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Partnership Property

<!-- wp:paragraph --> <p>These are the notes from the seminar and workshop provided by Sean Kelly and Cait Sweeney to the Property Bar Association on 30<sup>th</sup> April 2024.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1.&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It is often thought that partnership claims revolve around issue of expulsion and the mechanics of winding-up. However, in most cases the major issues which have a monetary value concern the ownership of assets (and in particular land) used by or generated by the partnership. This will be the case whether the partnership is to be wound-up by the Court or the interest of a departing partner is to be bought under the terms of a partnership agreement. It would be rare for a partnership agreement to deal with land which is not partnership property.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In relation to land used by a partnership, the issues to be considered are (in order) as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Is the land partnership property?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Is the land held at a joint tenancy or tenancy in common outside the partnership?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Partnership property</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1) The nature of partnership property</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Section 20(1) of the Partnership Act 1890 ("the Act") provides as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>                                    <em>"All property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement."</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4.&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; No partner has any interest in specie in partnership property. Rather, each partner has an interest in the net balance of the assets and liabilities of the partnership as manifested in the capital account (see <em>Popat v Shonchhatra </em>[1997] CA, 1 WLR 1367). Accordingly, partnership property is something distinct from property held:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; By one partner beneficially</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; By some or all of the partners as beneficial joint tenants</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 3)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; By some or all of the partners as beneficial tenants in common</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 4)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Under some other specific trust arrangement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Partnership property is to be applied for the business of the partnership while trading and, following dissolution, it is available to meet the demands of creditors (under section 39 of the Act) with the ultimate surplus to be distributed between the partners in accordance with the partnership agreement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2) The significance of partnership property in winding-up</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The significance of partnership property is tied-up with the manner in which accounts of a partnership are produced.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>6. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In the context of partnership law, "capital" is a sum of money which is invested by a partner in the business of the partnership on the basis that the same is not to be returned until dissolution (or ceasing to be a partner in a joint lives partnership). It is similar to the concept of capital in a limited company or an LLP. An "advance" is a sum of money which is loaned to the partnership which is expected to be repaid. At least as a matter of law the two are different and such difference is accepted by the order of priority of payments set out in section 44 of the Act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>7. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Income profits arise out of the usual trading of a partnership. Capital profits arise from the sale of partnership property otherwise than as a result of normal trading such as the sale of the land from which it trades. Capital profits follow income profits save where the contrary is agreed expressly (which would be rare). Each is dealt with differently following dissolution.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>8.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; On dissolution, the right of the departing partner to income profits ends. However, the departing partner can claim under section 42 of the Act either interest at 5% per annum on the value of his share in the partnership or the profit generated thereby. This is the “net” share, so that if the capital account of the departing partner is in deficit, he can not claim a section 42 account (see <em>Sandhu v Gill </em>[2006] Ch 456). The logical extrapolation from this decision is that the capital accounts of the partners have to be calculated to dissolution (using valuations if necessary) so that the departing partner’s claim to interest or profits can be quantified properly.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>9.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Section 42 of the Act does not apply to capital profits. Partnership property remains such until it is sold. The value of any partnership property in the accounts of the partnership is merely an estimate (and often a historic value). The value crystalises on sale (whether to a third party or one of the partners). On sale, the value in the accounts is replaced by the sale price and the capital profit which arises is divided between the partners in the capital profit sharing ratios over the period involved. Where there has been a change in profit shares over a number of years, the allocation of capital profits will be difficult.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>10.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; A capital account in its strict sense is merely a statement of the amount of capital introduced by the partners. A current account in its strict sense is an account of what has happened since the partnership has commenced in terms of:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Undrawn profits</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Advances made to the partnership</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 3)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Expenditure incurred by the partnership for individual partners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In practice, it is rare to find accounts for a partnership which distinguish between capital accounts and current accounts in any way. The only general exception would be old farming partnerships. The usual capital account is a combined capital and current account where the total of the capital accounts of the partners equates to the net assets of the partnership. "Capital account" is normally used to refer to this combined account. Accordingly, it is possible (and indeed quite common) to have a negative balance on a partner's capital account.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>11.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; There is no Statement of Standard Accounting Practice (“SSAP”) for partnerships. Accordingly, there is no requirement to revalue partnership property and strong tax reasons for not doing so. Accordingly, partnership land is often included in accounts at extremely low historic cost and the capital profits on sale will need to be dealt with in winding-up.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>12. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This logical analysis of the position does not accord completely with the decision of the Court of Appeal in <em>Bathurst v Scarborow </em>[2004] EWCA Civ 411. In this case, land was purchased during the course of a short-lived partnership in respect of which no signed accounts were ever prepared. Although it seems likely that the land was purchased with partnership funds, it was not alleged that this was the case. The conveyancing solicitors were instructed to purchase such land on a joint tenancy but the box on the transfer was not executed. At first instance, the Master held that the land was purchased as partnership property because this was the clear intention of the partners on the facts. The Court of Appeal overruled this finding of fact as it was clear that the partners intended that the land should be purchased by them as joint tenants. This is what the conveyancing solicitors had been asked to do. So far so good. The Court of Appeal then went on to suggest that partnership property could be held on joint tenancy without explaining how this might affect the sale of the same to enable the payment of creditors. <em>Popat v Shonchhatra </em>&nbsp;was not cited to the Court of Appeal in <em>Bathurst v Scarborow </em>and <em>Bathurst v Scarborow </em>itself was not cited to the later Court of Appeal in <em>Sandhu v Gill</em> (which followed <em>Popat v Shonchhatra). </em>It is suggested that this (obiter) part of the judgment needs to be treated with care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>13.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; The fact that the interest of a partner is reflected in his capital account means that a partner's capital account can be considered to be an interest in property in its own right. Thus, capital accounts can be held as joint tenants and can pass by survivorship. This principle was accepted by the Court of Appeal in <em>Hopper v Hopper </em>[2008] EWCA Civ 1417 where the only issue between the parties was as to whether there was a joint capital account between father and mother, with children having separate capital accounts or whether there was a single joint capital account. It was suggested in argument that joint capital accounts are common. This may be overstating the case. They are not uncommon as between husband and wife in farming partnerships. Indeed, this arrangement has many benefits because it means that the death of the first spouse does not lead to a general dissolution. The partnership can carry on as before (see also <em>Graham v Graham </em>[2018] 5 WKUK 132, HHJ Pelling, KC).&nbsp;&nbsp;&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 3) Land becoming partnership property</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; Unless the business of the partnership is selling land, there is no requirement that any land which it uses should be partnership property. The land can be owned by one or more of the partners outside the partnership and made available to the partnership either by way of a lease or licence whether subject to payment or otherwise. The mere fact that land is used by a partnership does not make it partnership property (see <em>Davis v Davis </em>[1894] 1 Ch 393). Nor does paying the rent make a farming lease a partnership asset (see<em> Eardley v Broad </em>[1970] 215 Estates Gazette 823).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; a) Land purchased before the partnership commenced</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; Where the land was purchased before the partnership commenced, it has to become partnership property. This can arise by express declaration of trust in the usual way and such an express declaration of trust will be binding (see <em>Pettitt v Pettitt </em>[1970] AC 777).&nbsp; The land would be transferred to A and B “as partners” or similar. This would be unusual. Such a declaration of trust can also be included in the partnership agreement. Otherwise, it is necessary to rely on the bringing in of the land into the partnership under section 20(1) of the Act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>16.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; The transfer of land into a partnership necessarily requires the agreement of all partners because the partner who transfers the land into the partnership will require credit for the value of the same as an addition to his capital account. Without such credit, the accounts will not balance in any event. While this agreement can be express or implied (see<em> Miles v Easter </em>[1953] 1 WLR 581, Harman J), an implied agreement is unlikely to arise in the case of land as land can be made available to the partnership in a variety of ways. Section 20(1) of the Act is in effect a conveyancing section (see <em>Wild v Wild </em>[2018] EWHC 2197 (Ch) HHJ Eyre, KC). There needs to be an agreement to bring the land into the partnership and section 20(1) of the Act avoids the need to comply with section 2 of the Law of Property (Miscellaneous Provisions) 1989.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <em><u>i) Bookkeeping entries</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>17.       It is unclear whether bringing in needs to be accompanied by appropriate bookkeeping entries. Physical assets such as stock or machinery can be “brought in” to the partnership by delivery to the partnership premises. However, land does not move. All of the leading cases involve situations where the accounts show land as a partnership asset and the Court has been asked to determine whether this is sufficient evidence of an agreement to bring in. It is unlikely that there could be an agreement to bring in without this being accompanied by bookkeeping entries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>18.       In practice, it can be very difficult to show bookkeeping entries to record the bringing in of land into a partnership. Invariably, the problem is the starting position. The accountant who produces the first accounts of the partnership ought to record the individual pieces of land which (when combined) give rise to the total land value. However, this is rarely the case for farming partnerships. The record (if made) might well become lost. Accountants also tend to treat money spent on improvements to land held outside the partnership as land investments of the partnership which can provide a further complication.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <em><u>ii) Evidence of agreement</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>19.       It is often assumed by clients that the bookkeeping entries themselves will provide sufficient evidence of an agreement to bring land into the partnership. Surely, that is the whole point of the exercise. Clients tend to assume that this is the case. This is not the way that the Court looks at the matter.  