Ipsofactoj.com: International Cases [2001] Part 10 Case 5 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Campbell

- vs -

Griffin

THE PRESIDENT

LORD JUSTICE THORPE

LORD JUSTICE ROBERT WALKER

27 JUNE 2001


Judgment

Lord Justice Robert Walker

  1. This is an application for permission to appeal, with the appeal to follow if permission is granted for an appeal, from an order of Mr Recorder Hall made in the Worthing County Court on 27 March 2000. The judge's order had the effect of dismissing a claim based on proprietary estoppel put forward by the claimant, Mr Kenneth Campbell. On a counterclaim by the first, second and third defendants the judge made an order for possession of the freehold dwelling house, 26 St Botolph's Road, Worthing, where Mr Campbell was living.

  2. 26 St Botolph's Road is a substantial semi-detached house which had for many years been the home of Mr Thomas Ascough (who died on 9 October 1995) and his wife Mrs Constance Ascough (who died on 10 December 1997). (Ascough is spelled in some of the documents as Ayscough.) Mr Campbell had lived in the house since he first moved in as the Ascoughs' lodger in 1978. The first and second defendants, Mr Terence Griffin and Mr Peter Laverick, are Mr Ascough's executors, and Mr Griffin and the third defendant, Mr Peter Bennett, are Mrs Ascough's executors. All the executors are partners in a firm of solicitors at Worthing, Bennett Griffin and Partners. The fourth defendant the West Sussex County Council is interested because it has a statutory charge on the house under the Health and Social Services and Social Security Adjudications Act 1983.

  3. When Mr Campbell first became the Ascoughs' lodger he was a single man of 30. He had worked for Wimpey since leaving school at 16 and after starting as a manual worker in Glasgow he had moved to a job in Wimpey's accounts department in Perth. Then when he was about 28 he was made redundant and he worked in a variety of jobs until Wimpey offered him a new job, as an area office manager based in Worthing. Later he was made redundant again and he has since worked in a variety of jobs, including weekend shift work at Gatwick Airport.

  4. In 1978 the Ascoughs were advertising a room in the house and Mr Campbell took it at 10 a week. Mr Campbell said that the Ascoughs and he got on well together from the first. They were then already in their late seventies. Mr Ascough was (according to the evidence of Mr Griffin, his solicitor) a very intelligent man who had held a senior position in the civil service. Mr Campbell described him as "full of life, a loud character with a charming personality". Mr Griffin described Mrs Ascough as less intelligent. The Ascoughs had no children but had two nieces, both married with children.

  5. For the first five years after 1978 Mr Campbell's position in the household was that of a lodger who got on very well with his landlords. But by the end of five years or so the relationship had moved beyond that. As they became increasingly frail the Ascoughs came to depend on Mr Campbell for help in various ways, and they were very grateful for his help. Mr Campbell had not had an easy childhood (he and his sister had been in a children's home for some years) and after his move to Worthing his only serious romance had not prospered. The Ascoughs' affection for him - amounting, he said, to treating him as a son - was welcome to him.

  6. Mr Campbell's evidence was that from about 1983 the Ascoughs frequently said to him that whatever happened, he had a home for life. The judge accepted that such assurances were given by both Mr and Mrs Ascough, and he seems to have accepted (although his findings are not entirely clear on this point) that they were given frequently, sometimes in the presence of others. But the judge did not accept that they began as early as 1983. His finding of fact, which is not challenged, is that the assurances were made from about 1987.

  7. Mr Campbell's evidence (in support of his claim to make good the essentials of detriment and reliance) was that at first he helped with cleaning the house and maintaining the house and the garden; with shopping; and with preparing meals for them, especially the evening meal. The level of Mr Campbell's assistance to the Ascoughs progressively increased and his position became that of a carer. He was never a full-time carer, because for most of the time Mr Campbell was working, sometimes for long hours, and in the last period before the Ascoughs finally went into residential care there was a home help, Mrs Garrett, who came in for two to three hours a day from Monday to Friday. But Mr Campbell was the only carer who was there at night. Mr Campbell stated in part of his witness statement which was not challenged in cross-examination,

    It is difficult to be accurate about the date when Mr Ascough began to lose his sense of balance but his health did deteriorate. However, Mr Ascough did have an old war injury which did result in him having headaches and blackouts. There were occasions when I would return from work to find him lying on the floor. Mrs Ascough would be unable to help him because he was such a big man. In any event she was becoming increasingly deaf so that she could not use the telephone. There were occasions when he would have been lying on the floor for a number of hours without any help. I would pick him up and give him a wash, if necessary, and put him back to bed. I would then help him to get changed, make him a drink and if he was hungry, a meal.

