Lindop v Agus & Ors [2009] EWHC 1795 (Ch)

[2009] EWHC 1795 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue LEEDS DISTRICT REGISTRYDate 2 July 2009
Between
LOUISE LINDOPClaimantAND (1) EMMA JANE AGUS (2) SIMON BRODIE BASS (3) JAY ROBERT HEDLEYDefendant
HHJ JOHN BEHRENS
B E T W E E N:
JUDGMENT
[1]This is a claim by Louise Lindop under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision out of the estate of Paul Hedley who died on 30th January 2007 of a brain haemorrhage at the tragically young age of 37.[2]For reasons that I do not need to go into the only issue to be determined at this hearing is whether Louise Lindop is eligible to bring an application.

(e) of the Act

[3]The executors accept that there was a relationship between Louise Lindop and Paul Hedley but they do not accept that she was living with him “in the same household as his wife”. Hence they contend that the claim under section 1(1A) must fail. Equally they do not accept that Louise Lindop was being maintained by Paul Hedley otherwise than for full consideration immediately before his death. Thus the claim under section 1(1)(e) must fail. Representation[4]Liam Grundy instructed by Green Williamson of Wakefield appeared on behalf of Louise Lindop. Simon Anderson instructed by Milners of Leeds appeared for the executors. Both have prepared full and helpful skeleton arguments and have referred me to all the relevant authorities.[5]I am particularly grateful to Mr Grundy who was instructed at a very late stage. The Law 3.1. The Act[9]The categories of persons who are entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 are specified in section 1. They include: “[a person who] during the whole of the period of two years ending immediately before the date when the deceased died, … was living—(a) in the same household as the deceased, and(b) as the husband or wife of the deceased” (section 1 (1A)) “any person … who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased” (section 1 (1) (e)) For these purposes, a person is: “treated as being maintained by the deceased, either wholly or partly, as the case may be, if the deceased, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person” (section 1 (3)) For these purposes, a person is: section 1(1A)

For these purposes, a person is:

[6]There is some learning on the question whether two people are living in the same household. In Churchill v Roach [2003] WTLR 779 HH

Judge Norris QC said:

“It is, of course, dangerous to try and define what 'living in the same household' means. It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes, and to involve an element of community of resources. None of these factors of itself is sufficient, but each may provide an indicator.If I adopt that approach in relation to what was happening between Muriel and Arnold in the seven months preceding December 1998, I would reach the conclusion that they were essentially maintaining two separate households. I do not regard it as fatal that two separate properties were involved: Shakespeare Avenue and 7 Ferry Lane. It is perfectly possible to have one household and two properties. But what does seem to me to be the case is that there were two separate establishments with two separate domestic economies. There was, of course, a degree of sharing when the two met at weekends and some of those weekends were long. But that does not mean that they lived in one household.”
In Kotke v Saffarini [2005] 2 FLR 878 the question was whether the claimant was entitled to bring a claim under the Fatal Accidents Act 1976 as a person living with the deceased in the same household as husband and wife. Potter LJ, giving the judgment of the Court of Appeal said:
“[33] …we have derived some assistance from Crake v Supplementary Benefits Commission [1982] 1 All ER 498 and Kimber v Kimber [2000] 1 FLR 383. In the former case, Woolf J was concerned with the question whether a man and woman were 'living together as husband and wife' for the purposes of para 3(1)(b) of Sch 1 to the Supplementary Benefits Act 1976. [34] He commended as 'admirable signposts' the criteria set out in the supplementary benefits handbook then issued for the guidance of claimants. He said: 'They are: whether they are members of the same household; then there is a reference to stability; then there is a question of financial support; then there is the question of sexual relationship; the question of children; and public acknowledgement.' [35] In Kimber v Kimber Judge Tyrer referred to those six factors and, in relation to the first helpfully observed: 'Generally this means that the parties live under the same roof, illness, holidays, work and other periodical absences apart.' [36] Whereas in the context of supplementary benefits, the six factors identified were separately stated, it seems to us that in any case where it falls to be decided whether two people are living together as husband or wife in the same household, factors 2–5 equally fall to be considered in relation to the question whether a household itself exists.”
