Possession of land sought against persons who had occupied a caravan and other structures by licence of owners of site used as a brickworks until it became derelict–Occupation lasted over 26 years–Brick company arranged for water and
electricity to be supplied to caravan–After brickworks closed down occupiers installed own electric generator, subsequently purchased a replacement caravan, had main electricity laid on and telephone installed–Evidence that original owners of site were aware of these actions by occupants and acquiesced in them–Land subsequently conveyed by brick company to present plaintiffs, an associated company–Notice then given by new owners to occupiers to remove caravan and other structures and to vacate–County court judge held plaintiffs entitled to possession–Defendants invoked equitable right to remain based on proprietary estoppel–Court of Appeal applied rules laid down by Fry J in Willmott v Barber–Occupiers failed to satisfy requirements that they had mistaken their legal rights and had been encouraged by the owners to spend money and take other action on the faith of such encouragement–No legal or equitable right to remain after termination of licence–Occupiers’ appeal dismissed
This was an
appeal by Edwin Thomas Arthur Grey and Eadythe Eileen Grey, his wife, from a
decision of Judge Peck at Slough County Court granting an order for possession
of land at Pinkneys Green, Maidenhead, to the plaintiffs in the county court
action, E & L Berg Homes Ltd. The land in question consisted of about 0.7
acre, forming part of a larger area owned by the plaintiffs.
G M Godfrey QC
and J Boggis (instructed by Eric Levine & Co) appeared on behalf of the
plaintiffs (respondents to the appeal); T S Baker QC and D R Foskett
(instructed by Field, Gamble & Kirk, of Reading) represented the defendants
(appellants).
Giving the
first judgment at the invitation of Ormrod LJ, BRANDON LJ said: This is an
appeal by the defendants from an order made by His Honour Judge Peck in the
Slough County Court on May 13 1979. The order was made in an action brought by
the plaintiffs against the defendants for possession of land. It required the
defendants to give up possession of the land concerned to the plaintiffs,
subject to a stay of execution till the happening of certain specified events.
I shall refer to the precise terms of the order, so far as the stay is
concerned, later in my judgment.
The plaintiffs
in the action are E & L Berg Homes Ltd. They are successors in title to the
Maidenhead Brick and Tile Co Ltd. The two companies are associated, both being
controlled by the same parent company, Maidenhead Investment Holdings Ltd. They
further have three directors in common. I shall refer to Maidenhead Brick and
Tile Co as ‘the brick company.’ The
defendants are a married couple, Mr and Mrs Grey, who occupy the land of which
the plaintiffs claim possession. Mr Grey is 51 and Mrs Grey 50. I shall refer
to them collectively as the defendants, but individually as Mr and Mrs Grey.
The land
concerned is a quadrangle of about 0.7 acre forming part of a much larger area
of land at Pinkneys Green, Maidenhead. There are presently certain structures
standing or erected on the quadrangle and occupied by the defendants as or with
their home. In the history of the matter which follows I shall refer to the
larger area of land, including the quadrangle, as the plaintiffs’ land, and the
quadrangle itself as the site.
At the trial
in the Slough County Court the defendants, on whom the burden of proof lay, for
reasons which will become apparent, called three witnesses. They were Mr Grey,
Mrs Grey and a surveyor, Mr Wilton, whose main evidence in chief was contained
in a written statement. None of the evidence given by any of these three witnesses
was challenged in cross-examination, and the plaintiffs, when their turn came,
did not call any witnesses themselves. A substantial number of agreed
documents, including photographs, were also put in evidence. In those
circumstances, there being no conflict of evidence, the case fell to be
determined in the court below, and falls to be reviewed in this court, on
primary facts which are substantially agreed.
