Some scholars believed that Lord Denning, the famous Master of the Rolls and Court of Appeal judge, used to look at the cases that came before him and decide what the outcome should be; he then set about looking for the Case Law to back up his view. This of course goes against the traditional approach of listening to the submissions put by each side’s advocate and then reaching a decision.
Problems can however be resolved on some occasions by taking this backwards style approach, and during my practising career, I succeeded more than once by using this method.
Working in a rural practice, I often dealt with the estates of farmers who had died, and needed to persuade the Inland Revenue Capital Taxes Office (as HMRC Capital Taxes was then called) that there was no IHT to pay due to Agricultural Property Relief (APR) and Business Property Relief (BPR) bringing the chargeable value of the estate down below the nil-rate band. Then, as now, one had to consider the “Character Appropriate Test” and non-agricultural value in the farmhouse, as well as convincing the Case Officer that the dwelling was indeed “occupied for agricultural purposes”. Things got easier with the advent of transferrable nil-rate bands giving up to £650,000 available before IHT started.
In one case, the farmer who had died was a widower and apart from the farmhouse, there was another dwelling his son occupied. Claiming APR on two houses always presented a problem on small Peak District farms as they were rarely big enough in the eyes of the District Valuer to support two families; indeed in this case the son had a job away from the farm driving a milk tanker. However, he fitted this in between helping his father milk over 120 dairy cows. Dad was over 80 when he died and I submitted a claim for APR for both dwellings on the basis that one man – never mind one in his 80’s – could not possibly tend to and milk 120+ cows on his own and would have had to employ a farm worker but for the son’s help. Rather than leaving it to the Capital Taxes Office to go through the IHT400 in the traditional way, with Additional Information on the last page, I inserted my justification for claiming APR on both dwellings at the front of the form, concluding the submission by inviting the CTO to agree simply that the chargeable estate was below £650,000. The back-to-front approach paid off as we had official clearance within a month of submitting the papers. I like to think that putting my arguments at the start of the form meant that I held the psychological high-ground from the outset, rather than having to face the uphill struggle of dissuading the Case Officer from any conclusions to which he had already (erroneously) jumped before reaching the Additional Information section of the form.
Although I spent my entire career doing non-contentious work, I did once solve a boundary dispute by the back to front method whilst covering for a litigation colleague who was on annual leave. Our client was claiming that some land belonging to an old Victorian factory he had bought as a development project had been poached by the neighbour to the rear. On the face of the Land Registry filed plan, it looked to be an open-and-shut case. The 1880’s conveyance of the land on which the factory was to be built did not have a plan but described the site as having an area of so many square yards with a frontage of so many feet to the public highway and a depth of so many feet from said public highway. In those days pre-registration Deeds were handed over on completion with the Land Certificate, and in my view discarding them is as sacrilegious as burning the tape of the full 90 minutes of the 1966 World Cup Final because someone has uploaded a 20 minute film of the best bits. Anyway, our client had measured the site and found it to be a good six feet short of its described depth and the scaling off of the filed plan supported it. The rear neighbour was however adamant that no land had been poached when he’d replaced the boundary fence the previous year. Solicitors were therefore instructed.
Being a fan of Time Team on Channel 4, I began to wonder about the history of the site and what might have changed in the locality between the date of that Conveyance and first registration at the Land Registry. (It was too far away to go and do a site visit, and there was no Google Streetview at that time). Luckily, I knew someone who worked for a long established land agent in the town in question, so I rang him up to ask if they had any old 1:2500 County Series OS sheets from before 1900. The oldest one he turned up was from 1912. He sent me a photocopy of the part with the factory on it, which I recopied onto some tracing paper and laid it over the filed plan which was taken from the early National Grid 1970’s OS map – also conveniently scaled 1:2500. I discovered that at some time during the period between the two maps being drawn, the road fronting the site had been widened and guess what – it was by about 6-8 feet. It seemed that although it was now right next to the highway pavement, the factory’s front elevation wall was originally built a short distance back from the road.
I sent a copy of my findings to our client. He was happy the issue had been resolved, as indeed was the neighbour. When my colleague returned from leave, he readily acknowledged that he’d never thought about trying to source a map the same age as the conveyance, and he’d also never wondered if anything had gone from the front of the site, having been instructed that the dispute concerned the position of the neighbour’s new fence along the rear boundary.
Solutions are not always found where we would expect them to be found – as Lord Denning probably knew….