Holman v Howes [2005] EWHC 2824 (Ch)

Case No HC0003751

[2005] EWHC 2824 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London WC2A 2LL

Date 11 November 2005

Before

MR ALAN STEINFELD QC

(Sitting as a Deputy Judge of the Chancery Division)

Between

MIA HOLMANClaimant

GRAHAM ANTHONY KINGSTON HOWESDefendant

The claimant in person for in person

Mr Graham Crosthwaite (instructed by Hughes Fowler Carruthers) for defendant

Hearing Hearing dates: 17–21 October 2005

Judgment

MR ALAN STEINFELD QC:

Introduction

[1]The essential issue in this case which I have to decide is what are the respective interests of the parties in a property situate and known as “Wilbury”, 1A Latham Road, Cambridge (“the property”). Dependent on the answer to this issue I then have to decide whether the property, which is thought to be worth about £800,000, should now be sold.

[2]The parties were formerly married. The defendant was at all material times a fellow of Trinity Hall, Cambridge. Having recently retired he is now an emeritus fellow of that college. There was one child only of the marriage, namely their daughter Tamsin, now Mrs Garland. The property was purchased in 1979 to provide their home and was registered in the name of the defendant alone notwithstanding that both had contributed substantially to its purchase. Thus far it may be thought that there is nothing particularly unusual about this case. The unusual features, however, are:(a) the property was purchased shortly after the parties had already divorced and in an endeavour on the part of the defendant, the former husband, to resuscitate the relationship;

(b) notwithstanding that, as I have said, both parties contributed substantial sums towards the purchase of the property (there is a dispute as to quite how much each of them did so contribute), the contract for the purchase of the property was in the sole name of the claimant, whilst the property was on completion transferred into the sole name of the defendant;

(c) in fact, it was only for about nine months that the defendant lived in the property. Since that time (ie since 1980) the property has been exclusively occupied by the claimant (with her daughter until the she left home several years ago). The claimant has accordingly been effectively in sole occupation of the property for over 25 years.

[3]The claimant is now a comparatively elderly lady and, as I myself observed, not in particularly good health. She has taken it upon herself to appear in person in these proceedings. She has, however, been assisted by her daughter Mrs Garland, who was for many years a practising barrister and has latterly also become a solicitor. It soon became apparent in the course of the trial that the claimant was not up to presenting the case herself or cross-examining the defendant. I was, accordingly, asked by Mrs Garland whether I would permit her to represent her mother, Mrs Garland told me that she has a practising certificate as a solicitor and, having practised for the requisite period of time as a barrister, she is entitled to higher court rights of audience. The objections to her representing her mother were(a) her close relationship to the parties and

(b) the fact that she was a material witness (indeed when I was first asked for this permission she had already given evidence). These are circumstances where any barrister or solicitor would normally not feel able to act. However, Mrs Garland was prepared to act and in the circumstances it seemed to me right to allow her to do so. I should at the outset pay tribute to the manner in which she was able to discharge the function of representing her mother in the course of which she had at some length and in somewhat trying circumstances to cross-examine her own father in relation to matters going back very many years and which were obviously a source of very painful memories to all concerned.

[4]As for the defendant, he has been represented throughout by Mr Crosthwaite of counsel.

The rival claims

[5]In short the claimant contends that the property is held beneficially for her alone. She bases that claim on assurances and promises which she says the defendant gave her at the time of the purchase of the property and subsequently to the effect that the property when purchased would belong solely to her and that he would never make any claim to it whatever happened afterwards. The defendant denies that he gave any such assurances. He in short contends that the property was purchased as an equal joint venture between himself and the claimant and that it is accordingly held by him on trust for himself and the claimant in equal shares. On that basis he seeks by counterclaim an order pursuant to section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (“the 1996 Act”) for the immediate sale of the property to enable his half share in the property to be realised.

[6]In addition to her claim to be solely beneficially entitled to the property the claimant maintains, or at least until the commencement of this trial maintained, three other claims:(a) The RN Charge: In 1986 the defendant settled his personal tax liabilities to the Inland Revenue in the sum of just under £54,000 on terms that he granted to them a charge over the property in that sum. This he duly did by charging the property to a company called RN Limited, which is a nominee company acting for the Inland Revenue. Although the defendant both in his witness statement and in his pleaded case has sought to maintain that a significant part of the sum owed to the Inland Revenue was in respect of taxable earnings of the claimant while she was his wife, and for which under the tax legislation then in force he was liable, it appears that only a very small part, if any, of that liability could or might be so attributable. In any event the defendant has abandoned this case and now concedes that on any sale of the property the amount owed under this charge should be debited against his share of the proceeds. The claimant contends that her interest in the property is an overriding interest which is binding on and which has priority to the interest of RN Limited under its Charge. On that basis she seeks an order deleting the Charge from the Register. At the outset of the trial I indicated that, in the absence of the joinder of RN Limited as a party to these proceedings, I did not see how I could have jurisdiction to make any such order, although the claimant’s case for being entitled to an overriding interest appears strong. This claim is accordingly not pursued.

(b) The asbestos claim: In or about 1995 the claimant discovered that there was asbestos in the cellar of the property and that its presence was posing a potential health risk. She claims that the defendant is liable for the cost (which is relatively modest compared with the present value of the property) of removing the asbestos essentially on the basis that the defendant was, so she alleges, aware of the presence of the asbestos when the property was purchased and ought to have warned her about it. She also claims damages referable to damage to certain of her chattels which have been stored in the cellar and which she claims have been contaminated by the asbestos. I deal with this relatively minor claim below.

(c) Personal injury resulting from the asbestos: The claimant is suffering from ill-health and at one stage attributed her condition to the presence of the asbestos. However, she is now satisfied that her condition has nothing to do with the asbestos and accordingly does not pursue this claim.

[7]In order to determine what the respective rights of the parties are in the property, it is necessary to have regard to the circumstances in which it was purchased.

[8]The parties were married in 1970 and shortly after the marriage their daughter Tamsin was born. Their first matrimonial home was a property in South Lane, Cambridge. This property was conveyed into their joint names. In 1972 that property was sold and the parties purchased, again in their joint names, a property called Coxalls which was in the countryside outside of Cambridge. That property was in turn sold in October 1976 and the parties went into what was essentially temporary accommodation as wardens of premises owned by Trinity Hall known as the Wychfield site. The circumstances surrounding the sale of Coxalls are in dispute. The defendant says that it was a joint decision made because, whilst it was a delightful property, it was far removed from Tamsin’s school. The claimant says that the sale was forced upon her and that she was very reluctant to go. It does not seem to me that anything turns on this.

[9]The parties’ sojourn at Wychfield was, as I said, temporary. The permanent wardens were on sabbatical leave and due to return in September. By this time the relationship between the parties was becoming strained to say the least. Lt was accompanied by a number of incidents of domestic violence when the defendant lost his temper and assaulted the claimant. By the end of August that year the parties separated. The defendant had purchased for himself a property at Christ Church Street, Cambridge. The claimant purchased for herself a property at Priory Street, Cambridge, into which she moved with her daughter at the beginning of September. However, the defendant was not prepared to accept that the marriage had irretrievably broken down and commenced a course of conduct in which he pursued and harassed her. So much so that at the end of the year the claimant consulted a family law solicitor with a view to obtaining an anti-molestation order against the defendant. In April 1978 the claimant petitioned for divorce and on 17 July 1978 a decree nisi was pronounced at Cambridge County Court, which was made absolute on 31 August 1978. The divorce, however, was not something that the defendant was prepared to accept as marking the end of his relationship with the claimant. He continued to pursue her and there were continuing acts of domestic violence, resulting in a threat by the claimant to apply for a restraining order. However, in May there was a serious incident of assault by the defendant on the claimant at his home, in the course of which the claimant was severely injured and had to be taken to hospital. Instead of leaving her in hospital or taking her to a private nursing home the defendant took her to her home at Priory Street and then proceeded to nurse her back to health there. As a consequence a relationship of sorts began to redevelop between them and at some time the defendant moved into Priory Street to live again with the claimant. The claimant says that the defendant in effect forced himself upon her and there is as a dispute to what extent if at all he ever in fact commenced living at Priory Street, but again this is not something that I think I have to determine for the purpose of the matters which I have to decide.