Accountants who produce partnership accounts rarely have access to conveyancing documents and accountants often assume that all land used by a partnership is partnership property. In a line of cases starting with <em>Barton v Morris </em>[1985] 1 WLR 1257 and ending with <em>Wild v Wild</em>, the Court has refused to accept bookkeeping entries as reliable evidence of an agreement to bring land into the partnership. Insofar as it is evidence, it has to be weighed against other available evidence. As no partner has an interest in specie in any part of partnership property, statements made by a partner that he has an interest in a specific piece of land (whether by including it in his Will or in a trust document) may provide a strong rebuttal to the contention that the land is partnership property.       </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; b) Land purchased during the partnership</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>20.       Section 21 of the Act provides as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp; <em>"Unless the contrary intention appears, property bought with money belonging to the firm is deemed to have been bought on account of the firm"</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>21.       This provision usually deals with the ownership of land bought using partnership funds.  A contrary intention will only appear if there is an express declaration of trust or evidence that this is what was actually intended by the partners. Contrary intention is not merely failure to include land within partnership annual accounts unless that failure is intentional (see <em>Mehra v Shah </em>[2004] EWCA Civ 632)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>22.       There are a number of issues relating to whether in any particular case property is bought with money belonging to the firm. These are as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Partnership funds can only be used if the partnership has a bank account or payment can be otherwise proven.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The section is dealing with monies owned beneficially by the partnership at the date of the purchase. Monies taken by a partner as agreed drawings and then applied by him in buying property are not monies of the partnership. However, it is not clear whether this principle applies to drawings which are not agreed. In practice, monies misappropriated by a partner are treated as drawings when the next annual accounts are drawn up (because there is no other way of making the accounts balance). The accountants with often do this without explaining what has been done. In <em>James v James </em>[2018] EWHC 43 (Ch) the Court accepted at face value the fact that monies used by one partner had been treated as his drawings and that such drawings had been used to buy land as indicating that such land was not partnership property. There was no analysis of whether the drawings were agreed.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 3)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The section is most obviously directed at one off purchases. It is far from clear</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>that the section applies to a situation where one partner buys land with the</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>assistance of a mortgage and the partnership pays the sums due under the</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>mortgage. It can be easily inferred that such payments are to be treated as rent</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(see <em>Morton v Morton </em>[2022] EWHC 163). &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 4) Land transferred out of a partnership</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>23.       Section 2 of the 1989 Act (relating to the agreement for the sale or an interest in land) and section 53 of the Law of Property Act 1925 Act (relating to the actual transfer of an interest in land) need to be considered in respect of each transaction whereby land is to leave a partnership. Section 20(1) of the Act is a one-way ticket in.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>24.       Where parties agree to a transfer of a share of a partnership, whether on dissolution or retirement, section 2 of the 1989 Act must be complied with if the partnership owns land. Where an option is granted by one partner to another to sell or purchase another's share, the option must also comply with section 2 of the 1989 Act if the partnership includes land.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>25.       Strictly, any transfer of an interest in land into or out of a partnership must comply with section 53 of the 1925 Act. The fact that there is no written transfer may indicate that there was no actual agreement for the transfer of land into or out of the partnership. The strength of this indication will depend on the extent to which the partnership otherwise complied with legal formalities. If the parties agree that land is to be transferred into a partnership and act in reliance upon the fact that it has been, then it is very likely that an estoppel will be found to this effect. This is probably why points based upon section 53 of the 1925 Act are rare.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 5) Rights of occupation</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>26.       If the land is not an asset there has to be some right to occupy. There will not be a lease implied for the benefit of a partnership which occupies land which is not a partnership asset. The use made of it by the firm and all the partners is given effect to by the creation of implied ‘non-exclusive' licences to the partners, not to the partnership (see <em>Harrison-Broadley v Smith </em>[1964] 1WLR). These licences will not be determinable during the partnership if it is inconsistent with the duty of good faith. On dissolution given the right of all partners to wind up the firm, the licences will continue for this purpose</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 6) Rules for determining whether non-land assets are partnership property</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>27.       The fact that an asset is not capable of being sold does not prevent it from being partnership property (see <em>Don King v Warren </em>CA [2000] Ch 291). The partner in whom it is vested will have to account for its value. Non-alienable assets cannot be sold as part of winding-up. However, the partner in whom they are vested can be made to account for their value.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>28.       <em>Miles v Clarke </em>is an important case because it is often assumed that all of the non-land assets used by a partnership in the conduct of its business will be assets of the partnership. This will be the case where the asset is bought using the funds of the partnership. Otherwise, the asset will only be a partnership asset by implication is this is required as a matter of business efficacy which will be unusual.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 7) Property generated by the partnership</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>29.       Where an asset is generated by one partner through his position as a partner, there is no presumption as to whether such asset is partnership property. The Court will have to determine whether there is an agreement to this effect (see <em>Goldup v Cobb </em>[2017] EWHC 526 (Ch).) In this case a partner in a solicitors practice acquired pension rights as a result of being a coroner. Income derived from such position was treated as partnership income. However, the Court held that the pension rights which had accrued to such partner were not partnership property because there was no agreement (express or implied) to this effect.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 8) The sale of partnership assets after winding-up</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; a) Presumption that all of the assets of the partnership should be sold</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>30.       Following dissolution the Court has the power to order the sale of all of the assets of the partnership (including land) and will usually do so because to do otherwise would or might deprive the former partners from realizing the maximum return from the assets of the partnership. The practice is only departed from in two situations, namely (i) when a <em>Syers v Syers </em>Order is made and (ii) where the sale of the partnership assets would offend statute or would otherwise be difficult to achieve</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>31.       It follows that in many cases it will be obvious that there will need to be a sale of the assets of the partnership and that the winding-up of the partnership cannot commence in proper without such sale. Although the current editors of Lindley state that the practice of the Court is not to order a sale at an early stage of a partnership dispute, this is not the practice of the Court. Unless there is some good reason why a sale would not be ordered at the trial of the claim, there is no good reason to delay a sale until such time. For example, if the issue between the partners is whether the profits are to be shared equally or one third two thirds, there is no good reason why the sale should be delayed until the trial. Obviously, of there is an issue as to whether a particular asset is a partnership asset, the sale might not be ordered until this issue has been determined. However, if the issue is whether the asset is partnership property or held as tenants in common in equal shares, sale might well be ordered as the Court has power to order sale of assets held as tenants in common in any event (see <em>Bagum v Hafiz </em>[2016] Ch 241).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; b) Method of sale</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>32.       In principle, there is little difference between the conduct of the sale of partnership assets and a sale of co-owned assets. Any partner will be allowed to bid and the likelihood that a particular partner may bid will affect which who has conduct of the sale. A partner cannot bid and have conduct of the sale. The only concern of the Court is that the assets of the partnership should be sold at the best price reasonably obtainable in the circumstances. It is common for one partner to be given conduct of the sale on the basis that he will sell at or above a particular price provided that his agent considers that the price is the best price reasonably obtainable in the circumstances (which is a deliberately vague expression).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>33.       It would be normal practice to allow a purchasing partner P effectively set off his share in the partnership against the price which he has to pay for a particular asset. P would agree to pay the purchase price and this would be included in the accounts as the value of the asset concerned.  P's capital account would be adjusted accordingly and would be set off against the purchase price.  P would normally be expected to pay a deposit pending the calculation of the set-off.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; c) Syers v Syers Orders</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>34.       The majority of partners (either in number or by partnership share) may apply to the Court for an Order that they be entitled to buy out the minority usually at the date of dissolution at a price to be determined by the Court. As remarked by Hoffmann LJ in <em>Hammond v Brearley </em>[1992] WL 12678533, <em>Syers v Syers </em>is more often cited than applied. It is an unusual order because it deprives the minority of the ability to test the market so as to ensure that the assets of the partnership are sold at the best price obtainable.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>35.       A <em>Syers v Syers </em>Order was made in <em>Mullins v Laughton </em>[2003] Ch 250, Neuberger J. In Mullins the partnership was a joint lives partnership where the defendants had attempted to expel the claimant for breaches of the partnership agreement. The claimant sought the dissolution of the partnership under section 35 of the Act. This was granted, but the Court gave the majority the opportunity to buy out the claimant at a valuation. There are a number of unusual features of the case which make it easy for the Court to make a<em> Syers v Syers </em>order. These were as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The application was heard at the same time as the partnership was dissolved.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2)&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp; The majority could have expelled the claimant if they had properly used the procedure of the partnership agreement</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 3)&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp; There was no real opposition to the making of the order and no suggestion that the assets of the partnership could not be valued easily.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>36.       A <em>Syers v Syers </em>Order was refused in <em>Benge v Benge</em>, 13/02/17, Murray Rosen, KC where there was a real risk that a valuation would not achieve the result achievable on a sale in the open market.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>37.       Where the Court makes a <em>Syers v Syers </em>order, the usual rule is that the sale will take place following the order. However, the order can be retrospective so that the assets of the partnership are deemed to have been sold on dissolution. This may be an advantage for the departing partner in that retirement relief for CGT can be retained.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Land bought for business purposes</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>38.       Once it has been determined that land has not been bought as partnership property, it is necessary to determine whether it has been purchased as joint tenants or tenants in common. As always, a declaration of trust will determine the issue. However, if there is no declaration of trust, how is the issue to be determined.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>39.       In a domestic context, the starting point is that equity follows the law. Where land is transferred to A and B, the initial starting point is that they hold the same as joint tenants (see <em>Stack v Dowden </em>[2007] 2 AC 432) and <em>Jones v Kernott </em>[2012] 1 AC 776). However, where land is purchased for business purposes, the starting point has always been that survivorship is not to apply as this is inconsistent with a business relationship. In <em>Williams v Williams </em>[2024] EWCA Civ 42, the Court of Appeal held that the presumption relation to business purchases still applies as no purchase could be approached “in a vacuum”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>40.       Accounts of a partnership do not operate as severance of joint tenancy (see Bartin v Morris).</p> <!-- /wp:paragraph -->

