Gordan v Mitchell & Ors

In this case the claimant Richard Andrew Gordon (“Richard”) seeks an order which would enable him to realise the interest which he claims in certain garage premises called the Brenchley Garage (“the Garage”) in the village of Brenchley in Kent. He seeks to do so under what is known as the doctrine of “Proprietary Estoppel”, alleging that from his early youth until he left employment at the Garage, which was owned by his stepfather, the First Defendant Roy Mitchell (“Mr Mitchell”) in November 1991, he worked long hours at low wages on the assurance, given him by Mr Mitchell, that he, together with his brother Derek Gordan, the Third Defendant (“Derek”) would receive such an interest. Marion Mitchell, the Second Defendant (“Mrs Mitchell”) is the mother of Derek and Richard by an earlier marriage and the wife of Mr Mitchell. Brenchley Garage Limited, the Fourth Defendant, (“the Company”) was incorporated on 22^nd March 2003 to acquire the garage business being conducted at the Garage, initially until 1996 by Mr Mitchell as sole trader, thereafter, until 31^st October 1998, by Mr Mitchell and Derek in partnership and thereafter until the incorporation of the Company and the acquisition of the business, by a partnership of Mr Mitchell, Derek and, in addition, Teresa Gordan, Derek’s wife (“Teresa”).

The background facts from which the present dispute arises are as follows: Derek is two years and two months older than Richard. They both went to the same secondary school, namely, the Charterhouse Road Boy’s School (“the School”), since closed. Having left school at sixteen Derek began work as a trainee apprentice at the then garage business of Mr Mitchell at Green Street Green near Orpington, in 1976. The garage was known as K-1 Autos. It is Richard’s case that he left school when aged little more than thirteen and a half in 1976 and went to work for his stepfather at K-1 Autos. He says that he was paid £25 per week in cash and soon became a proficient mechanic with skills far in advance of his age. The Defendants deny that Richard left school in 1976. They say that he left school no earlier than 5^th January 1978 being the last day that the school records record him as having attended at the School.

Meanwhile in September 1977 a Mr Michael Keith (“Mr Keith”) approached Mr Mitchell with a view to their purchasing the Garage, which was then on the market, in partnership with him. Mr Keith was a business acquaintance of Mr Mitchell, branch manager of a finance company through whom that company did insurance business with K-1 Autos. Mr Mitchell had invested in a small insurance company set up as his own enterprise by Mr Keith.

It is Richard’s case that he and Derek accompanied the Mitchells and the Keiths to view the Garage in the course of which Mr Mitchell made the representation to them upon which this case is primarily based. The sense of that representation is pleaded at paragraph 5 of the amended Points of Claim namely that “if the transaction went ahead, all three of them [Mr Mitchell, Derek and Richard] would have to work very hard for low wages and that, on Mr Mitchell’s retirement in 1996 at the age of 65 [Derek and Richard] would take over Mr Mitchell’s role in the Garage business and would each become entitled to a third of the one half share in the Garage which was being acquired by Mr Mitchell, a share which was being acquired for the family as a whole.” Richard contends that this assurance extended to the whole of the Garage premises after Mr Mitchell purchased Mr Keith’s share in the business and its premises as described in the next paragraph.

The purchase was completed on 1^st November 1977. Thereafter until March 1978 Mr Mitchell and Mr Keith traded in partnership at the Garage until, on 3^rd March 1978, Mr Keith gave notice to terminate his liability under a guarantee given to the National Westminster Bank to secure repayment of a business loan to the partnership. Mr Keith was concerned that the garage business was not profitable. Mr Keith encouraged Mr Mitchell to buy him out of the partnership which he did, with the assistance of borrowed money, on 2^nd May 1978. Mr Keith’s wife (“Mrs Keith”) who had been working in the office of the business ceased doing so in April 1978.

It is the Defendant’s case that Richard, after leaving school on 23^rd March 1978, having turned sixteen years old on 8^th January of that year, started working at the Garage for the first time shortly after its purchase was completed in May 1978. The 23^rd March 1978 is the date when the records of the School show Richard being deleted from its register. The Defendants assert that save for a brief period of “work experience” in 1977, Richard never worked at K-1 Autos. It is common ground that, under the then law, Richard ought not to have left school until the end of the summer term in the year he reached the age of sixteen, namely, in July 1978. In May 1978 the Mitchells sold their house in Orpington and moved to a house in Paddock Wood a short distance from Brenchley. It is their case that they approached the local school with a view to Richard continuing his education there for his last two months. It is the Mitchell’s evidence that the new school told them that there was little point in Richard attending at that school for those two months particularly since he had a job at the Garage which he could take up.

