Dobson v Griffey [2018] EWHC 1117 (Ch)

[2018] EWHC 1117 (Ch)Case No C31BS274
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BRISTOL DISTRICT REGISTRY, Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 10/05/2018
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
Jacqueline Lisa DobsonClaimantMatthew John Fernall GriffeyDefendant
Harry Martin (instructed by Boodle Hatfield) for ClaimantRhys Taylor (instructed by Family Law in Partnership Ltd) for DefendantHearing Hearing dates: 24-26, 30 April 2018
Judgment ApprovedHHJ Paul Matthews :Introduction
[1]This is my judgment on the trial of the claim brought by the claimant for a share in the proceeds of sale of the property known as Ballhill Farm, near Okehampton in Devon (“the farm”). The claim is based in substance upon the doctrines of constructive trust and/or proprietary estoppel, said to arise out of the conduct of the parties in an intimate personal relationship formerly subsisting between them. It was started by claim form dated 4 October 2016 in the Chancery Division of the High Court at the Rolls Building in London, but was transferred to the Bristol District Registry by order of Master Teverson dated 9 November 2016. At the trial here before me in Bristol Harry Martin appeared for the claimant and Rhys Taylor appeared for the defendant.[2]I will have to deal with the facts in more detail later, but at this stage I can summarise the case in this way. The relationship between the parties began in October 2004. Both parties had been married and divorced before. By August 2006 the parties were living together in a rented property. In September 2006 they found the farm, and it was purchased in February 2007, in the sole name of the defendant and with the aid of a mortgage loan granted to the defendant alone. The relationship broke down in December 2011. Between those dates various works of renovation and improvement were carried out to the farm, first to the stables and other parts to be used as a livery business, and later to the farmhouse itself. The claimant finally moved out of the farm in 2012. The defendant put the farm on the market in 2012, but it did not sell. Thereafter the defendant paid for certain works to be done to the farm, notably rethatching the roof in 2016. He also made a planning application for change of use of a barn from agricultural to residential. He finally sold the farm to a third party in 2017, completing on 31 March.[3]The claimant’s case is that, before the property was bought, there was an agreement between them as to their respective rights in relation to it and that the claimant relied to her detriment on that agreement by carrying out some at least of the works of renovation and improvement. Alternatively, an agreement to similar effect is to be inferred from the course of dealing between them. She has a fallback position that she had an expectation of being able to live at the farm for the rest of her life. The defendant denies that there was any agreement, as alleged or at all, and also minimises the extent to which the claimant carried out or contributed to the works of renovation.

The function of the court

[4]Because this case arises in the wake of the breakup of the personal relationship between the parties, it is important to emphasise the limited function of the court. In the case of a divorce, or dissolution of a civil partnership, the court has extensive powers to allocate to either of the parties assets belonging to either or both of them, as the court thinks fit, taking into account the criteria set out in the legislation. In such circumstances, it does not matter very much which of the parties as between themselves owned the assets in question. As a result, there is generally no enquiry by the court into the strict legal property rights of each party. Instead there is an intense factual examination of all the circumstances in which the court’s discretion can or should be exercised. These will include what happened during the course of the relationship and its breakdown.[5]However, in the present case the parties were not married and the family law jurisdiction to allocate assets according to the statutory criteria simply does not apply. The fall-back in such a case is to the rules of property law. This is a common occurrence. For example, James v Thomas [2008] 1 FLR 1598 was another case of a broken intimate (but non-marital) relationship, where the claimant claimed a beneficial interest in a property of which the defendant was the sole registered proprietor, and in which she had lived with him. She had worked for some time in his business as an agricultural building and drainage contractor, doing heavy physical labour. Sir John Chadwick (with whom Smith and Wilson LJJ agreed) said of the claimant:
“38. … Her interest in the property (if any) must be determined by applying principles of law and equity which (however inadequate to meet the circumstances in which parties live together in the twenty-first century) must now be taken as well-established. Unless she can bring herself within those principles, her claim in the present case must fail.”
[6]The rules of property law, like those of family law, also provide for the allocation of available resources. However, they do not operate at all in the same way as the family law jurisdiction which I have referred to. Property rights have important effects on third parties, and also have an important role to play in a functioning market economy. For these reasons, they are inherently more stable than judicial discretion, and operate in predictable and well-known ways.[7]The matters which are important in considering the acquisition and the disposal of property rights are the methods and the formalities for the transfer of such rights between persons. These are comparatively few in number, and in some cases involve requirements as to publicity or notice to third parties. Moreover, and importantly, they are nearly all consensual, in the sense that a property owner will not generally lose an existing property right unless he or she expressly or impliedly agrees to do so.[8]It is important to notice that, unless it bears on the question of consent to transfer, what happened during the course of a personal relationship and its breakdown is not of itself relevant to the question of who (in property law terms) owns what at the end of it. So, during the course of the hearing of this claim, I have not been concerned with whether the behaviour of one or other party was justified or unjustified, reasonable or unreasonable. I have only been concerned with establishing the property rights of the parties.[9]Some forms of property right in English law, in particular those relating to the ownership of land, have highly formal and public methods of transfer, involving the making of deeds before witnesses and the registration of dispositions at HM Land Registry. But, in some circumstances, it is possible to get over the lack of compliance with such formality and publicity requirements. The present case, where there has been no compliance with such requirements in favour of the claimant, and accordingly she does not base her claim on any such strict rules, is argued by the claimant to be an example of that possibility.[10]Thus, in the present case, the rules of property law which are said to be relevant are those relating to common intention constructive trusts and proprietary estoppel. These rules (which I shall consider in more detail later on) provide for a method of creating or transferring rights which is both private and relatively informal. But nevertheless in each case they are still consensual, in that the owner of the property rights concerned must first manifest an intention to share the beneficial ownership with or transfer it to another person or persons. If there is such an intention manifested, then there must then be some further conduct in reliance which makes it unconscionable (in a special legal, rather than layman’s, sense) for the person manifesting that intention not to share or transfer the asset. That is the enquiry with which I have been concerned in the present case.

