Thompson v Foy [2009] EWHC 1076 (Ch)

[2009] EWHC 1076 (Ch)Case No 7BM305000Case No 7PC06111
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY, Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 May 2009
Before
THE HONOURABLE MR. JUSTICE LEWISON
Between
Mrs MARION MARY THOMPSONClaimantMrs JULIE ANN FOYDefendant-And between -THE MORTGAGE BUSINESSClaimant
Between
Mrs JULIE ANN FOYDefendantsMrs MARION THOMPSONDefendants
Mr Soofi Din (instructed by Bryan & Armstrong) for First Claimant.Mr Benjamin Wood (instructed by Drydens) for Second Claimant.Mrs Julie Anne Foy the First Defendant appeared in person. for in personHearing Hearing dates: 23, 24, 25, 26, 27 March and 22, 23 April 2009
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................THE HONOURABLE MR. JUSTICE LEWISON

Introduction

[1]On 22 January 2007 Mrs Julie Foy was registered as proprietor of Valley View, Hillside, Stretton, Alfreton in Derbyshire. On 5 April 2007 she granted a mortgage over the property to The Mortgage Business plc (“TMB”) which was in turn registered as proprietor of the charge on 10 April 2007. Mrs Foy’s mother, Mrs Marion Thompson, claims that she is entitled to set aside the documents by which Mrs Foy came to be registered as proprietor of the property and that her right to do so has priority over the registered charge because it is an overriding interest.[2]Mr Soofi Din represented Mrs Thompson. Mr Benjamin Wood represented TMB. Although Mrs Foy had the benefit of lawyers in the early stages of the action, by the time of the trial (and for some months beforehand) she conducted her case in person.[3]The dispute to which the events have given rise has divided the family. Passions run high and emotions run deep on both sides. Resolution of the dispute depends to a large extent on resolving conflicts of evidence between the witnesses. Before embarking on the narrative I should say something about my approach. First, I have paid particular attention to contemporaneous documents. Where disputed oral evidence conflicts with contemporaneous documents I have tended to prefer the contemporaneous documents. There is one qualification to this. Mrs Thompson has for many years kept a diary. Most of what she records in it is relatively mundane. She records the daily weather and some of her domestic activities (washing, ironing, watching television) together with birthdays of family and friends. Sometimes she records visits and other appointments. Those are not always accurately dated, as has appeared from other written records. It does not purport to be a detailed record of her life. Indeed it records very little about the essential matters in dispute. Only a few pages of Mrs Thompson’s diaries were disclosed initially, and those related only to the early part of 2007. However, when the original diary was produced part way through the trial, it became obvious that the entries in the original differed from those in the photocopy pages in the trial bundle. The only credible explanation (which Mrs Thompson refused to accept) was that she had gone over the diary after the relevant pages had been disclosed and copied and had altered some of the entries. Naturally this undermined to some extent the value of the diary as a contemporaneous written record. But Mrs Thompson did not rely on the alterations. A diary for 2006 was also produced for the first time during the trial. It is not possible to determine the extent to which it has been retrospectively altered. However, since it was not disclosed before trial, and was not something on which Mrs Thompson relied, there is less reason to treat it with suspicion. Second, I have placed weight on the evidence given by disinterested witnesses. Among these I single out for special mention Mr Mark Bilton. He is a solicitor who tried his best to get to the bottom of what it was that Mrs Thompson wanted to do and to ensure that she understood the consequences of the various options available to her. He was meticulous in his record keeping, and gave his evidence with authority. Third, I have had regard for what I believe to be the inherent probabilities. It is against this background that I have tested the disputed oral evidence.[4]Since much depends on the oral evidence I should also say something about the main witnesses: i) Mrs Thompson was frequently belligerent and hostile. She was sometimes reluctant to answer straightforward questions. At times she became very angry in her answers. But equally she was at times overcome with emotion, particularly when speaking about her late husband. There were also occasions (such as the episode relating to the alteration of her diaries) when she adamantly refused to accept the obvious. She did not strike me as a person who would have been bullied or easy to dominate. ii) Mrs Foy was an unimpressive witness. Her evidence was frequently contradicted by contemporaneous documents, and where that happened she was quick to accuse others of having misunderstood the reality of the situation. She too became very emotional at times. iii) Mrs Swanborough’s witness statement was relatively brief. She was willing to accept that there were inaccuracies in it. She gave her evidence well, although it is clear that she has taken her mother’s side in this family dispute and has a very poor opinion of her sister.[5]I have approached the evidence of all these witnesses with caution. The narrative that follows contains my findings of fact and my more detailed observations about the evidence where the resolution of conflicts of evidence has been necessary.

Early years

[6]Valley View was the family home. Mrs Thompson’s late husband Frank had lived there since his childhood and when they married in 1957 it became their matrimonial home. Their two children, Mrs Foy and her elder sister Mrs Diane Swanborough, were born there, and spent their own childhoods there. Shortly after Mrs Foy herself got married she and her husband Steven Foy came to live at Valley View. The house had only two bedrooms, and they lived in a mobile home (or static caravan) on the site.[7]In 1996 Mr Thompson suffered a stroke which deprived him of the power of normal speech. He was still able to understand what was going on and remained mobile. Those who were close to him (including both Mrs Thompson and Mrs Foy) were able to understand him; and even though Mr Thompson used gestures and drawings as an aid to communication it often took a great deal of effort. Mr Thompson granted an enduring power of attorney in favour of Mrs Thompson. She used it to deal with matters such as Mr Thompson’s pension and his disabled driver’s licence.[8]While the caravan was used as an annexe to the main dwelling the local planning authority turned a blind eye. But as time wore on the caravan became a separate dwelling and in July 1997 the local planning authority issued an enforcement notice alleging a breach of planning control. Mrs Thompson filled in the form of appeal notice. She said in her grounds of appeal that Mrs Foy helped to look after her father and her grandmother who was then 93.[9]As a result of the issue of the enforcement notice the caravan had to be removed. By now Mr and Mrs Foy had four children. In order for Mr and Mrs Foy and their children to continue to live at Valley View different arrangements had to be made. After a discussion with Mr and Mrs Thompson it was decided that an application would be made for the building of a three-storey extension to the original house to accommodate Mr and Mrs Foy and their children. It was agreed between Mr and Mrs Foy on the one hand and Mr and Mrs Thompson on the other that the land on which the extension was built and the extension itself would belong to Mr and Mrs Foy. There was no formal agreement to this effect; nor any written record of it. But Mrs Thompson agreed in the course of her oral evidence that this agreement had been made. Her evidence was that Mr and Mrs Foy had been given the extension. Mrs Swanborough also agreed in her oral evidence that it was well understood in the family that the “bricks and mortar” of the extension belonged to Mr and Mrs Foy. With the help of Mr Austin, an architectural surveyor and family friend, plans were drawn up and submitted to the council for approval on 7 September 1999. Mrs Foy said that the agreement also included allocating to her and her husband a considerable quantity of the land comprised within Valley View in addition to the site of the extension. These claimed areas included the sites of a garage/workshop and a store. In my judgment it is inherently improbable that Mr and Mrs Thompson would have agreed this, and it is inconsistent with Mr Foy’s subsequent conduct and with Mr and Mrs Thompson’s wills. I do not accept Mrs Foy’s evidence on this point; and I prefer that of Mrs Thompson and Mrs Swanborough.[10]On 21 October 1999 both Mr and Mrs Thompson made wills. Each was a mirror image of the other. Mr Thompson left his entire estate to Mrs Thompson and vice versa. Each will also dealt with the position in case there was no surviving spouse. Each will dealt with Valley View by providing that it was to be valued excluding the value of the extension. Mrs Foy was then to pay Mrs Swanborough half that assessed value and upon payment Valley View was to be hers. Mr and Mrs Thompson discussed the terms of their wills with their daughters before they were made; and gave each of their daughters a copy. Thus in economic terms the extension and its site was acknowledged to belong to Mrs Foy. The wills did not refer to any other part of Valley View in the same way, which they would have done if Mrs Foy’s account of the agreement had been true. This reflected the informal agreement that had already been reached.[11]The plans were duly approved and the extension was constructed between June 2000 and 2001. Mrs Thompson recorded in her diary on 7 June 2000:
“Builder started Julie’s house”
. She recorded in her diary for 6 September 2001:
“Julie moved into her house to-day.”
The fact that these entries (which only came to light during the trial) describe the extension as “Julie’s house” supports the agreement that I have found. Mr and Mrs Foy paid for the work themselves. In fact much of it was done by Mr Foy personally, although sub-contractors were also employed. The only dispute about the extent of the work was whether it included the re-roofing of the original dwelling. It is clear that Mr Foy carried out some roofing work, because there are photographs showing him working on the roof. However, I am not satisfied that he carried out more than was needed in order to tie in the roof of the extension with the existing roof, and to accommodate a hot water cylinder. Although the construction has been described as an annexe or extension, it is in fact a self-contained dwelling. It is a three story building, consisting of an entrance hall, kitchen/dining room, sitting room and cloakroom/WC on the ground floor; two bedrooms and a roof terrace on the first floor, and a master bedroom with en suite bathroom on the second floor. There is no intercommunication between it and the original house, although they could be knocked through.[12]In addition to the building of the extension, Mr Foy carried out other extensive improvement works to Valley View. He enlarged an old garage, turning into a sizeable workshop which he used for his boat repair business. He widened the main drive into Valley View; and he built a stone shed. All this was done with Mr Thompson’s permission. However, there was no separate agreement about the consequences of carrying out that work as there had been in relation to the extension. But the fact that he asked for Mr Thompson’s permission is inconsistent with the claim that the sites of these buildings already belonged to Mr and Mrs Foy (which is one of the reasons why I have rejected Mrs Foy’s broader claim).[13]In 2002 Mr and Mrs Foy decided that they wanted to move to Spain. Mr and Mrs Thompson were minded to go with them; and they put Valley View on the market for sale in August of that year at an asking price of £475,000. But it did not sell, and anyway they changed their minds about moving to Spain at that stage. They took the property off the market after about two years.

Mr Thompson’s death

[14]In January 2005 Mr Thompson was diagnosed with motor neurone disease. At about that time Mrs Swanbrough and her husband, who had been living in Cornwall for many years, decided to come back to live in Nottinghamshire close to Mr and Mrs Thompson. Mr Thompson died on 8 October 2005. Under Mr Thompson’s will the entirety of his estate passed to Mrs Thompson, who was also Mr Thompson’s sole executrix. Valley View was the principal asset in the estate.[15]There was some dispute about the extent to which Mrs Foy helped to look after her father between the time that he had his stroke and his death. In her oral evidence Mrs Thompson said that Mrs Foy did little, if anything. But that is belied by what she said at the time in the grounds of appeal against the enforcement notice. It is an instance of how this dispute has coloured her evidence. Mrs Foy, on the other hand, gave evidence of a number of respects in which she helped to look after her father, some of which are corroborated by Mrs Thompson’s diary entries, produced after she had given her evidence. I find that Mrs Thompson was her husband’s main carer; but that Mrs Foy was on hand and helped whenever necessary. It is common ground, however, that whatever the extent of Mrs Foy’s help her relationship with her parents, and in particular with her mother, was one of mutual trust and affection. Mrs Thompson also loved and trusted her other daughter, Mrs Swanborough. But the two daughters were on bad terms as between themselves and barely spoke to each other.[16]Mr and Mrs Thompson had been married for nearly fifty years. Understandably Mrs Thompson was very distressed by her husband’s death. But she decided on all the funeral arrangements with the help of her sister, Mrs Parsons, and dealt with administrative matters such as notifying the relevant authorities and the bank, dealing with the paperwork and so on. Mr Thompson had been in receipt of a periodic pension paid by Scottish Widows. Mrs Thompson notified them of her husband’s death.[17]The solicitors dealing with the estate were Bilton Hammond. Mr Hammond was the relevant partner.[18]On 28 March 2006 Scottish Widows sent Bilton Hammond a cheque for £25,000-odd. It appeared to be the proceeds of an insurance policy on Mr Thompson’s life. On 4 April Mrs Thompson opened a new bank account at Barclays into which she paid that cheque. She withdrew £10,000 in cash on 13 April, a further £10,000 in cash on 19 May, two further cash withdrawals and the final balance of £4,700-odd (again in cash) on 19 July. She kept the cash in a safe at Valley View. The safe was in fact Mr Foy’s safe which was larger than her own and, he said, more secure. At this time Mrs Foy owed about £8,000 on her credit cards. Mrs Thompson provided her with the money to pay them off. There was a dispute about the precise circumstances in which the money came to be made available. Mrs Foy says that it was a loan which she subsequently repaid. Mrs Thompson says that it was a gift, and that she has never asked for it to be repaid. Certainly it forms no part of her claim in the current action. But I do not consider that resolution of every detail of this dispute is necessary. I will, however, come back to it later.

A move to Spain?

