Eastaugh v Crisp & Ors, Court of Appeal - Chancery Division, July 12, 2006, [2006] EWHC 2298 (Ch)

Resolution Date:July 12, 2006
Issuing Organization:Chancery Division
Actores:Eastaugh v Crisp & Ors
 
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No of words: 24,759

No of folios: 344

Case Nos: HC05C01632, HC05C01689, and HC06C00295

NEUTRAL CITATION NUMBER: [2006] EWHC 2298 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Date: Wednesday, 12 July 2006

BEFORE:

MR JOHN RANDALL QC

Sitting as a Deputy Judge of the Chancery Division

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BETWEEN:

EASTAUGH

Claimant

- and -

CRISP and 2 Ors

Defendants

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MR S PERHAR (instructed by Fultons) appeared on behalf of the above-named Claimant

MR M HIGGINS (at judgment) for MR M BRETT (who appeared at trial) (both instructed by Honniball and Co) appeared on behalf of the above-named Defendants

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Judgment

  1. DEPUTY JUDGE RANDALL: The three cases which have been tried together before me concern the land and deceased estates of two brothers, Edward and Harry Poulton, both of whom died in the 1970s and to whom I shall refer for convenience, and with no disrespect intended, individually by their first names and together as ``the brothers''. All the land concerned is at Three Gates Farm, Lee Common, near Chartridge in Buckinghamshire.

  2. In a nutshell, Mr Eastaugh (``the claimant'') on the one hand is in competition with Mr Crisp and Miss Craft (together, ``the defendants'') on the other hand with respect to a variety of possible interests in and rights over this land. Claims in respect of the estates are largely, though not wholly, incidental to that competition.

  3. The defendants rely on titles to the land gained by virtue of Transfers from the Administrator of both estates, Mr Stuart Poulton, to whom I shall similarly refer to as ``Stuart''. He is the grandson of Harry, and his sole surviving blood relative. He has become involved in this matter through, and I over-simplify somewhat, being contacted by Mr Crisp, and persuaded to seek and obtain grants to the estates of each of the brothers, and to sell the defendants their respective lands at Three Gates Farm as Administrator, for an aggregate sum of £250,000. The defendants have succeeded in obtaining registered titles on first registration to the disputed land following these Transfers, one possessory and granted while the 1925 Land Registration Act (``LRA 1925'') was in force, and the other absolute and granted after the 2002 Land Registration Act (``LRA 2002'') had come into force.

  4. There are a number of important disputes of fact, including as to documents and events going back 30 years, and what at the outset appeared to be a formidable array of resultant legal questions. By the time of oral closing submissions, which were preceded by an exchange of closing skeletons, and after some judicial encouragement, a number of legal points had been chased down by counsel and ended up either agreed or no longer regarded as relevant by either side. However, a number of significant legal issues remain `live'. It is convenient to mention some legal points as they arise during my account of the facts, but I will deal with the main ones when I address the particular issue to which they relate.

  5. Before I turn to that factual history, I must first summarise the matters in issue in the three actions before me, and say something about the witnesses who gave evidence before me.

  6. The three actions

    By proceedings commenced in June 2005 against both defendants, the claimant asserts leasehold ownership of ``the blue land'', a term which I will define later, by virtue of a 99 year lease granted in 1972, and freehold ownership of ``the red land'', which again I will define later, by virtue of a 1977 conveyance (which, as has become clear, extended only to part of the red land, known as field 28) alternatively a 1977 will. His pleadings allege and complain of the defendants' demands for vacant possession of both by demanding the removal of his belongings in August 2002, and by their exclusion of him from the land earlier that year. Allegations of trespass are also included. He seeks declarations, rectification of the register in respect of both the blue and the red land, and other relief including damages for trespass. In subsequent Part 18 Further Information, the claimant indicated additional pleas, alternative to that of the 1977 conveyance, of (i) part performance (which was not pursued) and (ii) a possessory title resulting from occupation since 1977. By a counter-claim served in July 2005 the defendants together claim damages for trespass to Edward's cottage, and Mr Crisp claims arrears of rent under the 1972 lease put at £16,750 and damages for breach of a number of covenants in that lease including an implied covenant for maintenance and repair. I shall refer to these proceedings as ``the first action''.