Conflict and “The Tendency To Be Swayed By Human Nature Rather Than Duty”

<!-- wp:paragraph --> <p><em>Irwin Mitchell Trust Corporation v PW (By Her Litigation Friend The Official Solicitor) and The Public Guardian </em>[2024] EWOP 16</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Marisa Lloyd and Lucy Evanson&nbsp;summarise and comment on the judgment on Irwin Mitchell Trust Corporation v PW (By Her Litigation Friend The Official Solicitor) and The Public Guardian [2024] EWOP 16 in which Marisa represented the Public Guardian</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Full Judgment here - <a href="https://www.bailii.org/ew/cases/EWCOP/2024/16.html" target="_blank" rel="noreferrer noopener">https://www.bailii.org/ew/cases/EWCOP/2024/16.html</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court considered self-dealing and conflict in circumstances where Irwin Mitchell Trust Corporation (‘IMTC’) acting as deputy for PW, appointed Irwin Mitchell Asset Management (‘IMAM’) to manage the investment of PW’s funds. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>PW suffered global cognitive impairment which resulted in a loss of capacity. After a successful claim against the treating healthcare trust, she received significant damages. IMTC was appointed as her property and affairs deputy and subsequently held a ‘beauty parade’ after which the deputy appointed IMAM as investment manager for PW.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In 2019, IMTC made an application to the Court of Protection for authority to execute a statutory will for PW. Concerns were raised by the Official Solicitor (‘OS’) about the appointment of IMAM as investment manager. IMTC was directed to make an application to seek retrospective authority to instruct IMAM. The Public Guardian was joined as a party.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Legal background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 19(6) of the Mental Capacity Act 2005 (‘the MCA’) provides that, ‘<em>A deputy is to be treated as P’s agent in relation to anything done or decided by him within the scope of his appointment</em>’. HHJ Hilder noted that “<em>the relationship between a deputy and the person for whom the deputy is appointed is a fiduciary one</em>”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The basic proposition about the position of a fiduciary in a position of conflict was set out by Lord Herschell in the House of Lords decision of <em>Bray v Ford</em> [1896] AC 44 at 51-52, ‘<em>It is an inflexible rule of a Court of equity that a person in a fiduciary position… is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing </em><em>those whom he was bound to protect.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The general principle was restated in <em>Boardman v Phipps</em> [1967] 2 AC 46 which also referred to <em>Aberdeen Railway v Blaikie</em> (1854) UKHL 1 Macq. 461 at 136 per Lord Cranworth LC who said &nbsp;‘<em>and it is a rule of universal application, that no one, having</em> <em>such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict with the interests of those whom he is bound to protect</em>.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>HHJ Hilder considered the law of agency stating: ‘<em>Conversely, the law of agency generally provides that an act of the agent may rank as the act of the principal if the principal ratifies it … Where the principal lacks capacity to make decisions about their property and affairs, only the Court of Protection may grant such ratification. Its jurisdiction for doing so … is found in the conjunction of sections 15(c) and 19(4) of the Mental Capacity Act 2005</em>.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Question</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There were several questions agreed between the parties but the predominant question for HHJ Hilder to determine was whether the rule relating to conflict of interest was applicable to the appointment of IMAM by IMTC.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is no English authority that directly deals with the question of whether the engagement by a fiduciary of a related investment company presents ‘<em>a real possibility of conflict of interest.’ </em>IMTC accepted that its engagement of IMAM gave rise to the ‘<em>theoretical potential’ </em>for a conflict of interest, but contended that there was<em> “no real, sensible possibility</em>” of conflict because it had adopted procedures by holding a beauty parade etc. which eliminated that potential. Counsel for the OS and PG disagreed contending that there was an actual conflict that was not mitigated by the processes followed by IMTC.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Having reviewed the evidence, HHJ Hilder held that :</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>61. The Court of Protection is no stranger to conflicts of interest…</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>62. The conflict of interest in question in this matter comes down to IMTC being financially better off if IMAM is appointed. IMTC accepts this as a “theoretical potential”. IMTC’s argument is that such potential is extinguished to the point of no “real sensible possibility” because of procedures it has adopted. Yet nowhere in the development of those processes or in these proceedings has IMTC ever denied either that the decision to appoint IMAM is made by IMTC in its fiduciary role… or that, even with full implementation of those processes, IMTC is better off if IMAM is appointed. At a most basic level, those two concessions amount to recognition of the existence of a conflict of interest: one plus one makes two.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>63. The processes which IMTC has adopted when considering the appointment of IMAM do not target the substance of the self-dealing rule: that is, they do not remove the financial gain to IMTC. Such processes </em>could<em> have been adopted, for example by agreeing to waive any fee to IMAM where the instruction comes from IMTC as deputy. Then there would be no financial advantage to IMTC in the instruction of IMAM, no interest to be in conflict with the interests of the person for whom IMTC acts. Of course, I recognise that the Irwin Mitchell group would be likely to reject this approach as lacking commercial sense but that merely reinforces the existence of IMTC’s interest in the appointment of IMAM.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>After further discussion of the processes adopted by IMTC, and the involvement of a family member in a beauty parade in ratifying or reducing the ‘theoretical potential’ of conflict of interest, HHJ Hilder concluded that there was a ‘<em>very clear, not remotely fanciful, actual conflict of interest in IMTC appointing IMAM to manage PW’s funds,</em>’ [67] This breached the self-dealing rule. She concluded that &nbsp;‘<em>The processes adopted by IMTC do not and could not extinguish that conflict. In my view, that these proceedings have been necessary at all is a paradigm example of Lord Herschell’s wise recognition of the tendency of human nature to be swayed by interest rather than duty.”</em> [93]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Commentary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judgment confirms that there is a conflict of interest in a trust corporation instructing a connected company to act as an investment manager. The issue of conflict cannot be mitigated by conducting a beauty parade which includes the connected company. Further, the appointment cannot be ratified by a family member. &nbsp;Ratification must be carried out by the Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Public Guardian has already changed her guidance in the wake of <em>Re ACC </em>[2020] EWCOP. This reflects the view of the PG that, if financial advice is provided by a member of the deputy’s firm, potential conflicts of interest must be considered in the context of adhering to fiduciary duties, &nbsp;and where the deputies own interest and the interest of P are linked there must be an application to court for authorisation to instruct your own firm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was insufficient evidence before the court to determine whether the appointment of IMAM was in PW’s best interests and should be ratified or whether it should be set aside. This will need to be determined in the future.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, there are many other cases where IMTC and other trust corporations have instructed connected companies. These cases will need to be reviewed and consideration given to the way forward. Given the need for court ratification of existing cases and prospective approval in respect of future new instructions, it may be viewed as highly unlikely that the ongoing instruction of connected companies can be justified as being in P’s best interests. In my view, it follows that &nbsp;in the absence of a successful appeal, this judgment is likely to signify the end of instructions of an asset manager from connected companies to the deputy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Further, the judgment may also be viewed as relevant to the question of whether professional pension scheme trustees associated with firms providing other professional services can properly appoint their own firms to provide services.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

TA v the Public Guardian and duties of a Certificate Provider

<!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judgment can be found here <a href="https://www.bailii.org/ew/cases/EWCOP/2023/63.html">TA v the Public Guardian [2023] EWCOP 63 (07 December 2023) (bailii.org)</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case involved an appeal to Mrs Justice Lieven by P’s potential attorney (‘the Appellant’) from a decision of HHJ McCabe sitting in the Court of Protection. The Judgement is short, and therefore probably worth reading, particularly if you want to be refreshed of all the relevant statutory provisions which I have not set out in this note.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In brief, The case arose from a challenge by the Office of the Public Guardian (‘OPG’) to the validity of Lasting Powers of Attorney instruments for both Property and Financial Affairs and Health and Welfare (‘the LPA’s’), on the basis that they did not comply with paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act (‘the 2005 Act’).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Application originally included non-compliance on two grounds. However, the only ground pursued at the first hearing was that the Certificate Provider (‘CP’) ‘<em>failed to make the requisite checks of understanding with P prior to certification</em>’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the 2005 Act, Schedule 1 2(1) provides that : - ‘<em>The instrument must include –</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(e) a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument –</em></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><em></em><em>The donor understands the purpose of the instrument and the scope of the authority conferred under it,</em></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em></em><em>No fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and</em></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><em></em><em>There is nothing else which would prevent a lasting power of attorney from being created by the instrument.’</em></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The PG asked the court at first instance to determine whether the CP had failed to fulfil the requisite checks of understanding (i.e. those set out in the previous paragraph) with the donor prior to the execution of the LPAs.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The attorney argued that there was no requirement for the CP to carry out various checks of the donors understanding, and that how the CP satisfied themselves of matters relating to the donor prior to signing the LPAs was a matter for them. Further, that neither the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (‘ the 2007 Regulations’), or the 2005 Act, prescribed particular steps that the CP would have to take to ascertain the donors understanding.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>HHJ McCabe disagreed and held that she was entitled to look for evidence from the CP that the requirements of Schedule 2 had been met. In this case, the CP had simply asked the donor whether she was happy about the LPAs, and the donor confirmed she was. The Judge held it was difficult to understand (from this information), how the CP had satisfied herself that the donor understood the scope of her authority; that there was no undue pressure or inducement; and there was nothing else to prevent the LPA being created. The LPAs were found to be invalid.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Appeal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appeal was on the basis that :-</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The statutory scheme sets out in clear terms what is required in order for an LPA to be valid, and the only requirement in para 2(1)(e) was for the provision of a certificate. There was no requirement for the CP to take any particular steps prior to signing the certificate, or for the court to ensure that the requisite opinion is formed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>HHJ McCabe therefore wrongly concluded that “<em>this opinion is one of the requirements of the creation of an LPA</em> …” when it is wrong and there is no requirement for the opinion.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, that the Judge wrongly introduced the concept that the opinion must be valid and imposed obligations on the CP.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was argued by the Appellant that the Judge’s approach undermined the scheme of the MCA; that there was a presumption of capacity; and that the Judge’s approach was that even though the donor had capacity, the LPA was invalid because the certificate provider failed to undertake sufficient checks.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On behalf of the PG, I argued that it was clear that para 2(1) (e) required the CP to have formed the requisite opinion. &nbsp;This opinion must be based on something which allowed the opinion to be properly formed. The provision of a certificate is fundamental to the formal validity of the LPA. It is not simply a signature verifying capacity, but it is a signature which also goes to issues such as understanding who the attorney is, and undue influence etc.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In order to establish the validity of what the signature is verifying, the court must be able to look behind the signature and the opinion which was formed prior to signing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the Appellant appeared to be suggesting that as long as the signature was present, the formalities were met, I submitted that the appellants submission taken at face value could result in a situation where there was no enquiry as to the basis on which the CP had formed the requisite opinion. This could result in an LPA being taken as valid when the CP had not spoken to the donor, or ascertained anything about the wishes, intentions or understanding of the donor. Such a situation would be absurd and would undermine the protection intended in Schedule 1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mrs Justice Lieven considered the statutory language, the overall statutory scheme and the purpose at which it was aimed. She held that the court was entitled to check that the requisite opinion had been formed by the CP and that the Judges approach at first instance was correct. The appeal was dismissed.</p> <!-- /wp:paragraph -->

