Sunday, November 20, 2022

The Taciturn and Undemonstrative Men of Somerset


A mere promise to leave property to someone in the will is not enforceable. But, like so much in law, there are exceptions. One exception that sometimes arises occurs when the person who is promised property reasonably relies on the promise, making sacrifices as a result. The type of claim I am writing about has the rather inscrutable label “proprietary estoppel.” I have written about it before, including a Supreme Court of Canada case, Cowper-Smith v.Morgan, 2017 SCC 61.

The principle, as set out by Chief Justice McLachlin in Cowper-Smith, is as follows:

[15] An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or 2017 SCC 61 (CanLII) benefit over property; (2) the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word [citations omitted].

My favourite case is an English case predating Cowper-Smith. The name of the case is Thorner v. Majors, [2009] UKHL 18, but I refer to it as the “Taciturn and Undemonstrative Men of Somerset” case.  

Perhaps what’s most interesting about Thorner is how far the trial judge and ultimately the House of Lords were prepared to go to find that the farm owner made a representation that the claimant would receive his farm.

The plaintiff, David Thorner was a farmer who did substantial work for almost 30 years on his father’s cousin’s farm. He did so without pay. The farm was in Somerset, a seemingly irrelevant fact.

The cousin, Peter Thorner, did not ever expressly say he would leave David Thorner the farm.  There was, rather, some indirect statements and conduct that led the plaintiff to believe he would inherit the farm.  In 1990, for example, Peter handed over an insurance policy bonus notice to David, and said “that’s for my death duties.” There were other oblique statements implying that Peter would leave David the farm.

Peter did not leave David the farm, but died without a will.

The trial judge found that Peter was “a man of few words.” He also “was not given to direct talking. The simplest example…is that when Peter said ‘What are you doing tomorrow?’ he generally meant ‘Would you come and help me tomorrow.’”

In awarding to David the land, buildings live stock and other farm assets, the judge found that David had established the elements of proprietary estoppel. As quoted by Lord Walker of Gestingthorpe at paragraph  47, the judge  wrote:

With regard to all that David did at Steart Farm, and in looking after Peter, for the further fifteen or so years up to his death, there is again no need for me here to repeat the various relevant findings I have already made earlier in my judgment. David’s contribution was not only unremunerated, but also far in excess of that made by any of the others who helped at Steart Farm, whose roles I have reviewed in paras 74-80 above. He was encouraged to continue with his considerable and unremunerated commitment to this work by what was said and done by Peter on the various occasions I have already identified. There is a clear and sufficient link between that encouragement from Peter and what David did for him and on his farm.

The Court of Appeal reversed primarily on the grounds that Peter’s assurances were insufficiently clear and unambiguous to be reasonably relied upon. They were consistent with Peter expressing a current intention to leave David the farm, rather than as an assurance that he would leave the farm.

In the House of Lords, there are five separate judgments restoring the trial judge’s decision. The nub of the reasons in the House of Lords is that the trial judge considered the circumstances of Peter’s words and conduct, and the decision is entitled to deference. The trial judge considered Peter’s words and conduct in the context of the relationship between him and David and also in the context of the community in which they lived. Lord Walker of Gestingthorpe wrote:

59. In this case the context, or surrounding circumstances, must be regarded as quite unusual. The deputy judge heard a lot of evidence about two countrymen leading lives that it may be difficult for many city-dwellers to imagine—taciturn and undemonstrative men committed to a life of hard and unrelenting physical work, by day and sometimes by night, largely unrelieved by recreation or female company. The deputy judge seems to have listened carefully to this evidence and to have been sensitive to the unusual circumstances of the case.

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