Bernadette Rogers v Andrew Wills [2025] EWHC 1367 (Ch)

[2025] EWHC 1367 (Ch)Case No PT-2023-BRS-000077IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BRISTOLPROPERTY, TRUSTS AND PROBATE LIST (ChD)Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 6 June 2025
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
BERNADETTE ROGERSClaimantANDREW WILLSDefendant
Ben Haseldine (instructed by Kleyman & Co Solicitors Ltd) for ClaimantOliver Ingham (instructed by Lawcomm Solicitors) for DefendantHearing Hearing dates: 25-27 February 2025
This judgment was handed down remotely at 11:00 am on 6 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.HHJ Paul Matthews :

INTRODUCTION

[1]This is my judgment on the trial of a claim in both contract and unjust enrichment brought by the claimant against one of her siblings, who is the executor of the estate of their late mother, Ursula Wills. Although her given name was Ursula, she was usually referred to by others as “Sheila”, and, for convenience, but without intending any disrespect, that is how I shall refer to her hereafter in this judgment. In broad terms, the claim relates to the costs of care of their late mother before she died. The events that have given rise to a claim, and the litigation itself, have completely fractured the previously united and close family relationship. It is a tragedy for all concerned. Given the costs of mounting and fighting a case of this sort, it is also an expensive tragedy.[2]There is another general preliminary point that I must make. It is that this is a court of law, and the court applies the law to the dispute between the parties. That dispute is about whether Sheila’s estate has any liability to the claimant for the care which Sheila received. It is entirely about the legal position of the claimant on the one hand and the defendant (representing Sheila’s estate) on the other. The moral position of any of the parties or their siblings is simply irrelevant. The court does not adjudicate – indeed, is unable to adjudicate – on questions as to whether one sibling has behaved better or worse towards the other siblings or their mother, except insofar as that raises a legal question. Accordingly, nothing that I say in this judgment is intended to reflect directly on the moral position of any of the parties.

Background

[3]I will have to deal with the facts in more detail later on in this judgment, but the background to the matter is briefly this. John Wills died in 2012, and Sheila died on 19 April 2020. They had nine children, of whom six survived them both. One of the children, Philip, survived his father but predeceased his mother. He had physical and mental disabilities following a whooping cough vaccination, and died in 2013. The claimant is the eldest surviving child and the defendant is the second.[4]Sheila made a professionally drawn will dated 4 December 2015, which appointed the defendant as her executor, and divided her residuary estate equally between her surviving children. Probate was granted in June 2020. The will contained a (rather old-fashioned) charging clause, enabling any executor “being a Solicitor or other person engaged in any profession or business” to charge for “all usual professional or other charges for business done services rendered or time spent by him or his firm in the administration of my estate or the trusts hereof”. This form of clause does not entitle a lay executor, such as the defendant was, to charge for his or her time spent in the administration of the estate. But he would still be entitled to reimbursement of his properly incurred expenses: Trustee Act 2000, sections 31, 35.[5]Although matters were not originally foreseen to happen in this way, from September 2017 until Sheila’s death in April 2020 the claimant was Sheila’s principal carer. The claimant says that Sheila agreed with her that she should be compensated for giving that care. This gives rise to the claim in contract. In addition, the claimant makes an alternative claim in unjust enrichment, on the basis that that Sheila’s estate has been unjustly enriched at her expense because of the care that the claimant supplied to her. In support of both claims, she says that her siblings agreed that she should not only be reimbursed for her out of pocket expenses, but also paid for the care that she supplied to Sheila.[6]The matter is unfortunately complicated by what happened immediately before and after Sheila’s death. The claimant says that she and the defendant spoke by telephone before Sheila’s death about the fact that she had so far not taken any money for looking after their mother, and that the defendant had told her to “Just take it”. The defendant denies this. After their mother’s death, however, the claimant did take sums from their mother’s account, amounting in total to £100,000. Subsequently, she was prosecuted for theft, but acquitted after a jury trial at Bristol Crown Court. The parties have not since been reconciled. It is in these somewhat fraught circumstances that this claim is brought.

Procedure

[7]The claim form in this matter was issued on 26 May 2023. It values the care during the 2½ years before Sheila’s death at £135,000. Although particulars of claim were issued, they were amended on 29 May 2024. The original defence was amended on 20 June 2024. This denies both claims. The claim was originally issued in the Chancery Division of the High Court in London, On 7 June 2023, Master Brightwell ordered that the claim be transferred to Bristol. The claim was case managed in Bristol, where it was ordered that there should be a split trial of the claim, the first part dealing with liability only, and only subsequently with quantum. Accordingly, this judgment deals only with the question of liability.[8]As part of the case management, it was also ordered that the claim be transferred from the High Court to the County Court. I cannot find that any reasons were given for the transfer, but I infer that it was because of the relatively low value of the claim and the perception of the case as a straightforward one. However that may be, when I came to prepare to try the case I formed the view that, despite its modest value, it raised a number of difficult legal questions which it was appropriate should be decided in the High Court. This would also provide for an appeal direct to the Court of Appeal, which could give an authoritative answer on the novel points of law. Accordingly, at the outset of the trial I raised the question of venue with the parties, and as a result ordered that the matter be transferred back to the High Court. HOW JUDGES DECIDE CASES General

HOW JUDGES DECIDE CASES

[9]For the benefit of the lay parties concerned in this case I will say something about how English judges decide civil cases like this one. I borrow the following words largely from other judgments of mine in which I have made similar comments. First of all, judges do not possess supernatural powers that enable them to divine when someone is mistaken, or not telling the truth. Instead, they take note of the witnesses giving live evidence before them, look carefully at all the material presented (witness statements and all the other documents), listen to the arguments made to them, and then make up their minds. The point is that there are a number of important procedural rules which govern the decision-making of judges, and which are not as well-known as they might be. I shall briefly mention some of them here, because non-lawyer readers of this judgment may not be aware of them.

Burden of proof

[10]The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case (like this one), one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. Here the claimant bears the burden of proving her case, ie(i) that there was a contract between the claimant and Sheila under which Sheila promised to pay for the care given her by the claimant, alternatively(ii) that the claimant is entitled to a sum representing the value of the care given to Sheila by way of a claim in unjust enrichment. The importance of the burden of proof is that, if the person who bears that burden 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 for those purposes it did not happen. The decision is binary. Either something happened, or it did not, and there is no room for maybe. That may mean that, in some cases, the result depends on who has the burden of proof.

Standard of proof

[11]Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case like this, it is merelythe balance of probabilities. This means that, if the judge considers that something in issue in the case 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 does not consider that that thing is more likely than not to have happened, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this. There is certainly no need for any scientific certainty, such as (say) medical or scientific experts might be used to.

The role of judges

[12]Thirdly, in our system, judges are not investigators. They do not go looking for evidence. Instead, they decide cases on the basis of the material and arguments put before them by the parties. They are umpires, or referees, and not detectives. So, it is the responsibility of each party to find and put before the court the evidence and other material which each wishes to adduce, and formulate their legal arguments, in order to convince the judge to find in that party’s favour. There are a few limited exceptions to this, but I need not deal with those here.

The fallibility of memory

[13]Fourthly, more is understood today than previously about the fallibility of memory. In commercial cases, at least, where there are many documents available, and witnesses give evidence as to what happened based on their memories, which may be faulty, civil judges nowadays often prefer to rely on the documents in the case, as being more objective: see Gestmin SGPS SPA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [22], restated recently in Kinled Investments Ltd v Zopa Group Ltd [2022] EWHC 1194 (Comm), [131]-[134]. As the judge said in that case, “a trial judge should test a witness's assertions against the contemporaneous documents and probabilities and, when weighing all the evidence, should give real weight to those documents and probabilities”. In the present case, there are a number of useful documents available, including print-outs of WhatsApp messages covering the whole of the relevant period. This is important in particular where, as here, the relevant facts have occurred over a number of years, and time has elapsed since they took place. These messages enable dates and times of various events to be fixed with accuracy.[14]In deciding the facts of this case, I have therefore had regard to the more objective contents of the documents in the case. In addition to this, and as usual, in the present case I have heard witnesses (who made witness statements in advance) give oral evidence while they were subject to questioning. This process enables the court to reach a decision on questions such as who is telling the truth, who is trying to tell the truth but is mistaken, and (in an appropriate case) who is deliberately not telling the truth. I will therefore give appropriate weight to both the documentary evidence and the witness evidence, both oral and written, bearing in mind both the fallibility of memory and the relative objectivity of the documentary evidence available.

Reasons for judgment

[15]Fifthly, a court must give reasons for its decisions. That is the point of this judgment. But judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Judges deal with the points which matter most. Put shortly, judgments do not explain all aspects of a judge’s reasoning, and are always capable of being better expressed. But they should at least express the main points, and enable the parties to see how and why the judge reached the decision given.

Failure to call a witness or put in relevant evidence

[16]Lastly, there is the question whether a party’s failure to call a relevant witness or put in relevant evidence which is available has any effect on a party’s case. The former question arose in Royal Mail Group Ltd v Efobi [2021] 1 WLR 3893, SC. In his judgment, Lord Leggatt (with whom all the other members of the court agreed) said:
“41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
[17]But the principle goes further, in that there may be things or documents, for example, which are (or were) available to a party and would be or contain evidence relevant to an issue before the court, but are never produced to the court by that party. Thus, in Armory v Delamirie (1722) Str 505, the plaintiff was held entitled as against the defendant to a jewel that he had found, but the defendant refused to produce the jewel in order to be valued. The judge directed the jury “that unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did.”[18]Thus, if a party fails to disclose relevant documents in accordance with a disclosure obligation, the court may draw an appropriate inference against the party on the issue to which it was relevant. Steyn J applied the principle recently in the case of Vardy v Rooney[2022] EWHC 2017 (QB), where an order was made for the inspection of the mobile telephone of the claimant’s witness, but the phone was allegedly “lost overboard” whilst on a boat trip a few days later. THE PLEADED CASES Claimant

THE PLEADED CASES

[19]I will not attempt to summarise the amended particulars of claim or the defence. For present purposes, I will simply extract the central points from each:
“10. At all material times, the common understanding and agreement between the siblings, and between the Claimant and the Deceased, was that the Claimant would both be reimbursed in due course for the expenses incurred by her in caring for the Deceased, and would receive reasonable remuneration for the care that she and her husband were providing the Deceased: PARTICULARS [Paragraphs 10.1-10.15 set out detailed particulars of paragraph 10. I summarise these as follows: 10.1-10.2 Expressions of desire by the deceased to the claimant’s husband in about October 2017 and “on numerous other occasions” that he “must make sure that the Claimant was paid for looking after her”; 10.3 Statement by the deceased to the claimant on 23 October 2017 that she would not return to Bristol “with her unless the Claimant was paid proper[l]y for her care”, and agreement by the claimant “that she would be paid”; 10.4 Expressions of desire by the deceased to the claimant on “numerous occasions including in February 2018 and again in October 2018” that the claimant “be paid for providing her with care”, at which the claimant reassured the deceased that she would be paid; 10.5 Similar expressions of desire to the claimant’s daughters in 2018; 10.6 At dinner with the claimant on 28 October 2017, her brother Shaun said he was “concerned to ensure that the Claimant be entitled to be paid for the care of the Deceased”; 10.7 Shaun’s WhatsApp message to the claimant at 21:48:26 on 16 February 2018, “Make sure that you are taking money for extra heating, food etc etc”; 10.8 The defendant’s WhatsApp message to the claimant at 14:06:40 on 27 July 2019 to the effect that “she should get the Deceased to pay towards the care that the Claimant and her husband were providing; 10.9 The defendant’s WhatsApp message to the claimant at 09:57:57 on 6 August 2019 saying “We (you and me) really need to sort out Mum’s method of financing her care for the time that she is with you … ”; 10.10 Maryanne’s WhatsApp message to the claimant at 16:44 on 10 August 2019 stating that “she had sent a message to the Defendant regarding a direct payment for the care provided, and that the Claimant needed paying … ”; 10.11 Various WhatsApp messages between the claimant and the defendant on 10 and 11 August 2019 referring to the message from Maryanne (in para 10.10), preparation of an invoice for the deceased, and possible access by the claimant to the deceased’s savings account; 10.12 A telephone conversation between the claimant and the defendant on about 3 January 2020 in which the defendant affirmed that the claimant was to be paid for the care she had provided and was providing; 10.13 A statement by the deceased to the defendant on 12 March 2020 to the effect that “if the Claimant did not get paid she [the deceased] would go into a home”; 10.14 A conversation between the claimant and the defendant on about 18 April 2020 in which she told the defendant “that she had not yet been remunerated for the care with which she had provided the Deceased nor been reimbursed her expenses”, and to which the defendant replied “just take it”; 10.15 An email from the defendant to the claimant at 15:45 on 1 June 2020 said in part, “You are due payment for Mum’s care and this has never been disputed. However, the costs for care have to be discussed and agreed once we see a complete breakdown of your estimate and costs incurred in delivering care and cannot just be plundered from her estate”.] 11. In the circumstances the Claimant avers that her offer to provide care for the Deceased at her home and to be remunerated for it in a reasonable sum, expressed through her conduct in providing such care and the understanding and intention of the Siblings and of the Deceased coming to live with the Claimant and being cared for by her, such acceptance arising through conduct. 12. Further, by virtue of the matters set out in paragraph 10 hereinabove, upon which the Claimant relied in providing care for the Deceased and incurring expenses, the Defendant is estopped from denying the entitlement of the Claimant to reasonable remuneration and for reimbursement of expenses incurred by her on behalf of the Deceased, from the Estate. 13. Yet further and in the alternative, the Claimant is entitled to restitution for the care provided to the Deceased and the expenses incurred in so doing by way of a quantum meruit, it having been clearly understood and expected by the Siblings and by the Deceased that the Claimant would receive reasonable remuneration and reimbursement of expenses for the care that she provided.”
PARTICULARS 10.1-10.2 Expressions of desire by the deceased to the claimant’s husband in about October 2017 and “on numerous other occasions” that he “must make sure that the Claimant was paid for looking after her”; 10.3 Statement by the deceased to the claimant on 23 October 2017 that she would not return to Bristol “with her unless the Claimant was paid proper[l]y for her care”, and agreement by the claimant “that she would be paid”; 10.4 Expressions of desire by the deceased to the claimant on “numerous occasions including in February 2018 and again in October 2018” that the claimant “be paid for providing her with care”, at which the claimant reassured the deceased that she would be paid; 10.5 Similar expressions of desire to the claimant’s daughters in 2018; 10.6 At dinner with the claimant on 28 October 2017, her brother Shaun said he was “concerned to ensure that the Claimant be entitled to be paid for the care of the Deceased”; 10.7 Shaun’s WhatsApp message to the claimant at 21:48:26 on 16 February 2018, “Make sure that you are taking money for extra heating, food etc etc”; 10.8 The defendant’s WhatsApp message to the claimant at 14:06:40 on 27 July 2019 to the effect that “she should get the Deceased to pay towards the care that the Claimant and her husband were providing; 10.9 The defendant’s WhatsApp message to the claimant at 09:57:57 on 6 August 2019 saying “We (you and me) really need to sort out Mum’s method of financing her care for the time that she is with you … ”; 10.10 Maryanne’s WhatsApp message to the claimant at 16:44 on 10 August 2019 stating that “she had sent a message to the Defendant regarding a direct payment for the care provided, and that the Claimant needed paying … ”; 10.11 Various WhatsApp messages between the claimant and the defendant on 10 and 11 August 2019 referring to the message from Maryanne (in para 10.10), preparation of an invoice for the deceased, and possible access by the claimant to the deceased’s savings account; 10.12 A telephone conversation between the claimant and the defendant on about 3 January 2020 in which the defendant affirmed that the claimant was to be paid for the care she had provided and was providing; 10.13 A statement by the deceased to the defendant on 12 March 2020 to the effect that “if the Claimant did not get paid she [the deceased] would go into a home”; 10.14 A conversation between the claimant and the defendant on about 18 April 2020 in which she told the defendant “that she had not yet been remunerated for the care with which she had provided the Deceased nor been reimbursed her expenses”, and to which the defendant replied “just take it”; 10.15 An email from the defendant to the claimant at 15:45 on 1 June 2020 said in part, “You are due payment for Mum’s care and this has never been disputed. However, the costs for care have to be discussed and agreed once we see a complete breakdown of your estimate and costs incurred in delivering care and cannot just be plundered from her estate”.]

Defendant

[20]The amended defence pleads in part: “12. Paragraph 10 is denied. There was an implied and/or tacit understanding and acceptance that the Claimant ought not to be out of pocket. There was no agreement or understanding regarding a contractual or commercial-style charging rate as alleged or at all. Further: [Pleading to paragraphs 10.1-10.15, which I summarise as follows: 10.1-10.5 Denied on the basis of inconsistencies in the claimant’s account; 10.6 The claimant is put to proof; 10.7 Admitted, though it is inconsistent with 10.5; 10.8 Denied; 10.9 Admitted; 10.10-10.15 Denied.]13. Paragraph 11 is denied. It is admitted that the Claimant was not supposed to be out of pocket in respect of the expenses of the Deceased. There never was any ‘agreement’ that the Claimant would charge the Deceased market rent for living in her house as well as commercial care rates.14. Paragraph 12 is liable is liable to be struck out, on the basis that it pleads a promissory estoppel as the basis for a cause of action. It is denied.15. Paragraph 13 is denied. It is denied that the Claimant has a valid restitutionary claim and the Claimant has failed to plead the proper elements of the cause of action as set out above in paragraph 1-4.” [Pleading to paragraphs 10.1-10.15, which I summarise as follows: 10.1-10.5 Denied on the basis of inconsistencies in the claimant’s account; 10.6 The claimant is put to proof; 10.7 Admitted, though it is inconsistent with 10.5; 10.8 Denied; 10.9 Admitted; 10.10-10.15 Denied.]

WITNESSES

[21]In the present case I heard from the following witnesses for the claimant: the claimant herself, Jon Rogers (her husband), Joanne Rogers (her daughter), and Rebecca Carnegie (her daughter). I heard from the following witnesses for the defendant: the defendant himself, Maryanne Dickinson (sister), Shaun Wills (brother), Jane Hustler (sister), and Richard Wills (brother). The last two witnesses gave evidence remotely by videolink. Their evidence was short. All the other witnesses gave evidence in person. I may add that, by agreement between the parties, all the witnesses (except for the parties themselves) remained out of court until they came to give their evidence.[22]Having heard and seen these witnesses give evidence, I make these general comments. First of all, I am satisfied that none of the witnesses was attempting to mislead the court. On the contrary, in my view, all the witnesses were honest, and were trying to assist the court. However, that does not mean that everything that every witness said was necessarily true. People make mistakes. They misremember. Sometimes they convince themselves of what they think must have happened, and their memories conform to that. In this way, false memories can easily take the place of genuine ones, and can be as convincing as any to the witness. Part of my function is to bring a measure of objectivity to the evaluation of the evidence.[23]More specifically, I considered that the defendant’s memory was faulty in a number of respects. On the other hand, just because he made a mistake in one respect, I do not consider that he was necessarily mistaken in any other respect. Every point must be judged on its own merits. Similarly, Jon Rogers was apt to become a little excited in giving his evidence, and thereby to lose objectivity. But most of his evidence did not suffer from that problem. Maryanne Dickinson displayed a sense of betrayal, which often led to her answering questions very quickly, before the question had been finished. I emphasise, however, that none of this means that I must reject their evidence, or indeed any part of it. I take it all into account, and I weigh it up with all the other evidence. Then I reach a conclusion as to what seems to me to be most likely to have happened on each point that arises.[24]For the purposes of this case, I have of course read all the documents in the trial bundle. As I have already said, this includes a print-out of WhatsApp messages between the siblings over the relevant period. There is a print-out of the so-called Sibling Chat account, and then there are print-outs of various individual text conversations between the siblings. These are contemporaneous records, warts and all, of communications between the siblings. The thing that strikes me most of all about these records is how much affection they have for each other. Theirs is a big, happy family, in which there are no secrets, only joys to be shared. Sheila is not a party to these conversations, so she is always “offstage”, but her personality shines through. These print-outs are an unusually full resource of information about what was happening in the family, and I have both relied on and quoted from them (necessarily selectively) in what follows.