It is common ground that Richard worked at the Garage from May 1978. Derek who had worked at K-1 Autos since 1976, was approved as an MOT tester on 20^th February 1980. In 1980 the Mitchells sold their house in Paddock Wood moving to Horsmonden another village close to Brenchley. During this year Richard completed his three year apprenticeship and began to be paid at rates appropriate for a qualified mechanic.

At paragraph 12 and 13 of the amended Points of Claim it is pleaded that “both before, during and after this period [1980] [Richard] and his brother both felt that they were being underpaid but, on the many occasions on which this matter was discussed with Mr and Mrs Mitchell, the invariable response to the two of them was: “Don’t forget it is all yours at the end of the day” or similar words to this effect. One such response was made to [Richard’s] brother when he specifically complained that a new employee was being paid more than [Richard] and his brother. On one of the occasions on which such assurances were made, Mrs Mitchell informed [Richard] that she had a share too and therefore his potential share was in fact a quarter rather than a third.”

In 1981 Richard told his parents of his intention to join the army. He was ultimately persuaded not to do so. There is an issue as to how far Richard got with his application to join the army. It is his case that he told his parents that he was simply considering it. It is their case that he got to the stage of completing some preliminary tests. It is Richard’s case that his parents sought to persuade him not to join because of the important part which he was playing in the business. It is their case that they sought to dissuade him because of a parent’s natural anxiety at the dangers of military service.

On 22^nd July 1982 Richard was provisionally approved as an MOT tester. On 22^nd March 1983 a son was born to Richard by the girl, Deborah Carr (“Deborah”) with whom he was living, whom he later married and by whom he had two further children. It is common ground that Deborah’s relationship with Richard’s parents and some of their family was strained leading to frequent and sometimes explosive rows. It is the Mitchell’s case that following Deborah’s behaviour at the first meal she was invited to at the Horsmonden house she never came to eat with them again.

One such row took place in March 1991 consequent on Deborah returning some presents, bought by Mrs Mitchell for her grandson, and an accompanying birthday card to the Garage. It was Mr Mitchell’s evidence that she did this by throwing them down in the Garage at the same time saying that the Mitchells were not her son’s grandparents. It is Richard’s evidence, denied by Mr Mitchell, that in the course of a discussion between himself and Mr Mitchell, consequent on this incident, he was told by Mr Mitchell that he would not get a share in the business unless he gave up Deborah.

In August 1988 Mr Mitchell suffered a heart attack. He took several weeks to recover from it and, thereafter, was not able to contribute to the business as energetically as before. In the spring of 1989 an offer was made to purchase the garage site for development. It is common ground that Mr Mitchell discussed the offer with his stepsons and told them that if the sale proceeded he would pay them each £50,000 from the proceeds of sale to use as they wished. It was Richard’s case that this offer was made to purchase his share in the Garage and its business and that he persuaded his stepfather not to accept the offer because he thought that the garage business was potentially worth more than the bid of £600,000 which it was his evidence was the price initially offered by the interested buyer. It was Mr Mitchell’s evidence that the initial offer was only £450,000 which he turned down when it was later reduced. His offer of £50,000 was a recognition that his stepsons would lose their employment if the offer was accepted and was intended to give them the wherewithal to make a new start. It is not in issue that from time to time Mr Mitchell assisted his stepsons with gifts of money for such things as providing the deposit for the purchase of a house. In April 1989 Mr Mitchell entered into a hire purchase agreement to assist Richard to purchase a caravan.

In November 1991 Richard ceased working at the Garage leaving to take up a job for the RAC. It is not suggested that Richard was dismissed indeed it is accepted that Mr Mitchell told him that his job would be kept open for him to return to, should his job at the RAC prove unsatisfactory, for a minimum period of six months certain, and for a further period of six months in all probability though not absolutely for certain. Richard has never returned to work at the Garage. Although Deborah, whom he married in August 1993 has re-established contact with Mrs Mitchell so that Mrs Mitchell goes to Richard’s house from time to time to see her grandchildren and to take them birthday presents etc., Richard himself has cut himself off from his family. A birthday card sent to him by his mother was returned to her through the post. Richard, who still lives close to the Garage, has deliberately avoided casual meetings.

