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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Azaz v Denton & Anor [2009] EWHC 1759 (QB) (21 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/1759.html Cite as: [2009] EWHC 1759 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the High Court
____________________
| YEHU EUGENE ZEEV AZAZ |
Claimant |
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| - and - |
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| RENA DENTON SELF REALIZATION MEDITATION HEALING CENTRE |
Defendants |
____________________
Nicholas Yell (instructed by Carter-Ruck) for the defendants
Hearing dates: 7, 8 and 10 July 2009
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Crown Copyright ©
His Honour Judge Richard Seymour Q.C. :
Introduction
"Yehu's contract as a doctor at the Taunton Hospital ends in January 1991 and he has decided to cease practising as an orthodox doctor in paediatrics, and intends to devote more time to unorthodox medicine. He hopes to attend a healing course in France during 1991."
"We have been on the move for the last year and are writing to let you know our latest news.
Over the last twelve months we have been living in rented accommodation in the Wye valley and in Somerset. During this time we have been looking for the right property in which to live and set up a healing practice. Last month we were invited to join an existing healing centre and this has led to a major change in our plans.
We have decided to "seize the day" and have chosen a new way of life which will involve us living and working with a small group of people as one family. The Centre is a charity providing training, residential courses, retreats, individual healing and counselling and animal healing. We will be sharing in this work and in the day-to-day running of the centre.
This is a huge change for us and we will be gradually settling in over the next few months. Before we get into the swing of full-time healing work we have decided to go travelling for four months and intend to leave at the beginning of next year."
"Dr. and Mrs. Azaz have moved to a new healing centre which is a registered charity and want to transfer all their assets to it before they set off on their trip.
DEW [Mr. West] warning them very strongly about the dangers of what they propose doing. DEW pointing out the charity could change its nature or they could fall out with the other people. Dr. and Mrs. Azaz saying they understood his misgivings but had thought about it very deeply and having lived with the people for three months were absolutely satisfied they were making the right decision. They have reached an "arrangement" with the six people who run the charity and are happy with it. DEW saying the charity would have no liability to them at all if they should leave in the future.
DEW suggesting they make a large contribution but retain some capital just in case. As it is they will not even have a house of their own. Dr. and Mrs. Azaz were adamant that everything must be transferred to the charity. DEW suggesting they consider waiting perhaps a year or at least until after their trip and then give three-quarters of what they own. Dr. and Mrs. Azaz again refused to consider this option. They have discussed it with Ian McFarlane and Peter James but have not told their families of the financial side of their new life with the charity. They may do so in a few years time.
DEW explaining that he must advise them of the pitfalls of what they are doing but finally having to concede that we would do the transfers for them."
"I was very glad to see you both on Friday when I made clear my concern about your plans and I thought I should set these out in writing because the situation is critical.
I appreciate that you have both thought matters through and have taken great care in doing so but you will know that, even so, people can still make mistakes. Apart from that, events can happen which are totally unforeseeable and out of one's control.
Both of you are free to do whatever you like with your assets as responsible adults. The substance of what you have decided to do is to give away Lizanne's substantial fortune which derived from her father's estate and various family trusts to a charity which at law is a separate legal entity. The money which you put into the Charity will no longer be your money and cannot be used to benefit you unless it is to pay your reasonable expenses and salary and these payments must be agreed by the Directors. The Charity will in no sense just be an extension of you. The Charity Commissioners will expect Accounts to be submitted each year. I realise that you respect the other Directors of the Charity and wish to be totally committed to them and to show your commitment. However as you both know and it has already been Lizanne's experience, the situation can change and, in your case, should it change the end result will be drastic. It is likely Yehu will be able to earn his living and his keep but if, for instance, you should have separated or divorced, Lizanne will be financially exposed and may not be able to keep herself. This may be the lot of many people but it must be considerably more difficult where somebody has already enjoyed substantial assets during her life.
You are both giving away your assets to something you believe in but I have to say that it is Lizanne who is giving considerably more and is likely to be more exposed in the future. The money can never be repaid to you from the Charity. This means that if for any reason you break up with the Charity or are sacked or retire, there will be no way in which you can retrieve any of the money you have contributed. Do you know what arrangements will be made if you fall sick (and are not healed) or retire?
Peter James telephoned me today. We are both worried about what you are doing. What is particularly worrying to both of us is that you have not seen fit to mention all this to David and of course we will not do so. The experience of both of us having viewed human behaviour for a number of years is that what can start off with starry-eyed enthusiasm can end, five, ten or twenty years down the line, in sadness and disillusionment. My heartfelt advice is that you should on no account give your whole fortune to the Charity. We did discuss putting off your decision until you returned from your World trip. In any event you could consider transferring say, a fraction of your assets now and then another fraction in a year's time and more if you still wanted to over the years. In this event you would be contributing to the Charity but also retaining a certain amount of independence. There is no reason why having seen the Charity in action for a number of years you should not in the future transfer your fortunes or a substantial part, to it. You will have committed your time and talents and a chunk of your assets to the Charity but have retained the ability to decide whether or not to continue to do so in the future. You will also have retained the freedom of choice which must be essential to you, to decide what interests you both wish to pursue in the future. Having divested yourself of all your assets you take away completely that choice. By retaining at least part of your assets, you have the ability not only to meet your future financial needs, but also to cope with your changing attitudes and interests which are bound to develope [sic] over the next ten or twenty years."
"36. From about October 1991, the Claimant had accepted the teachings and beliefs of the First Defendant and was under her actual undue influence as the leader of this spiritual or quasi-religious group.
37. Further, or in the alternative, the relationship between the Claimant and the First Defendant (as set out above) was a special relationship from which undue influence is to be presumed to have been exerted over the Claimant by the First Defendant as the First Defendant was his spiritual or quasi-religious adviser.