[19]By the summer of 2006 Mrs Thompson had decided that she did not wish to go on living at Valley View. For one thing she did not think that she would be able to manage the house and its two acres. For another, it was too full of memories of her late husband, which made continuing to live there painful. Mr and Mrs Foy, for their part, resuscitated the idea of going to live in Spain. The plan, at that stage, was that Mrs Thompson would go with them. Mrs Thompson was prepared to go along with that plan at that time. It is quite clear that Mr and Mrs Foy did not have the money to fund the purchase of a house in Spain. The only way of raising the money would be to realise the value of Valley View. The experience of having put Valley View on the market in 2002 had shown Mrs Thompson that a sale could be a lengthy business. She felt unable to wait a long time and was therefore receptive to the idea that Mrs Foy would buy her out for £200,000.[20]Mrs Swanborough said that she could recall a conversation that she had with Mrs Thompson in the late spring or early summer of 2006. Mrs Thompson told her that Mrs and Mrs Foy were moving to Spain and that they had asked her to go with them. Mrs Swanborough said that that was OK with her if that is what she wanted to do. Mrs Thompson said that Valley View would be put on the market and that she had told Mr and Mrs Foy that she wanted £200,000 for her share. Mrs Swanborough understood from the discussion that the property was to be sold, and that Mrs Thompson was to receive £200,000. Although she thought that the property was worth more than £400,000 and that her mother’s share was worth more than £200,000 she was satisfied that that was what her mother wanted and was prepared to go along with it. Mrs Thompson explained that the value had been reached on the basis of what some valuer had said. Mrs Swanborough’s recollection was that her mother had told her that the valuer had said that Mrs Foy’s part of the property was worth £200,000 and that Mrs Thompson’s part of the property was also worth £200,000. Mrs Swanborough was not entirely happy with the figure, but felt that it was a matter between her mother and her sister. Mrs Thompson explained in her oral evidence that a woman had come to look at Valley View to assess its rental potential. The valuer had said that the rent for the annexe would be about £700 per month and the rent for the cottage would be about £400 per month. Mrs Thompson explained that although in her mind Mr and Mrs Foy owned the annexe, everything else (including the two acres of land and the outbuildings) belonged to her. Thus a 50:50 split in the overall value seemed fair. I find that the 50:50 split was one that was arrived at in good faith on both sides. It represented a fair division of the value of Valley View to which Mr and Mrs Foy had substantially contributed and I find that it was done with the benefit of informal valuation advice.[21]On 17 August 2006 Mrs Foy signed an application for a mortgage from TMB through the agency of ARI Network. Her evidence was that she only saw the signature page and did not see the remainder of the form. The signature page contained the warning that falsifying income details was considered mortgage fraud. The form stated that the loan amount was £400,000 and gave the “Purchase price/valuation” of the property at £500,000. The nature of the mortgage was stated to be “buy to let”. Mrs Foy (the first applicant) was said not to be a first time buyer. The form also described her as the “owner” of the property. She was described as self-employed with annual profits before tax for the years 2004 and 2005 of £96,500 and £100,000 respectively. All this information was contained in parts of the form other than the signature page. But the signature page itself stated Mrs Foy’s annual net profit to be £100,000. Under the section headed “remortgage” the form stated that the property had been “left to her by her mum”, and that the date of the original purchase was 2006. The purpose of the loan was said to be “purchase properties in cash to let”. Large parts of this information were false. Mrs Foy was not the owner of the property. It had not been left to her by her mum. Although she was self-employed her profits were nothing like the figures given (although she claimed in evidence not to be able to remember even the order of magnitude of her profits for those years). There was no original purchase in 2006. She did not intend to use the loan to buy properties to let; but to buy a home for herself and her family in Spain. I do not accept Mrs Foy’s evidence that she only saw the signature page. But even if her evidence was true, the signature page itself contained a misrepresentation of her income; and the remaining details on the other pages can only have been filled in on her instructions.[22]In early September 2006 Mrs Thompson consulted Mr Hammond about a transaction involving Valley View. She was accompanied by Mr and Mrs Foy. Mrs Thompson had no real memory of this or of the details of the proposed transaction; but it is documented in contemporaneous correspondence. In his letter of 8 September 2006 to Mrs Thompson Mr Hammond described the transaction as a sale of Valley View at a price of £250,000. It is clear that the intended purchaser was Mrs Foy. She had already applied for a loan, and TMB made her a mortgage offer of £400,000 on 1 September 2006, based on a valuation of the property of £500,000. She instructed solicitors (Elliot Mather) at about the same time. Also on 1 September TMB sent instructions to Elliot Mather to act for them. The instructions described the mortgage as a “Buy to Let” mortgage. Under the heading “Conveyancer’s Notes” the instructions stated the purchase price as £500,000 and said:
“You must not release the mortgage advance: • … • If the purchase price for the property is less than the amount set out in these instructions, unless the difference between the amount set out in these instructions and the actual purchase price is 5% or less of the amount set out in the instructions.” • … • If the purchase price for the property is less than the amount set out in these instructions, unless the difference between the amount set out in these instructions and the actual purchase price is 5% or less of the amount set out in the instructions.”
[23]Elliot Mather’s initial client care letter of 14 September described the transaction as a “remortgage”; and Mrs Foy filled in a remortgage questionnaire on the following day. In answer to the question whether any other persons over the age of 17 were residing in the property she named Mrs Thompson. Elliot Mather asked Bilton Hammond to release the title deeds. They can only have done this if they thought that Mrs Foy was already the owner of the property and was therefore entitled to call for the deeds. This is borne out by their letter to Mrs Foy of 18 September 2006 in which they told her that they had asked Bilton Hammond for “your Title Deeds”.[24]On 19 September Mr and Mrs Foy, accompanied by their children and Mrs Thompson, went on holiday to Spain. They stayed at a campsite although Mrs Thompson was accommodated in a bungalow. Part of the purpose of the holiday was to look for suitable properties in which they could all live. They were looking for a place with an annexe for Mrs Thompson so that they could replicate the arrangements at Valley View where they lived in close proximity on the same site but in separate households. Although Mrs Thompson had been willing to go along with the plan that she should accompany her daughter and her family, once she got to Spain she began to change her mind. It is common ground that while she was in Spain Mrs Thompson received a call on her mobile phone from her daughter Mrs Swanborough. Mrs Foy did not overhear the conversation. Both Mrs Swanborough and Mrs Thompson said that in this conversation Mrs Thompson said that she did not like being in Spain. She found it too hot; she could not speak the language and she was worried about driving in Spain. In addition she still felt a very strong emotional attachment to her late husband and could not bear the thought of being far from his grave. I accept that Mrs Thompson began to have serious second thoughts about going to live in Spain. Mrs Thompson’s evidence was that she told Mr and Mrs Foy that she was sure in her own mind that she could not live in Spain; and that in consequence both Mr and Mrs Foy were abusive to her and called her names; and said that they would still be coming to Spain and would make sure that she never saw her grandchildren again. There is no trace of this incident in Mrs Thompson’s diary, and Mrs Foy denied that it had happened. Although Mrs Thompson spoke regularly to Mrs Swanborough she did not say anything to her about this incident. However, I do not think that Mrs Thompson had yet definitely made up her mind not to go to Spain, not least because of Mr Bilton’s account of what she told him later in January 2007. Moreover, up to this point there is no evidence that there had been any tension between Mrs Thompson and her daughter and son-in-law. On the contrary, the evidence is that they were a close family. I do not find it credible that Mr and Mrs Foy rounded on Mrs Thompson out of the blue in the way that she described. I do not accept that this incident happened.[25]While they were in Spain Mr and Mrs Foy found a property that they wished to buy. It was on sale through an agency in Tortosa. The purchase price was €150,000 which, at the exchange rate then prevailing, was equivalent to about £100,000. It was a large family house and it also had a small bungalow within the same curtilage (although Mrs Thompson described the bungalow in evidence as looking like a cowshed. This was an unfair description in the light of one of her diary entries which came to light after she had finished giving evidence. It was another instance of the way in which Mrs Thompson’s evidence has been coloured by the dispute). Mrs Foy said that they paid a deposit of £20,000. However, her evidence was that despite paying a deposit equal to one fifth of the purchase price, no contract was then signed, and no receipt for the money was given. Moreover, as subsequently transpired, the so-called deposit was not deducted from the eventual purchase price. Despite these anomalies, there is no dispute that Mrs Thompson lent Mr and Mrs Foy the money. Quite how the money made its way to Spain and the circumstances in which the loan was made are in dispute. Mrs Thompson’s evidence was that Mr and Mrs Foy asked her for the money on 8 October 2006, which was the first anniversary of her husband’s death. She was upset and vulnerable. She was reluctant to make the loan because she thought it was all she had; but Mr and Mrs Foy kept on and said that they would repay it when they got home. Eventually she gave in. Mrs Thompson says that the money was in Mr Foy’s safe at Valley View and that Mr Foy went back to England to fetch it. Mrs Foy, on the other hand, says that Mrs Thompson took £20,000 in cash with her on holiday. Mr Foy said that he would sell a boat in order to raise the money for the deposit. Mrs Thompson then told him not to be hasty as she had £20,000 with her in her vanity case and that she had brought it just in case they found a good house. The possible significance of this dispute is that Mrs Foy says that Mrs Thompson took the cash with her in case they found a suitable property in Spain. Thus she invites me to find that Mrs Thompson was committed to the purchase in Spain. However, I find it very unlikely that Mrs Thompson would have taken £20,000 in cash on a holiday to be spent in a campsite, even if she was accommodated in a bungalow. It is equally unlikely that she happened to have with her the very sum in cash that was needed for the deposit. It is also the case that, according to Mrs Thompson’s diary and her evidence, Mr Foy and his son Steven returned to England during the course of the holiday to pick up a boat. It is likely that they used the opportunity to retrieve the cash from the safe at Valley View. I prefer the account of Mrs Thompson and reject that of Mrs Foy.[26]On 3 October Ms Westmorland of Elliot Mather had received a call from Bilton Hammond. They told her that in fact Mr and Mrs Foy were purchasing the property. Ms Westmorland said that she would take instructions. Bilton Hammond also said in a subsequent call that they were waiting for instructions from their own client.[27]On 17 October Scottish Widows wrote to Bilton Hammond. They said that the payment of £25,000 that they had made under the insurance policy had been made in error. What had happened was that they had been confusion over the correct name of Mr Frank Thompson and a Mr FH Thompson who was the real policyholder. They said that they would be claiming the money back. Mrs Thompson said that Mr and Mrs Foy told her that they would deal with the policy and that she should not worry about it. Scottish Widows said that they could appeal to the Insurance Ombudsman and later in the following year Mrs Foy told Mr Bilton that that is what she had done. Mrs Foy’s evidence was to the same effect. She said that her sister did not want to be involved and so it was agreed that she (Mrs Foy) would help Mrs Thompson. Mrs Foy telephoned Scottish Widows and subsequently wrote to them on Mrs Thompson’s behalf.[28]On her return from Spain Mrs Thompson spoke to Mrs Swanborough. She told her that she wanted to get out of Valley View because it held too many memories for her and that she could not move on with her life until she moved out. She also told Mrs Swanborough that she would look for a place for herself to live. Mrs Thompson also went to see Mr Hammond on 26 October 2006. There was a glitch as regards title to the property which was still in the names of her late husband and his late mother. However, that was not a serious problem and it could be sorted out quite quickly. She went to see Mr Hammond again on 30 October. Mr Hammond wrote to Elliot Mather on 30 October explaining the problem with the title. He continued:
“Would you please let us know your understanding of the arrangements between our respective clients as we understood that your clients had to spend approximately £80,000.00 extending the property in 2000 and that the price should be £225,000.00 of which £50,000.00 is represented by the increase in value by your clients, the balance of £200,000.00 being paid in cash.”
[29]A day or two later Mrs Thompson went to look at some bungalows in the area.[30]On 30 October 2006 Mrs Foy signed a credit agreement with TMB. This provided for a credit limit of £400,050 to be secured on Valley View. Mrs Foy’s signature on the credit agreement was witnessed by Mrs Thompson. However, it was not suggested that, in her capacity as witness to a signature, she read the document itself. I find that she did not.[31]On 30 November Ms Westmorland spoke to Mrs Foy. Mrs Foy had asked her not to make the usual pre-contract enquiries. She prepared a disclaimer for Mrs Foy to sign. It confirmed that she wished Elliot Mather “to proceed with the purchase” without conducting enquiries. This was enclosed with a letter to Mrs Foy dated 2 November 2006. On the same day Ms Westmorland wrote to Bilton Hammond asking for a draft contract for approval and also asking for confirmation of “the agreed sale price”. After some more correspondence Bilton Hammond wrote on 17 December to ask whether Elliot Mather were ready to proceed. At some time in November Ms Booker took over the file from Ms Westmorland. What appears to be a briefing note to her from Ms Westmorland is of considerable importance, because it reflects Elliot Mather’s understanding of the proposed transaction. The critical points are:
“Our client is actually living in the property at the moment but is obviously buying from her mother I am a bit unsure about this file as the mortgage from TMB is for £400,000.00 and the purchase price is shown as £500,000.00. However, Mrs Foy is actually [only] paying 200,000.00 to her mother as she has paid for a big extension and pays for the maintenance and has done so for years.”
[32]On 18 December Ms Booker asked Bilton Hammond for a draft contract and contract package to enable them to proceed. She confirmed that in a letter to Mrs Foy on the same day. In response to that letter Mrs Foy telephoned Elliot Mather and asked them to put “everything on hold” until New Year. It is plain from Elliot Mather’s file that from 3 October to 20 December they were proceeding on the basis that what was envisaged was a sale by Mrs Thompson to Mrs Foy as a result of which Mrs Thompson would receive £200,000 in cash raised on mortgage and Mrs Foy would become the owner of Valley View.

A re-think

[33]At some stage in November Mr Hammond became ill and the file was taken over by Mr Mark Bilton. According to Mr Bilton’s subsequent letter of 11 January 2007 (which I deal with below) he saw Mrs Thompson, accompanied by Mr and Mrs Foy, before Christmas. Mrs Thompson’s diary records that she went to see the solicitor on 18 December. Mr Bilton confirmed that date. At the meeting Mr Bilton explained why a grant of probate was needed. He telephoned Elliot Mather in the presence of the clients. They told him that because the proposed sale was at an undervalue, the mortgage company were not prepared to lend the full value of the property. They were only prepared to lend a percentage of the stated purchase price. The amount they were prepared to lend was not enough to give Mrs Foy the money that she needed. Other alternatives were briefly canvassed. Mrs Thompson was fairly quiet during the meeting. Mrs Foy was supportive and held her hand throughout. Mr Bilton told Mrs Foy that she had to sort it out or the transaction was going nowhere. Mr Bilton was unsure why Mrs Thompson was so quiet and thought that she might have been intimidated by the experience of going to a solicitor. However, Mrs Thompson recorded in her diary “Everything was OK”. Shortly before Christmas Mrs Foy telephoned Mr Bilton and said that they were “all” to discuss the matter as a family and would return to him after Christmas.[34]The meeting with Mr Bilton on 18 December was at about the same time that Mrs Foy instructed her own solicitors to put everything on hold (which happened on 20 December). I have no reason to doubt that TMB were unwilling to lend £400,000 against a stated purchase price of £225,000. This was made clear in the mortgage instructions that TMB had given to Elliot Mather in September. So the arrangements would have to be rethought. That is why Elliot Mather were told to put everything on hold. If the transaction had proceeded as the two firms of solicitors had envisaged, Mrs Thompson would have received £200,000 in cash and Mrs Foy would have been the owner of a property worth more than double that. She would then have been able to realise an additional £200,000 for herself on the security of Valley View. That would have been a transaction with which Mrs Thompson would have been happy because she recognised the moral claim that Mrs Foy had as a result of building the extension. Mrs Swanborough would also have been comfortable with that transaction. In my judgment the fact that both firms of solicitors proceeded for nearly three months on the basis that that was to be the transaction provides powerful support for the evidence of both Mrs Thompson and Mrs Swanborough that Mrs Thompson had made it clear that she wanted £200,000 out of the property. There is, in my judgment, also indirect corroboration of Mrs Thompson’s account in the agreed purchase price of the Spanish property. If Mrs Foy’s expectation was that she would realise about £200,000 from Valley View, then the acquisition of a Spanish property for €150,000 fits within that budget, allowing something for the inevitable improvement and refurbishment that takes place. In fact Mrs Foy’s pleaded case asserts that expenditure on improvements and refurbishment exceeds €50,000. If, on the other hand, her expectation was that the whole of the proceeds of mortgaging Valley View would be spent in the acquisition of a Spanish property, then she considerably underspent her budget, and cannot credibly account for what was to happen to the rest of the money.[35]Between Christmas and New Year Mrs Thompson telephoned Mr Bilton and arranged an appointment for 5 January 2007. Mrs Thompson gave evidence about conversations that she had with Mr and Mrs Foy. In her witness statement she dated these conversations to November or December, but they seem to me to fit into the chronology at about this time. Mrs Thompson’s evidence was that she said to Mrs Foy “the trouble is that if I give you the house I won’t own a penny”. She told them that she wanted £200,000. They said that they would give her the £200,000 when they got the mortgage through. They told her that it was all a matter of trust; and Mrs Foy said to her that “I promised Dad that I would look after you”.[36]On 2 January 2007 Mrs Thompson recorded in her diary that Mr and Mrs Swanborough had returned from a holiday in Benidorm. She continued:
“Went to Diane’s had dinner. Got a bit upset about things. Diane [brought] me home. Got together with Julie & Steve to sort things out. Diane & Julie met half way. Good.”
[37]Mrs Swanborough agreed that a discussion had taken place on 2 January (although her witness statement had erroneously dated the meeting as having taken place before Christmas). The meeting was an uncomfortable one, as the two sisters had not spoken for a long time. Mrs Thompson’s evidence was that Mr and Mrs Foy told Mrs Swanborough that they had been advised to do a deed of gift and that this was the best way of moving everything forward; and that they wanted to move to Spain as soon as possible and Mrs Thompson wanted to buy a bungalow. In her witness statement Mrs Swanborough said that she learned at this meeting that there was to be a gift of the house to Mrs Foy. She continued:
“Julie explained that this was necessary to get the mortgage on the property, that it was all going to be done legally and I got the impression that she would get the solicitor to put it in writing to my mum that she was going to get £200,000 for her interest in the property and the £20,000 from the insurance policy. Julie reassured me that the money would go to mum.”
[38]Mrs Swanborough’s oral evidence was that at the meeting Mrs Foy promised to give £200,000 to her mother. When Mrs Swanborough questioned this Mrs Foy replied:
“What do you take me for? Do you think I’d rip off my own mother?”
Mrs Thompson’s evidence was that Mrs Foy said “Mother, I won’t let you down”. Mr Swanborough also learned that Mrs Thompson was to receive £200,000 for her share of Valley View. He did not like the sound of it and warned Mrs Thompson to be careful. I accept the evidence of Mr and Mrs Swanborough.[39]Mr and Mrs Swanborough and Mrs Thompson all knew that Mrs Foy did not have £200,000. They all knew that the only way in which Mrs Thompson would receive her £200,000 was for Mrs Foy to mortgage the property. Mrs Thompson did not want to take out a mortgage herself and anyway she thought she was too old to do so. As she put it in her oral evidence:
“Why should I get a mortgage at 72? It was mortgage free. I would not have got a mortgage as a pensioner.”
Mrs Swanborough was not happy with the arrangements. Her concern was that her sister could walk away and her mother would be left vulnerable. She telephoned Mrs Thompson and warned Mrs Thompson not to trust Mrs Foy. She told her mother to be careful otherwise she could end up with nothing. She tried to make her concerns as clear to her mother as she could. But Mrs Thompson replied that she had to trust Julie and that Julie would see her right. At some time in early January Mrs Swanborough suggested that she should accompany Mrs Thompson to see Mr Bilton so that she could get an explanation and see what was happening. According to Mrs Swanborough Mrs Thompson thought that this was a good idea. But according to Mrs Thompson she persuaded Mrs Swanborough not to go because Mrs and Mrs Foy had said that it was nothing to do with her. Both Mrs Swanborough and her husband were distrustful of Mr and Mrs Foy. They both warned Mrs Thompson to be careful. Mrs Swanborough gave her mother this warning on several occasions. She was concerned that a gift of Valley View to Mrs Foy would leave her vulnerable. She made her concerns as clear to her mother as she could. But Mrs Thompson said that she trusted Mrs Foy and that she had to trust her.