[10]At all events at some stage at about this time the defendant suggested that he and the claimant should resume cohabitation with a view to remarrying and that for this purpose they should see if they could find a larger house for them both. With this in mind they began to look at properties in and around Cambridge and at some time in August they found the property, which was due to be sold at public auction. The claimant says, and this is a matter which I will have to deal with later in this judgment, that the defendant had assured her that any property purchased would be in her sole name and that she alone would be entitled to it.

[11]On 23 August 1979 the defendant, who was about to depart for a seminar in Venice, put in an offer to purchase the property for £77,000 which was accepted on the basis of an early exchange of contracts. On the same day he retained solicitors, Gudgeons, Peacock & Prentice, acting by one of their partners, Mr Martin Prentice, with whom he had been acquainted since his schooldays, to act in the purchase, and gave him instructions that the purchase was to be in his sole name. This was, of course, if what the claimant says is correct, contrary to the assurance that he had previously given to her that the purchase would be in her sole name. It seems that the claimant herself assumed that the purchase was going to be in her sole name because she appears on the same day to have filled in, dated and signed the memorandum attached to the auction particulars with a view to an exchange of contracts in. the terms of that memorandum that same day.

[12]The claimant, I should say, asserts that the price of £77,000 was in excess of the true value of the property. She says that it was only worth £70,000 and that the price which the defendant offered was too much. Nothing in my judgment turns on this for present purposes. The purchase, whatever its true value may have been in 1979, has proved to be extremely profitable in that the property is now, as I have said, thought to be worth about £800,000. The claimant appears to be basing her complaint mainly upon a subsequent “valuation” of the property. But this valuation was only for insurance purposes and merely indicated what in the view of the valuer it would cost to reinstate the property should it be destroyed. The defendant had no motive whatsoever for paying more for the property than he thought it was worth and than he thought that the sellers would accept. There is, in my judgment, nothing in this complaint whatsoever.

[13]In the event exchange of contracts did not take place on 23 August. Instead, contracts were exchanged on 4 September 1979. The contract was in the sole name of the claimant and was in the form that she had signed it apparently on 23 August, but with the date altered. A deposit of £7,700, equal to 10 per cent of the purchase price was paid by cheque delivered directly to the sellers’ solicitors. There is a dispute between the parties as to whose cheque this was. The claimant claims that it was a cheque drawn on one of her London bank accounts. The defendant claims that it was a cheque drawn on his account. The only difference that this makes is that, if the cheque truly was drawn on an account of the claimant, this would bring her contribution towards the purchase of the property to just over 50 per cent.

[14]Completion of the purchase took place on 19 October 1979. However, notwithstanding that the contract had been in the sole name of the claimant, the transfer of the property was into the sole name of the defendant, who afterwards became the sole registered proprietor. This change came about following, so it would appear, discussions that the defendant had had with his father. His father had indicated that he was prepared to assist financially with Tamsin’s education and otherwise to give financial support to the claimant and the defendant but was unhappy about the property being conveyed into the sole name of the claimant and insisted, according to the defendant, that it should be in his son’s sole name.

[15]It is alleged by the claimant that her agreement to this alteration was obtained by means of deception and undue influence. I should say straight away that I do not accept this allegation, which seems to me to be wholly or almost wholly unsupported by any evidence. However, it does seem to be almost common ground between the claimant and the defendant that the claimant’s agreement to the change was induced by the defendant’s representation to her that it would not make any difference to the position that she would have been in had the property been transferred into her sole name. The claimant in her witness statement says that she was told by the defendant that this was “a technicality to placate his father, and it had no bearing on my continued complete ownership of [the property] and that it could, and would, be reversed easily later”.

[16]As a result of this change of plan on or about 11 October 1979 the defendant spoke to Mr Prentice and informed him that it had been agreed that the property would now be conveyed on completion into the defendant’s sole name Accordingly on 11 October 1979 Mr Prentice sent to the defendant a letter referring to the conversation and enclosing the various documents that needed to be signed both by him and the claimant to enable completion on this new basis to take place. These included a form for the claimant to sign authorising the transfer to be made into the defendant’s name.

[17]Mr Prentice was clearly worried about the position of the claimant, who he knew was going to put up a substantial amount of her own money towards the purchase of the property. There was on 12 October a telephone conversation between him and the claimant. His attendance note records that in the course of that conversation he discussed with her:

“the fact that the house is going in [the defendant]’s name and I said that it was not entirely desirable since she had put in a substantial part of the price. She is well aware of the factors and accepts the position.”

On the same day he sent a letter to the claimant confirming the position.. The letter concluded by stating:

“I believe that you are in fact putting a substantial sum into the property and I feel that a note should be kept somewhere to this effect, probably signed by [the defendant] to acknowledge the fact.”

On the following day the claimant wrote to Mr Prentice enclosing the document signed by the defendant and the form signed by her which Mr Prentice had sent under cover of his letter of 11 October. The letter concluded:

“I received your letter this morning. Graham is away in London until Monday but I am sure he will think it a good idea to sign the statement on the lines you suggest.”

The claimant says that the wording of this letter was dictated by the defendant, who was with her at Trinity Hall (the letter itself is on Trinity Hall headed note paper) when it was written. I am unable to accept this evidence, which is entirely denied by the defendant. It seems to me inconceivable that the defendant would have dictated a letter for the claimant to write in those terms.

[18]Both parties contributed substantially to the purchase of the property. The total purchase price including the cost of acquisition came to about £79,000. Of this sum it is not in issue that the claimant contributed at least £31,000. The claimant says, however, that her total contribution was nearer £41,000. The difference is made up of the deposit cheque (£7,700) and a sum of approximately £2,000 which she says her father contributed towards the purchase of the property on her behalf. That sum was paid directly into the defendant’s bank account shortly after completion had taken place. Even on this basis the claimant’s contribution is only marginally over 50 per cent.

[19]The parties, together with their daughter, moved into the property on or shortly after completion. However, the defendant’s hope for reconciliation with the claimant leading to possible remarriage unhappily did not materialise. The relationship between the parties continued to deteriorate until ultimately in August of 1980 the defendant left the property and returned to live at his property in Christchurch Street.

[20]The claimant continued, however, to live at the property, with her daughter Tamsin until the latter left home many years later, after having completed her education and qualified for the Bar. Mrs Garland now lives with her husband at the Priory Road property, which the claimant gave to her in the mid 1990s on the occasion of her engagement.

[21]The defendant says that when he left the property he told the claimant that he would not seek to evict her from the property until Tamsin had completed her university education. I am prepared to accept that the defendant may very well have had this in mind when he left. However, I am not at all sure that the defendant, who admits that his recollection of these events, going back as they do over 25 years, is somewhat hazy, ever did in fact say anything of this sort to the claimant. She denies that anything was said to her about this when the defendant left. Indeed, her recollection is that the defendant simply left the property without even telling her of his intention to do so.

[22]The defendant himself has never in all the years since he left the property himself instituted proceedings against the claimant seeking to evict her from the property with a view to enabling it to be sold. Certainly he has, through his solicitors, threatened to do this. On 17 May 1984 his solicitors wrote to the claimant setting out the defendant’s proposals for the sale of the property and the distribution of its proceeds of sale. The property was thought at that time to be worth between £90,000 and £100.000. The proposals would have involved the immediate eviction of the claimant and her young daughter from the property notwithstanding what the defendant says he had indicated to the claimant when he left. It would further have involved about half the proceeds being paid to the defendant to recoup for him the expenses, including the payment of Tamsin’s school fees, which he had paid over the years since he left and which he had himself described as being “in lieu of maintenance”. The balance would then, contrary to his present evidence that he had understood that the purchase of the property was to be a joint and equal venture, be distributed proportionate to what was claimed to be the respective parties’ contributions. The letter put the claimant’s contribution as being only £30,000. In short those proposals would have involved the claimant being thrown out of the property with a young daughter and being left with at most £20,000 notwithstanding that the letter itself conceded that she had invested £30,000 in it. Although that letter had gone through many drafts and had clearly received the defendant’s express approval, in his evidence before me the defendant conceded that the proposals contained in it were outrageous. The claimant’s ultimate response to that and subsequent letters was to write to the solicitors on 8 August 1984 asking them to tell the defendant that she would “continue to pray for him, though I wonder how he can live with his conscience”. The letter also referred to the demands made in the previous letters as outrageous. In his evidence before me the defendant accepted that that response was well justified.

