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Family Law

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29 APR 2015

Curran v Collins [2015] EWCA Civ 404

Curran v Collins [2015] EWCA Civ 404
(Court of Appeal,Arden, Davis, Lewison LJJ, 29 April 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2016] 1 FLR 505]

Property – Constructivetrust – Finding of no direct or indirect contribution by the woman – Someevidence rejected – Whether the judge had been correct to dismiss the woman’sclaim for a share in the properties and business – Whether her treatment of theparties’ evidence was inconsistent

The full judgment is available below

The woman’s appealfrom a decision rejecting her claim for a share in properties and a businessowned by her ex-partner was dismissed.

When the relationshipbetween the man and woman broke down in 2010, the man excluded the woman fromthe residential property (The Haven) and denied that she had any claim to itsassociated dog kennel business or to two further properties where they hadspent time.

The Haven waspurchased partly by way of a mortgage, from the net proceeds of the sale ofanother property and by a loan from the man’s father. The properties werebought in his sole name. The woman issued proceedings claiming that there hadbeen an agreement or understanding that she should have a half share in all ofthe properties. She further claimed that she had made significant financialcontributions towards household bills and mortgage contributions.

The judge found thatthe woman’s evidence was unreliable and treated it with extreme caution. Shewas unpersuaded that the woman had made any direct or indirect financialcontribution to the properties. Furthermore, the judge was not satisfied thatthere was any shared intention as to joint ownership arising from theirrelationship. The woman appealed.

The appeal wasdismissed.

The judge was entitledto find that the woman’s evidence was inaccurate in some respects and that sheshould, accordingly, treat her credibility with caution. She was also entitledto treat the man’s evidence cautiously meaning that she would accept it on somematters and reject it on others. That did not amount to inconsistency.

The judge’s interpretation of the husband’s excuse fornot purchasing a property in their joint names, due to the cost, could not beset aside. She had carefully evaluated all the relevant facts and circumstancesincluding the fact that the parties were not living together when the excusewas given and did not do so for years later. Together with the absence of asignificant contribution, the judge could not be faulted for her conclusion.


Neutral Citation Number: [2015] EWCA Civ 404
Case No: B2/2012/1459

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDONCOUNTY COURT
Her Honour Judge Marshall QC0CL10533

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 29/04/2015

Before:

LADY JUSTICE ARDEN
LORD JUSTICE DAVIS
and
LORD JUSTICE LEWISON

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Between:

Pamela Curran
Appellant

- and -

Brian Collins
Respondent

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Sarah Crowther (instructed through the Bar Bro Bono Unit) for Ms Curran
Donald McCue (instructed by J Garrard & Allen) for Mr Collins

Hearing date: Tuesday 3 February

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Judgment

LADY JUSTICE ARDEN
:

[1] Over many years, Mr Collins and Ms Curran spent time together in various residential properties, acquired in turn by Mr Collins, and enjoyed each other’s company. From about 1994, they bred Airedale terriers and entered the dogs for shows with some success. In about 2010, their relationship broke down. Mr Collins excluded Ms Curran from a residential property known as The Haven. He agreed that Ms Curran was entitled to a half share in the Airedales. He denied that she had any claim to any of the three properties in which they had spent time together: a flat in Bedfont (“the Bedfont flat”); a house in Feltham (“the Feltham house”); and then another house (“The Haven”) with dog kennels attached, where a kennels business (“the Business”) had been conducted. In each case, Mr Collins had bought the property in his sole name. Mr Collins also denied that Ms Curran had a half share in the Business. Ms Curran’s claims were tried before HHJ Marshall QC, sitting in the Central London County Court, and, by order dated 24 May 2012, she dismissed Ms Curran’s claims. Ms Curran now appeals to this court.

[2] It is common ground that, because the properties were all held in Mr Collins’ name, Ms Curran bore the legal burden of proving that she was entitled to a share. There was no express agreement. She had to show two matters. First, she had to show that she reasonably believed that the parties’ common intention, to be deduced from the whole course of their conduct in relation to the properties, was that she was to have a share of the properties. Second, she had to show that she acted to her detriment on the basis of that common intention: see, for example, Grant v Edwards [1986] 1 Ch 638, 654D-E. These principles are not disputed by Miss Crowther, who appears for Ms Curran on this appeal but not at the trial.