Legal advice

[40]On 5 January Mrs Thompson went to see Mr Bilton. She was accompanied by Mr and Mrs Foy. She recorded the meeting in her diary (although she erroneously recorded it as having taken place on 4 January). She records “Solicitor 10 am”. Her account continues:
“Got at the solicitors on time, were there 2 hours, got rather upset, be glad when things get sorted. Julie not very good, Steve took her to doctors. I asked Diane to come over, they both talked. Seems much better between them.”
[41]Mr Bilton’s note of the meeting is much fuller, although he records the meeting as having lasted for one hour (rather than Mrs Thompson’s two). He records that Mrs Thompson was accompanied by Mr and Mrs Foy. The purpose of the meeting was to enable Mrs Thompson to explain what she wanted to do with the property. Mr Bilton recorded:
“Mrs Thompson didn’t seem to have a lot of self confidence and is very distressed at the prospect of having to make decisions and having talk with lawyers.”
[42]Mr Bilton asked questions about the background. He was told about the extension that Mr and Mrs Foy had built. He was also told that Mrs Thompson had been very distressed since her husband’s death. She was very depressed when she thought about him and that fact that he used to live at Valley View; and she did not want to live at Valley View any more. His note continued:
“Julie and her husband have contributed to the value of the property and Mrs Thompson wants to give them that value.”
[43]This was consistent with the wills that Mr and Mrs Thompson had made back in 1999. Mr Bilton’s note continues:
“It was explained to me that they wanted to do the following: Give the property to Julie. Julie would then re-mortgage the property on a buy to let basis. Previously they had talked of selling the property to Julie and her husband however that does not release sufficient money. It now has to be a gift of the whole so that Julie can raise 90% of the value on a buy to let mortgage. The next step would be that Julie would purchase the property in Spain and Mrs Thompson would either continue to live with them in Spain or with Diane Julie’s sister. They said that she would not continue to live at the property or if she did it would be for a short period of time. Another alternative was that Mrs Thompson would buy a bungalow with money that would come from the property. About £200,000 could be made available in this way.”
[44]This note is one of the important pieces of evidence which underpins my finding that Mrs Thompson had not definitely made up her mind not to go to Spain during the course of the holiday there. Mr Bilton asked about a will and was told that Mrs Thompson would make a will and share the remaining £200,000 between her daughters equally. Plainly this idea about a will is based on the assumption that Mrs Thompson would receive £200,000 out of the deal. Mr Bilton could immediately see tax problems about this plan. He was told that there was a financial adviser but they did not want him to contact the adviser. They were adamant that the mortgage had to be progressed in its existing form. Mr Bilton continued:
“There was some opposition from both Julie and her husband to my questions. None of them could see why I was asking the questions that I was. I did explain that it was necessary to understand precisely what everybody had in mind to advise correctly. Mrs Thompson seemed to resent what I was doing because she couldn’t understand that why she couldn’t just do as she wanted and to her it seemed very simple. In essence I was being asked why was I stopping her doing what she wanted.”
[45]Mr Bilton explained that if she wanted to go ahead, Mrs Thompson would have to assent the property and register it and then execute a deed of gift in favour of Mrs Foy. He raised the question whether Mr Thompson’s will could be varied to pass the property to Mrs Foy and also raised the question whether the property would be better sold for £200,000 and that there would be a promissory note by Mrs Foy. He concluded that he would have to prepare written advice for Mrs Thompson and think carefully on the matter because there were lots of implications. Mr Bilton also made a file note for himself. In that note he recorded a number of concerns. These included: i) Whether Mrs Thompson had capacity. It was difficult to speak to her alone and she did not want to see him alone. She was clearly distressed, but Mr Bilton saw that as frustration with the legal process. In his oral evidence he explained that Mrs Foy did much of the talking; that it was difficult to separate her and Mrs Thompson; and that it was Mrs Thompson herself who said that she did not want to see him alone. ii) He was not being given a lot of information freely and he had to extract it. He felt that Mrs Thompson was not pleased that he was asking so many questions about the family. iii) Mrs Thompson did not show a willingness to understand the complexities of the situation. Mr Bilton said that his issue was how much she understood, and he was concerned that she did not want to see him alone.[46]In his oral evidence he also explained that another of his concerns was that Mrs Thompson did not seem to know where she would live. She did not want to go on living at Valley View, but beyond that there was no clarity. He did, however, understand that Valley View was to be used as a means of raising cash by way of mortgage. Mrs Thompson would need money if she were to buy a property to live in if that were to be the plan for where she would live; and Mrs Foy needed money to honour a contract for the purchase of a property in Spain to which she was already committed.[47]After she returned from Mr Bilton Mrs Thompson rang Mrs Swanborough and asked to come over to talk to Mrs Foy, which she did. They spoke for about ten minutes. Mrs Foy explained that they were going to do a deed of gift so that she could raise money on the property. Mrs Foy repeated her promise that she would give Mrs Thompson £200,000 as soon as the mortgage monies came through, and she added that she would also repay the £20,000 at the same time. Mrs Foy then went home and Mrs Thompson and Mrs Swanborough went shopping together. Mrs Swanborough said that she was not happy with the situation as it left Mrs Thompson vulnerable. But Mrs Thompson replied that Mrs Foy had promised her the money; that she was her daughter and that she wouldn’t not pay.[48]Both Mrs Thompson and Mrs Foy telephoned Mr Bilton chasing the promised letter of advice. Mrs Foy denied that she had; but her evidence is directly contradicted by a contemporaneous attendance note. I reject Mrs Foy’s evidence. Mr Bilton’s letter was a long and detailed letter, addressed to Mrs Thompson, running to over five pages. A summary does not do it justice; but the main points were as follows: i) His initial instructions were to sell Valley View to Mrs Foy for £255,000 of which Mrs Thompson was to receive £200,000. ii) One suggestion made before Christmas was that Mrs Thompson would receive the purchase money and stay in the house paying rent; or that she would not receive the money and would stay in the house rent free. iii) The instructions he was given were that the property was worth £400,000 and that the extension was worth £200,000, but he had seen no valuations. He pointed out that “in law the whole of the property is yours including “Julie’s property” but you seem to acknowledge a moral duty to account to your daughter for the £200,000 that represents the value of … the property that has been built by her and her husband”. iv) He noted that the Thompsons were a close family and said that Mrs Thompson had lived closely with Mrs Foy and her family for twenty years “and have built up a very close relationship and even reliance upon them”. v) It was self-evident that Mrs Thompson was “still deeply distressed” about losing her husband and was “deeply unhappy” about living at Valley View. He continued “You wish to live somewhere other than Valley View Farm but you have not come to a conclusion as to where you wish to live”. The options were: to live with Diane; to live in a house to be purchased; and to go to live with Julie and her husband in Spain. But Mrs Thompson had “not been able to decide what to do as yet”. vi) Mrs Foy needed to raise £200,000 from the sale of Valley View to complete on a property in Spain. vii) Mr Bilton then set out his understanding of what he called the “original plan”. The details of this were a little garbled, but in essence Mrs Thompson was to sell the house to Mrs Foy for a sum of money. Mrs Foy was to mortgage the house for 90 per cent of its value and then rent out the property to cover the mortgage. Mrs Thompson was to receive £200,000 and Mrs Foy would use the excess to complete the property in Spain. Mrs Thompson would then make a will leaving one half of her estate to each of her two daughters. viii) Mr Bilton’s understanding of this was that:
“Effectively Julie would get the value of the house that was built and the remainder of the estate was to be divided equally between her and Diane on your death.” ix) He then said that at the last meeting the plan had changed. Mr Bilton recorded: “I was told by you that you wish to give the whole of your property to Julie.” x) He pointed out a number of disadvantages in proceeding in that way. These were mainly taxation aspects. But he went on to point out that although there was a great deal of trust between family members there were dangers in making a gift. These included the irrevocable nature of a gift; possible inheritance tax implications; an inability to leave the property by will; the possibility that the house could be awarded to a spouse in matrimonial proceedings; and the impact of the gift on the availability of means tested benefits or local authority residential care. He continued: “We have discussed all these matters with you already but you do have to give serious consideration to all of these points.” xi) He added: “We have also been led to believe that following the gift of the whole of the value of Valley View Farm Julie may give you back a sum of money to purchase a house or bungalow in the locality if you wish to live by yourself in this area. It has been suggested that this is a possibility but there will be no legal obligation to do this and Julie could change her mind and there would be no legal comebacks.” xii) Mr Bilton then raised the question of undue influence. He said that he had a duty to see that Mrs Thompson was not under any undue influence and that the only way of doing that was to see her alone. He needed to satisfy himself that she understood the nature, effect, risks and foreseeable consequences of making the gift. He suggested that Mrs Thompson could be accompanied by Mrs Swanborough whom he understood “had been fully informed of the position”. xiii) Finally he set out Mrs Thompson’s choices. He said: “If you choose to proceed with the gift of this property you can choose to proceed in two ways 1. You can transfer the property from your husband’s estate to your sole name. We can register this and then you can gift it to Julie. Your estate will have a risk to [a] large Inheritance Act charge as stated before if you die within 7 years. 2. We can prepare a deed of variation to your husband’s will which will for tax purposes be read as if he made that gift and you can then transfer … the property out of the estate to yourself and Julie. When the deeds are registered you can then give your share to Julie. In this case if you die within 7 years the amount which will be credited back to your estate will be no more than one half of the property and you will then have reduced the risk to a charge for Inheritance Tax. I will have prepared documents both ways so that if you do wish to proceed you can execute the documents. I would have thought that the registration process would be the same in each case.”
[49]As Mr Bilton explained in his oral evidence the real difficulty he had was in trying to establish what Mrs Thompson really wanted to do and to make her understand the effect on her of giving away Valley View. He felt uncomfortable with the situation. He needed clear instructions, which he was not getting. He wanted to see Mrs Thompson on her own, and could not say what would have happened if he had done so. As far as he was concerned there were two needs: i) Mrs Thompson’s need for money to buy a property if that is what she wanted to do and ii) Mrs Foy’s need to extract money to honour her contract in Spain.[50]The letter was ready for collection on 11 January 2007. Mrs Thompson collected it herself on a shopping trip on that day. On the following day, 12 January, Mrs Thompson went to see Mr Bilton for the last time. She was again accompanied by Mr and Mrs Foy. Her diary entry (erroneously recorded on 11 January) reads:
“To solicitor Bilton & Hammond. Told him I did not want him to do any more for me. Paid him. Went to another solicitor.”
[51]Again Mr Bilton made a careful note of this meeting. He had been concerned about Mrs Thompson’s capacity and had arranged for a colleague, Sarah Allen who dealt a lot with elderly clients, to be present at the meeting. She made a note too. Mr Bilton’s note recorded the following, which I accept as an accurate account of the meeting. “When I went downstairs Mrs Thompson was there with her daughter … and son in law. They insisted that we [speak] together and said that Mrs Thompson didn’t wish to see me alone at all. The meeting in general was very cordial and well mannered we were told that Mrs Thompson wasn’t happy that the fact that we were continually questioning the transaction and that she didn’t wish to proceed. Mrs Thompson had a copy of the letter of the 11th January with her. I read it over as they said there was a page missing. Mrs Thompson felt that I was quite an honest person personally but didn’t know the family sufficient and should be questioning the position with her daughter. I said immediately that I would accept the situation if those were her instructions. Mrs Thompson did quite vocally express her opinions and it was the first time I had actually see her express opinions quite strongly herself. They asked us to work out the bill and as to when they could have the deeds. … Julie and her husband still seemed to do most of the talking. Mrs Thompson does seem to have capacity but finds making [decisions] very difficult. She still said it was difficult for her to make decisions that she constantly worries about things and that it is still clear as there is no fixed idea as to where Mrs Thompson will live. Julie was saying that they are looking at her spending 6 months with one of them and six months with the other. … Mrs T got quite cross with me at one stage and criticised me for not letting her do what she wanted. I congratulated her because for the [first] time she was coming out of herself and was giving clear instructions and opinions. I told her that that was what I had been looking for. … My personal opinion is that Julie and her Husband are trying to look after Mrs Thompson in what they believe are her best interests… Mrs Thompson however is still having difficulty in making decisions and in understanding advice. My opinion is that if I had seen her alone I might not have been happy that she necessarily understood what she actually needed to do.[52]In his oral evidence Mr Bilton amplified his note that he “read over” the letter of 11 January. He explained that he read it aloud to the meeting. He read it verbatim and in full. That in itself must have taken at least 15 minutes. In her oral evidence Mrs Thompson confirmed that she became angry during the meeting. She said to Mr Bilton:
“I’ve had enough, I’m up to here with it. I want it settled one way or the other. Surely I can say what I want with my own money.”
[53]She added that she was “bloody sick of all this worrying”.[54]Ms Allen also made a note of the meeting. She recorded:
“Basically, it became apparent from the very beginning of the meeting that Mrs Thompson was finding things extremely difficult to deal with. Mrs Thompson had never dealt with matters herself as everything had been dealt with by her late husband. It was also apparent that Mrs Thompson was incredibly grief stricken by the death of her husband despite the fact that this was some 15 months earlier. She was extremely distraught. It was clear that Mrs Thompson was not wanting to be bothered with issues and she felt that she should be able to do what she wanted without receiving any advice from [Mr Bilton]. [Mr Bilton] explained to Mrs Thompson that of course she was the client and it was extremely important that he had advised her fully in connection with her proposals and more importantly that she fully understood all of the implications of such proposals. Mrs Thompson said that she felt [Mr Bilton] was questioning her family relations and he informed her that by no means had any doubts her relationship with her children and nor was he suggesting that she should not do as she wished. [Mr Bilton] made it extremely clear to Mrs Thompson that in actual fact all he was trying to do was to ensure that they looked at all of the options available to her and that having received comprehensive advice, Mrs Thompson made the correct decision in connection with her property. Mrs Thompson stated that she had enough and she no longer wanted us to act in relation to this matter. [Mr Bilton] confirmed that of course this was entirely her decision and that he was more than happy to [release] the title deeds to them in order that they may make alternative arrangements. It did however become clear that in actual fact they are unsure as to what arrangements they do want to make and hence obtaining any form of instructions from them was extremely difficult. … It was also apparent that the instructions of the client had changed from one moment to the next and basically she had got herself into a situation whereby she did not know what she wanted to do. [Mr Bilton] clearly explained to the client the reason for his advice in that there are certain guidelines to which he must adhere if she was intending to make a significant gift to her daughter. Mrs Thompson had not wanted for example to attend [Mr Bilton] without her daughter present even though it was explained to her that this was merely a formality in order to comply with the guidelines in connection with gifts of property. It was extremely clear that Mrs Thompson was grief stricken, struggling to comprehend with the situation and give clear instructions and furthermore listen to any advice that was being given to her, as she did not want to be bothered with it all. Under the circumstances an agreement was reached that the most sensible option was to leave things as they were for the time being and for our files to be closed.”
[55]Mrs Thompson’s oral evidence was that it was Mr and Mrs Foy who told her to withdraw Mr Bilton’s instructions. Her diary entry does not bear this out. Nor do the attendance notes of Mr Bilton and Ms Allen. They convey the strong impression that the decision to disinstruct Mr Bilton was a spur of the moment decision by Mrs Thompson in the course of the meeting. Mr and Mrs Foy are not recorded as having said anything on that topic. If they had, then bearing in mind the concerns shared and expressed by Mr Bilton and Ms Allen, they would surely have noted that. On the contrary, both their impressions were that for the first time, perhaps, Mrs Thompson was expressing her own views, and doing so forcefully. In his oral evidence Mr Bilton described this as the clearest instruction that Mrs Thompson had given him. Having seen Mrs Thompson give evidence, I can well understand that it is probable that she did make a decision on the spur of the moment. Nor is it probable that Mr and Mrs Foy had persuaded Mrs Thompson to disinstruct Mr Bilton before the meeting. If they had, there would have been no need for a meeting at all; let alone a meeting in which Mr Bilton’s detailed letter of 11 January was read aloud in full to the assembled company before telling him that he was sacked. I find, therefore, that the decision to disinstruct Mr Bilton was made by Mrs Thompson alone; and that she made that decision because she was frustrated by the delay, perceiving that she was being prevented from doing what she wanted to do.[56]In the course of the same meeting the question of the Scottish Widows policy was also discussed. A letter had come in that morning chasing the repayment. Mr Bilton was told that the clients were dealing with the matter themselves and had referred it to the insurance ombudsman. He confirmed that in a letter to Scottish Widows on 15 January 2007.[57]At the end of the meeting Mr Bilton gave them a deed packet and also another copy of the letter of 11 January. Three quarters of an hour later Mrs Foy returned. She had been to Elliot Mather but they would not release the abstract of title to her. Mr Bilton telephoned Elliot Mather and told them that they could release the abstract. Mrs Foy questioned why Mr Bilton wanted to see her mother with Mrs Swanborough. Mr Bilton does not seem to have explained, but recorded his own thoughts in his attendance note. He also recorded:
“Mrs Foy told me that their intention now was to take the deeds away and put them in the safe and tell mother not to worry about them for the moment and not to do anything.”
[58]Following the meeting Mr Bilton and Ms Allen discussed the matter between themselves. They made a file note which recorded that Mrs Thompson had “come out fighting” and that she was angry that Mr Bilton would not let her do what she wanted. They also recorded:
“As far as we could say we thought Mrs Thompson had capacity but we did not believe that Mrs Thompson actually understood sufficiently the consequences of the advice that was being given.”

