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Shirt v Shirt [2012] EWCA Civ 1029

Appeal concerning a dispute between a father and son as to the legal and beneficial entitlement to a farm. The Master of the Rolls also comments upon issues relating to judges correcting transcripts of their judgments.

The father and his son (both farmers running the farm in partnership with the mother) were in dispute as to whether or not the father had made representations to the son as long ago as 1976 that the son would have the farm passed on to him in the future.

His Honour Judge Purle QC (sitting as a Deputy High Court judge) concluded in December 2010, after a trial of eight days in September 2010 and October 2010, that no such representations had been made to the son and that the cross-claims made by the farmer against the son as to theft of animals, and other alleged wrongdoings be dismissed.

The son appealed the decision of the judge and criticised the analysis of the evidence by the judge and sought to adduce fresh evidence (earlier wills in draft).  The Court of Appeal did not allow the appeal but considered one of the grounds in greater detail that the judge had been wrong to correct the transcript of the judgment after giving an ex tempore judgment.  The Court of Appeal reversed the decision of the judge as to the loss of the tenancy of another farm to the son because the contingent opportunity to succeed to the tenancy had been lost by the partnership.  Accordingly the value of the loss of the right to succeed to the tenancy should be reflected in the partnership accounts at dissolution.

The Court of Appeal stated that it was open to a judge who gave a judgment immediately after a hearing to correct the transcript after he receives it to correct not only punctuation, syntax and sentence construction in order to make the judgment clearer and easier to read but also to amplify and clarify reasoning in the judgment.  These comments were made on the basis that there is nothing in principle to prevent a judge from making his reasoning clearer and also from a practical angle judges would require significant extra time if constrained to only giving reserved judgments.  However, it was noted that corrections should not be an opportunity for making new or contradictory points or introducing something new into the judgment.  In any event, if it were the case that something new were to be introduced then it should be made clear on the transcript.

The son also appealed the no order for costs decision made by the judge but the Court of Appeal dismissed the appeal stating it was very far from a decision that it would interfere with.

Appeal dismissed.

Summary by Richard Tambling, barrister, 1 Garden Court

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Case No: A3/2011/1123

Neutral Citation Number: [2012] EWCA Civ 1029
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
CHANCERY DIVISION
(HIS HONOUR JUDGE PURLE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 27th March 2012

Before:

MASTER OF THE ROLLS

LORD JUSTICE McFARLANE

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LORD JUSTICE LEWISON
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SHIRT
Appellant

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SHIRT
Respondent

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(DAR Transcript of
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Mr Christopher McNall (instructed by Nigel Davis Solicitors) appeared on behalf of the Appellant.

The Respondent appeared in person.
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Judgment

(As Approved by the Court)

Crown Copyright©

Master of the Rolls: 

Introductory
1. This is an appeal brought by Alan Shirt, whom I shall call "Alan", against an order reflecting part of a judgment given by HHJ Purle QC, sitting as a Deputy High Court Judge in the Chancery Division of the Birmingham District Registry on 17 December 2010, the order having eventually been drawn up on 30 March 2011.

2. The aspects of his decision which are the subject of this appeal are (i) the Judge's rejection of Alan's contention that, pursuant to a proprietary estoppel or constructive trust, he was entitled to the freehold of the entirety of Syda Farm near Chesterfield, (ii) the judge's rejection of the contention that Alan had any claim arising from the loss of a tenancy of another farm some two miles away called Rufford Farm and (iii) the Judge's decision to make no order for costs in relation to the whole proceedings.

3. The freehold of Syda Farm has been in the Shirt family for decades.  At all times material to these proceedings until his death on 21 August 2011, after the proceedings below were concluded, Syda Farm was owned by Stanley Shirt ("Stanley") who was the father of Alan, and two other sons and one daughter.  Stanley also had the tenancy of Rufford Farm until 2007.

4. In 1974, a farming partnership was formed between Stanley, his wife (and Alan's mother) Marie, and Alan.  The farm was recorded as an asset of the partnership, as was the  tenancy of Rufford Farm.  Marie died in 2004 and Alan and Stanley continued in partnership until about September 2006, when it appears that they sadly fell out, whereupon the judge found they carried on two separate businesses.

