Auction — Land offered at auction — Agreement between prospective bidders that one would bid for all and that, if the bid were successful, the land would be divided between them in agreed portions — The bid was successful but the bidder did not divide the land in accordance with the agreement — He said that he had been advised by his accountant that to do so would risk a tax claim by the Inland Revenue on the ground that he had been dealing in land — The plaintiffs, who were the disappointed parties to the agreement, brought proceedings against the successful bidder and his wife, claiming specific performance of the agreement, and, in the alternative, damages for breach of contract — The case was heard by Mr Robert Wright QC, sitting as a deputy judge of the Chancery Division
there was a conflict of evidence, but the judge concluded that the male
defendant, who was the successful bidder, acquired the relevant lot at the
auction as agent for himself and the plaintiffs and that he was under a
contractual duty and trust to divide the land in accordance with the agreement
previously made — Apart from their denial of the agreement, which the judge
decided against them, the defendants put forward certain defences — They relied
on sections 40 and 53 of the Law of Property Act 1925, claiming that there was
in neither case a note or memorandum in writing sufficient to comply with the
statute — The judge held that this defence was defeated both by the fiduciary
nature of the first defendant’s functions in bidding as agent (which made it
unconscionable for him to rely on the absence of writing) and by the existence
of an act of part performance by the plaintiffs, namely, their deliberate
abstention from bidding at the auction — The judge also rejected a defence of
laches, holding that the plaintiffs had not been guilty of undue delay —
Finally the judge disposed of a technical plea by the female defendant, who
obtained title to the legal estate in the relevant land under section 20 of the
Land Registration Act 1925, apparently free from the equitable claims of the
plaintiffs — The judge held that the title she acquired was already impressed
with a trust in favour of the other persons interested
was that the plaintiffs were entitled to specific performance of the agreement
and it was unnecessary to consider the alternative claim in damages
The following
cases are referred to in this report.
Chattock v Muller (1878) 8 ChD 177
Daulia
Ltd v Four Millbank Nominees Ltd [1978] Ch
231; [1978] 2 WLR 621; [1978] 2 All ER 577; (1977) 36 P & CR 244, CA
Devine v Fields (1920) 54 ILTR 101
Dunphy v Ryan (1886) 116 US 491; 65 Ct 486; 29 L Ed 703
Gilmurray v Corr (1978) NI 99
Gonin,
decd, Re; Gonin v Garmeson [1979] Ch 16;
[1977] 3 WLR 379; [1977] 2 All ER 720
Lavery v Pursell (1888) 39 ChD 508
McGillycuddy
of the Reeks v Joy (1959) IRR 189
Midland
Bank Trust Co Ltd v Green [1981] AC 513;
[1981] 2 WLR 28; [1981] 1 All ER 153, HL
Nelson
Development Co v Ohio Oil Co (1942) Fed Supp
933 Illinois DC
Northumberland
Avenue Hotel, Re (1886) 33 ChD 16
Pallant v Morgan [1953] Ch 43; [1952] 2 All ER 951; [1952] 2 TLR 813
Rochefoucauld v Boustead [1897] 1 Ch 196
Steadman v Steadman [1976] AC 536; [1974] 3 WLR 56; [1974] 2 All ER
977; (1974) 29 P & CR 46, HL
The plaintiffs
in this action were Mr and Mrs Du Boulay and a Mrs Tong, who were all
interested in parts of land forming part of the Bookham Lodge Estate at Stoke
d’ Abernon, near Cobham, Surrey, which were sold by auction on June 11 1986.
The defendants, Mr and Mrs Raggett, were also interested in parts of the same
land. The plaintiffs claimed that the defendants acted in breach of an
agreement reached by the parties before the sale by failing to divide the land
acquired at the auction in the manner agreed.
K M Garnett
(instructed by Hart Fortgang & Co) appeared on behalf of the plaintiffs; C
L Purle (instructed by D J Freeman & Co) represented the defendants.
Giving
judgment, MR ROBERT WRIGHT QC said: This case arises out of an auction of land
forming part of the Bookham Lodge Estate at Stoke d’Abernon, near Cobham. The
auction took place on June 11 1986. I am concerned with the following lots: lot
3, upon which was built Gardeners Cottage; lot 4, upon which stood Gate Lodge;
lot 5, which consisted of the following fields, belts of trees and a bluebell
wood, OS1429, 1320, 9916, 1413, 0800 and 0400, comprising some 26 acres in all;
and lot 6, a paddock consisting of 2.78 acres. The estate bordered the Cobham
Road, the strip between the road and the estate was National Trust land, as was
the land on the opposite side of the Cobham Road.
Mr and Mrs Du
Boulay lived at a house called Rydal, to which access was obtained from the
Cobham Road. Mrs Du Boulay was an artist producing statues of animals in bronze
and porcelain. Mr Du Boulay, after service in the Navy, earning the Croix de
Guerre, and then in the film industry as stunt adviser and master of horse, was
retired. The Du Boulays were breeders of Arab horses.
The garden at
Rydal was far too small to accommodate horses, although from time to time the
Du Boulays had kept a horse in a small enclosure in the garden for a short
period. The Du Boulays had long wanted to buy paddock 1413 adjoining Rydal so
that they could have their horses there.
After seeing
the brochure for the auction, Mr and Mrs Du Boulay on April 29 1986 wrote to
the sellers, Mr and Mrs Rickman, offering to buy the field by private sale, but
this was refused.
The third
plaintiff, Mrs Tong, lived in Cobham. She owned a horse, and sometimes had two,
which she had to keep at livery or with friends and she very much wanted to
acquire land of her own. She noticed particulars for the sale of the Bookham
Lodge Estate from a board on the roadside, obtained a brochure and consulted
the agents. She had some £16,000 of her own, but would probably need help from
her father, Mr Cantor. Mr and Mrs Tong and Mr Cantor visited the estate on one
of the viewing days. Mrs Tong thought that lot 6, the 2.78 acres, was too small
for her purpose. Lot 5 at 25.06 acres was too large. Mrs Tong would have liked
to have kept in good condition any land which she bought and this would involve
a good deal of work on
would be far beyond Mrs Tong’s own resources but within the resources of
herself and her father.
The agents’
representative told Mrs Tong that he thought that people living in one of the
houses along the Cobham Road, Twin Oaks or Rydal, might well wish to buy some
of the land. As a result, Mrs Tong called on the Du Boulays on Sunday, June 1
1986 and learnt that if Mrs Tong succeeded in buying lot 5, the Du Boulays
would be pleased to buy paddock 1413.
