Yaxley v Gotts & Anor, Court of Appeal - Civil Division, June 24, 1999, [1999] 2 EGLR 181,[1999] 2 FLR 941,(2000) 32 HLR 547,[1999] EWCA Civ 3006,[2000] Ch 162,[1999] 3 WLR 1217,[1999] Fam Law 700,(2000) 79 P & CR 91,[2000] 1 All ER 711

Extract

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Yaxley v Gotts & Anor, Court of Appeal - Civil Division, June 24, 1999, [1999] 2 EGLR 181,[1999] 2 FLR 941,(2000) 32 HLR 547,[1999] EWCA Civ 3006,[2000] Ch 162,[1999] 3 WLR 1217,[1999] Fam Law 700,(2000) 79 P & CR 91,[2000] 1 All ER 711

CCRTF 1998/0357/2

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM NORWICH COUNTY COURT

(HIS HONOUR JUDGE DOWNES)

Royal Courts of Justice

Strand

London WC2

Thursday, 24th June 1999

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE ROBERT WALKER

LORD JUSTICE CLARKE

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YAXLEY

CLAIMANT/RESPONDENT

- v -

GOTTS & ANR

DEFENDANT/APPELLANTS

- - - - - -

(Transcript of the handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

- - - - - -

MR G LAURENCE QC with MS L DAVIES (Instructed by Messrs Bircham & Co, London SW1H 0DY) appeared on behalf of the Appellant

MR A ALLSTON [MR D HAPPE - for judgment] (Instructed by Messrs Hansell Stevenson, Norfolk NR1 4DS) appeared on behalf of the Respondent

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J U D G M E N TThursday, 24th June 1999

Lord Justice Robert Walker:

Introductory

This appeal raises a point of some general interest on section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 ("the 1989 Act"). Section 2 of the 1989 Act, so far as now material, provides as follows,

"(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are being exchanged, in each.

(5) This section does not apply in relation to -

(a) a contract to grant such a lease as is mentioned in section 54(2) of the Law of Property Act 1925 (short leases);

(b) a contract made in the course of a public auction; or

(c) a contract regulated under the Financial Services Act 1986; and nothing in this section affects the creation or operation of resulting, implied or constructive trusts.

(8) Section 40 of the Law of Property Act 1925 (which is superseded by this section) shall cease to have affect."

It is a remarkable feature of the case that there was not so much as a passing reference to section 2 of the 1989 Act either in the pleadings, or in counsel's submissions, or in the judgment of His Honour Judge Downes (given in the Norwich County Court on 1 September 1997) from which Mr Alan Gotts and Mr Brownie Gotts, the defendants below, appeal to this court. The judgment below was largely concerned with the assessment of the oral evidence which the Judge had heard (although it also contained an important passage, at the end of the judgment, concerned with proprietary estoppel). The Judge accepted the evidence of the claimant, Mr Keith Yaxley, and rejected much of the evidence of the appellants. In this court the appellants do not challenge the Judge's findings of fact but do raise for the first time the significance of section 2 of the 1989 Act. Mr Anthony Allston (for Mr Yaxley) did not contend that this court should not allow the new point to be raised, but did submit that the failure to raise it before was an indication of its frailty.

Even though Mr Allston did not object to the new point being taken, either on the hearing of an opposed application for an extension of time for appealing (which was granted by Hutchison LJ on 20 March 1998) or on the hearing of the appeal, all the members of this court have, I think, felt considerable concern about it. The court has been asked to hear an appeal raising issues of law of general importance when the trial judge had no pleadings or submissions directed to those issues, and did not therefore have them in mind when making his findings of fact. I shall have to return to this point in connection with Mr Allston's reliance, if necessary, on a constructive trust.

The facts and the issues on the appeal

Although there is no challenge to the Judge's findings they are not entirely clear and (especially in view of the course which this appeal has taken) it is necessary to set out the facts in a little detail. All the parties lived in North Norfolk. Mr Yaxley had for many years worked as a self-employed builder. Mr Brownie Gotts and his son Mr Alan Gotts owned various rented properties in North Norfolk. Mr Yaxley had previously done work for Mr Bro...

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