Thomson v Humphrey

MR JUSTICE WARREN: This is a claim by the claimant, Jane Thomson, to a beneficial interest in Church Farm, Hoxne Road, Eye, Suffolk, which I will call Church Farm, and for an order for sale. The defendant, Roy Victor Humphrey, is the sole registered proprietor being registered as such when the property was acquired by him in March 2000.

The claimant claims a 50 per cent beneficial share. The defendant denies that the claimant has any beneficial interest in Church Farm. He says that there was no express agreement that the claimant should have an interest. She has made no contribution to the purchase price of Church Farm, or to the household, maintenance or expenses and there has been no conduct on her part giving rise to an incidence of common intention for her to have a beneficial interest

The claim was brought by way of a part 8 claim form in the Norwich County Court. It was transferred to the High Court by an order dated 18 January 2008. It remains somewhat unsatisfactory given the dispute was in fact a part 8 claim.

Deputy Master Lloyd ordered that the parties should jointly instruct an expert to provide a valuation report. That was carried out by Mr Michael Sarson as at 8 September 2008. He had inspected the property and placed a value of £800,000 on it with vacant possession.

As noted in the report, Church Farm is a detached modern house in approximately 14.3 acres just outside the town of Eye. The house at Church Farm was substantially smaller when purchased in March 2000. Additions and alterations have since been made. Mr Sarson’s valuation as of that date, assuming no works had been undertaken save only for maintenance, was £600,000.

It is common ground that the defendant paid for the additions and alterations totalling perhaps as much as £500,000, but nothing turns on the precise figure at the moment. It is also common ground that the defendant paid the purchase price of £410,000, subject to an allegation by the claimant that part of the purchase price represented the proceeds of sale of another property in Long Stratton of which the claimant claims belonged to her.

The vendors of Church Farm carried on a business there, selling tack and accessories for horses. This tack shop was taken over by the claimant and the defendant. The defendant put £40,000 into improving the shop and acquiring fixtures and fittings, bringing the total acquisition cost of the Church Farm property to £450,000. The tack shop was run by the claimant.

Before turning to the facts and evidence in any detail there are some central events which I mention in order to set the scene. Sometime in 1993 the claimant and the defendant commenced a relationship. The claimant was separated from her husband and had two children living with her and she had been comparatively recently separated. The defendant was separated from his wife. He had never divorced and is still married to her to this day.

In March 1996 the defendant bought a property in Long Stratton for £80,000, which was a modern new built house. He bought it with his own money. There was no mortgage or charge over it. The property was held in the defendant’s sole name although there is no doubt that it was acquired with a view to the claimant and her children living there. I will give more details of that later. The claimant now alleges that she was the beneficial owner of the property and entitled to the proceeds of sale when it was subsequently sold. In her first witness statement, the claimant said the property was bought in 1993, but it is clear from a completion letter from Bovis Homes that it was, in fact, in 1996.

As this time the defendant was living in a property at St Brelades, Yaxley, Eye. I will call it St Brelades. This was the defendant’s own property. The claimant makes no claim ever to have had any interest in it.

In August 1999, the defendant sold the Long Stratton property for £95,000. Although Mr Crawley, who appears for the claimant, suggested that this sale was in 1998 rather than 1999, the documents before the court, including the contract of sale, the land registry transfer, and contemporaneous correspondence, makes clear that the sale was in 1999. The defendant received the entirety of the proceeds of sale.

At some time before the sale of the Long Stratton property the claimant had moved to St Brelades with her children. It seems likely that this was for the school year in 1998 but nothing turns on the precise date. As I have already mentioned, Church Farm was purchased in March 2000 for a total price of £450,000. It was either at that time or very soon after that the claimant started running the tack shop. Alterations and improvements took place over the next 18 months. Then in about October 2001 the claimant, together with her two children and the defendant, moved into Church Farm. The defendant has since sold St Brelades.

The claimant now claims at 50 per cent interest in Church Farm. Her case is put firmly on the basis that this was what was intended between her and the defendant expressly, or at least if it was not intended to be a 50/50 division, it was the intention that she should have a share in the property and in the circumstances the court should fix that share at 50 per cent. In the alternative, she alleges that she was entitled to the entirety of the proceeds of the sale of the property in Long Stratton which, according to Mr Crawley, is to be taken as a contribution by her to the cost of Church Farm, giving her something in the order of a 23 per cent or 26 per cent share.

The evidence submitted on behalf of the claimant comprised two witness statements from her on which she was cross-examined. The evidence submitted on behalf of the defendant comprised two witnesses statements from him dated 9 November 2007 and 7 May 2009. There were witness statement from Mr Cowle dated 25 February 2008, Mr Tanner dated 12 June 2009 and Mr Sisson dated 12 May 2009. Mr Cowle is the defendant’s accountant. He works primarily in the defendant’s successful business, which he carries on as a sole trader. Mr Tanner is the architect employed by the defendant in relation to the design of the alteration and extensions to Church Farm. In addition, his firm dealt with matters concerning building regulations. Mr Sisson is a solicitor who has acted for the defendant in relation to what has been called a living together agreement, which was in fact never agreed to by the claimant. I will come to that in due course.

Mr Cowle and Mr Tanner were cross-examined. Mr Sisson was not called, but a Civil Evidence Act notice was served in relation to his witness statement. Mr Crawley objected to the mention of agreed witness statements of Mr Cowle and Mr Sisson. I allowed both of them in for reasons which I gave at the time.

Since the evidence of the three main parties is of limited scope and is focused on particular issues, I will deal with them first. Mr Cowle came across as an entirely straightforward and honest witness. I think his witness statement was produced mainly to cast doubt on what the claimant had said about her work in the defendant’s business, helping with administration, collecting debts and invoicing. He regarded her involvement in administration as not very successful and found her, himself, of no help. He accepts that she did do some invoicing, perhaps only one or two hours on odd days here and there. He is slightly damning about her activity as other people had to show her what to do and assist her with the computer. That is, I consider, to be accepted as far as it goes, but it does not mean that, having been shown what to do and being taught about the relevant computer use, she would not use it on later occasions.

He gave some evidence about the results of the tack shop business, which was on the whole unprofitable, and was closed down in 2004. The other matter on which he gave evidence orally concerned credit card use by the claimant. Mr Cowle would check the credit card statements periodically, probably at the end of each month, and allocate drawings on the card between business expenses and other expenses. The business expenses would be shown in the defendant’s business account for tax purposes. The other items on the cards were personal expenses and were allocated as such, not being charged to the business as an expense. However, since they were drawn on the business account they would be shown as personal drawings by the defendant. I accept that evidence.

