Gee v Gee & Anor, Court of Appeal - Chancery Division, June 11, 2018, [2018] EWHC 1393 (Ch)

Resolution Date:June 11, 2018
Issuing Organization:Chancery Division
Actores:Gee v Gee & Anor
 
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Case No: C31BS166

Neutral Citation Number: [2018] EWHC 1393 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN BRISTOL

PROPERTY TRUSTS AND PROBATE LIST

Bristol Civil Justice Centre

2 Redcliff Street

Bristol BS1 6GR

Date: 11 June 2018

Before:

THE HON. MR JUSTICE BIRSS

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Between:

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Leslie Blohm QC (instructed by Thrings) for the Claimant

David Rees QC (instructed by Royds Withy King) for the Defendants

Hearing dates: 11th, 13th, 16th-19th April 2018

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JudgmentMr Justice Birss :

  1. This action is a proprietary estoppel case concerning a family farm in Cumnor, Oxfordshire known as Denman's Farm. The family is the Gee family. The farm business and the land as a whole today are worth about £8 million. The farm is situated on the western outskirts of Oxford in the greenbelt. If any significant part of the land became development land instead of agricultural land, its value would be very substantially higher.

  2. The first land at Denman's Farm was bought by John P Gee in 1924. By 1992 the farm was owned by the first defendant John Richard Gee. He is John P Gee's grandson and is now in his early eighties. He is married to Pamela Gee. The claimant John Michael Gee is sixty years old. He is one of three surviving children of the first defendant and Pamela. The other children are the second defendant Robert Gee, and Jeanne Pamela Humphrey (née Gee) known as ``Tussel''. A fourth sibling Sally died in her early 20s.

  3. I will refer to the son and the father as JM and JR respectively. The other members of the Gee family will be referred to by their given names. None of this is intended to involve any disrespect to the individuals concerned.

  4. Today the farm consists of freehold land at Denman's Farm (about 200 acres), New Farm (about 130 acres bought in 1933), Rockley Farm (about 100 acres bought in 1948) and the Burnt House Land (about 100 acres bought in 1997-1999). The farm also has a tenancy of about 130 acres at St Frideswide's Farm under an agreement dated 13th May 1969. The landlord is the Oxford college Christ Church.

  5. The farming business is undertaken by a company John P Gee & Sons Ltd incorporated in 1957. The company farms the land under a tenancy agreement with the owners of the freehold. In the case of St Frideswide's, formally the tenant is JR rather than the company but from the farm's point of view the enterprise is carried on by the company.

  6. The farm has always been a mixed farm but the mix of work has shifted over the years. Initially the farm was a successful market gardening business growing fruit such as pears, apples, plums and tomatoes as well as vegetables and flowers, which were all picked and delivered to Oxford twice a week. That is no longer done. There has also been a flock of sheep at the farm and, over the years, a suckler herd. Nevertheless the main undertaking for some time has been (and is today) arable, mainly wheat and barley.

  7. JR started working on the farm in the mid 1950s. He has been a farmer all his adult life. JR and Pamela were married in 1956. They lived in the farmhouse at Denman's Farm itself and still do today. By the late 1970s JR was farming the farm himself with the help of about 6 employees. Aside from family members, the number of employees employed on the farm has steadily reduced over the years since that time. Three employees worked over 50 years at the farm. One employee, Ronald Carter, retired from full time work aged 65 five years ago but still works two or three days a week on the farm. At least one or perhaps two of the employees or former employees still live as tenants in farm properties.

  8. JM started working on the family farm in the 1970s. He has worked there all his working life until 2016. He has two sons Charles (aged 37) and Jeffrey (34) and a daughter Sasha (36). JM's children were by his first wife Christianne. They were divorced in 1992. JM married Sandra Gee in December 2004. Since he started working on the farm JM has lived there, initially in a caravan. In 1980/81 JR arranged for a house called Baxters to be built for JM on part of the land holding on the High Street (No. 70) in Cumnor. JM moved into Baxters with his first wife in 1982. He has lived there ever since.

  9. Charles went to agricultural college when he left school in 1994. He helped on the family farm as a child but after college Charles was unable to work on the farm as there were insufficient funds to pay him. As a result he developed a self-employed career working as an agricultural contractor for various other local farms. He has worked on the family farm where possible. He also studied at Harper Adams in 2013.

  10. Jeffrey also worked on the farm as a child. He took an agricultural degree at Harper Adams, graduating in 2007. He has worked on the family farm from then until 2016.

  11. After leaving school Robert took a one year Diploma in Agriculture at Cirencester. However until recently Robert's main occupation has been as a builder and property developer and he did not farm the land. There is a dispute about the extent of his involvement with the farm business. Robert is married to Helen Gee, who is a chartered accountant. Robert and Helen have two children Jack (aged 22) and Ottilie (19). Jack is at university studying engineering, and Ottilie is going to attend Cirencester when she leaves school. In 1990 Robert and Helen moved into the house which was the farmhouse for New Farm. That was after Evelyn Gee (JR's mother) moved out to live with JR's sister Mary Pearce. That house is just referred to as New Farm. It is also on the High Street in Cumnor across the road from Baxters.

  12. Tussel has her own farm with her husband. It is called Brook Farm and is about 8 miles from Denman's Farm.

  13. The company has 24,000 shares. By summer 2014 JR owned the entire shareholding of the company bar one share. The other share was held by his wife Pamela. At that time the freehold reversion of the land was owned by JR, Pamela and the company. JR held a 7/18ths share, Pamela held an equal 7/18ths share and the company held the remaining 4/18ths.