  8. Mr Campbell also said in his witness statement,

    When I look back I realise how dependent Mr and Mrs Ascough had become upon me to undertake basic everyday tasks for them, such as waking them in the morning, making breakfast, leaving food out for them for the rest of the day. When I returned home I would make the evening meal, clean the house and help them as and when necessary. I did not view the fact that I had become their carer with any resentment, I was simply helping friends as and when necessary.

    That part of his statement was challenged in cross-examination and Mr Campbell agreed that after Mrs Garrett, the home help, was there, it was she who would get their breakfast and prepare their midday meal. But Mrs Garrett seems to have been on the scene only in 1993 (and January 1994).

  9. That illustrates a feature of this case which is clearly apparent from the transcript of Mr Campbell's evidence, from the judgment below and from the hearing in this court. That is the difficulty in establishing the chronology of events with any precision. Mr Campbell did not keep a diary or any other record of the gradual deterioration in Mr and Mrs Ascoughs' condition, or of his assistance to them at different times. Mr Holbech (who appeared below and in this court for the executors) very fairly told the court Mr Campbell was imprecise and diffident in his oral evidence, suggesting that he may not have done himself justice in the witness box. It may be useful, therefore, to mention a few more or less reliable landmark dates.

  10. Throughout the 1980's (when the Ascoughs were in their eighties) Mr Campbell assisted them in the way described above. In 1985 the Ascoughs both made wills under which Mr Campbell was not a beneficiary (their estates were left mainly to descendants of the two nieces, with some gifts to charity). In 1987, as the judge found, they began to make assurances to Mr Campbell about his having a home for life. Either at the end of 1991 or early in 1992 the Ascoughs were taken into residential care at a nursing home called The Beeches. Although this was termed temporary respite care it seems to have lasted for the best part of a year. While they were in respite care, and because of the County Council's statutory duty to recover all or part of the cost of care in appropriate cases, the question of selling the house arose. At that time, it seems, Mrs Ascough's mental health was beginning to deteriorate but Mr Ascough retained his intelligence (although he did on 21 October 1992 give his solicitors an enduring power of attorney). At about the end of 1992 the doctors and the Social Services decided that the Ascoughs could return home, but with support from Social Services in the form of Mrs Garrett (the regular home help) and so-called twilight visitors who made brief calls in the evening to help in putting the old couple to bed.

  11. On 15 December 1993 Mr Ascough made a codicil to his will in favour of Mr Campbell. On 22 January 1994 Mr and Mrs Ascough went back into residential care in Elton Lodge and they remained there for the rest of their lives. During 1994 Mr Griffin (who now finds it his duty to oppose Mr Campbell's claim) was engaged in correspondence with the County Council seeking to persuade the Council not to insist on an immediate sale of the house but to register a charge on it. In particular Mr Griffin wrote to the Benefits Agency a letter dated 16 January 1995 which deserves to be set out almost in full:

    The situation is that the 'Tenant' is a Mr K Campbell who has to all intents and purposes been in the position of a Son to the Ayscoughs for the past 16 years.

    We understand that he moved down to England from Scotland some 16 years ago, having lived in a Council Flat in Scotland. He lived for a short time in bed and breakfast accommodation and then moved in with the Ayscoughs, as a Tenant of the top floor of the house, paying a rent of 10.00 per week. From an early stage the Ayscoughs, who were then 80 years, demanded rent erratically but relied on Mr Campbell to provide services, such as cooking meals and shopping etc. Over the years this continued and as the Ayscoughs grew older and more feeble, Mr Campbell regarded himself as essential to their well being so that there was someone in the house to guard against emergencies. Although he continued to pay rent, Mr Ayscough was often reluctant to accept this and to a large degree treated him as a member of the family. We understand he has on several occasions indicated that he would like to adopt Mr Campbell, which Mr Campbell has, understandably, not taken seriously.