New instructions

[59]Having left Mr Bilton Mrs Thompson and Mr and Mrs Foy walked down the road and found another firm of solicitors. They had with them the title deeds to Valley View and at least one copy of Mr Bilton’s long letter of 11 January. The “other solicitor” was Mr Peter King. He was not in fact a solicitor but a clerk employed by Banner Jones, with long experience of probate and conveyancing. Mrs Thompson’s clear evidence was that she never saw Mr King alone. She maintained that position adamantly in cross-examination. Mrs Foy, however, said in her witness statement that when they arrived Mrs Thompson went alone with Mr King and she and her husband sat in reception until they, too were asked to go in. Mr King’s witness statement, prepared without access to his file, did not mention any separate meeting with Mrs Thompson and indeed suggested that he had seen all three of them together. But he had no real recollection of what happened. However, he made an attendance note within a few days of that meeting. That note says:
“Attending Mrs Thompson showing me the title deeds Re: her husband’s estate discussing letters from Bilton Hammond without daughter and she confirmed that a Deed of Family of Arrangement and Transfer to daughter for inheritance tax purposes, must be prepared and arranging to do so. Then attending Mrs Thompson her daughter and son in law and discussing arrangements.”
[60]If that attendance note is taken at face value, it shows that Mr King saw Mrs Thompson on her own. It also shows that he discussed Mr Bilton’s letter with her, also alone. But even when he tried to reconstruct what he thought would have happened, Mr King was only able to say that he thought they would have discussed the inheritance tax problems and the value of the house. He did not give any evidence about having explored with Mrs Thompson whether she understood the consequences of the proposed paperwork. He did, however, say that he understood that the property was worth £400,000 and that £200,000 worth already belonged to Mrs Foy but had not been transferred legally.[61]On 15 January 2007 Mr Bilton sent Mrs Thompson yet another copy (the third) of his letter of 11 January. Mrs Thompson undoubtedly received that copy, because she brought it back to Mr Bilton when she came to see him later in the year.[62]On 18 January Mrs Thompson recorded in her diary that she went to “solicitor Peter King”. Again she said that she did not see Mr King on her own. Again Mr King had no real recollection of that meeting, but again he made an attendance note within a few days of that meeting. The note says:
“Attending Mrs Thompson and Mrs Foy see Mrs Thompson on her own again going through advice received from Bilton Hammond and she insisted that the papers be signed as Julie would sort everything out.”
[63]Again, if this note is taken at face value Mr King saw Mrs Thompson on her own for a second time. It also shows that he went through Mr Bilton’s advice for a second time. The use of the phrase “Mrs Thompson insisted” suggests that she was warned of the dangers of going ahead, but decided to do so despite the warning. But the phrase “Julie would sort everything out” suggests that Mrs Thompson was relying on Mrs Foy to do something after the paperwork had gone through. Again Mr King tried to reconstruct what he thought must have happened. He said that Mrs Thompson was frustrated at the delay; and that he would have asked her whether she was sure that she wanted to go through with it. Mr King also said that he was unaware that there was to be a mortgage; and that he thought that Mrs Thompson would live with Mr and Mrs Foy. But he also said that he was aware that a sum of money might be paid to Mrs Thompson after the gift had gone through. His impression was that Mrs Thompson was in full control of what she wanted to do.[64]In the course of the meeting with Mr King Mrs Thompson signed the deed of family arrangement by which Mr Thompson’s will was altered so that £200,000 went to Mrs Foy. She also signed the deed of gift of Valley View to Mrs Foy. The transaction was structured in that way in order to take advantage of Mr Thompson’s nil rate band for inheritance tax. Thus no inheritance tax would be payable either at the time or in the future even if Mrs Thompson died within seven years, so long as the nil rate band remained at its current level. Mrs Foy was now in a position to complete the mortgage in favour of TMB and to draw down the loan. Mrs Thompson became upset during the meeting. Her evidence was that there were two reasons for this. The first was that she “still had a niggling feeling that things could go wrong and that I could end up with nothing even though I had repeated reassurances from my daughter Julie”. The second reason was that she was very upset that she was signing over everything that she and her husband had worked for all their married life.

Waiting for the mortgage

[65]Between January and April 2007 Mrs Thompson was waiting for the mortgage to come through, in the expectation that once the money had been paid she would receive her £200,000. During this period she continued to look at bungalows in the area.[66]On 19 February Mrs Thompson recorded in her diary that she did some packing of her pictures and ornaments. On 21 February she recorded that she packed some more pictures and ornaments. On 12 March she cancelled the insurance of the house. She agreed in her oral evidence that she began packing in preparation for leaving Valley View and that she wanted to leave; and that she cancelled the insurance because, as a result of the deed of gift, the house was no longer hers.[67]On 28 February 2007 Ms Booker of Elliot Mather wrote to TMB to inform them that “our client is no longer purchasing the property for £500,000 as stated in the offer as a gift of the property to our client took place in January 2007.” TMB reverted by telephone on 2 March. They said that they would now have to treat the matter as a remortgage and they wanted to know the reason behind the amount of borrowing. On 8 March TMB said that the valuation was out of date, but otherwise they were content to proceed. Ms Booker reported this to Mrs Foy on the same day. TMB made a revised mortgage offer on 19 March. It was still described as a “Buy to Let” mortgage.[68]At some time around 27 March 2007 Ms Booker recorded a telephone call with Mrs Foy. Her attendance note reads:
“Client was asked where her mother has gone? Client confirmed that her mother was no longer residing at the property as she had moved to live with Mrs Foy’s sister (Mrs Thompsons other daughter). Informed SAG. On this basis typing up the mortgage terms and conditions …”
[69]It is common ground that Mrs Thompson had not gone to live with Mrs Swanborough at that time; so the information that Ms Booker recorded was false. Mrs Foy denied having given Ms Booker this information. But once again her evidence is directly contradicted by a contemporaneous attendance note. I reject Mrs Foy’s evidence. On 27 March Mrs Foy provided Elliot Mather with her bank details. Completion of the mortgage was scheduled for 5 April. Completion duly took place on that day and the money was transferred to Mrs Foy’s bank account. The charge was registered at HM Land Registry on 10 April 2007 pursuant to an application also dated 5 April.