DISCLOSURE

[25]One stage of the legal procedure leading to a civil trial is that called disclosure, usually conducted under CPR Part 31, or (if the case is in the Business and Property Courts) under CPR PD 57 AD. This involves obligations by the parties to the claim to disclose to each other documents falling within certain criteria. It is the responsibility of the parties, and their lawyers, to see that these obligations are complied with. As will be seen later on, in the present case, the claimant says that the defendant has failed to comply with his obligations in important respects.[26]Probably the most significant such allegation relates to an alleged failure by the defendant to disclose what he referred to in cross-examination as his “notebook” or diary, in which he recorded certain relevant matters. Other allegations relate to WhatsApp messages passing between the defendant and his siblings other than the claimant, and between the other siblings (other than the claimant). The claimant says that her solicitors asked for various documents but they were not supplied. The remedies for established breaches of the disclosure obligation vary from the most serious (striking out a party’s statement of case) to the least serious (an admonishment). I will return to this question later. FACTS FOUND Before 2017

FACTS FOUND

[27]On the basis of the evidence before me, I find the following facts. John Wills died in December 2012. Sheila Wills thereafter lived on her own in the family home in Southrepps, a village to the north-east of Norwich. She was then 85 years old, a devout Catholic and a regular churchgoer. Her children (and her grandchildren) lived in various places. The claimant lived in Bristol, more than 230 miles away. The defendant lived in Fareham, over 200 miles away. Jane Hustler lived in East Harling to the south-west of Norwich, about 50 miles away. Maryanne Dickinson lived in Lincolnshire, about 100 miles away. Shaun Wills lived closest, in North Walsham, 6 or 7 miles from Southrepps. Richard Wills, on the other hand, who was an airline pilot, lived in Vancouver, Canada. But Sheila was able to travel by bus, and managed to get around. At that stage she had no serious long-term medical problems. 2017[28]By the time Sheila reached her 90th birthday, in August 2017, she was becoming both lonely and forgetful. The question of her long-term care was being discussed by her children. There was a telephone conversation about the subject between the claimant and Maryanne. The claimant places this shortly before Sheila’s 90th birthday, although Maryanne places it afterwards, in September, following the events which I shall describe shortly. The defendant places it later than both, in about April 2018. But he was not a party to the conversation, and has no direct evidence to give of it. I think he has been misled by a similar discussion taking place in the “sibling chat” for 6 April 2018. As between the claimant and Maryanne, I think that the claimant is more likely to be right about the timing. There may also have been a discussion between Maryanne and her husband in September, but not the discussion between the claimant and Maryanne to which I am now referring.[29]During that conversation with the claimant, Maryanne offered to have Sheila live with her, but considered that in order to do so she would have to give up her part-time job. That meant that she would need to reclaim the income foregone (about £1000 per month) from Sheila, as she was supporting her children through university and her husband was a contractor who was not permanently employed. The claimant said she did not think it was a good idea. She said that it would cost more than £1,000 per month to look after Sheila, and Maryanne might not get another job afterwards, which would impact on her own state pension in the future. There were suggestions in the evidence, notably from the defendant and from Maryanne, that the claimant had a plan of some kind even then to have their mother lived with her in Bristol. In my judgment there is nothing in this. I find that the claimant did not have any plan or intention of looking after Sheila for the long term. In particular, I find that the claimant did not say to Maryanne as part of this conversation, “Bring her down to me. I’ll look after her.”[30]What the siblings did decide at about the time of Sheila’s 90th birthday was that she should give a lasting power of attorney to one or more of them. Unfortunately, this took a long time in gestation, as various changes were made to the original draft. In the end, the original draft expired and the siblings took the opportunity to create both health and financial lasting powers. So they were not actually executed until February 2018. In the meantime, other events precipitated more urgent action.[31]On Sunday, 10 September 2017, Sheila was found by her neighbours, wandering on the road in a confused state, asking after her (deceased) husband. The neighbours had contacted Maryanne, who called the claimant. Because Shaun was away on a course that weekend, the claimant had called Jane first (but she had had a drink with her meal, and therefore could not drive until later on) and then went back to Maryanne. Maryanne had driven down from Lincolnshire to Southrepps that evening and stayed overnight with her. A doctor attended. Next morning Maryanne reported to her siblings that it was believed probably to have been a TIA (standing for ‘transient ischaemic attack’, or, more popularly, a mini-stroke). And later that morning Maryanne said that Sheila did not want to be on her own at Southrepps, and had decided to go back to Lincolnshire with her. At that stage, no-one was thinking of anything but what should happen in the short term.[32]At that time, Maryanne was planning to take her daughter Harriet back to Bristol University. Because Maryanne, Sheila and the claimant were shortly to go to Devon for a short holiday, it was agreed that in the interim Sheila should go to stay with the claimant in Bristol. It may be that this is when the claimant said, “Bring her down to me. I’ll look after her.” Again, however, this is not a long-term solution, but a stop-gap until the Devon holiday. The claimant trained as a nurse, and her husband is a retired GP. So, on 13 September 2017, Maryanne took Sheila to the claimant’s house in Bristol. She was registered as a temporary resident with the local GP surgery, the Bishopston Medical Practice. On 18 September, the claimant took Sheila to Southmead Hospital in Bristol for assessment by the Department of Neurology. This confirmed that Sheila had not in fact suffered a TIA, but it was more likely the result of confusional arousal or REM (‘rapid eye movement’) sleep disorder. On 23 September 2025, Maryanne, Sheila and the claimant went to Devon on their short break, returning to Bristol on 26 September 2017, because the claimant had childcare commitments, and Maryanne did not want to stay with Sheila on her own. Maryanne stayed two more days in Bristol, and then returned to Lincolnshire on 28 September, leaving Sheila with the claimant. She told the claimant that she could not trust Sheila in her own home.[33]Before leaving for Lincoln, Maryanne told the claimant that their mother had asked how much she should give the claimant for looking after her, and Maryanne had suggested £50 per week. The claimant did in fact collect 4 payments of £50, amounting to £200, but then stopped, both because £50 did not in fact cover the total for expenses and time spent, which she would need to work out separately, and also because she did not want her mother to run out of cash. Indeed, she gave back the £200 she had taken. She told her mother that she would sort it out with the defendant later.[34]On 1 October 2017, the defendant messaged the claimant, suggesting that their mother might like to look at some old photographs which he had stored on his personal website:
“Hi Bern, if you are to show Mum Dads old slides then there are a few oldies I have that you can show her. You can find them at https://home.worldofwills.uk/photo/share/cPxXXKb1 use the password '[redacted]' when prompted. These photos were taken in '78-'79 at Southrepps.”
[35]By 2 October 2017, the defendant had completed the power of attorney form for their mother. He messaged his siblings as follows:
“Morning All. I have completed the POA application and have put the POA document in http://home.worldofwills.uk/Home/lasting-poa/ . Please take time to read it. The document now needs to be printed and signed in the correct order. From my reading of it, the order is Mum followed by Cilla and then Bern, Maryanne, Richard and me. Signatures need to be witnessed as per the instructions at the front of the document. Bern, as Mum is with you, can you please print the pdf and go through it with her and get her to sign it.”
Evidently, the defendant had no doubts at that time of Sheila’s capacity to give a power of attorney. Nor did anyone else. On 4 October Maryanne asked if the power was both health and financial. The defendant replied the same day:
“Hello Maryanne, its clearly stated on the third page of the document that this is a POA for property and financial affairs.”
Maryanne thereupon suggested that one be prepared also for health matters. The defendant said “I don't fully agree.” (Nevertheless, eventually two powers were prepared.)[36]Sheila’s presence in the claimant’s house resulted in significant changes to the claimant’s and her husband’s routine. First, it meant that she could no longer look after her grandchildren. That resulted in a loss of income. One of her daughters thereafter had to give up her job as a result. Another had to pay a higher, market price for professional childminding. The claimant could not leave Sheila alone in the house, for example to go out shopping. The claimant and her husband had to change their car, because the previous one was too small for Sheila to get into and out of safely. They had to make adjustments at home, including carpeting areas which were not carpeted before, in case Sheila fell and injured herself. While Sheila was away from her home in Southrepps, Shaun went round from time to time to check that everything was all right.[37]Towards the end of October 2017, during the school half-term week, the claimant returned to Southrepps with Sheila, who was by now in a better physical and mental state. She was looking forward to going back to her home and her church. In the meantime, the claimant had arranged to meet a representative of “Home Instead”, a professional care service which provided care to elderly people in their own homes. The claimant’s intention was that Sheila should stay in her own home, but with professional carers coming in. Accordingly, on the way back to Norfolk, the claimant explained that this was what she was thinking. Shortly after arriving back home, Sheila told the claimant that she did not want to stay in Southrepps with live-in carers, and asked whether she could come back with her and stay in Bristol. Nor did she want to stay with Jane, who had a young child, or with Maryanne, who had recently married. Richard lived abroad, so that was not possible. And the defendant did not suggest that Sheila went to live with him.[38]During the time that they were at Southrepps, they had dinner at Shaun’s house, when he expressed concern that the claimant should not be out of pocket for caring for their mother. The claimant agreed to take her back to Bristol. Before they left, Sheila insisted to the claimant that her return to Bristol would be on terms that she “wanted to pay her way”, and the claimant would be “paid properly” for looking after her. The claimant agreed that she would be. There was no discussion as to the amount that would be paid. That was left over for the future. On the evidence, I am satisfied that that was the basis upon which they returned to Bristol, on 2 November 2017. Shortly after their return, Sheila told the claimant’s husband Jon that “I don’t want charity. You must make sure that [the claimant] is paid for looking after me”. In cross-examination, the defendant agreed that at that stage she would have had capacity to make a contract, but insisted that Sheila had no experience of money matters, which she had always left to her husband.[39]On 1 December 2017 Sheila was found on the bathroom floor in the early hours, confused and hot. The claimant took her to the GP the same morning where she was diagnosed with a chest infection, and she was prescribed antibiotics. On 11 December the claimant took her mother again to the GP about low back pain, for which she was prescribed further medication.[40]The defendant, who is now retired, but whose most recent employment was (as set out in his witness statement) “in senior management within the information technology sector”, visited his mother at the claimant’s house on 12 December 2017. He also gave advice to his siblings about matters including what should happen to the renewal of her house insurance, what to do with her bank and savings accounts, checking the Southrepps house, and downloading and filling in a power of attorney form. He took on the last of these tasks. Most of the others in fact devolved upon the claimant. On 13 December 2017 the claimant took Sheila to the hospital for back x-rays. Nothing of importance was found. 2018[41]On 22 January 2018, Sheila and the claimant had a telephone consultation with the Bristol GP, about a referral for Sheila to the eye clinic. The GP recorded in the notes: “daughter cannot confirm how long her ‘temp res’ status will actually be it has been long enough to actual consider standard registration so we would at least have full access to records/notes daughter says it is not needed at present as will be takign [sic] her home again soon”.[42]On 28 January 2018, and again on 20 February 2018, the defendant sent messages to the claimant about her being paid. The first message reads, in part “You also need to be compensated for mum living with you.” The second message reads, in part, “You also need to ensure you are not out of pocket while grannysitting Mum, she should cover your costs of return trips to Norfolk, contribute to the household budget etc.” In response to the second message, the claimant answered, “Thanks Andy. Might put up the rent soon. £50 at the moment but will see.” As I have already found, the claimant did take four weekly payments of £50 when Sheila first came to stay with her, but then gave that money back. She did not take any more money from her mother.[43]From 2 to 4 February 2018, the claimant’s husband Jon was in hospital with pneumonia, and the claimant looked after her mother alone. On 10 February 2018, the claimant drove Sheila up to Lincoln, where they had lunch with Maryanne, and then on to Southrepps in Norfolk. The next day they had lunch with Shaun. Later that same day, Shaun messasged his siblings:
“Seriously though!! Watching the dynamics of Bern with mum I'm utterly humbled!! But also grateful to be a part of the whole circle of life thing”
. Maryanne replied:
“I just hope mum doesn't insist on staying in southrepps, she won't stay good for long”
. Richard messaged to say he agreed. And Shaun added:
“Agreed. !! If she stays on her own, she is lost. If she insists on staying, I'll go stay there too.”
[44]On Monday 12 February 2018 Sheila and the claimant attended the funeral of one of Sheila’s old friends, Dorothy. Shaun also attended. On 15 February 2018, whilst still in Norfolk, Sheila finally signed the lasting powers of attorney that had been originally prepared by the defendant, and printed out by Shaun, for both(i) property and financial affairs, and(ii) health and welfare, in favour of the claimant and the defendant jointly. In each case, Maryanne and Jane were to be replacement attorneys. Both documents were witnessed by Shaun. Because signed pages were being sent in by other siblings, the final completed forms were not sent off to the Office of the Public Guardian until mid-March. (The property and financial affairs power was ultimately validated by that Office on 9 May 2018, and the health and welfare power on 10 May 2018.)[45]Although earlier in her stay at Southrepps Sheila had expressed the thought that she might stay there, both the claimant and Maryanne expressed the view that she should not be left on her own. Sheila and the claimant visited Jane so that Sheila could see her young grand-daughter Martha. The claimant’s witness statement says:
“52. Whilst we were there, I asked Jane “how much [she] would charge for looking after Mum”
. This had been on my mind recently after my discussion with Shaun … 53. Jane’s mother-in-law had recently gone into a care home, and Jane confirmed to me that she ‘wouldn’t care for Mum for less than £3,000 per month and she would expect additional carers to help manage Mum’s needs effectively’.” This evidence was not challenged in cross-examination, and I accept it.[46]On 16 February 2018, Sheila and the claimant returned to Bristol. On the same day Shaun sent a message to the claimant saying “It’s not right for you to have all the burden. Sure I know it’s an honour and privilege but it’s also a burden. Make sure you are taking money for extra heating, food etc etc”.[47]On 28 February it snowed heavily in Norfolk. The defendant messaged:
“Hi Bern, I hope you left Mum's heating on to stop her house freezing.”
Shaun replied:
“The house was just fine on Sunday. Pleasant but not hot”
. On 5 March the defendant messaged again:
“Hi Shaun, did Mum's house survive the cold snap, no burst pipes or anything like that?”
Shaun replied: “Not been over Andy. Will check Sunday”.[48]On 6 and 7 March there was a series of strongly worded exchanges between the defendant and Shaun about child abuse by Catholic priests. They disagreed on a number of points. On 21 March Sheila was ill with severe vomiting. The claimant called the GP, who visited her at the claimant’s home the same day. On 31 March there was another strongly-worded exchange between the defendant and Shaun about religion, in which Richard also joined.[49]In late March 2018 the claimant and her family went on holiday to France, and during that time Sheila stayed for a week with Maryanne, and then with Shaun over Easter, and finally with Jane (from 8 April). (In fact, when the claimant and her husband returned to Bristol on 2 April, they found that the house had been burgled in their absence. There was then a lengthy series of messages about what jewellery Sheila might have had in Bristol, and whether any had been stolen.)[50]On 27 March Maryanne messaged the claimant, “In some respect I wish I wasn't going away and I could keep her here until you came back. I think next time you need to go away I will come to Bristol and look after her there.” Earlier in the month the claimant had told her siblings that “We will see how she feels after that about staying in Norfolk but she felt quite scared when I took home last time and was very keen to return with me. Maybe sunshine and warm weather will help her feel more confident. We’ll see how it goes”.[51]During the time that Sheila was with Shaun, he found that she was becoming more forgetful, and often did not recognise people or places. He initiated a discussion with his siblings about her future care. The claimant contributed the observation that she had experienced the same thing with Sheila over the past few months. Shaun said he was prepared to look after their mother, but with professional care support two or three times a day. Maryanne also offered to look after Sheila, though she would need to be provided with the equivalent of £1000 a month in order to replace the lost income from her job. Jane had made enquiries of a care home near her. But none of these suggestions was taken further.[52]Obviously, Sheila could not live with Richard in North America. And neither the defendant nor Jane ever made any suggestion that she should live fulltime with either of them. No doubt they had their reasons, though these were not explored at the trial. I note that the defendant’s evidence at the criminal trial was that he could not have Sheila living with him and his family, as “his house was not suitable”. How it was not suitable I do not know, and it is not an issue that I need to determine. But I note that in his witness evidence, the defendant said (at [47]) that Sheila was “staying in a spare bedroom on the first floor at [the claimant’s house] which did not have an en suite or any other facilities or adaptations suitable for an elderly person”. Perhaps the defendant meant something similar. And yet Sheila lived with the claimant for 2 ½ years in such circumstances.[53]Although on 6 April the claimant had asked the defendant whether he would “be up for taking Mum home to her house this week”, his reply was “that'd be difficult as we only have one car right now”. And so Sheila went to stay with Jane. Two days later the defendant’s wife got her car back from the garage and the defendant could offer to go to Norfolk and take her back to Bristol. But the claimant said that their mother seemed settled at Jane’s and not to bother. On 10 April Jane took Sheila to Southrepps for the day. On 14 April the claimant had a WhatsApp exchange about how much cash Sheila ought to have with her, as she was telling Jane that she wanted to withdraw a further £500 from her account. The claimant messaged Jane “It may be because she wants to give you some money”. She sent a further message saying, “also Jon and I have been discussing how much she contributes for staying. The previous £50 / week is not enough for full board and what feels like 24 hour care”. There were problems in arranging Sheila’s return to Bristol, as everyone had commitments. In the end, on 15 April, Jane took Sheila as far as Stowe, where they met the claimant and her husband, who took Sheila back home with her. Bristol was gradually becoming the default position.[54]On 24 April Shaun messaged his siblings:
“Please what is the long term plan for mum. I use the word ‘plan’ in its fullest meaning! We can't pass her about too much it confuses her. Happy to move in to southrepps with her from October but will need care checking her during the day! Happy fir [sic] her to stay there Bern or get sheltered accommodation. We keep talking but not acting and mum is just getting worse bless her. Frank and open discussion at Stephen's wedding?”
[55]On 6 May 2018, the defendant’s son Stephen was married in Fareham, and the siblings attended, together with their mother. On 16 May 2018 Maryanne visited Bristol and stayed with Sheila while the claimant spent time with her new grand-daughter. On 16 May Maryanne took Sheila to the GP to discuss her memory loss. The GP notes say:
“Short term memory not as good as it was, gradual decline.”
On 17 May 2018 the GP wrote to the Memory Clinic at Southmead Hospital to seek an appointment for her at the Clinic, on account of gradual decline in memory, affecting activities of daily living. On 27 May 2018 Sheila trapped her leg in the car door, and suffered a tear to her skin. The claimant dressed it herself, but called the surgery on 29 May as the skin was peeling. On 30 May, the claimant took her to the surgery where the practice nurse assessed the wound and redressed it. On 4 June the claimant took her back to the surgery for redressing and further assessment. (There were further GP appointments in June about this.) Maryanne visited again in early June, and then again in mid-June. Meanwhile, the defendant and his wife went on holiday for a month to Belgium and Holland.[56]On 17 June 2018 the claimant’s husband Jon prepared a handwritten note for the claimant, reflecting different options for formalising the arrangements under which Sheila was to be looked after. In a column on the left-hand side of the page he set out seven options as follows:
“1. Back to Southrepps 6 hrs/day £4000 pm 2400 pm 2. Stay with Jon and Bern 3. Stay with Maryanne 4. Stay with Shaun 5. Care home £800 pw = £3500 pm St Monicas £5000 pm 6. Stay with Jane 7. Stay with all 4 for three months each”
. There was no suggestion in this document that Sheila should live either with the defendant or with Richard.[57]Having spoken to Sheila, the claimant’s husband Jon completed a second column, headed “Mum wants” with a score for each option. Option 1 had the highest score, 9. Option 5 had the lowest, 0. Options 2, 3 and 4 had 7. Option 6 had 5, and option 7 had 3. On the right-hand side of the page opposite option 1, he wrote “Give this a go? Lonely in the evenings”. Opposite option 7, he wrote “Difficult”. Opposite option 2, he wrote “Benefits Close to grandchildren Jon and Bern available Close to shops 9 months expenses Settled Can attend mass GP Podiatrist Appointments arranged Dentist Optician Shopping 3 strong meals/day Regular [illegible] Personal care Costs for Jon Bern Time + commitment Privacy Loss of flexibility Loss of wages Costs of heating”. Close to grandchildren Jon and Bern available Close to shops Settled Can attend mass Podiatrist Appointments arranged Dentist Optician Shopping Regular [illegible] Personal care Costs for Jon Bern Time + commitment Privacy Loss of flexibility

