England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TORQUAY AND NEWTON ABBOT COUNTY COURT
Mr Recorder Gardner QC
Claim No: 8TQ00493

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/03/2010

Lord Justice Rimer :

Introduction

1. This is an adjourned application for permission to appeal, Mummery LJ having directed the hearing on 9 June 2009. The matter had come before him on the papers. The proposed appeal was one that was largely directed at challenging the judge's findings of fact and the case had been presented to Mummery LJ by the applicant, Peter Wade, acting in person. He had outlined some 97 heads of criticism of the judge's findings. Mummery LJ directed that, on the adjourned hearing, the respondent, Marlene Baylis, should be represented and should in the meantime serve a skeleton argument. On the adjourned hearing, Mr Wade was represented by Mr Michael Berkley, who had represented him at the trial; and Ms Baylis by Mr Christopher Naish, who had represented her at the trial. Following the hearing, and unusually on a permission application, I reserved judgment. The limited time I had for preparation for the hearing (one of five such applications I had that day) and also for the rest of a busy week's work had been insufficient to enable me read into the case in advance as fully as was necessary and at the conclusion of counsel's well made arguments I considered that fairness to the parties required a reserved judgment.
2. Mr Wade is the claimant. He and Ms Baylis commenced living together as man and wife in 1982 which they continued to do until about the end of 2005 when they separated. By his claim in the Torquay and Newton Abbot County Court, Mr Wade sought to establish a 50% beneficial interest in a house at 22 Debdale Lane, Keyworth, Nottingham ('Keyworth') purchased in 1982, a claim that Ms Baylis defended on the basis that she was the sole legal and beneficial owner. There was a further issue in relation to a business called Jigsaw Galore; and yet further issues in relation to a house at Seaward, Garrett Street, Cawsand, Cornwall ('Seaward') purchased in 2003. The Seaward issues did not, however, include any going to its beneficial ownership, there being no dispute that both parties were beneficially entitled to it in equal shares. The trial occupied three days in October 2008.

The Keyworth dispute

3. The first topic covered in the judgment of Mr Recorder Gardner QC, which he delivered on 22 January 2009, having added an addendum to it in the light of counsel's observations made on his draft judgment, was Mr Wade's claim in respect of Keyworth. Keyworth was bought in 1982 for £24,999 in the joint names of Mr Wade and Ms Baylis. Ms Baylis provided the deposit of £6,000 out of her divorce settlement, her mother lent her a further £5,000 and £16,000 towards the purchase was raised by a building society mortgage in the joint names of the two purchasers. The judge found that Mr Wade made no contribution to the capital cost of the purchase at the outset and, as I interpret it, no contribution to the mortgage repayments, at any rate in the early years. He found, however, despite Ms Baylis's case to the contrary, that the beneficial title to Keyworth at the time of its purchase followed the legal title and that Mr Wade and Ms Baylis had what he called a 'joint and equal' beneficial interest.
4. So far so good. The complication that led to this litigation over 20 years later was that on 11 March 1986 Mr Wade transferred Keyworth into the sole name of Ms Baylis. Yet in the litigation he claimed that he remained entitled to his equal beneficial share. There was of course no declaration of trust by Ms Baylis or any written agreement to that effect; and therefore the fact that Mr Wade found himself having to sue for what he claimed was his beneficial entitlement is perhaps not one for which he deserves much sympathy. The Recorder said that, following the 1986 transfer, the burden shifted to Mr Wade to establish that there was a common intention that the beneficial interest should remain as it was and not follow the legal interest. He found that Mr Wade had not established that and so he dismissed his claim. Mr Wade wants to appeal against that decision.
5. Mr Wade's explanation for the transfer of Keyworth to Ms Baylis (described by the Recorder as 'somewhat convoluted') included that he 'wished to be mortgage-free' so that he could buy a further property for both of them. I understand that to mean that he perceived the burden of being a joint mortgagor of Keyworth as reducing his chances of raising a separate mortgage loan. His case was therefore that he wanted to be free of the burden of joint ownership (to which he was making no contribution) but to retain its benefit. In the event he did not buy any other property and his evidence as to why he did not seek, as the Recorder put it, to 'get himself put back onto the deeds' of Keyworth included 'that he was worried that there may be some comeback in view of his business dealings, and he did not want to put Keyworth at risk'. Translated, that means that he was happy to be an owner of Keyworth so long as the financial sun continued to shine on him; but that if and when the sky clouded over, he would prefer not to be an owner. Of course if, as he was claiming, he continued to be a beneficial owner of a half share in Keyworth, the claims about which he was concerned could be levelled at that share, whether or not he was also 'on the deeds'.
6. Ms Baylis's evidence as to the explanation for the 1986 transfer was summarised by the Recorder as follows:

'23. D [Ms Baylis] said that C [Mr Wade] had come to her and told her that he wanted to come off the mortgage. She asked him why and he said that he wanted freedom. She said that at that time they were having arguments and he had insisted that she have an abortion on finding out that she was pregnant. She believed that he wanted to be free of her and the responsibilities associated with her. She did not question him further as he was very controlling and she always did what he wanted her to do. She also believed that he wanted to do the decent thing, as he was making no contribution to the property.'

7. In paragraph 69 the Recorder made a finding rejecting Mr Wade's case that he came off the title so as to be able to make an investment for the parties' joint benefit; he instead found that such conversation as took place at the time between the parties was more likely to have been as Ms Baylis had asserted and as he had summarised in paragraph 23.
8. Starting from the unpromising position that he had in 1986 transferred Keyworth out of joint names into Ms Baylis's sole name, Mr Wade's primary case was that there had at the time been an express agreement with Ms Baylis that he should retain his beneficial share. The Recorder also rejected that case on the facts. Mr Wade's secondary case was that his subsequent conduct in relation to Keyworth could only be explained on the basis that the parties had an implied common intention that he was to retain a joint or equal beneficial interest. Reliance was placed on Baroness Hale of Richmond's speech in Stack v. Dowden [2007] UKHL 17; [2007] 2 AC 432. The point was made that although by the transfer Mr Wade had purportedly transferred to Ms Baylis his share of the equity, he would not sensibly have done that for nothing in exchange. In addition, in 1989 he had commenced some 18 months work directed at trading a company called Makebrite Limited out of debt. That was a cleaning company in which Ms Baylis and a Mr Falconer had an interest. The significance of this activity was that Ms Baylis had in the meantime (without consulting Mr Wade: an omission telling against any suggestion that she regarded him as a beneficial owner) charged Keyworth to the bank to secure Makebrite's liabilities. Mr Wade also claims to have made mortgage payments of £1,244 (in 1991) and £1,275 (in 1992), although he had destroyed any records that might have proved this; and a payment of £9,340 (in 1998) to redeem the mortgage. He also carried out works of improvement to Keyworth at his own expense in 2001 and 2002. The point made to the Recorder about all this was that if Mr Wade had no interest in Keyworth, it made no sense for him to have so laboured for Makebrite, made such mortgage payments and carried out the improvements.
9. The Recorder was thoroughly unimpressed by Mr Wade's evidence, saying he found much of it unsatisfactory and that he believed 'that at times [Mr Wade] was making it up as he went along'. As to whether the parties' course of dealing in relation to Keyworth enabled an inference to be drawn that Mr Wade was intended to retain a beneficial half share, the Recorder's findings of fact were adverse to Mr Wade. As the equity in Keyworth at the time of the transfer to Ms Baylis was about £9,000, he found that Mr Wade's willingness to transfer his half share without consideration was 'not as significant as it otherwise might have been'. He also did not accept Mr Wade's uncorroborated evidence that he had made any mortgage payments 'other than by use of Jigsaw monies' (paragraph 67), Jigsaw being a business that (as I explain below) the Recorder found belonged to Ms Baylis.
10. He did, however, accept that Mr Wade worked tirelessly and without remuneration for 18 months to trade Makebrite out of its debt. In paragraph 32 of his judgment, he said that:

'… the fact is that both he and [Ms Baylis] were directors of Makebrite and both had a motive to rescue it, independent of Keyworth'.

In paragraph 33 he also accepted that Mr Wade carried out improvement works to Keyworth, recording that Ms Baylis did not dispute that he had finished the roof off and had done some tiling and she had accepted that he had paid £2,500 to the joiners. He continued:

'Here I remind myself of the simple fact that the parties continued to live in Keyworth three or four months each year from 1999 [at this stage they were renting Seaward, where they spent most of the year], at a time when, according to Mr Jenkinson, they appeared happy together. [Mr Wade], therefore, had some motivation to make it more habitable, even if he had not beneficial interest in it, particularly as he was not making any other contribution, as I believe he was not, in respect of his occupation. In 2001 and 2002, when not working at Jigsaw, he had time on his hands. I also accept [Ms Baylis's] description of [Mr Wade] as someone who liked a challenge and to be in control of that challenge, as Marilyn Schofield's description of him in relation to Makebrite verified, and that this itself constituted a motivation. …'.