    Mr Ayscough has on more than one occasion discussed with us the possibility of selling the house to Mr Campbell at a favourable price, but we have indicated that this is not practical as the house is in the joint names and Mrs Ayscough is subject to an Order of the Court of Protection. In addition we would mention in confidence that Mr Ayscough has left his interest in the house to Mr Campbell in his Will.

    No doubt you will consider carefully the circumstances but we would repeat the request that Mr Campbell is regarded as taking the place of a relative in these circumstances, as we know that a suggestion that he should be made homeless would distress Mr Ayscough enormously.

  12. In theory Mr Campbell was until 1992 a lodger at a weekly rent of 10. The Ascoughs never put up this rent. On the contrary, after a while they never asked for it and Mr Campbell's evidence was that he would leave it on the kitchen table and sometimes it would be left there for days. Mr Campbell said that later on he generally paid for the shopping (including tobacco, chocolate and spirits) although the Ascoughs would sometimes reimburse him. He also said that when the Ascoughs were in The Beeches in 1992, Mr Campbell left a month's rent with them and it was stolen or lost. The nursing staff asked him not to give the Ascoughs money while they were in care and he did not pay rent after about the middle of 1992. Mr Campbell visited the Ascoughs regularly at the nursing home and shopped for small items for them, generally paying for the items without reimbursement. Apart from a few questions about the rent, none of this was challenged in cross-examination.

  13. The house (which had an unregistered title) belonged to Mr and Mrs Ascough as joint tenants both at law and beneficially, so that there was a right of survivorship. The joint tenancy was not severed during their joint lives (a claim that it was severed was abandoned at or before trial). In 1993 Mr Ascough consulted Mr Griffin about his wish to leave Mr Campbell an interest in the house. Mr Griffin said that this was discussed more than once and that he advised caution. By this time Mrs Ascough was suffering from senile dementia and no longer had testamentary capacity. On 15 December 1993 Mr Ascough executed a third codicil to his will leaving Mr Campbell a life interest in the house (and its contents so far as owned by Mr Ascough). This gift failed (at least as regards the house) because Mrs Ascough survived her husband and took the house by survivorship.

  14. Mr Griffin said in his witness statement that he had made attendance notes of each of his discussions with Mr Ascough, and on the occasion when the third codicil was executed, but that all the attendance notes had been mislaid. He said in his written and oral evidence that Mr Ascough clearly understood the uncertainties of the position, with Mrs Ascough having lost testamentary capacity but having a potential right of survivorship. The fact that Mr Ascough made a codicil in favour of Mr Campbell, in the face of Mr Griffin advising caution, is to my mind quite a strong confirmation of Mr Campbell's evidence of Mr Ascough's repeated assurances that he would have a home for life. So is Mr Griffin's letter to the Benefits Agency. The judge did not comment on this aspect of the matter in his judgment, probably because he was satisfied by the evidence as to the assurances. The judge decided the case against Mr Campbell, not because he was in doubt as to the assurances, but because he found that Mr Campbell did not act on them to his detriment.

  15. In September 1992, over a year before the making of the codicil and when the Ascoughs were still at The Beeches, there had been some discussion of the house being sold to Mr Campbell for about half its market value (then about 90,000). The pressure for a sale came initially from the West Sussex County Council, which was incurring significant expenditure in looking after the Ascoughs. But nothing came of this plan, which would have required the approval of the Court of Protection because of Mrs Ascough's mental incapacity. It might also have led to family difficulties. What happened was that the Social Services were persuaded to postpone action and the Ascoughs returned home, although much frailer and needing much more support. From this time on Mr Campbell was performing all the functions of a live-in carer (although with the assistance of Mrs Garrett in the mornings and short visits from twilight visitors). He assisted them with their personal needs, including incontinence, at night and whenever he was at home by day. This continued until the Ascoughs had to go into permanent residential care in January 1994.

