Posted by: RM | May 23, 2023

Rectifying Errors: CPR 3.10

CPR 3.10, “general power of the court to rectify matters where there has been an error of procedure“, provides:

3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

The question what powers of rectification are conferred upon the court by CPR 3.10 was recently considered in Jennison v Jennison [2022] EWCA Civ 1682 (“Jennison“) and the answer has resolved an inconsistency between two High Court authorities, Meerza v Al Baho [2015] EWHC 3154 (Ch) (“Meerza“) and Kimathi v Foreign and Commonwealth Office (No 2) [2017] EWHC 3005 (QB) (“Kimathi“).

This question was a ‘side issue’ in Jennison which was largely concerned with the standing of a foreign executor to issue proceedings in England and Wales prior to obtaining a grant of probate, or a re-sealed grant, in this jurisdiction. In light of the Court of Appeal’s decision on the main issue it was not necessary to decide the case on this basis. However, Newey LJ, with whom King and Coulson LLJ agreed, concurred with the view expressed by Stewart J in Kimathi that CPR 3.10 is incapable of curing a ‘nullity’. Had the court concluded that the Respondent in Jennison, the foreign executor, lacked standing to bring her claim prior to her obtaining a grant of probate (or re-sealed grant), CPR 3.10 could not have been used to rectify that lack of standing at the outset notwithstanding her having obtained a re-sealed grant before trial because the proceedings would have been a nullity.

In Meerza Peter Smith J concluded, in circumstances where a claimant had failed to take out letters of administration prior to issuing proceedings on behalf of an intestate, that CPR 3.10 was capable of rectifying her lack of standing saying at paragraph [46]:

It seems to me … I have a discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly. In particular based on Chadwick LJ’s observations [in Maridive] it seems to me clear that that power can be used to ensure that any technical objections whether procedurally or as a matter of law can be overcome provided it is just to do so. In the present case it is clearly just to acceded to an application to amend to perfect the claim by reason of the grant of letters of administration if that were necessary”.

In Kimathi Stewart J was faced with an application to strike out the claim of one of a number of test claimants on the ground that the claim was a nullity, the claim having been brought in the name of a deceased claimant personally rather than in the name of his personal representative. Stewart J acceded to the application and struck the claim out on the ground that it was a nullity (it being impossible to bring a claim in the name of a deceased person). Given that the facts were not on all fours with Meerza Stewart J distinguished Kimathi. However, he expressed the view that CPR 3.10 was not competent to cure every defect and that any discretion to remedy errors did not extend to reviving a claim that was a nullity.

The Court of Appeal in Jennison agreed with Stewart J and said at paragraph [60] that “… bringing a claim on behalf of an estate by a person who, at the time, lacks standing to represent is is not a mere “error of procedure”, but renders the proceedings a nullity … They are, in the circumstances, “a dead thing into which no life could be infused” (to quote Hodson LJ in Burns v Campbell) … Had, therefore, I considered the claimant to have had no standing when she issued the claim in February 2019, I would have held that CPR 3.10 had no application and that the proceedings had to be struck out“. This conclusion is consistent with the view expressed by Lord Burrows in Jogie v Sealy [2022] UKPC 32.

Any uncertainty that might have existed as a result of the decision in Meerza has now been firmly put out to grass. There can be no lingering doubt that proceedings which are a nullity are incapable of revival by the exercise of judicial discretion.

Posted by: RM | December 29, 2022

Foreign Executor’s Standing …

Jennison v Jennison [2022] EWCA Civ 1682 is an important decision of the Court of Appeal which distinguishes between the standing of a foreign executor to bring proceedings in England without first obtaining a grant or resealed grant of probate from that of a foreign administrator without letters of administration in the English jurisdiction. A link to a short article can be found here.

UPDATE: April 2023. Permission to appeal to the Supreme Court has been refused.

Posted by: RM | March 11, 2021

The latest on TVGs

This podcast considers the recent decision of the Supreme Court in TW Logistics Ltd v Essex County Council [2021] UKSC 4 in which the Court considers the important question of the scope of a landowner’s rights to continue using land following registration and the likelihood of pre-registration use being criminalised as a result of registration.