[3] For the reasons given below, this appeal in my judgment fails. There are insuperable obstacles in Ms Curran’s path:

i)The failure at trial largely turned on the judge’s view of the facts. As I explain below, the appellate court’s powers in relation to those findings is limited. There is no basis for the court setting aside any of the findings of fact which Ms Curran challenges.

ii)Not only did the parties have no express agreement about sharing the ownership of the properties, but also, on Mr Collins’ case, he made it expressly clear to her that the property purchases were his alone. That was sufficient to negate any reasonable belief in any common intention. However, there was one exception to this and that arose out of an episode at the time of the purchase of the Feltham house in 1986. Ms Curran raised the subject of her having a share of the property with Mr Collins and he told her that it was too expensive for her name to be on the property because it would involve paying the premia for two life insurance policies (“the Excuse”). On Ms Curran’s case this statement was impliedly made on the basis that Mr Collins accepted that, but for the expense, she should be an owner of the properties. The judge rejected this argument and found that Mr Collins had made the statement to avoid any embarrassment over his refusal to make Ms Curran a co-owner and that accordingly it was sufficient to exclude any shared intention that Ms Curran should have an interest in the property. Accordingly Ms Curran’s claim failed.

iii)The judge found that Ms Curran did not act in any way to her detriment in reliance on the Excuse or at all. On this appeal Ms Curran does not pursue any argument either that the judge should not have made any such finding or that detrimental reliance is not required in law.

[4] I propose to consider the background in more detail and the judge’s judgment. I shall then turn to the arguments on the various issues on this appeal. I will give my reasons for rejecting Ms Curran’s case on the issues one by one, rather than leave my conclusions to the end.

Acquisition of the properties in the context of the parties' relationship

[5] The parties met in about 1977 to 1978. The judge found that they were in a relationship from about that time until 2010. From 1996 to 2007 Mr Collins was a self-employed builder. Ms Curran also had a very close relationship with her own family. There was some debate at trial about the nature of the parties’ relationship but it is not necessary to go into those matters on this appeal. The judge made an unchallenged finding that Ms Curran did not move in to live with Mr Collins until 2002 (Judgment, para.79).

[6] In 1984, Mr Collins purchased the Bedfont flat in his sole name for £29,995. His father provided £10,000 towards the purchase, £5,000 of which was a gift to Mr Collins and £5,000 of which was a loan. The balance was raised on mortgage secured by a life insurance policy on Mr Collins’ life. At trial Ms Curran contended that this loan was made to both parties but the judge found that it was made to Mr Collins alone (Judgment, para.88).

[7] Mr Collins sold the Bedfont flat in October 1986 for £41,000 and bought the Feltham house for £45,850 in his sole name. Mr Collins took out a mortgage of £29,250 for the purchase, with the balance of £17,000 being paid out of the net proceeds of the sale of the Bedfont flat.

[8] In about 1992 Mr Collins made a will in favour of Ms Curran, leaving everything he owned to her. The reasons for Mr Collins making it in Ms Curran’s favour are disputed.

[9] Ms Curran was employed from about 1990 to 1996 by a firm called AC Hughes at a wage of £80 to £100 per week, which was paid in cash. She left this job in order to start a pet food business which operated for nine years until 2005. This venture made a small amount of money but never more than £2,000 to £3,000 per annum at most. In around 2004, Ms Curran turned the shop into a greetings card business but, as this business was unsuccessful, the shop closed in January 2007. The judge was unpersuaded that Ms Curran made any contribution to the acquisition of the Bedfont flat (Judgment, para.89). The purchase price for the Feltham house came out of the sale proceeds of the Bedfont flat and new mortgages and so Ms Curran could have made no direct financial contribution to the acquisition of the Feltham house. The judge held that she made no indirect contribution out of her earnings (Judgment, para.91). Her earnings were too small for her to have contributed (Judgment, para.94).

[10] In 2003 and 2005, Mr Collins by letter requested Ms Curran to move out of the house. On the second occasion she did so temporarily. However, on each occasion Ms Curran persuaded Mr Collins that she should be able to stay or return.

[11] In 2007, Mr Collins bought The Haven, a house with the Business attached. This purchase was financed in part by a mortgage of £562,500 taken out by Mr Collins, in part out the net proceeds of the sale of the Feltham house (£191,803) and as to the balance by another loan of £12,000 from Mr Collins’s father, of which half was a gift and half a loan to him. After purchasing The Haven, Mr Collins continued the Business.

[12] Ms Curran’s case at trial was that there was an agreement or understanding that she should have a half share in the properties. She claimed that she had made significant financial contributions by paying her wages from which household bills, including the mortgage repayments, were made.

Judge's judgment

Issues at trial

[13] 
Apart from the nature of the relationship between the parties, including the date on which Ms Curran moved in with Mr Collins, the principal issues at trial were:i)Whether there was any agreement, arrangement or understanding between the parties as to the ownership of the Bedfont flat, the Feltham house, The Haven or the Business; ii)Whether Ms Curran made any financial contributions, directly or indirectly, to any of the above properties.

