England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM BRENTFORD COUNTY COURT (Claim No OBF00931)

		Royal Courts of Justice Rolls Building, Fetter Lane, London, EC4A1NL
		17/06/2014

Mr Justice Barling:

Introduction

1. This is an appeal by the Defendants from the judgment of His Honour Judge Powles QC in Brentford County Court on 23 May 2013 ("the Second Judgment"). In that judgment the learned Judge found in favour of the Claimant on a preliminary issue. That preliminary issue was tried in the context of the Claimant's application under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act") for provision out of the estate of the late Harcharan Singh Dhaliwal who died on 7 June 2009 ("the Deceased").
2. The preliminary issue was whether the Claimant is a person to whom section 1(1A) of the 1975 Act applies, namely a person who "during the whole of the period of two years immediately before the date when the deceased died… was living (a) in the same household as the deceased, and (b) as the … wife of the deceased."
3. The Second Judgment confirmed the result of an earlier judgment also given by Judge Powles QC on 1 September 2011 ("the First Judgment"). The First Judgment had been appealed successfully to the High Court (Mr Kevin Prosser QC sitting as a Deputy High Court Judge) ("the Appeal Judgment") and remitted to Judge Powles QC for him to reconsider his decision in the light of the Appeal Judgment and "of further submissions by the parties but not further evidence".
4. In order to make the present judgment comprehensible it is necessary for me to set out some of the background to the issues in the proceedings.

Background

5. Although much more was in dispute when the matter first came before Judge Powles QC, before me the following was common ground.
6. The Claimant met the Deceased in May 2005, a few months after his wife of 25 years had died in tragic circumstances. In brief she had committed suicide and the Deceased had been charged with her manslaughter (by allegedly triggering the suicide). He was acquitted in March 2006 on the directions of the trial judge. That acquittal was upheld by the Court of Appeal (Criminal Division) in May 2006.
7. In June 2005 the Claimant and the Deceased had become engaged. The Deceased was then living in the family home 14, Crosslands, Southall with his two sons, the Defendants. The Claimant and the Deceased decided to keep the relationship secret from his sons until after the wedding of the elder one, Sandeep, which was due to take place in 2006. However, after their engagement the Deceased and Claimant often spent the night together at the Claimant's flat, 57 Barnes Avenue, where the Deceased kept some clothes and where the Claimant did his washing and ironing. The Claimant says that from this time sexual relations between them began. The Deceased owned and ran a café at Hounslow station, and the Claimant began to work with him there, eventually giving up her own job as a carer to work with him full-time 7 days a week.
8. The Defendants soon found out about the relationship, and strongly disapproved of it.
9. In July 2006 a flat owned by the Deceased at 33 Sandown Close, Hounslow became vacant and the Claimant and he moved into it. This was shortly after the Court of Appeal's upholding of the Deceased's acquittal of his wife's manslaughter, in May 2006.
10. When the present matter first came before Judge Powles, the length (and indeed the fact) of their joint occupation of this flat was controversial. In her witness statement the Claimant had said that they lived there until the Deceased's family home was sold. It is common ground that this happened in November 2006. She said that soon after that happened the two sons and Sandeep's wife moved to 33 Sandown Close and in view of their attitude to her "I agreed to move temporarily to 84 Waye Avenue, in Cranford and stayed with [Gagan, a friend] until tenants left 42 Solway Close, a flat also owned by [the Deceased]."
11. The Defendants maintained that the Claimant had never lived at 33 Sandown Close at all.
12. In her cross-examination at the first hearing before Judge Powles the Claimant stated that she had stayed at 33 Sandown Close until May or June 2007, and that the account in her witness statement was a mistake. She said that in May or June 2007 she had moved out to live with her friend Gagan at 84 Waye Avenue.
13. In the First Judgment the learned judge rejected the Claimant's account of the length of her stay at 33 Sandown Close in the light of the evidence of, in particular, the Deceased's nephew Bikram, who said that in September 2006 he had moved into that flat with his wife and one of the Deceased's sons. The Judge found that the Claimant and the Deceased lived there from July 2006 until September 2006, when they both left. This finding has not been challenged and it is common ground for the purposes of the present appeal. It is also now common ground that, as found by the Judge, for a period of about 3 months the Claimant and the Deceased were living together at 33 Sandown Close as man and wife in the same household, so that to this extent the criteria in subsection 1(1A) of the 1975 Act were satisfied during that period. The Claimant has never argued that those criteria were satisfied at any time prior to the beginning of their joint occupation of 33 Sandown Close in July 2006.
14. What happened after the Claimant and the Deceased left 33 Sandown Close in September 2006 is not so clear cut. However the follow findings of the learned Judge are not challenged:

(1) For about a month, in around January 2007, the Deceased made a family visit to India with his younger son.

(2) For about 2 weeks prior to July 2007, in May or June 2007, both the Claimant and the Deceased stayed with the Claimant's friend Gagan at 84 Waye Avenue.

(3) At the beginning of July 2007 another of the Deceased's flats, 42 Solway Close, became vacant and the Claimant and the Deceased entered into occupation and lived there together until about April 2009 when they moved to another flat at 26 Solway Close which they had purchased together, and where they lived until the Deceased's death on 7 June 2009.

(4) For the period from the time they moved into 42 Solway Close in July 2007 until the Deceased's death, the statutory criteria in sub-section 1(1A) were satisfied i.e. for that period the Claimant was living in the same household as the Deceased and as his wife.

15. To sum up, it is therefore common ground for the purposes of the appeal before me that for a continuous period of about 1 year and 49 weeks immediately prior to the death of the Deceased on 7 June 2009 the Claimant was living in the same household as the Deceased as his wife, within the meaning of the statute. It is this apparent shortfall of about 3 weeks which is at the heart of this appeal. It is, as I have said, also common ground that the statutory criteria were satisfied for the earlier period of about 3 months from July to September 2006. This latter period of cohabitation cannot obviously count towards the statutory 2 years, which must be immediately prior to the Deceased's death, in order to qualify. However, it is submitted by Mr Martin Young, who appears for the Claimant, that that period was properly treated as relevant to the Judge's findings in both the First and Second Judgments.

The earlier judgments

16. Having described the background and areas of common ground, I must now briefly describe those aspects of the First Judgment, the Appeal Judgment and the Second Judgment which are relevant to the present appeal.

The First Judgment

17. The Judge found on the evidence that after their engagement the Deceased and the Claimant "took every opportunity available to them to be together". He said that initially this was at the Claimant's flat, then from July 2006 to September 2006 at 33 Sandown Close, then again at the Claimant's flat, "… then in June 07 at Gagan's, from end June 07 at 42 [Solway Close], from April 09 at 26 [Solway Close]..." (Paragraph 70 of the First Judgment).
18. Having considered the case law on "living in the same household" and "living as man and wife", he found that the criteria were satisfied for the requisite period of 2 years immediately prior to the Deceased's death. His reasoning was admirably brief:

"84. I have come to the conclusion that both parts of the test are fulfilled and the only remaining issue is whether that state of affairs had existed for at least 2 years prior to the death given that their cohabitation at 42 Solway began a week or so too late. On my findings the relationship had begun before the couple moved in to 42 Solway Close and had been in existence for at least a year during which the couple were together whenever they could consistent with other problems in their lives connected with accommodation and the needs or perceived needs of Harry's family.

85. It is common ground that once a qualifying relationship is established the occasional separation of the length arising in this case does not matter.