Mr Tanner’s evidence was adduced as a response to the claimant’s second witness statement where, for the first time, she claimed that she had spent a considerable amount of time and effort in what she called project management in relation to the building works at Church Farm over a period of 18 months and which, according to submissions from Mr Crawley, support her claim to have a beneficial interest in Church Farm and in quantifying that interest. In particular she said that she had worked together with the architect, Clive Tanner. I quote:

“Together, myself and Clive Tanner, designed the house. I also planned the conversion of the double garage into a summer lounge.”

I will come to her evidence about what work she actually did carry out later but, so far as Mr Tanner is concerned, he says something rather different in his witness statement. He says that he did not consider that he had worked with her at all. He says he was responsible for the design and planning and he had dealt with the building regulation approvals and, where necessary, supervision of the building works. He added this:

“I do not remember speaking to Jane Thomson at any stage, let alone agreeing any designs or plans or working with her.”

In the course of his oral evidence it became clear that he had very little to do with the actual building once the plans had been drawn and approved. He was not a supervising architect in the ordinary sort of way and, if he visited the site at all once building was underway, it was only on a very few occasions. He did not personally deal with the building regulations or with the relevant local authority officers. He had no input into what he described as matters of style, colours, tiles, details such as radiator positioning. He also accepted that he probably did go around the properties with the defendant when the claimant was also present. In the final analysis, while not doubting the strict accuracy of what Mr Tanner says in his witness statement or what was said in oral evidence, I did not find his evidence of any assistance in relation to the matters that I have to decide.

Mr Sisson’s witness statement was principally made to produce certain file notes relating to the living together agreement. He could not recall independently anything about this matter nor could he remember meeting the claimant, although he clearly did so. He says, quite frankly, that he did not feel he could add anything to his attendance notes which were, to the best of his knowledge, accurate. He recalled that it was always his practice to make careful attendance notes and he would like to think that he was especially careful to record accurately what occurred at the meeting with the claimant since she was not his client. He thinks it was unlikely anything that occurred is missing. I accept that the attendance notes are likely to be correct. I shall consider their contents in due course. I consider that they are likely to be accurate and complete, but they are not to be pored over as if they were commercial contracts.

The claimant impressed me as a honest and straightforward witness doing her best to assist the court. I am quite sure that she did not, on any occasion, deliberately lie or attempt to mislead me. Whether at this distance of time it is possible for her to be certain that things were said that she thinks were said or certainly wishes were said is obviously open to doubt. Indeed, to be fair to her, she could not, save in relation to one or two events, really give detailed chapter and verse or precise words said or when they were said. She could only state her impression of what had been discussed and understood and what was intended, at least by her. To her credit, she did not, when she could easily have done so, overstate her case and did not assert positive agreements where none had been made.

The defendant had far more difficulty in remembering matters. He seemed muddled about what was discussed and when. I do not criticise in any way an inability to remember the details or perhaps even the general thrust of conversation that took place many years ago. I am acutely aware of the unreliability of such alleged memories, but what is perhaps surprising is that he purports to remember one or two critical matters which were said and which assist his case.

Mr Holbech, who appears for the defendant, submits that this is a factor in favour of his client. He says that, although the defendant cannot remember much, he was absolutely adamant about one or two matters and, in particular, about the statement he asserts the claimant made to the effect that she was not in it (that is to say the relationship) for the money and would take nothing out of it and, therefore, the defendant’s evidence should be accepted on that. I do not think that follows at all.

At this stage of my judgment, I refer you to the law. I will take it quite briefly since it is not any serious respect in contention. Although Mr Holbech has referred me to several authorities to illustrate the general principles and to show how the courts have in fact treated various fairly common factor scenarios, I will refer to only a few of them. The leading case in this area is, of course, Stack v Dowden [2007] 2 AC 542. The present case, unlike Stack v Dowden, is one where the property, whether the Long Stratton property or Church Farm itself, is vested in one person, the defendant, and where another person, the claimant, claims an interest. Nonetheless, it is clear that the starting point is that the beneficial ownership in a case of sole ownership rests with the sole owner. A person in the situation of the claimant who seeks to establish an interest as against the holder of the legal title has a dual hurdle. She must show that it was intended that she should have some share, and must then establish the extent of that share. Much of what was said in the opinions of Stack v Dowden, as well as by the Court of Appeal in Oxley v Hiscock [2005] Fam 211, is directed at the second question.

In relation to the first question, it is necessary to go back to Lloyds Bank v Rosset [1991] 1 AC 107. I can do no better than adopt the summary of Lord Walker in paragraph 24 of Stack v. Dowden [2007] UKHL 17:

“24.

In Lloyds Bank plc v Rosset [1991] 1 AC 107 the Appellate Committee (no doubt conscious of the widely differing views expressed in Pettitt v Pettitt [1970] AC 777 and Gissing v Gissing [1971] AC 886) concurred in a single speech by the presiding Law Lord, Lord Bridge of Harwich. The wife claimed (against a bank which was her separated husband’s secured creditor) an interest in the matrimonial home (which had been purchased ten years after the marriage and was held in the husband's sole name). She relied on a common understanding or intention arising out of her own efforts in arranging for extensive renovation works and herself carrying out some redecoration (the judge's findings on this are at [1991] 1 AC 107, 129F-131B). At first instance she succeeded on the issue of beneficial interest but failed on a conveyancing issue. She won her appeal ([1989] Ch 350; Purchas and Nicholls LJJ, Mustill LJ dissenting on a conveyancing issue). The House of Lords allowed the bank's appeal on the short ground expressed by Lord Bridge (at 131F):

‘The judge's view that some of this work was work 'upon which she could not reasonably have been expected to embark unless she was to have an interest in the house' seems to me, with respect, quite untenable.’

25.

Lord Bridge then asked himself whether it was worthwhile to add any general remarks by way of illumination of the law. He limited himself to drawing attention to one ‘critical distinction.’ If (at 132E-G) there is to be a finding of an actual ‘agreement, arrangement, or understanding’ between the parties it must ‘be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.’

Lord Bridge continued (132H-133B):

‘In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as to the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do.’

In concurring in this passage the House was unanimously, if unostentiously, agreeing that a ‘common intention’ trust could be inferred even when there was no evidence of an actual agreement. Apart from two bare references to ‘a constructive trust or a proprietary estoppel’ (at 132G and 133F) Lord Bridge did not refer to the elaborate arguments of counsel (at 110G-125C) addressed to him as to the varieties and interaction of these two concepts.

26.

Lord Bridge's extreme doubt ‘whether anything less will do’ was certainly consistent with many first-instance and Court of Appeal decisions, but I respectfully doubt whether it took full account of the views (conflicting though they were) expressed in Gissing (see especially Lord Reid [1971] AC 886 at 896G - 897B and Lord Diplock at 909 D-H). It has attracted some trenchant criticism from scholars as potentially productive of injustice (see Gray & Gray, op cit, paras 10.132 to 10.137, the last paragraph being headed ‘A More Optimistic Future’). Whether or not Lord Bridge's observation was justified in 1990, in my opinion the law has moved on, and your Lordships should move it a little more in the same direction, while bearing in mind that the Law Commission may soon come forward with proposals which, if enacted by Parliament, may recast the law in this area.”