The story
begins in 1949. The land was then owned by the brick company, who operated
brick works on it. Mr Grey, then aged 21, obtained employment with the brick
company at those works. In 1952 Mr Grey married Mrs Grey and early in 1953 they
had a daughter born to them. About that time, Mr Grey obtained permission from
the then manager of the brickworks, Mr Smith, to put a caravan on the site. In
March 1953, pursuant to that permission, Mr Grey put a rented caravan on the
site and he and Mrs Grey, with their child, moved into it and occupied it as
their home. Mr Grey was then 25 and Mrs Grey about 23. In August 1953, Mr and
Mrs Grey bought a caravan on hire purchase at a cost of £469 and substituted it
for the caravan which had previously been rented. Between 1953 and 1975 Mr Grey
carried out work of various kinds on the site. He built sheds, tidied and cleaned
up the site and erected fences. The brick company further arranged for water to
be laid on and allowed Mr Grey to bring in an electricity lead to the caravan
from their own power-house. Subsequently the Grey family continued to occupy
the caravan as their home for many years. In the late 1950s or early 1960s Mr
Taylor became the general manager of the brick company. He was at the works
most weeks. Mr Grey saw him from time to time and regarded him as the boss. In
1964 Mr Grey replaced the fences around the site, which had by then become
damaged.
In the summer
of 1968 Mr Taylor called a meeting of the employees of the brick company. He
told them that there was bad news. The brickworks were going to close down and
they would be made redundant. Mr Grey was given a month’s notice by Mr Taylor,
who said nothing at that time about Mr Grey’s continued use of the site. Mr
Grey fortunately obtained other employment at Knowl Hill and he and his family
continued to live in the caravan as before. Some time afterwards, just after
the brickworks had begun, at any rate, to close down, there was a chance
meeting between Mr Taylor and Mr Grey, and a conversation took place between
them in which Mr Taylor raised the subject of the continued occupation of the
site by Mr Grey. The latter gave an account of that conversation in his
evidence, which was, as I indicated earlier, in no way challenged or
contradicted on behalf of the plaintiffs.
The judge’s
note of Mr Grey’s evidence of the conversation, reads as follows:
Taylor said
he was a bit worried in case property sold, and if I saw anything come along,
it might be in my own interest to take it. As far as brickworks concerned, he
did not think they would ever put me off. I said I would stay as I was, as I
was alright for the moment, ie I did not intend moving. I did not want to go. I
had no other discussions with Taylor about living on that site. At no time did
he suggest I should look for anywhere else to live. He may have said they would
not bother to put me off.
Counsel told us
that that last sentence resolved a doubt which had arisen as to whether what Mr
Taylor had said earlier was that he did not think they would ever put Mr Grey
off, or he did not think they would bother to put Mr Grey off.
The brickworks
finally ceased all operations, after a progressive run-down, in September 1969.
After that a Mr Weller came to look after the remaining stock of bricks and to
act as caretaker for the brick company. The plaintiffs’ land, apart from the
site with the caravan on it, became derelict. During 1969 Mr Grey bought an
electric generator for £170 as the electricity from the power-house of the
brickworks was no longer available. By 1972 the caravan bought in 1953 was
approaching the end of its useful life. Mr Grey decided to replace it with a
twin mobile home unit at a cost of over £2,600. Before doing so, he spoke to Mr
Weller about it. His evidence about that conversation was as follows:
Before I got
it
that is, the
unit
I saw Weller,
and asked him to tell Mr Taylor, if he saw him, that I was thinking about
replacing the caravan. This was before I bought. Weller said he would see Colin
Taylor, and mentioned it to him. Weller said as far as he could see, it did not
make any difference as long as I did not take any more ground in.
ground in. I saw Weller after that, but he did not say anything more about it.
I did not ask him if he had cleared it with Taylor.
Following that
conversation, without hearing anything more about the matter, Mr Grey carried
out the replacement. The nature of the twin mobile home which he acquired and
put on the site is described in Mr Wilton’s evidence and can be clearly seen
from the photographs. It is supported on wheels and jacks. It is not, and has
not at any time, been fixed to the ground. In 1973 Mr Grey erected certain new
structures on the site. These consisted of a carport on a concrete stand,
porches and concrete steps. He spent over £500 on the materials and did the
work himself. He also arranged for mains electricity to be brought to the home
by the Electricity Board at a cost of £50. Mr Grey arranged for a telephone to
be installed by the Post Office at a cost of £40. Both lines were brought in on
the same pole. Mr Grey also erected chain-link fencing around the site. Between
1973 and 1977 Mr Taylor was still visiting the plaintiffs’ land from time to
time. Mr Grey did not see him often; he did not visit the Greys’ home and there
were no discussions with him.