  7. Linked to the latter part of that counter-claim is the most recently commenced of the three actions before me, by which Mr Crisp seeks to forfeit the 1972 lease on a number of grounds, including an alleged denial of title in specified paragraphs of the Reply and Defence and Counter-claim in the first action, non-payment of rent, and like breaches of covenant to those mentioned in the said counter-claim (save for the implied covenant for maintenance and repair which is not relied on in this action). Mr Crisp seeks further to rely on passages in paragraphs 3 to 5 of the Defence in this very action as additional denials of title. I shall refer to these proceedings as ``the forfeiture action''.

  8. A few days after commencing the first action, the claimant instituted proceedings against Stuart, asserting the existence of a valid will of Edward dating back to December 1977, under which he was residuary beneficiary and sole executor, and asking the court to pronounce for that will in solemn form and to revoke the grant of Letters of Administration, which was made to Stuart on the basis of an intestacy. I shall refer to these proceedings as ``the probate action''.

  9. The witnesses

    Mr Eastaugh is 76 years old, had heart surgery in early 2000, and has some difficulty with his hearing. I am quite satisfied that his evidence on some matters as to which he was quite definite was inaccurate; for example, what the principal topic of discussion was when he went to Mr Honniball's office in mid-May 1999, the purpose for which he had produced the two-page memorandum which was there discussed a few days earlier, and (going back to 1977) the circumstances in which the Channer brothers were asked to witness Edward's will.

  10. I should also record that Mr Matthew Brett, who appeared for the Defendants, cross-examined him as to credit with regard to whether or not he had declared the property interests to which he lays claim in these proceedings in his applications for means-tested state benefits, and that, after being informed by me of a witness's privilege against self-incrimination, he chose not to answer further questions about that. In those circumstances, Mr Brett did not press ahead with similar questions about Mr Eastaugh's declarations of means to the Legal Services Commission, which earlier in the cross-examination he had intimated he was minded to ask.

  11. I have therefore had to consider whether I should find, as Mr Brett submits, that Mr Eastaugh was dishonest in giving evidence before me, or merely mistaken. I am not persuaded of the former and therefore take the latter view, notwithstanding Mr Brett's attempt to damn the same by applying the label ``charitable'' to it. Insofar as the subject of his evidence was events in the 1970s, it is self-evident that there is every room for mistaken or inaccurate recollection. People become convinced that things were done properly in the past, when in truth they were not, over periods far, far shorter than 30 years. That difficulty can only be exacerbated by Mr Eastaugh's age. As to his evidence about the conversation with Mr Honniball in mid-May 1999, even this was some seven years ago and occurred before the claimant's admission to hospital. I shall find that the explanation for his inaccurate evidence on this point is a distorted recollection, which has focused unduly on the last part of the meeting, when an offer to purchase his leasehold interest, the true extent of which was then unknown to Mr Honniball and the defendants, was made by Mr Crisp. The claimant has, over time, become convinced, albeit wrongly, that the whole meeting had a more surreptitious purpose, so far as the others present were concerned, than in fact it did.

  12. However, it nevertheless follows that the claimant has, in a number of respects, been demonstrated to have been an unreliable witness. I must therefore exercise considerable caution before acting on uncorroborated evidence of recollection from him. That has been my approach in reaching my conclusions of fact in this case.

  13. Mr Eastaugh was somewhat wary in his dealings with the defendants, though happy to take the benefit of their desire to ingratiate themselves with him. The 1977 will and the 1977 conveyance were not produced or mentioned until later than might have been expected. I do not however consider it safe to infer from that, as Mr Brett submitted I should, that the claimant knew that one or more of the key documents from the 1970s upon which he relies in these proceedings would not stand up to scrutiny. His wariness of the defendants is sufficiently explained by an appreciation on his part that he did not have a formally granted or registered legal title either to the estate of Edward or Harry, or to the land comprising Three Gates Farm, red or blue.

  14. Mr Crisp projected a self-confident image, though I have come to the view that underneath it he was, and has since 1999 been, decidedly nervous about the strength of his position with regard to the land. One...

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