Frost v Clarke [2008] EWHC 742 (Ch)

[2008] EWHC 742 (Ch)Case No CH/2008/PTA/0040
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM Mr JOHN HEWITT
sitting as (Deputy) Adjudicator to HM Land Registry)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/04/2008
Before
MR JUSTICE WARREN
Between
VERONICA MARY FROSTAppellantROBERT ADRIAN CLARKERespondent
Ms Frost (the Appellant) appeared in person for in personMr Clarke (the Respondent) appeared in person for in personHearing Hearing date: 2nd April 2008
JudgmentMr Justice Warren :Introduction
[1]This is an application for permission to appeal by Veronica Mary Frost (“Ms Frost”) from a decision of Mr John Hewitt (sitting as (Deputy) Adjudicator to HM Land Registry) dated 25 October 2007 (“the Decision”). The Decision relates to a property known as 8 Princes Walk, Bramhall, Stockport, SK7 2LS (“the Property”) of which the respondent Robert Adrian Clarke (“Mr Clarke”) is, and has since 2 October 1991, been the registered proprietor. Mr Hewitt determined that Ms Frost had no beneficial interest in the Property. He accordingly refused Ms Frost’s application to enter a restriction on the title to protect the interest which she claims. Ms Frost and Mr Clarke both appeared before me in person as they had done before Mr Hewitt. Mr Hewitt refused permission to appeal. On 5 December 2007 I refused permission to appeal on paper. Ms Frost then exercised her right to an oral hearing. I made a direction earlier this year that, if permission to appeal were granted, the actual appeal would follow on at the oral hearing of the application for permission to appeal. At the hearing, I heard submissions from both parties on the substantive appeal on the assumption that I had given permission to appeal.[2]At the hearing conducted by Mr Hewitt, there was a bundle of documents which had been prepared by Ms Frost’s former solicitors. Mr Clarke tells me that he did not produce any documents not already included in the bundle. Both parties gave oral evidence under oath and were cross-examined by each other.

The evidence

[3]Ms Frost’s application for a restriction to be entered on the register was supported by a statement dated 15 February 2006 and a number of exhibits. Mr Clarke filed a statement in response dated 23 May 2006 and a number of exhibits. Before turning to the Decision and Mr Hewitt’s findings of fact (some which are challenged by Ms Frost) I should say something more about the documents.[4]The documents exhibited by Ms Frost were:a. An application form, together with a questionnaire, requesting Halifax to consent to the transfer of the Property from Mr Clarke into the joint names of himself and Ms Frost subject the mortgage over the Property in favour of Halifax (together “the Halifax documents”). This was a mortgage taken out by Mr Clarke at the time of and for the purpose of the acquisition of the Property in 1991.b. A number of invoices, orders, receipts and credit agreements relating to certain works carried out at the Property.[5]Further documents were also filed on behalf of Ms Frost as follows:a. A letter dated 1 April 1991 from Mr Clarke to Ms Frost (“the 1991 Letter”).b. A further letter dated 30 June 1994 from Mr Clarke to Ms Frost (“the 1994 Letter”).[6]The documents exhibited by Mr Clarke were:a. A judgment of Mr Recorder Bennett delivered on 1 June 1994 on an application for a contact order in relation Lawrence, the son of himself and Ms Frost, who was born on 5 December 1991.b. A conveyance to Ms Frost from Manchester City Council of a property known as 39 Garswood Road, Fallowfield, Manchester (“39 Garswood Road) dated 5 October 1992. This was Ms Frost’s home which she occupied under a tenancy from Manchester City Council and which she acquired under the “right-to-buy” legislation.c. Certain documents relating to the re-mortgage of the Property by Mr Clarke with Birmingham Midshires in July 1999.d. Credit agreements with First Direct credit dated 8 and 16 June 1998. These were joint loans to Ms Frost and Mr Clarke relating to double glazing (£3,879) and an interior door (£915).e. Documents relating to the consolidation of debts by Mr Clarke, including letters dated 11 August 1999 from First Direct acknowledging payment in full of the loans which I have just referred to.f. Statements on the Halifax mortgage account showing payments from 1995 to1999.g. Details of certain insurance claims following flood damage at the Property.[7]At this stage I say something about some of these documents. I start with the Halifax documents. The application form is dated 26 October 1998. There is no doubt that both Ms Frost and Ms Clarke signed it. Similarly, the questionnaire was signed by both of them, although it is not dated. It seems to form part of the application and one may assume was signed at the same time, or at about the same time, as the application form. There is also no doubt that the proposed transaction did not go ahead. It is not suggested that a transfer was executed or even agreed in draft.[8]There is a dispute, however, about the circumstances in which the Halifax documents were signed. In the Decision (at paragraph 23), Mr Hewitt records Mr Clarke’s evidence in this way:
“Mr Clarke said that in October 1998, Ms Frost pressured him into making an application to the Halifax for permission to put the Property into joint names. He says that Ms Frost filled out the forms and that he said that he signed them under pressure; it was not something that he really wanted to do. He said the application was submitted to Halifax but rejected because Ms Frost had a mortgage on Garswood Road.”