  14. In November 2014 JR transferred all his property and land holdings to his son Robert. That includes his shareholding in the company and his interest in the freehold reversion. At the same time Pamela transferred her share in the freehold to JM along with her single share in the company. These transfers are at the heart of this case.

  15. Since then Robert has been managing the farm and doing farming work on the farm.

  16. The first letter of claim was sent in August 2015 and proceedings were issued in October 2016. Also in October 2016 JM and his son Jeffrey were excluded from the farming business in disputed circumstances. JM was dismissed from his employment by the company for gross misconduct. JM contends the charges were trumped up.

  17. The claimant's case is that from when he was about 30 years old his father, JR, had repeatedly assured him that he, JM, would inherit the lion's share of the farm and that he relied on those representations to his detriment, essentially by devoting his working life to the farm and working long hours for low wages. The 2014 transfer to Robert was contrary to those assurances and unconscionable. Based on the doctrine of proprietary estoppel the claimant contends that an equity has arisen in his favour and that to satisfy the equity he should receive the whole farm (land and shares in the company) or at least the company and the lion's share of the land.

  18. The claimant's case is that until recently the idea that JM would inherit the lion's share is also what his father intended to do, however recently his father has taken against JM. This is said to be due at least in part to the influence of his brother Robert and Robert's wife Helen.

  19. The claimant pleads six particular representations he says he can remember, not being able to remember all the occasions on which the relevant representations were made. They are:

    i) In 1988 when JM was about 30, JM told his father than he wanted to farm on his own account and take on JR's role and ownership of the farm and JR assured him that he would one day.

    ii) In about 1993 at a shoot on the farm of a neighbour Geoff Barnett, there was a discussion between various farmers about the inheritance of their farms and JR agreed, within JM's hearing, that such farms should pass to the son who stayed on the farm and worked and farmed there.

    iii) In about 1995 JM and JR conducted the farm's bank manager on a tour. JM commented to the bank manager that he hoped to pass the farm on to his own children. JR did not object or contradict this thus, contends JM, confirming JM's view that he was to succeed to the company and the farm in order to be able to pass it on to his own children.

    iv) In about 1998 JR told JM that the Burnt House land was JM's land and that in due course he could use it as collateral to buy out Robert's and Tussel's shares in the farm land. JR also told JM that JM could farm that land on his own account.

    v) In about 2008 JM objected to JR's plan to build a new dwelling on gardens of a farm cottage at 24 High Street, Cumnor and JM told JR that it would be better built at the rear. JR replied that JM could build a dwelling there using company collateral ``when it's yours''.

    vi) In August 2009 JR told JM that he had a discretion as to how to spend the company's income which JM understood to mean that JM now controlled the business.

  20. In addition to the points on detriment already referred to, the claimant takes a particular point about a plot of land at 24 High Street gifted to the second defendant and Tussel in 2012. His case is that this was gifted to those two siblings rather than to JM as well because JM was going to succeed to the company and the farm.

  21. In terms of relief, the claimant seeks a declaration that he has the benefit of an equity over (i) all the 23,999 shares in the company currently held by Robert and (ii) the 7/18th share in the freehold reversion held by Robert. That would give JM complete control of the company and all the land (save for St Frideswides). He is willing to accept as a condition that he must return to his mother the property and shares she gave to him in 2014. In the alternative, if the court is not willing to make that award in his favour with or without the condition, the claimant contends that an award which would satisfy the equity could be either (a) a transfer of a controlling interest in the company together with the farming land or (b) a transfer of the full shareholding and the farming land but on terms that the claimant pays the first or second defendant the value of a minority shareholding (49%). The advantage of option (b) is said to be that it would give the claimant the control he was promised but recognising that the control could be achieved by the gift of a 51% shareholding while buying out the defendants would remove the potential for conflict in future. The claimant also contends that some provision should be made for the company's use of St Frideswide's.

  22. The defendants deny the claim entirely. They contend that no such assurances were ever given. They deny the claimant relied on any such assurances and deny he has suffered any detriment in so doing. They also refer to various benefits the claimant obtained. They deny the transfers were unconscionable. The defendants contend that in truth JM is and was a bad farmer and that JR has always thought so. Robert was better able to run the farm than JM. They submit that JR is (or rather was in 2014) entitled to transfer the farm to whoever he saw fit. JR did what he did in the best interests of the farm as he perceived them to be.

  23. The defendants also contend that even if some form of equity is established, the claimant's claim to all the shares and the whole of the second defendants' share of the freehold reversion is unsustainable. They point out that implicit in some of the express representations relied on is the idea that Robert and Tussel would share (at the very least) in the freehold reversion of the tenanted farmland. They also point out that the claimant has received 7/18ths of the freehold from his mother. Furthermore the defendants contend that if some relief is to be granted, this is a case in which such relief as is granted must be squarely focussed on the detriment the court is satisfied the claimant has actually sustained. That detriment would be out of all proportion to the expectation contended for by the claimant. If the court was minded to give the claimant some immediate interest then it ought to be adjusted downwards for accelerated receipt because the claimant's case demonstrates he was unclear whether the alleged promises were to take effect on JR's death or at an earlier date. Tax consequences would need to be taken into account and also the impact on the second defendant who has run the company and the farm since 2014. Finally points on the claimant's conduct are taken, relating to the circumstances of the dismissal which included physical assault on the second defendant and an allegation that the claimant must have entered the second defendant's home while he and his wife were away, the evidence for that being a notebook belonging to the claimant which appeared on the second defendant's desk.

