Thorner v Curtis & Ors

The Thorners are a farming family in Somerset. For convenience, and with no disrespect whatever, I shall refer to all members of this family by their first names. Jimmy and Peter were cousins, their fathers being brothers. Jimmy had 4 children (all sons), of whom the claimant, David, is one. Peter, who had 6 siblings (3 brothers and 3 sisters), had no children. In 1997 Peter made a will by which, after a number of pecuniary legacies, he left the residue of his estate, including in particular his farm (Steart Farm, Cheddar) to David. However he subsequently decided to destroy that will, which was returned to him for that purpose by the solicitors who had been holding it. After Peter’s death in November 2005 neither it nor any other will was found. Thus by law Peter’s estate devolves to his blood relatives in accordance with the Intestacy Rules, subject only to David’s claim in these proceedings. The defendants are the three administratrices of Peter’s estate, namely his sisters Winifred and Ena, and his niece Lesley.

David claims to have the benefit of a proprietary estoppel against Peter and his estate, in essence on the basis that over 15 years or more he acted to his considerable detriment in reliance on an expectation repeatedly encouraged by Peter that he (David) would inherit Peter’s estate, or at least Steart Farm, such that it has become unconscionable for the same to be disposed of elsewhere.

All the elements of such a proprietary estoppel are disputed by the defendants. The defendants further contend that even if the claimant establishes such an ‘equity’, it would be disproportionate for it to be satisfied by the fulfilment of his expectation, and that he should be awarded a much lesser sum by way of satisfaction.

As to the legal principles applicable to such proprietary estoppel claims, there is a large measure of agreement between the parties. They have cited to me an extract from Snell’s Equity (31^st ed.), and a number of cases, including in particular three relatively recent decisions of the Court of Appeal, Gillett v Holt [2001] Ch 210, Jennings v Rice [2003] 1 P&CR 8, and Uglow v Uglow [2004] WTLR 1183. There is however one particular legal point in dispute, namely whether, at least in a case where an estoppel is raised so as to restrict testamentary freedom of action, it is necessary for the claimant to establish an express promise made in terms as such.

Snell op cit summarises the current rule thus, at para. 10-16:

“In Taylor Fashions Ltd v Liverpool Victoria Trustee Co Ltd Oliver J provided the following statement of the elements of the doctrine: ‘If A, under an expectation created or encouraged by B that A shall have a certain interest in land thereafter, on the faith of such expectation and with the knowledge of B and without objection from him, acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation.’ This remains the most important and authoritative modern statement of the doctrine although it must now be qualified by the proposition that the relief granted by the court must be proportionate to the detriment suffered and that the court is not always required to satisfy his or her expectation by awarding the promised or expected interest in land.”

In Uglow, Mummery LJ identified at para. [9] of his judgment the following 6 general principles as having been expounded in the 2 earlier cases I have mentioned, and as relevant to the Uglow case; they are relevant here too:

“(1)

The overriding concern of equity to prevent unconscionable conduct permeates all the different elements of the doctrine of proprietary estoppel: assurance, reliance, detriment and satisfaction are all intertwined.

(2)

The broad inquiry in a case such as this is whether, in all the circumstances, it is unconscionable for a testator to make a will giving specific property to one person, if by his conduct he has previously created the expectation in a different person that he will inherit it.

(3)

The expectation may be created by (a) an assurance to the other person by the testator and intended by him to be relied upon that he will leave specific property to him; (b) consequent reliance on the assurance; and (c) real detriment (not necessarily financial) consequent on the reliance.

(4)

The nature and quality of the assurance must be established in order to see what expectation it creates and whether it is unconscionable for the testator to repudiate his assurance by leaving the property to someone else.

(5)

It is necessary to stand back and look at the claim in the round in order to decide whether the conduct of the testator had given rise to an estoppel and, if so, what is the minimum equity necessary to do justice to the claimant and to avoid an unconscionable or disproportionate result.

(6)

The testator's assurance that he will leave specific property to a person by will may thus become irrevocable as a result of the other's detrimental reliance on the assurance, even though the testator's power of testamentary disposition to which the assurance is linked is inherently revocable.”

In Gillett Robert Walker LJ observed (at 225C-E) that although his judgment was:

“for convenience, divided into several sections with headings which give a rough indication of the subject matter, it is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a ‘mutual understanding’ may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.”

Later, when dealing with the extent of the relief in the event that the claimant established an equity, Robert Walker LJ observed (at 237A-B) that:

“The court’s aim is, having identified the maximum [extent of the equity], to form a view as to what is the minimum required to satisfy it and do justice between the parties.”

In the later case of Jennings, he explained (at para 48) that :

“… reference to the minimum [in such a context] does not require the court to be constitutionally parsimonious, but it does implicitly recognise that the court must also do justice to the defendant.”

Later in his judgment in Jennings, he went on helpfully to recapitulate what he held the law’s approach to be to the question of how such an equity ought to be satisfied:

“50 …. there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract. I have already referred to the typical case of a carer who has the expectation of coming into the benefactor's house, either outright or for life. In such a case the court's natural response is to fulfil the claimant's expectations. But if the claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way.

51 But that does not mean that the court should in such a case abandon expectations completely, and look to the detriment suffered by the claimant as defining the appropriate measure of relief. Indeed in many cases the detriment may be even more difficult to quantify, in financial terms, than the claimant's expectations. Detriment can be quantified with reasonable precision if it consists solely of expenditure on improvements to another person's house, and in some cases of that sort an equitable charge for the expenditure may be sufficient to satisfy the equity (see Snell's Equity, 30th ed., para.39–21 and the authorities mentioned in that paragraph). But the detriment of an ever-increasing burden of care for an elderly person, and of having to be subservient to his or her moods and wishes, is very difficult to quantify in money terms. Moreover the claimant may not be motivated solely by reliance on the benefactor's assurances, and may receive some countervailing benefits (such as free bed and board). In such circumstances the court has to exercise a wide judgmental discretion.”

In the same case Aldous LJ, giving the leading judgment, had importantly observed (at para 36) that:

“The value of [such an] equity will depend upon all the circumstances including the expectation and the detriment. The task of the court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.”

(ii)

Must there be an express promise made in terms as such?

This was the submission of Miss Penelope Reed, who appeared for the defendants, at least in respect of cases (such as this) where an estoppel is raised so as to restrict testamentary freedom of action. It is certainly the case that there are numbers of judicial dicta in which the word “promise” is used in such a way as might suggest to the casual reader that a promise was an essential element of a successful claim to the benefit of a proprietary estoppel. However they often appear in the context of facts where one or more promises did feature in any event.

However Mr Michael Jefferis, who appeared for the claimant, was able on his review of the authorities to identify a number of passages which tend to indicate that something short of an express promise can, depending on all the other relevant circumstances suffice.

In Ramsden v Dyson (1866) LR 1 HL 129 (in a passage from his dissenting speech which has subsequently been cited as correctly representing the law in numbers of cases including Inwards v Baker [1965] 2 QB 29, Crabb v Arun DC [1976] 1 Ch 179, 188D, and JT Development v Quinn [1991] 2 EGLR 257 at 261) Lord Kingsdown (at p142) spoke of a verbal agreement “or what amounts to the same thing, an expectation, created or encouraged”.

In Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd (Note) (1979) [1982] QB 133at 151-2, Oliver J stated that in the light of the more recent cases the principle of proprietary estoppel

In Gillett (at 228A) Robert Walker LJ spoke of cases in which:

“… the circumstances may make clear that the assurance is more than a mere statement of present (revocable) [testamentary] intention, and is tantamount to a promise”. (emphasis added)

The above passages indicate to me that there is no such absolute requirement as Miss Reed’s submission suggests. I note that the editors of Snell op cit take the same view (at para 10-17):

“A must establish that O … has represented that he or she will obtain an interest in property either by making an express promise … or by encouraging A to believe that he or she will obtain such an interest by words or conduct … or by encouraging A’s belief passively and by remaining silent …’The circumstance of looking on is in many cases as strong as using terms of encouragement’ … but it is necessary to show that O intended it to be relied upon or that it was reasonable in the circumstances for A to assume that it was intended to be relied on …”

Moreover, a further important passage from Robert Walker LJ’s judgment in Jennings (at para 44) illuminates the position further:

“proprietary estoppel can apply in a wide variety of factual situations, and any summary formula is likely to prove to be an over-simplification. The cases show a wide range of variation in both of the main elements, that is the quality of the assurances which give rise to the claimant's expectations and the extent of the claimant's detrimental reliance on the assurances. The doctrine applies only if these elements, in combination, make it unconscionable for the person giving the assurances (whom I will call the benefactor, although that may not always be an appropriate label) to go back on them.” (emphasis added)

So although there is no such absolute requirement as Miss Reed submits, it is the case that where the assurances relied on fall significantly short of express promises made in terms as such, it will be all the more important for the claimant to be able to support his case with clear and substantial detrimental reliance, and perhaps with evidence from others corroborating the meaning and intention which he (the claimant) imputes to the deceased’s words or actions.