In 1975 the
clearing of the plaintiffs’ land, previously derelict, was completed. Mr Weller
left and has since died. In July of that year the land, including the site, was
conveyed by the brick company to the plaintiffs. In 1976 Mr Grey built a new
shed, spending £30 on materials and again using his own labour.
On July 29
1977 solicitors acting for the plaintiffs wrote a letter to Mr Grey in these
terms:
Dear Sir,
Land at Pinkneys Green Maidenhead
On the
instructions of our clients, E & L Berg Homes Ltd, we require you to remove
the temporary building which you have erected on their land at the above site
and to vacate the same within the next seven days.
In the event
that you fail to comply with this notice then our clients will take immediate
steps to obtain vacant possession and remove all temporary structures which you
have erected on the site.
The defendants
had lived there for 24 years and this letter asked them to get out in seven
days. It is conceded for the plaintiffs that, whatever their rights, this was a
most unfortunate and indeed callous letter to have been sent on their behalf.
On receipt of
that letter Mr Grey consulted solicitors and correspondence ensued between them
and the solicitors of the plaintiffs. Mr Grey’s solicitors claimed that he was
entitled to remain on the site. In September 1978 the plaintiffs began the
present action. The particulars of claim were filed on September 25 and the
defence on November 1. The defence was later amended to add a counter-claim,
and later still reamended. On March 12-13 the action was heard by His Honour
Judge Peck, and on March 13 he made the order to which I referred earlier and
against which this appeal is brought.
Before I state
the cases put forward by either side, it will be convenient to get one matter
out of the way. It was common ground in the court below, and again on appeal to
this court, that the conveyance of the plaintiffs’ land by the brick company to
the plaintiffs in July 1975 did not affect whatever would have been the rights
of the defendants if no such conveyance had taken place. This was on the basis
that the two companies were associated with common directors, and the
plaintiffs could not be in a better position in relation to the defendants than
the brick company, but for the conveyance, would have been. It follows that the
change of ownership of the land in July 1975 can, for all practical purposes,
be treated as irrelevant.
The case put
forward for the defendants in the court below was that, whatever the strict
legal rights of the parties might be, the defendants had an equitable right to
remain indefinitely on the land. This equitable right was based on proprietary
estoppel, arising from the relationship between the parties and the conduct of
the brick company, the plaintiffs and the defendants. The conduct relied on for
this purpose was threefold. First, what Mr Taylor said to Mr Grey in the
conversation in the summer of 1968. Secondly, what Mr Weller said to Mr Grey in
the further conversation in 1972. Thirdly, the acquiescence by the brick
company and the plaintiffs in the various things done by the defendants in, on
or in connection with the site from 1968 onwards.
It was
contended for the defendants that the conduct of the brick company and the plaintiffs
gave rise to an equity in favour of the defendants, and further that this
equity could only be satisfied either by conveyance by the plaintiffs to the
defendants of the freehold of the site, or alternatively by the granting of a
right to occupy which would subsist during the joint lives of the defendants.
The case put
forward by the plaintiffs was that the defendants had no equitable right of any
kind. They were bare licensees; that is to say, holders of a licence granted
without any consideration. That licence had been revoked by the plaintiffs’
solicitors’ letter of July 29 1977. A reasonable time for removal had elapsed
and the plaintiffs were accordingly entitled to possession forthwith.
Alternatively, if the defendants had an equitable right at all, it was a right
to a licence to occupy, terminable on reasonable notice, and no more.