  24. Before me one piece of common ground was that even though the representations relied on are alleged to have been made by the first defendant, in terms of relief to be granted (if any) the fact that the land or shares are now held by the second defendant rather than the first defendant is irrelevant.

  25. Another piece of common ground is that this action is not based on undue influence. It is based on proprietary estoppel.

    The witnesses

  26. The first witness was the claimant JM himself. He explained what had happened, maintaining that the representations had been made, that he relied on them and maintaining his case on detriment.

  27. The defendants' counsel submitted his evidence should be treated with scepticism and caution; when his evidence could be verified it was shown to be exaggerated. Counsel also criticised JM regarding an episode about tapes recording two family meetings which took place in early 2015. Those meetings took place after the disputed transfers had taken place. Robert contended that JM at one meeting had used shocking language about their father. The meetings were recorded on tape to help Sandra take minutes. Robert's view was that the minutes of both meetings, when produced, did not accurately reflect the mood of the meetings. He asked for the tapes. They were refused. JM said the tape for the first meeting had not recorded properly. Much later, in the course of the proceedings, Robert was told that JM had accidentally recorded over the tape of the second meeting by using it to record the disciplinary hearing in October 2016 associated with his dismissal. Robert regarded that as surprising.

  28. The claimant's counsel described JM as a countryman without guile or sophistication who answered the questions readily without weighing up whether the answer advantaged him or not and submitted that when JM was taxed with the point that his recollection of the representations had apparently improved with time, JM accepted ``in an entirely artless manner'' that he had given evidence of new instances when he had recalled them.

  29. JM has an obvious interest in this case. Having heard JM in the witness box and considered his evidence against the documents, in my judgment JM was a generally honest witness seeking to tell the truth as he saw it. The defendants' counsel is right that parts of his evidence when tested against documents has been found to be wrong or exaggerated. The most telling example is about pensions. In his witness statement (paragraph 88(j)) JM said he had not made any substantial pension provision when in fact JM does have NFU retirement annuity contracts. He had thought they were worth less than they actually are but in any event they show that the witness statement was not prepared with proper care. In some ways a worse example was a trivial point about the cost of barn doors. On that JM's witness statement was actively misleading. It is also true (I find) that JM has underplayed the tone of the family meetings in 2015. They were obviously acrimonious.

  30. Nevertheless I believe JM was being truthful in his evidence about how he recalled instances of representations and about how he accidentally overwrote the tape. It was said against him that he did not raise the allegation that he had been promised the farm at the meetings in 2014/15 after the transfer. I am sure he did not, but I accept his explanation that he did not appreciate its potential significance until later.

  31. I turn to the issue of JM's notebook being found on Robert's desk as evidence that JM entered Robert's and Helen's home when they were away. JM denied this. It is clear that the notebook was JM's but his evidence was that the notebook had been left in a farm vehicle and that is how it came to be in Robert's possession. Robert and Helen denied that is what happened. The only relevance of this issue is as a point raised by Robert and Helen as an allegation of misconduct by JM and going to his credit. There is no reliable evidence how that notebook got there. I reject this as a basis for a finding of bad behaviour by JM.

  32. Finally in relation to JM's credit, there is an issue about whether he actually obtained any formal qualifications from his attendance at Berkshire Agricultural College. This point took on great significance for JR, which I will come back to. The point is that while JR and Robert were able to produce the certificates reflecting their qualifications in agriculture, JM was not. JM's evidence is that he attended Berkshire Agricultural College in the 1970s for one year and qualified in 1978. He says he has lost his certificate. The college has been approached for a copy. The college's reply is that they have been unable to trace any record of it but that seems to be because they do not keep records going back far enough which would show the relevant OND certificate. So he cannot produce documentary proof. He was criticised for the steps taken to obtain the certificate. Were it not for the significance JR placed on this at trial, it would be a minor matter. I find as a fact that JM did attend Berkshire Agricultural College, that he did graduate, and that the explanation for the absence of a certificate is simply that it has been lost and a replacement cannot now be produced because of the present extent of the college's records.

  33. The next witness was the Reverend Canon Geoffrey Maughan. He had been picking blackberries at Denman's Farm in August 2015 and witnessed an irate exchange between JM and JR. The evidence bears out the poor relationship (by this time) between JM and JR. Rev Maughan said in his statement that JR had said to him that the farm was not JM's ``yet''. That was clearly the gist of what Rev Maughan understood he had heard. I do not place any weight on it in support of the claimant. It could simply have been a reference to what might happen as a result of this litigation since it followed a remark about a solicitor's letter sent by JM to JR.

  34. Benjamin Taylor-Davies is a farmer and agronomist. He had been the agronomist for J P Gee and Sons for 17 years until this dispute arose and worked closely with JR and then JM over that period. For most of that time Mr Taylor-Davies worked for the company Hutchisons. An agronomist advises a farmer about matters such as what to plant and what chemicals to use on the farm both to improve the soil, control weeds and to treat diseases and pests. Mr Taylor-Davies has a close relationship with JM and feels strongly that JM is the wronged party in this dispute. That is part of the reason he no longer acts as the agronomist for the farm although from the point of view of Robert and JR, the advice from Mr Taylor-Davies was subject to a conflict of interest because he was not only advising the farm what to buy and use but was selling some of the materials to the farm as well. Now Robert takes advice from one source and buys products such as seed and agrochemicals from another. The fact that JM took advice from Mr Taylor-Davies in this manner is raised against JM as a criticism of his ability to run a farming business.

