Neutral Citation Number: [2010] EWHC 3117 (Ch)
Case No: CH/2010/APP/0207
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/12/2010

Before :

MR JUSTICE WARREN
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Between :

	Lynda Clara Clarke	Appellant	
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	Violet Ruth Meadus	Respondent	

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John Randall QC and Aubrey Craig (instructed by DWT Legal Ltd ) for the Appellant
Simon Sinnatt (instructed by Cripps Harries Hall LLP) for the Respondent

Hearing dates: 13th and 14th October 2010
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Judgment

Mr Justice Warren : 
1.	This is an appeal from an order of Master Bragge dated 7 April 2010.  His order relates to the property Bonavista, East Street, Turners Hill, West Sussex.   The Claimant (“Mrs Clarke”) claims to be entitled to the entirety of the beneficial interest in Bonavista of which she and her mother, the first Defendant (“Mrs Meadus”) are the registered proprietors.  Mrs Meadus applied for summary judgment alternatively to strike out parts of the Amended Particulars of Claim (“the APoC”).  In relation to Mrs Clarke’s claims in respect of Bonavista, he decided that, so far as the claim was based on constructive trust, it should be struck out and that, so far as it was based on proprietary estoppel, there be summary judgment.  

2.	Ms Clarke now appeals from the Master’s order.  She has produced draft Re-Amended Particulars of Claim (“the re-Amendment”).  If, contrary to her primary submission, the Master was right in his decision in relation to the current APoC, she seeks permission to amend the pleading which will, she contends, address the matters which led the Master to conclude as he did.

A brief history
3.	Mrs Clarke is the daughter of Mrs Meadus and the late Reginald Meadus who died in 1995.  She has a sister, Anne, who is married to the third defendant, Mr Watson.  He and the fourth defendant are parties to the action as trustees of the Meadus Family Trust which is a beneficiary under Mr Meadus’ will, as varied.

4.	In the late 1950s, Mr Meadus bought 100 acres or thereabouts of farmland and woodland in Turner’s Hill, West Sussex.  Pursuant to planning permission which he subsequently obtained, he built a house and laid out a garden in the south-east corner of the land.  This was Bonavista.  An area of woodland was planted which was enjoyed with the property.  Mrs Clarke says that her mother experienced a number of emotional difficulties once the house had been built so that she could not, or would not be left there alone; it was Mrs Clarke who invariably looked after her mother when Mr Meadus was unable to be at the house.  The truth of all that does not matter and is, in any case, something which can only be determined after hearing evidence.  But it is relevant because, if correct, it is part of the background to subsequent events giving rise to a constructive trust or proprietary estoppel which Mrs Clarke alleges entitles her to the entire beneficial interest in Bonavista.

5.	In 1970, Mrs Clarke married and left Bonavista.  Her sister married, 2 years later, and also left. From 1970 until about 1989, Mrs Clarke and her husband (then a serving army officer) lived in Worcestershire where they brought up their two sons.  In 1989, after her husband had ceased active service, they moved to Kent where he set up a business including dealing in ammunition.

6.	By this time, much of the land originally purchased by Mr Meadus had been sold.  Something like 6 acres only remained (including Bonavista itself).  In 1989, Mr Meadus transferred that land (including Bonavista) into the joint names of himself and Mrs Meadus.  They raised a sum of money, about £30,000, secured by a “roll-up” mortgage under which interest was not immediately paid but was instead added to the secured debt.  Of that sum, Mrs Clarke says that £15,000 was advanced to her and her husband in connection with their move from Worcestershire to Kent; she says that £10,000 of that was a gift and that £5,000 was a loan which was repaid within 3 months.  She also says that the purchase price of the house in Kent was £172,500 purchased with the help of an interest-only mortgage of £78,000, leaving an equity of £94,500.  I do not know whether anything which I have set out in this paragraph is disputed by Mrs Meadus.  Again, nothing turns on that for present purposes since any dispute, if there is one, can only be resolved at a full hearing with witnesses and evidence.

7.	The narrative which I now relate in paragraphs 8 to 15 and paragraphs 23 to 26 below is Mrs Clarke’s side of the story as summarised in the helpful skeleton argument of Mr Randall QC who appears for her.  No doubt significant parts of it are disputed by Mrs Meadus.  However, unless there is some element of the narrative which is clearly unsustainable so that Mrs Clarke’s evidence is to be rejected out of hand, it must be taken, for the purposes of the summary judgment or strike out application, to be correct.  There is nothing which leads me, or could properly have led the Master, to reject such evidence out of hand.

8.	Prior to his death in March 1995, Mr Meadus began to suffer increasingly serious health problems and knew that he did not have long to live.  Mrs Clarke says that he expressed to her that it was his and his wife’s wish that Bonavista remain in the family after they were dead and, in the expectation that he would be the first to die, they both wanted Mrs Clarke to come and live with Mrs Meadus during the remainder of her life, and then take on the house when Mrs Meadus died.

9.	Mr Meadus died on 3 March 1995.  Bonavista (the house, the garden and the woodland) passed to Mrs Meadus by survivorship.

10.	Immediately after his death, Mrs Meadus went to Kent to live with Mrs Clarke and her husband for a few months, until September. During the latter part of her stay Mrs Meadus became anxious to move back to Bonavista.  She wanted to continue to live at Bonavista because that was her personal preference and because she wanted the property to remain in the family after her death.  

11.	She did not want to live there alone.  She asked Mrs Clarke to move to Bonavista with her family and the business run by Mrs Clarke and her husband, with Mrs Clarke looking after her until she died.  If she did so, Mrs Meadus said that she would leave Bonavista to Mrs Clarke in her will.  This proposal or promise was repeated on a number of occasions.

12.	Mrs Clarke ultimately agreed to this proposal.  They all moved, together with the business, in September 1995.  Mrs Clarke and her husband did not, at that stage, sell their own home in case the arrangement did not work out.  Instead, they let it.

13.	In the meantime, Mrs Meadus, who was administering her husband’s estate with the help of her solicitor, had been receiving advice about rearranging her own affairs so as, among other matters, to minimise the impact of inheritance tax both on Mr Meadus’ estate and or her own estate.  With Mrs Clarke’s assistance, she contacted a financial adviser, a Mr Williams.  One suggestion put to Mr Williams was that she should transfer the whole of Bonavista to Mrs Clarke at that early stage, continuing to live there being cared for by Mrs Clarke.  Mr Williams, correctly from a tax perspective in the light of the “reservation of benefit” rules, advised against this on the grounds that such an arrangement would not achieve the intended benefits.