[14] I need only summarise those matters which are necessary to explain Ms Curran’s challenges on this appeal.

Parties' credibility as witnessnes

[15] The judge made important findings as regards the parties’ credibility.

[16] The judge found that Ms Curran gave evidence in a “completely open and frank way” and was perfectly satisfied that the evidence given was what Ms Curran “honestly and passionately believed to be the truth” (Judgment, para.55). However, the judge noted that there were two ways in which an individual’s evidence could be unreliable while being entirely honest – either because of the way they feel about the facts or because of their tendency to express themselves without precision. The latter issue was, in the judge’s view, demonstrated in Ms Curran’s evidence when Ms Curran stated in cross examination that she had “done all of the paperwork” for the Business, when she had not (Judgment, paras. 56 and 57). The judge said that she accepted that all she had done was to attend to the registration of the dogs. Mr Collins had done the accounting records and tax returns.

[17] The judge found that Mr Collins was intelligent and capable of being very calculating, and stated that she approached his evidence with caution (Judgment, para. 60). The judge found Mr Collins’s ability to say different things at different times and to be inconsistent, particularly in relation to financial matters, meant she looked at his evidence with “extreme caution” (Judgment, para. 65). Despite this, the judge concluded that she preferred Mr Collins’ account of events to that of Ms Curran (Judgment, para. 71).

Financial contribution?

[18] The judge held that Ms Curran made no direct financial contribution to the acquisition of The Haven, so that her contribution could come only from her prospective work in the Business or from contributions to the Bedfont flat or the Feltham house. She rejected this possibility (a) because she found that no part of the loan by Mr Collins’ father had been made to Ms Curran, and (b) because she rejected the submission that the parties’ assets had been pooled. She went on to hold that Ms Curran did not really work in the Business.

The Haven

[19] As Ms Curran had no share in the Feltham house, she had no share in its proceeds. As she made no other contribution to the purchase price of The Haven, and the parties’ relationship was not such as to give rise to an inference of fact that there was an agreement, arrangement or understanding as to joint beneficial interest in the Haven (Judgment, paragraphs 86 and 98), the judge held that Ms Curran did not have an interest in The Haven whether by reason of any financial contribution or by reason of any shared intention as to joint ownership arising from their relationship.

Mr Collins gives the Excuse for not making Ms Curran a co-owner of Feltham house

[20] The judge then turned to consider whether Ms Curran could reasonably have believed that she had a share in the Feltham house because of the Excuse. As explained above, the judge accepted that Mr Collins made the Excuse. However, the judge held that this was “the kind of excuse given to make it easier to prevent difficulties or confrontation arising” i.e. to forestall a confrontation arising from Ms Curran “making an unjustifiable assumption as to his intentions” (Judgment, para.100). The judge was “not satisfied that the statement was made in such terms as to amount to a representation on which she was intended to, and did, rely so as to allow the property to go forward nominally as a sole purchase [in Mr Collins’ name] rather than as an agreed or accepted joint purchase” (Judgment, para.100). When Ms Curran did confront Mr Collins directly about the names on the deeds in 2007, he told her expressly that the property would be owned by him alone (Judgment, para.100).

[21] The judge held that, even if Ms Curran was permitted to continue thinking as she did without Mr Collins disabusing her of that notion, she suffered no detriment (Judgment, para.101). She would not have acted differently (Judgment, para.102). Therefore she could not have acquired any interest in the Feltham house and no interest was transferred into the Feltham house.

Was the Business a partnership between Mr Collins and Ms Curran?

[22] The judge found that on the facts Mr Collins and Ms Curran were not partners in the Business. Ms Curran received a small allowance, and did not “really” work in the Business, either as a partner or in any other capacity (Judgment, para. 108). There was no documentary evidence (save for early business plans) to support Ms Curran’s case. The Business was distinct from the showing and breeding of the Airedales.

Judge’s order

[23] There was no dispute that they both owned the Airedales. The judge made an order for the payment of £3,500 by Mr Collins to Ms Curran for her interest in the dogs (from which there is no appeal or cross-appeal). Save for the order about the dogs, the judge dismissed Ms Curran’s claims.

