England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR A STEINFELD QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th July 2007

Lord Justice Lloyd:

1. This appeal is against an order of Mr Alan Steinfeld QC sitting as a Deputy Judge in the High Court in the Chancery Division on 11 November 2005 following a five day trial conducted in October 2005. The dispute concerns a property called Wilbury in Cambridge and in particular the beneficial interests in it and rights to occupy it.
2. Wilbury was bought, and the legal estate is still held, in the name of the defendant, Mr Graham Howes, but it is not in dispute that the claimant, Miss Mia Holman, has a beneficial interest in it. The judge declared that she was entitled to a beneficial interest of one half and was also entitled to continue to live in it, by virtue of the fact that he refused to make an order for sale of it "for the time being".
3. The claimant, with permission given, after a refusal on paper, by Dyson LJ and Sir Martin Nourse on 28 March 2006, argues for a larger share and a more secure right of occupation. The defendant seeks permission to cross-appeal by a respondent's notice arguing for an immediate sale.
4. There are several unusual features of this case which mark it out from other joint property disputes. The parties were not married at the time of the purchase and have not married since then but they had been married and their divorce on the petition of the claimant was made absolute on 31 August 1978, just over a year before the purchase. The purchase was undertaken with a view to joint occupation of the property and reconciliation. However, the joint occupation lasted less than a year and since August 1980 the claimant has lived at Wilbury and the defendant elsewhere in Cambridge. Their daughter, now Mrs Tamsin Garland, lived with the claimant until she left home as an adult.
5. The claimant commenced these proceedings in 2000 claiming a declaration that she was beneficially entitled to the whole property. The defendant counterclaimed for a declaration that the property was beneficially held by him on trust for the two of them in equal shares and for an order for sale. The claimant acted in person from the commencement of the proceedings through to the trial. She was assisted at the trial, in particular, by the parties' daughter, Mrs Garland, who is a qualified lawyer. At the time of the original appellant's notice and of getting permission to appeal she had solicitors and counsel acting for her, her counsel then being Mr Wagstaffe. At a later stage in the course of the appeal she had other counsel acting for her, a Mr O'Dwyer acting through the Bar Pro Bono Unit. Now she is again in person. The defendant has been represented throughout; Mr Crosthwaite, counsel acted for him at the trial, and now Miss Angus represents him on appeal.
6. Miss Holman might be said to suffer from some disadvantage in not being a lawyer but her articulacy and her intellectual ability, aided no doubt by some assistance from her daughter, has meant that she is far better able than most litigants in person, and indeed than some lawyers, to deal with the issues arising in the case.
7. The hearing date of this appeal has been twice adjourned. The progress of the appeal was delayed at an earlier stage pending an unsuccessful attempt to take advantage of the Court of Appeal mediation scheme.
8. Most recently the claimant has applied to add new grounds of appeal and to adduce additional evidence, which is largely in response to the defendant's application to adduce additional evidence in support of his cross-appeal. A skeleton argument from Mr O'Dwyer for the claimant, or at any rate a draft skeleton from him, which was prepared in May this year shortly before the last occasion on which the appeal was expected to come on, and a supplementary skeleton from Ms Angus, deal with the House of Lords decision of Stack v Dowden, which is critically important in this area and was handed down since judgment was delivered in the first instance in this case.
9. The judge had the particular difficulty that he heard evidence in October 2005 about a transaction undertaken in the summer and autumn of 1979; so more than 25 years previously. The principal witnesses were the two parties. Mrs Garland, who was aged eight at the time of the purchase, gave some evidence, more as to events after that date than at the time of the purchase, and there was some other evidence. There was some contemporary documentation but the events were, not surprisingly, overlaid by very strong feelings on the part of the parties as to the history of the parties' relationship both before and since the purchase. It was a task which was very far from easy for the judge to undertake.
10. The judge referred to the history of the marriage and the circumstances up to the proposal for the purchase of Wilbury at paragraphs 8 to 10 of his judgment which I do not need to read. The defendant offered £77,000 for the purchase of the property called Wilbury and instructed solicitors on the basis that the purchase would be in his sole name. In fact, contracts as exchanged on 4 September 1979 were in the sole name of the claimant as purchaser. There is a dispute as to whose cheque paid for the £7,700 deposit. At this distance in time the judge said he would have found it difficult to resolve if it had been necessary to do so and that on balance he thought he would probably have found that it was from the defendant's account rather than the claimant's.
11. Completion, which took place on 19 October 1979, was, as I have mentioned, by way of a transfer into the sole name of the defendant. The judge held that this change as to the identity of the legal owner was made on the basis of representations by the defendant to the claimant that it would make no difference to the position that she would have been in if the property had been in her sole name. The claimant's case was that the defendant assured her before this and at this stage that she would be the sole owner beneficially. The judge did not accept that this evidence was reliable not least because it appeared to him inconsistent with verifiable aspects of the claimant's conduct over the succeeding period, including what she did not say on particular occasions to a solicitor acting and to others. The total cost of acquisition was some £79,000, of which the claimant certainly paid £31,000. She says it was nearer £41,000, including the deposit cheque, which I have already mentioned, and £2,000 contributed by her father.
12. The defendant says that, when he left in 1980, he told the claimant that he would not seek to turn her out until her daughter left university. The claimant denied that any such thing had been said and said that he left without a word. The judge doubted very much that he had said any such thing. The judge considered the law as regards the ascertainment of beneficial interests in a property said to be jointly owned on the basis of the then fairly recent decision of the Court of Appeal in Oxley v Hiscock [2005] Fam 211. He first addressed the question whether there was evidence of a common intention communicated by each to the other that each should have a beneficial interest in the property.
13. That gave rise to the first factual inquiry that he had to consider because the claimant said that the common intention as communicated was for her to have sole beneficial ownership. He reviewed the witnesses and their evidence in a long passage in his judgment stretching from paragraph 31 to paragraph 51. For reasons stated at paragraphs 39 to 46 he rejected the claimant's contention that the defendant had told her that she would be the sole beneficial owner in whatever terms. What he did hold that is relevant to other issues on the appeal is set out at paragraph 39 where he says:

"I do accept that the Defendant almost certainly said something to the Claimant which gave her the clear impression that, in whosever name the Property was purchased, she was going to be secure in the Property for however long she wished. The impression would thus be that in those circumstances, even if the relationship was not restored and the Defendant left her, the Defendant was not going to make any 'claim' to the Property, but this would be in the sense of maintaining a claim to evict her and (as she then was) her child from it."

14. The finding that there was not a representation that she would be the sole beneficiary is not challenged on this appeal. Miss Holman made it clear that she did not agree with it but that would be a challenge to a finding of fact and that was not a part of the basis on which permission to appeal was given. The judge went on, however, to say that the case should be decided on the basis of the position as it would have been if Wilbury had been put into the claimant's sole name. The judge said this at paragraph 54:

"So what, I ask myself, would have been the position had the Property been conveyed into the sole name of the Claimant? On the evidence and for reasons which I have given above I do not believe that even the Claimant believes that, if that had happened, she would have been the sole owner of the Property. On this point I accept the Defendant's evidence that the purchase of the Property was perceived by him and the Claimant to be a joint and equal purchase and that neither of them so far as concerns the actual ownership of the Property was concerned as into whose particular name the Property was ultimately transferred. After all both of them were contributing roughly equally to the purchase of the property and it is, so it seems to me, unlikely, even had the Property been conveyed into the sole name of the Claimant, that she would truly have thought that as a result the Property belonged entirely to herself and that the Defendant, although he had put a substantial amount of his own money into it, did not have any interest in it whatsoever."

15. He said that the claimant did not act on the basis that the defendant had no interest in the property. In the last sentence of paragraph 55 he said this:

"So, if she had been assured by the Defendant, as I believe she had, that the change from the Property being in her sole name to being in the name of the Defendant was going to make no difference to her position, it does not seem to me that she regarded herself on that basis as being sole owner of the Property and the Defendant having no interest in it whatsoever."

