Viscount Simonds and Lord Radcliffe in Grey v IRC [1960] AC 1

Viscount Simonds and Lord Radcliffe in Grey v IRC [1960] AC 1
Please read the following extracts from the speeches of Viscount Simonds and Lord Radcliffe in Grey v IRC [1960] AC 1 and then answer the questions which follow.
(Brief facts: Mr Hunter was the sole beneficiary of a bare trust of shares. His trustees were also trustees of six other trusts in favour of Hunter's grandchildren. Hunter gave oral directions to his trustees to hold the shares on the trusts of the grandchildren's settlement. The question for the House of Lords was whether Hunter's oral direction to his trustees was a purported disposition of an equitable interest under a trust and therefore void because not in writing.)
Viscount Simonds
These facts give rise to the plain question whether the oral directions given by Mr Hunter ... were effective or were, having regard to section 53(1)(c) of the Law of Property Act, 1925, wholly ineffective. ... [W]ere the ... oral directions given by Mr Hunter dispositions by him of the equitable interest in the shares held by the appellants as nominees for him?
If the word 'disposition' is given its natural meaning, it cannot, I think, be denied that a direction given by Mr Hunter, whereby the beneficial interest in the shares theretofore vested in him became vested in another or others, is a disposition. But it is contended by the appellants that the word 'disposition' is to be given a narrower meaning and (so far as relates to inter vivos transactions) be read as if it were synonymous with 'grants and assignments' and that, given this meaning, it does not cover such a direction as was given in this case. As I am clearly of the opinion, which I understand to be shared by your Lordships, that there is no justification for giving the word 'disposition' a narrower meaning than it ordinarily bears, it will be unnecessary to discuss the interesting problem that would otherwise arise.
My Lords, the argument for narrowing the meaning of 'disposition' was that the Law of Property Act, 1925, was a consolidating Act, that among the Acts which it consolidated was the Statute of Frauds 1677, section 9, that that section enacted that 'all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect,' and that therefore the word 'disposition' in section 53(1)(c) of the Act of 1925 is to be given the same meaning as would be given to 'grants and assignments' in section 9 of the Statute of Frauds.
My Lords, the principles applicable to the construction of a consolidating Act are not in doubt. The presumption is that such an Act is not intended to alter the law, but this prima facie view must yield to plain words to the contrary .... If the Law of Property Act, 1925, was a typical consolidating Act, the question would be whether the alteration from 'grants and assignments' to 'disposition' changed the law by enlarging the area of void transactions - a question that might not be easy to answer. But the Act of 1925 cannot be thus regarded. It was, it is true, a consolidating Act, but it was, with a number of other Acts, the culmination of a body of legislation by which a large part of the law of real and personal estate was profoundly altered. ... [The Act of 1925 must therefore] be construed so as to give each word the meaning proper to it in its context. So construed the word 'disposition' in section 53(1)(c) has the natural meaning which I attributed to it at the opening of this opinion. ...
The appeal must, in my opinion, be dismissed with costs.
Lord Radcliffe
My Lords, if there is nothing more in this appeal than the short question whether the oral direction that Mr Hunter gave to his trustees ... amounted in any ordinary sense of the words to a 'disposition of an equitable interest or trust subsisting at the time of the disposition,' I do not feel
any doubt as to my answer. I think that it did. Whether we describe what happened in technical or in more general terms the full equitable interest in the 18,000 shares concerned, which at that time was his, was (subject to any statutory invalidity) diverted by his direction from his ownership into the beneficial ownership of the various equitable owners, present and future, entitled under his six existing settlements.
But that is not the question which has led to difference of opinion in the courts below. Where opinions have differed is on the point whether his direction was a 'disposition' within the meaning of section 53(1)(c) of the Law of Property Act, 1925, the argument for giving it a more restricted meaning in that context being that section 53 is to be construed as no more than a consolidation of three sections of the Statute of Frauds, sections 3, 7 and 9. So treated, 'disposition,' it is said, is merely the equivalent of the former words of section 9, 'grants and assignments,' except that testamentary disposition has to be covered as well, and a direction to a trustee by the equitable owner of the property prescribing new trusts upon which it is to be held is a declaration of trust but not a grant or assignment. The argument, concludes, therefore, that neither before January 1, 1926, nor since did such a direction require to be in writing signed by the disponor or his agent in order to be effective.
In my opinion, it is a very nice question whether a parol declaration of trust of this kind was or was not within the mischief of section 9 of the Statute of Frauds. The point has never, I believe, been decided and perhaps it never will be. Certainly it was long established as law that while a declaration of trust respecting land or any interest therein required writing to be effective, a declaration of trust respecting personalty did not. Moreover, there is warrant for saying that a direction to his trustee by the equitable owner of trust property prescribing new trusts of that property was a declaration of trust. But it does not necessarily follow from that that such a direction, if the effect of it was to determine completely or pro tanto the subsisting equitable interest of the maker of the direction, was not also a grant or assignment for the purposes of section 9 and therefore required writing for its validity. Something had to happen to that equitable interest in order to displace it in favour of the new interests created by the direction: and it would be at any rate logical to treat the direction as being an assignment of the subsisting interest to the new beneficiary or beneficiaries or, in other cases, a release or surrender of it to the trustee.
I do not think, however, that that question has to be answered for the purposes of this appeal. It can only be relevant if section 53(1)(c) of the Law of Property Act, 1925, is treated as a true consolidation of the three sections of the Statute of Frauds concerned and as governed, therefore, by the general principle, with which I am entirely in agreement, that a consolidating Act is not to be read as effecting changes in the existing law unless the words it employs are too clear in their effect to admit of any other construction. ... [I]n my opinion, it is impossible to regard section 53(1)(c) of the Law of Property Act, 1925, as a consolidating enactment in this sense. ...
The Law of Property Act, 1925, itself was, no doubt, strictly a consolidating statute. But what it consolidated was not merely the Law of Property Act, 1922, a statute which had itself effected massive changes in the law relating to real property and conveyancing, but also the later Law of Property (Amendment) Act, 1924. The Statute of Frauds sections had not been touched by the Act of 1922; but they were in effect repealed and re-enacted in altered form by the operation of section 3 of the Act of 1924 and the provisions of Schedule III to that Act. The Schedule is divided into two Parts, the contents of Part I being described simply as 'Amendments' and the contents of Part II being headed by the description 'Provisions facilitating consolidation. ...' I suppose that the authors of the Act of 1924 understood what was the significance of the division of Schedule III into these two Parts under their different headings. I cannot say that I do. Each Part, when examined, is seen to contain numerous amendments of various previous statutes relating to real property and conveyancing, apart from the Act of 1922 itself, and in this sort of matter I cannot see how one can satisfactorily measure the degrees of substance involved in the various changes. The point is that they were avowedly changes. It is paragraph 15 of Part II of Schedule III which deals with the Statute of Frauds; and though the introductory words do seem to suggest that the sections concerned are only being re-enacted in different words, it is apparent,
when they are read through, that this is not so and that alterations of more or less moment are in fact being made. This new wording is what is carried into section 53 of the Act of 1925.
For these reasons I think that there is no direct link between section 53(1)(c) of the Act of 1925 and section 9 of the Statute of Frauds. The link was broken by the changes introduced by the amending Act of 1924, and it was those changes, not the original statute, that section 53 must be taken as consolidating. If so, it is inadmissible to allow the construction of the word 'disposition' in the new Act to be limited or controlled by any meaning attributed to the words 'grant' or 'assignment' in section 9 of the old Act.