Introduction

Estoppel cannot be used to circumvent the statutory requirements for execution of deeds, where the defect in execution is apparent on the face of the deed.

Briggs v Gleeds is a pensions dispute, but it is relevant to banks and financial institutions because it concerns the formalities for executing deeds, which are, of course, frequently used in finance and capital markets transactions.

There has been an increased focus on the statutory requirements for execution of deeds since the Mercury case (R (on application ofMercury Tax Group Ltd) v HMRC [2008] EWHC 2721 (Admin)), which has increasingly led to a formalistic approach to execution. Briggs v Gleeds reiterates the key practice point: follow the statutory requirements for the execution of deeds to the letter. The court applied the statutory requirements strictly even though the result was to unravel nearly 20 years’ worth of documentation. It held that only certain requirements may be circumvented by estoppel arguments: those where the defect is not one that is ‘apparent’ on the face of the deed. It is difficult to predict how the courts will apply the dividing line between apparent and non-apparent defects in practice.

Facts

The case concerned a retirement benefits scheme which had been established in 1974 as a final salary scheme (the ‘Scheme’). It was discovered that 30 deeds of amendment and deeds for the appointment and retirement of trustees had been improperly executed between 1991 and 2008. The partners’ signatures had not been witnessed, contrary to s.1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 (the ‘Act’), which provides:

‘An instrument is validly executed as a deed by an individual if, and only if, (a) it is signed (i) by him in the presence of a witness who attests the signature …’.

The trustees issued a Part 8 claim to determine whether the deeds were effective. If not, the Scheme’s deficit could be increased by £45 million. The claimants argued that, although the deeds were improperly executed, they were effective on one or more of the following grounds.

Estoppel by representation: the scheme administrators had represented that the law was such that the deeds could properly be executed in the manner in which they were executed; that such representations should be attributed to the trustees, since the administrators were acting on the trustees’ instructions; and that, by relying on those representations, an estoppel had arisen precluding the trustees (and members) from challenging the execution of the deeds.

Estoppel by convention: there was an estoppel by convention precluding the members from denying that they had accrued benefits on the basis of the defective deeds.

Extrinsic contracts: the members had contractually bound themselves to accept benefits in accordance with the defective deeds by signing forms agreeing to the terms of the documents.

Decision

Newey J. held that estoppel could not be used to circumvent the statutory requirements for execution of a deed on the particular facts of the case. The following points are of note.

An estoppel by representation can be founded on a statement of law and the rule to the contrary did not survive the House of Lords decision in Kleinwort Benson v Lincoln City Council [1992] 2 AC 349. However, it is still necessary to show that the representation is not simply one of opinion (i.e. a statement of opinion as to the law may found an estoppel that prevents the person from denying that was his opinion, but not that it was the law) and to show reasonable reliance.

Estoppel by representation cannot be invoked where the relevant document does not even appear to comply with the Act. There was scope for estoppel where the deed was ‘apparently valid’ (e.g. if the attestation were somehow defective), but not here where the defect was apparent on the face of the document. Moreover, the scheme administrators could not be said to have made representations on behalf of the trustees or members of the Scheme in relation to the execution of the defective deeds.

Estoppel by convention had not arisen because the members merely passively accepted the existence of the defective deeds, rather than actively agreeing to them.

In signing various forms, members were exercising rights they thought they had under the Scheme, not accepting or making any contractual offer to vary the terms of the Scheme (except in respect of one amendment agreed by certain members).

Discussion

The limitation on estoppel by representation, namely that the defect must not be apparent on the face of the document, appears difficult to delineate in practice and harsh in effect. It is artificial, in the sense that, although the absence of a witness may be apparent, it may not be apparent to a non-lawyer that this invalidates the deed. Reliance may therefore be placed on a document which a court may later find contains an apparent defect.

The practical effect of this judgment is that some statutory requirements of deeds will be applied strictly and some may be circumvented by estoppel arguments, depending on whether the requirement is one that is ‘apparent’ on the face of the deed. However, the application of this principle may be difficult to predict in practice.

Banks and financial institutions should be aware that estoppel is a possible argument where there is later discovered to be a defect in the execution of a deed, but that the boundary of this argument is unclear. Accordingly, they should continue to take a strict approach to compliance with the formal requirements and execution of deeds generally.