[23]As I have said, the defendant himself never took proceedings to evict the claimant from the property. Instead he put in place a plan to enlist the help of his bank, Lloyds Bank, to “front” for him. He did this first by granting to them a charge over the property to secure his personal indebtedness and then by encouraging them to enforce that charge against the property instead of enforcing another charge that he had given to the bank for the same indebtedness over his own Christchurch Street property. That plan failed once the bank had been advised by counsel (Mr Neuberger as he then was), that it was likely that the claimant had a beneficial interest in the property and that such interest would override the interest of the bank under its charge. In the end it was not until the claimant herself first issued these proceedings on 16 August 2000 (claiming that the property belonged beneficially entirely to her) that the defendant counterclaimed for a declaration that the property was held on trust for himself and the claimant in equal shares and for an order for the sale of the property. This counterclaim was served on 7 February 2002, over 22 years after the property had been purchased and over 21 years since the defendant had left it.

The law

[24]There is, these days, hardly a scarcity of authority on the question of the principles that apply to determine the interest of parties, be they married or unmarried, in a property which they have together purchased for their joint use. The most recent authority is the decision of the Court of Appeal in Oxley v Hiscock

[2005] Fam 211

where the numerous authorities on this subject are extensively reviewed in the judgment of Chadwick LJ. At the end of his judgment the learned

Lord Justice summarised the law applicable to this type of case in the following terms:

“Summary 68 I have referred, in the immediately preceding paragraphs, to “cases of this nature”

. By that, I mean cases in which the common features are: (i) the property is bought as a home for a couple who, although not married, intend to live together as man and wife; (ii) each of them makes some financial contribution to the purchase; (iii) the property is purchased in the sole name of one of them; and (iv) there is no express declaration of trust. In those circumstances the first question is whether there is evidence from which to infer a common intention, communicated by each to the other, that each shall have a beneficial share in the property. In many such cases-of which the present is an example-there will have been some discussion between the parties at the time of the purchase which provides the answer to that question. Those are cases within the first of Lord Bridge’s categories in Lloyds Bank plc v Rosset

[1991] 1 AC 107

. In other cases – where the evidence is that the matter was not discussed at all – an affirmative answer will readily be inferred from the fact that each has made a financial contributionThose are cases within Lord Bridge’s second category. And, if the answer to the first question is that there was a common intention, communicated to each other, that each should have a beneficial share in the property, then the party who does not become the legal owner will be held to have acted to his or her detriment in making a financial contribution to the purchase in reliance on the common intention. 69 In those circumstances, the second question to be answered in cases of this nature is:

“what is the extent of the parties’ respective beneficial interests in the property?”

Again, in many such cases, the answer will be provided by evidence of what they said and did at the time of the acquisition. But, in a case where there is no evidence of any discussion between them as to the amount of the share which each was to have – and even in a case where the evidence is that there was no discussion on that point – the question still requires an answer. It must now be accepted that (at least in this court and below) the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. And, in that context, “the whole course of dealing between them in relation to the property” includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping) which have to be met if they are to live in the property as their home. 70 As the cases show, the courts have not found it easy to reconcile that final step with a traditional, property-based, approach. It was rejected, in unequivocal terms, by Dillon LJ in Springette vDefoe

[1992] 2 FLR 388

, 393 when he said:

“The court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair.”

Three strands of reasoning can be identified: (1) That suggested by Lord Diplock in Gissing v Gissing

[1971] AC 886

, 909D and adopted by Nourse LJ in Stokes v Anderson

[1991] 1 FLR 391

, 3990, 400B–C. The parties are taken to have agreed at the time of the acquisition of the property that their respective shares are not to be quantified then, but are left to be determined when their relationship comes to an end or the property is sold on the basis of what is then fair having regard to the whale course of dealing between them. The court steps in to determine what is fair because, when the time came for that determination, the parties were unable to agree. (2) That suggested by Waite LJ in Midland Bank plc v Cooke

[1995] 4 All ER 562

, 574D–G. The court undertakes a survey of the whole course of dealing between the parties “relevant to their ownership and occupation of the property and their sharing of its burdens and advantages” in order to determine “what proportions the parties must be assumed to have intended [from the outset] for their beneficial ownership”. On that basis the court treats what has taken place while the parties have been living together in the property as evidence of what they intended at the time of the acquisition. (3) That suggested by Sir Nicolas Browne-Wilkinson V-C in Grant v Edwards

[1986] Ch 638

, 656G–H, 657H and approved by Robert Walker LJ in Yaxley v Gotts

[2000] Ch 162

, 177C–E. The court makes such order as the circumstances require in order to give effect to the beneficial interest in the property of the one party, the existence of which the other party (having the legal title) is estopped from denying. That, I think, is the analysis which underlies the decision of this court in Drake v Whipp

[1996] 1 FLR 826

, 831E–G. 71 For my part, I find the reasoning adopted by this court in Midland Bankplc v Cooke to be the least satisfactory of the three strands It seems to me artificial – and an unnecessary fiction – to attribute to the parties a common intention that the extent of their respective beneficial interests in the property should be fixed as from the time of the acquisition, in circumstances in which all the evidence points to the conclusion that, at the time of the acquisition, they had given no thought to the matter. The same point can be made – although with less force – in relation to the reasoning that at the time of the acquisition, their common intention was that the amount of the respective shares should be left for later determination. But it can be said that, if it were their common intention that each should have some beneficial interest in the property-which is the hypothesis upon which it becomes necessary to answer the second question then, in the absence of evidence that they gave any thought to the amount of their respective shares, the necessary inference is that they must have intended that question would be answered later on the basis of what was then seen to be fair. But, as I have said, I think that the time has come to accept that there is no difference in outcome, in cases of this nature, whether the true analysis lies in constructive trust or in proprietary estoppel.” (1) That suggested by Lord Diplock in Gissing v Gissing

[1971] AC 886

, 909D and adopted by Nourse LJ in Stokes v Anderson

[1991] 1 FLR 391

[1995] 4 All ER 562

[1986] Ch 638

, 656G–H, 657H and approved by Robert Walker LJ in Yaxley v Gotts

[2000] Ch 162

[1996] 1 FLR 826

, 831E–G.

[25]As appears from that judgment in this sort of case there are generally essentially two questions that have to be addressed. First, whether there was a common intention, communicated by each of the parties to the other, that each should have a beneficial share in the property. Secondly, if the answer to the first question is in the affirmative, what is the extent of the parties’ respective beneficial shares? Ultimately the answer to this last question is that in the absence of evidence that the parties gave any thought to the amount of their respective shares, the necessary inference is that they must have intended that the question should be answered later on the basis of what was then seen to be fair.

Application of the law – the essential issue

[26]In this case the defendant, in whose name alone the property was purchased, does not contest that the claimant was to have a beneficial share in the property. On that basis one would normally be able to go straight away to the second question. However, there is the somewhat unusual feature in this case that the claimant’s case is not that there was a common intention that each should have a beneficial share in the property. Her case is that the common intention, which was communicated to her by the defendant, was that she alone was to be beneficially entitled to the property. However, it seems to me that by parity of reasoning with the judgment of the Court of Appeal in the Oxley case, if the claimant were to satisfy me that there was indeed this common intention, namely that she alone was entitled beneficially to the property, then the Court ought to give effect to that intention. Perhaps putting it another way, if it truly is the case that the claimant was persuaded to invest virtually the whole of her life savings in the property and to move into it, and not to pursue other avenues which she could have pursued against the defendant, such as applying for maintenance or a property adjustment order against him, in the belief; induced by what the defendant told her, that the property, notwithstanding that it was conveyed into the sole name of the defendant, was to belong entirely to her (and would be transferred to her in due course), it would be unconscionable for the defendant to deny the claimant’s beneficial interest. Indeed I did not understand Mr Crosthwaite to be contending otherwise.

[27]This, however, leads to the vital issue of fact which I have to determine, namely did the claimant genuinely believe on the basis of representations and assurances made to her by the defendant that the property was going to belong solely beneficially to her?