[7]However as Lewison J pointed out in the recent case of Baynes v Hedges at paragraph 121: Statements of general principle such as this must of course be read in the light of the facts of the case. Human relationships are many and various and it is perfectly possible that two people have a long-term, loving and intimate relationship without ever living in the same household; or, having once lived in the same household, decide to live in separate households, while continuing the relationship. In deciding whether two people have lived together in the same household during the whole of the requisite two year period the court’s gaze is not confined to that two year period, in so far as previous events explain what was happening within that period. Nor, if two people are living in the same household will they necessarily stop doing so merely because they are temporarily physically separated. In the end, it seems to me that the question whether two people live together in the same household is essentially one of fact[8]There is also learning on the meaning of “as husband and wife”. In Southern Housing Group Ltd v Nutting [2005] 2 P & CR 14 the question was whether the survivor of a same-sex relationship was entitled to succeed to a tenancy. The statute allowed succession by a person living with the tenant as his or her wife or husband The recorder said that there were a number of indicia which lead to an affirmative answer to the question whether two people were in a relationship of the necessary quality. They were:
“(a) Have the parties openly set up home together? (b) Is the relationship an emotional one of mutual lifetime commitment rather than simply one of convenience, friendship, companionship or the living together of lovers? (c) Is the relationship one which has been presented to the outside world openly and unequivocally so that society considers it to be of permanent intent—the words ‘till death us do part” being apposite? (d) Do the parties have a common life together, both domestically (in relation to the household) and externally (in relation to family and friends)?”
On appeal, Evans-Lombe J commented on those indicia as follows:
“Having regard to the authorities it does not seem to me, with respect, that the fact that question (a) can be answered in the affirmative is indicative of a “spousal” relationship. That answer could have been given in relation to students sharing lodgings. The recorder himself did not treat an affirmative answer to question (d) as being so indicative. I agree with him. Without a lifetime commitment at least at some point in the relationship there is no sufficient similarity to marriage. There are many ways in which a marriage relationship can be described but it seems to me that the test prescribed by the recorder at paragraph (b) subject to the qualification in paragraph (c), that the relationship must be openly and unequivocally displayed to the outside world, is an entirely adequate test and one which is consistent with the authorities.”
[9]Guidance has also been given by Neuberger J in Re Watson [1999] 1 FLR 878: the court should ask itself whether, in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife; but that, when considering that question, the multifarious nature of marital relationships should not be ignored.[10]There is also guidance in the judgment of Ormrod LJ in Adeoso (otherwise Ametepe) v Adeoso [1980] 1 WLR 1535 Section 1(e)[11]In the recent decision of the Court of Appeal in Baynes v Hedger [2009] EWCA Civ 374 the Chancellor cited with approval parts of the judgment of Stephenson LJ and Griffiths LJ in Jelley v Iliffe [1981] Fam 128 But I cannot, with respect, agree with him... that the bare fact of maintenance raises no presumption that responsibility for it has been assumed. I am of opinion that it generally does." Later he added:
“It may be that the presumption can be rebutted by circumstances including a disclaimer of any intention to maintain. But here there is, in my judgment, a distinction to be drawn between an intention to maintain during the lifetime of the giver who has something to offer and an intention to provide continuing support after death.”
Stephenson LJ concluded (p.138):
“Accordingly, I am of opinion that the court has to consider whether the deceased, otherwise than for valuable consideration (and irrespective of the existence of any contract), was in fact making a substantial contribution in money or money's worth towards the reasonable needs of the plaintiff, on a settled basis or arrangement which either was still in force immediately before the deceased's death or would have lasted until her death but for the approach of death and the consequent inability of either party to continue to carry out the arrangement.”