16. At paragraph 57 he held that Wilbury was purchased with a common intention of both parties, communicated to each other, that each was to have a beneficial interest in it. Having thus dealt with the first question posed in Oxley v Hiscock he proceeded to consider the size of the respective beneficial interests. He held that they were equal though not on the basis of an express agreement between the parties to that effect. He proceeded rather on the basis of a) the fact that each had a made substantial contribution and b) the parties did not regard the precise contribution of each as being significant at the time. Hence, for example, the fact that, although the solicitor who acted on the purchase had suggested to Miss Holman that she should keep a note of the actual contributions made, and that this may well have been given by way of advice to the defendant, no such note of the actual contributions was made. The judge's conclusion is expressed at paragraph 60, where he says:

"My conclusion on the evidence is that this purchase was intended by both parties to be a joint and equal venture. Accordingly consistent with the principles set out by the Court of Appeal in Oxley v Hiscock I must hold that the Property is held by the Defendant on trust for himself and the Claimant in equal shares."

17. As regards to the question of sale, the judge considered the Trusts of Land and Appointment of Trustees Act 1996 sections 14 and 15. He held that the defendant had given to the claimant assurances that she was, in any event, to be secure in the property for as long as she wished. I have read the part of paragraph 39 in which that conclusion was expressed. He balanced against this the circumstances of the defendant in paragraph 68, including some of his financial circumstances, but he concluded that it would be wrong to order a sale and he expressed that conclusion at paragraph 71(b):

"I direct that the Property should not for the time being be sold without the consent of the Claimant. I say 'for the time being' because it is conceivable that circumstances could arise in the future which would make the sale of the Property more compelling than it appears to me at the moment. Accordingly my judgment does not preclude the Defendant on proof of new facts from coming back to the Court and asking for further directions in relation to the sale of the Property."

18. The appellant's notice raises two points. The first is that the judge was wrong, in quantifying the balance of interests, not to have regard to the whole course of dealings between the parties, in particular dealings after the purchase and all the more so dealings after the separation in August 1980. The matters overlooked are said to be those identified in paragraph 16 of the claimant's opening skeleton for trial. There are several. The first was the claimant's contribution of £40,000 to the purchase. That is clearly a matter which the judge did take into account, at any rate to the extent that he accepted she had made a substantial financial contribution to the purchase and did not make the finding that he felt it unnecessary to do so as to the precise amount contributed.
19. The second item is a contention by the claimant that the defendant had unwarrantedly and quite unnecessarily increased the original offer from £70,000 to £77,000. That is a point which was rejected by the judge on the facts.
20. The third was the claimant's having refrained from pursuing maintenance payments or indeed any payments in respect of the parties' daughter or her education or a property adjustment order under matrimonial law. The judge was aware of the circumstances but it is correct that he did not take those into account in relation to the quantification of the beneficial interest.
21. The fourth was the fact that the claimant dealt fully with compliance with the obligations of ownership including the upkeep of the private road on which the property stands and dealing with a number of trees and the defendant made no contribution to that.
22. The fifth, which is perhaps putting the same point in more general and different form, was that the claimant assumed all obligations of ownership after the defendant left in 1980.
23. The sixth was the fact of the claimant's occupation since 1979 and the defendant's departure in 1980 without any claim on the claimant's part for possession or sale until the counter claim in 2002.
24. The seventh, put generally, is the defendant's undue influence and generally unconscionable conduct in respect of the claimant and the parties' daughter. The original skeleton argument also suggested that the judge should have ordered an equitable accounting process as regards outgoings and so on, but this is not a point suggested at trial and was not within the skeleton for permission to appeal. The latest skeleton, put forward as I mentioned by Mr O'Dwyer, expands on these points but did not deviate from them, although it did add reference to Stack v Dowden.
25. The second ground of appeal is the judge's failure to consider the case on the basis of proprietary estoppel. This was put in a number of different ways in the skeleton argument. By the time that the matter came to be put before the court on the oral renewal of the application for permission to appeal, it was put on a narrow and clearly focussed basis. The basis for the contention is the defendant's assurance, as found by the judge, that the claimant's position would not be altered by virtue of the property being put in his name instead of hers. It was then said that the defendant accepted in cross-examination that if the property had been put into her name, she would have thought that she was the beneficial owner. Thirdly, it is said that she altered her position substantially by committing her entire savings to the purchase, moving in, and by later conduct already referred to.
26. When the matter came to the formulation, for the purposes of the oral renewal of the application for permission, and in particular in Mr Wagstaffe's statement under the practice direction 52/4.14A, the point was addressed specifically and only in relation to the question of the claimant's right to stay in the property. That is also how the matter is reflected in the terms of the judgment of Sir Martin Nourse, giving the reasons why permission to appeal was granted.
27. Those, therefore, the beneficial interests, and the right to stay in the property, are the two points on the appeal for which permission is given.
28. The judge as I have mentioned, relied heavily in relation to the first point on Oxley v Hiscock. Since then the matter has been overtaken, in respect of beneficial interests, by the speeches in the House of Lords in Stack v Dowden [2007] UKHL 17. That was a case of a property held in joint names, whereas Oxley v Hiscock was a case where the property was in the name of one of the parties only. However, if it is accepted that both parties had a beneficial interest, as the judge found, then there need not necessarily be any difference according to whether the legal estate is in one or two names, although Baroness Hale at paragraph 66 of her speech does mention some circumstances, not relevant to the present case, in which that difference might be relevant.
29. As to the variety of circumstances that might be relevant in a joint ownership case, Baroness Hale mentioned a number of points at paragraphs 69 and 70 of her speech, which I need not quote. She quoted from paragraph 69 of the judgment of Chadwick LJ in Oxley v Hiscock, doing so in particular in paragraph 61 of her speech, but she went on, while considering that there was much of value in what Chadwick LJ had said, to prefer a formulation by the Law Commission in one of its publications called "Sharing Homes". That formulation is this:

"If the question really is one of the parties' 'common intention', we believe that there is much to be said for adopting what has been called a 'holistic approach' to quantification, undertaking a survey of the whole course of dealing between the parties and taking account of all conduct which throws light on the question what shares were intended".

Baroness Hale went on to say this:

"That may be the preferable way of expressing what is essentially the same thought, for two reasons. First, it emphasises that the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended. Second, therefore, it does not enable the court to abandon that search in favour of the result which the court itself considers fair. For the court to impose its own view of what is fair upon the situation in which the parties find themselves would be to return to the days before Pettitt v Pettit [1970] AC 777 without even the fig leaf of Section 17 of the 1882 Act".

The majority of the members of the House of Lords agreed with Baroness Hale.

30. The court's enquiry is, therefore, for what was intended between the parties, or if that cannot be identified directly, what they must be taken from their conduct to have intended; it is not for that which the court considers fair. So far as actual intention is concerned, the judge's findings, is of a communicated common intention that each was to have a beneficial interest and that it was regarded as a joint and equal venture, although subject to a proviso that the claimant could stay there as long as she wished even if the defendant did not. The judge's finding that the defendant knew that the claimant's intention was equal beneficial shares is challenged, but that does not appear to me to be any part of the basis on which permission to appeal was allowed. That is limited to the complaint that the judge had not taken into account the whole course of dealings, rather than to challenging the judge's findings as to what he did take into account.
31. Accordingly, I turn to the question of whether the judge was wrong in law in failing to consider the five post-acquisition matters which I have already identified and which are relied on by the claimant. The task formulated and approved is, first, to survey the whole course of dealing between the parties, and second, to take account of all conduct which throws light on the question of what shares were intended. For my part it seems to me that the five matters which I have mentioned as being relied on by Miss Holman are not capable of throwing light on the question of what shares were intended in 1979. All of them postdate the acquisition and none appears to be indicative of any agreement between the parties, past or later. Indeed, rather tellingly, Miss Holman in her submissions to us this morning said that after 1980, with very limited exceptions, there were no dealings between the parties, and that was to a substantial extent the problem of which she was complaining. Conduct thereafter was unilateral on the part particularly of the defendant and perforce of the claimant.
32. The Court of Appeal gave permission to appeal on the basis of the judgment of Chadwick LJ in Oxley v Hiscock, whose statement is more open-ended than that approved by Baroness Hale in Stack v Dowden. Even so, it seems to me that they did so with some reluctance. With the benefit of Stack v Dowden  to assist, it seems to me that the matters sought to be relied on can be seen as plainly irrelevant to this particular inquiry. To take them into account would be to go back to the impermissible question of what the court considers fair.
33. For those reasons I consider that the first ground of appeal is not well made out. The second point in the appeal is put in the statement for the purposes of the oral renewal as being that:-

