Brookwood Park Ltd v Guney & Ors

The claimant, Brookwood Park Limited, for whom Mr Staunton appears, is the freehold owner of Brookwood Cemetery in Surrey. The defendants, for whom Mr Meares appears, are or have been trustees of the United Kingdom Turkish Islamic Trust (“the Trust”) which is a charitable trust established in November 1977 and which has provided funeral and other services to the Turkish Islamic community in London. The second, sixth, eighth and ninth defendants are, I was told, no longer trustees. There was some doubt, although I do not think it matters, precisely what the position now is. The first defendant is the chairman of the trustees.

The dispute is over whether, as the defendants assert but the claimant denies, the Trust has the exclusive rights of burial in an area of 19 acres forming a part of Brookwood Cemetery. The claimant issued these proceedings on 1 February 2013 for the purpose of obtaining a declaration that a purported deed of grant, which is dated 20 January 1983, numbered 1723A and was supposedly issued by the claimant, was invalid and of no effect. It was in reliance on that document (which I shall refer to simply as “1723A”) that, as the claimant understood matters, the Trust was basing its claim. Acting by its trustees, the Trust does indeed claim to rely upon it. In the alternative it relies on another purported deed of grant, also dated 20 January 1983, but in this case numbered 1723a (lower case) and to which I will refer as “1723a”. But for the fact that in the course of other proceedings concerned with RG’s estate (to which I will come) Brookwood’s principal witness before me, Diane Holliday (“Ms Holliday”), happened to mention the 19 acres and produced 1723A to the court, the Trust would not have known of the supposed grant at all. The other purported deed of grant, 1723a, came to light after these proceedings had started. It had been found among the Trust’s papers. In the further alternative the Trust claims that there exists an enforceable agreement made “in or about late 1982/early 1983” for the grant by the claimant to the Trust of exclusive rights of burial in 19 acres of the cemetery. It pleads that the consideration for the grant was £25,000 and that that sum was “duly paid”. It pleads that the 19 acres is as shown on a plan annexed to the pleading (“the pleaded plan”) and that the grant was “effected by, alternatively evidenced by” an entry in a Brookwood ledger called the Register of Allotments, alternatively by one or other of the two purported deeds of grant. It pleads that Brookwood is estopped from denying the Trust’s exclusive burial rights in the 19 acres (as shown in the pleaded plan) and is precluded from denying the validity of its own grant and that it would be unjust and unconscionable to deny such exclusive rights of burial in those 19 acres. The defendants, as such trustees, therefore counterclaim for a declaration that the Trust is entitled to such rights and for specific performance “by way of execution” of a new deed of grant or “re-execution” of either 1723A or 1723a.

Brookwood Cemetery is a most remarkable place. One of the witnesses called by the defendants was John Clarke. He is the author of a guide to the cemetery. Published in 2004 and entitled “London’s Necropolis”, the book is a valuable introduction to the art and architecture of the cemetery and includes brief details of over 800 persons of interest (out of over 240,000) who have been buried there. Mr Clarke’s book also provides a short introduction to the origins and subsequent history of the cemetery. From this and the other evidence and information made available to me in the course of the trial it appears that at the time of its establishment in 1854 the cemetery was the largest in the world. Its purpose was to solve the lack of burial space within the Metropolis caused by a rapidly expanding population. How all this came about and the steps taken to make long term provision for the interment of human remains make for interesting reading but the upshot is that a parliamentary bill was promoted to incorporate a company and confer on it the powers needed to establish and run the cemetery. The bill was enacted as The London Necropolis and National Mausoleum Act, 1852. It established the London Necropolis and National Mausoleum Company (“the Company”) and conferred upon it power to acquire land in and around Woking Common upon which to create the cemetery. By section 8, the Cemeteries Clauses Act 1847 and the Land Clauses Act 1845 were, with immaterial exceptions, incorporated with and made to form part of the 1852 Act.

It seems that over 2,000 acres were acquired under the powers conferred by the 1852 Act. In the event, a much lesser area was laid out as a cemetery. The cemetery opened in November 1854.

Section 21 of the 1852 Act empowered the Company to contract with the then London and South Western Railway to construct a branch line from the main line into the cemetery to enable coffins and mourners to reach the cemetery from central London. To facilitate this, power was conferred on the Company to construct a terminus at either Waterloo or Nine Elms stations as the point of departure for the funeral corteges. The branch line was duly constructed. It reached into the centre of the area laid out for burials and was served by two cemetery stations. A London terminus was also built: it was situated adjacent to Waterloo (so that it could take advantage of the main line from that station) and was later replaced by another. The 1852 Act laid down what fares could be charged for the conveyance of coffins and mourners from Central London to the cemetery.

This closely regulated rail facility lasted from 1854 to 1941 when, following bomb damage to the Waterloo Station area, the service had to be discontinued. It was never re-opened. In due course the rails of the branch line were removed and the two cemetery stations demolished. But, of course, the cemetery remained. So also does the track, effectively now a broad path, followed by the former branch line.

Over the many years that have elapsed since the cemetery was first established the Company promoted amendments to the 1852 Act to authorise the disposal of unwanted land and for other purposes. The result is that by today the cemetery comprises around 400 acres. Although the cemetery never included a crematorium, it began in 1890 to accept cremated remains for interment. And this has continued ever since and in increasing numbers.

In the late 1920s the Company shortened its name to The London Necropolis Company and in 1935 was registered and re-incorporated under the Companies Acts as an ordinary (non-statutory) company limited by shares. It was later to be renamed Brookwood Cemetery Limited. The Brookwood Cemetery Act 1975, passed to enable the Company to dispose of yet further land surplus to its needs and to make other provisions concerned with the running of the cemetery, recited that the Company had laid out and enclosed “sufficient space to meet the estimated requirements of the Company for the next five hundred years…” Though no longer the largest in the world the cemetery remains, I was told, the largest in the UK and in all probability the largest in Western Europe if not Europe as a whole.

In the post-war years the ownership of the cemetery, by then vested in a company limited by shares, passed through a variety of different hands. In March 1976, the cemetery was conveyed by Brookwood Cemetery Limited to Brookwood Park Limited (or “Brookwood” as I shall henceforth call the claimant) which was registered as its proprietor in May 1976. Brookwood had been originally incorporated as Stockport Borough Cemetery Company Limited in 1891. I was told that Brookwood (as it became) paid around £220,000 for the cemetery. Some time later Brookwood Cemetery Limited became the wholly owned subsidiary of Brookwood.

By 1983 Brookwood was controlled by a Mr Dally. He continued to own Brookwood until March 1985 when he sold it to Mr Ramadan Guney. RG, as I shall call Mr Guney, was a Turk from Northern Cyprus (and therefore a Muslim) and the father of the first, second, third and fourth defendants. RG was also a trustee and leading member of the Trust. He remained in control of Brookwood (and, it would seem, the Trust) until his death on 2 November 2006. It was supposedly during Mr Dally’s period in control that the purported deeds of grant, 1723A and 1723a, came into being: each is dated 20 January 1983. The former is expressed to be in favour of the Trust, the latter in favour of UK TI Funeral Service (which I was told and accept was and is an offshoot of the Trust). I will come to these two instruments in more detail later. It is first appropriate that I say something about the nature of the rights which the Trust claims.

The Trust claims to have exclusive burial rights within an area of 19 acres within the cemetery. It claims to enjoy those rights without prejudice to the presence within that area of pre-existing burials. I understood that it would be an infringement of those rights if, subsequent to the Trust’s acquisition of them, burials within the 19 acre area should be sanctioned by Brookwood without obtaining the Trust’s consent.

As I have mentioned the 1852 Act incorporated into its terms, with immaterial exceptions, the Cemeteries Clauses Act 1847. So far as I am aware – neither counsel suggested to the contrary – the relevant provisions of the 1847 Act have continued to govern the conduct of the cemetery at all times material to the current dispute. Those provisions include the following:

“40 Parts of the cemetery set apart for grant of exclusive rights of burial

The company may set apart such parts of the cemetery as they think for the purpose of granting exclusive rights of burial therein, and they may sell, either in perpetuity or for a limited time, and subject to such conditions as they think fit, the exclusive right of burial in any parts of the cemetery so set apart, or the right of one or more burials therein, and they may sell the right of placing any monument or gravestone in the cemetery, or any tablet or monumental inscription on the walls of any chapel or other building within the cemetery.