14.	In the end, Mrs Meadus was advised to equalise her own estate and Mr Meadus’s estate; for this purpose, a valuation was obtained at a time when the house was still subject to an agricultural tie which had been imposed as part of the planning permission when it was originally built.  In order to effect such equalisation, she was advised to implement arrangements which would have, for inheritance tax purposes at least, the same effect as if the joint tenancy had been severed before Mr Meadus’ death, thus allowing his notional half share to pass pursuant to a variation of the dispositions otherwise taking effect on his death.   As part of that variation, Mrs Clarke was to receive his notional half share in the house, garden and woodland thus making herself and Mrs Meadus owners in equal half shares.  I shall come to the documentation in a moment.

15.	There was no discussion between Mrs Meadus and Mrs Clarke to the effect that the half share thus passing to Mrs Clarke was intended to satisfy the promise which had been made that Mrs Clarke would inherit Bonavista on her mother’s death.  Indeed, according to Mrs Clarke, there were continued assurances by Mrs Meadus during the course of implementation of the inheritance tax planning exercise that Mrs Meadus would leave her half share to Mrs Clarke by her will with the result that Mrs Clarke would become the sole beneficial owner.  

The documents giving effect to the inheritance tax planning exercise
16.	There are four documents which I need to refer to in connection with the inheritance tax planning exercise.  Although bearing different dates, all close together, Mrs Clarke says that they were all, in fact, signed on the same day.

17.	Deed of Variation dated 3 September 1996 (“the DoV”).  The DoV was made between Mrs Clarke, Mrs Meadus and the trustees of the Meadus Family Trust.  The effect of the DoV is to produce the same result as if Mr Meadus had severed the joint tenancy before his death.  Accordingly, his estate is to be treated as including a half share in Bonavista which falls to be dealt with according to the terms of his will as varied by the DoV.  According to that variation, Mr Meadus’ share in “the House” is given to Mrs Clarke absolutely.  In this context, “the House” is “The Freehold Property known as Bonavista Turners Hill West Sussex”.  Mrs Clarke contends that this means not just the building containing the living space, but the whole of the property, that is to say, the house, the garden and the woodland.  That is a clearly well-arguable contention; indeed, an argument that it includes only the house might face considerable difficulty.

18.	Deed of Appointment and Declaration of Trust dated 4 September 1996 (“the DADT”).  The DADT was made between Mrs Meadus and the Claimant.  By Clause 1, Mrs Meadus appointed Mrs Clarke to be a trustee of what is described in paragraph 10 of the Amended Particulars of Claim as “the Deed of Gift”.  That is the deed made in 1989 by which Mr Meadus transferred Bonavista to himself and Mrs Meadus jointly.  Mrs Clarke was appointed as a trustee in place of Mr Meadus and to act jointly with Mrs Meadus so far as relates to “the Property”.  There is disagreement about the extent of the Property.  Mrs Clarke contends that it includes the whole of Bonavista that is to say the house, the garden and the woodlands.  She clearly has a well-arguable case to that effect.

19.	Relevant parts of the DADT include the following:

“2	(i)	All outgoings on the Property including but without prejudice to the generality of the foregoing all water and sewerage rates Council Tax and insurance will be paid by them equally

	(ii)	That all future improvements or structural repairs or other repairs decoration and general maintenance of the Property be paid equally between them
	……..
	(iv)	Each party will contribute equally to all payments due to Halifax Building Society under the provisions of the mortgage of the Property or part thereof made on the 6th October 1989 between [Mr Meadus] (1) and Sussex County Building Society (2) the benefit of which is now vested in the Halifax Building Society 

3. THE POWER OF SALE vested in the Trustees shall be postponed and shall not be exercisable during the lifetime of Mrs Meadus without her consent in writing

4. IF MRS MEADUS or her personal representatives wish to dispose of or realise her interest in the Property under this Deed she or they shall serve Notice in writing given not less than three moths Notice of such wish on Mrs Clarke and upon the expiry of such Notice period (or earlier if the parties agree) the Property shall be sold and the net sale proceeds which expression shall mean the market price of the Property less the costs necessary to the sale thereof including but without prejudice to the generality of the foregoing legal costs, estate agents and surveyors fees shall be divided in equal shares absolutely.”

20.	Deed of Appointment dated 4 September 1996.  This Deed is expressed to be supplemental to a mortgage dated 6 October 1989 by which Mrs Meadus and Mrs Clarke as owners of the mortgaged property (that is to say, the property subject to the West Sussex/Halifax mortgage) agreed to pay all the monies then due or to become due and to comply with all the matters in the mortgage.

21.	Conveyance dated 5 September 1996.   By this conveyance, Mrs Meadus conveyed the same property as “the Property” just considered to Mrs Clarke.  Mrs Clarke covenanted with Mrs Meadus that she would

“at all time henceforth pay and indemnify [Mrs Meadus] against one half of the interest principal and costs payable and any liability occurring under the terms of the [Halifax] Mortgage”

22.	Mrs Clarke asserts that Mrs Meadus executed, at the same time, a new will under which her half share in Bonavista would pass to Mrs Clarke on her death.  I am not sure whether or not it is accepted by Mrs Meadus that she did so.

Events after execution of the September 1996 documents
23.	Returning to Mrs Clarke’s side of the story, she says that in January 1997, before selling the house in Kent and thus irrevocably committing herself and her family to life at Bonavista, she sought, and obtained, a further reassurance from Mrs Meadus that the whole of Bonavista would become hers when Mrs Meadus died.  This assurance was not pleaded in the APoC but is now relied on in the proposed Re-Amendment.  Mrs Clarke says that, absent such assurance, the house in Kent would not have been sold.  Instead, she would have returned there to live with her family and to run her business.  This, of course, is an important allegation in the context of the estoppel which Mrs Clarke now seeks to raise.  It is not an allegation which can be dismissed out of hand and I must, for the purposes of the appeal and the application (to amend) now before me assume that the allegation will be established.

