England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice, Strand, London WC2A 2LL.
		13th July 1999

13th July 1999

APPROVED JUDGMENT

1. MR JUSTICE LINDSAY: By this action and counterclaim, Liselotte Myrup Abrahams, who has since reverted to her Danish Maiden name of Gundersen, seeks against the Trustee in Bankruptcy of her now former husband, Anthony Emmanuel Abraham, a declaration that she is beneficially entitled to the principal sum of £241,111.68 and interest, that sum representing, after certain costs were deducted, a one-fifteenth share in National Lottery Winnings currently held in an interest bearing account in the joint names of the Plaintiff's and the Defendant's solicitors. Miss Gundersen seeks also an Order that the balance in the account, now a little short of £265,000, be released to her, and she seeks also costs. The Trustee in Bankruptcy resists that and counterclaims for the same relief but in his favour.
2. Before returning to some parts of the facts in greater detail, I shall first set out the general background.
3. In the village of East Preston in West Sussex stands The Tudor Tavern Public House where, in February 1995, the then landlord, Godfrey Ayling, since deceased, and some of his regulars, decided to form a syndicate to subscribe for weekly tickets to the National Lottery. At first ten persons were involved, regulars or the partners or spouses of regulars. The numbers to be entered as selections or lines in the lottery were the same each week, although there seems to have been no clear agreement that that was necessarily always to remain the same.
4. The numbers were picked by way of selection of a number of folded cloakroom tickets, each respective member selecting the six numbers needed for a line; each syndicate member was to pay a pound and there were to be ten purchased lines per week, but irrespective of who had selected a winning line, if anyone did, winnings were to be pooled and divided between the members of the syndicate.
5. The first draw so subscribed for was that of the 4th February 1995. As others coming into the pub heard of the scheme, some wished to join. Membership was expanded to fifteen, each paying a pound a week, with a view, then, to the subscription of fifteen lines. Membership was fixed at fifteen, it seems, for administrative reasons; collecting dues was thought to be likely to be impossible if the number was greater.
6. There were no written rules of the syndicate, nor even, before the win, which I shall describe, any convened formal meetings of the members either to agree rules orally, or at all, although, of course, such members as were pub regulars frequently met in that guise in what seems to have been a convivial village.
7. As time past some members ceased to be such upon moving away from the area or, perhaps, using some other pub, or indicating that they wished to leave the syndicate or upon failing to pay the required sums, or even proving difficult to collect from. One person was banned, although no resolution or even a majority to that effect is spoken to in the evidence.
8. The syndicate, although then unsuccessful in terms of yielding some gain, proved popular and soon others wished to join but could not because of the self-imposed limit of fifteen members. No waiting list as such was ever drawn up but it became known to the landlord, described by one witness as the lynch- pin of the syndicate, and to such as were present when requests for membership were made, that this individual or that was waiting to join. There does not seem to have been any agreement of the members, or even of a majority of them, that those waiting should be taken in any particular order, although, no doubt, between otherwise equals, he or she who had waited longest might well be taken first. In this way the vacancies were filled and the membership continued at fifteen.
9. After a while the syndicate had some small wins of £10 each. There was a discussion in the pub about what should be done with the winnings. There does not seem to have been any attempt to ascertain the views of all members at the time but it was the sense of the most persuasive of those consulted that small wins should not be distributed but that they should be spent on additional 'Lucky Dip' lines.
10. Into this syndicate, after it had been running for a while, entered first Anthony Abrahams and later his wife, the Plaintiff. They had married in September 1992 and that year moved to East Preston. They both were regulars at The Tudor Tavern.
11. Mr. Abrahams joined in February 1996 or thereabouts, Mrs. Abrahams joined later in 1996, each replacing an out-going member, with the number of members remaining at fifteen.
12. Money at the time was short in the Abrahams household and Mrs. Abrahams got a job as a bar person at The Tudor Tavern; as such she was often present when other members paid their syndicate dues, which was commonly, but not invariably, done by the member on visiting the pub handing over a pound, or whatever else he owed to the syndicate and, presumably, indicating that was what the money was for. The money was usually put in the till. A list or sheet of paper was made up showing the names of the fifteen members at the time, with seven columns each marked with the date of a particular lottery draw. Against each such week and for each such name was a box which was ticked off as a member either paid or had payment made on his or her behalf. There was never any requirement that only the member himself or herself should pay and the impression I have is that commonly one spouse or partner would pay for the other as well as for himself or herself, or a friend or the landlord himself would pay for another and then look to that other for recovery, in which case both names would be ticked off in the relevant box for the week in question. The blank forms of the list were in typescript sheets prepared by Dorothy Edna Keogh, now Dorothy Simmons, a member of the syndicate and a retired law costs drafts person. Without any resolution of the members to that effect, she generously took upon herself that task and also the role as authoress and printer of occasional type-script cyclo-styled information sheets or News Bulletins, which were light and chatty sheets which described such syndicate news as had come to her, such as what small wins were made, what had been done with them, what money had in aggregate at the time been staked and what had in aggregate been lost or won.
13. Withdrawals and replacements of members were usually noted by her and circularised in her bulletin at the time, although it was, it seems, no part of a due withdrawal that it should first have been agreed by her or noted to her or circularised by her, nor of a due replacement that she should necessarily first have known of it or agreed to it or have circularised the fact in any way. No bulletin, for example,