However Richard met his mother on 21^st December 2002 in the following circumstances: Mrs Mitchell had made an appointment with Deborah to visit Richard’s house to deliver some cards and presents for her grandchildren. To her surprise the door was opened to her by Richard who explained that his wife had gone out briefly to the shops. He had, however, unknown to his mother, set up a video camera covering the room into which he invited his mother in order to record their conversation. I was shown the video and given a partial transcript recording the important parts of what passed between them. I will return to this conversation later in this judgment. Suffice it to say at this stage, that in the course of the conversation, Richard represented that he had been “pushed out” from his employment at the Garage. At paragraph 24 of the amended points of claim it is alleged that in the course of this conversation Mrs Mitchell acknowledged that Richard would have had a share in the business if he had stayed which is borne out in the transcript.

In the meantime on 2^nd February 1995 the properties comprising the Garage premises were put into the joint names of Mr and Mrs Mitchell by Mr Mitchell. The same day of the following year was Mr Mitchell’s sixty-fifth birthday. It is common ground that Richard did nothing to claim any interest in the Garage following that date. His reasons for inaction given in evidence were that he did not wish to worry his stepfather having regard to his weak state of health. In the course of 1996 Mr Mitchell took Derek in as a partner in the garage business and on 31^st October 1998 Teresa was added as a partner. As earlier described the Company was incorporated on 22^nd March 2003 to take over the garage business. Mr and Mrs Mitchell, Derek and Teresa each hold one quarter of the Company’s shares. The Company commenced trading on 1^st May 2003. The first intimation that Richard was claiming an interest in the Garage was a letter before action sent to the First, Second and Third Defendants on 11^th July 2003 by Richard’s solicitors but it was not until 10^th May 2006 that these proceedings were commenced.

There is no issue between the parties as to the relevant law. The prerequisites of a claim based on the doctrine of Equitable Proprietary Estoppel are:-

In Gillette v. Holt [2001] Ch210 the Court of Appeal were considering a case where a Claimant had worked for a Defendant landowner for almost forty years and had effectively provided the Defendant with a surrogate family on the basis of assurances that the bulk of the farming business would be left to the Claimant in the Defendant’s will. He was held to have incurred sufficient detriment to be able to rely on the assurances of the Defendant to obtain orders preventing the transfer by the Defendant of his assets to third parties. At page 232 of the report Lord Justice Robert Walker with whose judgment the other members of the Court of Appeal agreed said this:-

“The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad enquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances. …There must be sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded – that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved.”

In the present case there are two relevant assurances, the first, which I will call the “Primary Assurance” the terms of which, as pleaded, I have set out and which Richard alleges was given to Derek and himself shortly before the purchase by Mr Mitchell of the Garage. The second assurance, which I will call the “General Assurance”, which Richard alleges was given in the terms which I have set out on various occasions by Mr Mitchell or Mrs Mitchell at family meetings around 1980 and thereafter, when, amongst other things, the level of wages being paid to Derek and Richard were allegedly discussed. Richard’s description of the circumstances in which the Primary Assurance was given (in the course of viewing the Garage premises shortly before acquisition) and the giving of the assurance by Mr Mitchell himself, are denied by the Defendants and, in particular, by Mr Mitchell. In his evidence Mr Mitchell accepts that it is possible that he has from time to time said something like the General Assurance in conversation with his stepsons but cannot recollect any occasion when he actually did so. Mrs Mitchell denies ever suggesting that she had a “share” in the Garage at any time prior to Richard leaving in November 1991. It is the Mitchell’s case that if they did, at any time, speak words similar to the General Assurance to Richard, they would simply have been directed to conveying to him the very natural probability that upon the death of the last survivor of them the Garage business and premises would pass to Derek and Richard under the provisions of the Mitchell’s wills.

In the course of the recorded conversation between Richard and Mrs Mitchell on 21^st December 2002 the following exchanges appear on the transcript:-

“Richard – You told me to go. You came out and said to get out. I am not dreaming. I was dreaming was I when you said I had a share in the Garage?

Mrs Mitchell – No you would have done if you’d have stayed.

Later

Richard – I’m going to argue over it. I want to argue over it, I put fifteen years of my life into it and you promised me so many things, so many times.

Mrs Mitchell – You should have stayed shouldn’t you?

Later

Richard – When we started the business you said don’t worry it’s all yours at the end of the day.

Mrs Mitchell – It wouldn’t have been all yours, it would have been shared. Derek was involved.

Richard – Of course I’m not saying it would have been all mine, Derek was involved. I worked for a low wage and you said don’t worry.