Guardianship Orders: A Cut out and Keep Guide based on One I Made Earlier

<!-- wp:paragraph --> <p><strong><u>Introduction</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Guardianship (Missing Persons) Act 2017 (“the Act”) came into force three and half years ago on 31 July 2019.&nbsp; Informally known as ‘Claudia’s Law’ after Claudia Lawrence who disappeared in 2009, the purpose of the Act is to empower the court to appoint a guardian to deal with the property and financial affairs of people who have gone missing.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Despite the acknowledged need for such an Act, and the length of time for which the remedy has now been available, there are no reported cases of a court appointing a guardian.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I would like to be able to say “<em>not until now</em>”, but the nature of the hearing I had in December 2022, during which a DJ in the Business and Property Courts in Leeds granted my client a guardianship order did not lend itself to a reported judgment.&nbsp; So I have taken it upon myself to provide a short overview of our application, followed by a brief “cut out and keep” guide to guardianship orders, based upon “one [a DJ in the Leeds BPC] made earlier” with the intention that you can keep this article in the magical cloud/internet storage/e-mail server and pull it out if you’re faced with a situation where you need to consider applying for such an order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>The Order made in Leeds</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The background to my case was that the applicant had been contacted by professionals searching for relatives of the owner of a derelict property which was causing problems for its neighbours.&nbsp; The identity of the owner was known, but he had not been seen or heard of for many years.&nbsp; The applicant for the guardianship order was the brother of the owner.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Enquiries carried out by the applicant revealed a last known address for the missing person in 2017/18, from where it appears that the missing person was admitted to hospital, never to be seen again save for an unconfirmed sighting in the hospital around this time.&nbsp; All other enquiries drew a blank, but equally no death certificate could be found.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Given that only four years had elapsed from when the missing person had last been seen, and there was no evidence to show that it was thought that the missing person had died, it was not open to the applicant to apply for a declaration of presumed death under the Presumption of Death Act 2013, so instead we applied for a guardianship order so that the applicant (and his wife) could deal with the derelict property.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>One of the significant difficulties faced by the applicant was that he had not personally been in touch with his brother for over 15 years, and the missing person was a gentleman with few friends, no regular job, and no other family.&nbsp; It was therefore necessary to track down and then obtain witness statements from the missing person’s friends to try and piece together a picture of the missing person’s life in 2017/18 so that it could be shown that the missing person was indeed ‘absent from his usual place of residence and usual day to day activities’ as required by s.1 of the Act.&nbsp; There is no assistance as to the necessary time period for “usual” within the Act, but as the applicant could not find any trace of the missing person after 2018, we had to focus upon his ‘usual’ activities at that time.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>CPR 57.27 makes it clear that the first hearing of an application for a guardianship order is usually a directions hearing.&nbsp; In our case there had been a problem with the advertisement which needs to be placed in a ‘public news media’ no later than 14 days after notification of the date of the first hearing, and therefore an order was sought (and granted) to extend the time to advertise the claim.&nbsp; However, even given the short period of advertisement, the remote hearing was attended by a member of the public; an academic with an interest in the derelict property due to its historical significance as a synagogue dating back to 1892.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Directions were given as to the filing of further evidence, and the final hearing was listed in person with the proposed guardians (the applicant and his wife) ordered to attend.&nbsp; The order was subsequently granted with the court expressing concern that without the order sought the property was, and would remain, &nbsp;uninsured, and the authority given to the guardians included permission to sell the property and to pay the legal costs of the application from the missing person’s estate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><u>Cut Out and Keep </u></strong><strong></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The law relating to application for a guardianship order (“an order”) is set out within the Act and guidance for guardians and persons making applications under the Act is provided by the Guardianship (Missing Persons) Act 2017 Code of Practice (“the Code”), the most recent edition of which is dated June 2019.&nbsp; The relevant section of the CPR is CPR 57.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Jurisdiction and Standing</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under s.2 of the Act, the court only has jurisdiction to hear and determine an application for an order if either:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>the missing person was</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>domiciled in England and Wales on the <a>day before (s)he was first known to be missing, or</a></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>had been habitually resident in England and Wales throughout the period of one year ending on the day before (s)he was first known to be missing,</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Or</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>the application is made by the missing person’s spouse or civil partner and the applicant is:</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>domiciled in England and Wales on the day on which the application is made, or</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>has been habitually resident in England and Wales throughout the period of one year ending on the day on which the application is made.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Pursuant to s.19 of the Act, any applicant for an order must have a sufficient interest in the missing person’s property or financial affairs.&nbsp; The persons with automatic sufficient interest include the missing person’s spouse/civil partner, parent, child, or sibling.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under s.20 of the Act any application for an order must be advertised in accordance with the rules of court and s.20(3) provides that the court must refuse to hear an application if it knows that the advertising requirement has not been met.&nbsp; CPR 57.29 provides that the advert must be in the prescribed form, and must be advertised ‘within 14 days of notification of the date of the first hearing’.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the event that the advert is late, relief from sanctions can be obtained via CPR 3.1(2)(a) – power of the court to extend or shorten the time for compliance with any rule or practice direction.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Criteria to be Satisfied to Make an Order</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a>Under s.3 of the Act, the court can make an order if satisfied that:</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘Missing’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under s.1 of the Act, a person is “missing” if he is absent from his usual place of residence, is absent from his usual day to day activities, and his whereabouts are either completely unknown or are not known with sufficient precision to enable that person to be contacted for the purposes of decisions relating to his property or financial affairs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Paragraph 4.4 of the code explains that the typical scenario for a case under the Act is “<em>where a person has simply disappeared without explanation</em>”.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Best Interests to make an Order</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>s.18 of the Act provides that when determining what is in the missing person’s best interests, the court must consider all the relevant circumstances of which the court is aware, and must consider, so far as is reasonably ascertainable—</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(a) any relevant wishes and feelings expressed by the missing person at any time,</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(b) the beliefs and values that would be likely to influence the missing person, and</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>(c) any other factors that the missing person would be likely to consider.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court must take into account the views of any persons of whom the court is aware with a relevant interest in relation to the missing person's property or financial affairs, where it is reasonably practicable and appropriate to do so, and must consider the consequences of taking a proposed action.&nbsp; However, the court is not required to decide any matter by reference to the decision the missing person is likely to have taken, or to consider any question as to whether or when the missing person might cease to be missing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Appointment of a Guardian</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The criteria of eligibility to be appointed a guardian is set out at s.4 of the Act.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under s.16 of the Act, the court may appoint two or more guardians.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Terms of an Order</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Pursuant to s.5 of the Act an order must appoint a guardian in relation to all of the missing person’s property and financial affairs or such property or affairs as is specified or described in the order.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under s.6 of the Act an order may impose duties upon a guardian and/or include conditions and restrictions.&nbsp; Under s.10 the court may give directions to the guardian about how to act and/or the scope of the guardian’s power.&nbsp; Under s.6(4), a guardian may be given the power to sell property.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under s.7 of the Act, the maximum period of an order is 4 years.&nbsp; An order can be varied or revoked at any time (ss. 12 and 13).</p> <!-- /wp:paragraph -->