[9]It is implicit in that, of course, that Mr Clarke’s case was that it was not he who filled in the Halifax documents. He told me that the writing on the forms is not his. In spite of his evidence before Mr Hewitt, Mr Clarke says that he cannot say that the writing on the form is that of Ms Frost. He does not recall telling Mr Hewitt what he is recorded as saying but accepts that, if it is recorded, he must have said it. He does not know why he might have done so.[10]Mr Hewitt does not record what, if any, evidence Ms Frost gave him about the provenance of the Halifax documents or its signing. Ms Frost now tells me that it was Mr Clarke himself who filled out the forms, something she knows because she saw him do it. Given the apparent thoroughness of his record of the evidence, it would be surprising if he did not record anything which Ms Frost said which was contrary to what Mr Clarke said so it may well be that this was not part of her case before Mr Hewitt. In any event, there was no hand-writing expert evidence before Mr Hewitt, although I ought to say that the writing on the form does not to my inexpert eye look at all like the samples of Mr Clarke’s hand-writing which are in evidence. I clearly cannot accept, for the purposes of this appeal, that it is in fact Mr Clarke’s hand-writing.[11]In 1994, Mr Clarke made an application in the Manchester County Court for a contact order with Lawrence. Mr Recorder Bennett gave his decision in the judgment dated 1 June 1994 to which I have referred. At that time, Mr Clarke was living at the Property. It must be clear, therefore, that Ms Frost was not then living there otherwise there would have been no need to make this application. Indeed, the Recorder specifically stated that she lived in Fallowfield. The Recorder said this:
“I believe Mr Clarke overall felt unable to make a full commitment to Mrs Frost. He obviously has a deep passion for Mrs Frost…..Nevertheless, the relationship clearly had its ups and downs. Mrs Frost describes it as a stormy relationship. The parties never really lived together. However, they did at all times maintain separate households at 39 Garswood Road, Fallowfield and 8 Princes Walk, Bramhall.”
[12]Ms Frost takes exception to the finding by Mr Hewitt that in 1991 there was not a relationship between Ms Frost and Mr Clarke, which is a matter I will come to. In reaching that conclusion, he no doubt had in mind what the Recorder had said. Although the Recorder had a rather different issue before him, his general description of the parties’ relationship is of one where both kept their independence whilst spending periods of time together. Both kept their own homes and, in that sense, it can properly, I think, be said that they were not living together.[13]Ms Frost also produced further evidence which she wished to adduce on this application and appeal. It consists of a number of documents.[14]First, there are photographs taken, according to her, between 1985 and 1998 of herself and Mr Clarke, in some cases with other family members. She wishes to rely on these as showing that she and Mr Clarke had a family life and lived together as a co-habiting couple from 1984 to 1999. The photographs are consistent with the existence of such a relationship; they are also consistent with a rather more distant relationship reflecting the ups and downs of their relationship in relation to which these photographs show some ups (especially after the birth of Lawrence). I do not think they would assist in resolving the appeal even if they were admitted in evidence; but I decline to allow them to be adduced since material of this sort, if it was sought to rely on it, should have been produced before Mr Hewitt where Mr Clarke would have had the opportunity(a) to question Ms Frost about the relevant occasions and(b) to explain them to Mr Hewitt.[15]Secondly, there is a letter from Ms Frost’s sister which Ms Frost wishes to rely on as “testifying that [Ms Frost] and [Mr Clarke] had a relationship and lived together as a co-habiting couple at 39 Garswood Rd and Princes Walk from 1984 to 1999”. It would be quite wrong to allow a witness statement from Ms Frost’s sister supported by a statement of truth – let alone a mere letter – to be adduced as evidence without giving Mr Clarke the opportunity to cross-examine Ms Frost’s sister. To allow that would be quite disproportionate in the present case given the contents of the letter, even if there were an explanation for that evidence being unavailable before Mr Hewitt. In any event the letter goes nowhere near establishing what Ms Frost relies on it to establish, and it is quite impossible to tell what the sister is saying from her own knowledge and what she is saying from what she has been told by Ms Frost about the relationship. I decline to allow this letter to be adduced in evidence.[16]Thirdly, there is a form of consent signed by Ms Frost. Mr Clarke does not object to that document being relied on by her. It bears the date 16 July 1999. There is nothing to suggest that that is not the date on which it was signed. It is a consent signed in connection with the re-mortgage of the Property by Mr Clarke in 1999 with Birmingham Midshires. It is a standard form consent which any lender would have required from any person occupying a property over which the lender was taking security. It is no evidence whatsoever that Ms Frost had any beneficial interest in the Property.[17]Mr Hewitt did not see this document. Ms Frost says that the solicitors who acted in relation to the re-mortgage have recently provided her with the copy which she has now made available and that she did not have it at the time of the hearing before Mr Hewitt. She says that she signed it at the Property, where it had been brought by a representative of Midshires for her to do so. She tells me that Mr Clarke was there when she signed it. She says the solicitors have a copy of a similar form signed by Mr Clarke but she has not produced that.[18]Mr Clarke tells me that he has no recollection of even having seen the document. He says that he has no recollection of being at the Property and meeting the representative or of seeing Ms Frost sign this document. If the document was in fact signed on 19 July 1999, it is highly unlikely that Mr Clarke would have been at the Property. He was at that time subject to a court order, following an alleged assault on Ms Frost, banning him from the Property or coming within a certain distance of it, a matter which Ms Frost accepted as correct. If this matter had been aired before Mr Hewitt, he might have found it of further help in assessing the reliability and veracity of the parties. I cannot possibly resolve any factual dispute of this sort on this application or appeal; it is perfectly clear to me that it would be wrong to remit the case to the adjudicator in order to allow this matter to be aired and for him to reassess his original assessment of the totality of the evidence in the light of it. So, whilst admitting the document itself as evidence, I take no account of what the parties have said about the signing of it.