The Court must not allow itself to be tied down with semantics – an assurance is an assurance whether made expressly by words spoken or written, or made by implication from words spoken or written or from conduct. The ‘broad inquiry’ (as to the ultimate question of unconscionability) which the court must make in any such case will include consideration of whether assurances given (or expectations encouraged) by whatever means were indeed ‘tantamount to’ promises.

The claimant impressed me very favourably as a witness, and I fully accept his evidence. Mr Jefferis put the position well when in his closing submissions he described David as a “painfully honest” witness. Many in his position would have found it tempting to embellish his case, something to which the court always has to be alert when evidence is given about the words and conduct of someone deceased, against the latter’s interest. However I am quite satisfied that David did not do so. He acknowledged that his thoughts of possibly inheriting Steart Farm were in the nature of hopes rather than expectations prior to 1990. He did not suggest that Peter had ever made an express promise to him undertaking in terms to leave him his estate or farm upon his death, easy as it would have been to do so.

There was one respect in which at first blush it might be thought that David had exaggerated his role. In paragraph 12 of his Particulars of Claim, verified by a Statement of Truth signed by his solicitor (in June 2007, so far as concerned the amended version), it was alleged that “in 1982, he [David] negotiated with Bristol Waterworks on Peter’s behalf. Peter had been advised to accept £7,000 on a sale, and the Claimant negotiated a sale price of £32,000”. In fact, David made no such claim in his evidence (written or oral), and indeed evidence was filed and led on his behalf from a Mr Andrew Hares (whose witness statement was signed on 15 March 2007) who did conduct those negotiations. Both David and Mr Hares gave evidence that when Mr Hares reported to and discussed his negotiations with Peter, Jimmy and David were both there and part of the conversation. I accept that evidence. When cross-examined about the inconsistency David did not seek to blame his solicitor, and the only explanation he could offer was that there must have been some misunderstanding as to what he told him. I am satisfied that such a misunderstanding must have occurred, quite possibly accompanied by an element of oversight with regard to this particular detail (given that the claimant’s solicitor signed the declaration of truth on the amended particulars of claim at least 3 months after obtaining Mr Hares’ witness statement on his behalf).

With one exception, I am satisfied that all the numerous other witnesses who gave evidence for one side or other gave their evidence conscientiously, from the best of their recollection. However I should at this stage say a word more about three of the witnesses.

Mr Richard Adams was a brusque, direct and at times during cross-examination somewhat combative witness, and I think it fair to say that there was little doubt that his loyalties lay with the claimant, on whose behalf he was called. Having considered those features of his oral evidence carefully, I am nevertheless satisfied that I can safely rely on the evidence of fact which he gave. He clearly had the view that David’s claim was a just one, and made no attempt to hide that. However I was left with no concerns about the reliability of the evidence of fact which he gave.

Regrettably, I cannot say the same about the (shorter) evidence of Mr Martin Taylor. He gave his evidence ‘with attitude’, to put it in contemporary language, and I was struck (unfavourably) by his apparent lack of concern when it was made clear to him in cross-examination that his evidence must in certain respects be inaccurate (in particular his claim to have regularly milked at Steart Farm until the early 1990s, and for a couple of years after buying his own lorry and starting a haulage business in 1988/89, when in fact Peter’s entire dairy herd was sold in 1988). In the event he was not a major witness in the case, but I am unable to place reliance on evidence he gave which has not been specifically corroborated by other witnesses.

The witness statement of Colin Wall, who was employed by Peter between 1974 and 1998, was admitted as hearsay evidence under the Civil Evidence Act 1995, as he was not tendered for cross-examination. I was told that he is elderly and frail. Whilst I see no reason whatever to infer any improper motive in the defendants not bringing him to court, and Mr Jefferis did not suggest that I should, the fact that Mr Wall was not available for cross-examination inevitably limits the weight I can attribute to what he says, and in particular any significance which might otherwise be attached to what he does not say or cover in his statement.

I received in writing the expert evidence of Mr Allen (instructed for the defendants) and Mr Greetham (instructed for the claimant) concerning Steart Farm and its total work requirement. Of primary importance is their joint statement signed on 13 June 2007, although I have also read their original reports respectively dated 11 April 2007 and 4 May 2007. By agreement between the parties, neither was called to give oral evidence.

Before turning to a chronological review of many of the relevant facts, I think it more helpful in this case first to set the scene by making a number of findings about the 2 key figures in this case, Peter and David, Steart Farm on which the case centres, and the other people who worked there.

Peter was born in 1927. In due course he married Sarah Evans, herself from another Somerset farming family, and in due course she inherited Steart Farm from her parents, and he inherited it from Sarah. Serious illness touched both their lives. Peter caught mumps while in his teens, and this rendered him infertile. His beloved wife Sarah suffered from Crohn’s disease, and in 1976 died tragically young. He was devastated by the loss.

After her death Peter retained a housekeeper, Veronica, whom within quite a short time he married, in 1978. However Peter’s second marriage was not happy for long, as a statement made by Veronica in June 1979 amply confirms. They separated within about 18 months of marriage, and were ultimately divorced in 1986. Peter did not marry again.

Peter cared greatly for the welfare of his cattle who, as his agent Mr Hares observed, “came first”. Mr Hares could not recall Peter having had a holiday in the last 30 years of his life (the time he had known him); indeed, he and Veronica did not even go away on honeymoon.

Peter was described in evidence as “a man of few words”. There are perhaps two relevant aspects to that. First, Peter was a relatively private man who generally kept his thoughts about his business and financial affairs to himself. Second, he had literacy problems, not finding reading easy, and finding writing particularly difficult. He never took to paperwork, and regarded the increasing amount required as an unwelcome imposition, although that may well have been as much a generational matter as a reflection of his literacy problems. There is however also some evidence that once ‘cattle passports’, movement records and the like became mandatory, he was concerned that the paperwork from his farm should be right. I detect no necessary inconsistency between these various features of the evidence.

There is evidence from a number of witnesses (including David, Richard Adams and Graham Livings), which I accept, that Peter was not given to direct talking. The simplest example (though it went a good deal further than this) is that when Peter said “What are you doing tomorrow?” he generally meant “Would you come and help me tomorrow?” Indeed Mr Selby, a long serving police officer in the Avon & Somerset Constabulary, observed that lack of directness in conversation is a common feature he has encountered more generally when speaking to farmers in the area. I will not speculate as to whether it is confined to farmers in this area of Somerset. In assessing whether there is any significance to be attached to the somewhat indirect manner in which a number of Peter’s statements now relied by David on were expressed or communicated, this is a factor to borne in mind.

One topic which was touched on a number of times during the trial was Peter’s apparent ability to secure unpaid help on Steart Farm from quite a number of people. Whilst there is some truth in that, it is important that I record that I do not believe that he did so cynically. A number of subtler factors explain it.

First, although he seems not to have been particularly close to his siblings, family loyalties were clearly manifested by his cousin Jimmy’s actions in stepping in (with his son, David) to help Peter on Steart Farm when Sarah died.

Second, the farming community in Somerset (as no doubt in many other regions too) is a close-knit one, and if it became known that someone in that community needed help, others would rally round almost as a matter of course. For example, and whether or not it be a sign of the pressures suffered by our rural communities in the past 30 years, the evidence before me disclosed a number of examples of farmers in this area who had on occasion to be assisted in coping with clinical depression or other mental illness. Peter himself was one such, though it would be right to note that his difficulties in 1984/5 coincided with the period when his divorce from Veronica was going through.

Third, Peter’s skills as ‘a livestock man’ were highly regarded in the local farming community. Some might have labelled some of his methods ‘old-fashioned’, and there is evidence that they were relatively labour intensive, but their efficacy and value was proved over many years, and numbers of people in that community, including but not limited to young men hoping or preparing to start out in farming themselves, were all too happy to help out on Peter’s farm in return from gaining invaluable knowledge and experience in the rearing of, and caring for, livestock.

Fourth, the preponderance of the evidence suggests that Peter, whilst not always the easiest person to get on with, was nevertheless a popular member of the community. Though he spent much of his time on Steart Farm, he did go out on occasions, for example to attend market weekly (or, in his last years, on those weeks when he had an animal to sell), as well as more occasional trips including annual ones to see his accountant and to attend the historic Priddy Sheep Fair held locally (a photograph of him there in 1999, which had appeared in the local newspaper, was placed in evidence). David at least sometimes drove him. He received many callers, and his kitchen seems to have been something of a social focus for at least some members of the local farming community on Saturday mornings. The suggestion that he had become a recluse was misplaced. In one of the lighter moments of the trial it transpired that in his later years he would typically be taken a cooked dinner on Christmas Day by half a dozen different people, such that he then had a ready prepared dinner for every day until New Year!

