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Gee v Gee & Anor [2018] EWHC 1393 (Ch)

Successful claim in a proprietary estoppel case concerning a family farm.

The claim concerned a family farm in Oxfordshire, owned by the Gee family since 1924. The business and land as a whole was valued at approximately £8million. JR Gee, in his eighties, was the grandson of the original purchaser and owned the controlling interests in the land and business. JM Gee, in his sixties, is JR's son. JR and his wife Pamela have two other children, Robert and Tussel.

JR began working on the farm in 1950s and has been a farmer his whole adult life. JM began working on the farm in the 1970s. He worked on the farm his entire adult life until 2016. He initially lived on the farm in a caravan, subsequently into a purpose-built property on the land in 1982. Robert spent one year studying for a diploma in agriculture, but until 2012 his main occupation was as a builder and property developer.

In November 2014, JR transferred all of his property and land holdings to Robert, including his shareholding in the company. Since then, Robert has been managing the farm.

The letter of claim was sent in August 2015 and proceedings were issued in October 2016. JM, the Claimant, asserted that over a period of 30 years JR, his father, assured him that he would inherit the lion's share of the farm and that he relied upon those assurances to his detriment. The proceedings were defended by JR and Robert.

Disputed Facts

The matter came before Birss J for trial. Birss J summarises the oral evidence and his conclusions as to the witnesses between paragraphs 26 to 90. He sets out his findings of fact at paragraphs 98 to 119. In summary, His Lordship draws the following conclusions:

i. JM gave evidence that it was always accepted that he would receive the land and business. He relied on various representations, which were not exhaustive and only those he could remember, as set out at paragraph 19. Birss J concluded that he was a generally honest witness seeking to tell the truth as he saw it. Parts of his evidence were found to be wrong or exaggerated when tested against the written evidence, but he was nevertheless being truthful.

ii. Pamela, JR's wife and JM's mother, gave evidence in support of JM. Her evidence was that it had always been the family's intention that JM would receive the company and lion's share of the land. Pamela was an impressive witness and gave clear, straightforward and truthful evidence.

iii. JR denied making the representations relied upon and contended that JM was a bad farmer. Birss J concluded that JR believes every word he says. He has an obsession with the absence of JM's certificate from his agricultural course. JR has convinced himself that he never made the representations relied upon, but Birss J was not satisfied that his evidence about this was reliable.

iv. Robert, supported by his wife Helen, gave evidence in support of JR. He explained that his parents had decided that JR would give everything in his ownership to Robert and Pamela would give everything in her ownership (a minority holding) to JM. Birss J concluded that neither Robert nor Helen sought to give false evidence, but could not be satisfied that he could rely on their evidence where it conflicted with that of the claimant.

v. JM and JR have never had a very easy relationship. Until recent years, it was cordial but there were significant disagreements. Nevertheless, this does not mean that JR did not intend that the farm would pass to JM. He did intend that to happen, if for no other reason than that JM was the one farming the land and was the only tenable successor.

vi. JR's extreme negative view of JM as a farmer is a recent development and has no solid foundation. The farming enterprise would not exist today without him. Robert's criticisms of JM as a farmer are also unjustified, and a likely source of the development of JR's negative views.

vii. Until 2012, Robert had very little involvement with the farm. It was only in 2014 that he undertook farming work as opposed to administrative tasks. His assertions about planning and building work on the farm were exaggerated.

Birss J sets out his conclusions as to the pleaded representations at paragraphs 105 to 110. He found some, but not all, to be proved. He accepted the Defendant's contention that they were only a few instances spread over a long period of time, but accepted the Claimant's evidence that these were only those instances that he could remember, and that there had been others. Although insufficient on its own, the evidence of various family members who held the opinion that JM was to succeed his father supports this.

Ultimately, Birss J held that, over a period of 20 years, JR made clear to JM that he would succeed his father as the farmer and owner, albeit that some provision would be made for Robert and Tussel. These were made to encourage JM to remain farming the land. These representations were made seriously, and were understood as such.

Detriment and Unconscionability

Birss J accepted the Claimant's contention that he suffered two kinds of detriment. Firstly, he worked long hours without adequate compensation. Although the Claimant did receive remuneration for his work, this was below the level to be expected given his experience and the hours worked. This detriment was not mitigated by the benefits he received as a worker on the farm, such as the purpose-built property.

Second, he gave up the chance to better himself and work elsewhere. Birss J rejected the contention that JM was a bad farmer and found that, had JM left the farm and set up on his own account, he would today be running a viable farming enterprise.

Birss J found that it had been unconscionable for JR to resile from his representations, and that an equity therefore arises.

The Remedy

Birss J stated that the relevant principles are well-established, but difficult to apply. The reasoning of Birss J is inapt for a brief summary, but is set out at paragraphs 140 to 165. In summary, Birss J determined that equity would be satisfied by JR receiving 52% of the shares of the company and 46% of the land.