14. appears to announce Mrs. Abrahams' accession to membership. Sometimes Mrs. Simmons' bulletins refer to the rules or to a quorum, but there was no evidence as to any provision as to how many should comprise a quorum that had either been agreed at the outset amongst the original ten or later between any fifteen from time to time, nor did Mrs. Simmons have any rule-making authority; she had no greater or lesser authority than any other single member to express a view on what the rules did or did not or should or should not provide. Her bulletins were not posted or otherwise distributed to each member; it was rather the case that if, when she had copies with her, she saw another member as she moved about the village, she would offer him or her a copy and would leave a balance of copies at the pub for collection or not by members. They were not addressed as specific members. Mrs. Simmons was no doubt disappointed to learn from one witness that her bulletin sheets were mostly left in the pub uncollected, evidence which I accept, but perhaps she would have been more heartened to hear it said, as it was, that her tick-off sheets were important, as they plainly were. Little attention was paid by members to the bulletin because - and this is a factor that affected also the informality and imprecision of the syndicate's rules and arrangements - no-one really expected that there would be any substantial wins.
15. It was Edna Keogh's partner, now her husband, John Simmons, a retired chartered accountant, who generally, but not invariably, bought the lottery tickets week by week on the syndicate's behalf, paying over the £15 required and whatever greater sum was paid when the small wins were being applied for 'Lucky Dip' tickets. It was therefore he who most weeks held the tickets on the syndicate's behalf. It was not invariably the case that he would receive the money he had paid for the tickets from the landlord or otherwise on behalf of the syndicate before he bought the tickets, but, either before or after buying them, he would be paid or reimbursed, as the case might be, generally out of the till by Godfrey Ayling. There was no rule that identified Mr. Simmons as having this duty or being any particular officer of the syndicate, but he was willing to undertake it and was rightly trusted to undertake it properly.
16. On the 13th October 1996, Mrs. Abrahams left her husband. She continued to work in The Tudor Tavern. She began, or had already begun, an affair with David Sayers, an insurance man, who had been Mr. Abrahams' insurance man. Not unnaturally, Mr. Abrahams became a less frequent visitor to the pub. He was also less welcome because there were occasions when he shouted at Mrs. Abrahams, who was working behind the bar, and belittling her and accusing her of having a drink problem. At this early stage after their parting
17. Mrs. Abrahams had continued to pay a pound a week for her own place in the syndicate plus a further pound for her husband, with the result that Mr. Abrahams name continued on the weekly lists and continued to be ticked off in them.
18. As for payments to Mrs. Abrahams, Mr. Aubrey Wells, now deceased, had had a talk about what
19. Mr. Abrahams owed to his wife for the weekly contributions she had made in his name. Mr. Wells, something of a mediator between the two because he knew Mr. Abrahams sought a reconciliation with his wife, raised with Mr. Abrahams that he owed his wife £3 for lottery contributions. Mr. Abrahams paid the £3 to Mr. Wells who, in turn, paid it to Mrs. Abrahams. There is no evidence that Mr. Abrahams told Mr. Wells or Mrs. Abrahams that she should continue subscriptions towards his name, or that if she did he would repay her, or that, conversely, she need not do so because he would pay for himself direct. Mrs. Abrahams continued to pay £2 a week to the syndicate and Mr. Abrahams name continued to be ticked off in the weekly lists though he had not made any payment himself.
20. As the weeks passed Mr. Wells spoke again to
21. Mr. Abrahams, after speaking to Mrs. Abrahams, mentioning that Mr. Abrahams by then owed Mrs. Abrahams a further £10 for the lottery contributions which she had made for him. Mr. Wells, whose evidence was by way only of a witness statement dated 9th December 1998, he having died later that month, says that when he was asked for payment of that £10
22. Mr. Abrahams said "No way."
23. Mr. Derek Campion gave evidence of an occasion on which Mrs. Abrahams, working behind the bar, asked
24. Mr. Abrahams on one of his, by then, infrequent visits to the pub, for at least £10 Lottery money. There was a row. He refused to pay. Mr. Campion's witness statement says that Mr. Abrahams replied that she could "stick it", and, at the end of the conversation, said "Up your arse". In cross-examination he said that Mr. Abrahams said words to the effect, "As far as the Lottery is concerned you can stick it up your arse." Mrs. Abraham's evidence was that after she had spoken to Aubrey Wells about the £10 or more which she felt her husband owed her for Lottery contributions (she was not sure how many weeks had gone unpaid by him) Mr. Abrahams had come into the bar and told her to "Fuck off". Whether the separate expletives were used together on one occasion or separately on two is not clear, but either way Mrs. Abrahams was entitled to conclude that if she paid thereafter for Mr. Abrahams' benefit she would be very unlikely to recover from him what she paid. This was either early November or late October 1996.
25. Mr. Abrahams, to whose credibility I shall return in more detail later, denies the evidence of those two, or that one, occasion and also that he gave the "no way" answer to Mr. Wells, but I prefer the evidence of Mr. Campion and of Mrs. Abrahams and the witness statement of the late Mr. Wells.
26. Mr. Campion, not a member of the syndicate, told Mrs. Abrahams that it was okay if her husband did not want to be involved in the syndicate, since she would have two stakes. He had no authority whatsoever to say so. Mrs. Abrahams never asked her husband for Lottery money again, nor did she ever again receive anything from her husband described at the time as being to recompense her for, or to enable her to meet, the Lottery money she laid out.
27. However, perhaps encouraged by Mr. Campion's view, Mrs. Abrahams continued to pay £2 a week rather than £1, and accordingly saw her husband's name ticked off week by week as well as her own. There was no fixed rule as to who should do the ticking. It was usually done by people behind the bar at the time. Mrs. Abrahams regularly put ticks on the lists as and when others paid, but she sensibly preferred that someone else would tick off as she paid her £2 so that an independent record was made of her payments.
28. There was thus no secret that she was paying £2 weekly rather than £1, nor that on her paying £2 both her's and her husband's names were being ticked off. She had not thought it important to change the names on the list and, whilst she did not expect the syndicate to make any substantial wins, she did intend that if there were any she would have two shares thereof rather than one. She had stopped paying for Mr. Abrahams by November 1996, when he had refused her money, and thereafter she was not intending to pay for his benefit. No-one told her until after the win that she could not take two shares and she thought she would be entitled to two shares. It was no secret in the pub that she would be claiming a further share beyond her own if there were any winnings. Her evidence, which I accept, is that Godfrey Ayling, the publican, joked with her that, as she put it, using a Danish idiom, "Anthony would have a long nose if the Lottery came up, as he would not receive anything, not having paid."