Ms Curran's grounds of appeal, Mr Collins' response and my conclusions

(i) Judge wrong to discount Ms Curran’s evidence/ prefer that of Mr Collins

[24] Miss Crowther, for Ms Curran, submits that the judge misunderstood Ms Curran’s oral evidence and wrongly concluded that she was unreliable. The judge held that Ms Curran had not been precise or accurate at times in her evidence and criticised her loose use of language. The sole example the judge gave to support her finding was an assertion by Ms Curran that she had done all of the paperwork in relation to the Business but, Ms Crowther contends, this is not substantiated by the transcript. This shows that Ms Curran was entirely consistent in her evidence, stating she had done some administrative work in addition to the dog-breeding aspect of the Business. When it was put to her in cross-examination that Mr Collins did all the paperwork, she stated that this was not true and that she did some as well.

[25] Ms Crowther submits that the judge had no rational basis for discounting Ms Curran’s evidence in the circumstances. She complains that the judge had formed a negative view of her evidence even before she had finished giving evidence. The judge intervened in the cross-examination and wrongly summarised her evidence, causing Ms Curran to apologise for something that she did not say.

[26] Ms Crowther submits that the judge’s finding about Mr Collins’ lying about financial affairs vitiates her reliance on his evidence in her judgment, since it was inconsistent for her to accept Mr Collins’ evidence where it differed from that of Ms Curran in those circumstances.

[27] Mr Donald McCue, for Mr Collins, submits that the judge explains why the judge found that Ms Curran’s evidence was not credible. She had strong emotions causing her to be overemphatic. He submits that an appellate court should be slow to overturn the factual findings of a trial judge. In terms of reliability, the judge held that Ms Curran was unreliable. She had convinced herself and made sincere errors.

[28] The evidence over the keeping of books was an instance of her unreliability. She initially said that she did the administration and the books. She later accepted that Mr Collins kept the account books. What she meant was that she did the paperwork for registering the dogs. Mr McCue says that this is instance of Ms Curran’s inexactitude.

My conclusions

[29] As I held in Langsam v Beachcroft LLP [2012] EWCA Civ 1230:It is well established that, where a finding turns on the judge's assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence, which is not available to the appellate court. It is, therefore, rare for an appellate court to overturn a judge's finding as to a person's credibility. Likewise, where any finding involves an evaluation of facts, an appellate court must take into account that the judge has reached a multi-factorial judgment, which takes into account his assessment of many factors. The correctness of the evaluation is not undermined, for instance, by challenging the weight the judge has given to elements in the evaluation unless it is shown that the judge was clearly wrong and reached a conclusion which on the evidence he was not entitled to reach. In other cases, where the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court must in general make up its own mind as to the correctness of the judge's finding (see Datec Electronic Holdings v United Parcels Service [2007] UKHL 23, [2007] 4 All ER 765, [2007] 1 WLR 1325 at 46 per Lord Mance).

[30] Thus any appellant who challenges the judge’s finding on credibility has a particularly difficult task. In this case, the appellant seeks to overcome the difficulty by asserting that the judge’s finding was unsubstantiated or inconsistent or inadequately reasoned.

[31] In my judgment, the judge was entitled to find that the appellant gave an inaccurate statement when she said that she did the paperwork for the Airedales. Her answer completely omitted the accounts that had to be kept. I prefer Mr McCue’s interpretation of the transcript. Ms Crowther did not pursue any suggestion that the judge had improperly intervened in the cross-examination of Ms Curran.

[32] The judge’s finding on Mr Collins’ credibility envisaged that she should have to exercise caution when considering his evidence. That meant that she would on some matters accept and some reject it. That does not amount to inconsistency. There is no suggestion that her acceptance or rejection of his evidence was against the weight of the evidence so that it was not open to her. The judge was not for this reason wrong to accept Mr Collins’ evidence at times in her judgment.

[33] I would therefore reject this ground of appeal.

(ii) Judge wrongly assessed the Excuse by reference to subjective factors

[34] Ms Crowther contends that the judge wrongly applied a subjective test to the Excuse. It is well established that the meaning of words in the context of shared intention is to be deduced objectively, see for example Jones v Kernott [2012] 1 AC766 at [46] and [51] per Lord Walker, citing Lord Diplock in Gissing v Gissing [1977] AC 886, 906. Ms Crowther submits that the judge failed to consider what the reasonable person in Ms Curran’s situation would have understood from the Excuse.

[35] There was, she submits, no evidential basis on which the judge could arrive at her interpretation from Mr Collins’ evidence because he always denied that the conversation had ever taken place.

[36] On Ms Crowther’s submission, the Excuse was a classic example of a statement from which the court will infer that the parties intended that they should each have a beneficial share in property, as it did in Grant v Edwards and Eves v Eves [1975] 1 WLR 1338.