Birss J proposed that this be achieved as follows, if achievable as a matter of law:

i. JM transfers back to Pamela the land and shareholding that she transferred to him to compensate for JR's decision not to pass the lion's share to him.

ii. Robert transfer his land and shares back to JR.

iii. JR procures the company to transfer the landholding to himself.

iv. JR transfers a 46% share in all the land he holds and a 52% share in the company to JM.

The Defendants raised an issue as to this proposed method of achieving the desired remedy being wrong in principle. Birss J adjourned the matter for fuller submissions on this issue.

Summary by Tom Wilson, barrister, 1 Garden Court Family Law Chambers

__________

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:

John Michael Gee
 Claimant
- and - 
(1) John Richard Gee
(2) Robert Gee
 Defendants
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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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Judgment
Mr 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:

Denman's Farm

(including let commercial units, New Farm, Burnt House Land and Rockley farm)

£6,975,000

26 High Street

£380,000

28 High Street

£365,000

12 The Leys

£210,000

Assets of company

£307,620

St Frideswides Farm

£275,000

TOTAL:

£8,512,620



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 available however imperfect rather than effectively either ignoring the fact it has a tie whereby the original value is too high or deciding what the effect of the tie is without any evidence at all.  In my judgment the proper discount to apply is 15% giving a value of Baxters today as £765,000 - £935,000


The law

95. There was no dispute about the fundamental legal principles.  A convenient starting point is Lord Walker's formulation in Thorner v Major [2009] 1 WLR 776, HL:

"29. My Lords, this appeal is concerned with proprietary estoppel. An academic authority (Simon Gardner, An Introduction to Land Law (2007), p 101) has recently commented: "There is no definition of proprietary estoppel that is both comprehensive and uncontroversial (and many attempts at one have been neither)." Nevertheless most scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance: see Megarry & Wade, The Law of Real Property , 7th ed (2008), para 16–001; Gray & Gray, Elements of Land Law , 5th ed (2009), para 9.2.8; Snell's Equity , 31st ed (2005), paras 10–16 to 10–19; Gardner, An Introduction to Land Law (2007), para 7.1.1."

96. I refer also to Davies v Davies [2016] EWCA Civ 463, and the legal propositions set out by Lewison LJ at paragraph 38. 

97. Counsel for the defendants strikingly made the point that the present case was not simply about unfairness nor could the court simply substitute its view of what might be a better solution to the family dispute as it now stands.  Counsel's point is that for the claimant to succeed the elements of proprietary estoppel have to be made out and if they are not then the case fails.  As he pointed out, in Cobbe v Yeoman's Row [2006] EWCA Civ 1139 at paragraph 16 the court explained that while unconscionability of conduct may lead to a remedy, proprietary estoppel cannot be the route to it unless the ingredients for a proprietary estoppel are present.


The facts

98. Before addressing the representations relied on there are some general factual matters which go to the overall context which are best addressed first.

99. Clearly JM and JR have a very poor relationship now but a relevant contextual issue is the extent to which the position today reflects the relationship as it has always existed.  Taking the evidence as a whole I do not believe JM and JR have ever had a very easy relationship.  The claimant's witnesses who expressed a view about it accepted there were disagreements. In doing that I believe they were downplaying what was at least occasionally a fractious relationship between father and son.  Pamela strikingly referred to the old stag and the new stag.  To characterise the relationship simply as a cordial one, as JM did in cross-examination, does not ring true.  I am sure that until recent years it was cordial for most of the time but there were also significant disagreements. 

100. Nevertheless JM and JR clearly were able to work together on the farm for decades.  Most importantly, I find that the fact they did not have a very easy relationship does not mean that JR did not, until recent years, intend that the farm or a significant part of it would pass to JM.  I have already found that JR did intend that to happen.  He had that view despite the imperfect relationship between father and son.  He had that view at least for the simple reason that JM was the one farming the land.  He was until recently the only tenable successor to JR's role as a farmer.  Robert's involvement with the farm until after the 2014 transfer was much less and of a different character.

101. As for JM's qualities as a farmer (which includes the ability to run a farm business as well as farm the land itself), it is clear that JR and JM have not always agreed about all aspects of farming but I am quite sure JR's extreme negative view today is a recent development.  I am not satisfied that it has any solid foundation.  JM was not alone working on the farm (there were another 5 or 6 employees when he started) but his work as a farmer has been the backbone of the farming enterprise for many years.  I find that the farming enterprise would not exist today without him.  I reject the idea that taking advice from an agronomist and buying products from the same source demonstrates any significant lack of competence.  It seems to me that the allegations about record keeping, desiccated seed, the balance of spending on sprays and fertilisers and over-strength fertiliser have been unduly magnified.  Robert's view of JM's abilities as a farmer is not reliable.  In all probability the true source of JR's opinion about JM's competence today has been the criticisms of his brother aired to his father by Robert. 

