“4. The Trustees’ case is straightforward: Mr Bent was made bankrupt on2 January 2018 . The estimated amount owed is in excess of£2.2 million . The main asset of his bankruptcy estate is the property in issue. It is registered at H.M. Land Registry in Mr Bent’s sole name and from that the trustee relies upon the presumption of legal and beneficial ownership previously vesting in Mr Bent and, therefore, now belonging to the bankruptcy estate. As to sale, it is the Trustees’ case that the interests of the creditors should prevail and there are no exceptional circumstances for the purposes of theTrusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) as amended by theInsolvency Act 1986 (“IA”). An online estimate of the property’s value in October 2021 was£475,000 , it having been purchased on30 June 2006 for£275,000 .”
“6. Ms Bent’s opposition is straight forward in fact but less straight forward in law. She relies upon an agreement or understanding between her father and mother in 2006 when they separated as partners, common law husband and wife, that the property would be bought by Mr Bent and held on trust for their daughter so that it would become her property absolutely when (in summary) she reached 18. As her mother put it when explaining the agreement during opening (as her evidence is summarised by me): The contract was that he would buy the house, her daughter and she would live in it. She would maintain it and look after her daughter as the primary responsible parent. He would pay the mortgage and their daughter would be the owner subject to it being held in trust for her by her father until she was 18.”
“7. This is less straight forward in law because there is no executed declaration of trust. That means the starting point, fixed in law when determining beneficial interests, is that because this domestic property was transferred into and registered in the sole name of Mr Bent there is a presumption that he has sole ownership. That being so the title will have vested in the Trustees under section 306 IA. Ms Bent must rebut the presumption. The burden of proving the existence of a trust lies upon her.”
“8. That leads to the next fixed hurdle:Section 53(1)(b) of the Law of Property Act 1925 (“LPA”) requires an express declaration of trust (i.e. when the settlor simply declares themself to be a trustee of the identified property belonging to them) to be “manifested and proved by some writing signed [by the settlor]”
“87. As a result, in reaching my decision I am particularly influenced by the contemporaneous evidence. This in my judgment corroborates the evidence of an express agreement through discussion between Mr Bent and Ms Clark who, at the time, was protecting the rights of her daughter to financial provision. 88. The agreement was that the property was bought for Ms Bent by Mr Bent and held on a bare trust for her until she was entitled to call for the legal title once she was eighteen. It is academic to consider whether the intention also included provision for the later of the date she left education as detailed within the draft deed. True that might reflect uncertainty as relied upon by Mr Williams but the uncertainty does not affect the fundamental clarity of the agreement I have identified and found on the balance of probability existed. 89. In reaching that conclusion I have considered with great care the13 March 2007 Court Order and the later inconsistencies drawn to the Court’s attention within the submissions of Mr Williams. However, I am satisfied in the additional context of my overall assessment of the evidence of Ms Clark and Mr Bent that the intention to create the trust has been established on the balance of probabilities. The pan containing the evidence against Ms Bent’s case has insufficient weight bearing in mind in particular the points made qualifying them when they were referred to above and the weight of the evidence in the opposite pan including the contemporaneous documents and the overall view of credibility. 90. Looking at the pan holding the evidence in support of Ms Bent’s case: That conclusion is supported by the evidence of Ms Clark and Mr Bent concerning the circumstances giving rise to that agreement, which I accept. Their evidence makes sense within a factual context that is not in dispute. My previously stated conclusion concerning the background to the purchase can be treated as repeated here for the purpose of explaining why it provides supports for their recollections. 91. I also draw attention to the fact that the agreement to purchase the property resolved an issue between them which arose upon their separation. Namely where Ms Bent should live on the basis that the primary carer of the two of them would be Ms Clark. It reflected the evidence that Mr Bent was concerned to avoid of the property being “caught up” (as Ms Clark described it) in any divorce proceedings which might result from a future marriage. That is to say, to ensure that the property was not “lost” in whole or in part to Ms Bent because of Ms Clark’s future relationships and their consequences. 92. Therefore, weighing all the matters referred to, I conclude that the intention to create the trust resulted from an agreement between Ms Clark and Mr Bent to resolve the fallout of their relationship breakdown to the extent that it concerned their daughter’s housing by Mr Bent buying the property and holding it on a bare trust for Ms Bent but not for Ms Clark. I am satisfied by the evidence that Ms Bent has rebutted the presumption arising from registered, sole ownership and has established the agreement was reached.”
“1. The learned judge was wrong in law to hold that a common intention constructive trust arose, even on the facts as found by him, where there was no reliance by, or detriment suffered by, the alleged beneficiary of the trust, the Fourth Respondent Ms Aliyah Bent, and where the only detriment found was suffered by her mother the First Respondent Ms Kelly Clark. A common intention constructive trust requires detrimental reliance by the alleged beneficiary, and detriment by proxy will not suffice.”
“2. The learned judge was wrong in fact to find that there was any settled intention (at the time of purchase or subsequently) for the First Respondent Mr Marcus Bent to hold the property on trust for the benefit of the Fourth Respondent Ms Aliyah Bent, or any intention to that effect common to him and the Second Respondent Ms Kelly Clark which was capable of being relied upon, when such an intention was (i) contrary to the contemporaneous documentary evidence, including (in particular) the terms of the family court consent order made on13 March 2007 , and the negotiations leading up to it, including the Second Respondent Ms Kelly Clark’s offer of1 December 2006 , and (ii) contrary to the oral evidence of the First Respondent Mr Marcus Bent.”