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To a similar affect we find Lady Hale at paragraph 63.

Wherever reliance is placed on an express agreement, it is only if the claimant has acted to her detriment that she would be able to establish a right. One can see that by looking at paragraph 132 of Lloyds Bank v Rosset and paragraph 124 of Lord Neuberger’s opinion in Stack. Although he was dissenting on certain important principles, I do not think there is any disagreement about what he said in paragraph 124.

This can also be seen in Grant v Edwards[1986] Ch 638 where Sir Nicolas Browne-Wilkinson, Vice-Chancellor, took the opportunity to restate the principles which have been laid down in the speech of Lord Diplock in Gissing v Gissing. He said at page 654 the following:

“In my judgment, there has been a tendency over the years to distort the principles as laid down in the speech of Lord Diplock in Gissing v Gissing (1971) A.C. 886 by concentrating on only part of his reasoning. For present purposes, his speech can he treated as falling into three sections: the first deals with the nature of the substantive right; the second with the proof of the existence of that right; the third with the quantification of that right.”

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Dealing with the first, the nature of the substantive right, he says this:

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

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Accepting that matters have moved on since Lord Bridge's restrictive requirement that there needs to be a direct contribution in terms of the mortgage payments, it is not sensible to attempt to say what will and will not be enough. There will be cases which, on any view, fall from the claimant’s point of view on the wrong side of the line, wherever that line is to be drawn. Each case is to be viewed on its facts, but one can obtain a flavour of the correct approach from the reported cases, as in Burns v Burns [1984] Ch 317, where performance of domestic duties and staying home to look after the children, contribution to rates and certain utility bills and purchase of some fittings and fixtures and domestic chattels was insufficient to give rise to a any interest.

In Windeler v Whitehall [1990] 2 FLR 505 the plaintiff and defendant lived together as man and wife without marrying for about eight years. The defendant was a successful theatrical agent. The plaintiff had no money, did not work and was supported by the defendant. The plaintiff’s role extended to looking after the house and occasionally entertaining for the defendant. The plaintiff never worked in the defendant’s theatrical business. In 1979 the defendant purchased a larger house in his sole name. The plaintiff did not contribute to its purchase price, nor to the household expenses, and merely supervised some minor building works. Later the defendant made a will leaving the plaintiff his residual estate. After the relationship ended the plaintiff claimed a proprietary interest in the house and business. It was held, in dismissing the plaintiff’s claim, that the establishment of beneficial ownership depended on the intention of the parties, either directly or inferred from the conduct, such as conduct directly referable to the acquisition of the property. There was no such evidence either as to intention or to conduct in relation to the property or the business. The fact that the defendant made a will leaving the plaintiff the residual estate was not evidence of his intention that she should have an interest in the house but merely recognition of a moral obligation to provide for the plaintiff in the event that he should die unexpectedly while they were together.

In Lloyds Bank v Rosset the wife’s small monetary contribution to renovation work, decoration and supervision of work was held to be inadequate and the judge's contrary conclusion was said to be untenable. In Thomas v Thomas it was not enough that the claimant helped the defendant with his business in which she undertook heavy manual work in connection with that business, driving tipper trucks and shifting gravel among other tasks. What she was doing was explicable on grounds other than that she would obtain or already had an interest in the property, namely that they were living together as man and wife. While considering this authority, it is also worth noting how certain representations were dealt with by the Court of Appeal. In this already long judgment, I am not going to read into it the paragraphs which I would invite the reader of this judgment to refer to, being paragraphs 33 to 36 of that judgment.

Finally, there is Morris v Morris [2008] FLR 521. It is worth setting out a citation from the judgment of Sir Peter Gibson as it neatly encapsulates the task for me, starting at paragraph 21:

“21.

The task of the court is as Lady Hale said in Stack v Dowden [2007] 2 AC 432 at paragraph 60:

‘to ascertain the parties' shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.’

22.

Lady Hale referred with approval with what was said by the Law Commission in ‘Sharing Homes: A Discussion Paper’.”

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And then he sets out another passage from her judgment.

Picking up at paragraph 23:

“Those comments were, of course, directed to what is always regarded as the second question relating to quantification of beneficial entitlement, the first question being whether an agreement arrangement or understanding that the claimant was to acquire a beneficial interest in the land has been shown. The authorities make clear that a common intention constructive trust based only on conduct will only be found in exceptional circumstances. The evidence in the present case seems to me, with respect to the judge, to be wholly inadequate to establish any such common intention, whether one considers the claimant, Mr Morris or Mrs Morris Senior. One looks in vain in the claimant's evidence, whether by way of her witness statements or the evidence which she gave orally, to find a clear statement that she herself had the belief or expectation that she was entitled to an interest in the land itself even though she believed that she had an integral part to play in the farming and riding school enterprises carried on at the Farm. It is quite impossible, to my mind, to see how it could be said that that was the inference to be drawn from her taking an active part in the farming business, given that the land was owned by Mrs Morris Senior subject to the tenancy agreement; still less if one has regard to the riding school business which the claimant conducted. That riding school business was her own business as she herself asserted in her evidence. That is confirmed by the fact that that business was transferred in 2003 to the company of which she became the sole owner.”

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And so it goes on. A reading of paragraphs 24, 25 and 26 will again be something to add flavour on the facts that case refers to matters which the court found relevant.

Before leaving the law, there is one other point I wish to make. Cases of this nature are to do with application of some quite strict legal principles, and not with imposing some standard of fairness. I think it is worth in this context noting what Lady Hale had to say at paragraph 61 of Stack v Dowden where she considers Oxley v Hiscock. Having done that, where the concept of fairness did seem to come in, she says this:

“Oxley v Hiscock has been hailed by Gray and Gray as ‘an important breakthrough’ (op cit, p 931, para 10.138). The passage quoted is very similar to the view of the Law Commission in Sharing Homes (2002, op cit, para 4.27) on the quantification of beneficial entitlement:

‘If the question really is one of the parties’ “common intention”, we believe that there is much to be said for adopting what has been called a “holistic approach” to quantification, undertaking a survey of the whole course of dealing between the parties and taking account of all conduct which throws light on the question what shares were intended.’

That may be the preferable way of expressing what is essentially the same thought, for two reasons. First, it emphasises that the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended. Second, therefore, it does not enable the court to abandon that search in favour of the result which the court itself considers fair. For the court to impose its own view of what is fair upon the situation in which the parties find themselves would be to return to the days before Pettitt v Pettitt [1970] AC 777 without even the fig leaf of section 17 of the 1882 Act.”