41

Plan of parts set apart for grant of exclusive rights, and book of reference thereto, to be kept

The company shall cause a plan of the cemetery to be made upon a scale sufficiently large to show the situation of every burial place in all the parts of the cemetery so set apart, and in which an exclusive right of burial has been granted and all such burial places shall be numbered, and such numbers shall be entered in a book to be kept for that purpose, and such book shall contain the names and descriptions of the several persons to whom the exclusive right of burial in any such place of burial has been granted by the company; and no place of burial, with exclusive right of burial therein, shall be made in the cemetery without the same being marked out in such plan, and a corresponding entry made in the said book, and the said plan and book shall be kept by the clerk of the company.

42

Grant of exclusive right, etc, may be according to form in schedule

The grant of the exclusive right of burial in any part of the cemetery, either in perpetuity or for a limited time, and of the right of one or more burials therein or of placing therein any monument, tablet, or gravestone, may be made in the form in the schedule to this Act annexed, or to the like effect, and where the company are not incorporated it may be executed by the company or any two or more of them.

43

Register of grants to be kept

A register of all such grants shall be kept by the clerk to the company, and within fourteen days after the date of any such grant an entry or memorial of the date thereof and of the parties thereto, and also of the consideration for such grant and also a proper description of the ground described in such grant, so as the situation thereof may be ascertained, shall be made by the said clerk in such register…

44

Rights of burial may be assigned or bequeathed

The exclusive right of burial in any such place of burial shall, whether granted in perpetuity or for a limited time, be considered as the personal estate of the grantee, and may be assigned in his lifetime or bequeathed by his will.

45

Form of assignments

Every such assignment made in the life-time of the assignor shall be by deed duly stamped, in which the consideration shall be duly set forth, and may be in the form in the schedule to this Act annexed, or to the like effect.

46

Assignments to be registered

Every such assignment shall, within six months after the execution thereof, if executed in Great Britain or Ireland, or within six months after the arrival thereof in Great Britain or Ireland, if executed elsewhere, be produced to the clerk of the company, and an entry or memorial of such assignment shall be made in the register by the clerk of the company, in the same manner as that of the original grant; and until such entry or memorial, no right of burial shall be acquired under any such memorial…

48

Burials in places where exclusive right has been granted

No body shall be buried in any place wherein the exclusive right of burial shall have been granted by the company, except with the consent of the owner for the time being of such exclusive right of burial.”

In Reed v Madon [1989] 1Ch 408, a case which, as it happens, concerned Brookwood Cemetery, Morritt J (at 419 and 420) described an exclusive right of burial arising under the 1847 Act as something to be equated with a right of property but found it unnecessary to decide whether it was an interest in land. Section 44 of the 1847 Act (which is not quoted in the judgment) makes clear, however, that the exclusive right of burial dealt with by the Act is to “be considered as the personal estate” of the grantee. That seems to me to exclude the possibility that the right in question can constitute an interest in land.

What of the more extensive right which is in dispute here, namely the right to exclusive burial rights within an area extending way beyond any identified or marked out burial plots? I do not construe the 1847 Act as confining what is to be considered as personal estate to actual places of burial. In my view it embraces any larger area set aside for the purpose of granting exclusive rights of burial within it. That is apparent from the wording of section 41 set out above. I mention this in case it might be thought that the Trust’s claim to be entitled to 19 acres of the cemetery, in so far as it is founded on the existence of an enforceable agreement to grant such exclusive rights over so extensive an area (and does not depend on the existence, as executed deeds of grant, of 1723A or 1723a), might fail (if the agreement was made on or after 27 September 1989) for want of compliance with the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (concerned with contracts for the sale or other disposition of an interest in land) or (if it was made before that date) with the less stringent requirements of section 40 of the Law of Property Act 1925. Mr Meares was unable to say just when the agreement was made on which, in the alternative to the claims based on the two deeds, the Trust was relying and, for his part, Mr Staunton (rightly) did not suggest that the Trust’s counterclaim might fail, in addition to the other grounds which Brookwood advanced, on the ground of such non-compliance.

It is to be noted that, whether based on 1723A or 1723a or on the existence of some enforceable agreement, the 19 acres claimed by the Trust for its exclusive burial use is very extensive indeed. It is also to be noted – indeed it is a very interesting feature of the cemetery – that areas of it have been set aside or reserved for the exclusive burial use of all manner of interest groups. Thus, one reads in Mr Clarke’s book and it is evident from the many plans that have been produced that there are areas set aside for individual London parishes, for Catholic orders, for a wide variety of lay groups (such as, to select some entirely at random, the Corps of Commissionaires, the Ancient Order of Foresters and, appropriately, the London & South Western Railway) and also for the armed services. There is, for example, an area set aside for the RAF. So there was nothing intrinsically unusual in the Trust’s wish to reserve, and for Brookwood to grant, an area for its exclusive use, except only perhaps the very large acreage which is claimed. The question is whether this occurred and, if it did, when and how.

RG and his wife, Suheyla, had come to this country from Cyprus in the late 1950s. At the time they had two children. Four others were born to them later. Suheyla died in January 1992. A few years later RG established a relationship with Ms Holliday. She already had a son of her own – he is called Kevin - by a previous relationship. Her relationship with RG resulted in another son, Houssein, who was born in June 1999. As I have mentioned, RG died in November 2006. He died intestate. In the meantime, Ms Holliday had begun to work at the cemetery. She did so from about 1998 until May 2007, following RG’s death, when she was ousted by the third defendant and his wife from further involvement. These two remained in day-to-day control of the cemetery until November 2012.

In October 2007, the same year that she was ousted from involvement in the running of the cemetery, Ms Holliday started proceedings for financial provision out of RG’s estate. This led to bitter and protracted litigation with, among others, the first to fourth defendants. The first issue which the court had to decide was whether RG had died domiciled in this country. This came before Her Honour Judge Kushner QC in November 2008. The trial lasted several days. It was in the course of that hearing that Ms Holliday produced 1723A. In April 2009, the judge handed down judgment on the issue: she found that RG had died domiciled in this country. The defendants to those proceedings appealed against the decision. In March 2010 the appeal was dismissed. The way was now open for Ms Holliday to pursue her claim for reasonable provision out of RG’s estate. This too was hotly opposed. It led to a further trial, again before Judge Kushner QC. On 11 November 2011, following a five-day trial in March 2011 and further hearings in April, September and October that year, Judge Kushner QC upheld Ms Holliday’s application and ordered that RG’s shares in Brookwood be delivered to her. This should have resulted in her obtaining control of Brookwood and therefore of the running of the cemetery. But the defendants once again appealed. The appeal was heard in July 2012. It was dismissed in October of that year. It was now exactly five years since Ms Holliday had embarked on her claim. Eventually, at the end of the following month, the statutory books were delivered up to her and the former directors resigned their directorships.

By November 2012, therefore, Ms Holliday was able once more to resume control of the day-to-day running of the cemetery. She was able to do so on this occasion as the controlling shareholder of Brookwood. In the meantime, in reliance on 1723A deed, the trustees of the Trust, now led by the first defendant as chairman and supported by her fellow trustees, asserted a claim to 19 acres of exclusive burial rights. This led to the present proceedings which Brookwood, now under Ms Holliday’s control, issued in February 2013 and eventually to the trial before me.

Three witnesses gave oral evidence, upon which they were cross-examined, on behalf of Brookwood. All three struck me as witnesses of truth. There was a fourth witness for Brookwood, a Mr Hollis, whose witness statement was admitted under a Civil Evidence Act notice. I will comment on their evidence in so far as I need to when I come to consider the issues that arise for decision. At this stage I would merely mention that Ms Holliday struck me as open and frank about what she knew and understood. It was she who had first revealed and produced to the court the existence of 1723A which later prompted the defendants to launch the present claim. She was quite open in her recollection of what RG gave her to understand about the existence of 19 acres of reserved burial rights for the benefit of the Trust. She could have denied all knowledge of the matter but did not.