Loss of wages

[58]The claimant’s daughter Joanne said in her written evidence:
“17. Once Grandma moved into Mum’s, she came out of her shell and would tell me when I visited how much that she enjoyed staying at Mum’s … 18. I would visit Mum three or four times a year for the weekend and stay for a fortnight over Christmas. It was a great opportunity to see Grandma at the same time. Grandma would regularly tell me when I visited that she wanted to make sure ‘Bern gets paid’ for the care she was providing and ‘Bern should not be out of pocket’.”
This evidence was challenged in cross-examination, but the witness stuck to it, and I accept it.[59]The claimant’s daughter Rebecca said in her written evidence:
“22. From discussions and observations over the time Grandma lived with Mum, I know she was reluctant to take on Grandma’s care, and she continued to look for alternatives or additional support to which Grandma would agree. Grandma was terrified of going into a home and made it clear to Mum on numerous occasions and in the face of alternatives, that she wanted to remain living and being cared for by her.”
This evidence was not challenged in cross-examination. Rebecca also added that Sheila discussed options with her, but not actual costs. I accept her evidence.[60]In summer 2018, Sheila’s medical condition deteriorated. On 2 July, she had a blackout and collapsed in the claimant’s bathroom. The following day (3 July) the claimant for the first time noted that her mother had what was eventually diagnosed as a prolapsed rectum, which from time to time protruded and caused her a great deal of pain when it did. The rectal prolapse in particular made it difficult for Sheila to be either standing or sitting for long periods of time. When it was bad, in practice it was not possible for her to travel long distances by car. As the prolapse would appear when she had a full rectum, Sheila consequently did not want to eat. She had several GP appointments to try to deal with this.[61]The same day (3 July) the claimant took Sheila to the GP, and then on to the hospital, “in case [Sheila] had had a mini heart attack”. She had a brain scan at the hospital, and later that day the claimant messaged her siblings that “The diagnosis which has come back from that is that Mum has vascular dementia.” She was seen again a week later, and referred to the colorectal surgeon on 11 July. She was reviewed on 16 July, when the GP examined her, and agreed to write to the colorectal team to see her earlier if possible.[62]Maryanne came to Bristol in mid-July to see Sheila. On 23 July the defendant sent a message to the claimant asking whether Shaun had “repaired Mum's water tank ball valve yet”. The claimant replied the same day, “Am fairly sure Shaun hasn’t had time to fix ballcock yet as he is decorating his house furiously in order to move out soon, but am sure he will organise it/do it as soon as he is able.” The defendant’s response was “I half think that Shaun could get up there for a half day after all the old folks did for him over the years”. On 30 July, Sheila was seen by the optometrist, who reported “Dense bilateral cateracts with suspicious optic nerve heads”. On 31 July the defendant visited Sheila and the claimant in Bristol.[63]On 31 July 2018 Shaun sent a message to his siblings commenting on the ball valve leak which ran through an overflow pipe into a gutter, saying that it was “small feed”, and “I simply wouldn't bother”. He went on “Before worrying about the small stuff, get a decision on the long-term plan. I know decisions are not things this family does but try breaking some old habit. Better an imperfect decision today than a perfect one tomorrow. Tomorrow never comes.”[64]The defendant did not agree:
“NO, sorry Shaun. It does matter. If it can be fixed with little effort and cost then it should be done. I do not want Mum's brickwork ending up soaked through as it was last time as this could cause other problems inside the house and render it uninhabitable. We should fix the small stuff that can be fixed or it will fall into disrepair.”
[65]Shaun responded that it would not fall into disrepair, and “there is no risk”. But the defendant insisted:
“It's been bodged and has to be unbodged so that there is water in the kitchen, and that the toilets will flush when anyone goes up there.”
[66]Shaun’s reply was:
“If you want to organise a plumber then take several days off while you wait in for them not to show then go ahead! Lastly, It's the utter least of any of the worries! The rain water drains, leaking conservatory roof & damp in back bedrooms should be the concern. I don't have time to do that or even think about organising someone to do that. I'm stretched thin to breaking point as it is.”
[67]On 9 August Sheila visited the GP with the claimant for her medical review. At the GP’s invitation, Sheila gave her views to the doctor on her medication. This suggests that the doctor thought that Sheila then had capacity to deal with this. On 20 August 2018 the claimant took Sheila to the colorectal clinic at Southmead Hospital. Later in August 2018, the claimant and her husband went on a walking holiday in Pembrokeshire. Maryanne and her husband took Sheila on holiday to Devon. Afterwards, however, Sheila went back to stay with the claimant in Bristol. On 31 August the defendant complained to his siblings that although he had “had a month in Belgium & Holland in June/July, a few days in the New Forest and a week up in York”, it “just feels like I need another holiday as I am also doing the damn DIY and not getting out on the bike”.[68]On 11 September 2018 Sheila was given a formal diagnosis by the GP of vascular dementia, on the basis of the CT head scan done in the local hospital, which “confirm[ed] periventricular white matter changes inkeeping [sic] with small vessel disease”. Sheila was referred to the “dementia navigator” to see her at home. It does not appear from the notes that any cognitive assessment had been carried out on her, except the GP COG patient examination, in which she scored 4/9. On 17 September the claimant told her siblings that Sheila was suspected of having glaucoma, and was being referred to the eye hospital. On the same day, the GP directed that Sheila be referred to the community audiology service, because of her hearing difficulty. The letter was sent out on 24 September. On 17 October the home hearing testing service wrote asking for the referral. This was sent out on 22 October.[69]On 19 October 2018 the claimant took Sheila to Maryanne’s in Lincoln, where they had lunch, and then on to Southrepps, where they had supper with Shaun. On 23 October they drove down to Jane’s for the afternoon. On 25 October the claimant and Sheila returned to Bristol. On 7 November the claimant told her siblings that their mother “definitely has glaucoma, which will be treated with laser surgery in the next few weeks and eye drops.”[70]On 15 November, Shaun messaged his siblings:
“Hey family, just talking to mum. She would love a letter from one or two of us please”
. Maryanne replied that she had recently sent one, with a positive response. The claimant said: “I was going to ask you all to drop something in the post too.... mostly because she finds it very difficult to hear on the phone but spends ages reading letters- a bit sad as they are usually from the hospital. (I have to steal them from her otherwise I can’t keep track of appointments) maybe you could all send one a month?” (Maryanne returned to this theme in January 2019.)[71]On 21 November, the defendant asked Shaun if he could arrange for a builder to fix “a broken or missing ridge tile” on the roof of their mother’s house. Shaun said he would do that, but added, “Is mum ever returning there? If not it will continue to deteriorate”. The defendant’s answer was “No, I do not believe that Mum will be returning there. It won't deteriorate if you look after it, but in all honesty, it should be sold.” Shaun commented:
“She [Sheila]’s been saying to sell it for years. She seems to think Andrew has to do it.”
The defendant replied “In that case I'd delegate it to someone living closer to the house.”[72]On 22 November Maryanne sent a message to the claimant saying, “I sent Andy a message directly yesterday, trying to sort a direct payment to you for mum. You need paying so when he mentions it agree. X i don't think we should be selling yet but you do need paying properly without stressing mum over it.”[73]On 4 December 2018 the defendant and his wife drove up to Bristol for the afternoon. On 8 December 2018 Maryanne came to Bristol and stayed the night. On 21 December Shaun drove over from Norfolk to Bristol. He drove back on 23 December. From December 2018 Sheila began to suffer from faecal incontinence. 2019[74]On 8 January 2019, the claimant took Sheila to the glaucoma clinic at the Bristol Eye Hospital for a follow-up. On 18 January there was a further GP consultation about the rectal prolapse. On 21 January, after Sheila suffered extreme pain, the GP prescribed Oramorph (pain relief) in relation to the prolapse. A letter was sent by the GP to the colorectal surgeon at Southmead Hospital on 31 January.[75]At the end of January 2019, it was discovered that neighbours adjacent to Sheila’s house in Southrepps had removed part of the shared fence and chopped down a tree, and appeared to be building extra properties right up against Sheila’s boundary. The WhatsApp discussion between the siblings about this began at 10:47 AM on 30 January and continued all that day, and indeed for the several days after that, resulting in letters being sent to various parties by 4 February 2019. Jane visited the house and took photos which she shared with her siblings. The matter was revisited (inconclusively) by the siblings at intervals thereafter. On 28 March 2019 the defendant told the claimant he had contacted a solicitor for advice. (I may as well say now that, so far as I can see, this problem was not resolved in Sheila’s lifetime.)[76]In the meantime, on 12 February 2019 the defendant and his wife once more drove up to Bristol for the afternoon. On 22 February the GP spoke to the claimant about Sheila’s symptoms, including shortness of breath and chest and back pain. Later the same day there was a face to face consultation, when Sheila was examined by the doctor, and in which the GP said this was “more angina”, but the family was “encouraged to have EoL [end of life] discussions”. The GP must have assumed that Sheila had sufficient capacity for this purpose.[77]On 26 February 2019, Shaun and the claimant exchanged text messages about Sheila’s health, as she had been talking to the claimant about dying. Shaun sent a message to the claimant saying “Would it be feasible for me to collect her and look after her till the end do you think?” The claimant’s response was (in part) “Wouldn’t think so Shauny. I will put it to her. She would love the idea in essence but suspect her dementia wouldn’t!”[78]At the beginning of March 2019 Maryanne looked after Sheila whilst the claimant was away for a weekend in London. The claimant’s unchallenged evidence was, and I find, that she was paid £350 for this. On 12 March 2019, the claimant told Richard in a WhatsApp message, “She is living with us now partly as she cannot manage by herself any more and partly as we, and this includes her, are unable to come up with a solution that she would prefer. Her absolute preference would be, to be in her home, probably with full time carers as she now needs nursing care as well. She has been increasingly keen to go into a home and we are working on that as a possibility as well”.[79]On 21 March the claimant flew to New York to see her new grand-daughter, returning on 26 March.[80]On 25 March 2019, there was WhatsApp discussion between the siblings as to whether Sheila’s house should be sold. The defendant expressed the view in several messages that the house should be sold “to release the funds to pay for her long-term care”. Richard agreed with him. Maryanne disagreed. She said “It is not right to get rid of her belongings just because you want rid and can’t be bothered with an old ladies feelings. She is in a fragile place and needs careful handling. If you took a more active roll [sic] in her care you would know that”. By the end of March, the claimant was reporting to the GP’s surgery that Sheila was now doubly incontinent, and that she (the claimant) was struggling to cope.[81]Later in the month, when the claimant and her husband went on holiday for a week, Sheila went into a care home. Maryanne sent flowers and a Mother’s Day card to Sheila there. She told the claimant, “I feel awful as no way can get down”. When the claimant and her husband returned, and collected her on 8 April 2018, the care home staff told them that Sheila had become very withdrawn and refused to leave her room. On 24 April 2019, the defendant’s daughter was married, and there was another family get-together in Fareham, including Sheila.[82]On 3 May, the claimant took Sheila to see the GP about the varicose veins in her right leg, which have been visible for several weeks. But there were no signs of any deep vein thrombosis. On 25 May 2019 Maryanne came over to Bristol and stayed the night.[83]On 4 June 2019, the GP recorded a consultation in which a suspected skin cancer had been noted below the left eye. A referral was made to the dermatology service, and the letter to that service was sent out on 11 June. On 20 June 2019, the defendant sent a message to the claimant, “we really ought to get Mum's house sold so that she can pay to have more care and not be too much of a burden on you and Jon.”[84]On 2 July 2019 the defendant and his wife visited Bristol for the day. On 17 July 2019, Dr Ibitoye from the Pre-operative Complex Care Assessment Team at Southmead Hospital wrote to the surgeon who was to carry out the surgery to deal with Sheila’s rectal prolapse, She stated that, as a result of her vascular dementia, she did not have capacity to consent to the procedure. On 27 July 2019 there was an exchange of messages in which the claimant brought the defendant up to date on Sheila’s possible surgery for the rectal prolapse. The defendant commented, “Thanks Bern, you really should get Mum to pay towards the care you are both providing”. The claimant replied, “We will do Andy! No childcare this week - all Grandbabies are off on hols so top priority is to send you all email outlining care possibilities and costs.”[85]At the beginning of August Maryanne and her husband visited and stayed for the weekend. (They visited again on 25 August.) On 6 August, the defendant sent a message saying in part, “We (you and me) really need to sort out Mum's method of financing her care for the time she is with you.” On 11 August, the claimant sent a message to the defendant saying “Am putting together an invoice for Mum.” The same day, the defendant responded, in part, “But do you have access to her savings?, if not, then we need to make sure you can 'draw down' on Mum's account”. Also in August 2019, after discussing the matter with her GP on 7 August, Sheila signed a form confirming that she did not wish to have cardio-pulmonary resuscitation (popularly known as “Do not attempt resuscitation”, or DNAR) in case of cardiac arrest. Given that her GP was involved, I proceed on the basis that the GP was then satisfied that Sheila had sufficient capacity to make this statement.[86]On 20 August, shortly before Sheila’s birthday (26 August) the defendant and his wife visited Bristol again. The defendant’s wife left her “hoodie” behind. The defendant asked the claimant to send it on to her, and “she will reimburse you”. The claimant replied that she would, but “No reimbursement needed though”. The defendant’s response was “NO, make her pay!” This was not discussed at the trial, so I do not know whether (for example) it was intended to be a humorous statement. On 22 August Richard sent a message to the claimant, asking where to send birthday flowers to Sheila. The claimant told her she was still with them, that the defendant and his wife had just visited, and that Maryanne and her husband hoped to be there on the day. Richard replied, “I’d love to visit, but because of the tax gestapo I have to avoid spending too much time in the UK.”[87]I mention here that, at the end of August 2019, the GP practice at which Sheila had been registered closed down, and she moved to another, the Montpelier Health Centre.[88]At the beginning of September Sheila’s medical condition deteriorated, in particular her kidney and heart function. On 2 September Maryanne sent a message to the claimant, “Working tomorrow, we'd [sic] and Thur. If she declines rapidly call and I will come down and help out. Work will have to wait.” Happily, however, Sheila did not decline further, and Maryanne and the claimant once again took her on holiday to Devon later that same month.[89]On 11 September 2019 the claimant messaged the defendant “Also Andy, please could you send your I.D details to Hansells? They do need our details because they are dealing with me/us rather than Mum herself.” Hansells were the solicitors engaged to advise on the party wall problem with Sheila’s house. The defendant’s reply was “Hi Bern, Hansells will have to wait; I'm away on France until the 8th October. Can they proceed for now?” The claimant’s answer to that was “They won’t do anything until they have our details, but they’ll just have to wait ... ”[90]After the return of Sheila and the claimant to Bristol, the claimant reported to her siblings that their mother was in a lot of pain because of her rectal prolapse, but also often she could not remember where either the toilet or her room was. Shaun called in to see Sheila and the claimant, and stayed overnight on 22 September, as he had a work meeting not far away the following day.[91]On 10 October Maryanne said that she had booked the week of 18 February 2020 as annual leave from work, and so, if the claimant wanted to go away with her family then, Maryanne could come and stay in Bristol to look after Sheila. On 15 October the GP recorded that Sheila had sufficient capacity for referral to “BCH Single Point of Access”. (I assume that “BCH” stands for Bristol Community Health.) On 23 October, urine analysis showed that Sheila was suffering from a urinary tract infection, and antibiotics were prescribed. On the same day, Shaun visited again, when he had another local work engagement, Also in October 2019, Sheila had biopsies taken of lesions on her face. One, on her left cheek, was found to be a squamous cell carcinoma, and the other, under her eye, was found to be a melanoma. Surgery to both sites was recommended.[92]On 6 November, the claimant took Sheila to Almondsbury, near Bristol, where Shaun was staying for work, and they had a meal together. On 18 November Shaun was again in the area and came to the claimant’s for dinner. On 20 November, the defendant and his wife once again drove up to Bristol for the day. The surgery to Sheila’s face was carried out on 23 November 2019. In a follow-up consultation in December, a further skin cancer was found in her right eyebrow. The consultant said she would wait for the existing wounds to heal further before excising it and closing the site. On 14 December 2019 Maryanne visited for the day. The claimant texted later, “thank you again for coming- it [d]oes Mum a power of good.” On 29 December, Richard called in for a few hours, having just flown into Gatwick. 2020 Up to Sheila’s death[93]On 4 January 2020, Maryanne sent a message to the claimant, “Would you like to come to Devon with mum this year?” On 8 January the claimant replied, “Sorry I didn’t see above about Devon. Yes I would love to go to Devon if Mum’s up to it. Not sure she’ll be around though.”[94]In her witness statement, the claimant said that she had a telephone conversation with the defendant in January 2020 in which they discussed the costs of Sheila’s care:
“62. Andrew and I called, and he subsequently cancelled Mum’s YBS account to make things simpler. I also told Andrew I needed to sort expenses and care costs for Mum, and I also proposed hiring additional carers to assist with Mum.”
When she was cross-examined, the claimant was clear that she had had a long telephone conversation with the defendant about charging for Sheila’s care. But, she accepted, there was no reference to particular figures.[95]The defendant did not challenge the evidence that he and the claimant spoke together on the telephone at this time. The relevant part of his witness statement reads:
“62. … On 15 January 2020 on the SC Chat, the Claimant advised that ‘things are hotting up care-wise and I will need to be able to have access to her money’. I duly signed forms to enable Mum’s building society accounts to be transferred into her current account. Mum’s Yorkshire Building Society account was closed and funds moved to her Lloyds account. My understanding from what the Claimant had told me was that these funds were going to be used in order to employ professional carers. I am sure this did not happen. As far as I am aware the Claimant took nothing from Mum’s Lloyds accounts to pay for professional carers whilst Mum was alive.”
[96]The defendant was not cross-examined about this evidence. But the “WhatsApp” message set out above would not be enough by itself to explain the defendant’s actions as set out in that paragraph. I find that there must have been further communication between them, and that it was the telephone conversation referred to by the claimant.[97]On 20 January the claimant took Sheila to the Bristol Eye Hospital in relation to her glaucoma. On 22 February Maryanne and her husband visited again for the day.[98]On 2 March Maryanne texted the claimant about a telephone conversation that she (Maryanne) had just had with their mother:
“She was going on about going home, so I said ok, you think your [sic] fit to go home I'll arrange it with Bernie for me to collect you, take you 6 hours back to your house, leave you there. I'll visit I. [sic] 2 months time will you be alright all on your own, with no one to talk to? She replied it's alright for you, you have a car. You don't know what it's like having to rely on busses. Not the reply I expected, nor did she say I'll go and pack. It's almost as if she has to complain, call her bluff she still complains. And I didn't go and visit her! Can't win.”
[99]The claimant replied:
“No we can’t can we? It’s a huge learning curve in unconditional love and compassion which is sorely and often tested! I hope you are ok - and don’t take it personally! There is very little logic or rationale in her behaviour or her reasoning but she is so frustrated that she lashes out. I am sorry you got such a lot this morning … ”
[100]Maryanne’s response was:
“It's heart breaking to see and hear her. She seems to have no idea how well she is being looked after and thinks she's as fit as a fiddle. You can tell she gets great joy from the little ones, but she can't comprehend that she won't see them if she went home. Old age is cruel. Hope you had a better day with her.”
[101]On 3 March 2020 the basal cell carcinoma found in Sheila’s right eyebrow was excised at Southmead Hospital. On 11 March the claimant called the GP because Sheila was suffering from vomiting. It continued over until the morning of 12 March. On the same day, both Richard and the defendant and his wife visited Sheila in Bristol. The claimant’s witness statement says (at [69]):
“Mum, Andrew, Fiona (Andrew’s Wife), Richard, Jon, Charlotte and I had lunch together in March 2020. The purpose of the lunch was to discuss care for Mum, this meant discussing money for her care and expenses, Mum’s rectal prolapse operation and her general health status. We also discussed Mum going into a care home for respite care whilst Jon and I were going on a pre-booked skiing trip in April 2020. The Siblings were unwilling to care for Mum, so a care home for this period was the only viable option.”
[102]There was no challenge to this evidence in cross-examination. The defendant’s witness statement (at [64]), refers to the lunch, saying “Mum did seem disoriented at lunch,” but not referring to anyone else who attended. As to the need for a care home during the claimant’s proposed holiday, the defendant’s witness statement simply says that “the Claimant was planning a holiday and again was looking to put Mum into a home”. There was nothing about it in Richard’s witness statement. I find that the conversation at lunch took place as set out by the claimant.[103]On 22 March the defendant sent a message to the claimant, “Thanks hugely for taking care of Mum in these troubled times. If there is anything I can do for you do not hesitate to call.”[104]The claimant and her husband had arranged a week’s holiday abroad for the end of March, and Sheila was potentially arranged to go into a care home for that time, as Maryanne was not able to cover, and no-one else offered. But in the event the arrangement was overtaken by the Covid-19 “lockdown”, and they did not go. The then Prime Minister announced the first UK-wide lockdown, requiring people to stay at home, on 23 March 2020, and it came into force at 1 pm on 26 March 2020. (The rules were changed on 11 May 2020 to produce separate regimes for different parts of the UK, but these are not relevant to this case.)[105]On 2 April 2020, Sheila had a fall on the stairs at the claimant’s home, and was taken to hospital (the Bristol Royal Infirmary). Because this was during the Covid-19 pandemic lockdown, the claimant could not accompany her there. The claimant told her siblings of these events by WhatsApp message at 13:46 the same day. At 16:27, she messaged to say “Nothing broken – they don’t think! Just waiting for chest x-ray – might have broken a rib but otherwise they are going to discharge her soon”. But at 17:29 the claimant sent another message:
“Ok so not such jubilant news after all. They’ve just called again, we thought to ask us to please take her away, but she has come back from x-ray and they’ve found she has broken ribs and a pneumothorax ... not very good news I’m sorry to say. I wish they hadn’t called earlier and given us such hope....”
[106]The next day, the medical team decided nevertheless to discharge her home. The discharge summary from the hospital dated 3 April 2020 referred to “Trauma CT –multiple rib fractures and right pneumothorax. Conservative management”.[107]The defendant’s witness statement says this (at [66]):
“On 02 April 2020 the Claimant reported that Mum had fallen at her home. She advised that no bones were broken. Mum was discharged the next day. I note however from the MHC record on 03 April 2020 that Mum sustained multiple fractures of her ribs, a fractured hip, pneumothorax and a head wound that required stitches. I am not sure why the Claimant was hiding this information from us.”
[108]I do not understand this statement. It is clear from the Sibling Chat set out above that the claimant first reported to her siblings that nothing was broken before there had been a chest x-ray, and therefore she was relying on what the clinical staff treating her at the hospital thought, based on symptoms alone. It is also clear that, one hour later, after the results of the x-ray were to hand, she had corrected this report. The obvious explanations for the defendant’s misstatement are that either he had not taken in what his sister was saying on WhatsApp, or he did take it in at the time but has forgotten it since. There is simply no basis that I can see for the accusation that he levels at her of hiding information, and I find that she did not do so. In any event, the accusation is pointless, both because it is demonstrably untrue on the documents, and also because it takes the matters in issue in this case no further.[109]On 5 April 2020, at 14:13, the claimant called 111 in response to vomiting by Sheila, and subsequently a paramedic attended at home. The claimant also called the GP surgery for “district nurse and GP involvement”. A care plan prepared for Sheila on 6 April 2020 stated that she did not have “sufficient capacity to participate in making the recommendations on this plan”. Sheila was seen that day by the doctor, but by means of video consultation. On 7 April, Sheila was very confused, and did not recognise where she was. On 8 April 2020, the claimant thought that Sheila appeared much better. Her husband would have said she was dying on the last two days. In fact, on the same day the GP recorded on the file that he considered that Sheila was probably in the last three months of her life, and sought to activate “CHC [continuing health care] fast track care” at home for her.[110]The GP visited Sheila at home the next day. The claimant told her siblings that Sheila was less well, and perhaps developing a chest infection. By 10 April, Sheila was brighter, but the claimant noticed a rattle in Sheila’s chest. Her condition deteriorated. On 14 April Sheila was “terribly tired”, having passed “a terrible night”. The district nurse visited to take out head stitches. There were discussions by telephone with the GP surgery, but the claimant had difficulty in securing any clinical treatment for Sheila, as the care team would not attend until they were sure that Sheila did not have Covid. By 16 April, Sheila had a high temperature, and was not eating. It seemed that an infection had indeed developed. This was initially suspected to be Covid-19. In fact, on 17 April it was diagnosed as pneumonia.[111]On 17 April, the claimant sent a message to Maryanne, “we [sic] fairly certain it’s ‘hypostatic pneumonia’ from her fall. I’m going to get them to call the Gp [sic] today to discuss. The way things are going I think it will be too late. We will call the District Nurses this morning to sort out pain relief and nursing care. She is so so poorly.” Maryanne’s reply was:
“Oh Bernie I'm so sorry, shall I come down and risk it? It's not for mum , it's to help you the best way I can”
. The claimant responded:
“I don’t think you will be able to although we’d love to see you. One of the farm workers from Jane and Matt’s was stopped three times travelling into Thetford to go shopping (8 miles) so doubt that you’d get all the way here. we’ve contacted the district nurses and about to call Marie Curie for night cover.”
[112]Palliative end of life care for Sheila began on the same day. She was seen by palliative care nurses and started on a syringe driver, delivering various drugs including a sedative, an anti-emetic, an anti-nausea drug, and morphine for pain relief.[113]In the claimant’s witness statement, at [10], she says:
“Several days before my Mum’s passing, Andrew and I had a telephone call where I confirmed that I had still not taken money for my Mum’s care and expenses after all this time. To which Andrew responded, just take it’.”
This is a critical point in the sequence of events. On the evidence before me, I find that the telephone conversation concerned, between the claimant and the defendant, in fact took place on 18 April 2020. The evidence for that includes the unchallenged email from the claimant to the defendant of 2 June 2020 (set out below).[114]The defendant’s evidence in cross-examination was that he had looked at his telephone records but could not find any reference to this call. But he did not disclose the records, and so his evidence cannot be verified. On the evidence before me, I am satisfied that such a telephone call took place. The real question is, what was said by the defendant during it?[115]I have set out the claimant’s witness statement evidence above. According to her, he said “Just take it”. Then there was the evidence of the claimant’s daughter, Joanne. In this trial, her witness statement said:
“33. Even as late as April 2020, just days prior to Grandma’s death, Andrew told Mum to ‘just take it’ in respect of the funds due to her for looking after Grandma. This was said over the telephone, where she spoke to me straight after and told me that she had spoken to Andrew and told him that she had not sorted the finances for Grandma. Andrew responded to ‘just take it’.”
Her evidence in the criminal trial had been to the same effect.[116]On the other hand, in the criminal prosecution, the defendant’s evidence had been:
“I don’t remember saying, ‘Just take it.’ And I don’t believe I did. There would have been no authority to take it. And anyway, it wouldn’t have meant just take £125,000.”
For this trial, however, the defendant’s witness statement (at [70]) said:
“I deny speaking with the Claimant on 18 April 2020 telling her to just take funds directly out of Mum’s bank account. I would never have done this without an agreement from my Siblings and a firm understanding of what the Claimant was seeking and why.”
Indeed, in cross-examination, the defendant said that he was now certain that he did not say “Just take it”, and that the claimant had just made it up. He was asked “Q. So just to be clear, paragraph 70, you are emphatically saying that you didn't say, ‘Just take it’? A. That's exactly what I'm saying, yes.”[117]A number of points strike me about the defendant’s evidence. First, it can be seen that the defendant’s recollection has hardened in the present case (“I deny speaking with the Claimant … telling her to just take funds directly out”) compared with that in the criminal case (“I don’t remember saying, ‘Just take it.’.”). Yet this is more than two years further away in time from when the conversation took place. Secondly, his earlier evidence was based on the absence of authority to take it. Yet it is to be noted that the defendant’s evidence was that the conversation was on the day of Sheila’s death, not the day before, as I have found. But on the day before, Sheila was still alive. On that basis, the claimant and the defendant, as her attorneys, would have been authorised to take the money then. No-one knew that she would die next day. A third point is the question whether the defendant would indeed – as he said – have agreed with his siblings before saying “Just take it”. His denial that he would have said such a thing without an agreement with his siblings does not sit well, for example, with the defendant's peremptory instructions to his siblings to pay him debts due to their mother even before he had applied for, let alone obtained, probate. And he did not ask anyone’s permission before paying what he considered to be her debts.[118]Moreover, on 4 June 2020 the claimant sent the defendant an email (the text of which is set out later), saying that the defendant had told her to take the money. His reply email on 5 June did not deny this. The defendant also agreed in cross-examination that it was out of character for the claimant to take money in this way, and that she had never done anything like this before. His siblings agreed.[119]Based on seeing and hearing the claimant and the other evidence, including the evidence of the siblings themselves about her previous honesty and good character, I am satisfied that she would not have taken the money without first having the defendant’s agreement. In any event, it would have been a stupid thing to do so without that agreement, as there was a clear paper trail, and any wrongful taking would be quickly revealed and traced to her. That reinforces my finding that she would not have taken the money unless she thought she had the defendant’s approval.[120]The evidence of the claimant’s husband Jon, and her daughters Joanna and Rebecca (which I accept) satisfies me that the claimant’s evidence was not a recent invention. She told each of them about the conversation with the defendant immediately afterwards. Of course, the claimant could have been lying to her own husband and daughters. But she had no reason to do so. She did not need to have said anything.[121]As a cross-check, I find that the words used are plausible in the circumstances. The claimant and the defendant were Sheila’s joint attorneys. The claimant was exhausted, busy, had spent money, given care, but not been paid. The defendant as her brother wanted to make her feel better. He recognised she was due money. He would have wanted to say something to make her feel better. It is so easily done.[122]In all circumstances, I am satisfied that the defendant in that conversation with the claimant did say to the claimant “Just take it”, or words to that effect. But I am also satisfied that he does not now remember doing so. That is his honest but mistaken recollection. Buttressing this with the arguments set out above, he has, in my judgment, convinced himself that he did not say this. Unfortunately, in my experience, this is a not uncommon event. Witnesses do convince themselves that the facts were in accordance with their false memories.[123]It is possible that, if the other siblings had thought the defendant did say “Just take it” to the claimant (even without specifying the amount) they would not have accused her of theft, the criminal proceedings would not have happened, and probably this litigation too would have been avoided. But of course it is a two-way street. The claimant could have told her other siblings what the defendant had said before she took anything. She could have told the defendant how much she was going to take before she did. Both of these would have been sensible things to do, though neither of them was legally necessary. For whatever reason, neither of them was done. As a result of all of this, we are where we are. As I have already said, it is a real tragedy.[124]On 19 April 2020 there are a series of messages on the Sibling Chat, up to 09:08. Sheila was then still alive. The chat is quiet from then until 12:03 when the claimant sent this message: “Mum has just died very peacefully 11.30 ... will call you all individually as soon as I can. Not rushing to call the nurses so you can see her if you want to. (Typical though...at Mass till the last...)”.[125]The relevant entry in the GP notes reads:
“Patient died at home … Phone call received from Son-in-Law”
. However, the time at which the entry is recorded is 09:38, not 11.30. As to this discrepancy, the defendant says this in his witness statement (at [71]):
“From the MHC [Montpelier Health Centre] it is clear she died in the early morning, Jon Rogers had notified the surgery of Mum’s death at 09:38. On the SC Chat the Claimant notified us at 12:03 claiming that Mum died at 11.30 a.m. I do not know why the Claimant lied to us.”
[126]This matter was not explored at trial. Neither the claimant nor her husband was cross-examined on this point. No-one was called from the GP surgery to explain the method of recording times of events and the reliability of those timings or indeed of the system. The claimant’s own evidence that Sheila died at 11.30 was therefore unchallenged. Apart from the GP record, I have no other basis for supposing that she was lying. Yet it makes no difference to this case whether Sheila died at 11:30 or shortly before 09:38 on 19 April, and no reason was suggested why the claimant might be mistaken about this, let alone might wish to lie about it. In these circumstances, and on this material, with no evidence as to either the methodology or the accuracy of the GP time records, I am not prepared to find that the claimant was mistaken, let alone lied to her siblings, about the time of their mother’s death. The GP practice recording 09:38 may simply have been an IT glitch of some sort. On the civil standard of proof, I find that Sheila died at 11:30.

