Maxine Charles & Anor v Andre Solomon & Ors [2025] EWHC 862 (Ch)

Case No CH-2024-000147[2025] EWHC 862 (Ch)IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCHANCERY DIVISIONVenue The Rolls Building, 7 Rolls Buildings, Fetter Lane, LondonEC4A 1NLDate of hearing: 25 February 2025
Before
MR JUSTICE RAJAH
Between
(1) MAXINE CHARLESAppellants(2) WAYNE MILLINGTONAppellant(1) ANDRE SOLOMONRespondents(2) WILFRED SYLVANUS SOLOMONRespondent(3) JASON ORIN LESTERRespondent(4) CAROLYN ASTRID LOUISE SOLOMONRespondent
JEFF HARDMAN (C)(instructed by Starck Uberoi) for AppellantsFRANCESCA MITCHELL (C)(instructed by Naylor Solicitors LLP) for Respondents
APPROVED JUDGMENTIf this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.Digital Transcription by Marten Walsh Cherer Ltd.,2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.Telephone No: 020 7067 2900. DX 410 LDEEmail: info@martenwalshcherer.comWeb: www.martenwalshcherer.comDate 2025-02-25
[1]This is an appeal from the decision of His Honour Judge Saunders. He found after a trial that the beneficial joint tenancy between the owners of 125 King’s Avenue, UB6 9DF, had been severed by a course of dealing so that it was held by them as tenants in common. He also ordered an account of the rents which he found had not been consistently shared amongst the owners.

Late appeal

[2]The first issue to be dealt with is the fact that the appeal is late.[3]Judgment was handed down on 22 March 2024. The time for filing an appeal, including an application for permission to appeal, expired on 12 April 2024. On that day an appeal notice was hand-delivered to the Central London County Court. This was a mistake. The appeal notice should have been CE-filed with Chancery Appeals. That procedure is set out in the Chancery Guide.[4]An appeal notice with an application to extend time, and supported by a witness statement from Mr James Incledon explaining the mistake which had been made, was rejected by Chancery Appeals on 7 May 2024 and again on 15 May 2024 because it had not been accompanied by a sealed order. This was because no sealed order had at that stage been made by the judge. This was an error by the court office because time for an appeal starts running from the delivery of a judgment and the rules require the appeal notice to be accompanied by either a sealed order or the determination, i.e. the judgment under appeal; see PD52B paragraph 4.1.[5]Eventually an appeal notice was filed on 18 June 2024 on the basis that the order under appeal was a consent order dated 10 June 2024. The grounds of appeal in all of these attempted appeals are the same.[6]Ms Mitchell on behalf of the respondent says that no judgment was lodged, as it should have been, on 7 May or 15 May and so even though Chancery Appeals rejected the appeals for the wrong reason, namely the absence of a sealed order, the appeals were still defective because they were not accompanied by the right documentation.[7]She also says in the events which have happened, the only application for an extension of time was in the unissued application of 7 May 2024 and no application for an extension of time was made in the appeal notice which was actually issued on 17 June 2024. She says, therefore, there is not even an application for an extension of time before me now.[8]Appeal deadlines are intended to provide finality in litigation. A failure to comply with them is usually a serious and significant breach of the rules. I am satisfied that an attempt was made to appeal within time. That has failed because a mistake has been made as to how to lodge the appeal. Thereafter, the delay in lodging the appeal was not solely the appellants’ fault, it was contributed to by the court office. The respondent has suffered no prejudice other than the prejudice which is inherent in an appeal being made. They knew all the way through this process that the appellants were seeking to appeal and that they were having problems in doing so. It would be disproportionate and unjust to deprive the appellant of its right to ask for permission to appeal in these circumstances. I will waive the absence of a formal application for an extension of time and grant an extension of time to 18 June 2024 for the filing of the appeal notice.

Status of consent order

[9]I will say something now about the status of the consent order, because it seems a little curious to have an appeal against an order which the parties have agreed to. The parties have agreed the amounts which are to be paid by the appellants to the respondents if the judgment is not successfully appealed. As such, the order does not constitute a full and final settlement of these proceedings. It does not compromise the appeal. It is conditional on the appeal being successful.

Rolled up hearing

[10]Mr Justice Leech directed that there should be a rolled-up hearing of both the application for permission to appeal and if the application for permission to appeal was successful, the appeal itself. I considered it most cost and time effective to hear the entire matter as one hearing and so I have been addressed by Mr Hardman and Ms Mitchell on the merits of the appeal without distinguishing between whether the appeal should succeed or whether it meets the lower threshold for permission to appeal.