Seven witnesses gave oral evidence for the defendants, including the first and fifth defendants. They too were all cross-examined on their evidence. There was also a witness statement from a retired solicitor called Martin Potter which was admitted without the need for any cross-examination. I have no reason to doubt that all of these witnesses attempted to relate what they honestly understood or believed that they could recall. One of these was Mary Cockram. Now in her mid-80s, Ms Cockram had worked at the cemetery from 1980 to 1998 (the precise date of her departure was the subject of some doubt) and had a thorough knowledge of how the cemetery business was run during those years. She worked in the cemetery office and maintained the various office records. These included a cash book - in fact there were two of them, one which she maintained and the other which was written up by Andrew Morris (who provided book-keeping services to Brookwood between 1978 and 2012) and mirrored the record which she had kept - and the Reserved Allotments Book, many of the entries in which were in Ms Cockram’s handwriting.

Much of the evidence I heard, especially from Ms Holliday, Gonul Guney and Melanie Kutcher (a daughter-in-law of RG and therefore a sister-in-law of Gonul Guney), was speculation and an attempt to reconstruct past events on the basis of snippets of recollection, some of them going back many years. The main problem with what they had to say was that, with the exception of Ms Cockram, Robert Allen (who has acted as external accountant to Brookwood since 1976 or so and was called by Brookwood), and Mr Morris (who was called by the defendants), none of the witnesses was involved in what was happening at the cemetery either in January 1983 (the date appearing on the two purported deeds of grant) or, if relevant, in the late 1980s and early to mid-1990s. This meant that what those others had to say was inevitably speculative or hearsay in nature in so far as it sought to throw light on the purported deeds and on when and how RG might have entered into some binding commitment in relation to the reservation of exclusive burial rights over an area of 19 acres. Ms Cockram, Mr Allen and Mr Morris could do little more than confirm the entries in Brookwood’s records which were either in their handwriting or were the product of their own efforts. Except to the extent that I mention below they had no direct knowledge of what lay behind those entries.

1723A, which is in part a printed form with gaps for the particular details filled in by typewriter, states that in consideration of £25,000 paid to Brookwood by the Trust Brookwood “hereby grants to the said [Trust] the exclusive rights of burial reservation (sic) for future burial in perpetuity … in the grave site numbered Reserved Allotment No. 3573 in the Company’s books and measuring nineteen acres – as plan attached – subject to the rules and regulations of the Company…” (There is then a printed sentence dealing with memorial stones and the like which I do not need to recite.) The document then states (in printed and, in the case of the date, typed-up form) “As witness the Seal of the Company this twentieth day of January 1983”. Spaces were left for the signatures of, respectively, a director and the secretary of Brookwood. The original top copy of the document was before me. The space for Brookwood’s seal shows the embossed impression left by what I assume was Brookwood’s seal. The space for the two signatures is blank: in other words, no one had witnessed the affixing of Brookwood’s seal. The result, indeed the plain result, is that on its face the document does not constitute a deed any more than any engrossed document purporting to be a deed can constitute a deed in the absence of due execution and delivery.

That is not the only problem with 1723A. Another is that it refers to a plan (of the 19 acres) but there is no plan attached and no-one has been able to identify a document, contemporary with the instrument, which could plausibly be said either to be that plan or a copy of it. This assumes that there was once a plan.

There are other difficulties. First, there is the number of the “deed”, namely 1723A, and the reference to the reserved allotment number, namely 3573. Brookwood maintained a register of deeds which, not surprisingly, is in chronological order with the deed number determined by the order in which the deeds are dated. According to that register, deeds granted in January 1983 bore deed numbers starting with 1531 on 4 January and reaching 1547 by 26 January. 1723A, dated 23 January 1983, is way out of sequence. Second, the register of chronological grants contains no reference to 1723A (or 1723a). Third, there was a deed bearing the number 1723 (without any suffix). This was for a deed of grant dated 8 February 1984 (the following year). Interestingly, it was in favour of the Trust. It was for the grant of 54 burial plots.

Brookwood was (and is still) obliged to maintain a register of allotments. The provisions of the Cemeteries Clauses Act 1847 required it to do so. The original register – the Reserved Allotments Book (the “RAB”) - for the relevant period was in evidence. The RAB contains an entry for the grant numbered 1723. It is dated 11 January 1984 (a month before the date of the deed itself) and records that a payment of £2,500 was made for the plots. It appears that the allottee was originally shown as the Trust but that at some later date the name of the Trust was tippexed over and RG’s name and address substituted. The substituted name and address (and most of the other entries) were in the handwriting of Mary Cockram. Ms Cockram could not explain how this change of name had come about or when or on whose instruction it had occurred except that she would only have acted on someone’s instruction and not on her own initiative. The point about the grant of 54 burial plots in February 1984 is that, on the face of it, there could be no sense in the Trust acquiring (and paying for) burial plots in early 1984 if, as a result of an agreement reached between it and Brookwood a year earlier, it had already agreed to acquire 19 acres of burial rights for £25,000. There could even less sense in doing so if, as the Trust maintained before me, it had received a grant for the 19 acres (either by way of 1723A or 1723a) and paid £25,000 for the grant of such rights. There could be no sense at all in doing so if, as I understood to the case, the 54 plots were within the area which the Trust claimed was the 19 acres. Fourth, the presence of a lettered suffix was, on the evidence, either unique or at the very least highly unusual. There was no obvious explanation for the addition of the “A” (or for that matter the “a”) after 1723 except to differentiate it from the grant numbered 1723, which however bears a much later date and no explanation as to why it was necessary to resort at all to the use of a lettered suffix rather than give to the deed the next available number at the time it was purportedly granted.

Fifth, there is a problem about the allotment number, namely 3573, given to the two purported deeds of grant. It is clear from the RAB that allotment 3573 was originally reserved for somebody called Syed. A grant number of 1555 was assigned to it. The reservation for Syed appears in the RAB between an allotment numbered 3572 and with a grant numbered 1543 (the date is unclear but it followed an allotment numbered 3571 dated 14 January 1983) and just before an allotment numbered 3574 dated 3 February 1983 and with a grant numbered 1555. The entries were, I was told, in Mr Dally’s handwriting. Moreover it appears from a note written across the entry stating “not paid cancelled 6.7.83” which is in Ms Cockram’s handwriting that the original entry in favour of Syed was cancelled. It is to be inferred that the allotment number, though not the accompanying grant number, was used instead for the replacement entry which appears on the opposite page, is out of chronological sequence and is dated 20 January 1983. In the column for that replacement entry headed ‘name’ the following appears: “Freehold Mr R H Guney”. Those words, which are not in Ms Cockram’s handwriting, appear to have replaced some earlier wording. In the next column, headed ‘space’, the following appears: “19 acre piece of ground both sides of old railway”. In the next column, headed ‘where situated’, is written: “From Long Avenue to main entrance to include Bagh-e-Zehra”. The latter looks to be a reference to an area of land marked on some at least of the plans as M7. In the next column, headed ‘price’, is written “£25,000 in instalments. Paid in full.” In the column headed ‘grant number’ is “1723(a)”. In the ‘remarks’ column there appears the following: “Interment fees only to be paid into company”. Most of these other entries are in Ms Cockram’s handwriting. The significance of all of this is that the replacement allotment could not have been earlier than 6 July 1983 when the original entry was cancelled: it could not therefore have been as early as January 1983.

