Tower Hamlets LBC [1998] Ch 197 as to the necessary attributes of such a lease.

First, Mr Driscoll relies upon what he calls common law estoppel, by which he refers to the rule that a tenant is estopped from denying his landlord’s title. For the existence and effects of this well-established principle, Mr Driscoll referred us to, among others, the following authorities: Cuthbertson v Irving (1859) 4 H&N 742 (Martin B) affirmed (1860) 6 H&N 135; Bruton v Quadrant Housing Trust [2000] 1 AC 406 at 4l5A to 416F; Bell v General Accident Fire and Life Assurance Company Limited [1998] 1 L&TR 1; First National Bank Plc v Thompson [1996] Ch 231 at 236F - 240A; Industrial Properties (Barton Hill) Limited v Associated Electrical Industries Limited [1977] QB 580 at 596C-597B. It was by virtue of this rule that the Judge found that the Trustees could not set up Arthur's lack of title to avoid the liabilities which they owed to Arthur under the Written Tenancy Agreement (see paragraph 24(3) above).

Mr Driscoll submits that the estoppel in question continues until the tenant is evicted by title paramount or equivalent, or until the tenant acknowledges the title of a third person by attorning tenant to him. He states that here the Trustees did not attorn tenant to Lawrence in the sense required ie by acknowledging him to have a separate and superior title to that of Arthur. Nor, he submits, was there anything equivalent to eviction by title paramount – the solicitors’ letter to Mr Staddon of 2 October 1947 did not present the position as eviction by title paramount but rather as a transfer of the reversion from Arthur to Lawrence. Therefore, the Trustees as tenants remained estopped, and the effect of the estoppel is that the Trustees cannot deny that the tenancy between themselves and Lawrence was created by the Written Tenancy Agreement, and was therefore “a lease in writing”. Mr Driscoll also argued that, given that Lawrence did in fact own the reversion, the estoppel was “fed”.

In our view this argument is misconceived. It is common ground that, as the Judge held, the Written Tenancy Agreement created a perfectly valid tenancy by estoppel as between Arthur and the Trustees. One of the effects of this estoppel was that the Trustees could not deny Arthur’s title to grant that tenancy, and another effect was that Arthur had a reversion in fee simple by estoppel. This is not in dispute, and the relevant principles are clearly established in the case law cited by the appellant (see paragraph 33 above). The Judge carefully considered whether Arthur had assigned his reversion in fee simple by estoppel to Lawrence, and concluded that he had not done so. That conclusion has not been appealed.

As to the suggestion that the estoppel operative as between Arthur and the Trustees was “fed” because Lawrence did actually have title to the disputed land and acted towards the Trustees as though he had in fact taken an assignment of Arthur’s reversion, we agree with Mr Jourdan that this is not a correct analysis. An estoppel is “fed” if, after the tenancy by estoppel has been granted, the grantor acquires title. That would have been the case if Arthur had re-acquired the freehold in the disputed land after the Written Tenancy Agreement was made: see eg Bell v General Accident Fire and Life Assurance Company Limited (above). Nothing of that kind happened here. It is nothing to the point that the Trustees remained estopped as against Arthur.

If it is necessary to decide what happened to the tenancy by estoppel between Arthur and the Trustees, we would regard the approach in Arden v Sullivan (1850) 117 ER 320 as apposite: in the circumstances of that case the Court said that on the creation of the new tenancy implied by conduct the original agreement “may be taken as rescinded”. We were also referred in this regard to Woodfall’s Law of Landlord and Tenant, paragraphs 17.018 to 17.031, for the proposition that here the tenancy by estoppel can properly be regarded as impliedly surrendered, because it was inconsistent with the new tenancy. The appellant submits that the required unequivocality did not exist for surrender. We disagree. The conduct in 1947 surrounding the effective substitution of Lawrence as landlord in place of Arthur was in our view more than sufficiently unequivocal for this purpose.

The undisputed existence of a tenancy by estoppel between Arthur and the Trustees based on the Written Tenancy Agreement does not, therefore, assist the appellant.

