[2025] EWCA Civ 1211

Finally, there is support for CGC’s argument in the purpose of the statute. The purpose of the Statute of Frauds was made clear in its preamble:

“For prevention of many fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury…”

So far as s.7 is concerned, the purpose was evidently to protect landowners from the risk that another person would falsely claim that the land or an interest in it had been transferred to them, or declared in trust for them. I see no reason why the purpose of s.53(1)(b) is not the same. Such changes as were made to the provision do not, in my judgment, suggest any change in its purpose.

There is a debate between the parties as to whether the purpose of s.53(1)(b) extends to the protection of third parties, including creditors, of the landowner. That is of particular relevance to Ground 3 (and, for reasons explained under that Ground below, I do not accept that the purpose does so extend), but it does not matter for the purposes of Ground 1.

Mr Thanki’s submission, that to exclude agents from s.53(1)(b) would be incoherent, is based in part on the lack of a plausible explanation as to why a landowner may have been bound by a disposition of its land effected by an agent, at least where the agent is authorised in writing, but cannot be bound by a declaration of trust evidenced in writing by an agent, even where that agent is authorised in writing.

In my judgment, however, there is greater incoherence on the appellants’ interpretation. No-one suggests that s.53(1)(b) could be limited to agents authorised in writing, and there is no explanation for limiting the circumstances in which a landowner may be bound by a conveyance of its land to the case of an agent authorised in writing, but allowing a landowner to be bound by a declaration of trust over its land by an agent where the agent has no written authorisation. Having regard to the purpose of the section, there is as much risk of fraud for a landowner where it is alleged that a trust was declared by an agent, whose authority to do so is not evidenced in writing, as where it is alleged that the landowner himself declared an oral trust.

The appellants’ submission, that agents authorised only orally are permitted under s.53(1)(b) because it is about evidence, not about formality of execution, does not meet this point.

Mr Thanki’s submission about incoherence was also based on the oddity that, on his submission, an agent could (under s.40) have entered into a written contract to declare a trust, but that would not qualify as evidence of the trust itself under s.53(1)(b). I do not think the existence of these remote possibilities outweighs the greater incoherence I refer to in §‎81 above.

Moreover, in practice, wherever an individual, A, confers authority in writing on another, B, to create a trust over A’s property, the likelihood is that such written authority will itself contain the requisite evidence of the trust. Unusually, perhaps, that is not so in this case, for reasons discussed below in connection with Respondent’s Notice Point 2(b).