“3. The learned judge was wrong to have found as a fact that there was sufficient detrimental reliance on the part of the Second Respondent Ms Clark, in that (i) the Second Respondent Ms Clark could not have reasonably relied on any common intention relating to the property once the family court consent order had been made;(ii) he failed to have proper regard to the benefits the Second Respondent Ms Clark derived from the terms of the family court consent order; and (iii) wrongly considered that there were any realistic alternative life options for the Second Respondent Ms Clark which she had rejected, in circumstances where it was always open to the Second Respondent to return to the family court and to seek further capital and income provision for the benefit of the Fourth Respondent Ms Aliyah Bent.”
“Further and/or alternatively, the learned judge was wrong in law to hold that a common intention constructive trust could arise where the alleged beneficiary was aged 2 at the time and therefore could have not been privy to any such common intention.”
“2 The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled: (i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong. (ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. (iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. (iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. (v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable. (vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.” (i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong. (ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. (iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. (iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. (v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable. (vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
“Q. Let’s put it this way then, you have not produced any evidence whatsoever as to how you altered your lifestyle, how you would have spent your money differently, what your costs of living were or anything like that today that would show that you could have bought a property with that money had the promise been genuinely made and had you genuinely relied you on it. That’s right isn’t it? A. But the promise was that the house was for Aliyah, the promise wasn’t anything else, the promise was intended for Aliyah; what was in the legal documentation was very different from what Marcus and I had discussed between us.”
“34. I then move to consider the background which it is said gave rise to the agreement that is relied upon and ask myself whether it is consistent with the agreement. 35. My first conclusion from the evidence is that the background to the purchase supports the recollections of Ms Clark and Mr Bent. The property was purchased on separation. If Ms Bent had not been born, Ms Clark would have been left to find her own way. It makes potential sense that the property was bought because of the child. That evidence also reflects my impression of Mr Bent as a very loving father who recognises a father’s responsibilities and duties for his child because of that love. I appreciate of course that I was viewing him many years later and I bear that in mind but his evidence came across as someone who back in 2006 was thinking of his child in the context of a relationship breakdown with his partner. 36. It also makes sense, bearing also in mind Mr Bent had financial and legal advisers, that he would not want Ms Clark to own the flat. After all, their relationship had broken down, she had no such right herself, and she would probably form new relationships, may have other children and may not (from his perspective at least) pass on the property to their daughter as a result. I accept from Mr Bent’s evidence that those are all matters relevant to his state of mind at the time.”
“37. This conclusion as to context is supported by the fact that a declaration of trust was drawn up. Plainly this is an important document. It demonstrates there was an intention to create a trust for Ms Bent but leaves open the question: why was it not executed?”
“There is, however, other evidence to be placed upon the scales before a conclusion can be reached.”
“6. Our client’s home currently in your client’s sole name is transferred to our client outright where she will reside with Aliyah. The property was purchased in July 2006 for the sum of£275,000 and there is a mortgage secured against it of£245,000 the equity of£30,000 will be transferred to our client but your client would remain jointly or solely responsible for the mortgage. In reality our client’s housing claim is significantly higher than the modesty of the [location] home and this is what will be pursued in litigation. We believe that your client should take a practical view here.”
“56. I mention that it would have been of potential interest for the Court to have been able to read any further documentation that exists concerning the application for financial provision. However, neither side have produced any, and this is not a case where disclosure is a fixed requirement under the Rules. There was no order for disclosure sought. There was no suggestion that Ms Clark or Mr Bent have concealed documents which they know are adverse to themselves and I certainly do not take the view that might be the case. 57. It was open to both sides to ask for a disclosure direction. The Trustees, of course, also have wide powers enabling them to obtain information, at least before deciding whether to start proceedings. There was no complaint during the trial of the absence of disclosure of documentation concerning the application to the Family Court. Therefore, whilst it may or may not have helped the Court, this decision is to be reached on the documentation presented in the trial bundle of the parties (to the extent relied upon at trial). 58. This included a without prejudice letter between the solicitors acting at the time. It was referred to Mr Bent in general terms during his cross-examination but nothing was made of its specific contents by either side whether in examination or submissions.”
“59. Taking all those matters into consideration but importantly subject to reviewing the position in the light of the evidence as whole, including that to be specifically referred to after this: My conclusion based upon an assessment of the evidence on the balance of probabilities is that whilst the Order raises questions concerning what had gone before and it would have been of potential interest had there been any further documentation to read concerning the application for financial provision, this on its own comes nowhere near to undermining the evidence of intention referred to above concerning the purchase. I now turn, however, to the further evidence Mr Williams submits leads in addition or on its own to the conclusion that such evidence is unreliable.”