The Decision

[19]After a short description of the background, Mr Hewitt set out in paragraphs 8 to 19 the evidence for Ms Frost; and in paragraphs 20 to 27 he set out the evidence for Mr Clarke. He then recorded in paragraphs 28 to 30 the parties’ final submissions before dealing with the legal issues in paragraphs 31 to 45.[20]He then turned to his findings and reasons in the light of his review of the evidence and the law. He made a number of findings of fact. But he did not make a finding in respect of every disputed fact nor did he, expressly at least, say that any of the evidence which he recorded and which was not contested, was accepted. I should record his findings of fact which he set out as follows: “1. Mr Clarke purchased the Property in 1991 with the aid of a gift of £20,000 from his parents and a mortgage advance from the Halifax. 2. At the time of the purchase in 1991 there was no relationship between Mr Clarke and Ms Frost and Mr Clarke purchased the Property to live in on his own and there was no intention, expectation or hope that it would be a family home for himself and Ms Frost and her children.[3]That subsequent to 1991 Mr Clarke and Ms Frost developed their relationship and spent considerable periods of time together. Sometimes they stayed at the Property and sometimes they stayed at Garswood Road. Sometimes they were together and sometimes they were apart.[4]At no time did they co-habit or live together as husband and wife. I concur with the finding made in 1994 by Mr Recorder Bennett that there were periods when they stayed together, but they did at all times maintain separate households – the Property and Garswood Road. I I note for example that in the loan application form to Chartered Trust [44] completed by Ms Frost on 23 October 1996 she stated her address as the Property and that she had lived there for 1 year 4 months. She gave 39 Garswood Road as her previous address and 23. and stated that she had lived there for 12 years. 5. Throughout since the property was purchased the mortgage repayments have been paid by Mr Clarke from his own resources save for a short period of 12 months or so when they were paid from a joint account into which both parties made contributions. 6. At no time was there a sharing or pooling of assets of the two parties. Ms Frost retained her interest in 39 Garswood Road until she sold it in 2003/4. 7. There was no agreement between the parties made in or about 1991 that Ms Frost should have a half share in the property. No evidence of any such agreement was produced and the contention made at the hearing by Ms Frost was that her interest was limited to the sum of £14,000 plus interest. A half share was not mentioned in her witness statement and only emerged during the course of her giving oral evidence. 8. Mr Clarke signed an application form seeking permission from the Halifax to transfer the property into joint names, but I find that there was no evidence of an agreement on which Ms Frost relied that he should do so and that the intent was that they should each have a 50% beneficial interest in the Property. In the event permission was not granted and the matter was not pursued. 9. Between late 1991 and late 1999 Ms Frost organised and paid for works to be carried out on the Property including, re-tiling the bathroom and installation of a new sink and toilet, new kitchen, re-wiring, re-plastering, new fire, fireplace and surround, demolition of an internal wall, installation of a pair of internal doors, a garden shed and, in 1999, two fully fitted bedrooms and carpets. I am not satisfied on the evidence that Ms Frost incurred this expenditure on the footing of an agreement, express or implied of inferred that she was in return to receive a proprietary interest in the Property. On the question of agreement or no agreement I preferred the evidence of Mr Clarke. Moreover some of the expenditure seems to me to be in the nature of routine repairs, maintenance and redecoration typically carried out to make a home a more comfortable, convenient and pleasant to live in. I have no doubt that Mr Clarke was happy to stand by but I am not satisfied that their was any joint intention that each time Ms Frost should have any or any increased proprietary interest in the Property. 10. Ms Frost accepted that the outstanding balances on two loans taken out by her to pay for works at the Property were taken over and paid off by Mr Clarke when he re-mortgaged the Property in 1999. 11. That in or about 1998 Mr Clarke handed to Ms Frost a cheque for £3,000 drawn in her favour by his father which together with an agreement to pay off two loans taken out by Ms Frost in connection with expenditure on the Property, represented an agreed sum Ms Frost was prepared to and did accept in full satisfaction of her claims to any interest in the Property. On this point I accept and prefer the evidence of Mr Clarke which I find had the ring of truth about it.”[21]In the light of those findings he said this:
“Having regard to all of the evidence presented to me I am not satisfied that Ms Frost has discharged the burden of proof to establish that she has a beneficial interest in the property. Accordingly I must hold that her application to enter a restriction on the title must be dismissed.”