38. As the First Defendant was at all times acting as spiritual leader of the Second Defendant, the Claimant was also under the influence of the Second Defendant.
39. Whilst under that undue influence and as a direct consequence thereof, the Claimant:
39.1 Handed over to the First and/or Second Defendant the sums of money identified in the First Schedule to these Particulars of Claim [that is, the Cash] totalling over £100,000;
39.2 Handed over to the First and/or Second Defendant or allowed the general use of all his other possessions [that is, the Possessions];
39.3 Completely abandoned his career as a qualified Doctor in favour of his work for the First and Second Defendant; and
39.4 Worked for the First and/or Second Defendant from the summer of 1992 until December 2003 without receiving any proper remuneration for the tasks carried out or any compensation for the loss of his income or career as Doctor.
40. By the letters dated 2nd May 2007, as he was entitled to do, the Claimant avoided the gifts of money identified in the First Schedule to these Particulars of Claim as against both the First and Second Defendants; demanded the return of his possessions and sought damages. The Defendants have failed to return or repay that money or any part thereof, or to return any of the possessions or to pay any damages.
41. In these circumstances, the Claimant is entitled to:
41.1 Repayment of each of the sums identified in the First Schedule to these Particulars of Claim;
41.2 Return of all possessions identified in the Second Schedule to these Particulars of Claim and/or equitable compensation or damages representing their value;
41.3 Damages and/or equitable compensation for the period October 1991 until December 2003 based on (a) a reasonable remuneration for the work carried out in that period for the First and/or Second Defendant or (b) compensation for the remuneration that he would have received had he continued his career as a Doctor.
41.4 Damages and/or equitable compensation for a reasonable period after December 2003 to take account of the losses sustained by the Claimant whilst returning to a senior position in his career in medicine.
43. Alternatively, at the time each sum identified in the First Schedule was paid to the First and/or Second Defendant and when the possessions were made available for general use, there existed a relationship of trust and confidence between the Claimant and the First Defendant (both as acting or [sic presumable "on" was meant] her own behalf and as agent for the Second Defendant).
44. The gifts of money and allowing the possessions to be used generally were transactions that were so disadvantageous to the Claimant and/or so substantial as to be transactions that call for an explanation from the First and/or Second Defendants to rebut the presumption of undue influence that exists where such transactions take place where a relationship of trust and confidence exists between the parties.
45. The Claimant received some independent advice about some of those transactions but, following the First Defendant's teachings (as set out in paragraph 9.4 above), ignored any advice received and, accordingly, the First and/or Second Defendants are unable to rebut the presumption that the transactions were tainted by the undue influence that is presumed to exist.
46. As a result of the matters set out in paragraph 43 45 above, the Claimant was entitled to avoid each of the transactions and, by the letter dated 2nd May 2007 did avoid those transactions and became entitled to:
46.1 Repayment of each of the sums identified in the First Schedule to these Particulars of Claim;
46.2 Return of all possessions identified in the Second Schedule to these Particulars of Claim and/or equitable compensation or damages representing their value.
48. Alternatively, at all material times, the possessions set out in the Second Schedule to these Particulars of Claim belonged to the Claimant who allowed them to remain at the Centre for general use.
49. By the letter dated 2nd May 2007, the Claimant demanded return of all of those possessions, but the First and/or Second Defendant have wrongfully failed to return any of the items set out in the Second Schedule and have thereby wrongfully interfered with them.
50. As a result of the matters set out in paragraph 48 and 49 above, the Claimant is entitled to:
50.1 delivery up of all of those goods together with damages from the wrongful retention of those goods between 15th December 2003 and the date of delivery up; or
50.2 the market value of the goods, together with damages for wrongful retention of those goods for that period.
52. Further (or in the alternative) in relation to the possessions identified in the Second Schedule to these Particulars of Claim the First and Second Defendants were bailees of those possessions and owed the Claimant a duty to take reasonable care of those possessions and to return them to the Claimant upon demand.
53. The Claimant was and remains the owner of those possessions and was and is entitled to immediate return of them upon demand.
54. By the letters dated 2nd May 2007, the Claimant demanded the return of those possessions, but the First and Second Defendants have failed to return them to the Claimant.
55. By reason of the matters set out in paragraphs 52 to 54 above, the Claimant has suffered loss and damage being the market value of those possessions."
"57. At all material times after summer 1992 when the Claimant began living and working at the Centre, the following duties were owed to the Claimant by the First Defendant:
57.1 A duty of care in the First Defendant's capacity as spiritual or quasi-religious adviser to the Claimant to provide reasonable and competent advice to the Claimant, (including honest, accurate and true advice as to the efficacy of her alleged personal power to heal and the Claimant's spiritual skills or qualities).
57.2 A duty of care in the First Defendant's capacity as spiritual or quasi-religious advisor and counsellor to the Claimant to take reasonable care of and reasonable steps for his physical and mental well being and health.
57.3 A personal duty of care as Founder and Head of the Second Defendant, to take reasonable care of and reasonable steps for the Claimant's physical and mental well being whilst living at the Centre and whilst working at the Centre.
57.4 A duty of care in the First Defendant's capacity as spiritual or quasi-religious advisor and counsellor to the Claimant to take reasonable steps for his financial well being (which included a duty not to enrich herself or the Second Defendant at the expense of the Claimant).
57.5 A duty not to misuse confidential information she received in her capacity as spiritual or quasi-religious advisor to the Claimant (including information as to his financial and other assets) for her own benefit or for the benefit of the Second Defendant.
58. At all material times after summer 1992, the following duties were owed to the Claimant by the Second Defendant:
58.1 A duty to take reasonable care of and reasonable steps for the Claimant's health and safety (including his physical and mental well being) whilst he was living at the Centre and/or whilst he was employed by the Second Defendant.