Posted by: RM | July 30, 2019

Proper execution of documents

In my last post I referred to the High Court’s decision in the case of Broxfield Limited v Sheffield City Council [2019] EWHC 1946 concerning liability for the payment of non-domestic rates. A very interesting point arose in that case which can be understood by reference to paragraphs [12], [13] and [33] of Mostyn J’s judgment. In short, what emerged in evidence was a concern about exactly what document (if any) had been signed by the parties. Central to the case, and therefore the proper identification of the liable party, was a document purporting to be a lease of the relevant premises. What is evident from the judgment is that the Judge was not satisfied that the whole lease had been signed rather than just a signature page that was then attached to a full document and presented to the Council as such.

Why does that matter? According to Underhill J in R (on the application of Mercury Tax Group Limited) v HMRC [2008] EWHC 2721 (Admin) (“Mercury“) it matters a great deal. Mercury concerned a tax avoidance scheme (“the Scheme”), the detail of which is unnecessary to recite for current purposes save to note that in respect of the tax year 2002-2003 Mercury operated the scheme for some 23 clients. However, the effectiveness of the Scheme depended upon the execution of certain documents. “… three of the key documents required to be signed by a client participating in the Scheme were (a) the Trust Deed …, (b) the Option Agreement …, and (c) the Sale and Purchase Agreement … It is common ground before me that in the case of not only Mr Grisay but of Mercury’s other clients participating in the Scheme the client was asked at some time in early or mid November to sign incomplete drafts of each of these three documents; and that, when fresh documents in final form came to be executed, he was not asked to sign those versions but instead the signature pages from the drafts were detached and stapled to the final version with the intention that that should constitute his signature to that version …”, para [9].The Judge considered the differences between the drafts and the final versions of the documents and concluded that there were substantial changes (blanks had been filled in and other material information had been altered).

Counsel for Mercury submitted that there was nothing wrong in the procedure adopted whereby signature pages were transferred from draft documents to substantially different documents. Reliance was placed on the case of Koenigsblatt v Sweet [1923] 2 Ch 314 to the effect that it was submitted that the alteration (by the substitution of completed documents for incomplete documents) was ratified by implicit authorisation. Underhill J rejected the applicability of that authority to the substantive changes to the relevant documents in the Mercury case. At para [38] Underhill J stated “… I am not sure that the evidence establishes that Mr Grisay or the other clients implicitly authorised (or ratified) the change in identity of the strip as between the draft and final versions of the Option Agreement and Sale and Purchase Agreement. Although the letters of 25 November 2003 do indeed refer in terms to the 2004 stock, there is nothing in KPBP’s letter which specifically draws clients’ attention to the fact that this is a change or that it will require alterations to the documentation which they had already signed: some may have noticed that, and recognised the implications, but others may not“. And at para [39] “… I have been referred to no authority which deals with the situation in the present case – that is, the taking of a signature page from one document and its recycling for use in another … the parties in the present case must be taken to have regarded signature as an essential element in the effectiveness of the documents: that is to be inferred from their form. In such a case I believe that the common understanding is that the documents to be signed exists as a discrete physical entity (whether in a single version or in a series of counterparts) at the moment of signing. The significance of this is not entirely talismanic (though it would not affect my view even if it were): the requirement that a party sign an actual existing authoritative version of the contractual document gives some, albeit not total, protection against fraud or mistake“. He went on at para [40] “… even if I were wrong about the legitimacy of transferring signature pages in general, there is the additional factor that each of the three key documents in the present case was intended to be a deed … Mr Bird submitted, and I agree, that [the language of section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989] necessarily involves that the signature and attestation must form part of the same physical document  … Mr Mitchell observed that, although these documents were expressed to be deeds, it was not necessary that they should be. I am not sure that that is correct, at least in the case of the Option Agreement, for which no consideration is given; but, even if it were, the fact remains that the parties intended them to be deeds and their validity must be judged on that basis“.

In Broxfield the trial judge had been unable to conclude exactly what (complete) document had been signed, if any. However, the evidence clearly pointed to the distinct possibility that only a signature page had been signed (see para [33] of Mostyn J’s judgment) and then inserted into a ‘lease’ to provide to the Council to evidence the transfer of the right to possession of the relevant property. In those circumstances it was impossible for the court to positively conclude that the document upon which Broxfield relied had been executed as a whole document and the burden of proving that was upon the party relying upon it. Broxfield failed to meet that burden and, accordingly, the document it relied upon was not accepted as a lease or indeed any other form of contractual arrangement because, as Mostyn J surmised, it was impossible to know exactly what document had been signed.

