Also at paragraph 47: “But if it cannot deduce exactly what shares were intended, it may have no alternative but to ask what their intentions as reasonable and just people would have been had they thought about it at the time. This is a fallback position which some courts may not welcome, but the court has a duty to come to a conclusion on the dispute put before it.”

Although “imputing” is not considered the best solution my understanding from reading the judgement, only a brief reading, was that imputing is a solution that should be used if the court is unable to deduce or infer what the actual intentions were.

In paragraph 36 Lord Walker and lady Hale say that “…there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence. It is the court’s duty to reach a decision on even the most difficult case. As the deputy judge (Mr Nicholas Strauss QC) said in his admirable judgment [2009] EWHC 1713 (Ch), [2010] 1 WLR 2401, para 33 (in the context of a discussion of fairness) “that is what courts are for.”

I think that there is a place for imputing intention on parties where the evidence is “sparse and conflicting”.

I am pleased, even though my pleasure or displeasure is irrelevant, with this decision as I had a hard time accepting the Court of Appeal decision.

http://obiterj.blogspot.com/2011/08/downton-abbey-entail.html