The
defendants, Mr and Mrs Raggett, lived in Cobham. They were interested in buying
lot 3, Gardeners Cottage, as a family home. On Sunday, June 8 they called upon
Mr and Mrs Du Boulay to ask about noise from the M25. They were reassured on
that score. It was much quieter than on a previous visit. They explained,
according to Mrs Du Boulay, that if they succeeded in buying Gardeners Cottage
they would like the adjoining field, 9629, although their version is that they
said they were interested in the land, meaning lot 5 as a whole, and there is
no doubt that the purchase of the whole lot would provide them with an
outstanding view from Gardeners Cottage.
The Raggetts
were told that they had missed Mrs Tong, who had been there about an hour
before. Mrs Du Boulay phoned Mrs Tong at her home but was told by Mr Tong that
she had left for work: she worked on a shift system as a customer relations
officer for British Airways at Heathrow.
The parties
thus having been introduced to the scene, the issue of fact can be stated
shortly. The plaintiffs say that at meetings held on Sunday, June 8 and
Tuesday, June 10, it was agreed that Mr Raggett would bid for lot 3, lot 4 for
which he was going to bid for his company, lot 5 and lot 6. The bids for lot 5
should be for himself and the plaintiffs. If he were successful, the Du Boulays
would have paddock 1413 adjoining their house, Mr Raggett would have paddock
9629 adjoining Gardeners Cottage, and Mrs Tong would have the rest. The parties
would contribute to the purchase price and legal expenses pro rata
according to the area they were to have. This is what they say happened, as lot
5 was knocked down to Mr Raggett for £50,000 and he obtained lot 3, Gardeners
Cottage. Two variations did not, therefore, come into operation. The plaintiffs
say that if Mr Raggett did not get lot 3 he would not be interested in lot 5,
in which event Mrs Tong would bid for it. If the price had exceeded £75,000 Mr
and Mrs Du Boulay would be prepared to take another field, 0800, and so make a
bigger contribution to the purchase. Mr Raggett would be prepared to take a
part of field 9916 and so would make a large contribution. The plaintiffs’ case
is that in these circumstances Mr Raggett agreed to bid as agent for himself
and the plaintiffs and that in any event he holds as trustee for Mr and Mrs Du
Boulay field 1413 and for Mrs Tong all remaining land apart from paddock 9629
adjoining Gardeners Cottage.
The
defendants’ case is to the contrary. They say that when they called upon the Du
Boulays the Raggetts were concerned only to inquire about the noise from the
M25. They made it clear that Mr Raggett on behalf of himself or his company was
going to bid for the whole of lot 5. Having heard of the interests of the Du
Boulays and Mrs Tong, he says that he made it clear at the two meetings, which
the Raggetts say took place on Monday and Tuesday, June 9 and 10, that if
successful in obtaining lot 5 he might consider letting them have the land they
wanted, contributing to the price pro rata, but that this would depend
on two things. The first was the price he had to pay for Gardeners Cottage; if
it were a high price, he might raise the price for which he would sell parts of
lot 5 above the proportionate amount of the purchase price. The second was that
he would require restrictive covenants to limit the use of the land. He says
that he replied to a suggestion that something should be put in writing by
saying that there were a number of things to discuss with his solicitor, who
would laugh at him if he entered into such an agreement without consulting his
solicitor. In the event he says he could not sell any of the land because of
tax advice that if he did so he might be held liable for tax purposes to be
dealing in land. He says that it had always been his intention to bid for lot 5
and that he made it clear to the Du Boulays when they first met that he did not
want to interfere with any arrangements they might have and that if they were
going to bid he would say no more and go.
He says his
case is that neither the Du Boulays nor Mrs Tong ever intended to bid
independently and he says this is supported by the failure to carry out
searches and to make secure arrangements to finance the purchase.
It is clear
from what I have said so far that there is an unhappy and direct dispute as to
the facts.
In the event
of my deciding that the plaintiffs are right the defendants have a number of
defences. First, there is no memorandum in writing as required by section 40 of
the Law of Property Act 1925 if there be a contract to bid and no memorandum in
writing constituting the alleged trust as required by section 53 of the Law of
Property Act if there is a fiduciary duty. The plaintiffs’ answer to this
defence is, first, that writing is not required for the appointment of an agent
or a trustee, even for the buying of land; second, that there have been
sufficient acts of part performance, in particular refraining from bidding
against Mr Raggett; and, third, that it would be unconscionable to allow the
statute to be used as an engine of fraud.
Next the
defendants rely on laches. Mr Raggett informed the Du Boulays and Mrs Tong that
he could not let them have any land by letters which they received on the
morning of August 6 1986. The writ was issued on April 15 1987. This period of
delay might not of itself be sufficient. It was in fact largely due to advice
obtained from the solicitors for the Du Boulays and by Mrs Tong that as they
had no memorandum in writing there was nothing they could do. But the Raggetts
say that to the knowledge of the plaintiffs the Raggetts carried out a
considerable amount of work in improving Gardeners Cottage. They would not or
might not have done this work if they had not believed that, after an angry
protest on the morning of August 6, the Du Boulays and Mrs Tong had accepted
his version of the facts or had let the matter drop.
If these
defences fail, Mrs Raggett claims that she bought the legal title to lot 5
jointly with her husband and that she has acquired title as a purchaser of a
legal estate for value without notice. If these defences succeed, then the
plaintiffs would be limited to obtaining damages against Mrs Raggett, assuming
I resolve the issue in the plaintiffs’ favour. An order has been made that
these should be assessed upon an inquiry as to damages.
Having
outlined the issues I must now analyse more fully the evidence on the issue of
fact, distinguishing between the two relevant meetings, which I find were held
on the evening of Sunday, June 8 and Tuesday, June 10 1986. But I wish to make
it clear that the difference in recollection in no way reflects adversely on Mr
and Mrs Raggett. Such differences are to be expected. But the circumstantial
evidence points to the first meeting having been held on the Sunday.
The importance
of distinguishing between the two meetings arises from the fact that Mrs
Raggett was not at the second meeting. Assuming that I find that Mr Raggett bid
for himself and the plaintiffs in circumstances placing him under a contractual
or fiduciary duty, Mrs Raggett’s knowledge of the circumstances is the
important issue.