  35. Mr Taylor-Davies gave evidence about three occasions which he thought could be relevant to the dispute. Each was an occasion on which JR said things to Mr Taylor-Davies which indicated that he (JR) had a clear intention that the farm would be passed on to JM and for that matter on to JM's own children. The first episode was around the time of the purchase of the Burnt House land (1997/98), the second was 12 years ago and the third was 10 years ago. For reasons I will explain below, this evidence, which would go to JR's intentions at the time of the events concerned, is of much less significance than it might otherwise have been.

  36. Counsel for the defendants invited me to find that Mr Taylor-Davies was unreliable and partial given his loyalty to JM and the fact that his contract with the farm had been cancelled. It would be going too far to reject Mr Taylor-Davies's testimony on that ground but he does clearly feel strongly about this dispute and although he is not a member of the Gee family, I will not treat Mr Taylor-Davies as any more independent than the family members called by the claimant as witnesses. Mr Taylor-Davies told the truth as he saw it but his views were coloured by the strength of his feeling about this matter both personally and I think as a matter of principle.

  37. He also gave evidence that since 2008/09 there had been a dramatic shift in the way the farm had been overseen, from JR to JM, whereby he had not seen JR in a professional capacity since. I accept that evidence. It does not mean JR had ceded complete control of the farm to JM but it reflects the fact that in recent years (prior to 2014) JM was overseeing more of the farming work than before.

  38. Sandra supported her husband. Most (but not all) of her evidence was about what other people had said. For example she explained that JM always used to talk to her about what he would do when he inherited the farm. Counsel for the defendants submitted that much of her witness statement consisted of material which should not be there because it was about things she had been told and meetings she was not present at. That is not a fair criticism. Part of the claimant's approach to proving his case has been to establish that throughout the relevant period he understood that he was going to take over the farm from his father and, in addition, to establish that his father also intended that that was what was going to happen at least until things changed with the deterioration in the relationship between father and son in the years leading up to 2014. Those are matters of fact. The former is a vital part of the claimant's case in any event. The latter (JR's intention) does not on its own establish the claimant's case but if it and the former fact are both true, then they do enhance the likelihood that representations to that effect were made.

  39. In my judgment Sandra was a good witness, seeking to help the court.

  40. Rita Pugh was born in 1937 and has been a friend of JR's for over 60 years. She and her husband were close friends with JR and Pamela and knew each other's children. Mrs Pugh's husband died in 1986 and she remembers a conversation which took place just between herself and JR about wills and succession, and happened shortly after her husband's death. JR had lost his daughter Sally by this point and he told Mrs Pugh that the farm would be split between his three surviving children, while JM would run the farm and have the highest percentage of shares so that he had a controlling interest. Mrs Pugh also remembers a conversation with JR during a holiday in Canada in 2003 when he said the farm was in safe hands with JM and that there was no room on the farm for Robert. Mrs Pugh also gives evidence supporting the claimant's case that JR's deteriorating health and capacity meant that he had changed significantly by 2014, becoming selfish, demanding and aggressive.

  41. Mrs Pugh was a transparently honest and truthful witness who was evidently saddened by what she had observed and by the court action itself. When her evidence was put to JR his response essentially was to say that he did not remember saying those things to Mrs Pugh and it was not the sort of conversation he would have had with people. To the point about ``no room for Robert'' he said it was none of her business. I accept Mrs Pugh's evidence about what JR said to her on all these occasions and as to the change she has observed in JR.

  42. Tussel made clear that to the best of her recollection she had never been party to any representation or promise made by her father to JM about receiving the lion's share of the farm. She was not surprised by that because her father was a private man who would not shout that sort of thing from the roof tops. However she also explained that her father's conduct over the years had always been consistent with the family's understanding that the farm or certainly a majority share would be passed to JM.

  43. She also described a conversation with her father in 2012, on the occasion on which her father invited her as well as Robert and JM to become directors of the company. In fact JM turned down the directorship and that is a matter I will come back to below. Tussel's evidence was that her father told her about the contents of his will. In it JM was to receive 48% of the shares with 26% for Robert and 26% for her. She never saw the will but maintained that is what she was told. She said she thought that was consistent with what she understood anyway but that she had expected JM to be given a greater share. Tussel also said that she discussed this with Robert several times and she knew that Helen felt the split should be a third each.

  44. Tussel also gave evidence about the events surrounding the transfer to Robert in 2014, supported JM's case about the significance of the Burnt House land, and explained that after the transfer her mother Pamela said she had not had the implications of the transfer explained to her fully and did not agree with it. Tussel gave an account of a meeting on 23rd October 2014 between herself, JM, Robert and Helen. Tussel's account of that meeting is at odds with the account of it given by Helen. Finally Tussel gave evidence about the recent change in her father's mental health and periods of extreme volatility.

  45. Counsel for the defendants submitted she underplayed the level of acrimony from their side, especially in the meetings after the transfer. Tussel and a number of other witnesses for the claimant did seem to me to be reluctant to accept just how acrimonious some of the events in late 2014 and into 2015 were in all probability, but that is not indicative of unreliability. In my judgment Tussel was a good witness. I will address the conflict between her and Helen's account of the October 2014 meeting below.