  16. Mention must be made of one episode when Mr Campbell considered moving, although only to another house in St Botolph's Road so that he could still continue to see and help the Ascoughs. As with many of the incidents in this case, it is extremely difficult to establish any precise chronology and the judge did not make any detailed findings. The judge referred to a conflict of evidence between Mr Campbell and Mr Griffin on this point, but the judge did not resolve (or indeed fully explain) the conflict. What seems to have happened is that at some stage Mr Campbell fitted one or more mortice locks in order to improve security when he was away from the house. This led to an unfortunate misunderstanding which may have been exaggerated on both sides. One of the nieces, Mrs Strange, called at the house, without having told Mr Campbell that she was coming, and could not get in. She took the matter up with Mr Campbell through Mr Griffin. Mr Campbell was very offended at what he understood as an imputation against his good faith and he thought of moving out and buying a flat (but not, it seems, of ceasing to be a good friend of the Ascoughs). However nothing came of this either, because Mr Campbell was again threatened with redundancy and his financial uncertainty led him to take no action. Neither Mr Campbell nor counsel could assist the judge with the timing of this episode when it came up during cross-examination, but it seems clear from the correspondence (a letter dated 12 June 1995 from Mr Griffin to Mr Campbell) that it occurred in 1995, when the Ascoughs had already been in Elton Hall for over a year. It is therefore only marginally relevant to the issues in the case.

  17. In support of his claim to have maintained the house and garden Mr Campbell relied on a schedule of expenditure, annexed to his particulars of claim, totalling just under 1,700. Most of the items on the list were for the hire of tools or a lawnmower, materials for do-it-yourself repairs and decorations, and (for 1993, 1994 and 1995) premiums for household insurance. Most of the items relate to the period from 1992 to 1995. It appears from Mr Campbell's witness statement that these were mainly items for which he had vouchers of some sort. The figures for clothing bought for Mr and Mrs Ascough in October 1992 might appear to be estimates but Mr Campbell explained in cross-examination

    There was a problem in the nursing home that they asked me to buy clothes for Mrs Ascough because she did not have night-dresses or underwear. What I said to them was that I don't know what a 90 year old woman wears and I gave the nursing home 100 so that they could buy them themselves.

    Mr Campbell said in his witness statement that the scheduled items

    .... are the basic minimum sums that I have spent and did not include daily expenditures such as food, tobacco, chocolates, household goods and other items that were needed on a daily or weekly basis. I did not retain any receipts, nor did I keep a record, as I never expected that they would be needed for the purposes of litigation. Aside from doing their shopping I would buy cigarettes for Mrs Ascough and tobacco and bottles of whiskey for Mr Ascough. I would find it impossible to put a figure on the money that I expended even on a monthly basis. The home help used to collect their pension and I never asked for the money or to be reimbursed, although Mr and Mrs Ascough did on occasion insist that I accepted money.

    It is possible that the detailed schedule of part only of the expenditure had the effect of trivialising Mr Campbell's case on detriment.

  18. The judge directed himself that for Mr Campbell's claim to be made good there were three separate ingredients: that assurances were made to Mr Campbell by the Ascoughs, that Mr Campbell acted on those assurances to his detriment, and that in doing so he was relying on the assurances. The judge referred to the decision of Mr Edward Nugee QC in Re Basham [1986] 1 WLR 1498. He did not refer (although they had been cited to him) to the decisions of this court in Wayling v Jones (1993) 69 P&CR 170 and Gillett v Holt [2000] 3 WLR 815.

  19. In his judgment the judge dealt with the question of reliance (which is really an issue of causation) before he made a finding about detriment. He said,

    The motivation he claims for doing the jobs for Mr and Mrs Ascough was that he had been told he had a home for life. However, in giving his evidence he further went on to say that the reasons why he cooked meals for Mr and Mrs Ascough, undertook shopping, and cleaning and gardening, was friendship. Mr and Mrs Ascough, he said, needed help and whether or not they said anything to him about being able to live there for the rest of his life, this was a very close relationship. He said: "I was flattered by being treated by Mr Ascough as a son." It is clear to me - and I make a finding to this effect - that there was no causal connection between the acts of detriment which are referred to by Mr Campbell in his evidence and the assurances which he says were given by Mr and Mrs Ascough to him.