[37] Ms Crowther submits that the judge also was in error in failing to make any finding about the will which Mr Collins made in Ms Curran’s favour in 1992. This is a difficult point for her because it might be said that the will was inconsistent with an immediate beneficial interest in the properties. (Initially Mr Collins denied making the will but accepted later that he had done so. Ms Curran’s evidence was very clear that she was told about the contents of the will. In her evidence she explained that, after she had moved in, Mr Collins threw the will at her.) Ms Crowther submits that the court should consider how the will would appear to a lay person and that it would not follow that the will would convey to a lay person that she was to have no interest in the property while Mr Collins was alive.

[38] Mr McCue submits that, on the judge’s findings, at the time of purchase of Feltham house in 1986 Ms Curran and Mr Collins were not living together. Ms Curran had made no contribution to the purchase of the Bedfont flat or its running costs. It was not envisaged she would do so in relation to The Haven. In those circumstances, it would have been entirely unreasonable for Ms Curran to infer that Mr Collins intended her to acquire a beneficial interest in The Haven.

[39] Mr McCue accepts that conduct before and after the acquisition can be taken into account but submits that even doing so does not vitiate the judge’s view. The judgment makes clear that the parties’ relationship was in trouble well before the move to The Haven, as evidenced by Mr Collins’s letters of 2003 and 2005 asking Ms Curran to leave, and that by the time of the purchase of The Haven they were only together for the Airedales. The judge did not apply the wrong test.

[40] As to the will, Mr McCue points out that Mr Bartlett, who appeared for Ms Curran below, did not rely on the will.

My conclusions

[41] The judge’s interpretation of events surrounding the Excuse was an evaluation by her of all the relevant facts and circumstances. This court could only properly interfere if the judge were wrong: see generally per Clarke LJ in Assicurazioni Generali Spa v Arab Insurance Group (BSC) [2003] I WLR 577 at [16]. The parties were not living together when the Excuse was given, and did not do so until many years later. That is not conclusive but taken with the absence of significant contribution it constitutes material which supports the judge’s finding. Moreover, there is no material to gainsay the judge’s finding: the will does not support Ms Curran’s case, and in any event it appears that Mr Bartlett, then appearing for Ms Curran, placed no reliance on it. Accordingly, I do not consider that the judge’s interpretation of the Excuse can be set aside as a misinterpretation of events.

[42] Given that the parties were not living together and the absence of significant contribution by Ms Curran, it is clear that the judge in my judgment applied the objective test in her interpretation of the Excuse.

[43] I would therefore dismiss this ground of appeal.

(iii) Judge wrong to focus on financial contributions

[44] Ms Crowther submits that the judge wrongly focused on the parties’ respective financial contributions rather than analysing the facts and circumstances relating to the parties over the course of their whole relationship to see whether there was a shared intention she should have a share of the properties.

[45] It is common ground that conduct after the acquisition of a property in dispute is relevant to establishing whether the parties had a common intention to share the beneficial interest in it. Ms Curran’s work at The Haven was therefore relevant to intention. In this case, it was common ground that, in the period shortly after the purchase of The Haven, the parties were living in The Haven and undertook a significant amount of joint activity, for example in relation to breeding and showing the Airedales.

[46] Although this was not within her grounds of appeal, Ms Crowther submits that Ms Curran’s financial contribution was greater than the judge found for three reasons.

[47] First, on Ms Crowther’s submission, it is easy to see her contribution in relation to The Haven because the parties had closely aligned interests. They had ten or eleven dogs which they were showing and breeding. The evidence was that was an activity which produced an income. There was evidence also that Ms Curran was working at the kennels which formed part of The Haven. She was also developing a shop. So it was quite clear that all the enterprise was done jointly. She had spending money of £50 per week on the judge’s finding, and she was spending that on shopping for them both. It was not in reality employment even though she was called an employee. She contributed all that she could contribute reasonably. She threw her lot in with Mr Collins.

[48] Second, there was evidence that at some point in their relationship the parties used a common pot or purse for their joint expenditure. Ms Curran asserted that they both contributed to this. They had cash businesses. Ms Curran tipped her cash in and used the cash for discharging bills, including mortgage repayments. There was no evidence that she discharged bills in her mother’s house. The judge said that Ms Curran’s assertions about joint expenditure were largely due to her imagination (Judgment para. 92). Ms Crowther submits that Ms Curran’s version of events concerning expenditure cannot be attributed to her emotions and it was not a question of loose language because Ms Curran was not like that.

[49] Third, Ms Curran gave evidence that she earned more but that she could not say how much more she had earned. She could not say what her trading profit was. She simply did not know. She worked from week to week. It was enough that she gave what she reasonably could and that her earnings as reported to the Revenue were less than the actual earnings. The judge should have considered what was likely to have happened.