The parties’ cases

[11]The amended particulars of claim put the claimant’s case on these important points in this way:
“5A. In September 2005 the claimant and the defendant spent a few days travelling around Devon and Cornwall looking at suitable areas and properties on the market. One evening at the Rock Inn pub in Georgeham, Devon, they discussed their plans for purchasing a property. They discussed that they would be best placed to take out a mortgage if the property and the mortgage were placed in the defendant’s sole name. They also agreed that they would purchase a property requiring renovation work, which would be done or overseen by the claimant. Upon the sale of the property they would split the profit or increase in value equally. [ … ] 7A. On 24th of August 2006 the claimant transferred £10,000 to the defendant. The defendant told the claimant that she would get this money back once they had purchased their new property and that this would be ‘down as the claimant’s money’. 8. In September 2006 the claimant and the defendant visited the property with a view to purchasing it together. The claimant expressed doubts that they could afford to purchase the property and that it required substantial renovation the defendant insisted that they could afford it and that the claimant could run a livery yard from it and they could set up a holiday let in the annexe. The claimant and the defendant saw the purchase of the property as the opportunity to buy a house together that they would live in together, for ever. They therefore decided to purchase the property. The claimant and the defendant purchased the property on the express understanding that it would be their home for the rest of their lives, and that it would provide for them in their old age and retirement. In particular, the claimant and the defendant discussed eventually selling the property and moving somewhere smaller with no mortgage. The defendant also told the claimant that should he die, the property would be hers. It was in this context, and on the understanding that they would split the profits on any sale, that the claimant agreed to the purchase of the property. ”
[12]The amended defence (which the defendant’s counsel at trial, Mr Taylor, did not draft) says in part. “3A. Paragraph 5A is denied. The defendant cannot recall the parties spending a few days travelling round Devon and Cornwall in September 2005. The defendant is unable to admit or deny but requires the claimant to prove the same. The defendant cannot recall the parties spending the evening at the Rock Inn pub during September 2005. The defendant is unable to admit or deny but requires the claimant to prove the same. It is denied that there was any discussion between the parties, as alleged or at all, relating to the defendant taking the property and mortgage in his sole name. It is accepted that the defendant was considering a property in need of renovation, but it is denied that there was discussion, as alleged or at all, that the claimant would do or oversee the works. It is further denied that there was ever any agreement that the parties would split the profit or increase in value equally. [ … ] 5A. Whilst it is admitted that the claimant transferred £10,000 to the defendant on 24 August 2006, on the same date the defendant paid £10,000 to Riders Saddlery Ltd, a company wholly-owned by the claimant. The parties considered the sum paid by the claimant as repayment for the £10,000 which the defendant transferred to Riders Saddlery Ltd. There was no conversation, as alleged or at all, that the claimant would get her money back once the property was purchased or that this ‘would be down as the claimant’s money’. If, which is denied, such conversation did take place and the £10,000 was found not to have been repaid, the nature of the transaction was in the nature of a loan rather than a direct contribution to the purchase price. 6. Paragraph 8 of the particulars of claim is denied save that it is admitted the parties visited the property together in or about September 2006 and that the defendant asked the claimant if she would like to run a livery at the property and the claimant said yes. The defendant avers that he found the property himself and bought it as an investment albeit as a home as well. The defendant’s plan, well known to the claimant was to obtain an interest only mortgage, spend his own funds on improving the property and to sell it when house prices rose. The defendant did not therefore view the property as a home for life nor is he aware that the claimant adopted that view. There was no common understanding that the parties would split any profits on sale or that any such agreement was necessary for the claimant to agree to allow the defendant to purchase the property. 7. In any event the assertion, which is denied, that there was an ‘express understanding’ that the property would be the parties home for the rest of their lives is embarrassing for lack of particularity. Either, which is denied, there was an express agreement or which is also denied, there was an understanding. 8. If, which is not admitted, the defendant told the claimant that should he die the property would be hers, such provision would only have been made in the event the relationship continued and not in the event the relationship, as is the case, has come to an end. The defendant will rely on James v Thomas [2007] EWCA Civ 1212 in this regard.”[13]The amended reply says in part:
“4. Paragraphs 3 and 3A are noted. [ … ] 6A. The first two sentences of paragraph 5A are admitted. The remainder of that paragraph is denied. The parties did discuss £10,000 as being a figure that the claimant had contributed. In an email to the claimant on 16 January 2012 (timed at 9:37 PM) the defendant acknowledged the claimant’s investment of £10,000. The claimant initially assumed that the payment on 24th of August 2006 represented this £10,000. She now accepts that this assumption was incorrect. 7. Paragraph 6 is noted. 8. As to paragraph 7, the express understanding arose from the conversations between the parties as detailed in paragraph 8 of the particulars of claim. 9. As to paragraph 8: a. The defendant is required either to admit or deny the allegation that he told the claimant that should he die the property would be hers, or to explain why he is unable to admit or deny the allegation. b. The claimant will make submissions as to the applicable case law at the appropriate time.” a. The defendant is required either to admit or deny the allegation that he told the claimant that should he die the property would be hers, or to explain why he is unable to admit or deny the allegation. b. The claimant will make submissions as to the applicable case law at the appropriate time.”
[14]Subsequently, the claimant served a notice to admit facts dated 14 March 2017, to which the defendant responded on 28 March 2017. The first two requests are material to the extracts from the statements of case set out above. They are as follows.[15]Request (1) refers to paragraph 7 of the particulars of claim and paragraph 5 of the defence, and continues:
“It is alleged that the parties lived together as if they were, or in the same way as, a husband and wife. It is not alleged that the parties were in fact married. The defendant is required to respond to the allegation made.”
The defendant’s response was:
“It is not admitted that the parties lived together as ‘man and wife.’ The claimant is put to strict proof of exactly what she means by this. It is the defendant’s case that had the parties lived together as man and wife rather than as a cohabiting couple, the defendant may well have organised the finances and property ownership differently.”
[16]Request (2) refers to paragraph 8 of the particulars of claim and paragraph 8 of the defence, and continues as follows:
“The defendant is required either to admit or deny the allegation that he told the claimant that should he die the property would be hers, or to explain why he is unable to admit or deny the allegation.”
The defendant’s response (again, not drafted by Mr Taylor) was:
“The defendant denies this. In any event the defendant relies on James v Thomas [2007] EWCA Civ 1212 and Windeler v Whitehall [1990] 2 FLR 505 in respect of the Will.”
[17]That is what the parties allege against each other in the present case. But allegations are not enough. At the trial they must then adduce evidence to persuade the court that what they allege happened actually did happen. The court then has to decide whether the allegations, or any of them, are true, and if so which.

The Law

[18]There was little disagreement between the parties on the law. The following summary will suffice for present purposes. Where, as here, land (including buildings) is vested in one person as legal owner, and another person not being the legal owner claims an interest in that land, the claimant must show that the defendant holds the land on trust for the claimant and the defendant in the shares claimed, or (to the extent that this is different) at least is under an obligation to transfer such an interest to the claimant: see eg per Lady Hale in Stack v Dowden [2007] 2 AC 432, [56].[19]Because the subject matter of the trust is land, this cannot be done merely by showing an oral declaration of trust (however informally expressed) by the defendant, for signed writing is needed: see the Law of Property Act 1925, s 53(1)(b). However, no writing is needed if the trust is imposed by law, whether by virtue of (for example) the doctrine of common intention constructive trust, or the doctrine of proprietary estoppel (to the extent that this is different): see the Law of Property Act 1925, s 53(2), disapplying s 53(1)(b) to cases of implied, resulting and constructive trusts.