58.2 A duty to supervise the activities of the First Defendant so as to ensure that the personal belief she claimed to have as to the benefits of meditation and her personal belief in her own special ability to heal others did not result in the rejection of conventional medicine for staff and residents at the Centre, or other health and safety assessments and precautions.
58.3 A duty of good faith and care to the Claimant as an employee of the Second Defendant which included a duty not to take financial advantage of the Claimant.
58.4 A duty not to misuse confidential information received by the First Defendant in her capacity as spiritual or quasi-religious advisor to the Claimant for the benefit of the Second Defendant.
59. Further, at all material times, the Second Defendant was vicariously liable for the actions of the First Defendant in her capacity as Founder of the Centre and the person in day to day control of the Centre and its employees.
60. The First and Second Defendants were in breach of the duties relating to the Claimant's financial position (as set out in paragraphs 57.4, 57.5, 58.3 and 58.4 above in that:
60.1 The First Defendant failed to take reasonable steps for the Claimant's financial well being and/or enriched herself and the Second Defendant at the expense of the Claimant by:
60.1.1 Persuading the Claimant to make each of the gifts of money set out in the First Schedule to these Particulars of Claim.
60.1.2 Persuading the Claimant to allow the possessions set out in the Second Schedule to be made available for general use.
60.1.3 Persuading the Claimant to give up his career in medicine and to work for a nominal sum for herself and the Second Defendant at the Centre.
60.2 The First Defendant misused confidential information received in her capacity as spiritual or quasi-religious adviser to the Claimant to identify the assets that he could be persuaded to hand over to her or to the Second Defendant.
60.3 The Second Defendant is vicariously liable for the breaches of duty set out in paragraphs 60.1.1, 60.1.2, 60.1.3 and 60.2 above.
60.4 The Second Defendant was in direct breach of the duty of good faith to the Claimant (as set out in paragraph 58.3 above) in that the Second Defendant received some or all of the money identified in the First Schedule to these Particulars of Claim from the Claimant and benefitted [sic] from the use of the general use [sic] of the possessions at [sic] set out in the Second Schedule in that they remained at the Centre, and obtained the services of the Claimant as an employee without paying him a reasonable remuneration for the work carried out.
60.5 The Second Defendant misused confidential information received through the First Defendant about the Claimant's financial position and the possession [sic] he had without which those transfers of funds and the use of his possessions could not have been arranged.
61. As a result of the matters set out in paragraph 60 above, the Claimant has suffered loss and damage.
Particulars
61.1 In relation to the money set out in the First Schedule, the measure of the Claimant's loss is the value today of the property and assets that he would own, if he had not been persuaded to hand all that money over to the First and Second Defendant.
61.2 In relation to the possessions handed over for general use and not returned to him, the measure of loss is the market value of those goods at the date hereof.
61.3 In relation to giving up his career as a Doctor, the measure of loss is the difference between (a) the salary that the Claimant would have received if he had remained in his career (together with the value of all other benefits including pension and national insurance contribution based benefits) until retirement and (b) the sums actually received. Alternatively, the measure of damages is the difference between the salary received for working at the Centre and a reasonable salary for the work undertaken.
62. Further, in breach of the duties owed to the Claimant in relation to his health and safety and the duty of good faith (paragraphs 57.1, 57.2, 57.3, 58.1, 58.2 & 58.3 above):
62.1 The First and Second Defendants failed to undertake any risk assessments or to have any health and safety policy dealing with the health or safety of employees at the Centre, or to take any steps to consider the effect on their health of the regime for those living and working at the Centre or the effect upon them of the teachings and beliefs of the First Defendant (as set out in paragraphs 7 to 9 above).
62.2 The First and Second Defendant rejected the use of conventional medicine in favour of "healings" from the First Defendant and from other members of "The Family" either without any genuine belief in the effectiveness of those "healings" or with complete disregard for the situations in which those "healings" were shown to be ineffective.
62.3 The First Defendant advised and counselled the Claimant to undergo these "healings" in lieu of conventional medical treatment and the Second Defendant is vicariously liable for that conduct.
62.4 The First and Second Defendant exposed the Claimant to a foreseeable risk of injury from the activities at the Centre.
63. As a result of the matters complained of in paragraph 62 above, the Claimant has suffered pain suffering and loss of amenity and loss and damage in that:
63.1 He became ill as a result of the stress caused by the work and the spiritual or quasi-religious environment within the Centre and the pressure to conform without question to the beliefs of the First Defendant; and,
63.2 Having become ill, he was then provided with ineffective "healings" by the First Defendant rather than conventional medical treatment which exacerbated his condition and delayed any prospect of recovery.
Particulars of Pain and Suffering
The Claimant began to suffer from a dissociative state in late 1996 which was treated intermittently by conventional medicine under a psychiatrist when the Claimant was living with his parents, but not when he returned to the Centre.
By the time the Claimant began to contemplate leaving the Centre he had depressive symptoms and high anxiety levels. After leaving the Centre, the Claimant required psychiatric assessment and care, treatment with antidepressant medication and expert counselling to assist him through the period after he left the Centre. The Claimant had to be assisted back into a world where he was able to think for himself and make decisions, rather than merely conform to the demands and teachings of the First Defendant.
Particulars of Loss and Damage
The Claimant was unable to resume his career in medicine upon leaving the Centre on 15th December 2003, but had to recover from the physical and mental illness. As a result the resumption of his career resumption [sic] was delayed by a period of approximately 2 years.
A Schedule of Loss and Damage is attached as the Third Schedule to these Particulars of Claim."
"He tells me that before he left the centre, he had told his partner Miriananda that he felt suicidal. I found him to be depressed and slightly abstracted, he complains of hallucinations and disturbed dreams, but appears to be slowly recovering.