The High Court has handed down its judgment in Broxfield Limited v Sheffield City Council [2019] EWHC 1946 (Admin) and has made some important observations regarding the standard of proof for establishing a ‘sham’. By way of background, this case concerned the question of liability for non-domestic rates (business rates). The commercial property in question was owned by Broxfield Limited (“Broxfield”) but immediately upon acquisition was subject to a purported demise (of the empty parts) to a company called Busy Bodies Business Services Limited (“Busy Bodies”). Sheffield City Council (“the Council”), the rating authority, was not satisfied that the lease produced by Broxfield was valid or genuine and considered that even if the document did have the apparent effect of transferring the right to possession from Broxfield to Busy Bodies, that agreement was a sham.

The matter was tried in the Sheffield Magistrates’ Court over 5 days and the District Judge concluded that the lease was not valid, that there was no other form of agreement that conferred the right to possession upon Busy Bodies and in any event the agreement relied upon was a sham. The liability orders sought by the Council were granted.

Broxfield applied to the Magistrates’ Court to state a case and then appealed to the High Court by way of case stated. The matter came before Mr Justice Mostyn and was heard over two days (almost a year apart due to amendments to the stated case at the direction of the Mostyn J). In a reserved judgment he dismissed the appeal and answered every question posed in the case stated in agreement with the approach that had been adopted by the District Judge.

Importantly, Mostyn J considered the standard of proof that is required to establish that a document or agreement is a sham. His starting point, inevitably, was the test set out in Snook v London & West Riding Investments[1967] 2 QB 786 wherein, at page 802, Lord Diplock stated that a sham “… means acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create”. Mostyn J then refers to Diplock LJ’s reference to “legal principle, morality and the authorities” and observed that Diplock LJ clearly “… intended the legal definition to correspond to the natural definition; he did not intend that the meaning in law should be a term of art”, para [20].

Referring to the statement by Munby J in A v A[2007] 2 FLR 467 that Diplock LJ’s statement of the law has always been treated as canonical Mostyn J went on to say “…the courts should be careful of being beguiled by the irresistible temptation of senior judges to apply spin, gloss and tweaks to a very simple literal concept …”, para [21]. He said that he struggled with the concept of a ‘strong presumption’ against holding a provision or a document to be a sham, referred to by Neuberger J (as he then was) in National Westminster Bank plc v Jones[2000] BPIR 1092 at [59], a phrase advanced by the Appellant as reason to be slow to make a finding of sham. Of course, in that case Neuberger J did recite that “… a sham provision is simply a provision or agreement which the parties do not really intend to be effective, but have merely entered into for the purpose of leading the court or a third party to believe that it is to be effective …”, para [59], a statement in complete accord with the test set out in Snook.

In the case before Mostyn J the Appellant sought to persuade the court that the test for a sham should be approached more stringently requiring “very cogent evidence“, but that submission was rejected. In his judgment Mostyn J recited part of the judgment of Baroness Hale in Re B (Children) [2009] 1 AC 11 wherein she said at para [64] “Lord Nicholls’ nuanced explanation [in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H] left room for the nostrum, ‘the more serious the allegation, the more cogent the evidence needed to prove it’, to take hold … it is time for us to loosen its grip and give it its quietus”. Mostyn J said “… the fact that an allegation is serious, or that its consequences, if proved, will be serious, is not a reason for subversively elevating the standard of proof from the simple balance of probability, nor for suggesting that the quality of evidence, should such an allegation be made, needs to be better than if the seriousness of the allegation were less grave. The court has to consider on the admissible evidence whether the charge is more likely than not made out, no more no less”, para [25].

Having conducted a focused but thorough review of the relevant authorities together with the evidence before the trial judge and her findings of fact, Mostyn J concluded that this was a case in which “… no reasonable judge could have reached a decision other than this one …” and “… it was an overwhelming case of sham…”, para [30]. This decision confirms the proper approach to the question whether a document or agreement is a sham generally, but is helpful in the context of non-domestic rating cases where it is not clear that the approach of the court has not been infected with the spin that some greater standard of proof is required when considering whether a document or agreement is a sham.