Common intention constructive trust

[20]For a common intention constructive trust to arise, the parties must have had a common intention to share the property beneficially, upon the faith of which the claimant then acts in reliance to her detriment. The common intention by itself is not enough for the constructive trust to arise. Otherwise s 53(1)(b) of the 1925 Act would be meaningless. It is the detrimental reliance that makes it unconscionable for the defendant landowner to resile from their otherwise unenforceable agreement.[21]But the common intention of the parties may be either expressed between them, as when they have a discussion and reach a conclusion, or it may be inferred from the whole course of conduct between them: see per Lord Bridge in Lloyds Bank v Rosset [1991] 1 AC 107, 132. However, even when it is inferred, it still represents the court’s conclusion as to what the parties actually intended: see eg per Lady Hale in Stack v Dowden [2007] 2 AC 432, [61]. The court has no power to impute an agreement or common intention to the parties based on what it considers would have been fair or reasonable. I add only that, when the court is considering what the parties actually intended, the court looks at the objective phenomena available for consideration, and not into their minds themselves. The assessment is thus an objective rather than a subjective one: see per Lord Walker and Lady Hale in Jones v Kernott [2012] 1 AC 776, [34].[22]Once the common intention is established, the question is whether the conduct of the claimant in relying on the common intention to her detriment makes it unconscionable for the defendant to renege on that agreement: see Culliford v Thorpe [2018] EWHC 426 (Ch), [76]. Nowadays there is no doubt that making physical improvements to the land which add significant value to the property can amount to such conduct: see per Lords Hope, Walker and Neuberger in Stack v Dowden [2007] 2 AC 432, [12], [36], [139].[23]If such detrimental reliance is established, then the next stage is the quantification of the claimant’s share. If that is established by the common intention itself, then there is no need for the court to attempt to quantify it. But in cases where it is clear that the parties intended that the claimant should have a share, but did not quantify it themselves, the court must do so. It does this, once again, by having regard to the whole course of conduct between the parties. But this time, because the parties have not reached an agreement, it is necessary for the court to consider what is fair. Here, at this final stage, the court imputes to the parties that which they did not agree: see per Lord Walker and Lady Hale in Jones v Kernott [2012] 1 AC 776, [51]-[52].

Proprietary estoppel

[24]The doctrine of proprietary estoppel operates in a similar way. First of all the defendant landowner by his words or conduct makes an assurance to or creates an expectation in the claimant. It need not be the promise of a specific right or interest, as long as it is clear enough in all the circumstances: see per Lord Walker in Thorner v Major [2009] 1 WLR 776, [29]. At this stage this is not an enforceable obligation. It does not comply with the relevant formalities rules. But, assuming that it is intended to be relied upon by the claimant, and it is relied upon, to her detriment, such that it becomes unconscionable for the defendant to resile from it, an equity is thereby raised against the defendant. The equity thus created is an interest in the property which does not need to comply with any relevant formalities rules, because it operates by way of imposing a trust on the defendant to satisfy it, and constructive trusts are outside the scope of those rules: see the Law of Property Act 1925, s 53(2). The claimant is then entitled to an appropriate remedy to satisfy the equity. This may be an order for the defendant to perform the promise itself. Or it may be something else, perhaps the payment of money by the defendant to the claimant.[25]In the present case, the primary claim made by the claimant is to a one half share in the profit made on the sale of the farm. The defendant said that this was more likely to be satisfied through the doctrine of proprietary estoppel than through that of the common intention constructive trust. Given the common root from which both doctrines spring, I am not sure that it makes a lot of difference, and indeed that was the claimant’s position in closing. In my judgment, the promise by a property owner to another of a share in the future profits of the sale of the property, if enforceable, amounts to the grant of an equitable interest in that property, even though it only crystallises on the sale of the property. In my judgment the substantive effect is very little different, if at all, from the grant of an immediate share in the equitable interest of the property subject to the repayment of the mortgage, taking account of any improvements to the property and the other expenses of realising the sale.

Decision-making in civil cases

[26]I must shortly consider the evidence adduced in this case in support of the parties’ respective cases. However, before I do so, I will say something shortly about how judges in civil cases decide cases of this kind. The lawyers involved will know all this. But the parties themselves may not. First of all, an obvious point. Judges are not superhuman, and do not possess supernatural powers. They listen to the evidence and other materials presented to them and the arguments made, and then make up their minds. However, they decide according to certain important procedural rules. I will mention three of them here.[27]The first is the burden of proof. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. As a general rule in English law, the person who asserts something has to prove it: Robins v National Trust Co Ltd [1927] AC 515, 520. On most of the issues in this case, they are alleged by the claimant. So she bears the burden of proving them. The significance of who bears the burden of proof in civil litigation is this. If the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then it did not happen. The system of fact-finding is binary. It is either one thing or the other. There is no room for maybe: see Re B (Children) [2009] 1 AC 11, [2], per Lord Hoffmann.[28]However, a judge will consider the evidence first, and only resort to the burden of proof where he or she is unable to resolve an issue of fact or facts after having unsuccessfully attempted to do so by examination and evaluation of the evidence. In such a case, there is nothing left but to conclude that the claimant has not proved his or her case: Verlander v Devon Waste Management & Anr [2007] EWCA Civ 835, [19], [24].[29]Secondly, the standard of proof in a civil case differs significantly from that in a criminal case. In a civil case it is the balance of probabilities. This means that, if the judge considers that a thing is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge considers that the likelihood of a thing’s having happened does not exceed 50%, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this.[30]Thirdly, a court must give reasons for its decisions: Bassano v Battista [2007] EWCA Civ 370. That is the primary purpose of this written judgment. But the judge’s reasons must be read on the assumption that the judge knew how to perform the judicial functions and the matters which had to be taken into account: Piglowska v Piglowska [1999] 1 WLR 1360, 1372. And, although judges must take into consideration all the evidence presented and weigh all the arguments made, they are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered: Weymont v Place [2015] EWCA Civ 289, [6]. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge's overall evaluation: Biogen Inc v Medeva plc [1997] RPC 1, 45. What follows must be read in that light.