[50] I would reject these arguments. The judge expressly went beyond mere financial contributions. In so far as Ms Crowther disputes the judge’s findings about the financial contributions, she simply seeks to re-argue points on which the judge found against Ms Curran. As explained, some of them are also outside the scope of this appeal.

(iv)    Judge wrong not to find that the Business was a partnership

[51] There was no partnership agreement and the judge found that there was no documentary evidence to support it. So the question whether there was a partnership turned on the parties’ intention.

[52] Ms Crowther did not deal with this ground of appeal in her skeleton argument. Her brief oral argument mostly made points directed to saying that breeding Airedales, which the judge accepted was a partnership, was part of a partnership to conduct the kennels business. The thrust of the rest of her case appears to be that the move to The Haven was a new departure in which the parties specifically decided to pursue the kennels business in partnership. Ms Crowther submits that the judge did not give adequate reasons for her conclusions and relied on incomplete disclosure by Mr Collins (which is the next ground of appeal) on the partnership issue.

[53] Mr McCue submits that the price of The Haven was for both the house and the Business. The judge was satisfied on the facts that the kennels was a separate business for the reasons she gave. Those reasons were sufficient. The judge considered the evidence in paragraphs 106 to 110 of her judgment, where she dealt with this matter. For instance, she considered Ms Curran’s tax returns which showed her as an employee earning £50 per week from the Business not as a partner. She took into account that these were prepared by Mr Collins but he was making substantial drawings from the Business in which Ms Curran did not share. The judge also found that Ms Curran was treated as a minor employee in the Business. Ms Curran was taking £50 a week but she did not do any work.

[54] I would dismiss this ground of appeal. The judge made clear findings of fact. She gave reasons for her decision. Ms Crowther does not put forward any basis on which this court could intervene.

(v) Judge’s reliance on incomplete disclosure of documents by Mr Collins

[55] Ms Crowther submits that the judge erred in relying on the documentary evidence provided by Mr Collins without taking into account that Ms Curran had left The Haven leaving all her documentation there. In particular, Ms Curran was unable to prove residence prior to 2002, in part or in whole, by reference to pre-1998 correspondence addressed to her at the Feltham house.

[56] Mr Collins submits that, on 3 May 2011, his solicitors notified Ms Curran’s solicitors of the seven lever arch files of documentation they had on the parties’ finances, conveyancing matters and the Business, asking them to attend to ask for copies as required. As there was no response from Ms Curran, almost all of these documents were produced at the trial. There was no evidence to support Ms Curran’s assertion that documentation is missing. Mr Collins denies so disposing of any. Indeed, many of the documents counted against Mr Collins and were used in cross-examination, making his selective disposal of documents unlikely.

[57] In my judgment, it is clear from the sequence of events described by Mr McCue that the judge was entitled to proceed in the way she did and I would therefore dismiss this ground of appeal also.

Overall conclusion

[58] For the reasons given above, I would dismiss this appeal.

Lord Justice Davis:

[59] I agree with both judgments.

Lord Justice Lewison:

[60] I agree with Arden LJ that the appeal must be dismissed.

[61] As a result of the decisions in Stack v Dowden [2007] UKHL 17; [2007] 2 AC 432 and Jones v Kernott [2011] UKSC 53; [2012] 1 AC 776 the starting point is the assumption that beneficial ownership of real property follows the legal title. In a “single name” case, of which this is one, that means that the sole legal owner is assumed to be the sole beneficial owner unless the contrary is shown. In Stack v Dowden Lady Hale observed at [68]:

“The burden will therefore be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way. This is not a task to be lightly embarked upon. In family disputes, strong feelings are aroused when couples split up. These often lead the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms. They also lead people to spend far more on the legal battle than is warranted by the sums actually at stake. A full examination of the facts is likely to involve disproportionate costs.”

[62] In our case the judge was confronted with precisely this situation; and the view that she formed of Ms Curran’s evidence was that she had honestly but mistakenly reinterpreted the past, and made unwarranted accusations against Mr Collins. To some extent she formed the same view about Mr Collins, whose evidence she approached with caution. But in the end she preferred Mr Collins’ evidence to Ms Curran’s and, as Arden LJ has explained, this court must respect the judge’s conclusions on the evidence.

[63] There were, potentially, two ways in which Ms Curran might have been entitled to an interest in The Haven despite the fact that it was bought by Mr Collins in his sole name and with his own money. She might have had an interest in the Feltham house which was “rolled over” into The Haven since the proceeds of sale of the Feltham house were used in part payment for The Haven. Alternatively she might have acquired an interest in The Haven even if she did not have a pre-existing interest in the Feltham House.

