Taylor v Taylor & Anor, Court of Appeal - Chancery Division, May 12, 2017, [2017] EWHC 1080 (Ch)

Issuing Organization:Chancery Division
Actores:Taylor v Taylor & Anor
Resolution Date:May 12, 2017
 
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Case No: C30BS843

Neutral Citation Number: [2017] EWHC 1080 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Date: 12/05/2017

Before :

HHJ PAUL MATTHEWS

(sitting as a Judge of the High Court)

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Between :

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Jonathan Edwards (instructed by Headleys) for the Claimant

The Defendants appeared in person

Hearing dates: 27 April, 4 May 2017

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JudgmentHHJ Paul Matthews :

Introduction

  1. This is my judgment on an issue about the ownership of land, arising in these proceedings. The proceedings themselves were commenced by claim form dated 10 June 2015. It sought (1) a declaration that a partnership previously carried on between the claimant and the two defendants was dissolved as from 31 May 2013, (2) an order that the affairs of the partnership be wound up, (3) and order that all necessary accounts and enquiries be taken and made, (4) the appointment of a receiver, and (5) costs.

  2. The claim form was accompanied by particulars of claim, alleging that the partnership business had been carried on as from June 2012, and that each of the three partners should be entitled to one third each of the profits, and be liable each for one third of the losses. It was also alleged that the defendants denied this dissolution. In fact, as appears from an amended defence of 31 March 2016 called ``Answers Particulars of Claim'', these points do not appear to be in dispute, at any rate not now. In particular, the defendants agree that there should be an order that the affairs of the partnership be wound up, that all necessary accounts and enquiries be taken, and even that a receiver be appointed. But they do object to paying the costs of the proceedings as sought.

  3. It should be recorded that that is not the original defence filed in this case. In the court file (although not in the bundle provided by the claimant's solicitors) there are earlier versions of the defence. For present purposes, the important point to note is that the defence raises a question as to the ownership of the land occupied for the purposes of the business. It claims that this land belongs equally to the claimant and the first defendant. The claim form and the particulars of claim as originally drafted made no allegations as to the ownership of the land. However, an order made by District Judge Exton on 3 February 2017 provided (in part) that on 27 April 2017 the court would determine the question of the ownership of the land, and also whether to order a sale.

    The issue for determination

  4. At the hearing before me on 27 April 2017, it was agreed that that hearing would be confined to my determining the question of the beneficial ownership of that land. For the avoidance of any doubt, I record here that the question whether there should be a sale was not argued before me, and I am not determining that question now. So far as concerns the statements of case, it was clear that these needed to be amended so as formally to raise the issue of the beneficial ownership of the land. On 4 May 2017 I therefore gave permission for those amendments, but dispensed with re-service.

    Procedural matters

  5. This claim was commenced in the Chancery District Registry of the High Court in Birmingham. Originally, it was managed there. But, on 18 July 2016, District Judge Salmon transferred the claim to the County Court at Bristol. He did this on the basis that at that stage it appeared to him to be suitable to be tried in the County Court. Whilst that may well have been true at that time, the position now appears to me to be different. In relation to the ownership of the land, some interesting points of law have emerged, and the facts are hotly disputed. Whilst the value of the property concerned is not enormous, it is not negligible either. I considered that it was right to transfer this matter back to the High Court, but retained in the Bristol District Registry, and on 4 May I so ordered.

  6. I heard the matter on 27 April and 4 May 2017. Mr Jonathan Edwards of counsel represented the claimant, and the defendants appeared in person. The evidence was all given on the first day, but there was not enough time to make closing submissions. I heard those on 4 May, and reserved judgment.

    Background

  7. The land which is the subject of the present dispute is a small hotel and campsite known as the Innis Inn and Campsite, St Austell, Cornwall. On 1 June 2012 the freehold in this land was transferred by the vendors out of a larger registered parcel to the claimant and the first defendant. It is common ground that they are therefore joint tenants at law. The question that I have to decide is what are the beneficial interests in the land. The claimant says he is entitled to a four fifths share. The defendants say that each of the claimant and the first defendant is entitled to a one half share.