Griffiths LJ appears to have been of the like opinion. He stated that (p 141) “The difficulty I have is to know what significance to attach to the words "assumed responsibility for the maintenance of the applicant" in section 3 (4). Section 1 (1) (e ) appears to me to be aimed at giving relief to persons where the relationship to the deceased is such that it is highly unlikely that any formal arrangements will have been made between them. Obvious examples are the elderly but impoverished relative or friend who is taken into the deceased's household and given free board and lodging and treated as a member of the family or a man living with a woman out of wedlock but supporting her as he would a wife. In such circumstances I would not as a general rule expect to find any formal declaration of assumption of responsibility, but it cannot have been the intention that such cases should fail for want of some such formality. I read "assumed responsibility for" as being equivalent to "has undertaken" and not adding much to the fact of maintenance.”[12]Louise Lindop was the principal witness in support of her case. However she called a number of witnesses to corroborate the relationship between herself and Paul Hedley. These consisted of:[1]Michelle Wood – a senior dental nurse and a friend of both Louise Lindop and Paul Hedley who lived in his house on 2 occasions – between 1997 and 1998 and 2001 till the April 2002 when she moved to Bedford. She was in contact with both Louise Lindop and Paul Hedley between April 2002 and Paul Hedley’s death in December 2006. Louise Lindop and Paul Hedley visited her as a couple on a number of occasions in Bedford and she visited them 5 or 6 times a year when she visited Leeds. She would talk on the phone two or three times a month.[2]Elizabeth Martyn – a dental nurse – who worked with Paul Hedley for over 5 years. She was fully aware of the relationship. She gave evidence of Louise Lindop and Paul Hedley always arriving to work in his car together, of the purchase of a ring in Amsterdam, of her visits to the property at 55 Church Street.[3]Brian Lindop - Louise Lindop’s father – who gave evidence of the extent to which Louise Lindop remained at 142 Wrenthorpe Lane after 2002 and the extent to which she was living at 55 Church Street.[4]Richard Al-Egaily - Paul Hedley’s best friend and the godfather of his son – who visited Louise Lindop and Paul Hedley almost every weekend and also gave evidence of the arrangements at 55 Church Street. The executors called two witnesses :[1]Elizabeth Drury – a former partner of Paul Hedley and mother of his only son - Jay Hedley. Elizabeth Drury’s evidence was in relation to the contact arrangements for Jay Hedley. Elizabeth Drury accepted that there was a relationship between Louise Lindop and Paul Hedley but could offer no assistance about the living arrangements. She had no conversations with either of them.[2]Mark Huckerby – the former husband of Louise Lindop and father of their daughter - Robyn. He could not give any real evidence about their living arrangements. He did give evidence in relation to the contact arrangements for Robyn. In particular he suggested that from time to time he dropped her off at 142 Wrenthorpe Lane, the home of Louise Lindop’s father.[14]In addition I was invited to read a witness statement from Robyn. Much of that witness statement was devoted to criticisms of Louise Lindop. However in part Robyn stated she lived partly at 142 Wrenthorpe Lane and partly at 55 Church Street. The Facts 5.1. Paul Hedley[15]Paul Hedley was born on 17th July 1970. He was an associate dentist. He was the owner of 55 Church Street having bought it in 1996. He had a number of relationships before he met Louise Lindop including a relationship with Elizabeth Drury. Jay Hedley was born on 11th April 1999. 5.2. Louise Lindop[16]Louise Lindop was born in November 1969. She had been married to Mark Huckerby. The marriage ended in a bitter divorce. There was one child of the family – Robyn born on 3rd Feb 1995. Following the breakdown of the marriage Louise Lindop and Robyn went to live with Brian Lindop at 142 Wrenthorpe Lane.[17]Robyn initially went to school at a school near 142 Wrenthorpe Lane though in September 2005 she moved to Ossett High School 5.3. The relationship[18]According to Louise Lindop she met Paul Hedley in 2001 when they were both working in the same dental practice in Wakefield. Louise Lindop worked there part time.[19]The relationship started sometime after Christmas 2001 and in January 2002 she was asked to go on holiday with Paul Hedley to Thailand.[20]In July 2002 Paul Hedley asked Louise Lindop to live with him in his house at 55 Church Street, Ossett. Louise Lindop was scarred by the experience of the divorce and according to her it was a gradual move to his house. This was confirmed by Richard Al-Egaily.[21]There is a good deal of evidence relating to the life at 55 Church Street. All of the witnesses said that Louise Lindop and Paul Hedley were living together in effect as a couple. According to Richard Al-Egaily they redecorated the house, bought furniture together. Louise Lindop bought most of the food and did most of the cooking. They shared a bedroom. Louise Lindop had her clothes in the bedroom. They arranged weekends so that Jay Hedley and Robyn were together for week-ends.