29. Mr. Neil Webster, earlier a member of the syndicate but who left the area and who, on his return, did not re-join the syndicate, and who had worked behind the bar of the Tudor Tavern for a while, gave evidence that it was something of a joke between members that, as Mrs. Abrahams was paying, she would benefit and that Godfrey Ayling joked about it, as also did his son Gary. I can only think, using the English idiom, that Godfrey's joke was that Mr. Abrahams would have "a long face" if the syndicate won.
30. I do not hold that every member of the syndicate knew either that Mrs. Abrahams was subscribing £2 a week or that she was doing so in the belief it would entitle her to two shares, nor do I hold that no member would have objected or at least queried that had he or she known of it. However, I do hold that Godfrey Ayling, the lynch pin of the syndicate, knew and did not dis-approve, and that some others of the pub regulars and Mr. Webster knew and did not object.
31. On the 1st May 1997 the ownership of The Tudor Tavern changed hands. Godfrey Ayling and his wife, Karen, left. The new owners of the pub did not wish to continue the syndicate but the syndicate continued. Without any convened meeting of all so to decide, Mr. and Mrs. Simmons changed its name to the "Tudor Tavern (that was) Lottery Syndicate" and arrangements were made that, instead of the publican collecting or receiving contributions, that would now be done instead by Dave and Doris Smith, who ran the greengrocers' shop in the village. Mrs. Simmons had prepared a seven weeks tick-off sheet as usual, running, in this case, from the 10th May to the 21st June 1997. She prepared it with Mr. Abrahams' name on it as usual. She did not know that Mrs. Abrahams was paying £2. She would not have made changes to her tick-off sheets or have mentioned them in her bulletin unless someone, generally Godfrey Ayling, had told her of them, and no-one had told her of any change required as to Mr. Abrahams' name. Mrs. Simmons did not suggest that her knowledge or lack of it was in any way definitive. What was important, she said, was what Godfrey Ayling knew; he was a mainstay of the syndicate.
32. Contributions were received by Dave and Doris Smith for the draw on the 10th May 1997. Mrs. Abrahams paid £2 to Mr. Smith. I have no doubt but that it was with a view to her becoming entitled to two one-fifteen shares if, as she did not expect, the syndicate tickets should include a substantial winning line. She had, I hold, no intention that she was thereby conferring any benefit on her husband by way of gift or in any other way. Further, she was without there having been anything to suggest to her that he thought that she was, or would be, subscribing for his benefit.
33. For some time Mrs. Abrahams had known that
34. Mr. Abrahams wanted a reconciliation with her but she had no corresponding wish and she did not pay against his name with any view to reconciliation, nor did she feel guilt at leaving him. She had asked for Lottery money and had been rudely rebuffed. She had, moreover, started divorce proceedings against him in late January 1997, asking, inter alia, for maintenance pending suit. She had also applied for Housing Benefit as she was receiving nothing regularly at all from her husband. As a further complication,
35. Mr. Abrahams had been declared bankrupt on the 25th March 1997.
36. As I have mentioned, I shall revert later to the subject of the credibility of Mr. Abrahams' evidence, but here I note that it includes that he never said he did not want to be involved in the syndicate. That is true in the sense that he never used those words; he did not in terms say to Godfrey Ayling, or, for example, to Mr. or Mrs. Simmons, that he wished to leave the syndicate, but he did not pay contributions in 1997 and his language and conduct had left his wife in no doubt that he would not repay her if she paid in his name, left Godfrey Ayling with the belief that he would not be entitled to any winnings and had left
37. him, Mr. Abrahams, with no reasonable ground for his asserted belief that his wife was paying his way for him.
38. The greengrocer, Mr. Smith, after receiving
39. Mrs. Abrahams' £2 for the draw on the 10th May 1997, but before the win and without any instruction in that behalf from anyone, let alone from Mrs. Abrahams, struck out Mr. Abrahams' name from the tick-off sheet and wrote in its place, "Lotte", short for Mrs. Abrahams' full name, Liselotte. Mrs. Abrahams did not know of that until well after the win.
40. Despite the massive odds against it, the syndicate had a winning line on the 10th May; the syndicate won three million, six hundred and thirty-two thousand, three hundred and twenty-seven pounds. Each one-fifteenth share was thus worth £242,155.13.
41. It soon became apparent that Mrs. Abrahams was claiming two one-fifteenth shares and that Mr. Abrahams was claiming that she was entitled to only one-fifteenth and that the other fifteenth was his.
42. On the 20th May 1997, Mr. Anthony Murphy became Mr. Abrahams' Trustee in Bankruptcy, he is the
43. Defendant to Mrs. Abrahams' claim, and it is he who counterclaims.
44. Faced with the dispute as to the second of the two shares for which Mrs. Abrahams had paid, some other members of the syndicate, led by Mr. Simmons, the retired chartered accountant, took legal advice, and in no time at all there were solicitors involved nominally for the syndicate, for Mrs. Abrahams, for Mr. Abrahams, for, somewhat remarkably, Mr. Abrahams' brother and for the Trustee in Bankruptcy. Fourteen of the one-fifteenth shares were promptly distributed, including the one-fifteenth to Mrs. Abrahams. Eventually it was arranged that the remaining one-fifteenth in dispute, after an agreed deduction there-out of some of the legal costs of the others in the syndicate, should be paid into an interest bearing account in the joint names of Mrs. Abrahams' and the Trustee in Bankruptcy's solicitors. As I mentioned earlier, it is now worth little short of £265,000. The other members of the syndicate, after taking legal advice, decided to lay no claim to that share; the contest is between, and only between, Mrs. Abrahams and the Trustee in Bankruptcy. Mrs. Abrahams issued her Writ on the 17th September 1997, and the Trustee's counterclaim is dated the 5th March 1998.
45. Before I turn to the law, I need to deal with two points, the first of which is the Trustee in Bankruptcy's allegation that amongst the rules of the syndicate are rules that each member was allowed only one share, that members retired from the syndicate by giving notice to it either orally or in writing or by the syndicate giving notice of the member's default in paying the weekly subscriptions, and that a non-paying member could not take part in the draw for a week in which no subscription was paid.
46. After the win, and after some, but not all, members of the syndicate had received legal advice, the solicitors acting for such members, in a letter of the 9th June 1997, wrote as follows:

"Members of the syndicate, other than Mr. and Mrs. Abrahams have been asked to state their understanding of the rules and they have signed that the rules of the syndicate are:-

(i) The maximum number of members is fifteen.

(2) The share for each member is one-fifteenth or an equal distribution between the number of members if less than fifteen.

(3) Each member may only have one share.

(4) When a vacancy occurs in the membership it is offered outside the syndicate.

(5) Members retire from the syndicate by giving notice to the syndicate either verbally or in writing, or by the syndicate giving notice of the member's default in paying the weekly subscription."

47. I do not accept that letter as evidence of what the rules were as at the 10th May 1997 or earlier, nor, indeed, has anything signed to the effect mentioned in that letter been produced. Only eight of the fifteen members had attended that meeting; whether they were unanimous, and if so whether such unanimity was before or after advice, is unclear. Whilst, no doubt, with the benefit of advice and hindsight those eight could well, after discussion together, have reflected that it would have been sensible if those had been the rules, or that each had separately thought that they were the rules, there had never been anything written or agreed orally between all members as to what the rules and arrangements should be. Such rules or arrangements as there were were far more loose and informal than the existence of those supposed rules would suggest. It is to be borne in mind that this was a pub syndicate. It was, as Mrs. Simmons said, "a fun syndicate". Mr. Simmons called it "a fairly relaxed sort of syndicate." Mrs. Abrahams says, and I accept, that as far as she knew there was only one rule of which she was aware, namely, that there should always be fifteen members.
48. Another member, Mr. Sergeant, gave evidence, which I accept, that on joining he was not told of any rules other than that the weekly contribution was £1 and that there could only be fifteen members. He did not believe that there were any other rules.
49. Mr. Wells' evidence was that there was no rule he was aware of other than that there should be a limit on membership at fifteen.
50. Mr. Webster's evidence, which I accept, was that any person who had not paid at the time of a win would not get anything and that if anyone was more than about two or four weeks in arrears he or she would be dropped and the place offered to someone else.
51. Mr. Simmons said he believed, as I accept he did, that no member could have more than one share, that all members were to pay their dues prior to any draw taking place unless there were any unforeseen circum-
52. stances, and that members not abiding by that rule would not be eligible to partake in any wins. A fundamental principle was, said Mr. Simmons, that no one member shared more than another, but it was equally plain from the evidence that who paid, as between husband and wife or partner members and how they arranged to share between themselves, would be regarded as a private arrangement with which the syndicate was unconcerned.
53. These witnesses were all giving different versions of their own personal knowledge or belief as to unwritten rules but there had been no convened or any meeting of all the members at any one time that either formulated the rules or changed them and individual under-standings, even had they all been the same, a fortiori as they differed, do not constitute rules. It is not even as if any one member's particular understanding of the rules was consistent with actual practice. Thus £2 a week was accepted from Mrs. Abrahams despite its being known that £1 of those £2 was not intended by her to be for the benefit of her husband who, although he had not paid, had his name still left on the sheets ticked off week by week. Small wins were not distributed but were re-applied as "Lucky Dips". Mr. Sergeant was in arrear the very week of the win and yet, without any explanation by him to all, or, as it would seem, to any members of there having been unforeseen circumstances, he was allowed to pay his £1 after the win and he took a one-fifteenth share. Mr. Webster, having moved away from the area and having ceased paying, had, unknown to himself, had his contributions kept up for a time against his name by Godfrey Ayling.
54. To call any of the individual understandings rules of the syndicate is to give them an undeserved dignity and authority but I doubt there was anything even approaching being a rule beyond that there should be fifteen members, that £1 a week had to be paid by or on behalf of each, that if, over some undefined but relatively short period, payment was not made against the name of that one person, that person's membership would lapse and would be offered to some outsider, and that winnings, or later large winnings, should be distributed rateably according to contribution, which were assumed to have been equal. I am not convinced even those loose understandings were immutable. As Mrs. Simmons said, Godfrey Ayling effectively ran the thing; it was his syndicate. So long as a change in the rules did not adversely affect another member, I doubt whether anyone would have objected to whatever Godfrey Ayling proposed, and even if he or she had objected and had persisted, my impression is that the outcome would be as likely to have been that the objector would have left the syndicate as that the proposed change should be abandoned.
55. The second matter I must deal with before turning to the law is Mr. Abrahams' evidence and credibility. I have already noted that I have preferred evidence other than his. I shall deal with three points. Firstly, in his witness statement he says that in the period from December 1996 to the win on the 10th May 1997, or certainly after November 1996, he made a number of payments direct to the syndicate. When taxed with this in cross-examination he said that it was hard to remember times and places but the payment was to who-ever was behind the bar; it might have been to Godfrey Ayling or his wife or to David Sergeant. It had not earlier been put by Miss Hilliard for
56. Mr. Abrahams to Mr. Sergeant when he was in the witness box that he had received any such sums despite Mr. Sergeant's clear witness statement that Mr. Abrahams had never paid any payments towards the syndicate after Mr. and Mrs. Abrahams had separated. Mr. Godfrey Ayling is dead and by the time Mr. Abrahams gave his evidence the Plaintiff's case had been closed without Mrs. Ayling giving evidence. When pressed further, Mr. Abrahams said he might have paid Godfrey Ayling and have said, "Here's the money for the syndicate." I prefer Mr. Sergeant's unchallenged evidence and do not accept that Mr. Abrahams paid the syndicate direct. Moreover, Mr. Abrahams' evidence that he was making a number of payments direct to the syndicate makes it harder to believe his oral evidence that he believed his wife was paying his share to the syndicate. If
57. Mr. Abrahams had sometimes paid the syndicate direct and at other times had relied upon his wife paying for him, it would have been natural for some enquiry to have been made by him of those he paid direct, or of his wife, or of the keeper of the weekly sheets, as to whether payment had already been made for this week or that, or some assertion by him that one week or another had already been covered. There was no such evidence.
58. Secondly, Mr. Abrahams at first gave evidence, as to the £3 incident with Mr. Wells, that Mr. Wells had said that he, Aubrey Wells, had paid the £3 to the syndicate on his, Mr. Abrahams', behalf. Yet, on his seeing that Mr. Wells had said that he, Mr. Wells, had told Mr. Abrahams that it was Mrs. Abrahams who had already paid the £3, Mr. Abrahams' first said that he did not think that was the case and then finally accepted that it was and that he was mistaken. The episode hardly assisted his credibility.
59. Thirdly, he gave some evidence as to his and his wife's dog, evidence which I fear can only be regarded as an attempt to mislead. They had a dog called Luke. Mr. Abrahams later paid £80 as the price of the dog having been put in kennels whilst his wife was abroad. He had put forward this expense as part of a re-imbursement of "any weekly subscriptions of £1 that she may have paid on my behalf between December 1996 and 10th May 1997. That underlining is mine; leaving aside that the "any" and the "may" are hardly consistent with a firm belief that his wife was regularly paying his £1 week by week, the evidence as to the dog emerged as follows. Mrs. Abrahams intended to go home to Denmark for Christmas 1996. She made arrangements that Luke, the dog, of which she had informal custody, would stay with a friend,
60. Mr. Cooper, and his partner over Christmas as she could not afford kennels. Mr. Cooper, who gave evidence, agreed to take the dog; he knew the dog and knew that Mrs. Abrahams was short of money. However, at Mr. Abrahams' insistence and to Mr. Cooper's annoyance, the dog was not left with Mr. Cooper but taken by Mr. Abrahams and eventually placed by
61. Mr. Abrahams in kennels, after Mrs. Abrahams had gone to Denmark. Mrs. Abrahams, before she left for Denmark, having seen the dog left with Mr. Abrahams and having told Mr. Cooper that his kind assistance was not, after all, to be required, then heard from
62. Mr. Abrahams whilst she was in Denmark that he, although knowing that she could not afford kennels, had put Luke in kennels; she had protested it was silly. In the New Year Mr. Abrahams had arrived drunk at the kennels, which were run by Mr. Campion, and was unable to pay the bill of £82.80. With reluctance
63. Mr. Campion accepted a cheque from Mr. Abrahams' brother, who was with him, a cheque which was drawn on a Maltese bank and which was dishonoured on presentation. After mentioning that to Mrs. Abrahams, Mr. Campion then received £80 in cash from Mr. Abrahams. The story would have had no significance if Mr. Abrahams had not sought to picture it as a reimbursement to Mrs. Abrahams of Lottery contributions. It was he that had incurred the £82.80. Mrs. Abrahams' arrangements, had they been left alone, would have cost her nothing. It was he that undid those arrangements and he who put the dog in kennels. It was, unless he knew his brother's cheque would bounce, chance that it was he, and not his brother, that first paid the £82.80. His witness statements says:

"My wife had previously registered the dog with the kennels in contemplation of leaving him there over Christmas and signed the kennel owner's terms and conditions agreeing to be responsible for any fees."

64. It was true that Mrs. Abrahams had registered the dog with the kennels but that had been in September 1996 and in contemplation of a quite different stay than that at Christmas 1996, as Mr. Abrahams must have known.
65. Moreover, he must have known that he could not expect her to be responsible for the fees as she had left the country without knowing of any arrangement that the dog would be put in kennels and as when, in Denmark, she had learned that he had chosen to put the dog in kennels, she had protested that it was silly.
66. In context, his witness statement must have been known by him to be materially false. All in all, I do not find Mr. Abrahams to be a witness on whose evidence I can rely.
67. Of course, it is in the nature of things that money is likely to change hands between husband and wife, and even after they are separated and even in the absence of a Court Order in that regard, and so I do not say that never, after they separated, did he give her money or presents, but they were, in general, trifling, save for a diamond ring, and none was attributed by him at the time to repayment of past or payment of future Lottery contributions, nor was it received by her with any intent that they should be. As for the ring, he claims that when handing it to her he said, "In case of emergencies please use this ring", he knowing that she was very short of money. However, no-one could reasonably take the payment of Lottery contributions as an emergency and in any event Mrs. Abrahams, whose evidence I in general prefer, gave evidence as to the ring - that he was merely giving back to her, in the hope of fostering a reconciliation, a ring which he had long before given
68. to her but had more recently taken off her, claiming, at the time, that she was not worthy of it.
69. It is Mr. Abrahams' evidence that he believed that his wife had made payments to the syndicate on his behalf, that she was adequately reimbursed for doing so and that even after December 1996 he made payments direct to the syndicate. I accept none of those assertions. After his crude and emphatic rejection of her request for the £10 contributions, he could have had no reason to think she was or would be subscribing for his benefit. He rightly says that no-one told him that he was off the list of members, but he does not suggest, as would have been the obvious thing, that he had ever asked either his wife or Godfrey Ayling on the point. There was no evidence that he saw the weekly sheets with his name on them, or that his name was ticked off week by week in 1997. Nor do I accept his evidence that he would have been told if he had ceased to be a member. No-one who, as he had, had no good ground for believing that payment would be made on his behalf, could reasonably expect that he would remain a member unless told otherwise, and the workings of the syndicate were far too vague to lead to any genuine belief that some form of notice would necessarily be given before membership lapsed. It is to be remembered that Mr. Smith struck Mr. Abrahams' name off the list without, so far as the evidence goes, any notice being or being attempted to be given to Mr. Abrahams. I cannot assume from the fact that Mr. Abrahams early on asserted, certainly by the Monday following the draw at 8 p.m. on the Saturday, that he was entitled to a one-fifteenth share, that he must therefore have believed it to have been the case that his name had remained on the list all along and that his wife had been contributing on his behalf. The news of the big win in a village where, said Mrs. Simmons, everyone knew everyone, would have flashed around the area at speed, and it was in Mr. Abrahams' interests to claim a win, whether or not truly he believed that he had grounds for doing so by reason of his name being on the list (as, in fact, for that week, it was not).
70. Mr. and Mrs. Abrahams' divorce eventually went through unopposed, and, as I mentioned earlier, she has reverted to her maiden name.
71. So much for the facts and I now turn to the law. On Mrs. Abrahams' behalf Miss Sandells puts the case two ways; firstly, it was she, not her husband, who had contributed the £1 which Mr. Smith ticked off the list as contributed by "Lotte" on the 10th May, after crossing out Mr. Abrahams' name, and it is therefore
72. Mrs. Abrahams who should take the one-fifteenth attributable to that contribution. Her case would be the same, she says, even if Mr. Smith had left on
73. Mr. Abrahams' name unamended. Alternatively, but to the same end, Miss Sandells relies on an unrebutted presumption of resulting trust. I will take the latter argument first.
74. The presumption of resulting trust in favour of a real purchaser is described in the 29th Edition of Snells Equity at page 177 as follows:

"1. Presumption of resulting trust to real purchaser. (a) The Principle. Another common case of an implied or resulting trust is where on a purchase property is conveyed into the name of someone other than the purchaser. "The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the names of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of common law, that where a feoffment is made without consideration, the use results to the feoffor." The doctrine applies to pure personalty as well as land."

75. Authority for that last sentence is found in Scottish
76. Equitable Life Association Society [1902] 1 Chancery,
77. 282, which Miss Sandells has relied upon.
78. Evidence is admissible as to who has actually paid for whatever is so bought. In some cases a presumption will arise, the presumption of advancement, such that it will be taken, unless proved otherwise, that the true purchaser was making a gift to the person in whose name the acquisition is put. Thus if a man buys property and has it conveyed to his wife, it will, absent contrary evidence, be taken to have been intended to be a gift to her. In such a way the presumption of resulting trust can be undone leaving the acquisition to be beneficially held for the person into whose name it was put. However -- see Snell's Equity page 179 -- "no such presumption of advancement arises when a wife buys property and puts it in her husband's name; prima facie he holds as trustee for her."
79. Miss Sandells says that this is just such a case. She accepts the husband is entitled to rebut the presumption of resulting trust by evidence, but where there is no relevant evidence of sufficient weight to show that the purchaser's real intention was not that there should be a resulting trust in her favour, then the presumption of resulting trust prevails. It is not all evidence that is, for these purposes, admissible. Snells Equity at page 180 says:

"Acts and declarations admissible. The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration; subsequent acts and declarations are only admissible as evidence against the party who made them, and not in his favour."