86. Accordingly I find for the Claimant on the preliminary issue. "

19. I am a little puzzled as to why at paragraphs 70 and 82 the learned Judge referred to the Claimant and the Deceased as living at 42 Solway Close "from end June 07", when in paragraph 49 he had stated, in the light of aspects of the evidence (including the fact of the Claimant providing her bank with a change of address on 16 June 2007): "I find as a fact that [the Deceased] moved into 42 Solway at the last two weeks of June 2007… I also find as a fact that the Claimant moved in with him."
20. This latter finding implies that the Claimant and the Deceased had moved in prior to the end of June 2007 – quite possibly as early as mid-June 2007. The Judge appears to have been influenced in this regard by the Claimant having notified her bank by letter on 16 June 2007 that her new address was 42 Solway Close. In the Second Judgment he stated that the reference to June was a mistake and that it should have been July 2007 "but frankly nothing turns on that as I see it" (paragraph 5 of the Second Judgment).
21. The Judge also accepted Gagan's evidence and the Claimant's evidence that the Claimant and the Deceased lived together at Gagan's address for two weeks in May or June 2007.

The Appeal Judgment

22. The Deputy High Court Judge first reviewed the findings of Judge Powles and summarised them as follows:

"13. In summary so far, the judge accepted the Claimant's case insofar as he found that she and Harry lived together at 42 and 26 Solway Close from the last 2 weeks of June 2007 until Harry's death, and insofar as he found that for the first 2 weeks of June 2007 she and Harry stayed at Gagan's. But he rejected her case insofar as he held that between September 2006 and the move to Gagan's she did not live at 33 Sandown Close.

14. Subject to what he said at paragraph 70 of his judgment… the judge made no finding as to whether the Claimant and Harry lived together at all prior to the temporary move to Gagan's in June 2007: as I have already mentioned, at paragraphs 39, 42 and 45 of his judgment the judge expressly left that question unanswered.

15. Then at paragraph 70 of his judgment the judge said this: "I find that after their engagement Harry and the Claimant took every opportunity available to them to be together. Initially this would have been at 57 Barnes Avenue, then at 33 Sandown, from September 06 again at Barnes Avenue, then in June 07 at Gagan's, from end June 07 at 42 Sandown, from April 09 at 26 Sandown. Unlike many couples only able to associate in the evenings this couple were able to associate at the cafe where they could take meals together and spent most of each day.""

23. Next he reviewed the Judge's approach to whether the Deceased and the Claimant were "living in the same household" and observed that:

"There is no challenge to this aspect of his decision, except as regards the precise date when cohabitation at 42 Solway Close began." (Paragraph 17 of the Appeal Judgment)

24. He also recorded that there was no challenge to the Judge's finding that during that period the Claimant was living as the Deceased's wife. (Paragraph 18 of the Appeal Judgment)
25. The Deputy High Court Judge then decided that, contrary to the Defendants' submission, Judge Powles was entitled to find on the evidence that the Deceased and the Claimant had lived together at Gagan's for about 2 weeks.
26. Next he rejected the Defendants' challenge to the Judge's finding that the Claimant and the Deceased moved into 42 Solway Close in June rather than July 2007 (Appeal Judgment paragraph 21). However, as I have said, in his Second Judgment Judge Powles recognises that he should have found that date to be July rather than June.
27. The next challenge with which the Appeal Judgment dealt was to Judge Powles' finding in paragraph 70 of his judgment (see above). In particular it was contended on appeal that the Judge was not entitled to find, if he did so find, that the Claimant and the Deceased lived together as man and wife between September 2006 and June 2007 whether at 57 Barnes Avenue or at all. In response to that challenge the Deputy High Court Judge held that Judge Powles did not in his view make such a finding (paragraph 24 of the Appeal Judgment). In his view Judge Powles meant that although not living together at 57 Barnes Avenue or elsewhere in that period, they nevertheless took every opportunity to be together "such as by [the Deceased] spending nights at 57 Barnes Avenue just as he had done before July 2006, as well as during the day at the cafe." If he was wrong in so holding, and if Judge Powles did mean to find that they were living together at Barnes Avenue throughout that period, then he considered that that finding would be perverse (paragraph 26 of the Appeal Judgment).
28. The Deputy High Court Judge then went on to ask whether, assuming that he was right in his interpretation of the judgment below, Judge Powles was entitled to find for the Claimant on the preliminary issue, on the basis that the 3 months cohabitation between July 2006 and September 2006 at 33 Sandown Close was the norm and the approximately 8 month period between September 2006 and June 2007 was a mere temporary interruption. The Deputy High Court Judge answered this question in the negative on the grounds that (a) it was not clear that that was the basis for the Judge's decision, and (b) the Judge was not entitled to find for the Claimant on this ground without first giving the Defendants an opportunity to make further submissions as to the basis of his findings of fact, which did not reflect the way the Claimant herself had put her case (paragraph 28 of the Appeal Judgment).
29. Nor, in his view, could the Judge's decision be affirmed on the alternative basis that the 2 year period of statutory cohabitation began with the stay at Gagan's:

(1) This was not the basis of the Judge's decision and he may have decided against the Claimant on the point.

(2) The Claimant did not put her case in that way, and so the Defendants had not made submissions on that basis.

(3) Had the Claimant done so, she and Gagan may have been cross-examined in detail about the living arrangements at Gagan's, which did not happen.

30. In view of this the Deputy High Court Judge concluded that the Judge ought not to have found in the Claimant's favour without first giving the Defendants an opportunity to make submissions. He therefore allowed the appeal and remitted the matter to the Judge for him to clarify his findings of fact, to invite the parties to make further submissions (but not adduce further evidence), and, if he thought fit, to permit the Claimant to advance an amended case in the light of his findings – other than one which the Defendants might have been able to meet by adducing further evidence or cross-examining the Claimant's witnesses "such as that the Claimant began to live in the same household as [the Deceased] as his wife when they stayed at Gagan's."

The Second Judgment

31. The parties filed sequential skeleton arguments for the remitted hearing before Judge Powles, which took place on 23 May 2013. The Judge gave the Second Judgment on that date deciding the preliminary issue in the Claimant's favour once more.
32. In the course of the Second Judgment the judge, as he had been invited to do, clarified the First Judgment in certain respects. In particular he confirmed (as the Deputy High Court Judge had assumed) that he had not found that after leaving 33 Sandown Close in September 2006 the Deceased and the Claimant had cohabited at 57 Barnes Avenue; he could not say where they were living between that date and June/July 2007. However, having further considered the case law on living together as man and wife in the same household and in particular the decision of the Court of Appeal in In re Dix, deceased [2004] 1 WLR 1399, he said that in the light of the evidence before him, the statutory or qualifying relationship which subsisted between them in the period July to September 2006 did continue thereafter until the death of the Deceased in June 2009. He stated that between September 2006 and July 2007 there were occasions when they were under the same roof, albeit he did not know where. He set out the evidential basis for this conclusion in terms which I should quote at length:

"8. This case has two special features, it seems to me, that must be borne in mind when considering the relationship between the Claimant and [the Deceased]. The first is that there was a cafe where they both worked and spent a great deal of their time together. The second is that this relationship began in the aftermath of what may possibly be unique, emotional turmoil within [the Deceased's] family arising from the suicide of his wife and the Defendants' mother and the decision of the CPS to prosecute him for her manslaughter, a case which only came to an end when the CPS appealed from dismissal of their case at I think the Old Bailey was finally dismissed by the Court of Appeal on 16 May 2006. To my mind a failure to prove exactly where they were living or cohabiting does not prohibit a finding that the relationship continued in full measure. When I say the relationship, I mean it in the special way that I used in my first judgment, which is I think clear from paragraph 85 that I am talking about a qualifying relationship, which is one which meets the statutory requirements of the Act and thus encompasses being part of the same household, which is different from living under the same roof.

….

18. One must look at the reasons why they separated at the end of September 2006. This is not because of any cooling off or fracture in the relationship between them. It seems to me, on the evidence I have heard, that it was entirely to do with the need for Harry to look to his situation with his two sons and the wider family and that is why he went to India in January 2007 with the younger son. It was not because there was a suspension in the relationship at all. Analogies are never particularly helpful but I see it as no different in principle from a man who is posted overseas, or whatever it may be, for some considerable time; so for a good reason connected with work they cannot be under the same roof; for a good reason connected with his previous family [the Deceased] could not be under the same roof as the Claimant. Do not forget, of course, that they were able to be together at the cafe and, as I did find, two weeks with Gagan early in June.