From what I have been told by Dr. Azaz and his parents Dr. Azaz had a personality change under strong suggestion following his sessions with Mr. and Mrs. Denton. Their suggestions had left him under their direction until they finally rejected him early this year since when he has returned to his previous personality and his interest in his profession which he had been persuaded to abandon while in the Self Realisation Healing Centre. I am of the opinion that the undertaking signed by Dr. Azaz on 23 January 1996 was signed when under the influence of the self healers just before he became mentally ill. I am interested in the fact that he signed as Yehu Azaz and wrote S Y Azaz underneath. The second document dated 11 January 2004 was signed when he was leaving the centre this year shortly before I myself and Dr. Orr his local Consultant Psychiatrist were called in by his G.P. Dr. Smith because of his psychiatric disturbance. It is signed clearly Simon Azaz although shortly after that date Dr. Azaz reverted to his previous name of Yehu Azaz.
In my opinion the Healing Centre had a duty of care towards Dr. Azaz which they breached during his illness in 1996 and his present illness in 2004 by not encouraging him to seek proper medical care in the face of life threatening illness.
I am also of the opinion that Dr. Azaz's actions between 1992 and 2004 were dictated under the influence of Mr. and Mrs. Denton and other members of the Healing Trust and that his experiences while there caused his two episodes of severe dissociative mental illness.
"
"AGREEMENT FOR JOINING THE SELF-REALIZATION HEALING CENTRE
I joined the Self-Realization Healing Centre in September 1992.
I had been given the opportunity to join the Self-Realization Healing Centre, and wanted to take up this offer. I understood that during the period of my training I would be taught and guided by the teachers and healers at the Self-Realization Healing Centre.
I was certain of my choice, and made it without any pressure or influence being exerted by those I knew or anyone at the Self-Realization Centre.
I understood that in doing so I would become part of the family of healers and counsellors who lived and worked at the Self-Realization Centre, and would be working for the Self-Realization Healing Centre Charitable Trust.
I understood what was involved in joining the Self-Realization Healing Centre, and willingly and lovingly brought with me to share, and gave to the Charity all that was mine; including all monies, assets, furniture and other possessions.
I understood that in doing so I was making the Self-Realization Healing Centre my home.
I understood that if I decided to leave the Self-Realization Healing Centre in the future, I would be free to do so.
I agreed to abide by the Truth, and the teaching of Life, to trust in God and Guru, and to serve in any way I was asked."
"AGREEMENT FOR LEAVING THE SELF REALIZATION MEDITATION HEALING CENTRES
I decided to leave the Self Realization Meditation Healing Centres.
I am certain of my choice, and made it without any pressure or influence being exerted by those I know or anyone at the Self Realization Meditation Healing Centres.
I understand that in doing so I will no longer be part of the family of healers and counsellors who live and work at the Self Realization Meditation Healing Centres, and will cease working for the Self Realization Healing Centre Charitable Trust.
I know I have no claim or right to any of the items I brought with me on joining the Self Realization Meditation Healing Centres, as I willingly and lovingly brought with me to share, and give to the Charity all that was mine; including all monies, assets, furniture and other possessions. At the time of joining I understood that if I decided to leave the Self Realization Meditation Healing Centres, I would be free to do so, but without any obligation for the Self Realization Healing Centre Charitable Trust to return any donations or chattels to me.
I therefore undertake to only take with me that which Trustees and the family have willing [sic] consented to and clarify and assert that I have no claim and will make no claim on anything within the Self Realization Meditation Healing Centres after Wednesday 10th December, when I left.
I understand that in leaving the Self Realization Meditation Healing Centres they are no longer my home.
I undertake to maintain confidentiality of all aspects of Self Realization Meditation Healing Centres work, including details of patients and students and to maintain professional ethics at all times.
I still agree to abide by the Truth, and the Teaching of Life, to trust in God and Guru, and to serve in any way I can."
"3. The individual claims brought require separate consideration within the preliminary issues and so the starting point is to identify those claims.
3.1 The first claim is the claim in actual or presumed undue influence (Paragraphs 36 to 47 of the Particulars of Claim).
3.2 The second claim relates to delivery up or damages for wrongful interference with the Claimant's possessions (Paragraphs 48 to 56 of the Particulars of Claim).
3.3 The final claim is for damages for breach of contract and duty which is in 2 parts. First it covers many of the same matters as the first two claims. Secondly, it contains a personal injury claim. This entire section of the claim is at Paragraphs 57 to 64 of the Particulars of Claim."
"Limitation
111. The Claimant's claim for equitable relief is barred by the doctrine of laches as pleaded above.
112. The Claimant's claim includes a claim for personal injury and is statute-barred by virtue of s. 11 of the Limitation Act 1980 ("the 1980 Act"). The Claimant's "date of knowledge" for the purpose of s. 14 of the 1980 Act was more than three years prior to the commencement of these proceedings.
113. Further or in the alternative, by virtue of ss. 2 and 5 of the 1980 Act, any claim by the Claimant for breach of contract and/or duty prior to April 22, 2002 is statute-barred. If, which is denied, the Defendants were in breach of contract and/or duty in the period from April 22, 2002 to December 15, 2003 when the Claimant left the Centre, such breaches did not cause the Claimant any loss."
"a. Whether the Claimant was at any stage prior to the issue of this claim under a disability within then [sic] meaning of s.28 of the Limitation Act 1980 ("the 1980 Act").
b. Whether all or any part of the Claimant's claim is an action for personal injuries within s.11 of the 1980 Act; if so, whether the primary limitation period had expired when this claim was issued and, if so, whether the Court should exercise its discretion to disapply the primary limitation period under s.33 of the 1980 Act.
c. Whether all or any part of the Claimant's claim is otherwise statute-barred under the 1980 Act.
d. Whether the Claimant is entitled to rely upon s.32 of the 1980 Act.
d. Whether all or any part of the Claimant's claim for equitable relief is barred by the equitable defence of laches."
