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Petitioner: THERESA HENRY and anothers VS Respondent: CALIXTUS HENRY
Court Name: Supreme Court of United Kingdom Judge(s): Lord Mance, Lord Clarke, Lord Hope, Lord Brown, Sir Jonathan Parker Title: THERESA HENRY and anothers vs CALIXTUS HENRY Case No.: Not Date of Judgment:2010-02-17 Reported As: 2012 SCMR 1074 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SIR JONATHAN PARKER---1. This is an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court, St. Lucia. At issue in the appeal is the ownership of an undivided half share in a plot of agricultural land some 3.5 hectares in extent and situate at Jalousie, in the Quarter of Soufriere, St. Lucia. The undivided half share in issue is that of Theresa Henry, the first appellant. The other undivided half share is vested in Marie Ann Mitchel, the second appellant. Marie Ann Mitchel's entitlement to her half share is not in dispute. 2. In the action, the respondent Calisto's Henry claimed to be entitled to Theresa Henry's half share in the plot on three alternative grounds. First, he claimed that a deed of sale dated 8th August, 1999 whereby Theresa Henry purchased her half share from Geraldine Pierre was void on the ground that Geraldine Pierre, who was then aged 95 and who died some two months later, lacked capacity. Secondly, he claimed title by adverse possession. Thirdly, he raised a claim of proprietary estoppel. 3. At trial, Cottles J dismissed all three claims. He rejected the challenge to the deed of sale, and on the adverse possession claim he found that Calisto's Henry had been in possession of the plot with Geraldine Pierre's consent. As to the claim of proprietary estoppel, the judge found that Geraldine Pierre had promised Calisto's Henry that she would leave her share in the plot to him on her death if he cared for her until her death and cultivated the plot. However, the judge held that notwithstanding that Calisto's Henry had fulfilled those conditions, and that he had been induced to do so by Geraldine Pierre's promises, he had not thereby acted to his detriment; and that for that reason the proprietary estoppel claim failed.
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4. The judge went on to give a second reason for dismissing the proprietary estoppel claim-a reason which he regarded as 'more compelling'-namely that no promises had been made by Theresa Henry; that she was a purchaser for value; and that she had been a registered proprietor since 1999. He held that in those circumstances there were no grounds for disturbing her title to the half share. 5. Calisto's Henry appealed to the Court of Appeal on the issue of proprietary estoppel alone. On that issue, the Court of Appeal held that the judge had misdirected himself in his approach to the question of detriment. It went on to find, reversing the finding of the judge, that in reliance on Geraldine Pierre's promises Calisto's Henry had suffered detriment, and that accordingly an equity had arisen in his favor in respect of Theresa Henry's half share. As to the judge's second reason for dismissing the proprietary estoppel claim, the Court of Appeal held that Calisto's Henry's equity was binding on Theresa Henry since it was an 'overriding interest' within the meaning of section 28(g) of the Land Registration Act (St. Lucia) (Cap 5.01 of the Laws of St. Lucia). 6. As to the extent of Calisto's Henry's equity, the Court of Appeal concluded that once the equity had been established there was no power in the court to consider questions of proportionality and that it followed that Calisto's Henry was entitled to the full half share. The Court of Appeal accordingly made a declaration to that effect. Theresa Henry and Marie Ann Mitchel now appeal. 7. Thus the issues before the Board on this appeal are (1) whether (as the Court of Appeal held) the judge misdirected himself in his approach to the question of detriment; (2) whether the Court of Appeal was right to substitute for the judge's finding that no detriment had been suffered a finding in the opposite sense; (3) whether the Court of Appeal was right to hold that under the doctrine of proprietary estoppel, an equity has arisen in Calisto's Henry's favor in respect of Theresa Henry's half share; and (4) if so, whether the Court of Appeal's decision that the equity should be satisfied by declaring Calisto's Henry to be the owner of the full half share should be upheld, or whether the equity should be satisfied in some other (and if so what) way. 8. The salient background facts are as follows. 9. The plot is situated in a rural part of St. Lucia. It is on a hillside, with a view of the sea. Although no agreement has been reached between the parties as to its current market value, it appears that it may have some development potential. 