Chaston & Anor v Chaston, Court of Appeal - Chancery Division, July 05, 2018, [2018] EWHC 1672 (Ch)

Resolution Date:July 05, 2018
Issuing Organization:Chancery Division
Actores:Chaston & Anor v Chaston
 
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Neutral Citation Number: [2018] EWHC 1672 (Ch)

Case No: 8BS0018C, 8BS0019C

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BRISTOL DISTRICT REGISTRY

On appeal from District Judge Watkins

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Date: 05/07/2018

Before :

HHJ PAUL MATTHEWS

(sitting as a Judge of the High Court)

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Between :

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Raj Sahonte (instructed by Thomas Simon Solicitors) for the First Appellant

The Second Appellant appeared in person

Timothy Walsh (instructed by Wards Solicitors LLP) for the Respondent

Hearing dates: 8 June 2018

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2

HHJ Paul Matthews :

Introduction

  1. This is my judgment on two appeals (one by each appellant) from the decision of District Judge Watkins, handed down on 9 January 2018 but embodied in an order dated 23 January 2018. Both appellants' notices were filed on 12 February 2018. Permission to appeal was given by Birss J on 19 April 2018, not under CPR rule 52.6 (1)(a), ie that there was a real prospect of success, but instead under CPR rule 52.6 (1)(b), ie that there was some other compelling reason why an appeal should be heard. A respondent's notice was filed on 3 May 2018.

  2. The decision of District Judge Watkins was one in proceedings brought under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. By his order, the judge directed that a freehold property known as Rock House, Newport, Wales, inherited by the parties from their parents, should be sold to the respondent at a price to be determined by a valuation exercise. The appellants agree that the property should be sold, but would prefer that the property be placed on the open market.

    Background

  3. Because the parties are members of the same family, many of them share a surname. For the sake of clarity therefore I shall, without intending any disrespect, refer to the parties by their given names. Sybil and John Chaston (``the parents'') had 4 children: Christopher (the first appellant), Robert (the respondent), Judith (the second appellant) and Jane (who was the third defendant below, but has taken no part in the proceedings and is not a party to the appeal). The parents bought the property as beneficial joint tenants on 29 June 1979. On 19 October 1982 the beneficial joint tenancy was severed. On 27 October 2004 Sybil died. Legal title to the property passed to John absolutely by survivorship. Sybil's beneficial half share passed under her will, ultimately on discretionary trusts. On 20 July 2010 John died. Legal title to the property passed under his will to his executors. The will appointed all four children as executors. Three of the four proved the will, but the first appellant did not. John's beneficial half share in the property passed under his will directly to the four children in equal shares. In 2013, the trustees of Sybil's discretionary will trusts appointed her beneficial half share also to the four children equally. On 21 March 2014, Jane sold and transferred her one quarter beneficial interest in the property to the respondent. It was not formally in evidence before the court, but it appears that on 13 July 2017 the legal title to the property was vested by John's executors in the two appellants and the respondent as trustees. Hence the present position is that the appellants and the respondent hold the property on trust for themselves as to 50% for the respondent and as to 25% for each of the two appellants.

    Procedure

  4. The hearing before the district judge took place on the 21 July 2017. He then reserved judgment. But on 2 August 2017 the first appellant applied to adduce further evidence. This was evidence of an offer made to purchase the property by family friends, Lord and Lady Chadlington. The district judge was prepared to allow that further evidence in, and directed that written submissions on it be made by 24 August 2017, in order to avoid the cost of a further hearing. Unfortunately, he then did not deliver his judgment until 9 January 2018, more than four months later. Hence there is some delay in this matter. However, it is to be borne in mind that, pursuant to the direction of District Judge Rowe dated 5 May 2017, no oral evidence was adduced at the hearing. The case was therefore decided on written evidence and full written submissions, supplemented by oral submissions which on both sides lasted less than half a day. Mr Sahonte, for the first appellant, accepted that there was no oral submission of his, not found in the written submissions, which had not been dealt with by the district judge in his judgment. The second appellant, who appeared in person and who also addressed me, did not make any such complaint either.

    Appeals

  5. By virtue of CPR rule 52.21 (1), an appeal is limited to a review of the decision of the court below, unless the court considers that in the circumstances of a particular appeal it would be in the interests of justice to rehear the case: Audergon v La Baguette Ltd [2002] EWCA Civ 10, [83]. The important difference between a review and a rehearing is dealt with in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, CA; EI Du Pont Nemours and Co v ST Du Pont [2006] 1 WLR 2793, per May LJ. In my judgment, this case is one appropriate simply for a review, and no-one sought to argue the contrary.

  6. Rule 52.21 (3) provides that the appeal court will allow the appeal where the decision was (a) wrong, or (b) unjust, because of serious procedural or other irregularity in the proceedings below. Here wrong means wrong in law, wrong in fact, or wrong in the exercise of discretion. But the test is different for each of these. The court must distinguish between a finding of primary fact on oral evidence where credibility is in issue, the evaluation of facts by a judge, and the exercise of discretion by the judge. In the present case none of the findings of fact by the judge was seriously challenged. I must therefore proceed on the basis of the facts stated in the judgment.

  7. If it is the question of the exercise of discretion that is challenged, then

    ``Before the court can interfere it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale'': Roache v News Group Newspapers Ltd [1998] EMLR 161, 172, cited by Lord Woolf MR in AEI Rediffusion Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507, 1523C-D; and see also Ashany v Eco-Bat Technologies Ltd [2018] EWCA Civ 1066, [13].

    It has also been said that the court can...

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