The relevant terms of the 1980 Act
"2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.
5. An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.
11(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies [not this case], the period applicable is three years from
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
14(1) Subject to subsection (1A) below [not material], in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
28(1) Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.
(6) If the action is one to which section 11 or 12(2) of this Act applies, subsection (1) above shall have effect as if for the words 'six years' there were substituted the words 'three years'.
32 (1) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
33(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which
(a) the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to -
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
38
(2) For the purposes of this Act a person shall be treated as under a disability while he is an infant, or of unsound mind.
(3) For the purposes of subsection (2) above a person is of unsound mind if he is a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering his property and affairs."
" mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind "
The Preliminary Issues which do not require answer
"3) Dr. Holden and Dr. Tsatalou agree that initially he [Dr. Azaz] became psychiatrically ill in autumn 1996 and there was evidence of improvement in his mental state by April 1997. At the time he was seen by Dr. Orr (Consultant Psychiatrist) who expressed uncertainty about the nature of his illness and concluded that Dr. Azaz was experiencing a severe dissociative state during which he became almost catatonic. Dr. Orr did not think that Dr. Azaz was well enough to make substantive decisions about the future.
4) Dr. Tsatalou and Dr. Holden agree that Dr. Azaz developed a second episode of mental health problems in late 2003 in the context of Dr. Azaz becoming disillusioned with the group. He was again seen by Dr. Orr who diagnosed a moderately severe depressive illness without psychosis. He improved with the aid of Venlafaxine, an antidepressant, in the early months of 2004. He was noted to be well when seen by Dr. Tyldon [sic] and Dr. Orr in June/July 2004.
5) Dr. Holden and Dr. Tsatalou agree that Dr. Azaz's third episode of mental health problems arose in 2004. Dr. Azaz appears to have left the family home after an argument and made his home in Liverpool. He was identified as suffering from psychological problems in November 2004 when he was noted to be in debt and injuring himself in the context of what appeared to be a depressive illness. He was treated with Mirtazapine, an antidepressant and was referred to the local Crisis Team. In December 2004 he returned to his parents [sic] home in Oxfordshire and in January 2005 he was referred urgently to psychiatric services.
6) He was subsequently assessed and treated by Dr. Tsatalou who diagnosed a recurrent depressive disorder and considered that at the time he was experiencing a moderately severe depressive episode with psychomotor retardation. Olanzapine (an atypical antipsychotic) was added because of anxiety and his troubled thoughts. He gradually improved over a period of a few months and was eventually discharged by the West Oxfordshire East CMHT in August 2005.
7) Dr. Tsatalou considers that Dr. Azaz's symptoms of depression and anxiety continued to improve but his functional recovery was slow and he required constant guidance and reassurance and found it difficult to make day to day decisions. Dr. Tsatalou considers that Dr. Azaz was suffering from a mental illness (severe depressive episode in the context of recurrent depressive disorder) and as a result of his illness he lacked capacity to deal with his financial affairs and to instruct his solicitors in the early part of 2005, and Dr. Tsatalou believes that this projected back into 2004. "
The issues of law
(a) The proper construction of s. 11(1) of the 1980 Act
"The three year period applies where the damages claimed by the Claimant include any claim for personal injuries. Thus the inclusion of a personal injuries element, however slight, means that the three year period applies to the whole claim "
"28. The remaining claim is that for breach of contract and duty which includes a claim for damages for personal injury. The claim is in two distinct parts.
28.1 The first part is the breach of duty claim in paragraph 61 Particulars of Claim which has no personal injury element and so a 6 year limitation period applies.
28.2 The second part is the breach of duty claim in paragraphs 62 & 63 which do involve personal injury and so a 3 year limitation period applies.
29. Within the strike out application [the antecedent to this trial], it became clear that there is a fundamental disagreement between the parties over the correct approach to limitation in the situation identified in the preceding paragraph.
29.1 The Claimant's position is that if the personal injury claim were to be barred by limitation then the balance of the claim must proceed. In short, the personal injury element can then be struck out leaving a valid claim.
29.2 The Defendant's position is that if the personal injury claim were to be barred by limitation then the entire claim fails.
30. The most common situation in which there is this dual limitation period happens [sic] is, of course, in road traffic accidents. The cause of action is negligence which has a 6 year limitation period unless the claim includes personal injury when it reduces to 3 years.
30.1 If all that is claimed is damage to a motor vehicle, a claimant has 6 years to bring the claim.
30.2 If all that is claimed is personal injury, a claimant has 3 years to bring the claim.
30.3 What if the claimant has both claims? If the personal injury claim is barred by limitation, can the other claim survive using the 6 year limitation period? It is submitted that the answer is plainly "Yes". They are separate causes of action. Any other approach would be absurd. Indeed, what is barred is not the cause of action but the remedy. There is, it is submitted authority for this approach."
(b) Fraudulent concealment
"15. Until 15th December 2003, the Claimant remained one of those attending (and, save as set out in the Particulars of Claim) living at the Centre.
16. The period of time during which the Claimant remained under the undue influence of the Defendants lasted beyond 15th December 2003 and extended until he was able to realise that he had been under the undue influence of the Defendants and free himself from that influence and begin to make independent decisions.
17. During the period whilst the Claimant was under the undue influence of the Defendants all the facts relevant to the causes of action now being brought (i.e. the facts pleaded in relation to each claim) were concealed from the Claimant by the Defendants through the deliberate exercise of that undue influence. In particular the Claimant relies on the matters set out in paragraphs 60 to 63 of the Particulars of Claim as breaches of duty towards him that were concealed from him.