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I turn to the parties’ cases and their evidence in more detail. The claimant’s first witness statement was short on specifics in several material respects. She said that Church Farm was purchased with the common intention of being the family home. That is not a matter which is disputed in the sense that it was intended that the claimant would go with her children and the defendant to live there, but that does not of itself indicate one way or the other the question whether she was intended to have a beneficial interest in Church Farm.

She mentions very briefly the fact that they all lived together at St Brelades before moving to Church Farm but she does not, as I have said already, claim that she ever had an interest in that property. Then she explains that she had lived at the Long Stratton property. She says that the defendant bought this property:

“... with the intention that it may be my home. I lived there with my two children. Roy [that is the defendant] owned it in his sole name. The property had no mortgage. Roy stayed there and I went to his other house in St Brelades very frequently. We were in a relationship together but because the children were young and went to school at Long Stratton it seemed sensible that I would live in the house particularly bought for this purpose.”

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She does not, in the witness statement, claim or present any evidence that could justify a claim that she had any interest in this property. Then she explains that she had lived at the Long Stratton property. She says the defendant bought this property.

She next deals with evidence, which might be seen as going to supporting her claim for an interest in Church Farm, the quantification of that interest and the necessary change of position to establish detriment. She says she gave up her job to support the defendant. She says that he did not want her to work or have an independent home. He said that she would not need to have a job as she would be looked after by him. She explained that she did work for his company, including debt collection, invoicing and general administration. She says that while at Long Stratton she nevertheless visited the defendant every day and carried out cooking, cleaning and general housekeeping for which she received no payment. Effectively she took the role of what each of them described as a traditional wife. She repeats in her second witness, as she did in oral evidence, that the defendant said to her that she did not need to worry about this, as he would look after her and the children. I accept that part of her evidence, whilst noting that it says nothing about how he would carry out that commitment, let alone that it shows that she was to have an interest in the property. It is, of course, a commitment that is wholly consistent with the conclusion that she was intended to have an interest, but it is equally consistent with the contrary conclusion. Indeed, while the claimant and the defendant’s relationship prospered over a significant period, the defendant met that commitment generously in financial terms.

As to working in the company - in fact the defendant was a sole trader but nothing turns on that - the claimant makes the same point in slightly more detail in her second witness statement, suggesting her help unpaid meant that she contributed to the family pot. Having heard her own oral evidence and that of Mr Cowle I am quite satisfied that the work that she carried out was of a comparatively minor nature taking place at best from her point of view for short periods over the course of the relationship and perhaps for one period of two to three weeks fairly early on. In any event this work does not have any impact on whether the claimant has a share in Church Farm. It would, at most, play a role in the part of the overall conduct of the parties, which goes to quantification. It would be necessary to consider this aspect further if, but only if, the claimant succeeds in establishing a share.

It is not disputed that at Church Farm there were many animals including horses. The claimant and at least one of her children rode. The defendant, however, was not much interested in animals and did not himself ride. The animals were, therefore, the claimant’s and not the defendant’s interest although it was the defendant who paid for their upkeep.

The claimant says this:

“I also looked after his [the defendant’s] mother doing all her washing, ironing, shopping before she went into hospital. I visited her very frequently and provided care for her. I was not paid for this.”

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The defendant declined, rather churlishly in my view, to accept that the claimant helped in relation to the care of his mother, explaining that she, his mother, was placed by him in a care home because she needed looking after, refusing to acknowledge that the claimant had helped with her care before things came to that pass. I find as a fact that the claimant did carry out the tasks which she says she carried out in the period leading up to when the mother was placed in care. I do not know and she gives no evidence about the period over which this took place but I have no reason to think that it started until a substantial time after Church Farm was acquired. There is absolutely nothing to link this conduct with the fact, if it be a fact, or with an understanding by the claimant that she had an interest in Church Farm. The reason she looked after the defendant’s mother was surely because she lived with the defendant and did this because of her relationship with him and perhaps, for all I know, and this is pure speculation, because she got on with and liked the defendant’s mother and did it for her.

The claimant says that were it not for all her work the defendant would have had to employ a cleaner. She does not in fact reveal in her own evidence that the defendant did employ a cleaner. In cross-examination she said that she was not satisfied with the standard of cleaning and had to go around after her putting things to her standard. I find it a fact that the claimant took responsibility for the state of the house, but she did have help to run the house. She carried out the normal domestic chores that house owners have to see are done and which, in relationships where only one partner has a job, are usually carried out by the one who is not working. But there was nothing out of the ordinary in what she did and nothing that can lead, anyway, to the acquisition or ownership of a share in a property.

The evidence establishes that the claimant had a full time job before she met the defendant working for Barclays Bank. She left that job to work in her husband’s business. She had separated from her husband and things had not gone well for her in business. By the time she met the defendant she was working part-time for a wage of about £100 a week balancing her job with her responsibilities as a single mother. She gave up her job when her relationship with the defendant became serious, although precisely when she did so is not clear. It is probably about the time she moved to Long Stratton. She says that she could not have done so if the defendant had not promised to look after her, having that she was reliant on the belief that:

“I would have an interest in the property as I was going to be completely giving up my career, my income and my home. I continued to believe this after the property in Long Stratton was bought for me and later when I moved in with Roy to St Brelades and subsequently Church Farm.”

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The property she is referring to there is the Long Stratton property.

As will be seen in a moment, it is in my assessment of the facts the case that the defendant did give the claimant assurances about looking after her. Whether she believed when she gave up her job that she had or would be able to claim an interest in the Long Stratton property is a different matter, which I will deal with in due course. Since splitting up with the defendant, the claimant had gone back to work, not full-time. She now earns a modest $12,500 per annum. She has very poor pension provisions. She says, that, had she continued to work, she would now have a reasonable amount of money saved for her future, for herself and for her children. I have to say that is seems to me to be something of a speculation as well, that if she had not been supported by the defendant she would have had a home for herself and her children without the defendant’s help. It is far from clear that she would have been able to make any substantial savings over that period.

That reference I have just read out as to her belief that she had an interest in the property, the Long Stratton property, is the first reference in this first witness statement to such an interest, in contrast with the properties being her home.

At this stage, I should deal with the proposal to enter into what has been referred to as a living together agreement. The claimant refers to this agreement briefly in her first witness statement. She says this:

“I attach a copy of the letter sent to me by Mr Sisson and a copy of the agreement that I did not sign. I knew that Roy wanted me to sign the document and it was explained to me that, if I signed it, I would have no interest in the property. [The property referenced I believe is St Brelades rather than the Long Stratton property. That is what the agreement itself refers to.] I refused to sign it. I explained to Roy that I would not agree to be with him if those were the terms. [That last sentence is important and I will come back to it.] I did not seek independent legal advice at this time. I made myself clear to Roy that I did expect to have an interest in the property. Roy, knowing that I would not sign the agreement and that I would have an interest in the property, continued to live with me and to continue our relationship. The agreement and letter from Mr Sisson in his evidence that the proposal was made to me and my refusal to sign, and yet Roy continued the relationship and bought another house for us to live in. I believe ...(reading to the words)... discussion that the intention was not that I would have no interest.”