Sixth, Brookwood’s accounting books (in evidence before me) do not record any payment of £25,000 by the Trust in January 1983. I heard evidence relevant to this from Mr Allen. As mentioned earlier he acts as external accountant for Brookwood. He has done so for nearly 40 years. He has worked under several regimes. These included when Mr Dally and RG were each in control. Mr Allen’s working papers (which were in evidence) do not record any payment by the Trust to Brookwood of £25,000 in January 1983. Nor do they record any outstanding debt due by the Trust to Brookwood at Brookwood’s accounting year end, namely 31 March 1983. They do record a sale of land for £25,000 but that, it was common ground, involved someone quite separate from the Trust. Mr Allen said that he had been carefully through his files and had found no reference to any grant of 19 acres to the Trust (or to its Funeral Service offshoot). He said that in those days (1983) £25,000 was “quite a significant sum” and that it was “unlikely” that he would not have known of such a transaction if it had taken place. He also thought that Mr Dally would not have handed over a deed of grant for 19 acres unless he had been first paid in full. No-one else who gave evidence had any recollection of Mr Dally mentioning the existence of any debt due by the Trust to Brookwood.

Seventh, the carbon counterfoil for the 1723A “grant” is orange in colour. (The top copy of the grant would be on white paper and the counterfoil was the sheet below and which, on completion of the top copy, would carry whatever had been inserted on the top copy.) The evidence satisfied me that until the end of the first week of July 1986 the counterfoils were blue in colour. It was only from 8 July 1986 that orange counterfoils were introduced. So the grant cannot have been as early as January 1983 which is the date typed on 1723A.

The inference from all of this is irresistible: 1723A was not prepared until a considerable time after the date it bears and this could not have been earlier than July 1986. By then Mr Dally had sold out to RG. If therefore there was some understanding that the Trust should have 19 acres of reserved burial rights it is very unlikely to have been before that time and could have been very much later. If there was no agreement about the 19 acres in 1983 it explains why the Trust would have been willing to pay £2,500 for 54 burial plots in January 1984.

As I have mentioned 1723a first came to light in the course of these proceedings. This was when the first defendant produced it in June 2013. I was told that it had been found among the Trust’s papers. This document has the appearance of a completed grant: unlike 1723A, Brookwood’s seal is attested by two signatures. But so far from helping to elucidate matters, the unexpected appearance of this document almost five years after the appearance of 1723A served only to deepen the overall mystery. The signature on it, purporting to be that of a director, is indecipherable and no-one was able to identify whose it might be: it was not that of any known director of Brookwood from the time of Mr Dally onwards. The handwriting experts were agreed that there was “strong positive evidence” that the signature was not that of either Mr Dally or the other known director, a Mr Munson, at the date that the document bears. The other signature was that of Ms Cockram. In her evidence she said, and I accept, that it was hers. The trouble is that, according to the expert handwriting evidence (Dr Audrey Giles and Mr Stephen Cosslett), the signature exhibited features inconsistent with Ms Cockram’s signature as it appeared in 1983. Dr Giles thought it could have been from the late 1990s and gave reasons for that opinion. Ms Cockram accepted that it was very unlikely that she signed the document before 1986 and accepted also that her signature in later years differed from what it had been before that date. Ms Cockram was at a genuine loss to explain when and in what circumstances she came to sign that document.

There is another difficulty about the appearance of Ms Cockram’s signature, whenever it might have been written. That is that the attestation required the signature of Brookwood’s Secretary. I suppose that of a second director would have sufficed: I was not taken to Brookwood’s articles of association. But Ms Cockram was neither. She fulfilled a secretarial role within the business but was never an officer of the company. The result therefore is that this alternative “deed” is as much unsigned as the 1723A “deed”. Each has Brookwood’s seal but the affixing of that seal was not authenticated by the signature of any of its officers.

There are other problems about 1723a. The consideration for the grant is stated simply to be “paid in full”. There is no indication of what it is. The grantee is expressed to be “UK TI Funeral Service”. Accepting that TI Funeral Service was an offshoot of the Trust, why make the grant in that name rather than in the name of the Trust? This was not explained. The burial rights supposedly granted by the deed are expressed to be “reservation for future burial (RA 3573)”. This is presumably a reference to the replacement entry against that number in the RAB. But the description of the site of the burial rights supposedly granted by the deed is inconsistent with the reference to RA 3573. Whereas the reference in 1723a is to areas “from Long Avenue to entrance” (and no more) the entry in the RAB specifically includes “Bagh-e-Zehra” which is an area which lies well to the south of Long Avenue: the “entrance”, which I understood to be a reference to the entrance to the cemetery by Brookwood Station, lies to the north of Long Avenue. There is no reference in 1723a to any acreage, much less to any plan. In short 1723a is not comprehensible without reference to the entry in the RAB but is not wholly consistent with that entry. It is a small point, perhaps, but the entry in the RAB shows RG as the intended allottee whereas 1723a shows UK TI Funeral Service as the grantee: the two are not the same.

There is a further point to be made in support of the conclusion that 1723A and 1723a did not come into existence until after RG took control of the cemetery (and therefore long after the date that these two documents bear). The evidence suggests that when Mr Dally was in control of Brookwood, the practice appears to have been, when reserving areas for the exclusive use of some particular group (areas, that is, that are capable of embracing more than just one or more identified burials plots), to set out in writing what the agreement was which was reached in the matter. For example, my attention was drawn to a deed dated 20 November 1981 between Brookwood and the Demirel Maritime Corporation whereby in consideration of £20,000 an area of 0.8 acre (as shown on an attached plan) was set aside for exclusive burial use. Brookwood covenanted to permit and facilitate the interment of the remains of such persons as the Corporation should require while the Corporation covenanted to observe the rules and bye-laws made by Brookwood for the conduct of the cemetery. A similar arrangement was an agreement made on 21 August 1983 (only seven months after the purported grant in January 1983) between Brookwood and the trustees of the London Mosque (no connection to the Trust) whereby in consideration of £4,000 Brookwood reserved two fifths of an acre, as identified on a plan attached to the agreement, for the use of the trustees for the burial or disposal of the bodies or cremated remains of such members of the Mosque and of such other persons of a like religious persuasion as the trustees should permit or require and for no other purpose. The agreement went on to set out rights and obligations on the part of Brookwood and of the trustees. A term prohibited Brookwood from granting exclusive burial rights in the area in question to any person. Yet another agreement, this time in the form of a 999 year term of years dated 3 September 1984, was between Brookwood and the trustees of the Czechoslovak Ex Servicemen’s Brookwood Trust. This concerned a deed of grant numbered 1738 (and dated 8 March 1984) for what was described as “burial site numbered RA3105”. In consideration of £3,500 the trust was granted the exclusive use of the site numbered RA3105. According to the attached plan, it measured 75 ft by 52 feet (or, roughly, 0.09 acres). The lease set out a series of obligations binding on the trustee lessees. They dealt with the use and maintenance of the site. There was nothing similar in evidence relating to the Trust’s 19 acres claim. Brookwood’s records contain no indication of or correspondence about any grant of 19 acres of the kind one might expect if such a grant made been made or, if not actually made, then agreed to be made.

No less noteworthy is that, aside from the belated production in June 2013 of 1723a deed, not one scrap of evidence has emerged from the Trust’s records, whether in the form of letters or other means of communication, accounting entries or trustee minutes, to suggest that the Trust had acquired or had contracted or was negotiating to acquire a 19 acre (or any other) area for its exclusive burial use, much less that it had paid or bound itself to pay £25,000 for such privilege. And there was no evidence from any living trustee, alive at the time that any such grant might have been made or agreement entered into, to back up the claim. The most that there was came from the evidence of the fifth defendant (a brother-in-law of RG and now quite elderly) who had been a trustee since the inception of the Trust. Without any disrespect to him, he could say no more than that RG had the Trust’s authority to act on its behalf and that he was aware that the Trust had made what he described as a couple of substantial purchases of burial rights at the cemetery. When cross-examined about this he was unable to say when the first purchase occurred but seemed to think that RG paid a deposit of around £3,000 for such rights in either 1983 or 1984 or 1985 when some plots were acquired, in part for family and friends and in part for others as a Muslim burial ground. He thought that the second purchase involved a deposit, again of about £3,000, but was unable to say when or whether other payments were made. He was unable to say where the plots were. He said that he did not see any documents in connection with these transactions. It was all left, he said, to RG to handle. This evidence was entirely consistent with the acquisition by the Trust in 1984 of the 54 burial plots for the sum of £2,500 and with RG’s ambition some years afterwards to acquire for the Trust a much larger area (a matter to which I return later).