Witnesses

[31]I now turn to consider the evidence in this case. The following witnesses gave evidence before me: the claimant, Jacqueline Dobson, Clare Colton, Hannah Way, Davina Campbell, Laura Aubry, Steve Compton, Matthew Griffey the defendant, and Neal Westlake. I give my impressions of them here.[32]The claimant is an intelligent and well educated person, astute and quick-witted. She answered questions in a manner which was firm and knowledgeable, but (unfortunately) also sometimes pedantic and even to some extent aggressive. She argued with counsel about the ways in which the ownership of horses could be demonstrated. She was at pains to point out that her career and experience had been in marketing at a large bank, and that she knew all about banking, including all aspects of mortgage finance. She had an excellent recall of small, detailed points which were in her favour, even correcting insignificant errors of dates and so on in counsel’s questions to her. She was less good in her recall where questions suggested answers that were not obviously in her favour. In those cases, she would often take off at a tangent or answer a different question entirely. It was sometimes difficult for counsel to get her to answer the question which he had asked. It was also difficult sometimes to get her to stop talking at all. It was clear to me that she was utterly convinced that she was in the right in her dispute with the defendant, and that she wanted the last word in every debate. That does not, of course, mean that she is wrong. Far from it. But it did colour her evidence to an unfortunate degree.[33]More seriously, I am afraid, she was prone to exaggeration in the answers that she gave. On a number of occasions she would respond to a question with an immediate, unconditional positive or negative, which was then challenged and eventually accepted to go too far. So, for example, if she was asked whether the defendant did some particular work on the farm she would deny it outright, but yet eventually be constrained by further questions to accept that he might have done such a thing on some occasions, but rarely, or even that she did not really know. She had a very high opinion of her own abilities. For example, she told me, quite seriously, “I am very, very capable of doing most building work”. On the other hand, she had a low opinion of the defendant’s abilities.[34]The claimant also insisted that language bore the meanings she ascribed to it, rather than the meanings which most people would give. For example, although she had run a livery for horse owners on a small property in Monmouthshirebefore meeting the defendant, had three (or four) horses of her own and then ran the livery stable at the farm, she insisted in response to counsel’s questions, that she was not a “horsey” person. She insisted it was simply her ‘hobby’. For another example, in her witness statement she used the phrase “mortgage-free”. But in questioning it became apparent that here this did not mean that there was no mortgage, but rather that it was possible to earn enough money to service an interest-only mortgage. Taking everything into account, I found it difficult to accept some of her evidence on crucial points, except to the extent that it was corroborated by the documents or by an independent source.[35]Clare Colton is a senior social worker, who had both professional and personal experience of relationship breakdown. She was a customer of the livery stable, and became a good friend to both claimant and defendant. She was quiet, calm and business-like. She gave her evidence in a careful and transparent way, accepting correction with no difficulty where it was appropriate. Cross-examination made no impression on her. However, it was clear that her sympathies lay with the claimant. Despite that, I have no doubt that she was telling the truth as she recalled it. The only question in my mind is whether she was recalling things that had happened, rather than things her mind told her happened, or allowed her to recall having happened. Some things she said I found it difficult to accept.[36]Hannah Way was a very quiet and diffident witness. She was a customer of the livery stable. Her evidence was more limited than that of Mrs Colton, but she too was unshaken by questioning, and again I have no doubt that she was telling the truth as she recalled it.[37]Davina Campbell was a more open and frank witness, engaging fully with the cross-examination. But she was nonetheless careful in what she said, and did not go further than she considered that she knew. She too became a friend of the claimant. Like Mrs Colton, it was clear where her sympathies lay. But there was a stronger element in her demeanour and in her evidence than in those of Mrs Colton of wanting to assist the claimant in her claim. Notwithstanding that, however, I do not think that she told me anything but the truth as she remembered it. But, as with Mrs Colton, there was a question in my mind as to exactly what she was remembering, and there were a few things that I found hard to accept.[38]Laura Aubry was another customer of the livery stable. She was quiet and clear in her evidence, which was more limited in its scope than that of Mrs Colton and Mrs Campbell. Cross-examination made no impression on her. I am sure that she was telling me truthfully what she remembered.[39]Steve Compton is a builder. He was affable and straightforward in his evidence. He answered easily, with no hesitation. I accept what he said, so far as it went.[40]Matthew Griffey, the defendant, was a quietly spoken, rather reticent witness. He listened carefully before answering questions, thought about the answers, and was careful to limit his evidence to what he could actually be sure of. This caused him frequently to say simply that he could not say whether a thing had happened or not, even though that would mean that there was positive evidence from the claimant’s side against his case which went effectively unchallenged. He was happy to agree a number of points put to him by counsel although as he said he had no recollection. He was polite, gave way easily, and accepted correction without demur. His evidence was clear and transparent.[41]The only time he became really animated was when he was telling me how he could not understand how the claimant’s witnesses could have failed to see him working on the farm when they visited it. I observed him closely. His evidence had that naïve spontaneity which gives the ring of truth, and, where he expressed a definite view that a thing had or had not happened, as opposed to just accepting the suggestion in a cross-examination, I believe it to be true. Where there is a direct clash of evidence between the claimant and the defendant, unresolved by reference to documents, I prefer the account of the defendant.[42]Neal Westlake is now retired. He was an elderly, sometimes rather literal and sometimes tangential witness. He gave his evidence slowly and carefully, and was not shaken in cross-examination. His evidence was limited, but I see no reason to doubt its truth. In addition to the witness statement prepared for these proceedings by the defendant solicitors, there was another, handwritten witness statement from Mr Westlake in the bundle. In evidence before me he confirmed that the contents of this further statement were true.[43]I also admitted a short witness statement from Jeremy Griffey, the defendant’s brother. But this statement was not challenged, and therefore he was not cross-examined before me.

