[2025] EWCA Civ 1211

I have already noted the two key differences between s.7 and s.53(1)(b): the change from “the party” to “some person”, and the removal of the words “or else they shall be utterly void and of none effect”. As to the second difference, I address this in detail under Ground 3 (and merely note here that it was in fact no change from how s.7 had been applied for centuries before).

As to the first difference, on the basis of my conclusion as to the meaning of s.7 of the Statute of Frauds, the appellants can succeed only if they establish that this was intended to expand the range of persons whose signature sufficed for the purposes of evidencing the creation of a trust to include agents. For the following reasons, I do not think the change can bear the weight put upon it by the appellants.

First, if the reference to “some” person was intended to expand the range of persons whose signature sufficed, so as to encompass signature by an agent, this was an odd way to do it. That is particularly so, given the adjacent provision, paragraph (c), made just such a change to the existing law (s.9 of the Statute of Frauds) and did so by making express reference to agents.

Second, although we were not shown any pre-legislative materials which explained the change from “the partie” to “some person”, there is at least a plausible explanation in the fact that case law had established, by 1925, that where a trust was declared by one person, a settlor, upon conveying property to another, as trustee, to hold on trust for a third person, the writing to satisfy s.7 of the Statute of Frauds could be provided either by the settlor or by the trustee: see Professor T.G. Youdan in Formalities for Trusts of Land, and the Doctrine of Rochefoucauld v Boustead (1984) 43(2) CLJ, p.306, at p.317, and Graham Virgo, The Principles of Equity & Trusts, 5^th ed., at pp.123-124. That was certainly the case in Gardner v Rowe (considered in detail below).

Third, although the comparison with sub-paragraphs (a) and (c) is not in itself persuasive (for the reasons advanced by the appellants – see §‎27 above, and as explained by Charles Harpum in the article referred to at §‎43 above), the comparison between s.53(1)(b) and s.40 LPA 1925 is more compelling. The latter is the successor to s.4 of the Statute of Frauds. It has since been amended, but in 1925 it provided that no action may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought, or a memorandum or note thereof, is “in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised.” Like s.4 of the Statute of Frauds, the person did not need to be authorised in writing. It cannot, therefore, be seen as a limitation on the otherwise applicable rule as to the power of a person to act through an agent. The contrast with s.53(1)(b) is important, for similar reasons to those given above in relation to s.7, and it suggests that where the legislature intended signature by an agent to suffice, this was stated in terms.