After Sheila’s death

[127]On 20 April the defendant sent a WhatsApp message to the claimant: [642] “Morning Bern, I hope you had a decent night sleep. Today or tomorrow, you will have to register Mum's death. When you do, can you please ask for a few extra copies of the certificate as we will need to post copies off to the various places we will need to contact. Feel free to call when you have the time.” In fact, the defendant was not quite right about the timing of the report to the registrar of deaths. The general requirement is for information to be given to the registrar within five days of the death, not two.[128]As it happened, in view of Sheila’s fall on 2 April, her death had to be, and was, reported (by the GP) to the Bristol coroner, and the death could not be registered at all at this stage. So in fact there was no requirement on the claimant to register the death. The coroner released the body after a few days for the funeral, but with a view to conducting an inquest later. The funeral itself was held on 7 May 2020, when some of the siblings attended in person, and some remotely by live stream (this was still during Covid lockdown). The inquest took place on 13 May 2020. It does not appear from the file that a post-mortem examination was carried out beforehand. In passing, I will mention that, because the district nurse did not attend in order to “declare life extinct” until 14:00, that was the time shown on the report to the coroner as the time of death, although the box marked “Brief circumstances of death” made clear that the “real” time of death as understood by the doctor was 11.30. At the inquest, the conclusion of the coroner as to the death was recorded as “Accident”. Only then, after the inquest, could the death be registered.[129]In the meantime, on 21 April, the claimant had transferred two sums of £10,000 and £15,000 from Sheila’s Standard Saver account with Lloyds Bank, and two sums of £10,000 and one of £5,000 from Sheila’s Classic account, all to her own account with HSBC. On 22 April the claimant transferred another £25,000 from Sheila’s Classic account to her HSBC account. On 21 May the claimant transferred another £25,000 from Sheila’s Classic account to her HSBC account. However, at this stage none of the claimant’s siblings knew this. The total amount transferred was £100,000, not £125,000, as the claimant said (wrongly) in a later email, nor yet £150,000, as Maryanne subsequently said to the defendant.[130]On 21 May 2020, the defendant sent an email to the claimant, in part saying “we do need to make sure she has paid you for her car[e] for the past few years and that should be taken out of her estate before I assess it ahead of probate”. Although there is nothing about it in the witness statement evidence, it is clear from other material, and evidence at trial, that the claimant and the defendant spoke to each other by telephone on 25 May 2020. The defendant’s recollection at trial was that, during this conversation. the claimant told him the cost of the funeral. But, according to the claimant, the conversation was more significant than that.[131]During her cross-examination, the claimant told me that the defendant told her during this telephone conversation that, in preparing the IHT form for probate of their mother’s will, he had set aside the sum of £150,000 for their mother’s care. This does not appear in her witness statement. In his cross-examination, the defendant denied that he had told the claimant any such thing. He said that, “I would have definitely remembered that sort of statement. I would have written it down in my notebook.” Counsel immediately asked the defendant about his “notebook”. The defendant replied, “it’s just a diary. But I would have made a note of that.” Counsel then asked, “has it been disclosed to show that that was not something that was included in your diary?”. The answer was, “I haven’t checked my notebook to see what’s in there.” So, it had not been disclosed.[132]In closing submissions (at [41]), the claimant described this notebook as “a highly pertinent and disclosable document both in the context of these proceedings and the criminal proceedings”. Those submissions continued: “The Court is invited to draw an adverse inference as against the Defendant in having failed to disclose or present the same. It is suggested that, in drawing such an adverse conclusion, the Court may reasonably infer that the reason why the Defendant has not disclosed the notebook is because it demonstrates that Bernadette’s recollection of this discussion is correct; that Andrew had been informed that Bernadette sought payment of £150,000 for care services; and that Andrew had confirmed that he had set that sum aside”.[133]The claimant also pointed out that the bundle contained no WhatsApp messages between the siblings, except the general “Sibling Chat” between them all, and the individual chats between the claimant and each sibling (to which the claimant herself had access). With a solitary exception, this included no sibling message from the critical period in the last week of May and the first week of June. The claimant invites the court again to draw an adverse inference. The single exception is a screenshot of a message from Shaun to Maryanne timed at 0844 on 26 May 2020, in which Shaun says:
“Hey Maryanne. Hope all is well. I believe you’ve spoken to Bern. What do you think about the compensation figure she’s looking for for mum’s care. I can’t think how to tackle it with her to be honest. x”
This shows that Shaun knew of the figure being sought by the claimant. But there is no evidence that the claimant discussed figures with anyone but the defendant (who denies that she told him anything more than the cost of the funeral). So the question is, how did Shaun know? I can find nothing in any WhatsApp message between the claimant and any of her siblings which sheds light on this question.[134]Later on the same day, 26 May 2020, the defendant completed a signed IHT Estate Report form in respect of Sheila’s estate. According to this, the net value of the estate at that date was given as £226,048.49. Yet in the Interim Estate Accounts prepared by the defendant on 9 March 2024, the net value of the estate was shown as over £402,000. The IHT Estate Report form noted funeral expenses of £4,329 and “Other” of £25,000. The defendant accepts that the claimant told her about the former during their conversation on 25 May 2020. The claimant submits that the latter comes from the defendant’s having told her that he had set aside the sum of £150,000 for Sheila’s care and the claimant’s (erroneous) statement that she had taken £125,000 (though in fact she had taken only £100,000).[135]An email from the claimant to the defendant on 27 May 2020, timed at 1324, includes the following:
“I am preparing an invoice for the donation from Mum! I have been paid £125,00 [sic] and would like another £25,000 after the house has been sold, which reflects her insistence on me taking what it would cost if she was in a home- actually it doesn’t, but it is probably fair enough, or at least I hope you will think so when I’ve costed it out. I hope you don’t have a heart attack when you see my ‘bill’ but try not to go to prison!”
[136]The reference to not going to prison is a joke by the claimant, referring to the fact that the defendant had earlier been asking for various details from the claimant, explaining that he was responsible for the figures in the IHT forms, and did not want to go to prison for getting them wrong. The terms of the email are interesting, with the reference to “the donation from Mum!” So far as I can see, this is not an expression used previously. The claimant must have got it from somewhere. On the whole, I am not inclined to invest it with any great significance. She also referred to her ‘bill’, using quotation marks, after emphasising that Sheila’s “insistence on me taking what it would cost if she was in a home”. It is also interesting that the total claimed (£150,000) is that which the claimant says the defendant told her he had set aside for their mother’s care.[137]At all events, in the light of the non-disclosure of the defendant’s notebook/diary and of any other messages between the siblings in this period other than the screenshot of the message between Shaun and Maryanne on 26 May, I am not prepared to find that the claimant is wrong to say that the defendant told her that he had set aside £150,000 for their mother’s care. On the contrary, on the balance of probabilities, I find that he did, and does not now remember it. But I make no finding as to how Shaun became aware of the sum that the claimant was seeking[138]The defendant replied by email the same day timed at 1457:
“I’m surprised that you are taking so much without us all having been advised beforehand; I know that Maryanne will say that she would have given up her job and looked after Mum for half of that. We need to keep sufficient cash in Mum’s current account to pay her community charge, electricity bills, water bills, fence repair, probate etc etc so please do not use her accounts for the time being. I am the executor and should be the one handling Mum’s estate so that all activities are recorded and tracked for HMRC purposes … If there is any comeback from HMRC on ‘donations’ etc then it is me who is liable and me who will have to pay any liabilities, I do not want this to happen. Please prepare your invoice for the amounts you have taken for Mum’s care so that all transactions on Mum’s accounts are recorded for tax and probate purposes and are not donations from her accounts. Please can you also email the family for full transparency and to ensure that everyone of us knows where Mum’s savings have gone and what she has been charged for care for the past 2½ years.”
[139]On 1 June 2020 timed at 1545 (291), the defendant sent the following to the claimant by email:
“As you have not been forthcoming with information on the YBS accounts I contacted YBS directly myself to notify them of Mum’s death and to close her accounts. I have to say that I was surprised to find that you yourself had closed the YBS accounts on the 16th March, a month before her death, taking a combined balance of £81,275.14 which is now unaccounted for. As a Mum’s executor I then contacted the Post Office to notify them of Mum’s death and to close her account only to find, again, that you had already closed that account too. I will assume for now that you closed this account after Mum had died. Our responsibility as joint lasting power of attorney on Mum’s finances lapsed with her death, so you had no authority to access this account. From my perspective it looks like you have abused the authority associated with LPA in closing Mum’s YBS accounts and then accessed her Post Office account post her death. Mum was in no condition to make any financial decision which is why we had LPA in order to protect her estate. Your statement 'which reflects her insistence on me taking what it would cost if she was in a home’is irrelevant as Mum did not have the mental capacity to make such an insistence, hence the LPA. Please can you account for the funds removed from the YBS accounts, provide me with a closing balance for the Post Office account and advise me where the funds currently reside. You are due payment for Mum’s care and this has never been disputed. However, the costs for care have to be discussed and agreed once we see a complete breakdown of your estimate and costs incurred in delivering care and cannot just be plundered from her estate.”
[140]On 2 June 2020 timed at 0721, the claimant sent the following email to her siblings:
“Hi Andrew and Family, Per Andrew’s request, please find the breakdown of mum’s care. Invoice attached. Mum received care for a total of 950 days at £150pd, which is broken down as follows: Person Number of days Total @150pd Received Outstanding Bern 900 days £135,000 £100,000 £35,000 Maryanne 25 days £3,750 Shaun 10 days £1,500 Jane 5 days £750 I’m happy to answer any questions. Love and best wishes Bern”
.