This brings me back once more to the evidence of Ms Cockram. I have already mentioned that she had no explanation for the circumstances in which the name of the allottee of the 54 burial plots had come to be altered in her handwriting and could not recall how her signature came to be on 1723a although she accepted that it looked very much as if it was in a form which long post-dated 1983. A striking feature of her first witness statement was her apparent conviction that the Trust, acting by RG as its chairman, had acquired from Brookwood, acting by Mr Dally, exclusive burial rights over 19 acres. As she stated at paragraph 5: “I recall that [RG] paid the sum of £25,000…The procedure was that Mr Dally, having completed negotiations, gave me instructions which I followed. Therefore he [i.e. Mr Dally] would have told me that the money had been paid so that I could issue the deed.” These events, according to this part of Ms Cockram’s evidence, are all firmly dated to a time when Mr Dally is in control, that is, before 1985. Aware that 1723A is unsigned she speculated that that it was not the original. Aside from that possibility, she was unable to explain the reference in 1723A to a plan. She was unable to recall other occasions when deeds of grant in their customary printed form referred to a plan: it was unnecessary, she said, to refer to a plan because Brookwood’s other records would indicate the location of the burial plot. Later in her statement she thought that, as the entry in the RAB for (replacement) allotment 3573 indicated, the £25,000 referred to as the price for the 19 acres had been paid by instalments. She was cross-examined about this. She said that she could not recall when the instalments were made. She was unable to say why there was no record of any receipts of instalments in the cash book entries for 1983 and had no recollection of Mr Dally saying to her when he gave up control of Brookwood in 1985 that anything was owed by the Trust. She had no explanation for the apparent use in the RAB of the same allotment number for the 19 acres and for the allotment dated 20 January 1983 which had been used for the entry, cancelled only in July 1983, in favour of Syed or for the place in the RAB where the replacement entry appears. She had no explanation for the fact that a book in which a record was kept of all deeds of grant contained no mention of any grant numbered 1723A or 1723a. She was unable to say why Brookwood would have made a grant to the Trust in 1984 of 54 burial plots when, if it was the case, there had been an earlier grant of 19 acres which remained to any extent unpaid. As to the identity of the 19 acres all she could say was that it was a “Muslim section”. She said that she had not seen a plan showing it and conjectured merely that there was a plan. She believed that the 19 acres were a single composite area rather than a series of separate parcels (so contradicting the pleaded plan which shows the 19 acres as spread between several separate parcels) but was unable to recall how she derived this understanding. She accepted that, contrary to what she had believed to be the position (as mentioned in her first witness statement), burial plots within what she thought was the 19-acre area had been sold by Brookwood otherwise than through or on account of the Trust but could not explain why.

It so happens that after the initial exchange of witness statements (including Ms Cockram’s) there was a significant change in the Trust’s position regarding payment for the 19 acres. This was to refer to various payments shown in its records to have been made to Brookwood between January 1992 and March 1994. They were the subject of comment by Ms Cockram in a second witness statement. They were (1) a cash receipt dated 21 January 1992 for £3,000 where she had written (in a different ink) “deposit on 19 acres land”; (2) cash book entries dated 19 and 28 February 1992 for £5,000 and £6,000 where she had written (in pencil in contrast to the ink used for the surrounding entries) “owed us by UKTIT”; (3) a cash book entry dated 24 March 1994 for £5,000 and described in the entry as “towards Purchase of Muslim section”; and (4) a cash book entry dated 27 June 1994 for £4,500 and described in the entry as “towards Purchase of Turkish cem[etery]”. Ms Cockram seemed to think that they related to payment for the grant in 1983 of the 19 acres of burial rights, implying that the sums in question had been outstanding in the meantime. I found this very unconvincing. I will return later to those (and other) payments which the Trust belatedly sought to ascribe to delayed payment by it for the grant of the burial rights so many years earlier. At this juncture I need only say that, while I do not doubt for a moment that Ms Cockram was endeavouring as best she could she account for entries in her handwriting made 20 and more years ago, it is unreal to suppose that she could have any real recollection of what they related to. It was obvious, and in no way a criticism of Ms Cockram to say, that her recollection of events, many of them of a very humdrum nature, was plainly fallible: for, example, she was adamant in her witness statement that during the time she worked for Brookwood the carbon copy of the burial grants deeds were all blue, not orange. Yet the evidence was clear that from July 1986 the carbon copies were orange and not blue in colour. Ms Cockram had simply forgotten that that was so. The cash entries from the early 1990s which Ms Cockram sought to explain were just a very few out of a great many entries in her handwriting. She had no recollection of those entries when she came to make her first witness statement and it could be no more than supposition on her part that they related to a transaction which she continued to believe had been entered into 10 or so years earlier when Brookwood was under quite different control and when, as I have pointed out, there was no suggestion either in Brookwood’s own books of account or, for that matter, in the Trust’s that any payment for the supposed grant was outstanding. In fairness to Ms Cockram her evidence that these payments related to the 19 acres of reserved burial rights was no more than a deduction on her part: “I deduce” that that was their purpose was the way she described the matter in her second witness statement. In truth, however, deduction was really no more than a guess. In so far as the entries and others which were relied upon (although these others made no reference either to the Trust or to payment for any purchase) might have related to a transaction between Brookwood and the Trust the explanation for them could as easily be found in the matters with which I shall deal when I come to the evidence of Mr Tinling and Mr Potter.

There are further features of 1723A and 1723a which I should first mention. One is that although the 19 acres were supposed to be in a prime location within the cemetery, the consideration for the reservation was supposedly only £25,000. Yet, as the evidence before me showed (to a sample of which I have already referred), other much smaller areas were being reserved for prices in the early 1980s which far exceeded the price per acre (roughly £1,300) said to have been agreed for the 19 acres. Another, which emerged in the course of the evidence and which I have touched in my review of Ms Cockram’s evidence, was that if there had indeed been a grant in 1983 of reserved burial rights extending over 19 acres and if £25,000 had indeed been paid for this privilege there could be no good reason why, subsequently, burials within the 19 acres should have resulted in payment to Brookwood of not just the interment fee but also of the price for the plot. I understood that payment for the plot as well as for the interment occurred where payment was by cheque in that there was no evidence to suggest that Brookwood then accounted to the Trust for that element of the payment it had received which represented the cost of the burial plot. Nor was there any such indication where, as I gather, happened sometimes payment was made in cash. Moreover, as I have mentioned, there was nothing forthcoming from the Trust to suggest that it had received any such payments. In this connection it is to be noted that Brookwood maintained meticulous accounting records (two sets of cash books and, so far as I could discern, a rigorous preparation of the accounts by Mr Allen and others). It was faintly suggested that where the payment made for the burial was in cash, RG might have spent some of it for purposes connected with the Trust or otherwise accounted to the Trust for that element of the payment represented by the price of the plot. But this was at best speculation.

I come now to other contemporary evidence which casts doubt on the existence of a 19 acres area reserved for the Trust. A witness statement by David Hollis, admitted into evidence under a Civil Evidence Act notice, was before the court. Mr Hollis is a retired Chartered Surveyor. He stated that in the 1980s and 1990s he did work for the cemetery. In particular, he was asked by RG in 1991 to carry out a survey of the cemetery to establish the number of burial plots that were available for future use. He stated that he had a number of meetings with RG in connection with the survey. The plans which Mr Hollis made of the section of the cemetery contain references to other reserved areas but not to any area of 19 acres set aside for the Trust. Interestingly, one of the areas shown on Mr Hollis’s plan was for 912 square metres (the equivalent of 0.225 acre). That small area is identified on a schedule which Mr Hollis produced as plot 139. It has the reference “UK TI Funeral Service”. Mr Hollis stated that he had no recollection of being told by RG that the Trust (or UK TI Funeral Service) had exclusive burial rights over a 19 acre area. He stated that such a reservation would have had a significant effect on his survey. If 19 acres had been reserved and paid for by the Trust it is, to say the least, odd that RG should not have mentioned it but, instead, told Mr Hollis of a much smaller area set aside for the TI Funeral Service. But there was no opportunity to cross-examine Mr Hollis and I must be wary before placing too much weight on his short witness statement.