18. In further breach of the duties owed to the Claimant, the Defendants failed to inform the Claimant that he was entitled to the return of the money and/or property he had provided to them at any time but required him to sign documents dated 23rd January 1996 and 11th January 2004 which purported to confirm the Defendants' entitlement to that money and those possessions.
19. The undue influence claims brought by the Claimant are not subject to any limitation period. It follows that the Claimant relies upon s.32(1)(b) of the Limitation Act 1980 as follows:
a. In respect of the possessions claim set out in paragraphs 48-56 of his Particulars of Claim, the Claimant's primary contention is that the period of limitation is 6 years and it begins with his request for return or delivery up of those possessions in May 2007. These proceedings were issued within the 6 year limitation period starting on that date. The Claimant only relies upon s.32(1)(b) if (and to the extent that) the 6 year limitation period begins to run from a date more than 6 years prior to issue of proceedings in April 2008 (which would be a date prior to his leaving the Centre in December 2003).
b. In respect of the common law breach of contract and duty claims set out in paragraphs 57-64 of his Particulars of Claim, the Claimant's primary contention is that the period of limitation is 3 years from his date of knowledge in relation to the personal injury claim and 6 years in relation to the other claims. The Claimant relies upon s.32(1)(b) as an alternative to his reliance upon the matters set out in paragraphs 29 to 32 of his Reply.
20. As a result, upon the proper interpretation of s. 32(1)(b) of the Limitation Act 1980 the Claimant's causes of action against the Defendants did not begin to run until the Claimant had freed himself of the effect of that undue influence and actually discovered (or could with reasonable diligence have discovered) all the facts concealed from him. The Claimant contends that this was well after he left the centre on 15th December 2003 and was not until about January 2006. Accordingly, this claim is brought within both the 3 year and 6 year Limitation periods applicable."
The application of s.33 of the 1980 Act in the circumstances of this case
"32. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases [a reference, I think, to the type of case before the court, in which allegations of negligence in relation to education were made] are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice.
33. The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant."
"Peter Gibson and Brooke LJJ agreed. Their Lordships think that these observations from judges with considerable experience of exercising and overseeing the section 33 jurisdiction carry great weight."
"In resolving an application under section 33 the court must make a decision of which the inevitable effect is either to deprive the defendant of an accrued statute-bar defence or to stifle the claimant's action against the tortfeasor who caused his personal injuries. In choosing between these outcomes the court must be guided by what appears to it to be equitable, which I take to mean no more (but also no less) than fair, and it must have regard to all the circumstances of the case and in particular the six matters listed in subsection (3). These are, as Lord Diplock observed in Thompson at p. 751, "a curious hotchpotch", for reasons which he examined. But there is, as it seems to me, a problem underlying the whole of section 33: that it appears to treat the plaintiff and the defendant as individuals liable to suffer prejudice, and with no recognition that it is frequently the competing interests of insurers which will be liable to suffer prejudice. Faced with this problem, but recognising the reality of insurance, the courts have routinely and rightly taken account of the parties' insurance rights. Thus a plaintiff's rights against his insured solicitor are very relevant (Thompson, p.752) but this does not mean that refusal of an order under section 33 will not prejudice him to some degree (Thompson, pp. 750 751)."
"One of the primary factors that has to be taken into consideration when considering an application under s.33 is the extent to which a Plaintiff will be prejudiced by the operation of the time-bar if a direction under s.33(1) is not made. On the face of it the nature of the prejudice is obvious each Plaintiff will lose his cause of action. But in order to assess the degree of prejudice that he will suffer as a result, it is necessary for the Court to take an overall view, admittedly only on a very broad basis, of the Plaintiff's prospects of success; see Dale v. British Coal Corporation [1992] PIQR 373 at p.380-381 and Forbes v. Wandsworth HA [1997] QB 402 at p.417E per Stuart-Smith LJ. The prospects of success include not only the Plaintiff's chance of being able to establish his primary case on liability, but also the quantum of any likely recovery having regard both to the extent of his injuries and the extent to which any damages otherwise recoverable may fall to be reduced as a result of any allegations of contributory negligence which appear on the fact [sic] of it to be open to the Defendants."
"Lizanne, and I, met with Mata [Mrs. Denton] and Peter Denton, in late summer, 1992, to talk about what was involved in joining the SRHC [the Centre]. Lizanne, and I, already knew from our experience of the Centre, and, living there for a week, that the small group of healers, living and working at the Centre, were called the Alpha-Omega family; that they lived together, as any family of people does, sharing their home, and their belongings, with each other; and, in this case, with the people staying at the Centre. Lizanne, and I, learnt that everybody there, had brought with them, their furniture and possessions; and, had donated any money they had, to the Centre, and the Charity, fully making it their home. Lizanne, and I, were told that this was important, and helped everybody to fully feel, that they were an equal part of the family; and, that it did not matter, how much or how little, each person had to bring; it was the person, who was important to them, and, to the Centre; not their possessions. We were told, that as part of the family, everybody owned everything between them, (not, "owned nothing", as stated); and, the Centre fed and looked after their basic needs, (bed, heating etc.); each person, being there voluntarily, as a charity worker, received a small wage of £25 (now £30) a week, (not "earn nothing", as stated). Mata and Peter, did not know about our money, and investments, before we informed them, at one of these meetings; the complete amount involved, was not apparent until after we had joined the Centre. When we told her, Mata said, that she would have preferred it, if Lizanne, and I, had had less money, as looking after large quantities, would cause the Centre extra work, in addition to the healing.
There was no pressure (of any sort) on Lizanne, or persuasion to join, either from Mata, or Peter. It was Lizanne, and my, choice, as to whether we wanted to join, on these terms. I said very little about my opinions, at these discussions about the transfer of money, because the monies were largely Lizanne's, and Lizanne, had to decide for herself, whether she wanted to join the Centre enough, to bring her investments. We did ask many questions about joining, so that each of us understood, what was involved. I still believed that it was the best course, for the both of us, despite the large sums involved, and, was also willing not to join the Centre, if Lizanne decided against it; I did tell Lizanne this, before we joined."