“And Upon the Respondent Father agreeing and undertaking to the Court that: 1. he will give the Applicant Mother exclusive occupation of the property known as [the Property] (“the property”) until three months after the date upon which his liability to maintain Aliyah under paragraph 2 of this Order ceases; and 2. he will give the Applicant Mother twenty eight days (28) days written notice of his intention to dispose of or otherwise deal with the said property AND UPON the Applicant Mother agreeing and undertaking to the Court to remove the Restriction registered at the Land Registry on the property with Title Number [number] on the expiry of three months from the date upon which the Respondent Father’s liability to maintain Aliyah under paragraph 2 of this Order ceases”
“52. There is no doubt, however, that the terms of this Order raise questions concerning the existence of the constructive trust which, if the evidence relied upon by Ms Bent is accepted, was created as a result of an agreement or understanding reached by the date of its purchase. In particular, there is no reference to the trust in the order and questions arise as to why an exclusive possession undertaking for Ms Clark would be required if the trust existed.”
“89. In reaching that conclusion I have considered with great care the13 March 2007 Court Order and the later inconsistencies drawn to the Court’s attention within the submissions of Mr Williams. However, I am satisfied in the additional context of my overall assessment of the evidence of Ms Clark and Mr Bent that the intention to create the trust has been established on the balance of probabilities. The pan containing the evidence against Ms Bent’s case has insufficient weight bearing in mind in particular the points made qualifying them when they were referred to above and the weight of the evidence in the opposite pan including the contemporaneous documents and the overall view of credibility.”
“77. Mr Williams raised the observation that during 2017 attempts were made to have a new declaration of trust executed. This would not have occurred if, he proposed, there was already a constructive trust in place. He specifically referred during Ms Clark’s cross-examination to a solicitor’s memorandum referring to instruction that the property in Mr Bent’s name “is to be held in trust for [Ms Bent] until she is 21 or ceases full-time education whichever is the later”
“I refer back to yours of 19th March. The property is held in Marcus’ sole name as per the annexed Land Registry document. There does not appear to be a mortgage on the property but I believe that there was a Declaration of Trust executed by Marcus in 2006 gifting Marcus’ share in the property to Aliyah May Bent. I am not aware of the whereabouts of the original but maybe we could trace that if necessary.”
“[the Property]. This was purchased in 2006 for£275,000 , paid outright for my daughter, but put in her mothers name. I have never lived there. It was purchased for my daughter, Aliyah Bent. There is a restriction on this property, from 08/05/07 that it cannot be sold without the authority of Kelly Clark (my daughters mother). There is a declaration of trust that states in favour of my daughter. I will provide a copy of this to the Official Receiver. This property is not an asset of mine or never was.”
“60. Mr Williams referred to errors in a Bankruptcy Preliminary Questionnaire signed by Mr Bent and dated24 January 2019 . It is made as true and subject tosection 5 of the Perjury Act 1911 . It states that the property was purchased for his daughter but put in her mother’s name with a restriction registered from8 May 2007 so that it could not be sold without her mother’s authority. 61. Whilst it is true that the reference to the property being placed in Ms Clark’s name was incorrect, I do not consider that assists the Trustee as Mr Williams submits. First, I am already taking into consideration memory issues for Mr Bent. Second, Second, although he made an error, he made an error in the context also of making express reference to the restriction. That is in his favour. Third, that suggests the Official Receiver will have had the title at the interview or otherwise Mr Bent has far better recall than I am giving him credit for. Either way, the underlying point is that he also stated, as recorded and signed, that “It was purchased for my daughter” and that it “cannot be sold without the authority of [Ms Clark]”
“6. Ms Bent’s opposition is straight forward in fact but less straight forward in law. She relies upon an agreement or understanding between her father and mother in 2006 when they separated as partners, common law husband and wife, that the property would be bought by Mr Bent and held on trust for their daughter so that it would become her property absolutely when (in summary) she reached 18. As her mother put it when explaining the agreement during opening (as her evidence is summarised by me): The contract was that he would buy the house, her daughter and she would live in it. She would maintain it and look after her daughter as the primary responsible parent. He would pay the mortgage and their daughter would be the owner subject to it being held in trust for her by her father until she was 18.”
“13. The Property was purchased by Marcus and was registered in Marcus’ sole name with the intention of it being held on trust by me and transferred to Aliyah once she reached 18 years old.”
“63. Mr Williams referred to paragraph 13 of Ms Clark’s statement in which she stated that the property: “was registered in [Mr Bent’s] sole name with the intention of it being held on trust by me and transferred to [her daughter] once she reached 18 years old”
“17. If the Property could have been registered in [her daughter’s] name, then it would have been, but it could not because [she] was under 18 years of age. 18. The purpose of registering the Property in [Mr Bent’s] name rather than mine (to hold on trust for [their daughter] until she turned 18) was because if before [she] turned 18, I remarried and subsequently divorced, the Property could be caught up in any divorce settlement. This was not what either me or [Mr Bent] wanted for [her]”
“9. Here, I am not satisfied there is a real prospect of showing the Judge was plainly wrong, in the sense of having reached a decision on the facts that no reasonable Judge could have reached. The argument advanced by the Trustees is essentially that there are parts of the evidentiary record which point in the opposite direction to the conclusion the Judge arrived at. But that is almost always the case, and is why a trial is needed and a decision from a Judge necessary to arrive at a point of certainty. The Judge was plainly aware of the ambiguities and difficulties with the evidence, since he referred to them a number of times in his Judgment. But having heard all the evidence, including oral evidence from Mr Bent and Ms Clark (which he found significant: see Jgt at [89]), he reached the view that he did. The proposed appeal on Ground 1 [2] seems to me to be no more than an invitation to the Appeal Court to carry out the same evaluation exercise again, in the hope that it might produce a different result. That is not a proper basis for an appeal, however, because on factual issues it is not enough to be able argue that an alternative interpretation of the facts is possible (which is almost always the case). One must instead be able to say that the view arrived at by the Judge was so plainly wrong that no-one could reasonably have come to it. I am not sufficiently persuaded that the present is that sort of case. The ambiguities in the evidential record only serve emphasise the point that the decision the Judge came to, although at variance with some possible indicators, was no less legitimate that the alternative view, which would necessarily have been at variance with others, including most importantly the evidence of Mr Bent and Ms Clark given on oath which the Judge accepted. There was no sufficiently clear answer to justify the conclusion that the Judge plainly got it wrong.”