" … the defendant is estopped from seeking to deny the Claimant's entitlement to remain in the property indefinitely."

That is the converse of the point which is the subject of the proposed cross-appeal, and I will consider those two points together.

34. I should say that the claimant seeks to rely on additional grounds of appeal, set out in a lengthy document put before us. Many of those go to the judge's findings of fact, or his failure to make findings, on points not always of direct relevance. Others relate to matters not in issue in the proceedings. None of them seems to me to present a reasonably arguable ground for challenging the judge's order. As my Lord, Lord Justice Dyson, said to Miss Holman at the opening of the hearing this morning, it really is far too late to seek to amplify the scope of the appeal in this way, and Miss Holman's comment was that this was essentially a response to the defendant's attempts to extend the scope of the appeal by the respondent's notice. So we did not grant permission to extend the grounds of appeal in the way sought by the claimant, and I turn to consider the respondent's proposed cross appeal.
35. The essence of the point that Miss Angus formulated is that the defendant says that the judge could not properly make the finding that the defendant had assured the claimant that she would not be evicted without her consent, and accordingly he was wrong to base his findings on that. It is also said as a subsidiary point that he should have taken into account the defendant's financial position. On that basis, it is suggested that the judge should either have ordered an immediate sale or have imposed terms on the claimant which in practice she might very well not have been able to comply with to keep the property in good repair and to pay the defendant an occupation rent.
36. Miss Angus challenges the judge's findings of fact and has referred us to passages in the transcript of evidence. It is fair to say that the relevant evidence emerged in the course of questioning of the defendant by the judge, in circumstances in which, if the claimant had been represented by counsel, that would no doubt have been inappropriate and would also have been unnecessary. Given that the judge was coping with a trial in which witnesses were trying to recall what had been said 25 or more years ago and in which one party was represented for part of the trial by herself and for another part of the trial (in her absence) by her daughter, who though a qualified lawyer was not there as counsel, it seems to me that it was perfectly legitimate for the judge to question the defendant in the way that he did. Given the passage of time and the inherent unreliability of evidence in 2005 as to what was said in 1979, it seems to me the judge was perfectly well entitled to make the finding that he did on the basis of a comparison of the parties' evidence. Indeed, Miss Angus very fairly accepted that it was open to the judge to find that the assurances were given even though the claimant's evidence was otherwise (she said that a different assurance was given), and Miss Angus also accepted that it was a possible interpretation of the answers given. She submitted that it was not the most natural interpretation, but in my judgment this is a point which does depend on the judge's view and the circumstances of the parties' oral evidence, inherently subject to certain difficulties of acceptance because of the sheer lapse of time, and it seems to me that it is not a fair challenge in the circumstances.
37. The respondent requires both an extension of time and permission to mount this cross appeal. I would not have regarded the question of extension of time as being a difficulty because part of the delay was pending the attempted mediation. But I do not regard the point as suitable for permission to appeal, and accordingly I would refuse the application for permission to cross appeal. The other point in the respondent's notice, Miss Angus accepts, is not sufficient in itself to justify granting permission for a cross appeal.
38. That therefore brings me back to the estoppel point on Miss Holman's appeal. Of course, one feature here is that it was not Miss Holman's case. She said the assurance was as to ownership and not occupation and, not being represented, she was, and perhaps is, in somewhat of a difficulty that counsel would not be in putting forward a contingent or fallback case. No case of estoppel was pleaded. However, Miss Angus accepts that on the judge's finding of fact which stands, as it does, the necessary basic ingredients of estoppel are made out.
39. There was a representation by the defendant to the claimant, intended to be relied on, and in fact relied on, to the claimant's detriment, in the sense that she agreed to this proposal, on which she required persuasion, and she committed a substantial amount of her own savings to it. Miss Angus therefore does not take the point that estoppel was not pleaded, and she focuses rightly and sensibly on a single point, namely that even if the ingredients of estoppel are made out, the court has to consider carefully how the equity should be satisfied. She showed us the case of Jenning v Rice as a convenient way of introducing a variety of authorities considered in that case in which the court has, on different facts, dealt with the question of how to satisfy the equity.
40. In a number of the cases the point has been made that, once the ingredients of a proprietary estoppel are made out, the court has to decide on what is the "minimum equity" needed to do justice, having regard to the way in which the person to whom the representation is made has changed her position, for the worse, by reason of the acquiescence and encouragement of the legal owner. It is by no means a question of saying "this promise was made, or this representation was made, and it must therefore be made good". There are many cases in which a representation or promise has been made that a person would have a right to be entitled to live in a property as long as he or she wished, but in which the court has considered that it was not necessary or appropriate to give effect to that equity simply by granting, in effect, a life interest. It is a matter which depends on the facts of the particular case.
41. In this case, Miss Angus submits that the judge's approach at paragraph 71 (b), which I have read, is perfectly adequate and fair to satisfy the claimant's expectations, especially if it is accepted that the words "for the time being" are to be taken out of the expression in the judge's order, and especially, she would say, having regard to the benefit already derived by the claimant, effectively at the expense of the defendant, through her occupation of the property since August 1980.
42. In my judgment, however, on these very unusual facts the equity does require to be given effect by making the assurance good. At the time of the transaction the parties were recently divorced. The defendant was seeking a reconciliation; the claimant was persuaded to put into a purchase most of her own savings. The defendant said in evidence that he was optimistic, one might say, as to the triumph of hope over experience, but the claimant needed to be persuaded and it was certainly a foreseeable outcome that the reconciliation would not work, and that they would again separate leaving the claimant and her daughter needing housing, in the daughter's case until her adulthood but in the claimant's case indefinitely, the defendant being able, as he did, to move back to another property he owned.
43. Miss Angus accepts that the judgment, in particular as interpreted by Sir Martin Nourse, presents the defendant with a serious obstacle. Sir Martin at paragraph 4 of the judgment on permission to appeal, having cited paragraph 71 (b) of the judge's judgment, said this :

