James Blann v Cookhill Cricket Club Limited

1. In the village of Cookhill, near the Malvern Hills, they have their own cricket ground, where they have played these last 65 years. As well as a pavilion it has a neighbouring pub, the Nevill Arms, where the players, young and old, and onlookers, can retire after a game. Unfortunately a rift has opened up between those who play and those who used to play. The ‘newcomers’, according to the old club secretary, Mr Smith, do not appreciate the efforts made in the past to secure the ground for future generations.

2. Mr Blann is the current Chair of the Cookhill Cricket Club (‘the Club’). He claims on its behalf that it has a beneficial interest in the ground; the Howard Brazil Memorial Ground (‘the Ground’). As a result, the Club, an unincorporated members club, has, through Mr Blann, applied for the registration of a form A and form II restriction to note and protect its interest. The Respondent company (‘the Company’) has been the registered proprietor of the Ground since 1997 and objects to the registration of any restriction.

3. Mr Blann was represented by counsel, Mr Clegg. The Company was represented by its officers, Mr Smith and Mr Tolley. They both gave evidence on behalf of the Company and were active members of the Club at the time that the Ground was purchased and the Company formed. The Applicant suffers from the fact that neither he, nor any of the current members of the Club, have any direct knowledge of the circumstances pertaining at the time the Ground was purchased. Mr Clegg contended that the majority, if not all, of the evidence in this case was based on contemporaneous documents. His witness, Mr Thomas, was of little assistance given that he simply introduced documents and had only relatively recently become involved with the Club. Background

4. The following background is largely uncontroversial and is drawn predominantly from contemporaneous documentation which the parties took me through.

5. The Club was established in 1946 and moved to the Ground in the early 1960s. It occupied the Ground under a lease from the then owner, Whitbread, the brewer, and hence the nearby public house. In around 1995 Whitbread decided to sell its land in the area, including the Ground, and offered the Ground to the Club.

6. At that time, Messrs Smith and Tolley were key individuals in the Club; as was Mr Brazil, who the Ground was subsequently named after. They were instrumental in procuring the Ground for its future use. Mr Smith was the Honorary Secretary and Mr Tolley, its Chair.

7. On 15 th December 1995, Whitbread wrote to Messrs Brazil and Smith and offered the Club the Ground for £25,000; they negotiated that down to £20,000.

8. The minutes of a meeting of the Club on 28 th October 1996 showed that the members were considering ways to fund the purchase and that this might be through a different vehicle than the Club. It noted that it had been resolved that an application for funding would be made to the English Sports Council and that solicitors should be instructed to draw up a ‘legal framework’ for the purchase of the ground by a ‘Foundation Association’ which would issue 100 debenture shares at £100 and would charge the Club £400 per annum to use the Ground.

9. Mr Smith applied for funding to both the Lottery Sports Fund, through the English Sports Council and to the local district council, Wychavon District Council. He was successful in achieving grants from both; unfortunately it was not enough to cover the entire cost. There was a shortfall of £8,000.

10. Both of those funding applications were made on behalf of the Club. The offer from the English Sports Council made it clear that the money was to be spent on purchasing the Grounds, it also said ‘ 11.10 If, during the acquisition of the Facility, there is a change to the … ownership of the Facility or the legal identity of the Organisation, a new grant application must be submitted …’ ’11.12 The Facility or any part of it will not be sold, transferred, leased or otherwise disposed of, … without the prior written approval of the English Sports Council …conditional upon the provisions of the following paragraph being satisfied 11.13 In such circumstances of sale, transfer lease or other disposal or change of use within a period of 7 years from the date of purchase of the Facility: 11.13.1 If the Facility or part of the Facility is sold or transferred, the Organisation shall ensure that the sale or transfer will be at full market value … An appropriate proportion of the proceeds … will be surrendered to the English Sports Council..’

11. Similar provisions were made for a clawback in the event that the Club failed to adhere to the terms of the agreement.

12. On 3 rd September 1997, Messrs Tolley and Smith signed the acceptance letter for the grant on behalf of the Club.

13. The Club membership was not able to raise the shortfall. A letter from the Club to its members and friends dated 16 th September 1997, set out that those contributing to the purchase would have their investment protected and would ‘ become owners of the ground ’

14. On behalf of the Club, Mr Smith instructed a firm of solicitors, Browning & Co, to undertake the conveyancing and to procure a company to purchase the Ground.