102. Another contextual issue is the involvement of Robert with the farm over the years.  I find that, aside from a very little work shortly after Robert finished his studies, Robert did no significant work on the farm until he started helping his father with some administrative tasks in about 2012.  He took over the farm in late 2014 and it was only after that time that Robert undertook farming work (as opposed to administrative tasks). 

103. Robert described planning and building work that he did on the farm but this either predated the time he left home to make his business as a developer or was seriously exaggerated.  For example while I accept Robert did do some planning work concerning the music room, it was minor.  Also Robert mentioned radio masts and a loft but these were trivial matters.  Moreover some of the work Robert included was effectively for his own benefit, such as work on the garage at New Farm.  Relative to the work done by JM farming the farm land full time for over 30 years, those matters were all inconsequential. 

104. So far I have not dealt with the letting business.  It is plain that today the letting business makes a significant contribution to the profitability of the company's business and this has been the case since the available figures start in 1999.  The claimant's counsel submitted that while that may be so, historically the profit from the farm derived from farming.  I am not convinced the position is sufficiently clear to draw such a simple inference.  Looking back as far as the 1950s or 60s, I do not doubt that the profit was from farming rather than letting.  However I have not had my attention drawn to evidence which shows how the significance of the letting business grew over time, as it must have done, until 1999.  I infer letting has made a more than trivial contribution to the farm's finances at least since the 1990s.

105. Turning to the representations, the first pleaded representation was said to occur in 1988.  It has the ring of truth that JM as a young man at that time thinking about his future might well say to JR than he wanted to farm on his own account and take on his father's role and ownership of the farm.  Equally at that time, even though JR was a private man not given to make promises, it is very plausible that JR would be prepared to assure him that this would happen one day ("you will one day").  It was a natural time to have such a conversation.  It would have been just as important to JR as it was to JM.  I am not convinced the marital problems JM was experiencing at that time would have caused JR to say anything different.  Nor am I convinced the fact that JR at that time did not own everything makes any difference.  The representation was not concerned with the near term nor with details about how succession would be organised.  It was and was reasonably understood to be a representation arising from the fact that JM was then and was to be in future the family member who farmed the farm.  The farm and the land would be passed on to JM in due course, no doubt many years later, in such a way that JM would succeed his father as the farmer and the owner. I accept JM's evidence about this and reject JR's denial.  The fact that no one else witnessed this representation taking place is not surprising. 

106. The second pleaded representation was said to occur at a shoot in 1993.  JM believes that he heard his father agree with a point made in a conversation he was party to with some other neighbouring farmers, that such farms should pass to the son who stayed working and farming on the farm.  I accept this probably happened despite JR's evidence that he would not have had such a discussion, but I do not accept this has much significance.  It was not a remark directed at JM or something JM could reasonably take seriously.

107. The third pleaded representation was said to have happened in a car in about 1995 when JM and JR gave the farm's bank manager a conducted tour.  I believe JM when he says that he made a remark to the bank manager that he hoped to pass the farm on to his own children.  JM says that he knew JR had heard it and that JR did not object or contradict it thus confirming JM's view that he was to succeed to it all in order to pass it on.  I have accepted the remark was made but I do not place weight on this episode.  The fact JM thought JR heard it does not establish that JR actually did hear it.  It would not have been reasonable for JM to rely on that.

108. The fourth pleaded representation was about the Burnt House land in about 1998.  The Burnt House land was bought by the company in two tranches in 1997 and 1999.  Ever since that land was bought it has just been part of the land farmed by the company along with the other elements making up the farm.  However JM's case is that he was told by JR that it was his and that it could be used in future as collateral to buy out Robert and Tussel.  That the Burnt House land was in a special category is corroborated by Jeffrey, who says he heard JR tell JM it was his (JM's).  It is also corroborated by the fact that JM at least for a period farmed that land in a different way from the way JR wanted land in general to be farmed.  It had different crops for a period and there was I think a disagreement about the merits of ploughing.  Also the idea that JM, if he was to succeed to the farm, might need collateral to buy out his siblings makes sense given the family history.  I accept JM's evidence about this representation.  I find JR did, at about the time the land was purchased, tell JM that the Burnt House land was his and that he could use it in due course as collateral to buy out his siblings.  That was and was reasonably understood to be a representation that the farm and the land would be passed on in such a way that JM would be able to succeed his father as the farmer and the owner, albeit that would involve a need for buy outs.

109. The fifth representation was in 2008 and arose from a disagreement about the location of a proposed building (later to become 24 High Street) in the gardens of 26/28 High Street, Cumnor.  I accept JM's evidence that JR did refer to JM being able to do what he wanted when "it's yours".  This supports the previous significant representations but does not add much weight to them.  I do not believe it referred only to the small plot of land itself.

110. The sixth representation was said to be in August 2009 when JR told JM that he had a discretion as to how to spend the company's income and that JM thereby understood this to mean that JM now controlled the business.  I am sure that at that time JR did give JM more say in running the business and in company expenditure.  JR had had a stroke in 2008.  It is clear that JM was making financial decisions from around this time since Robert and JR criticise him for them, and that could only have happened because JR wanted him to.  However it is also clear that JR did not relinquish control of the business, despite his advancing years.  The claimant does not rely on this matter as a representation of the same kind as the others but as something consistent with them.