11. The Recorder was in fact wrong about Mr Wade being a director of Makebrite when doing his tireless work: he only became a director at or about the end of such work. That was pointed out to him upon the delivery of his draft judgment. As a result, he added an addendum in which he acknowledged his error and said that:

'I did have in mind, however, that Keyworth was still the home that he occupied with [Ms Baylis] and, just as this provided a motivation to carry out works upon it, so it provided a motivation to save it by trading Makebrite out of debt. Also the motivation emanating from [Mr Wade's] personality as someone who liked a challenge and to control that challenge, applied to Makebrite as it did to the building works'.

12. The Recorder's conclusion, in paragraph 34, was that he was not satisfied that Mr Wade's conduct following the transfer of Keyworth into Ms Baylis's sole name constituted a course of dealing establishing that the parties had 'entered into an agreement, made an arrangement, reached an understanding or formed a common intention that [Mr Wade] would continue to have a beneficial interest in Keyworth'. He thus held that Ms Baylis was the sole legal and beneficial owner of Keyworth.

The Seaward dispute

13. Seaward is a house that was beneficially owned by the parties as tenants in common in equal shares. It was purchased in November 2003. Ms Baylis's mother was widowed in 2004, she had health problems and the Recorder found that the parties encouraged her to sell her house in Nottingham and move nearer to them. In 2006 Mr Wade moved out of Seward and in 2007 Ms Baylis's mother moved in, occupying a bed-sitting room on the ground floor. The sale of her Nottingham house yielded net proceeds of £110,000.
14. Each party sought an order for sale and a postponement of the sale so as to enable the other's interest to be bought out. The Recorder found that, after a 3% deduction for sale costs, each party's share was worth £167,325. Mr Wade had originally proposed a transfer of his share to Ms Baylis but in his oral evidence he asked for the opportunity to buy her share. That proposal raised the practical difficulty that he had no job or money but he said he had a millionaire friend who would lend him the money. Alternatively, he asked for a sale of Seaward on the market, with each party being entitled to bid for it. Ms Baylis's position was that she was working in Paignton where she tended to stay during the week with her partner. However, she regarded Seaward as her home, which she occupied with her mother, and she hoped to be able to reduce her working week to three days in which event 'commuting will be manageable'. I understand that to mean that she would live at Seaward full-time. Ms Baylis's mother had established friends in the village and was reluctant to move.
15. The Recorder said in paragraph 44:

'Mr Berkley submitted that, in determining who should have the option to buy the other out, the occupation by [Ms Baylis's] mother is irrelevant. She is there without [Mr Wade's] consent and is perfectly capable of housing herself. I do not agree. I accept her evidence that [Mr Wade] originally suggested that she sell up in Nottingham and move down to Cornwall, and that financially she was not able to purchase anything in Cawsand. Further, her circumstances are such that I consider that it is entirely reasonable that [Ms Baylis] should want her mother to live with her in Seaward. Further, her mother is willing to invest her own proceeds of sale in Seaward, and this gives [Ms Baylis] a realistic prospect of her being able to buy [Mr Wade] out, whereas I do not consider that [Mr Wade] has any such prospect.'

16. The result was that the Recorder ordered a sale of Seaward, to be postponed for three months. He provided that if by 22 April 2009 (or within three months of the determination of any appeal Mr Wade might make) Ms Baylis paid him £164,325 (the value of her share less £3,000 admitted by Mr Wade to be due to her), he was to transfer the legal interest in Seaward to her and his beneficial interest would be extinguished. If that did not happen, and Seward was to be sold, then £3,000 of Mr Wade's share of the proceeds was to be paid to Ms Baylis.

