BRISTOL DISTRICT REGISTRY
2 Redcliff Street, Bristol, BS1 6GR
B e f o r e :
(sitting as a Judge of the High Court)
| Jacqueline Lisa Dobson
|- and -
|Matthew John Fernall Griffey
Rhys Taylor (instructed by Family Law in Partnership Ltd) for the Defendant
Hearing dates: 24-26, 30 April 2018
Crown Copyright ©
HHJ Paul Matthews :
The function of the court
"38. Her interest in the property (if any) must be determined by applying principles of law and equity which (however inadequate to meet the circumstances in which parties live together in the twenty-first century) must now be taken as well-established. Unless she can bring herself within those principles, her claim in the present case must fail."
The parties' cases
"5A. In September 2005 the claimant and the defendant spent a few days travelling around Devon and Cornwall looking at suitable areas and properties on the market. One evening at the Rock Inn pub in Georgeham, Devon, they discussed their plans for purchasing a property. They discussed that they would be best placed to take out a mortgage if the property and the mortgage were placed in the defendant's sole name. They also agreed that they would purchase a property requiring renovation work, which would be done or overseen by the claimant. Upon the sale of the property they would split the profit or increase in value equally.
7A. On 24th of August 2006 the claimant transferred £10,000 to the defendant. The defendant told the claimant that she would get this money back once they had purchased their new property and that this would be 'down as the claimant's money'.
8. In September 2006 the claimant and the defendant visited the property with a view to purchasing it together. The claimant expressed doubts that they could afford to purchase the property and that it required substantial renovation the defendant insisted that they could afford it and that the claimant could run a livery yard from it and they could set up a holiday let in the annexe. The claimant and the defendant saw the purchase of the property as the opportunity to buy a house together that they would live in together, for ever. They therefore decided to purchase the property. The claimant and the defendant purchased the property on the express understanding that it would be their home for the rest of their lives, and that it would provide for them in their old age and retirement. In particular, the claimant and the defendant discussed eventually selling the property and moving somewhere smaller with no mortgage. The defendant also told the claimant that should he die, the property would be hers. It was in this context, and on the understanding that they would split the profits on any sale, that the claimant agreed to the purchase of the property. "
"3A. Paragraph 5A is denied. The defendant cannot recall the parties spending a few days travelling round Devon and Cornwall in September 2005. The defendant is unable to admit or deny but requires the claimant to prove the same. The defendant cannot recall the parties spending the evening at the Rock Inn pub during September 2005. The defendant is unable to admit or deny but requires the claimant to prove the same. It is denied that there was any discussion between the parties, as alleged or at all, relating to the defendant taking the property and mortgage in his sole name. It is accepted that the defendant was considering a property in need of renovation, but it is denied that there was discussion, as alleged or at all, that the claimant would do or oversee the works. It is further denied that there was ever any agreement that the parties would split the profit or increase in value equally.
5A. Whilst it is admitted that the claimant transferred £10,000 to the defendant on 24 August 2006, on the same date the defendant paid £10,000 to Riders Saddlery Ltd, a company wholly-owned by the claimant. The parties considered the sum paid by the claimant as repayment for the £10,000 which the defendant transferred to Riders Saddlery Ltd. There was no conversation, as alleged or at all, that the claimant would get her money back once the property was purchased or that this 'would be down as the claimant's money'. If, which is denied, such conversation did take place and the £10,000 was found not to have been repaid, the nature of the transaction was in the nature of a loan rather than a direct contribution to the purchase price.
6. Paragraph 8 of the particulars of claim is denied save that it is admitted the parties visited the property together in or about September 2006 and that the defendant asked the claimant if she would like to run a livery at the property and the claimant said yes. The defendant avers that he found the property himself and bought it as an investment albeit as a home as well. The defendant's plan, well known to the claimant was to obtain an interest only mortgage, spend his own funds on improving the property and to sell it when house prices rose. The defendant did not therefore view the property as a home for life nor is he aware that the claimant adopted that view. There was no common understanding that the parties would split any profits on sale or that any such agreement was necessary for the claimant to agree to allow the defendant to purchase the property.
7. In any event the assertion, which is denied, that there was an 'express understanding' that the property would be the parties home for the rest of their lives is embarrassing for lack of particularity. Either, which is denied, there was an express agreement or which is also denied, there was an understanding.
8. If, which is not admitted, the defendant told the claimant that should he die the property would be hers, such provision would only have been made in the event the relationship continued and not in the event the relationship, as is the case, has come to an end. The defendant will rely on James v Thomas  EWCA Civ 1212 in this regard."
"4. Paragraphs 3 and 3A are noted.
6A. The first two sentences of paragraph 5A are admitted. The remainder of that paragraph is denied. The parties did discuss £10,000 as being a figure that the claimant had contributed. In an email to the claimant on 16 January 2012 (timed at 9:37 PM) the defendant acknowledged the claimant's investment of £10,000. The claimant initially assumed that the payment on 24th of August 2006 represented this £10,000. She now accepts that this assumption was incorrect.
7. Paragraph 6 is noted.
8. As to paragraph 7, the express understanding arose from the conversations between the parties as detailed in paragraph 8 of the particulars of claim.
9. As to paragraph 8:
a. The defendant is required either to admit or deny the allegation that he told the claimant that should he die the property would be hers, or to explain why he is unable to admit or deny the allegation.
b. The claimant will make submissions as to the applicable case law at the appropriate time."
"It is alleged that the parties lived together as if they were, or in the same way as, a husband and wife. It is not alleged that the parties were in fact married. The defendant is required to respond to the allegation made."
The defendant's response was:
"It is not admitted that the parties lived together as 'man and wife.' The claimant is put to strict proof of exactly what she means by this. It is the defendant's case that had the parties lived together as man and wife rather than as a cohabiting couple, the defendant may well have organised the finances and property ownership differently."
"The defendant is required either to admit or deny the allegation that he told the claimant that should he die the property would be hers, or to explain why he is unable to admit or deny the allegation."
The defendant's response (again, not drafted by Mr Taylor) was:
"The defendant denies this. In any event the defendant relies on James v Thomas  EWCA Civ 1212 and Windeler v Whitehall  2 FLR 505 in respect of the Will."
Common intention constructive trust
Decision-making in civil cases
"I should add that the factors which lead to the conclusion that the assurances were not intended or understood as a promise of some property interest lead, also, to the conclusion that it would be unreal to think that Miss James did what she did in reliance on such a promise. The true position, as it seems to me, is that she worked in the business, and contributed her labour to the improvements to the property, because she and Mr Thomas were making their life together as man and wife. The Cottage was their home: the business was their livelihood. It is a mistake to think that the motives which lead parties in such a relationship to act as they do are necessarily attributable to pecuniary self-interest."
"Nor do I see that the conduct that is relied on by the claimant must lead to the conclusion that she was acquiring an interest in land. It has been said in a number of cases that the court should be cautious before finding that the activities of a wife or a cohabitant can only be explained on the footing that she believes that she was acquiring an interest in land."