[22]Whilst it is correct that the friends who gave evidence on behalf of Louise Lindop could not vouch for all of her time they presented a consistent picture of Louise Lindop and Paul Hedley living together as a married couple from at the latest the end of 2003 until the date when Paul Hedley died in January 2007.[23]Brian Lindop confirmed that after Louise Lindop started living with Paul Hedley she did not live at 142 Wrenthorpe Lane. He accepted that from time to time Robyn was delivered back to 142 Wrenthorpe Lane after contact with Mark Huckerby. However he maintained that Robyn was not living at 142 Wrenthorpe Lane.[24]In November 2006 Robyn left her mother and went to live with her father. That change was subsequently confirmed by a Residence order in favour of Mark Huckerby[25]There is no oral evidence to contradict this. However the executors rely on a number of matters to refute Louise Lindop’s claim: 5.4. Documentary evidence relating to Louise Lindop living at 142 Wrenthorpe Lane[26]With one exception Louise Lindop kept 142 Wrenthorpe Lane as her postal address. Thus her bank statements, P60’s and other official documents were all sent to 142 Wrenthorpe Lane. She is shown on the electoral register for 1999 to 2008 at 142 Wrenthorpe Lane. Brian Lindop paid a full Council tax for 142 Wrenthorpe Lane and did not claim the discount available for single occupancy.[27]In one of the Court applications relating to Robyn in late 2006 Louise Lindop gave as her address as 142 Wrenthorpe Lane.[28]The documentary evidence was not all one way. Louise Lindop insured a Renault Megane that she alleged that Paul Hedley had given her. The insurance document gives her address as 55 Church Street.[29]In the Court order dated December 2002 relating to Christmas access Mark Huckerby was ordered to return Robyn to 55 Church Street.[30]In the application Mark Huckerby made for a residence order in November 2006 he gave Louise Lindop’s address as 55 Church Street, Ossett. When Louise Lindop gave 142 Wrenthorpe Lane as her address in her application Mark Huckerby instructed his solicitors to write to the Legal Services Commission a letter that included: We understand Louise Lindop is disclosing her address as her grandfather’s address and that she is residing there. However we understand that in fact, Louise Lindop is residing at 55 Church Street in Wakefield with her partner Paul Hedley who is a dentist. Our client is fully aware that Louise Lindop is residing permanently at 55 Church Street as contact always takes place via the property at 55 Church Street.[31]Louise Lindop was cross-examined at great length about the lack of documentary evidence and these documents. Her explanation was Changing my details was something I did not want to do because my husband had caused me a lot of hassle and a lot of grief. I did not want to do I wanted to keep that part of my ex husband as far away from that part of my life as I could.[32]She was asked about the address she gave in the application made to Court following Robyn’s move to her father. She accepted that it was wrong but said that she did not want Paul Hedley to be responsible for community funding. It was her responsibility.[33]She also said that another reason that she did not change the address was that she never got round to it. There was not a lot of mail. There was no difficulty getting it from her father.[34]Despite the cross-examination she maintained that she was at all times living with Paul Hedley.[35]Richard Al-Egaily was also asked about the explanation for Louise Lindop keeping The explanation was that Mrs Lindop wanted to keep some degree of separation. That was sufficient to think she had a degree of control Conclusions 6.1. Section 1(1A)[36]I am satisfied that Louise Lindop and Paul Hedley lived and were living in the same household for a period of at least 2 years (and probably for over 3 years) before Paul Hedley’s death in January 2007. I find as a fact that they were living under the same roof at 55 Church Street and that Louise Lindop was not living at 142 Wrenthorpe Lane during that period. I accept her evidence on the point despite the lack of documentary evidence. There is to my mind sufficient corroboration from the other evidence I heard including the evidence from Brian Lindop which I also accept.[37]This is not a case where there were two separate households and two properties. If I look at the criteria referred to by Potter LJ in the authority cited above there was a stable sexual relationship. Paul Hedley provided financial support in that he provided a roof over Louise Lindop’s head. I find that she did not contribute to the outgoings of the house. He also paid for holidays, and paid for clothes for her. He was earning much more than she was. They both looked after the 2 children together. It is plain from the corroborating evidence and the letter written to the Law Commission on behalf of Mark Huckerby that they were acknowledged as living together.