Love and best wishes

[141]Two hours later, the claimant sent the following by email to the defendant, presumably referring to the defendant’s email of 1 June 2020 (set out above at [139]):
“What a very upsetting and accusatory email to receive from you. Why on earth didn’t you call me yesterday? I was working flat out on the invoice which has now been circulated, along with impromptu emergency visit from the plumber. To put your mind at rest I have done nothing without discussing it with you, I even spoke to you the day before Mum died about not having taken any money for her care, and you said to take it. I told you about the post office closure last week, which the head office assured me I could do as I signed the form as her daughter, and the money was transferred into her bank account. We also discussed the YBS account in January, and you and I signed the forms in February to transfer that to her bank account. To be absolutely clear, all Mum’s money is absolutely accounted for, and has been handled with utmost probity. I have dedicated the last two and a half years to provide Mum with exceptional care and was really disappointed to receive this.”

Why on earth didn’t you call me yesterday?

[142]I cannot find that the defendant ever replied directly to this email. The next email from him to the claimant appears to be that on 4 June 2020, set out below. But the “WhatsApp” messages show that a voice call from the defendant to the claimant was missed at 13:04 on that day.[143]The defendant sent the following to his siblings on 3 June 2020, timed at 1039:
“In the interests of transparency and full disclosure I am declaring that, until I have the grant of Probate to administer Mum’s estate, I will be using my Nationwide current account to collect her cash assets and pay her bills. The Nationwide account is in my name only; it is not used for day-day domestic activities and has relatively few transactions per month. Once probate has been granted I will open a dedicated executor account so that Mum’s cash assets are kept completely separate from mine so that there are no misunderstandings. I will be keeping very accurate records in credits/payments in the meantime. If any of you has any of Mum’s cash assets under their control can they please transfer them to my Nationwide bank account where they will be held until I have the executor account set up … ”
[144]On 4 June 2020 timed at 1205, the defendant sent the following to the claimant:
“I spoke with Lloyds this morning to get further transaction details of both of Mum’s Lloyds accounts to fill in the gaps in information on the statements you sent me. I’m sorry, but I was not able to get any further information about the accounts as Lloyds have already instigated two fraud cases, one for each of Mum’s accounts. These are standard banking procedures to protect customers' money. I did not ask, nor have any intention of asking, Lloyds to trigger their fraud procedures. The information Lloyds shared with me was that you took £25000 from Mum’s saver account on the 21st April, which was shown in one of the statements you sent me, and took a further £75000 over the following weeks from Mum’s Classic account. Because of the amounts involved Lloyds will be contacting the Police who will no doubt be in touch with both of us. Only you can mitigate the consequences for you. You can do this by contacting Lloyds, quoting Mum’s current account number, and return the £100,000 that you have fraudulently taken. You have 24 hours to do so. I realise that you were distressed by Mum’s death, but your actions are beyond ridiculous and incomprehensible. All I can assume is that you have been very, very poorly advised. Call me when you can.”
Call me when you can.”[145]The claimant’s email response to the defendant was sent at 1625 on the same day:
“Thank you for letting me know about this. I am sorry that it has come to this. It must be really stressful. To reiterate (again), we both know that no money was removed ‘fraudulently’ from the account. You told me (as LPA) to ‘take it’ when we discussed “proper compensation” for the care services provided to mum over the last 2.5 years. The money was transferred on good faith and with notice to you, as LPA and executor of her will. I have provided a valid invoice to her estate for those care services, which is part paid. This is not a fraud and any bank will see it is a wholly family matter. You, as the executor, told me to ‘keep the bank account open’ to pay outstanding bills, of which the care services were one of those services. We all acted in good faith relating to that initial transfer. I transferred £100k and produced my invoice for £135k. When I told you how much I had withdrawn, there then arose family dispute about the cost of mum’s care. However, the dispute about the cost of mum’s care should not be confused with the legitimacy or legality of that initial transfer. They are separate issues. I stand by my actions on the initial transfer and I stand by my invoice. I am open to a sensible and respectful discussion on the latter. I will no longer defend myself on the former. I had taken no advice on my actions, except from you to ‘take the money’. I am willing to discuss your concerns (as executor) about the invoice for the care given. Perhaps focusing on your concerns there might be more productive. I am also willing to talk to or communicate with Lloyd’s team directly to explain the actual facts, as needed. If that is helpful, please let me know who I need to contact at Lloyd’s. I will need Mum’s account details as I have sent all the information to you by registered mail. However, to be clear, I am no longer willing to accept accusations of theft, fraud or misappropriation. These hurtful false statements only serve to cause distress on both sides and are remarkably unhelpful and destructive. I am doing my best to keep communication lines open, but with the vitriol it is becoming difficult.”
[146]The defendant’s reply, sent next morning (5 June 2020) at 0954, did not deny the claimant’s statement that he had told her to ‘take it’ (ie the money for the care provided). Instead, it stated baldly that:
“You will be prosecuted by Lloyds for fraudulently taking money from Mum’s accounts. You will be prosecuted by the office of the public guardian for abusing your power of LPA. I fully expect any impartial advise [sic] you are given from a trustworthy solicitor will be consistent with what I am telling you. The only way to mitigate the consequences for you to return the money to Mum’s estate by depositing it into my Nationwide account as stated yesterday. I have checked my Nationwide account balance at 9:45 and the missing money is not there. Pleas transfer the money via a fast payment method immediately, take a screen image of the transfer and send it to me for verification. I cannot help you any more than I have tried already.”
I cannot help you any more than I have tried already.”[147]By an email on 5 June 2020 timed at 1057, the claimant sent the following to the defendant:
“We spoke at length to Lloyd’s both last night and this morning. Lloyd’s have told us that they would not prosecute anyone, and it would be entirely at your instigation that they proceeded with investigations. I have also been advised by Lloyd’s This [sic] morning that legitimate expenses can be taken whether the account holder is alive or dead, and your Executor permission was not required. Your assertion that a fraud investigation was under way and the police are involved is not true. Your demands and threats that I pay you, for in return for you ‘making this all go away’ makes me feel that I am being blackmailed, and even if I paid you the £100,000 in question, it would not alter what has happened and the damage that rumour and accusations have caused. You seem to be so afraid that your advice to me at the time constituted a legal issue that Lloyd’s would wish to pursue, which it is not. The only way to mitigate the consequences for all of us is for you to refrain from escalating untrue fraud allegations at the bank, of which I am sure you are already aware. I wonder if mediation would help here.”
I wonder if mediation would help here.”[148]On 28 May 2020 the defendant contacted Lloyds Bank and closed his mother’s accounts there. In his witness statement, made in November 2024, he said that Lloyd’s wanted to raise “two fraud cases there and then” against the claimant, but he asked “for a few days to convince [her] to return the stolen funds”. He also said he called various offices, including the Office of the Public Guardian, but they advised him to call the police. None of this is supported by any contemporary evidence, such as notes, emails or letters. The claimant’s email of 5 June 2020, set out above, is however a contemporary document, rather than a much later witness statement, and says that “Lloyd’s have told us that they would not prosecute anyone, and it would be entirely at your instigation that they proceeded with investigations”. I prefer this evidence to that of the defendant’s witness statement, some 4 ½ years later.[149]On 15 June 2020 timed at 1137, the defendant sent the following to his siblings concerning Kleyman & Co’s letter of the same date:
“In the interests of full disclosure and openness I am notifying you all of the letter received from Bern's solicitor this morning. As you will see, Bern is trying to claim that the dispute is over her bill; however, you will note that she took the money up to 6 weeks before she presented her bill. Please do not respond to either the solicitor or to Bern. I have not yet replied, but I will in due course.”
[150]On 21 August 2020, the defendant sent a letter to the claimant reading:
“You are aware that I am the Executor of Mum’s estate. You have stolen £100,000 from Mum’s estate through misrepresentation and abuse of the Lasting Power of Attorney. You have deliberately withheld all of the items that Mum held precious and that she wanted to be distributed as per her will. You should be aware that misappropriation of estate property can have criminal consequences as it can be considered to be theft. I have asked you on numerous occasions since 2nd June 2020 to return Mum’s money and her valuables that you are withholding. So far, you have failed to comply with my requests. You should take this letter as a FINAL DEMAND for the return of £100,000 and all of Mum’s valuables; her jewellery, her coins and her paintings. You will ensure that all of the above are returned to me within 7 days of this letter. Failing this, I will be contacting the Police to assist the retrieval of these valuables. I will also be charging you interest on your holding of Mum’s funds from the day that you took them. I have been extremely lenient with you but your response has been to resort to sending threatening letters via a London based solicitor. I will not be intimidated.”
[151]The claimant’s daughter, Joanna Rogers, sent an email to the claimant’s siblings on 30 August 2020, timed at 1607, reading as follows:
“I spoke to mum and dad this morning. They are away and not checking email. Mum suggested that Bec and I might be able to support your ‘possession queries’. Andrew, I understand you need to get access to grandma’s possessions to close probate. Mum asked you to organise a courier for the possessions in July. Bec (copied) is in Bristol and has access to the house. Whilst mum is away, Bec may be able to orchestrate a pick-up if you organise a courier or collection from her at an agreed time. Can you call Bec on [redacted] (also copied) and give her a list of everything that you are expecting from the house? Jane, you sent an email to mum about ‘missing photos’ relating to the jewellery. Mum sent all photos to Andrew on 26 June. Andrew, Can you let us know whether you received all the photos? If not, please let us know what photos are missing. If you have what you need, please let Jane know to put her mind at rest. Jane and Maryanne. A Message from mum: ‘Andrew did suggest that we three sisters should sort out the jewellery between us. If you are both happy with that arrangement then let’s talk when I am back. Alternatively Andrew can arrange for their collection along with the coins.’ Jane and Maryanne. Can you let Andrew know directly whether he should arrange for collection of the jewellery from Bec? Otherwise mum will call you when she is back to discuss. I hope this deals with all outstanding issues relating to grandma’s possessions. Have a nice bank holiday weekend”
.

Andrew, Can you let us know whether you received all the photos?

[152]On 31 August 2020, timed at 1448, the defendant sent an email to the claimant:
“I have received this somewhat confused email from Jo and I have no intention of acting on it. As per the emails and letter I sent you on Friday 21st August, the deadline for you to send me Mum’s valuables (jewellery, coins and paintings), as well as to return the £100,000 you took from Mum’s bank accounts in the days following her death, was Friday 28th August. That deadline has lapsed and you have still not returned the money nor sent me Mum’s valuables as I requested.”
[153]By a letter dated 9 September 2020 the defendant wrote to the claimant:
“Here is my response to your solicitor’s email dated 2nd Sept 2020. I have never disputed that you should receive compensation for the 2½ years our late mother stayed with you, but the level of that compensation must be realistic for one’s own Mother staying in one’s home. At no point over the past 2½ years that our late Mother stayed with you did you give any indication whatsoever to your siblings that you intended to charge such an outrageous and unreasonable amount. This dispute with you is not solely about your compensation. You stole £100,000 between 21st April and 22nd May and only sent out your first ludicrous demand for a total of £150,000 on the 27th May when you could no longer conceal the theft as I would no longer be fobbed off by your obfuscations.”
[154]This may be an appropriate point to record that, in giving evidence in the criminal trial, the defendant accepted that he had visited his mother at the claimant’s house on only a few occasions, that he had never been alone with her during those occasions, and that he had no adult experience of living with her or looking after her. Until the trial, he had not been aware of her double incontinence, her type 2 diabetes, her cataracts, or glaucoma, her diverticulitis, or her kidney disease. His knowledge of what the claimant had had to deal with was minimal. It afforded him only a slender knowledge base from which to comment on his sister’s care of their mother. 2021[155]However, there was no doubt that the defendant’s efforts with the banks did actually produce results. On 28 June 2021, Lloyds Bank wrote to him, explaining that they agreed with his complaint about their having allowed the claimant to withdraw funds from Sheila’s accounts after her death. They had pursued HSBC (the claimant’s bank) to restore the money so transferred to themselves, and had then (on 16 June 2021) recredited Sheila’s accounts with them. They added interest of £7,259.10 and general compensation of £1,000.[156]On 26 July 2021 timed at 1133, the defendant sent an email to the claimant:
“As you are no doubt aware, my duties as Executor of Mum’s estate include the safeguarding of the estate’s assets from misappropriation, to collect in the value of assets, pay outstanding debts and liabilities, and to distribute the estate among the beneficiaries as per the Will. Mum’s Will can be found at https://worldofwills.uk/wordpress/mum-information/. Mum’s house has been sold, and the money previously taken from her bank accounts has finally been returned and the estate made whole. The estate is now in a position to distribute your share as your inheritance. Please note: I have not sent this email via your solicitor. In my opinion their advice to you was wrong. This is confirmed by your two interviews with the Police over what is certainly a criminal matter, and your return of the stolen money. You are due a sum of £52,500 which is the same amount each of your siblings have already received. Please let me know how you wish to receive this sum (transfer/cheque…).”
Please let me know how you wish to receive this sum (transfer/cheque…).”[157]On 13 August 2021 the defendant wrote to the claimant’s solicitors as follows:
“Lloyds have removed the money from your client and returned it to the estate. Their seizure and return of the £100,000 is confirmation that your client had taken it illegally which resulted in a criminal investigation. I note your client calculates her ‘entitlement’ at £135,000 yet persistently fails to substantiate that calculation. The chart you sent me dated 15th July 2020 is confused, contains inaccuracies, lacks any credibility, and as such cannot be taken seriously. I have stated previously that we do not want your client to suffer financial loss for my late Mother’s stay with her and I have previously requested, through your office, that once the stolen funds and Mother’s valuables are returned, your client should arrange a conference call with her siblings. The money has been returned and most of the valuables collected, but she has so far failed to arrange the conference call. As you are fully aware there was no contract nor agreement, neither written nor verbal, between your client and her siblings to pay for care and as such there is no obligation on the estate to pay the arbitrary and retrospectively-set daily rate she has quoted. However, in the interests of fairness, the estate will be receptive to paying your client reasonable out of pocket expenses incurred in the 2 ½ years Mother lived at Bern’s house in Bristol. Please ask your client to provide a full list and description of her out of pocket expenses incurred during Mum’s stay. I look forward to receiving your next letter with the full list of expenses requested above.”
It will be noted that this letter asserts that there was no agreement between the claimant and her siblings, but does not deal with the possibility of an agreement between the claimant and their mother.[158]On 25 August 2021 timed at 1500 the defendant sent an email to the claimant:
“Here is the email I sent to you a month ago. I have yet to receive your reply about how you wish to have your inheritance paid to you. As you will no doubt be fully aware, if you refuse to take your inheritance it will go back into the residuary estate and it will be distributed to the other beneficiaries. Please let me know how you wish me to proceed with this.”
Please let me know how you wish me to proceed with this.”[159]On 26 September 2021 timed at 1303 the defendant sent a further email to the claimant “I have previously written to you on 26th July 2021 and on 25th August 2021 asking how you wish to receive your inheritance from Mum’s estate and I have yet to receive your reply. My previous emails are below for your information. As stated in my email dated 25th August if you decline your inheritance it will go back into the residuary estate and will be distributed to the other beneficiaries. I feel that a deadline might focus your attention so I give you 7 days from the date of this email to reply. If you do not reply by this deadline I will assume that you have declined your inheritance. To be crystal clear, this is my final reminder for you to claim your inheritance from Mum’s estate.”

The criminal proceedings

[160]It is appropriate to refer briefly here to the criminal proceedings against the claimant. As already stated, on 5 June 2020 the defendant had emailed to the claimant:
“You will be prosecuted by Lloyds for fraudulently taking money from Mum’s accounts. You will be prosecuted by the office of the public guardian for abusing your power of LPA.”
And the claimant’s reply, an hour later on the same day, included the following:
“We spoke at length to Lloyd’s both last night and this morning. Lloyd’s have told us that they would not prosecute anyone, and it would be entirely at your instigation that they proceeded with investigations. I have also been advised by Lloyd’s This morning that legitimate expenses can be taken whether the account holder is alive or dead, and your Executor permission was not required. Your assertion that a fraud investigation was under way and the police are involved is not true.”
[161]The claimant’s witness statement evidence was that the Crown Prosecution Service “initially dropped the case, but as Andrew became quite obtrusive, the CPS decided to reopen the case and pursue prosecution.” This evidence was not challenged in cross-examination, and the defendant’s witness statement evidence did not refer to it. I accept the claimant’s evidence. The claimant was ultimately prosecuted for theft, and stood her trial at Bristol Crown Court beginning on 17 October 2022. On 24 October 2022 HHJ Longman summed up the matter to the jury and sent them out to consider their verdict. Later the same day, they returned a verdict of not guilty, and the claimant was discharged.