  46. Nevil Pearce is the son of Mary Pearce and therefore JR's nephew. He is an accountant. He never had any conversation with JR about his intentions but sought to corroborate JM's evidence that he (JM) understood the farm would be passed to him one day. He said the family history had always been that the farm passed to the eldest son and that JM had said to him that he had made his life there unlike his siblings. In fact the farm had not devolved in that simple way in the past. For example, as Mr Pearce acknowledged, JR had had to raise money to buy out his own sister (Mr Pearce's mother) in the early 1980s.

  47. Mr Pearce was also involved in the events in October 2014 leading up to the transfer of the shares and land to Robert. There was a point seemingly emanating from Helen that possible changes to Agricultural Property Relief may have been a reason for making a transfer urgently at that time. Mr Pearce's evidence is that that would not have been a good reason and he spoke to Helen about it at the time. The advice JR and Pamela was receiving was from Helen, and Mr Pearce said in his witness statement that he felt strongly that JR and Pamela should seek independent advice.

  48. I am sure Mr Pearce's evidence about what JM had said to him and about Agricultural Property relief was true. However the picture painted in Mr Pearce's written evidence was shown in cross-examination to be incomplete. For example despite his witness statement making a strong point about JR and Pamela needing independent advice, in cross-examination he confirmed that he did not say that to JR or Pamela at the time.

  49. Lynne Pearce is married to Nevil Pearce. Her evidence was that the idea that JM would inherit the farm including the company and carry it on was widely discussed within the family. She gave evidence of a visit in 2012 in which JR spoke about handing over the reins of the farm to JM and she explained she was shocked by the transfer to Robert in 2014.

  50. Mrs Pearce was a good witness.

  51. Pamela Gee gave evidence supporting her son JM against her husband JR and her other son Robert. That cannot have been an easy thing for her to do. She explained the history of the farm and its future. She said there was always an expectation that JM would take over the running of the farm and she was sure JR thought this too. She described similar conversations she had had with JR and with JM many years apart which indicated that JR intended that JM would take over the farm and that it would work out very well for him. JR did not wish her to tell JM. Pamela described mirror wills she and JR made in 2010. The wills left 48% to JM and 26% each to Robert and Tussel. She says that she only realised later that this related to both the land and the shares in the company and when she appreciated this she was shocked because it did not reflect her or her husband's intentions - which were to leave the land in that way but that both her and JR would leave their shares in the company to JM in reward for his longstanding work on the farm. She says she believes she was too trusting and in the witness box described herself as a ``yes wife''.

  52. Pamela described problems in the family as starting in June or July 2014. She explained that at around this time JR's anger with JM started to grow and he developed an absolute hatred of JM. As regards the transfer, she says that Helen advised her and JR that inheritance tax rules were changing and so she recommended that JR and Pamela should transfer their interest in the company in order to save inheritance tax. Nothing was to pass to Tussel because at that stage she had recently separated from her husband and there was a possibility of a divorce and her husband making a claim on Tussel's wealth. (In fact Tussel and her husband have not divorced and are content to live separately.)

  53. Pamela explained that she loves all her children and grandchildren but feels that the farm and the family cannot go forward with the current arrangements which are unfair on JM and contradict her and JR's previous intentions that JM should receive the company and the lion's share of the land. She said the transfers (JR's to Robert and hers to JM) did not reflect those intentions. Her transfer to JM was her attempt to rectify the situation as best she could.

  54. Given the strain this litigation between members of her family has evidently placed on this elderly lady, Pamela was an impressive witness. She was composed in the witness box and gave clear, straightforward and in my judgment truthful evidence.

  55. Charles Gee said it had always been his understanding that his father had been promised the farm. The main evidence from Charles was about two representations he said his grandfather JR had made to him. One was in the mid/late 2000s when Charles said JR told him there was a letter in the safe addressed to his father JM about taking over what Charles took to be the tenancy at St Frideswide's. He understood this to reflect the fact that his father would take over the whole farm. The second was shortly afterwards when the crux of what JR said was that he had an obligation to leave Robert and Tussel something, which he Charles took to imply that that was because his father JM would get the main part of the farm. In cross-examination he did not agree that the relationship between his father and grandfather had always been difficult, he said that happened in the late 2000s.

  56. Charles was a good witness. I accept his evidence.

  57. Jeffrey Gee worked on the family farm after college until 2016. He had lived at Denman's Farm with his grandparents since 2012. He explained that he was dismissed by Robert in the summer of 2016 who said that while this was going on with his father, he Jeffrey was not to work in the farm. The following day his grandfather JR told him he had to leave the house but in the end he has continued to live there having signed a document accepting he can be given one month's notice. Jeffrey is his grandmother's registered carer.

  58. Jeffrey said that when he moved into the farmhouse his grandfather told him he would not be leaving the entire farm to his father JM because he had to be fair to his other two children. He said he could not leave them nothing but did not elaborate. Jeffrey also said that prior to that his grandfather would regularly pass comment about how his father was going to take over the farm. He also recalled discussions about the Burnt House land in which JR told JM the land was his. Jeffrey accepted he would have been 13/14 years old at the time of the conversation about the Burnt House land but maintained his evidence about it. He said that JR used to refer to it as ``my dad's land''. Jeffrey also said he overheard a conversation in October 2014 between Robert, Helen and his grandparents as follows:

    Robert: "the best thing you can do is sign it all over to me".