Grounds of Appeal

[22]I can summarise Ms Frost’s written grounds of appeal as set out in her Appellant’s notice in this way:a. Mr Hewitt was biased.b. Mr Hewitt failed to uphold British traditional family values, ignoring the evidence. Ms Frost says that “it seems [Mr Hewitt] is racially motivated, biased and discriminatory”.c. Ms Frost and Mr Clarke had a relationship from 1984 to 1999 lasting 15 years. They were co-habiting partners who lived at the Property as partners since 1991 (as was accepted, according to her, by him but quite clearly never has been accepted).d. There was a “common promise and faith” that the Property would be the family home and “ultimate benefit would be heir’s and not for any individual”. This gives rise to “a constructive trust and promise”. It is suggested that Mr Clarke with malicious intent “broke the trust and threw out his partner”. Mr Hewitt has “failed to understand pre-planned criminal intentions of [Mr Clarke] and made wrong decision”.e. Mr Hewitt failed to call for expert evidence about increase in value to the Property as a result of “effort, labour and money” by Ms Frost. She invested money on the faith of promises, which was “tantamount to contributing to the property price”.f. Mr Hewitt failed to take into account the Halifax documents. Discussion

concur with the finding made in 1994 by Mr Recorder Bennett that

[23]Ms Frost enlarged in her oral submissions by pointing out to me where she says Mr Hewitt was wrong in his findings of fact. In so doing, she covered these grounds of appeal except grounds a., b. and the part of d. alleging malice and criminality. I will deal with those first.[24]In accusing Mr Hewitt of bias, Ms Frost seems to rely on no more than the fact that he preferred Mr Clarke’s evidence to hers. If, in alleging bias, she is saying no more than that Mr Hewitt was wrong in his conclusions and that the evidence did not support them, so be it. But if she is saying that he was biased in the ordinary sense of that word, then there is not a shred of evidence to support such a suggestion. The Decision displays on its face no bias. I have been provided with no evidence about the conduct of the hearing or what Mr Hewitt which provides the slightest hint of bias. This ground of appeal must be dismissed.[25]As to ground b., what Mr Hewitt had to do was decide the case on the facts and the law which he has done to the best of his ability. If he has erred, that can be corrected by me but not on the basis that he, or I, should decide the case by upholding some unidentified traditional family values. The suggestion that Mr Hewitt was racially motivated, biased and discriminatory was not mentioned by Ms Frost in her submissions. There is absolutely nothing in a suggestion that Mr Hewitt was so motivated. Even from a litigant in person, it is a disgraceful suggestion to have included in her grounds of appeal. This ground of appeal must be dismissed.[26]As to ground d., the evidence as recorded by Mr Hewitt contains no suggestion that Mr Clarke was motivated by malice or that there were any criminal intentions. Ms Frost said nothing to me to make good such allegations. This allegation should never have been made as a ground of appeal. This part of ground d. must be dismissed.[27]I turn now to the findings of fact which Ms Frost disputes and the findings which she says that Mr Hewitt should have made. It is important to remember that Mr Hewitt made his findings after hearing oral evidence from Ms Frost and Mr Clarke and after being able to assess them as witnesses. He says that both parties tried to be helpful; he was impressed by Ms Frost as having the better recollection of detail but found there were occasions when both of them professed to have no recollection when it suited them. The complaints are to a great extent interlinked, and so too is what Ms Frost said to me about them. I therefore identify them as follows before dealing with them.[28]The first complaint relates to paragraph 2 of the findings, which includes findings (all of which ware challenged)(a) that there was no relationship between the parties at the time of the purchase of Property(b) that Mr Clarke purchased the Property to live in on his own and(c) that there was no intention, expectation or hope that it would be a family home for Mr Clarke, Ms Frost and her children. The extent of the relationship is, I note, a relevant part of the background when it comes to deciding whether there was any intention that Ms Frost should have a share in the Property and the particular state of the relationship at the time of the purchase is perhaps the most significant.[29]The second complaint relates to paragraph 4 of the findings where it was held that Ms Frost and Mr Clarke did not at any time co-habit or really live together as husband and wife. Mr Hewitt is clearly using that phrase as a description of a couple living together in single stable household in contrast with what he did recognise, that is to say that there were periods when they stayed together but at all time maintained separate properties – the Property and 39 Garswood Road or, as he had put it in paragraph 3 of his findings, that after 1991 they developed their relationship and spent considerable periods of time together, sometimes staying at the Property and sometimes at 39 Garswood Road, sometimes together sometimes apart. However, Ms Frost tells me that she did in fact move to the Property and 39 Garswood Road was let, the rent from that being used to fund household expenditure and, indirectly, mortgage payments.