The mortgage comes through

[70]On 5 April itself, when the money came through, Mr and Mrs Foy came to see Mrs Thompson. They told her that they could not pay her the £200,000 because they said that they had been advised by a solicitor that if Mrs Thompson were to die within seven years, they would have to pay inheritance tax on their part of the money. There is no corroboration of their evidence that they had been given this advice by a solicitor, although it is true that Mr Bilton had advised on the possible implications for inheritance tax if Mrs Thompson were to die within seven years. But having regard to the way in which the transaction was finally structured any such advice, if given, would have been wrong. I do not accept that they had been given this advice. They offered her £60,000. The remainder would be put into a high interest account in Mrs Foy’s name and if Mrs Thompson lived for seven years they would then give it to her. Mrs Thompson was understandably very upset. However, she said nothing to Mrs Swanborough that day.[71]The last night that Mrs Thompson slept at Valley View was 5 April 2007. Mr and Mrs Swanborough went on holiday over the Easter weekend, which fell between Friday 6 April and Monday 9 April. Mrs Thompson “house sat” for them so she spent the weekend away from Valley View. When Mr and Mrs Swanborough arrived home on Easter Sunday, 8 April, Mrs Thompson burst into tears and told them what Mr and Mrs Foy had told her on the previous Friday. Mrs Swanborough telephoned Mrs Foy to try to find out what was going on, but Mrs Foy would not tell her. Mrs Thompson stayed over on Monday night, as Mrs Swanborough was worried about her, and was still with them on 10 April. By 9 April Mrs Thompson had decided that she would not go back to live at Valley View. On that day she went to Valley View to pick up some of her belongings. She said in her witness statement:
“Diane and Dawn (a friend of Diane’s) came over with me to the houses to collect some of my belongings. I felt really sick going over and I did not want to go there. I could not stand much more of the pressure. When we got there we packed a lot of my things from the bedroom and anything that was valuable. I emptied my safe with the little money that I had in the house. Nobody was at the property.”
[72]In the course of her cross-examination the following exchange took place:
“Q: You had to get away on 8 April – that was when you moved out of the Property? A. Yes and Julie knew I’d moved out. Q: You knew that you weren’t going back? A: Yes. Q: You have not been back to the Property, other than to collect things, since 8 April 2007? A: Yes.”
[73]She added in re-examination that by 9 April she knew she was not going to Spain and that she could not stop in Valley View. Mr and Mrs Foy had in fact left for Spain on 9 April, accompanied by some of their children. Their two elder children were left behind, being looked after by Mr Foy’s brother.[74]Mr Swanborough said in evidence that the locks had been changed at Valley View on or before Tuesday 10 April with the result that Mrs Thompson could not get in. But this cannot be correct, since Mrs Thompson did go back to collect belongings after that date.[75]On 14 April Mrs Thompson went to Valley View to collect some of her possessions. She was accompanied by Mrs Swanborough and a friend, each with a car. They filled the two cars. In the afternoon they came back to collect another batch. What they took on that day included things such as bedding. On 16 April Mrs Thompson spoke to Mrs Foy and told her that she was not coming back to Valley View as it was too stressful. She continued to live with Mr and Mrs Swanborough. In fact Mrs Thompson never went back to Valley View except to pick up some more of her belongings. She collected some on 18 April. This time Mr and Mrs Foy said that they would pay £60,000 but only in instalments, because they said that tax would be paid if Mrs Thompson took it in a lump sum.[76]On 19 April Mrs Thompson, accompanied by Mr and Mrs Swanborough, went to see Mr King. They said that Mrs Thompson had been acting under duress when the gift was made. Mr King was not very helpful, but he did provide them with copy documents. Mrs Foy says that on the same day her mother came to Valley View. She took some flat pack boxes and bin liners out of the boot of her car and began to pack bedding. Mrs Foy says that her mother told her that Diane was taking charge of everything; and said that she was not coming to live in Spain. Mrs Foy says that this was the first time that her mother had said that she was not coming to live in Spain. Mrs Foy says that she went back to her part of Valley View and fetched £30,000 in cash that she had withdrawn from the bank in order to repay her mother what she owed her. Her bank records confirm that £31,500 was withdrawn in cash in two instalments at about noon on 19 April. According to Mrs Foy the sum of £30,000 was made up of the deposit of £20,000 paid on the Spanish property and a further £10,000 representing rather more than the amount that had been paid off on Mrs Foy’s credit cards. Mrs Foy says that her mother counted out the money and put it into a carrier bag. It was then that for the first time Mrs Thompson asked for £200,000. That, said Mrs Foy, was “a bolt from the blue”. Mr Foy said:
“what about the house in Spain you said you liked?”
Mrs Thompson replied that she could not live in Spain; it would be no good for her. Mr Foy then said that “if we don’t complete the sale we will lose the £20,000 deposit”. Mrs Foy said “Don’t be silly or hasty, mum, we have all worked together for the same goal. You can’t go back on your word now”; but Mrs Thompson said she didn’t care and that Diane had said she should get £200,000 and that is what she wanted. Then she left. Mrs Thompson did not mention any of this in her witness statement; and none of it was put to her in cross-examination. However, she denies that Mrs Foy repaid her the £20,000 that she had lent the Foys to pay the deposit; and she has never asked for repayment of the sum that she used to pay off Mrs Foy’s credit cards. I reject Mrs Foy’s evidence that this was the first time that she had been made aware of Mrs Thompson’s wish to have £200,000. It is inconsistent with the fact that for nearly three months both Elliot Mather and Bilton Hammond had been proceeding on the basis of a sale of Valley View to Mrs Foy for £200,000 which would have put £200,000 in cash in Mrs Thompson’s hands. It is inconsistent with Mr Bilton’s note of the meeting of 5 January in which he recorded that £200,000 could be made available for Mrs Thompson to buy a bungalow. It is inconsistent with Mr Bilton’s letter of 11 January in which he set out his understanding of the “original plan”. I also reject Mrs Foy’s evidence that 19 April was the first time that she became aware that Mrs Thompson might not go with them to Spain after all. That, too, is inconsistent with Mr Bilton’s note of the meeting of 5 January, at which it is clear that one possibility (to put it no higher) was that Mrs Thompson might choose to buy a bungalow. If Mr Foy said or implied that the £20,000 deposit was at risk, that would have been untrue. There was quite enough money both to complete the purchase of the house in Spain and also to pay Mrs Thompson £200,000.[77]20 April 2007 was an eventful day. It began with a telephone call from Mrs Foy to Mrs Thompson in which Mrs Foy said that her solicitor had been telephoned by Mr King who had said that she (Mrs Thompson) felt that she had made the gift while under duress. Next followed a call from Mr Foy who was abusive to Mrs Thompson on the telephone and told her that she was upsetting his wife. Later that evening an incident took place outside Mr and Mrs Swanborough’s home. It was witnessed by Mr Bellwood, among others. Mrs Foy says that, accompanied by her son Steven, she went to Mr and Mrs Swanborough’s house to see her mother. She says that when she arrived the door was opened by a man she did not know (it was in fact Mr Bellwood). She said that she had come to see her mother. He said “she doesn’t want to see you”. She shouted for her mother to come to talk to her. The door was closed and then it was opened again and Mr Swanborough was in the doorway swinging a baseball bat at her. Mr Swanborough swore at her; but was restrained by Mr Bellwood and Mrs Swanborough. The door opened for a third time and Mrs Thompson appeared with Mrs Swanborough. Mrs Thompson was shaking and hysterical. Mrs Foy challenged Mrs Swanborough about the drugs that Mrs Thompson was taking; but she replied “just give my mum £200,000 and leave”. She kept repeating this. Mrs Foy thought that it would make matters worse if she stayed so she said “Oh, whatever” and left. Mr and Mrs Swanborough deny that any threat was made against Mrs Foy; and Mr Swanborough says that his foot was in plaster as a result of an accident he had sustained, with the result that he was physically incapable of going to the door brandishing a baseball bat. Mr Swanborough’s evidence that his foot was in plaster is corroborated by Mrs Thompson’s diary entry for 17 April 2007 which records that Mr Swanborough broke a bone in his foot falling off a stool. Mr Bellwood is a disinterested witness, and he also made some contemporaneous notes of what he regarded as an unusual conversation. His account was unshaken in cross-examination and I accept it. What he said was this. He opened the door to Mrs Foy who asked to speak to her mother. He told Mrs Foy that her mother did not wish to speak to her, but Mrs Foy insisted. Mrs Thompson came to the door. She was physically shaking and gasping for breath. Mr Bellwood asked her if she wanted him to stay with her and she said she did. Mrs Thompson asked Mrs Foy to pay her what she owed. Mr Bellwood remembered clearly that the sum in question was £200,000. Mrs Foy said that she would give Mrs Thompson the money when she (Mrs Thompson) was in a fit state, and referred to the fact that Mrs Thompson was taking anti-depressants. Mrs Swanborough then arrived. She asked Mrs Foy when she was going to pay her mother and why there was a delay. Mrs Foy said that if they found a house they would buy Mrs Thompson a house to which Mrs Swanborough replied: why not just give her the money? Mrs Foy answered that if they gave her the money and she died within six to seven years they would be liable for inheritance tax. A figure of £20,000 was then mentioned, which puzzled Mr Bellwood as it was not clear to him whether this was in addition to the £200,000 that had been mentioned. At the end of the conversation Mrs Foy said that if you come round to the house on Monday we’ll sort out the money. Mrs Thompson agreed to go round to the house on the Monday. Mr Bellwood had the clear impression that things had now been sorted out. Mr Swanborough had been nowhere near the incident. He had stayed inside in the passageway. I reject Mrs Foy’s evidence where it conflicts with Mr Bellwood’s.[78]On 23 April 2007 (which was the following Monday) Mrs Thompson, accompanied by her sister Mrs Parsons and Mrs Swanborough, went to Valley View. Mrs Parsons recalled that Mrs Thompson asked Mrs Foy whether she had got her money. Mrs Foy replied that she had not, but that she would buy her mother a house to live in but that it would remain hers. Mr Foy kept on about inheritance tax, and Mrs Parsons recalled that Mrs Foy told him to shut up. Mrs Thompson repeated that she wanted the £200,000 that she had been promised. Mr Foy said that his wife was in debt to the tune of half a million and when Mrs Thompson replied that that was nothing to do with her Mr Foy started calling her names. Mrs Parsons made a note of this conversation which she annexed to her witness statement. Mrs Thompson gave evidence to the same effect. Mrs Foy also gave evidence about the meeting that day. She agreed that Mrs Thompson and Mrs Parsons came to Valley View. She said that Mrs Thompson asked her for £200,000 and Mrs Foy replied “No, I cannot give you £200,000 just like that”. Mrs Thompson said that she wanted a house of her own, and Mrs Foy asked what about the house in Spain? Mr Foy asked Mrs Thompson if she knew what she was doing, and Mrs Thompson said that she did not know any more. Mr Foy went on to say that if they did not complete the sale in Spain they would lose the £20,000 deposit and that if Mrs Thompson now wanted £200,000 in cash as well it was no longer the agreed plan. He said that his wife was in debt for £400,000 and she had the problem of paying it back. Mrs Thompson said “It’s her pigeon now” and that if she couldn’t pay she would have to go bankrupt. At that point Mr Foy called Mrs Thompson a silly old fool; and Mrs Foy accused her sister of stealing money from Mrs Thompson. Mrs Thompson and Mrs Parsons then left. There is a lot of common ground about this meeting. It is clear that Mrs Thompson asked for £200,000 and that Mrs Foy refused. It is also clear that Mr Foy referred to the extent of Mrs Foy’s debts and that he was rude to Mrs Thompson. As I have already said, Mr and Mrs Foy had enough surplus cash to pay Mrs Thompson £200,000 and still complete the purchase in Spain, so that Mr Foy’s implied statement that the deposit of £20,000 was at risk was untrue. It is true that Mrs Foy was in debt to the tune of £400,000. But that was always the plan, and the rents from Valley View were intended to cover the borrowings. Mrs Thompson was quite right to say that it was nothing to do with her.[79]On 29 April 2007 Mrs Foy and her family left for Spain.[80]On 21 May Mr Bellwood went to Valley View with Mrs Thompson and two friends. He was driving a Land Rover towing a trailer. They filled the trailer with more of Mrs Thompson’s possessions, including bedroom furniture and a washing machine.[81]On 24 May Mrs Thompson, accompanied by her sister Mrs Parsons and Mrs Swanborough, went to see Mr Bilton. Mr Bilton read them his letter of 11 January.

The Spanish purchase

[82]On 30 May 2007 a contract for the sale for the Spanish property (“Escritura de Compraventa”) was drawn up. The parties to the contract were Mr and Mrs Ward, as sellers, and Mr and Mrs Foy, as buyers. The contract recorded that the parties were assisted by a translator who translated the contract into English. The contract recorded that Mr and Mrs Foy were jointly buying the property for €150,000, inclusive of taxes. The contract concluded by restating that it had been translated for the parties benefit. Mr and Mrs Foy signed it. The purchase price was transmitted from Mrs Foy’s Spanish bank account in three tranches: one to pay of the Wards’ mortgage; one to pay the taxes, and the third to Mr and Mrs Ward themselves. The total came to €150,000. The deposit of £20,000 seems to have vanished without trace. The only credible explanation that Mrs Foy gave was that the £20,000 was “black money” paid to secure the property. By “black money” I understood her to mean that this was a sum of money that would not be declared to the Spanish tax authorities. Mrs Foy said that although she signed the contract, she did not realise why she was signing it. The money for the purchase was coming from her bank account, and she thought that she was signing it for that reason. She said that the translator had failed to translate the contract properly. However, the contract itself records that it was translated by the translator. It is also clear from the contract that Mr and Mrs Foy signed it in the same capacity, whatever that was. This explanation also sits ill with Mrs Foy’s evidence that she had learned Spanish in preparation for the move to Spain. This was yet another instance of Mrs Foy’s evidence being contradicted by contemporaneous documents. I reject Mrs Foy’s evidence. As I have said, the Spanish property includes a separate annexe or bungalow which was intended to accommodate Mrs Thompson. It is still available.[83]At the exchange rates then prevailing €150,000 was approximately equal to £100,000. Accordingly as at the end of May 2007 Mrs Foy would have had control of a sum in the region of £300,000 remaining out of the mortgage advance. Even allowing for some €50,000 or thereabouts to be spent on improving and refurbishing the Spanish property it was well within her capacity to give Mrs Thompson the £200,000 that she had been promised. But Mrs Foy did not give her a penny. In the course of her oral evidence she gave a number of explanations for her behaviour, each one less credible than the last. Her explanations were: i) Half the value of Valley View already belonged to Mr and Mrs Foy; and Mrs Foy gave the remainder of the cash to Mr Foy as a gift in recognition of his many improvements to the property. This explanation makes no sense. First, the very fact that half the value of Valley View was attributed to Mr and Mrs Foy was itself the recognition of Mr and Mrs Foy’s improvements to the property. To give him the remainder of the cash would have been double counting. Second, however much Mr Foy had improved the property, the fact remains that there was still the original dwelling on the land and the land itself which unquestionably belonged to Mrs Thompson. ii) The money raised on mortgage was to be used to buy a property in Spain for the whole family to live in. Mr Foy was to be repaid for his improvements to Valley View. He was due about £200,000. This explanation suffers from the same defect as the first, namely that Mr and Mrs Foy were being paid twice over for the improvements. It also fails to account for all the cash. £400,000 was raised on mortgage. £100,000 was spent on the Spanish property. Even if Mr Foy was repaid £200,000 for the improvements to Valley View, that still leaves £100,000. iii) She gave the money to her husband but he would not give it back. This explanation was untrue, because the money was in a joint account to which Mrs Foy had access. Mrs Foy then said that her husband “would not let” her draw on the joint account; but why he had this power over her was never explained. iv) She did not give Mrs Thompson the money because she did not think that it was Mrs Thompson’s own decision not to go to Spain. She “continued the journey I had decided to do” in the hope that her mother would come and join her. This explanation makes little sense. First, Mrs Thompson has been clear since April 2007 that she does not want to go to Spain and that she wants her £200,000. Second, as I have pointed out, even on Mrs Foy’s best case there was still £100,000 in surplus cash. v) She did not pay Mrs Thompson the £200,000 because she was concerned about her mother’s health. She was waiting for her mother to return “to her old self”. This explanation is not true either. If it were, Mrs Foy would have put the £200,000 aside to wait for her mother’s return to health. But she did not.[84]Title to the Spanish property is now held by Mr Foy alone. Mrs Foy’s first explanation for this was that she had been included as a contracting buyer by mistake and that she should not have been registered as one of the owners of the property. She said that her original intention was that the property would be owned by Mr Foy alone. That explanation directly contradicts her explanation (which I have rejected) that the explanation for the missing cash was that it was given to Mr Foy in recognition of his improvements to Valley View. If he had been paid in cash for the improvements, why give him the Spanish property as well? Next she said that the Spanish property was “family property” so that it was irrelevant whose name was on the title deeds. But that explanation does not square with the fact that the name on the title was in fact changed. If the name on the title was irrelevant, why change it? Next she said that it was intended that the property should be owned by Mr Foy so that Mrs Foy could deal with the legalities in England. By “the legalities” I understood Mrs Foy to be referring to this litigation. But that explanation makes no sense, because ownership of property in Spain could have no impact on Mrs Foy’s ability to conduct litigation in England. Next Mrs Foy said that her husband was in the process of setting himself up in Spain as a fishing guide, and that he needed a licence to do with water rights. The Spanish authorities would only grant the requisite licence to property owners, and since she did not wish to be involved in her husband’s business she gave up her half interest in the Spanish property. This explanation for giving up Mrs Foy’s only valuable asset is incredible. The legal documents also record that Mr Foy paid Mrs Foy €75,000 for her share. Mrs Foy gave no evidence in support of this.[85]It is impossible to avoid the conclusion that Mr and Mrs Foy have attempted to conceal ownership of the Spanish property in order to put it beyond the reach of Mrs Foy’s creditors.[86]At some time during the summer of 2007 Mrs Thompson wrote to Mrs Foy. Having said that she had paid certain bills, her letter continued:
“I am very upset with what is going on. You know you made me a promise you would not let me down, it was all to do with trust. Also you said you had promised your Dad you would always look after me and take care of me. He would not believe what you are putting me through. You have taken everything your Dad and me have worked for all these years. I hope you will give me the £200,000 you promised, and also the £20,000 you borrowed from me. I can’t understand why? I am full of nerves and you have left me penniless and homeless. What have I done to deserve being treated like this. I thought I had always been a good mother to you all these years.”
I thought I had always been a good mother to you all these years.”[87]Because of this dispute Valley View has not been let out. In consequence the mortgage has not been paid and arrears have mounted. TMB have now repossessed the property and have also obtained a money judgment against Mrs Foy.

The issues

[88]I am now in a position to deal more closely with the issues that arise. Taking them chronologically, they are: i) Was Mrs Foy entitled to any beneficial interest in Valley View as a result of the improvements that she and her husband carried out? ii) If so, what is the extent of that beneficial interest? iii) Is Mrs Thompson entitled to set aside(a) the deed of family arrangement and(b) the deed of gift to Mrs Foy on the ground of undue influence? iv) If Mrs Thompson is entitled to set aside either or both these transactions, is her right to set aside either or both these transactions binding on TMB? v) If (a) Mrs Thompson is entitled to set aside either or both these transactions (b) her right to do so binds TMB, but(c) Mrs Foy is entitled to a beneficial interest in Valley View, is TMB nevertheless entitled to a charge over Mrs Foy’s beneficial interest in Valley View? vi) Did Mrs Foy repay Mrs Thompson the sum of £20,000 that Mrs Thompson had lent her to pay for the deposit on the Spanish property?[89]I should emphasise that Mrs Thompson does not put her case on the basis that Mrs Foy held the money raised on the mortgage on constructive trust to pay £200,000 to Mrs Thompson. Nor does she allege that she is entitled to trace her entitlement to £200,000 into the Spanish property. Nor does she allege that Mrs Foy made a contractual promise to pay Mrs Thompson £200,000 out of the monies to be raised on mortgage. These ways of putting the case were expressly disclaimed. Her case is based on undue influence alone. Especially since Mrs Foy is a litigant in person I can only deal with the case on the basis on which it is put.