[28]It is to that issue that the evidence before me has been mainly directed. In short, the claimant asserts that she was indeed induced to join with the defendant in the purchase of the property in the belief; induced by repeated representations made by the defendant, that the property was going to belong solely to her and that he, the defendant, would never make any claim upon it, whatever subsequently occurred in their relationship. The defendant denies that he made any such representations. He says that his understanding, which was shared with the claimant, was that this was to be a joint and equal venture.

Evidence and findings on the essential issue

[29]It is therefore necessary at this stage for me to refer to the witnesses who gave evidence before me and to my findings on their evidence. I should preface my comments by observing that the events which the various witnesses were seeking to recall all happened a very long time ago. It is obvious that recollections over that period of time are bound to dim and, perhaps worse still, witnesses who in truth have little recollection of the matters in question are prone to convince themselves that they are able to recollect particular matters with perfect clarity.

[30]The claimant called altogether three witnesses including herself. She also relies upon the witness statement of her elderly father (he is 100 years old) who, by reason of ill health, was unable to attend court to give evidence. I deal with each of these in turn.

[31]Mrs Garland:She is, as I have said, the daughter of the parties. Her witness statement ranges quite widely over the deteriorating relationship when she was but a small child between her parents leading to their divorce, their attempt at reconciliation and finally her father’s desertion, as she saw it, of herself and her mother. The cross-examination of her (which I hasten to say was perfectly fair) necessarily involved her having to go back in her memory to some of the most painful and harrowing experiences of her life. She plainly found the experience of doing this most distressing and I can fully understand why. So far as relevant to the matters that I have to decide, however, it seems to me that her evidence went only to two matters: first, her recollection of discussions between her parents at the time of the purchase of the property; and, secondly, very much later a discussion which related solely to the asbestos claim (and with which I deal later in this judgment). As regards the former the thrust of her evidence in chief is in paragraph 13 of her witness statement. She there recounts that in late August 1979, her father took her and her mother to see the property. She remembers standing in the rear garden with him for a short while whilst “my mother must have been looking at another part of the house”. She says that she was very confused about why they were looking at a house at all as she knew her mother did not want to live with her father again and she asked her father why they were there. The gist so she says of what he said was that her mother would probably be moving to this new house and, if they did, they might start living together again. She says that she did not believe that this was what her mother really wanted and she then surmises that, if this was what her mother countenanced, it could only have been because he had taken advantage of her feeble state. She says that she was so upset by the prospect of moving to the property and the possibility that her mother might let their father live with them again that she asked her mother about it when they were alone. She says her mother seemed very depressed and unwilling to talk about it, save to say that “I should not be worried because even if things did not work out with my father, the house would still belong to us”. She also says (in paragraph 16 of her witness statement) that at a later stage she overheard a row between her mother and her father concerning, so she recollects, the increase in the purchase price of the property from £70,000 to £77,000. This, for reasons stated above, is not something that I can accept ever occurred. In cross-examination she conceded that she never actually heard her father at any stage promise her mother that the property would be hers. As to her conversation with her mother the way she put it in cross-examination, expressly stating that she did not remember the precise words, was what her mother had told her was words to the effect “don’t worry darling at least we’ll have the house”. She then adds that her clear understanding from that was that the house was going to belong to her mother.

[32]I am quite sure that Mrs Garland is doing her best to try to recollect events that occurred over 26 years ago, when she was only eight years old. She herself recognises that she cannot recall the precise words that were used (this is hardly surprising). I am prepared to accept that there may well have been a discussion between herself and her mother at or about the time that she recollects. I am also prepared to accept that what her mother told her at the time led her to understand that the house would be her mother’s. But I do not believe that a mother would be discussing the legal ownership of a property which she was about to purchase with her eight year old child. It seems to me likely that all the claimant was seeking to convey to her daughter at that time was that she had no need to worry about moving to their new home, because once they moved they would be secure in it. For reasons which I give below this would, it seems to me, indeed have been the claimant’s understanding at that time. Furthermore it seems to me that Mrs Garland’s “clear understanding” that the house was going to belong to her mother is somewhat belied by the terms of a letter which on 21 October 1984 (when she was 13 years old) she wrote intending to send to her father setting out her own views as to her father’s claims at that time (to which I referred above) to evict her mother and herself from the property. In the second paragraph of that letter she wrote “I would like to remind you that we moved to [the property] under pressure and so do you not agree that we are at least entitled to leave in our own time?” The letter itself was never sent (because her mother thought it was a bad idea at the time), but it seems to me that its contents must surely reflect Mrs Garland’s thinking at that time. This shows that it was plainly not her understanding that the property “belonged” entirely to her mother, but that in the circumstances in which it had been purchased her father was not entitled to seek to evict them from it.

[33]Alexander Popple: Mr Popple is an old friend of the claimant. They first met in 1976. Although they have lost touch over the years, he appears still to be fond of her. In contrast in a letter which he wrote to the claimant on 7 August 1995, he described the defendant as that “awfu1 man”. His evidence relates to a single conversation which he claims to recollect that occurred on an occasion when he came to the property in October, 1979, to assist the parties in moving in. In his witness statement he says that, although he cannot remember verbatim what was said, he does recall that something was said by the claimant which prompted the defendant to say in front of him “that he wanted to come back to live with Sylvia in the new house”. The defendant was, so Mr Popple says, “very apologetic about his previous behaviour and wanting Sylvia to forgive him”. He also, so Mr Popple says, said that if he were to “behave badly again”, he would “lay no claim to the property”. In the letter dated 7 August 1995, which he wrote for the specific purpose of being used in evidence in court, he says that he could clearly remember “visiting you” [ie the claimant} at the property in October 1979 for the purpose of moving some furniture shortly after “you” first moved into the house. He goes on to say that the defendant “also came to visit you that day and also helped in this process of moving the wardrobe”. He then refers to the conversation which he purports to recall but expresses it in slightly different terns. What he says in the letter is that what the defendant said was “that he was sorry for what he had done to you and that he wanted to come back and live with you again” and then added “after what he had done to you he would, if ever he left you again or caused any further harm to you, give you the house and not have any further right to it”. The letter was, of course, written some 16 years after the conversation in question. Mr Popple’s witness statement was signed on 20 April of this year, over 25 years after the conversation.

[34]I am prepared to accept that Mr Popple did, indeed, come to the property on the day of the move to assist with moving some furniture, but it seems to me that he is hopelessly confused as to what was said on that occasion. By the time the parties moved into the property following completion they had already agreed to resume cohabitation at the property. That was after all the whole purpose of the purchase in the first place. And plainly on the undisputed evidence it was both parties, ie both the claimant and the defendant, who on that day were moving into the propertyYet Mr Popple’s recollection in his letter is that it was only the claimant who was moving into the property and that the defendant was on that occasion pleading with the claimant to be allowed to move into the property to live with her. This was plainly wrong. No such conversation as Mr Popple purports to recollect could possibly have taken place on that day. In cross-examination, he did concede that the defendant was moving into the same property at the same timeThis is, of course, in contrast to what he purported to be able to recollect in the letter he wrote 10 years earlier. Further in cross-examination he now purported to recollect the context in which the conversation on the day of the move referred to in paragraph 4 of his witness statement had taken place, notwithstanding that in his witness statement all he was able to say was that he recalls that “something was said by Sylvia which prompted Graham to say in front of me that he wanted to come back to live with Sylvia in the new house”. The context which he now purports to recollect is that the claimant told him in the defendant’s presence that she had signed something and she asked him “Have I signed my rights away?” It was in this context that he now recollects that the defendant said words to the effect that if things went wrong he would not “lay claim” to the property. When cross-examined on the letter of 7 August 1995, he said that he thought it said the same as in his witness statement. He added that the claimant may not have said that the house belonged to her but that she was concerned that she had risked losing it. He now further added that the defendant told him, in the presence it would seem of the claimant, that the defendant had promised her that the house would belong to her and that he would give the house to her if he “misbehaved”.

[35]It is clear to me that MrPopple has no real recollection of his conversation and that most of what he says is entirely reconstruction, possibly based on conversations that he has had with the claimant after the property had been acquired and the dispute concerning its ownership had arisen. But I accept that it is possible that there may have been some conversation on the day of the move in his presence in which the defendant did reassure the claimant that, whatever happened, he would not seek to remove her from the property. In his witness statement Mr Popple translates this as being that he would “lay no claim to the property”.