[30]The third complaint relates to paragraph 5 of the findings. Mr Hewitt found that the mortgage repayments were made by Mr Clarke except for a short period of 12 months or so when they were paid from a joint account to which both parties had made contributions. Ms Frost says that that is wrong and that the instalments were paid from the joint account between 1995 up until 1999 when the relationship ended and Ms Frost left, or was forced to leave, the Property.[31]The fourth complaint relates to paragraph 6 of the findings. Mr Hewitt held that there was no pooling of assets whereas Ms Frost says there was.[32]The fifth complaint relates to paragraph 7 of the findings. Mr Hewitt held that there was no agreement in 1991 that Ms Frost should have a half share in the Property. She says that there was.[33]The sixth complaint relates to paragraph 8 of the findings. Mr Hewitt held that there was no evidence of an agreement, at around the time when the Halifax documents were executed, on which Ms Frost relied, that Mr Clarke would transfer the Property into their joint names and that Ms Frost should have a half share in it. Ms Frost tells me that that was agreed,[34]The seventh complaint relates to paragraph 9 of the findings. Mr Hewitt made various findings about expenditure on the Property which Ms Frost disputes and to which I will come in more detail later.[35]The eighth complaint relates to paragraph 11 of the findings. Mr Hewitt held that Mr Clarke handed a cheque for £3,000 to Ms Frost sometime in 1998. Ms Frost says that this did not happen and that Mr Hewitt should not have made the finding which he did on the evidence which he had.[36]In considering these complaints, I note that it is common ground that, in 1991, Ms Frost and Mr Clarke had discussed buying a house together. It appears that this was before Ms Frost become pregnant with Lawrence. I do not know the detail of the evidence given to Mr Hewitt, but he recorded Ms Frost as saying that the parties could not agree the details and that Mr Clarke went ahead and bought the Property on his own as well as that she was at that time living at 39 Garswood Road. He does not record her as saying that it was expressly agreed that she should have a share, let alone a half share, in the Property although it is possible, I suppose, that she did so. The grounds of appeal suggest that the “ultimate benefit would be heir’s and not for any individual” but that suggestion does not appear to have been made to Mr Hewitt (nor, I add, did Ms Frost make a submission to that effect to me).[37]Mr Clarke is recorded as saying that he felt Ms Frost was not sufficiently committed to buying a property and living together as a family; he went off and found the property himself and decided to buy it on his own. It is clear that he did acquire the Property in his own name; the entire purchase price was provided by him with the aid of a gift from his parents and a mortgage loan from the Halifax. Mr Hewitt refers to the 1991 Letter. He quotes one passage from that letter (“I’m ready to go it alone and have a damn good try. I know I’m getting a lot of help from my parents but I’ll do it one way or another.”). Ms Frost says that it is not right to take that passage out of context. However, if one reads the whole letter, it is clear that the thrust of it is that Mr Clarke saw his suggestions of buying a property as a family home as rebuffed and that he was going to go ahead alone. Ms Frost now suggests before me that, in the on-off relationship, the parties got together again after that. But Mr Clarke says, consistently with his evidence to Mr Hewitt, that Ms Frost had nothing to do with the purchase or the provision of funds, and that the Property was certainly not purchased on the basis that it would be a joint home, let alone that Ms Frost should have a share in it. He also said to Mr Hewitt that his relationship with Ms Frost was over by the time of the purchase in October 1991. In other words, he told Mr Hewitt that by the time of the purchase, the relationship was in one of its decidedly “off” periods.[38]Ms Frost has, as part of her submissions, described how she saw the relationship not only at this time (from April 1991 – the time of the 1991 Letter – up to October 1991 – the date of purchase of the Property) but in the periods from 1984 to 1991 and from October 1991 to its admitted final termination by the end of 1999. She tells me that she does not understand how it can be said that she and Mr Clarke did not have a relationship when, for periods at least, they were co-habiting. As I have said, I do not know the details of what she told Mr Hewitt about the relationship except what is recorded in the Decision (see in particular paragraph 9). If she told him in evidence everything which she said to me was the case, then Mr Hewitt must have rejected it is as an accurate description. If she did not say to him in evidence what she has said to me in submissions, then I am afraid she cannot rely on it as evidence in a late attempt to go behind Mr Hewitt’s findings. If she had been able to produce some compelling new evidence, the position might be different, but there is nothing in what she has told me which would justify allowing further evidence on this aspect of the case in at this stage. In particular, I cannot take any account of what she tells me was the position before 1991: she says that Mr Clarke was spending the majority of the time living with her at 39 Garswood Road. But he responds that that was not so and gave me a plausible explanation for that to do with security at the newsagents shop he was connected with.