80. Miss Sandells argues that on the evidence I cannot find that Mrs. Abrahams was intending, as she subscribed the £2 for the draw of the 10th May 1997, to make a gift in favour of her husband either of the £1 or of any right to share in any winnings or of any other kind. Mrs. Abrahams, she asserts, subscribed both pounds with a view to receiving two one-fifteenth shares of any substantial winnings for herself. Moreover, she continues, Mr. Abrahams had no reason to believe that she was subscribing for his benefit; he had been asked to pay but had rudely refused. He had not been heard to say before the great win that he was still a member or that he believed that he was or that he understood that she was contributing for his benefit. Not only is the presumption of resulting trust not rebutted, says Miss Sandells, but such evidence as is admissible points only to Mrs. Abrahams intending that she should benefit as to both one-fifteenth shares for which she was paying.
81. I accept that case to be well founded on the facts which Miss Sandells has asserted. On the law Miss Hilliard, for the Trustee in Bankruptcy, urges that there can be no resulting trust as there was no purchase. No property, she says, was acquired by
82. Mr. Abrahams as a result of his wife's payment of the £1. Nothing more was acquired than a hope, which is not property. Miss Hilliard relies on Re: Campbell [1996] 2 AER 537. In that case Mrs. Campbell had suffered very serious injuries as a result of a criminal assault. She applied for compensation to the Criminal Injuries Compensation Board for an award. After that application, but before any award, she was made bankrupt. Almost two years thereafter she received a net award of £182,150. The question for the Court in that case was this; had her entitlement, whatever it was, to the money so awarded vested in the Trustee in Bankruptcy when she was made bankrupt two years earlier. Mr. Justice Knox had to consider the definition of "property" in Section 283, sub-section 1 of the Insolvency Act 1986. If what Mrs. Campbell had had at the point of bankruptcy almost two years before the award was "property" and was vested in her, then it would be part of the bankrupt's estate and would vest in the Trustee.
83. At page 540 Mr. Justice Knox said:

"Treating the matter purely as a matter of construction, I am quite unable to accept that the word 'property' when it is used in the definition of property is intended to describe anything other than an existing item. In other words, I do not accept that it is susceptible and referring to something which has no present existence but may possibly come into existence on some uncertain event in the future. There seems to me to be a very clear distinction between the two situations. The first is where there is a contingent interest in property, for example the right to receive £50,000 under a legacy contingently on attaining the age of 'x' years when one is 'x' minus 'y' years old. That is an interest which is contingent in the future, but if there is a trust fund, which I assume in my example there is, there is existing property in respect of which there is a contingent interest, that seems to me quite different from the second situation, the possibility of achieving an interest in something which presently does not exist but may exist in the future. Examples might be the owner of a Lottery ticket in relation to the prize that may perhaps at the end of the following week arise in his or her possession. Similarly the person who has filled in the coupon on the football pools might perhaps become entitled to property should that coupon have been successfully filled. In neither case there can it be described as a futural contingent interest arising out of or incidental to property because there is no underlying existing property which, or the proceeds of sale of which, are susceptible to the existence of the proprietary interest even a future one. It seems to me that the Trustee's argument purely as a matter of construction of the 1986 Act and the definition or enlargement of the concept of property which is contained in it cannot succeed."