Mr Driscoll also relies upon an alleged estoppel by representation. He points to the letter of 2 October 1947 from the solicitors to Mr Staddon which, he states, contained a representation on behalf of both Arthur and Lawrence that Arthur’s reversion had passed from Arthur to Lawrence but that the tenancy under the Written Tenancy Agreement continued. Following that representation the Trustees continued to pay the rent due under the Written Tenancy Agreement and to comply with their other obligations under it. He submits that in those circumstances Lawrence could hardly deny that the reversion by estoppel had vested in him, or rely upon the lack of a formal assignment of it; Lawrence acted towards the Trustees as though he had in fact taken an assignment of the reversion. The Trustees were also estopped.

In this connection Mr Driscoll refers to Rodenhurst v Barnes [1936] 2 All ER 40. In that case an equitable assignee of a lease was held to have made representations which led the lessor to a clear understanding that there had been a legal assignment to the equitable assignee, and the lessor acted upon the representations so as to alter his position. The Court of Appeal held that in those circumstances the equitable assignee was estopped by his representation from denying that there had been a legal assignment.

The fundamental problem with this argument is that in so far as it relies upon the representation in the solicitors’ letter of 2 October 1947, that was not a representation made by the Trustees but made to them. There is no evidence, and the Judge did not find, that the Trustees did anything to encourage that misrepresentation or to assume responsibility for it. It is therefore difficult to see how this assists the appellant’s estoppel argument.

For the same reason Rodenhurst v Barnes provides no assistance to the appellant. Unlike the equitable assignee in that case, here the Trustees made no representation at all, let alone one which was sufficiently clear and unequivocal to induce Lawrence to act on it. We do not see how there could possibly be said to be an estoppel by representation binding the Trustees here.

We should perhaps add, in regard to Mr Driscoll’s assertion that the misrepresentation by the solicitors in the 2 October 1947 letter was made on behalf of Lawrence as well as Arthur, that the Judge made no such finding; on the contrary, in this context he clearly regarded them as Arthur’s solicitors, and distinguished them from Lawrence’s representatives (see eg paragraphs 27, 41, 44, 45 and 47 of the judgment).

In examining the appellant’s submissions on estoppel by convention it is helpful to set out the passage in which the Judge dealt with this argument:

“The Claimant contends that the tenant is estopped from denying that the tenancy which was admittedly granted in 1947 was granted by the agreement of 10th June 1947, rather than by implication from payment and acceptance of rent. It is not said that the tenant in or after 1947 made any representation or promise binding it to a legal analysis as to how the tenancy was granted. The only statement from anyone at that time which might have been relevant as to how the tenancy was granted was the statement in the letter from Arthur Mitchell's solicitors' letter of 2nd October 1947 to the tenants. This stated, wrongly, that after the agreement was entered into, the land had been transferred to Lawrence Mitchell. It is said that this statement was not contradicted by the tenants and so there was an estoppel by convention to the effect that the tenancy was granted by the agreement of 10th June 1947. I do not agree. First, the distinction between a tenancy granted by the agreement of 10th June 1947 and a tenancy granted by implication from the payment and acceptance of rent, the terms of which tenancy are those set out in the agreement of 10th June 1947, is a somewhat subtle one. I do not regard the statement in the letter of 2nd October 1947 as indicating one way or the other what the legal analysis was. Further, at all times until the question of paragraph 5 of schedule 1 to the 1980 Act was raised belatedly at this trial, the legal analysis as to how the tenancy was granted was irrelevant. It cannot be said that either party acted upon some common assumption as to that matter. Further, now that the matter has become arguably relevant, I do not see anything unjust in either party putting forward its contentions as to the correct legal analysis.” (Paragraph 47)

The appellant submits that the Judge was wrong to reject the argument that the events in 1947, together with the payment and acceptance of rent which took place, gave rise an estoppel by convention, so that it would be unconscionable for any successor tenant to deny that at all material times the disputed land has been held, first by the Trustees and then by that successor, under the Written Tenancy Agreement, which was “a lease in writing” within the meaning of paragraph 5 of Schedule 1.

The appellant first points to the Judge’s acknowledgement that the letters of 2 and 4 October 1947 between the representatives of Arthur and Lawrence assumed that Lawrence would be subject to and have the benefit of the Written Tenancy Agreement, albeit those letters did not say how that result had or would come about. (We note the Judge’s comment that the means would not have mattered, as Lawrence was obviously “happy to have the land the subject of a tenancy in favour of the Trustees” (see paragraph 45 of the judgment).)