Nuisance after Fearn v Tate Gallery

<!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Neo Bankside development (“the Development”) consists of four purpose built residential towers on Holland Street, London. A stone’s throw from the south bank of the River Thames. Each has 21 floors and is designed to maximise the area of glass on each floor thereby giving the occupier a panoramic view of the city. Each tower was completed in 2013 / 2014 and subject to long leaseholds. Leases of many of the flats within the Development sell for over £1 million.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Across Holland Street and next to the Millenium Bridge is the Tate Modern gallery. In 2016 Tate Modern completed the construction of the Blavatnik Building. This is adjacent to the main building and in the form of a twisted pyramid&nbsp;including a 360 degree viewing gallery open to visitors. Block C of the Development (“Block C”) is the closest to the Blavatnik Building. The gap between the two is about 34 metres. The viewing gallery is at the height of&nbsp;floors 18 and 19 of Block C.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Development and the Blavatnik Building are substantial developments and planning for both took a long period. There was an overlap between the applications for planning permission. At one stage there was a proposal to include angled glass and like features in the viewing gallery. However, this proposal was not pursued in amended plans. Thereafter, neither the planning consultants for Tate Modern nor the local planning authority considered in any detail the desirability of restricting viewing in the direction of the Development. Even after the Development opened, the plans for the Blavatnik Building could have been amendment, but were not.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court considered the relationship in space between the Development and the Blavatnik Building in detail, but it is not easy to see the problem without the benefit of Google Maps. A visitor to the viewing gallery would want to look downwards to the North to view the river. Such a visitor would also want to view the Houses of Parliament and the London Eye to the South West but these are some distance away. The visitor would probably be content to view these distant landmarks without looking down. In principle, the viewing gallery could have been designed to prevent viewing downwards in the South West direction (or indeed Southwards generally). Putting the matter another way, there is not much to look at immediately to the South of Tate Modern.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once opened, the viewing gallery became very popular with visitors of Tate Modern. At any one time the viewing gallery could accommodate up to 300 visitors. Such visitors watched, filmed and photographed residents of Block C on a virtually constant basis. Some even used binoculars. For the affected residents of Block C, the intrusion was relentless and akin to being in a zoo. Tate Modern did put up signs in the viewing gallery suggesting that the privacy of the residents should be respected. These were largely ignored.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The residents of Block C most affected (ranging from floors 13 to 21) commenced proceedings to require Tate Modern to cordon off part of the viewing gallery so as to prevent the viewing referred to above.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Initial observations</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At first sight, one might be forgiven for thinking that the issues of the claim would be limited to the required remedy and that liability would not be a serious issue. The claimants were leaseholders of flats within Block C (with exclusive possession) and have a sufficient proprietary interest to bring a claim in private nuisance (see&nbsp;<em>Hunter v Canary Wharf Ltd</em>&nbsp;[1997] AC 655). The types of activity giving rise to private nuisance are not closed. In principle, private nuisance could apply to interference with television signals (see&nbsp;<em>Hunter v Canary Wharf</em>). It could apply to damage caused by Japanese knotweed (see&nbsp;<em>Williams v Network Rail</em>&nbsp;[2019] QB 601). Private nuisance ought to apply to viewing in an appropriately extreme case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The standard test or methodology involves asking three questions being as follows:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; Is the defendant’s use of its land “common or ordinary” in the locality? Some cases use “or” and some “and” without any discussion of the differences. If the defendant’s use of its land is “common or ordinary” then it may be able to avoid liability by relying upon the defence of “reasonable user” or “give and take” that is to say user necessary for the ordinary or common use of the land (see speech of Lord Goff in&nbsp;<em>Cambridge Water Co. v Eastern Counties Leather PLC</em>&nbsp;[1994] 2 AC 264 at page 299E).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; Is the claimants’ use of their land “common or ordinary” in the locality?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; Is there a substantial interference with the use of the claimants’ land?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The creation and use of the viewing gallery is now unlawful and might be desirable from a commercial perspective, but it is hardly “common or ordinary” in this or any other locality. It is unique and this is its selling point. The interference is substantial because it deprives the residents of flats from being able to use them in the usual way that people do. For some residents, it made their life a misery. Insofar as this might be relevant, Tate Modern had every opportunity to design the Blavatnik Building so as to mitigate the effects on the residents of the Development, but did not to do so.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, this is not the way in which the case proceeded until the Supreme Court decision on&nbsp;1st February 2023.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The decision of Mann J at first instance ([2019] Ch 369)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The claim was brought on two bases. The first was that Tate Modern was undertaking “functions of a public nature” and thereby bound to act fairly under section 6(3)(b) of the Human Rights Act 1998.&nbsp;It was claimed that it had not done so by facilitating viewing of the nature described. The second was that the acts constituted private nuisance and that the Court was entitled to take into account the right to privacy under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) in order to extend if necessary the remit of private nuisance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge found that Tate Modern was not&nbsp;undertaking “functions of a public nature” even though it was publicly funded. This would only apply if the functions were of the nature normally undertaken by a Government agency.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As to private nuisance, the Judge considered that the requirement for the protection of privacy under the Convention enabled him to extend the tort of private nuisance (if necessary) so as to include viewing which interfered with such privacy. However, the Judge concluded that there had been no substantial interference with the claimants’ reasonable user of the flats for the following reasons:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; The way in which the viewing gallery had been operated was not unlawful or “unreasonable”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; The claimants had created a “self-induced sensitivity” to viewing by deciding to live in flats which had been constructed so as to maximise glass frontage.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; The claimants could take steps to deal with the problem whether by installing tinted glass or curtains other otherwise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Accordingly, the claim was dismissed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I found the decision at the time troubling.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; As to the first point, the reference to user which was not “unreasonable” seemed to be misplaced. Mann J did not conclude that Tate Modern’s user was “common or ordinary”.&nbsp;Accordingly, “reasonable user” or “give and take” should not apply.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; As to the second point, this is normally an argument which judges hate. The amount of glass used in the construction of the towers enabled the&nbsp;residents of to enjoy their flats to their best advantage. Nothing more. Some years ago, I acted for an offal factory which had increased its production intensity. Nearby residents brought claims against it for private nuisance relating to noxious smells and noise. One of the arguments which the offal factory used was that these residents had created or worsened the problem by installing patio doors in their homes which they liked to keep open during the trading hours of the offal factory. As might be expected, this argument went down like a lead balloon. In my experience, similar arguments normally do. As a general rule, judges are the sort of people who like to enjoy their homes to their best advantage and empathize with a claimant who wishes to do so. There is also an element of blaming the victim, which is unattractive.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; This seems to be an issue as to remedy rather than the existence of a cause of action.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The decision of the Court of Appeal ([2020] EWCA Civ 104)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before the Court of Appeal, the case took a different direction.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>All three judges disagreed with the approach taken by Mann J as to substantial interference. None accepted that the claimants had created a “self-induced sensitivity”. The claimants were just enjoying their flats as people do.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, all three judges concluded that the weight of judicial authority was to the effect that&nbsp;“mere overlooking” from one property to another was not capable of giving rise to a cause of action in private nuisance. Article 8 of the Convention could not assist in extending the ambit of private nuisance because concepts of privacy under the Convention were distinct from property rights protected under the law of private nuisance. Privacy is attached to the person. Private nuisance is a property tort linked inextricably with rights to enjoy property.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>I found the decision at the time troubling because the essence of the tort of private nuisance is that it evolves with time, technology and the innate ability of the species to interfere with the rights of neighbours. It clearly applies to vibrations on one property which affect the neighbouring property. This type of vibration would not have been dreamt of when the tort originated. Neither would residential tower blocks lined with glass.&nbsp;In any event, the viewing by visitors was not “mere overlooking” in the sense that it arises merely because one property is higher than another. It was deliberate and intensive viewing for pleasure or amusement. Tate Modern had effectively encouraged its visitors to do so.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The decision of the Supreme Court</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>All five judges concluded that the tort of private nuisance was wide enough to enable a claim relating to viewing provided that it was sufficiently intensive. Insofar as this was relevant, the actions of the visitors of Tate Modern amounted to far more than the facilitation or encouragement of “mere viewing”. The fact that there had been no reported case to date relating to such a claim was not important. Article 8 of the Convention has no part to play in assessing the scope of the tort or private nuisance or any similar property tort.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The majority of the Supreme Court (Lords Leggatt, Reed and Lloyd-Jones) accepted the criticisms of the Court of Appeal with regard to the decision of Mann J and concluded what there had been substantial interference with the claimants’ “common or ordinary” user of their flats. While there was a balance between the conflicting right of neighbouring owners to be maintained (see&nbsp;<em>Sedleigh-Denflield v O’Callaghan</em>&nbsp;[1940] AC 880) the balancing exercise required the Court to intervene and relief would be granted. Lord Leggatt, who gave the speech of the majority, was scathing about the judgments below and considered that they may have been motivated by a desire to prefer the rights of the many visitors to Tate Modern at the expense of a few rich residents of the flats. In this regard, Lord Leggatt may be inferring more than is obvious from the judgments themselves. It is an unfair criticism of the Court of Appeal as all three judges would have found for the claimants but for the fundamental issue as to the nature of the actions giving rise to a private nuisance claim.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The speech of the minority (Lords Sales and Kitchin) is not easy to follow. They do not appear to have accepted the argument that the claimants created “a self-induced sensitivity”. However, they refused to interfere with the judgment of Mann J on the basis that private nuisance involves at its very essence the concept of “reasonable user” or “give and take”. For the minority, these concepts were not limited to actions required for “common or ordinary” user. The minority considered that residents of the flats were in a position to take steps to mitigate the problem and they should do so rather than Tate Modern.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The analysis of the minority is perplexing for a number of reasons including the following:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;&nbsp;&nbsp; The natural reading of the speech of Lord Goff in&nbsp;<em>Cambridge Water</em>&nbsp;limits “reasonable user” or “give and take” to actions required for “common or ordinary” user. No judge took the view that there was “common or ordinary” user of Tate Modern’s land.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; Extending the defence of “reasonable user” or “give and take” to situations where the user is not “common or ordinary” creates uncertainty and changes the whole nature of the liability. A person who constructs a property which is not “common or ordinary” in the locality (or commences a use which is not “common or ordinary” from an existing building) ought to assess and mitigate the consequences for his neighbours of such use. He is best placed to do so and mitigation can be filtered into the cost. One might be forgiven for thinking that these steps would be taken in conjunction with (or at the direction of) the planning authorities. On the facts, Tate Modern had been given every opportunity to construct the Blavatnik Building in a way which mitigated the obvious potential damage to the residents of Block C caused by hundreds of visitors gawping at them. It had taken none of these opportunities and had made no proposals to restrict the usage of the viewing gallery thereafter.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The law after the judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In a case with just two issues, it is surprising to find such fundamental difference of approach by the judiciary. As to the two issues, the nine judges considering the same decided as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; Nuisance applies to viewing (6 to 3).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; There was substantial interference (6 to 3).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, there were only three judges who found both. Fortunately, they were all in the Supreme Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The following can be said in the light of the judgment of the Supreme Court:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; The boundaries of the law of private nuisance are not closed. In appropriate circumstances, viewing can amount to private nuisance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; Article 8 of the Convention is of no assistance in determining the ambit of private nuisance or any other property tort.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; Reliance upon “self-induced sensitivity” arguments as regards residential properties is likely to be very difficult.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4)&nbsp; The standard test for substantial interference is to be applied that is to say the defence of “reasonable user” or “give and take” only apply to actions required for the “common and ordinary” user of the claimant’s land.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sean Kelly</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden Chambers </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>22nd February 2023</p> <!-- /wp:paragraph -->