“I am not familiar with any case where in this area of law there has been held to be like sub-layers of trustees (inaudible words) and that does not seem to be possible and I submit that any argument that there was a common intention between Mr Bent and Aliyah, whether in 2006 or at any other point prior to her reaching the age of 18, must be doomed to fail. Logically, that must now be their case. That was the evidence yesterday, that it is intended to be for Aliyah, not for Ms Clark but Aliyah was a minor at the time that the trust, on the respondents’ case, was said to have been created and I submit there is no authority for the proposition that a minor can be one of the two parties to a common intention which creates an implied trust of land. Can a child and a father have common intention that the child would be the beneficiary? Can the child – and even if the case could survive those difficulties, we would then turn to the detriment by (?) the child.”
“Any claim to a beneficial interest in land by a person, whether spouse or stranger, in whom the legal estate in the land is not vested must be based upon the proposition that the person in whom the legal estate is vested holds it as trustee upon trust to give effect to the beneficial interest of the claimant as cestui que trust. The legal principles applicable to the claim are those of the English law of trusts and in particular, in the kind of dispute between spouses that comes before the courts, the law relating to the creation and operation of " resulting, implied or constructive trusts." Where the trust is expressly declared in the instrument by which the legal estate is transferred to the trustee or by a written declaration of trust by the trustee, the court must give effect to it. But to constitute a valid declaration of trust by way of gift of a beneficial interest in land to a cestui que trust the declaration is required by section 53 (1) of the Law of Property Act, 1925, to be in writing. If it is not in writing it can only take effect as a resulting, implied or constructive trust to which that section has no application.”
“A resulting, implied or constructive trust—and it is unnecessary for present purposes to distinguish between these three classes of trust—is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”
“[46] His second point was that on the test laid down in Lloyds Bank plc v Rossett the beneficiary must have acted to his detriment in reliance on the common intention. In the present case there was no such detrimental reliance by the children. They did nothing consciously in response to the September 1991 letter. Moreover they were only ever discretionary beneficiaries under the 1971 trust and therefore had no necessary expectation of benefit under it.”
“[48] Much of this argument I agree with. It is, I think, artificial and unrealistic to decide the question whether the husband took the shares in 1991 free of or subject to any trust by reference to a set of principles designed to resolve issues of beneficial ownership between adult cohabitees in a property. The children cannot be regarded as privy to any common intention or understanding in a real way. I also accept that the judge was wrong to rely in the alternative on the imposition of a remedial constructive trust in respect of the disputed assets given the remarks of Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington London Borough Council[1996] AC 669 , at 716, and the decision of this court in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc[1990] 1 QB 391 . But, in my view, the judge was nonetheless right to conclude that a constructive trust did arise on the making of the November 1991 appointment.”
“[51] There are, however, a number of situations in which equity will hold the transferee of property to the terms upon which it was acquired by imposing a constructive trust to that effect. These cases do not depend on some form of detrimental reliance in order to re-balance the equities between competing claimants for the property. They concentrate instead on the circumstances in which the transferee came to acquire the property in order to provide the justification for the imposition of a trust. The most obvious examples are secret trusts and mutual wills in which property is transferred by will pursuant to an agreement that the transferee will hold the property on trust for a third party. In neither case does the intended beneficiary rely in any sense on the agreement (he may not even be aware of it) but, in both cases, equity will regard it as against conscience for the owner of the property to deny the terms upon which he received it. It is not necessary in such cases to show that the property was acquired by actual fraud (although the principle would apply equally in such cases). The concept of fraud in equity is much wider and can extend to unconscionable or inequitable conduct in the form of a denial or refusal to carry out the agreement to hold the property for the benefit of the third party which was the only basis upon which the property was transferred. This is sufficient in itself to create the fiduciary obligation and to require the imposition of a constructive trust. The principle is a broad one and applies as much to inter vivos transactions as it does to wills: see Rochefoucauld v Boustead[1897] 1 Ch 196 , [1897] 66 LJ Ch 74; Bannister v Bannister[1948] 2 All ER 133 .”
“[54] I can see no answer to the judge’s conclusion that, in these circumstances, he should be bound by the agreement which he made. The fact that the children were not in any real sense party to that agreement is, to my mind, irrelevant. Their interests were protected by the 1971 trust so long as that subsisted and the trustee appointed the shares out of that settlement solely with a view to the children becoming entitled beneficially to the trust property.”