15. On 31 st October 1997, Mr Smith on behalf of the Club wrote to Browning & Co with regard to the purchase and the raising of funds, he said ‘ On completion of the purchase these share holders will in effect own the ground and Tec has been in touch with Accountants who are to advise on the setting up of a suitable company structure.’

16. The minutes of the Club meeting of 17 th November 1997 record that an accountant, Mr Young, had been invited to address the members to give financial advice. He said that the Club couldn’t buy the land and that the choice was between: a friendly society; a company by guarantee; or a limited company. The latter option was passed on a vote, without objection, by the members of the Club at that meeting. It was also noted that a future meeting would be arranged with the shareholders to decide on a number of matters, including to ‘… set an agreeable a rent for the ground.’

17. Messrs Smith and Tolley caused the Company to be incorporated on 25 th November 1997 to further the aims of purchasing the Ground. The use of a company for those purposes satisfied a number of objectives. It complied with the advice they had received from the accountant that they could not hold the land through the Club. Importantly it also provided a means by which those who had contributed to the shortfall could secure their investments; they were given shares in the Company. This, as Messrs Smith and Tolley explained, allowed contributions to be given from non-Club members. Messrs Smith and Tolley became officers of the Company and it was run in tandem with the Club. Mr Smith said in evidence, they were not focused on the business side of matters, they just wanted to play cricket.

18. On 12 th December 1997, Mr Smith, on behalf of the Club wrote to Browning & Co to update them on the position with the Company formation, he informed Browning & Co that ‘ …it is the wish of the membership that Cookhill Cricket Club Ltd should in future organise and own the cricket field.’

19. On 29 th December 1997, Browning & Co wrote to the English Sports Council with a completion statement and undertook to hold the grant monies on trust for them until they were paid in accordance with the award letter. The completion statement was in the name of the Company, not the Club. Mr Smith said in evidence that by this point the Company had been set up and he believed Browning & Co had informed the English Sports Council of the change in identity of who was to purchase the Ground.

20. The Ground was then purchased by the Company. The shortfall was made up by a mixture of Club members and non-Club members; each of those received shares in the Company commensurate with their contribution.

21. On 2 nd March 1998, there was a meeting of the Company. The minutes record a discussion of the funding for the purchase of the Ground. It was noted that ‘ The purchase is otherwise freehold without restriction. JR sough information regards the terms of the Lottery grant, which are pertinent for use of the ground for sports purposes, these generally expire after a seven year period.’ It was also commented that the ownership of the pavilion and equipment was to be those using the field.

22. The following day Mr Smith wrote to Mr Young, the accountant. He reported back on the meeting and said ‘ It was the consensus of the meeting that we did not wish at this stage to intervene in the running of the cricket club. As such it was our intention to simply own the ground. The gear and pavilion had been provided by members past and present …’

23. On 13 th March 1998, the Ground was registered in the name of the Company.

24. The abbreviated financial statements for the Company for the year end 20 th November 1998; i.e. covering in the year in which the Ground was purchased, showed the following: a. The Directors were Messrs Smith and Tolley and Mr Smith was also the Secretary; b. The accountant was Derek Young & Co; c. The total called up share capital was £8,000; d. The fixed assets were: additions £21,138, less grants received £14,777 giving a net book value as at 30 November 1998 of £6,361.

25. I was also provided with the abbreviated un-audited accounts for the year end 30 th November 2007. The Company officers remained the same and the Directors’ Report provided ‘ The company had continued, to exist solely as a beneficiary to the village cricket club. ’ Unlike the 1998 accounts, no accountant was listed. The called up share capital was £8,000, and the total assets and shareholder fund was £6,141. Finally the tangible fixed assets were valued at £6,361. The drafting of these accounts appeared less professional than the earlier ones.

26. There is some correspondence in later years from which it is clear that the Club used the Ground on a yearly rolling basis. This was expressly referred to in a letter from the then Club chairman, Mr Harris to Mr Smith dated 22 nd January 2017. In that letter, Mr Harris expresses the hope that they could obtain a 25 year lease as that would open up various funding opportunities for them. Mr Thomas, Mr Blann’s witness, did not consider there had been any such leasing arrangement, but the documents were clear in that regard.