19. As far as the situation following the [Appeal Judgment] about Gagan is concerned… the claimant is not putting the case before me at any rate on the basis that the relations started with the stay at Gagan's. He is putting the case, as she did in her witness statement and as he did in his opening, as starting in July 2006 and never being interrupted. So I hope that I am not failing to follow a direction of the appeal judge in saying that I do find that they were together, enjoying their formerly developed relationship whilst staying at her house.

20. At this point, for the sake of clarity, it would be as well if I make it clear that I do not accept the evidence that the defendants' father [the Deceased] lived with his sons at Crossland Road or at 10 Cottenham Close or elsewhere in the period of October to June 2007. We are left, as I am over the 57 Barnes Avenue position, with possibilities. It is possible he spent some time there; it is possible he spent some time at 57 Barnes Avenue. I just do not know and I am not able to make a finding about where [the Deceased] was on a permanent basis in the period we are considering. But I stand by what I say in paragraph 84. If opportunities presented themselves this couple were together continuing their cohabitation, if that is the right word, as if they were husband and wife.

21. So the question remains, it seems to me, as to whether applying the test suggested by Ward LJ and the other cases that I was referred to previously, it can be said that, at 8 June [2007] and between then and when they moved in in early July to 42 Solway, they were living together as husband and wife in the same household. Prior to this gap that we have been looking at [the Deceased] had proposed marriage, as I found. The Claimant had accepted him, as I found. She had been given a ring, as I found. They had commenced a sexual relationship, which she would not have done if those things had not happened. Their parents and other relatives were told on both sides of the family. They were living together from July 2006. they separated, not through any falling out or cooling off but as a consequence, as I find, of Harry needing to rebuild his sons' and wider family's confidence in him, deal with their feelings, all arising in consequence of his former wife's death and the criminal process, as part of that healing process. In this time, as I have said, he went to India in January 2007.

….

24. …. I have not thought that they were living together at Barnes Avenue. I did not know where they were living and that is my position still. I cannot make a finding that [the Deceased] was living permanently with her at 57 Barnes Avenue but I remain [sic] that there were occasions, of which Gagan is one, when they were able to live together somewhere. "

The present appeal

33. It is therefore clear from the Second Judgment that Judge Powles decided the preliminary point in the Claimant's favour on the basis which the Deputy High Court Judge discussed at paragraph 28 of the Appeal Judgment (see above at paragraph 28). That may well also be the basis on which the Judge decided in the Claimant's favour in the First Judgment although, as the Deputy High Court Judge said, it was not entirely clear.
34. Mr Blackett-Ord, for the Defendants, submitted that Judge Powles was not entitled to find in the Claimant's favour on that basis.
35. He accepted that parties can satisfy the statutory criteria although temporarily separated, for instance when one is visiting his or her family without the other. For that reason, he said, the Defendants took no point in respect of the period in January 2007 when the Deceased went to India for a month or so with his son to visit their family there. He submitted that it was also different where, as in the circumstances of In re Dix (see above) the parties had been living together for many years, after which there was a relatively short separation. In that case the separation was during the final 3 months of the statutory 2 year period, when the "wife" had moved out with only a suitcase of clothes after being threatened by the "husband" with a knife.
36. Mr Blackett-Ord submitted that the facts of the present case are strikingly different: a gap of 8 or 9 months in living under the same roof i.e. actually living together, where the parties had only been living permanently together for 3 months (during which they admittedly did satisfy the statutory criteria of living in the same household as man and wife) precluded a finding that the statutory criteria are satisfied for the requisite period in the present case; this was notwithstanding that he accepted they intended to live together from July 2007 onwards. It was a question of degree, and on the facts of this case the learned Judge had gone too far.
37. Further, given that in the First Judgment the Judge had rejected the Claimant's account that she and the Deceased were living together at 33 Sandown Close from September 2006 to July 2007, it was not, in Mr Blackett-Ord's submission, open to him to find that they were living together somewhere else although he did not know where. There was no evidence on which he could reach such a finding.
38. Finally, Mr Blackett-Ord submitted that the procedural unfairness which was the basis of the Appeal Judgment had not been cured by the second hearing before Judge Powles, given his finding that the parties had been living together somewhere other than 57 Barnes Avenue from September 2006 but he did not know where. This was the same mistake as in the First Judgment. The Claimant had to prove her case, and if the Judge rejected her case that she was living with the Deceased at address X, it was not open to the Judge to find that they were living at address Y.