I should also note that one consequence of the availability of a significant amount of free or cheap labour was that there was less pressure on Peter to adopt labour-efficient methods on Steart Farm.

His own capacity to carry out heavy physical work on the farm (especially lifting, hay baling and making silage) was curtailed by suffering a ruptured hernia on two occasions, first in the early 1980s and than again in the early 1990s. He also developed breathing difficulties. He could and did still go out in a tractor but, particularly after his second rupture, needed someone else to hitch any trailer or other machinery onto it.

Nevertheless, although he was undoubtedly weak and dependent on the help of others, principally David, during his later years, he remained a strong and proud personality. As the witness Andrew Barratt put it, as long as Peter was breathing he would always be in charge.

Some evidence was called by the defendants to suggest (I summarise) that Peter had a tendency to hold out the possibility of testamentary generosity to numbers of people. As Mr Jefferis pointed out in his opening, this was in forensic terms a somewhat double-edged sword for the defendants to deploy. However in fact, the relevant passages in the witness statements of his sisters Winifred and Ena lack any significant particularity about this allegation, nor was much added in cross-examination (Winifred identified boys known as the Lane brothers who had worked at Steart Farm, but all she could state was that one of them had told her that ‘Peter will see me alright’ and so when he left school he would work there; Ena could add nothing at all to her witness statement). Unsatisfactorily, the wording of the equivalent paragraphs in their witness statements is identical, so it is hard to believe that both are really the witnesses’ own words (a point emphasised by the differing responses when cross-examined). As indicated above, I am unable to rely on the uncorroborated evidence of Martin Taylor. That leaves the evidence of Mr Durston in this regard. Mr Durston was primarily present at Steart Farm between 1973 and 1975, prior to Sarah’s death. Although I do not doubt the honesty of Mr Durston’s recollection, it appears to me particularly unlikely that Peter would have made casual offers of bequests etc during his first wife’s life-time. Martin Taylor first came to help at Steart Farm significantly later, in about 1980, when he was 14. When cross-examined about this part of his evidence Mr Durston crucially modified the words which had been included in his witness statement, and the words he attributed to Peter in his oral evidence “I’ll see you alright one day” are not the same thing as “It will be all yours one day”. I accept that words to the former effect may have been said, and prefer Mr Durston’s oral evidence to his written evidence on this issue.

That being so, I will in this context repeat my finding that I am not satisfied that Peter dealt cynically with others who were involved in helping him at Steart Farm. Nor was Peter, even in his later years, one of those “elderly people of means [who it is notorious] derive enjoyment from the possession of testamentary power, and from dropping hints as to their intentions” spoken of by Robert Walker LJ in Gillett (at 228C-D).

Steart Farm is on the edge of the village of Cheddar. The farm buildings are about half a mile away from the traditional village centre, the medieval market cross. There are shops and houses along the road for the whole of that half mile.

When Peter inherited Steart Farm from Sarah in 1976, it comprised about 350 acres, predominantly low-lying pasture adjacent to the farm buildings, but also including a significant acreage of rough grazing some 4 miles away near the top of the Mendip Hills. The grazing there had the advantage of being in a wooded hollow, such that it was sufficiently sheltered from cold winds and the ‘wind chill’ factor to make it unnecessary to bring the cattle in to barns in the winter. Additional land was acquired between 1987 and 1991/2, apparently including further land on the Mendips.

Peter had a dairy herd, beef cattle and sheep. Male calves produced by the dairy herd were kept for beef. He would breed both calves and sheep through most of the year, rather than only in one season. Hence the need for skilled help with calving to be on hand at any hour of the day or night extended for most of the year.

At the time of the 1987 cattle census there were 187 cattle and 45 sheep at Steart Farm. About half his total acreage was used for grazing, and half to grow grass for hay or silage.

In 1988 Peter sold his dairy herd, leased out his milk quota, and ceased dairying. His milking facilities were ‘mothballed’, and much of the equipment is still present. He concentrated on beef and sheep instead.

In 1990 Peter sold one of his fields for development, in due course using part of the proceeds to purchase other land. By June 1992 his total acreage, including some rented land, was 583 acres (236 ha.), a substantial farm by most standards. At that time he is recorded as having had 285 cattle and 164 sheep.

In or about 1998 he lost the use of one of his areas of the rough grazing on the Mendips, Rough Hill, as the Mendip Hills Partnership (comprising local authorities and the Countryside Commission) wished it to be taken out of agricultural use; it is apparently now under the control of a local quarry.

Peter sold his 500 sheep by the end of 1998, and thenceforth farmed only about 160 acres (65 ha.) himself, at least primarily for beef and grass, which he was able to do with the work David contributed, and occasional help from Ashley Bell and sometimes others too.

In or about early 1999 Peter granted certain 3 year farm business tenancies over land comprised in Steart Farm. Richard Adams rented about 160 acres for his sheep, and other tenancies were granted at about the same time.

In 2004 Peter further reduced his stock, reducing the total (cows, 1-2 year old cattle, and calves) from almost 250 head to just under 100. Peter himself was by now in his late seventies, suffered a number of health problems, and had very limited capacity for physical work on Steart Farm himself.

Peter’s accounts from 2001 – 2005 show a relatively modest annual turnover rising from c.£25,000 to c. £110,000

Peter moved from the traditional farmhouse to a newly converted adjacent barn early in 2005, and lived there until his death in November of that year.

In summary, at the time of his death Steart Farm comprised 400 odd acres let out, and something between 60 and 160 odd acres in occupation, in addition to farmhouse, buildings etc.

Of the total acreage of 560-580 odd, 120 acres or so were apparently rented by Peter rather than owned freehold. It seems that at some stage those leases may have terminated, leaving 440-460 acres odd of freehold farmland together with farmhouse, buildings etc. The experts, relying on what they have been told, have worked on rather different figures for the land which was “in hand” and that which was let out, over the years. It is the land “in hand” which is the most material for the purposes considering the manpower needed. The following has been agreed by Counsel as being a fair statement of the position. If one starts with years 1990 to 1991, Mr Greetham (the Claimant’s expert) gave the figure for the land in hand as 178 ha (440 acres) [bundle p. 157], whereas, Mr Allen for the Defendants gave the slightly higher figure of 455 acres for the whole period “prior to April 1997” [bundle p. 172]. Thus, at the start, they were working on figures that were only 5 acres apart. Mr Greetham, however, has a larger figure for the land “in hand” of 238 ha (583 acres) for the years 1992 and 1998, [bundle p. 157]. For the years 1999 and 2000 the experts were not far apart again. Mr Greetham worked on 65 ha (160) acres being in hand [bundle p. 157] and Mr Allen worked on 183 acres in hand [bundle p.172]. Mr Allen initially had a lower figure of 110 acres in hand for the years 2004 and 2005 [bundle p. 172] but after the experts met, their joint statement worked on a figure of 65ha (160 acres) for the whole period between 1999 and 2005, [bundle p 175 B &C]. By the date of the HMRC Inheritance Tax account there was some 60 acres in hand [bundle p. 223] and 190 acres subject to short term occupancies, which could be terminated on year’s notice [bundle p.224].

A valuation by a Mr Robert Venner of Messrs Greenslade Taylor Hunt of Taunton in January 2006 records that there were then 3 bulls, 35 suckler cows, 38 calves and 17 store cattle on the farm. The farm vehicles and equipment are also listed.

David was born in 1949, the second born of four brothers, and grew up on his parents’ farm at Coxley, between Wells and Glastonbury. He left school when 15, and joined his father in farming. He knew of his father’s cousin Peter when he was still young, but is uncertain whether he met him at that stage. Jimmy was about 10 years older than Peter, whereas David was some 22 years younger than Peter.

As a young man he was interested in horses. His father was active in the local hunt, would buy and sell a horse from time to time, and they then started to race some.

In 1976, when Peter’s first wife Sarah died, Jimmy went over to Steart Farm to help Peter, taking the claimant with him. David, who by then was aged 26 with 11 years’ practical experience in farming, started helping out there, and by the late 1970s, when Peter’s second marriage was failing, David had started going to Steart Farm to do so on his own, although sometimes his father Jimmy still went too.

When David first started helping Peter he found Peter’s paperwork in a real mess. There were cheques received which had not been paid in, and letters indicating the availability of grants which had not been pursued.

David undertook a wide range of work for Peter on Steart Farm, including helping with the animals, mending fences and gates, taking cattle to and from market (preparation for the former, including the paperwork, would take up much of the previous day – Sunday before Monday market), working on the farm buildings, vehicles and equipment, bringing in the hay. He also undertook a great deal of Steart Farm’s paperwork and administration. This included writing out cheques for signature and dealing with the completion of grant applications, the special payment scheme, the Rural Payments Agency, rights of way issues, cattle identification reports, cattle movement books, and cattle passports. It may well be that a Mr Richard Binning (as to whose qualities witnesses’ views varied widely) also gave Peter some assistance with regard to some aspects of paperwork and administration, but I am quite satisfied that David made the principal contribution. Peter and David together made plans for both BSE (in the early 1990s) and then later Foot & Mouth Disease, although in the event Steart Farm was spared both. Calving took place over most of the year, due to Peter’s particular methods. When David was helping with calving, sleep could easily be no more than an hour’s dozing at a time in the seat of a Land Rover.