“87. As a result, in reaching my decision I am particularly influenced by the contemporaneous evidence. This in my judgment corroborates the evidence of an express agreement through discussion between Mr Bent and Ms Clark who, at the time, was protecting the rights of her daughter to financial provision.”
“98. This would be a surprising outcome in law, namely that there can be no constructive trust in favour of a child because as a child they would be incapable of reliance. I reject that proposition. It is to be remembered that whilst the issue of housing resulting from separation required settlement by an agreement between Ms Clark and Mr Bent, the right to financial provision which this settlement concerned and needed to resolve belonged to Ms Bent. Ms Clark had no personal right to further housing. She was at all times acting on her daughter’s behalf, as her parent, by obtaining for Ms Bent the rights which were considered to be appropriate to ensure there would be adequate financial provision for her future housing. This was achieved by the agreement she reached with Mr Bent on behalf of Ms Bent. Ms Bent has plainly established reliance through her mother acting on her behalf. Her mother on her behalf accepted the agreement and moved them both to the property as a result.”
“And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”
“[40] In my judgment, the mere fact that Mr O’Neill, having purchased the Property, intended it to be a family home for his daughter and her family cannot, by itself, have given rise to a constructive trust in her favour. The district judge nowhere found that John O’Neill and Ms O’Neill shared a common intention that she was to take an immediate beneficial interest in the Property, as opposed to occupying it rent-free as her family home, and even if John O’Neill had so intended, Ms O’Neill cannot point to any detrimental reliance by her on the strength of such a common intention. For all practical purposes, she was fully protected while the Property remained vested in her father’s sole name and she had continuing permission to occupy it. There may well have been a general intention shared between father and daughter that he would at some future date transfer the Property to her, or to her and Mr Holland jointly, either by lifetime gift or by will upon his death; but a generalised future intention of that nature cannot begin to ground an immediate beneficial entitlement under a constructive trust. Nor can I find anything in the wider circumstances of the case which would even arguably rebut the Stack v Dowden presumption during this initial period. [41] In the absence of any shared intention that Ms O’Neill should acquire an immediate beneficial interest in the Property during this period, the further question of detrimental reliance does not strictly arise. And even if it did, I have difficulty in seeing how the fact that John O’Neill had provided the funds for the purchase of the Property could possibly have amounted to a detriment upon which Ms O’Neill could rely. When Lewison LJ identified this as ‘an important point of principle’ (see para [23] above), he must, I think, have had in mind a situation where Ms O’Neill might wish to rely upon that fact in the context of the subsequent transfer of the legal title to Mr Holland in 2008. In other words, the question would be whether the provision of the purchase price by her father, in 1999, could be relied upon by Ms O’Neill, in 2008, as a detrimental reliance by her when seeking to rebut the presumption that Mr Holland was intended to be sole beneficial owner. There would be obvious difficulties with any such analysis, not least the fact that the purchase price was provided by John O’Neill some 9 years before his transfer of the Property to Mr Holland, but at least Ms O’Neill would then be seeking to rely upon the payment of the purchase price by her father against the legal owner, Mr Holland. It would make no sense for Ms O’Neill to rely upon the payment by her father of the purchase price as evidence showing that he was not intended to be the sole beneficial owner of the Property when it was acquired in his name.”
“95. So there is no doubt, it seems to me, that Ms Clark relied upon the agreement. She settled the issue of housing for Ms Bent on those terms. She took up possession and remained there looking after Ms Bent until she was 18 and in law able to look after herself. It was that agreement which caused her and their daughter to live where they did, grow up together within the location they did and do all they did as a result both individually and together. Ms Clark referred specifically to her work and clients and the same applied to Ms Bent and her schooling, friends and activities. So reliance is clear, but I must emphasise that I am concerned with Ms Clark's position, only insofar as she was acting for – i.e. being the parent of – her daughter.”
“97. Mr Williams raised three submissions to undermine the creation of a constructive trust in 2006/7 even should Ms Brent prove the agreement relied upon. The first being that the reliance required must be Ms Bent’s and she could not have had any reliance as a child.”
“98. This would be a surprising outcome in law, namely that there can be no constructive trust in favour of a child because as a child they would be incapable of reliance. I reject that proposition. It is to be remembered that whilst the issue of housing resulting from separation required settlement by an agreement between Ms Clark and Mr Bent, the right to financial provision which this settlement concerned and needed to resolve belonged to Ms Bent. Ms Clark had no personal right to further housing. She was at all times acting on her daughter’s behalf, as her parent, by obtaining for Ms Bent the rights which were considered to be appropriate to ensure there would be adequate financial provision for her future housing. This was achieved by the agreement she reached with Mr Bent on behalf of Ms Bent. Ms Bent has plainly established reliance through her mother acting on her behalf. Her mother on her behalf accepted the agreement and moved them both to the property as a result.”
“101. Therefore, dealing with reliance by Ms Bent in conclusion,through Ms Clark acting on her behalf, Ms Bent settled her claims to the extent of where she should live and through Ms Clark did not seek any alternative or additional financial provision for housing. It was a bargain and she (through her mother acting for her) relied upon that bargain when taking up occupation and no longer pursuing any other claim concerning the type and location of the property to be provided as financial provision.”