The background

[11]Philma and Maxine (the first appellant) are sisters. Hyacinth was their mother. Together the three of them purchased 125 King’s Avenue in 1983 or 1984. They were registered as joint tenants. When Hyacinth died in 1998, the property passed by survivorship to Philma and Maxine. In 2000 the property was transferred into the names of Philma, her son Andre (the first respondent), Maxine and her son Wayne (the second appellant). Philma died in 2020.[12]Proceedings were commenced by Andre against Maxine and Wayne by a claim form in 2020 which was allocated to the small claims track. Andre’s claim was that he was being excluded from involvement and information relating to the property and that rent had not been paid for long periods dating back to 2017 and before. Maxine’s defence disputed that Andre had any beneficial interest in the property.[13]Eventually, this claim made its way through the court system and arrived at a trial before His Honour Judge Saunders on 10 and 11 January and 16 February of 2024. By that stage, Philma’s executors had become co-claimants with Andre. At the outset of the trial, the judge permitted the claimants to amend the particulars of claim to plead that the joint tenancy between Philma, Andre, Maxine and Wayne had been severed by a course of dealing by at least 2017.[14]No defence was served by the defendants, which is unsurprising, bearing in mind the lateness of the amendment. The judge rejected the invitation to treat the absence of a defence as an admission of the severance. He must be taken to have dispensed with the need to serve an amended defence, bearing in mind the stage at which the proceedings had reached, and proceeded on the basis of there having been a joinder of issue on that point. The point is renewed in the respondents’ notice but there are no grounds for interfering with that case management decision of the judge. I indicated as much to Ms Mitchell when she was making her submissions.