    Grandmother: "Can we trust you that when we are dead and gone you will cut a fair deal?"

    Robert: "Yes"

  59. It was put to him that this conversation was about the Rockley land and had taken place in February not October. Jeffrey did not accept that and maintained his evidence. He said three days later he was told of the transfer to Robert.

  60. As regards his dismissal from the farming business, it was put to Jeffrey that he was told he was not needed. However Jeffrey denied that that is what he was told, he maintained he was told he could not work at the farm while this dispute is going on.

  61. I accept Jeffrey's evidence. He was an honest witness.

  62. The defendants' witnesses were John Richard Gee, Neville Pegram, Robert Gee and Helen Gee.

  63. John Richard denied making any of the representations relied on. He explained the history of the farm and how he ran it. He contended that JM was a bad farmer and that he had decided to transfer his land holding and the shares in the company to Robert because Robert was best placed to manage and farm the farm properly and at least one of Robert's children also intends to farm the farm in future. Regarding his relationship with Pamela, he said a number of times that she always wanted to be the boss.

  64. Counsel for the claimant submitted that JR clearly believes every word he says. Having seen JR give evidence I entirely agree. Given the evidence from many of the claimant's witnesses which raised concerns about JR's mental health, I had been concerned to make sure to observe JR carefully with that factor in mind. Having seen him however and whatever change in JR's personality and outlook may have taken place, from his evidence at trial I have no concern about JR's mental health or capacity. He gave articulate evidence. What is striking is that he clearly today has a very negative view of his son JM and JM's abilities as a farmer. He has what I can only call an obsession with the absence of JM's certificate from his study at Berkshire Agricultural College in the 1970s. JR returned to this frequently and irrelevantly, often to deflect a difficult line of questioning.

  65. Counsel criticised JR for his position that he could not remember whether he had executed a will before 2010. The point being made is in effect an innuendo that there was a will, it will have favoured JM significantly and even more than the 2010 will, and JR is not being straightforward about that matter. If it mattered I would say it was more likely than not that there was a pre-2010 will given the care with which JR attended to his affairs over the whole period. But there is no evidence as to its contents. I am not prepared to take that point any further or criticise JR for his evidence on it.

  66. At the end of the afternoon after a full day of cross-examination, counsel put to JR that Robert and Helen had persuaded him to transfer the property to Robert by persuading him that this was in the best interests in the farm and that he had changed his mind from his view before 2012 which had been that JM was going to succeed to the farm. JR's reply was clear and affirmative (he said ``And I should think so too, it's about time''). This would have been a significant concession given his witness statement and much of what JR had said earlier in cross-examination. In re-examination counsel asked who, before 2012, had he wanted to run the farm. JR's reply was to say it ``might have been'' JM but he was dissatisfied with him and did not want him to. Counsel also asked JR whether his witness statement better reflected his recollection than his evidence on the day. JR's reply was that his recollection was better today. In closing counsel for the defendants submitted that JR was exhausted by the end of the afternoon, that despite his answer in re-examination his recollection ought to be found to have been better expressed in his witness statement than in his oral evidence especially in the afternoon and that his last answer about his previous intention that JM was to have got the farm had to be seen in that light. Counsel also emphasised (rightly) that JR never conceded he made any promises to JM.

  67. JR is an elderly gentleman. He has hearing difficulties but they were dealt with at the trial and I have no doubt he understood the questions he was being asked. He was clearly tired at the end of a day but I reject the idea that that undermines the weight to be put on these answers. In truth the evidence that JR had had an intention that JM would succeed him to the farm (or a substantial part of it) was strong anyway. In my judgment the answers he gave and the tenor of them were a reflection of what JR really thought, which was in effect ``of course I used to intend that JM should get the farm but I have changed my mind now and for good reason''. He never said those words but taking his evidence as a whole including that answer, that is what he meant. It does not prove the claimant's case by any means but it does mean that the alleged representations made by JR would, if made, have reflected his intentions at the time.

  68. The effect of JR's concession is that it is not necessary to examine in detail matters such as the evidence from Mr Taylor-Davies about what JR said to him.

  69. Overall, JR has convinced himself that he never made the representations relied on and that JM is a bad farmer but I am not satisfied his evidence about that is reliable.

  70. Neville Pegram was the solicitor who drew up the transfers in 2014. He made it clear he did not give advice on them. His evidence would have had more relevance in an undue influence case. He gave truthful evidence.

  71. In his witness statement Robert Gee described his early life and his work both outside the farm and on the farm. His work outside the farm has been in planning and property development. Robert explained that before 2014/15 when he took over the management of the farm, he did work on the farm - his main involvement in relation to the farm business being assisting his father to increase the income of the company through diversification, particularly rental of property. This also involved Robert advising his father in various respects using his experience in planning and development. Robert also said that from about 2010 he helped his father with administrative tasks relating to the farm and the company. Robert criticised some of the work JM had done relating to farm administration including a point on the Rural Payments Agency and the prices JM had agreed the company should pay for sprays and other things from agricultural representatives such as Mr Taylor-Davies. Robert said he had not heard any promises made to JM about the farm or the company and said he found some of the assertions made by JM about the alleged promises surprising because in the discussions in 2014/15 relating to the disputed transfer, JM had not disputed the decision on the basis that he had expected to inherit everything. Robert did not believe the promises had been made because JR and JM did not see eye to eye on farming matters and said JR did not consider JM to have a good farming and business brain.