Facts found

[44]On the basis of the evidence and other material before me, I find the following facts. The relationship between the parties began in October 2004. At that time the claimant was divorced, and aged about 38 years. She was living rent free in a house in the village of St Briavells, not far from Chepstow, on the English side of the border with Wales. The house belonged to her parents. At that time the defendant, also divorced, was aged about 40 years. He had his own house in Clifton, Bristol. The relationship progressed and the parties saw each other frequently, spending time in each other’s homes at weekends. However, they did not move in together until July or August 2006, when the defendant took a lease of a house called East Down Farm, near Okehampton. This was a substantial property with stabling for the claimant’s horses. The defendant sold his house in Clifton in late July 2006 and, although the date was not in evidence, it appears that the house in which the claimant was living was sold at about the same time. It appears that neither property was put on the market until spring 2006. In September 2006 the parties saw Ball Hill Farm (“the farm”).[45]The claimant says that the parties were discussing the possibility of living together, what sort of property they might live in and, if they did, how it could be financed as early as 2005. She refers to a specific conversation and discussion which she says took place between them at the Rock Inn at Georgeham in Devon, where they had a meal in September 2005. The defendant however says that they did not discuss living together until 2006. It was only then that they put their respective homes on the market and that he consulted a mortgage broker in order to find out how much he could afford to borrow in order to purchase a property in which they could live together. It was only after that that they could begin househunting. He could not recall any such meal or discussion in 2005.[46]As I explain below, I accept the defendant’s version of events about this. In my judgment, to the extent that there were discussions between the parties before 2006 about moving in together and what sort of property they might live in, these were hypothetical and of little significance, except as a means of comparing aspirations and exploring each other’s willingness to share their lives together. I find that there were no serious discussions about moving in together or purchase of a property together until well into 2006, when they decided to put their homes on the market and look for a property to live in together, either temporarily until a permanent property was found, or permanently, if they found the right property sooner.[47]The question whether there was indeed a discussion between the parties at the Rock Inn in September 2005, and, if so, what were its terms, is of considerable importance to this claim. There are a number of features about this allegation which are unusual. The first is that it was put forward as an amendment to the statements of case quite late in the day. The claim itself was issued in 2016, some 4 years after the parties’ relationship had broken down, and the claimant had left the farm. It was based on events which went back to 2004, when the parties began their relationship.[48]A further point is that the claimant’s account of this discussion, contained in paragraphs 15 and 16 of her first witness statement, made as a “comprehensive narrative of events” after working on it for several weeks with her solicitors, is not reflected at all in the contemporaneous email correspondence between the parties, of which there is a considerable amount, on and after the breakdown of their relationship, when they were considering their respective positions, particularly in relation to the farm. Nor is it referred to, much less reflected, in the letter before action written by her solicitors to the defendant. She insisted that the words “home for life” were used in the discussion and agreement at the pub, yet the words “for life” are not found in that detailed witness statement.[49]I also note that, despite the importance of the alleged agreement to the claimant, she did not note it anywhere contemporaneously, for example in a diary or in any email or text to a third party. If this agreement was to be the guiding principle of her relationship with the defendant, on which she would rely acting to her detriment in the future, I ask myself rhetorically why it is not recorded anywhere.[50]Another difficulty is that this agreement is said to have been made in September 2005, but the property which was ultimately acquired was not even seen until September 2006, and not purchased until February 2007. The claimant’s evidence was that she and the defendant were househunting in late 2005, and she refers to a number of properties which she says they looked at then. This evidence is challenged by the defendant, who says they began househunting in 2006, after putting their own properties on the market, and after the defendant had spoken to his mortgage broker to find out what he could afford and also registering with house agents. For the reasons already given, I prefer the defendant’s evidence upon this point.[51]Another point is that, in responding to questions at trial, the claimant said for the first time that the discussion took place at the front of the pub, sitting on wooden benches at tables. This detail had not previously been referred to in any of her witness statements. Although the trial bundle contains a great many bank statements there is no evidence in any of them of a meal at the Rock Inn in September 2005. Indeed, there is no evidence in them to show that the defendant was travelling in Devon and Cornwall for a few days at that time. There are only two entries for transactions at pubs: one for The George Inn on Friday, 19 August 2005 in the sum of £10.65, and the other at Ye Old Watling on Friday, 9 September 2005 in the sum of £35. It was not in evidence, but I am aware from my own knowledge (and I am sure I can take judicial notice) that these are the names of two well-known London pubs, the former in Southwark and the latter in Watling Street off Cheapside in the City, where the defendant was working at the time. Unfortunately, no other identifying detail is given.[52]I accept that there will be other pubs in England with the same names, but in any event the sums involved suggest drinks rather than meals. I accept also that a meal at the Rock Inn could have been paid for in cash, or by credit card. It appears that the defendant did have a credit card at that time from MBNA bank whose statements have not been disclosed in this claim. I have not the material to enable me to go into why this is so, and I have to make the most of what I have. But it is not for the defendant to prove a negative here. The burden lies on the claimant, as I have said, to show (as she alleges) that they spent several days in September 2005 touring Devon and Cornwall and had a meal at the Rock Inn at this time.[53]The particulars of claim say that it was agreed between the parties that the property would belong to the claimant in the event of the defendant’s death. In answer to questions at trial, the claimant said that this was indeed agreed at the discussion at the pub, but that it was not included in her witness statement. She said that it was simply a small thing that appeared to have been missed. In my judgment, an agreement about what should happen to the beneficial ownership of a property which had not yet even been found or seen, much less purchased, in the event of the death of one of the parties, is not a small thing at all. In my judgment it would be extraordinary if the parties’ discussion had covered such a subject at all, and even more extraordinary if they had reached agreement on the matter by which both of them agreed to be bound. I find that there was no such agreement.[54]Finally, so it is not forgotten, I must specifically mention the evidence of Clare Colton, to the effect that she had had a conversation with the claimant, sitting in her kitchen at the farm and having coffee with her, before the relationship with the defendant had broken down, in which the claimant had assured her that the defendant had promised a half of any profit made on the property. I accept that this discussion took place. But I consider that the claimant’s bald assurance to Clare Colton was not referable to any discussion at the Rock Inn. Instead, it is the claimant’s rationalisation of everything that had gone before. In effect, she had persuaded herself that the defendant had given her an assurance. On the other side, the defendant was adamant (and unshaken) in cross examination that he had never made the agreement alleged by the claimant. In agreeing to live together with the claimant he was not entering a prenuptial arrangement. He was in a relationship and wanted to have children with the claimant.[55]As stated above, the parties saw the farm in September 2006. Subsequently both the claimant’s and the defendant’s parents saw it too, though whether before or after the decision to buy was made or the offer accepted I do not know. The defendant, considering that the farm fitted his criteria, although after consulting the claimant, decided to buy it. I find that, legally speaking at least, the decision was that of the defendant alone, rather than a joint decision. (The claimant in an email to the defendant dated 25 April 2012 indeed reproached the defendant for exactly that.) The financial resources being committed were those of the defendant. The claimant did not contribute to the purchase price and had no liability for the mortgage. At the same time, the defendant was purchasing the farm as a home for both of them, and therefore, unless it had pleased the claimant, the defendant would not have made the decision to buy it. The sale was agreed in principle by 23 September 2006. The estate agent’s memorandum of sale of that date shows the purchaser as both parties, rather than the defendant alone. I find that that was an error on the part of the estate agents. The agreed purchase price was stated to be £680,000.[56]The defendant then obtained a mortgage offer, dated 25 October 2006 under which he would be lent £500,000, but this was subject to survey. The survey was commissioned, and a report dated 2 November 2006 obtained. This showed that there were significant works of repair that needed to be carried out, the principal of which were costed at at least £65,000. But the report also said that the purchaser should prudently budget for £100,000 to be spent on the property. Given what the defendant had received from the sale of his Bristol property, he could afford to buy the property on the basis of a loan of £500,000, and still have £100,000 to spend on repair and renovation work. Nevertheless, he sought to renegotiate the price, and it was reduced to £660,000, as shown in a revised sale memorandum of 29 November 2006 (which still showed the purchaser to be both parties instead of the defendant alone: another error). In the light of the survey report a revised mortgage offer, slightly lower than the previous one, was received dated 13 December 2006. The defendant decided to go ahead.[57]As already set out above, the claimant says that the purchase of the property was made on the express understanding that it would be their home for the rest of their lives and that it would provide for them in their retirement. She also says that the defendant told her that in the event of his death the property would be hers. It was only on this basis, she says, that the claimant agreed to the purchase of the farm. But I have already found that the decision to buy the farm was the defendant’s alone. The claimant was not contributing to the purchase price or to the mortgage. Her case (in summary form) is that she was to contribute her business and building experience and her labour. I do not accept that there was any such bargain or agreement. The defendant denies having made such a bargain or agreement, and I accept his evidence on this point. There is nothing in the contemporaneous evidence to support it, and very little in the witness statements. Even the claimant’s own witness statements do not say that there was any express understanding that the farm would be their home for the rest of their lives or that in the event of the defendant’s death it would belong to the claimant.