10. The plot has been in the ownership of Geraldine Pierre's family for many years. Following the death of her father, it devolved upon Geraldine Pierre and her sister. Eternize Prospered in equal undivided shares. Eternize Prospered died some time ago and Marie Ann Mitchel ha; succeeded to her share. 11. At some time before Calisto's Henry was born (he is now about 50 years old) Geraldine Pierre allowed his grandmother, Gladys Henry, to build a house on the plot and to live in it Gladys Henry was a relative of Geraldine Pierre. It was Calisto's Henry's evidence at trial that he was born in that house; that he lived there with his grandmother until she died some 30 years ago; and that he has continued to live there ever since. In about 1981 he "was joined by Miss Gabriella William, and they have since cohabited in the; house built by his grandmother. He has four children by Miss William, all of whom are now in their twenties. 12. Calisto's Henry testified that Geraldine Pierre used to visit the plot on a daily basis until, some five years before her death, she became too old and infirm to do so. As he put it (see record of proceedings, p.61): She was coming up and down every day.' His evidence was that he used to call her 'Mama', and that she treated him like a son. 13. On 5th December, 1998 Geraldine Pierre made a will appointing Calisto's Henry her executor and leaving her half share in the plot to him. 14. Theresa Henry and Marie Ann Mitchel are relatives of Geraldine Pierre. Since June 1971. Theresa Henry has lived in St. Croix, in the United States Virgin Islands. According to her evidence at trial, she
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visited St. Lucia in January 1999 at Geraldine Pierre's request and during that visit Geraldine Pierre intimated that she wished to sell her half share in the plot to her. 15. On 21st January, 1999 Geraldine Pierre made a further will in which she left her half share in the plot to Theresa Henry and two other family members. 16. By the deed of sale dated 8th August, 1999 Geraldine Pierre sold her half share in the plot to Theresa Henry at a price of $EC 26,000. Theresa Henry testified that the price was paid in cash. The judge made no express finding that the price was paid, but there is an implicit finding to that effect in his description of Theresa Henry as a 'purchaser for value'. Equally, although there was some suggestion in the evidence that $EC 26,000 may have been an, undervalue (in her witness statement Theresa Henry says that Geraldine Pierre had told her that she would give her a 'good price'), no finding to that effect was made by the judge. 17. On 8th September, 1999 Theresa Henry was registered as owner of an undivided half share in the plot. 18. On 14th October, 1999 Geraldine Pierre died, aged 95. Some five days later, Theresa Henry gave Calisto's Henry notice to quit the plot. On 19th April, 2001 Theresa Henry and Marie Ann Mitchel were registered as proprietors of the plot. 19. On 31st January, 2005 Mr. Colin Foster, Calisto's Henry's counsel, wrote to Marie Ann Mitchel on his behalf claiming an interest in the plot and threatening proceedings to stop the construction of a road on the plot--On 24th April, 2007 the present action was commenced against Theresa Henry and Marie Ann Mitchel. 20. We now turn to the evidence directly relevant to the proprietary estoppel claim. 21. In his witness statement, the truth of which he confirmed in evidence in chief, Calisto's Henry describes himself as 'a baker and a farmer by profession' In paras 5-7 of that statement, he says this:- (5) Mama always ... Informed me that her father had passed the land [i,e, the plot] to her and that she must pass it to the next generation that worked the land. Mama stated many times to me and Pauline [Pauline Edwards, another family member] that she would leave the land for those that worked the land and for those that cared for her in her home country [i,e, St. Lucia] ... (6) Mama gave everyone the opportunity to possess land on the mountain but only if they would work the land and cared for her in her own country as she did not want to leave St. Lucia to live abroad or to live in St. Croix. Many years ago Pauline's husband Barrington James was invited to work on the land and indeed he did so for a short time. Barrington found the work on the land hard and complained that only a little money could be made off the land and in time Barrington and Pauline and their children relocated to St. Croix where they continue to live out their lives ... (7) ... At one time Pauline tried to get Mama to move to St. Croix with her, but Mama told me that she did not want to go and that it made no sense