[64] The second way can be ruled out on the basis of the judge’s findings of fact. The judge found at [100] and [103] that at about the time when The Haven was bought Ms Curran asked Mr Collins whether her name would be on the title deeds and he said no; and that “the property would be owned by him alone”. In the face of that finding of fact, it is impossible to argue that Ms Curran could reasonably have been led to believe that she would acquire an interest in The Haven. Moreover, the judge’s finding is entirely understandable in view of her findings about the state of the relationship between Ms Curran and Mr Collins at that time. There had been difficulties between them a year or two earlier which had led Mr Collins to ask Ms Curran to leave. But at the time when The Haven was bought the judge found at [110] that Mr Collins was prepared to “tolerate” Ms Curran’s presence:

“… so long as she did not behave in a way which made it simply impossible for them to live harmoniously under the same roof, as had been growingly the case over the previous years.”

[65] What then of the Feltham house? Once again on the basis of the judge’s findings it was bought by Mr Collins in 1986 with his own money (or money that he personally borrowed) and title was in his sole name. It was not bought as a joint or family home because on the judge’s findings Ms Curran and Mr Collins did not live together at that time and there was no expectation that they would. Ms Curran’s life was “anchored at her mother’s house” and she did not want “to move out to try to create some kind of family unit with [Mr Collins] with the uncertainties and risks that that would entail.” The judge also found that it was not until 2002 (some 16 years later) that Ms Curran and Mr Collins began to live together in the Feltham house. The judge also found that she made no indirect financial contribution towards the mortgage on the Feltham house, essentially because Ms Curran had no money in excess of what she spent on herself. Nor was it suggested that she had made a non-financial contribution, such as carrying out improvements, child-rearing or domestic activities.

[66] What Ms Crowther especially relied on was what she called a “specious excuse” which derives from Ms Curran’s evidence about what Mr Collins said about insurance. Her evidence was that when the Feltham flat was bought in 1984 it was agreed that it would be bought in Mr Collins’ sole name:

“His reason for this, which he would later use on two further occasions and which I accepted, was that it would ultimately save money by having the property put into his sole name as only one life assurance policy would be required. He always told me that if anything were to happen to him, the property would be left to me and the insurance would pay off the mortgage.”

[67] She said much the same about the Feltham house. The judge summarised her evidence at [44]:

“Her evidence is that, over the period of the Feltham house, she was, in effect, contributing directly to the mortgage in this way. She also says that this was on the basis of an agreement or understanding that she had a joint equal interest in the property with Mr Collins, but her name had not been put on the deeds because of a spurious excuse given to her about the costs of the insurance policy.”

[68] At [98] the judge rejected her evidence that anything was said at the time of the purchase of the Feltham flat, but accepted that something “of this sort” was said at the time of the purchase of the Feltham house. She made her more detailed finding at [100]:

“I believe Miss Curran that something was said in the context of the acquisition of the Feltham house, at least, with regard to the costs of an insurance policy as a reason for her not being “on the title” but I am equally satisfied that this was said to forestall what Mr Collins would quite reasonably have seen as Miss Curran’s getting what he would have regarded as the wrong end of the stick about the acquisition of the property. In other words I am satisfied that this was not an excuse made in the context of a pre-existing agreement arrangement or understanding that this was to be a joint purchase, of which Mr Collins was fully aware, but made in order to prevent evidence of that being recorded, but was an excuse made to forestall a confrontation arising from Miss Curran making an unjustifiable assumption as to his intention. Any such assumption would, I am satisfied, have been just such an unjustifiable assumption; I am satisfied that Mr Collins did not represent to Miss Curran that she was to have an interest in the property he was buying nor say or do anything which she could reasonably have interpreted as being intended to assure her that she did.”

[69] In this passage the judge has clearly rejected Ms Curran’s evidence that there had been an agreement or understanding that she had a joint equal interest in the property. Although she was not in a position to make a finding about exactly what it was that Mr Collins said, it cannot be right that the giving of a reason why someone is not on the title deeds inevitably leads to the inference that it must have been agreed that they would have an interest in the property. If one who is not versed in the difference between legal and beneficial ownership asks to be on the deeds and is told “No”, the more usual inference would be that they would have understood that they were not to become owners or part owners of the property. I cannot see that the result is very different if the reason given is that it is too expensive. There are, however, two cases in which a specious excuse has been held to give rise to the inference of a constructive trust. However, these cases are fact-sensitive and need to be carefully examined.