Proprietary estoppel after Guest v Guest

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/">Sean Kelly</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For some time, the Court has had to deal with an increasing number of proprietary estoppel claims brought by a son against his parents in relation to the family farm. This may be the result of changes in family relationships or just due to the increasing value of farming land. The majority of claims used to be made against the executors of the parents following the realisation by the son that the will contained no bequest to him of the family farm. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new norm is for the claim to be made during the lifetime of the parents following a breakdown in the relationship. The ability to make such a claim during the lifetime of the parents was first established by the decision of the Court of Appeal in <em>Gillett v Holt </em>[2001] Ch 210. Although some claims are made by daughters (such as<em> Davies v Davies </em>[2016] EWCA Civ 463), the majority are still made by sons.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In most cases the promise, representation or assurance relied upon is <em>“One day, all this will be yours”</em>. The promise leads to the expectation that all or part of the family farm will pass to the son at some point in the future and the son spends his entire life working on the farm (often at low pay) instead of pursuing other career options. There is no contract to rely upon and the lack of certainty in the promise precludes a constructive trust claim. The son has to make his claim in proprietary estoppel.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Proprietary estoppel is a judge-made remedy which had been the subject of considerable case law including two decisions of the House of Lords (that is to say <em>Cobbe v Yeoman’s Row </em>[2008] 1 WLR 1752 and <em>Thorner v Major </em>[2009] 1 WLR 776) albeit that such decisions are of limited scope. <em>Thorner v Major </em>confirmed that the promise could be in very general terms and it was the function of the Court to interpret it. <em>Cobbe v Yeoman’s Row </em>confirmed that proprietary estoppel had no application to commercial negotiations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court has usually adopted a two-stage test. In the first stage, it determines whether “an equity” has been raised which makes it necessary for the Court to intervene to provide a remedy. The second stage is the crafting of a remedy to “satisfy the equity”. The principles are set out succinctly by Lewison LJ in <em>Davies v Davies </em>at paragraph 38 in a passage that has become a template for later decisions:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1) Deciding whether an equity has been raised, and if so, how to satisfy it is a retrospective exercise looking backwards from the moment when the promise falls due to be performed and asking whether, in the circumstances which have actually happened, it would be unconscionable for a promise not to be kept either wholly or in part.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;The ingredients necessary to raise an equity are (a) an assurance of sufficient clarity (b) reliance by the claimant on that assurance and (c) detriment to the claimant as a consequence of his reasonable reliance</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3) However, no claim based on proprietary estoppel can be divided into watertight compartments. The quality of the relevant assurances may influence the issue of reliance; reliance and detriment are often intertwined, and whether there is a distinct need for a “mutual understanding” may depend on how the other elements are formulated and understood.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4) Detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp;There must be a sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. The question is whether (and if so to what extent) it would be unjust or inequitable to allow the person who has given the assurance to go back on it. The essential test is that of unconscionability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>6)&nbsp;Thus, the essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>7) In deciding how to satisfy any equity the court must weigh the detriment suffered by the claimant in reliance on the defendant’s assurances against any countervailing benefits he enjoyed in consequence of that reliance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>8)&nbsp;Proportionality lies at the heart of the doctrine of proprietary estoppel an permeates its every application. In particular, there must be a proportionality between the remedy and the detriment which is its purpose to avoid. This does not mean that the court should abandon expectations and seek only to compensate detrimental reliance, but if the expectation is disproportionate to the detriment, the court should satisfy the equity in a more limited way.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>9)&nbsp;In deciding how to satisfy the equity the court has to exercise a broad judgmental discretion. However, the discretion is not unfettered. It must be exercised on a principled basis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Lewison LJ went to set out the “lively controversy” as to the purpose of the remedy, that is to say whether the purpose was to give effect to the claimant’s expectation unless it would be disproportionate to do so or whether it was to compensate the claimant for the detriment which he had suffered as a result of reliance on the promise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The “lively controversy”</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Guest v Guest </em>[2022] UKSC 27 (delivered on 19<sup>th</sup> October 2022) the Supreme Court was required to resolve this “lively controversy” and determine the purpose of the remedy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The facts in <em>Guest v Guest </em>are complicated given that the promises were given over the whole lifetime of the son. However, for the most relevant facts could be said to be as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; There was a breakdown in the relationship between the claimant son and his parents during their lifetime. Accordingly, the claimant son was seeking an interest in the family farm now rather than when it was promised and his interest was being accelerated.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;The family farm had a farmhouse which was still occupied by the parents</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp;As a result of repeated promises over his whole life, the claimant son expected to conduct the dairy farming business until the death of his father. On the death of the second parent to die, the claimant son expected to receive one half of the dairy farming business and one half of the farm (including the farmhouse). A brother was to receive the other half of the farm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4)&nbsp;While the claimant son and the parents had been in partnership for a short period, this partnership had been dissolved and no consideration was given to the effect of it.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp;Any remedy would involve the sale of the dairy business and the farmhouse. This was bound to create an immediate CGT charge.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In contrast with <em>Davies v Davies </em>(where liability and remedy were tried separately), HHJ Russen, QC ([2019] EWHC 869 (Ch)) tried both together. The parents put all of their efforts into defeating the claim and made no detailed submissions as to remedy. The Judge determined that it was unconscionable for the parents to go back on their promises and that a remedy should be provided to satisfy the equity. The Judge considered that the most proportionate remedy was to make a lump-sum award to the claimant son calculated on the following basis:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;50% after tax of the market value of the dairy business</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2) 40% after tax of the value of the farm and 40% after tax of the value of the farmhouse taking into account a decrease to be generated by the assumption that the same was subject to a notional life-interest for the parents.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Other than the reference to the assumed life-interest of the parents, there was no express reference to the effects of acceleration and how there could be a discount to reflect this effect.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal refused the appeal, so the award was not altered.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the Supreme Court, there are two competing opinions. The majority opinion (3) is given by Lord Briggs, with the minority opinion (2) given by Lord Leggatt. They could not be more different.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;For the majority (paragraph 61) the unconscionability is the repudiation of the promise, and the purpose of the remedy is to prevent the defendants from doing so. It must naturally follow that the remedy to be crafted by the Court will involve ensuring that the reasonable expectation of the claimant is fulfilled save where this would be “out of all proportion to the detriment”. The burden of proof is on the defendant to plead and prove that the remedy would be out of all proportion to the detriment (paragraph 76). Although not stated expressly, as a matter of logic, this would also mean pleading and proving some other more proportionate remedy to achieve the same purpose.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;For the minority (paragraph 191) the unconscionability is not the failure by the defendant to keep a non-binding promise. It is the failure by the defendant to accept responsibility for the consequences of the claimant’s reasonable reliance on the promises. Accordingly, the remedy is there to deal with the consequences of detriment, and this is the starting point for crafting any remedy. The minority then went on to seek to determine the real financial loss suffered by the son.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The majority did not object to the principle of a lump-sum order but objected to the order made by HHJ Russen, QC due to its failure to deal expressly with the effects of acceleration. However, it did not substitute its own order. If necessary, this issue would be remitted to the trial judge. The minority substituted a detriment-based award calculated so as to accord with the loss of earnings or other lost benefits of the claimant son.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is unfortunate that it has taken so long for the purpose of this remedy to be determined at the highest level. The two views cannot be reconciled, and the position has now been resolved by the principle of majority rule. The starting point is that the Court should craft its remedy in order to ensure that the reasonable expectation of the claimant is satisfied unless this would be out of all proportion to the detriment. It is for the claimant to set out what his expectation is and how this is to be satisfied by order of the Court. The claimant needs to plead and prove detriment, but not in financial terms. It is for the defendant to set out why this would be out of all proportion to the detriment and put forward another remedy to achieve the same end.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As regards the test of unconscionability, proportionality is still important. Repudiation of the promise (or refusing to give effect to the expectation if different) only requires the intervention of the Court if this is unconscionable. The extent of the detriment suffered is relevant to this. As the majority clarified, it is not necessarily unconscionable for parents to repudiate the promise if their financial circumstances change.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the majority of farming cases, fulfilment of the expectation will involve the transfer of assets which are in monetary terms out of all proportion to the financial detriment suffered by the son in working on the farm for his whole life. The value of many of the family farms which are the subject of the most recent cases is measured in millions if not tens of millions of pounds. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is a natural result of the increase in the value of farming land. Clearly, the majority in the Supreme Court took the view that this increase in the value of land is not a good reason of itself to refuse to fulfil the expectation. Something more is required. This might involve prejudice to the interests of other members of the family or the need to provide for the parents in retirement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Outstanding Issues </strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following the decision of the Supreme Court, the following issues remain unresolved:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp;Will the need to fulfil the claimant’s expectation make the Court more reluctant to provide any remedy?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp;What factors make it out of all proportion to fulfil the expectation of the claimant?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp;How should the Court deal with tax concerns?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4) How should be Court deal with the acceleration which results from having to provide a remedy during the lifetime of the parents?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp;What difference (if any) would it make if the parents and the son had been partners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>1) Provision of some remedy</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Some of the decisions of the Court involving a lump-sum payment can be explained on the basis that the Court considered that the claimant ought to be compensated in some way but not by the fulfilment of his expectation. <em>Jennings v Rice </em>[2002] EWCA Civ 159 would be the most obvious example. If proportionality were to permeate every part of the judicial process, then it would allow the Court to award something which allows the claimant to progress with his life without fulfilling his expectation of ownership of a particular farm or farming somewhere else. It remains to be seen whether the requirement to fulfil the expectation in full reduces the number of successful claims. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>2) Disproportionate relief</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is always difficult to apply other principles of equity by analogy. However, where a person receives money which is transferred in breach of trust, his liability in knowing receipt is based on his knowledge (express or implied) of the transaction. The underlying test is one of unconscionability. If it is unconscionable for him to keep the money, he has to pay it to the beneficiary of the trust.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is no question of him paying only some part if it depending upon how unconscionable it is for him to receive it. A sliding scale principle does not work with unconscionability. It is a binary issue. Logically, if it is unconscionable for the parents to resile from their promise to transfer all or part of the farm to their son, then his expectation can only be fulfilled by a transfer of some, or all of that particular farm and a lump-sum payment can never be an adequate alternative.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A lump-sum payment can allow the son to operate a farm somewhere else. However, that was not the expectation. The majority in the Supreme Court do not seem to be troubled by this. On this basis, the factors which a defendant can plead and prove include (a) the interests of other members of the family (b) the need for the parents to be provided with an income and housing in retirement and (c) the availability of means by which the son can acquire a similar farm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>3) Tax concerns</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the normal course of events, if the son is to inherit the family farm upon the death of the last parent to die, then there will be 100% agricultural relief for inheritance tax. Any CGT will be washed out. If the family farm is given to the son during the lifetime of his parents, then this will be a PET (albeit one to which agricultural relief could apply). As it is a PET, CGT is chargeable immediately at the true market value. If the son elects to do so, he can hold over the gain for CGT purposes. While it is unwise to predict future tax changes, it is reasonable to assume that CGT rates will increase significantly to fund the budget deficit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Bringing a proprietary estoppel claim during the lifetime of the parents can give rise to a tax charge. If the farm needs to be sold to a third party, this will give rise to immediately chargeable CGT. If the son is to receive all or part of the farm, he will need to agree to accept the election for him to be taxed and for the CGT be rolled over.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It would be fair to say that the Court is not particularly concerned about the effects of taxation on the crafting of the remedy. It is often said that it is not the job of the Court to save the party's tax. In any event, the Court is poorly equipped to consider the tax aspects of any remedy. Orders requiring the farm to be transferred to the son subject to continuing periodic payments to the parents (such as <em>Moore v Moore </em>[2018] EWCA Civ 2669) have been made. Such a route has the merit of avoiding the CGT on sale, but this is not the reason for the Court’s choice of the route. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>4) Acceleration</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is really no assistance from the Court in any case as to how the acceleration in the entitlement of the son to the family farm should be dealt with.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As regards the lump-sum method, the effects of acceleration were not considered in any detail in <em>Davies </em><em>v Davies</em>. While the lump payment awarded by the High Court in <em>Guest v Guest </em>was criticized, no real guidance was provided as to how it should be done. There was merely a suggestion that actuarial tables could be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As to the transfer of the farm subject to a periodic payment method, the order of the High Court in <em>Moore v Moore </em>provided for a weekly payment of £200 to the parents, in relation to a farm worth several million. While this payment was set aside as being far too low and a higher payment substituted, there was no real guidance as to how such a figure should be calculated. Presumably, it should bear some relation to the value of the farm to be transferred or (at least) the ability of the farm to generate income.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>5) Partnership issues</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These were not addressed in <em>Guest v Guest</em>. In <em>Moore v Moore </em>the claim arose in relation to an interest in a farm held in partnership. Even though the case started as a winding-up claim, there was no real discussion as to whether the existence of a partnership affected the nature of the expectations of the son or the relief to be granted. These issues remain unresolved.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When a parent takes a son into partnership, the relationship must change to a predominantly commercial one. The expectation of the son as regards what is to occur when the partnership is dissolved ought to accord with the position under the partnership agreement or the general law of partnership. The decision in <em>Cobbe v Yeoman’s Row </em>precludes a proprietary estoppel claim in relation to a purely commercial relationship. Logically, the decision should preclude the son from asserting rights greater than those which arise as a partner. Unfortunately, this point was not raised in<em> Moore v Moore</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Another feature of partnership proprietary estoppel claims is the widespread assumption that all land farmed by a partnership is partnership land. A son might work on the family farm as a partner for many years on the assumption that the farm is partnership property only to realise much later that it is still owned by the parents. In such a situation, there is no promise. There is merely a misunderstanding of the law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The role of mediation</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In relation to the assessment of whether it would be unconscionable for the parents to repudiate the promise made by them, mediation has a limited role. However, in most cases it is relatively obvious whether the son has a claim with merit and the real issue is as to remedy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In relation to remedy, mediation is really the best way of proceeding. The Court is ill-equipped to provide a sensible pragmatic solution to the problem especially if tax is an issue. A mediator will probably be concerned primarily with what the claimant requires in order to continue to farm whether at the family farm itself or otherwise. In reality, there are likely to be many different solutions each with pros and cons which can be examined in detail during a mediation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener">Sean</a>&nbsp;undertakes a broad range of chancery and commercial work with emphasis on partnerships, company law, banking, contractual disputes, land law (including land registration), landlord and tenant and administration of estates.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em> </em></p> <!-- /wp:paragraph -->