Discussion and conclusions

39. I start, as Judge Powles did in both his judgments, by looking at such guidance as there is in the case law on the meaning of the statutory criteria. The main authority is the Court of Appeal decision in In re Dix (deceased) (above), which also refers to other helpful dicta. In that case the only issue was whether the "wife's" leaving the deceased and living apart from him for the last 3 months of his life prevented her being able to show that the statutory criteria in subsection 1(A) of the 1975 Act were satisfied for the requisite period of 2 years immediately prior to the death. Ward LJ, with whom Mummery and Rix LJJ both agreed, gave the only judgment. In paragraph 19 of the judgment he rejected the appellant's argument:

"that the proper test is to look at the moment of death to see if at that very moment the claimant was living with the deceased or being maintained by him. This, in my judgment, states the law too narrowly and gives to the words "immediately" a literal construction in a way disavowed by the authorities. … the judge did direct his attention to the moment of death in order to ask whether at that time the arrangements or the state of affairs was settled. In order to do so it was necessary to look at the preceding period in order to see the whole picture. Whether an arrangement is settled or relationship is enduring at any particular point in time cannot be judged without regard to history. …"

He went on:

"20. Section (1A) requires that during the whole of the two-year period, two elements be present. First, that the claimant was living in the same household as the deceased and, secondly, that she lived in a relationship which can be categorised as living as the wife of the deceased. The concept of parties living together in the same household is a familiar one in other areas of statutory law. Under the old Larceny Act, for example, the prosecution had to prove in a receiving case that the husband and wife were not "living together", and the Court of Criminal Appeal held in Rex. v Creamer [1919] 1 KB 564 that:

"A husband and wife are living together not only when they are residing together in the same house, but also when they are living in different places, even if they are separated by the high seas, provided the consortium has not been determined."

21. In Nugent-Head v Jacob [1948] AC 321, a case under the Income Tax Act 1918, a wife was "living with her husband" who had been absent on military service for more than three years because there had been "no rupture of matrimonial relations", per Viscount Simon at page 324.

22. Perhaps a closer analogy with the present position is that under the Divorce Reform Act 1969, re-enacted in section 1(6) of the Matrimonial Causes Act 1973, as follows:

" ... a husband and wife shall be treated as living apart unless they are living with each other in the same household, and references in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household."

23. That received this court's attention in Santos v Santos [1972] Fam 247. Giving the judgment of the court, Sachs LJ observed first at page 262 and then at page 263:

" ... use is again made of words with a well settled matrimonial meaning -- 'living together', a phrase which is simply the antithesis of living apart, and 'household', a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated ... "

... 'living apart' ... is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife were physically separated. For the purpose of that vast generality, it is sufficient to say that the relevant state of affairs does not exist while both parties recognise the marriage as subsisting. That involves considering attitudes of mind; and naturally the difficulty of judicially determining that attitude in a particular case may on occasions be great."

Although the court was dealing with the converse situation, namely living apart, nevertheless I find that judgment helpful in the construction of the 1975 Act.