After the criminal proceedings

[162]On 8 November 2022, timed at 1419, the claimant sent an email to the defendant saying:
“Have you any thoughts on where we go from here?”
The defendant replied to the claimant six days later, on 14 November 2022, timed at 0931 “Have I any thoughts on where we go from here? Oh yes, I have plenty of thoughts on where we go from here. Call me to discuss; but ultimately it will be settled by a formal response from my solicitor.”[163]On 21 November 2022, timed at 1707, the claimant sent an email to the defendant:
“I hope this finds you well too. In the circumstances, I would expect you would want to resolve this matter, (which has gone on long enough already), as soon as possible, and preferably to do so informally, and between ourselves. I am more than willing to listen to your thoughts on the way forward, and would be happy for you to suggest a time and place for that discussion. I would also be prepared to meet with you in person if preferred. I would hope and expect that the tone of any conversation between us, would be of civil discourse and respectful discussion, and this must be at the forefront of any call we agree to. As you know, I have been found to be innocent of all charges in a criminal court of law, and it is disappointing to hear of continuing accusations. It was also disappointing that none of you were willing to stay and hear the remaining evidence, and in particular the Judge’s summation, when you would have been able to understand how and why that verdict was reached. However, should you consider this to be a matter for solicitors, then please advise me of the contact details of your solicitor to whom I will send any further correspondence.”
[164]About a month later, on 18 December 2022, timed at 1708 the defendant sent a further email to the claimant:
“In my last email to you I told you that I would speak to my solicitor about a way forward. My solicitor informs me that as Executor I can only pay properly-due debts. This leaves me with a predicament. Your pre action claim listed what you wanted Mum to pay for, but the list lacked any credibility. Maryanne’s evidence given in court, and not challenged by your barrister, was that you were charging Mum £200 pw rent for her staying with you, but that arrangement somehow lapsed. The informal agreement between you and Mum seems to be the only fair and unambiguous basis to assess Mum’s financial debt to you for the time she was with you. Can you please let me know how many weeks you collected rent from Mum so that I can take it into account in working out the figures. Before I can present you with a proposal, I must gain agreement with our siblings as we are the other beneficiaries of Mum’s estate. This is proving very difficult due to their high level of anger and disappointment at your behaviour throughout this sordid affair.”
[165]On 7 February 2023, timed at 1013, the claimant sent the following to the defendant:
“To reiterate, I received no ‘rent’ from mum. The full court transcript and details can be requested here. Our out-of-pocket expenses were sent to you from our solicitor twice. Jon and I paid these costs whilst mum stayed with us. These costs need to be paid at the same time and in addition to the care costs. I am still waiting for your proposal.”
I am still waiting for your proposal.”[166]There is one final matter I think I should mention. In the trial bundle there is a document referred to as the defendant’s “Cost Impact of Mum staying with Rogers”. This is not a document created during the course of the events involved in this claim. Instead, it is a document putting together information so as to construct an argument as to what did happen. It appears to be designed to support the idea that the claimant lost nothing in financial terms by looking after Sheila. That point is indeed made in the defendant’s closing submissions (at [14]). I did not allow it to be relied on. The point was never put to the claimant or to any of her witnesses in cross-examination. Indeed, I cannot see that it was put to any witness, though Maryanne was asked whether she thought that the claimant’s financial position had suffered through looking after Sheila (she answered No).[167]But this case is not about whether the claimant was better or worse off in strictly financial terms in looking after Sheila. It is about whether(i) there was a contract between the claimant and her mother (or her siblings) to look after her, and (if so) whether any liability arose under it, or (if not)(ii) there was any liability in unjust enrichment from Sheila’s estate to the claimant. This is not a court of balance sheet economics, but a court of law. LAW Capacity[168]The question of capacity to undertake an act having legal significance (such as giving consent or entering a contract) is generally governed for adults by the provisions of the Mental Capacity Act 2005. In the case of certain acts, such as making a will, the question is regulated by other rules. But no-one in the present case suggests that Sheila did not have capacity to make her will in December 2015, so I need not here consider those special rules. The 2005 Act in sections 1 to 3 relevantly provides: “1. The principles(1) The following principles apply for the purposes of this Act.(2) A person must be assumed to have capacity unless it is established that he lacks capacity.(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. [ … ] 2. People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to— (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. [ … ] 3. Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. [ … ]” (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).[169]It is clear from the terms of sections 2(1) and 3(1) that the question of capacity is not a one-size-fits-all question, with a single standard for everyone and every decision. Every person is different, and has different levels of understanding, retaining and using information to make decisions, and different levels of communication of such decisions. Further, some decisions require more of the person deciding than others. It is easier to consent to your toenails being clipped, for example, than it is to consent to a serious and risky medical procedure designed to improve your quality of life. Capacity is both person- and decision-specific.[170]Moreover, capacity may fluctuate from day to day, and sometimes even during a day. The fact that a person has capacity to decide to do a particular thing at one moment does not tell us very much about that person’s capacity to decide to do a different thing at a different time. A perhaps extreme example of capacity in relation to different acts at different times was given by the decision of the Court of Appeal in Park v Park [1954] P 112, even though that case was decided under the pre-2005 law. A widowed man of 78 years, lonely and suffering from illness, married a lady as his second wife, and later the same day made a new will to replace one he had made a year earlier. Under the earlier will the wife took nothing. He died less than three weeks later. In two separate sets of proceedings it was held that he had lacked capacity to make the will on the wedding day. On the other hand, he had had sufficient capacity to marry.[171]A more recent decision, under the 2005 Act, is that in A Local Authority v JB [2022] AC 1322, SC, where Lord Stephens, (with whom the other Justices agreed) said: “63. The test of capacity in sections 2 and 3 of the MCA together with the principles in section 1 applies to all decisions, whatever their character …64. Capacity may fluctuate over time, so that a person may have capacity at one time but not at another. The ‘material time’ within section 2(1) is decision-specific (see para 67 below). The question is whether P has capacity to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward-looking assessment made at the date of the hearing. However, if there is evidence of fluctuating capacity then that will be an appropriate qualification to the assessment.65. The core determinative provision within the statutory scheme for the assessment of whether P lacks capacity is section 2(1). The remaining provisions of sections 2 and 3, including the specific elements within the decision-making process set out in section 3(1), are statutory descriptions and explanations which support the core provision in section 2(1). Those additional provisions do not establish a series of additional, freestanding tests of capacity. Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in sections 2 and 3 …66. Section 2(1) requires the court to address two questions.67. The first question is whether P is unable to make a decision for himself in relation to the matter … The focus is on the capacity to make a specific decision so that the determination of capacity under Part 1 of the MCA 2005 is decision-specific …68. As the assessment of capacity is decision-specific, the court is required to identify the correct formulation of “the matter” in respect of which it must evaluate whether P is unable to make a decision for himself …69. The correct formulation of ‘the matter’ then leads to a requirement to identify ‘the information relevant to the decision’ under section 3(1)(a) which includes information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision: see section 3(4).70. I consider … that the court must identify the information relevant to the decision ‘within the specific factual context of the case’ … [ … ] 75. On the other hand, there should be a practical limit on what needs to be envisaged as the “reasonably foreseeable consequences” of a decision, or of failing to make a decision, within section 3(4) of the MCA … To require a potentially incapacitous person to be capable of envisaging more consequences than persons of full capacity would derogate from personal autonomy. [ … ] 78. If the court concludes that P is unable to make a decision for himself in relation to the matter, then the second question that the court is required to address under section 2(1) is whether that inability is “because of” an impairment of, or a disturbance in the functioning of, the mind or brain. The second question looks to whether there is a clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain.[172]A final point to make about capacity is that no conclusion can be drawn about the capacity of a person to make decisions, merely because that person has given a lasting power of attorney. On the contrary, if the power is to be valid, the donor must have capacity at that date. Whether a person retains capacity thereafter is a question to be decided on the relevant evidence. The existence of the power by itself takes the matter no further. It is not even evidence of, let alone proves, a lack of capacity.

Contract

[173]Under English law it is possible to contract to sell land, a good or a service for a price which is in fact unascertained at the time, as long as that price can actually be ascertained when needed. So, for example, this might be a price agreed to be and indeed fixed by a third party. Or it might simply be the “reasonable price” for such land, a good or a service. Despite the apparent vagueness, a contract for a “reasonable” price is a perfectly good contract. In Way v Latilla [1937] 3 All ER 759, the appellant worked for the respondent in obtaining information about gold concessions in west Africa, the respondent refused to pay him. The House of Lords held that he was nevertheless entitled to remuneration at a reasonable rate. Lord Atkin (with whom all the other lords of appeal agreed) said, at 763:
“But, while there is, therefore, no concluded contract as to the remuneration, it is plain that there existed between the parties a contract of employment under which Mr Way was engaged to do work for Mr Latilla in circumstances which clearly indicated that the work was not to be gratuitous. Mr Way, therefore, is entitled to a reasonable remuneration on the implied contract to pay him quantum meruit.”
[174]Even where no formula for remuneration (such as a “reasonable” charge or price) is stated, if it is clear that there was to be such remuneration, it will be implied as a reasonable price or charge. In Barton v Morris [2023] AC 68, Lord Leggatt (though dissenting in the result) put it this way:
“138. The obligation to pay a reasonable sum reflects the ordinary expectation that those who, in a commercial context, provide valuable services to others do so for reward and not simply out of charity or benevolence; and by the same token someone who requests such services does so on the understanding that they are to be paid for. The law gives effect to this common understanding by imposing, in the absence of contrary agreement, an obligation to pay a reasonable sum which represents what the services were worth (quantum meruit).”
[175]Since 1982, the Supply of Goods and Services Act 1982 has provided by section 15 that “(1) Where, under a [relevant contract for the supply of a service], the consideration for the service is not determined by the contract, left to be determined in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a reasonable charge. (2) What is a reasonable charge is a question of fact.”[176]Section 12(1) of the Act defines “relevant contract for the supply of a service” to mean “a contract under which a person (‘the supplier’) agrees to carry out a service”,though there is an exception in section 12(2) for a contact of service or apprenticeship. (The definition also excludes a contract for a trader to supply a service to a consumer, which is covered by the Consumer Rights Act 2015, But that is not relevant here.) In Barton v Morris [2023] AC 68, SC, Lady Rose for the majority said it was doubtful that this definition could apply to a unilateral contract, because in such a contract the supplier had no obligation to perform. If – as I have held – Sheila did request the claimant to have her live with the claimant and for the claimant to look after her, and the claimant agreed to do so, then this was not a unilateral contract. On the facts, assuming that Sheila had capacity to make a contract, and intended to do so, Sheila agreed to pay for care and the claimant agreed to provide it. So, the 1982 Act can and does apply. Sheila’s obligation in that case was to pay a reasonable sum for her care.

Intention to create legal relations

[177]A contract cannot be entered into unless the parties so intend. There must be an intention to create legal relations. That intention is a question of fact in each case. It is sometimes thought that, where an arrangement is entered into between members of a family, even close members, then as a matter of fact there is no intention to create legal relations. This is wrong. It is always a question on the evidence available (and the relationship is only one element in this) as to whether there is an intention to create legal relations.[178]Thus, in Balfour v Balfour [1919] 2 KB 571, a wife sued her husband on a promise to allow her a sum of money each month for her maintenance. The Court of Appeal held that the claim failed. Warrington LJ said:
‘[W]e have to say whether there is a legal contract between the parties, in other words, whether what took place between them was in the domain of a contract or whether it was merely a domestic arrangement such as may be made every day between a husband and wife who are living together in friendly intercourse. It may be, and I do not for a moment say that it is not, possible for such a contract as is alleged in the present case to be made between husband and wife. The question is whether such a contract was made.’
[179]At 575 he said: ‘These two people never intended to make a bargain which could be enforced in law. The husband expressed his intention to make this payment, and he promised to make it, and was bound in honour to continue it so long as he was in a position to do so. The wife on the other hand, so far as I can see, made no bargain at all."[180]On the other hand, Atkin LJ said (at 578):
‘[I]t is necessary to remember that there are agreements between parties which do not result in contracts within the meaning of that term in our law. The ordinary example is where two parties agree to take a walk together, or where there is an offer and an acceptance of hospitality.’
[181]So, Warrington LJ concentrated on the domestic nature of the relationship between the parties as the reason for finding that in that case the parties had no intention to make a legally enforceable bargain. Duke LJ (at 576) had taken a similar view. But Atkin LJ concentrated more on the nature of the agreement concerned. Some things may be supposed (unless proved to the contrary) not to be the subject of binding contracts. Both approaches lead to the resolution of the same question: what did the parties intend?[182]Close family members sometimes do create legal relationships between themselves, intending them to take effect. When one person gives another a present for the latter's birthday, or at Christmas time, no one doubts that both parties intend the transfer of legal ownership of the article given to be effective. It was formerly in the legal ownership of the giver, and now it is in the legal ownership of the recipient. It is also perfectly lawful, and quite common in family businesses, for a business owner to employ a close relative in that business and undertake to pay the employee under the terms of the contract of employment. In Pearce v Merriman [1904] 1 KB 80, a wife granted her husband the tenancy of a house belonging to her, both parties intending the tenancy to have legal effect. Again, one member of a family may lend a large sum of money to another. The lender may think long and hard before asking for repayment, and may grant indulgences that he or she would not grant to non-family members, but that does not mean that there was no intention to create a valid contract of loan. Unjust enrichment General[183]Unjust enrichment is a separate source of obligation from contract and tort. And it is different from each of them. Unlike tort, it does not proceed from a legal wrong. Unlike contract, it does not proceed from a consensus between the parties (although elements of consensus are sometimes present, such as the acceptance of benefits). As I have said elsewhere, the development of the law of unjust enrichment in England and Wales in the last half-century or so owes much to a small number of lawyers, mostly academic, who wrote about, taught and debated the subject in the last third of the twentieth century. Of these, the most important was Professor Peter Birks. He taught many of today’s prominent unjust enrichment scholars, and many others besides. As it happens, I had the good fortune to be one of those others.[184]The work of these scholars produced an intellectual framework in English law for considering and deciding claims involving unjust enrichment. That framework was not, of course, universally agreed amongst academic lawyers, let alone practising ones. There was also much opposition to it. In his A Critical Introduction to Restitution, 2001, Steve Hedley wrote this (at 15-16):
“The basic terms of the theory never acquired a settled meaning. Vigorous debate on the concept of ‘enrichment’ did not produce consensus. On the contrary, it threw up many (mutually incompatible) notions of what ought to be regarded as an enrichment, including some very narrow ones, which had the merit of purity but the demerit of reducing the scope of the subject drastically. Indeed, the very idea that the rendering of services could constitute an ‘enrichment’ was never properly established. More worryingly, it became less and less obvious that ‘enrichment’ could be defined as an entity distinct from contract. Many argued that a defendant should be regarded as benefited if the defendant had acknowledged that the receipt was valuable, or had ‘subjectively valued’ it, or if it was conferred on terms that it should be remunerated. Yet in practical terms these suggestions were very hard to distinguish from the basic contractual principle, that benefits could be charged for if there was an understanding that they could be charged for. So was enrichment really so different from contract, after all? The ‘unjust factors’ were similarly in a state of confusion. The argument batted back and forth, and each writer seemed to have their own unique account of what the ‘unjust factors’ were. The problem was plainly an acute one, especially since (from a Birksian perspective) it made sense to give each factor its own chapter heading in restitution textbooks. So an approach designed to foster clarity and consistency actually had the reverse effect!”
[185]Despite all this, Professor Birks’s unjust enrichment model has been discussed, adopted, glossed and to some extent refined by English courts, including the highest, on a number of occasions in recent years. Those cases include: Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548, HL; Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, HL; Bank of Cyprus UK Ltd v Menelaou [2016] 1 AC 176, SC; Investment Trust Companies v HMRC [2018] AC 275, SC; Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd[2019] AC 271, PC; Test Claimants in the Franked Investment Income Group Litigation v HMRC[2022] AC 1, SC; Barton v Morris[2023] AC 684, SC.[186]Sitting here, I am plainly bound by the decisions of the higher English courts to apply this framework. As to what that now is, in Investment Trust Companies v HMRC [2018] AC 275, SC, Lord Reed (with whom all the other judges agreed) referred to “24. … the approach adopted by Lord Steyn in Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221, 227, [which] asked:(a) Has the defendant been benefited, in the sense of being enriched?(b) Was the enrichment at the claimant’s expense?(c) Was the enrichment unjust?(d) Are there any defences?”[187]But Lord Reed sounded an important crucial note of caution:
“40. … Although judicial reasoning based on modern theories of unjust enrichment is in some respects relatively novel, there are centuries’ worth of relevant authorities, whose value should not be underestimated. The wisdom of our predecessors is a valuable resource, and the doctrine of precedent continues to apply. The courts should not be reinventing the wheel. 41. … Lord Steyn’s four questions [in Banque Financière de la Cité] are no more than broad headings for ease of exposition. They are intended to ensure a structured approach to the analysis of unjust enrichment, by identifying the essential elements in broad terms. If they are not separately considered and answered, there is a risk that courts will resort to an unstructured approach driven by perceptions of fairness, with consequent uncertainty and unpredictability. At the same time, the questions are not themselves legal tests, but are signposts towards areas of inquiry involving a number of distinct legal requirements … 42. The structured approach provided by the four questions does not, therefore, dispense with the necessity for a careful legal analysis of individual cases. In carrying out that analysis, it is important to have at the forefront of one’s mind the purpose of the law of unjust enrichment. … it is designed to correct normatively defective transfers of value, usually by restoring the parties to their pre-transfer positions.”
[188]Thus, in Terna Energy doo v Revolut Ltd [2024] EWHC 1419 (Comm), a case involving an international payment made through several banks serially, I suggested that, at least in some cases, the question whether there was a defence to the claim (question (d) of Lord Steyn’s four questions) in fact formed part of the earlier question whether the defendant had been enriched at all (question (a) of Lord Steyn’s four questions):
“66. … By splitting up the cause of action into too many parts the illusion has been created that there is a separate question, in principal and agent cases, to be answered as to ‘enrichment’, when that question is inherently tied up with the question whether the agent has a legal excuse for not obeying the instructions of the principal as to payment elsewhere. But, if the agent has such an excuse, there is no countervailing liability. And yet that is what the earlier English cases hold. The agent required to reverse a mistaken payment is released from any liability to account to its principal for the payment.”
[189]In the present case there is no real dispute between the parties as to questions (a) and (b) of Lord Steyn’s four questions. The dispute really arises at the stage of Lord Steyn’s question (c) (“Was the enrichment unjust?”). Here, a number of “unjust” factors have now been identified in the caselaw for the purposes of the unjust enrichment doctrine. But these correspond, more or less, to the various circumstances in which the caselaw of the old law of restitution gave relief to a claimant, such as mistake, duress, undue influence, legal compulsion, and so on. The two factors which, to judge from the parties’ submissions, are of the most importance in this case are “failure of basis” and “free acceptance”. Each of “failure of basis” and “free acceptance” is, similarly, simply a summary term or label for circumstances in which it is said that the law regards an enrichment of the defendant as unjust.[190]Before I proceed to examine the law in more detail, I should add this. It must not be thought that, in the face of third-level approval, academic lawyers have now given up criticising the unjust enrichment model. In 2023, for example, Professor Robert Stevens (also a former student of Peter Birks) published his book, The Laws of Restitution. The first chapter contains the following, remarkable statement (at 3):
“The negative purpose of this work is to ensure that no further books on this topic are written. That is not because it is, or could be, definitive. Rather it seeks to show that there is no unified area of law called ‘restitution’ or ‘unjust enrichment’. There are instead (depending upon how you count them) seven or eight different kinds of private law claim, none of which has anything important in common one with another, that have been grouped together by commentators. Few of them have anything very much to do with ‘enrichment’ as that word is used in everyday speech, and what is restituted differs between them.”
[191]The book continues throughout in this rather stimulating manner. Of course, I have not the academic freedom enjoyed by Professor Stevens, and must proceed in this case on the basis of what the authorities tell me is the current English law. This I now proceed to do.