24.	In 1998, in order to limit the growth of the total sum owing, the “roll-up” mortgage on Bonavista was replaced by an “interest only” mortgage.  The sum secured was £75,000.  Interest payments commenced. Although Mrs Meadus did pay half of the interest instalments for some time, there was a period during which she failed to do so, before she resumed payment.  This is the subject matter of a claim in the present action by Mrs Clarke.

25.	In 2002, Mrs Clarke discussed with Mrs Meadus the desirability of reaquiring a field to the west of the existing garden of Bonavista which had belonged to Mr Meadus but which he had sold.  Mrs Clarke says that Mrs Meadus was anxious that this field should be reacquired but did not wish to contribute to the purchase.  It was agreed that Mrs Clarke and her family would acquire it.  It was agreed that they could fund the purchase by increasing the borrowing secured by the existing mortgage over Bonavista provided that they were responsible for the eventual capital repayment and the increased interest payments in the meantime.  This purchase took place (in the names of Mrs Clarke, her husband and their sons) and interest payments have been met accordingly.  Mrs Clarke’s case is that the purchase was effected in the belief that Bonavista would eventually become hers and then be under one family ownership.  She says that the field would not have been purchased in the way which it was had Mrs Meadus not promised that Bonavista would be hers one day.  

26.	Mrs Clarke says that she has relied on the repeated assurances of Mrs Meadus in the following ways:

a.	She moved with her family and business to live with Mrs Meadus at Bonavista in September 1995.

b.	Before the move, in August 1995, she looked after, cleaned, decorated and restored Bonavista (including putting up new ceilings, laying new carpets and installing a new kitchen).

c.	She and her husband incurred a loss of over £57,000 on the sale of the Kent property.

d.	She lived with and cared for Mrs Meadus without payment and regularly gave up her free time to ensure that someone was with Mrs Meadus who could not be left alone at night.

e.	She incurred expense of a sitter/companion to be with Mrs Meadus when she could not be there.

f.	From 1995, she has invested the equity from the sale of the house in Kent together with £30,000 from her husband’s pension and other monies for the undertaking of substantial improvements including:

i.	The erection of a new barn/garage, new fencing, hard-standing and car-parking.  It is to be noted, however, that she and her husband have had enjoyment of this new building in connection with their business.
ii.	Significant items of refurbishment – including replacing two bathrooms, installing double glazing and replacing barge boards.	
Mrs Clarke accepts that the DADT obliged her to meet half the cost of these items (which go beyond maintenance) but says that there was no obligation on her to carry them out or to permit Mrs Meadus to do so.

g.	From 1995 to date and continuing, she has undertaken and discharged obligations in relation to the lending secured on Bonavista (over half of which had accrued long before she occupied the property).

h.	She has entered into arrangements (notably the DADT) which effectively prevented her from moving from the property unless Mrs Meadus was willing to sell.  She and her family were locked into an arrangement with Mrs Meadus.

i.	She has expended her own funds in purchasing adjoining land to be enjoyed with and enhance the amenity value of Bonavista itself.

The APoC and the proposed Re-Amendment 
27.	Paragraph 4 of the APoC contains a summary of the claims.  The present appeal relates to the claim summarised in paragraph 4(2) namely

“The Claimants [sic] entitlement by reason of a proprietary estoppel alternatively a constructive trust, to an equity in real property vested in the First Defendant”.

28.	Paragraph 18 of the APoC refers to promises and statements by Mrs Meadus, made at a time before Mrs Clarke moved to Bonavista, that it would pass to Mrs Clarke on Mrs Meadus death subject to the obligations pleaded on the part of Mrs Clarke.  Then paragraph 24(5) alleges that, as part of the overall agreements concerning the inheritance tax planning exercise, Mrs Clarke was to receive Mrs Meadus’ half share in Bonavista under the terms of a will to be executed following the execution and implementation of the DoV

29.	Paragraph 43 pleads that Mrs Meadus has “by her promises as set out elsewhere herein” led Mrs Clarke to expect that by her will that she would leave Bonavista to Mrs Clarke.  In particular, it is alleged that on or about 6 September 1996 Mrs Meadus instructed her solicitor to disclose to Mrs Clarke a draft will containing a gift of her half share in Bonavista to Mrs Clarke.  By the proposed Re-Amendment, the references to the promises set out in the APoC are identified as “including but without limitation those promises mentioned in paragraph 18, 20A and 24(5)”.  

30.	I have already mentioned paragraph 18 and 24(5).  Paragraph 20A is a new paragraph which it is proposed to introduce in the Re-Amendment.  It reads as follows:

“Immediately prior to the sale of her home in Kent the Claimant sought and obtained from the First Defendant express reassurance that the First Defendant fully understood the nature of the transactions she had entered into in September 1996 viz.; the transferring of a half share in Bonavista to the Claimant and the First Defendant remained committed to her promise to the Claimant to leave the other half of Bonavista to the Claimant in her Will.  The First Defendant confirmed to the Claimant at that time that she wanted the Claimant to sell her home and commit her and her family fully to Bonavista on the faith of her promise that Bonavista would be the Claimant’s when the First Defendant was dead.  If the First Defendant had refused to make such a commitment or had intimated any change of heart the Claimant could and would have moved the family and the business back to Kent.”

31.	The section of the APoC beginning at paragraph 43 is headed “The Claimant’s claim to the entirety of the interest in Bonavista based upon a proprietary estoppel alternatively a constructive trust”.  The pleading then goes on to set out the facts and matters asserted which, as a matter of law would, if proved, be sufficient, according to Mrs Clarke, to establish a proprietary estoppel alternatively a constructive trust.

32.	Paragraph 44 of the APoC alleges that, in reliance upon the agreements and promises made by Mrs Meadus as set out in “these particulars of claim”, Mrs Clarke and her husband sold their home in Kent at a loss of some £57,000.  The pleading goes on to allege acts of detriment which I have, essentially, summarised above.  In addition, it is alleged at paragraph 50 a further detriment is identified namely that Mrs Clarke 

“has left a home (and business establishment) which she (and her husband) owned and in relation to which they were their own masters and save for the estoppel alternatively the constructive trust which is now relied upon have taken up residence in and established their business in a property where there are substantial restrictions of their freedom to deal with it and from which, by reason of the First Defendant’s interest, they are liable to be forced out at any moment in time, both during the First Defendant’s lifetime and upon her death.”