[58]As to the idea that it would be a home for life, I have already dealt above with the suggestion that such an agreement was come to at the Rock Inn in September 2005. The most that the witness statements say is that the parties were hoping to sell the farm at a profit in due course and use the proceeds to downsize and live elsewhere, or alternatively to make enough income out of the livery yard and the holiday lets to cover the mortgage expenses. In my judgment these were not any kind of quasi-commercial agreement. At most, they were alternative future scenarios to which the parties might aspire.[59]I do accept that the claimant ultimately had some kind of expectation that she could remain at the farm for as long she wished. I also accept that the defendant was aware of that expectation, although he considered that it was based on their remaining together, perhaps with children. However, in my judgment this expectation did not spring from any assurance or other conduct of the defendant. It arose instead from the claimant’s belief that they were going to make a home out of the farm and have children and live there happily ever after. I will have to return to the legal consequences of this later.[60]One small point with which I must deal now however is that the defendant accepts that on the estate agent’s particulars of sale he had written the words “postpone rights”. There is no evidence as to the point in time at which these words were written. But it is clear that they must refer to a form which would have been required by the defendant’s mortgagee to be signed by the claimant agreeing to postpone to its mortgage any rights which she might have in the property. This is standard conveyancing practice in a case involving the purchase by a person or persons with the aid of a mortgage in relation to any other person not being a co-purchaser who is intended to be in occupation of the property.[61]The claimant argued that this showed that the defendant accepted that the claimant had some share in the beneficial ownership of the property or some other rights. In my judgment it shows nothing of the kind. The mortgagee does not care tuppence whether the third party has any rights or not. It simply wants to be sure that any rights which exist are postponed to its own interest. If it does not get this document signed, the mortgage will not go ahead and therefore neither will the purchase. Self-evidently, therefore, the defendant was obliged to deal with this point, and obtain the claimant’s signature to the document, which no doubt he did. It does not amount in any way, shape or form to an acknowledgement by the defendant of rights in the property belonging to the claimant. There is nothing in this point.[62]As I have said, the purchase completed in February 2007, and the parties moved in. In the meantime, an existing company called Schoolgate Limited, of which the defendant was sole director and sole beneficial owner of all the shares, changed its name to Ballhill Equestrian Ltd. It was intended that this company should take on the equestrian activities (mainly the livery stable yard) at the farm. The claimant immediately set about doing work to facilitate the operation of a livery yard at the farm.[63]There is no doubt that the claimant did significant work in order to make the livery yard usable and indeed attractive to livery customers. This included work to the stable yard kitchen and WC, turning the so-called “dog room” into a feed room for the front stable yard, mending fences and gates, updating units in the stables, and bringing each of the stables into a good state of repair, removing rubbish, installing a tack room, repairing water drinkers, installing a horse shower, renovating the bullpen and so on. In relation to a lot of this work, however, the claimant had professional assistance which was paid for by the defendant or his company. Materials needed for this work were similarly paid for.[64]Undoubtedly the claimant made a real contribution by her labour and her supervision, as well as her experience of operating livery stables previously. However, she exaggerated the contribution that she had made. Some of the matters which she claimed as improvements (such as creating gallops) were in truth no more than maintenance such as anyone involved with a property like the farm would do, such as cutting grass, removing horse manure and rubbish and generally clearing the fields. She also arranged for and supervised work by other professionals. But I find that the defendant also did a lot of this work, and paid for the professionals to do the work which they did.[65]In 2008 the parties decided to create the holiday let that they had intended in the Annex to the farmhouse. Again the claimant contributed her labour to this work, although a lot of the work was done by other professionals. The defendant paid the costs for new materials and equipment to be installed. After the Annex was opened in June 2009, the claimant was involved in running it, as I say later. However, the lettings were found by a letting company.[66]From 2008 onwards, the claimant was also involved in improvements to the farmhouse itself. This included some work in the kitchen, a lot of painting and repainting of woodwork, clearing gutters and drains creating various gardens around the outside of the house, resealing the roof of the annex and so on. However, the big renovations carried out to the farmhouse did not begin until after the defendant had got a job in South Africa, which occurred in September 2010. I will come back to these later.[67]An important but non-controversial question of fact concerned the defendant’s work commitments which took him away from Devon. From June 2005 to February 2007 the defendant had a contract with the City of London Police which meant that he spent Monday to Friday in London, and was only able to spend the weekends in the West Country. In February 2007 the defendant agreed with the City of London Police to reduce his contract to 3 days a week (Monday to Wednesday) so that he could take up a contract with the Devon and Cornwall Constabulary for the remaining 2 days a week. So from February to April 2007 the defendant spent 4 days a week in Devon (of which 2 days a week in Exeter at work) and 3 in London.[68]The contract with Devon and Cornwall Constabulary came to an end in April 2007, and so from then until February 2008 the defendant was working 3 days a week in London, but for the remaining 4 days a week he was at home in Devon. In February 2008 the defendant secured a further contract with Devon and Cornwall Constabulary for 2 days a week. This lasted until June 2008. During this time he therefore continued to live at home in Devon for 4 days a week (including 2 days in Exeter at work) and spent 3 days a week working in London. In June 2008 both contracts came to an end.[69]In the 3 months from July to September 2008 the defendant lived at his home in Devon, effectively unemployed, except for 2 short periods of 2 weeks each, when he had short contracts in London (July) and Dublin (September). In October 2008 the defendant obtained a full-time job with a company contracted to Devon and Cornwall Constabulary, and so lived in Devon 7 days a week whilst working in Exeter for 5 of them. Then, in September 2010, he obtained a lucrative contract working in South Africa which continued until Christmas 2011. During that time he came home for a long weekend once a month, but was otherwise absent from the farm. So the defendant was living in Devon for 4 days a week from the time of the purchase in February 2007 until June 2008. From July 2008 to September 2010 the defendant was living in Devon full-time, except for two periods of two weeks when he was providing cover elsewhere.[70]More controversial, perhaps, is how far the defendant carried out or contributed to the work which was done to create the livery stable, to improve the land generally and also the farmhouse. The claimant herself accepts in her witness statement (at [21]) that the defendant did contribute to the work done. But she sought to minimise it. I do not think that this is either accurate or fair. The defendant told me in evidence that when he was at the farm he did not sit about in the house all day whilst the claimant was out working on the property. On the contrary, within the limits imposed by his employment away from home, he played a full part in looking after and maintaining the farm, and in improving it. I accept this evidence. I also accept that, for whatever reason (probably just the way that the witnesses remember the situation, rather than anything sinister) the evidence given by the witnesses called on behalf of the claimant appeared to have “airbrushed” the defendant from the picture altogether, when in fact he was present a lot of the time at the farm and that when he was at the farm he did take part in the works described above. On the other hand, the claimant was living at the farm full-time, and therefore was available to, and did, take part in the work done to a greater extent than the defendant.[71]The position concerning the claimant’s employment is also, I think, uncontroversial, but equally needs to be recorded. Earlier in her life she had worked as a marketing executive for Lloyds Bank. By the time of her divorce from her husband she had been running a company with him called Riders Saddlery Ltd. That company was closed down in spring 2006. The claimant attributed its collapse to the fact that prospective customers would come into her shop and browse goods, but then buy them, less expensively, on the Internet. In January the previous year, in order to earn some money, she had begun working as a consultant for a company called Tagg Equestrian Clothing Ltd. That lasted until the autumn of 2005, when she was offered a job in sales and marketing with The Saddle Company, which makes saddles. This involved travelling over large parts of central, south and south-west England. After the closure of Riders Saddlery Ltd in spring 2006 she continued working for The Saddle Company, until the farm was purchased.[72]Once that happened, in spring 2007 she opened the livery yard for business, and worked there more or less full-time until 2011. In January 2009, the British Horse Society awarded the livery yard its approval. But the livery business was never profitable. It survived only because the defendant funded it through his company. In 2008 the claimant agreed with the defendant that they would set up and run a holiday letting business using an annex to the farmhouse (known as “the annex”). This was open for business from June 2009. It required management of bookings and work at the end of every booking and on the arrival of incoming visitors to clean and prepare the annex for new visitors, as well as welcoming them. Most of this work was done by the claimant, although some was done by the defendant and sometimes a third party was employed for the purpose of doing the changeover.[73]In 2009 the claimant worked for Eversfield Organics Ltd, situated not far away from the farm, five days a week, full-time from August to October 2009, in order to increase her income. Thereafter, she decided to train as a driving instructor, given the limited local alternatives, as this seemed to her to be a good possible source of extra income. She became qualified in February 2010 and by September of that year was working approximately 10 to 15 hours per week in giving driving lessons. Thus, by the time of the breakdown in the parties’ relationship, the claimant was running the livery yard, the holiday letting business and also giving driving lessons. At the same time, she was heavily involved in the renovation works being carried out at the farm.