84. Relying on the reference there to a Lottery ticket, Miss Hilliard argues that there was no property transferred to Mr. Abrahams or acquired by him in connection with his wife's contribution of a pound beyond the one pound that led to her own name being ticked off in the syndicate's list of the 10th May 1997. However, crucial to the decision in Campbell supra was the consideration that there was no right in a citizen who suffers injury as a result of a criminal assault to enforce any form of award from the Criminal Injuries Compensation Board. There is no right to sue for the award - page 539 F. By contrast, when money was paid by a member for the purposes of the syndicate the payor, in my judgment, thereupon gained a right; it was a right to have the winnings, if any, as received by whoever received them on the syndicate's behalf duly administered in accordance with whatever rules of the syndicate then applied, or, in the absence of clear rules, as the Court should determine. It was a present right that would, of course, be valueless in relation to a losing draw but a right which could be immensely important should there be a big win. I see no reason in principle, leaving aside the pointlessness and cost of such a claim in most cases and the fact that the grant of such relief may, in point of discretion, be refused, why, even before a win, a syndicate member who had paid his dues should not be able to seek a declaration from the Courts that the ticket holder, if identified and joined as a party, would hold winnings upon trust to apply the same in accordance with the rules, if any, or otherwise as the Court should direct.
85. The fact that the right I have described would be likely to arise and to become valueless week by week does not, in my judgment, deny it the description of being property, nor deny its acquisition, on payment therefor, of the description of being a purchase. Whilst I would not wish to encourage any such litigation, as another example one could imagine a case in which a syndicate bought so many tickets that some win, albeit only a small one, was little short of inevitable. I see no reason why, in principle, its members, other than the ticket holder, on learning that he had bought a ticket for, say, South America, should not be granted injunctive relief requiring the ticket to be lodged in safe hands. They would be asserting a right of the kind which the law can recognise; the right to have property duly administered if and when it is received. That right is itself property. The right, as such, would exist even if the prospects of winnings were less, but in that case the relief could well be declined not for want of a right but in the discretion of the Court.
86. There was no equivalent property in Campbell because, at the date of the bankruptcy, there was no right in Mrs. Campbell to sue for anything, not even some declaration corresponding to that which I have described. The only possible person that she could sue was the Criminal Injuries Compensation Board which, it was common ground, could not be sued. I thus do not accept Miss Hilliard's argument based on Campbell.
87. Next Miss Hilliard relies on Owen -v- Tate and Another [1976] 1 QB 402 Court of Appeal. The question that arose in that case was whether the Plaintiff, who voluntarily and without the knowledge, indeed despite the protest, of the principal debtor, had assumed the role of guarantor of the principal debtor's debt, and who had accordingly been called upon to and had paid the principal creditor, could require to be indemnified by the principal debtor. The Court of Appeal held that if, without an antecedent request, a person assumes an obligation or makes a payment for the benefit of another, the law will, as a general rule, refuse him a right of indemnity: see Page 412. Had Mrs. Abrahams, for the draw of the 10th May 1997, paid £1 to the syndicate for the benefit of
88. Mr. Abrahams and had she then demanded that he re-
89. pay her that £1 the case might have had some relevance. On the facts as found it has none.
90. Finding there to be no impediment in law to
91. Miss Sandells' resulting trust argument, I revert to it. The presumption of resulting trust is not only not rebutted but its consequence is supported by the evidence I have accepted. The one-fifteenth share at first sight payable to Mr. Abrahams (assuming in his favour that David Smith's deletion of his name did not weaken his entitlement) would, were he to receive it, be held by him in trust for his former wife beneficially. It is thus not an asset in his bankruptcy and the Trustee in Bankruptcy has no good claim to it.
92. As between the Plaintiff and the Trustee in Bankruptcy - and they are the only claimants - the Plaintiff has the better beneficial title to the principal and interest of the £264,000-odd in the agreed joint account.
93. I add that I would have had some reservations about the effect of the resulting trust argument had Mrs. Abrahams known, and had it been the case, that there was some clear syndicate rule which she was breaking in doing as she did. She had no such knowledge nor, on balance, do I hold that there was any rule properly-so-called that she broke. The facts that some members before the win probably thought there was an applicable rule and that several members after the win thought that there had been both a rule and a breach of it do not suffice to prove a true rule of the syndicate. Nothing in the rules, I hold, precluded private arrangements agreed between contributors and I find no rule which precluded such consequences as the law might presume to arise between contributors.
94. The Plaintiff's success on her resulting trust argument makes it unnecessary for me to deal with her other case. I say no more than that I would have found nothing contractual to stand in the way of the payor, Mrs. Abrahams, being entitled to the fruits of her payments. As Mr. Simmons said, if you didn't pay you didn't win. But there was no clear rule that if you did pay you did not win. Nor had Mr. Abrahams ever forbidden his wife to subscribe in his or any other name, nor was there any formally resolved upon rule or one agreed by all members that no one person could subscribe in another's name.
95. I dismiss the Trustee's counterclaim. I declare that the Plaintiff, now Miss Gundersen, is beneficially entitled to the principal and interest currently held in the bank account in the joint names of the two solicitors and order that the balance be released to the Plaintiff forthwith.
96. MISS SANDELLS: My Lord, I believe that leaves the question of costs?
97. MR JUSTICE LINDSAY: Yes.
98. MISS SANDELLS: Under the circumstances I ask for my costs from the Trustee, which is something I put them on notice of before we began proceedings.
99. MR JUSTICE LINDSAY: Miss Hilliard?
100. MISS HILLIARD: My Lord, I cannot in principle oppose that, other than I did ask in relation to the half day that was wasted at the outset of this trial that those costs be paid by the Plaintiff to the Trustee. I have some correspondence between my instructing solicitors -- no, from my instructing solicitors to solicitors for the Plaintiff, as early as the 18th May 1999, seeking for co-operation in relation to the bundles, and it was not until really I think the 2nd July that contact was made, and I in fact did not receive a bundle until the Friday before the trial. I wonder if I could just hand up to you the correspondence, my Lord? (Handed). The letter dated the 18th May from my instructions, Lynch Hall, saying that the solicitor with the conduct of the matter is going to be away on annual leave from the 1st to the 11th June, that would it therefore be sensible for us to agree over the course of the next week or so the documents to be included in the trial bundle. "Perhaps you could indicate on the copy of our respective list of documents the items you wish to include for us to approve." Then there was no response, and so there was a follow up letter on the 22nd June 1999, and then there was obviously a faxed letter of the 1st July enclosing draft trial bundle index, Civil Evidence Act Notice in respect of Aubrey Wells, pre-trial check list and statement of Neil Webster, and you see what my instructing solicitor said. "We made every effort to assist your Mr. (inaudible) secretary yesterday afternoon with completion of the trial bundles and index. In this regard we refer to our fax sent yesterday afternoon in which we confirmed various problems concerning inter alia a number of documents which you have included in the bundle and yet which did not appear in your list of documents served on 28th December 1998. We are very concerned that we have had to deal with matters of this nature at such a late stage. You recall our letter of the 18th May. No reply was received to that letter and we wrote to you again on the 22nd June. No reply was received until our first conversation concerning the bundle this Monday, 28th June. We then had to wait another three days to actually receive the draft index. The Court may well want to be appraised of these matters on Monday."
101. MR JUSTICE LINDSAY: It was a two day estimate and it took two days; that is right, is it not?