It is agreed
by all relevant witnesses that the Du Boulays and Mr and Mrs Raggett first met
on Sunday, June 8 before the meeting in the evening of that day. I must deal
with this preliminary meeting because of the light which it sheds on the two
later meetings. The Raggetts had come to pay a second visit to the land in
order to check the noise from the M25. On their first visit the wind had been
from the north and the noise had been more than they were willing to accept. On
the second visit the noise was much less at Gardeners Cottage. The Raggetts
called on Rydal primarily to inquire about the noise. Mrs Raggett also thought
that the Du Boulays might be interested in buying a paddock, as lot 5 was more
than they wanted. According to their evidence, Mr Raggett was reluctant to
discuss selling a paddock with the owners of Rydal in case they intended to bid
for the whole of lot 5. But Mrs Raggett persuaded him to raise the question by
saying that if the Du Boulays were interested in bidding, Mr Raggett need take
it no further. I accept this evidence. It indicates that at that time Mr
Raggett at least contemplated bidding for the whole of lot 5. The photographs I
have been shown show that the acquisition of lot 5 would provide an outstanding
view from Gardeners Cottage. The upshot was that Mr Raggett called at Rydal.
The accounts
of what took place differ. Mr Raggett went in first, leaving his wife and
daughter in the car. He says that Mr Du Boulay first appeared. Mr Raggett said
he came about the lots in the auction. He says that he made it clear that if
the Du Boulays intended to bid he did not want to talk to them, but he asked if
they were interested in buying a paddock. He says that Mr Du Boulay said,
‘Thank God you have come. We are at our wits’ end. We have always wanted a
paddock.’
Mr Du Boulay
invited Mrs Raggett and her daughter to come in.
to Mr Du Boulay and Mrs Du Boulay’s reaction was the same as that of her
husband, ‘thank goodness you have come’. Mrs Du Boulay said that they had tried
without success to get friends to buy the whole property, and they were
resigned to attending the auction and making the purchaser an offer for the
field they wanted and a line of conifers, which is OS1320.
According to
Mr Raggett, Mrs Du Boulay said that a girl called Erica wanted a field (no
1429) for her horse. That was a reference to Mrs Tong. She lived at Stoke
D’Abernon and the Du Boulays did not know much about her. Mr Raggett says that
his reply was that he did not want to interfere with any arrangements between
the Du Boulays and Mrs Tong. He told me that he was worried because Mrs Tong
did not live near the land and might not look after any piece of land which she
bought. He says that when they went into the garden he explained that the lots
had been arranged so that the land would go with the appropriate house. In the
case of Gardeners Cottage the land would be lot 5.
Mrs Du
Boulay’s account of this preliminary meeting is somewhat different. She accepts
that she was asked whether the Du Boulays were bidding and that the answer was
‘no’. She says that Mr Raggett said that he was interested in lot 3 and that if
he got it he would like the adjoining paddock. But she is quite clear that when
she said the Du Boulays were not bidding she did not go on to say that the
Raggetts had just missed Mrs Tong who was going to bid. Mrs Du Boulay strongly
denies that anything was said about the Du Boulays being at their wits’ end and
of being reconciled to attending the auction to approach the purchaser of lot 5
with an offer to buy the field they wanted. I accept that denial. In fact Mrs
Tong had met the Du Boulays twice before, on June 1 1986 and earlier on June 8.
She had made it clear that she intended to bid for lot 5, but as it was too
much for her she would be prepared to let the Du Boulays have the land they
required. Attempts were made to contact Mrs Tong by telephone while the
Raggetts were there, but Mrs Tong was away from home at work. Mr Du Boulay
played a minor part at this meeting.
Nothing definite
was done at this meeting sufficient to create any contractual or fiduciary
obligations on Mr Raggett. But as a foundation upon which to consider what
happened afterwards, I conclude that if Mr Raggett got Gardeners Cottage he did
intend to bid for lot 5. He was a property developer and had formed the view
that the lots had been carefully devised to ensure that land would go with the
houses and lot 5 was indivisible. He did not make this intention clear and was
told that Mrs Tong intended to bid for lot 5. The Du Boulays understood, on the
other hand, that the Raggetts wanted one field (9629) if they got Gardeners
Cottage. It may well be that the Du Boulays did welcome the Raggetts somewhat
in the way Mr Raggett suggested. Hyperbole of language was their style as
appears from their evidence in the witness box. They may well have thought that
it was desirable to look at Mr Raggett as a reserve bidder. They did not know
Mrs Tong very well and they might feel that from first appearances Mr Raggett
was a man of greater substance. However, I am sure that the Du Boulays did not
say that Mrs Tong was only interested in one field. But the meeting was
informal. The Raggetts may have been confused as to whether Mrs Tong intended
to bid and might believe that the Du Boulays thought that Mr Raggett might bid.
This confused situation is relevant in considering the Raggetts’ position.
I now turn to
what took place at the first of the two important meetings which I find were
held at the Raggetts’ home after Mrs Tong got back from work on June 8.
There were
present the Raggetts, the Du Boulays and Mrs Tong. The main witnesses for the
plaintiffs on what took place were Mrs Du Boulay and Mrs Tong. Mr Du Boulay did
not have a clear recollection and accepted that he spent a lot of time talking
to the Raggetts’ Irish wolfhound, a dog whom it would clearly be a pleasure to
meet.
Mrs Tong says
that she spoke to Mrs Raggett on the phone from the Du Boulays to arrange a
meeting. She introduced herself and said that she understood that the Raggetts
would take one field and that this was fine by her as she wanted the rest of
the land. Mrs Du Boulay and Mrs Tong said that after social formalities Mrs
Tong repeated that she wanted lot 5 but would be happy for the Raggetts to have
the one field adjoining Gardeners Cottage. They say that it was agreed in
principle that they would go for lot 5 together on the basis of the Raggetts
and the Du Boulays each having the field they wanted and Mrs Tong having the
rest. There was no discussion about who would bid. Mrs Tong towards the end
asked if they could have something in writing. Mr Raggett said he doubted if
there was time, but he would see his solicitor and see what could be done.
There is a
direct conflict of evidence between the plaintiffs’ and the Raggetts’ account
of the meeting. Mr Raggett says that he made it clear from the outset that he
was interested in a number of lots for himself and his company. If he got
Gardeners Cottage he was in a strong position to get lot 5. Mrs Tong said that
if she did not get lot 5 she would bid for the field, lot 6, at any price. That
was a field adjoining lot 4, a house called Gate Lodge, for which Mr Raggett
intended to bid for his company, and so was land which anybody buying lot 4
with its small garden would want to have. Mr Raggett says that he took this as
a threat and said that if Mrs Tong was in a position to bid she should do so.