“102.The second submission of Mr Williams was that the requirement of detriment must be Ms Bent’s detriment, and she only gained from the provision of housing, as indeed, if relevant, did Ms Clark. That is to say, there could be no detriment when what was provided was a suitable property to live in.”
“104. In this case there was plainly detriment and/or a significant alteration of position for Ms Bent. First, there was settlement of the issue of how to give effect to Ms Bent’s rights to financial provision in the context of providing a place for her to live. It is no answer to submit that this was a good settlement for her and, therefore, she did not suffer detriment. Plainly she significantly altered her position through her mother’s acceptance on her behalf of the property subject to the trust as the settlement. It may also be noted looking at the other side of the coin there would certainly have been detriment had the agreement been made but without Mr Bent fulfilling it because he would retain the legal and beneficial interest.”
“110.This starts with the submission by Mr Williams that this may be seen in 2023 as a boon to a 19 year old and unfair to the creditors of the bankruptcy.However, the Insolvency Act 1986 addresses the circumstances in which fairness should be achieved within the statutory waterfall. It does so by the provisions providing for adjustment of prior transactions and the remedies against debt avoidance, and there is no suggestion that any of these would apply. This is a constructive trust established at a time when there was no suggestion of insolvency or of any steps being taken to avoid payment to current or future creditors. This submission does not aid the Trustees’ case.”
“[18] What is the context in Sch 1? It provides that an applicant, usually a parent, can bring an application for the benefit of the child. You stand back and ask how the applicant holds money ordered under Sch 1. The answer is that those moneys, to adopt an analogy, would be held for a purpose and possibly on a purpose trust. It seems to me that an overview of Sch 1 shows that the applicant is applying in a representative capacity. I do not use that expression in a technical sense, but the applicant is applying to obtain an order for the benefit of the child or children and therefore somebody else. I confess, therefore, that I simply do not agree with the conclusion reached by Bennett J, if that is its true effect, that, as a matter of construction of Sch 1, legal costs are excluded as a matter of jurisdiction because they are for the benefit of the applicant personally and not for the benefit of the child. I would respectfully agree with the proposition that in the exercise of the discretion – if, as I believe to be the case, there be such a discretion – care needs to be taken to see that the moneys are not being spent to satisfy the applicant’s taste for litigation. But that is a matter relating to the exercise of discretion rather than jurisdiction. To my mind, if you stand back and ask yourself, given my conclusion that the applicant is in a representative or quasi-representative capacity: ‘would a payment in respect of the costs to be incurred by the applicant in bringing the case effectively on behalf of the children be a payment for the benefit of the children?’ the answer, to my mind, is yes. Having that jurisdiction does not mean that it will always be exercised.”
“22. The appeal has not involved any challenge to the Judge’s findings as to the assurances which were made to Richard and Adrian and their reliance on them. The focus of the appeal has been on the Judge’s conclusion that there was detriment. Mr Alex Troup KC, who appeared for Philip, accepted that the Court might be able to infer detriment where a claimant has pursued an inherently unfavourable course of action (for example, working on a farm for low wages over a long period without any right to an interest in the farm). In other cases (including this one), Mr Troup argued, it is incumbent on a claimant to plead and prove that he forewent an opportunity which, overall, would have put him in a better position (financially or otherwise). In the present case, Richard and Adrian pleaded that, if they had not relied on the assurances to them, they would have pursued a career in the military (in Richard’s case) and sought site/demolition work and probably have become an independent contractor (in Adrian’s). The Judge, however, found that they would not then have accumulated as much wealth as they did by working in the family business. That being so, there can have been the requisite net detriment only if working in the family business had non-financial disadvantages outweighing its financial benefits. The Judge saw “the lifetime commitment by Richard and Adrian to working on the farm” as an unquantifiable detriment, but he did not explain why it was detrimental and in any event failed to weigh any such detriment against the financial benefits. He instead proceeded on the basis that there could be no meaningful comparison and, rather than assessing where the balance between benefit and disadvantage lay, jumped to considering unconscionability. 23. In contrast, Mr Hugh Sims KC, who appeared for Richard and Adrian with Mr Michael Selway, supported the Judge’s decision. The appeal, Mr Sims said, is essentially against findings of fact and evaluations and this Court is slow to interfere with such matters. Here, the Judge applied the right test and arrived at conclusions which were properly open to him. While a Court must weigh non-financial disadvantages against financial benefits however difficult that might be, the Judge can be seen to have done so. He was, moreover, entitled to find that the lifelong commitment to the family business of Richard and Adrian had been detrimental. While such reliance may not in every case mean that there has been net detriment, it typically will do so and the Court is not obliged either to try to put a figure on the non-financial disadvantages or even to identify a specific alternative course of action which would have been more beneficial. The exercise is not a computational one.”
“28. Some detriment may be difficult or impossible to quantify in financial terms. Thus, in Jennings v Rice Lord Walker commented in paragraph 51 that “the detriment of an ever-increasing burden of care for an elderly person, and of having to be subservient to his or her moods and wishes, is very difficult to quantify in money terms”
“In the present case, as in many where the promisee is a young person who gives up other career opportunities to work for their parents on the family farm, a measure of the supposed wages differential to date, coupled with interest, will not begin to recognise the improvement in life which further education, an independent career and the opportunities to develop their own farming or other business might have generated.”