In SOS for Business Innovation and Skills v PAG Management Services Limited [2015] EWHC 2404 (Ch), whilst Norris J was not prepared to make any finding regarding a sham in that case he did recite the extract from Neuberger J’s judgment wherein Neuberger J said “… because the finding of a sham carries with it a finding of dishonesty, because innocent third parties may often rely upon the genuineness of a provision or an agreement, and because the court places great weight on the existence and provisions of a formally signed document, there is a strong and natural presumption against holding a provision or a document a sham”. Norris J went on to say that in the absence of the landlord as party to the proceedings “… to find each scheme user dishonest on the evidence of PAG Management’s witnesses alone would be a strong thing…”, para [41].

Of course, the court is not required to make a specific finding of dishonesty; only a finding on the balance of probabilities regarding the status of the relevant document or agreement. Sham or no sham. An explicit finding of dishonesty is not required although it follows that if a court finds a sham it carries with it an implicit finding of dishonesty.

It is hoped that the decision in this case will bring some renewed clarity to the applicable test and sweep away the tendency among those resisting a sham argument to impress upon the court the need for something more than is ordinarily required to meet the standard of proof; the balance of probabilities.





Posted by: RM | July 22, 2019

A blow to the ‘TVG Industry’?

The Court of Appeal has delivered its judgment in Wiltshire Council v Cooper Estates Strategic Land Limited [2019] EWCA Civ 840, the essence of which is to interpret the provisions of Schedule 1A to the Commons Act 2006 broadly. For a fuller discussion of the decision see my article here.

Posted by: RM | October 19, 2012

A New Threat to TVG Registration

Yesterday the Government published its Growth & Infrastructure Bill which includes, amongst other things, provisions that curtail the circumstances in which applications can be made to register new town and village greens under section 15 of the Commons Act 2006 by reference to “trigger” or “terminating events” that will be set out in a schedule to the 2006 Act. Further, landowners would be able to register a statement in the prescribed form with the commons registration authority that would bring to an end any period of qualifying use upon which an application for registration might be based. Sections 12 and 13 of the Bill (together with Schedule 4) are the key provisions.

It seems that cases on the registration of new town and village greens (“TVG’s”) are never far from the news these days. The High Court recently considered the lawfulness of a registration authority’s decision to register land belonging to a port authority in the case of Newhaven Port & Properties Limited v East Sussex County Council & Others [2012] EWHC 647 (Admin). This case concerned a claim by a landowner (Newhaven Port & Properties Limited) challenging East Sussex County Council’s (the registration authority) decision to register land (West Beach) as a new town or village green (“TVG”) pursuant to section 15 of the Commons Act 2006. That section permits the registration of land as a TVG in certain prescribed circumstances where the land has been used by a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, as of right for lawful sports and pastimes on the land for a period of at least 20 years. In this case there had been, as is typical in contested applications, a non-statutory public inquiry, presided over by an Inspector, as a result of which a report had been produced recommending registration. The relevant commons registration authority had resolved to register the land as a TVG in accordance with the Inspector’s recommendations. The landowner challenged that decision on a number of bases.