[36]The claimant: As I have said the claimant is an elderly lady and not in good health. She found the strain of being cross-examined as to events which must have been an extremely harrowing episode in her life very distressing. I am not at all surprised. I have to say, however, that the impression that I formed of her is that she was and must have been in 1979 a perfectly capable lady, not, as she would have me believe, acting under the undue influence of the defendant. Believing in retrospect that allowing the property to be transferred into the sole name of the defendant was a foolish act and one which could well have been damaging to her interests, I think that she has now convinced herself in her own mind that the only possible explanation for it was that she was acting entirely under the influence of the defendant and was prepared to do anything that he asked her to do, however irrational or stupid that might be. A good example of that is the letter which she wrote to Mr Prentice on 13 October 1979, upon which I have already commented above. She has clearly convinced herself that she must have written that letter (the contents of which are inconsistent with the case she is now seeking to make) at the express dictation of the defendant and without any regard to its contents. But, as I have observed above, I cannot even begin to accept this assertion.

[37]The gist of her evidence is that when the question of purchasing a house in which the parties could resume cohabitation was first raised by the defendant in the summer of 1979 the defendant emphasised that any house purchased would not only be registered in my sole name, but that he would make no claim on it, whatever happened in the future and regardless of “financial contributions or whether he remained living with us”. In paragraph 19 of her witness statement she repeats that when the question of the purchase of this particular property was raised, she was “reassured by the defendant’s repeated promises that [the property] if purchased, would belong entirely to me so that whether or not he came to live or remained in the house would be immaterial”. She added that he said this on the basis that “he owed this to us after all the damage he had caused and the fact that we had been forced out of Coxalls”. I have to say that I find this latter comment difficult to accept. According to the defendant, whose evidence in this respect I accept, the move from Coxalls had been dictated by the fact that it was too far away for the purposes of Tamsin’s schooling, and he was as unhappy to have to leave that house as was the claimant.

[38]The claimant says that she had put absolutely all that she had into the purchase of the propertyShe asserts (paragraph 24 of her witness statement), however, that the amount of her and the defendant’s respective contributions is irrelevant to her claim, “since the basis on which [the property] was purchased was that it would belong entirely to me”. She then goes on to assert that her contribution was between £40,000 and £41,000. As to the instruction to transfer the property into the defendant’s sole name, she says in her witness statement (paragraph 25) something which is common ground in the evidence before me, that this was to placate the defendant’s father who had made it clear that he would not help financially with Tamsin’s education unless the property was registered in the defendant’s sole name. But what she says (in paragraph 26 of her witness statement) was that the defendant had told her that this was a “technicality to placate his father and it had no bearing on my complete ownership of [the property) and that it could, and would, be reversed easily later”. She also recalls that at this point he added that the property was “Tamsin’s and mine”. She says that she signed the authority addressed to the sellers which Mr Prentice had prepared for her to sign (authorising the transfer of the property into the name of the defendant instead of into her name) as she felt “comp1etely ambushed” and had not at the time had any chance “to take legal advice of my own or even to telephone a friend or relation” (para 29 of her witness statement). She also in the same paragraph accuses the defendant of deliberately deceiving Mr Prentice about their marital status based upon the fact that Mr Prentice had in that document referred to the defendant as her “husband”.

[39]I have to say that I have great difficulty in accepting much of this evidence. Dealing with the last point, it seems likely that Mr Prentice had not been told that the parties had been divorced and accordingly were no longer married. I do not for one moment accept that there was some sinister plot by the defendant to deceive his solicitor into believing that they were still married. For one thing I cannot see what purpose that would have been intended to achieve. Notably the claimant herself did not alter the words on the authority so as to strike out the words “my husband”, even though it seems to me she clearly must have read that document before she signed it. I do accept that the defendant almost certainly said something to the claimant which gave her the clear impression that, in whosever name the property was purchased, she was going to be secure in the property for however long she wishedThe impression would thus be that in those circumstances, even if the relationship was not restored and the defendant left her, the defendant was not going to make any “claim” to the property, but this would be in the sense of maintaining a claim to evict her and (as then was) her child from it. I deal with this aspect further below.

[40]I do not accept that the claimant ever believed that the property was to “belong” entirely to her and that the defendant was accordingly to have no beneficial interest whatsoever in it. I say this because it seems to me that all the contemporaneous evidence is inconsistent with the claimant having such a belief. 1f as a result of what the defendant had told her, she truly did believe that, notwithstanding that the property was in the defendant’s sole name, it was to belong entirely to her then, it seems to me, she would have taken every opportunity that she had to spell this out. And there were a number of occasions over the years when, it seems to me, she would almost have certainly done so had she truly had such a belief.

[41]On 12 October 1979, following the instruction to Mr Prentice that the property was going to be transferred into the sole name of the defendant, the claimant had the telephone conversation with Mr Prentice to which I have already referred. His attendance note records that he took the opportunity of discussing with the claimant the fact that the house was going into the defendant’s name which he told her that this was not “entirely desirable” since she had put up a substantial part of the purchase price. The attendance note records her replying that she was “well aware of the factors and accepts the position. This, so it seems to me, would have been a prime first opportunity for the claimant to have told Mr Prentice that the defendant had promised her that, notwithstanding the property was going into his sole name, it was to belong entirely to her and that it would be in due course transferred into her sole name. Plainly from the attendance note she told Mr Prentice nothing about this assurance.

[42]On 12 October 1979 ie the same day, Mr Prentice wrote to the claimant (it is not entirely clear whether this letter was written before or after the telephone conversation with the claimant) referring to a discussion which he had had with the defendant to the effect that it had been decided that the transfer was to be into the defendant’s name. As already referred to in the last paragraph of this letter MrPrentice suggested that it would be a good idea for a note to be kept to the effect that she, the claimant, was in fact putting a substantial sum into the property. It seems that the claimant herself thought that this was a good idea from the last paragraph of her letter to Mr Prentice of 13 October to which I have already referred. But her case now is that the respective contributions of the parties to the acquisition of the property was irrelevant because she had been assured that the property was going to belong entirely to her in any event. If that really was her belief at the time, it seems to me that she would have pointed that out to Mr Prentice. Indeed it is, as I see it, the inconsistency between her present case and the contents of the letter of 13 October that leads the claimant to convince herself that its wording must have been dictated by the defendant.

[43]On 4 September 1980, which was only a matter of weeks after the defendant had left the property, the claimant wrote to him asking him to let her know “what decisions you have made regarding the house etc”. Again this would have been an occasion for the claimant to remind the defendant that he had promised her that the house would be his, rather than asking him for his “decisions”. In cross-examination the claimant said that she did not think it was “at all appropriate or relevant to remind him of the promise that he had made at that time”. But I cannot, I have to say, understand quite why it should not have been both appropriate and relevant.

[44]It appears that in early 1983 the defendant instructed Savills, estate agents, to visit the property with a view to putting the property on the market for sale. A Mr Redmayne of Savills made an initial approach for that purpose to the claimant arid subsequently spoke to her on the telephone. The contents of his conversation are recorded in a letter sent to the defendant by his then solicitors, Maxwell Batley & Co, on 4 March 1983. The conversation as so recorded was, in substance, that the claimant was not prepared to agree to a sale until she had certain “guarantees concerning the division of the proceeds of sale”Although the claimant claims to have no recollection of any such conversation, it seems to me from this contemporaneous evidence that such a conversation must have taken place. The claimant’s reference to a division of the proceeds of sale is, of course, inconsistent with her belief at that time that the property belonged exclusively to her.

[45]As mentioned above in 1984 the claimant was being threatened with eviction from the property at the suit of Lloyds Bank which had taken a charge over the property to secure the indebtedness to it of the defendant. On that occasion the claimant did seek legal advice, from a firm of solicitors in London called Masters & Co. On 7 November 1984, those solicitors wrote, on the claimant’s instructions, to the bank’s solicitors setting out the basis upon which she claimed to have an overriding interest in the property. The basis of the claim was that the property had been purchased as a joint enterprise between herself and the defendant, that it was intended to provide a new home for the gamily and that she, the claimant, had contributed from her own funds approximately £40,000 towards the purchase price. It is obvious (and. indeed the claimant accepted this in her evidence) that she had not even told her solicitors about her claim to be solely entitled to the property based upon the promises which the defendant had made to her. There is indeed, no mention of any such promise by the defendant in the letter which the claimant wrote on 27 November 1984, to her own solicitors.