“There was … little uncertainty about the nature and extent of [the claimant’s] detrimental reliance. He had worked full time at Tump Farm from 1982 until 2015 (33 years) and from 1993 onwards in the expectation of inheritance encouraged by David. His was plainly a form of reliance with whole-life consequences, starting when he left school at 16 and lasting until he was almost 50. So, however precisely it might be described, its lifetime consequences were extremely difficult to value.” “In the present case, as in many where the promisee is a young person who gives up other career opportunities to work for their parents on the family farm, a measure of the supposed wages differential to date, coupled with interest, will not begin to recognise the improvement in life which further education, an independent career and the opportunities to develop their own farming or other business might have generated.” “There was … little uncertainty about the nature and extent of [the claimant’s] detrimental reliance. He had worked full time at Tump Farm from 1982 until 2015 (33 years) and from 1993 onwards in the expectation of inheritance encouraged by David. His was plainly a form of reliance with whole-life consequences, starting when he left school at 16 and lasting until he was almost 50. So, however precisely it might be described, its lifetime consequences were extremely difficult to value.”
“29. Where a claimant’s reliance on an assurance has resulted in both disadvantages and benefits, the Court must have regard to both. In Henry v Henry[2010] UKPC 3 ,[2010] 1 All ER 988 , Sir Jonathan Parker, giving the judgment of the Privy Council, said in paragraph 53 that the trial judge “should have weighed any disadvantages which [the claimant] had suffered by reason of his reliance on Geraldine Pierre’s promises against any countervailing advantages which he had enjoyed by reason of that reliance”
“31. There are only limited circumstances in which this Court can interfere with a finding of detriment. In Davies No 1, Floyd LJ said in paragraph 33: “Whether there is detrimental reliance in any given case is an evaluative judgment on the facts, which normally lies within the exclusive province of the trial judge. This court can only interfere with the judge’s assessment of that issue if it is perverse or clearly wrong: Suggitt v Suggitt[2012] EWCA Civ 1140 per Arden LJ at [37].”
“52. While Morgan J’s comments may have been appropriate in the context of the case before him, I do not think they should be taken as laying down a test of general application. My own view, as I have indicated earlier in this judgment, is that, to succeed in a proprietary estoppel claim, a claimant needs to show sufficiently substantial net detriment of whatever kind. Where, however, a claimant has made a life-changing choice and over many years undertaken work in reliance on an assurance, the Court will probably be prepared to treat loss of opportunity to lead a different life as itself detrimental without requiring the claimant to prove, or itself trying to determine, quite what the claimant would have done and with what consequences. The fact that the claimant “deprived [himself] of the opportunity of trying to better [himself] in other ways” (to adapt words of Lord Walker in Gillett v Holt) will itself be taken to amount to detriment; the Court will not be inclined to attempt the (probably unrealistic) exercise of “recreat[ing] an alternative life … without the assurances” (to adapt words of Lewison LJ in Habberfield v Habberfield). In practice, therefore, as Rajah J said in Spencer v Spencer, detrimental reliance is likely to be found to exist where “a parent promises a child a farm if they work on the farm until the parent dies, and the child does what they were asked to do, giving up the possibility of other options, and positioning their working life based on the assurances”
“155 He also made the point at p 233 that allegations of detrimental reliance are not to be examined at a granular level but that it is necessary to “stand back and look at the matter in the round”. 156 Although that was a case of proprietary estoppel, I do not consider that there is any significant difference between the kind of detriment required in that kind of case, and that required in the context of a common intention constructive trust. 157 In Kelly v Fraser[2013] 1 AC 450 (a case of estoppel by representation), Lord Sumption JSC, giving the advice of the Privy Council said at para 17: “the detriment need not be financially quantifiable, let alone quantified, provided that it is substantial and such as to make it unjust for the representor to resile. A common form of detriment, possibly the commonest of all, is that as a result of his reliance on the representation, the representee has lost an opportunity to protect his interests by taking some alternative course of action. It is well established that the loss of such an opportunity may be a sufficient detriment if there were alternative courses available which offered a real prospect of benefit, notwithstanding that the prospect was contingent and uncertain . . .” 158 In O’Neill v Holland[2021] 2 FLR 1016 (which was a common intention constructive trust case) Henderson LJ said at para 62: “Detriment” in this context is a description, or characterisation, of an objective state of affairs which leaves the claimant in a substantially worse position than she would have been in but for the transfer into the sole name of the defendant. Although the facts which constitute the detriment need to be pleaded, their characterisation is ultimately a matter for the court, in the light of all the evidence adduced at trial.” “the detriment need not be financially quantifiable, let alone quantified, provided that it is substantial and such as to make it unjust for the representor to resile. A common form of detriment, possibly the commonest of all, is that as a result of his reliance on the representation, the representee has lost an opportunity to protect his interests by taking some alternative course of action. It is well established that the loss of such an opportunity may be a sufficient detriment if there were alternative courses available which offered a real prospect of benefit, notwithstanding that the prospect was contingent and uncertain . . .” “Detriment” in this context is a description, or characterisation, of an objective state of affairs which leaves the claimant in a substantially worse position than she would have been in but for the transfer into the sole name of the defendant. Although the facts which constitute the detriment need to be pleaded, their characterisation is ultimately a matter for the court, in the light of all the evidence adduced at trial.”