Next, there was the evidence given by Michael Tinling, a retired solicitor. Mr Tinling had been a partner in a well-known Surrey firm of solicitors in the 1980s. He had acted for Mr Dally when the latter controlled Brookwood and continued to act when RG acquired control in 1985. He had no recollection of any grant to the Trust (or to UK TI Funeral Service) of the grant of exclusive burial rights over a 19 acre area. By itself that evidence might not have carried much weight except that in June 1993 he wrote to RG (a copy of the letter was in evidence) in which he referred to a telephone conversation which the two of them had had a few days previously regarding the incorporation of a company, or the setting up of a trust, under the name “Brookwood Turkish & Moslem Cemetery and Funeral Services” which would “take a transfer of approximately 19 acres of land at a purchase price of £20,000.” The letter then continued: “I understand that the land in question is that which we originally intended to transfer to the Brookwood Moslem Burial Company in 1989. At that time, we prepared a transfer of land near Brookwood Station. I enclose a copy of the plan which we used at the time. Does this still correctly identify the land which you wish to transfer?” Mr Tinling was unable to recall the details of or background to this letter or what subsequently happened except that he believed that RG raised the matter again some years later. The plan attached to the letter had become detached from the copy in evidence. A plan on which the date 11 January 1989 and RG’s name are written in manuscript was shown to him. Parts of the cemetery immediately adjoining the northern boundary of cemetery where it abuts the main line railway are coloured yellow on that plan. Mr Tinling was unable to say if that was the plan to which his letter referred. In any event, the tenor of Mr Tinling’s letter was to the effect that a transaction involving 19 acres was in contemplation, not that it had taken place. Moreover it was for £20,000 and seemed to involve an out and out transfer. It is conceivable that this contemplated transaction had nothing whatever to do with the 19 acres supposedly reserved for exclusive burial use by the Trust 10 years earlier but the coincidence in area is striking. There is no evidence to indicate that any transfer of land took place although in May 1997 Mr Tinling did acquire for RG an off-the-peg company with a view to a change of name to Brookwood Turkish Cemetery Company Limited. There is nothing to indicate that the matter was progressed beyond that point.

Mr Tinling’s evidence chimed with that of Mr Potter (adduced by the defendants). In his witness statement Mr Potter who was a solicitor who did work for RG said that he acted for him on various matters, got on well with him socially and spent time with him at the latter’s offices in North London. He ceased to act for him in 1989. Interestingly, although he was instructed in relation to a possible sale of Brookwood, Mr Potter’s statement, while mentioning that RG “showed me around the cemetery including the War Graves Commission site and the Muslim areas,” makes no reference to the Trust. What he does mention is RG’s proposed sale of Brookwood in 1989. Mr Potter was instructed in the matter. The significance of this is that, as the statement and some exhibited correspondence shows, RG intended, if the sale proceeded (in fact it did not), to exclude certain areas,, the precise areas of which Mr Potter was unaware. In a letter dated 14 February 1989 to the intending purchaser’s solicitors, Mr Potter referred to the fact that “the land requirements for the Turkish burials will be transferred to another company…” Mr Potter went on to say in his statement that RG drove him around the cemetery when instructing him in the proposed sale, and pointed to various areas to be excluded from it with a view to transfer to a new company. Mr Potter stated that RG referred to those areas as “the Muslim” burial grounds. The emphasis in the statement appears to have been on what RG intended in the future to do in the way of setting aside land for Muslim or (if different) Turkish burials, not on what (if anything) had already been set aside for that purpose.

The evidence of Mr Clarke, the author of the guide to the cemetery, was also instructive. In it he stated that through his research for the guide and from his discussions with RG he was aware that the Trust “had rights of burial upon areas of the cemetery and that these rights were acquired by [RG] on their behalf prior to his purchase of Brookwood Cemetery from Mr Dally…in 1985” From all that is now known about when the 1783A and 1783a instruments came into existence (i.e. not before 1986 at the earliest) those rights can only refer to the 54 burial rights that the Trust had indeed acquired, under grant 1723, in February 1984. But Mr Clarke went on to say that RG explained “where the 19 acres were situated that were held under the Deed of Grant dated 20 January 1983”. That comment was puzzling as Mr Clarke confirmed, when cross-examined, that RG never showed him that grant and that he only became aware of it after RG’s death. Mr Clarke nevertheless made clear that, from his conversations with him, RG did not say that the Trust had been given burial rights over 19 acres, merely that there was some sort of understanding that there should be burial for deceased members of the mosque run by the Trust. He also explained how RG would point out to him the various Muslim burial areas and that he, in turn, would point them out to visitors when, as he began to do in and after 1989, he conducted guided tours around the cemetery. He said that after Ms Holliday produced 1723A to the court he was asked by the third defendant’s wife, Melanie Kutcher, to search the cemetery strong room to see if the plan could be found to which it referred. He conducted a search but no plan was found. He went on to explain that some time later he was asked by the third defendant to “define the area of land referred to in the [1723A] Deed of Grant and the Reserved Allotment Book by taking the information contained in the Deed and in the entry in the Reserved Allotment Book and any other information that I had which might assist.” It was as a result of Mr Clarke’s efforts, based on the information from those two sources and from what he had understood from RG to be the location of what he referred to as “the key Muslim grounds”, including where Suheyla (RG’s wife) had been buried in 1992 and the location of another Turkish burial plot, that he came up with the pleaded plan. (For what the point is worth, the pleaded plan differed from a plan which Mr Clarke marked up in the course of his cross-examination to show the location the 19 acres. I was also told that, when scaled up and measured, the areas marked on the pleaded plan exceed 19 acres in area.) In any event it struck me that to be guided in this exercise by the location of the Muslim grounds was very questionable. This is because, as Mr Clarke’s guide book and the other evidence before me showed, Muslims have been buried in the cemetery going back very many years and there are a number of different Mosques, Muslim sects and Muslim national groups that bury their dead in the cemetery: the Turkish community originating from North Cyprus is only one such group. It was not obvious, therefore, why the Muslim grounds in general should provide a guide to where the 19 acres were to be found. But the main impression conveyed by Mr Clarke’s evidence was that the task he was asked to carry out to identify the location of the 19 acres was little better than an exercise in guesswork. I do not see that it forms any reliable basis for identifying the location of the 19 acres said to be set out on the plan attached to 1723A. This assumes, of course, that there was originally such a plan.

I should refer to the evidence of Melanie Kutcher. As I have mentioned, she is married to the third defendant. She claimed to recall RG pointing out to her and her husband “that part of the cemetery which he told us belonged to the Turkish Islamic Trust.” She said that it consisted of “parcels of land that ran adjacent to the railway line.” She said that RG called it “the trust land” and that it was “where the Muslims were buried and that the trust owned it for ever.” I do no doubt that Ms Kutcher believed that this is what happened. The difficulty which I have about this recollection is that Ms Kutcher was claiming to recall events which occurred as long ago as 1984, on her very first visit to the cemetery. As she explained, she was seeing a place which was entirely new to her, was seated in a car at the time and had no particular reason to recall the details of this journey after so very many years. It could also be pointed out that RG is unlikely to have stated that the Trust owned the land: at no stage has the Trust owned any of the land at the cemetery. In all the circumstances I have felt unable to place any reliance on this supposed recollection.