5. Stanley lived at all times in a house on Syda Farm; Alan lived in a house at Rufford Farm, but  that tenancy came to an end in 2007, and he eventually left and started living in a caravan on Syda Farm in about November 2009.  The tenancy of Rufford Farm was lost because Stanley failed to pay the rent.

6. These proceedings were started by Stanley on the basis of a claim for possession against Alan and his wife because their caravan was on the farm.  That claim for possession was effectively withdrawn shortly before the hearing, as it became clear that, as one of the joint beneficial owners of Syda farm in equity, because it was partnership property, Alan had the right to be in occupation.  However, the claim against him was effectively continued on the basis that his occupation interfered with Stanley's use of Syda Farm, and there were other allegations pursued by Stanley against Alan in relation to allegedly stolen animals and other wrongdoing.

7. Alan's estoppel case was pleaded on the basis that Stanley (i) had told Alan that Syda Farm would be "coming to him" in 1976 and (ii) had made similar statements in 1977, between 1974 and 1980, in 1981 and on three occasions in 1986.  Perhaps most significantly, it was pleaded that in about 1986 when the partnership was encountering 'serious financial difficulties', Stanley told Alan that, "the farm is yours if you want to work for it," and went on to say that his two brothers and his sister are, "making their way in life."

8. It was also alleged in Alan's pleadings that, "in reliance and acting upon the representations made to him", he worked at Syda Farm and in the farming business, "undertaking a range of arduous tasks well in excess of those which could ordinarily have been expected of an employee or partner."  It is also alleged that he did so, "for little money".  Alan did not receive a regular wage and regularly had to ask Stanley for money.

9. Alan's claim as pleaded was for (i) a declaration that he was "legally and beneficially entitled to the farm", by which he meant Syda Farm, subject to any rights of Stanley to remain thereat, (ii) declaration that Stanley, "holds the legal estate in the farm on trust for Alan absolutely upon such terms as the court may expect", (iii) an order that Stanley, "shall forthwith execute all documents and so on to give effect to such declaration", and (iv)  damages on  the basis that Alan had lost succession right to Rufford Farm as a result of Stanley's failure to maintain the tenancy of Rufford Farm (any succession claim would have been brought under the provisions of part 4 of the Agricultural Holdings Act 1986, which applied to the tenancy).

10. The trial took place over eight days in September and October 2010 and   HHJ Purle QC gave judgment orally on 17 December 2010, some two months after the completion of the hearing.  The Judge rejected Alan's claims.  He also rejected Stanley's claims and made no order for costs.  He accepted that the farm was a partnership asset but considered that both Stanley and Alan, and indeed Marie, had treated it and believed it to be as owned not merely legally but also beneficially in law by Stanley.

The estoppel claim
11. So far as the contention that Alan had a claim based on estoppel or constructive trust, the Judge considered the evidence in a little detail and then said this in paragraph 13:

"I take into account Stanley's denials, Alan's apparently truthful testimony, the inherent probabilities and the fact that critical events are very distant in time.  I am not persuaded on the balance of probabilities that the promises Alan now relies upon were in fact made in sufficiently clear terms so as to give rise to a proprietary estoppel or a constructive trust."

12. In so concluding, it seems to me that he took into account in addition to the general points made in that paragraph the following points, which he mentions in his judgment. 

13. First, in so far as any statement had been made at any meeting between Alan and Stanley, where Stanley had said that Alan could expect to enjoy the farm, Stanley would have intended and Alan would have understood the reference to be to the farming business, not including the land.  It is clear, as I have said and as the Judge said, that the freehold of Syda Farm was treated as a partnership asset in the accounts, but at the relevant time, up to 1986, the understanding was that it was not, and he concluded that the parties both would have understood the reference to the farm in any assurance or arguable assurance to be a reference to the business not including the farm.

14. Secondly, insofar as the various statements relied on by Alan were made at meetings with bankers and other people providing finance or interest, the Judge rejected that they had been made. He considered that, if they had been made, they would have led to a formalisation of the arrangement, because that would have been expected, required or recommended by the bank or other financial institution. 