[38]Thus the question remains as to whether Louise Lindop was living “as the wife of Paul Hedley” for this period. As set out above different judges have proposed different tests. Thus Ormrod LJ and Neuberger J have a relatively simple test whereas Lewison J and Evans Lombe J have the more stringent test set out above.[39]Mr Anderson says that the relationship fails the Lewison and Evans Lombe test of openness: That the relationship must be openly and unequivocally displayed to the outside world,[40]In support of this he relies on the electoral roll, the use by Louise Lindop of 142 Wrenthorpe Lane as her postal address. He makes the point that the outside world includes public authorities.[41]Whilst I see the force of this submission I cannot accept it. First it has to be remembered that my task is give effect to the statute. The statute simply requires that Louise Lindop and Paul Hedley be living as man and wife. The fact that Louise Lindop’s bank and other public bodies sent letters to 142 Wrenthorpe Lane seems to me to shed little light on whether she was living with Paul Hedley as man and wife.[42]I accept that electoral roll evidence is inconsistent with Louise Lindop’s case. However that is simply one piece of evidence which has to be weighed with all the other evidence. As I have noted the other evidence, including the letter written on the instructions of Mark Huckerby all points to Louise Lindop and Paul Hedley living openly together and displaying this to the outside world.[43]Mr Anderson also relies on Richard Al-Egaily explanation of why Louise Lindop did not change her address. He says this demonstrates that this was not a permanent relationship and thus not a relationship of “man and wife”. I cannot accept that argument either. As both Neuberger J and Lewison J pointed out marriages are multifarious. Furthermore It has to be remembered that a large number of marriages end in divorce. Indeed Louise Lindop had herself been subject to a bitter and scarring divorce. In those circumstances I see nothing inconsistent with Louise Lindop living with Paul Hedley as “man and wife” whilst retaining a different address either as security or in case the relationship breaks down.[44]In all the circumstances I am satisfied that Louise Lindop was living in the same household as the wife of Paul Hedley for the whole period of 2 years before he died on 30th January 2007. It follows that she is eligible to make a claim under section 1(1A) of the Act. 6.2. Section 1(1)(e)[45]I am also satisfied that Louise Lindop was being maintained at least in part by Paul Hedley immediately before his death. As already noted the test for maintenance is that prescribed by section 1(3). The question is whether Paul Hedley otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards the reasonable needs of that person.[46]As already noted Paul Hedley was making a substantial contribution towards Louise Lindop’s reasonable needs. He provided a roof over her head by allowing her to live in 55 Church Street; he paid the outgoings for 55 Church Street. He provided transport that enabled Louise Lindop to get to work. He paid for holidays; he paid for some of Louise Lindop’s clothes and made other gifts such as the ring.[47]Mr Anderson seeks to meet this argument by relying on the burden of proof. He starts by making the point that despite written requests Louise Lindop has not produced her bank statements. If the bank statements had been produced they might have established that Louise Lindop gave full consideration for living at 55 Church Street. Thus he submits Louise Lindop cannot establish on balance of probabilities that the contribution to her needs was not “for full valuable consideration”.[48]I do not accept this argument for a number of reasons. First there is Louise Lindop’s oral evidence that Paul Hedley paid for all the outgoings of 55 Church Street. Second there is the fact that Paul Hedley had substantially more money than Louise Lindop. He was a fully qualified dentist working full time in the dental practice. Thus it is inherently likely that he would have contributed substantially more towards the outgoings than Louise Lindop.[49]Mr Anderson’s suggestion that Louise Lindop gave full consideration is little more than speculation on his part. I can well see that Louise Lindop’s bank statements might be thought to be relevant to the enquiry. Equally Paul Hedley’s bank statements might be thought to be relevant. These would have been within the custody or power of the executors. Neither was produced. There was no application by either party for specific disclosure. Indeed, as Mr Grundy pointed out, in opposing the application for the adjournment of the trial Mr Anderson specifically asserted that the Defendants were ready for trial.[50]In those circumstances it seems to me that the Defendants cannot rely on the absence of disclosure to assert that Louise Lindop has not satisfied the burden of proof. Rather the court must do its best on the evidence before it.[51]That evidence is in any event in accordance with the overall likelihood of the situation.[52]In my view Louise Lindop has established that immediately before Paul Hedley’s death she was being partly maintained by him. She is accordingly eligible to make a claim under section 1(1)(e).