Mrs Mitchell – We all worked for what we could afford to pay, even the other lads. You were not hard done by. You think you were.

Later

Richard – All I’m trying to get across to you is you led me to believe certain things and then you came to me and you said get out.

Mrs Mitchell – I am not arguing I am not carrying on this conversation any further. It’s not true.”

Apart from the transcript of the recorded conversation between Richard and Mrs Mitchell on 12^th December 2002 there is no written record of either the Primary or the General Assurances. The burden of proof of establishing that any such assurances were given rests on Richard. It follows that proof that the Primary Assurance was given depends on his description in his witness statement and oral evidence of the events surrounding its being given being accepted by the Court in preference to the denial of the Mitchells. As to the General Assurances, these will only be established if the Court accepts Richard’s description of how and when they were given and the terms of them, in the light of what Mrs Mitchell is recorded as saying on the transcript and of the partial admission in the evidence of Mr Mitchell. Richard must also persuade the Court that if general assurances were given in words similar to those pleaded, those assurances had the effect for which he contends, that is, that as a result of the work undertaken by him at the Garage he has earned an interest in the Garage business and premises which the Defendants cannot now deny him.

An early test of the veracity of the parties’ evidence is provided by the extraordinary conflict between the case as presented by Richard and that presented by the Defendants dealing with his leaving secondary school and starting work at K-1 Autos. It is hardly possible to be mistaken about whether your younger stepson unlawfully left school early when he was not yet fourteen and started work virtually full time in your garage business directly managed by you in which your elder stepson had been, at all material times, working as an apprentice. Equally it is hardly possible to be mistaken that, as Richard contends, he did leave school as he alleges and worked for the best part of three years, side by side with your elder brother in your stepfather’s garage business. As a preliminary to examining the rival contentions it is necessary to describe additional background facts relevant to this issue.

On 14^th June 2006, as part of their preparation for the forthcoming trial, Mr and Mrs Mitchell went to the Bromley Library to inspect the register of the School covering the period when Derek and Richard should have been at school, the records being in the Library following the School’s closure. They inspected the register in the presence of the archivist, Elizabeth Silverthorne. Following that inspection Mrs Silverthorne wrote a confirmatory note of what the register shows in relation to Richard’s time at the School. That note reads:-

“Richard Andrew Gordon is recorded in the Admission Register of Charterhouse Boy’s School as leaving the school in 1978 – last attendance 5^th January 1978, deleted from register 23^rd March 1978. This register is in my custody. ”

The note is signed by her and dated 14^th June 2006.

It was the practice of the Library to record every person who attended the Library with a view to having access to its documentary records. For no apparent reason that was not done in respect of the attendance by Mr and Mrs Mitchell but Mrs Silverthorne’s dated signature on the confirmatory note confirms that they did in fact attend the Library on 14^th June 2006.

It was Mrs Silverthorne’s evidence that on 17^th June Richard attended the Library. His attendance is confirmed by his signature in the Archives Searches Register which should also have recorded the attendance of Mr and Mrs Mitchell. He wrongly shows the date of his attendance as having been on 20^th June. It was Mrs Silverthorne’s evidence that the relevant register was produced to Richard who, having inspected it, told her that the information in it which related to him was incorrect. Mrs Silverthorne said that she could not amend or change the register even had she been convinced that the relevant entries were incorrect. She said, however, that she had no reason to doubt the accuracy of those records. She did not recall anything more about Richard’s visit nor whether the register was returned to the store.

On 27^th June 2006 Richard’s solicitors wrote to the Defendant’s solicitors. The final paragraph of their letter reads as follows: -

“Our client is bemused by the handwritten letter from the archivist dated 14^th June 2006. He instructs us that consequently he visited Bromley Borough Council and he can find nothing to back up the claims of the archivist that he last attended school on 5^th January 1978. Have you yourselves personally or have your clients personally seen anything which might remotely approach the status of “evidence” that our client last attended school on 5^th January 1978? Evidently Elizabeth Silverthorne has confirmed to our client that there are no daily attendance records available whatsoever. For our part we find a conflict in the assertion that our client’s last attendance was 5^th January 1978 when it is put to us in your letter dated 23^rd July 2003 that “the outcome of this was that your client left school in Easter 1978 rather than commuting from Paddock Wood to Orpington each day until July.” At the very least the Elizabeth Silverthorne letter suggests that our client attended for one or two days at the start of the Spring term of 1978 and then never went back compared to the assertion by your clients that our client certainly spent the whole Easter/Spring term 1978 at school. ”

On 21^st July 2006 Mr and Mrs Mitchell returned to the Bromley Library and asked to see the register again. They were informed by the archivist that she was unable to locate it despite a search of the premises. The Library’s records record the last person to have taken out the register in question as being Richard and there is no record of its being returned by him to go back into store as there should have been had that happened.