15. Thirdly, in 1997, Alan through solicitors had proposed an arrangement or rearrangement of the partnership to Stanley which was inconsistent, in the Judge's view, with the notion that Alan had been led to believe, and expected, that he would own the farm in accordance with his pleaded case, let alone that he would own the farm at once.  If, the Judge reasoned, Alan had thought that he would own the farm, even if it was only after his father died, he would not have proposed an arrangement in 1997 which involved him owning only half of the farm with no contractual or other arrangement whereby he would own the whole.

16. Fourthly, the Judge thought it "inherently unlikely" that, "not only [Stanley] but also Marie Shirt were named on solemn undertakings" to Alan.  Yet the terms of the will which Marie made were plainly inconsistent with the notion that she understood that Alan would inherit the farm or become the sole owner of the farm to the exclusion of the other children of Stanley and Marie.

17. Fifthly, the Judge thought it was unlikely that Stanley would have committed himself to an arrangement which would have involved cutting the other three children out of any interest in his estate, given that Syda Farm was really his only significant asset.

18. I add that the judge might also have said that Alan's claim, namely that effectively he owned the farm at the time of his pleaded case and had the right to have it transferred to him, was not really consistent with his case that he anticipated having it left to him, or conveyed to him, on his father's death.

19. At any rate on the face of it, it seems to me that the conclusion was one which was well open to the Judge and the reasons that he gave were plainly reasons which were a proper basis for his decision.  It is particularly relevant that the Judge emphasised that the last of the statements was made as long ago as 1986, nearly a quarter of a century before the hearing, and in those circumstances, it was entirely reasonable for the judge to emphasise as he did the time which had passed since the alleged promise was made.

20. Against this, Mr McNall who appears on behalf of Alan, relies on a number of points.  First, he seeks to put in new evidence in the form of wills that were made by Stanley in 2004 and two other wills in 2005, which leave the farm to Alan.  He says that these wills are inconsistent with Stanley's case.

21. Accepting, as I am prepared to do for present purposes, that it is open to Alan to put in these wills as new evidence – although it is fair to say that there is no reason to think that they were available to him at the time of the hearing – I do not consider that they advance his case.  They do not purport to leave him Syda Farm outright or for for his life.

22. The first point to make about that is that the draft will would not therefore have been inconsistent with the judge's view that the most that was promised was that Alan would have the farming business for life.  It was perfectly consistent with that idea that Alan could simply carry on the farming business on the land.  However, the essential point is that all three wills left Syda Farm to the four children, including Alan, once Stanley had died.

23. Secondly, and equally significantly, there were before the Judge two draft wills prepared in 1993 on the instructions of Stanley and his wife Marie, both of which would have left the farm to Alan, or rather permitted Alan to occupy the farm, until 2009.  That again was said to be inconsistent with Stanley's evidence; so the 1993 wills and, for those two reasons, the 2004 and 2005 wills do not take matters any further.

24. The second point made by Mr McNall is that Stanley was an unreliable witness. It does seem that his evidence in relation to Rufford Farm and the various claims which he unsuccessfully made against Alan did involve him giving evidence which was not accepted by the Judge.  However, first of all, as was pointed out during argument by Lord Justice Lewison, the fact that a witness is unreliable in certain matters does not mean that he is unreliable in other matters, and it is notable that the judge records, to Stanley's credit, that he would not hear any criticism of Alan as a farmer.

25. Secondly, and in any event, even if Stanley had not been in a position to give evidence, the reasons on which the Judge rested his decisions to reject Alan's case that clear and unequivocal representations were made did not really rely on Stanley's evidence; they relied really on other matters as well as on Alan's evidence.

26. Mr McNall's third point is that Stanley admitted to having made representations such as Alan alleged.  The first excerpt in the transcripts of the hearing relied on is a passage in Stanley's cross-examination.  On considering it, it seems to me there is nothing in it to suggest that he did admit, let alone clearly admitted, that he made any representations such as are alleged by Alan. 