  72. Robert said that his parents had been generous to all of their children and he refuted any suggestion that JM had suffered any detriment, referring amongst other things to JM's salary. He also referred to a gift in May 2014 to Robert and JM of land called the Rockley land. This arose following notification from Vale of the White Horse District Council that 3-5 acres of farmland at Rockley was being considered for removal from Green Belt. The transfer was on the proviso that should the land in due course be sold for development, Robert and JM would transfer a third of the net proceeds to Tussel. She had been left out of the gift because of her marital problems.

  73. Robert's evidence was that JM had turned down opportunities offered by their parents including the chance to be a director of the company in 2012, and a share in a small triangle of land adjacent to the farm cottages at 26-28 High Street, Cumnor in 2010. The parcel of land was valued at £20,000 and in the end was gifted 50% to Tussel and 50% to Robert and Helen.

  74. Turning to the 2014 gifts of the farmland and shares, Robert explained what happened from his point of view. He explained that his father decided to give everything in his ownership to him and his mother decided to give everything in her ownership to JM. Robert said that his mother suggested that JR ought to give some shares to JM but JR did not want to do that. The possibility of holding back some shares was considered by JR too but he decided against it. At no point in the meeting on 9th September 2014 did either of his parents say that the farm had been promised to JM. Robert said that his parents agreed that no gift should be given to Tussel because of her marital problems but they would each write wish lists saying how they would like provision to be made for Tussel. His mother drafted a wish list which excluded Tussel. His father said he had left a letter with Challenors solicitors to be disclosed on his death.

  75. Robert said that he did not seek to influence his parents one way or another with regard to them transferring their shares or farm property to his brother and himself. He said that if anything, at a later meeting after the first one, he proposed there should be a more even split between himself and JM. Robert said that he suggested to his father than he and JM would have to work together in harmony for the good of the future of the company and it might be better for relations if he gifted the shares on a 50:50 basis but his father refused. Robert said that his father also did not wish to hold back shares which might then be given to JM because his father was concerned about restricting Robert's freedom to make business decisions.

  76. Robert addressed the events after these meetings, including the arrangements of the transfers themselves and family meetings to explain what had been done. He explained that Tussel was upset but at no time did she (Tussel) say that she expected JM to inherit everything.

  77. Robert addressed JM's conduct. He said JM had physically attacked him in autumn 2016 and so Robert had no choice but to dismiss him. Robert emphasised that the process was handled by an independent HR consultant. Robert also addressed the matter of the notebook and the tapes of the meetings.

  78. In cross-examination Robert maintained the evidence I have summarised. It was put to him that his move into New Farm in 1990 arose from severe financial trouble he had got into in his property business. Robert accepted that, although Counsel submitted that in doing so he still glossed over the reality of the situation. As a point on credit this issue is of no value. Robert's evidence about this was honest although he was understandably uncomfortable about it all. It is tolerably clear that Robert's business was in very severe financial trouble at the time and that his parents allowing Robert and Helen to live in New Farm at the time so that their home could be sold to cover Robert's debts, was a critical part of sorting this out. But as Robert and Helen were entitled to emphasise, the debts were paid. The other point that this issue this goes to is the argument between the brothers about who is a bad farmer or a good businessman in the eyes of their father. This issue is intended to demonstrate that for all JR's view that Robert's business skills make him the best person to run the farm into the future, in fact Robert's skills are not so great. However this action is not concerned with making a refined decision about Robert's business skills.

  79. Counsel for the claimant submitted that Robert was a more sophisticated and cautious witness than JR and that his evidence of the circumstances of the meeting on 9th September 2014 is highly dubious and self-serving and was not recalled by JR. I will state my conclusions on Robert as a witness after considering Helen.

  80. Helen Gee supported her husband. Her witness statement dealt with their early married life and the move to New Farm. She explained that in about 1999 JR asked her to take over the accountancy and tax affairs for the company and she did so, without charge, until 2012 when she merged her practice with another firm. She described her impressions of her parents in law, various family relationships and the gift of the Rockley land in 2014. Helen addressed the events in 2014/15 in detail. She said that she did not give inheritance tax advice. On the issue of Agricultural Property Relief, Helen said JR and Pamela understood it was available and asked her about the timing of possible changes which were described in an article by Ms. Sharon Omer-Kaye. She said she told them the changes were mooted and nobody could predict what forthcoming budget announcements might be. Helen addressed the involvement of Neville Pegram and the conversation with Nevil Pearce. One of the issues discussed with Mr Pearce was that potential development land was better removed from JR's or Pamela's estate as soon as possible.

  81. Helen said that she had had many conversations with JR about the decisions he would one day have to make in relation to the passing over of his estate. She said that in the early days, from 1990 onwards, he would say he would never hand over his estate or make a decision regarding it when he felt his children were all fairly young and in young marriages. She said he was adamant he did not want the farm to be split up on divorce and was concerned about what were then marital difficulties between JM and his first wife Christianne. Helen said her father in law certainly never stated an intention of leaving the farm entirely to JM and that her father in law never had a good word to say about him. Helen denied that either Robert or herself ever tried to influence JR or Pamela in relation to their gifting of assets over the years.

  82. Helen maintained her evidence in cross-examination. Counsel for the claimant criticised her evidence as defensive. Counsel submitted that Helen's account of the telephone call or calls involving Nevil Pearce was at odds with Mr Pearce's account. I do not believe anything turn on that question other than credit and as to that I am not prepared to draw an inference either way.