Mrs Foy’s interest in Valley View

[90]Mrs Foy’s claim to a beneficial interest in Valley View is based on proprietary estoppel. The leading authority on proprietary estoppel in the domestic context is the decision of the House of Lords in Thorner v. Majors [2009] 1 WLR 776. As Lord Walker of Gestingthorpe explained (§ 29) the doctrine is based on three elements: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance. The principal issue in that case was the quality of the representation or assurance necessary to satisfy the first element. Lord Walker pointed out (§ 54) that although promissory estoppel requires a clear and unequivocal representation, proprietary estoppel does not. Standing by in silence will suffice where the detriment relied on is expenditure on another person’s land (§ 55). Lord Walker summarised his view by saying (§ 56):
“I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context.”
[91]Lord Rodger of Earlsferry, while agreeing with Lord Walker, added (§ 26) that the relevant assurance must be “clear enough” to the representee, even though it would not have been clear enough to an outsider.[92]In the present case no witness as been able to point to a specific conversation or to specific words spoken or written by Mr and Mrs Thompson. However, it is plain, in my judgment, that as a result of discussions between Mr and Mrs Thompson on the one hand, and Mr and Mrs Foy on the other, that there was a mutual understanding that if Mr and Mrs Foy built an extension, it would belong to Mrs Foy. This understanding was confirmed by Mrs Swanborough and corroborated by Mrs Thompson’s diary entries. The understanding can only have arisen as a result of something said by Mr and Mrs Thompson. The evidence is, in my judgment, strong enough for me to infer that the understanding arose because Mr and Mrs Thompson told Mr and Mrs Foy that if they built the extension, it would belong to Mrs Foy. Mr Din said that if there was any such understanding, it came into existence after the extension was built and thus could not have been relied on. I reject that submission. First, the understanding is reflected in Mr and Mrs Thompson’s wills, executed months before construction began. Second, it is reflected in Mrs Thompson’s diary entry recording the beginning of construction and her diary entry recording the date on which Mrs Foy moved in.[93]As I have said I do not accept the full extent of the agreement alleged by Mrs Foy, namely that in addition to the extension and the site of the extension itself a large area of the property was to belong to her. In my judgment the agreement was restricted to the extension and its site alone. The evidence is uncontradicted that Mr and Mrs Foy built the extension at their own expense. This is the third element. But the direct evidence of reliance on the agreement (which would comprise the second element) is, to say the least, thin. However, one must not blind oneself to reality. There had been an agreement that if Mr and Mrs Foy built the extension it would belong to Mrs Foy and they did in fact build it. In those circumstances it is a natural inference (and I infer) that the fact that they built it was causally connected to the agreement. In other words, they relied on it; and I so hold. The point can be considered from a different angle. In Wayling v Jones (1995) 69 P & CR 170 Balcombe LJ said:
“Once it has been established that promises were made, and that there has been conduct by the plaintiff of such a nature that inducement may be inferred then the burden of proof shifts to the defendants to establish that he did not rely on the promises.”
[94]Mrs Thompson did not discharge this burden. Thus, in my judgment the three elements of proprietary estoppel are made out in relation to the extension.[95]Separate claims are made based on the subsequent construction of the garage/workshop and the store. There is no evidence of any separate agreement about these buildings. The furthest that the evidence goes is that Mr Foy asked Mr Thompson for permission and was given it. Mr Wood says that in relation to these buildings it is a case of estoppel by acquiescence. Having allowed Mr and Mrs Foy to build the extension on the basis that if they built it Mrs Foy would own it, it was incumbent on Mr and Mrs Thompson to speak out if the arrangement was to be changed as regards later buildings. There are, in my judgment, a number of difficulties, mostly evidential, with this submission. The first is that there is no evidence from either Mr or Mrs Foy that they believed that the arrangement as regards the extension applied to the later improvements. On the contrary Mrs Foy’s case (which I have rejected) is that the land was given to them in return for building the extension; not in return for the later improvements. The second is that there is no evidence of reliance. While I am prepared to infer reliance on the agreement in relation to the extension, that inference is based on the combination of the agreement and the expenditure. In relation to the other outbuildings, there was no such agreement. The third is that at least in relation to the garage/workshop (unlike the extension) there was an existing building which on any view belonged to Mr Thompson. Thus Mr Foy was not constructing something wholly new: he was improving and replacing something that was already there. In those circumstances, there is no reason to suppose that Mr Thompson was relinquishing all his rights in the garage/workshop and no reason to suppose that Mr and Mrs Foy thought he was. Fourth, Mr Wood’s argument proves too much. In addition to constructing buildings, Mr Foy made other improvements to Valley View, such as the enlargement of the drive. But the drive was shared, and it cannot reasonably have been supposed that by improving the drive Mrs Foy was to acquire ownership of it. Accordingly, I do not accept that Mrs Foy were intended to acquire or thought that they had acquired ownership of anything other than the extension. However, it is right to say that the works carried out by Mr Foy did significantly increase the value of Valley View, and this is something which I must bear in mind when I come to consider the issues relating to undue influence.[96]Once the three elements of proprietary estoppel are made out, the court must devise a remedy to give effect to the equity. The remedy is discretionary and is guided by the principle that the court will do the minimum necessary to do justice. Mr Din argued that the highest that Mrs Foy could put her case was that she was entitled to an indefinite licence to live in the property. In support of that submission he relied heavily on Inwards v Baker [1965] 2 QB 29. Since the fashioning of a remedy to give effect to an equity established by proprietary estoppel is very fact specific, it is necessary to look at the case with some care. Old Mr. Baker in 1931 was the owner of a little over six acres of land at Dunsmore in Buckinghamshire. His son, Jack Baker, was living in those parts and was thinking of erecting a bungalow. He had his eye on a piece of land but the price was rather too much for him. So the father said to him:
"Why not put the bungalow on my land and make the bungalow a little bigger."
That is what the son did. He did put the bungalow on his father's land. He built it with his own labour with the help of one or two men, and he got the materials. He bore a good deal of the expense himself, but his father helped him with it, and he paid his father back some of it. Roughly he spent himself the sum of £150 out of a total of £300 expended. When it was finished, he went into the bungalow; and he has lived there ever since from 1931 down to date.In 1951 the father died. The only will he left was one he made as far back as 1922 before this land was bought or the bungalow was built. He appointed as executrix Miss Inwards, who had been living with him for many many years as his wife and by whom he had two children. He left nearly all his property to her and her two children by him. He left his son, Jack Baker, £400. Miss Inwards appointed her two children as trustees of the will with her. The trustees under the will did not take any steps to get Jack Baker out of the bungalow. In fact they visited him there from time to time. They all seem to have been quite friendly. But in the year 1963 they took proceedings to get Jack Baker out. Miss Inwards died during these proceedings. Her two children continued the proceedings as the trustees of the father's will. The Court of Appeal held that the expenditure by Jack Baker raised an equity. In discussing the appropriate remedy Lord Denning said:
“It is for the court to say in what way the equity can be satisfied. I am quite clear in this case it can be satisfied by holding that the defendant can remain there as long as he desires to as his home.”
[97]The only factor which seems to me to underpin the decision is the expectation created in Jack Baker’s mind. However, the following features are also worthy of note: i) The fact that old Mr Baker paid for half the cost of the materials to build the bungalow and supplied the land; ii) The fact that Jack Baker had enjoyed over thirty years rent free occupation of the cottage, including 12 years after his father’s death; iii) The fact that Jack Baker was left £400 in his father’s will, which was over double what he had spent in building the bungalow; iv) The fact that the issue arose only in the context of a claim for possession; and Jack Baker did not, it seems, argue for any greater right.[98]In those circumstances, I do not consider that Inwards v Baker compels me to any particular conclusion. In a case in which the claimant has lived in the property in question for a very long time it may be right to satisfy the equity by a licence or even to hold that the long occupation has already satisfied the equity so that nothing more is needed. But in this case Mr and Mrs Foy had only lived in the extension for about five years. An indefinite licence would not, in my judgment, do justice between the parties in this respect. The court will often give effect to the expectation underlying the estoppel, unless to do so is disproportionate to the detrimental reliance. In the present case I do not consider that it is. In my judgment, therefore, Mrs Foy has established her claim to ownership of the extension. Undue influence The law

Undue influence

[99]I turn next to undue influence. The law relating to undue influence is comprehensively discussed by the House of Lords in Royal Bank of Scotland plc v. Etridge (No. 2) [2002] 2 AC 773. The following principles are relevant to the present case: i) The objective of the doctrine of undue influence is to ensure that the influence of one person ("the donee") over another ("the donor") is not abused (§ 6); ii) If the donor intends to enter into a transaction, but the intention was produced by means which lead to the conclusion that the intention thus procured ought not fairly to be treated as the expression of the donor's free will, the law will not permit the transaction to stand (§ 7); iii) Broadly, there are two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage. (§ 8); iv) The principle is not confined to abuse of trust or confidence. It also extends to the exploitation of the vulnerable (§ 11); v) Disadvantage to the donor is not a necessary ingredient of undue influence (§ 12). However, it may have an evidential value, because it is relevant to the questions whether any allegation of abuse of confidence can properly be made, and whether any abuse actually occurred (§ 104); vi) Whether a transaction has been brought about by undue influence is a question of fact (§ 13); vii) The legal burden of proving undue influence rests on the person alleging it. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case (§ 13); viii) If the claimant proves(a) that the donor placed trust and confidence in the donee or that the donee acquired ascendancy over the donor, and(b) that the transaction calls out for explanation, the claimant has discharged an evidential burden, which will also enable an inference of undue influence to be drawn, and thus satisfy the legal burden, unless the donee produces evidence to counter the inference which would otherwise be drawn (§§ 14, 21 and 156); ix) This is simply a question of evidence and proof. At the end of the day, after trial, there will either be proof of undue influence or that proof will fail and it will be found that there is no undue influence. In the former case, whatever the relationship between the parties and however the influence was exerted, there will have been found to have been an actual case of undue influence. In the latter there will be none (§ 93). x) Proof that the donor received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a donor a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case (§ 20); xi) The nature of the advice required is that someone free from the taint of undue influence should put before the donor the nature and consequences of the proposed transaction. It is not necessary for the adviser to recommend the transaction. An adult of competent mind is entitled to enter into a financially unwise transaction if he or she wants to (§§ 60 and 61).[100]In the light of the arguments before me, there are some additional observations I should make. First, although in Etridge Lord Nicholls of Birkenhead described the paradigm case of a relationship where influence is presumed as being one in which the complainant reposed trust and confidence in the other party in relation to the management of the complainant’s financial affairs (§ 14), I do not consider that this description was intended to be exhaustive. To restrict the type of trust and confidence in this way would not be consistent with the authoritative exposition by Lindley LJ in Allcard v Skinner (1887) 36 Ch D 145 in which Lindley LJ referred to “cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him”. This very sentence was paraphrased by Lord Nicholls (§ 9). In addition, when describing the circumstances in which the burden of proof would shift (§ 21) Lord Nicholls used much more general language. Second, the requisite trust and confidence can arise in the course of the impugned transaction itself: Turkey v Awadh [2005] 2 P. & C.R. 29 (§ 11). Third, although the cases (and the textbooks) speak of “presumed undue influence” and “actual undue influence” these are no more than different ways of proving the same thing. In the former case undue influence is proved with the aid of an evidential presumption. In the latter case it must be proved without any such presumption. Fourth, if a relationship of the requisite character is proved, the burden of proof does not shift unless the transaction itself is one that calls for an explanation and is not satisfactorily explained. As Buxton LJ said in Turkey v Awadh (§ 15):
“If on the evidence the transaction cannot so be explained — that is to say, the transaction calls for an explanation and that explanation is not forthcoming—the burden then shifts to the claimant to show that in fact, and despite the terms and nature of the agreement, he did not in truth abuse the position that he held. He would normally discharge that burden—as, for instance, now at least occurs in husband and wife cases—by showing that the defendant entered into the matter with his will fully unconstrained, usually with the benefit of independent legal advice.” (Emphasis added)
[101]Fifth, in order to determine whether a transaction is explicable in terms other than undue influence, it is necessary to look at it in its context and to see what its general nature was and what it was trying to achieve for the parties: Turkey v Awadh (§ 32). Sixth, the critical question is whether or not the influence has invaded the free volition of the donor to withstand the influence. The donor may be led but she must not be driven; and her will must be the offspring of her own volition, not a record of someone else’s. There is no undue influence unless the donor if she were free and informed could say “This is not my wish but I must do it”: Drew v Daniel [2005] 2 FCR 365 (§ 36). Seventh, it is highly unlikely on the facts that the court would ever be justified in finding that undue influence consisted both of coercion and abuse of trust and confidence. People do not usually trust those who coerce them: Bank of Scotland v Bennett [1999] FLR 1115, 1135 (to which Lord Scott of Foscote referred in Etridge § 314). Lord Hoffmann made much the same point in R v HM Attorney General [2003] UKPC 22 (§ 24). Eighth, what I must look at is whether Mrs Thompson was caused to enter into the transaction by undue influence; and this necessarily means looking at the situation at the time the impugned transaction was entered into, rather than at subsequent events, save in so far as subsequent events cast light on what was happening before and at the time of the impugned transaction. A transaction into which someone enters of their own free will does not retrospectively become tainted by undue influence merely because the counter-party fails to perform his or her side of the bargain.

Does a presumption arise?