The appellant submits that both Lawrence and the Trustees at all material times acted on an assumed state of affairs, namely that the Trustees held under the Written Tenancy Agreement, and that the Judge's reasons for rejecting the existence of an estoppel by convention are flawed.

The appellant argues, first, that the letter of Johnson & Co to Mr Staddon of 2 October 1947 plainly indicates, that the Trustees held and would continue to hold the disputed land under the Written Tenancy Agreement. Second, the Judge’s own findings show that Lawrence and the Trustees acted upon a common assumption that the latter held under the Written Tenancy Agreement: the Trustees paid rent consistently with that Agreement, and Lawrence accepted the same and did not dispute their right to stay in possession under it. Third, contrary to the Judge’s view, given the consequences which would follow (subject to the other arguments relied on by the appellant) it would be plainly unjust and unconscionable now to assert that for the last 66 years the Trustees and latterly a successor have not held under the Written Tenancy Agreement, but rather under a periodic tenancy to be implied from conduct.

Both sides referred to two decisions of Briggs J (as he then was), which have been applied in several later cases: HM Revenue & Customs v Benchdollar [2009] EWHC 1310 (Ch), and Stena Line v Merchant Navy Ratings Pension Fund Trustees [2010] EWHC 1805 (Ch). It is worth citing from the second of these judgments:

“134.

Estoppel by convention arises out of an agreed statement of facts or law, the truth of which has been assumed by convention of the parties as a basis of their relationship. When the parties have so acted in their relationship upon the agreed assumption that the given state of facts or law is to be accepted between them as true, that it would be unfair on one for the other to resile from the agreed assumption, then he will be entitled to appropriate relief: see Spencer Bower on Estoppel by Representation (4th ed.) page 180. Commonly, such an estoppel arises where parties contract together on terms which mean one thing, but then conduct their relationship under that contract by reference to a subsequently formed convention between them that it means something else: see for example Amalgamated Investment and Property Co Limited v. Texas Commerce International Bank Limited [1982] QB 84.

135.

Estoppel by convention may nonetheless arise otherwise than in a contractual context: see for example Commissioners for Her Majesty's Revenue and Customs v. Benchdollar Limited [2010] 1 All ER 174, in which a convention was established between HMRC and a number of persons alleged to be liable for employers' NIC to the effect that a certain course of conduct was effective to prevent time running against HMRC under the Limitation Acts, when in law it was not.

136.

In the present case, counsel were content to accept, subject to one small adjustment proposed by Mr Spink, the summary of the relevant principles in paragraph 52 of my judgment in Benchdollar, after a review of the relevant authorities….. The summary is as follows:

"…. the principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings, to be derived from Keen v. Holland, and the cases which comment upon it, are as follows:

i)

It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them.

ii)

The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely upon it.

iii)

The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter.

iv)

That reliance must have occurred in connection with some subsequent mutual dealing between the parties.

v)

Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position."

137.

Mr Spink's suggested adjustment was to part (i) of that summary, where I suggested that the common assumption must be "expressly shared between them". Mr Spink submitted that the crossing of the line between the parties may consist either of words, or conduct from which the necessary sharing can properly be inferred, relying on note 2 at page 180 of Spencer Bower (op. cit.) and The August Leonhardt [1985] 2 Lloyd's Rep 28 at 34-5. I accept that submission.”

Mr Driscoll pointed out that Benchdollar and Stena were non-contractual cases, and submitted that the principles applicable in those cases and relied upon by the respondents did not apply in the present case, which he submitted was contractual. Mr Driscoll took us to Chitty on Contracts (31^st edition) at 3-107 as enshrining the principle on which the appellant relies (see also paragraph 6 of the appellant’s reply). This passage states:

“Estoppel by convention may arise where both parties to a transaction “act on assumed state of facts or law, the assumption being either shared by both or made by one and acquiesced in by the other” The parties are then precluded from denying the truth of that assumption, if it would be unjust or unconscionable to allow them (or one of them) to go back on it….It seems, however, that the assumption resembles the representation required to give rise to other forms of estoppel to the extent that it must be “unambiguous and unequivocal”, and this common feature can make it hard to distinguish between these two forms of estoppel…..”