Mrs Tong’s reply was that she wanted a field for her horse. Mr Raggett says
that he did not understand Mrs Tong wanted anything more. Mr Raggett says that
they would have to discuss conditions he might wish to impose on any sale in
order to keep the land in its then state. He says they discussed price and he
warned the meeting that it might be high. While no detailed discussions about
resources took place, Mr Raggett formed the view that the Du Boulays and Mrs
Tong did not have the resources to buy. Mrs Raggett’s account is in summary the
same. She says that Mr Raggett made it clear that he was bidding for all the
lots and that Mrs Tong said she only wanted a field for her horse. She recalls
saying to Mrs Tong that there would have to be conditions on any sale to Mrs
Tong because anything unsightly would affect Gardeners Cottage. She says Mrs
Tong agreed.
Upon this
conflict of evidence I have reached the following conclusions about what took
place at the meeting. Mrs Tong did say that she intended to bid for lot 5. She
opened the meeting in this way. Mr Raggett did not assert that he was going to
bid in competition with her. The meeting was concerned about how lot 5 would be
divided between them. This was on the basis of the Du Boulays and the Raggetts
each having one field. The meeting did not proceed on the basis that Mr Raggett
would buy the land and consider selling off parts subject to restrictive
covenants. I accept the denials of Mrs Du Boulay and Mrs Tong that any
suggestion was made that they should submit to covenants. The Du Boulays very
much wanted to get the field they wanted. I accept the evidence that if Mr
Raggett had said that their chance of getting the land depended on accepting
any conditions he might impose they would have told him to get lost. At most
there was an informal agreement that the land should be left in its then
present state. But this was merely an expression of a desire and common
intention.
I believe that
this conclusion is supported by the circumstances. In particular it is clear
that Mrs Tong and her father, Mr Cantor, were making full preparations to bid
for the whole of lot 5. These preparations were realistic and would have been
sufficient to pay the price which was achieved and which was in line with the
guide price. Moreover, Mrs Tong had assessed her needs as being for one or
possibly two horses and she did want more than one field. It was said that she
had not caused searches to be carried out, which would be necessary if she were
a serious bidder. In fact she did instruct a solicitor but asked him to take no
further action after Mr Raggett had said that he had made searches and was
sufficiently satisfied. There was pressure of time, and I do not consider that
the failure to take more effective legal advice negatived in any way Mrs Tong’s
evidence that she intended to bid for lot 5. The Du Boulays had taken no formal
steps to raise finance. But they had a considerable sum in the Channel Islands,
their house was unencumbered and I am satisfied that if they had not met Mrs
Tong they would have used these resources unless they could get some assurance
before the sale. They thought that it was all settled that they would get their
field.
I now turn to
the second meeting which all agree was held on Tuesday evening, June 10, at Mrs
Tong’s invitation at her house. There were present Mr and Mrs Tong, Mr Cantor,
Mr and Mrs Du Boulay and Mr Raggett. As far as the Raggetts were concerned, the
invitation was given by Mrs Tong in a phone call to Mrs Raggett. The Raggetts
say that it was merely a social invitation for drinks. I do not accept that
evidence. Mrs Raggett did not go; she had unfortunately had a car accident that
day and was upset. Mr Raggett was told of the invitation when he arrived home
late, tired, hungry and somewhat irritable at having to go out again. There
would have been every justification in declining the invitation with regret.
All recognised that the purpose of the meeting was to make final plans for the
auction which was to be held next day. In fact when Mrs Tong spoke
to Mrs Du Boulay to arrange the meeting she said that they had to have
everything certain.
There is an
acute conflict of evidence about what took place at this meeting. The Du
Boulays and the Tongs say that a plan of the estate was on the floor and that
the parts of lot 5 which each were to have were identified. The Raggetts would
have the field next to their house, the Du Boulays would have the field next to
their house. Contributions to the purchase price would be in proportion to
area. This would be the position up to a price of £75,000. If the price went
over £75,000 the Du Boulays would take another field and Mr Raggett would
consider taking a part of the field next to the one which he was going to have.
These arrangements were definite as far as the Du Boulays and Mrs Tong were
concerned. The Du Boulays in that event were to have one extra identified
field. In the case of the Raggetts it was not settled how much extra land they
would have by taking part of the next field. Mr Cantor confirmed this account
of the meeting and that the various fields were definitely identified in
relation to an auction plan, but he does not recollect that the plan was on the
floor.
All five are
agreed that Mr Raggett was asked whether he had got anything in writing and
that his reply was that there had not been time. The question of who was to bid
was discussed. All five had assumed up to then, I believe, that Mrs Tong would
bid, but she said that she was nervous as she had not bid at a public auction
before. Mr Raggett said that things often went quickly and that sometimes the
opposition was hostile and intimidating. As he was bidding for lots 3, 4 and 6
he might as well bid for lot 5 as well. This was agreed.
Turning to Mr
Raggett’s account of what took place, it is quite different. He says that when
he arrived home late on June 10 he was not keen to go out again on what he
believed from his wife was a social occasion. But as it was a bit late to
refuse he went. He said that he made it clear that he was bidding for Gardeners
Cottage and his company had extensive means to bid for the other lots. He would
bid strongly for lots 3, 4, 5 and 6. He was aware that Mrs Tong would bid for
lot 6 and he says that Mr Cantor said that his daughter had attended auctions
and had been too frightened to open her mouth. Mr Raggett advised her that one
had to be positive and single-minded as the opposition was often unnerving, but
that was on the basis that he would be bidding independently.
Mr Raggett said
that a price was discussed. He got the impression that £75,000 was the maximum
to which Mrs Tong and the Du Boulays would go. He said that he would pay more.
Mr Raggett says that as he was leaving he said that he was thinking of selling
off fields to the others on a pro rata basis and that Mrs Du Boulay
repeated this phrase. Mr Raggett says that he made it clear that this would
depend on the price he had to pay for Gardeners Cottage and covenants to keep
the land as it was. He says that he said: ‘If I have to pay a lot for that
house, I am not going to give you the land, am I?’ He says that this was accepted.