In about 1980 David first met the witness Fred Cremin, a trained cabinet-maker turned builder/property developer and furniture manufacturer, who has been very successful in business. They met through David’s cousin Graham, a well-known retired jockey who ran stables at Wantage. He became most impressed with David, stating that he had never met a more trustworthy man or a harder worker. They stayed in touch.

By 1985, shortly before his parents moved, David was working 18 hours a day, 7 days per week, split between his father’s farm and Peter’s farm, the latter taking up more than half of his total time. He had very little by way of any social life, but was a remarkably hard worker, as several witnesses observed. This continued to be the pattern after David had moved to Barton House with his parents. There is clear evidence, supporting David’s own, that he continued to work very long hours after the move, splitting his time between the ‘homestead’ at Barton House and Steart Farm, from Fred Cremin and Simon Selby. Both were genuinely concerned for David’s own health. If the former rang him, he was hardly ever at home, and would often ring back at midnight, saying that he had just got in. There were very few days when David did not go to Steart Farm at least once.

There was no regular pattern to David’s work at Steart Farm, and he certainly did not work set hours. As he explained in his witness statement: “Barton House is only 10 minutes drive from Steart Farm. I could go back and forth easily, and did. Peter and I would discuss what needed to be done, and I would go over and do it. Or there would be days that we agreed that I would spend at Steart Farm, but I would go back to Barton House for an hour or so to attend to something. On other occasions Peter would call and ask me to come over when I had not expected to.”

Andrew Hares, who acted as a surveyor, valuer and land agent first for Jimmy and then, through his introduction, for Peter, confirmed that in respect of each of the transactions in which he acted for Peter, Peter always wanted to discuss them with David and Jimmy before proceeding. He confirmed from his own personal knowledge that David “gave Peter a huge amount of help … over the period of some 30 years, the period I knew them. I would go so far as to say that [David] was essential to the running of [Steart Farm] and I sense that had he not done what he did, the farm would have ceased to trade profitably… [Peter] always turned to David to carry out his administration…. David dealt with all the administration on the farm as well as doing much of the physical work.” In oral evidence he observed that every business needs good management and good administration, and that David was very much part of that team along with Peter’s professional advisers, such as his accountant, solicitor, and Mr Hares himself.

In addition to the work on Steart Farm, 2 or 3 times in the week, and every Sunday, David took an evening meal cooked by his mother Dorothy (or latterly his father Jimmy) to Peter. He would spend the evening with Peter, talking through what needed doing on Steart Farm, getting to grips with the administration, and drafting farm-related letters for Peter (manuscript examples of which, in David’s own hand, are exhibited). Once David’s hand-written draft was approved by Peter, David would re-write a fair copy to be sent out, again in manuscript. On other occasions they would just sit and talk, as Peter needed the companionship.

Despite working such punishing hours, David lived off what he was not embarrassed to call ‘pocket money’ given to him by his parents. A notable feature of this case is that David received no payment whatever from Peter for the considerable amount of work he did for him and Steart Farm over almost 30 years. He is someone who throughout his adult life lived with his parents until they died, had a very modest amount of money available to him, and little by way of a social life.

I should just state that insofar as the defendants called evidence to which I will otherwise make little or no reference, apparently for the purpose of casting doubt on whether David really did over the years do as much work for Peter as he claimed, such as that of Mr Ballon-Whitfield (see para 110 of my judgment), Mr and Mrs Milton (who seldom saw anyone when they picked up carcasses from the yard at Steart Farm), Mr Williams and Mr Poulsford (whose visits were usually carried out early in the morning), Mr Young (whose own mechanical work was mainly done in the yard, so did not find it surprising that he did not bump into David, who could have been out in the fields), Mr Durston (whose main period of employment at Steart Farm had finished before David was first taken to Steart Farm by Jimmy), Mr Symonds and Mr Carnell, whilst I can generally accept the bare facts as stated by those witnesses, their evidence does not give rise to any substantial grounds for so doubting.

Before moving to Barton House, David had become interested in developing a means of treating horses for soft tissue injuries in their legs, which in essence involved a means of providing localised cooling to an optimum temperature. This project had stalled somewhat, but after the move to Barton House he met an electrician, Steven Titball, and a vet, Colin Duncan, who both became keen on the idea, and the project regained some momentum. In or about 1987-88 they applied for, and apparently in due course obtained, a patent. A prototype was made, and the name “Limcool” adopted. However they were conscious of the difficulties of launching such a product, particularly in Somerset which is not a principal area for either hunting or National Hunt racing. He could see that a possible move to his cousin Graham’s stables in Wantage (which possibility I shall return to below) might well have a second advantage of enabling him to progress the “Limcool” project further.

In 1992 David’s mother Dorothy died. He continued to live with his father at Barton House. Although his father was not always the easiest man to live with and look after, and David did receive a full-time carer’s allowance in respect of his father for the last 3 or 4 years of Jimmy’s life, the extent of David’s contribution to the running of Steart Farm did not diminish. For example, once Andrew Barratt started helping there (i.e. from 1998), mainly at weekends but also from time to time in the evenings, and at haymaking time, he noticed that David was nearly always there, either in sight or elsewhere on the farm but evidenced by his vehicle being parked there.

David’s father Jimmy died in early November 2005.

Colin Wall (whose short witness statement was adduced by the defendants as hearsay evidence) was Peter’s one full-time employee over the period with which I am primarily concerned. He worked from 8.30am to 5.00pm on weekdays. Although he worked there for many years, from 1974 to 1998, he did not mix much with Peter or the others who helped at Steart Farm, and apparently didn’t even have a cup of tea inside the house. As Mr Wall was nearing retirement he had to take quite a lot of sick leave, to the extent that it came to annoy Peter.

Roger Durston, a witness called by the defendants, worked at Steart Farm for about 2 weeks per month between 1973 and 1975 (i.e. before Sarah’s death in 1976), and was properly paid for the work he did. Thereafter and until about 1996 he helped out at cattle testing times, helping to move cattle, and simply viewed it as “helping a mate out”. However he was repaid on occasion by the loan of farm equipment or even a bull.

Richard Adams, a witness called by the claimant, had been going to Steart Farm since he was a boy, and spent quite a lot of time there, helping Peter. He recalled that, when a boy, numbers of his contemporaries helped with the haymaking, because they enjoyed the life and were learning about farming from Peter, who was a good teacher. Though they were not paid regularly, they were given something from time to time. As an adult he helped Peter out with milking, until the mid 1980s. As he put it in his witness statement, Peter “knew that I expected to be paid for what I did, and would have thought less of me had I not”. Richard Adams’ first wife died at just 33, and Peter was the person he talked to most about it, because of course Peter himself had lost his wife very young. He resumed helping at Steart Farm with any regularity in about 1990, when he started farming on his own behalf.

James Salway, seemingly known to all as “Sam” (which nomenclature I shall therefore adopt), had also been going to Steart Farm since he was a boy. He was about 15 years younger than David. Initially he worked at Steart Farm for 6 months as a full-time employee under a Youth Opportunities Scheme in the mid-1980s, living there in a caravan of Peter’s. Later he took full time employment at a local yoghurt factory, but worked at Steart Farm on weekends, and as holiday cover for Colin Wall, until 1998. It is not clear to what extent he received cash or other payment for doing so, once his time under the YOS scheme had finished.

Martin Taylor, a witness called by the defendants of whom I have already spoken, was an approximate contemporary of Sam Salway’s, and started to help out in about 1980, when he would have been 14. He mainly helped as a relief milker, meaning that Peter did not have to do the milking himself. He was at least supposed to be paid at a set rate per session, though according to him payment was in fact rarely made. Notwithstanding his own evidence, and accepting David’s instead, Mr Taylor stopped doing so in 1988, when the dairy herd was sold.

Brian Young, a witness called by the defendants, helped with haymaking at Steart Farm from the late 1970s, but did quite a lot of work there for 6 months over one summer in 1982 or 1983, between losing one job and gaining another. Thereafter he helped Peter out from time to time at evenings or weekends, and as a mechanic when called on. He was never properly paid by Peter, but was lent a tractor, a Land Rover, or anything else he needed in return.

Ashley Bell, born in 1980, started going to Steart Farm in his teens (he was Richard Adams’ step-son). He was keen to learn about farming, and willing to undertake any jobs around the farm Peter could find for him.

Andrew Barratt helped on Steart Farm from 1998. He did so to learn about farming, and was given free use of equipment and some cattle in return.