24. In my judgment, similar considerations must apply to the meaning to be given to the statute with which we are presently concerned. Thus the claimant may still have been living with the deceased in the same household as the deceased at the moment of his death even if they had been living separately at that moment in time. The relevant word is "household" not "house", and "household" bears the meaning given to it by Sachs LJ. Thus they will be in the same household if they are tied by their relationship. The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgment of their mutual society, and the mutual protection and support that binds them together. In former days one would possibly say one should look at the whole consortium vitae. For present purposes it is sufficient to ask whether either has demonstrated a settled acceptance or recognition that the relationship is in truth at an end. If the circumstances show an irretrievable breakdown of the relationship, then they no longer live in the same household and the Act is not satisfied. If, however, the interruption is transitory, serving as a pause for reflection about the future of a relationship going through difficult times but still recognised to be subsisting, then they will be living in the same household and the claim will lie. Just as the arrangements for maintenance may fluctuate, using Stephenson LJ's expression cited above, so the steadfastness of a commitment to live together may wax and wane, but so long as it is not extinguished, it survives. These notions are succinctly encapsulated in the judge's test, which was to ask whether the relationship was merely suspended, and I see no error in his approach."

40. Judge Powles made reference to these passages in his judgments, and expressly applied the approach there propounded by the Court of Appeal to the facts as he found them. In so doing he rejected Mr Blackett-Ord's submissions, which were repeated before me in the present appeal, that those facts were incapable of satisfying that test, given in particular the length of the gap between September 2006 and July 2007. He concluded that the (admittedly qualifying) relationship between the Claimant and the Deceased which existed from July 2006 to September 2006 did not come to an end when both parties left 33 Sandown Close at the end of that period, but endured until July 2007 when they moved into 42 Solway Close, and beyond up to the Deceased's death. He so concluded notwithstanding that he was unable to make a finding that they were living physically under the same roof throughout the disputed period. His conclusion was that in the light of all the evidence this did not matter, as once the underlying relationship had commenced in July 2006 it did not at any stage come to an end, but subsisted throughout.
41. In my view the Judge correctly directed himself as to the principles to be applied. Nor do I accept that the conclusion he reached in the application of that approach was not open to him on the facts, as submitted by Mr Blackett-Ord. I agree that the particular facts of In re Dix (deceased) were very different from those of the present case. In that case the hurdle for the claimant was a different one, in that the parties were clearly not living under the same roof "immediately before the date when the deceased died" within subsection 1(A). But the different factual circumstances do not affect the nature of the test, which is encapsulated in the questions posed by Lord Justice Ward:

(1) Whether there is a settled relationship creating a tie between the parties, evidenced not simply by "their living under the same roof but by the public and private acknowledgment of their mutual society and the mutual protection and support that binds them together", and, if so,

(2) Whether that relationship has irretrievably broken down or, rather, is merely suspended, with any interruption being transitory.

(See paragraph 24 of the judgment in that case.)

42. On the facts as he found them the Judge was, in my view, entitled to conclude that the parties' settled relationship, which admittedly fulfilled the statutory criteria from July to September 2006, continued throughout the disputed period until the Deceased's death. Those facts included the following: that day in, day out, throughout the disputed period, the parties were together working in the Deceased's cafe (save for the period when he visited India); that their settled establishment at 33 Sandown Close was interrupted in September 2006 for family reasons unrelated to the ongoing state of their own relationship; that they were undoubtedly under the same roof (Gagan's) for some 2 weeks in May/June 2007 before resuming a permanent establishment at 42 Solway Close in July 2007; and that their engagement to marry subsisted throughout with the knowledge of their respective families.
43. The learned Judge's conclusion in this regard was not dependent upon him finding that they were living under the same roof at any particular time or place within the disputed period. His finding in that respect was that their relationship – a qualifying relationship, different from living under the same roof – continued "in full measure" (paragraph 8 of the Second Judgment). In my view, for the reasons I have stated, that was an approach which was open to him on a proper application of the principles identified by the Court of Appeal.
44. Further, Mr Blackett-Ord's argument that the Judge's finding was not open to him, and that the procedural unfairness was not cured by the second hearing before Judge Powles, is inconsistent with the Appeal Judgment itself. In paragraph 28 thereof the Deputy High Court Judge clearly envisaged that on a remittal back to the Judge it would be open to him to reach this conclusion having given the Defendants an opportunity to make further submissions on the point, as indeed they did.
45. It follows that the present appeal must be dismissed.