Neither Mr Driscoll, nor the passage in Chitty, nor Briggs J spell out in precisely what, if any, respects the “contractual” and “non-contractual” sets of principles differ, and Mr Driscoll submitted that in any event the appellant could satisfy both tests.

Although there are superficial differences of formulation it seems to us that these are more apparent than real, and that in practice there is likely to be little if any material difference in the outcome whichever version of these principles is applied.

Further, it is not at all clear that the present case is “contractual”, at least in the sense described by Briggs J in the passage cited above: this is where the estoppel relates to a commonly assumed (but inaccurate) interpretation of contractual terms. That is not really the position here, where the alleged estoppel is not as to the content or meaning of the tenancy contract, but as to the legal analysis of how the tenancy came into being.

In our view the argument based on this form of estoppel fails in either event. The Judge was clearly correct in describing as “subtle” the distinction between a tenancy granted by the Written Tenancy Agreement itself and a tenancy granted by implication from the payment and acceptance of rent, the terms of which are the same as those set out in the Written Tenancy Agreement. He was similarly entirely justified in finding that in 1947 no-one would have given the slightest thought to the correct legal analysis of what had happened, let alone to whether it was one rather than the other of these alternatives; certainly neither Lawrence nor the Trustees would have done so; it would have been regarded as entirely irrelevant and uninteresting. Indeed, it was so regarded until the trial before the Judge, when the present issue concerning the possible effect of paragraph 5 of Schedule 1 arose.

It follows in our judgment that the Judge was correct to hold that there existed no common assumption as to the legal analysis. For the same reason there could be no such assumption by Lawrence which was unequivocally and unambiguously acquiesced in by the Trustees, or vice versa. Similarly, the Judge was obviously correct to hold that neither party had acted upon any such assumption (which did not exist). In those circumstances it could not be unjust or unconscionable for either the appellant or the respondents to seek to establish their preferred legal analysis now.

As to the appellant’s criticism of the Judge’s analysis of the actual legal position, we agree with Mr Jourdan that the Judge’s analysis was a conventional one: where there is a lease which, for one reason or another, is not operative, and rent is paid and accepted, a periodic tenancy, on such terms of the lease which are not incompatible with such a tenancy, can be created.

In this regard Mr Jourdan points out that had the solicitors informed the Trustees of the true position, namely that the tenancy under the Written Tenancy Agreement had been granted by the wrong person, either the Trustees could have been asked to enter into a new written tenancy agreement with Lawrence, in which case there would have been a “lease in writing”. Alternatively the Trustees could have been asked to agree that the terms of the Written Tenancy Agreement should apply as between Lawrence and themselves; no doubt the Trustees would have agreed. Mr Jourdan submits, correctly in our view, that the result would have been a new tenancy as between Lawrence and the Trustees on the terms of the Written Tenancy Agreement, which would not have been a “lease in writing”, and that the effect of the Judge’s analysis of the facts is the same as if that had occurred.

In their written reply Mr Driscoll and Mr Harry submitted that in none of the cases relied upon by the respondents for the implication in question (a periodic tenancy on terms of an earlier inoperative written tenancy agreement) did the parties to the pre-existing (and inoperative) written contract consist of the tenant and a third party, as in the present case: in all those cases the original parties had been the same parties as under the later tenancy implied by conduct. They submitted that the authority relied upon by the respondents, Arden v Sullivan (above), did not assist the respondents, because in that case one of the original joint landlords had simply become the sole landlord under the tenancy implied by conduct, the tenant being the same person in each case.

In making this last point Mr Driscoll appears to be contending for the existence of some restriction on the approach of the Judge, but he has not referred us to any authority which imposes such a restriction. Nor do we see any reason in principle why such a restriction should exist: implications are highly fact-dependent, and in our view on the material before him the Judge was entitled to find that a tenancy on the terms of the Written Tenancy Agreement, implied by the conduct which had taken place, had arisen here.

Nor do we agree with the submission in the Reply that the criteria for that implication somehow “merge” into the requirements for the estoppel by convention for which the appellant contends, so that the one leads to the other. That submission conflates two quite different things: one concerns a common assumption of the parties about the legal analysis of the process by which the actual tenancy arose; the other relates to the circumstances which determine whether an actual tenancy has arisen and if so what are its terms.

The estoppel by convention argument therefore fails. In view of our conclusions on the first ground of appeal it is necessary to consider the second ground.