33.	However, there is not, in the APoC an allegation to the effect of the proposed new paragraph 20A which is not, therefore, one of the agreements and promises set out “in these particulars of claim”.  Accordingly, there is no allegation in the APoC that the sale of Kent was made in reliance upon an affirmation of the representations made previously. Mr Sinnatt, who appears for Mrs Meadus says that all of the earlier representations predate the execution of the documents in September 1996.  This is of great significance, for reasons which I will come to. It is not quite accurate, however in the light of paragraph 24(5) of the APoC.

34.	The proposed Re-Amendment contains a new paragraph 50A which is headed “Summary of the Claimant’s Detrimental Reliance”.  It sets out the matters which I have summarised in paragraph 26 above.  A new paragraph 50B in similar vein complains, in effect, that Mrs Clarke’s investment of time and effort in Bonavista has been at the expense of investing in the acquisition of a home and a place for the conduct of business and which would be the ownership of herself and her husband.  She has suffered detriment as a result, to use my own words, of this wasted expenditure of time, effort and money.

35.	At paragraph 68, Mrs Clarke seeks a declaration that Bonavista is held by Mrs Meadus on trust for them in equal shares pursuant to the terms of the DoV.  That is clearly directed at the question of the true construction of the DoV and the identification of the property comprised within it.  Paragraph 70 claims a declaration that 

 “by reason of the proprietary estoppel, alternatively the constructive trust asserted herein, or otherwise, Bonavista is held by the Claimant and the First Defendant upon trust for the Claimant absolutely alternatively in such shares as the court may decide subject only to a right in the First Defendant to occupy the said property for so long as she may wish.”

36.	If necessary, Mrs Clarke seeks to include, by way of re-amendment, a further plea at the end of paragraph 70: she says it is not necessary and simply to be inserted to address a bad point raised on behalf of Mrs Meadus. It reads as follows:

“alternatively that by reason of the Claimant’s detrimental reliance upon the promises of the First Defendant, the Claimant is entitled to an equity in the property as against the First Defendant of such extent and/or to be satisfied in such manner as the court may deem fit.”

The Master’s judgment
37.	The Master gave an oral judgment of which I have an approved transcript.  He refers at paragraph 5 to two letters (which I have not yet mentioned) sent by Mrs Clarke to her sister Anne on 29 April 1995 and 4 May 1995.  These, it will be noted, were both written quite soon after Mr Meadus’ death and 4 months before the move from Kent to Bonavista and at a time when Mrs Meadus was living temporarily in Kent with Mrs Clarke. The second letter contains the passage set out by the Master:

“….Mum still has the yard to sell, should Drinkwaters not renew as you suggest and she’ll still have Bonavista!”

38.	There was and is, however, no evidence before the Master or me that Mrs Meadus and Mrs Clarke had discussed a possible move by Mrs Clarke and her family to Bonavista, let alone that they had agreed on that course by the time of the second letter.  Paragraph 17 of the APoC (which appeared in the original pleading) which is supported by a statement of truth alleges that it was towards the end of the period during which Mrs Meadus was living in Kent (so that would make it some time in August and certainly well after 4 May) that Mrs Meadus asked Mrs Clarke to move to Bonavista with her family,  I do not, at present, see the significance of either of those letters given that the alleged representations and promises were made several weeks after they were written. Clearly, Mrs Clarke had not agreed even in principle to the move, albeit that even during her father’s lifetime the possibility had been mentioned.

39.	The Master then went on to deal in summary with the claims made in the APoC which I have set out in more detail above.

40.	The meat of the judgment begins at paragraph 14 where the Master identifies in this way the main basis of the application: “where there is an express declaration of trust, that is an end of the matter with respect of the court determining the parties’ respective interests, unless one party applies for rectification or rescission of the deed”.  And so it was submitted that there was no case that could be made out with any prospect of success that there is a constructive trust of the type that is proposed by Mrs Clarke.

41.	Reference was made to Stack v Dowden [2007] 2 AC 432 and Goodman v Gallant [1986] Fam 106 in support of Mrs Meadus’ application.  The contrary argument identified by the Master was that all the elements necessary to establish an equity in Mrs Clarke’s favour were for the purposes of summary judgment (and I would add, strike-out) alternatively a remedial constructive trust, were present and in the context of a remedial constructive trust, reference was made to Thorner v Major [2009] 1 WLR 276 at [14 and 20-21].  I have also been referred to these authorities and to several others, some of which I will mention.

42.	The Master dealt with the constructive trust claim very briefly in paragraph 17 of his judgment.  He concluded that such a claim was not permissible where there has been an express declaration of trust.  He considered that to be the case “whether or not the trust is characterised as, for example, some remedial constructive trust”.   The Master did not, however, give any consideration to the question whether a constructive trust might have arisen as a result of matters which took place after an express declaration of trust.  In the present case, the relevant declaration of trust is to be found in DoV executed on 9 September 1996 (albeit bearing a date a few days earlier).  He did not address the question whether a constructive trust might have arisen after that date to displace the express trusts declared.  Nothing in Stack v Dowden or Goodman v Gallant can be read as suggesting that this is not possible: it all depends on the facts.

43.	The Master then went on to consider the claim based on proprietary estoppel.  He identified in a summary way the matters on which Mrs Clarke relied and which were pleaded in the APoC.  I have described these above.  He did not, of course, deal with the allegation now to be found in paragraph 20A of the proposed Re-Amendment.

44.	He then referred to Mrs Meadus’ reasons for saying that there were a number of fundamental problems with the claim based on proprietary estoppel.   The first was that the claim for relief was as he put it to “an immediate right given by proprietary estoppel to an order that Bonavista is held by the claimant and the first defendant upon trust, subject only to a right to Mrs Meadus to occupy the property for so long as she may wish”.  He concluded that this would go further than would be permissible to give effect to any proprietary estoppel.  

45.	The Master then turned to questions of reliance.  He recorded the submission that (i) an examination of the various items of alleged reliance and (ii) the case of detriment based on such reliance, led to the conclusion that there was no case which should be allowed to go forward.  By way of example, the move from Kent was, it had been submitted, a benefit and not a detriment at all.  Although on Mrs Clarke’s case she had made a loss by selling the Kent property, the value of the equity in Bonavista that she was declared to be entitled to pursuant to the DADT in fact gave a valuable increase in equity overall.  