111. Counsel for the defendants submitted that the pleaded representations were a thin basis for a proprietary estoppel claim.  Counsel is right to emphasise that this is only a very few instances spread over a long period of time.  However the claimant explained that these were not the only instances which he thought had occurred, rather he was sure his father had given him the assurance he contended for and these were the particular incidents he could now remember.

112. A separate strand of evidence is the fact that in addition to JM himself, a number of family members had the opinion for many years that JM would succeed his father.  This evidence cannot establish on its own that representations leading to a proprietary estoppel did exist.  It could even explain why a witness believed a representation "must have" been made when it never was.  I have asked myself whether these were just assumptions which had been made without any concrete basis or whether they do reflect the claimant's case. 

113. When JM turned down the offer of a directorship of the company in March 2012 he wrote to his parents a letter dated 9th March 2012.  Counsel for the defendants suggested that this letter and other letters at the time were inconsistent with JM having been promised the farm and the company.  In my judgment the importance of the letters and this episode is as follows.  First I accept the handwritten letters from JR as the best evidence of letters which were actually sent to JM.  Second the letters demonstrate that from that time onwards JM could not have thought that JR intended that he (JM) would run or own the company in its entirety or for that matter would own all the land.  However that does not falsify the idea that JM had in the past been promised more than what was now being indicated.  Indeed in my judgment the obvious upset caused to JM by this episode is indicative that what was on offer in 2012 was materially less favourable than what he had expected before that. 

114. Looking at the evidence as a whole, I find that over a twenty year period from the late 1980s until about 2009/10 his father JR made it clear to JM that he would succeed his father as the farmer and owner albeit that some provision would be made for Robert and Tussel.   Particularly focussing on the early years (including up to the fourth representation) I am sure they were made by JR to encourage JM to remain on the farm and farm the land.  Whatever JR's views in recent years, at least until the last representation relied on, that is what JR wanted to happen and it is what he intended to bring about.

115. I accept JM's evidence that there were other occasions on which the assurance was repeated.  Given that they reflected JR's consistent wishes over such an extended period of time I am not surprised that JM does not remember them.  The individual instances did not matter at the time since nothing was changing.  By the same token it seems to me that the evidence that other family members had the same opinion, that JM would succeed his father, is not merely an unfounded assumption they made about the natural order of things, rather it is corroborative evidence of the claimant's case.

116. The representations were serious and were understood as such.  JR was a man of his word, not given to idle discussions about such things and not given to changing his mind at all.  When JR talked about matters of this kind, which was not often, he meant what he said and expected people to understand that. 

117. Unlike some other cases, the representations in this case were not frequently repeated or a stock phrase.  Nevertheless I am sure that what he was being told by his father was a material consideration in JM staying on the farm, farming the family land and making his life there.  They were in my judgment clear enough to be relied on and in fact JM did rely on what he was being told and did stay farming the land.  Whether that amounts to a material detriment is a matter I will address below. 

118. As for the position of Pamela, I am sure JM believed that his understanding of what was to happen came as much from his mother as his father.  After all Pamela always believed that JM was to succeed JR as the farmer and owner, albeit her other two children were not to be cut out.  I find the representations were made on behalf of JR and Pamela.

119. The representations did not enter into the details of shareholdings or land holdings.  I do not accept that this renders them insufficiently certain to be relied upon.  The representation related to the farm both as a business and as a piece of land.  Both land and shares would be transferred and a clear part of them involved the proposition that JM would have to buy out his siblings in due course if he wanted to be the sole owner.  Equally part of the same representation involved the implicit proposition that the split would make a buy out feasible.  In terms of timing, it was clear that JM would take over as farmer once JR as not able to do so.  The freehold reversion would presumably be transferred on JR's death.


Detriment

120. The two kinds of detriment relied on by JM are (i) working for long hours without adequate compensation and (ii) giving up the chance to better himself and work elsewhere. 

121. On the former, JM was paid throughout at a wage equivalent to the minimum wage for an agricultural worker set by the Agricultural Wages Board.  His annual wages were fairly constant for periods but over the years rose from £7,653 pa at the start in 1987/88 to about £20,000 pa in 2008/09 and for the years after that.  They were at broadly the same level as the employee Ron Carter until 2008/09 when they rose above Mr Carter.  

122. JM was better qualified, and in the later years had more experience and responsibility, than was indicated by the grade at which he was paid.  For the work he was doing I find he would have earned a higher rate of pay elsewhere.  That would not be true at the very start in 1987/88.  It would have started once JM had some years' experience; I estimate that started at about 1992/93.