With regard to
the first item of conduct relied on by the defendants, the conversation between
Mr Taylor and Mr Grey in 1968, the defendants pleaded that Mr Taylor had said
in that conversation that the defendants could stay on the site for as long as
they liked. As will be apparent from the note of Mr Grey’s evidence which I
read earlier, his account of the conversation did not support what had been
pleaded, but fell well short of it. This necessarily reduced very much the
reliance which counsel for the defendants could place upon the conversation in
question.
The judge, in
a most careful and sympathetic judgment, held that the defendants had not
established the equity which they claimed at all and that the plaintiffs were
accordingly entitled to an order for possession. He held, alternatively, that,
if he were wrong about that, the extent of the equity was no more than a right
to occupy for a limited period; 12 months after any planning permission for
development of the plaintiffs’ land, or the sale of the land at arm’s length,
and that the equity would be satisfied by giving the defendants that limited
right. If the judge had given full effect to his decision, he would have made a
simple order for possession on the claim. In fact, however, there was an
agreement between the parties as a result of which he made an order for
possession, subject to a stay of execution. The material terms of the order
read as follows:
AND IT IS
ORDERED that the Defendants do give possession of the said land to the
Plaintiffs subject to the matters hereinafter appearing
AND UPON THE
PLAINTIFFS consenting to the suspension of the execution of the said order on
the terms hereinafter appearing
IT IS FURTHER
ORDERED that execution of the aforesaid order for possession be stayed–
1. Until
September 13 1979; and thereafter
2. Until six
months after either the grant of planning permission satisfactory to the
Plaintiffs for development of property which includes the land or the entry by
the Plaintiffs into a contract at arm’s length for the sale of the land or any
property which includes the land, whichever shall be the sooner; or
3. With the
leave of the Court at a date earlier than the happening of either of the events
referred to in 2 above, such leave to be sought by application on not less than
two days notice to the Defendants, with liberty to apply for such leave; and in
any event
4. Until the
final determination of any appeal herein provided that the Defendants pursue
such appeal with due diligence and expedition. . . .
The judge
further dismissed the counterclaim.
On the appeal
before us counsel on either side repeated substantially, with some variations
and additions, the arguments which they had advanced below. In considering the
case so
First, what were the legal rights of the parties? Second, have those legal rights in effect
been varied by the acquisition by the defendants of an equitable right or
title, based on estoppel?
I consider
first the legal rights of the parties. It seems to me that the first and second
caravans were placed on the site, and occupied by the defendants as their home,
pursuant to an oral licence given to Mr Grey by Mr Smith on behalf of the brick
company in March 1953. The other things done subsequently by Mr Grey on the
site, including fencing, replacing of the old caravan by the twin mobile home
and the erection of the carport and other structures, were not authorised by
that original oral licence, but the fact that these things were being done, or
had been done, was known, or must be taken to have been known to the brick
company and the plaintiffs through the agency of Mr Taylor, who continued to
visit the land at all material times. No objection to what was being done, or
had been done, was ever taken by the brick company or the plaintiffs. In those
circumstances the original oral licence granted in 1953 was extended by conduct
to cover the doing of all of those things.
On the footing
that the defendants had a licence from the brick company and the plaintiffs to
do all that they did in or in connection with the site, and that the licence
was a bare licence granted without any payment or consideration, it was
revocable by the brick company, or later by the plaintiffs, at any time.
Further, on revocation of the licence, the defendants were entitled to a
reasonable time to remove themselves and their belongings, including the twin
mobile home, from the site: Minister of Health v Bellotti [1944]
KB 298. That was a case involving a contractual licence without any express
terms, but I do not see why similar principles should not apply in the present
case.
I consider,
secondly, whether the legal rights of the parties which I have described were
varied by the acquisition by the defendants of an equitable right or title,
based upon estoppel. The principles applicable to the acquisition of such a
right or title were considered and explained in a comparatively recent case in
this court, Crabb v Arun District Council [1976] Ch 179. That
case was cited to the judge below and referred to at some length in his
judgment, and cited again to us on appeal. Scarman LJ said in his judgment in
that case, at pp 192 and 193:
If the
plaintiff has any right, it is an equity arising out of the conduct and
relationship of the parties. In such a case I think it is now well settled law
that the court, having analysed and assessed the conduct and the relationship
of the parties, has to answer three questions. First, is there an equity
established? Secondly, what is the
extent of the equity if one is established?