The judgment

[15]The issues which the judge had to consider were firstly whether any joint tenancy had been severed and secondly what if any account should be ordered in respect of rent.[16]The judgment of the judge set out the relevant law on severance at paragraphs 15-23 of the judgment. At paragraph 15 he described the general position as follows:
“(a) By s.36(2) of the Law of Property Act 1925, a joint tenancy may be severed in equity in the same manner as a joint tenancy of a personal estate could have been severed prior to 1926. That has relevance because of the age of the authorities relied upon. (b) In Williams v Hensman (1861) John & Hen 546, Sir John Page Wood V-C described three ways in which a joint tenancy could be severed at 557: (1) by an act of any one of the persons interested operating upon their own share; (2) by mutual agreement; (3) (and as the Claimants rely upon in this case) “by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”. (c) The editors of Megarry & Wade (9th edition) note at 12-043 “Although it is not necessary that the joint tenants should have reached a concluded agreement, the acts and dealings with the property must indicate an intention by them that they should hold in common. Thus, periodic distributions of property amongst joint tenants or the apportionment of the profits of trade amongst the joint owners of a business on the assumption that they are tenants in common, has been held to constitute such a course of dealing.” (d) In contra to (c) it is noted at Page 192 that there is “no severance where the rents of jointly owned properties are used as a common fund for the maintenance of the joint tenants.”
[17]The judge noted that the course of dealing must be sufficient to intimate that the interests of all were mutually treated prior to 2020 as constituting a tenancy in common. He then considered and accepted the claimants’ submissions based on Jackson v Jackson (1804) 9 Ves Jun 591. He concluded in paragraphs 20 and 21: “20. The authorities above support the proposition that periodic distributions and apportionment of profits constitute such a course of dealing. This is important to this case because if the co-owners of the property proceeded on the mutual assumption that they were entitled to shares, then it will be a case where severance occurred, thereby altering the basis of holding to one of tenancies in common, which supports the claimants’ case. If that is not shown then the property remains as a joint tenancy. 21. I accept Mr Grocott-Barrett’s submissions that this could be demonstrated by a division of rental income, as alleged in this case, where there was a mutual assumption that they were entitled to it”.[18]The statement in paragraph 21 is attacked as wrong by Mr Hardman, and I will return to this later.[19]The judge found that there had been a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. Firstly, having heard the oral evidence from the respondents’ witnesses, Andre and his father, Philma’s husband, Wilfred and the appellants’ witnesses, which were Maxine and Wayne, the judge preferred the respondents’ evidence. He found that the property had always been used as an investment property where an income by way of rent had been obtained from it (paragraph 51). He found that there were regular heated discussions between Philma and Maxine regarding Maxine’s failure to distribute the rent generated by the property and that, despite these discussions, Maxine did not share the rent with Philma (pareagraph 52). He found that Maxine and Philma were at loggerheads for years regarding Maxine’s failure to pay Philma her share of the rent.[20]He concluded that all four joint tenants were acting together on the basis that they were severally entitled to rents received from the property and that therefore the joint tenancy had been severed. That conclusion is said by Mr Hardman to be a wrong application of the law. I will come back to that.[21]However, importantly, he also made findings on a document or schedule which had been prepared by Wayne in early 2006 for the purposes of a family meeting and concluded that it indicated that in 2005 to 2006, Philma, Maxine, Andre and Wayne were operating under a common understanding that each side of the family was collectively entitled to a 50% share of the property ( paragraphs 60-61).[22]From 2017 the parties did apportion their profits (paragraph 55). The judge found that even after Philma passed away, Maxine continued to operate on the basis of a tenancy in common by continuing to transfer Philma and Andre’s combined 50% share of the rent into Philma and Wilfred’s joint account (paragraph 56). He referred to Maxine’s email to Wilfred dated 18 May 2021 where she explained that she had continued to make payments to Wilfred and Philma’s joint account following Philma’s death because of Philma’s wishes that her “half share of the rental income received” and her “half of the equitable share of the property” should pass for the benefit of her grandchildren (paragraph 58).[23]He referred to Maxine’s first witness statements in which she referred to an agreement in April 2017 that the parties would “divide” the rental profits and that this arrangement remained in place until Philma passed away (paragraph 63).[24]So those were his main findings in relation to the first issue on severance. In relation to the second, he concluded there was no informal agreement that the historic distribution of profits did not need to be paid or had been dealt with in some other way. He concluded that there was no informal agreement between Maxine and Philma dispensing with rent from 1984 to 2017 and concluded that rent was due from Maxine to Philma for the period dating back to 1984.[25]The judge heard the oral evidence from the parties at trial and on the topic of this informal agreement, preferred Wilfred’s evidence over Maxine’s and Wayne’s. In particular, he accepted that the property was bought with a view to helping to fund the education of Wilfred and Philma’s three children and Maxine’s two children (paragraphs 27 and 28). and that Maxine had refused to share the rent from 1984 onwards, contrary to the parties’ intentions (paragraph 29). He found that Wilfred was married to Philma for some considerable time and would have been fully aware of what the arrangements were between Philma and Maxine, whether he was talking directly to Maxine or not (paragraph 51).[26]He found, as I have mentioned, that there were heated discussions which took place between Philma and Maxine and that despite this, Maxine did not share the rent generated by the property with Philma (paragraphs 30 and 52). He found that there were “several examples of when Philma had asked Maxine to account for rental income on the Property” and been refused (paragraph 32). He concluded that the first time any suggestion of a separate arrangement regarding sending money to help people in the family in Guyana was raised was during the course of the litigation (paragraph 34).[27]He found that the appellants’ witnesses were less reliable than the respondents’ and he rejected Maxine’s evidence.

The appeal

[28]I turn now to this appeal. The circumstances in which an appeal court will interfere with a decision of the lower court are set out in the Civil Procedure Rules at 52.21(3): “The appeal court will allow an appeal where the decision of the lower court was: a) wrong; or b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.[29]It is now well-settled that the appellate court regards the fact-finding exercise as within the domain of the trial judge. An appellate court will not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that the trial judge was plainly wrong. It does not matter with whatever degree of certainty that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under the appeal is one that no reasonable judge could have reached. Those propositions can be found in Volpi v Volpi [2022] EWCA Civ 464 at [2][30]In Henderson v Foxworth SC(Sc)) [2014] 1 WLR 2600 Lord Reed summarised the appellate court’s approach at paragraph 67 in this way:
“It follows that in the absence of some other identifiable error such as, without attempting an exhaustive account, a material error of law or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot be reasonably explained or justified”
.