“94. During cross-examination on this matter Ms Clark responded that she had based her whole life around Mr Bent having purchased the property for their daughter. Her work and Ms Bent’s schooling were all results of the location of the property. If there had been no agreement that it was her daughter’s and instead the offer had been that it would always be Mr Bent’s property, she could instead have bought a property investing her own money, not just the maintenance money but the money she earnt for her self-employed business, from about 2008. She and her daughter would then have a home to live in now which would not now be taken from them.”
“95. So there is no doubt, it seems to me, that Ms Clark relied upon the agreement. She settled the issue of housing for Ms Bent on those terms. She took up possession and remained there looking after Ms Bent until she was 18 and in law able to look after herself. It was that agreement which caused her and their daughter to live where they did, grow up together within the location they did and do all they did as a result both individually and together. Ms Clark referred specifically to her work and clients and the same applied to Ms Bent and her schooling, friends and activities. So reliance is clear, but I must emphasise that I am concerned with Ms Clark's position, only insofar as she was acting for – i.e. being the parent of – her daughter.”
“104.In this case there was plainly detriment and/or a significant alteration of position for Ms Bent. First, there was settlement of the issue of how to give effect to Ms Bent’s rights to financial provision in the context of providing a place for her to live. It is no answer to submit that this was a good settlement for her and, therefore, she did not suffer detriment. Plainly she significantly altered her position through her mother’s acceptance on her behalf of the property subject to the trust as the settlement. It may also be noted looking at the other side of the coin there would certainly have been detriment had the agreement been made but without Mr Bent fulfilling it because he would retain the legal and beneficial interest.”
“105. It can also be added that it is not right in principle or on the facts of this case to base the existence of a constructive trust upon an assessment of whether she should or could have got more or less as a settlement as Mr Williams’s submission inherently does. It is not right in principle because Ms Bent through her mother settled her rights and, as a result, changed her position when giving up the option of seeking greater consideration for those rights. It is often the nature of the resolution of rights that the parties settle on a solution instead of arguing for alternatives. In this case, in practice, it is also plain from the nature of his employment and the value of the house Mr Bent purchased, that he could have provided more and there is no cause to doubt that he would have done so bearing in mind his love for his daughter if this solution had not been agreed. 106. There is the second matter, which I do not actually think is necessary with regard to establishing detriment or significant alteration of position because of what I have previously said, but it is that the family proceedings will have been settled in the context of the trust understood to be protected by the registered restriction. Ms Clark, again acting for her daughter, will have acted on the basis and understanding of the agreement reached in 2006. She changed her daughter's position through that settlement and no doubt would have addressed the process differently had the agreement been thought not to exist or been unenforceable. If there had been no constructive trust, it would have been potentially open to Ms Clark to negotiate for more and/or different relief. 107. The fact that this did not occur does not establish that there was no detriment or significant alteration of position. There was a trust protected by the registered restriction. Ms Bent, by her mother, will have changed her position through that settlement knowing of and inevitably in reliance upon the fact of the agreement previously reached with Mr Bent. She through her mother settled her financial provision claims in the context of having a beneficial interest and without considering settlement in the context of her not having an interest. Whilst there was no recollection of how the settlement was reached or reference to the trust in the Order, the accepted evidence is that Ms Clark had reached the agreement creating the trust and that will have been within her knowledge at all times. 108. There is also, the third point, Ms Clark’s evidence, which I accept, explained how the future life style including the fact that she stayed at the property and did not purchase a property was connected to and flowed from the decision to settle on the basis of the property being her daughter’s. I do not consider this is needed to establish detriment or change of position but there is no doubt it evidences the significant alteration of position for Ms Bent that resulted from her agreement with Mr Bent on behalf of their daughter.”
“100. Mr Williams sought to avoid that conclusion by disputing in his submissions that that Ms Bent would ever have been granted a beneficial interest in a property by the Family Court under Schedule 1 of theChildren Act 1989 . However, there is no dispute that the parents were able to agree such a result, that the Court would have made an order to that effect if asked, and that there was every reason for Mr Bent to want that to happen. I have already explained that.”
“99. Whilst it appears this was conducted amicably, though I may be wrong when this was in 2006, that does not mean that there was no contractual settlement (subject to the issue of enforceability being addressed by the constructive trust issue). Plainly there was when it was agreed that the property would be purchased by Mr Bent, be registered in his name but be held on a bare trust for his daughter. In law there was a covenant to settle identified property for an identified beneficiary. That covenant was relied upon when it was acted upon.”
“106. There is the second matter, which I do not actually think is necessary with regard to establishing detriment or significant alteration of position because of what I have previously said, but it is that the family proceedings will have been settled in the context of the trust understood to be protected by the registered restriction. Ms Clark, again acting for her daughter, will have acted on the basis and understanding of the agreement reached in 2006. She changed her daughter's position through that settlement and no doubt would have addressed the process differently had the agreement been thought not to exist or been unenforceable. If there had been no constructive trust, it would have been potentially open to Ms Clark to negotiate for more and/or different relief.”
“Upon the Parties agreeing that the payments for the benefit of the Child Aliyah May Bent (born [date] 2004) set out in paragraph 1 below will be reviewed if the Respondent Father’s income changes”