Be all that as it may, Ms Kutcher’s belief, as a result of what RG had told her, was that by the time he acquired control of Brookwood (in 1985) he had already obtained rights to bury Turkish Muslims on what she understood to be 19 acres although she never saw any deed of grant in relation to any such area until produced by Ms Holliday in the course of the earlier proceedings. She said nevertheless that it was common knowledge that such rights existed because RG disseminated the fact through the funerals he brought to the cemetery and by means of the funeral services operated through the Trust. She said that between 1995 and 1999 she worked for RG at his Green Lane offices in North London. She said that RG often mentioned to her the land which, as she recalled, RG said belonged to the Trust. She said that in 2007, following RG’s death, she went to work at the cemetery in 2007 where she remained, effectively in place of Ms Holliday, until the latter took control of Brookwood and resumed her management of the cemetery in 2012 following the conclusion of the earlier proceedings. Ms Kutcher accepted that while she worked at the cemetery between 2007 and 2012 she did not recall any occasion when Brookwood had accounted to the Trust for any of the payments it had received. In so stating she assumed, but could not say from her own knowledge, that payments for burials organised by the Trust would be confined to the interment fees and that the Trust would retain that part which represented the cost of the burial plot. She said that she knew of a folder which was kept in the office that related to the Trust and the Trust’s funeral service but accepted that this related to the 54 plots held by the Trust. It did not seem to me that Ms Kutcher’s evidence assisted the Trust’s case.

The evidence also discloses that in October 2012 there was an attempt by a chartered surveyor called John McGuffog to say, by reference to a marked-up plan, where the 19 acres might lie. In a letter to the third defendant and his wife (Ms Kutcher) on behalf of Brookwood (written at a time when control of Brookwood was still with RG’s offspring) Mr McGuffog said that the plan had “no legal standing whatever” and was very “rough and ready.” The plan attached to that letter was missing. In August 2013 Mr McGuffog sent to Brookwood’s solicitors (by now under the control of Ms Holiday) what he believed was a marked-up copy of that earlier plan. In his covering letter Mr McGuffog stated that his work the previous year had been to indicate what the 19 acres could represent from the description contained in 1723A and the description under allotment 3573 in the RAB. In effect he was performing the same exercise as Mr Clarke had carried out. Not surprisingly, given the paucity of description, what Mr McGuffog produced differed from what Mr Clarke had produced. And those two plans differed again from the attempts made by witnesses in the witness box to show where the 19 acres were.

I should also refer to the evidence of Gonul Guney, the first defendant. As I have mentioned she is now chairman of the Trust. She is a solicitor who qualified in 1997. She has been diligent in seeking to put the Trust’s affairs in order (her second witness statement describes the disorganised state in which she found them) and in seeking to assemble evidence in support of the Trust’s claim to the 19 acres of burial rights. She had no personal knowledge of what might have been agreed between Brookwood and the Trust in the early 1980s and, as set out earlier, was unaware of any purported grant of burial rights until Ms Holliday produced 1723A at the trial before Judge Kushner QC. Nor was she aware of 1723a until she found it among the Trust’s papers in the course of these proceedings. Her first witness statement was mostly devoted to what happened at the trial before Judge Kushner and to the history of the Trust and its involvement with burials at Brookwood cemetery so far as she was able to piece it together from her researches. She frankly admitted that she was never intimately involved in the affairs of the Trust before her father’s death (or I inferred with Brookwood) and accepted that there had been no payment by Brookwood to the Trust (and no payment claimed by the Trust) in respect of burials within what the Trust claimed was the 19 acres of reserved burial rights and that this had continued to be so even after 1723A was first produced in 2008. She accepted that all income generated by such funerals was paid to and kept by Brookwood. She accepted that, despite diligent searches, no correspondence which related to the 19 acres had so far been found from among the Trust’s papers. She accepted that the Trust’s accounts for the years ended 21 March 1990 to 1995 contained no reference to the 19 acres either as an asset or, if money was due (for example in respect of the alleged consideration of £25,000 for any grant of rights), as a liability.

This brings me finally to the evidence of Ms Holliday. I come to her last because, although she was the principal witness for Brookwood (and is its controlling shareholder), her evidence was in many ways the strongest that there was that there might have been some grant to the Trust of burial rights over an area of 19 acres of the cemetery. Indeed, in his written closing submissions, Mr Meares placed considerable reliance on her evidence (both at the earlier hearing before Judge Kushner QC and at the trial before me). As I have pointed out it was she who produced 1723A so that it came into the possession of the defendants. In her evidence to Judge Kushner QC she seemed certain that RG purchased for the Trust 19 acres of the cemetery (separate from the 54 plots which she believed were bought and held by RG personally) and that it was this area which was the subject of the 1723A grant. She even mentioned a plan which, as she stated to that court, “sets out the whole area which was purchased by the [Trust]”. She did not have the plan with her but, when asked, felt able to identify to that court where the 19 acres lay. She did not shy away from any of this when she came to be cross-examined. She stuck to her recollection of RG having told her that the 54 plots belonged to him although, following the examination by the handwriting experts in the course of these proceedings, she now realised and accepted that the grant had originally been to the Trust. She recalled, as she had stated in the earlier proceedings, that RG had wanted to sell the cemetery, while retaining the 19 acres which would be held by a charitable trust company, and had engaged in negotiations to this end. She said that RG sent to the Land Registry a small scale plan showing the intended 19 acres, intending in due course to prepare a larger and more accurate plan. But the matter never proceeded and, as she put it, the actual identity of the intended 19 acres was never settled. It seemed also that there was a problem over whether the legislation governing the cemetery would have permitted a freehold exclusion of some of the land. She said that the plan to which she referred in her evidence to the earlier court was one of Brookwood’s general plans (copies of which were later produced). She stated that what she understood to be the 19 acres were the lands marked M1, M2, M3, M4, M7 and certain Muslim family plots (as shown on a roughly drawn plan at Trial Bundle 7 page 235). I was told that the areas so identified exceeded 19 acres. She was asked to mark up a further plan showing the areas. This she did. They included three areas (Bagh-e-Zehra, Ahmadiyya and London Jamaat) which are not shown on the pleaded plan or, I think I am correct in saying, on the other plans which have been referred to as showing where the acreage lies.

In his closing submissions Mr Meares referred to this evidence and reminded me that Bagh-e-Zehra was mentioned as being within the 19 acres in the replacement entry 3573 in the RAB. He submitted that if the existence of the other two areas created an uncertainty it would be open to the Trust to resolve the uncertainty by accepting that these two areas should be excluded. I am unable to accept the submission. It fails to grapple with the underlying issue, namely whether the 19 acres were ever identified, even assuming that the evidence supports the existence of an underlying agreement to make a grant of exclusive burial rights within such an area and the making of payment for the reservation.

The fact that, like others, Ms Holliday may at one time have believed that a grant of burial rights over 19 acres had been made, or at least that an agreement existed that there should be such a grant, does not detract from the need to adduce credible evidence indicating, on a balance of probabilities, either that such a grant was made or that an enforceable agreement was entered that into that there should be such a grant and that the terms of the agreement are sufficiently precise to enable the court to order that it to be carried into effect. Belief alone, however strongly articulated, is not enough. There must be credible evidence of what exactly was agreed and when and by whom. The Trust’s difficulty has been in mustering that evidence.

The result of all of this is that it is quite impossible to identify with any degree of certainty where, assuming they were ever reserved, the 19 acres are situated. There was general agreement that the 19 acres were in the general vicinity of the entrance to the cemetery by Brookwood Station but that was as far as any agreement went. I have referred to the various attempts, both in the course of the trial and earlier, to identify where the acreage is to be found. None of the attempts coincided with the other. In truth, the attempts were no better than guesses made, I do not doubt, in all good faith. But as an exercise in seeking to determine what the land was to which, if otherwise valid, either of 1723A and 1723a referred, it was, in my judgment, little short of hopeless.

Nor, in my judgment is there satisfactory evidence that £25,000 was ever paid for the grant of any rights over the 19 acres. A scrutiny of Brookwood’s accounting records for the relevant period in 1983 revealed nothing. There was no indication in either Brookwood’s annual accounts or in the Trust’s (such as were available) to indicate either in the one case that a debt was owed to it which might be attributable to the £25,000 or, in the other case, that a sum of that order was owed by it. The RAB purported to show that payment had been received. In so recording (the reference is in Ms Cockram’s handwriting) I have no reason to think that Ms Cockram was doing other than faithfully and honestly noting down what she was told to record. As I have mentioned Ms Cockram struck me as a diligent and entirely honest person who devoted many years of efficient service to Brookwood. But what she was told to note down is one thing; whether any payment was actually made is quite another.