Ground 1

[31]The first ground of appeal is that Mr Hardman says the judge was wrong to conclude that an intention to share the rent from a property must result in a severance of a joint tenancy. I accept that submission. That is not a principle which can be extracted from Jackson v Jackson or the passages in Megarry & Wade which the judge was referred to and which he quoted in his judgment. The equal division of income received from co-owned property sheds little light on whether the property is held as joint tenants or as tenants in common. In either case the co-owners are entitled to share the income equally. In the case of a joint tenancy that may be analysed as a severance of their joint interest in the income which has arisen, resulting in an entitlement to equal shares. It does not automatically follow that they intend their interests in the underlying capital to cease to be held on a joint tenancy.[32]The manner in which rent is divided can be consistent with and provide material from which the court can conclude that there has been a severance. However, I do not see how the mere division of rent between co-owners on its own can be conclusive. There needs at least to be some consideration of why the rent is being divided and a conclusion that the payments are being made on the assumption that the owners are tenants in common of the underlying property. In Jackson v Jackson, there were findings by the Lord Chancellor that:
“After transactions for twelve years in which the property had been treated as part of a partnership between the brothers, one brother lived and died in the belief, encouraged by the other, that he was entitled to one half and after his death his brother acted on the same basis.”
It was in the light of those findings as to the belief and intention of the brothers that the division of profits between them was part of a course of dealing which was relevant. What is usually much more instructive is an indication that a share of the property is to belong to a co-owner and to pass after their death to their heirs. The doctrine of survivorship is integral to a joint tenancy and if there is a course of dealing that shows the co-owners no longer wish their interest in the property to be subject to the doctrine of survivorship, that will effect a severance.[33]The judge certainly did approach this case on the basis that a mere division of rent between the co-owners in the belief that they were entitled to a share of the rent effected a severance. However, he considered that his decision on severance was supported by other facts. Some of these are particularly relevant. Firstly his finding that from 2006 that the property was regarded as held as to 50% for Philma’s family and as to 50% for Maxine’s family. Secondly, the payment of rent from 2017 by Maxine to Philma and Wilfred and the continued payment of rent after the death of Philma to Wilfred, and thirdly, Maxine’s explanation by email that these payments after Philma’s death represented her interest in the property and what she intended should happen to it after her death.[34]This is all clear evidence of a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. It clearly shows Maxine’s understanding that Philma’s share remained in her family after her death and they were entitled to rent. In other words, that there was no survivorship. It makes the payment of rent since 2017 not just a mere division of rent but the payment of rent in respect of Philma’s share as a tenant in common. Nothing changed on her death. I do not, therefore, consider that the judge’s decision is wrong for the purposes of CPR 52 in his conclusion that there was a severance, notwithstanding his focus on whether there was a division of the rent.

Ground 2

[35]The second ground of appeal is a challenge to his finding that there was no informal arrangement dispensing with rent sharing and that the consequent account should date back to 1984.[36]The starting point is that the rents from this property have been received by Maxine and she has a duty to account for it to her co-owners. Mr Hardman disputed this by reference to cases on the taking of equitable accounts between cohabitees. I do not think those are relevant. Maxine has received rent which belongs beneficially to all the owners of the property. She has a fiduciary duty to account to them for her dealings with their money. She may have a number of defences. She may say that she has accounted or she may say that an account has been waived by agreement. In fact she said both. She said the monies had been used to pay Guyanese relatives with Philma’s agreement. She said she had given cash to Philma as cash in hand.[37]The problem for her is that the judge roundly rejected her evidence. He rejected her contention that any payments to relations in Guyana were relevant, observing that there was no evidence that they were connected to this property. He rejected her evidence that she had accounted to Philma by giving her cash in hand. He preferred Wilfred and Andre’s evidence. He found that Philma wanted her money and was at loggerheads with Maxine for years because she was not being paid her share of the rent.[38]Mr Hardman was keen to refer to documents not mentioned in the judgment or to say that insufficient weight was given to one class of documents such as WhatsApp messages or some other class of documentary evidence. However attractively he presented this as a challenge to inferences being drawn from underlying documentation and primary fact, I am satisfied that this is really an inappropriate attempt to re-argue on appeal issues which were argued or should have been argued before the trial judge. A trial is not a dress rehearsal, it is the first and last night of the show, in the words of Lord Justice Lewison in Fage UK Ltd v Chobani UK Ltd &anor [2014] EWCA Civ 5.[39]I conclude, therefore, on ground 2 that there is no identifiable error in the judge’s fact-finding exercise. It cannot be said that his conclusion that there was no informal arrangement relieving Maxine from a duty to account for the rent received since 1984 is a conclusion which cannot be reasonably explained or justified.[40]For those reasons I will refuse permission to appeal and dismiss this appeal. Post judgment note: on reflection it seems to me that in relation to Ground 1, I should have granted permission to appeal (the threshold of a real prospect of success on the appeal having been met) but dismissed the appeal on its merits. The outcome would have been the same. - - - - - - - - - - (This Judgment has been approved by the Judge.) Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com