Death and the family partnership

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/">Sean Kelly</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The death of a member in a family partnership is an event which creates legal complexities as well as straining personal relationships. This article deals with common issues arising on the death of a member of a family partnership.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The situations created on death are infinitely varied, but a common scenario involves a partnership conducted between the father (“F”) and a son (“S”) where F makes a will appointing S and another child who has had no involvement in the business (“D”) as executors. The issue referred to above, is explored by reference to the consequences of the death of F while the partnership is continuing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The grant of probate</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is at least a potential conflict of interest between the position of S as executor and as continuing partner. However, this is a conflict which has been created by F and this conflict (of itself) should not prevent S from proving. Indeed, S will need to provide much of the information required in order to compile the IHT forms. Compiling these forms without his operation will be difficult. However, S will need to ensure that he takes all necessary steps to advance the interests of the estate against his own. Otherwise, his conduct may create an actual conflict of interest which would justify his removal under section 50(1) of the Administration of Justice Act 1985.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The fact that S is a proving executor will not prevent him from bringing a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”) and will not prevent D from bringing a claim for winding-up of the partnership against S using CPR Part 19.3.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As IHT has to be paid before the grant of probate is made, S and D will need to reach some form of agreement as to the value of the interest of F in the partnership at death and to what (if any) properties held by F and S as joint tenants at law pass to S by survivorship. Care needs to be taken in the compiling of the IHT returns so that S and D both understand the basis upon which the partnership has operated is recorded accurately. HMRC will expect the IHT forms to be complied by reference to dissolution accounts.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Even before probate, D is entitled to see all of the accounts and accounting records of the partnership. Without these D will have little ability to understand how it has traded.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Partnership accounts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>D will need to understand the operation of the partnership and (in particular) the nature of partnership property and will look to its annual accounts. No Statement of Standard Accounting Practice applies to partnership accounts and there is no requirement to update property values. Accordingly, it can be very difficult to determine which assets have been treated as partnership property from its accounts. Whenever an asset is brought into the partnership, the accountants ought to produce a note of the asset and the attributed value for future reference. In practice, this is done rarely.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Construction of gifts of assets associated with a partnership</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A partner has no interest in any individual item of partnership property and merely has a net interest in all of the assets after the payment of all of the debts (see <em>Popat v Shonchhatra </em>[1997] 1 WLR 1367).&nbsp; This is a single cause of action which cannot be divided. The cause of action is the right to have the partnership wound-up. It is similar to a right to due administration of an estate. Partnership property cannot be held as tenants in common or as joint tenants as these forms of trust can only apply to individual assets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The will of F may not describe correctly his interest in the business conducted by the partnership and F may well forget that assets (particularly land) which were previously owned by him beneficially are now partnership property.  </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A bequest of F’s “<em>business” </em>or his <em>“share of the business” </em>are normally construed as being F’s interest in the partnership which conducts the business (see <em>Re Barfield </em>(1901) 84 LT 28).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A number of cases decided before the Partnership Act 1890 (“the Act”) (and in particular<em> Blake v Shaw </em>(1860) Jo 732 and <em>Farquahar v Hadden </em>(1872) 7 Ch 1) appear to accept that there can be valid bequests of individual assets used in a partnership business. If that asset is not partnership property, then there is no objection to the asset passing by will in the usual way. However, if the asset is now partnership property, then it cannot pass in this way as the interest of F is not divisible. Any case decided before the Act needs to be treated with caution and it is unlikely that any Court would now accept this possibility.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Continuation of the business of the partnership</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If it so provides, S may be able to or required to purchase F’s interest in the partnership following death under the terms of their partnership agreement. This could arise automatically or pursuant to an option. In either case, S’s decision to continue with the business on his own account is made at the time of death or the exercise of the option.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Where there is no contractual mechanism to allow S to purchase F’s interest in the partnership, the death will lead to a general dissolution where all assets of the partnership have to be sold. As executor of F, D has no right to participate in the management of the business of the partnership. Accordingly, S must wind-up the affairs of partnership. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 38 of the Partnership Act 1890 requires a continuing partner to complete transactions <em>“begun but not unfinished” </em>at the time of dissolution. In practice, this is a very limited requirement and S will need to decide at an early stage whether he wants to continue the business of the partnership on his own account or whether he merely wishes to wind it up. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For a partnership which operates a shop, winding-up involves the sale of the stock at the date of dissolution. However, it is very difficult to sell stock in this way. Customers expect stock to be replenished and are unlikely to buy slow-moving stock unless fast-moving stock is also available. Accordingly, it is difficult to merely wind-up a partnership of this nature. For agricultural partnerships there is normally an annual growing cycle, and the partnership transactions are completed at the end of that cycle. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Once S commences his own business using the assets of the partnership, the estate of F can claim an account under section 42 of the Act against him until winding-up has been completed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Contractual purchase of the interest of F</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In many ways, the most important part of any well-drafted partnership agreement is a mechanism under which the interest of a departing partner can be purchased thereby avoiding general dissolution. There are two main mechanisms being automatic purchase at death (that is to say an accruer) and options granted either to the estate or to the continuing partner to purchase. No contractual mechanism can operate if the partnership has already been dissolved (by agreement) before death.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The main advantage of an automatic purchase mechanism is certainty. The only issue left outstanding is the determination of the sum to be paid. The problem with accruer clauses is that HMRC takes the view that they are agreements for the sale of a partnership share within section 113 of the Inheritance Tax Act 1984 so that the deceased is no longer conducting business at the time of death. On this view, business relief will not be available (see McCutcheon at paragraph 28-26).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Options to purchase avoid this IHT difficulty but they create many other problems. Some problems arise due to the nature of options generally. These include determining when the option is to be exercised and how notice is to be given. Particular problems arise on death because F can neither give nor receive an option notice. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Some person needs to represent F and that person may need a grant of probate to give or receive an option notice. This may take time and the option period may elapse before a grant is made.  A well drafted partnership agreement will deal with these issues, but many do not. If there is merely an option to purchase F’s interest in the partnership, then a failure to exercise the option will lead to a general dissolution.  </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In either type of mechanism, the price to be paid for F’s interest in the partnership can be determined in three ways being (i) using the last set of partnership accounts (ii) using accounts to be drawn up to death but on the same basis as previous accounts and (iii) using accounts to be drawn to death but with a revaluation of the assets. The third basis approximates most closely to the position on general dissolution and is the fairest. However, there is no presumption that any purchase mechanism adopts the third basis. The Court will construe each mechanism under normal contractual principles (see <em>Drake v Harvey </em>[2011] EWCA Civ 838). However, in practice the Court normally prefers to construe the clause so as to allow revaluation unless constrained to do so otherwise (see <em>Ham v Ham </em>[2013] EWCA Civ 1301). Revaluation normally leads to a fairer result.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If the assets of the partnership are to be revalued, this necessarily requires the instruction of a surveyor who might or might not be instructed as an expert. There will be a delay in obtaining the valuation (particularly if either party thinks that it is wrong) and this necessarily leads to the issue of whether the purchase price of payable on death (or the exercise of the option) or upon determination (see <em>Liddle v Liddle </em>[2019] EWCA Civ 346).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Any purchase mechanism has to adopt the treatment of assets in the partnership accounts. Assets cannot be re-valued unless a value is attributed to them in the accounts. Accordingly, purchase mechanisms do not overcome issues relating whether individual assets are partnership property.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As contractual mechanisms use pre-existing accounts or current accounting bases, goodwill will not feature, and no sum will be paid for the same.