  20. Then after referring to Mr Campbell having had "cheap and good accommodation" and to his having undertaken various jobs "at what has to be said is almost minimal cost" (presumably a reference to the schedule of expenditure) the judge concluded,

    As I have indicated my finding in this case is that the acts which Mr Campbell undertook, and which amount to the detriment which he claims as set out in the schedule of expenditure, together with the other acts which he undertook - the cooking, the shopping, the help, the undoubted help that he gave to Mr and Mrs Ascough when they were living at the property, do not, in my judgment, amount to detriment and do not amount to detriment that was undertaken by Mr Campbell because he was relying upon the assurances which he claims to have been made by Mr and Mrs Ascough.

    My finding is that Mr Campbell quite properly - and I pay respect to him for his acts - acted out of friendship and a sense of responsibility. My finding is that in the circumstances of the relationship between him and Mr and Mrs Ascough he would have so acted in any event.

  21. That was the conclusion of the judge who saw and heard the witnesses. Whether or not Mr Campbell suffered detriment in the relevant sense is not a simple issue of primary fact. It requires a process of evaluation. Even so this court is slow to differ from the trial judge who is best placed to carry out the process of evaluation and to decide how much weight to give to nuances of the evidence.

  22. Nevertheless I feel bound to disagree with the judge on the issue of detriment. If necessary I would say that his conclusion was against the weight of the evidence. The judge (who seems to have given an ex tempore judgement after what must have been a long day in court) seems not to have been sufficiently clear as to the admittedly confused chronology of the case. It covered a long period (the Ascoughs were in their late seventies when they first met Mr Campbell, and Mrs Ascough was nearly 100 when she died) and the pattern of events changed markedly during that period as the elderly couple became increasingly frail, helpless and incontinent. In re-examination Mr Campbell made clear that the incontinence had begun before the Ascoughs went to The Beeches for respite care, and he said it was "quite a regular occurrence" after they came home from The Beeches.

  23. Another possible explanation of the judge's conclusion that there was no detriment might be that he was looking at quantifiable financial detriment, rather than simply looking for something substantial "as part of a broad enquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances (Gillett v Holt [2000] 3 WLR 815, 836, following guidance given by Slade LJ in Jones v Watkins, 26 November 1987). The judge's references to "cheap and good accommodation" and "almost minimal cost" may tend to support that view.

  24. The judge did not explain the reasons for his conclusion and so it is not possible to be sure whether he overlooked parts of the evidence, or erred in law in setting too demanding a test for detriment. Both factors may have contributed to his conclusion. But in any case I respectfully differ from it. As Mr Timothy Sisley has said in his skeleton argument, a lodger does not normally cook his landlords' evening meals, or delay going to work or go short of sleep in order to look after them, or clean up after incontinence. That is true even if the lodger is paying a low rent, or no rent. The court can take judicial notice that a live-in carer looking after a couple as frail as Mr and Mrs Ascough would expect to be paid a very substantial wage in addition to free board and lodging, and would expect to be fully reimbursed for all out-of-pocket expenditure. From some time in the late 1980's, or from 1990 at the very latest (but any particular date is bound to be arbitrary) Mr Campbell must in my judgment have been suffering and accepting detriment in his devoted care of the Ascoughs.

  25. On the issue of reliance the judge's finding was that Mr Campbell acted "out of friendship and a sense of responsibility". The judge did not refer to the judgment of Balcombe LJ in Wayling v Jones (1993) 69 P&CR 170, 173, in which Balcombe LJ (with whom Hoffmann LJ, and probably also Leggatt LJ, agreed) stated as a principle:

    Once it has been established that promises were made, and that there has been conduct by the plaintiff of such a nature that inducement may be inferred then the burden of proof shifts to the defendants to establish that he did not rely on the promises - Greasley v Cooke [1980] 1 WLR 1306; Grant v Edwards [1986] Ch 638, 657.