He accepts
that Mrs Du Boulay asked if there could be something in writing and he replied
‘no’. He had to discuss it further with his solicitor: ‘He would laugh at me if
I had entered into such an open-ended agreement’. He says that field 9916 next
to field 9629 next to Gardeners Cottage was separated from 9629 by a hedge and
a deep drainage ditch, which was a main drainage ditch for the common. There
was no discussion about moving the fence. He says that there was a barn on lot
5 which was on the boundary with the Cobham Road. It was important as it was
the only building on the lot. Nothing was discussed about it.
There can be
no question of a misunderstanding as a solution of this conflict. I have come
to the conclusion that the plaintiffs’ version is to be preferred. This is
mainly the result of an assessment of the witnesses. But it also depends on
what I believe is the inherent likelihood of the two accounts. It is clear that
before the Raggetts came on the scene Mrs Tong was intending to buy. She could
not do so without help from her father, Mr Cantor. He made realistic and
prudent arrangements with his bank to provide finance. There is no doubt that
the Du Boulays had the resources to make a bid and that they were prepared to
go to almost any length to get the field next to their house. Even if, contrary
to my finding, the meeting was originally intended to be social, it is quite
clear that the forthcoming auction was the main topic of conversation and that
the Du Boulays and Mrs Tong would seek to secure their requirements. Yet Mr
Raggett says that he made it clear that he would bid for lot 5 and that he
understood that Mrs Tong would be bidding only for lot 6 with the implication
that she accepted that Mr Raggett would get lot 5. Yet he says that it was only
when he was leaving that he said he was thinking of selling the fields the
others wanted pro rata but dependent on what he had to pay for Gardeners
Cottage and such restrictive covenants as he might think fit to impose. I find
it incredible that if Mr Raggett said he would bid and had large resources the
others would not have tried to secure their position, and the whole discussion
would have centred on this point, not just left to a statement by Mr Raggett at
the end. Further, having regard to the steps taken by Mrs Tong and Mr Cantor to
provide the resources to enable Mrs Tong to bid, I do not think it likely that
she would have ceded the bidding to Mr Raggett for his own benefit without
strong protest and attempts to secure the position which she wanted.
Some
contemporary entries in Mrs Du Boulay’s diaries support the plaintiffs’
version. They record that on June 1 Mrs Tong had been sent to see the Du
Boulays by the agents. The entry records that Mrs Tong was interested in buying
lot 5 but did not want the whole of it. She asked if the Du Boulays would take
their paddock from her. This is consistent with Mrs Tong’s evidence that the
agent had advised her to see whether anybody in the houses on the Cobham Road
would take some of the land Mrs Tong did not want.
The defendants
placed considerable reliance on a letter dated October 4 1986 from Mr Tong to
Mr Raggett. That letter stated that it was Mrs Tong’s intention to bid for lot
5. It then went on as follows:
I would like
to make it clear that you approached my wife, through Mr and Mrs Du Boulay, as
you were seeking potential purchasers for that part of lot 5 which you did not
require.
The letter then
went on to say that Mr Raggett had agreed to sell Mrs Tong 1429, 9916 and 0800,
and that it was on the basis of that agreement that Mrs Tong did not bid for
lot 5 or lot 6. Mr Tong did not accept that the sentence quoted showed that Mr
Raggett was not bidding on behalf of all the parties, and there is no reference
to the dramatic change of bidder from Mrs Tong to Mr Raggett because the former
was nervous. Mr Tong’s answer was that the letter simply records what was
finally agreed and that the failure to honour the agreement was a betrayal of
trust.
The letter was
written in answer to a letter dated September 11 1986 from Mr Raggett in which
he asserted that the discussions before the auction were on the basis that the
Tongs and the Du Boulays wanted two fields because they could not afford to bid
for the whole of lot 5, that if he had not got Gardeners Cottage he would not
have bid for lot 5 and that he understood that in that event Mrs Tong and the
Du Boulays would have approached the ultimate purchaser to see if he would sell
the two fields. In fact in his letter Mr Tong was concerned mainly to claim
that Mr Raggett had betrayed a trust. The passage quoted gets the person who
made the approach the wrong way round, but the letter as a whole correctly states
the plaintiffs’ position that Mr Raggett purchased lot 5 on terms that Mrs Tong
should have the fields mentioned in the letter and one further one, 0400, which
Mr Tong omitted in error. In any event, the plaintiffs’ case was accurately
stated in a letter dated August 28 1986 from Wilkinson & Durham, the then
solicitors for the plaintiffs.
Reliance was
also placed by the defendants on the evidence of a Miss Elspeth Rees, then
working for Messrs Maxwell Batley, but now working for the defendants’ solicitors.
The substance of her evidence is contained in an attendance note she made on
August 8 1986 of a telephone conversation with Mrs Du Boulay. Mrs Du Boulay is
reported as saying that she had a verbal agreement to buy a paddock from the
purchaser of the neighbouring estate and that he was now refusing to sell. Mrs
Du Boulay is said to have said that the purchaser had approached her and said
that he wished to purchase the whole estate but would sell the paddock. The
note continues: ‘She made similar offers to other landowners’. Apart from the
error about who made the approach, Mrs Du Boulay’s statement accurately
summarised the upshot, that Mr Raggett had bought the land and had agreed to
sell a paddock to the Du Boulays and had the same arrangement with others,
which would cover Mrs Tong. There may also be some confusion with some earlier
report that Mrs Du Boulay made of some early attempts to find a purchaser of
the whole. Miss Rees did not go into the matter at all deeply. The attendance
note and the short letter which followed simply advised that nothing could be
done because there was nothing in writing. I do not think that this episode
materially assists the defendants.
A Miss Ruth
Stevens, the head groom at the Bookham Lodge Stables, was called by the
defendants to give evidence about what happened when she and Mrs Tong were
riding along the Cobham Road alongside lot 5. Miss Stevens says that Mrs Tong
clearly
were going to buy one field and that she (Mrs Tong) made this clear by
pointing, and that the purchaser had refused to sell. The conversation started
with a question from Miss Stevens about who owned the field, 1429, next to the
Cobham Road. Mrs Tong replied that it was a long story. Mrs Tong might well
deal with that field without explaining that it was only one of the fields
which she expected to buy. I do not think that any of the episodes I have
mentioned taken alone or together, or in any other circumstances, indicate that
the original position of the plaintiffs was any different in substance from
their present evidence or that their recollection has been distorted by
brooding upon their undoubted sense of grievance.