46.	The Master next referred to the question of payment for improvements and maintenance, noting that such expenditure was for the benefit of Mrs Clarke’s half share as much as Mrs Meadus’ share, and pointing out that the sharing of the cost was dealt with by the DADT.  In that context, Mr Sinnatt had taken the Master to the example of the erection of the new barn/garage which I have mentioned already.  As to that, Mrs Meadus’ defence relies on the manner in which Mrs Clarke and her husband had expanded their business (an ammunition business) despite the misgivings and concerns of Mrs Meadus making use of the new barn/garage to the exclusion of Mrs Meadus.  But even here, the parties are at odds, since the Reply suggests that Mrs Clarke and her husband have stored Mr Meadus’ guns belonging now to Mrs Meadus, and the guns of some of Mrs Meadus’ friends.

47.	The Master saw all this as an indication that what is said to be a detriment in fact is a benefit “at least in part”.  The Master emphasised that that was only an indication and not in any way conclusive.  Then comes this important passage in his judgment, at then end of paragraph 24:

“But it does seem to me to underline the importance of trying to see whether there is in fact made out here a sufficient case of detriment supporting proprietary estoppel that is worthy of going forward to be dealt with at a trial in the sense of has it been established by Mrs Meadus that there is no real prospect of success in relation to the proprietary estoppel claim?  I have come to the conclusion that it really does not do so.”

48.	But the Master does not tell us here why he has reached that conclusion.  All he has told us is that he has found an indicator, one which he expressly stated to be not in any way conclusive, towards that conclusion.  Accordingly, one anticipates the reasons appearing in the next paragraphs.  Starting promisingly, the Master perceived a fundamental problem with the claim.  One might expect that problem to relate to what he has just concluded, that there is no sufficient case of detriment.

49.	Instead, the Master returned to the documents executed in September 1996.  He noted that the suggestion that they have to be viewed in the context of the inheritance tax planning exercise, the relevance of this being, I presume, that Mrs Clarke relies on that context to show that that the results of that planning exercise did not supersede or displace the understanding which she and Mrs Meadus reached about the ultimate ownership of Bonavista on Mrs Meadus’ death.  The documents were, the Master stated, integral to the relationship between the parties and the property rights in Bonavista.  He explained that there is “an express declaration of trust and an express declaration as to the extent of the interests declared”.

50.	He repeated his conclusion that there was therefore no valid constructive trust claim.  Accepting as he did that that is not conclusive against an estoppel claim, he said that: 

“against the background of that express declaration of trust and, for example, the express agreement as to outgoings, improvements and structural repairs, it is difficult in itself to see that there is a claim of substance made in relation to detriment.”

And then he went on to state that a claim of substance “is not, in my assessment, made out”.

51.	Quite apart from these details, reading the judgment as a whole, it can be seen that the Master reached the conclusion which he did for three reasons.  The first, in relation to any constructive trust claim, is that the issue is conclusively determined by the express trusts declared by the DADT.  The rejection of the constructive trust claim also appears to have had a real influence on his approach, if not his actual decision, to the proprietary estoppel claim.  But apart from that, his second reason – his first reason for rejecting the estoppel claim – was that Mrs Clarke had not made out a sufficient case on detriment to go forward to trial.  The final reason was that Mrs Clarke had no prospect of showing at trial that any equity to which Mrs Clarke might be entitled as the result of any detrimental reliance on the promises and representations alleged, had not already been satisfied by the beneficial half-share transferred in September 1996.

Discussion
52.	I wish first to deal with the point which is made about the extent of the declaration sought in paragraph 70 of the APoC.  The Master considered that the relief sought went far beyond anything which Mrs Clarke could obtain since it sought a declaration as to an immediate beneficial interest of 100%.  Mr Sinnatt, focussing on that point, says that the Master was right and suggests that, at least without amendment, Mrs Clarke has no valid claim.

53.	I do not agree with that suggestion.  And if the Master had reached his conclusions concerning summary judgment and strike out on the basis of such a suggestion – I do not read his Judgment in that way – then he would have been wrong to do so.  There are two reasons for this.  The first reason is that the APoC are designed to assert equitable claims based on the facts pleaded.  The relief sought may go too far but the court is in a position, once the facts are known, to mould the appropriate remedy.  Every property lawyer knows the uncertainties involved in a proprietary estoppel claim and the fact that more is sought than could reasonably be expected to be obtained does not mean that the pleading is defective.  Indeed, there may be cases where justice could be done only by advancing the time at which the claimant would otherwise be entitled to claim an interest.  In any event, the claim in paragraph 70 was not simply a claim to 100%: it was to 100% “alternatively in such shares as the court may decide” and, of course, subject to a right for Mrs Meadus to reside.  The second reason is that the prayer for relief includes a claim for further or other relief.   Accordingly, even if the claim in paragraph 70 goes too far, Mrs Clarke can seek lesser relief pursuant to the claim for further or other relief.  It would serve no purpose to strike out paragraph 70.  Further, amending it as sought in the Re-Amendment really does no more than state expressly that which is implicit anyway.  Suppose that paragraph 70 had originally sought only the relief which it is now sought to introduce by amendment namely a declaration as to an entitlement of such extent as the court may think fit.  Mrs Clarke would be able to argue, on the basis of that pleading, for such equity as she considered the evidence, when it finally came out at trial, justified up to a 100% interest.  In my judgment, there is nothing in this point which justifies striking out of paragraph 70.

54.	With that point out of the way, I turn to the case based on proprietary estoppel.  Mrs Clarke says that she would not have moved to Bonavista had Mrs Meadus not promised to leave it to her in her will.  She also says that she would not have sold the Kent property and would have returned there had Mrs Meadus not confirmed in January 1997 that her then share would be left to Mrs Clarke.  In testing whether reliance has been placed on a representation in this context, one question to ask is not what Mrs Clarke would have done if the representation had never been made but what she would have done had she been told that the promise would not be kept: see Hoffmann LJ in Walton v Walton 14 April 1994, CA Transcript No 479 citing Wayling v Jones  (1995) 69 P&CR 170. If she had been told in 1997 that the house would not be left to her, in other words if previous promises had been withdrawn, her case is that she would have moved back to the Kent house and would not have sold it.

55.	The Master clearly attached great weight to the transactions in September 1996 in reaching his conclusions not only on constructive trust but also on proprietary estoppel.  He was saying, in effect, that what took place in September 1996 meant that Mrs Clarke had no interest in Bonavista other than that expressly provided for by the DADT.  Such rights as had accrued or were accruing in favour of Mrs Clarke were satisfied by the DADT so that she could have no further claim.  There are several points which need to be addressed in relation to that which I will come to in a moment.

