Brake v Cheddington Court Estate: The rights of bare trustees

When a case gives rise to an interesting point of law it is usually in the application of established legal principle to novel facts. It is after all through the application of old principles to avoid facts that the law develops. As Lord Diplock observed, “that is the beauty of the common law; it is a maze and not a motorway”, each new case setting a brick in the road as it goes. Sometimes, however, the question is not so much as to where the road is going but where it’s been; from time to time, it is necessary to look back at the historic evolution of the law to see how it must now be applied. Brake v Cheddington Court Estate Ltd [2022] EWCA Civ 1302 provides a recent example. The case concerned the nature of a bare trustee’s right to possession of land and, more specifically, whether the trustee was entitled to possession as against the absolute beneficial owner. To answer this, the court was required to go back to first principles and consider the distinction between legal and equitable rights and the effect on those rights of the Judicature Act 1873.