England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HUDDERSFIELD COUNTY COURT
(HHJ FINNERTY)

		Royal Courts of Justice Strand London WC2 15th March 2001

15th March 2001
1. LORD JUSTICE SEDLEY: This application, which I say at once is not going to succeed, is the last stage in the wreckage of a family relationship which has foundered, (and it is not the first of its kind to do so) on the rocks of litigation.
2. Mrs Boyd was the tenant of a small council flat in Huddersfield. In 1994 her son Billy, the defendant, moved in with her. The following year she and he agreed that she would exercise her right to buy the flat. He would pay the heavily discounted price, £7,800, as against the full value of £26,000, using an Allied Dunbar mortgage which he obtained. It was to be insured, on the payment by him of the premiums, against his premature death. His mother would then be entitled to live there for the remainder of her life. Those facts were found by the judge on evidence before him. There can be, in my judgment, no viable appeal against them.
3. This is so notwithstanding the fact that Mr Piers Hill, appearing today for the claimant, has pointed out, that the evidence was not solid and could well have been construed by the judge in an opposite sense from that in which he did construe it. The judge might equally acceptably have found that the son was buying the flat for the mother and the mother was going to leave it to the son in her will. But that is not what he found.
4. Nor, in my judgment, is there any arguable error of law in his characterisation of these facts as establishing a constructive trust vested in Mrs Boyd of the whole beneficial interest for her son, who in return (and this went to detriment) was to live there, to look after her and to pay the mortgage and the life insurance premiums. This was subject to two further issues to which I will come in a moment.
5. To complete the history, in 1998 Mrs Boyd had to go into a residential care home run by Kirklees District Council. They are under a statutory duty to charge residents for accommodation if they have the means to pay. Kirklees apparently concluded that this flat was a realisable asset of the mother. By now, however, she was incapable of managing her own affairs. So in 1999 her daughter, the claimant, Mrs Strickson, who is of course the defendant's sister, was appointed her receiver by the Court of Protection. In that capacity Mrs Strickson sought possession of the flat in order to be able to sell it to pay for the mother's local authority accommodation.
6. It is a remarkable fact that the local authority, for whose sole benefit this exercise has been undertaken, has not been asked to underwrite the costs of seeking possession of the flat. Instead Mrs Strickson, funding the litigation although she personally had nothing to gain from it, went all the way to the county court where she lost.
7. The reason explained to me today by Mr Hill, and I accept it without hesitation, is this. The sister in the nature of things knew nothing about the arrangement her brother had arrived at with their mother. When she went to solicitors, the solicitors wrote asking him to explain it. For the better part of two years he simply ignored the correspondence. In consequence the sister got the Court of Protection's authority to bring these proceedings. It was only when the defence and counterclaim were filed that the nature of the defendant's case became apparent. Mr Hill at that stage took the view that it was wanting in particularity and not convincing, so that the possession claim was viable. It is only since losing and being ordered to pay costs that the sister has obtained legal aid, which she did in order to lodge this application for permission to appeal. Legal aid, however, was last week withdrawn on grounds of proportionality: the reason will become apparent in a moment. Mr Hill has nevertheless continued, acting now pro bono, so that he can see this application through. He deserves the thanks of his client and of this Court for doing so. His submissions, like his skeleton argument, have been assistance to me.
8. Judge Finnerty, in the Huddersfield County Court on 14th November 2000, in a judgment, if I might say so, of exemplary conciseness and clarity dismissed the claim for possession. On the defendant's counterclaim he declared the beneficial title to be vested in the defendant absolutely, subject to the rights and obligations which I have mentioned. He ordered a conveyance of the legal title forthwith into the defendant's sole name. Inevitably he then ordered the claimant to pay the defendant's costs upon a standard basis, limited, because of the defendant's not entirely helpful conduct in response to the solicitor's letters, to 75 per cent of the total.
9. In the result, sister has been set against brother to no good end. Since the judgment Mrs Boyd has died and any right to possession has passed to her executors. In consequence the only thing that Mrs Strickson can gain from an appeal is a reversal of the costs order, but if that is to happen it must be on the basis that judgment ought to have gone in her favour and not against her below.
10. Mr Hill in a very full skeleton argument has sought, first, to reargue the nature of the arrangement. It is sufficient for me to say that I am in agreement with Dyson LJ, who considered this application on the papers and concluded that the endeavour was hopeless. So, in my view, is any endeavour to overset the judge's characterisation of the legal and equitable nature of the arrangement, whether in relation to the timing of the agreement or its supposed unconscionability, or his determination of the defendant's detrimental reliance upon it. Contrary to what Mr Hill has sought to submit, it seems to me that all of these issues were properly addressed, albeit briefly, by the judge and entirely tenable conclusions reached by him upon them.
11. The question of detriment is dealt with on page 4 of the judgment where the judge treats as detrimental the move from rent-free accommodation in the flat to the assumption of responsibility for mortgage and life insurance premiums. On the question of unconscionability, it is clear at the conclusion of the judgment that it is in the light of his earlier fact findings that the judge takes the view that it would not only be unconscionable to deny the defendant the relief he seeks, but to deny him any of it, so that a 100 per cent interest was the appropriate one. I see nothing in the decisions Hussey v Palmer or Lloyds Bank v Rosset which makes a such a conclusion inappropriate.
12. Mr Hill has not sought today to restore his argument which he advanced before the judge and put into his skeleton argument, that the entire transaction was, in effect, a fraud on the statutory right to buy and so void. He accepts, rightly in my judgment, that the Housing Act 1985 makes provision for the consequence of the premature disposal of a house which is bought under the right to buy provisions. It takes the form of a two-thirds or one-third recoupment by the local authority of the amount of the discount. For all I know that course is still open to Kirklees against the son. What seems to me to be closed is the door to any appeal against the judgment in this case.
13. I conclude by reiterating my gratitude to Mr Hill for the care that he has shown in advancing this case beyond the call of duty and my sadness at the family tragedy which has been provoked by a demand which, if it was to be pursued by anyone, ought to have been pursued by the local authority which is the only party who stood is gain by it. In consequence this application must be dismissed.
ORDER: Application dismissed. No order as to costs. (Order does not form part of approved Judgment)