27. The second excerpt is in some closing observations made by Geoffrey, Alan's brother and Stanley's son, who appeared as a McKenzie Friend on behalf of Stanley at the hearing.  I would make two points about that.  The first is that what Geoffrey said in closing is not evidence; the second is that when one examines what Geoffrey said, he accepts that certain words were said and the words were, "the farm is yours if you want to work for it." That brings one back to the first reason the Judge found that any representation did not entitle Alan to the land, namely that the reference to 'the farm' would have been understood, and was understood, by both Stanley and Alan as being a reference to the farming business excluding the land.

28. Subject to one point, the final point made by Mr McNall was that there was no evidence to support the Judge's conclusion.  Whether the Judge was satisfied that the representations alleged were made in sufficiently clear terms, was very much a matter for him, very much a matter with which this court will be reluctant to interfere.  In this case, for the reasons I have already given, indeed given about the judge, it seems to me that there plainly were grounds for concluding, and therefore evidence to support the notion, that the representations alleged by Alan sufficient to justify an estoppel or constructive trust were not made.

29. In those circumstances, it is not necessary to deal with the Judge's rejection of Alan's case on reliance, or his finding that in all the circumstances, it would not be equitable to give Alan the whole of the farm in order to satisfy any equity that he would, if the Judge was wrong, have established.

30. It is right to say, however, that in my view, Alan would have faced a difficult task in appealing against either of those two findings.  So far as reliance is concerned, at least on the evidence we have been taken to, Alan said very little to enable him to establish that he acted in a way that he would not have done after 1986 if he had not been given the alleged assurances - and of course, as the Judge had no difficulty in rejecting any promises before 1986, it is necessary for action after 1986 or inaction 1986 to apply. 

31. As far as the Judge's finding on equity is concerned, he said this in paragraph 33 of his judgment:

"Despite all the critical endeavours undertaken in and following 1986 [that was a reference to work done to save the partnership business by negotiating with the bank], I do not regard it as unconscionable to deny Alan Shirt of the proprietary interest he seeks.  The result of the 1986 endeavours was that the partners were eventually able to persuade their bankers to accept a substantially smaller sum in full and final settlement, saving them over £200,000. That saving was in fact distributed via the partnership capital accounts, thus reflecting a proper reward. It is a reward which would accrue to them ultimately anyway as co-owners in equal shares. It does not seem to me in the circumstances realistic or just, or to be against the dictates of conscience, for Alan Shirt to accept that what he has is the one-third interest in the partnership, which includes the land."

The correction of the transcript of the judgment
32. I referred to the fact that this was all subject to one point.  On 17 December 2010, as I have mentioned, two months after the hearing concluded, the Judge gave an oral reserve judgment.  However, after getting the transcript, he then amplified the judgment in significant respects, and Mr McNall complains about those amplifications. 

33. In my view, it is open to a Judge who gave judgment immediately after a hearing, to make amendments to the transcript after he receives it, not only to the punctuation and syntax, sentence construction and order of sentences, to improve the elegance and comprehensibility of his judgment; he can also add to it by way of amplifying and clarifying findings, and indeed amplifying and clarifying the reasoning, recorded in his oral judgment.

34. It seems to me that this is justifiable for grounds of principle and practice.  So far as principle is concerned, it seems to me that there is nothing objectionable in a Judge making his reasoning clearer and more full. Indeed it is of assistance, and fairer, to the parties if he has the opportunity to do so, and indeed it assists on any appeal.

35. As far as practicality is concerned, if the law is too constraining on judges improving their ex tempore judgments, then they will be loathe to give ex tempore judgments.  The delay caused by reserved judgments, and the extra time required from judges to prepare reserved judgments, are such that we should not discourage judges from giving ex tempore judgments.

36. Once one accepts that it is open to a judge to amplify his judgment in this way, if he gives the judgment ex tempore, it seems to me very difficult to avoid the conclusion that, if a judge chooses to give oral judgment some time after the hearing, he should have the similar opportunity to amplify and improve the judgment when he receives it back in transcript form.