Occupation rent

17. The next issue was whether Ms Baylis should pay Mr Wade an occupation rent in respect of Seaward from February 2006 onwards. The judge said Mr Wade had left in February 2006 because he regarded the relationship with Ms Baylis as having broken down and he had also formed a new relationship. He could not foresee that they would resume cohabitation. The Recorder directed himself, by reference to Murphy v. Gooch [2007] EWCA Civ 603, that it was not necessary for Mr Wade to prove a physical ouster, the court should seek to do equity between the parties. At an interim application in the proceedings, Ms Baylis had agreed to, and had, paid £2,000 to Mr Wade in respect of her continued occupation but had done so without prejudice to her case at the trial that no such rent was due or payable. The Recorder favoured the view that Mr Wade should be regarded as having left Seaward voluntarily and that the circumstances did not justify the payment of an occupation rent. He had made no contribution to the outgoings of Seaward since leaving, he would receive his share of the proceeds under the Recorder's order in the near future and he had also received the £2,000.

Jigsaw Galore

18. In 1995 Jigsaw Galore ('Jigsaw'), a toy business, was established, with Ms Baylis named as the sole proprietor. Mr Wade worked in the business. This continued until 2005, with Jigsaw providing their sole source of income.
19. There was a dispute as to who provided the capital with which Jigsaw was established. Ms Baylis claimed it came from her father (which Mr Wade admitted as to half the capital) but he said that the other half was lent by his brother (which Ms Baylis denied and for which he produced no supporting evidence). The Recorder related that Mr Wade's evidence was that the business was set up in Ms Baylis's name alone for reasons prompted by a wish to avoid any unpleasant comebacks against him in respect of his activities in other businesses. Ms Baylis accepted that Mr Wade worked in the business and she was aware that he took money from its tills for his own use. She denied that he was a de facto partner or that he was an employee.
20. The Recorder found that the two worked as a team until 2005 and that Mr Wade's reward for his efforts was the money he took from the tills. He also found that there was no partnership and that Ms Baylis was a sole trader. He also accepted Mr Naish's submission that, for Mr Wade to assert his claim to have been a partner, he had to rely on the assertion that the sole trader designation was deliberately set up so as to deceive third parties who might have a claim against him to believe that he had no interest in Jigsaw. That was to rely on his own illegality to establish his claim, which the court does not permit. The outcome was that the Recorder rejected Mr Wade's claim to a share of £7,839 (and any interest since accrued) standing to the credit of Jigsaw's bank account on 20 August 2007. He also rejected a claim by Mr Wade to an interest in a Maxi ISA that he had purchased in Ms Baylis's name with Jigsaw money. He had not put it in their joint names because, the Recorder found, 'of tax issues', which I take to be another working example of Mr Wade's propensity for hiding his affairs under a cloak. The rejection of this part of Mr Wade's claim followed logically from the rejection of his claim to any interest in the Jigsaw business.
21. The Recorder made orders accordingly, also ordering Mr Wade to pay 80% of Ms Baylis's costs.

The grounds of appeal

22. For the adjourned hearing before me, Mr Berkley helpfully produced a skeleton argument that brought a proper focus to the grounds of appeal that, by then, it was wished to pursue. It explained that Mr Wade sought permission to appeal on five grounds. Three were the original grounds he had advanced, and two were proposed new grounds relating to the Recorder's order in relation to the sale of Seaward and his costs order.