Failure of basis

[192]I deal first with failure of basis. As made clear by Lord Toulson in Barnes v Eastenders Cash & Carry plc [2015] AC 1, [105] (set out below), this used to be known as “total failure of consideration”. Lord Mansfield CJ referred to it in Moses v Macferlan (1760) 2 Burr 1005, 1012, as a claim “for money paid … upon a consideration which happens to fail”. It was already well known half a century earlier, in the time of Holt CJ: see Holmes v Hall (1704) Holt 36. And, historically, a claim on a “total failure of consideration” was always for money paid on a total failure of consideration. It was never for “goods supplied” or “services rendered”. Thus, Robert Goff and Gareth Jones, in the first edition of their ground-breaking work on The Law of Restitution, 1966, said this (at 31):
“It often happens that the plaintiff claims restitution of money paid by him to the defendant under some ineffective transaction between the parties. The rule is that the plaintiff can only recover his money if the consideration for his payment has wholly failed.”
But Goff & Jones went on (at 32-33) to make clear that there was no need for an actual contract. The contract supposed to exist might be void for mistake, or ineffective because the parties did not intend to create legal relations, or the plaintiff might have paid because he mistakenly believed he was liable to pay the defendant, but in that case failed to secure the expected discharge from liability.[193]A well-known dictum of Viscount Simon LC in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 48, both distinguished the two senses in which the term “consideration” was used in English law, and also explained the basis of the claim to recover money on the ground of failure of consideration:
“In English law, an enforceable contract may be formed by an exchange of a promise for a promise, or by the exchange of a promise for an act—I am excluding contracts under seal—and thus, in the law relating to the formation of contract, the promise to do a thing may often be the consideration, but when one is considering the law of failure of consideration and of the quasi-contractual right to recover money on that ground, it is, generally speaking, not the promise which is referred to as the consideration, but the performance of the promise. The money was paid to secure performance and, if performance fails the inducement which brought about the payment is not fulfilled.” (Emphasis supplied.)
[194]The original restriction to money paid arose because money paid was capable of being the subject of the old count for money had and received to the use of the plaintiff, or indebitatus assumpsit (“being indebted [to the plaintiff], he promised to pay”). That count could be pleaded, however, without having to allege facts showing that there was any genuine contract between the parties. But goods and services supplied or rendered were not within that count. There was no such thing as “Goods [or services] had and received … ” Goods and services supplied were dealt with by different claims, known as quantum valebat (for goods) and quantum meruit (for services). And they had their own rules. Importantly, both of these actions covered both contractual and non-contractual cases. The former arose where there was in fact a request or promise by the defendant to pay for the goods or services. The latter arose where there was no request or promise in fact, but the law treated the defendant as having made one all the same.[195]Thus, in William Lacey (Hounslow) Ltd v Davis [1957] 1 WLR 932, 936, Barry J said:
“In its early history [quantum meruit] was no doubt a genuine action in contract, based upon a real promise to pay, although that promise had not been expressed in words, and the amount of the payment had not been agreed. Subsequent developments have, however, considerably widened the scope of this form of action, and in many cases the action is now founded upon what is known as quasi-contract, similar, in some ways, to the action for money had and received. In these quasi-contractual cases the court will look at the true facts and ascertain from them whether or not a promise to pay should be implied, irrespective of the actual views or intentions of the parties at the time when the work was done or the services rendered.”
[196]However, the most important point to note about the dictum of Viscount Simon LC in the Fibrosa case is the last sentence, which I set out above in italics. Here the Lord Chancellor explains that the money paid (and now sought to be recovered) was induced to be paid by the expectation of counter-performance by another party. But, if no such performance occurs, the “inducement” (= condition) “is not fulfilled”. Lord Wright said the same thing in different words in the same case (at 65):
“The payment was originally conditional. The condition of retaining it is eventual performance. Accordingly, when the condition fails, the right to retain the money must simultaneously fail.”
It is this idea of a conditional payment (or, now, other benefit conferred) that has been taken forward into the modern law of unjust enrichment.[197]Once the idea took hold that there should be, and indeed was, a “unifying principle” of unjust enrichment that underlay all the old “restitution” cases, and in particular the idea that one looked for an enrichment that was unjust, it was difficult to maintain the idea that retention of moneypaid could be unjust when retention (unpaid) of goods or services supplied in otherwise equivalent circumstances was not. Indebitatus assumpsit was now a hindrance, and – for the academics, at least – getting in the way of what they considered the principle should be. But it actually took a long time to dispose of.[198]Indeed, the first clear statement at the highest level came as recently as Benedetti v Sawiris [2014] AC 938. In that case the majority judgment was given by Lord Clarke, with whom Lord Kerr and Lord Wilson agreed. However, Lord Neuberger and Lord Reed each delivered a separate concurring (but still minority) judgment. That was a case in which the real issue was not the principles of unjust enrichment as such, but instead the valuation of the benefit conferred on the defendant. Lord Neuberger said:
“175. The Judge held that Mr Benedetti had a claim in unjust enrichment and that was accepted by the Court of Appeal. The circumstances in which such a claim can arise are multifarious, but they can all be said to involve the conferment of a benefit on a defendant at the expense of a claimant in circumstances where it would be unjust for the defendant not to pay the claimant. Examples of the circumstances in which such a claim can be made include where the benefit has been conferred by or under a mistake, duress, undue influence, incapacity or compulsion … The present claim is in another category, namely, to use a well-established if not wholly apt expression, where there has been a failure of consideration. This arises where there was a contract, but, in whole or in part, it was ineffective (eg due to illegality, frustration or unenforceability), or it ceased to apply for some reason. 176. It is, and always has been, accepted by Mr Sawiris that (subject to his argument on the cross-appeal) Mr Benedetti has a valid claim in unjust enrichment in respect of the Services. This is because (i) by providing the Services, Mr Benedetti conferred a benefit on Mr Sawiris, (ii) the provision of the Services was at the ‘expense’ of Mr Benedetti, (iii) because the scheme fell away, this was a case where the consideration failed, (iv) it would be unjust if Mr Benedetti was not paid for the benefit, and (v) save as a result of the receipt of the €67m (which is relevant to the cross-appeal), Mr Sawiris has no defence to the claim. The appeal is thus concerned with how the sum to be paid to rectify the injustice of the enrichment is to be assessed. 177. That sum has been described throughout this case as being a quantum meruit. It is, I think, arguable that this is a mischaracterisation. It is true that the original contractual arrangement, which identified Mr Benedetti's consideration, fell away. It is also true that the new arrangement which developed did not involve any such identification. However, it seems to me that the new arrangement probably gave rise to a contract, arising from the parties' words and conduct in April and May 2005. That contract did not specify Mr Benedetti's remuneration, but it must be at least arguable that there would be implied into the contract a term that he should be paid a reasonable sum. … ”
[199]It will be seen that, because the point was conceded, what Lord Neuberger says about claims for “benefits” conferred, without distinguishing between claims for money paid, and claims for goods and services supplied, is strictly obiter, and there was no argument on the point. None of the other judges deals with the matter in these terms. But Lord Neuberger evidently saw nothing wrong with the way he put the matter. (Goff & Jones suggest at [12-05], fn 13, that Lord Reed took a similar view at [86], but I respectfully disagree. There Lord Reed, in saying “he accepted Mr Benedetti’s services in the knowledge that Mr Benedetti expected to be rewarded for providing them”, was plainly speaking of the principle of free acceptance, even though he referred to it, presumably by a slip, as “failure of consideration”.)[200]A more important step was taken by the Supreme Court in the following year in Barnes v Eastenders Cash & Carry plc [2015] AC 1. In this case, management receiver orders had been made by the Crown Court in respect of the assets of two companies. The receiver was to be paid expenses and remuneration out of the companies’ assets. The orders were subsequently held to be invalid, however, and the receiver sought remuneration instead by way of the principles of unjust enrichment. Lord Toulson, with whom all the other justices agreed, said: “103. An important part of this branch of law is concerned with cases where money is paid or benefits are conferred for a consideration which has failed. Burrows' Restatement at p 86, accommodates this within the concept of ‘unjust’ enrichment by stating that a defendant's enrichment is ‘unjust’ if the claimant has enriched the defendant on the basis of a consideration that fails.104. Confusion is sometimes caused by the fact that the term ‘consideration’, when used in the phrase ‘failure of consideration’" as a reason for a restitutionary claim, does not mean the same thing as it does when considering whether there is sufficient consideration to support the formation of a valid contract. Viscount Simon LC explained this in Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 48 …105. To avoid this confusion, Goff and Jones suggest, at paras 12-10 to 12-15, that the expression ‘failure of basis’ is preferable to ‘failure of consideration’ because it accurately identifies the essence of the claim being pursued. Whichever terminology is used, the legal content is the same. The attraction of ‘failure of basis’ is that it is more apt, but ‘failure of consideration’ is more familiar.106. Failure of basis, or failure of consideration as it has been generally called, does not necessarily require failure of a promised counter-performance; it may consist of the failure of a state of affairs on which the agreement was premised.107. A succinct summary of the meaning of failure of consideration was given by Professor Birks in his An Introduction to the Law of Restitution (1989), p 223 (cited with approval by the Court of Appeal in Sharma v Simposh Ltd [2011] EWCA Civ 1383, [2013] Ch 23, para 24): ‘Failure of the consideration for a payment . . . means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself.’108. In the present case the receiver has lost his lien. Professor Birks' reference to failure of the consideration for ‘a payment’ would apply equally to failure of the consideration for the provision of services. The present case involves both; the receiver made payments for the protection of the receivership property (in particular by the employment of security guards) and also provided professional services for which he seeks remuneration.109. The point that a failure of consideration may consist of the failure of a non-promissory event or state of affairs is reiterated in Burrows' Restatement at pp 86-87. He states that consideration which fails may have been ‘an event or a state of affairs that was not promised’, and he cites the decision of the High Court of Australia in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 as an example of a failure of a non-promissory condition as to the future ... ” ‘Failure of the consideration for a payment . . . means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself.’[201]It will be seen that Lord Toulson at [103] refers to “money … paid or benefits … conferred”. He follows this up with the statement at [108] that “failure of the consideration for ‘a payment’ would apply equally to failure of the consideration for the provision of services”. No doubt he would say the same for goods supplied. So, the old law is gone. “Benefits” for the purposes of the operation of principle of unjust enrichment may be money, goods or services. The procedural differences between indebitatus assumpsit, quantum valebat and quantum meruit are swept away, at least in this (non-contractual) context. Although, strictly speaking, the phrase “failure of consideration” is not as a matter of language confined to cases of money paid, the use of the phrase “failure of basis” has been promoted instead. It perhaps makes clearer that the benefit conditionally conferred may be money, goods or services. Whether there is also an element of “mission creep”, in that the new term may extend to cases that could never have been covered by “failure of consideration”, is something that I do not need to consider here.[202]One other point deserves to be noticed. In the first edition of Goff & Jones, various separate chapters were devoted to recovery of benefits conferred by mistake, under duress, undue influence, necessity, and so on. But there was no chapter devoted to failure of consideration. That was because the authors treated it as simply the legal mechanism by which money benefits were sometimes to be recovered, in the other circumstances postulated. References to money paid on a total failure of consideration therefore appeared all over the book, for example in the chapters on mistake, gifts, anticipated contracts, frustration, and so on. However, recent editions have elevated failure of consideration, now of course called failure of basis, to an equal partner with other unjust factors. This may be thought to restore the position to that in Moses v Macferlan. Indeed, the current edition of Goff & Jones actually devotes no fewer than five separate chapters to it (three of them with “failure of basis” in the title). This is not a criticism, but a description of how the perception of the law by legal writers has changed.[203]The most recent consideration of failure of basis in the Supreme Court comes in Barton v Morris [2023] AC 684. In that case, a property developer (Barton) agreed with a company (Foxpace Ltd) that, if a company owned by the company were sold for £6.5 million to a buyer introduced by Barton, Foxpace would pay Barton £1.2 million, Although a buyer introduced by Barton (Western) did offer £6.5 million, the price finally agreed and paid was £6 million, reduced from £6.5 million to reflect a planning issue. Foxpace later went into liquidation, Barton’s claim to remuneration was an issue in that liquidation. HHJ Pearce (sitting as a High Court judge) held that Barton had no claim under the contract and no claim in unjust enrichment for his services (which the judge assessed to have a market value of £435,000). The Court of Appeal reversed that decision, and awarded Barton £435,000. By a majority, the Supreme Court reversed the Court of Appeal, and restored the judge’s decision.[204]In discussing the unjust factor of “failure of basis”, Lady Rose (with whom Lord Briggs and Lord Stephens agreed) quoted with approval from the judgment of Carr LJ (as she then was) in Dargamo Holdings Ltd v Avonqick Holdings Ltd [2022] 1 All ER (Comm) 1244, CA as follows:
“79. The core concept of ‘failure of basis’ is that a benefit has been conferred on a joint understanding that the recipient's right to retain it is conditional. If the condition is not fulfilled, the recipient must return the benefit (see Goff & Jones at 12-01). Whilst failure of basis ranks alongside the unjust factors of mistake, duress and undue influence as a factor negativing consent, it differs in that it is concerned with qualification of consent, as opposed to impaired or vitiated consent (see Burrows, The Law of Restitution, 3rd ed, 2011).”
[205]Lady Rose went on to refer to two further third-level decisions on failure of basis, Barnes v Eastenders Cash & Carry plc [2015] AC 1, SC, and Roxborough v Rothmans of Pall Mall Australia Ltd (2001] 208 CLR 516, HCA. I have already referred to both these cases. Lord Toulson (with whom all the other justices agreed) held that, in Lady Rose’s words, “81. … Failure of basis does not necessarily require failure of a promised counter-performance:
“it may consist of the failure of a state of affairs on which the agreement was premised”: para 106. He held that the receiver had agreed to accept the burden of management of the companies on the basis that he would be entitled to take his remuneration and expenses from the companies' assets. That state of affairs which was fundamental to the agreement had failed to sustain itself: para 114.”

Lord Toulson went on:

[206]115. In the present case there was a total failure of consideration in relation to the receiver's rights over the companies' assets, which was fundamental to the basis on which the receiver was requested by the CPS and agreed to act. I use the expression ‘fundamental to the basis’ because it should not be thought that mere failure of an expectation which motivated a party to enter into a contract may give rise to a restitutionary claim. Most contracts are entered into with intentions or expectations which may not be fulfilled, and the allocation of the risk of their non-fulfilment is a function of the contract. But in the present case the expectation that the receiver would have a legal right to recover his remuneration and expenses was not just a motivating factor. Nobody envisaged that the receiver should provide his services in managing the companies as a volunteer; those services were to be in return for his right to recover his remuneration and expenses from the assets of the companies, such as they might be. The agreement between the CPS and the receiver so provided, and that provision was incorporated into the order of the court.”

Lady Rose then said:

“82. Lord Toulson concluded therefore that although the CPS had fulfilled its contractual obligations to the receiver, the receiver was entitled to recover his fees and expenses from the CPS because the work done and expenses incurred by the receiver were at the request of the CPS and there has been a failure of the basis on which the receiver was asked and agreed to do that work.”
[208]In the Roxborough case, a periodic licence fee was charged on wholesalers and retailers of tobacco, to be levied only once in relation to any particular consignment. Thus wholesalers paid the fee and included it in their charges to retailers, who in effect passed it on to their own customers. When the licence fee was held to be invalid, the retailers sued the wholesalers to recover the licence fees they had paid. The claim failed both at first instance and on a first appeal. The retailers appealed again to the High Court. Six judges sat on the appeal to the High Court. Five were in favour of allowing the appeal, with one dissentient. Lady Rose in Barton referred only to the majority judgment of Gleeson CJ, Gaudron and Hayne JJ, and the concurring judgment of Gummow J.[209]She said:
“84. The majority judgment of Gleeson CJ, Gaudron and Hayne JJ described the position as one where reputable commercial people had entered into ordinary business dealings but where their ‘expectations were defeated by the supervening illegality of one aspect of those dealings’: para 5. They regarded the issue before them as whether there had been a failure of a severable part of the consideration that the retailer had paid to the wholesaler (para 20). They held that there had, because the tax component of the total price was treated as a distinct and separate element by the parties: ‘to permit recovery of the tax component would not result in confusion between rights of compensation and restitution, or between enforcing a contract and claiming a right by reason of events which have occurred in relation to a contract’. Gummow J having analysed the facts in detail concluded that the retailers ‘had paid moneys on a basis that later became falsified’ because the state of affairs presented by the operation of the legislation imposing the licence fee failed to sustain itself (para 60). He recognised that there had been no failure by Rothmans in the performance of any promise it had made (para 104). But it was still unconscionable for Rothmans to enjoy the payments in respect of the tobacco licence fee in circumstances in which it was not specifically intended or specially provided that Rothmans should so enjoy them. He said ‘Here, ‘failure of consideration’ identifies the failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover’ (para 104).”
[210]In Barton itself, Lady Rose said:
“85. In the light of those cases, I turn to consider what the ‘basis’ is that Mr Barton says has failed here. … [I]n his written case [counsel] submitted that there was a common assumption as between Foxpace and Mr Barton that Western would buy Nash House for £6.5 million. He submits that HHJ Pearce found that the parties simply did not consider a lower sale price; that was a factor that was outside of either party’s complete control and when it failed to materialise, their shared assumption and hence the basis of their agreement failed. Mr Barton therefore treats the reduction in the sale price in this case as equivalent to the setting aside of the receivership order in Barnes and the invalidity of the licence fee in Roxborough. 86. I am doubtful whether the judge did make a finding to support such an approach. It would be surprising to conclude that these parties simply did not envisage the possibility that Western would not be prepared to pay £6.5 million for Nash House. … There seems to be no rational basis on which the parties could have been so confident at the point when their agreement was concluded and Western was introduced that the sale of Nash House would go through for that amount. 87. In those circumstances, the fact that neither of them raised with the other what would happen in that event does not suggest to me that they were assuming that the sale would be for at least £6.5 million. … The most one can say is that Mr Barton, Mr Rooke and Mr Morris did not discuss it and they did not provide for it in the contract. What HHJ Pearce concluded at para 189 … does not amount, in my judgment, to a finding that the ‘basis’ on which Mr Barton introduced Western to Foxpace was that Nash House would be sold for £6.5 million, such that a sale for £6 million constituted a failure of that basis for the purposes of founding a claim for unjust enrichment.”
[211]Lady Rose went on to consider the effect of the contract that was actually made between the parties on the claim in unjust enrichment. Her view was that it prevented any such claim:
“96. … When parties stipulate in their contract the circumstances that must occur in order to impose a legal obligation on one party to pay, they necessarily exclude any obligation to pay in the absence of those circumstances; both any obligation to pay under the contract and any obligation to pay to avoid an enrichment they have received from the counterparty from being unjust. The “silence” of the contract as to what obligations arise on the happening of the particular event means that no obligations arise as Lord Hoffmann made clear in Belize cited earlier. This excludes not only an implied contractual term but a claim in unjust enrichment.”
[212]She went on to say this about the separate dissenting judgments of Lord Leggatt and Lord Burrows:
“107. I do not consider that there is to be found in this court’s judgments on this appeal any fundamental disagreement about the underlying legal principles, although they may be given different levels of emphasis. The real difference between us concerns whether the express term, that Mr Barton was to receive £1.2 million if the property was sold for £6.5 million to a purchaser introduced by him, was a complete statement of the circumstances in which he was promised some reward under the agreement, or only a partial statement, leaving it to be implied that he would also receive some unspecified reward if the property was sold to such a purchaser, but for less than £6.5 million. … ”
[213]After the conclusion of the trial, and while I was preparing this judgment, Simon Gleeson, sitting as a deputy judge of this division, handed down his judgment in H & P Advisory Ltd v Barrick Gold (Holdings) Ltd [2025] EWHC 562 (Ch). This judgment contains a detailed examination of the principles of both free acceptance and failure of basis, and their place in the English law of unjust enrichment. I accordingly asked the parties if they wished to make written submissions on the significance of this judgment for the present case. Both parties kindly produced such submissions, and I have taken them into account, both in relation to failure of basis and in relation to free acceptance.[214]In H & P Advisory Ltd the claimant company, an investment bank, did considerable work on a proposed merger (which eventually took place) between two gold mining companies, now represented by the defendant. During this time, the claimant sought a contractual arrangement with the companies, but none was ever entered into. The claim accordingly rested, if at all, on unjust enrichment. It was held by the deputy judge that the defendant had been enriched at the expense of the claimant. The next question was whether that enrichment was unjust. The claimant argued that it was, both on the basis of failure of basis and also free acceptance. The deputy judge ultimately held that the claimant had established failure of basis, and that there were no applicable defences, and awarded it the sum of $2 million.[215]As to failure of basis, the deputy judge referred to Professor Birks’ own definition, approved by the Court of Appeal in Sharma v Simposh Ltd [2013] Ch 23, [24], and by Lord Burrows in Barton v Morris, [232]. This was set out above as part of paragraph [107] of Lord Toulson’s judgment in Barnes. He referred further to a passage in Virgo, The Principles of the Law of Restitution (4th edn, 2024), and then also to one in Goff & Jones (from chapter 16, the fifth of those chapters dealing with failure of basis):
“16-03. … In accordance with the general principles that govern failure of basis as a ground of recovery, the basis must be ascertained by an examination of the dealings between the parties. The objectively understood joint basis of the transfer must be identified. It is not necessary to show that the defendant either knew, or ought to have known, that the claimant expected to be paid for his services, nor that the defendant freely accepted those services. As with the position in failure of basis more generally, there may be several conditions to which the transfer is subject … ”