There was
another brief meeting at the Burford Bridge Hotel before the auction. It is
clear that the auction was not much discussed, because those taking part did
not want to disclose to people nearby who might be attending the auction that
they were acting in concert. Those present were Mrs Du Boulay, Mrs Tong, Mr
Cantor and the Raggetts. When they went into the auction they all sat in the
second row. Mr Raggett says that he was surprised at that because as they went
in he suggested that Mrs Tong should sit at the back in order to see who got
lot 5, presumably so that if it were not Mr Raggett she could approach the
buyer to ask for a field. Mrs Tong denies that Mr Raggett made that suggestion
and I accept her denial.
After the
auction when Mr Raggett was successful in acquiring lot 5 for £50,000 Mrs Tong
and Mrs Du Boulay were jubilant. They all went back to Rydal for tea. Both
outside the auction room and at Rydal, the Du Boulays and Mrs Tong offered
their share of the deposit, but Mr Raggett said it was not necessary and it
would be cleared up eventually when everything was sorted out. This sense of
jubilation was expressed in Mr Raggett’s presence. It was expressed in terms
that they were entitled to their share of lot 5. It was not simply a question
of negotiating with Mr Raggett the terms upon which he might or might not sell
them a field. Mr Raggett recognised that he was under an obligation to sell, or
at least under an obligation of some kind, which would justify the remorse that
he subsequently felt at having to renege on the obligation on tax advice, as I
shall explain later.
In these
circumstances I have come to the conclusion that Mr Raggett as agent for
himself, the Du Boulays and Mrs Tong did acquire lot 5 on the basis that the
Raggetts and the Du Boulays would have one field each and Mrs Tong the rest,
and that in the circumstances Mr Raggett was bound under a contractual duty and
trust to divide the land accordingly.
Mr Raggett did
not divide the land accordingly. He says that when walking the property with
his solicitor shortly after the auction, the solicitor suggested that Mr
Raggett should take the advice of an accountant on the tax implications. The
accountant reviewed the history of transactions which the Raggetts had carried
out and advised that they should carry out no further transactions, lest the
Revenue claim that they had been dealing in land.
Mr Raggett on
August 5 1986 wrote briefly to the Du Boulays and Mrs Tong saying that
circumstances had arisen which made it impossible to consider selling any part
of the land in the foreseeable future. On receipt of the letter next morning
the Du Boulays and Mrs Tong went round to the Raggetts’ house and they were
there told that upon tax advice the Raggetts could not enter into any
transaction in land for a considerable period. I have come to the conclusion
that this advice was seized upon by Mr Raggett, although I accept that Mrs
Raggett was concerned over the advice. She was frightened about the possible
consequences and she could not be expected to try to find a way round. The
position is different as regards Mr Raggett.
The reasons
for my conclusions about Mr Raggett are the following. First, when asking Mr
New, the accountant, about tax advice, he did not explain that there was any
commitment to sell part of the land to Mrs Tong or the Du Boulays. If he had,
the advice might have been different, since the commitment might negative an
argument that there was dealing in land. The accountant might have been able to
advise that a transfer pursuant to this commitment would not be treated as
trading. He might have advised that this point might be put to the Revenue to
see what their view was. More important was Mr Raggett’s reaction to a letter
dated August 28 1986 from Wilkinson & Durham, solicitors for the
plaintiffs, a letter to which I have already referred. The solicitors wrote to
say that their clients still wanted to acquire the land. They recognised that
they could not prejudice the Raggetts’ tax position, but they would like to
discuss the position with the Raggetts’ solicitor to see if there was any way
in which the common wish of the three parties involved could be implemented. Mr
Raggett’s reply, dated August 11, said that he had been advised that it would
be against his interests to have any further dealings with the land within the
foreseeable future. He then went on to say that his understanding was that the
Du Boulays and Mrs Tong were not in a financial position to bid for the whole
of lot 5, that his purchase of lot 5 was in no way conditional upon the part
resale to the Du Boulays and Mrs Tong and that if there had been such a
condition the difficulties would have been researched and brought to light
sooner. This assertion that he was under no obligation to sell and that the Du
Boulays and Mrs Tong had no justifiable complaint is quite contrary to what I
have found took place at the two meetings on June 8 and 10 1986. It is also
inconsistent with his evidence that when he was advised he could not sell he
felt awful.
Upon this
state of the facts I must now consider the various legal defences put forward.
The first is
under sections 40 and 53 of the Law of Property Act 1925. Both these sections
raised the same issue, namely whether there was a contract or trust created on
the facts, but if there was in either case or both cases then there was no
sufficient memorandum in writing to satisfy the provisions of the sections.
I have come to
the conclusion that there was a firm agreement reached at the meeting of June
10 1986 that Mr Raggett would bid for lot 5 on behalf of himself, the Du
Boulays and Mrs Tong up to a price of £75,000. Each party would contribute to
the cost in the proportion to the area each was to have. If the price had gone
higher, there might be some difficulty in establishing a contract in terms
sufficiently precise to be enforceable. For one thing, the extra area to be
taken by the Raggetts was uncertain. I have taken into account the possibility
that if the parties intended there to be one entire contract, such uncertainty
as to part would vitiate the whole. I have come to the conclusion, however,
that there was a firm agreement for a price up to £75,000. The discussion about
what would happen if the price went above £75,000 was a separate matter and did
not prevent the conclusion of an agreement up to that figure.
As regards Mrs
Raggett, the effect of the first meeting on June 8 1986 did not impose an
agreement on her. There had been no agreement about who was to bid and there
had been no firm agreement about the price. But there was a sufficient
consensus to establish that lot 5 was to be bought on behalf of all three
parties and the division between them was agreed in principle. I have also
found that the purpose of the second meeting was known by all to be settling
the final arrangements for bidding for lot 5.
In these circumstances
I am satisfied that Mrs Raggett is under a fiduciary duty to give effect to
what was agreed at the meeting on June 10 even if no formal agreement
appointing Mr Raggett as her agent is to be inferred. In reaching this
conclusion I have taken account of the argument of counsel for the defendants,
supported by Dunphy v Ryan, decided in the Montana Law Courts in
1885 [(1886) 116 US 491], that where no agreement is established for a contract
concerning the land the court should be slow to infer a fiduciary obligation to
make good the lack of a contract in writing.