to go to another country. Mama always wanted to live her life in her own country and to die in her own home and Mama made me promise to her that I would help her achieve this. Mama also made a promise to me that because I cared for her and because I was the only one who lived on and cultivated the land that I would be given her share in the land on her death. Mama also made it abundantly clear to everyone that if no other member of the family worked the land that all of her land would be given to me. Time passed and no other family members occupied the land or returned from St. Croix to live on the land and no other person but myself worked the land and it was from this time on that Mama kept on repeating and saying to me that the land would belong to me if I cared for her and if I cultivated the land.' 22. Under cross-examination by Mr. Alfred Alice, counsel then appearing for Theresa Henry and Marie Ann Mitchel, Calisto's Henry stood by his witness statement. He told the court that from the age of about 14 or 15 he had cultivated the plot; as he put it (record of proceedings, p.75): 'I was working like a man on the land.' He also from time to time helped his mother in a baking business
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(hence his description of himself in his witness statement as 'a baker'). He said that the plot provided food not only for him and his family but also for Geraldine Pierre; that he was always taking food to Geraldine Pierre; and that if there was any produce left over, he would sell it. He went on to say that from his youth Geraldine Pierre had always promised to leave him her half share in the plot on her death, provided that he lived on the plot and cultivated it, and provided that he took care of her until she died. He maintained that, with the help of Gabriella William, he had done that. 23. Gabriella William gave evidence corroborating that of Calisto's Henry. 24. Theresa Henry's evidence was to the effect that Geraldine Pierre had explained to her that she (Geraldine Pierre) had merely given Calixtus Henry permission to live on the plot during her lifetime, and that on her death he would have no further rights in respect of the plot. ' In Para 4 of his judgment, Cottles J summarized the proprietary estoppel claim as follows:-- "In his witness statement the claimant swears that during her lifetime Geraldine Pierre had promised him that her share of the land would be his if he cared for her until her death and cultivated the land and taken care(sic) of Geraldine Pierre until her death in 1999 at the age of 95 ... Because he has relied on her promise and acted thereon to his detriment, the claimant avers, he has thereby acquired an interest in [the plot]." 26. Turning to the facts in relation to the proprietary estoppel claim, Cottles J said this (in para 7 of his judgment):- "The witnesses were all cross-examined on their witness statements. Having seen and heard them, I found the following facts: (1) The claimant has been living on the lands continuously for more than 30 years. (2) Geraldine Pierre promised to leave the lands to the claimant on her death. (3) The claimant relied on that promise. (4) Geraldine [Pierre] sold her interest in the land to the first defendant.' 27. In pares 8-10 of his judgment, the judge dismissed Calisto's Henry's challenge to the deed of sale and his claim based on adverse possession. In paras 11-13 of his judgment Cottles J addressed the proprietary estoppel claim, as follows:-- "Mr. Foster for the claimant placed greatest reliance on the doctrine of proprietary estoppel. As noted above, the evidence in this case establishes that the claimant had been induced to act as he did by the promises of the deceased. He relied on those promises. 12. Unfortunately, I do not find that I can rule in favour of the claimant. There are two reasons. Firstly, the claimant cannot say that he has acted to his detriment. He has for decades resided rent free on land which belonged (in part) to the deceased. He testified that this has been the source of his livelihood in large measure. He has reaped the produce of the land. He was able to sell any surplus and retain all proceeds of such sales. I find that far from having suffered detriment because of his reliance on the promises of the deceased, the claimant positively benefited. 13. But the second, more compelling reason is that the first defendant is a purchaser for value of the lands. There is no suggestion that the first defendant made any promises to the claimant. By her purchase she has acquired the legal title to the property. She has been registered proprietor since 1999. I do not find that there are any grounds upon which this court should disturb that legal title.' ' The judge accordingly dismissed the action. 28. It is to be noted that although (according to the transcript) in the course of closing submissions counsel referred the judge to section 28 of the Land Registration Act (St. Lucia), the judge makes no reference to that section in para 13 of his judgment. 29. In the Court of Appeal, Mr. Foster concentrated his argument on Cottles J's finding that in relying on Geraldine Pierre's promises Calisto's Henry had suffered no detriment. He submitted (among other things) that the judge had failed to take into account the detrimental effects that would be