1. The rejection of Mr Wade's claim to a beneficial half share in Keyworth

23. This ground challenges the Recorder's rejection of Mr Wade's claim to a beneficial half share in Keyworth. No wholesale challenge is advanced to the Recorder's findings of fact and no direct challenge is advanced to the Recorder's dim view of Mr Wade's evidence. It is said, however, that he failed to take sufficient account of serious inconsistencies in Ms Baylis's evidence. The suggestion is made that he allowed his apparent distaste for Mr Wade's evidence to prejudice him against Mr Wade.
24. The point is made that Ms Baylis misled the court as to the parties' original intentions when they purchased Keyworth (a case that the Recorder rejected) and that the Recorder failed to take account of the fact that the parties' subsequent dealings in relation to Keyworth were most unusual. It is said that that, given that Mr Wade started off with a beneficial half share in Keyworth, it would require exceptional circumstances for there to be an inference that his subsequent transfer of Keyworth into Ms Baylis's sole name was intended also to carry with it his beneficial share. It is said that there can in such circumstances be no room for the ordinary presumption that the beneficial ownership follows the legal ownership. Instead, the case required cogent evidence that Mr Wade intended to abandon his beneficial ownership. It is said that the judge's finding, as Ms Baylis asserted, that Mr Wade 'wanted to be free' was uncorroborated. Reliance was placed on Mr Wade's evidence that the parties had a discussion about restoring him to the title in 1989, but the outcome was his expression of view that, because of potential business risks, it was a good job he was not on the title. This is said to have been additional evidence of trust between the parties. The Recorder did not in fact find that there had been any such discussion, and I was told by Mr Naish, for Ms Baylis, that she disputed that there had.
25. It is further said that the Recorder did not sufficiently feed into his assessment of the issues the fact of Mr Wade's tireless labour for Makebrite, which saved Keyworth from the bank's clutches. The Recorder initially (and wrongly) attributed this activity to Mr Wade's status as a director of Makebrite, an office he did not assume until the last month of his labour. In his corrective addendum, the Recorder said that he did, however, have in mind that Keyworth was 'still' the home that he occupied with Ms Baylis, which provided a motivation for his efforts for Makebrite; in addition, Mr Wade liked a challenge. Mr Berkley made the point in his skeleton argument that at this stage the parties were living in rented accommodation in Rotherham and that the Recorder was therefore wrong to regard Keyworth as their home. That suggestion appeared to me to be somewhat at odds with Mr Berkley's submission at the oral hearing that the original purpose of the purchase of Keyworth, namely to provide a home for the parties, continued for some 20 years.
26. A challenge is then made to the Recorder's rejection of Mr Wade's claim to have made the mortgage payments of £1,244, £1,275 and £9,340. Insofar as he found that Ms Baylis to have made them, it is said that her evidence was manifestly unbelievable. As to the first two payments, her evidence in her witness statement had been that she was impoverished at the time, and unable to pay them, leading to Keyworth being nearly re-possessed on two occasions, although at the trial she said for the first time that she paid them out of her savings or benefits, for which there was no corroborative evidence. As for the £9,340 payment, the only corroboration for the making of that payment was a building society receipt in Mr Wade's name, which it is said the Recorder overlooked, although Mr Berkley accepted that it did not prove that Mr Wade was the source of the £9,340: it proved no more than he attended at the building society and paid the money in. His case at the trial was that he paid it by way of a mixture of cash and a cheque, with no evidence as to how much was represented by each. The source of the cheque was his delivery business and that of the cash was said to be money taken from Jigsaw's tills.
27. Next, it is said that the Recorder failed to give due recognition to the magnitude, importance, time and money that Mr Wade put into the improvements he carried out to Keyworth, which involved the insertion of an additional floor and a new roof and costing some £11,500, a figure which (apart from the cost of the works to the roof, which was the subject of unsuccessful challenge by Ms Baylis) was unchallenged. The Recorder's disregard of this work on the ground that Mr Wade 'liked a challenge' is said to have been perverse.
28. It is also said that the circumstances in which Mr Wade carried out these works gave rise to a claim by him to an interest in Keyworth by way of a proprietary estoppel route, although Mr Berkley was unable to refer to any evidence to the effect that at the time Mr Wade was doing the work Ms Baylis knew that he was doing it on the faith of a belief that he had a beneficial interest in Keyworth and stood by without disabusing him of it.
29. Mr Naish's response to this ground of appeal is that fundamental to the Recorder's decision was his finding as to the credibility of the parties, a matter to which he referred in paragraph 13, adding in paragraph 14 that he looked for corroboration of what they respectively asserted. The Recorder was unqualifiedly critical of Mr Wade's evidence, saying in paragraph 30 that he found much of it to be unsatisfactory, that he believed that at times he was making it up as he went along and that 'in any event his evidence did not establish an express agreement that [he] was to retain a beneficial interest at the time that he instigated the termination of his legal interest.' That had been his primary case, which the Recorder rejected, as he was entitled to do.