123. Although there were other employees on the farm (more in the past than recently) nevertheless JM was essentially on call all the time and was expected to and did work as and when required.  This is not surprising in the context of a family farm.  However as an employee JM should have been paid for this overtime at overtime rates.  The defendants suggest that his (and Ron Carter's) rates include an estimate for overtime.  This is based on a document called Defendants' Schedule 2.  The differences between what the schedule identifies as basic annual pay and the total actually paid including an estimate for overtime varies. The amounts vary from about 8-9% of the final total to about to 21-26%.  The lower range applies for example in 2002/03 and 2014/15 while the higher range applies in 2008/09 and in the late 1990s.  I accept that this figure represents a sum for overtime but I do not accept it reflects the actual overtime JM worked.  The estimated overtime seems to have been similar to the amount paid to Ron Carter but JM's evidence, which I accept given that it was a family farm, was that he worked more hours than Mr Carter.  JM also said, and I accept, that his working pattern impinged significantly on JM's own family life.  The detriment arising from it cannot simply be measured in lost overtime.

124. No higher wages rate figures have been drawn to my attention nor have rates or accurate times for overtime been proposed and so it is very difficult to quantify the effect of the rates and overtime.  Nevertheless doing my best a very approximate estimate for the sum lost would in my judgment be somewhere around 50% of the sum actually paid.  In round figures the total paid is about £360,000 between 1987/88 and 2015/16.  That gives an approximate estimate of £180,000.

125. JM did receive benefits as a worker on the family farm.  The most significant was accommodation, first in a caravan and then in the house Baxters.  However the status of Baxters as a benefit which could compensate for the low wages and long hours has to be gauged alongside the fact that Robert was given New Farm to live in when he was in financial difficulties even though he was not working on the farm to any significant extent.  I find that being allowed to live in Baxters (or being given it outright in 2006) is not a benefit obtained by JM as compensation for his detrimental reliance on the representations.  Given what happened with New Farm in that Robert was allowed to live in it and then given it outright, JM is entitled to treat Baxters as something given to him as a result of his status as a family member, not as compensation for time and effort spent farming. 

126. It was said that a benefit JM received was being shielded from redundancy.  I agree that at least until this dispute arose JM was unlikely to be made redundant. I do not accept the way this is put as a shield from the consequences of JM being a bad farmer.

127. Another benefit referred to by the defendants is the gift of the Rockley land.  In my judgment it is irrelevant.  It should be treated as a gift to all three of JR's children equally, not as compensation for anything.  Other alleged benefits were: widgeon wheat in the mid 1980s, store lambs in 2009, taking wood, and a shepherd's hut.  None of these minor matters are of sufficient significance to make a difference.

128. Another detriment suffered by JM was suggested to be the time spent working with his father owing to the fact their relationship has never been an easy one.  In my judgment that fits better as a matter which reinforces the point that the representations were operative on JM in persuading him to stay on the farm.  He did need reasons to stay working with his father.  The fact he understood from his father that he would inherit was an important one.

129. The other kind of detriment relied on is encompassed by the submission on the claimant's behalf that he positioned his life on the strength of the representations made to him.  Part of the defendants' case in answer was the submission that JM is a bad farmer and so in effect he was lucky to have had the shelter of a secure employment in the family farm for all these years and so lost nothing by staying.  I reject that.  I find that if JM had left Denman's and set up on his own account he would today be running a viable farming enterprise which he could pass on to his sons.  He could have done that if he had left at any time from the period when the first representation was made.  Obviously the later he might have left the less time JM would have had to set up his own enterprise.  It would not be realistic to do this now and the fact JM cannot do it now is a serious detriment to him and a consequence of his reliance on the representations made by his father.

130. In conclusion on detriment, I find JM did act to his detriment in reliance on the representations.  Both limbs are proved.


Unconscionability

131. JR has resiled from the representations he made.  I turn to consider the factors bearing on the question of whether it was inequitable to do so.

132. The offer to JM of a directorship of the company along with Tussel and Robert was in March 2012.  He turned it down at the time because he thought it was meaningless.  That episode is an indication that the relationship between JM and JR was seriously deteriorating by that time (Robert having started to be more involved from about 2010).  The refusal of the directorship is not significant for two reasons.  First because in my judgment JM was right at the time that it was effectively meaningless.  JM had already been managing outgoings by this time subject to JR's overall control.  The practical management of the company was not going to change after that date.  Second because this was not an offer relating to shareholdings or land ownership. 

133. That JR changed his mind about who should get the farm is manifest.  I have already said that his low opinion about his son's farming ability is unwarranted.  If JR's views about JM's abilities did have a reasonable basis then I still do not believe it could mean that no equity arose.  It does not alter the fact that JR made the representations he did and secured the continuation of farming at Denman's for decades as a result of JM's reliance on them.  At best, if the views about JM's ability were well founded, that might have an impact on how such an equity was to be satisfied. 

134. I do not regard the events relied on leading to JM's dismissal from the company as a material factor capable of lending any justification to JR resiling from his representations to JM.  They happened in the context of this hotly disputed claim and after JR had already made the transfer to Robert.  They do demonstrate that Robert and JM cannot work together but that fact again does not provide a justification for JR to turn his back on the representations. 