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suffered by Calisto's Henry should those promises not be fulfilled. Mr. Alcide submitted that the judge's finding that Calisto's Henry had suffered no detriment should be upheld. 30. The leading judgment in the Court of Appeal was delivered by Gordon JA, with whom the other two members of the court (Barrow JA and Hariprashad-Charles JA) agreed. 31. In para 9 of his judgment, ' Gordon JA rejected Mr. Foster's submission that regard should be had to the detrimental effects that would be suffered by Calixtus Henry should Geraldine Pierre's promises not be fulfilled. Gordon JA concluded that such an argument was without merit and should be disposed of peremptorily. 32. No,ting that counsel had not referred the Court of Appeal to authorities on proprietary estoppel, Gordon JA went on to quote a lengthy extract from the judgment of Barrow JA in Howard v. Munroe (St. Vincent and the Grenadines Civil Appeal No,.4 of 2006, unreported), in which Barrow JA referred to a number of well-known authorities [1965] 1 All ER 446, [1965]2 QB 29, Pascoe v. Turner [1979] 2 All ER 945, [1979] 1 WLR 431 and Greasley v. Cooke [1980] 3 All ER 710, [1980] 1 WLR 1306. 33. Gordon JA continued as follows (in paras 11 and 12 of his judgment):-- "With the benefit of the extant jurisprudence it is clear that the trial judge misled himself into attempting to ascribe a dollar value to the detriment, or to compare the advantage with the detriment. One does not buy the equity. In consonance with the finding of the trial judge, I find that Geraldine Pierre the appellant did promise to leave the Land to the appellant on her death, but, contrary to the finding of the trial judge, I find that the appellant did suffer a detriment in reliance on that promise. Geraldine Pierre made it clear that the promise of the land was conditional on the continued working of the land. There 'is no doubt that the appellant continued, not only to work the land, but to look after Geraldine Pierre. It was his evidence that he always took food for Ms. Pierre, 12. Once the equity is established, and I find that it has been, the next exercise is to determine its extent. As I have stated above, there is no power in the court to say that the promise (and the resulting benefit) is disproportionate to the detriment. In the circumstances I find that the appellant has established proprietary estoppel.' 34. Gordon JA then turned to the second, 'more compelling', reason which the judge gave for dismissing the proprietary estoppel claim. In para 13 of his judgment he referred to section 28 of the Land Registration Act (St. Lucia), which, provides as follows (so far as material):- 28. Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may subsist and affect the same, without their being noted on the register ... (g) the rights of a person in actual occupation of land or in receipt of the income thereof save where inquiry is made of such person and the rights are not disclosed.' 35. Gordon JA continued (in para 14 of his judgment):- ' Implicit in the witness statement of the first respondent [Theresa Henry] is an acknowledgment that she knew that the appellant [Calisto's Henry] occupied the land. There is no evidence that any inquiry was made of the appellant as to the quality in which he occupied the land. She may have come to certain conclusions on her own. But such conclusions do not bind the court. Having found that the appellant has established a proprietary estoppel combined with the finding that the appellant has an overriding interest in the land the order of the court ineluctably follows that: (a) the appeal is allowed and the appellant is declared the owner of an undivided half interest in [the plot] ...' 36. Before the Board, there was no issue between Miss Miriam Stacey (appearing for Theresa Henry and Marie Ann Mitchel in place of Mr. Alcide) and Mr. Foster as to the relevant principles of law relating to proprietary estoppel or as to the general approach which the court should adopt in applying those principles. Rather, the issue between them is as to how the relevant principles should be applied to the facts of the instant case.