The issues included whether a tidal beach can be a village green at all given that it had no physical characteristics of a TVG (i.e. it is not ‘green and grassy’). The court was satisfied that such land could be registered on the strength of Lord Hoffmann’s speech in the House of Lords in Oxfordshire County Council -v– Oxford City Council and Robinson [2006] AC 674 (the Trap Grounds Case). The second line of attack concerned the fact that due to the ebb and flow of the tide there was no fixed boundary and that feature of the application land would preclude registration as a TVG. Again, this argument was rejected on the basis that even if the low water mark were to recede through accretion any further land exposed would simply not form part of the registered TVG. Conversely, if the beach were to be eroded the lawful recreational use of what has hitherto been so used will just become impossible (para 49). The third contention against registration was that because the application land was subject to certain byelaws which made some of the activities indulged in unlawful (and therefore not to be treated as qualifying use) and even those activities which were lawful could only be indulged in for some of the time, because the application land was completely covered in water for 42% of the time and partially covered to varying degrees for the rest of the time, such use did not justify registration as a TVG. The court rejected this argument too on the basis that it is not necessary for all of the land to be used all of the time. What is necessary, it was recognised, is that the use relied upon in the application is of a level and nature which, judged objectively, would make a landowner aware that the public is asserting a right (as confirmed by the Supreme Court in R (Lewis) -v- Redcar & Cleveland Borough Council [2010] UKSC 11). The fourth argument by the Claimant was that the fact that the application land was liable to be regulated by byelaws meant that any use would be permissive (precario in orthodox terminology). Reliance was placed on Lord Scott’s dicta in R (Beresford) -v- Sunderland City Council [2004] 1 AC 889. However, this argument was also rejected on the basis that the mere existence of the power to make byelaws does not, without more, render user precarious by virtue of any implied licence. The fifth argument, the successful one, I will return to in a moment. The sixth, and final, submission made by the Claimant was that the retrospectivity of section 15(4) of the Commons Act 2006 (the provision under which the application had been made) was incompatible with Article 1 of Protocol 1 of the European Convention of Human Rights. As has been consistently the case when human rights arguments have been aired in the matter of the TVG registration legislation, the court gave the argument short shrift and rejected any suggestion of incompatibility.

The fifth argument dealt with in Ouseley J’s judgment is the one on which the Claimant succeeded. Put very simply, the Claimant said that registration of the application land would not be compatible with its being operational port land. Reliance was placed on the decision of the House of Lords in British Transport Commission -v– Westmoreland County Council [1958] AC 126 in which it was held that a private right of way over land held for a special statutory purpose under a private Act of Parliament could be presumed to have become dedicated as a public right of way as a result of long use. The special status of the land did not of itself prevent dedication so long as dedication was not incompatible with the statutory purpose. Whether or not such an incompatibility exists or can arise will depend, according to the judgment of Ouseley J, upon whether it is reasonably foreseeable that a conflict might come about between the recreational use pursuant to TVG rights and the statutory purpose for which the land is held. On the strength of the evidence here that future alterations or improvements to the port, carried out pursuant to the statutory objects for which the land is held, might well conflict with recreational use it was decided that the land could not, therefore, be registered as a TVG because of the conflicting statutory regimes. The particular point, upon which the Claimant succeeded, adds a new obstacle to the new green registration battleground upon which the war between applicants and landowners is fought. Furthermore, this new line of attack is likely to produce fertile ground, in relevant circumstances, for generating further litigation and introducing even more complexity to the law in this area. Notwithstanding the foregoing observation, however, I have some doubt as to the legitimacy of the basis upon which the claim succeeded in this case. I certainly have some reservations about a refusal to register a new green (where the statutory test has been satisfied) on the strength of what the landowner may or may not want to do in pursuit of its statutory powers at some point in the future but has failed to safeguard throughout the preceding 20 years.

UPDATE: It is understood that permission to appeal has been granted.

Posted by: RM | November 9, 2011

Leases: Certainty of Term

It’s been quite a day for property lawyers – as well as the judgment in Kernott -v- Jones today saw judgment in the case of Berrisford -v- Mexfield Housing Co-operative [2011] UKSC 52. As decisions go it was perhaps not quite as “exciting” as Kernott -v- Jones but, nevertheless, the fact that a judicial committee of seven was convened to hear the case should give some indication of its importance, albeit on a topic which attracts rather less attention that the proper apportionment of interests in the family home in circumstances where the couple is not married.

The crucial issue in Berrisford -v- Mexfield, at least as far as I am concerned, was the relatively short point (which I am going to keep very short for now!) that it is well established that there can be no lease where there is no certainty of term (Lace -v- Chantler [1944] KB 368 (CA), Prudential Assurance Co Ltd -v- London Residuary Body [1992] 2 AC 386). Lord Neuberger, giving the leading judgment, said this (beginning at paragraph [33] – sorry, paragraph numbers left out of quote itself for technical reasons!):

Following the decision of the House of Lords in Prudential [1992] 2 AC 386, the law appeared clear in its effect, intellectually coherent in its analysis, and, in part, unsatisfactory in its practical consequences. The position appears to have been as follows. (i) An agreement for a term, whose maximum duration can be identified from the inception can give rise to a valid tenancy; (ii) an agreement which gives rise to a periodic arrangement determinable by either party can also give rise to a valid tenancy; (iii) an agreement could not give rise to a tenancy as a matter of law if it was for a term whose maximum duration was uncertain at the inception; (iv) (a) a fetter on a right to serve notice to determine a periodic tenancy was ineffective if the fetter is to endure for an uncertain period, but (b) a fetter for a specified period could be valid.