[74]The renovation works to the farmhouse began in October 2010 and continued until December 2011. During the time that the defendant was away in South Africa the claimant kept him updated as to what she was doing by using Skype messaging. The defendant had retained a budget for these works, and this money was used to pay for materials and services of professional building contractors, including plumbing electrical and carpentry services. Steven Compton was a general builder. He gave evidence on behalf of the claimant. Neil Westlake was the electrician, but also did some general building work. He gave evidence on behalf of the defendant. Malcolm Head was the carpenter. Neither party called him to give evidence at the trial. There were other professionals engaged too, but I did not hear from any of them.[75]In the 15 months during which the house was renovated, most of the rooms were transformed. Two extra bathrooms were installed (although one subsequently had to be removed as there was no planning permission for it). The claimant did most of the preparatory work in each of the rooms, involving removing wallpaper, damaged plaster or other rotten materials, drilling out concrete, stripping doorframes, and filling holes. She was also heavily involved in the painting work which followed the renovations.[76]There can be no doubt that the claimant did a great deal of heavy and laborious work during this period. She claimed it was well up to professional standard. This was supported by the evidence of Steve Compton. But it was not supported by the evidence of Neil Westlake or the defendant. Indeed, the defendant told me (and I accept) that he had not wanted the defendant to do the re-tiling of the bathrooms because having seen the DIY work she had done at her parents’ house, he had not been happy with it. But he was in South Africa, and he did not consider that he could tell her remotely not to do this, because he was not there, and he did not wish to hurt her feelings. He just hoped for the best that it would look all right when he got home. As elsewhere, I find that the claimant has exaggerated her contribution to the work. But I accept that it nevertheless amounted to a significant contribution to the renovations.[77]The breakdown in the parties’ relationship evidently came as a great shock to the claimant. But, having heard the evidence and seen the defendant in the witness box, I do not consider that it was a sudden decision on the part of the defendant. I find that he had come to realise that he did not want to be in the relationship any more. However, as he was then in South Africa, whilst the claimant was in occupation of the farm in England, he did not know how to extricate himself from it before returning to the United Kingdom at the end of December 2011. Moreover, I find that he was concerned for the feelings of the claimant, and felt guilty that she had been putting a lot of effort into the works being done at the farm.[78]In September and November 2011 there were incidents between the parties in England (the defendant being back from South Africa on each occasion for a long weekend) in which they had arguments and in the latter case came to blows. For the purposes of my decision it is not necessary for me to go into the facts in any detail or to find whether either of the parties was at fault, and if so which. On 30 December 2011 he told the claimant that their relationship was over. The claimant was so distressed that she left immediately for a week to stay with her friend Clare Colton. But she returned in January 2012, having nowhere else to go, and moved into the third bedroom (known as the “chapel bedroom”).[79]On 16 January 2012 the defendant sent an email to the claimant making suggestions as to what might happen to the property in the light of their breakup, and putting forward his proposals. He offered to share the profit on the sale of the farm with her. It is notable that he did not refer to any earlier agreement to that effect. In my judgment, this email does not show what the parties’ intentions were in September 2005 or subsequently. The claimant responded to that email but no agreement was reached. Later in January there was an argument between the parties, and a mug of tea was spilt or thrown. The police were involved. As before, it is not necessary for me to go into this for the purposes of my decision. The claimant once again left the property, returning after a week. In the meantime Clare Colton had spoken to the defendant, to point out that the claimant had nowhere else to go. In February 2012 the defendant had an argument with Malcolm Head, who had done some of the work on the property and who was also a customer of the livery stable. In June 2012 the defendant sent an email to the claimant giving her one month’s notice to leave. There was a further argument between them, and the police were involved again. The claimant did leave the property, although she returned in July on an agreed date together with Clare Colton and Davina Campbell and a police officer in order to retrieve her possessions.[80]During this time, in fact at the end of January 2012, the defendant had put the farm on the market. He withdrew it in July 2012 having received no satisfactory interest from prospective purchasers. Subsequently, he carried out some work of re-thatching between September and October 2016 and also applied for planning permission for change of use of one of the barns from agricultural to residential. This application was successful. He then marketed the property again and successfully sold it to a purchaser, completing on 31 March 2017 for £967,500. Of this sum, some £250,000 appears to have been paid into a joint bank account between the two firms of solicitors acting for the parties.[81]I must consider the claimant’s case not only from the point of view of the actual facts pleaded, in particular the allegation of an agreement made at the Rock Inn in September 2005, and/or at the time of the acquisition of the farm in February 2007, but also by considering the whole course of dealing between the parties. However, the purpose of considering the whole course of dealing between the parties is not to evaluate their respective actions and decide whether they generate a moral obligation by one of them to the other. It is not an objective process of that kind. Instead, it is to consider whether that course of dealing provides a basis, in the absence of express agreement, for inferring that the parties intended to undertake obligations towards one another, even though they did not express them as such. It is a process which seeks to ascertain the genuine intentions of the parties: see per Lady Hale in Stack v Dowden [2007] 2 AC 432, [61].[82]In this connection, I bear in mind that the defendant bought the farm in his own sole name, with his own funds, though with the aid of an interest only loan to himself alone, secured by a mortgage, with the interest rate fixed for five years, and thereafter at a rate of 1.99% above the Bank of England Repo rate. There was limited provision included for capital repayments. So at the end of the five year term the loan rate would (probably) rise, and to avoid that the entire loan would either have to be refinanced, or the property would have to be sold so that the loan could be repaid. The claimant did not contribute to the purchase price. It was the defendant’s decision to buy this – or indeed any – property, rather than a joint decision of both parties. The defendant renamed an existing company, of which he was sole director and in which he owned all the shares, and used it to carry on business activities at the farm, including the livery stable. All business activities, including the work done on the stables and the fields, were put through the company, and all materials bought and labour hired were supposed to be so put through as well. (It may be that the claimant was not in fact reimbursed for all of the materials which she bought, but it is clear to me that the defendant’s intention was that she should be. The claimant as company secretary was in charge of the computerised accounting records of the company.) The claimant ultimately accepted in evidence that she had no beneficial ownership of the company. The claimant sought to explain her exclusion from the title to and the mortgage loan secured on the farm as related to the rules for granting mortgage loans as a product of the single or combined salaries of the borrower(s). I do not accept this explanation. It seems to me to be a fig-leaf invented to protect her own self-respect. The defendant was paying for the farm, and he wanted it to be his own exclusive property. This may have been ungenerous, but it was not morally wrong, let alone legally so.[83]The defendant chose the farm because it was the first suitable property within his price range in approximately the right area (though he would have preferred the coast) which he and the claimant both liked. That it happened to need renovation was perhaps an advantage, but it was not a pre-requisite. As to the proposed renovations, the defendant had set aside funds amounting to about £100,000 for the purpose, to pay for materials and professionals to do the work. He was not relying on the claimant’s assurances or her abilities as a DIY enthusiast. He had seen the results of her efforts at Bucketts, the house belonging to her parents that she rented, and had not been impressed.[84]So, whatever the claimant’s intentions may have been in embarking upon the programme of works which followed, I cannot infer that the defendant’s intentions were to agree to share the property or any profit that might be derived from it with the claimant. But apart from actual intentions, of course I must also look at what a reasonable observer might have considered to be the parties’ intentions. In my judgment, a reasonable observer of the situation would have come to the same conclusion. The defendant had paid for everything. If the claimant bought materials, she was reimbursed, or at any rate she should have been. Her labour and commitment were understandable in the context of their relationship and their intended long-term future together with children. This was to be her home, and that of her children. It is unnecessary to suppose some quasi-commercial bargain between them to explain it.[85]In this connection I was referred to James v Thomas [2008] 1 FLR 1598, [36], where Sir John Chadwick said:
“I should add that the factors which lead to the conclusion that the assurances were not intended or understood as a promise of some property interest lead, also, to the conclusion that it would be unreal to think that Miss James did what she did in reliance on such a promise. The true position, as it seems to me, is that she worked in the business, and contributed her labour to the improvements to the property, because she and Mr Thomas were making their life together as man and wife. The Cottage was their home: the business was their livelihood. It is a mistake to think that the motives which lead parties in such a relationship to act as they do are necessarily attributable to pecuniary self-interest.”
[86]Similarly, in Morris v Morris [2008] EWCA Civ 287, [25], [26], Sir Peter Gibson, referring to James v Thomas, said (at [25]) “Nor do I see that the conduct that is relied on by the claimant must lead to the conclusion that she was acquiring an interest in land. It has been said in a number of cases that the court should be cautious before finding that the activities of a wife or a cohabitant can only be explained on the footing that she believes that she was acquiring an interest in land.”[87]Those statements were of course made in a different context, which was that of detrimental reliance, rather than whether a common intention was to be inferred, but in my judgment they apply equally in that context too. Accordingly, I cannot infer from the whole course of dealing any common intention to share the farm or any profit it might produce.