And thirdly, what is the relief appropriate to satisfy the equity?
Then in
relation to the first of the three questions, the learned Lord Justice, at pp
194-5 cited, with subsequent approval, a passage from the judgment of Fry J in Willmott
v Barber (1880) 15 Ch D 96. That passage reads as follows:
It has been
said that the acquiescence which will deprive a man of his legal rights must
amount to fraud, and in my view that is an abbreviated statement of a very true
proposition. A man is not to be deprived of his legal rights unless he acted in
such a way as would make it fraudulent for him to set up those rights. What,
then, are the elements or requisites necessary to constitute fraud of that
description? In the first place the
plaintiff must have made a mistake as to his legal rights. Secondly the
plaintiff must have expended some money or must have done some act (not
necessarily upon the defendants’ land) on the faith of his mistaken belief.
Thirdly, the defendant, the possessor of the legal right, must know of the
existence of his own right which is inconsistent with the right claimed by the
plaintiff. If he does not know of it he is in the same position as the
plaintiff, and the doctrine of acquiescence is founded upon conduct with a
knowledge of your legal rights. Fourthly, the defendant, the possessor of the
legal right, must know of the plaintiff’s mistaken belief of his rights. If he
does not, there is nothing which calls upon him to assert his own rights.
Lastly, the defendant, the possessor of the legal right, must have encouraged
the plaintiff in his expenditure of money or in the other acts which he has
done, either directly or by abstaining from asserting his legal right.
While
approving that passage, the learned Lord Justice pointed out that what Fry J
called ‘fraud’ in 1880 would today be called taking advantage of a person in a
way which is unconscionable, inequitable or unjust.
On the footing
that the existence of an equity is to be tested by reference to the five
requirements set out by Fry J in the passage of his judgment in Willmott
v Barber cited above, I turn to see what is the situation with regard to
the fulfilment of those five requirements in the present case. In doing so, I
bear in mind that the case for the defendants involves an allegation of
unconscionable conduct against the brick company and the plaintiffs, and that
such an allegation can only be made good by clear and cogent evidence.
The first
requirement is that the party claiming the equity must have made a mistake as
to his legal rights. Mr Grey did not say anywhere in his evidence that he had
made a mistake as to his legal rights. Mrs Grey, however, did give certain
evidence which was relied on by counsel for the defendants in this connection.
What she said, as recorded in the judge’s notes, was this:
There was a
public inquiry. The planning people came to see me for a statement regarding
the lorries. I was told our circumstances had already been looked into, and
vetted by the council. We had been there over 20 years and we could not be got
off. When new shed was to be built, I went to local authority. The little shed
by back door was put up in 1956-57 about. When we decided to replace the old
caravan with a mobile home, we definitely would not have bought it if we
thought there was risk of being turned off site. Saw Mr Taylor now and again.
Did not have conversation with him, merely passed good day.
I do not
regard this as evidence that Mrs Grey, or Mr Grey, made a mistake about their
legal rights. At most it is a statement that they did not think that, if the
brick company had a right to make them leave, there was any real risk of their
doing so. There also appears to have been an idea, based on what Mrs Grey was
told by the local authority, that, because they had occupied the site for over
20 years, they had acquired a prescriptive right to it. If they did have that
idea, it was plainly wrong, because their occupation had not been adverse, but
under licence. Faced with this paucity of evidence on the matter, counsel for
the defendants contended that it was a necessary inference from the various things
done on the site by Mr Grey from 1968 onwards that he made a mistake about his
legal rights. If the mistake sought to be inferred is a mistaken belief that he
had a legal right to remain on the site indefinitely, I should not be prepared
to draw that inference, which I do not regard as necessary at all. His conduct
was equally consistent with the belief that, if he did those things without the
prior permission of the brick company, they would raise no objection but would,
on the contrary, acquiesce in them. Indeed, I think the latter inference far
more likely to be correct than the former.