Richard’s account of his early school days is primarily supported by Mrs Janet Hyde, Mrs Mitchell’s sister, and the aunt of Richard. She is married but childless. When Richard’s parents were splitting up Richard and Derek went to stay with her and she saw a lot of them during their early youth. She says she became very close to them and interested in their welfare. She said that she was aware that Richard had left school before he was fourteen and that he was working with his stepfather at K1-Autos. She says that she regularly saw him there and she understood that working as a mechanic was Richard’s all-consuming interest. She said that she became concerned at the abandonment of his education and raised the matter with her sister to be told that he would learn more as a mechanic at the Garage than he would at school. She says she raised with Richard a concern that the Schools Inspector would find out that he had left school. Indeed Richard gave evidence that on one occasion the headmaster of the school saw him during school hours in the town and did not react in any way. Richard’s account was further supported by the evidence of Mr Keeves who was one of the mechanics at the Garage when Mr Mitchell took over but left within a few months. He worked with Richard during that period when it is common ground that Richard was an apprentice at the Garage. It was his evidence that Richard, who was then just sixteen, appeared to have skills as a mechanic far in advance of his age. Mr Keeves was not dismissed but it was Mr Mitchell’s evidence that he was not sorry to see him go.

It was the Mitchell’s evidence that Richard did not leave school early and that he started work at the Garage in May of 1978. According to them he was not, as he painted himself, a dedicated mechanic working all hours. It was their evidence and that of Derek that he used to leave work at about half past five when the other workmen left and go to the local club to play billiards. He did sometimes work late but this was usually on cars he was preparing to sell privately. The Mitchells were supported by the evidence of Derek who, it is accepted, was working in the garage business as a mechanic at all material times.

The Mitchell’s account of Richard’s joining the Garage is supported by Mr Keith. It was his evidence that in the discussions between him and Mr Mitchell on takeover of the Garage as to what the staffing would be after takeover, it was never mentioned that Richard would be employed. He recollected a discussion with Mr Mitchell before he was bought out in which Mr Mitchell suggested that he might take on Richard as an employee of the Garage. Mr Keith’s reaction was if there was the work to justify it well and good, if not then not. He does not recall seeing Richard at the Garage until after he had been bought out when on a visit he was introduced. He recalls that Derek was employed at the Garage from the takeover and he saw him at the Garage both before and after he was bought out. It was the evidence of Mrs Keith who worked in the office of the Garage from its purchase until her husband was bought out that she did not prepare any documentation with relation to the employment of Richard between November 1977 and April 1978.

The Mitchell’s case was also supported by Mrs Audrey White, the elder sister of Mrs Mitchell. By contrast with Mrs Hyde she was employed full-time throughout the relevant period 1976 to 1978. However, she had her car serviced at K1-Autos and sent it there for remedial works when it broke down. The car was serviced three or four times a year and there were about six visits for repairs. During the relevant period she could only recall Mr and Mrs Mitchell and, after he left school, Derek working at K1-Autos. She never saw Richard working at K1-Autos when he should have been at school. She was satisfied that Richard did not leave school early. She was a close friend of Mrs Mitchell and attended many of their family gatherings. She was confident that if Richard had left school early she would have been told about it. She was clear that Mrs Mitchell would not have allowed Richard to leave school early from her knowledge of Mr Mitchell’s attitude to education. She only provided a witness statement for the purposes of the litigation when told by Mrs Mitchell of the evidence of her sister Audrey. During conversations later in time with Richard she said that she gained the impression that he was dissatisfied with his job and looking for employment elsewhere.

The only written evidence of what Richard was doing at the material time is an entry in a “friends reunited” website created by him which under the heading “my places” records schools 1977 Charterhouse Road Secondary Modern”.

I have come to the clear conclusion that I accept the Defendants’ account of Richard’s early schooling. Their account and that of their supporting witnesses is confirmed by what I am satisfied from the evidence of Miss Silverthorn, whose evidence generally I accept, appeared in the School records. The history of the inspection of those records by the Mitchells and by Richard must leave one with the grave suspicion that the relevant record book was destroyed by Richard. In addition to its record of his attendance at school that record book would have recorded Derek’s attendance at the same school.