If we accept that that is indeed the law, then, subject to the point to which I next turn, the Agreement cannot take effect as a tenancy according to its terms. As the judgment of Lady Hale demonstrates (and as indeed the disquiet expressed by Lord Browne-Wilkinson and others in Prudential [1992] 2 AC 386 itself shows), the law is not in a satisfactory state. There is no apparent practical justification for holding that an agreement for a term of uncertain duration cannot give rise to a tenancy, or that a fetter of uncertain duration on the right to serve a notice to quit is invalid. There is therefore much to be said for changing the law, and overruling what may be called the certainty requirement, which was affirmed in Prudential [1992] 2 AC 386, on the ground that, in so far as it had any practical justification, that justification has long since gone, and, in so far as it is based on principle, the principle is not fundamental enough for the Supreme Court to be bound by it. It may be added that Lady Hale’s Carrollian characterisation of the law on this topic is reinforced by the fact that the common law accepted perpetually renewable leases as valid: they have been converted into 2000-year terms by section 145 of the Law of Property Act 1922.

However, I would not support jettisoning the certainty requirement, at any rate in this case. First, as the discussion earlier in this judgment shows, it does appear that for many centuries it has been regarded as fundamental to the concept of a term of years that it had a certain duration when it was created. It seems logical that the subsequent development of a term from year to year (ie a periodic tenancy) should carry with it a similar requirement, and the case law also seems to support this.

Secondly, the 1925 Act appears to support this conclusion. Having stated in section 1(1) that only two estates can exist in land, a fee simple and a term of years, it then defines a term of years in section 205(1)(xxvii) as meaning “a term of years … either certain or liable to determination by notice [or] re-entry”; as Lord Templeman said in Prudential [1992] 2 AC 386, 391B, this seems to underwrite the established common law position. The notion that the 1925 Act assumed that the certainty requirement existed appears to be supported by the terms of section 149(6). As explained more fully below, this provision effectively converts a life tenancy into a determinable term of 90 years. A tenancy for life is a term of uncertain duration, and it was a species of freehold estate prior to 1926, but, in the light of section 1 of the 1925 Act, if it was to retain its status as a legal estate, it could only be a term of years after that date. Presumably it was converted into a 90-year term because those responsible for drafting the 1925 Act thought it could not be a term of years otherwise.

Thirdly, the certainty requirement was confirmed only some 20 years ago by the House of Lords. Fourthly, while not a very attractive point, there is the concern expressed by Lord Browne-Wilkinson, namely that to change the law in this field “might upset long established titles” – [1992] 2 AC 386, 397A. Fifthly, at least where the purported grant is to an individual, as opposed to a company or corporation, the arrangement does in fact give rise to a valid tenancy, as explained below. Finally, it has been no part of either party’s case that the Agreement gave rise to a valid tenancy according to its terms (if, as I have concluded, it has the meaning for which Mr Wonnacott contends).

So, there we have it. Notwithstanding the criticism that has been leveled at the requirement for there to be certainty of term in order for a lease to be valid, the Supreme Court has refused to depart from that position on this occasion. My own view is that this was the right decision so today’s results produce a 50% rate of satisfaction from my perspective!

Posted by: RM | November 9, 2011

Jones -v- Kernott (Round 4)

It would have been impossible to have allowed today to pass without a short post about the Supreme Court’s judgment in Jones -v- Kernott [2011] UKSC 53 (it is quite possible that I will come back later with a more detailed post once I have had the opportunity to digest the whole decision more comprehensively!). I have previously written about the first appeal (from the decision of the trial judge) here and the appeal to the Court of Appeal here. My views since those posts were written are unchanged and it will come as no surprise to learn that I read the Supreme Court’s judgment with a sense of disappointment. The facts (shamelessly and idly copied and pasted from my original post) are, briefly, as follows:

Ms Jones and Mr Kernott bought a property, 39 Badger Hall Avenue, in 1985 and the property was conveyed into their joint names. The purchase price was £30,000 of which £6,000 was contributed by Ms Jones. The remainder was financed by an interest only mortgage, supported by an endowment policy. The mortgage and endowment policy payments were shared between the couple. The following year a further loan of £2,000 was taken out against the property for the purpose of building an extension and this was built and paid for largely by Mr Kernott. This is estimated to have enhanced the value of the property by almost 50%, from £30,000 to £44,000. Ms Jones and Mr Kernott shared the household expenditure (including bills and mortgage repayments) until the couple split up and Mr Kernott moved out of the property in 1993 (some 8 years later). Thereafter, Ms Jones made all of the interest only mortgage payments together with the payments against the endowment policy and met all expenditure in relation to the upkeep of the property. There were two children of the relationship who remained with Ms Jones. Mr Kernott made little or no contribution to their maintenance and none had been sought by Ms Jones.

Some time after the relationship had ended a life insurance policy was cashed and the proceeds split between the parties. In part this was to enable Mr Kernott to purchase a property for himself which he did in 1996, acquiring 114 Stanley Road, which he then financed alone. It is undisputed that Ms Jones never acquired any interest in the Stanley Road property. It is also undisputed that until the couple split up and Mr Kernott moved out of the property in 1993, the beneficial shares in the property were owned equally. The question for the court was whether, following the couple’s separation in 1993, the beneficial shares in the property were altered. At first instance the judge held that they had altered and concluded that Ms Jones was entitled to a 90% beneficial interest in the property on the basis that it was “fair and just”.

The leading judgment in the Supreme Court was, unusually, a joint judgment by Lord Walker and Lady Hale. Inevitably there was much reference to the applicability of the principles set out in Stack -v- Dowden [2007] UKHL 17. The crucial question at the heart of this particular case was whether, following Mr Kernott’s departure from 39 Badger Hall Avenue, an intention between the parties could be found which would rebut the presumption of joint beneficial ownership (which presumption generally arises where there is joint legal ownership and no express declaration of trust that the co-owners should own in anything other than equal shares). Reversing the decision of the Court of Appeal and restoring the determination of the trial judge (upheld in the High Court on appeal) the Supreme Court concluded that the facts in the present case did give rise to an inference that the intentions of the parties (to own the property in equal beneficial shares, consistent with their legal ownership) did change when Mr Kernott acquired his own property independently of Ms Jones. That finding, said Lord Walker and Lady Hale, was a finding made by the trial judge and there was, therefore, no need to impute any intention. This seems to me to fail to recognise that there was no evidence of such an intention referred to by the trial judge in his judgment (as was, in my view, implicitly recognised in Lord Walker and Baroness Hale’s judgment where, at para [48], it is said that “[the parties] intentions did change significantly. [The judge] did not go into detail”) and that this was the intention which he imputed to the parties. At para [47] it is explicitly recognised that the court cannot impose on the parties a solution which is contrary to the evidence of what the parties actually intended.

However, where the court cannot deduce from the evidence what the intentions of the parties were as to shares it was said that the court would have to ask what the parties intentions would have been as reasonable and just people had they thought about it at the time. At para [48] the abortive attempts to sell the jointly owned property, the cashing of the life insurance policy to, amongst other things, help fund Mr Kernott’s acquisition of a new property in his own name and the fact that he would not have been able to afford to do this had he still had to contribute to the property at 39 Badger Hall Avenue all gave rise to the “logical inference” that Mr Kernott and Ms Jones intended Mr Kernott’s interest in the Badger Hall Avenue property to crystallise then. Still looks like “imputed” intention to me, whatever the label given to the exercise…

Postscript: Inevitably, there has been a significant level of interest in this decision and there are lots of other interesting posts (adopting various views) which can be viewed at the following links (my apologies if I have left any out – if you would like links to your posts included please contact me):

For what it’s worth, I agree with those who denounce the lack of enthusiasm for introducing legislation to deal with the distribution / allocation / re-allocation of property rights upon the breakdown of relationships between co-habiting (non-married) couples – my objection is concerned with the use of property law principles for dealing with the same which, in my view, distorts and makes inappropriate use of well established principles (even if the outcome reached might, on the face of it, seem “fair”).

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