30. The Recorder also rejected Mr Wade's case that he came off the title so as to be able to make an investment for their joint benefit. He instead found that any conversation between at the time was more likely to have been to the effect, as Ms Baylis asserted, that 'he wanted freedom', her expressed belief at the time being that he wanted to be free of her and responsibilities associated with her. Her further belief was that he wanted 'to do the decent thing as he was making no contribution to the property'.
31. Mr Wade's 'express agreement' case having been rejected, his secondary case to the like end was based on the proposition that his Makebrite efforts, his claim that he made the three disputed mortgage payments and his improvement works justified an inference of a common intention or agreement that he should have a half share. The Recorder did not accept that he had made the mortgage payments and Mr Naish pointed out that the corroborating evidence that he had made them – the burden being on him – was non-existent. Although Mr Wade had produced a mountain of ancient documents, including many of Ms Baylis's documents, he did not produce a single document to corroborate his claim that he made the payments. The Recorder was, he said, entitled to find that he had not discharged the burden of proof that was upon him.
32. Nor did the Recorder regard Mr Wade's other actions as justifying any inference of such a common intention. Mr Naish emphasised that what is required is an inference as to a common intention but there was no evidence that Ms Baylis had ever done or said anything to support the drawing of the requisite inference. As for the improvement works, there was no evidence that she had allowed him to do them knowing that he believed that he had a beneficial interest. Mr Naish's overall submission was that there is no real prospect of the Court of Appeal taking a different view of the Recorder's assessment of the facts so that an appeal against the Keyworth decision would equally have no real prospect of success.
33. I propose to refuse permission to appeal against the Recorder's finding that Mr Wade had no beneficial interest in Keyworth. In particular, I refuse permission to appeal against the declaration in paragraph 1 of the Recorder's order of 22 January 2009. The Recorder was, I consider, entitled in the circumstances to find that the 1986 transfer to Ms Baylis carried not just the legal title but also Mr Wade's beneficial title. He rejected, as he was entitled to, Mr Wade's claim that there was an express agreement at the time that he would retain a 50% beneficial interest. Mr Wade's own evidence was moreover that the reason he did not later want to go back on to the deeds was because that would expose Keyworth to the risk of claims by his creditors. The inference from that explanation is that he did not regard it as being at such risk if he was not on the deeds. Assuming he is an honest man, and I presume he would not wish a different assumption to be made, the further inference is that he did not regard himself as then owning a beneficial interest in Keyworth because if he did that would equally make Keyworth a target for such creditors.
34. The only basis on which he might therefore have hoped to establish some beneficial interest in Keyworth was that a consideration of the whole course of the parties' conduct in relation to Keyworth justified the inference that they had a shared intention that he should have a beneficial half share. The Recorder rejected the drawing of any such inference and I see no reasonable prospect of this court concluding that he was not entitled to do so. Whilst Ms Baylis's evidence about who made the first two payments may have been unsatisfactory, so was Mr Wade's, and the burden was on him to prove that he made them. As for the redemption payment, Mr Wade's evidence was equally unsatisfactory; and to the extent that an unspecified part of it came from Jigsaw, I will be explaining why I am also going to refuse permission to Mr Wade to challenge the Recorder's finding as to the ownership of Jigsaw. There is, in short, no good reason for not regarding the Jigsaw element of that payment (whatever it may have amounted to) as coming from Ms Baylis rather than from Mr Wade.
35. Overall, this is an unusual case in which a joint owner of property had deliberately come off the title deeds, failed in his bid to prove an express agreement that he was to retain his beneficial interest and admitted that he had later rejected the idea of going back on to the deeds because he did not want to put the property at the risk of claims by others. In my judgment the Recorder was fully entitled to find that, in all the circumstances of the case, Mr Wade had implicitly transferred to Ms Baylis in 1986 not just the legal title to Keyworth but also his beneficial interest in it. Whether the subsequent course of the parties' conduct and dealings in relation to Keyworth justified the inference of a common intention that Mr Wade should be regarded as having a 50% beneficial share was essentially a question of fact for the Recorder and he gave his reasons for rejecting that case. In my judgment he was entitled to do so. I would regard an appeal against his decision on the Keyworth issues as having no real prospect of success.