As explained, the Trust’s case on payment for the 19 acres underwent a dramatic change shortly before the trial when it identified various payments to Brookwood made between January 1992 and June 1994 (as appearing in Brookwood’s cash books and other records) which, it claimed, represented payment for the grant made by Brookwood to the Trust 10 or so years earlier when Brookwood was still under Mr Dally’s control. Ms Cockram referred in her second witness statement to some of those payments and thought that they related to what she believed was the grant made in 1983. I have commented on this already. Over and above the particular entries to which Mrs Cockram referred there were others which are relied upon as payment for no other reason than that they were made either by the Trust or by UK TI Funeral Service or by RG. The only thing the payments have in common is that they are all for quite large round-figure amounts (the largest is for £10,000 and was made by RG and the smallest is for £1,000 and was made by the Trust). Added up the amounts, taken together, far exceed £25,000. However one calculates them the payments do not add up to £25,000. There is no reason, beyond speculation, to attribute them to the discharge of a contractual obligation entered into ten years earlier and no reason to attribute those that refer in pencilled comments appearing next to the entries to “deposit on the 19 acres” or towards “purchase” of the Turkish cemetery or of the Muslim section not to the purchase of any land, much less to the payment of a deposit towards an intended such purchase, but to the discharge of what had been outstanding under a transaction entered into years earlier. I cannot therefore accept that these payments assist the Trust.

The only safe conclusion which I can come to is that there is no evidence to indicate that payment of £25,000 was made for any supposed grant of burial rights dating back to the early 1980s.

Mr Meare’s fall-back position was that, if there was no actual grant of burial rights, there was at least an agreement that there should be such a grant and that the agreement is one which the court should now enforce. He submitted that the existence of 1723A and 1723a constituted evidence from which the court could infer the existence of such an agreement. He submitted that an instrument which is defectively executed may well be capable of taking effect as, or of being evidence of, an underlying agreement for the grant of the rights which it was the purpose of the defectively executed instrument to confer. Mr Meares drew my attention to what was said on this topic in Re Fireproof Doors Ltd [1916] 2 Ch 142 at 150 (Astbury J) citing Re Strand Music Hall Company (1865) 3 De G J & S 147 at 158 (Turner LJ) and to what Dillon LJ said in Rushingdale Limited SA v Byblos Bank SAL (1986) 2 BCC 99509. But whether a defectively executed instrument is in fact so capable must depend on whether it is possible either from its terms and the respects in which it is defective or from the other surrounding circumstances to deduce what the terms of the agreement were and whether the parties to it were intending to be bound by it.The difficulty which the Trust faces in the current case is that the existence of the unexecuted 1723A and of the defectively executed 1723a of itself says nothing about whether there existed any underlying agreement, enforceable in law, for the grant of the rights which those documents, if duly executed, would have provided. And without such an agreement it is of no assistance to the Trust to seek to rely on any of the authorities to which Mr Meares referred me.

Here it is far from apparent simply by looking at the terms of the two “deeds” what the terms were of the underlying agreement, assuming there was one, to which they were intended to give effect, let alone whether they implied the existence of any agreement. In the case of 1723A the identity of the 19 acres is at large. So also is it in the case of 1723a which does not mention either the acreage or the price paid. Reference to allotment 3573 in the RAB, while assisting with an understanding of the acreage and price in the case of 1723a does not assist as a means of identifying what land is intended except in the most general of terms. The fact that either in 1723a or by reference to the entry in the RAB it might be inferred that the consideration for the grant was £25,000 and that it had been paid is not sufficient. It is necessary in my view to have in mind the fact that neither “deed” was in fact duly executed and both bore manifestly incorrect dates, that 1723 A did not come into existence until July 1986 at the earliest and was not signed by anyone, and that 1723a was not signed by Ms Cockram until in all likelihood some time in the late 1980s if not later (and, not being an officer of Brookwood, almost certainly had no authority to do so) and it is impossible to say who the other signatory was or when he signed, much less that he was an officer of Brookwood with authority to attest to the affixing of Brookwood’s seal. In short the material is simply not present to enable the court to infer the existence in 1983 or thereabouts of some underlying and enforceable agreement to confer on the Trust exclusive burial rights extending to an identifiable 19 acres in the cemetery. In the absence of such an agreement there is simply no basis for requiring Brookwood to execute a new grant, much less to re-execute one or other of the two existing “deeds” as the amended defence and counterclaim seeks. It does not assist the Trust to argue, as Mr Meares sought to do, that the court may ignore a missing or incorrect date on a deed or that it is not open to a grantor from disputing the validity of his grant or (which amounts to the same) that he is estopped from doing so. Those arguments only get off the ground if there is credible evidence that a grant was made. There is no such evidence.

That still leaves open the possibility of an agreement made some years after RG took control of Brookwood. The difficulty here is that Mr Meares was unable to indicate when that might have happened. Another is the difficulty, explored earlier, of identifying precisely what land was intended. And there is an added difficulty. This is that such an agreement would almost necessarily have been made by RG with himself. For a uniform thread of the Trust’s evidence, such as it was, was that RG had its authority to act for it in its dealings with Brookwood and that he did so. And, of course, from the time that he took control of Brookwood in 1985 until his death in late 2006 RG was effectively Brookwood. It has not been suggested that there were others who acted for it in agreeing matters of the kind in issue in these proceedings. Although conceptually possible, the idea of an oral agreement made by A on behalf of X with himself on behalf of Y seems both unreal and unlikely. There was really quite insufficient material to support this possibility which, as I followed him, Mr Meares did not in any event seriously pursue.

The truth, I suspect, which the general drift of the evidence suggested, was that, quite independently of the 54 burial plots reserved and paid for by Trust in February 1984 (the subject of the undisputed grant numbered 1723 acquired when Mr Dally was in control of cemetery), RG conceived the idea, sometime after he acquired control of Brookwood from Mr Dally in 1985, to set aside an area of 19 or so acres for the exclusive use of the Trust. The general drift of the evidence further suggested that even if those 19 acres were ever identified the matter never progressed to the point of an actual grant although at some stage a clumsy attempt (in the shape of one or other or both of 1723A and 1723a) was made to give effect to this intention but in such a way as to give the impression that it had all happened at a time when Mr Dally was in control of Brookwood, perhaps so that the transaction would have the appearance of having been negotiated at arm’s length. It also looks as if the number 1723 was adopted on account of the fact that that had been the number of the actual grant to the Trust of the 54 burial plots. A suffix (“A” or “a”) was presumably considered appropriate to distinguish the intended new grant from the actual grant. It looks as if this was overtaken by the intended sale of a 19 acre area to a company set up for the purpose (and which Mr Tinling through his firm did eventually supply in May 1997) but this too was never carried to completion. The assorted payments, spread over the years 1992 to 1994 and relied on by the Trust as payment for the 19 acres of burial rights, might just as easily relate to the proposed sale as to a reservation of burial rights in its favour over land which would continue to form part of the overall cemetery in Brookwood’s ownership and under its control. Indeed, as discussed earlier in this judgment, the former seems the more likely explanation for those payments which are denoted in Brookwood’s records as being either “towards [a] purchase” or as a “deposit on 19 acres”.

I shall grant a declaration on Brookwood’s claim that the defendants (or such of them as are now the trustees), as trustees of the Trust, have no exclusive burial rights in an area of 19 acres of Brookwood Cemetery whether as purportedly granted by an instrument dated 20 January 1983 and numbered 1723a or as purportedly granted by an instrument of like date and numbered 1723a or as otherwise purportedly granted but without prejudice to any other grant upon which the Trust may be entitled to rely. The precise form of the declaration is matter I can discuss further with counsel. The aim is to preclude reliance by the Trust on either 1723A or 1723a but not, for example on 1723 (which granted the 54 burial plots and as to which there is no issue).

It follows that I shall dismiss the counterclaim.