[46]There were, subsequently, many occasions when the claimant would have had the opportunity and could be expected to put forward her claim to sole beneficial ownership of the property. And yet it is not until the commencement of these proceedings on 16 August 2000 that any such claim is advanced. Repeatedly the claimant’s explanation for her failure in putting forward any such claim, even on occasions when it was quite apparent that it would have been relevant to do so, is that on none of these occasions did she think that it was either appropriate or relevant for her to do so. In her cross-examination she explained to me that she did not think that the defendant’s promises were legally binding; she thought they were only binding on him morally. I have to say that I do not regard this as a convincing explanation for her failure to mention the promises. In particular I cannot understand how that would explain why she did not mention these promises to her own solicitors when she instructed them in 1984 to 1985. The claimant is, of course, not a lawyer. She would not therefore know to what extent the promises which she says the defendant made to her and which led her to believe that the property belonged exclusively to her were or were not such as to have any legal affect on her position. It beggars belief that she should not even have mentioned these promises to her own solicitors when she was being threatened with eviction both by the bank and subsequently by the defendant himself. She did not even mention the fact of the promises expressly in the letter that she wrote to the defendant’s solicitors following the correspondence seeking her vacation of the property with a view to a sale in 1984. I do believe that the defendant did make certain promises and assurances to her concerning the property. But I do not believe that he ever assured her that the property would “belong” entirely to her, nor do I believe that the claimant at the material time believed that to be the case, although I am quite sure that she has now convinced herself in her own mind that that was the case.

[47]Mr Swingler: He is the claimant’s father. He is over 100 years old and although, as he puts it in his witness statement, “on the ball”, he feels that due to his advanced years and failing eyesight he is not able to give oral evidence before meHis witness statement exhibits and confirms the accuracy of a letter which he wrote to his daughter on 17 February 1996. The letter recounts that the defendant “told me in Essex in the Autumn of 1979 that [the property] was to be registered in my daughter’s sole name and that, whatever happened, the house would belong totally to my daughter and to Tamsin”. The letter goes on to state that the defendant stressed that he would “make no claim” on [the property] after all they had suffered. He then continues in the statement to say that it was on these two conditions that he contributed £2,000 to the purchase of the property in addition to the sum of £38,000 “provided by my daughter for the purchase”. Whilst I have regard to the contents of that statement I cannot place too much credence on it. For wholly understandable and unfortunate reasons Mr Swingler has not been able to be cross-examined on it. So he has not been able to explain to me quite in what context the conversations to which he refers took place and quite how, over 17 years after the events in question when he wrote his letter, he was really able to recall quite what was said.

[48]The defendant: The defendant alone gave evidence in support of this case. As one would expect from a now retired fellow of a distinguished Cambridge college, the defendant struck me as highly intelligent and articulate. Further I do not doubt for one moment that in the evidence which he gave to me he was being frank and honest. He was, indeed, the first to concede that his recollection of events and conversations which took place all those many years ago was less than perfect. However, his witness statement is peculiarly reticent as to exactly what discussions he had with the claimant as to the purchase of the property and quite what were the circumstances that led up to it. For example in paragraph 4 of his witness statement he simply refers to the claimant and himself having “resumed cohabitation” in the first half of 1979. He says nothing there about the serious incident of assault which led to the claimant being taken to hospital or of his having taken her to her home for him to nurse her there. As regards why contracts were exchanged in her name, he merely confines himself to saying (paragraph 6 of his witness statement) “Early in September 1979 our solicitor had instructions that the property would be bought in the claimant’s sole name”. As to the change of plan to the property being transferred on completion into his sole name, he confines himself to saying (paragraph 8 of his witness statement) that “A further memo on Mr Prentice’s conveyancing file records a conversation between he and I on 10 October 1979 when I told him that the decision had been taken to convey [the property] into my sole name”. But he does not there or otherwise in his witness statement explain the reason for this, although he accepted in cross-examination what the claimant had stated. When it was put to him that he had made promises to the claimant regarding the property, his initial reaction was somewhat angrily to retort that he had made no promises whatsoever. However, subsequently in the course of his cross-examination he did in the end make a number of important concessions in this regard.

[49]As to why he had had initially proposed that the purchase should be in the sole name of the claimant, he accepted that he had suggested this as an inducement for the claimant to go ahead with the transaction. This to my mind supports the claimant’s evidence that she was to an extent a reluctant participant in it and that it was for him to have to persuade herThis I do not find at all surprising. The parties had only recently gone through a divorce which had been to a large extent caused by repeated ugly incidents of assault – and these incidents had continued. They had culminated in an incident when the claimant had been so badly injured that she had to be taken to hospital and was incapacitated for several months thereafter. It would obviously have taken a considerable degree of persuasion on the defendant’s part to persuade her that it was right for the parties to buy a house together with a view to resuming their relationship.

[50]Whilst initially the defendant was prepared to accept that having the property transferred into the claimant’s sole name might to a layman give the impression that she was the sole owner of it, he later withdrew from this concession. He was adamant that he did not at any time promise the claimant that any house purchased would belong to her. The purchase was essentially, as he put it, a joint and equal venture. However, in the end he accepted very clearly that, if the property had gone into the claimant’s sole name that would have been understood by her to mean that she would be secure in the property because it could not be sold without her consent. He went on to say that when his father insisted on the property being transferred into his sole name, he explained the position to the claimant and indicated to her that it would make no difference to her position. As he put it to me it was a sort of informal understanding.

[51]The defendant further recalls that when he left the property he said to the claimant words to the effect “Don’t think I am going to throw you out, you can remain here until Tamsin finishes her education”. When pressed on the point the defendant said he was absolutely certain he had said those words or words to that effect. He also added that he thought he was being generous. Both the claimant and her daughter are adamant that when he left the house he said nothing at all. He just left without saying anything to anybody. His witness statement (paragraph 13) hardly supports his now having this clear recollection. Admittedly in that paragraph he does say that his recollection “now” is that he did suggest that the claimant and Tamsin could remain at the property until Tamsin completed her university education. He then goes on, however, to refer to subsequent letters by the claimant herself which, as I read that paragraph, is intended to suggest that he may not have said anything of that sort at all. Of course even the suggestion that the claimant and Tamsin could remain living at the property until Tamsin concluded her university education is somewhat inconsistent with his understanding that the transfer of the property into the claimant’s sole name would have indicated to her that she was secure in the property for so long as she wished to live there, which could be for longer than when Tamsin finished her university education. It is also, of course, inconsistent with his attempts through solicitors between 1.983 and 1985 to evict the claimant and his daughter from the property to enable the property to be sold. On any basis the actions then taken were, so it seems to me, dishonourable, in breach by the defendant of assurances which he now concedes he gave to the claimant and, indeed, the specific assurance that he claims to recollect that he gave to her when he left the property. The demands made by his solicitors on his behalf were not, as the defendant at one stage in his cross-examination sought to persuade me, something which his solicitors were doing without proper and full instructions from him. It is quite clear that the letters from his solicitors, in particular the letter in May 1984, was specifically written on his instructions and after it had gone through several drafts fully discussed with him. He conceded before me that the demands made in that letter were outrageous and that the claimant’s angry response in the letter to his solicitors to which I have already referred was fully merited.

Conclusions from the evidence

[52]Can I conclude from the evidence which I have heard that the claimant joined in the purchase of the property on the understanding, as a result of representations made to her by the defendant, that the property was going to belong entirely to her? Having carefully weighed up the evidence on both sides I do not feel able to reach that conclusion.

[53]I do, however, think that the right approach should be to determine on the evidence what would have been the position had the property in fact been transferred into the sole name of the claimant, as was the original intention. I say this because, as I have observed, the defendant conceded in his evidence, and this is I think entirely consistent with the claimant’s evidence, that when the decision was made between exchange of contracts and completion, at the insistence of the defendant’s father, to have the property transferred into the defendant’s sole name instead of in the claimant’s, the defendant assured the claimant that this change was not going to make any difference to her position.