There is no
memorandum in writing to satisfy either section 40 or section 53, but counsel
for both sides accept that this is no defence if it is established that Mr
Raggett was to bid as agent, because it would then be unconscionable for Mr
Raggett at least to rely on the want of a memorandum in writing. The cases
cited in support of that proposition were Chattock v Muller
(1878) 8 ChD177 and Rochefoucauld v Boustead [1897] 1 Ch 196. But
counsel for the defendants argued that this position obtains only if Mr Raggett
were to bid as agent for himself and the other parties. He says that in the
cases I have cited the fact of agency was established, and he referred to other
cases which establish that it is necessary in a case like the present to show
that Mr Raggett was bidding as agent for himself and the plaintiffs before the
requirement of a written memorandum can be overridden. He cited Pallant
v Morgan [1953] Ch 43, three Irish cases, Devine v Fields
(1920) 54 ILTR 101, The McGillycuddy of the Reeks v Joy (1959)
IRR 189, and Gilmurray v Corr (1978) NI 99, and an American
authority, Nelson Development Co v Ohio Oil Co, decided in 1942
[July 28] by the District Court of Illinois reported in 45 Fed Supp 933. I
accept the force of these authorities in support of this submission if the
factual basis justified the defence, but I do not think they apply. They would
apply if the facts in the present case were that Mr Raggett was to purchase on
his own and then would negotiate a sale to the other parties. That is not the
facts as I find them. I have found that Mr Raggett only took over the task of
bidding from Mrs Tong at the meeting of June 10 and that he did undertake to
bid for himself and as agent for the other parties, and that in any event
whoever bid did so under a fiduciary duty to all the parties. It is true that
at the meeting on June 8 Mrs Raggett did not know that Mr Raggett was going to
bid. That was only decided on June 10 at the second meeting, at which Mrs
Raggett was not present. But the principle that one should bid for them all had
been settled at the first meeting and that is sufficiently precise to establish
a fiduciary duty consistent with the authorities to which I have just referred.
Counsel for
the plaintiffs argued that in any case Mr Raggett’s appointment as agent was
effective, since no formalities are required for the appointment of an agent to
enter into a contract that is required to be in writing, and he referred to Bowstead
on Agency, 15th ed, art 9 at p 46. That is no doubt so as regards the
appointment of an agent, but the article then goes on to make it clear that if
the land to be bought by the agent is conveyed to him so as to vest the legal
estate in him, the agent holds as trustee and that the difficulty of sections
40 and 53 is not avoided simply because the original appointment as an agent
did not require to be in writing. So the question is whether there is a
sufficient fiduciary duty on this basis.
In the
alternative to alleging a trust which creates fiduciary duties overriding
sections 40 and 43 of the Law of Property Act 1925, the plaintiffs rely on the
doctrine of part performance. A number of matters are alleged by the plaintiffs
to be acts of part performance. Some of these matters cannot be acts of part
performance, namely, the fact that the plaintiffs and Mr Raggett attended the
auction, that Mr Raggett bid successfully for lots 3 and 4, the provision of
the names of the plaintiffs’ solicitors at the request of Mr Raggett, the offer
by the plaintiffs to pay their share of the deposit and Mr Raggett’s refusal,
the act of the plaintiffs in informing their solicitors that they could expect
to hear from Mr Raggett’s solicitors and the cancellation by Mrs Tong of her instructions
to her solicitor to make the requisite searches. These acts are, in my view,
either neutral or equally consistent with Mr Raggett’s attitude that he would
consider selling to the plaintiffs parts of lot 5. I do not think that these
matters, taken either alone or cumulatively with the others and those I am
about to mention, are acts of part performance.
The alleged
acts which require further consideration are that the plaintiffs refrained from
bidding for lot 5 and that Mrs Tong refrained from bidding for lot 6,
notwithstanding that it is accepted that she had said if she did not get lot 5
she would bid for and get lot 6 whatever the price. This last point was of
practical importance to Mr Raggett. He bid for and obtained lot 4 for his
development company. That was a house called Gate Lodge with a small area of
land round it. Lot 6 would go with it, and in fact Mr Raggett said that he
thought that the lots had been arranged so that the land, such as the paddock
which was lot 6, would go with the adjoining house, Gate Lodge.
Mr Purle for
the defendants claimed that none of the acts alleged could amount to acts of
part performance. Any such act had to be referable to a term of the contract.
He referred me to Daulia Ltd v Four Millbank Nominees Ltd [1978]
Ch 231 and Re Gonin decd [1979] Ch 16. In reply, counsel for the
plaintiffs, Mr Garnett, referred me to Steadman v Steadman [1976]
AC 536. I think the effect of these decisions to be this. The acts of part
performance need not relate to a contract relating to the particular land. But
the acts relied on must point on the balance of probabilities to there having
been some contract between the parties. If this test is satisfied, then oral
proof of the actual contract is admitted. The principle is stated in the
following passage from the speech of Lord Reid in Steadman v Steadman
at p 541, stating the ratio decidendi to be found in the headnote at p
536:
You must not
look first at the oral contract and then see whether the alleged acts of part
performance are consistent with it. You must first look at the alleged acts of
part performance to see whether they prove that there must have been a contract
and it is only if they do so prove that you can bring in the oral contract . .
.
And then later
on the same page:
In my view,
unless the law is to be divorced from reason and principle, the rule must be
that you take the whole circumstances, leaving aside evidence about the oral
contract, to see whether it is proved that the acts relied on were done in
reliance on a contract: that will be proved if it is shown to be more probable
than not.
Applying these
principles to the present case, I have come to the conclusion that the omission
of Mrs Tong to bid for lot 5, and even more her omission to bid for lot 6, did
point on the balance of probabilities to there having been some agreement about
bidding for the land. Taking account of all the circumstances, this was very
probably the case. If so, the agreement to bid as agent can be proved orally.
It is so proved, as I have found above. Mr Raggett bid as agent for himself and
the plaintiffs.
Another issue
between the parties arises from the doctrine of part performance. The main
claim by the plaintiffs is to get the land which it was agreed they should
have. But alternatively they claim damages for breach of contract, and it is in
this connection that I am dealing again with the question of part performance.
They claim damages for breach of contract and an account of rents and profits.
The defendants claim on the authority of Re Northumberland Avenue Hotel
(1886) 33 Ch D 16 and Lavery v Pursell (1888) 39 Ch D 508 that as
the alleged contract cannot now be specifically enforced by reason of lapse of
time the jurisdiction to award damages instead does not apply so that the
doctrine of part performance does not give the plaintiff a right to obtain
damages. This point would be relevant only if I were to conclude that the
plaintiffs cannot in effect now obtain specific performance by getting the land
they were to have. For reasons which I mention below, I have come to the
conclusion that I can order the land to be divided and that I should do so
subject to discussion of the machinery.