56.	Before addressing those points, there is one important aspect of Mrs Clarke’s claim as it is now put which does not feature in the Master’s judgment.  That may be because the point was not put to him; and it was certainly not in the APoC.  It is the point which it is now sought to make in the proposed new paragraph 20A.  In my judgment, it is clear that the express trusts declared in the DADT are capable of being overridden by a proprietary estoppel in favour of Mrs Clarke as a result of promises and representations made after September 1996.  In particular, if it is established (a) that Mrs Meadus made the representations set out in paragraph 20A (b) that Mrs Clarke acted in reliance on it by selling the Kent property and not moving back there which she would otherwise have done and (c) that her reliance resulted in relevant detriment to her (ie detriment recognised as such for the purposes of giving rise to an equity) then Mrs Clarke clearly has a well-arguable case to establish a proprietary estoppel of some sort although the extent and timing of the interest to which she thereby becomes entitled is a matter for debate.  It cannot, in my judgment, sensibly be argued that once beneficial interests have been declared in a formal document, those interests become immutable and incapable of being affected by a proprietary estoppel.

57.	Accordingly, Mrs Clarke has a clearly arguable claim to some interest in Bonavista either at the present time or at some time in the future.  That claim should be prevented only if (a) it is clear that no representation or promise was made by Mrs Meadus or (b) she placed no reliance on any representation or promise or (c) she did not act to her detriment in reliance on any representation or promise or (d) the equity which she is able to establish could not, on any view, exceed that which she already has as a result of the transactions in September 1996.

58.	As to (a) and (b), Mrs Clarke’s evidence is that there was a representation and promise and that she relied on it in the way she suggests.  If Mrs Meadus does not accept Mrs Clarke’s case on these two matters, there are obviously triable issues.  It could not possibly be correct to strike out or give summary judgment on the footing that Mrs Meadus’s case is to be preferred.  

59.	As to (c) and (d), these were matters which the Master addressed to some extent.  But as I have already indicated, in considering detriment, the Master did not carry out any detailed analysis of each element of detriment asserted by Mrs Clarke.  All he did was to mention the argument on behalf of Mrs Meadus that the move from Kent was a benefit to Mrs Clarke and that the loss on the sale of the Kent property was reflected in the benefit of the half share in Bonavista.  The Master did not examine that argument, still less did he examine the other elements of detriment alleged.  After all, Mrs Clarke does not rely simply on the move itself.  She relies on the fact that, as part of the representation and promise, she gave up a considerable part of her time to ensure that her mother was not left alone, with an impact of her own life which is not to be quantified in money.  Of course, it might be said that any loving daughter would look after her mother to the best of her ability.  But in the present case, it is important not to lose sight of the fact (assuming that Mrs Clarke’s evidence is accepted) that Mrs Clarke was able to undertake that burden only by moving from Kent and that she actually did so on the faith of representations made by Mrs Meadus.

60.	The only other aspect of detriment addressed by the Master was the benefit enjoyed by Mrs Clarke and her husband of the new barn and garage for the purposes of their business and the storage of guns.  In relation to the storage of guns, the Master seems to have got matters wrong.  The Reply served on behalf of Mrs Clarke referred to the storage of Mr Meadus’ guns (owned by Mrs Meadus) and the storage of guns belonging to Mrs Meadus’ friends   But the Master then refers to the benefit enjoyed by Mrs Clarke or at least her husband “in relation to the storage of his or his friends’ guns”.  It is a small point, but it does suggest to me that the question of detriment was not properly analysed at all.

61.	To the extent that the Master’s ultimate decision turned on a finding that there was no detriment, I do not consider that it can stand.  There was simply an inadequate analysis of the alleged detriment to justify the conclusion.  The conclusion was really no more than an assertion.  Of course, different judges can reasonably take radically different views of the same facts and an appellate judge must recognise that.  But in the present case, it would not be safe to rely on the Master’s conclusion that there was no case on detriment even if he were right on the particular allegations of detriment which he mentioned.

62.	In my view, however, even on the aspects which he did mention – the move from Kent with the attendant loss on the sale (compensated for by the equity in Bonavista) and the enjoyment of the new barn/garage for the business - his conclusion is one which he could not properly have reached. Whilst reminding himself that he was dealing with a summary judgment/strike out application and not conducting a mini-trial, he appears to have acted in a way which is not consistent with the approach properly to be adopted.  He has, so it appears to me, made an assessment of the facts which should properly be made only after full evidence has been heard.   His actual conclusion may turn out to be correct but that is not the point.  The point is that he might turn out to be wrong.  The place to decide that issue is a trial not a summary judgment application.

63.	Since I am differing from the Master, and in the light of Mr Sinnatt’s arguments, I need to say rather more about detriment.

64.	As Mr Randall says, the facts of this case (assuming as always that what Mrs Clarke alleges is established) are as clear and unequivocal an example of what has been termed a “bargain case” as one could find.  Mrs Clarke’s expectations were based on an express promise by Mrs Meadus, repeated on several occasions.   The closeness of the facts to a “bargain” are a factor in the ultimate resolution of the case: see Robert Walker LJ in Jennings v Rice [2002] EWCA Civ 159, [2003] 1 P & CR 8 at [41] ff especially at [45].  Of course, this reasoning does not apply to what one might call an extravagant case where the promise does not, on any view, justify a claim based on detrimental reliance.  

65.	It is no doubt the case that a change of position induced by a representation or promise is not enough because that change may actually be highly beneficial to the claimant.  That is one factor which leads to the conclusion that the time when the prejudice to a claimant is to be judged is when the person making the representation or promise departs from his promise or indicates that he will break his promise or act otherwise than in accordance with his representation in the future.  