"37. There was no pressure of any sort on Lizanne or myself to join or donate property to the Centre, either by Mr. or Mrs. Denton or anyone else. I said very little at these discussions about the transfer of moneys because it had largely been Lizanne's originally and Lizanne had to decide for herself whether she wanted to join the Centre enough to bring these investments. We did ask many questions about joining so that each of us understood what was involved. I was willing not to join the Centre if Lizanne decided against it and I told Lizanne this before we joined.
38. Mrs. Denton said nothing to us about protecting our wealth being anti-God or an act of fear. She did not say that it was impossible for Lizanne to retain her wealth and serve God fully.
39. Mrs. Denton emphasized that if we wanted Self-Realization it would take 100% commitment in our willingness to look at ourselves and learn. She made no manipulative arguments such as failing to give up wealth meant that Lizanne had no faith in God or that surrendering her wealth was surrendering to God. Lizanne was far too bright and wary to do anything but react against any such arguments. She told me nothing about such comments. If she had, we would have never set foot in the Centre again. She told me of no occasion where she was tearful and begging on her knees for direction from Mrs. Denton. This is farcical and sounds grossly exaggerated for Lizanne then or at any time. These allegations have only been made in this legal action. Mrs. Denton was scrupulous to make it clear that joining the Centre was our decision. She understood that unless this was so, there would not be sufficient commitment and no point.
39. Mrs. Denton made no attempt to persuade Lizanne that Peter James should not attend these meetings to discuss joining the Centre and suggested to us (when Lizanne raised his name) that we should talk to him before making up our minds. She advised such a meeting and did not discourage it as some sign of weakness or for any other reason. Mrs. Denton said that Peter James might not understand a move to the Centre based on spiritual trust and beliefs, but she made no negative comments to devalue his advice such as he was part of the 'material world' or should be 'blocked out' or 'deflected'.
41 Lizanne and I discussed in depth the pro's and con's of joining the Centre, including what would happen if we wanted to leave and did not get much of our money back. Lizanne and I agreed, at Lizanne's suggestion, that we could see this as giving our money to the best cause and working to help people that we knew of. Lizanne was in favour at times and hesitant or against joining at other times because of the uncertainty of the future. After all our discussions, when I asked Lizanne if she wanted to join she said "yes" that she wanted to put her trust in God and in Mrs. Denton as this was the way forwards for her.
43. There was simply no influence exercised over Lizanne and I to join the Centre. Mr. and Mrs. Denton gave us the information we needed to make the decision. After hours of discussion we decided separately and together that we each wanted to join and wanted both to join. Lizanne initially said that she needed to give it between 3-5 years in order to get into the training and get the benefit of it. She later changed this to one year and then to 6 months. ."
"In addition to the evidential concerns which I have set out at paragraphs 26-36 above, the delay by the Claimant in bringing a claim will have caused the Centre considerable financial difficulties. In 2004 the Centre agreed an ambitious new building project which included the building of a new teaching room for Yoga classes and therapy, and a new bedroom, bathroom and toilet for disabled guests at the Centre. A 'poly tunnel' which used to cover the Centre's swimming pool has been replaced by a permanent structure so that guests (as well as the local community) can use the swimming pool all year round. These costs amounted to around £380,000. I can confirm that, had proceedings been contemplated at this time, we would not have agreed to this expenditure."
"17. This claim includes a personal injury claim so 3 year limitation period from date of knowledge.
18. Date of Knowledge is when? Dr. Tylden's Report 22nd June 2004 sent to solicitors. Thus a 3 year limitation period expired on 22nd June 2007. Proceedings not issued until 22nd April 2008 so 10 months late."
"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal grounds for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two years later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers.
Once a plaintiff allows the permitted time to elapse, the defendant is no longer subject to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant. It is clear from the judge's judgment that, because sub-paragraphs (a) and (b) of section 33(3) of the Act of 1980 focus particular attention on the time elapsing after the expiry of the limitation period, he felt constrained to regard the time which had been allowed to pass prior to that date as something which had to be left wholly out of account. In my judgment, he was wrong to do so and that necessarily vitiated the exercise of his discretion."
"During 2005, the question of Yehu's proposed legal action was raised by him on a number of occasions. The concern that I had was that any additional stress on top of his retraining and re-entering medicine as a lowly house officer with the long hours on duty that this entailed would be likely to cause a relapse and therefore legal action was inadvisable. It was clear that in order of priority his mental health and restarting his career was far more important than obtaining redress and recompense from his guru. I spoke to both Dr. Smith [Dr. Azaz's general medical practitioner] and Dr. Tsatalou as part of my conversation mentioned in para. 18 and following the discussion about this strongly advised Yehu that it was not the right time to pursue his action and that he should wait to see how things developed with his health and his return to medicine."
"25. The first two years of Yehu's GP course involved him working as a Senior House Officer for a number of departments within the hospital. Such work involved him returning to a regime of doing nights on call and initially he found this incredibly stressful and tiring. This was made worse by the fact that by now he was 47 years of age, considerably older than his peers and also had much studying to do to refresh his medical knowledge. Having been so long out of hospital medicine, he was not used to working such long hours and he became more and more tired. It is my firmly held opinion that if at this time he had had to concentrate on the pursuit of his legal action, which would have involved remembering all of the events that had so traumatised him during his years within the group, it would have proved much too much for him and he would have been likely to have had a further relapse or psychotic break.