[39]The only point about the relationship which does give some cause for concern is Mr Hewitt’s finding that Ms Frost and Mr Clarke at all times maintained separate households. However, the evidence from Ms Frost as recorded by Mr Hewitt was that she “received rental income from time to time when it [39 Garswood Road] was let” (letting commencing some time in 1995 at the earliest). He also records this:
“Mr Clarke confirmed that throughout the relationship Ms Frost always had her own home, Garswood Road. He accepted that sometimes he stayed there and sometimes it was rented out”
. One might reasonably infer that when it was rented out, Ms Frost lived at the Property, although Mr Clarke did give evidence that, for a period, he thought in 1998, Ms Frost was living in a women’s hostel. One can see that Mr Clarke could consistently say what he did – eg meaning that Ms Frost always retained 39 Garswood Road, a home which was from time to time let but a home to return to nonetheless. It is not easy to see, on the evidence, how Mr Hewitt could say that Ms Frost always maintained a separate household. There is, moreover, the 1998 Letter the contents of which are really consistent only with the fact that, at that time (June 1998) Ms Frost was living at the Property. The possible combination of 39 Garswood Road being let and Ms Frost living at the Property might lead one to think that Ms Frost and Mr Clarke were, at that time, cohabiting or living together as husband and wife contrary to Mr Hewitt’s finding. It may be that Mr Hewitt was simply concurring with what the Recorder said in his judgment, which dealt only with the period before his judgment in 1994, but it is not easy to read Mr Hewitt as restricting his observations about maintaining separate households to that period.[40]However, even if Mr Hewitt’s conclusion on those matters are open to challenge in respect of at least some of the period of the relationship, it does not follow that Mr Hewitt’s conclusion about beneficial ownership of the Property cannot stand. But this aspect is one which I must pay regard to. Although the extent of the relationship is relevant background, the issue before Mr Hewitt was the beneficial ownership of the Property. In relation to that, the important points are not the state of the relationship – even in the case of happily married couples, one of the couple might be the beneficial owner of the matrimonial home to the exclusion of the other – but are whether any agreement was made about shared ownership either before the acquisition of the property and, if not, whether applying the relevant principles of law, a beneficial ownership departing from the legal ownership can be established in the light of the relevant facts ie facts which go to ascertaining the parties’ intentions with respect of the beneficial ownership of the Property.[41]Taking all of the evidence into account, I can see no ground, in relation to the first complaint, for saying that Mr Hewitt was wrong in deciding that there was no relationship between the parties at the time of the purchase of the Property. There was material on which he was entitled to reach that conclusion. However, even if it were putting matters too high to say that there was no relationship – Ms Frost was, after all, pregnant with Lawrence when the Property was purchased – it could not sensibly be maintained in the light of the on-off nature of the relationship that the Property was acquired with the purpose of providing a home for “the family”. Mr Hewitt was entitled on the evidence before him to conclude that Mr Clarke purchased the Property to live in on his own without any intention, expectation or hope that it would be a family home. But again, even if that puts matters too high, in that the parties might have hoped for some further “on” period of the relationship or that Mr Clarke might have hoped that Ms Frost and her children would come to live with him, it does not necessarily follow that Ms Frost would obtain an interest in the Property.[42]I reject Ms Frost’s third complaint. Mr Clarke’s evidence was that he paid the mortgage instalments and Ms Frost accepted in front of Mr Hewitt that he had done so except for short period when they were paid out of a joint account. In the light of that, Mr Hewitt’s finding is not surprising. It is far too late for her now to assert that the period was in fact from 1995 to 1999. She has not in fact produced any evidence in support of such a conclusion.