Within a short time of David starting to help Peter at Steart Farm, he first met his approximate contemporary, Richard Adams.

Richard Adams observed that whilst both of them, and others too, helped Peter at this difficult time, Peter’s attitude to David was somewhat different to his attitude to all the others – David “was family”. David was the only one to whom Peter turned for help with the paperwork, and David was the only one who knew how Steart Farm was doing financially. Richard Adams observed that (in contrast to the others, like himself, who worked there) Peter considered himself entitled to David’s help, and expected David to do whatever he asked. Peter was more demanding of David than of anyone else. The witness Graham Livings made a similar point another way, when he observed that David, whom he described as an extraordinary, indefatigable personality of the utmost integrity, was “at Peter’s beck and call”. The witness Andrew Barratt, speaking of a later period (1998 onwards) said the same.

The principal helpers at Steart Farm in the later 1970s, other than the full time employee Colin Wall, were (in descending order of contribution) David (who was never paid for what he did), Richard Adams (who did expect to be paid for what he did, and was), and (mainly at weekends) Sam Salway. David was the only one who went nearly every day. It is in the nature of farming that the amount of help needed varied considerably, not only from season to season (though less so at Steart Farm than others in livestock, for the reason I have explained) but also from day to day. Others would help at particular times, such as Roger Durston with cattle testing and Brian Young (and no doubt others) with haymaking.

It seems that it was in 1984-5 that Peter’s somewhat bitter divorce from Veronica, or at least the ancillary relief aspect, went through. At one stage during that process Peter considered granting a protected tenancy of Steart Farm to David, at well below market rent, as a device to depreciate the apparent value of his assets. Though a draft tenancy agreement was drawn up by solicitors (and is exhibited), Peter did not go through with it. Nevertheless the incident demonstrates that Peter had by this time developed a very high degree of trust and confidence in David.

Over this same period, which Peter found very stressful, he smoked heavily, and spent a short time as an in-patient at a psychiatric hospital in 1984. The following year he was still noted as feeling suicidal. Over this particularly difficult period David visited Peter with an evening meal at least every other evening, sometimes with his father Jimmy but more often on his own. He would generally stay from 7.30pm until at least 10.30pm.

During the 1980s David came to hope that he might inherit Steart Farm. As he put it in evidence, from 1985 Peter “made various noises that made me think that I might well inherit, but nothing very definite.” Significantly, the evidence of Richard Adams, who saw quite a lot of Peter in the first half of the 1980s, is that “by the mid 80’s I had no doubt that Peter intended David to have the farm. I cannot point to any specific statements from that period, it was more a question of the nature of their relationship.”

From the mid-1980s Richard Adams saw less of Peter, until he (Richard Adams) started keeping sheep from about 1990, and went to Peter for some advice. They started seeing a bit more of each other again, and by 1993 were friends once more.

In 1986 Jimmy retired from farming, and moved from his farm at Coxley to Barton House, at Worth, near Wells, over which Jimmy had been granted a testamentary option by previous owner. Barton House was a property with just a few acres, which has been described as a “small homestead” rather than a farm.

Initially after the move, David ran the homestead, whilst continuing to visit Peter and help on Steart Farm, now a shorter journey for him. However in January 1987, so in the year after the move to Barton House, his brother Kevin left his job as a Bank Manager and moved to Barton House with his family (his wife and 3 children, a son then aged 12 and twin daughters then aged 10). Barton House was really too small, and the amount of land was only enough for Kevin to run a business rearing calves up to 18 months old – there was not enough space to keep them any longer. David let Kevin use such land as there was at Barton House, because there was insufficient to support both of them, and Kevin had a family. He told Kevin that he was becoming more and more involved at Steart Farm, and believed that his future lay there.

1988 Peter sold his dairy herd. He did not like the constant commitment of having to milk twice a day, even though he had help with milking, and his breathing difficulties were worsening at the time.

In the mid-1980s, Mr Cremin had left a partnership with his brothers and set up on his own. He tried to persuade David to join him in his new business, both on first establishing it and from time to time thereafter. He expressed immense confidence in David, and having heard his evidence I am satisfied both that his offer to David of an opportunity in business was one genuinely made and repeated from time to time, in accordance with his testimony, and that, had David taken it up, there is every prospect that their relationship would have flourished within what has clearly been a profitable business.

At about the time that the Limcool patent application was being pursued, so in about 1987-88, David’s cousin Graham offered him the opportunity of moving to the Berkshire Downs, working at or for his stables in Wantage, in particular driving horses from meeting to meeting. As I have mentioned, David could see that such a move would give him access to excellent opportunities to promote the “Limcool” product. Again, given the family connection, this was an opportunity that remained open to David for some time.

By way of confirmation of the time-scale, Kevin remembered that it was during the time that he and his family were living at Barton House (so between January 1987 and August 1991) that Mr Cremin had offered David the opportunity to move to Swindon and join his business (that may well not have been the first such offer as was made), and that David was discussing with his cousin Graham the possibility of going to Wantage to work with him. This was a significant stage in David’s life. The fact that he could not for ever be dependent on his (retired) parents was brought home to him by the increasing need to find money to meet the bills at Barton House, now that his father was no longer farming, as well as (I infer) the rather cramped space there while Kevin and his family were living there. He had specific job or business opportunities available to him.

One day in 1990, when Peter was still only in his early sixties, he handed David a Prudential Bonus Notice, relating to 2 policies on Peter’s life which appear then to have had a value of about £20,000 between them, and said “that’s for my death duties”. David duly retained the document, the original of which was disclosed to the defendants’ former solicitors, and (after it was eventually retrieved from a file, during the course of the trial) a copy of which is now exhibited. One can only speculate as to whether the timing was coincidental, or whether Peter had heard from a mutual contact that David was considering other career avenues at about that time, and felt that he should say something to encourage David to continue helping him at Steart Farm (David makes an observation to similar effect in his witness statement). This simple action and short accompanying comment by Peter marked something of a watershed, in that it was the first direct reference made by Peter to David with regard to matters concerning his estate and passing, and marked the point at which David’s hope of inheriting (born of the various hints referred to in para (86) above) became an expectation. Given the clear picture which has emerged from the evidence of Peter as a man of few words, who generally maintained his privacy about his personal financial affairs (even David only learned after his death of the extent of his monetary resources), and who hardly ever spoke in direct terms, I am satisfied that in making such a remark, and handing such a document to David to keep, Peter was intending to indicate to David that he would be Peter’s successor to Steart Farm, upon his death, and that David’s understanding to that effect was correct. I find that this remark and conduct on Peter’s part strongly encouraged David, or was a powerful factor in causing David, to decide to stay at Barton House and continue his very considerable unpaid help to Peter at Steart Farm, rather than to move away to pursue one of the other opportunities which were then available to him, and which he had been mulling over. I reject the suggestion that David would definitely have stayed in any event, with or without Peter’s said remark and conduct, in order to look after first his mother and then his father. Had David left Barton House between January 1987 and August 1991, Kevin and his family would have stayed there. Kevin had the opportunity to go back into the financial services industry in that region, rather than Devon, had he wished to do so. The company he went to work for in 1991 had an office in Taunton as well as Exeter. Both their other brothers lived within an hour of Barton House, and would have offered back-up as necessary. They are a close-knit family.

I would here add that such encouragement from Peter to David proved not to be ‘one off’, but continued, or was reinforced, over the following years, on a number of further identifiable occasions to which I shall come.

In the same year, as a result of diminishing stock values consequent upon the BSE crisis, Kevin’s small business suffered heavy losses, and by 1991 Kevin had decided to return to the financial services industry. He and his family moved to Devon in August 1991.

Later in 1991, in or about November, their mother Dorothy was first diagnosed with the brain tumour from which she died, in August of the following year. Her death came as a heavy blow to Jimmy, who at one stage was driven to heavy drinking by it. David did his best to support him, though that was not always easy. In about 1996 David obtained his own National Hunt trainers’ permit, at least in part with a view to generating an interest for his father, who had always been keen on horses, and who was still riding after the move to Barton House, as an exhibited photograph illustrates.

From time to time, Peter made remarks to David in conversation which, though not saying so directly, carried with them the implication that David was to have continuing long-term involvement with Steart Farm. Peter would point out to him little things about the farm which would only be of relevance to someone with such an involvement (as they were of no immediate relevance at the time they were made), and which it was only necessary to communicate to someone who would be there after Peter had gone, and the undocumented knowledge in his head was no longer available. The underlying context of such remarks was of course the remark made in 1990 coupled with the handing over of the bonus notice, which I have already dealt with, and David’s continuing heavy commitment to wholly unremunerated work on Steart Farm. Understandably, the evidence does not date these remarks with any precision. One such remark was when Peter made a point of drawing to David’s attention a cattle trough which, he explained to him, never froze up in winter. I find that this and other such remarks encouraged the expectation which David had formed (in the circumstances I have already explained) that he would be Peter’s successor to Steart Farm, upon his death, and encouraged David to continue with his very considerable unpaid help to Peter there. I am also satisfied that it was reasonable for David to understand them and rely on them in that way. That being the case, it is unnecessary for me to undertake the somewhat artificial exercise of attempting to make a specific finding, in respect of each of Peter’s more indirect remarks, as to whether Peter positively intended each such remark to convey to David the meaning, and bring about the reliance, which it did. To put it another way, it does not matter whether, in respect of any given instance of such an indirect remark by Peter, which was reasonably so understood and relied on by David, he was thereby knowingly or unknowingly encouraging the expectation he had previously raised in David.