(Quote unchecked)

I feel there is some confusion in that paragraph about the property that is being focused on. The claimant now claims an interest in the Long Stratton property, but the agreement that we are dealing with concerned the home in which she was living, the St Brelade property, and as a fact she does not and has never in fact claimed an interest in that.

It appears from Mr Sisson’s file note that he had a call with the defendant on 16 September 2008. I will read the note:

“You want matters dealt with urgently again and you say that you are moving in another woman next week. You say that your partner has no significant resources of her own. You bought her a house in which to live in, in Long Stratton, in your name. She will now be moving to live at your house at St Brelades, Eye, Suffolk. You want an assurance that in the event that the relationship is unsuccessful she cannot make a claim on you. Now, indicating that in general terms the new partner will not be able to make claims on you in the event your relationship is unsuccessful, unless she has put in funds, for instance for improvements to your home or business. Of course if you have transferred property in joint names or given her property then this would allow her to make a claim on you. She does, however, have two children, presently 6 and 11, and I think they are supported by their father. However, they may become dependants of yours. You say you run a most substantial business and ...(reading to the words)... and you want things absolutely watertight and you therefore want a living together contract drawn up.”

(Quote unchecked)

At this time the defendant was living at St Brelades and it was there, as stated, that the claimant was about to move in. The living together agreement was required by the defendant to ensure that the claimant would gain no interest following their move together in setting up a joint home. Mr Crawley relies very much on a sentence in this note that, “You bought her a house in which to live in, in Long Stratton, in your name.” He submits that that shows clearly that the claimant was intended by the defendant to own the house even though it was in the defendant’s name.

The statement, of course, is an element to be taken into account in the overall assessment of the evidence, but it does not bear anything like the weight that Mr Crawley would have it bear. This is a record of a conversation, and the only reference, as the defendant himself cannot give any helpful evidence of the detail of it, which was focusing on the basis on which the parties would live in the future and it concerned principally the ownership of St Brelades and any future property. It mentions the Long Stratton only in passing. The sentence can just as easily be read as meaning, “You bought a house for her to live in”, or, “You bought a home for her to live in”, as it can be read as meaning, “You bought a house to be owned by her although it is in your name”. It would be entirely unsafe to read the note as recording a statement by the defendant that as he regarded the property as belonging to the claimant. Indeed if that had been perceived as the case by the defendant one would have expected a very different conversation. He would surely have said that he wanted to be sure that the claimant was claiming no interest in St Brelades, he having already given her the Long Stratton property. One finds no hint of that in the attendance note, nor in the draft that has emerged.

Notwithstanding the note, Mr Sisson appears to have acted quickly. There is on the file a copy of a letter dated 16 September 1998, the same day, enclosing a draft cohabitation agreement, but in spite of chasing of phone calls from Mr Sisson, the defendant did not respond and the matter seems to have gone to sleep until April 1999.

A file note dated 30 April 1999 records this, and says that:

“Jane Thomson now wants to sign the agreement.”

(Quote unchecked)

Whether or not she did want to sign, I see no reason to doubt that that is what the defendant told Mr Sisson. There is also this:

“You say she does not want legal advice although you had the impression that it had taken her some time to get used to the contents of the agreement.”

(Quote unchecked)

There is a suggestion there that the claimant had seen the agreement and had been mulling it over in the interim. The next communication was on 4 May. It is worth noting that by this time the claimant had been living at St Brelades for some months. Although the Long Stratton property had not been sold, there is no indication that the claimant had anything at all to do with that property since she had left it. It is not suggested that she visited it to see that there were no problems, it is not suggested that she looked after the garden or anything of that nature, and it is not suggested that she paid any outgoings, if there were any, on the property. There is no evidence from either the claimant or the defendant that they discussed the Long Stratton property at all after the claimant had left it. One might have expected at the very least some discussion about marketing it if, as she now asserts, she was the beneficial owner of 100 per cent of the property.

In the attendance note of the phone call of 4 May 1999, I only need to refer to one very short paragraph where it is recorded:

“You said the intention of the agreement was that your partner should acquire no interest in any of your assets.”

(Quote unchecked)

The agreement in draft was amended on more than one occasion. I can pick up the story on 7 May. On that day there was another telephone conversation, or at least an attendance note as indicated by the following:

“You indicated to DRS [Mr Sisson] in a previous conversation you had not read the agreement and would rely on our drafting. We must emphasise to you that you must be fully conversant with the terms of the agreement. We would much prefer you to call in to see DRS to go through the agreement with us. We are also concerned that there should be independent legal advice and this would be an opportunity for consideration and reflection, particularly if neither party had legal advice. Subsequently telephoning you, you said that you were too busy to come and see DRS this morning and Jane likewise. Therefore you wanted us to send the agreement to you tonight. You instructed us to send the agreement direct to you. You will then discuss this with Jane, emphasising the above points to you in the strongest terms.”

(Quote unchecked)

On 20 May 1999 the claimant attended Mr Sisson’s office. He is clear that he took her carefully through the draft agreement. She indeed acknowledges that and agrees that she understood its terms perfectly well. For her part she says that she had never been willing to sign it. She had made that clear to the defendant. She went to the solicitor because the defendant had asked her to do so but she did not go with the intention of signing it and did not change her mind as a result of the visit.

Nevertheless, I should mention some other parts of what was a very long attendance note. Mr Sisson records that he emphasised to Mrs Thomson the need for her to obtain independent legal advice if she wished. In particular he emphasised that the intention of the agreement was for each party to retain their respective assets, which in effect would mean Mrs Thomson would leave the relationship with nothing whatsoever, save in the event of Roy’s death in which case she would receive £100,000. That was going to be an undertaking by him to provide her with that in his will if the relationship survived.

The home as identified is quite clearly a reference to St Brelades and not to the Long Stratton property:

“We emphasised again that the home would remain belonging to Roy, and irrespective of any claim made by Mrs Thomson towards the property, she would receive nothing in the event of the relationship coming to an end. In fact Mrs Thomson indicated that she would not be making any payments on the property and she agreed that the home solely belonged to Mr Humphrey and she sought to acquire no interest in this.

Living expenses. Mrs Thomson explained that Mr Humphreys did not wish her to work. We emphasised to her that in practice in accordance with the agreement that Mr Humphreys would be responsible for living expenses. We warned Mrs Thomson that in the event that the relationship would come to an end and she did not have employment at that time, this could place her in a difficult position. In particular we drew to her attention to her ...(reading to the words)... Then under the paragraph where each person did leave the property, each party would retain their respective assets and in particular Mr Humphrey would retain his business. Mrs Thomson confirmed that she was not seeking to acquire any interest in the business and that it belonged to Roy.”

