Crick v Crick & Ors

On an application for permission to appeal, evidence that was available before trial cannot ordinarily be introduced to challenge the trial judge’s findings. A beneficiary seeking an equitable increase in a share of trust property for improvements may have the benefit of rent-free occupation taken into account. Under the Trusts of Land and Appointment of Trustees Act 1996, the court may order a sale and direct its conduct without appointing a new trustee. All existing trustees remain bound by the order. The statutory requirement concerning payment of sale proceeds to trustees does not prevent a solicitor acting as the trustees’ agent to convey, and a fee for that work does not itself create the relevant fiduciary conflict.

The claimant sought permission to appeal from an order made by His Honour Judge Collender QC in the County Court concerning the sale and distribution of an estate inherited by four siblings. The parties agreed that the property should be sold, but disputed whether the claimant’s alleged expenditure on improvements justified increasing his share above one quarter. The claimant also challenged the judge’s reliance on his long period of rent-free occupation and the order regulating the sale through his brother’s solicitor. The issues included the effect of the Trusts of Land and Appointment of Trustees Act 1996, the Law of Property Act 1925, and the Trustee Act 1925.

Permission to appeal refused. Lord Justice Lewison held that none of the proposed grounds had a real prospect of success.

1. The claimant sought to rely on further material to show that his expenditure on improvements exceeded the amount found by the judge. An appellant cannot generally adduce additional evidence unless stringent criteria are satisfied. The first criterion is that the evidence could not reasonably have been available at trial. The material pre-dated the trial and was in the claimant’s possession, so it could not be used to challenge the factual finding on appeal.

2. The judge was entitled to begin with equal shares under sections 46 to 47 of the Administration of Estates Act 1925. The estate’s cash had partly financed the improvements, meaning that the siblings had effectively contributed equally. The claimant had also occupied the property for nearly a decade without paying rent. In rejecting his equitable claim for an increased share, the judge was entitled to take that benefit into account. The claimant’s reliance on section 12 of the Trusts of Land and Appointment of Trustees Act 1996 did not prevent that approach. Section 13 addresses competing rights of occupation, and section 13(6) permits conditions, including payments, where an entitlement has been excluded or restricted.

3. The sale order was within the court’s powers. Section 14 of the Trusts of Land and Appointment of Trustees Act 1996 permits any order relating to the exercise of the trustees’ functions, and section 6 gives trustees the powers of an absolute owner, including power to sell. Section 27(2) of the Law of Property Act 1925 was not contravened because no new trustee had been appointed: all trustees remained trustees, while the claimant’s solicitor was given conduct of the sale as their agent.

4. Under section 47 of the Trustee Act 1925, the trustees were bound by the sale order, which could override a Land Registry restriction. The court could appoint a person to convey if a trustee refused to concur. The solicitor’s receipt of a conveyancing fee did not create the type of fiduciary conflict addressed by the Solicitor’s Conduct Rules, since he acted under the court’s order. The factual findings and costs order disclosed no real basis for appellate intervention.

1. Court of Appeal (Civil Division): On 7 May 2015, Lord Justice Lewison refused the claimant’s application for permission to appeal.
2. County Court, Central London Civil Justice Centre: His Honour Judge Collender QC ordered the inherited property to be sold, maintained equal shares subject to the claimed equitable adjustment, and made an order concerning the conduct of the sale and costs.