In 1997, with the assistance of Porter Dodson solicitors, Peter made a relatively straightforward will. It left pecuniary legacies of £25,000 to Ashley Bell (Richard Adams’ stepson), of £50,000 to each of Sam Salway and Richard Binning, and of £100,000 to the Crohn’s in Childhood Research Association. He left all the residue (so including Steart Farm) to David, who was also named his executor. He kept the fact that he had made it to himself, and David only found out about it after Peter had died. However its terms do in themselves demonstrate that in 1997 Peter wished David to inherit the farm.

Also in 1997, Simon Selby’s marriage broke up, and he went to live for a time at Barton House at Jimmy’s invitation. While living there he observed that David had no free time at all, and that whenever David was not working on his own small business at Barton House he was over at Steart Farm, and he was concerned for David’s well being. In conversation with PC Selby about this, Jimmy told him that David was able to cope, and that it was in his best interests to keep Steart Farm together, as he was to inherit it from Peter. Although we cannot know on exactly what basis Jimmy made this statement, it is noteworthy that he felt able to make it in a matter of fact way to someone outside the family.

In 1998, there was unhappily a falling out between Peter and Sam Salway. Mr Salway was considering moving to Burnham on Sea, where property prices are apparently lower than in Cheddar, in order to purchase a larger house. He really wanted the farm cottage at Steart Farm, but Peter would not let him have it. However Peter offered to give him £30,000 towards a new house in or near Cheddar, to make up the gap between prices in the 2 areas. Against Richard Adams’ advice, and disappointed by not being offered the farm cottage, Sam Salway turned down Peter’s offer and abruptly stopped going to help at Steart Farm. Peter took this badly.

On the morning of 24 August 1998 Peter telephoned Porter Dodson, and the attendance note they made of the conversation reads as follows: “He wants us to cancel his will as from today. He will arrange to see [Mr Anderson] at some time to make another will. I asked for written confirmation but he said he could not write much and I would just have to act on the telephone call.” Two days later Mr Anderson wrote to him, recited much of the above, sent the Will to Peter to enable him to destroy it, pointed out that on an intestacy in the absence of any wife or children then his estate would pass to his brothers or sisters living at his death, and suggested that Peter consider making a new will as soon as possible. The 1997 will has not been found, and in the circumstances I infer that Peter did indeed destroy it.

There is no question in my mind that there might have been a falling out between David and Peter at that time. I accept David’s and Richard Adams’ evidence to that effect, and am confident that had such a thing occurred it would have become known to one or more of the many other persons from or associated with the local farming community who gave evidence at the trial or were interviewed by the enquiry agents who apparently made quite extensive investigations in the area on the defendants’ behalf.

By far the most probable explanation of Peter’s decision to ‘cancel’ the will which he had made the previous year is that it had included a significant pecuniary legacy in favour of Sam Salway, and that Peter, offended by what he would have seen as the rejection of his generous offer, and the sudden cessation of Sam’s help on the farm, no longer wished to make any such bequest to Mr Salway.

It is very unlikely that Peter would have made a conscious decision not to leave any will. For one thing his brother Eric was still alive in 1998, and unhappily it does seem that they had a very poor relationship. Suffice it to say that when Eric did die (the following year), Peter did not even attend his funeral. Nor, to put matters neutrally, was Peter close to any of his other surviving siblings, though for at least parts of the time with which I am concerned relations with his sisters Ena and Winifred appear to have been cordial. The letter from Porter Dodson of 26 August 1998 had pointed out to Peter the consequences of an intestacy. I infer that Peter either forgot the warning that a new will needed to be made, never properly read the letter which contained it, or never got round to acting on it. The (inferred) destruction, and the non-replacement, of the 1997 will does not cause me to doubt the existence of a continuing shared assumption between Peter and David that the latter would inherit Steart Farm on the death of the former.

1998 was the year in which Colin Wall retired. Richard Adams was at this time looking to establish his own farm. It also seems that by this time (and perhaps a little earlier, given Simon Selby’s evidence) the claimant had re-started calf-rearing on a restricted scale at Barton House, on his own account.

In or about the same year (1998), the witness Andrew Barratt, who was still working as a mechanic but had recently started up in farming, and was keen to learn more about it, started helping Peter at Steart Farm. He went for up to half a day each weekend, and from time to time was also asked to come down and help if something needed doing in the evenings. One insight into Peter’s dependence on David by this time was that even once Andrew Barratt was there and ready to start, Peter would want to wait until David arrived.

As I have mentioned, in or about early 1999 Peter granted certain 3-year farm business tenancies over land comprised in Steart Farm. He subsequently explained to David that he had done so with a view to reducing his liability to Inheritance Tax. Peter was, as I have indicated, a private man who generally kept his thoughts about his business and financial affairs to himself. Following the remark made about death duties in 1990 coupled with the handing over of the bonus notice, I am satisfied this explanation was given by Peter and understood by David in the context of what had become an unspoken mutual understanding that David was to inherit Steart Farm.

In about the summer of 2001, Simon Selby was present in the kitchen of Barton House when Peter was there (as was Jimmy and one other, not David). This was a rare event, because although Jimmy and Peter got on well, Jimmy almost always went to see Peter at Steart Farm. In the course of conversation Jimmy said something to the effect that David was of course in line for Peter’s farm, to which Peter nodded. This struck PC Selby at the time as potentially significant, and he particularly remembered it. Whether Jimmy had deliberately taken the opportunity to obtain some form of confirmation of this in the presence of a non-family witness one can only speculate. In any event, this was an acknowledgement on Peter’s part, albeit by conduct (the nod), of the accuracy of Jimmy’s assertion, given in the presence of Jimmy, PC Selby, and one other. It is also noteworthy that this occurred 3 years after the 1997 will had been returned to Peter by Porter Dodson for destruction.

In 2002 the practice of Chalmers HB Limited, Accountants, took over the practice which had previously acted for Peter. Mr Philip Ballan-Whitfield of the new practice met Peter just 2 or 3 times at his offices in Wells, the first time with Mr Anthony Prtichard of the old practice. Mr Ballan-Whitfield did not claim to have known Peter well.

In the later years of Peter’s life he made a number of further relevant statements to David. Understandably, David was not able precisely to date them, but they included the following:

It is also noteworthy that Peter made comments giving the same indication or carrying the same implication to others too. On one occasion in his later years Richard Adams suggested to Peter that he should instal a modern cattle handling system at Steart Farm, and Peter responded “wait till I’ve gone and see what David says”. I am satisfied that this response was both spoken by Peter and understood by Richard Adams as carrying with it the implicit if unspoken premiss that Steart Farm would in due course be David’s. The observation provoked no surprise on Richard Adams’ part, because he had been in no doubt since the mid 1980s that Peter intended David to have his farm, albeit that he could not point to any particular statements to that effect going so far back.

At about the same time (2001/2) Andrew Barratt put a cattle handling system into his farm. He showed it to Peter, and offered to put one in for him. Peter responded that he was too old to do it, but that when David was the boss, when David was in charge, then maybe he’d have Mr Barratt down to do it. Again I am satisfied that this response was both spoken by Peter and understood by Andrew Barratt as carrying with it the implicit if unspoken premiss that Steart Farm would in due course be David’s.

In 2002 David drove Peter to Porter Dodson’s offices at Peter’s request. Peter told him that he wanted to collect his deeds and leave them with other solicitors, Messrs John Hodge & Co in Wedmore, which is close to Cheddar. He told David that “we” want it all [i.e. various deeds affecting the farm] in one place, and that that would be better for him. I am satisfied that this was said and done by Peter, and understood by David to have been said and done, in the context of the unspoken mutual understanding which by then existed between them that David was to inherit Steart Farm and/or Peter’s estate, and had the intended effect of encouraging that understanding on David’s part. The “we” had to mean Peter and David, because they were the only two people there, and Peter was speaking to David. Peter acted as he did to make it easier for David to take over the estate. This is another example of a conversation between them which proceeded on the implicit but unspoken premiss that David was to inherit Steart Farm and/or Peter’s entire estate. It is also noteworthy that this conversation in 2002 was clearly not regarded by David as conveying any striking or dramatic new information to him.