Furthermore I find it most unlikely that Richard’s absence from school for two and a half years would have passed unremarked by the school authorities and by the Schools Inspector, which would have given rise to proceedings against Richard and his parents to compel attendance. Richard, in cross-examination, gave a logical explanation for the absence of any records of his employment from the K1-Autos books, namely, that he was paid in cash by Mr Mitchell as a deduction from Mr Mitchell’s earnings. That explanation does not appear in his witness statement. He also had a logical explanation for why the Friends United website appears to show him as having been at the School in 1977. I was not convinced by it. I am puzzled by the evidence of Mrs Hyde but am driven to reject it. I accept the observation of the Defendants’ Counsel that she appeared nervous when giving evidence by stark contrast with Mrs White. I can see no real motive for why she should wish to mislead the Court on an issue such as this save out of a false loyalty to Richard of whom she may have been very fond. It appears she was not on good terms with her sister Mrs Mitchell at the material time.

It remains my conclusion, however, that on this issue Richard has deliberately misled the Court and that his evidence on other issues, where it conflicts with the evidence of the Defendants’ witnesses and is not confirmed by other factual evidence, is to be rejected.

This leads me to the question of whether the Primary Assurance was given by Mr Mitchell to Derek and Richard as pleaded in the Particulars of Claim. It was Richard’s evidence that he was part of the party which went down to see the Garage premises for the first time when the decision had been taken to purchase them. According to him the party consisted of Mr and Mrs Mitchell, Mr and Mrs Keith and himself and Derek and they travelled in two cars. It was during this visit that, according to Richard, the Primary Assurance was given by Mr Mitchell. That account is rejected by the Keiths, the Mitchells and Derek. They are clear that the visit was made in the Keith’s car by the Keiths and the Mitchells only. Derek said that the first time he visited the premises was when he moved down to it after the purchase while moving equipment and tools. As will be anticipated I unhesitatingly accept the Defendants’ account. It follows that I find that the Primary Assurance was never given. It is unnecessary to add, but I will add, that in the recorded statement of Richard in the course of his conversation with his mother on 12^th December 2002 where he says “When we started the business you said don’t worry it’s all yours at the end of the day.”, he was advancing a description of the assurance which he had received which was entirely inconsistent with the Primary Assurance.

I turn to consider the General Assurances which Richard has alleged were given to him in the circumstances and in the terms pleaded at paragraph 12 and 13 of the amended Points of Claim which I have set out at paragraph 8 above. In my judgment words such as “don’t forget it is all yours at the end of the day” do no more than indicate the natural probability that, with the passage of time, it was highly likely that the Garage business and premises would pass to Mr Mitchell’s stepsons under the provision of his will and that of his wife. It was Derek’s evidence that, at all material times, he was content with the wages that he was being paid and denies that any such discussion in which he was complaining at his wage level ever took place with his stepfather and mother. It is true that there is evidence from contemporary job pages in newspapers and trade journals produced in evidence that wages were being offered for skilled mechanics in the approximate area of the Garage at higher rates than those that Derek and Richard were receiving. There were, of course, other benefits to being employed in a family business. They both had the use of the garage facilities to work on their own cars for instance.

But even if there were occasions when these words were said to Richard by either or both of the Mitchells in the course of a complaint by him as to what he was being paid, I would not be prepared, without more, to hold that such words amounted to an assurance, binding on the speaker, that if Richard stayed the course working as a mechanic at the Garage on wages lower than he could receive elsewhere he would be given an interest in the Garage premises, either during the lives of the Mitchells or on the death of the last survivor of them in that survivor’s will.

It follows that in my judgment Richard has failed to establish that he received either the Primary Assurance or the General Assurances pleaded in the amended Particulars of Claim.

In any event it seems to me that a series of events which Richard accepts took place are inconsistent with his case. These are:

That is sufficient to dispose of this case. If, however, contrary to my above conclusion, I had accepted Richard’s case that he had been given the assurances which he alleges, I would not have been prepared to find that Richard worked at the Garage for wages and in conditions which constituted “detriment” to him. The burden rested on Richard to establish this and he failed to discharge it.

Further, on the basis that Richard had succeeded thus far, I would not have been prepared to grant Richard any relief because of his delay in putting forward his claim during which the Defendants had altered their position by reorganising the business and important records, in particular wages records, which might have had a considerable bearing on the ability of the Defendants to meet Richard’s claim, were lost or destroyed.

For these reasons, in my judgment, this action fails.