  26. In his witness statement Mr Campbell said that if he had not had the assurances which he had received, he would have moved out of 26 St Botolph's Road. He said much the same (with some prompting) in his oral evidence in chief, stating as his reason, "I think I want a home." This evidence seems to have involved a step in Mr Campbell's process of thought which he spelled out only in cross-examination, that in common humanity he could not have stayed on as a lodger but ignored the Ascoughs' obvious human needs:

    Q

    That is right. They needed the help, whether or not they said anything to you about you being entitled to live there for the rest of your life.

    A

    Yes

    Q

    So you would have done these things, would you not, even if they had said nothing to you about living there for the rest of your life.

    A

    Yes, I would not have walked past them, if he had been lying on the floor, and had not eaten for two days, you have to do something.

    Q

    Yes. Indeed, this was almost a family sort of relationship, was it not?

    A

    It was a very close relationship, yes.

  27. Cases of this sort ought not to be decided by meticulous analysis of every single answer made during cross-examination by an honest but diffident witness who was (to his credit) not trying to exaggerate his claim. It is more difficult to differ from the judge on the issue of reliance, since he did see and hear the witnesses and he was able to observe Mr Campbell's demeanour when he was giving the evidence which is set out above. But just as this court reversed the trial judge in Wayling v Jones, I have after anxious consideration concluded that the judge overlooked the presumption of reliance and failed to address his mind to the different phases of the long history of this relationship. From 1978 to 1982 it was a very friendly relationship of elderly landlords and lodger, with both sides very contented with the relationship. By 1990 at latest there was a much closer, family-type relationship, with assurances of a home for life being given from about 1987. By 1990 Mr Campbell was doing much more for the Ascoughs than could be ascribed to even the most friendly lodger. He had become part of the family, and there was a strong presumption that the assurances given to him (to treat him, in effect, as a member of the family with moral claims on the Ascoughs) were influencing his conduct.

  28. The fact that Mr Campbell agreed, under skilful cross-examination, that he would not in any event have ignored his elderly landlord

     ... if he had been lying on the floor, and had not eaten for two days

    is not sufficient to rebut that presumption. In my judgment the judge was wrong on the issue of reliance also. In cases of this sort it is inevitable that claimants should be asked hypothetical questions of the "what if" variety but the court is not bound to attach great importance to the answers to such hypothetical questions. As Lord Denning MR said in Greasley v Cooke [1980] 1 WLR 1306, 1311,

    No one can say what she [the claimant] would have done if Kenneth and Hedley [the two brothers who owned the property] had not made those statements.

  29. The court must of course pay close attention, and give due weight, to the oral evidence given by the witnesses who have lived through the events into which the court has to enquire. But it would do no credit to the law if an honest witness who admitted that he had mixed motives were to fail in a claim which might have succeeded if supported by less candid evidence. As Balcombe LJ said in Wayling v Jones (at p.173)

    The promises relied upon do not have to be the sole inducement for the conduct: it is sufficient if they are an inducement.

    In my judgment the assurances given by the Ascoughs were an inducement to Mr Campbell's conduct, from 1990 at latest. With respect to the judge, I consider that he erred (either in his evaluation of the evidence, or in his application of the legal presumption) in his conclusion that there was no sufficient causal connection between the assurances given by the Ascoughs and the detriment suffered by Mr Campbell.

  30. If the court concurs in this view it falls to us to exercise our discretion to decide how Mr Campbell's equity should be satisfied. The court is cautious in its approach to that issue. As was said in Gillett v Holt [2000] 3 WLR 815, 839,

    The aim is, as Sir Arthur Hobhouse said in Plimmer v Wellington Corporation (1884) 9 App.Cas. 699, 714, to "look at the circumstances in each case to decide in what way the equity can be satisfied." The court approaches this task in a cautious way, in order to achieve what Scarman LJ in Crabb v Arun District Council [1976] Ch 179, 198, called "the minimum equity to do justice to the plaintiff". The wide range of possible relief appears from Snell's Equity, 30th ed. (2000) pp.641-643.

  31. In this case the detriment which Mr Campbell suffered (and willingly accepted) was his devoted care of the Ascoughs (going far beyond that of an ordinary friendly lodger) from 1990 (at the very latest) until January 1994. He also incurred significant out-of-pocket expenses on their behalf. I do not except the period of respite care during 1992 since Mr Campbell gave them both personal and financial support during that time.