(Quote unchecked)

Under transitional provisions, it said:

“Emphasised to Mrs Thomson that in the event that the relationship came to an end in essence she would receive nothing whatsoever. She could not expect to receive any capital from Mr Humphrey nor could she expect to receive maintenance for herself or her children. The only circumstances in which she would receive anything would be in the event that she remained living together with Mr Humphrey at the time the relationship came to an end, in which case Mr Humphrey undertook to make a will in existence containing provision for her.”

(Quote unchecked)

He records that he was asked by Mrs Thomson to explain the current law and there is a summary of the law. Neither party could take anything out of the relationship save what they had put into it subject to the investment of £100,000 and Mr Sisson wisely drew attention to the fact that the law was under review and things may change.

Under the heading, conclusion:

“At the start of the meeting Mrs Thomson indicated that she may wish to consider matters following the meeting with DRS. She confirmed this at the conclusion of the meeting saying that she would rather go away and consider the position.”

(Quote unchecked)

I should also mention Mr Sisson’s letter dated 20 May to Mr Humphrey, the defendant, where he says that:

“At the start of our meeting Mrs Thomson indicated that she may prefer to consider matters further following the meeting and indeed when we had finished, she indicated that she would like to consider matters further before signing the agreement. By the time you receive this letter it may be that we will have further discussions with her.”

(Quote unchecked)

The claimant’s position is not wholly consistent with what Mr Sisson has recorded in his note or in that letter. She says that she never intended to sign and did not indicate that she would consider her position. It is not difficult to see how there may have been a misunderstanding or a different emphasis. Mr Sisson might well have invited the claimant to go away and think about it, with her saying that she would indeed take it away, he having the impression that she was undecided, but she in her own mind making clear her decision not to sign. Indeed, as can be seen from the letter to her of the same date, Mr Sisson was clearly under the impression that the claimant was considering the position when he writes to her:

“I also emphasise to you that in the event that you sign the agreement without legal advice then you would be deemed to have full knowledge and understanding of its contents. I emphasised to you at the outset and at our meeting again at its conclusion that if you wished to obtain independent legal advice, you should do so.”

(Quote unchecked)

At the end of the letter he finishes it by saying this:

“As indicated at the start of the letter, please take this agreement to your solicitor if you wish to have legal independent advice. If, however, you now agree with the contents, please sign where indicated and return to me in the envelope provided.”

(Quote unchecked)

Mr Sisson was clearly under the impression that the claimant was considering the position. She did not, or at least there is no record of any response, respond to him saying that her mind has always been clear and that she would not sign. In the end, I do not think anything turns on this. What is more significant is that Mr Sisson made it clear that the effect of the agreement would be that each party would keep his or her own property and that the claimant would have no call upon the defendant at all if the relationship should break up and only the limited provision under his will as discussed, that is the legacy of £100,000. Yet, in the whole of this meeting, the claimant made no mention of the Long Stratton property and that it was intended that she should be the beneficial owner of this. I am confident that if such an assertion had been made, it would have been recorded by Mr Sisson. Indeed the claimant herself did not in any case suggest that she did say any such thing to Mr Sisson.

I have to say that I find it very surprising that if the claimant genuinely thought, at that time, there was an intention that she should own the rights to the Long Stratton property, she did not say so to Mr Sisson. On 21 June 1999, the defendant contacted Mr Sisson. The attendance note records this:

“Attending to you when you rang, you say that you are not altogether agreed with Mrs Thomson about matters. She seems to be reluctant to sign the agreement. Saying that, from your point of view, there was no major disadvantage if she did not sign the agreement. The law, for the present, in the event your relationship came to an end she would only receive from the relationship what she had put into it. With that in mind, it may be preferable from her point of view if she did sign the agreement.”

(Quote unchecked)

That was the end of the matter so far as Mr Sisson was concerned. He subsequently submitted a fee note.

The claimant deals further with her interest in her second witness statement where she says at paragraph 3:

“I set out in my first statement how Roy bought the property in Long Stratton for me with the intention that it would be my home for myself and my girls. Importantly, at this time, Roy had his own house, therefore, Roy cannot say he bought the house in Long Stratton for himself because he already had a house. Before moving to the house in Long Stratton, I already had my own life and indeed my own job and accommodation.”

(Quote unchecked)

However she does not repeat here that the accommodation was rented accommodation.

The claimant does not give any more detail than she did in her first witness statement about the discussion that could lead to the conclusion that she, in fact, had an interest, simply saying that she had explained in her first witness statement how the Long Stratton property was bought "for me" as a home for herself and her children. In fact, the first witness statement does not say it was bought for the claimant in the sense of her owning it and the inclusion of those words “for me” hardly highlights that the intention was as she now purports it to be. She explains, and I accept this part of her evidence, that the claimant and the defendant looked together for the Long Stratton property and that it was she who made the final choice.

She adds this at the end of paragraph 4 of her second witness statement:

“This, of course, makes sense as the house was always planned to be my house but Roy was buying it for me.”

(Quote unchecked)

I am afraid I can read that as no more than an assertion of the result to which the claimant contends, and does not really assist me over and above the evidence in the first witness statement and her oral evidence in establishing the beneficial ownership of the house to which the defendant is referring as her home.

Her argument, which is not so much evidence as a short pleading, in paragraph 10:

“Therefore, I see the house in Long Stratton as mine; having been bought for me by Roy. Therefore, when we decided to live together, I believe I should be given credit to the value of the Long Stratton house.”

(Quote unchecked)

As to credit for those proceeds, one might read paragraph 10 as claiming the proceeds of the sale of Long Stratton. However, Mr Crawley suggested the proceeds can be seen as forming part of purchase price of Church Farm. That is not a suggestion one finds anywhere in the claimant’s evidence. It was made for the first time in the course of this hearing. This is not a point that I think can now be taken. It is not supported by any evidence. There has been no attempt to obtain disclosure in relation to what is in effect a tracing claim. In any event, the defendant denies that it is the case, although I think Mr Crawley is right to say that the reason given by the defendant cannot be right. The defendant says that Church Farm was paid for out of his own money including the sale proceeds of St Brelades. However, St Brelades was not sold until after Church Farm was purchased, so what the defendant said cannot be right. In any case, this aspect of the case would be of relevance only if the claimant was successful in her claim to have an interest in the Long Stratton property. It falls away if the conclusion is that she has no interest.