[102]The first question to consider is whether a presumption of undue influence arises. This depends on the nature of the relationship between Mrs Thompson and Mrs Foy and the nature of the impugned transaction. The two must, I think, be considered together and in the round.[103]The relationship was one of closeness and mutual trust; but the closeness and mutual trust between Mrs Thompson and Mrs Foy was no different from the closeness and mutual trust that existed between Mrs Thompson and her other daughter, Mrs Swanborough. There was, however, a degree of reliance on Mrs Foy which Mr Bilton noted in his letter of 11 January. Nevertheless, it was not a relationship in which Mrs Thompson generally entrusted her financial affairs to Mrs Foy. Before Mr Thompson’s stroke he had dealt with the finances, and after his stroke Mrs Thompson was well capable of dealing with matters and did deal with matters without Mrs Foy’s help or advice. After his death the position changed to some extent. Mrs Thompson dealt with the administrative matters concerning her husband’s death by herself. She also notified Scottish Widows herself. But as has been seen, when Scottish Widows made the claim for repayment Mrs Thompson asked Mrs Foy to deal with that, which she did. She asked Mrs Foy to go with her whenever she went to see solicitors, and as Mr Bilton records, Mrs Foy was supportive of her mother. This is not a case in which I think that it can be said that Mrs Foy dominated her mother, although it is one in which it can be said that Mrs Thompson relied on Mrs Foy for support. Nevertheless, Mrs Thompson was able to express her own opinions. For instance she decided, against the wishes of Mrs Foy, not to go to live in Spain. It was she, and not Mrs Foy, who decided to terminate Mr Bilton’s instructions. It was she who resented Mr Bilton’s questions and both in the meeting of 5 January and that of 12 January it was she who said that she could not understand why she could not do what she wanted with her own property. Nevertheless Mr Bilton’s evidence is telling and, I believe, accurate. Mrs Thompson was still very distraught by her husband’s death and found it very difficult to make any decision. In that state of mind she can properly be described as vulnerable. But Mr Bilton also recorded in his attendance note of the meeting on 5 January his impression that Mrs Thompson’s distress was at least in part attributable to her frustration with the legal process. In other words the legal process was stopping her from doing as she wanted. There is also Mrs Thompson’s own evidence that as she signed the necessary paperwork on 18 January 2007 she still had a niggling feeling that things could go wrong and that she could end up with nothing even though she had had repeated reassurances from Mrs Foy. This is not suggestive of a relationship of complete trust and confidence; and, moreover, demonstrates that Mrs Thompson appreciated that she was taking a risk.[104]What was the transaction to which Mrs Thompson agreed? Mrs Foy was adamant in her evidence that she had never promised to pay her mother £200,000. There is some corroboration for her evidence in Mr Bilton’s letter of 11 January in which he said:
“We have also been led to believe that following the gift of the whole of the value of Valley View Farm Julie may give you back a sum of money to purchase a house or bungalow in the locality if you wish to live by yourself in this area. It has been suggested that this is a possibility but there will be no legal obligation to do this and Julie could change her mind and there would be no legal comebacks.” (Emphasis added)
[105]Mr King also said that he was aware that Mrs Foy “might” pay a sum of money to Mrs Thompson after the gift had gone through (§ 63 above). However, the remainder of the evidence points strongly towards the conclusion that Mrs Foy did promise to pay Mrs Thompson £200,000. In particular: i) The discussions between Mrs Thompson and Mrs Swanborough in the late spring or early summer of 2006 (§ 20 above); ii) The understanding that Mr Hammond had in September 2006 having seen Mrs Thompson and Mr and Mrs Foy (§ 22 above); iii) Mr Hammond’s letter of 30 October 2006 (§ 28 above); iv) Elliot Mather’s internal briefing note (§ 31 above); v) The price actually paid for the Spanish property (§ 34 above); vi) Mrs Thompson’s and Mrs Swanborough’s evidence about the family meeting on 2 January (§§ 37 and 38 above); vii) Mr Bilton’s instructions about the will that Mrs Thompson intended to make (§ 44 above); viii) Mr Bilton’s raising of the question about a promissory note (§ 45 above); ix) Mr Bilton’s understanding that the property was worth £400,000 and that Mrs Thompson only wanted to account to Mrs Foy for half (§ 48 iii) above); x) Mr Bellwood’s evidence about the incident on 20 April 2007 (§ 77 above).[106]In the light of all this evidence, taken as a whole, I conclude that Mrs Foy did promise to pay Mrs Thompson £200,000. I might add that there would have been no reason for Mrs Thompson to have effectively disinherited Mrs Swanborough to whom, as I have said, she was also close. So a promise to pay £200,000 accords with the inherent probabilities.[107]Thus the contemplated transaction, as I find it, was as follows: i) Legal title to Valley View would be transferred by Mrs Thompson to Mrs Foy; ii) Mrs Foy would become entitled to £200,000 by way of variation of her father’s will; iii) Mrs Foy would raise £400,000 on mortgage; iv) Mrs Foy would pay £200,000 to Mrs Thompson; v) Valley View would be rented out to cover the mortgage payments; vi) Mrs Foy would use her £200,000 to buy a property in Spain which would be big enough to accommodate Mrs Thompson.[108]Does this transaction call for explanation? At a superficial level it does, since it appears to be a gift of the property to Mrs Foy. But once it is looked at more closely, it seems to me that it is readily explicable according to the ordinary motives on which people act. Mrs Foy’s entitlement to £200,000 is explicable by the fact that she and her husband had made substantial improvements to Valley View. It is true that, on my findings, her enforceable entitlement was only an entitlement to the extension and its site. On the basis of the single expert’s report in this case, that was worth £165,000 at the time. However, even if Mr Foy’s efforts in enlarging the garage, building the store and enlarging the drive did not result in an enforceable entitlement to a proprietary interest, it is not surprising that Mrs Thompson would have recognised the increased value that those improvements made. Moreover, as I have said, the agreed 50:50 split was arrived at in good faith with the benefit of informal valuation advice. Accordingly this element was not really a gift in economic terms or, if it was, it is a readily explicable gift. So far as the remaining entitlement to Valley View was concerned, Mrs Thompson was to receive £200,000 out of the mortgage monies. So that element was not a gift in economic terms either. The transfer of the legal title was necessary, because it was necessary to raise money on mortgage; and Mrs Thompson did not wish to have the responsibility of a mortgage, and thought that in any event she was too old to get one. The final element of the transaction was that Mrs Foy would buy a property big enough to accommodate Mrs Thompson in a separate annexe, so that Mrs Thompson could, if she chose to, have gone to live in close proximity to her daughter in the same way as they had done at Valley View. Thus this element also provided a benefit to Mrs Thompson and, in addition, she would have realised £200,000 with which to buy a place of her own in Derbyshire. As Mrs Thompson herself acknowledged in evidence, if she had received her £200,000 she would not have impugned the transaction. Mrs Swanborough was also comfortable with the transaction as contemplated. I conclude, therefore, that when properly understood in its family context the contemplated transaction was not one which called for explanation or, if it did, it has been satisfactorily explained.[109]Does it make any difference that Mrs Foy’s promise to pay Mrs Thompson £200,000 was in the event neither documented nor secured? The lack of documentation or security does not alter the substance of the transaction but it does, of course, alter the evidential ease of establishing the existence of the promise. On the facts of the present case it has enabled Mrs Foy falsely to deny that she ever made that promise. In the case of an informal arrangement intended to last well into the future (such as an agreement to house an elderly relative for the rest of her life) the lack of documentation or security may be a significant disadvantage. But in the case of a simple promise to pay on receipt of funds, made by a daughter to a mother, intended to be performed within a matter of months if not weeks, it seems to me that it does not alter the fundamentals of the transaction sufficiently to say that the explanation for it cannot be accounted for by the usual motives that move people. The kind of trust in play here is no more than a trust that a daughter will keep her promise to her mother.

Was there actual undue influence?

[110]This conclusion means that, whatever the nature of the relationship between Mrs Thompson and Mrs Foy, no presumption of undue influence arises. It is not for Mrs Foy to justify the transaction. Accordingly Mrs Thompson faces the burden of proving that Mrs Foy actually used undue influence to procure that the transaction went ahead. It has not been suggested that Mrs Foy made the promise to pay £200,000 without ever intending to pay it. That would have been rank dishonesty but that allegation was neither pleaded nor put. I proceed therefore on the basis that this is not a case of misrepresentation. In order to sustain a finding of undue influence (absent any presumption) there must not only be influence but it must also be undue (i.e. unacceptable). In essence the question is whether Mrs Thompson’s volition was overborne by Mrs Foy; not simply whether she was persuaded by Mrs Foy that the transaction was a good idea. In answering this question I bear in mind: i) Mr Bilton pointed out to her the disadvantages of the proposed gift and, as he said in his letter of 11 January, he had previously discussed those disadvantages with her. Not only did he give or send Mrs Thompson three copies of his letter, he read it aloud and in full on 12 January; ii) Mr Bilton’s impression was that Mrs Foy was supportive of her mother and that she was trying to look after her in what she believed to be her best interests; iii) Both Mr and Mrs Swanborough warned her of the dangers of the transaction; iv) The impetus to leave Valley View sprang from Mrs Thompson’s own will, and she wanted to leave as soon as possible; v) She understood that in order for her to be able to leave Valley View it would be necessary for money to be raised on mortgage; vi) She was willing to do whatever was necessary in order to enable enough money to be raised; vii) At the meeting with Mr King on 18 January he went through Mr Bilton’s advice, but Mrs Thompson “insisted” (to use Mr King’s word) that the papers be signed.[111]By the time that Mrs Thompson signed the necessary paperwork she had been warned by both Mrs Swanborough and Mr Swanborough not to trust Mrs Foy. She had also been told by Mr Bilton of the dangers of giving Valley View to Mrs Foy both in his letter of 11 January and also at the meeting on 12 January when he read the letter aloud. None of this dissuaded Mrs Thompson. She knew and understood that “the piece round the back” already belonged to Mr and Mrs Foy and that she would have to sign papers to make it legal and proper. She knew that she would sign papers to make a gift of Valley View to Mrs Foy. She knew and understood that Mrs Foy needed the property as collateral to raise £400,000; and that Mrs Foy would use part of that money to pay Mrs Thompson £200,000 plus the £20,000 that she had lent them. She trusted Mrs Foy to honour her promise to pay her her £200,000 and to repay the loan. I find that it was on that basis that Mrs Thompson signed the necessary paperwork on 18 January. Thus Mrs Thompson knew and understood the substance of the transaction into which she entered. She intended to enter into it. That is not, of course, a complete answer, because it is necessary to inquire how the intention was produced.[112]Mrs Thompson’s pleaded case does not give any details of any acts of overt persuasion, emotional blackmail or bullying. The one exception is the alleged incident on the holiday in Spain, which I have rejected. No threats were made either by Mr or Mrs Foy which induced Mrs Thompson to enter into the deal. Mrs Thompson expressly disclaimed any such allegation in her oral evidence. I have found that Mrs Foy promised to pay Mrs Thompson £200,000 once the mortgage money came through. It was this repeated promise that influenced Mrs Thompson to enter into the transaction. But on the basis that the promise was sincerely given at the time, I do not consider that this amounts to undue influence. To conclude otherwise would mean that any breach of an oral promise or failure to honour an understanding could retrospectively lead to an allegation of undue influence.[113]In his skeleton argument used in opening the case Mr Din submitted:
“The undisputable facts, namely that Mrs Foy mortgaged the property, failed to make all but two repayments on the mortgage, moved the mortgage monies abroad into (on her case) the hands of her husband and left her mother with nothing call out for an explanation. There is no explanation other than the obvious exercise of (in the eyes of equity) Undue Influence.”
[114]The way in which this is put clearly shows that it is only by concentrating on what happened after the impugned transaction (i.e. what happened after the mortgage monies were received many months after the impugned transaction) that the inference of undue influence is said to arise. But if there was undue influence, then it must have existed at the date of the impugned transaction which Mrs Thompson would have been entitled to set aside even before the mortgage monies had come though. In my judgment it is not a proper deployment of the doctrine of undue influence to use it in the way suggested.[115]Having reached this conclusion, the claim to set aside the deed of family arrangement and the gift of the legal title must fail. It is difficult not to feel enormous sympathy for Mrs Thompson who has indeed been badly let down by her daughter. But sympathy does not permit me to decide the case on a basis that was not pleaded, not argued and not put. On the only basis on which the case was put, the law does not permit me to find in Mrs Thompson’s favour on the question of undue influence.[116]In case I am wrong, I should go on to consider briefly some of the other issues that arose.[117]The first matter to consider is the nature of the legal advice that Mrs Thompson received. She received very clear advice from Mr Bilton both orally and in writing about the potential consequences of the transaction. It is to be noted that Mr Bilton’s advice expressly assumed that Mrs Foy would have no legal obligation to pay any money and thus the transaction as presented was in fact more disadvantageous to Mrs Thompson than was actually the case. She was also advised by Mr King. It is true that Mr King does not have any actual recollection of his meetings with Mrs Thompson. But it was not suggested that his attendance notes had been deliberately falsified; and given that they were dictated within a few days of each meeting, I believe that I should take them at face value. Mr King’s attendance notes record that he saw Mrs Thompson alone twice. They also record that he went through the advice given by Bilton Hammond with Mrs Thompson alone before she signed the paperwork on 18 January 2007, and that she insisted that the papers be signed. I find therefore that Mrs Thompson was advised about the risks of what she intended to do and insisted on going ahead. Whether she fully understood that advice is a different question. Neither Mr Bilton nor Ms Allen was convinced that she had. But Mr King said that his impression was that Mrs Thompson was in control; and Mrs Thompson’s own evidence about her feelings as she signed the paperwork on 18 January does to my mind show that she had understood that there was a risk in what she was doing.