[70] In Eves v Eves [1975] 1 WLR 1338 Janet and Stuart Eves were already cohabiting and had a daughter together. They were looking for a family home. It was in that context that Stuart Eves made the representation:“He told her that it was to be their house and a home for themselves and their children. He said that, as she was under 21, it could not be in joint names and had to be in his name alone; and that, but for her age, it would have been purchased in joint names. She accepted his explanation: but he admitted in the witness-box that it was simply an “excuse.” He all along was determined that it was to be in his name alone.”

[71] There are two important parts to this representation, neither of which is present in our case. First, Stuart Eves told Janet Eves that the house was to be a home for both of them and their children. In our case Ms Curran had no intention of moving into the Feltham house at the time it was acquired. Second, Stuart Eves told Janet Eves that the house would have been bought in both names but for her age. It is that positive assertion that it would have been bought in joint names that was capable of giving rise to an expectation that Janet Eves would acquire an interest in the house. In our case nothing of the sort was said to Ms Curran. She was simply told that she could not be on the deeds because it was too expensive.

[72] The second case is Grant v Edwards [1986] Ch 638. Once again the parties were living together at the time of the purchase, and had had a child together. The exact representation that was made to Mrs Grant is not set out verbatim, but Browne-Wilkinson V-C described it thus: “..the representation made by the defendant to the plaintiff [was] that the house would have been in the joint names but for the plaintiff's matrimonial disputes...”

[73] Again there are two factors present in that case which are absent from ours. First, in that case (but not in ours) the house being acquired was acquired as a family home. Second, in that case (but not in ours) there was a positive representation that Mrs Grant would have been a joint owner but for her matrimonial dispute.

[74] These cases do not establish the proposition that the mere giving of a “specious excuse” necessarily or even usually leads to an inference that the person to whom the excuse is given can reasonably regard herself as having an immediate entitlement to an interest in the property in question.

[75] The second matter on which some reliance was placed was the fact that in 1992 Mr Collins made a will in which left his estate to Ms Curran on his death. What Ms Curran said about that in her witness statement was this:

“… when we were living at [the Feltham house] we had several discussions about the way in which the property was owned in his name. Shortly after 1992 [Mr Collins] would tell me during those discussions that he had made a Will and that he had left his entire estate to me in the event that anything happened to him. I trusted [Mr Collins] and felt a little more comfortable with this assurance.”

[76] The first point about this evidence is that it does not say that Mr Collins assured Ms Curran that she had a present interest in the property. At best it was an assurance that she would acquire an interest in it on his death. Second, Ms Curran does not say that the assurance led her to believe that she had a present interest in the property. Third, it is not suggested that Mr Collins said that he would never change his will. Fourth, at the time when this statement was said to have been made Mr Collins and Ms Curran were still not living together, so it was a statement made outside the context of an existing joint home. Fifth, it was a statement made some six years after Mr Collins had bought the Feltham house so that it cannot have played any part in what interests arose on its acquisition. Nor is there any finding of fact by the judge that might explain a radical change of intention on Mr Collins’ part. Sixth, as Arden LJ has explained, it was not relied on at trial. I do not therefore consider that the existence of the will significantly advances Ms Curran’s case.

[77] Overarching all these points is the lack of detrimental reliance. The need for detrimental reliance on the part of the claimant is an essential feature of this kind of case. Browne-Wilkinson V-C put it clearly in Grant v Edwards:

“If the legal estate in the joint home is vested in only one of the parties ("the legal owner") the other party ("the claimant"), in order to establish a beneficial interest, has to establish a constructive trust by showing that it would be inequitable for the legal owner to claim sole beneficial ownership. This requires two matters to be demonstrated:

(a) that there was a common intention that both should have a beneficial interest;

(b) that the claimant has acted to his or her detriment on the basis of that common intention.”

[78] Although Ms Crowther’s skeleton argument suggested that the need for detrimental reliance had been abolished by Stack v Dowden and Jones v Kernott, she rightly abandoned that argument in the course of her oral address. The judge’s finding on that point at [101] was that Ms Curran did not in any way act to her detriment in reliance on the specious excuse “or at all”. That in itself is fatal to Ms Curran’s case.

[79] It follows that the judge’s conclusion that Ms Curran had not established any interest in The Haven cannot be impeached.

[80] So far as the allegation that she was a partner in the business is concerned, the judge found against her on the facts. No serious challenge to her factual findings in that respect was advanced before us. Once again the judge’s conclusion must stand. Moreover even if Ms Curran had been a partner in the business, it by no means follows that she would have had an interest in the property in which the partnership business was conducted, which had been bought by one partner alone out of his own money: Lindley & Banks on Partnership (19th ed) para 18-33; Geary v Rankine [2012] EWCA Civ 555, [2012] 2 FLR 1409.

[81] I too would dismiss the appeal.
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