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Winding-up following general dissolution</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 43 of the Act gives the impression that the interest F in the partnership is converted into a debt at the time of his death. At least in the case of a partnership holding assets, this is not the case. Partnership property is defined by section 20(1) of the Act to be property held upon the trusts of the partnership. The interest of F in partnership property is not sold or otherwise transferred on death. Partnership property remains partnership property until it is all sold on winding-up. F’s estate is entitled to his share of the capital profits arising on any increase in the value of partnership property on sale.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>D or S can both apply to the court for winding-up. It is a joint cause of action, but both can take advantage of CPR Part 19.3. Issues relating to winding-up have little or no connection with the administration of the estate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 23 of the Limitation Act 1980 prescribes that the time limit for the taking of an account is six years. This time limit has little practical application because it would be very rare for dissolution accounts of some kind to be prepared not least because of the requirement to value the interest of F in the partnership for IHT purposes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although a partnership is not wound-up until all of its assets are sold, it is common to prepare dissolution accounts in advance of any such sale. The value of the assets of the partnership at F’s death is needed because a section 42 account proceeds on the basis of the value of the capital account of F at death. Necessarily, such dissolution accounts will contain estimated values for partnership property. Unless there is a need to produce distinct winding-up accounts for tax purposes, the dissolution accounts will be adjusted when the assets are sold as estimated values will be replaced by actual values.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>S may well wish to buy some or all of the assets of the partnership so that he can carry on the business on his own account. S can apply to the court for a <em>Syers v Syers </em>order enabling hm to purchase the assets at a valuation. In practice, D will normally agree to such an order provided that S does not seek to cherry pick the assets required. Provided that S pays the market value for the assets, D can have no proper cause for complaint. The issue will only come before the court if D has some good reason not to agree. Hence the comment of Hoffman LJ in<em> Hammond v Brearley </em>that <em>Syers v Syers </em>is more often cited than followed. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A good reason would normally involve some difficulty in undertaking the valuation exercise. D and S may have wildly different views on the value of particular land depending on its potential for development. It may not be appropriate for the court to determine this issue rather than the market.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is very likely that there will be disputes as to what assets are partnership property and which pass to S by survivorship. As stated above, this needs to be considered before the IHT forms are completed because S may find it difficult to change his position from that stated in the IT forms. This is not likely to be a problem for D as D has to rely upon the partnership accounts. The general rules are as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Partnership accounts are a starting point for the exercise but will not be definitive (see <em>Barton v Morris </em>[1985] 1 WLR 1257). Accountants often include assets in partnership accounts without explaining the significance to the partners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; No formalities are required for an asset to become partnership property as section 20(1) of the Act merely requires an asset to be <em>“brought into the partnership”</em>. Bringing in is an issue of fact. It is normally proved by appropriate bookkeeping entries. The partnership is credited with the value of the asset and the capital accounts are adjusted to make the accounts balance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Transferring partnership property out of a partnership requires formalities as there is no provision corresponding with section 20(1). For land, there will need to be a contract for sale complying with section 2(1) of the Law of Property (Miscellaneous) Provisions Act 1989 and then a deed.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An asset bought with partnership money is deemed to be partnership property under section 21 of the Act unless the contrary can be proved. Money distributed to a partner as drawings and then used to buy an asset is no longer partnership money.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5)&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Only assets which are bought and sold by a partnership in the ordinary course of its business have to be partnership property (see <em>Miles v Clarke </em>[1985] 1 WLR 1257). Any other assets can be held outside the partnership.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In principle, on winding-up the goodwill of the partnership should be sold whether to S or to a third-party purchaser of the business. If there is saleable goodwill, then this will increase the capital account of F. Realistically, it is unlikely that the partnership will have saleable goodwill which can be differentiated from the personal goodwill of F and S.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Section 42 account</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A section 42 account only applies to income profits.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although section 42 of the Act gives D the right to claim the share of profits generated from S’s use of F’s interest in the partnership, this exercise is complicated as much of the profit may have been generated from S’s efforts. D will usually only opt for claiming a share of profits in a business which generates profits without much active involvement (such as property letting).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Where D seeks interest by way of a section 42 account, this is calculated based on the value of F’s capital account at death. Necessarily a section 42 account can only actually be taken after winding-up because winding-up is the final date of the account. Since 2008 at least an interest rate of 5 per cent per annum has been generous.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Inheritance Act claims</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These can arise either where S brings a claim seeking provision to enable to continue the partnership business without paying the full value of F’s interest to the estate or where a third party seeks provision from F’s estate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In any such case the court has to determine the value of F’s interest in the partnership as best it can. It cannot embark upon a full winding-up exercise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener">Sean</a>&nbsp;undertakes a broad range of chancery and commercial work with emphasis on partnerships, company law, banking, contractual disputes, land law (including land registration), landlord and tenant and administration of estates.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em> </em></p> <!-- /wp:paragraph -->

Family: Property &#038; Finance Conference 27 May 2022 🗺

<!-- wp:group --> <div class="wp-block-group"><!-- wp:group --> <div class="wp-block-group"><!-- wp:paragraph --> <p>Take the opportunity to enjoy an informative afternoon with Family Property &amp; Finance experts&nbsp;including&nbsp;our guest speaker and Parklane Plowden specialists. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Programme</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>12:15 - 13:15 - Registration &amp; Lunch<br><br>13:15 - 14:00 - <a href="https://www.iflg.uk.com/team/prof-david-hodson-obe-qc-hons-mciarb" target="_blank" rel="noreferrer noopener"><strong>Prof David Hodson OBE QC (Hons) MCIArb</strong></a><br><strong>International Issues including the impact on leaving the EU; Foreign Assets in National Cases and Financial Provision after Foreign Divorce</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14:00 - 14:15 - Break<br><br>14:15 - 14:45 - <strong>Elizabeth Darlington MCIArb</strong><br><strong>Cohabitation: Recent Developments and Procedural Overview</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14:45 - 15:15 - <a href="https://www.parklaneplowden.co.uk/our-barristers/harriet-stacey/" target="_blank" rel="noreferrer noopener"><strong>Harriet Stacey</strong></a><br><strong>Financial Remedies Update: Transparency, Efficiency and the perils of FPR non-compliance</strong><br><br>15:15 - 15:30 - Break<br><br>15:30 - 16:00 - <a href="https://www.parklaneplowden.co.uk/our-barristers/francesca-fothergill/" target="_blank" rel="noreferrer noopener"><strong>Francesca Fothergill</strong></a><br><strong>Private Companies: Fragile, Fraught and Fought Over</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>16:00 - 16:30 - <a href="https://www.parklaneplowden.co.uk/our-barristers/paul-edwards/" target="_blank" rel="noreferrer noopener"><strong>Paul Edwards</strong></a><br><strong>Conduct: Is it Gross and Obvious?</strong><br><br>16:30 - 16:45 - Questions<br>17:00 onward - Networking &amp; Drinks</p> <!-- /wp:paragraph --></div> <!-- /wp:group --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Venue</strong>: </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.google.com/maps/place/The+Queens+Hotel/@53.795931,-1.5476451,15z/data=!4m8!3m7!1s0x0:0xe41574b975130e8e!5m2!4m1!1i2!8m2!3d53.795931!4d-1.5476451" target="_blank" rel="noreferrer noopener">The Queens Hotel</a><br>City Square,<br>Leeds LS1 1PJ</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Registration Fees</strong>: </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>£75 +vat includes lunch and CPD points (TBC)<br>Invoice will be sent within 10 days of registering</p> <!-- /wp:paragraph --> <!-- wp:heading {"level":5} --> <h5><a href="http://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&amp;d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0xEDB99A4EA413673F|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0xEDB99A4EA413673F|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|" target="_blank" rel="noreferrer noopener">Register for Friday, 27 May 2022 Conference</a> - Registration now closed, please email <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events</a>.</h5> <!-- /wp:heading --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --></div> <!-- /wp:group --> <!-- wp:paragraph --> <p>Find out more about our Family Property &amp; Finance team on this <a href="https://www.parklaneplowden.co.uk/expertise/family-property-finance-barristers/" target="_blank" rel="noreferrer noopener">page</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For more details or enquiries please email <a href="mailto:events@parklaneplowden.co.uk">events@parklaneplowden.co.uk</a></p> <!-- /wp:paragraph -->