27. It is not clear why, but the aspiration for a 25 year lease did not progress into any firm arrangement. It seems that some members of the Club then sought to dig a little deeper into the initial funding of the purchase of the Ground and contacted Sport England. They responded on 1 st February 2021 stating that not only had a similar enquiry been made in 2014, but that ‘ due to the age of the award, our liability period had already expired and we are unable to enforce anything as our award was with the club and not the incorporated entity.’ Resulting Trust

28. Mr Blann’s statement of case at paragraph 18 asserts an interest for the Club through either a resulting or constructive trust; the latter said to arise on a Pallant v Morgan equitable basis. At the hearing, only a claim based on a resulting trust was pursued. The case being that the funds used to purchase the Ground were the Club’s funds and therefore a resulting trust arose in its favour.

29. Mr Clegg submitted that the funds received from the English Sports Council and the District Council should be treated as the Club’s own funds. In that regard he relied on Re Recher’s Will Trusts [1972] Ch 52 . In that case, Mrs Recher had left a donation to ‘The Anti-Vivisection Society, 76 Victoria Street, London, SW1.’ However, by the time it came to distribute the donation, there was no such society. It had merged (or more accurately been absorbed) with a larger association ‘The National Anti-Vivisection Society of 27 Palace Street, London, SW1’. Significantly for the present matter, both societies were unincorporated non-charitable associations. Brightman J considered that a donation to such an association, where it was not ‘ accompanied by any words which purport to impose a trust, … takes effect in favour of the existing members of the association as an accretion to the funds which are the subject-matter of the contract which such members have made inter se, and falls to be dealt with in precisely the same way as the funds which the members themselves have subscribed. ’ (p539D-F).

30. This line of submission was explored in the cross examination of Messrs Smith and Tolley when they were challenged on their assertion that the Club had not provided any funds for the purchase of the Grounds. It was said that the majority of the funds had been raised through the Club. Both accepted that that is how the funds had been raised; i.e. through an application on behalf of the Club. Mr Smith suggested though that at the end the English Sports Council had been notified of the change in purchaser from Club to Company. This was disputed by Mr Blann.

31. Mr Clegg said that the Company’s case at its highest was that is shared ownership of the Ground with the Club; commensurate with their respective contributions; i.e. the Club had the benefit of the grants, the Company the benefit of its shareholders’ contributions. There was, he said, no evidence that the Club intended to gift its money to the Company. Mr Clegg submitted in his skeleton argument that ‘… there can be no suggestion on the evidence that the monies which accrued for the benefit of the members from the Sports Council and Wychavon DC were gifted by the members to the Company ’ and asserted that the minutes of the meeting of 17 th November 1997 was not ‘ consistent with a decision being taken that the Ground be held by the Company other than for the benefit of the Club .’

32. That was said to be sufficient to give rise to a resulting trust and to that end he relied on Snell’s Equity para 25-003 for a succinct statement of the law ‘ “[W]here A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of joint purchase by A and B in shares proportionate to their contributions.” In both kinds of transaction, the facts giving rise to the presumption of a resulting trust are that A transfers property to B for which B provides no consideration. The trust arises by operation of law to give effect to presumption that A did not intend B to take the property beneficially. The presumption can be rebutted by proof that A did in fact intend B to take the property as beneficial owner. This intent may be established by direct evidence, or to a degree by reliance on the presumption of advancement.’

33. Therefore, I must consider: a.) can the grants be considered to be sums contributed by the Club; and b.) if so, did that give rise to a resulting trust in the Club’s favour or was there evidence rebutting the presumption that the Club intended to retain an interest in the Ground. Club’s Money

34. I do not consider the grants to be funds that the Club can rely on to establish a resulting trust. I say that for the following reasons. Firstly, they were not unrestricted funds paid to the Club. They were paid for the sole purpose of acquiring the Ground. Had that purchase not completed, the money would have been paid back to the respective councils; as indicated by the conveyancing solicitors correspondence that they were holding the money on trust for the English Sports Council pending completion. That scenario is very different to that in Re Recher . There the sums paid were intended to be an unrestricted gift, with the result, as Brightman J considered, that they would accrete the association’s fund to be dealt with in accordance with the contract that governed the members inter se. In this case the caveat in Brightman J’s decision applies in that a trust was imposed on the funds. In those circumstances the grant money was either redirected for the benefit of the Company or any benefit or right to those sums was retained by the respective councils. In either case, it did not fall to the benefit of the Club.