135. The defendants contend any equity that has arisen would be satisfied by the various benefits JM has been given by his parents – Baxters, the Rockley Land, school fees and the transfer by Pamela in 2014.  I have mentioned Baxters already and ruled it out as a relevant compensating benefit both in terms of having lived there before 2006 and being given it in 2006.  Looking at Baxters in the present context, the advantages JM derived from living in and then owning Baxters could not satisfy any equity arising from the circumstances when Robert lived in and was given New Farm.  Moreover the gift of Baxters could not compensate for the inability to have and run a farm business.

136. I take the same view of the part of the Rockley land which was transferred.  The transfer was in effect to all three children equally and cannot operate to satisfy the equity arising.  In any event its value today is small.

137. Pamela paid the school fees for her grandchildren, JM's children.  It took place a long time ago and I find would have happened anyway.  It is not relevant to satisfying the equity.

138. While they cannot on their own justify JR's resiling from the representations, the transfers from Pamela to JM in 2014 are clearly relevant.  I will take them into account below.


Establishment of an estoppel?

139. I am satisfied that a proprietary estoppel has been made out in favour of JM over Denman's Farm.  An equity arises.  The next task is to consider an appropriate remedy.


The remedy

140. The general principles are well established although not always easy to apply (see generally Davies v Davies (cited above) paragraphs 38-42 and also Gillett v Holt [2001] Ch 210 at 237A (minimum equity to do justice)).

141. I have not attempted to quantify the overall detriment experienced by JM relying on the representations.  The quantifiable aspects produce an approximate estimate of £180,000.  This is modest relative to the value of the property at stake. 

142. Providing compensation to JM measured in that way or gauged in some way in proportion to that figure would not satisfy the equity in this case.  The first reason why not is because the figure in the previous paragraph does not fairly characterise the detriment suffered by JM.  All it can do is express a value for the measurable part. 

143. I bear in mind the point that this is not a case in which the claimant was unpaid.  All the same, even if JM had not been paid at all it would not make a major difference to the relative difference in magnitude between the quantifiable detriment figures and value of the property at stake.  But being entirely unpaid is different in kind from JM's situation. 

144. The second reason is that JM did what his father's representations were designed to have him do over a very long period of time.  JM stayed on the farm and farmed it.  He cannot go back to being 30 years old and run his whole life again.  The appropriate approach is to base the remedy on the expectation, not the financial value of the measurable parts of the detriment. 

145. Considering the farming enterprise itself, that is determined by the shareholding in the company.  JM was promised that he would be the farmer to succeed his father.  A reasonable understanding of what that meant was that the whole shareholding of the company held by JR (i.e. all bar one share) would be his.  So JM's expectation expressed in shares was for 23,999 shares. 

146. However account must be taken of the fact that farming itself does not provide all the income and that the letting business makes a significant contribution to the profitability of the company's business.  The fact that there is a family farming business in existence at all is due in large measure to JM's detrimental reliance, but the existence of the letting business is not something that JM's detrimental reliance is responsible for.  The fair way to take that into account is to reduce the shareholding due to JM below the level of his expectation. 

147. Reducing the shareholding below 23,999 shares also allows account to be taken of other matters.  The particularly significant factors are the events from about 2012 onwards.  I will not rehearse them.  The major relevant factors include the refusal of the directorship and the fact that JM has known since then that JR was changing his mind about how the farm was to devolve.  Also significant is Robert's contribution to the business from about 2012 and his work on the farm since the end of 2014. 

148. These factors support a reduction but they are not sufficient to mean that the person who ought to be in control of the farming enterprise was Robert rather than JM.  Putting the matter the other way round, to the extent Robert's involvement and work on the farming enterprise and the other matters justify reducing the value of JM's shareholding, they do not justify reducing the shareholding for JM below the level of control nor do they justify a situation in which no one person is in control.  A critical aspect of JM's expectation was control of the farming enterprise. 

149. I should make clear I am not reducing the level of JM's shareholding because I think Robert has an entitlement to the balance of the shares based on his case about his property expertise.  I do not accept that.  The point I am considering at this stage is how much of the shareholding (if any) should go to JM to satisfy JM's equity.

150. The October 2010 mirror wills each left 48% of the shares and of the freehold reversion to JM and 26% each to Robert and to Tussel.  Pamela's evidence was that the distribution of the property rights was appropriate but when she realised later the percentages also related to the shareholding, she was shocked.  Tussel was also surprised, when she heard those terms, that JM was not to receive more of the shares than that.  I have accepted their evidence about their reaction.

151. On the footing that the company represents the farming enterprise rather than the land holding (which is a simplification but it reflects how these things were approached), the mirror wills did not reflect Pamela's intention about the shareholding.  Nor, approached on the same footing that the company represents the farming enterprise rather than the land holding, did they reflect JR's intention as it had been prior to 2010.  At all material times before 2010 his intention that JM would succeed him to the farm (or a substantial part of it) and would succeed him as the farmer would, if translated into a shareholding in the company, involve giving JM the whole shareholding (bar one share).  The terms of the mirror wills reflect the start of the deterioration in the relationship between JR and JM.