37. However, I should make two points in relation to these observations.  The first is that to amplify and improve is one thing; to make new or contradictory points, ie additional or contradictory to what was in the original judgment, is quite another.  If a judge does have second thoughts after receiving a transcript, he should consider particularly carefully whether to include something wholly new, or something actually contradictory, to what he said in his ex tempore judgment.  But if the judge does decide that he ought to include some such material, then he should make it clear on the face of the transcript what he has done.

38. The second qualification which has particular reference to this case is that if significant amplifications and clarifications are made to a judgment not given ex tempore, ie immediately after the hearing, but some time after the hearing, then it is almost inevitable that at least one of the parties, most likely the losing party, will be concerned as to what has happened, and will wonder if the judge really had concentrated on the issues when he gave his reserve judgment orally. In such a case, it is inevitable that, if there is an appeal the appellate court will look at the reasoning in the judgment particularly carefully. 

39. The course taken by the judge in this case was not one which I regard as generally desirable.  I put it in that slightly loose way because the particular circumstances of the case and the pressures on a judge in the particular case, may render such a course as the judge took in this case hard to avoid.  Having said that, it is, in my view, a course that is better avoided.

40. Having made those points, it is right to say that having considered the judgment in this case, I do not consider that the significant clarifications and amplifications which the judge made have caused any injustice.  He has not added any new (let alone any contradictory) material, or made any new points; he has just expanded somewhat on the facts and has made a number of the existing points more clearly and more fully.  Because of the concern expressed on behalf of Alan, I have limited my references so far to the judgment to the judgment in its original form, and not in its amplified form.

The Rufford Farm tenancy
41. I can deal with the other two grounds of appeal more quickly.  The first concerns the Rufford Farm tenancy.  The Judge said this in paragraph 42 of his judgment, and I divide it up into subparagraphs:

1. 'It was accepted that the tenancy was itself a partnership asset'.
2. 'It seems to me that Stanley Shirt acted in breach of that duty, ie a duty of a partner to preserve partnership assets'.
3. 'The loss which Alan complains of is his loss of the ability to obtain succession rights attached to that tenancy'.
4. 'The succession rights were not partnership assets; they were Alan's'.

42. It seems to me that point 1 is plainly right.  Point 2 on the facts cannot be challenged, and I do not propose to go into the reasons for it, because it is plainly right.  Point 3 is correct also, but it is right to emphasise that the loss of which Alan complained is not exactly the loss which the Judge identified; the loss he complained of is the loss of the right to apply to succeed to the tenancy once his father had died. 

43. It is point 4 on which I part company with the judge.  It is true that only Alan could succeed to the tenancy and it was therefore his right to apply, but as Lord Justice Lewison put to Mr McNall and Mr McNall accepted, the original tenancy was a partnership asset.  It was because he was working on the land that if the tenancy had continued, Alan could have applied to succeed to the tenancy.  It was only because there was a partnership that he could have made application and therefore the case, as it were, is a fortiori a classic principle in Keech v Sandford.

44. In those circumstances, it seems to me that where the judge went wrong was to treat the asset as purely Alan's.  If asset it was, the contingent right – contingent because it depended on the death of his father – to apply to succeed to the tenancy was a right which in practice Alan held on behalf of the partnership.

45. In my view, therefore, the Judge should have done was to hold that the loss of the contingent opportunity was a loss of something which Alan held, effectively, on trust for the partnership and that should have been taken into account on the drawing up of accounts.  This does not in fact affect the order the judge made because nothing in the judge's order reflected this aspect of his decision, but it may affect the basis on which the partnership accounts are drawn up.  They should be drawn up so as to take into account the fact that through Stanley's wrongful inaction, the partnership lost the benefit of Alan's right, contingent on his father's death, to apply to succeed to the tenancy.  What, if any, value that right has is not a matter for us and it was not a matter for the Judge, although he purported to make a finding about it, but it was not referred to him, as all valuation issues had expressly been left out of the matters referred to him.

The costs issue
46. That leaves the question of costs.  In an ex tempore judgment given on the day on which he read out his judgment, the Judge decided that:

"Taking all matters into account, this is a case where justice would be done by making no order for costs."