The adverse possession ground of appeal

The essence of this ground of appeal is that on the material before him the learned Judge was not entitled to find that the Trustees’ successor in title to the tenancy granted by Lawrence was in possession of the disputed land for the purposes of paragraph 8(1) of Schedule 1 for the requisite period from the accrual of Lawrence’s cause of action on 8 October 1974, when the last payment of rent was made.

We refer to the specific findings of the Judge at sub-paragraphs (8), (9) and (10) of paragraph 24 above. We also refer to certain matters which are not in dispute, recited at paragraphs 14-15 above. In particular, it is common ground that the tenancy under which Lawrence was the Trustees’ landlord did not come to an end when the last Trustee, Mr Staddon, died in June 1974 but formed part of his estate and continued up to and after 8 October 1974, and has never been determined or replaced by a new tenancy. It is accepted that following Mr Staddon’s death the tenancy was vested in the representative of his estate or failing that the Probate Judge.

The appellant has two main objections to the Judge's approach. She submits, first, that in the relevant period, namely 8 October 1974 to 8 October 1986, there was no person capable of licensing any activity by the Club or its members on the disputed land; the Judge should therefore have found that in the absence of any such licensor, it was not possible to find that the tenant was in possession through his licensees. Second, there was no evidence to support the Judge’s finding that the Club or its members were in fact licensed by a tenant to use and occupy the disputed land in that period.

As to the first objection, the appellant submits that after Mr Staddon’s death in June 1974 it is probable that he had no personal representatives, that his estate therefore vested in the Probate Judge, and that the legal title to the tenancy remained with the Probate Judge throughout the relevant period.

For the status of the Probate Judge in this context, Mr Driscoll referred to Re Deans [1954] 1 WLR 332, at pages 334-5, where Wynn-Parry J described the role:

“….[the Probate Judge] cannot be said, by virtue of the language of section 9 of the Administration of estates Act 1925 to be a trustee within the meaning of that word for any of the purposes of the Trustee Act 1925. He has no duties whatsoever to perform. No obligations fall upon him. It is a mere matter of necessary convenience and protection which has led to the introduction of section 9….; and although reference is made to the ordinary, the position of [the Probate Judge] appears to me to be different from the position of the ordinary (Footnote: ²), in that, whereas the ordinary had, at any rate in later times, thrown upon him the obligation to discharge debts before holding the balance to pious uses, no such obligation is thrown on [the Probate Judge]. The whole operation of that section is that where the condition is fulfilled of a person dying intestate, his estate, real and personal, vests in [the Probate Judge], and that property remains vested in him until the second condition is fulfilled, namely that administration is granted in respect of that property.”

Mr Driscoll submitted that the Probate Judge was not a personal representative or a trustee; he would have known nothing of this tenancy, or of the Club; he would not have had the power to give anyone a licence to use and occupy the disputed land; he would not even have known that the land was vested in him; he was not bound by any licence granted by the tenant, for if such a licence existed it was not an interest in land but only a contract. It followed that during the relevant period there were no trustees or none capable of licensing anyone to use the land in question, and that no tenant or successor was in possession of the land on 8 October 1974.

We do not consider that the possibility (or probability, if such be the case, as the appellant contends) that the tenancy may have been vested in the Probate Judge on Mr Staddon’s death is material to the continuance of such possession. Section 9 of the Administration of Estates Act 1925 provided that property vested in the Probate Judge “in the same manner and to the same extent as formerly in the case of personal estate it vested in the ordinary”. We were taken to the decision of the Privy Council in Dyke v Walford [1846] 13 ER 557, where the powers and duties of the Church and ordinary in relation to the personal property of those dying intestate are traced from the Statute of Canute, through the Magna Carta, to (relatively) modern times. The Privy Council stated, at page 577, that the ordinary had “...the right or duty of jurisdiction and administration, and the right of possession, for the latter purpose.”