Before leaving this aspect of the case, I should record that the claimant has made two unfounded suggestions. First, she says that the Long Stratton property was purchased for £94,000 and sold for £195,000, a gain of £100,000. I am satisfied that the figures were £80,000 and £95,000, a gain of only £15,000. Secondly, she says that the defendant failed to pay capital gains tax on the gain, something consistent only with her being the owner and, as such, entitled to principal private residence relief. In fact, as I am satisfied, the defendant returned the gain to HMRC in his returns and has paid such tax if any as was due.

Next, the claimant said in her first witness statement that the defendant had told her, although it is not clear to me even now quite when it is alleged this happened, that he had prepared a will leaving Church Farm to her saying that he wanted to assure her that she would not be left without money and accommodation. The defendant denies that he ever said this or that he had ever made such a will. There is certainly no evidence of such a will ever having been made. He does accept that he made a will, since revoked, leaving her some money, although he did not say how much and was not pressed to give an answer on this.

I am not satisfied that he did in fact make a will leaving Church Farm to the claimant. I do not need to decide whether he told the claimant that he had done so since it really sheds no light at all on whether the claimant was intended to have a share in Church Farm on its acquisition. On any footing, the defendant himself would have had, on the claimant’s case, a 50 per cent share, and a statement by him to the effect that he had left her Church Farm could be taken as dealing only with his share, although taken in the stark terms in which the claimant puts it, such a statement would be more consistent with his being the sole owner, in which case one might have expected a response from the claimant that the defendant already owned half, so asking him, “What on earth are you talking about?” There is no suggestion that anything of that sort was said.

I have already mentioned, when considering Mr Tanner's evidence, the project management work that the claimant says she carried out. On the totality of the evidence, I consider that the claimant had rather more involvement with the project than the defendant is prepared to admit. The fact is that she was on site running the tack shop for six days a week. It seems entirely credible, and it would be likely, that if the builder in overall charge or contractor had a query about details of work, they would go into the shop and ask the claimant for a decision. Either she would make a decision or, if it was a matter of significance, she would raise the matter with the defendant at home in the evening, but she was not in any sense in charge of the project, nor did she project manage it in the way that term would normally be understood, supervising on a day-to-day basis the work done, inspecting it for quality purposes and compliance to building regulations and matters of that sort. It is, I am afraid, an exaggeration to say, as she does in her second witness statement that:

“I spent months and months project managing the refurbishment and extension to Church Farm, extensively by way of a manager. I’m prepared to say that I spent about 18 months altogether including Church Farm; work for which Roy never paid me.”

(Quote unchecked)

The impression that is given by that is that she was working extremely hard in relation to the project, which is not a matter that is made out on the totality of the evidence.

Returning to the living together agreement, Mr Crawley suggests that it supports the claimant’s case. The fact is that after 1999 the agreement did not proceed. He suggests that this was because the defendant did not continue to press for it and the reason he did not do so was because the parties must have had further discussions as a result of which it was accepted that, contrary to the agreement in draft, the claimant could have a share. The question must then be asked, a share in what? Clearly it is not a share in St Brelades as the claimant does not and never has made a claim for that property; something entirely consistent with what is recorded in Mr Sisson’s attendance note of the meeting with her. There is not a hint in the evidence, even from the claimant, that beneficial ownership of the Long Stratton property was discussed at the meeting with Mr Sisson. The position is, therefore, that the intended joint home in St Brelades was, quite apart from the living together agreement, intended to remain in the beneficial ownership of the defendant and nothing at all to suggest that any future home, should they move from St Brelades, should be jointly owned. What they might subsequently agree on an actual move is, of course, an entirely different matter.

I draw precisely the contrary conclusion from the failure to sign the agreement. As I see it, the defendant had made it clear by instructing Mr Sisson to draft the agreement, and involving the claimant in an attempt to get her to sign it, that he did not intend her to have any beneficial interest in St Brelades or any future home. There is therefore a heavy onus on the claimant to show that that clear intention had changed by the time of the actual acquisition of Church Farm as a replacement home. Further, I am quite unable to infer from the fact that the living together agreement was not signed that the defendant recognised that the claimant already had an interest in the Long Stratton property or that, if she did not already have one, she was intended to obtain one. Indeed, it is highly unlikely that the defendant was proceeding on the basis that he thought, or ever intended, that the claimant already had an interest in the Long Stratton property.

The claimant’s oral evidence did not really provide any further assistance about the intention of the parties and the Long Stratton property. She did not suggest that the defendant expressly said that it would be her house in the sense of belonging to her. She said that it came across that it would be “my home”, with the emphasis being on “my” as much as on “home”. When asked why she was entitled to anything, given that the defendant had paid for the house and all its outgoings, she said, “Only from what he told me”. As I have said, what he told her did not, or at least her own evidence did not establish to the contrary, contain a clear express representation that he intended the house to belong to her.

The defendant says in relation to the same discussions that there was never any suggestion that the claimant would have a share in the Long Stratton property or indeed Church Farm. He says that, on occasions, he made the odd remark about the amount that the stables and the tack shop was costing. He said that the claimant responded to the effect that, “This is your house. Think of it as an investment.” She does not deny the remarks about cost were made by the defendant but puts a different gloss on it saying that the thrust of her reply was the house was his as well as hers, in other words, that they both had a share.

I can attach no weight at all one way or the other on casual remarks of this sort where the different parties have difficult recollections of the gist of the conversation many years ago. I do not think that either party is lying about this. It is simply that each side now perceives what was said as being consistent only with the case which is now run.

I need to say a little about the claimant’s evidence in paragraphs 21 and 22 of her witness statement. The defendant denies that the remarks were made:

“That is the day I explained to Roy that I would not agree to be with him if those were the terms and I made myself clear to Roy that I did expect to have an interest in the property.”

(Quote unchecked)

In her oral evidence, the thrust of it was rather different than those stark statements in her witness statement. I conclude that she did not in terms say that she expected to have an interest in the property or that, if she did not have one, she would not agree to be with him. Rather, her consistent evidence was that she refused to sign the agreement because she saw the relationship as a long-term one. She was not in it for the short term and would not have wanted, or have stayed in, a short-term relationship. A long-term relationship for her had to be one based on mutual trust and affection. There should be no need for legal agreements such as the living together agreement and she was not willing to sign it. She expressed her concerns about the future should anything happen to the defendant. She thought that it would be unfair if she found herself out in the street in her old age without a roof over her head and no doubt he comforted her with assurances that she would be all right and that he would see that she was provided for. Indeed, she herself said in her examination-in-chief that what the defendant said was that she need not worry and that everything would be all right and that what she wanted was some security. It is in that context the claimant considers that she is entitled to a share in Church Farm. Her statement in her witness statement, which I have referred to, is, I consider, her interpretation of what she sees herself as entitled to and is not an accurate reflection of what she actually said. What she actually said was something far less focused and entirely consistent with beneficial ownership of St Brelades and any replacement property remaining with the defendant.