26. It was only when it became obvious that his medical career was back on track and that he had got over the stress of 24 hour on call rotas that I was prepared to give my support when asked by Yehu and his parents in early 2007 to him pursuing the group for redress. "
Preliminary Issue c
Laches
"The equitable defences which would usually be regarded as being available to defeat such a right are laches, acquiescence and confirmation: see for example the judgment of Lindley LJ in Allcard v. Skinner 36 ChD 145, 186-189. By any of these means the transaction could have been affirmed, in the first two cases impliedly and in the third case expressly. These expressions are not uniformly used. Sometimes laches is taken to mean undue delay on the part of the plaintiff in prosecuting his claim and no more. Sometimes acquiescence is used to mean laches in that sense. And sometimes laches is used to mean acquiescence in its proper sense, which involves a standing by so as to induce the other party to believe that the wrong is assented to ."
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy ."
"I proceed to consider the second point which arises in this case, namely, whether it is too late for the Plaintiff to invoke the assistance of the Court. More than six years had elapsed between the time when the Plaintiff left the sisterhood and the commencement of the present action. The action is not one of those to which the Statute of Limitations in terms applies; nor is that statute pleaded. But this action very closely resembles an action for money had and received where laches and acquiescence are relied upon as a defence: and the question is whether that defence ought to prevail. In my opinion it ought. Taking the statute as a guide, and proceeding on the principles laid down by Lord Camden in Smith v. Clay and by Lord Redesdale in Hovenden v. Lord Annesley the lapse of six years becomes a very material element for consideration. It is not, however, necessary to decide whether this delay alone would be a sufficient defence to the action. The case by no means rests on mere lapse of time. There is far more than inactivity and delay on the part of the Plaintiff. There is conduct amounting to confirmation of her gift. Gifts liable to be set aside by the Court on the ground of undue influence have always been treated as voidable and not void.
If authority for this proposition be wanted, such authority will be found in Wright v. Vanderplank and Mitchell v. Homfray. Moreover, such gifts are voidable on equitable grounds only. A gift intended when made to be absolute and irrevocable, but liable to be set aside by a Court of Justice, not on the ground of a change of mind on the part of the donor, but on the grounds of public policy based upon the fact that the donor was not sufficiently free relatively to the donee, such a gift is very different from a loan which the borrower knows he is under an obligation to repay, and is also different from a gift expressly made revocable and never intended to be absolute and unconditional. A gift made in terms absolute and unconditional naturally leads the donee to regard it as his own; and the longer he is left under this impression the more difficult it is justly to deprive him of what he has naturally so regarded. So long as the relation between the donor and the donee which invalidates the gift lasts, so long is it necessary to hold that lapse of time affords no sufficient ground for refusing relief to the donor. But this necessity ceases when the relation itself comes to an end; and if the donor desires to have his gift declared invalid and set aside, he ought, in my opinion, to seek relief within a reasonable time after the removal of the influence under which the gift was made. If he does not the inference is strong, and if the lapse of time is long the inference becomes inevitable and conclusive, that the donor is content not to call the gift in question, or, in other words, that he elects not to avoid it, or, what is the same thing in effect, that he ratifies and confirms it. This view is not only conformable to the well-settled rules relating to other voidable transactions (see the judgment in Clough v. London and North Western Railway Company), but is also warranted by Wright v. Vanderplank and Mitchell v. Homfray."
"Laches looks to undue delay, to any change of position by the defendants resulting from the delay and to the unreasonableness and injustice of stopping the defendants from carrying on doing what they have been doing for very many years. The concept of unconscionability, which, as I shall explain, underpins the doctrine of proprietary estoppel, also appears in formulations of the defences of laches and acquiescence. The change of position aspect of acquiescence and laches is less stringent than the requirement of detrimental reliance in cases of proprietary estoppel. Undue delay by the claimant and the defendant's intervening activities over a long period may suffice to make it unjust to disturb the situation, especially if it is impossible to return the defendants to their original position without some injustice to them."
"41. Proceedings to set aside a transaction on the grounds of undue influence would not normally be barred by lapse of time whilst the influence persists, however long after the transaction. But after the influence has ceased the donor must commence proceedings within a reasonable time
42. It is submitted that in determining whether it is conscionable for C's undue influence claims to proceed, the Court will take into account many of the matters referred to above (albeit under its equitable jurisdiction rather than under ss. 11 and 37 [sic] of the 1980 Act)."
"4. The preliminary issue in relation to this claim is very simple: has the Defendant established laches (so that it would be unjust or inequitable for this claim to proceed)? The burden of proof is upon the Defendant.
5. This equitable defence is well known. In this case the Court has to decide when laches begins. It is plain that laches cannot begin until you are free of the undue influence. That is common ground [It was not, in fact, common ground].
6. It is not clear precisely what period of delay the Defendants rely upon for the laches defence. It cannot start before December 2003 and, in reality, cannot start until much later when the Claimant recovers his health and becomes free from this undue influence.
6.1 On the peculiar facts of this case (and bearing in mind the period of "disability") any period of delay could not begin before June 2005. Letters before action were May 2007. Proceedings were issued on 22nd April 2008.
6.2 The real period that falls to be considered starts on about 28th November 2005 (when the Claimant starts honorary work) or March 2006 (when his counsellor, Mr. Baldwin, was able to reduce the frequency of consultations).
7. What is the correct approach to laches delay. An important question is what prejudice is suffered by the Defendants.
8. In this case there is no prejudice that makes it unjust or inequitable for the claim to proceed."
The Possessions Claim Mark II
"I agree that my claim is in separate parts, as Mr. Jenkins states in paragraph 4. He then goes on to rely upon the fact that when these very substantial sums of money and all my possession [sic] were given to the Defendants they were gifts. My then wife also made similar gifts of all of her assets and property. In short, at about the time we both joined the Centre we gave the Defendants everything we had. The precise dates of each individual gift can be ascertained when the documents are examined. I have given the dates that I believe are correct within my Replies."
Conclusions