152. The effect of a 48/26/26 split would be that each sibling could be outvoted by the other two.  It terms of control the effect would be the same as each having one third of the shares.  No one sibling would have overall control.  That does not reflect the fair approach to satisfying the equity.  A division in the shares which fairly reflected what ought to go to JM and took some account of the mirror wills would be 52% for JM and 24% each for Robert and Tussel.

153. The position on the land holding is different.  There is no question of control, only of sharing in the value of the property.  JM said he expected to receive the lion's share of the land.  The relevant factor here is the point that JM reasonably understood that it would be feasible for him to buy out his siblings, just as his father had done.  One could try to quantify the expectation simply by measuring the likely cost of buying out siblings by reference to the value of the Burnt House land but I do not accept that that would be fair.  The buy out point does support the idea that JM was entitled to expect that he would own more of the land than either sibling but it cannot go any further than that.

154. One approach is this.  The total freehold acreage is about 530 acres (Denmans Farm c 200 acres including Denman's Farmhouse and buildings; New Farm c130 acres; the Rockley Land c100 acres; and the Burnt House Land c 100 acres).  So taking out the Burnt House land as being earmarked for JM, a fair share of the remainder (430 acres) between the three siblings is 143? each.  Thus taking the Burnt House land in account produces a total of 243? acres for JM and 143? acres each for Robert and Tussel.  Turned into percentages these are 46%, 27%, 27% which are remarkably close to the figures in the 2010 mirror wills (JM 48%, Robert and Tussel 26% each). 

155. Given how close these figures to the percentages in the mirror wills, I will use them (46%, 27%, 27%).  They represent the value of JM's expectation in terms of land holding.  The factors I have taken into account in reducing the shareholding due to JM as compared to his expectation do not justify also reducing his expected share of the land.

156. In terms of timing, I have held that JM was entitled to expect that the shares in the farming company would be passed to him by JR when JR ceased to be able to participate in the farming.  On the facts that must have been no later than 2014.  Equally from the point of view of the land holding, although as an expectation JM was entitled to expect that he would receive his share of the land from his father when his father died, that must implicitly include a situation in which his father chose to dispose of his land holding in advance.  Since that happened in 2014, that means that there is no need to consider accelerated receipt given that JR decided to dispose of his property in 2014.

157. So what ought to have happened when the transfers were done in 2014 is that JR ought to have transferred a shareholding of 52% to JM along with a land holding of 46%.  However JR gave Robert all bar one of the 24,000 shares, and 7/18th of land directly.  The shares also meant that through the company Robert in effect received a further 4/18th of the land which was in split ownership as well as 100% of the other land held by the company. 

158. Now the only other factor is the transfers by Pamela.  That placed one company share and 7/18ths of the land in JM's hands.  In percentage terms 7/18ths represents 38.8% (recurring) of the land.  It was intended by Pamela to compensate JM as best she could in the circumstances and ought to be taken into account.

159. I have considered whether a lump sum cash payment would be a better approach.  The merit of a lump sum if it could be arrived at would be to provide a clean break.  In this case this would be very welcome.  A lump sum could be a sum paid in effect by Robert to JM leaving the assets where they fell in 2014 or sum paid by JM to Robert leaving JM with all the shares and land.  However I have decided that neither lump sum would be a good approach.  That is for related reasons.  There is the possibility that some part of the land at Denman's Farm may dramatically increase in value in the next few years.  Given that, it is much fairer to allow the various family members to retain land holdings into the future rather than to try and convert them into a cash equivalent at this stage.  So if the land holding is going to remain in split ownership, all a lump sum could do would be to deal with the company shares.  But disentangling and valuing the shareholdings as distinct from the land is not straightforward.

160. I also bear in mind that JM today is an experienced farmer with over 30 years' experience.  He is competent to farm the land and to run a farming business.  Robert has less experience as a farmer but he is also competent to run or assist in the running of a farming business.  Both Robert and JM have children who are farmers or are interested in farming in future.  It would not be right to cut either JM or Robert entirely out of Denman's Farm. 

161. In my judgment the right way to satisfy the equity would, if it was feasible as a matter of law, be to direct a series of transfers starting with an undertaking from JM to transfer the shares and land holding back to Pamela and ending up with JR transferring to JM 52% of the shares in the company and 46% of the land. That would leave Pamela's landholding intact.  The freehold land holdings should be entirely separated from the company.  The result would be that the shares and land not in JM's hands would be held by JR and Pamela.  JR and Pamela could then dispose of those assets, other than to JM, as they saw fit e.g. to Robert and/or Tussel. 