[54]So what, I ask myself, would have been the position had the property been conveyed into the sole name of the claimant? On the evidence and for reasons which I have given above I do not believe that even the claimant believed that, if that had happened, she would have been the sole owner of the property. On this point I accept the defendant’s evidence that the purchase of the property was perceived by him and the claimant to be a joint and equal purchase and that neither of them so far as concerns the actual ownership of the property was concerned as to into whose particular name the property was ultimately transferred. After all both of them were contributing roughly equally to the purchase of the property and it is, so it seems to me, unlikely, even had the property been conveyed into the sole name of the claimant, that she would truly have thought that as a result the property belonged entirely to herself and that the defendant, although he had put a substantial amount of his own money into it, did not have any interest in it whatsoever.

[55]To recap the claimant’s case is unsupported by both the contemporaneous documentation and by her own actions or inactions over the years. Thus she did not, as I have already observed, at any time until the commencement of these proceedings some 20 years after the defendant had left the property assert in any shape or form her contention that she was solely entitled to the property. On the contrary, she went along with Mr Prentice’s suggestion that the parties should keep a note of their respective contributions (her letter to Mr Prentice of 13 October l979), albeit in the event no such note was. ever compiled (presumably reflecting the fact that in the end neither party regarded it as important to keep an exact record of what they had contributed because the property was to belong to them equally in any event). It is quite clear from the documentation that ensued following the defendant’s departure and to which I have already referred that at no time after he had left the property did the claimant act on the basis that the defendant had no interest in it. So, if she had been assured by the defendant, as I believe she had, that the change from the property being in her sole name to being in the name of the defendant was going to make no difference to her position, it does not seem to me that she regarded herself on that basis as being the sole owner of the property and the defendant having no interest in it whatsoever.

[56]I accordingly find myself unable to accept the claimant’s case. I do, however, accept (a matter with which I deal with below) that assurances were given to the claimant relating to her entitlement to stay at the property and that these assurances are relevant to the question of whether or not the property should now be sold.

[57]In my judgment on the basis of my findings it must follow that the property must have been purchased with the common intention of both parties communicated to each other that each of them was to have a beneficial interest in it. In this regard I accept the defendant’s evidence that the purchase was always regarded by him and the claimant as a joint and equal venture. Support for this, in my judgment, is to be found in the claimant’s letter in her own handwriting to Mr Prentice of 16 October 1979, the wording of which she does not suggest was in any way was dictated to her by the defendant. The letter is also indicative of a person acting in a totally responsible and capable manner. It was written in advance of completion which was due to take place three days later. In it she asked Mr Prentice to send the deeds of the property to the defendant’s bank as security “against our rather large bank loan”. In fact as the claimant conceded in evidence the loan referred to was a loan by the defendant and represented his contribution to the property. But as can be seen from the letter it was still regarded as “our” bank loan, a phrase it seems to me highly indicative of the fact that at the time the claimant regarded the whole purchase as being a joint venture as between herself and the defendant. That letter, incidentally, finishes with a reference to “we will send you a note with the disposition of the purchase money next week or before, if possible”. This in the context can only be a reference to the note setting out the parties’ respective contributions to the purchase price which Mr Prentice had previously advised and which in her letter to Mr Prentice two days earlier she had said she was sure the defendant would agree to. Thus, it seems to me, the plain indication is that she and the defendant had discussed between themselves the purchase of the property and both were agreed that each should have a beneficial interest in it.

[58]As regards the extent of the beneficial interest, it seems to me on the evidence that the interests must be equal. That is, of course, the defendant’s case. Indeed he asserts that this represents a concession to the claimant as he claims that the deposit of £7,700 was paid by him and hence that his contribution to the property was significantly over 50 per cent. The claimant denies that this is any “concession” on his part and invites me to find that her contribution to the purchase of the property was larger than 50 per cent, I am not sure that I can find on the evidence that there was any express agreement between the parties that their shares were to be equal. On the other hand, it seems to me from their course of dealings that the parties were indifferent to precisely who paid what for the property. Hence the fact that no note detailing their respective contributions was ever drawn up in accordance with Mr Prentice’s advice and. why neither of the parties has taken the trouble to preserve documents (in the shape of paid cheques or bank statements) indicating what the extent of their respective contributions was. This is despite the fact that the potential dispute as to ownership of the property arose not long after the purchase itself and when it would obviously have been possible to obtain from the relevant banks if necessary copies of the relevant statements and paid cheques.

[59]In the event it is extremely difficult now to come to any confident conclusion as to precisely who paid what. In particular, it is impossible to come to a definitive conclusion as to who paid the £7,700 deposit. The only evidence that the claimant has on this is her own assertion, uncorroborated by any bank statements, that the cheque was drawn on “one of her London bank accounts”. The defendant’s evidence that he thinks that it was drawn on his bank account is equally uncorroborated. Save that he is at least able to point to a letter which his accountant, Mr Price, wrote on 17 January 1984. Mr Price had apparently for tax purposes been asked to provide the Inland Revenue with details of precisely how the purchase of the property had been funded. For this purpose it appears that he had been provided with copies of the defendant’s bank statements and with a letter from the solicitors (ie Mr Prentice’s firm) giving him the relevant details so far as they were aware of them. The solicitors’ letter expressly indicated that they could only say that the deposit cheque, which had not gone through their bank account, must have been drawn by either the claimant or the defendant but the letter did not pinpoint which of them. Notwithstanding this Mr Price in his letter concluded confidently that the £7,700 had been provided by the claimant. This suggests to me that he had probably been able to trace the payment in the defendant’s bank statements. So, if I had to decide this point. I think that I would have to conclude that on a balance of probabilities it is likely that that the £7,700 was paid by the defendant and not the claimant. That would mean that her contribution to the acquisition of the property was less than 50 per cent and so the defendant’s case that it is held for the two of them in equal shares does represent a concession to her.

[60]In the event it is unnecessary to decide this point. My conclusion on the evidence is that this purchase was intended by both parties to be a joint and equal venture. Accordingly consistent with the principles set out by the Court of Appeal in Oxley v Hiscock (cited above) I must hold that the property is held by the defendant on trust for himself and the claimant in equal shares.

Sale of the property

[61]The defendant seeks an immediate sale of the property and for that purpose all necessary directions, including an order directing the claimant to vacate the property to enable such sale to be completed. The claimant is not prepared to agree to such sale but wishes, instead, to remain living at the property. Again I do not find this surprising. The claimant has lived at the property since it was purchased in 1979 and it would plainly be a hardship to her if she was forced to vacate it.

[62]The question of whether or not the Court should direct the sale of land held on trust is now governed by sections 14 and 15 of the 1996 Act, which altered the previous law, see Mortgage Corporation v Shaire

[2001] Ch 743

per Neuberger J (as he then was) at page 760 (e). As he put it there:

“… section 15 has changed the law. As a result of section 15, the court has greater flexibility than heretofore, as to how it exercises its jurisdiction on an application for an order for sale on facts such as those in In re Citro and Lloyds Bank plc v Byrne & Byrne. There are certain factors which must be taken into account: see section 15(1) and, subject to the next point, section 15(3). There may be other factors in a particular case which the court can, indeed should, take into account. Once the relevant factors to be taken into account have been identified it is a matter for the court as to what weight to give to each factor in a particular case.”

[63]Under section 14(2) on an application for an order under that section, which includes an order relating to the exercise by the trustees of any of their functions (and as such would therefore include an order relating to the trustees’ power of sale) the court may make any such order as it thinks fit. Under section 15(1) and (3) various matters are set out to which the court is to have regard in determining an application for order under section 14. These include in section 15(1):(a) the intentions of the person or persons (or any person who created the trust);

(b) the purposes subject to which the trust is held; and (d) the interest of any creditor of any beneficiary.

[64]It seems to me that for present purposes I can deal with (a) and (b) together. It is plain on the evidence that the primary intention for which the property was purchased was to provide a home for the parties and their daughter with the hope that the parties would be reconciled and would remarry. It was, however, recognised by both parties, not least by the defendant himself, that it was quite possible that the relationship would not be restored. The defendant was concerned to encourage the claimant to a large extent against her inclination to give it a try. The defendant accepted that he needed to do something to encourage the claimant to go along with his plans. He also accepted that agreeing initially that the property would be purchased in her sole name was a manner of inducing her to fall in with his plans. The claimant would naturally be concerned that having agreed to the purchase of the property and having put her life savings in it, the relationship would again flounder and she might be left high and dry. It seems to me that the whole purpose of encouraging the claimant to go along with his plans by promising that the property would be purchased in her sole name was to allay any fears that she might have on that score.