Free acceptance

[216]I turn now to the other potential unjust factor, “free acceptance”. This factor is however controversial, in that Professor Birks was an early proponent of it as an unjust factor in unjust enrichment, but Professor Andrew Burrows (now Lord Burrows) was an early opponent (see Birks, An Introduction to the Law of Restitution, 1985, 165; Burrows, Free Acceptance and the Law of Restitution, (1988) 104 LQR 576). Steve Hedley referred to this controversy, in commenting on the intellectual rigour of the Birksian thesis, in his A Critical Introduction to Restitution, 2001, 13: “Further, certain issues seemed to defy Birks’s logical straitjacket: for example, ‘free acceptance’ seemed to operate both as a test of enrichment and as an ‘unjust factor’, which was odd if those requirements were truly separate. This difficulty, and others, led some writers to reject free acceptance entirely.” (A footnote then refers to Burrows’ 1988 LQR article, mentioned above. It is fair to say that, subsequently, Professor Birks himself moved his position on this point, at least partially.)[217]But although the terminology of “free acceptance” may be new, the concept itself is old. Goff & Jones, in their first edition, 1966, had this to say (at 20-31):
“In cases of services rendered or goods supplied, the requirement that the defendant must have received a benefit is particularly restrictive because of the principle, to which we have already referred, that, apart from cases of necessitous intervention, the defendant will not usually be regarded as having been benefited by the receipt of services or goods unless he has accepted them (or, in the case of goods, retained them), with an opportunity of rejection and with actual or presumed knowledge that they were to be paid for. For convenience, we shall refer to a person who has so acted as having freely accepted the services or goods in question. Such acceptance may give rise to an inference of fact that the defendant has contracted to take and pay for the services or goods; but an inference of this kind is not essential to liability, for the court may impose on a defendant who has freely accepted services or goods an obligation to pay reasonable remuneration or a reasonable price for them.”
[218]In the same way as with failure of consideration, in the first edition there was not a separate chapter on free acceptance. Instead, the notion of free acceptance was used as a way of showing that the defendant had been enriched by the claimant (as Hedley noted), even though the benefit was not money (an “incontrovertible” benefit) but goods or services. The current edition of Goff & Jones (the tenth) does however have a chapter on free acceptance as an unjust factor. It begins with these words: “17-01. The recognition of a principle of free acceptance was one of the most striking, and widely noted, features of early editions of this work, although there was no separate chapter on free acceptance as an unjust factor until the eighth edition [2011]”.[219]But that free acceptance was historically accepted as a ground for recovery is shown in Leigh v Dickeson (1884) 15 QBD 60, 64–65, where Sir William Balliol Brett MR (later Lord Esher) said:
“ … it has been always clear that a purely voluntary payment cannot be recovered back. Voluntary payments may be divided into two classes. Sometimes money has been expended for the benefit of another person under such circumstances that an option is allowed to him to adopt or decline the benefit: in this case, if he exercises his option to adopt the benefit, he will be liable to repay the money expended; but if he declines the benefit he will not be liable. But sometimes the money is expended for the benefit of another person under such circumstances, that he cannot help accepting the benefit, in fact that he is bound to accept it : in this case he has no opportunity of exercising any option, and he will be under no liability.”
[220]Nevertheless, as Goff & Jones said in the passage from the first edition set out above, it is fair to say that liability for such “free acceptance” was sometimes said to be by way of “implying” a (fictitious) contract. This can be seen from cases such as Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234, 249, where Bowen LJ said:
“With regard to ordinary goods upon whichAlabour or money is expended with a view of saving them or benefiting the owner, there can, as it seems to me, according to the common law be only one principle upon which a claim for repayment can be based, andthat is where you can find facts from which the law will imply a contract to repay or to give a lien. It is perfectly true that the inference of an understanding between the parties—which you may translate into other language by calling it an implied contract—is an inference which will unhesitatingly be drawn in cases where the circumstances plainly lead to the conclusion that the owner of the saved property knew that the other party was laying out his money in the expectation of being repaid. In other words, you must have circumstances from which the proper inference is that there was a request to perform the service. It comes to the same thing, but I abstain the using the word ‘request’ more than is necessary, for fear of plunging myself into all the archaic embarrassments connected with the cases about requests. But wherever you find that the owner of the property saved knew of the service being performed, you will have to ask yourself (and the question will become one of fact) whether under all the circumstances there was either what the law calls an implied contract for repayment or a contract which would give rise to a lien?”
[221]The cases of “inferring” a request that Bowen LJ had in mind must have included Lamb v Bunce (1815) 4 M & S 275. There, a pauper from one parish after an accident was conveyed to a house in an adjoining parish, where the overseer of that adjoining parish attended him, and a doctor was called (it did not appear by whom). The doctor treated him as a pauper of the adjoining parish, the overseer not objecting. The doctor presented his bill to the overseer, who refused to pay it. The doctor sued the overseer, and succeeded. Lord Ellenborough CJ said, at 277: “It cannot be matter of dispute in point of law, and I could wish it were so understood, that where time is not afforded for procuring an order of justices, the law raises an obligation against the parish where the pauper lies sick as casual poor, to look to the supply of his necessities; and if the parish officer stands by and sees that obligation performed by those who are fit and competent to perform it, and does not object, the law will raise a promise on his part to pay for the performance”.[222]It is clear from cases such as this that “the promise” to pay was fictitious. In the terminology of the time, it was imposed as a matter of law from the facts that the supplier of the service was not expected to perform gratuitously and the recipient of the services knew this and also knew they were being performed, but did not object to their being performed.[223]The courts have in recent times generally accepted “free acceptance” as an “unjust factor” justifying recovery for benefits conferred, even if claims have sometimes failed on the facts. These cases include: R (Rowe) v Vale of White Horse DC [2003] EWHC 388 (Admin), [14]; Cressman v Coys of Kensington (Sales) Ltd [2004] 1 WLR 2775, [28], [32]; Chief Constable of Greater Manchester v Wigan Athletic Ltd [2009] 1 WLR 1580, [47]; Benourad v Compass Group plc [2010] EWHC 1882 (QB), [106](i); Sharab v Al-Saud [2012] EWHC 1798 (Ch), [68], Professional Cost Management Group Ltd v Easynet Ltd,Manchester Mercantile Court, unreported, 9 July 2012, [90]; Dry Bulk Handy Holding Inc v Fayette International Holdings Ltd (The Bulk Chile) [2012] EWHC2107 (Comm), [82]; Benedetti v Sawiris [2014] AC 938, [25], [119]; Diamandis v Wills [2015] EWHC 312 (Ch), [82]; Evans v Carter [2017] EWHC 2163 (Ch), [27]-[29]; Harbour Fund III v Kazakhstan Kagazy plc [2021] EWHC 1128 (Comm), [244], [288]; Gheewalla v Rasul [2022] EWHC 3180 (Ch), [85], [87]; Mate v Mate [2023] EWHC 238 (Ch), [53]; Kyndryl UK Ltd v Jaguar Land Rover Ltd [2024] EWHC 2329 (TCC), [106]-[107]; Jones v Griffiths [2025] EWHC 797 (KB), [23]-[25].[224]Some of these cases show a considerable knowledge of the disagreements about free acceptance between Professor Birks and Professor Burrows: see egCressman v Coys of Kensington (Sales) Ltd [2004] 1 WLR 2775, CA; Dry Bulk Handy Holding Inc v Fayette International Holdings Ltd (The Bulk Chile) [2012] EWHC2107 (Comm), [81]; Benedetti v Sawiris [2014] AC 938, SC. But, as those cases make clear, the judges regarded the disagreements there referred to as turning on aspects of the valuation of the enrichment of the defendant, and in particular the existence and application of the principle of so-called “subjective devaluation”. That is not a debate which concerns me on the facts of this case, and more particularly when I am not concerned with any question of quantum if there should be found to be liability on the part of Sheila’s estate.[225]Nevertheless, there is today a substantial body of (pro-unjust enrichment) academic opinion that does not accept free acceptance as an unjust factor. Professor Graham Virgo is one noted academic lawyer who takes that view: Virgo, The Principles of the Law of Restitution (4th edn, 2024), 91. Professor Andrew Burrows (now Lord Burrows) is another. His criticism of free acceptance (expressed originally in his paper in the Law Quarterly Review, referred to above) was based largely on the proposition that the claimant in embarking on the work, deliberately takes the risk of not being paid for it. As Lord Burrows, he continues to espouse the view that free acceptance is not an unjust factor at all, but is “better explained” as an aspect of “failure of basis”: Barton v Morris [2023] AC 684, [230] (dissenting). At the moment, however, that remains a minority view, as Sir Peter Lane pointed out in Jones v Griffiths [2025] EWHC 797 (KB), [25].[226]Lord Burrows’ point about risk is a fair one as far as it goes, but there is surely a difference between the claimant who by mistake undertakes a job for the wrong person, and the claimant who was never engaged to do the job by anyone, and just hopes to be paid. Moreover, and as Goff & Jones make clear (The Law of Unjust Enrichment, 10th ed, 2022, [17-05].), even if the claimant takes some risk, it does not follow that he takes the risk that, once the defendant becomes aware of the work being done and has a real opportunity to object, the defendant will keep quiet and say nothing, so that the claimant goes on and completes the work.[227]There is also Lord Burrows’ point about the potential overlap between failure of basis and free acceptance. If every case of free acceptance can be expressed as failure of basis, why have free acceptance as a separate factor? The problem as I see it is that free acceptance and failure of basis are different. The paradigm test case for free acceptance is perhaps Professor Birks’ famous example of the window cleaner (An Introduction to the Law of Restitution, 1985, 265). Let us vary the facts slightly, and suppose that the window cleaner is in fact engaged to clean the windows of A’s house, but by mistake cleans those of B. Assume that neither A nor B is present to point out the error, until the work is done. A does not have to pay under the contract, because the cleaner has not performed what was promised. Does B have to pay for the clean windows? On these facts, there was no free acceptance. B knew nothing about it until it was too late to prevent.[228]Under the old law, the cleaner could not recover. As Pollock CB famously remarked in Taylor v Laird (1856) 25 LJ Ex 329, 332, “Suppose I clean your property without your knowledge, have I then a claim on you for payment? How can you help it? One cleans another’s shoes; what can the other do but put them on?” So, if the cleaner cannot succeed on free acceptance, can he or she succeed under the “new” law of failure of basis? According to Goff & Jones (and as already stated), in failure of basis, “16-03 … It is not necessary to show that the defendant either knew, or ought to have known, that the claimant expected to be paid for his services, nor that the defendant freely accepted those services.”[229]But that cannot mean that the cleaner in this example recovers against B. B did not know of the cleaner’s existence, much less was negotiating with him or her or entering into some kind of professional relationship. There was no relationship between them before the services were performed. There was no condition (or basis) on which the cleaner proceeded and which was shared by B. In other words, the difference between failure of basis and free acceptance lies in whether the services (or goods) supplied were supplied on a shared basis. If they are, the relevant principle is – or can be – failure of basis. If not, then it may be free acceptance. If, in the window cleaner case, B returned home just as the cleaner was beginning work, and saw what was happening, understanding that the cleaner expected to be paid, but forbore to object to the benefit being conferred, B would have freely accepted the benefit of those services, and should pay a reasonable price for that part which B could have prevented. (That was Birks’ original example.) But B’s liability would not be because of a failure of basis. It would be because B could have prevented it and did not.[230]A second argument against the principle of free acceptance is that it undermines the allocation of risk between the parties to a contract, in a way that failure of consideration (or, now, “basis”) does not. Day and Virgo, Risks on the Contract/Unjust Enrichment Borderline (2020) 136 LQR 349, 354, put the point this way:
“The problem with free acceptance is that it is a watered-down version of a claim for failure of consideration (or failure of a mutual basis for the transfer), which is a long-established ground for restitution that does not undermine the allocation of risk between parties to a contract. The dilution arises because failure of consideration requires the claimant’s condition for conferring the benefit to be shared by the defendant. For free acceptance, however, it suffices that the defendant is merely aware that the claimant expects to receive a quid pro quo for the benefit. Because the claimant need not have secured the defendant’s agreement to that exchange, it follows that free acceptance rewards risk-taking … ”
[231]For myself, however, I would not accept that free acceptance “is a watered-down version of a claim for failure of consideration [or basis]”. I agree that in the former case the defendant need not agree to pay the claimant for the benefit conferred, though in the latter the basis (or condition) for transfer must be shared. But that does not make the one a paler version of the other. The features of each that make it a self-standing unjust factor for the purposes of unjust enrichment are quite different. In the latter case, the benefit was conferred on an agreed condition which has been falsified. It is unjust not to return the benefit or pay its value. In the former case, there is no agreed condition. The unjustness lies in the recipient not preventing the needless conferring of the benefit when that recipient realised it was happening, and that it was not free.[232]Moreover, the criticism that free acceptance “undermine[s] the allocation of risk between parties to a contract” has no traction in a case where there is no contractual structure to the transaction for the claimed unjust enrichment liability to cut across. The window cleaner and house owner B have undertaken no agreed allocation of risk. But, once B comes home and sees the benefit still being conferred, B is free to accept or reject the benefit being conferred. And, if it is accepted, B should pay. At bottom, the difference between Day and Virgo, on the one hand, and (say) Goff & Jones, on the other, is whether the defendant has any moral duty to speak up on realising that a to-be-paid-for benefit is being conferred by the claimant without agreement. I hope I am not being too fastidious, but I think that Goff & Jones are right, and that the defendant does have such a moral duty. (This use of moral duty as a source of legal obligation is found elsewhere in the law, eg in certain forms of proprietary estoppel: Ramsden v Dyson (1866) LR 1 HL 129, 140, 168.) And the failure to object to the conferring of something which you know of, and which you know or should know is expected to be paid for causes the unjustness.[233]I have carefully considered the judgment of deputy judge Simon Gleeson in H & P Advisory Ltd. But I respectfully doubt that he is right to dismiss free acceptance as a free-standing unjust factor in the way that he does. He says (at [228]) that free acceptance requires that mere receipt of a benefit creates a restitutionary liability unless there is a positive act of rejection by the recipient in advance of or during the receipt. But in my respectful opinion it does not. It creates such a liability if, and only if,(i) the recipient knew or should have known that the claimant who supplied the benefits expected to be paid for them, and yet(ii) did not take a reasonable opportunity open to him or her to reject those benefits. Mere receipt plus no rejection is simply not enough.[234]Moreover, the deputy judge says (at [221]) that it is “unquestionably correct that free acceptance is an ingredient of failure of basis – in the context of the provision of services, without a finding that the defendant has knowingly and voluntarily accepted a benefit, no case in failure of basis could ever be made out.” As will be clear from what I have already said, I am afraid that I do not agree with this either. As I have said, in failure of basis, an agreed condition (or basis) has not been fulfilled. There is no need to know that the benefits are to be paid for, or to have (and fail to take) an opportunity to reject them: see the extract from Goff & Jones, [16-03], at [229] above. In the case of free acceptance, on the other hand, there is no agreed condition. Instead, the recipient knows, or should know, that the benefits are to be paid for, and does not take an available opportunity to reject them. The unjustness in each case springs from different things.[235]Thirdly, the deputy judge examines some (but by no means all) of the cases set out at [224] above which (in my opinion) approve of the concept of free acceptance as part of English law, and (in the main) he seeks to distinguish them. He also examines other cases which I accept do not amount to such approval (usually because they express no concluded view). It would be tedious to go through each of these discussions. So, I hope I will be excused for saying merely that I have read them all, and am unconvinced that the judges in the cases that I cited were not accepting the principle of free acceptance in English law. In my view, free acceptance does have a role to play as an unjust factor in the currently accepted English law unjust enrichment model. In my judgment the law is that a reasonable person who benefits from services rendered who should have known that the services were expected to be paid for but, having a reasonable opportunity to do so, did not reject them cannot deny having been unjustly enriched.[236]Finally in this section of my judgment, I note the submission on behalf of the defendant in closing that “49. Free acceptance is not an independent or fully recognised unjust factor in English law.” The submission went on to discuss Prof Burrows’ article in the LQR, his dissenting judgment in Barton v Morris, and the significance of other cases. I hope that I have made clear in the foregoing paragraphs why I am unable to accept this submission.

Other matters

[237]It was not suggested by either party that any principle of necessity might operate as an unjust factor in this case, and therefore I do not consider it. But I note in passing that section 7 of the Mental Capacity Act 2005 provides:
“7(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them. (2) ‘Necessary’ means suitable to a person's condition in life and to his actual requirements at the time when the goods or services are supplied.”
This provision replaces section 3(2) and (3) of the Sale of Goods Act 1979, so far as goods are concerned, but the new section also extends to services. However, it did not feature at trial, and I need say no more about it. APPLICATION OF LAW TO FACTS Contract

APPLICATION OF LAW TO FACTS

[238]On the facts as found, I am satisfied that in October 2017 the claimant and her mother entered into a contract for her to be cared for at the claimant’s home for a reasonable price. Such a contract is pleaded in paragraphs 10 and 11 of the amended Particulars of Claim. I deal with it in more detail as follows.[239]First of all, Sheila had the capacity to do so. She had made a professionally drawn will in December 2015, and executed powers of attorney in September 2017 and February 2018. She was judged able to discuss her own health matters with doctors and nurses at various points thereafter (though not after her fall in April 2020). She also made decisions about buying goods and services that she wanted. The fact that she was diagnosed with vascular dementia in July 2018 does not automatically mean that she thereafter ceased to have capacity, or that she did not have capacity earlier than that, in October 2017. Neither does the fact that she had not managed her own financial affairs for some time. Section 1(2) of the 2006 Act requires that Sheila be presumed to have capacity until the contrary is established. Moreover, section 2(3) provides that a lack of capacity cannot be established merely by reference to a condition that Sheila has (such as vascular dementia). The only cognitive test carried out on her was the GP COG patient examination (in July 2018), where she scored 4/9. I am very far from satisfied that in October 2017 Sheila had lost capacity, and therefore proceed on the basis that she still possessed it.[240]Secondly, on the evidence Sheila plainly intended to create a legal relationship with the claimant. Sheila was a lady who knew she had sufficient resources, who did not want charity, and wanted to be looked after properly, preferably in her own home, but, failing that, living with one of her children. She insisted, not only to the claimant but also to the claimant’s husband and children, that the claimant had to be paid “properly” for looking after her, notwithstanding that the claimant was her daughter. If a third party had undertaken to look after her in its care home, or carers had been employed to come into her own home and look after her there, there would have been little or no question of a lack on intention to create legal relations. I see no sufficient reason not to take the same view if the arrangement was with the claimant rather than a third party. This was not a short-term family or social treat by one family member to another. It was an important long-term living arrangement, involving hard work and unsocial hours, and impacting considerably on the contractor’s existing lifestyle, including preventing her from earning money in other ways.[241]Thirdly, all the elements of a contract for Sheila to be cared for were present. The claimant and Sheila were in agreement on what was to be done, and, although no specific price was fixed, it was plainly a contract for services at a reasonable price. In my judgment, Sheila’s estate is accordingly liable to pay that price. This being a split trial, there will have to be further directions and a hearing to deal with issues of quantum, but I am not now concerned with that.[242]Fourthly, even if it were the case (which I have found it was not) that Sheila privately did not intend to enter a contract with the claimant, the matter is nevertheless to be judged objectively, on the basis of what the words and conduct of Sheila would have conveyed to a reasonable person in the claimant’s position: see Dunhill v Burgin [2014] 1 WLR 933, [25], per Lady Hale. Analytically, Sheila would be estopped from denying that such was her intention: cfSmith v Hughes (1871) 6 QB 598, 607, per Blackburn J. I assume that this was the point of the pleading in paragraph 12 of the amended Particulars of Claim. It was not (as the defendant submitted) an attempt to create a novel cause of action, but rather a use of long-standing principle to enable the application of an entirely orthodox one.

Unjust enrichment

[243]In case I am wrong about the creation of a valid contract between Sheila and the claimant, whether because Sheila lacked capacity, or the intention to create legal relations, or because she simply did not agree with the claimant that there should be such a contract, I will go on to consider the question of her estate’s liability to the claimant in unjust enrichment. This claim is pleaded in paragraph 13 of the amended Particulars of Claim. I accept that the claimant calls the cause of action variously “restitution” and “quantum meruit”, rather than “unjust enrichment”, but it is clear what is meant. In any event, there is no requirement to plead matters of law. It is the facts that matter, so that the defendant is given due notice of the case he has to meet. In my judgment he had that, and the trial was fought on the correct factual terrain.[244]Paragraphs 10 and 13 of the amended Particulars of Claim make a number of factual allegations which I have found to be made out. They include the conferring of substantial benefits upon Sheila (enrichment), by the claimant (and so at her expense), in circumstances where Sheila accepted those benefits, having the opportunity to decline them, and knowing that they were expected to be paid for (free acceptance). It was not suggested that the defendant, as Sheila’s personal representative, would have any applicable defence to that claim. In my judgment, all the relevant elements of a claim in unjust enrichment were present, and Sheila’s estate is liable accordingly.[245]It is fair to say that the claimant’s arguments rest, not on free acceptance, but on failure of basis as the relevant unjust factor. Her closing submissions say this:
“162. The Defendant’s Written Submissions are advanced on the basis that there is no unjust factor in this case. The Defendant suggests that the Claimant bases her claim on the assertion that free acceptance is an unjust factor. The Claimant makes no such assertion because the nature of the Claimant’s pleaded case does not require her to do so: her claim is premised on the failure of promised counter-performance”
There is therefore not as much discussion of the principle of free acceptance on the part of the claimant as they might otherwise have been.[246]What instead the claimant relies on (at [165]) is “the agreement or mutual understanding of Ursula and Bernadette which, it is submitted, amounted to a request (whether made expressly or tacitly by conduct) by the former, and thereby takes this case outside the remit of the ‘free acceptance’ discourse. The index case is not one where Ursula was a passive observer (as is the homeowner in Birks’ window-cleaner example), but rather she was an active participant in the discussions and, by her comments and conduct, both requested and induced Bernadette’s services.”[247]In my view, this argument proves too much. If I were wrong about the claim in contract, and there were no contract between the claimant and her mother, I would not hold that the claimant conferred her services on the basis that she would be paid for them, but in the event she was not and the shared basis was not fulfilled (failure of basis). This is because, on the authorities I referred to earlier, it appears to be necessary that Sheila should have shared that basis. But, if Sheila had shared that basis, ie that the services were to be paid for, she would have requested services, knowing they were to be paid for, and so there should be a contract for a reasonable price. In Fibrosa, the money was paid to secure the (agreed) delivery of goods. The goods were not delivered, and so the condition on which payment was made failed. Here, however, it is the other way round. The services were supplied, and it is the payment that is lacking. If Sheila agreed to pay for the services, she should be liable, and pay, under a contract.

CONCLUSION

[248]In my judgment, the claimant has established that Sheila agreed to pay her a reasonable price for the care that the claimant provided. If I were wrong about that, Sheila’s estate would be liable to the claimant in unjust enrichment for the value of that care so provided. The second stage of this litigation will deal with the ascertainment of such quantum. However, this is a case which cries out for mediation rather than litigation. It ought to be possible for the parties, in the hands of an experienced mediator, to reach agreement on what is the appropriate amount to represent the liability of Sheila’s estate towards the claimant. In that way, further costly and emotionally wearing court hearings will be avoided.[249]Finally, I record my gratitude to counsel and solicitors on both sides for their assistance with this case, the preparation of the bundles and the quality of the arguments to which I was treated. I should be grateful to receive a draft minute of order giving effect to this judgment and suggesting appropriate directions for the quantum stage of the litigation.

Cited in 4 later judgments