102. MISS HILLIARD: Yes, exactly so, my Lord. The Chancery Guide at Paragraph 826, on Section A, General Civil Work, that says that the general rule is that the complainant must ensure that "(1) copy of the properly prepared bundle is delivered at the Listing Office at least two clear days before the hearing of an application and at least seven days before the trial." So that rule was not complied with here. It did cause some difficulty in terms of preparation because there was not an agreed trial bundle at the time when skeleton arguments had to be prepared. I had to prepare my skeleton argument on the basis of an old bundle of documents sent to me by my instructing solicitor. That skeleton argument was prepared and then of course eventually I think I finally got the bundle at about midday, just after midday on Friday. It is true to say that it was listed, the trial, for two days, but my submission is that nevertheless that if these new rules about costs are to have any contact to a Court at all they should be applied in such a way to penalise plaintiffs who do not submit bundles in due time in accordance with the rules. Rule 44.3 of the new Civil Procedure Rules, sub-paragraph 4 states that "in deciding what Order, if any, to make about costs the Court must have regard to all the circumstances, including the conduct of all parties." Given that the Chancery Guide makes it very clear that the trial bundle is supposed to be submitted at least seven days before the trial, and given the correspondence by my solicitors chivving up the claimants as early as the 18th May, and trying to agree trial bundles, in my submission, it would be appropriate, bearing in mind that you had to spend the whole of Monday morning reading the documents, that we should not have to bear the costs of that half day, and you can see from Rule 44.3 sub-paragraph 6, that the Court can make an Order under Rule 44 which includes an Order that a party must pay a proportion of another party's costs, and, my Lord, we would simply say that it is appropriate in the circumstances of this case that the Plaintiff should bear the costs of the half day that was wasted, and that would include -- that would obviously cover the time that was wasted by my instructing solicitors and myself as a result of not really having properly agreed and properly prepared trial bundles at the time of preparing skeleton arguments. (Pause). My further instructions on the matter are that it was only after further telephone conversations and telephone calls from my instructing solicitors after the letter of the 22nd June 1999, that we finally received, or my instructing solicitors finally received, the faxed letter of the 1st July 1999 referred to in the last letter in the clip I handed up to you, the 2nd July 1999. So my instructing solicitors were encouraging and tried to co-operate with the Plaintiff's solicitors in the manner now required under the Civil Procedure Rules; I would say under the old Rules as well, and that co-operation was not forthcoming. So in the circumstances I would say that the appropriate Order is the one that I have asked for. Thank you, my Lord.
103. MISS SANDELLS: Just a number of very short points, my Lord. First of all, we gave a two day time estimate, and we finished within the two day time estimate. Secondly, your Lordship will recall we did not actually start until 11 o'clock on the first morning because your Lordship had a litigant in person to deal with. We were late starting in any event, it was not a full half day that was lost; it was the time after the 11 o'clock start and after the time dealing with matters before your Lordship went out to read that was lost, rather than the full half day. Also your Lordship should be aware that although it is quite clear that we have failed to comply with the bundle of requirements, we failed to comply with the direction of the Court that the bundle be put in seven days in advance, the Defendant has not exactly covered himself in glory either, because it has also failed to comply with the direction of the Court which is at page 37 of the bundle, and that direction was that 21 days before the date fixed for trial the Defendant should identify to the Plaintiff the documents he wishes to be included in the bundle to be provided. Now of course we never received that list from the Defendant. So whatever time may have been lost by the Defendant in having to deal with having the bundles late, it certainly saved the time of preparing that list of the documents that they themselves required to have in the bundles. It is accepted, my Lord, that we have not covered ourselves in glory and that we have breached the rule in relation to this, but it has not caused us to go over the time estimate, we have dealt with matters in the required time and there is a certain amount of blame to be laid at the Defendant's door as well, having failed to comply with their direction to produce the list of documents to us. In those circum-stances, my Lord, I would say that given the difficulties involved and attributing blame and deciding how to split the costs, it is more appropriate simply to order that the Defendant pay the costs.
104. MR JUSTICE LINDSAY: Do you want to add anything,
105. Miss Hilliard?
106. MISS HILLIARD: My Lord, in relation to identifying the documents that were wanted in the bundle, my Lord, there are different ways in which one can do that, and I would say that the letter of the 18th May was certainly an intimation to the other side that we wanted to co-operate, and in fact our suggestion was, we suggested that they should indicate on a copy of our respective lists of documents the items which they wished to include for us to approve. Now if that had been forthcoming, bearing in mind that there are actually not that many documents in this case, I think that there would not have been any necessity for us to have actually identified documents that we wanted in. So the idea that we in some way were at fault for not actually identifying specifically the documents that we wanted in is, in my submission, not an appropriate comment to make, bearing in mind really the correspondence from us and the chivvying to try and get this matter ready for trial. That is all I would say on that.
107. MR JUSTICE LINDSAY: So far as concerns costs, Miss Hilliard, for the Trustee in Bankruptcy, accepts that prima facie, given the event, she has no material to oppose an Order for Costs, but she does draw attention to the fact that she claims half a day was wasted and that it would be wrong that the Trustee should have to pay any costs to the Plaintiff in respect of that wasted half day. The case had been estimated to take two days and in fact took less than two days. To that extent it is not easy to identify the costs that were wasted, but it is undoubtedly the case that the Plaintiff, by her solicitors, was late in the identification of the material to be put into bundles and late in the production to the Court of the agreed bundles, and the consequence was that there was no opportunity for pre-reading by the Court, and that part of the first morning was taken up not with going forward with the arguments and witnesses, as should have been the case, but with my rising to read the evidence. However, there are faults, as it seems, on both sides in relation to the preparation of documents, and in particular it is, as I have mentioned, difficult to identify any particular passage of time that was wasted, given that the estimate was not exceeded but indeed less than the estimate was taken. Although parties must realise, and it must be drawn to the Plaintiff's solicitors attention, that they do run a risk as to costs if the procedural requirements are not adequately honoured, this, it seems to me, is not a case for departing from the ordinary Order that costs follow the event. Accordingly the Plaintiff's costs, taxed (if not agreed, on the standard basis) are to be paid by the Defendant.
108. MISS HILLIARD: My Lord, one further matter; may I ask for leave to appeal in relation to your Judgment? As you have read your Judgment it has not been possible to fully absorb -----
109. MR JUSTICE LINDSAY: No.
110. MISS HILLIARD: ------ all the elements of it, but one point does occur to me, my Lord, in relation to the law. My Lord, you have found that the right that was in issue here, was the right to have property duly administered if and when received. My Lord, the question is in the context of a resulting trust, is whether by paying one pound Miss Gundersen was purchasing that right. I made submissions to you at trial on the question of being able to show that it was the purchase, and I would still say and it certainly is, in my submission, an interesting point of law, as to when a payment of a pound was made in the context of this syndicate, that that payment produced or that payment went towards the acquisition or went towards the purchase of a right to have property duly administered if and when received. That occurs to me as certainly one ground upon which I would like leave to appeal your Judgment. My Lord, I have difficulty with other grounds, as I say, partly because you have been reading from your Judgment, and, secondly, and it is nobody's fault, but there was quite a lot of coughing during your Judgment. Obviously I think there is quite a lot of hayfever around at the moment, and so there were bits of it that got lost in the coughing around me. So, my Lord, that is my application.
111. MISS SANDELLS: My Lord, it is quite clear from your Lordship's Judgment that a lot of it has in fact turned on the evidence, and that is simply not going to change in front of the Court of Appeal, and your Lordship has applied long standing easily understood principles of resulting trust to a fairly novel situation, but there is nothing new or different in this particular case. In those circumstances, it is not really a case for the Court of Appeal and I would ask your Lordship to refuse leave.
112. MR JUSTICE LINDSAY: Yes; Miss Hilliard, you will have to ask the Court of Appeal for leave.
113. MISS HILLIARD: Thank you, my Lord.
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