The next
defence put forward is laches or delay. It is said that the litigation should
have been instituted more quickly because, first, the Raggetts might not have
moved to Gardeners Cottage under threat of litigation, and, second, they spent
a great deal of money in renovating Gardeners Cottage, which they might not
have done at all or done on the lavish scale which they did if they were under
threat of litigation. I have come to the conclusion that this defence fails. I
consider first the period of delay. The period from the date of the auction to
August 5 1986 is due to the inactivity of the Raggetts. There is some dispute
about the number and effect of telephone calls or meetings at which the
plaintiffs were assured that everything was all right. I need not resolve this
dispute because, even if there had been no queries, the delay to August 5 would
be attributable to the Raggetts. Mr Raggett had taken the particulars of the
plaintiffs’ solicitors, and they could expect Mr Raggett to make the next move.
On August 5
1986, as I have explained, Mr Raggett wrote a short letter to the Du Boulays
and Mrs Tong saying that it was impossible for him to consider selling any land
within the foreseeable future. This led to the angry meeting the next morning.
Thereafter, solicitors for the plaintiffs wrote the letter dated August 28
1986, to which I have already referred, stating the plaintiffs’ case and asking
for an opportunity to consider how the difficulty could be resolved in
consultation with the Raggetts’ solicitors. Mr Raggett replied on September 11
giving his version of the matter and saying that nothing could be done. On
October 4 1986 Mr Tong wrote to Mr Raggett the letter to which I have already
referred, asking Mr Raggett to reconsider his position. There was no reply to
that letter and the plaintiffs were entitled to wait for a reasonable period in
the hope that Mr Raggett would reconsider his position. So the relevant period
is from the middle of October 1986 until the letter before action dated March 9
1987, which was followed by the writ dated April 15 1987.
I do not think
that there was an undue period of delay. The explanation for it was disclosed
in the evidence of Miss Rees, called by the defendants, that she had advised
that nothing could be done for want of a memorandum in writing. The Raggetts
moved into Gardeners Cottage in April 1987. Much work would have been done by
then. I cannot accept that the Raggetts had any sufficient ground for
believing, when they put the work in hand, that the plaintiffs had accepted
that they had no rights or that the Raggetts decided to do the work in the
belief that they were safe. They would have moved in in any case. They could
not have sold the property and remained in their then home without incurring
the risk of being held to be dealing in land. They could not have kept both
Gardeners Cottage and Willow Cottage, their then home. Mr Raggett told me that
the proceeds of the sale of Willow Cottage were used to pay off a bridging loan
for the purchase of Gardeners Cottage and lot 5. I do not think that if there
had been any claim the scale of work would have been anything less. In any
case, in the circumstances I think that the plaintiffs acted with reasonable
promptness.
The final
question concerns Mrs Raggett’s position. Counsel for the defendant points to
the fact that lot 5 was conveyed to Mr and Mrs Raggett jointly. Money was
provided from a joint account. The title was registered. The plaintiffs’ title
could have been protected by a caution. This was not done. Accordingly the
effect of section 20 of
free from the equitable claims of the plaintiffs. Counsel accepted that Mrs
Raggett’s claim to be free from any equity because she was a bona fide
purchaser for value would be displaced by an equitable obligation imposed upon
her by the principle that a statute cannot be used as an engine for fraud. But
he relied on the case of Midland Bank Trust Co Ltd v Green [1981]
AC 513, and in particular on the speech of Lord Wilberforce at p 530, in
submitting that it was not a fraud for Mrs Raggett to rely on the legal
position. That case was decided under the Land Charges Act 1925. An option
granted by a father to his son which could have been registered as a land
charge was not so registered. The father, in order to defeat the option,
conveyed the property in question, worth £40,000, to the mother for £500. The
son failed to have the conveyance set aside on the ground that the words of the
Act making the option void against the mother’s estate were not to be qualified
by any requirement that a purchaser must take in good faith or that the moneys’
worth should not be nominal. It was not a fraud on the mother’s part to take
advantage of the legal position resulting from the legislation. This would be
so even though part of the mother’s purpose in taking the conveyance was to
defeat the option. There is no material difference in this respect between
section 20 of the Land Registration Act 1925 and section 13 of the Land Charges
Act 1925, which was in issue in the case just cited. Neither imports the
element of good faith. It is further true that Lord Wilberforce discussed the
problem in the context of the whole body of the 1925 land legislation.
I recognise
the force of the argument, but I do not think that it avails Mrs Raggett, for
the reason that she acquired the title already impressed with a trust. Let me
illustrate the point by taking an extreme case. Suppose that there had been a
document in writing whereby Mr Raggett had been appointed as agent to bid for
lot 5 for himself and the plaintiffs and supposing that he then had the
property registered in his name without absolute title, no caution or
incumbrance being registered. I do not think that he could rely on Midland
Bank Trust Co Ltd v Green to claim that he could keep the whole
title to himself. The reason is that he would be subject to a trust before he
acquired the land and would continue to be bound by the trust, even if somebody
who purchased from him might rely on the lack of registration.
The question,
therefore, is whether Mrs Raggett, in the light of the facts which I have
analysed above, had imposed upon her a fiduciary duty to hold any title she
might obtain upon trust for herself and Mr Raggett and the plaintiffs. I think
the answer is ‘yes’. The arrangement to buy lot 5 and divide it had been agreed
in principle at the first meeting which was held on June 8 1986 and all knew
that the purpose of the meeting on June 10 was to finalise the arrangements.
Nothing which took place at that meeting altered the principle of what was to
be done. In particular, the final agreement that Mr Raggett should bid and the
agreed first limit of bidding up to £75,000 was fully consistent with the
principle.
What I have
said so far is sufficient to dispose of the case subject to discussion of the
relief, dealing with payment to be made by the plaintiffs, interest, discharge
of the mortgage and the like. But I hope that I will not be thought impertinent
if I add a few words. There was a direct conflict of evidence in this case and
I have resolved it in favour of the plaintiffs. But I want to make it clear
that I have not found Mr and Mrs Raggett to have deliberately lied to me in the
witness box. In a case charged with strong emotions which has taken some time
to come to trial, honest recollection can be distorted by brooding on the case.
That, in my view, is what has happened. I wish to make this absolutely clear,
lest the anger which the plaintiffs clearly feel might lead them to seek to
brand Mr and Mrs Raggett as liars in the community.