On this
analysis of the evidence given by the defendants, and the inference to be drawn
from Mr Grey’s conduct, it seems to me that the defendants fail to satisfy the
very first requirement laid down by Fry J. In other words, they fall at the
first of the five hurdles. If that is right, it is sufficient to dispose of the
defendants’ case that an equity in their favour exists, and it is unnecessary
to go on to consider whether the defendants satisfy the other four
requirements. In case I should be wrong with regard to the first requirement,
however, I shall consider the others.
The second
requirement is that the party claiming the equity should have expended money or
done some act in the faith of his mistaken belief. The third requirement is
that the party against whom the equity is to be claimed should know of the
existence of his own right which is inconsistent with the right
purpose that the first requirement is satisfied, I should have no difficulty in
holding that the second and third requirements were also fulfilled. The fourth
requirement is that the party against whom the equity is claimed should know of
the other party’s mistaken belief about his rights. Here again, on the same
assumption and further on the basis, which I do not accept, that the things
done by Mr Grey on the site necessarily lead to an inference that he had a
mistaken belief about his rights, it would, I think, follow that the brick
company and the plaintiffs, being aware of what was being done, should have
drawn that inference. The fourth requirement would accordingly, on that
assumption and basis, also be satisfied.
The fifth requirement
is that the party against whom the equity is claimed, must have encouraged the
other party in his expenditure of money or in the other acts which he has done,
either directly or by abstaining from asserting his legal right. With regard to
this, it was contended for the defendants that Mr Grey was encouraged to spend
the money and do the various things he did on the site from 1968 onwards, first
by what Mr Taylor said in 1968, secondly by what Mr Weller said to him in 1972,
and thirdly by the acquiescence in all that was done.
So far as what
Mr Taylor said in 1968 is concerned, this argument seems to me to turn the
reality of the matters topsyturvy. The purpose of Mr Taylor’s remarks on that
occasion was a warning to Mr Grey that, while he would probably be permitted to
remain so long as the brick company owned the land, he might well not be
allowed to do so if the land was sold, and that in those circumstances he might
well wish to consider making other arrangements. Mr Grey’s reaction to this warning
was that he wished to stay where he was and intended to do so. Accordingly he
disregarded the warning which he had been given. How the giving of that warning
could be interpreted as an encouragement to Mr Grey to stay and spend the money
in the belief that he would be allowed to remain on the land indefinitely is
beyond me. It is true that Mr Taylor said that he thought that the brick
company itself would not make Mr Grey leave, but this was an expression of
opinion rather than an assurance, and I do not think that Mr Grey was entitled
to regard it as anything more. A statement by way of representation or promise,
in order to found an estoppel, must be clear and unambiguous. What Mr Taylor
said in this respect does not satisfy those requirements.
So far as what
Mr Weller said in 1972 is concerned, I do not think that it assists the
defendants. Assuming without deciding that the information given to Mr Weller
can be treated as being given to the brick company, without any evidence that
it was passed on to Mr Taylor, the information amounted only to this; that Mr
Grey was proposing to replace one kind of mobile home, namely a caravan, with
another kind. Further, all Mr Weller said was that he did not think it would
make any difference. I should add that Mr Grey already had a licence to keep a
mobile home on the site and it was unlikely that, so long as a mobile home only
was involved, the brick company would be concerned with the particular type of
such home in use. So far as the acquiescence from 1968 onwards is concerned, I
have already said that the things done by Mr Grey were consistent with Mr Grey
believing that the brick company would not object to extending its licence to
cover those additional things. On that view, I do not think that the brick
company or the plaintiffs, by not objecting to them, were encouraging Mr Grey
to do them.
Assuming,
therefore, contrary to the view which I expressed earlier, that the first
requirement was satisfied, I should still be unable to hold that the fifth
requirement was also satisfied.