47. He considered the main issue was the estoppel issue "on which Alan and Virginia [that is Alan's wife] have lost overall, but on the other hand, there were various claims", which were "the ouster claim and the dishonesty misappropriation claim which have been made by Stanley which have failed," and there was what the Judge regarded as, "the unacceptable conduct of Mr Stanley Shirt as regards his evidence on the Rufford Farm house claim."

48. The Judge concluded that in those circumstances:

"Justice does not require Alan and Virginia to pay any part of Mr Stanley's costs, but likewise the reverse does not apply [that is what it says] and in regard to the considerable defeats that Alan and Virginia have suffered."

49. He also makes reference to CPR Part 36 offers, which we have not been taken to and I know nothing about.

50. In my view, far from this being an unreasonable view for the Judge to have taken, it seems to me to have been an eminently sensible view.  It is miles away from being a decision with which this court could begin to consider to interfere.

51. We also have to consider whether to adjust the order for costs, bearing in mind that we have reversed the judge on one point.  In my view, that point, namely the way in which the loss of the tenancy of Rufford Farm arose, and whether the loss of the opportunity to succeed to it should be dealt with in the partnership accounts, does not begin to justify any amendment to the order on costs that the Judge made.  The Judge's view on costs was an overall view, and should not be sensitive to a small change.

52. Accordingly, I would dismiss this appeal (subject to the qualification about the loss of the tenancy of Rufford Farm).

Lord Justice McFarlane:
53. I agree.

Lord Justice Lewison:
54. Formal requirements for the disposition of interests in land exist for a good reason.  They are designed in part at least to prevent expensive disputes about half-remembered conversations which took place many years before a dispute crystallised.

55. The central allegation on which Alan relied was that in 1986, some 24 years before the trial, while coming back from a meeting with Lombard North Central in Rotherham, Stanley asked him what he wanted to do.  As Lombard said, they would try to help him, that is to say, Alan.  Alan told his father that he would like to continue farming if at all possible.  According to Alan, his father replied:

"It's up to me, and the farm is yours if you want to work for it.  The others are making their  own way in life."

56. Alan replied:

"I'll work day and night to keep that farm going."

57. Alan went on to say that he had done that ever since.  He also said that at about that time, he and his father visited a company in Hatfield to secure the release of two vans that had been impounded by the receivers.  He said that his father had said to him that it was fantastic that he was staying to work with him and that the farm would come to him if he stayed and saw it through.  Stanley's pleaded case was that this representation had never been made. 

58. Mr McNall argues that Stanley admitted, either in evidence or in the closing address made on his behalf, that the representation had indeed been made.  In cross-examination, Stanley denied that he had told Alan that the farm was his.  The passage on which Mr McNall relies went like this:

"Q: And you were dealing with the NatWest and Lombard and all the rest of it?
A: And you see if you look at this, I am going there now to see that Tom (inaudible).
Q: You said that to him, didn't you?
A: He worked all night and day to keep the farm going - paragraph 10, everybody.
Q: Alan said that though, didn't he?
A: Oh, he did say that, yes; so did I; so did Linda, and Linda worked heaven knows what in the farm shop to keep it going."

59. As I read this passage, all that Stanley was admitting was that Alan said he would work day and night to keep the farm going; and that that had been said by all the family members including Stanley himself.  I do not read that as an admission that the alleged representation had been made. 

60. Stanley was represented at trial by his son, Geoff.  What Geoff said in his closing address does not rank as evidence in the case.  The passage upon which Mr McNall relies did include an acceptance by Mr Geoff Shirt that the words had been spoken.  That did go further than the evidence but in my judgment, the judge was entitled to base his findings on the evidence that had been given before him.  The point that Geoff Shirt was making and Stanley had made in evidence was that when Stanley talked about the farm, what he meant was the partnership business, rather than the freehold land upon which the business was carried on and which he held in his sole name.

61. The judge accepted that Stanley and his wife made that distinction, at least in their own minds, despite the fact that the land was recorded in the partnership accounts as an asset of the partnership.  Crucially, the judge also found that Alan had the same understanding. Thus at the time of the representation upon which he relied Alan was not aware that the land was an asset of the partnership.  Accordingly, his understanding of the partnership assets did not include the freehold land itself.