2. The refusal to order an occupation rent in respect of Seaward

36. The criticism of the Recorder's decision in this respect is that he misdirected himself. It is said Mr Wade was entitled to occupy Seaward as a joint owner. Contrary to the Recorder's finding, it is said that he had been excluded involuntarily – by injunction proceedings, culminating in his giving an undertaking; and Ms Baylis continued to occupy Seaward to his exclusion. The Recorder was also wrong to take into account that Mr Wade was incurring no expense in his alternative accommodation since the point of an occupation rent is intended to reflect that the jointly owned property is being occupied by just one of the joint owners.
37. Mr Naish introduced his response to this by a summary of the material facts. Mr Wade vacated Seaward in December 2005, his case being that from January 2006 to January 2008 (or during material parts of that two year period) he was then alone in occupation of Keyworth. It was not until August 2007 that Ms Baylis sought and obtained court orders restraining his occupation of Seaward, which were replaced by undertakings from Mr Wade in September or October 2007. Mr Wade's occupation of Keyworth ceased in January 2008, when the locks were changed against him. His proceedings followed in March 2008 and at an interim hearing in April 2008 Ms Baylis made an offer to pay, and did pay, £2,000 to him by way of occupation rent in respect of Seaward for the period from 4 April to 22 August 2008, the latter being the trial date. That offer was made expressly on the basis that it was without prejudice to any obligation on her part to pay any occupation rent. It is said to have been at a monthly rate in excess of half the market rent of Seaward. The £2,000 payment was satisfied by a set off against costs that Mr Wade was ordered to pay in respect of the April hearing.
38. In the event the trial fixed for 22 August 2008 was adjourned to October 2008 because of the late production by Mr Wade of his witness statement, an adjournment which he therefore caused and whose consequence it is said must be laid at his door. The outcome was that the Recorder made the orders that he did, including the sale of Seaward, his order providing that Ms Baylis should have until 22 April 2009 (or until three months after the determination of any appeal by Mr Wade) to buy out his Seaward share for £164,325. Mr Wade filed his notice of appeal on 12 March 2009, which had the effect of extending Ms Baylis's time for buying him out. His grounds of appeal included no challenge to the Recorder's order in respect of the sale of Seaward. Moreover, on 15 June 2009, at a further hearing before the Recorder relating to a dispute over chattels, Mr Naish said that Mr Wade pressed for completion of Ms Baylis's purchase of his half share – despite the fact that the consequence of his own appellant's notice was to defer such completion – as a result of which the Recorder ordered Ms Baylis to pay £50,000 of the purchase price on account, which she has done. The Recorder's reasoning, no doubt, was that as there was no challenge by Mr Wade's appeal to the Seaward sale order, justice at least required the making of that interim payment. As to that, whilst Mr Berkley does not question that the Recorder ordered the payment of the £50,000 and that his client has received and retained it, he disagrees with Mr Naish that at that hearing Mr Wade had pressed for such payment. He said that the Recorder had simply volunteered the making of that order.
39. Now of course the game is sought to be changed, since Mr Wade – having received and retained his £50,000 – now wishes also to challenge the Seaward sale order, a matter to which I shall come. As regards, however, the claim to an occupation rent, Mr Naish's simple point is that given Mr Wade's rent free occupation of Keyworth over the two year period, that being a property of which Ms Baylis was and is the sole beneficial owner, and the payment of the £2,000 occupation rent made in April 2008, the Recorder was fully justified in his discretion in not ordering any further occupation rent. The point about Mr Wade's occupation of Keyworth was made to the Recorder, although it does not feature in his reasons. Mr Naish said that, if the Recorder did misdirect himself in any respect, so that this court on appeal were required to review the question of occupation rent, the fact of Mr Wade's rent free occupation of Keyworth for two years (or material parts such two years) would be central to the exercise of the discretion and told squarely against the making of any payment being ordered.
40. I propose to refuse permission to appeal in respect of the occupation rent point. The Recorder did not deal with the matter as fully as he might have done, but if it is required to be considered afresh on any appeal it is in my judgment almost inevitable that the court will conclude that it would be unjust for the Recorder to have ordered any further occupation rent to be paid to Mr Wade having regard to his rent free occupation of Keyworth following his departure from Seaward. Moreover, but for his appeal, he would by April 2009 have received his share of the value of Seaward. It was only his decision to appeal that deferred that.