For the
reasons which I have given, I have reached the conclusion that the answer to
the first of the three questions which Scarman LJ said in Crabb v Arun
District Council had to be answered in a case of this kind, namely whether
an equity is established, must be answered in the negative. On that answer, the
second and third questions do not arise.
On the footing
that no equity is established, the legal rights between the parties, to which I
referred earlier, must prevail. That means that the plaintiffs are entitled to
the order for possession which they claim, unless the period which the
defendants had for removal was insufficient. By the time of the hearing in
March 1979 21 months had elapsed since the revocation of the defendant’s licence
by the plaintiffs’ solicitors’ letter dated July 29 1977.
It was argued
for the defendants that, in deciding what was a reasonable time for removal,
account should be taken, firstly, of the long period of occupation by the
defendants and, secondly, the difficulty facing them in finding another site
for their mobile home. I would accept that those matters should be taken into
account, but, in deciding what is a reasonable time, the situation of both
parties has to be considered and not only that of the defendants. In my
judgment the maximum period for removal which could be regarded as reasonable
and fair for both sides is 12 months. This period had long since expired by the
time of the hearing before the judge in March of this year.
There is one
other matter to which I should like to refer. It was said on behalf of the
defendants that, if the judge’s order were to stand, it would work a great
hardship on the defendants. Like the judge below, I have much sympathy for the
defendants in the predicament in which they find themselves, but there are, I
think, certain factors which fall to be weighed on the other side. Firstly, the
defendants have been extremely fortunate to be allowed to occupy a site,
without any payment of rent or other consideration of any kind, for over 26
years. That they have been allowed so to do was due to the kindness of the
brick company. Secondly, their present predicament arises in part, at least,
from Mr Grey’s unwillingness to face realities after the warning given to him
by Mr Taylor in 1968. Thirdly, the terms for a stay of execution of the
possession order agreed below, and incorporated in the judge’s order, are by no
means unfavourable to the defendants. Indeed, even if an equity had been
established, it would, it seems to me, have only been one much more limited in
extent than that claimed by the defendants, and it is doubtful whether, on the
basis of such equity, the defendants would in substance have been much better
off than under the existing agreed order.
For the
reasons which I have given I would uphold the order of His Honour Judge Peck
and dismiss the appeal.
Agreeing, SIR
DAVID CAIRNS said: It is clear that when the defendants were allowed to put
their caravan on land to which this appeal relates, they became licensees. As
there was no consideration for a licence they were bare licensees and the
licence could be terminated without notice. They could not be treated as
trespassers and they had a right to a reasonable opportunity to make
arrangements to leave and to take their property with them. How long a time
would be reasonable would, I think, depend upon the character of the
individuals, but I would consider that it clearly could not exceed one year. I
am not persuaded that anything which happened thereafter estopped the owners of
the land from terminating the licence or created an equity enlarging the
defendants’ rights in respect of the land.
I am prepared
to assume that the plaintiffs are in no stronger position than their
predecessors in title, the Maidenhead Brick and Tile Co, because no point seems
to have been taken below on this aspect of the case, but in order to establish
the estoppel on which the defendants rely, it would be necessary in the first
place for them to show that they believed that they were entitled to remain
there for longer than the licence would entitle them to stay, and that that
belief was induced by some statement or promise, or something done or left
undone on behalf of the landowners which encouraged that belief. Mr Grey gave
no evidence that he had any such belief. Mrs Grey, as I understand her
evidence, was saying either that she merely expected to be allowed to stay
without any actual right to do
been there for 20 years, they had a prescriptive right to remain there.
There is, of
course, no suggestion that anything done or left undone, by the plaintiffs or
their predecessors, encouraged any belief in a prescriptive right. If, however,
contrary to my view the defendants, or either of them, had any belief on any
other basis that they were entitled to remain there for any extended period, I
can find nothing in the language used by Mr Taylor, or Mr Weller, which would
have induced such a belief. Mr Taylor gave a warning that the defendants might
have to leave if this land were sold. He expressed an opinion, but no more,
that the brick company would not be likely to want them to remove. Mr Weller,
assuming–and it is a big assumption–that he had any sort of authority on behalf
of the landowners, did no more than indicate that the defendants’ position
would not be changed for the worse by the bringing in of a mobile home.