In August 2004, Peter suffered a stroke, and was admitted to hospital at Weston-super-Mare. After an overnight stay he was released (the discharge summary is in evidence) in the company of his “cousin”, to whom a variety of matters were explained, who had “kindly agreed to look after him in the [meantime]”. I am satisfied that the “cousin” referred to was David, and not David’s father Jimmy, who was by then well into his eighties and, as David puts it, in no condition to look after anyone. This is just one documented example of how David was looking after Peter to a considerable extent.

In 2004 the stock on Steart Fam was further reduced as I have earlier mentioned, and Peter planned the conversion of a barn adjoining his farmhouse. David persuaded Fred Cremin to go to Steart Farm and give Peter some advice, which he did, accompanied by his wife and son. At the end of their conversation, while David was outside with Mr Cremin’s wife and son, they started talking about David, and exchanged positive remarks about him. When Peter asked Fred Cremin what he owed him for his advice about the conversion, and Mr Cremin stated “Dave asked me, I did it for him”, Peter responded “It was always going to be his anyway”. I am satisfied that this response was both spoken by Peter and understood by Fred Cremin as a more or less express (rather than implicit or unspoken) statement that Steart Farm would in due course be David’s, and that this had been Peter’s intention for a long time.

During the last year of his life, Peter arranged to plant a hedge on Steart Farm, something which is not a quick or short term project. In speaking to David about it, he explained that “that will give you shelter for that shed”. I am satisfied that this was said by Peter, and (correctly) understood by David to have been said, in the context of their unspoken mutual understanding that David was to inherit Steart Farm.

The barn conversion went ahead, and in early 2005 Peter moved from the old farmhouse into the adjoining, newly converted barn, where he lived for the last months of his life. Apparently some VAT saving may have been achieved by Peter moving in himself.

David featured very much in Peter’s conversations with his land agent, Andrew Hares, towards the end of Peter’s life. Peter expressed pleasure that David, “a Thorner”, was there to carry on Steart Farm. Mr Hares observed, when cross-examined about this part of his evidence, that it was almost as though Peter had already passed his land over to David, and that (in the context of conversations about a possible land sale which had not gone through when Peter died) Peter referred to David as the person who would carry on when he (Peter) was not there any longer. I am satisfied that this reference was made by Peter, and (correctly) understood by Andrew Hares, as a statement, perhaps on the borderline between a direct and indirect statement, that David was to inherit Steart Farm.

On 14 August 2005 Jimmy was admitted to hospital, on this occasion Bristol Royal Infirmary, for the last time. A family friend, the witness Graham Livings, took him, and three days later returned to visit Jimmy, taking Peter with him. They had a meal together afterwards, at Mr Livings’ home. Peter was not only distressed by Jimmy’s deteriorating condition, but also concerned about his own health. He implored Mr Livings to ensure that if anything happened to him (Peter), David would look after his (Peter’s) dogs. In the course of that conversation Peter left Mr Livings in no doubt that David was to be the principal beneficiary of his estate, and that without David’s help over the years that estate would not have been worth what it was. I accept Graham Livings’ evidence to that effect, even though he was not able to recount the words which Peter spoke in communicating that to him. It may be that this was one of those conversations where Peter expressed himself somewhat indirectly. Nevertheless, given the context and circumstances in which the conversation took place, and that it was with someone whom he knew well, I see no reason to doubt that Peter intended to communicate to Mr Livings the meaning which the latter understood.

In November 2005 David’s father Jimmy died. Just a week or so later, before Jimmy’s funeral had taken place, Peter died, at home in bed. He was seen there through a window by David, who when Peter failed to respond to his knocking, summoned help from Richard Adams and the emergency services. Letters of Administration to his estate were granted to the defendants on 21 June 2006.

Following the example of Robert Walker LJ in Gillett (see the citation in para (7) above), I shall for convenience divide my analysis into several sections with headings which give a rough indication of the subject matter. However, it is important to note that these sections are by no means watertight compartments.

David’s expectation

The development of David’s expectation that he would inherit from Peter took place over many years, and is largely dealt with in my findings of fact above. There were nevertheless, in my judgment, certain phases in its development which it is useful to identify. The first phase, during which David came to hope that he might inherit from Peter, commenced in or about 1985, and continued up to 1990. I have referred to how this hope developed in para (86) above. The second phase, from 1990 onwards, was when David had the expectation that he would inherit. That expectation did not end at any time before Peter’s death, but by 1999 a third phase was reached, in which there was something more than even an expectation on David’s part – there had developed an unspoken mutual understanding between Peter and David that David would inherit from Peter.

One aspect as to which the evidence is somewhat unclear is the full ambit of David’s expectation – was it an expectation that he would inherit Steart Farm, or inherit Peter’s entire estate? I am not convinced that David ever really focussed on that distinction. However I am certain that the farm was of primary interest to him. Further, although David was aware that Peter had received and kept some monies from land sales, he was not aware of just how much money Peter had on deposit or invested in his later years, and hence of the practical significance of the distinction. In view of the conclusion I have come to with regard to proportionality, it is not essential for me to seek to squeeze some clarity as to the exact scope of David’s expectation out of evidence which is in reality somewhat equivocal on that point.

Assurances from Peter which caused or encouraged that expectation

The occasion in 1990 which caused or encouraged David’s expectation, and marked the commencement of what I have called the second phase, is dealt with in para (94) above. In the factual circumstances of this particular case, I would if necessary regard Peter’s words and conduct on this occasion as tantamount to an assurance to David. I do not accept Miss Reed’s submission that Peter’s statement (accompanied by his conduct in handing over the bonus notice) was “a vague and indeed ambiguous statement in that it might just as easily have indicated that he was appointing the Claimant as an executor”. There was never any question of David being appointed as an executor other than in the context of also being the principal and residuary beneficiary (as the 1997 will provided for, 7 years later). This was neither David’s understanding, nor what Peter meant. The same applies to Miss Reed’s equivalent submission as to the movement of deeds in 2002 (dealt with in para (114) above).

The first occasion which I would regard as a clear manifestation of the existence of the unspoken mutual understanding, and which therefore marks the commencement of which I have called the third phase, was in or about 1999 when Peter explained to David that his motivation for granting a number of tenancies was with a view to reducing his liability to inheritance tax. As to this see para (108) above. There were further such manifestations in 2002, when Peter moved deeds from Porter Dodson to John Hodge & Co, as to which see para (114) above, and in the last year of Peter’s life when he arranged the planting of a new hedge, as to which see para (117) above.

All three of these occasions may also be analysed as encouragements of David’s said expectation, and again I would if necessary regard Peter’s words and conduct on each of them as tantamount to further assurances to David. David’s expectation was also encouraged on numbers of other occasions too, albeit occasions when Peter expressed himself somewhat less directly. These include the various occasions or events mentioned in paras (98), (111)(a), 111(b) and (111)(c)(i)-(iv) above.

Substantial corroboration for the propositions that Peter had indeed intended to act in accordance with David’s said expectation, and had come to share the said unspoken mutual understanding with David, is afforded by the terms of his 1997 will (as to which see para (99) above), and by the various remarks and acknowledgments which he made during the last 5 or so years of his life to or in the presence of Simon Selby, Richard Adams, Andrew Barratt, Fred Cremin, Andrew Hares and Graham Livings (as to which see respectively paras (109), (112), (113), (116), (119) and (120) above).

Detrimental reliance by David

Though hope only became expectation in 1990, it is at least relevant background that by then David had already put in a huge amount of unpaid work at Steart Farm, over the preceding 14 or so years. There is an analogy here with the facts of Re Basham dcd [1986] 1 WLR 1498, where the more specific assurances or promises principally supporting the claim were made in 1976 (p1502E), 1978 (p1502G), and 1978-82 (p1503A-B), yet the relevant conduct had been continuing since 1941. There is no need for me here to repeat the various relevant findings I have already made earlier in my judgment.

I have found that Peter’s remark and conduct in 1990, dealt with in para (94) above, strongly encouraged David, or was a powerful factor in causing David, to decide to stay at Barton House and continue his very considerable unpaid help to Peter at Steart Farm, rather than to move away to pursue one of the other opportunities which were then available to him, and which he had been mulling over. That being so, it is unnecessary for me to attempt to make a hypothetical finding on the balance of probabilities as to whether David would otherwise have stayed and continued as before, or would have moved away. As Balcombe LJ explained in Wayling v Jones (1993) 69 P&CR 170 CA at 173:

“The promises relied upon do not have to be the sole inducement for the conduct: it is sufficient if they are an inducement – Amalgamated Property Co v Texas Bank [1982] QB 84 at 104-105.”

With regard to all that David did at Steart Farm, and in looking after Peter, for the further 15 or so years up to his death, there is again no need for me here to repeat the various relevant findings I have already made earlier in my judgment. David’s contribution was not only unremunerated, but also far in excess of that made by any of the others who helped at Steart Farm, whose roles I have reviewed in paras (74)-(80) above. He was encouraged to continue with his considerable and unremunerated commitment to this work by what was said and done by Peter on the various occasions I have already identified. There is a clear and sufficient link between that encouragement from Peter and what David did for him and on his farm.