Although, as Re Deans (above) shows, the Probate Judge was not in the same position as a trustee when property vested in him pursuant to section 9, this does not mean that his holding of the title to the property in question was shorn of substance. For example, in Fred Long & Sons Ltd v Burgess [1950] 1 KB 115, Bucknill LJ (with whom the other members of the Court of Appeal agreed) described the vesting as

“a positive act with some legal substance ….[in which the Probate Judge had] legal power to give directions about the property.” (page 119)

There the Court of Appeal found that the Probate Judge had the legal capacity to receive a notice to quit. Similarly, in Egerton v Rutter [1951] 1 KB 472, the tenant of a farm died intestate; it was held that her children carried on farming as agents for the Probate Judge in whom the tenancy had vested in the absence of a personal representative, and that therefore a notice to quit served on the children was valid.

In our view if the Probate Judge (in default of an executor or administrator) succeeded to the tenancy on Mr Staddon’s death, there is no reason, based on his position as Probate Judge, why he should not have been in possession of the disputed land in the same way as the Trustees had been hitherto. We do not see why any licence granted by the Trustees to the Club/its members to occupy the disputed land, which was in existence at the time of Mr Staddon’s death, should automatically have come to an end at that time so as to require the grant of a new licence. As Mr Jourdan pointed out, contractual rights/obligations do not normally end on death: see Chitty on Contracts (31st ed) paragraphs 20-001 to 20-005. A fortiori, if (which the appellant disputes) the Club/its members were beneficiaries under a trust. Nor do we consider that the fact that the Probate Judge would have known nothing of the vesting or the tenancy makes any difference in that regard.

A related point is made by the appellant. The appellant contends that the Judge was not entitled to hold that the tenant remained in possession, through its licensee, from 8 October 1974 and for at least 12 years thereafter. This is again because of what the appellant submits was the probable identity of Mr Staddon’s successor as tenant, namely the Probate Judge.

The point appears to be as follows. On the 8 October 1974 the tenancy was deemed by paragraph 5(1) of Schedule 1 to be determined. In Williams v Jones [2002] 3 EGLR 69, the Court of Appeal (per Buxton LJ, with whom the other members of the Court agreed) held that, on the deemed determination of a tenancy under paragraph 5, the possession of the tenant

“moves from being possession with the landlord's consent to being possession held without his consent, and thus, for limitation purposes, adverse.

…

…this analysis does not exclude the possibility that a tenant might have so feeble a connection with the land (the example given in argument was of a man who has gone off to Australia leaving the front door of the demised premises open) that, upon the determination of the tenancy, he could not be said to be in possession at all. But that, in my view, would have to be an extreme case.”

The appellant submits that the Judge should have found that the successor was probably the Probate Judge, and that this was therefore the kind of extreme, exceptional, case referred to in Williams v Jones, where it could not be assumed that the tenant was in possession at the time of deemed determination of the tenancy and merely held over thereafter. The Probate Judge’s connection with the disputed land was “feeble” given that he had never been near it and knew nothing of it. Accordingly the Judge should have applied the more stringent test of adverse possession in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, which could not have been satisfied in this case.

We do not consider this point to be a good one. We can see no reason why the vesting of legal title in the Probate Judge as successor to the tenant should be any different in kind or in its effects for present purposes than would be the vesting in an executor or administrator. Moreover, the reliance placed on Williams v Jones appears misconceived. It fails to take account of the fact that the issue here relates to possession found to have existed for many years through the occupation of a licensee, the Judge having expressly found that the tenant had probably not been in possession personally. There is no justification for regarding the Probate Judge’s connection with the land as more “feeble” for this purpose. It is clear that nothing of any significance changed when Mr Staddon died or when the tenancy was deemed to have ended – the Club’s occupation continued exactly as before. It is also to be noted that the example given by Buxton LJ of possession so feeble as to amount to an extreme and exceptional case, such as might imply discontinuance of possession, involved a positive and personal act by the former tenant – leaving the front door of the premises open and departing for Australia. This is wholly removed from the present case, where the nature of the possession remained unchanged from 1947 onwards.

The appellant also submits that there was no evidence that the Club or its members were in fact licensed by the tenant to use and occupy the disputed land during the limitation period 8 October 1974 to 8 October 1986, and that the Judge was therefore not entitled to find “that the tenant was in possession through its licensees the members of the club".

The appellant accepts that until Mr Staddon died in June 1974 “there might have been some arrangement between the tenant and the Club” (appellant’s skeleton argument, paragraph 42). But the appellant states that no-one provided positive evidence of such an arrangement or produced any written record of it; the most the respondents could do was to point to the terms of the Written Tenancy Agreement and to the fact that the Club paid the rent until October 1974; however, the Club stopped paying the rent thereafter which, the appellant submits, suggests that any arrangement between the tenant and the Club ceased with the death of Mr Staddon. The Judge made no findings as to the terms of any licence, which were a matter of speculation.