The claimant also stated in examination-in-chief that after discussions, which I have just referred to, everything calmed down and as she put it, “Things were fine”. She was asked whether the defendant said anything to her on later occasions about these matters, either before moving to Church Farm or once they had moved there, to which her answer was no. I ought to record that the defendant says this. In the discussions following the claimant’s visit to Mr Sisson, she said that the defendant had trusted her and accepted her reassurances that she did not want any financial interest in the property at St Brelades or otherwise from the relationship. He quotes her as saying “I came with nothing and I will go with nothing. I am not here for your money.”

She was asked about this in cross-examination. She gave a somewhat roundabout answer to the question whether she had said that. She accepted that certain parts of the statement were true and certain parts were false. She was looking at the long term, she went on, at the long-term future and there had to be more trust. She said she did not come with nothing. She had a car and furniture and had left her own home, which again I note was rented. “It was not a part-time relationship”, she said. “We needed to reassess each other. He said it would be okay. This is why the LTA was not carried any further.” She was not pressed further on this line of questioning, so I actually never received an answer to what things she accepted and did not accept. She had said in the statement that the defendant said she did know, so I do not know whether she accepts or denies that she said she would take nothing and was not interested in his money.

There is another aspect of the claimant’s evidence which I must deal with. She says that the defendant stated that he would give her the proceeds of sale of the Long Stratton property. It is entirely unclear to me precisely when it is alleged that this was said. Whether it was before or shortly after the sale of the Long Stratton property, I do not know. The defendant, for his part, denies ever having said any such thing. I do not propose to resolve that dispute of fact because I do not need to.

Finally, in this review of the evidence, I will deal with what the claimant says in summary about the detriment that she suffered. It appears in paragraph 14 and 15 of the claimant’s second witness statement. She said she made numerous contributions both to the Long Stratton property and also to the Church Farm property:

“In addition, I have also acted to my detriment for the benefit of Roy and I believe ...(reading to the words)...”

(Quote unchecked)

I am not aware of any contribution to the Long Stratton property in the context of running the house in which the defendant and his mother lived, but she does rely on the following:

“I have lost the opportunity of working for 13½ years throughout my relationship why Roy. Therefore, at Roy’s request, I have giving up the ability to earn a salary and have made a significant contribution towards Roy and Church Farm. I have lost the chance of a mortgage. 13½ years ago, I could have got a mortgage and have paid this off over the timeframe. However, now I do not feel that I will be able to get a mortgage. I have therefore lost that to my detriment that I have suffered for Roy’s benefit and that now I have lost the opportunity to obtain a mortgage. I believe Roy has made no sacrifice on my behalf.”

(Quote unchecked)

She deals also with the project management of Church Farm, which I have already dealt with.

I deal first with the Long Stratton property. In light of the law, which I have discussed, the first question to decide is whether there was common intention that the claimant should have any interest at all in this property. In my judgment, the evidence comes nowhere near establishing an express agreement that the claimant should have such an interest. The furtherest it is possible to go on the evidence is that it was the common intention that the defendant would provide a home for her and her children. The evidence of the actual discussion is sparse in the extreme. The claimant now says that her understanding of the discussions was that she would have a share, indeed a 100 per cent share, in the property, but that I am afraid is not something which I can accept was the established intention. Further, the absence of such an intention is more consistent with subsequent events, although I do not take them into account in reaching the conclusion which I have. No reference was made at the meeting with Mr Sisson to such an alleged ownership, which is the least surprising if the claimant’s claim is a good one. The claimant appears to have taken no interest in the property once she had left it. The only concrete indication is that, according to her, the defendant said that he would give her the proceeds of sale, but even if he did say that, it is entirely neutral so far as concerns the actual ownership. Is he to be taken as giving her something to which she was not already entitled or is he to be taken as passing to her that which was hers in any case?

If it is necessary to rely on the constructive trust arising from something other than an agreement, the evidence again comes nowhere near establishing such an interest. Although the law may have moved on from Lloyds Bank v Rosset and although it is not possible to lay down a clear line between what is and is not sufficient, I am clear that the matters relied upon in the present case cannot give rise, in any sense, to the intention that the claimant should have an interest in the Long Stratton property.

But even if it is wrong to say that there is no agreement giving rise to a common intention that the claimant was to own the Long Stratton property, I do not consider that the matters relied on here amount to sufficient detriment to allow her to assert that claim. The detriment was essentially giving up her job and leaving her home, effectively losing employment prospects. I am afraid that I cannot attach much weight to that in the context of her circumstances at the time. She had a poorly paid part-time job with no prospects. The giving up of a job is referable, in my judgment, not to an expectation that she would own or have a share in the property, but to the assurance that she would be looked after. Now, that may or may not be an assurance that she now regards as having been breached, but even if she does, I am not satisfied that her move can be seen as having been in any way in reliance on the prospect of ownership of the property.

So far as St Brelades is concerned, the claimant makes no claim.

So far as Church Farm is concerned, as with the Long Stratton property, I reach the conclusion that the evidence is wholly insufficient to establish an express agreement that she should have a share. Indeed, given that she had no share in the quasi-matrimonial home at St Brelades, it would require even stronger evidence than usual to show that a different intention was intended in relation to the successive homes. Moreover, the requirement for strong evidence would be greater still, in my judgment, as a result of the circumstances surrounding the living together agreement. The defendant’s attitude is clearly shown by what he wanted, but failed to achieve, namely an express agreement from the claimant that she would obtain no interest in St Brelades (which she accepts she did not have) or Church Farm (of which she claims 50 per cent). As I have said, I do not accept Mr Crawley’s position that the failure to sign the agreement shows that the defendant must have accepted that she could have a share. Quite the reverse. It seems to me the claimant really needs to show that the defendant changed his mind at the time in regards to Church Farm.

In the absence of express agreement, the evidence again comes nowhere near the line, wherever it may be placed, between what is and what is not sufficient to give rise to an instance of a common intention that the claimant should have a share in Church Farm. The case is, in my judgment, clearly the wrong side of the line from the claimant's perspective, but whether taken separately or cumulatively, the matters on which she relies are simply not enough - these matters are leaving her job, working in the business, project management, housekeeping and looking after the mother. Not only are they not referable to the activities that could be properly taken by themselves to indicate a share, they simply are not of the type and category that are capable of giving rise to a successful passing of the first hurdle.

Further, in the light of my conclusion that the claimant has no share in the Long Stratton property, she clearly cannot found a claim to a share in Church Farm, based on the application of the proceeds of sale of the former, which belonged to her. Accordingly, the claimant’s claim is dismissed.

I would only, at the end of this judgment, repeat what I have said about the application of fairness in cases of this nature. Whether the conclusion I have reached is one that could be seen subjectively or objectively as fair or not, is not a matter for this court. That is a matter for law reform.