Both parties (though the lead was taken in this regard by the defendants) have put in expert evidence with a view to calculating how many hours work must have been done at Steart Farm, and thus to seek to undermine or support the claimant’s case. The estimates calculated in the experts’ joint statement suggest that (by application of recognised standard formulae to the acreages farmed and the number of head of animals) 2.3 standard man years (“SMYs”) would have been required in 1998 (the last year when the 500 sheep were there), between 1.2 and 1.6 SMYs from 1999 to 2003 inclusive, and 0.8 SMYs in 2004-2005. Their joint statement goes on to record that the “combination of the configuration of Steart Farm and Peter’s working practices would have led to a higher than normal labour requirement.” Neither of them were in a position to comment on how much of the required labour was contributed by Peter himself, but his age and state of health were plainly relevant factors. The most such material can do is to offer some sort of broad cross-check as to the evidence I have heard with regard to how much work David put in. It is noteworthy that in 1998, 10 years after the dairy-herd had gone, and just before the sheep went, the standard formulae suggest 2.3 SMYs were required. Taking account of the inconvenient physical configuration of Steart Farm, and the somewhat old-fashioned and labour intensive methods which Peter used, even if Peter was still contributing the equivalent of say 75% of an SMY (when aged 70), considerably more than a whole SMY was required on top. If from 1999 to 2003 inclusive Peter contributed the equivalent of 50% of an SMY, at least another SMY was required (taking account of those same factors). Both the figures I have taken for Peter’s own contribution to the work required between 1998 and 2003 are probably excessive. Andrew Barratt, who first started going to help at Steart Farm in 1998, described Peter as “an old man who was not able to do much manual work himself. I knew that he had a hernia. I remember that he had an attack of Shingles in 1999…” Over the 2 years 2004-2005 Peter (suffering a stroke in August 2004, and being aged 76-77) cannot have made a significant contribution to the work required. At least 80% of an SMY must have been required in these years, and possibly more (again, taking account of the same factors). I conclude that there is nothing in these figures to cast doubt on the witness evidence from David and others as to how hard he worked at Steart Farm (and a fortiori, given the inevitable limitations of those figures), and reject Miss Reed’s submission that they help to show that the claimant “did rather less than he now asserts”.

Looking at the matter in the round / Unconscionability

I remind myself by reference to the authorities cited at paras (4)-(10) above that in such cases the Court is charged with making a broad enquiry, and having looked at the factors set out at (i)-(iii) above must stand back and look at the case in the round, in order to decide whether in all the circumstances Peter’s conduct has given rise to an estoppel, i.e. made it unconscionable for none of his estate to be inherited by David. It should be emphasised that this is not the same thing as the Court substituting its own assessment of what would be fair for the operation of the Intestacy Rules.

Looking at the matter in the round as I must, I have no hesitation in concluding that Peter’s words and conduct have given rise to an estoppel in David’s favour, and that it would be grossly unconscionable for the present position under the Intestacy Rules to stand; put in traditional legal language, what occurred here was clearly sufficient to ‘affect Peter’s conscience’. David held, and I have found reasonably held, the expectation that he would inherit at least Steart Farm, if not Peter’s whole estate, since 1990, in the circumstances and for the reason I have explained. He passed up other attractive opportunities available to him in 1990 and continued to devote an extraordinary amount of time and effort into both Steart Farm and looking after Peter himself for 15 years thereafter, without any remuneration for doing so, as he had already done for nearly as long before.

By 1999 at the latest, there was an unspoken mutual understanding between Peter and David to like effect. In the later years of Peter’s life the outward manifestations of that understanding, and the words and acts which encouraged David’s said expectation, became more frequent, but only reflecting and reinforcing what was already the position.

Miss Reed relies on the fact that Peter did not ever say to David “in terms … that he was leaving his estate to him”. Insofar as it may be said that the ‘quality’ of Peter’s assurances and words and acts of encouragement, which the claimant has established, is less because of the somewhat indirect manner in which most were expressed or manifested, there has to be set against that not only my finding as to general indirectness of expression on the part of both Peter specifically and farmers in at least that area of Somerset made in para (32) above, but also the substantial body of corroboration as to Peter’s intentions which I have mentioned in para (128) above, and the evidence of very considerable detrimental reliance by the claimant over many years to which I have made reference in paras (129)-(131) above. As Robert Walker LJ observed in the passage from his judgment in Gillett quoted in para (7) above, each of the aspects of a proprietary estoppel claim commonly affects and informs the consideration of the others. Taken in their context, Peter’s words and actions in the respects identified were far more than merely “hints dropped”, as Miss Reed submitted; in my judgment they were indeed tantamount to assurances and/or promises.

Satisfying the equity and proportionality

I must therefore turn to the question of what is the minimum equity necessary to do justice to the claimant and to avoid an unconscionable or disproportionate result.

This case is one where Peter and David reached a mutual understanding, albeit unspoken, that David would inherit from Peter. This understanding was clear, at least to the extent of Steart Farm. David’s expectation, which I have found subsisted from 1990 onwards, was to like effect.

David was at Peter’s beck and call for most of his adult life, without any material countervailing benefits, and in consequence lived without a social life and in modest financial circumstances throughout the period I have spoken about. The level of commitment he demonstrated was remarkable. Prima facie, he has a compelling case for his expectation/the mutual understanding to be fulfilled.

However would that be to produce a disproportionate or unjust (to the defendants) award? According to the Inheritance Tax Account (the best evidence of value which I have), the open market value of the land and building comprising Steart Farm is in the region of £2.4 million, and its other assets (including live and dead stock) a further £650,000 odd. That is plainly a substantial sum. However the estate also contained a further £620,000 off by way of bank deposits etc. David knew that Peter had some money, but was not aware of the extent of that figure.

I do not consider that fulfilling David’s expectation/his mutual understanding with Peter to the extent of the whole of Steart Farm’s land and other assets would be disproportionate or unjust. It must be remembered that both of them were fully aware of the extent and nature of Steart Farm, if not necessarily its open market value at any given time. The evidence strongly suggests that David’s contribution over many years was a major contributing factor to the state and condition of the farm, and indeed on the evidence of Peter’s land agent Mr Hares, possibly to its very survival as a viable economic unit. Peter’s ability to live and work on Steart Farm over almost 30 years following Sarah’s death, during which time its value must have grown enormously (not only through general rises in land values, but also due to emerging development prospects over some land comprised within the farm), was to a very significant extent dependent on David’s contribution.

Besides, attempting to place a monetary value on David’s contribution over so many years, and on what he sacrificed in order to make it, would be to take on a virtually impossible task. That would involve going far beyond a calculation of the hours David put in, whether over 15 or 29 years, multiplied by some sort of open market remuneration rates for the same, and looking at the other opportunities in life, both financial and social, that he has given up and can never get back. Even with regard to the sort of calculation I have just mentioned, Robert Walker LJ opined in his judgment in Jennings supra (at para 54), that “it would rarely if ever be appropriate to go into detailed enquiries as to hours and hourly rates where [a] claim is based on proprietary estoppel”. I have already considered the expert evidence adduced in this regard so far as the hours spent are concerned with regard to the question of detrimental reliance (at para (132) above), and see no advantage in attempting to do so in any more depth here. With regard to pay rates, in case this matter goes further I should perhaps simply record that Miss Reed sought to rely on figures for 2007 contained in the Farm Management Handbook mentioned in section 4.3 of Mr Allen’s report, albeit on a page neither quoted nor exhibited by Mr Allen. Under the heading Labour Cost, it estimates annual earnings in 2007 of various categories of farm workers, including ‘All Hired Men’ (£19,650), ‘Foremen’ (£23,500) and ‘Dairy Herdsmen’ (£23,800).

I do however consider that it might be disproportionate for David also to receive Peter’s non-agricultural assets, if I may express it thus, whether or not his expectation was at times to inherit the whole of Peter’s estate, as opposed to Steart Farm. I have in mind that I must apply the ‘minimum equity’ approach here, as explained in the cases I have cited above, and analysed in the 2 learned articles from the Law Quarterly Review by Simon Gardner which have been cited. I shall seek counsel’s assistance in the precise formulation of my Order, but in general terms David’s claim will succeed to the extent of the land and buildings, live and dead stock and other chattels comprised in Steart Farm, together with (subject to what I am further told) such limited amount of working capital as may have stood to the credit of the farm’s trading account(s) at the time of Peter’s death

The claim succeeds to the extent indicated in paragraph (143) above. I will make appropriate declarations to that end, and consider any other relief counsel may raise with me.

Finally, this judgment would not be complete without paying tribute to the courteous, skilful and expeditious manner in which both counsel conducted the trial before me. I am grateful to them.