[43]I reject Ms Frost’s fourth complaint. It was Mr Clarke’s evidence that there was no pooling or sharing of assets. The fact, that they had a joint account into which, from time to time, each of them made payments, does not mean that they pooled or shared their assets. Nor does the fact that Ms Frost made certain contributions to home improvements do so. It is, for instance, quite clear that Mr Clarke had nothing to do with the finances of 39 Garswood Road and never had any beneficial interest in it, something hardly consistent with a pooling of assets or income. As to the actual running of the joint account, there was no documentary evidence and no oral evidence is recorded about what was paid into the account, when it was paid and by whom it was paid.[44]I reject Ms Frost’s fifth complaint. Mr Hewitt was entitled on the evidence before him to reach the conclusion which he did. Indeed, it would have been surprising to my mind on the evidence before him if he had concluded that there such an (express) agreement.[45]I reject Ms Frost’s sixth complaint. By October 1998, when the Halifax documents were signed, the relationship was heading for one of its “down” periods, indeed leading to its end the next year. It is clear, of course, that Mr Clarke signed the Halifax documents, the application indicating that he had consented to a transfer of the Property whether or not he was pressured into it. But nothing came of that application for one reason or another. In November, Mr Clarke left the Property to go and live with his parents. There was no evidence that Ms Frost relied in any way on the fact that Mr Clarke, by signing the application, had “agreed” (if that is the word she would wish to use) to a transfer.[46]The seventh complaint raises a number of points.a. The first point is whether there was an express agreement, or more than one express agreement, that Ms Frost would obtain an interest in the Property as a result of the expenditure which Mr Hewitt has held that she incurred. Mr Hewitt was, in my judgment, entitled to reach the conclusion which he did on the evidence before him. He clearly preferred Mr Clarke’s evidence that he had never agreed that Ms Frost should have a half share of the Property. It is true that Mr Clarke accepted that Ms Frost was from time to time anxious about “having her name on the deeds of the Property” but said this was never in the context of incurring expense on the Property. It is also true that Mr Clarke signed the Halifax documents. Notwithstanding those two matters, it does not follow that there was an express agreement that Ms Frost would obtain an interest in return for the expenditure she was incurring. I therefore reject the seventh complaint insofar as it rests on an express agreement or representation that Ms Frost would obtain an interest in the Property as a result of her expenditure.b. Mr Hewitt has set out Ms Frost’s evidence of expenditure in paragraphs 9 to 13 of the Decision. Ms Frost says that she does not have all the details or invoices. The ones she does have total about £14,000 (although I understand that over £4,000 of this was financed by the First Direct loans the balance of which Mr Clarke discharged on re-mortgaging the Property). However, it is clear that she can rely only on the evidence which she was able to produce. Mr Hewitt has set this out in detail in paragraph 13 of the Decision. He has also set out Mr Clarke’s evidence at paragraph 24 of the Decision. I am not going to quote, in this already too long judgment, any of those paragraphs of the Decision but I bear them very much in mind. I will return to the findings about an “implied or inferred” agreement in a moment.c. For completeness, I should mention two further matters. The first is that Ms Frost complains that Mr Hewitt identifies some of the expenditure as in the nature of routine repairs, maintenance and redecoration typically carried out to make a home more comfortable. She says that is wrong and that all the expenditure was on renovation work intended to transform the “tip” to use her word which it was when, in her case, she moved in, in 1995. I do not think anything really turns on this, although I would have thought that some, albeit possibly small, amounts would have been spent on the matters to which Mr Hewitt refers. The second matter is that Ms Frost complains that Mr Hewitt was influenced by the fact that no evidence had been adduced to the effect that the expenditure incurred by her added in any significant way to the value of the Property. Ms Frost has tried to obtain such evidence to put before me. She has not obtained any except a letter from a valuer who has not been permitted access by Mr Clarke. He gives, hardly surprisingly, a highly qualified view which really takes the matter no further even if I were to allow his letter in evidence (which I am not).[47]I reject Ms Frost’s eighth complaint. Mr Hewitt heard clearly believed Mr Clarke’s evidence on this point. He was entitled to do so. Ms Frost now complains that there was no evidence (eg a bank statement) to support Mr Clarke’s case on this. Whether Mr Clarke could have obtained copies of his father’s bank statements (his father being dead) I do not know. The fact is that he did not do so but Mr Hewitt nonetheless believed Mr Clark’s account in the absence of supporting evidence. He was, in my judgment, entitled to do so.