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37. In Gillett v. Holt [2000] 2 All ER 289, [2001] Ch. 210 Lord Walker of Gestingthorpe (Robert Walker LJ, as he then was) discussed the nature of the doctrine of proprietary estoppel and the general principles underlying that doctrine. In the course of his judgment in that case Lord Walker said this ([2000] 2 All ER 289 at 301, [2001] Ch.210 at 225): ... Although the judgment is, for convenience, divided into several sections with headings which give a rough indication of the subject matter, it is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a "mutual understanding" may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.' 38. Later in his judgment, under the heading 'Detriment', Lord Walker said this ([2000] 2 All ER 289 at 307-308, [2001] Ch 210 at 232):-- ' `Both sides agree that the element of detriment is an essential ingredient of proprietary estoppel. There is one passage in the judgment of Lord Denning MR in Grassley v. Cooke ... Which suggests that any action in reliance on an assurance is sufficient, whether or not the action is detrimental. In Watts v. Storey [(1983) 134 NLJ 631, [1983] CA Transcript 319] Dunn. LJ (who was a party to the decision in Greasley v. Cooke) explained Lord Denning MR's observations as follows:-- , "No,r, if that passage from Lord Denning MR's judgment is read as a whole, was he stating any new proposition of law. As the judge said, it matters not whether one talks in terms of detriment or whether one talks in terms of it being unjust or inequitable for the party giving the assurance to go back on it. It is difficult to envisage circumstances in which it would be inequitable for the party giving an assurance alleged to give rise to a proprietary estoppel, i,e, an estoppel concerned with the positive acquisition of rights and interests in the land of another, unless the person to whom the assurance was given had suffered some prejudice or detriment." ' The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The 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. ... Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded-that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved.' 39. On the facts of Gillett v. Holt, the detriment to the claimant lay in the fact that in reliance on the defendant's assurance he had deprived himself of the opportunity to better himself in other ways (see [2000] 2 All ER 289 at 310, [2001] Ch 210 at 235). As to the satisfaction of the claimant's equity, Lord Walker cited a passage from the judgment of Sir Arthur Hothouse in Plimmer v. City of Wellington Corp (1884) 9 App Gas 699 at 714, [1881-5] All ER Rep Ext 1320 at 1325, where Sir Arthur Hothouse described the aim of the court in satisfying an equity arising from a, proprietary estoppel as being to 'look at the circumstances in each case to decide in what way the equity can be satisfied'. ##TE ## 40. In Jennings v. Rice [2002] EWCA Civ 159, [2003] 1 FCR 501, [2d03] 1 P & CR 100, Lord Walker (Robert Walker LJ, as he then was) stressed once again the need to assess the various elements of
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proprietary estoppel in the context of a broad inquiry as to unconscionability. In para [44] of his judgment he said this:-- "The need to search for the right principles cannot be avoided. But it is unlikely to be a short or simple search, because ... Proprietary estoppel can apply in a wide variety of factual situations, and any summary formula is likely to prove to be an over-simplification. The cases show a wide range of variation in both of the main elements, that is the quality of the assurances which give rise to the claimant's expectations and the extent of the claimant's detrimental reliance on the assurances. The doctrine applies only if these elements, in combination, make it unconscionable for the person giving the assurances (whom I will call the benefactor, although that may not always be an appropriate label) to go back on them.' 41. In Yeoman's Row Management Ltd. v. Cobbe [2008] UKHL 55, [2008] 4 All ER 713, [2008] 1 WLR 1752 Lord Walker said this (at [92]):-- [Counsel for the first defendant property company] devoted a separate section of his printed case to arguing that even if the elements for an estoppel were in other respects present, it would not in any event be unconscionable for [the third defendant] to insist .On her legal rights. That argument raises the question whether "unconscionability" is a separate element in making out a case of estoppel, or whether to regard it as a separate element would be what Professor Peter Birks once called "a fifth wheel on the coach" ... But Birks was there criticizing the use of "unconscionable" to describe a state of mind ... Here it is being used (as in my opinion it should always be used) as an objective value judgment on behavior (regardless of the state of mind of the individual in question). As suck it does in my opinion play a very important part in the…
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