66.	Subject to the effects of the September 1996 transactions (which I will come to in a moment) I agree with Mr Randall when he says that the task of the court is to look back from 2006, when Mrs Meadus resiled from her representation and promise (by changing her will so as to leave her half-share in Bonavista to Mrs Clarke’s sister Anne), to 1995/96 when the promises and representations first began to be made and Mrs Clarke first began to act on them.  The court has to look at the whole history (including of course the September 1996 transactions) to decide whether or not it would be unconscionable for Mrs Meadus to resile from her promise in the light of Mrs Clarke’s change of position over 10 years or so.  In saying that, Mr Randall accepts that any benefit actually received by Mrs Clarke solely as a result of her reliance must be taken into account. I would add, in relation to that concession, that Mrs Clarke might be able to say that not much weight should be placed on this benefit since, even if she had not moved to Bonavista, she might have had a reasonable expectation of benefit as to a half share on Mrs Meadus’ death in any event.

67.	Once Mrs Clarke has shown that the representations alleged were in fact made, and that she has suffered detriment, it is probably to be presumed that she acted in reliance on the representation with the onus being on Mrs Meadus to rebut that.  I say “probably” because it is not necessary to decide that point in the present case.  What is clear to my mind is that, whether or not she suffered detriment, it would be very difficult to see how it could be argued that Mrs Clarke had not acted in reliance upon the alleged representations.  This cannot possibly be an aspect of the case which could be decided adversely to Mrs Clarke on a summary judgment/strike out application.

68.	I also agree with Mr Randall (and in so doing I am probably repeating what I have already said in different words) that the task of evaluating and assessing the detriment incurred by Mrs Clarke (and the balancing of any benefit) and the resulting equity to be awarded to her is not an exercise which should be undertaken or is capable of being fairly undertaken on a summary judgment application (save perhaps in an exceptional case of which the present case is not one).  I also agree with him that it is not possible (even taking account of the transfer of a half-share in Bonavista in 1996) safely to say at this interim stage that the detriment which Mrs Clarke has suffered or will suffer could not possibly be held at trial to justify the grant of some greater share, perhaps even the whole, or some other form of compensation for that detriment.  This is particularly so where the promise was to transfer 100%.

69.	I now turn to the September 1996 transactions to see whether the impact of them can be such as to make it clear that Mrs Clarke has no claim based on proprietary estoppel.  

70.	I start by considering the position before the Master and thus in the absence of the representation which it now sought to add by the proposed paragraph 20A of the Re-Amendment.  The issue here is whether the express declaration of trust in, and the other provisions of, the DADT preclude Mrs Clarke’s claim.  In examining this issue, I make the assumptions (a) that Mrs Meadus did in fact make the representations and promises which it is alleged she made prior to and at the time of the execution of the documents in September 1996 (b) that Mrs Clarke had acted both prior to that time and thereafter on the faith of those representations and (c) that such reliance resulted in a detriment to her.  In the context of (b) I will need to consider whether, in the light of the September 1996 transactions, Mrs Clarke can be heard to say that she acted after that time in reliance on representations made before that time.

71.	The first point to note is that the DADT not only declares expressly the 50/50 beneficial ownership of Bonavista but provides for the sharing of expenses into the future.  It also provides for the sale of Bonavista if Mrs Meadus or her personal representatives wish to realise her half share in the property.  At first sight, this would appear to be inconsistent with an assurance that it would pass to Mrs Clarke on Mrs Meadus’ death.  

72.	But another view is possible and may well be correct.  It will be remembered that the promise alleged by Mrs Clarke was originally made before the September 1996 transactions and was to the effect that Bonavista would be left to Mrs Clarke by Mrs Meadus’ will.  That did not affect the beneficial ownership of Bonavista so as to give Mrs Clarke a share of the property let alone a 100% interest.  Mrs Clarke could not have asserted that the property had become hers subject only to a right for Mrs Meadus to live there.  That, it seems to me, remained the position up until the execution of the DTDT.

73.	In that context, Mr Randall submits that proprietary estoppel only comes into existence when the promisor/representor seeks to resile from the promise/representation which he has made.  He refers to what Lord Hoffmann said in Walton v Walton (see above) approved in Thorner v Major [2009] UKHL 18 [2009] 1 WLR 776 by Lord Walker at [57] and [62] and by Lord Neuberger at [101].  

“…equitable estoppel…….does not look forward into the future and guess what might happen.  It looks backwards from the moment when the promise falls due and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept.”

74.	That is not to say that effect cannot be given to an estoppel before the time when the promise falls due.  In a case where a claimant has a clear right to expect that a property will be left to him by another, an attempt to circumvent a promise to that effect by changing the will or by selling the property may give rise to enforceable rights even before the death of the promisor.  It all depends on the facts of the case.

75.	I think, however, that Mr Randall may be going too far when he says that an estoppel only comes into existence when the promisor seeks to resile from his promise if by that he suggests that the claimant has no rights in the property concerned until that happens.  Thus, in Jennings v Rice (see above), Aldous LJ noted that there is a clear line of authority which establishes that once the elements of proprietary estoppel are established an equity arises.  In the present case, it makes no difference for the purposes of the application before me, whether Mrs Clarke’s rights at the time of the September 1996 transactions gave her an equitable interest in Bonavista or whether she had only a “mere” equity or something less.  Whatever her rights, the point which arises is whether the express provisions of the DADT make it impossible to rely on the representation or promises made before that time in the light of (a) the express declaration of trust and (b) the provisions for the sale of the property at the request of Mrs Meadus or her personal representatives.

76.	As to that, in 1996, the parties were on good terms and there was no reason to think that Mrs Meadus would resile from such promises as were made.  The DATD was simply part of a tax planning exercise designed to take out of Mrs Meadus’ estate in a tax-efficient manner, one half of the value of Bonavista.  By this time, Mrs Clarke and her family had moved to Bonavista but the Kent house had not been sold.  Mrs Clarke’s case is that, as part of the discussions concerning the inheritance tax planning exercise, it was agreed between them that Mrs Meadus’ half remaining share would be bequeathed to Mrs Clarke by a will to be executed following the implementation of the DoV (see paragraph 24(4) of the APoC).  Thus, far from the DADT being intended to displace or satisfy the previous promise to leave Bonavista to Mrs Clarke, there was, on Mrs Clarke’s case, an agreement which was consistent with, and only consistent with, an affirmation of the promise.

77.	In those circumstances, quite apart from the renewed promise now relied on by Mrs Clarke as set out in the proposed new paragraph 70 of the Re-Amendment, Mrs Clarke clearly has, in my view, a well-arguable case that that DADT makes no difference whatsoever to the claim based on proprietary estoppel which she would otherwise have had.  