[65]I have already held that the assurances given to the claimant were not such as to induce in her any belief that she was going to hold the property, had it been conveyed into her sole name, solely for herself to the total exclusion of any interest in. it by the defendant. But clearly assurances of some kind were given to the claimant and those assurances were originally going to be reflected in the property being put into her sole name. What, one might ask, were those assurances then? In my judgment they must have been assurances that come what may the claimant was to be entitled to stay in the property for so long as she wished. The defendant himself conceded in his evidence that that was what having the property conveyed into her sole name would have indicated to her and that in my judgment must have been his intention. It also seems to me, accepting for this purpose much of the evidence of the claimant and her witnesses, that he did give express assurances to her of some sort. The witnesses all talk about the defendant having assured the claimant that, if the reconciliation did not work out and he left the property, he would not make any “claim” on it. In my judgment the likelihood is that the defendant did give to the claimant assurances of this sort. But I do not believe that either he intended, or the claimant understood these assurances to mean, that he would not have any beneficial interest in the property. In the context it seems to me that what those assurances amounted to, and would have been understood to mean, was that if he left the property he would not thereafter make any “claim” on the property in the sense of seeking to have the property sold without the claimant’s consent. In other words the claimant was indeed to be secure in the property for so long as she wished. This was, it seems to me, the very carrot which the defendant held out to the claimant to induce her to go along with his plans. And, as he conceded, the change in having the property conveyed into his name rather than into the name of the claimant was to make no difference to her position.

[66]Accordingly, I find that for the purposes of section 15(1)(a) it was the intention of the parties who created the trust that, although the property was to be held for the parties in equal shares, the claimant was to be entitled to have the use and occupation of the property for so long as she wished. I further hold that for the purpose of section 15(1)(b) the purpose for which the property is held is to provide a home for the claimant for so long as she desires it.

[67]The court must also have regard to the interest of any secured creditor of any beneficiary (s 15(1)(d)). It seems to me that this factor only arises for consideration where the application for sale is being brought by a secured creditor of a beneficiary. Here the only secured creditor is RN Limited. It is not itself making any application. Indeed it is, as I have already observed, not a party to these proceedings.

[68]However, under section 15(3) I must also have regard to the “circumstances and wishes” of each of the beneficiaries who is entitled to an interest in possession in the relevant property. That would include the defendant himself. The defendant says he wishes the land to be sold in order to pay off his liabilities, in particular his liabilities to the Inland Revenue secured by the RN charge. However, he conceded in his evidence that it is not essential for the property to be sold for this purpose. He has sufficient assets of his own outside the property to enable him to pay off his creditors, including the Inland Revenue. His evidence was essentially that he would like, if possible, to have additional money to support himself in his retirement.

[69]Weighing up the factors, as I am enjoined by section 15 to do, it seems to me that it would not be right to order an immediate sale of the property. Such sale would, in my judgment, be running plainly counter to the intentions of the parties when they purchased the property and hence created the trust and to the purpose for which the property itself was purchased and is therefore now held. It seems to me that these are two important factors pointing against a sale. I take into account the fact that, as the claimant herself conceded, if the property were now to be sold and the proceeds divided between the parties (after debiting against the defendant’s share alone any amount outstanding under the RN charge) the claimant would be left with about £400,000 at current value and this would probably be sufficient to enable her to purchase another property. In view of the asbestos problem, she may well wish to do this in any event. However, I do not see why given the assurances that in my judgment she in substance received at the time when the property was purchased that she would not be evicted from the property save with her consent, the court should so direct. I should add, in this connection, that I also take account of the fact that after the defendant had vacated the property the claimant did write a number of letters both to the defendant and to his solicitors indicating that she might be prepared to vacate the property earlier. I accept, however, her evidence that those letters were written because she was understandably unsure as to what the effect in law would be of the assurances that the defendant had given her, particularly given that the property had been conveyed into the defendant’s sole name.

[70]As regards the desire of the defendant to realise his interest in the property, delaying the sale of the property obviously means that he will be unable by a sale to realise his interest and so pay off his debts and leave himself with a lump sum for his retirement. On the other hand he does have other property (the Christchurch property) which I assume has substantially increased in value since its purchase and which at the moment he holds purely as an investment property. Furthermore he has inherited substantial sums from his father’s estate. He is entitled to a university pension, appears to be living in rent free accommodation and when he retired he received a lump sum payment in respect of his pension. He might also have (his position in this regard has not been fully explained in the evidence) the benefit of various life assurance policies. Moreover, it is quite possible that, given that the court has now declared that he is entitled to a 50 per cent interest in the property, he might be able to raise money from his interest in the property prior to any sale on some form of equity release scheme.

[71]Accordingly pursuant to the defendant’s application under section 14 of the 1996 Act:.(a) I hold that the defendant holds the property on trust for himself and the claimant in equal shares (subject as stated below);

(b) I direct that the property should not for the time being be sold without the consent of the claimant. I say “for the time being” because it is conceivable that circumstances could arise in the future which would make the sale of the property more compelling than it appears to me at the moment. Accordingly my judgment does not preclude the defendant on proof of new facts from coming back to the court asking for further directions in relation to a sale of the property.

The asbestos claim

[72]I can deal with this claim very shortly. The contention is that the defendant misled the claimant into believing that the property was free entirely from any problems, when he knew at the time that the property was being purchased(a) that there was asbestos present in the cellar of the property and

(b) that the presence of such asbestos was likely to prove to be a health hazard. It is suggested that by doing this the defendant had taken upon himself a duty of care to the claimant and that as a result she has suffered loss. I would reject this claim on almost every count. The defendant’s evidence is that he was unaware of the presence of asbestos in the property when it was purchased, let alone that the presence of such asbestos could be a health hazard. I entirely accept that evidence. In the first place the potential health hazards attached to asbestos were, to my recollection, not as well known in 1979 as they have become subsequently. More particularly it seems to me highly improbable, to say the least that the defendant having appreciated not just the presence of asbestos in the cellar but the fact that it was a potential health hazard, would have chosen to stay silent and do nothing about it. The suggestion that he kept silent about it in some sort of spiteful attempt to do damage to the claimant and her daughter is, I have to say, a bizarre one.

[73]The only evidence to support the claim is the evidence of Mrs Garland. In paragraph 27 of her witness statement she says that in March 2001, when the defendant came to the property with his surveyor to value it and to check the asbestos, she stood at the top of the stairs leading down to the cellar rooms when her father was inspecting the asbestos with his surveyor and overheard him telling the surveyor that “when he moved into [the Property], he had wanted to make use of the cellar rooms, but obviously couldn’t, because of the asbestos”. The statement itself is belied by the facts. According to both the defendant and the claimant the defendant did make use of the cellar rooms by putting his own chattels into it when the parties moved into the property. I do not accuse Mrs Garland of making up this evidence but it seems to me that the likely explanation is that she simply misheard what her father was telling his surveyor.

[74]Even if I were to accept the evidence, such as it is, upon the basis of which the claim is made, I cannot see how it can be said that the claimant has suffered any loss. The property was purchased, partly with her own money, for £77,000. It seems that arrangement was that she was to put up as much as she could, and the balance was to be provided by the defendant. The acquisition of the property has in fact proved to be highly profitable. Had the asbestos been pointed out at the time, as the claimant asserts the defendant should have done, at most that might have resulted in the parties being able to negotiate a small reduction of the purchase price with the sellers. I say small because, when the problem with asbestos was first discovered in 1995, the cost of remedying it was estimated to be about £6,000. In 1979, adjusting for inflation, that would probably come down to no more than about £3,000. In any event, whatever modest reduction in the purchase price might have been achieved would only have benefited the defendant and not the claimant, because it was the claimant who was going to pay the balance of the purchase.

[75]As to damage to chattels stored in the cellar by reason of the presence of asbestos, no evidence has been produced to me to show precisely what such damage is. In any event for the reasons I have already given, in my judgment there is no basis upon which the defendant can be rendered liable for it.

Conclusion

[76]In the result:(a) I dismiss the claims of the claimant altogether;

(b) On the counterclaim: i. I declare that the property is held by the defendant upon trust for himself and the claimant in equal shares but on the basis that the claimant is exclusively entitled to live there and occupy it for so long as the property remains unsold; ii. I direct that the property be not sold for the time being.