Davies v Davies

At the permission stage, a lengthy delay may still be excused where an extension is just and proportionate in exceptional circumstances. Relevant considerations include the applicant’s lack of sophistication, age, failure to appreciate the gravity of enforcement consequences, and the existence of an arguable issue with potentially serious consequences. An order charging land materially beyond the property claimed, and beyond the relief described in the judgment, may warrant appellate scrutiny. Enforcement may also be unsound where it rests on a monetary judgment that was never actually made. A challenge that merely reargues factual findings has no real prospect of success. Assertions of unfair trial, bias or judicial pecuniary interest require evidence.

The claimant succeeded before the Combined Court sitting at Worcester on a proprietary estoppel claim concerning a barn and approximately 1.3 acres. The judge quantified the equity at £68,000, but the resulting order charged the defendant’s interest in the whole of Mosewick Farm and led to subsequent charging, sale and possession proceedings.

The defendant filed her appellant’s notice approximately 20 months late. She sought permission to appeal on grounds including the scope of the charge, the proprietary estoppel findings, procedural unfairness, bias and judicial pecuniary interest. The central issues were whether time should be extended and whether there was an arguable challenge to the charging order and related enforcement steps.

1. Arguable grounds. The Court of Appeal identified two arguable issues. First, the order appeared to charge the whole of Mosewick Farm, although the claim and the judge’s reasons concerned only the barn and approximately 1.3 acres. The discrepancy could have materially enlarged the claimant’s security beyond the relief sought. Secondly, the order did not actually require payment of £68,000, although the judge appeared to have intended that it should. Later charging, sale and possession orders might therefore have been based on an unsound judgment debt.
2. Extension of time. The time taken for legal research was not a valid explanation for a delay of approximately 20 months. Nevertheless, the defendant and her grandson were unsophisticated litigants in person, the defendant was 90, and she appeared not to have appreciated the seriousness of the orders and the risk to the farm. In those very exceptional circumstances, extending time was just and proportionate.
3. Proprietary estoppel and other grounds. The challenge to the merits of the estoppel finding merely reargued facts which the trial judge had determined. The findings of representation, reliance and actual detriment, including sale of another property, moving to the property and conversion work, gave that ground no real prospect of success. The Court also rejected the complaints concerning withheld evidence, trial fairness, alleged bias and alleged pecuniary interest arising from the judge’s acquaintance with a local surveyor. A judge’s expression of views during argument did not itself make a trial unfair.
4. Disposal. Time was extended and permission to appeal was granted only in relation to paragraph 6 of the 2013 order, concerning the charge. The defendant could argue that the earlier paragraphs were consequentially inappropriate if paragraph 6 was wrongly drawn, but could not reopen the substantive estoppel decision. Enforcement, including the charging order, order for sale and warrants for possession, was stayed pending determination of the appeal. Revised grounds and a skeleton argument were ordered within 35 days, and the appeal was directed to be heard by three judges.

• Court of Appeal (Civil Division): Extended time and granted permission to appeal only on the scope and legal effect of the charge over Mosewick Farm. Enforcement was stayed pending the substantive appeal.
• Combined Court sitting at Worcester: Found the elements of proprietary estoppel established, quantified the claimant’s equity at £68,000, and made an order charging the defendant’s interest in Mosewick Farm.