Discussion

[88]The facts that I have found above, and in particular that there was no agreement between the parties for the claimant to be entitled to a half of any profit realised on the sale of their joint home which the claimant would help to renovate, or that the home would be a home for both of them for the rest of their lives, or that on the defendant’s death the property would belong to the claimant (whether made after a meal at The Rock Inn in September 2005 or at the time of the acquisition of the farm, or to be inferred from looking at the whole course of dealing between the parties) mean that the claimant’s claim must fail from the outset.[89]This further means that, strictly, the question of detrimental reliance does not arise. But I should nevertheless say something about it. First of all, the cases of James v Thomas and Morris v Morris, to which I have already referred, illustrate that, in a case like the present, a person in the position of the claimant might well be expected to do the kind of things which she did because of the relationship which she enjoyed with the defendant, the home which she had made with him at the farm, and the aspirations which they had for the future, rather than in reliance on some alleged agreement between the parties. On the facts of this case, I do not consider that the claimant did rely on any such agreement as she might have been able to prove. She did what she did because she had decided to make a home with the defendant and hopefully to have children with him there. It is entirely natural to suppose that she would have wanted to use her skills and abilities to make the best possible home that she could for them all, rather than because she was trying to make money.[90]If I had found that the defendant had made a promise or assurance to the claimant of an interest in the property and that the defendant had relied on it to her detriment, I would have had to consider how to satisfy the equity thus created. If the promise had been to give a share of the profits on sale, then in principle I would have awarded that. Whether the calculation of that profit would have excluded the increase in value arising from post separation events (such as thatching the roof) would depend of course on the true construction of the agreement found. Since I have not found such an agreement, I cannot say. But I would struggle to see why the parties should reach an agreement that the claimant should share in profits which she had had no hand in creating.[91]If I had found that the promise made was to allow the claimant to live in the property for the rest of her life (for example), I could not award that, because the property has been sold to a third party. So in that case I would have had to make a reliance based award, as in Southwell v Blackburn [2014] EWCA Civ 1437. This would have been based on the single joint expert evidence that the cost of the claimant’s work would have been £39,918. The claimant also makes a claim in respect of funding the company’s works. But I accept the defendant’s evidence that he deliberately kept back a budget intended to pay for everything, through the company. I accept the defendant’s evidence also that he intended to pay for everything, and that the claimant should be reimbursed for whatever she spent upfront. It was the claimant herself who kept the records of the company using the Sage computer software. The claimant however has not proved what she spent and was not reimbursed. If that is because the company’s records do not now permit us to distinguish what each of the claimant and the defendant spent, then I am afraid that that is the claimant’s own fault. Accordingly I would not have made any allowance in respect of the claim for non-reimbursement.[92]The claimant’s fallback position was that she had an expectation of being able to stay for the rest of her life in the farm. As appears from what I have already said, this claim also fails, since it is not based on any conduct of the defendant. It does not therefore matter that the defendant was aware of this expectation of the claimant.

Conclusion

[93]Once again, I reiterate that this case is not about the rights and wrongs of the parties’ relationship, and how it unfortunately broke down. Instead, this case has been about their property rights. On the evidence presented to me, and judged by the doctrines of common intention constructive trust and proprietary estoppel, I find that the claimant has not proved her case, and it is accordingly dismissed.

Cited in 5 later judgments