162. A consequence of what happened in 2014 is that Tussel received nothing.  Given that she is not a party, the court has no power to direct that any property should be passed to her or to declare that it is held on trust for her.  Nevertheless it seems to me that in deciding what to do, it ought to be legitimate to take into account what the effect might be on Tussel.  An aspect of the unconscionable consequences of JR resiling from his assurance to JM is that Pamela was put in a position to try and mitigate the impact on JM as best she could.  If, when he was divesting himself of his assets in 2014, JR had transferred to JM what he ought to have done, then Pamela would not have had to give anything to JM.  She could have given her land holding to the other siblings Robert and Tussel.

163. In any event since JM's shares and land holding ought to have come from JR in the first place, it is no hardship to require them to be from that source now.  That is also the only way JM could have received a share of the Burnt House land in 2014.

164. This approach does leave the company in the hands of multiple shareholders and so probably stores up trouble for the future but in my judgment it is unavoidable because it would not be fair to deprive Robert of either a substantial minority shareholding in the company or of a share on the land.  That shareholding would be 24% if the remaining shares were split between Robert and Tussel or 48% if Robert received all the remaining shares.

165. In preparing the draft judgment I said at this stage that it seemed to me that the best way to achieve the just result may be a series of transfers along the following lines but I would hear the parties in case there are unforeseen consequences or a better approach.  The possible tax consequences and the directors' loan account also need to be considered.  The indicative series of transfers I had in mind in the draft judgment were:

i) First JM transfers his land and single share back to Pamela.

ii) Next Robert transfers his land and shares back to JR. 

iii) Then JR procures the company to transfer its land holding to himself.  That is the 4/18th holding in the freehold reversion of Denman's, New Farm and Rockley as well as The Leys and the freehold reversion of the Burnt House land.  This thereby separates the land from the company.  Since at that stage JR will hold 99.99% of the shares in the company, the value of that land encapsulated by a Pamela's single share in the company is negligible.

iv) Then JR transfers a 46% share in all the land he holds and a 52% shareholding in the company to JM.  By my arithmetic that leaves JR with 15.1% (recurring) of the land which had been in split ownership, a larger portion of the Burnt House land and The Leys, and 11,519 shares (being 23,999-12,480).

v) JM now holds 52% of the company shares and 46% of the land.  JR and Pamela are free to give the remaining shares and land that they hold to whoever else they see fit (Robert and/or Tussel or anyone else).  An undertaking from both JR and Pamela not to transfer their remaining holdings to JM may be required.

166. Turning to St Frideswide's, although formally the tenant is JR, in practice the land has been farmed by the company.  The claimant's pleaded case did not seek any relief about St Frideswide's and I considered making no order in respect of it.  However while I cannot avoid all problems in the future, leaving this undecided and making no order now would just add to them.  Plainly JR cannot farm St Frideswide's.  The right thing to do is to require JR to use his reasonable endeavours to procure a transfer of the tenancy in favour of the company.


Conclusion

167. I find the claimant's case is proved.  To satisfy the equity, if it is feasible in law, the transfer from Pamela should be reversed and JM should receive 52% of the shares and 46% of the land from the defendants.

Postscripts
168. In a note following the draft judgment the defendants invited the court, in the context of paragraph 115 above, to consider making a specific reference to the defendants' argument that none of the claimant's witnesses save Jeffrey ever claimed to have heard JR make assurances to JM about the farm.  I have that well in mind.  The argument underplays the corroborative value of the claimant's witnesses.  Jeffrey explained that he heard an assurance actually made to JM by JR, and that is firmly corroborative of assurances being given to JM.  Jeffrey is the only witness who can say today that he or she heard a thing being said to JM, however a number of the claimant's witnesses heard JR make statements of the same kind (i.e. that JM would get the farm) albeit they were not made to JM.  The fact JR was prepared to make such statements at all supports the idea that JR might well have made similar representations directly to JM.  Charles gives evidence of this sort as does Rita Pugh, Jeffrey (further occasions than the one mentioned above), Pamela and Lynne Pearce.  The fact Pamela understood that JR did not wish her (Pamela) to tell JM this does not mean JR did not do so. 

169. In the note counsel for the defendants also drew to my attention submissions which he anticipated were likely to be made that aspects of the approach to the remedy set out above were wrong in principle.  He did so in case I wished to receive further argument before finalising the judgment.  The anticipated submissions raised three matters: first that it was not open to the court to require Robert to transfer assets back to JR, second that it is contrary to the principle that the court seeks to determine the minimum equity to approach that determination as between JR and JM by permitting JM to return property to Pamela and thereby increase what must be provided to JM, and third that the court has no jurisdiction to require Pamela to enter into any undertaking.

170. In the light of counsel's note I decided that simply delaying handing down judgment altogether pending further submissions was not the right thing to do because it was always going to be necessary to hear further submissions about details concerning the transfers to satisfy the equity.  The fairest way forward was to amend paragraphs 161, 162, 165 and 167 to make them conditional on hearing fuller submissions on whether the proposed approach is feasible as a matter of law.  That is reflected in the paragraphs as they are above.