78.	I accept, of course, Mr Sinnatt’s submission that, by that time, her rights may not have fully accrued.  Suppose, for instance, that Mrs Meadus had resiled from her promise before the Kent house had been sold.  Mrs Clarke’s case is that she would then have moved back to Kent.  She would have suffered no detriment other than the cost of relocation to Bonavista and then back again.  And even on her own case, the move to Bonavista was recognised by her as not being without risk, and hence the decision not to sell the Kent house at the outset.  In those circumstances, Mrs Clarke might have had a very difficult case indeed in suggesting that she had acquired an equity which gave her more than the 50% which she had already received.

79.	But once she had, in reliance on the representations to her, burnt her boats, as it were, and committed herself irrevocably to Bonavista by selling the Kent house, her claim became stronger so that, by the time when it became clear, probably some time in 2006, that Mrs Meadus was not going to leave Bonavista to her, she became entitled to an equity which may well entitle her to more than the 50% which she already has.

80.	There are two points I should add here.  The first is that although Mrs Clarke now asserts that, in selling the Kent house, she relied on further representations and promises made by Mrs Meadus in 1997, that does not mean that the earlier representations and promises were not relied on or that they can no longer form the basis of proprietary estoppel.   The second is this.  Before the documents were executed in September 1996, Mrs Clarke was on good terms with Mrs Meadus.  She was expecting that the whole property would be left to her under the terms of Mrs Meadus’ will and, had that not occurred, would have had a well-arguable claim to the whole estate based on a proprietary estoppel.  The effect of the September 1996 arrangement was, on one view, simply to accelerate, for valid tax planning reasons, that to which she would in any event become entitled.  It would take a clear agreement or arrangement to the contrary for her to be deprived of that which she was expecting.    

81.	That is my more detailed explanation for disagreeing with the Master’s conclusion on proprietary estoppel.  To be fair to him, he did not say expressly that the September 1996 arrangements were fatal to a proprietary estoppel in contrast with a constructive trust, although I have to say that his judgment does have that flavour.  His actual reasons for rejecting a claim based on proprietary estoppel were, as I have said, that there was no detriment and that Mrs Clarke stood no chance in any case of establishing an equity greater than that which she already had.  But as I have said, I do not consider that those are conclusions which he could properly reach on a summary judgment/strike-out application on the evidence before him.

82.	So far as the claim based on constructive trust is concerned, the position is more difficult.  That claim seems to rely on a remedial constructive trust, a juridical beast which English case law has set its face against.  Perhaps the attitude of the courts is changing; and in that context the speech of Lord Scott in Thorner v Major (see above) does lend support to the view that such a remedy should be available in cases of this sort.

83.	It does not seem to me that the evidence which Mrs Clarke will adduce at a trial will be more extensive if she is allowed to run a constructive trust argument as well as a proprietary estoppel argument.  Proprietary estoppel and remedial constructive trust are simply different routes to the same result which is to give Mrs Clarke an interest in Bonavista going beyond the half share which she already has.  Just as the express declaration of trust in the DADT does not preclude a claim based on proprietary estoppel (particularly if the further representation alleged in the new paragraph 70 of the Re-Amendment is established) so too the authorities, in particular Stack v Dowden, do not in my view preclude a remedial constructive trust once Mrs Clarke has jumped the hurdle of establishing the availability of such a remedy as a matter of English law.  It would be wrong, in my judgment, to strike out that claim if, as I hold, the claim based on proprietary estoppel should be allowed to proceed.

84.	It is to be noted that the Master himself gave permission to appeal in relation to the constructive trust claim.  He could only have done so in accordance with the criteria set out in CPR 52.3.  He must therefore have thought either that an appeal would have a real prospect of success or that there was some other compelling reason to give permission.  If he was right in that, it goes to emphasise the appropriateness now of allowing all matters to proceed to trial when the claim based on proprietary estoppel is to do so.

85.	I should add that I have been referred to a considerable number of authorities, textbooks and articles.  They will no doubt merit detailed consideration by the judge who eventually hears this action in the light of the facts as they are found.  It is not necessary or appropriate that I should examine these texts in detail myself in a summary judgment context.  It is only necessary to say that there are no “killer” legal points in favour of Mrs Meadus and that all of the points which Mr Randall makes have merit to a greater or lesser extent.  It is not right that I should deal with so many points on a summary judgment application, especially when the Master himself has not done so.  I mean no disrespect, of course, to the helpful arguments of counsel on both sides.

86.	I would, nonetheless, refer very briefly to the decision of the Court of Appeal in Gillett v Holt [2001] Ch 210.   I do so because it demonstrates the proposition that, although the element of detriment in proprietary estoppel is an essential ingredient, the requirement is to be approached as part of a broad enquiry as to whether repudiation of an assurance is unconscionable in all the circumstances and that where promises are made over a period of years, it is necessary to stand back and look at the claim in the round.  As Robert Walker LJ put it at p 252:

“The overwhelming weight of authority shows that detriment is required.  But the authorities also show that it is not a narrow or technical concept.  The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial.  The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.”

87.	Save in the most exceptional case, that sort of enquiry is not suitable for summary judgment or strike out.  In my judgment, the present case comes nowhere near such an exceptional case.

Conclusion
88.	The appeal is allowed.  The orders for summary judgment and for striking out parts of the APoC are set aside.

89.	The application to re-amend the APoC is successful so that permission is given to amend the APoC in the form of the draft Re-Amended Particulars of Claim provided by Mr Randall.  It would be quite wrong, in my judgment, to refuse Mrs Clarke permission to rely on the additional promise and representation which she now wishes to assert.

90.	It will no doubt be suggested by Mr Sinnatt that the re-amendment has costs consequences.  There are two aspects.  First, the costs to be incurred by Mrs Meadus in pleading to the amendment.  The usual rule concerning amendments would suggest that she should be entitled to those costs.  Mr Sinnatt will, I anticipate, also say that the costs of the hearing before the Master and before me should be Mrs Clarke’s costs.  There would be considerable force in that argument if Mrs Clarke’s case depended on the new allegation in paragraph 20A of the Re-Amendment.  But, for reasons already given, I do not consider that it does so depend and I would have allowed the appeal from the Master even if the later representation had not been made.  Nonetheless, Mrs Meadus might have taken a different approach had that allegation been included in the APoC before she made her application.  I will accordingly hear submissions on the appropriate costs order when I hand down this judgment.