House of Lords Victory
for Simon & Nathan Fraser
London, 27th October 2005
Simon & Nathan Fraser of Fraser & Fraser,
a London based leading firm of genealogists and international
probate researchers have been successful in their Appeal
to the House of Lords in connection with the 1841 School
Sites Act.
The case involved
a Deed dated 5th April 1866 which set up a school for
the use of educating the poor of the Parish of St Philip’s,
Canterbury. In accordance with the School Sites Act 1841,
the Deed contained a reverter clause whereby the school
would be returned to the original donors if it subsequently
closed.
A public notice
was put up before the school was due to close in 1995,
and Fraser & Fraser undertook research
in the local community to locate the successors of the
original owners, to ensure they received their entitlement. Fraser & Fraser
fought for the rights of the interested parties after having
obtained contingency agreements from them. The
firm contacted the school and informed it of its position.
However, in an attempt to circumvent the return of the
school to donors, the Canterbury Diocesan Board of Finance
sold the school one month before its closure. The Court
of Appeal rejected this approach in a separate case brought
by Simon & Nathan
Fraser in 2001.
The CDBF persevered
and claimed that for several decades the school had ceased
to be used for the education exclusively of the poor
from the local parish. Since the original deeds specified
this as a condition, the CDBF took the surprising position
of arguing that those entitled to the land should have
insisted that the school be closed down at some point
in the 1940s or 1950s when the school admitted some children
who didn’t fall into the specified category. The
CDBF went on to say that since the original owners had
not forced the school’s closure, the CDBF was claiming
adverse possession of the school, because over 12 years
had passed since the school had failed to exclude certain
children. This line of defence was rejected by the High
Court, however, it was successful in the Court of Appeal.
This ruling was not accepted by the House of Lords. Lord
Hoffmann said “in my opinion the decision of the
Court of Appeal on this point was wrong.”
During the trial
in the House of Lords, one of the Lord Justices questioned
why it should be that the School was arguing that it
should have been closed down because a small number of
its pupils did not fall into the definition of “working class”, reminding the CDBF that
due to rising prosperity in the area it was entirely possible
that there simply were not enough poor children to fill
all available places at the school, especially when considering
the provision of state-funded education that did not exist
when the school was created. The judge stated during the
trial that it must surely have been better for the school
to fill the remaining places with children from families
that were not from the working-classes. He said it was
favourable that the school had remained open for
as long as it had, as it allowed for as much education
as possible. It was right that now that the school had
closed down on its own account, that the school be returned
to the successors of the original owner, as the deed setting-up
the school intended.
All five Law Lords voted unanimously in favour of the
appeal against the CDBF.
The victory by
Fraser & Fraser is significant as it
is the first time the House of Lords has heard a case concerning
the School Sites Act of 1841. It is unlikely that any other
case would have any need to be heard by the Lordships,
and therefore this will be deemed the leading case on the
legislation. It will affect a number of other schools which
were set up under the same Act, as and when they close.
Fraser & Fraser says “we are
pleased that we were able to trace the entitled beneficiaries,
and that we have managed to successfully argue their case
and defend their rights against the board of finance of
such a large institution. It is unbelievable that the school
should have argued that it wanted to keep the proceeds
of the sale by using ‘squatter rights’. This
case should never have gone to trial.”
Background:
The School Sites Act 1841 was passed to encourage grants
of land under one acre for specified educational purposes
with an automatic reverter to the grantor or his successors
on the cessation of such use. It was correctly assumed
that that would result in more land being given for the
intended purpose of education. Fraser & Fraser have
a backlog of other cases where institutions have refused
to return schools upon their closure.
The Legal Counsel:
Christoper Nugee QC & Caroline Furze representing
Fraser & Fraser
Christopher McCall QC & Vivian Chapman representing
the CDBF
The Law Lords on the Appellate
Committee for the case:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
The Canterbury Diocesan Board
of Finance Financial Position (2004)
Tangible fixed assets £5,665,767 *
Investments £5,010,371
Total funds carried forward to 2005 £11,456,801
**
* Please note that this
figure is the market value on the date it was
vested in the board. Historical gifts of land
could therefore be grossly undervalued.
**
This figure contains “Tangible
fixed assets” which may be grossly undervalued.
The debate that some of
the students were not poor:
“Mr Harris’s father, who worked for the local electricity board,
lived in a middle class street and owned his home. A friend of his whose father
was a police inspector, came from a similar home.” The CDBF used the
rateable value of houses to determine if the street was middle-class,
however, Lord Hoffman said “the rateable value of the house was not
a sure guide to the affluence of the occupants because many appear to have
been in multiple occupation or to have included shops”.
Additional quotation from Lord
Walker
“That proviso as to reverter must have been a valuable encouragement,
because landowners by reason of it were thus enabled to ensure that the site
should be used in perpetuity for school purposes, or, if it ceased to be used
for school purposes, that they would get it back. The common sense of that
is obvious” |