Mr Baker,
however, relied mainly on the contention that the landowners encouraged the
defendants to believe that they had some interest in the land, entitling them
to remain there for life, by failing to raise any objection to the introduction
of the mobile home and the carport or to the obtaining of the supply of
electricity and other services. I think it can fairly be assumed that the
plaintiffs, or their predecessors, knew that this was going on, but I cannot
accept that the developments were of such a character that a reasonable person
would suppose that the defendants believed themselves to have any right greater
than that of licensees. The home is a mobile home; the services were such as
licensees would wish to have, even if there was a risk of their not being able
to stay there very long. The carport is the only item of which it can possibly
be said that it was of a permanent character, but I do not consider that it was
of such magnitude as to raise an equity; alternatively if, contrary to my view,
any equity could be said to have been raised it was, at the utmost, no more
than the maximum envisaged by the learned judge.
It comes to
this. In my judgment, the plaintiffs were entitled to terminate the licence as
they did in July 1977 by giving notice of termination. The time elapsing
between the giving of that notice and the judgment in the action was such that
by the time of that judgment, the defendants had no right to remain, and the
actual order made against them was in the circumstances a generous one. It may
seem hard on the defendants to have to find a new home, but as Brandon LJ has
said, they enjoyed for 26 years a site for which they had nothing to pay and
even now they have no immediate prospect of having to leave. I would dismiss
the appeal.
Also agreeing,
ORMROD LJ said: Nobody listening to this story could feel anything but sympathy
for Mr and Mrs Grey, who are in an extremely unfortunate position, but it would
be quite wrong, as my Lords pointed out, to think that the merits in this case
lie all one way. Mr Baker, on behalf of the appellants, argued the case very
much on the footing that the merits were all in his clients’ favour. I, like my
Lords, do not accept that. It seems to me that Mr and Mrs Grey have been to
some extent at an advantage, by living rent free over a period of many years.
Putting it in another way, they have been able to house themselves at a very
much less cost than any of their friends and neighbours have been able to, and
that owing to the kindness of the brick company. Also I think it is important
that this court should not do or say anything which creates the impression that
people are liable to be penalised for not enforcing their strict legal rights.
It is a very unfortunate state of affairs when people feel obliged to take
steps which they do not wish to take, in order to preserve their legal rights
and prevent the other party acquiring rights against them. So the court in
using its equitable jurisdiction must, in my judgment, approach these cases
with extreme care. It is vital that the courts recognise and apply the limits
of this equitable jurisdiction set out in the first place by Lord Kingsdown in Ramsden
v Dyson (1866) LR 1 HL 129 at p 170 and later by Fry J in the passages
which were cited by Scarman LJ and that those criteria are applied to this
case. I agree that Mr and Mrs Grey fail to satisfy the very first and, therefore,
they do not succeed in bringing themselves within reach of the equitable remedy
which they are claiming.
I think also
it is important to recognise that the extent of the remedy to which they would
be entitled if they were able to qualify for it must, in my view, depend upon
the sort of legal rights they mistakenly thought they had, or to use Lord
Kingsdown’s words, ‘under an expectation created or encouraged’ by the other
side.’ That is not, as I understand it,
to be invoked as a general jurisdiction in equity to relieve hardship resulting
from the application of the ordinary law; it is a restricted jurisdiction, and
is one which should, in my judgment, be exercised with due caution.
I agree,
therefore, that this appeal should be dismissed, not least because I think the
order made by the court below, finally by consent, gives Mr and Mrs Grey at
least as much, if not more than they could have got by winning this appeal.
The appeal
was dismissed with costs. The appellants’ contribution was assessed at nil. An
order was made for costs to be paid out of the legal aid fund. A legal aid
certificate was granted.