  32. Against that Mr Campbell has not paid any rent since mid-1992, and has been the sole occupant of the house (a substantial semi-detached house with three principal living rooms and four bedrooms) since January 1994. Mr Holbech (for the executors) has submitted that even if Mr Campbell has established his entitlement to an equity, it has already been satisfied by his rent-free occupation since 1992, a period of nearly 10 years. Mr Holbech relied on the decision of this court in Sledmore v Dalby (1996) 72 P&CR 196, in which (on rather unusual facts) it was held that the defendant's equity had already been satisfied by his rent-free residence for over 10 years in a house belonging to his deceased wife's parents.

  33. Sledmore v Dalby is a good illustration of the flexible nature of the court's jurisdiction. But on the facts of this case I do not consider that Mr Campbell's rent-free occupation has had the effect of extinguishing his equity. Nevertheless I see considerable objections to Mr Sisley's proposal that Mr Campbell should be granted a life interest in 26 St Botolph's Road for so long as he wishes to live there.

  34. In the first place such an order would be disproportionate: Mr Campbell has a moral (and, as I see it, a legal) claim on the property, but it is not so compelling as to demand total satisfaction, regardless of the effect on other persons with claims on the Ascoughs' estate. In the second place it would be administratively inconvenient. It would produce a situation of a trust of land (under the Trusts of Land and Appointments of Trustees Act 1996) which would probably involve disproportionate legal expenses (including trustees' remuneration) and might well lead to further disputes (especially in relation to Mr Campbell's keeping the property in good repair and condition). In exercising its discretion the court can have regard to the need for a "clean break": Pascoe v Turner [1979] 1 WLR 431, 438-9.

  35. Taking these and all other relevant circumstances into account, I have come to the conclusion that it would not be right to confer on Mr Campbell (who began as a lodger with one out of four bedrooms) a right in respect of the whole house which might hold up the administration of the estate for a whole generation and might also have the effect of eliminating the other beneficiaries' interests because of mounting interest on the County Council charge. That charge (with accrued interest) now amounts to about 64,000. The present value of the house, unencumbered and with vacant possession, is about 160,000.

  36. The court has a very wide discretion in satisfying an equity arising under the doctrine of proprietary estoppel. That discretion includes power to award a fixed sum charged on the property. I would declare that Mr Campbell is entitled to the sum of 35,000 charged on the property, but that he must give up possession of the property to enable it to be sold by Mrs Ascough's executors, and that interest on the sum of 35,000 should not start to run until 56 days after Mr Campbell has given vacant possession in order to enable the house to be sold. The sum payable to Mr Campbell will not by itself enable him to buy a freehold house in Worthing, but it will assist him with rehousing himself.

  37. In these circumstances it is almost certainly unnecessary to decide the issue of priority as between Mr Campbell and the County Council. But in my view Mr Campbell's claim has priority, being based on his actual occupation and on his equity having arisen before the Ascoughs first went to The Beeches: see Re Sharpe [1980] 1 WLR 219.

  38. I would therefore grant permission to appeal, allow the appeal and make an order on the lines indicated above.

    Lord Justice Thorpe

  39. I have had the advantage of reading in draft my Lord's very clear judgment. I am in complete agreement with him on all issues as well as his conclusion.

    The President

  40. I also agree.


Cases

Re Basham [1986] 1 WLR 1498; Wayling v Jones (1993) 69 P&CR 170; Gillett v Holt [2000] 3 WLR 815; Jones v Watkins, 26 November 1987; Greasley v Cooke [1980] 1 WLR 1306; Sledmore v Dalby (1996) 72 P&CR 196; Pascoe v Turner [1979] 1 WLR 431; Re Sharpe [1980] 1 WLR 219

Representations

Mr T Sisley for the appellant (instructed by Marsh Ferriman & Cheale)
Mr C Holbech for the first to third respondents (instructed by Bennett Griffin and Partners)
Mr W Webster for the fourth respondent (instructed by The Solicitor, West Sussex County Council)


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