In response the respondents submit that there was evidence which fully justified the Judge’s finding of a licence which existed prior to the death of Mr Staddon and continued thereafter. They refer first to the terms of the Written Tenancy Agreement, and in particular to those which we have set out at paragraphs 7, 8 and 9 of this judgment. The respondents submit that these provisions show that the Trustees were not taking the tenancy for their own benefit, but as trustees for the benefit of the Club, and also that the purpose of the tenancy was to enable the demised premises, including the disputed land, to be used for the purposes of the Club and by its members, employees and guests of members. They contend that once the tenancy existed, use of the demised premises by members of the Club and the other contemplated users was pursuant to the tenancy.

Next, the respondents point to the Judge’s finding that, from the first payment of rent under the Written Tenancy Agreement by Mr Staddon as the Secretary of the Club in September 1947 to the final payment on 8 October 1974, the rent was at all times paid by the Club. They submit that this, together with the fact that the demised premises, including the disputed land, were at all times used by the members of the Club for the purposes of the Club, can only be attributable to the members of the Club having the right to use those premises for such purposes.

As to the legal position where property is held by trustees for an unincorporated association such as the Club, the respondents referred to the summary of case law by Lawrence Collins J (as he then was) in In re Horley Town Football Club [2006] EWHC 2386 (Ch), and to Hanchett- Stamford v HM Attorney General [2008] EWHC 330 (Ch). In the latter Lewison J (as he then was) said:

“…the members for the time being of an unincorporated association are beneficially entitled to “its” assets, subject to the contractual arrangements between them”.

The respondents submitted that the following was the appropriate analysis of the position here: the licence pursuant to which the Club members were entitled to use the disputed land was a contractual licence, and that the Trustees and their successor(s) held the tenancy on trust for the members for the time being of the Club, on the terms of the mutual contract between those members, which entitled those members to play cricket and carry out ancillary activities on the land. When an individual joined the Club, he or she agreed to be bound by the terms of that mutual contract, presumably in the form of the Club rules, and took the benefit of it. In accordance with well-established principles the Trustees were in those circumstances entitled to an indemnity out of the property of the Club for the rent and all other liabilities arising under the tenancy. That is why the Club secretary paid the rent.

The appellant, in a lengthy written reply, takes issue with the factors relied upon by the respondents which we have recited at paragraphs 79-80 above, submitting that they were not specifically addressed by the Judge as part of his reasoning, and that they are not sufficient to justify a finding of a licence between the tenant and the Club. We see little if any force in these submissions. All the factors relied upon by the respondents in this regard were clearly before the Judge, and he made specific findings in respect of the payment of rent by the Club, as we have indicated above.

Nor do we consider it necessary to deal with the appellant’s critique, in the written reply submissions, of the respondents’ reference to the case law dealing with property held in trust for an unincorporated association (see paragraph 79 above). It is correct that the Judge did not specifically deal with the capacity in which the Trustees held the tenancy. Before us Mr Jourdan submitted that it is plain that there was an implied or constructive trust. But whether or not it is implicit in the Judge’s judgment that the tenancy was held on trust, it is, in any event, the appellant’s contention that even if a trust existed, that would not have been sufficient to establish that the tenant had possession of the disputed land through the Club, and that a licence would need to be established. That appeared to be common ground.

In that regard, we consider that on the material before him the Judge was clearly entitled to hold that the tenant granted a licence to the Club members on the basis that:

“… the tenant had for many years permitted the club to use the tenanted land…..” (paragraph 67).

After all, that is what the terms of the Written Tenancy Agreement expressly required the Trustees, as tenants, to do.

As we have noted, it is acknowledged in the appellant’s submissions that prior to Mr Staddon’s death there might well have been a licence in place between the Trustees as tenant and the Club. The appellant’s criticism of the Judge’s conclusions is more specifically directed to the period after Mr Staddon’s death, and in particular to the period beginning with the last payment of rent. This raises the question: why such a licence as between the tenant and the Club should have come to an end on or before the 8 October 1974.