The Law

[48]Mr Hewitt has addressed at some length the relevant law. For the purposes of this appeal, the law is governed by the decision of the House of Lords in Stack v Dowden [2007] 2 AC 432. Since then, one can see the law being applied in a number of cases, including Abbott v Abbott [2007] UKPC 53, a decision mentioned by Mr Hewitt, and the subsequent decisions of the Court of Appeal in James v Thomas [2007] EWCA Civ 1212 and Morris v Morris [2008] EWCA Civ 257. These two last-mentioned cases confirm that a beneficial interest can be acquired by reason of conduct subsequent to the acquisition of the property in question but, as Sir John Chadwick said at paragraph 24 of his judgment in James v Thomas, the court will be slow, in the absence of an express agreement, to infer from conduct alone that the parties intended to vary the beneficial interests at the time of acquisition.[49]At paragraph 60 of her Opinion in Stack v Dowden Lady Hale explains, in cases of this sort, the task faced by the court:
“The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.”
The search is for the result which reflects what the parties must, in the light of their conduct, be taken to have intended. It does not enable the court to abandon that search in favour of the result which the court itself considers fair.[50]When property is transferred into the name of one person, the onus is on another person claiming a beneficial interest to show there is a common intention that their beneficial interests should be different from the legal interest. And, if the beneficial interest is shown to be originally in one person, the difficulty facing the other party will reflect the observation of Sir John Chadwick just mentioned. Stack v Dowden lays down clearly that in order to discern the parties’ common intentions the court should look at the entire course of conduct in relation to the property. Those last words, “in relation to the property” are important since the relevant factors are those relevant to ascertaining the true intention of the parties in with respect to the beneficial ownership of the property (see Lady Hale at paragraph 71 of her Opinion in Stack v Dowden); a roving enquiry about the parties’ entire course of conduct together is inappropriate.

Conclusions

[51]In the present case, Mr Hewitt has carried out the correct exercise having identified, so far as I can see, the correct principles. Given his findings of fact, he is clearly correct in his conclusion that at the time of the acquisition of the Property, Mr Clarke was the sole beneficial owner; at the very least, his conclusion is one which it was open to him to reach on the evidence. Also I have already said, his finding that there was no express agreement that Ms Frost would obtain a share in the Property as a result of her expenditure is, in my judgment, unassailable.[52]Mr Hewitt has, however, also made the finding that there was no implied or inferred agreement that expenditure was incurred by Ms Frost on the footing that she would in return receive an interest in the Property. As a result of all of his findings and in the light of all of the evidence presented to him, he has concluded that “Having regard to all of the evidence presented to me I am not satisfied that Ms Frost has discharged the burden of proof to establish that she has a beneficial interest in the property”. I think it is clear that what Mr Hewitt is saying is that the evidence does not establish a shared intention – inferred since it is clear on his findings of fact that there was no actual intention on the part of Mr Clarke at least – that Ms Frost should obtain an interest in the Property. In referring to an implied or inferred agreement, as he does in paragraph 9 of the findings, he may be saying what he can be read literally as saying ie that the court will not infer any (actual) agreement and will not impute any (notional) agreement: if that is what he was doing, his conclusion is well-justified on the evidence (even assuming that agreements of this sort could be “inferred” or “imputed”)..[53]Alternatively, he may be saying that, as part of the search which it is the function of the court to carry out, the expenditure, in the circumstance in which it was incurred, was insufficient to give rise to a constructive trust under which Ms Frost would take an interest. If that it what he was doing, it was only part of the material relevant to the search albeit the major part, since there was also the evidence (and findings) concerning payment of the mortgage instalments (a proportion of which came from a joint account about which no details are known), evidence about payment of the First Direct loans (some instalments paid by Ms Frost on her evidence with the balance being met by Mr Clarke on his re-mortgage of the Property) and the payment of the £3,000 cheque to Ms Frost. Mr Hewitt would also have been aware of the matters which he had set out in paragraph 10 of the Decision relating, among other things, to the raising the funds for works and repairs and of the evidence concerning contribution to household expenses He would also have taken account of the background against which all of this expenditure was to be judged, including the relationship between the parties.[54]I have no reason to think that Mr Hewitt did not have all the evidence in mind when he reached his conclusion. In my judgment, he was, on the evidence before him, entitled to reach the conclusion that he was not satisfied that Ms Frost had discharged the burden of proof which lay on her.[55]Insofar as I have not already expressly rejected any of Ms Frost’s formal grounds of appeal, I do so. In particular, I do not consider that it can be said that Mr Hewitt failed to take account of the Halifax documents.[56]In these circumstances, I am faced with the choice of refusing Ms Frost’s application for permission to appeal (in which case, that is an end of the appeal process) or granting permission and dismissing the appeal (in which case Ms Frost could take the matter to the Court of Appeal if she can persuade that court to give her permission). Having refused permission to appeal on paper, there is nothing which Ms Frost was able to add which persuades me (notwithstanding that I have in fact rejected all her complaints) that she nonetheless had a real prospect of success of persuading me otherwise. My decision is to refuse permission to appeal.