35. Secondly, the grant money was paid to the solicitors who had originally been acting for the Club, but then acted for the Company. In those circumstances, I think it likely that the solicitors would have confirmed with both sources of grant funding that they were content for the Company to purchase the Ground instead of the Club. Whilst there was no express communication in the documents provided to me, it was telling that the completion statement was clearly in the name of the Company and the solicitors had been liaising with the English Sports Council and provided them with that statement. I think it unlikely that they would not have cleared that change in purchaser with them or with the District Council. I do note the provisions in the award from the English Sport Council, requiring a fresh application to be made if there was a change of entity before acquisition, but I do not consider that that was strictly adhered to in this case. I recognise that there is limited documentary evidence to support this, but this relates to matters that occurred around 30 years ago in the context of an amateur cricket club and it is unsurprising that not all documents are available. In that regard it is open to me to make an assumption along the lines suggested by Mr Smith, that if the conveyancing solicitors were aware of the change in purchaser, that they would have communicated the same not just to Whitbread, but also the both councils.

36. Finally on this point, the grant from the English Sports Council was subject to a clawback in the event that the Ground was later sold. It is therefore difficult to see how the Club could properly consider that the grant was to be treated as its contribution to the purchase. At best it could say that it had procure that payment, but then in reality that had also been as a result of the work of Mr Smith. Resulting Trust

37. Even if I am wrong on that, my view of the contemporaneous documentation is that it is more likely that it was intended for the Company to own the Ground outright.

38. The individuals in control of both Club and Company were aligned at the time of purchase. However, there was a concern over the shortfall and how that could be protected. That certainly creates a starting point for the view that the Company did not intend to hold the Ground entirely on trust for the Club. Messrs Smith and Tolley’s evidence was relatively clear in that they both were perturbed that the Club was not able to raise the funds from its own members. They were also clear that it was only possible to raise the necessary funds from outside the Club and that in those circumstances ownership was to move from the Club to the Company. That was in order to secure the investments of those contributing.

39. Further, they had been instrumental in obtaining the grant funding and they spoke on behalf of both entities. Their correspondence is a good indication that the Club intended the Company to own the Ground entirely. There is the initial indication on 28 th October 1996 that the Club would be charged £400 per annum to use the Ground; a proposal that was inconsistent with the Club owning the Ground.

40. There is also the letter of 31 st October 1997 in which Mr Smith states that the Company ‘ in effect own the ground’ . Further on 12 th December 1997 he said that the Company would ‘ own the cricket field .’ Both of these statements, from non-lawyers, convey the impression of absolute ownership and not one that is subject to a trust in favour of the Club.

41. The view that the Company owned the Ground entirely is also consistent with the fact that the Club did lease the Ground for use on an annual basis and that by contrast it was recognised that the pavilion and the equipment were owned by the Club.

42. Mr Clegg relied on the Company’s accounts to show that the Company did not consider that they owned the Ground. In particular he relied on both the asset value being well below the market value and the Directors’ Report in the 2007 accounts.

43. Whilst this was initially a persuasive argument, on reflection I do not consider that it shows anything in terms of ownership. The first set of account for the year end November 1998 is reflective of the position that the grant funding was not an outright gift, but in the event of a sale of the Ground, money would be paid back to the councils. The note to the accounts confirms that the additions were £21,138 (i.e. the value in the hands of the Company), less grants received of £14,777. There is no comment about any sums owed or held on trust for the Club. The reference is to the total asset value less the grants.

44. I also do not consider the later accounts to assist the Club. My impression was that they had been prepared by Messrs Smith and Mr Tolley without professional input and they had borrowed from the figures in previous years accounts. Further, Mr Clegg relied on the Directors’ Report that the Company existed solely as a beneficiary to the Club. However, even if construed as intending the opposite (which it probably did), my impression of that statement was that it was a statement of goodwill and indicative of the fact that the Company had been formed to assist the Club and work with it, not that it held all its assets for the Club. Conclusion

45. Accordingly, I do not consider that the Club has any interest in the Ground and I will direct the Registrar to cancel the original application.

46. If either party wishes to make an application for costs they should do so within 14 days of receipt of this decision and further directions will then be given. By order of the Tribunal Judge Dovar Dated this 16 th September 2025