Morris v Morris & Ors

Where an appellate order sets aside a lower-court judgment only in relation to one of several defendants, the other defendants remain bound by the lower order unless the order is corrected or separately appealed. A plain implication that they should receive the benefit of the appellate decision does not alter the perfected order. A further appeal may therefore be required to dismiss the claim against them. Costs remain a matter of discretion, taking account of the parties’ conduct and the practical benefit sought.

The claimant brought proceedings concerning her alleged beneficial interest in Ty Canol Farm against her former husband, the executors of his mother’s estate, the family farming partnership, and two other defendants. Her claim, based on constructive trust and proprietary estoppel, succeeded in the county court, which declared that the first defendant held the property on trust for her and that she had a 25 per cent beneficial interest.

An earlier Court of Appeal appeal was allowed only in respect of the first defendant acting as executor. The perfected order set aside the county-court judgment and dismissed the action only against that defendant. The remaining defendants consequently brought the present appeal to obtain equivalent relief and to address the inconsistent costs position.

1. Appeal allowed. The action was dismissed against the first, third, fourth and fifth defendants.
2. The earlier Court of Appeal order had been made only in respect of Edward Morris in his capacity as executor, the second defendant. Although its effect appeared to imply that the other defendants should also benefit, the perfected order named only the executor as appellant and set aside the county-court order only in relation to him. The county-court costs order against the remaining defendants therefore remained in existence.
3. The attempt to rectify the county-court order under the slip rule had failed. The remaining defendants consequently had to bring a further appeal. The claimant did not resist the appeal, and there was no answer to the relief sought.
4. As to costs, there was to be no order between the claimant and the present appellants in respect of the original trial. There was also to be no order for the costs of the present appeal, because the need for the second appeal resulted from the appellants’ own responsibility for the procedural hiatus and they accepted that reversing the original costs order offered no realistic monetary advantage.

Pitchford LJ gave the judgment. Elias LJ and Carnwath LJ agreed.

• Court of Appeal (Civil Division), 24 November 2010: allowed the further appeal, dismissed the action against the first, third, fourth and fifth defendants, and made no order as to costs.
• Court of Appeal (Civil Division), 22 February 2008: allowed Edward Morris’s appeal in his capacity as executor, set aside the county-court order and dismissed the action against him in that capacity.
• Cardiff County Court, 11 June 2007: declared that Ty Canol Farm was held on trust for the claimant and that she had a 25 per cent beneficial interest.