"I have suggested to Mr Wagstaffe this morning that reading that passage in the light of the judge's judgment as a whole, the circumstances which would make a sale of the property more compelling than it appeared to him at the moment would have to be pretty drastic. Mr Wagstaffe says: maybe, but the door should not have been left open at all."

He referred to that point when he gave permission to appeal.

44. Miss Angus accepts that that is an assessment of the position as it stands under the judge's judgment, but in my judgment, however, the logic of the judge's finding of the assurance does lead inexorably to a recognition of a need for the entitlement of the claimant to be able to live at Wilbury for as long as she wishes. Accordingly in my judgment the appeal should be allowed on the second point, to the extent of declaring that no order for sale of Wilbury should be made against the will of or without the consent of the claimant.
45. I would therefore dismiss the appeal on the first point; allow the appeal on the second point, refuse permission for the cross-appeal; so far as necessary refuse permission to expand the grounds of appeal to allow Miss Holman to rely on the additional matters; and I would also in any event vary the judge's order in the respect that Miss Holman pointed out to us and which is agreed, namely to reflect the fact that a charge on the property in favour of a company called RN Limited, which is in fact a charge for Mr Howes' tax liabilities, is enforceable only over his beneficial interest in the property.

Lord Justice Dyson:

46. I agree.

Lord Justice Jacob:

47. I also agree.

Order: A3/2005/2680 (A) and (B) refused.

A3/2005/2680 allowed in Part.