At paragraph 63 of his judgment the Judge stated:

“It seems to have been accepted that before 8th October 1974, the tenant was in possession of the [disputed land], as well as the middle section (and presumably the northern section also)”.

He later made a finding to the same effect (see paragraph 67 of his judgment).

Whether this finding was common ground (as the Judge seemed to believe) or not, it is certainly common ground, as we have recorded earlier, that when Mr Staddon died in June 1974 the tenancy did not come to an end but formed part of his estate and continued up to and after 8 October 1974 (when the Club made the final payment of rent) and was never determined, subject only to the deeming effect of paragraph 5(1) of Schedule 1. Given that the appellant does not seriously challenge that up to the time of Mr Staddon’s death there had been a licence arrangement between the Trustees and the Club, enabling the Club to occupy the land, it can hardly be suggested that up to that time the Trustees as tenants were not in possession of the land through the Club, which was in occupation.

On Mr Staddon’s death the tenancy admittedly vested in his successor (whoever that was). The Club continued to occupy the land in the same way as before and, as we have seen, paid rent several months later on 8 October 1974. In those circumstances, why (one asks rhetorically) would the long-standing licence have come to an end on Mr Staddon’s death? And why would Mr Staddon’s successor as tenant not have been in possession through the Club and its members in the period between the death of the last Trustee and the deemed determination of the tenancy on 8 October 1974, just as the Trustees had been in possession since the outset of the tenancy?

We have been able to identify no convincing answer, despite Mr Driscoll’s able argument. Therefore, whether Mr Staddon was succeeded as tenant by an executor or an administrator or the Probate Judge, we consider that the Judge was clearly entitled to proceed on the basis that the successor tenant was in possession under the tenancy in the period between Mr Staddon’s death and 8 October 1974.

It is true, as the appellant points out, that after 8 October 1974 the rent was no longer paid. However we do not accept the appellant’s contention that it should be inferred from that fact that the licensing arrangement under which the Club and its members used the disputed land ended. The tenancy admittedly continued, and the Club and its members continued to use the disputed land in precisely the ways they had done thitherto. It may be that the respondents are right in speculating that the need to pay the rent was simply overlooked after the middle section of the demised premises was conveyed to four members of the Club in March 1975. In any event, there was certainly material before the Judge on which he was entitled to find that the licence to the Club and its members continued until at least 8 October 1986.

In so far as it is argued that any licence which survived Mr Staddon’s death was restricted to those who were members of the Club at his death and no-one who became a member thereafter was within the scope of such licence, that is a somewhat unreal suggestion. In any event it would not assist the appellant unless it could be established that only “non-licensed” members of the Club had been using the disputed land since Mr Staddon’s death. In the absence of that being established there would be no ground to regard the tenant’s possession as interrupted at any relevant stage.

Therefore, in our view the Judge was entitled to hold that the tenant was a person in whose favour the limitation period can run within the meaning of paragraph 8 (1), and that by virtue of the use of the disputed land by members of the Club as the tenant’s licensees the tenant was in possession of that land from 8 October 1974 and thereafter for the requisite limitation period.

In view of this conclusion there is no need for us to consider whether it would be appropriate to remit to the Judge the respondents’ alternative argument, that the members of the Club were themselves in adverse possession of the disputed land during the relevant period.

In relation to the first ground of appeal, we conclude that the Judge was right to hold that the tenants under the tenancy with Lawrence, and any successor tenant, are not estopped, by convention or otherwise, from contending that the tenancy arose otherwise than under the Written Tenancy Agreement. Accordingly, it is open to such tenant or successor to deny that the tenancy is “a lease in writing” within the meaning of paragraph 5(1) of Schedule 1 to the 1980 Act. The Judge’s finding that the tenancy between Lawrence and the Trustees was “without a lease in writing” is not impugned in this appeal on any other ground.

In relation to the second ground of appeal, our conclusion is that the Judge was entitled to hold that the tenant under the tenancy granted by Lawrence was a person in whose favour the limitation period can run within the meaning of paragraph 8(1) of Schedule 1 to the 1980 Act, and that by virtue of the use of the disputed land by members of the Club as the tenant’s licensees the tenant was in possession of that land from 8 October 1974 and thereafter for the requisite limitation period.

The appeal is accordingly dismissed.