Overriding interest

[118]If, contrary to my finding, Mrs Thompson is entitled to set aside the transaction on the ground of undue influence, does that affect the position of TMB? This turns on the Land Registration Act 2002. The relevant provisions of the Act are as follows: “If a disposition of a registered estate or registered charge is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.” (Section 27 (1))[119]Registrable dispositions include the grant of a legal charge (section 27 (2)(f)). The effect of registration is dealt with by sections 29 and 30. Section 29 provides:
“(1) If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. (2) For the purposes of subsection (1), the priority of an interest is protected— (a) in any case, if the interest— (i) …, (ii) falls within any of the paragraphs of Schedule 3, or (iii) …”
[120]The relevant paragraph of Schedule 3 is paragraph 2:
“An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for— (a) …; (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) an interest— (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time; (d) ….”
[121]Mr Wood argued that the time at which a registrable disposition takes place is the time at which it is registered. That, he said, follows from the rule in section 27(1) that such a disposition only operates in law from the date of registration. Accordingly, on the facts of the present case the only relevant date for deciding whether Mrs Thompson’s right to set aside the transaction was protected is 10 April 2007. I reject this submission. First, section 27(2) (f) identifies the disposition as the grant of a legal charge, not its completion by registration. Second, the language of section 29 (1) contemplates that the time of the disposition and the time of registration may be different (even though this may change, for practical purposes, once e-conveyancing comes into being). The relevant interest must be one which affects the charge at the date of the disposition. Third, Schedule 3 paragraph 2 (c) contemplates an inspection at the time of the disposition. Thus must mean an inspection at the date when the legal documents are executed and the money is released. In my judgment, on the facts of this case the date of the disposition was 5 April 2007. Accordingly, if actual occupation must exist at one date only, then in my judgment the date of the disposition (5 April) is the relevant date.[122]What, to my mind, is less clear is whether, in a case where actual occupation is relied on, there must be actual occupation both at the date of the disposition (5 April in this case) and also at the date of registration (10 April in this case). Section 29 contains two requirements: i) The interest must affect the estate immediately before the disposition and ii) The interest must be protected at the time of registration.[123]Where actual occupation is relied on as causing the interest to affect the estate, this suggests that there must be actual occupation both at the date of the disposition and also at the time of registration. Paragraph 2 of Schedule 3 begins with the words: “An interest belonging at the time of the disposition to a person in actual occupation”.[124]If it had been intended that actual occupation at the time of the disposition was the sole criterion, the phrase would more naturally have read: “An interest belonging to a person in actual occupation at the time of the disposition”.[125]As written, the phrase can be read as tying the “belonging” to the date of the disposition, while leaving at large the date of actual occupation. The relevant date of actual occupation would then be determined by section 29, so that actual occupation at the date of the disposition would be required in order for the right to affect the estate immediately before the disposition; and actual occupation at the date of registration would be required in order for that interest to be protected at the time of registration.[126]It is fair to say that neither party adopted this construction; and the text books are against it: Ruoff & Roper on Registered Conveyancing §§ 15.009 and 17.013; Gray & Gray on Land Law § 8.2.50. I will therefore leave the point to a case in which it needs to be decided; but I will make the necessary findings of fact in case this goes further.[127]Before addressing the question of Mrs Thompson’s actual occupation directly, it is necessary to say a little more about “actual occupation”: i) The words “actual occupation” are ordinary words of plain English and should be interpreted as such. The word “actual” emphasises that physical presence is required: Williams & Glyn’s Bank v. Boland [1981] AC 487 per Lord Wilberforce at 504; ii) It does not necessarily involve the personal presence of the person claiming to occupy. A caretaker or the representative of a company can occupy on behalf of his employer: Abbey National BS v. Cann [1991] 1 AC 56 per Lord Oliver at 93; iii) However, actual occupation by a licensee (who is not a representative occupier) does not count as actual occupation by the licensor: Strand Securities Ltd. v Caswell [1965] Ch. 958 per Lord Denning MR at 981; iv) The mere presence of some of the claimant’s furniture will not usually count as actual occupation: Strand Securities Ltd. v Caswell [1965] Ch. 958 per Russell LJ at 984; v) If the person said to be in actual occupation at any particular time is not physically present on the land at that time, it will usually be necessary to show that his occupation was manifested and accompanied by a continuing intention to occupy: compare Hoggett v. Hoggett (1980) 39 P&CR 121, per Sir David Cairns at 127.[128]On 5 April 2007, there is no doubt that Mrs Thompson was in actual occupation. But there is a subsidiary question: in actual occupation of what? This question arises because if Mrs Thompson was in actual occupation, her rights are protected only so far as relating to land of which she was in actual occupation. This is a deliberate change from the position under section 70 (1) (g) of the Land Registration Act 1925.[129]On any ordinary application of the words to the facts I do not consider that it can be said that Mrs Thompson was in actual occupation of the extension or annexe. That was Mr and Mrs Foy’s family home. Even if Mr and Mrs Foy were no more than licensees (which would be contrary to my conclusion on estoppel) Mrs Thompson would still not have been in actual occupation of that part of the property. Likewise I do not consider that it can be said that Mrs Thompson was in actual occupation of the garage/workshop or the storage building, both of which were exclusively used by Mr Foy for his own business purposes. To put the point a different way, her occupation of those parts of Valley View would not have been obvious on a reasonably careful inspection. On the other hand, I consider that Mrs Thompson was in actual occupation of the original cottage and also in actual occupation (jointly with Mr and Mrs Foy) of the remainder of Valley View (apart from the parts I have mentioned).[130]Did the position change between 5 and 10 April? By 10 April: i) Mrs Thompson had packed some of her pictures and ornaments some months before; ii) She been away from Valley View for four days; iii) She had collected personal possessions from her bedroom, taken away from the cottage anything of value and had emptied her safe; iv) She had decided that she would not go back to Valley View to live there; but v) Most of her furniture, bedding etc. remained at Valley View and would not be collected for another few days.[131]But for the fourth of these features I would have concluded that Mrs Thompson remained in actual occupation of the cottage at Valley View on 10 April. However, since Mrs Thompson was neither physically present at Valley View on 10 April, nor had any intention of returning to occupy the cottage, I do not consider that she can be said to have been in actual occupation of it on 10 April.[132]On the footing that Mrs Thompson was in actual occupation at a relevant date, does she fall within either of the relevant exceptions in paragraph 2? TMB made no inquiries of her, with the consequence that she does not fall within paragraph 2 (b). Mr Wood argued that even if inquiries had been made of her, she would not have disclosed her right to have the transaction set aside, not least because until the mortgage monies had come through and Mrs Foy had defaulted on her promise to pay, she would not have known that she had any such right. But that is, I think, beside the point. The fact is that TMB made no inquiries, and therefore Mrs Thompson’s hypothetical response to inquiries is just that: hypothetical. So far as paragraph 2 (c) is concerned, it is not suggested that TMB had actual knowledge of Mrs Thompson’s right. So the question is whether her occupation would have been obvious on a reasonably careful inspection. This is a relevant hypothetical question. Unlike paragraph 2 (b) which requires inquiries to have been actually made, paragraph 2 (c) does not require an actual inspection. It asks what would have been obvious if an inspection had been made. If Valley View had been carefully inspected on 5 April 2007 it would have been obvious that Mrs Thompson was in occupation of the original cottage and in shared occupation of at least the drive and the immediately surrounding land. If Valley View had been carefully inspected on 10 April, the outward signs would have been for practical purposes the same. Although Mrs Thompson had removed her personal possessions from her bedroom and her valuables, the cottage would still have had the appearance of being fully furnished and hence occupied. Someone conducting a careful inspection on 10 April would not have discovered from that inspection that Mrs Thompson had decided not to return to occupy the cottage. However, since she was not in fact in actual occupation on 10 April, this does not matter.[133]I conclude therefore that Mrs Thompson does not fall within either of the relevant exceptions as at 5 April and if (contrary to my conclusion) she remained in actual occupation on 10 April, she would still not have fallen within either of those exceptions.[134]If Mrs Thompson was in actual occupation at a relevant date then whatever right she had would not have been postponed to TMB’s charge. What was that right? Section 116 of the Land Registration Act 2002 says that for the avoidance of doubt a “mere equity” has effect, from the time that the equity arises “as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority)”. Mr Wood argued that the word “capable” gave the court a discretion to decide whether or not an interest of this kind bound (or should bind) successors in title. He based this submission at least on part on the fact that section 116 applies also to an equity by estoppel, in relation to which the court does have a discretion to fashion an appropriate remedy. However, in my judgment the word “capable” means that a mere equity will bind successors in title, if it otherwise satisfies the rules about priority. In other words it will not automatically bind successors: it will only do so if it satisfies those rules. But once it has been shown that it does satisfy those rules, the court has no further discretion (at least in a case where satisfaction of the equity is not itself discretionary). It has been frequently remarked that there is no satisfactory definition of a “mere equity” although it is conventionally accepted that a right to set aside a transaction on the ground of undue influence is a mere equity. In the system of unregistered conveyancing a “mere equity” is not enforceable against a purchaser for valuable consideration of the legal estate who purchases in good faith and without notice of the equity. However, in the system of registered conveyancing, the rules about overriding interests take the place of notice: Williams & Glyn’s Bank v. Boland [1981] AC 487.[135]Even in the world of registered conveyancing notice plays a part where the grantor of a mortgage wishes to set aside the grant against the grantee on the ground of the undue influence of a third party. Typically the case is that of a wife who, jointly with her husband, grants a mortgage of the matrimonial home to a bank and later alleges that the charge ought to be set aside as against the bank on the ground of the husband’s undue influence. In such a case Etridge deals in detail with the circumstances in which this may be done. In short, the charge will only be set aside as against the bank if it had notice of the undue influence; and Etridge prescribes a series of steps for a bank to take in order to minimise both the risk of undue influence and also the risk that it will be held to have notice of it. Accordingly, despite the fact that in general notice plays no part in registered conveyancing, Etridge has brought it back in again, but with one significant difference. Whereas under the system of unregistered conveyancing the purchase in good faith without notice was a defence which the purchaser had to establish, in the Etridge situation notice is an ingredient of the right itself which the claimant has to establish. Thus in Barclays Bank v Boulter [1999] 1 W.L.R. 1919 Lord Hoffmann said:
“Mummery L.J. relied upon the analogy of the defence of purchaser in good faith for value without notice which may be relied upon by a purchaser of a legal estate to defeat a prior equitable interest or estate. In such a case, it is well established that the burden of proving all the elements of the defence is upon the purchaser: see In re Nisbet and Potts' Contract [1905] 1 Ch. 391, 398. But that rule depends upon the fact that the land is burdened with an equitable proprietary interest. Prima facie, a purchaser cannot obtain a better title than his vendor was able to convey. The defence of purchaser in good faith for value without notice enables the purchaser to defeat a prior interest which burdened the title. It is therefore for him to establish that defence. In the present case, however, the bank took a charge directly from Mrs. Boulter. She had the necessary title to grant it. There was no prior interest which the bank needed to defeat. Likewise, the legal charge was an agreement under seal between Mrs. Boulter and the bank. She covenanted directly with the bank. What she claims is that the bank cannot rely upon the charge and the covenant because they were vitiated by the undue influence and misrepresentations of her husband. But in my opinion it is for her to show why these acts of a third party should make the charge and covenant invalid as against the bank.”
[136]Lord Scott made the same point in Etridge itself (§ 146):
“In particular, it must be recognised that in the "bank v surety wife" cases the constructive notice that is sought to be attributed to the bank is not constructive notice of any pre-existing prior right or prior equity of the wife. The husband's impropriety, whether undue influence or misrepresentation, in procuring his wife to enter into a suretyship transaction with the bank would not entitle her to set it aside unless the bank had had notice of the impropriety. It is notice of the husband's impropriety that the bank must have, not notice of any prior rights of the wife. It is the notice that the bank has of the impropriety that creates the wife's right to set aside the transaction. The wife does not have any prior right or prior equity.”
[137]In the present case Mr Din submits that this is a case in which Mrs Thompson does assert a prior right or prior equity which burdened Mrs Foy’s title. That prior right binds TMB if, and only if, it is an overriding interest determined in accordance with Schedule 3 to the Land Registration Act 2002, which does not depend on notice. Mr Din did not allege that TMB in fact had notice of Mrs Thompson’s right. Paradoxically, therefore, TMB is potentially worse off in taking a charge from Mrs Foy who was to all intents and purposes the registered proprietor of the land than it would have been if it had taken a charge directly from Mrs Thompson. In the former case notice is irrelevant. In the latter case it is an essential ingredient of the right to set aside. But that is the law as I understand it. (I should add that TMB placed no reliance on sections 24 and 26 of the 2002 Act).[138]There is, however, another difficulty in Mr Din’s way. As I have said, the way in which the claim based on undue influence was put depended heavily on what happened to the mortgage monies after they came through (see § 113 above). If the claim based on undue influence does not crystallise until Mrs Foy’s misappropriation of the mortgage monies, then the equity does not arise until that time with the consequence that it would not have affected the registered estate at the date of the charge in favour of TMB.

Estoppel and consent

[139]Finally under this head, TMB relied on the principle in Paddington Building Society v Mendelsohn (1985) 50 P. & C.R. 244. Mr Wood said that the principle was that if a person who had an overriding interest based on actual occupation consented to the registered proprietor raising money on the security of a legal charge he could not thereafter assert his overriding interest in priority to the charge. Paddington Building Society v Mendelsohn was a case in which A provided the cash to buy a flat which was taken in the name of B, who took out a mortgage for the remainder of the price with A’s agreement. When the mortgagee sought possession A contended that she had an overriding interest, based on her actual occupation, which bound the mortgagee. Browne-Wilkinson LJ said:
“Since the mother knew and intended that the mortgage was to be granted to the society and that without the mortgage the flat in which she claims a beneficial interest could not have been acquired, the only possible intention to impute to the parties is an intention that the mother's rights were to be subject to the rights of the society. Therefore, if the land were unregistered land, in my judgment the mother's equitable interest in the flat would have been subject to the society's rights and would provide no defence to the society's claim to possession.”
[140]He then went on to consider whether the fact that the land was registered land made any difference. He said:
“There is no doubt therefore that the registered land is subject to the rights of such person. But the essential question remains to be answered, “What are the rights of the person in actual occupation?”
If the rights of the person in actual occupation are not under the general law such as to give any priority over the holder of the registered estate, there is nothing in section 70 which changes such rights into different and bigger rights.”[141]Mr Din submitted that, on the facts of that case, all that the Court of Appeal was concerned with was determining the nature of A’s beneficial interest in the property and that in the present case I am concerned with the vindication of a pre-existing right that does not depend on the intention of the parties. That seems to me to be a very narrow reading of Paddington Building Society v Mendelsohn. Moreover a wider principle is suggested by the following observations of Lord Oliver of Aylmerton in Abbey National Building Society v Cann [1991] 1 A.C. 56. The Court of Appeal had held that Mrs Cann had left it to her son to raise money on mortgage to complete the purchase of the property. Lord Oliver held that that finding of fact was correct. He continued (p. 94):
“If that is right, it follows that George Cann was permitted by her to raise money on the security of the property without any limitation on his authority being communicated to the society. She is not, therefore, in a position to complain, as against the lender, that too much was raised and even if, contrary to the view which I have formed, she had been able to establish an interest in the property which would otherwise prevail against the society, the circumstances to which I have alluded would preclude her from relying upon it as prevailing over the society's interest for the reasons given in the judgment of Dillon L.J. in the Court of Appeal.”
[142]This, as it seems to me is a much broader principle, akin to an estoppel. In the course of his reasoning in the Court of Appeal (which Lord Oliver approved) Dillon LJ applied the principle in Brocklesby v Temperance Permanent BS [1895] AC 173 which was referred to and applied by Farwell J in Rimmer v Webster [1902] 2 Ch 163, a case on which Mr Wood relied. Shortly stated the principle is that when:
“the owner is found to have given the vendor or borrower the means of representing himself as the beneficial owner, the case forms one of actual authority apparently equivalent to absolute ownership, and involving the right to deal with the property as owner, and any limitations on this generality must be proved to have been brought to the knowledge of the purchaser or mortgagee.”
[143]One thing is clear from start to finish in this case. Money was always going to be raised on mortgage. Mrs Thompson knew and understood that and wanted it to happen. She wanted it to happen because she knew that without a mortgage she would not receive her £200,000. She executed the assent transferring the legal title to Mrs Foy in order to enable the money to be raised by the grant of a mortgage. In those circumstances I would have held that Mrs Thompson was precluded from relying as against TMB upon any right to set aside the assent for undue influence.

A charge over Mrs Foy’s beneficial interest

[144]TMB say that if(a) Mrs Thompson is entitled to set aside either or both the assent and the deed of family arrangement(b) her right to do so binds TMB, but(c) Mrs Foy is entitled to a beneficial interest in Valley View, they are nevertheless entitled to a charge over Mrs Foy’s beneficial interest in Valley View. TMB rely on section 63 (1) of the Law of Property Act 1925 which states:
“Every conveyance is effectual to pass all the estate, right, title, interest, claim, and demand which the conveying parties respectively have, in, to, or on the property conveyed, or expressed or intended so to be, or which they respectively have power to convey in, to, or on the same.”
[145]This provision has been applied where joint owners of property purport to grant a mortgage legal charge which is void as against one of them. In such a case it is held that the effect of section 63 is (among other things) to create a valid equitable charge over the beneficial interest of that joint owner against whom the charge would otherwise be valid. This principle was applied to a case of undue influence in First National Bank plc v Achampong [2004] 1 FCR 18. In my judgment it is equally applicable in this case. Mrs Foy is, on the basis of my findings, entitled to a share equal to £200,000 in Valley View. On the assumptions set out above the execution of the charge created a valid equitable charge over her beneficial interest.

The loan of £20,000

[146]The dispute under this head is whether Mrs Foy repaid Mrs Thompson the loan of £20,000. Mrs Foy says that she repaid the loan on 19 April 2007. She says, however, that she did not pay Mrs Thompson £20,000 but £30,000 which was the loan for the deposit of £20,000 plus the sum of £8,000 used to pay off her credit card debt. As I have said there is good evidence (in the shape of bank records) that shows that Mrs Foy withdrew £31,500 in cash from her bank on 19 April. What that evidence does not show is what Mrs Foy did with the money. As to that the main evidence is that of Mrs Foy and Mrs Thompson. Mrs Foy said that she paid the money: Mrs Thompson says that she did not. How is this conflict to be resolved?[147]First, Mrs Foy’s account of what happened on 19 April contains evidence about a number of matters which I have rejected. I have rejected her evidence that it was on this occasion that she first became aware that her mother wanted £200,000 and that it was on this occasion that she learned for the first time that her mother might not go to Spain after all. That does not give me confidence in the remainder of her account of that day. Second, Mr Bellwood’s recollection of the following day (which I have accepted) is that Mrs Thompson mentioned the figure of £20,000 as being owing to her. If Mrs Foy had repaid that sum on the previous day, that evidence is inexplicable. Third, if Mrs Thompson did receive £30,000 in cash on 19 April there is no trace of it anywhere. Fourth, as Mr Din submitted, it is curious that if Mrs Thompson is falsely denying having been repaid £20,000 she is nevertheless not asking for repayment of the £8,000 which has never formed part of her claim. Lastly I must also take into account my conclusion that Mrs Foy has shown herself willing to tell lies particularly about money.[148]I conclude that on this issue of disputed fact Mrs Thompson is telling the truth. I find, therefore, that Mrs Foy has not repaid the £20,000 that Mrs Thompson lent her; and that it is still owing.[149]I will hear submissions on the form of order necessary to give effect to my decision.

Cited in 23 later judgments

and 14 more of the most senior