  83. Separately Counsel drew attention to the contrast between Helen's and Tussel's accounts of a meeting in October 2014. Helen's account is very brief. She says that at no point did Tussel or JM say that the farm had been promised to JM and that at that meeting Tussel was not surprised by her father's decision not to gift his assets to JM given the nature of their relationship. She says that a few days later Tussel had a meeting with her parents and after that came to New Farm and was very upset. Robert's account of the meeting and Tussel's behaviour is essentially the same as Helen's. In Tussel's detailed account of the meeting, she says she was shocked and deeply hurt on a number of counts, one being that she could not believe that the Farm would in effect be transferred to Robert rather than JM. She was surprised to have been excluded because the issue of her marital status had been resolved and her father knew that her husband had agreed to sign anything necessary to confirm he would have no claim to any inheritance. She did not understand why the transfer had to be solely in Robert's name and asked Robert about this. While she did not agree with what had been done, Robert represented to her that it was a temporary measure whereby he would hold it on trust for her and her brother (JM).

  84. Considering the contrasting accounts of this meeting, I much prefer Tussel's account to the one given by Helen and Robert. It is more likely in the overall circumstances and more consistent with the other evidence. At best Helen's account of that meeting is not candid.

  85. Counsel levelled other criticisms at Helen. Two related to her alleged failure to ensure that JR and Pamela received independent advice. I decline to deal with it. It is a symptom of a tendency in the some of the submissions on the claimant's behalf to focus on matters relevant to undue influence, which are not what this case is concerned with. I will also put no weight on a point about the different sizes of the typeface in certain documents provided by Helen. A point which is of more significance is a suggestion made by Helen in cross-examination that JR had a stock saying about not deciding what to do with the farm until he made his last will and testament. Counsel's point was that although Helen's witness statement does attribute that statement to JR, until her cross-examination it had never been suggested that it was a stock phrase and that this was an attempt to magnify its significance in order to support the defendants' case.

  86. I have mentioned the way the notes of the meetings in September and October were drafted above. They were drafted by Helen. For example the note of a meeting on 7th September 2014 is headed as a ``John P Gee and Sons Limited Minutes of a meeting of the shareholders and directors''. It is true that both shareholders (JR and Pamela) were there and so were three out of four directors (JR, Robert and Pamela) but Tussel was not there and not invited even though she was a director. The document is manifestly not a record of a formal shareholders' or directors' meeting. It addresses the concerns of JR and Pamela as parents and is just as much about their personal land holdings as it is about their shareholdings. The documents were obviously headed this way by Robert and Helen to try and clothe them with a formality and significance they did not have. I do not accept them as reliable records of those meetings.

  87. I will stand back and consider both Robert and Helen as witnesses. Counsel is right that Robert was cautious, Helen's evidence did go further than Robert in some respects. As for Helen, she was a defensive witness and her evidence lacked candour. Nevertheless I believe neither Robert nor Helen sought to give false evidence or paint a false picture of the events. However I am not satisfied I can rely on their testimony if it is adverse to the claimant's case and uncorroborated. They both believe what they have told the court but when there is a conflict between theirs and other reliable evidence, I prefer the latter.

  88. I have already found that while he changed his mind about this in recent years, for many years before JR had intended that the farm or a substantial part of it would pass to JM. Part of the overall tenor of the evidence from Robert and Helen (including as one example the reference to a stock phrase) was to support the idea that JR never had that sort of intention. Necessarily therefore I have not accepted that broad aspect of Helen's and Robert's evidence. I do not believe JR had the stock phrase attributed to him by Helen. Helen's evidence about what JR said to her over the years is not reliable.

  89. As for Robert's evidence that at the meeting on 9th September 2014 (or at any other time) he did not seek to influence his father regarding the transfer of shares or property as between himself and his brother, I am sure that is what Robert believes. However it is manifest that in fact Robert's negative views about JM, particular about his qualities as a farmer or farm manager, have had a significant influence on JR. Nevertheless, this is not a case about undue influence. Unless it is necessary to do so in order to resolve the questions I have to decide, I will not examine the Sept/October 2014 meetings in any more depth.

  90. That concludes my review of the witnesses.

  91. A point was taken about Ron Carter. I do not draw any inference from the fact that he did not give evidence. I would not be surprised if he wished to avoid taking sides in this bitter family dispute.

  92. Expert valuation evidence was given. None of it was cross-examined. A chartered surveyor Ben Marshall of Wolley & Wallis was appointed as a single joint expert to value Denmans's farm. He addressed the valuation of the land on the basis of the freehold interests ignoring any interest of the company. His figure for the company ignores its land holdings. His figures were:

  93. Note that 26 and 28 High Street are part of the freehold reversion whereas The Leys is entirely an asset of the company. A further complication is that the Burnt House land is held entirely by the company and is not part of the fractional freehold reversion holdings which were held by JR and Pamela and are now with Robert and JM.

  94. There was a dispute about the value of Baxters. The original Carter Jonas valuation was £900,000 - £1,100,000 but that was without an agricultural tie. With the tie the claimant submitted it was unlikely to be worth even half that. When the fact that Carter Jonas had not considered the agricultural tie emerged, Mr Charter at Carter Jonas wrote a letter during trial (11th April) dealing with his view as to the discount to be applied. I admitted the letter. The claimant objected to this approach to deciding the matter but it is better to decide the value taking into account the tie on the best evidence...

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