  8. The partners in this partnership are, unhappily, members of the same family. For convenience, but without intending any disrespect, I shall generally refer to them by their first names. Geoffrey Mark Taylor (``Mark'') was formerly married to Wendy, but they were divorced many years ago. They had two children, Boyd and Lucrezia. Lucrezia is married with two children. She gave evidence before me, but is not a partner, and is not directly concerned by this litigation. Boyd is married to Maybell, and they have a daughter Bella. She is now about five years old. Mark, Boyd and Maybell were the three partners in the business. They are now the three parties to this litigation. Mark has a brother, Gerald, who also plays a part in the story.

    At the hearing

  9. I have already said that the claimant was represented by counsel, instructed by solicitors (although in fact there was no representative of the solicitors present at the hearing) but that the defendants appeared in person. As to the defendants, I record here that neither is a lawyer, and that their knowledge of legal procedure was minimal. Their compliance with court rules and orders was not much better, but I am satisfied that that has occurred through ignorance. The first defendant is plainly not an educated man, and speaks simply and straightforwardly. His wife is a native of El Salvador, and Spanish is her first language. However she is clearly intelligent, and understands and speaks English well, albeit with an accent. Her written English is not quite as good, but it is still possible to understand quite easily what she means. Both of them in their turn addressed me. Each asked questions of other witnesses. I am satisfied that I understood all the points which they wished to make.

  10. At the outset, the defendants sought to adduce in evidence seven further documents, not previously disclosed during the proceedings. I numbered them 1 to 7. Apart from document 1 (which the defendants told me they had only found the day before), all of these were accepted to have been in their custody for a couple of years at least. Initially Mr Edwards on behalf of the claimant understandably objected to their admission, as he had only just seen them, and had not then had an opportunity to obtain any instructions. But he made no application for an adjournment. Documents 4 to 7 however are simply copies from the Land Registry of historical entries on the register relevant to the present issue in this case. Having had an opportunity during the day to look at the documents, Mr Edwards for the claimant accepted that realistically he could not properly object to these documents going in. Documents 2 and 3 appeared to have emanated from the claimant's own solicitor. Again they are plainly relevant to the issue before me. And again Mr Edwards accepted that he could not reasonably object to their being admitted either. Document 1 appears to be a letter dated 13 January 2010 addressed to the claimant and the first defendant in relation to an insurance policy. In fact it was not referred to during the hearing, nor relied on by any party or any witness, and I need say no more about it.

  11. The hearing of the evidence was hampered slightly by the fact that the claimant solicitors appeared not to have filed a second copy of the bundle for the use by the witness. This meant that witness statements to be put to witnesses had to be identified and photocopied at the time, thus necessitating short adjournments. Only three persons gave evidence. These were the claimant himself, the first defendant and his sister Lucrezia. There was a profound cleavage between the evidence given by the claimant on the one hand, and the first defendant and Lucrezia on the other. In many respects they were diametrically opposed as to what happened. On many points it is not possible for one side to be right and the other merely mistaken in good faith. On these matters one side or the other is lying. I must therefore say something about each of the witnesses.

    Assessment of the witnesses

  12. The claimant was very fluent and self-confident, almost lackadaisical in giving his evidence. It was evident that he was used to getting his own way, especially in his relations with his son. Despite a criminal conviction for assaulting his daughter-in-law, he made himself out to be the victim of violence himself. He was unrestrained in his criticism of the personal habits and probity of his son and daughter-in-law, the defendants, with whom he had gone into partnership. He made assertions in the same fluent self-confident way as he gave all his evidence, but which, on being probed, were shown to be nonsense. He tried to make assertions plainly inconsistent with the (relatively few) relevant documents.

  13. Overall, I did not trust him at all. Indeed, by the end I found his evidence so unreliable that I could not believe anything he said, unless it was confirmed from an independent source. Much of the claimant's evidence was not expressly challenged...

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