62. Thus the judge said, in relation to the representation, there was an inherent ambiguity about it.  References to the farm might mean the partnership business excluding the freehold land, or might mean the land itself.

63. As far as Alan's understanding was concerned, the judge said that he did not accept that Alan understood at the time that when talking about the future of the partnership, his parents were promising him the freehold land.

64. The judge made the following additional observations about the alleged incident.  First he said that he had severe doubts over Alan's ability to recall these incidents with the clarity with which they were expressed in the pleading, and he did not consider that they significantly influenced his behaviour.

65. Secondly, he said that he doubted very much whether Stanley ever did commit himself to passing the farm to Alan.  He reminded himself that if he accepted Alan's evidence he had to find that Stanley and his late wife reneged on solemn undertakings given repeatedly.  He also said that if the promise had been made, it would have been mentioned in pre-action correspondence but it was not. 

66. Thirdly, he said that he could not believe that Alan did not understand the significance of the promise, and that if a significant promise had been made, he would have told his solicitors about it, particularly when putting forward proposals for a partnership which Alan had put forward and which would have been inconsistent with the case he advanced before the judge.

67. Fourthly, he said it was unlikely that Stanley would have made a promise that would have had the effect of disinheriting his other children.  The wills on which Mr McNall relied did not amount to disinheritance of the other children; they amounted to no more than postponement of the other children's entitlement to the land.

68. Fifthly, the judge said that Alan accepted that the alleged promise was conditional on his proving himself, which itself depended on Stanley's judgment, and sixthly,  he said that Alan's previous experience of his father would have led him to understand that his father had a track record of changing his mind with the result that he would not have regarded any expressions of intention as amounting to a commitment.

69. Thus the judge concluded that he was not persuaded on the balance of probabilities that the promises upon which Alan relied were in fact made in sufficiently clear terms to give rise either to proprietary estoppel or a constructive trust.

70. There are essentially two prongs to Mr McNall's attack on this finding.  First, he says that the judge overlooked what he says was Stanley's admission.  Second he says that the judge should have accepted Alan's evidence, and believed Stanley where their evidence conflicted.  As I have said, I do not consider that in the course of the evidence, Stanley did admit that the representation had been made, and the judge was entitled to base his finding on the evidence and not upon what Mr Geoff Shirt, speaking on his behalf, said in closing.

71. So far as the second prong of the attack is concerned, the assessment of the credibility of witnesses and the evaluation of their evidence is pre-eminently a matter for the trial judge.  I would not accept Mr McNall's invitation to disturb the judge's assessment.

72. The second point concerns the tenancy of Rufford Farm.  This was an old-style tenancy of an agricultural holding, which carried with it succession rights.  On Stanley's death, Alan would have had to have shown that he was both eligible and suitable to succeed to the tenancy.  In order to show that he was eligible, he would have had to satisfy the principal source of livelihood test.  This required him to show that his principal source of livelihood derived from agricultural work on a commercial unit of which Rufford Farm formed part.  It would have been his position as partner that would have enabled him to satisfy that test.  Accordingly, his entitlement to succeed would have been a benefit conferred upon him by the partnership.  As such, Mr McNall accepted that if Alan had succeeded to the tenancy, he would have held the tenancy on trust for the partners, in accordance with the principles in Keech v Sandford (1726) Sel Cas. T King 61.  I think that is right.  It gives strength to the argument that Stanley's duty to preserve partnership assets would have extended to preserving the chance of succession to the tenancy.  Thus in my judgment, the judge was wrong to hold that the chance of succession was something that was personal to Alan and nothing to do with the partnership.

73. However, as the Master of the Rolls has pointed out, this part of the judge's reasoning does not form part of the order.  We need to say no more than that the loss of the chance to succeed to the tenancy of Rufford Farm is something to be taken into account on the taking of the partnership dissolution accounts.

74. On the question of costs and the process of delivering and correcting the judgments,    I agree with the Master of the Rolls.  Formally, therefore, this appeal must be dismissed. 

75. I only add that I may wish to make corrections to this judgment when the transcript becomes available.

Order:  Appeal dismissed