3. The order for the sale of Seaward

41. The complaint here is that the judge failed to give both parties an equal right to bid for Seaward. It is said that he treated them unfairly, by permitting Ms Baylis to buy for a fixed price but depriving Mr Wade of a like right. This was an inequitable way to deal with the matter when both wanted to buy. The only fair way to deal with the matter was to allow both parties to bid. The Recorder's assessment that Mr Wade would or might not be good for the purchase price was irrelevant: that would become apparent in the bidding process. The Recorder was also wrong to take into account the occupation by Ms Baylis's mother of Seaward. He had found no more than that Mr Wade was instrumental in inviting her to move to Cornwall (not to Seaward), and she had not in fact moved into Seaward until shortly before Ms Baylis applied to have Mr Wade excluded. Moreover it was no part of the parties' common intention when they bought Seaward that the mother should also live there.
42. Mr Naish's response is that this is – as is admitted - a new ground of appeal, sought to be raised after Mr Wade had effectively affirmed the Recorder's buy out order by pressing at the hearing on 19 June 2009 for the completion of Ms Baylis's purchase of his share, in response to which the Recorder ordered Ms Wade to pay him £50,000 on account which he has gratefully accepted and retained. It would be unjust now to allow him to mount a belated argument before this court that the Recorder was wrong in principle to make the order which he has, in effect, sought to enforce to the extent of the £50,000 and from which he has taken and retained a material benefit.
43. I agree with Mr Naish. I cannot resolve the factual dispute as to whether or not Mr Wade pressed for completion of the ordered buy out at the June 2009 hearing, but by his conduct in accepting the £50,000 he effectively affirmed the making of that order, being an order that I consider was anyway within the Recorder's discretion. Mr Wade's belated claim to challenge it, having in the meantime accepted and retained the £50,000 is as unmeritorious as they come. In the circumstances, I consider that it would be unjust to permit him to amend his original grounds of appeal to add this new ground and I refuse to allow him to do so.

4. The rejection of Mr Wade's claim to a share in the Jigsaw assets

44. The challenge to the Recorder's decision here is that, having found that the parties worked as a team until 2005, he was wrong to conclude that the Jigsaw Galore assets were not jointly owned or that the parties were not partners in the business. He was also wrong to place reliance on Mr Wade's supposed illegality in advancing his claim to the Jigsaw assets. Mr Wade did not need to do more than prove that they worked 'as a team', that is as a partnership. Mr Berkley said that as Ms Baylis had accepted that Mr Wade was not an employee (a matter the Recorder referred to in paragraph 53), it followed that there must have been a partnership.
45. Mr Naish's response was that this was set up as Ms Baylis's business and she alone paid the tax on its profits. Mr Wade once again deliberately chose not to be a partner for shady commercial reasons of his own. He has also taken large sums out of the business for which he had not accounted.
46. I am prepared to assume that this was not a case in which Mr Wade was met by any illegality problems in advancing his case. But I see no answer to the point that it was part of that case that the business was deliberately not set up as a partnership but that it was instead set up as a business in which Ms Baylis was the sole trader. The Recorder admittedly found that the two of them worked as a team but he also accepted the submission that the business remained that of Ms Baylis as a sole trader and that she remained solely responsible in law for Jigsaw's liabilities. He therefore found as a fact that it was not a partnership business and the mere fact that the two worked together 'as a team' did not make it one. Mr Berkley's point that if Mr Wade was not Ms Baylis's employee, he must have been her partner is, with respect, a non sequitur. He may well not have been an employee but it does not follow that he can only have been a partner. I have little doubt that, were any claim for Jigsaw's liabilities to have been brought against Mr Wade, he would have been quick to deny liability. The Recorder's judgment shows that Mr Wade prefers to hide in the shadows.
47. I refuse permission to appeal against those parts of the Recorder's order relating to Jigsaw and its assets (namely, the declarations in paragraphs 2 and 3 of the order dated 22 January 2009).

5. Costs

48. The complaint here is that it is said that the majority of the trial costs were expended on issues upon which Mr Wade won, including in particular whether certain improvements to Keyworth were unauthorised and whether Ms Baylis should succeed on her counterclaim (which she did not).
49. Mr Berkley rightly recognised that permission to appeal on the costs order alone would be unlikely to be given. If, however, permission were to be given on any other grounds, he asked for permission to be given to argue this as well. He pointed to six issues at the trial upon which Mr Wade succeeded, being issues which are said to have represented the majority of time and costs expended at the trial. He said that a 'more issue-based' approach to costs should have been adopted by the Recorder.
50. With respect, I regard this as a hopeless ground of appeal. Paragraph 73 of the Recorder's judgment shows that the parties recognised at the time that it was only Ms Baylis's failure on her counterclaim that was regarded as justifying a deduction in the costs to which she was otherwise entitled. It appears that Mr Naish proposed that she should recover 90% of her costs and that Mr Berkley first suggested 60% and then moved to a 70% suggestion. The Recorder split the ultimate difference and ordered 80%. The relatively narrow bracket within which the parties made their respective submissions shows that his order was well within the proper range of his discretion and a free-standing appeal against his costs order has no prospect of success. I refuse permission to appeal against the costs order.

Result

51. I refuse Mr Wade permission to appeal on all grounds.