Angela Philomena Quigley v Violet Masterson
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 07 October 2011 |
| Neutral Citation | [2011] EWHC 2529 (Ch) |
| Docket Number | Case No: CH/2010/0713 |
| Court | Chancery Division |
| Date | 07 October 2011 |
[2011] EWHC 2529 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Henderson
Case No: CH/2010/0713
Mr Robert Sheridan (instructed by Hammons Solicitors) for the Appellant
Mr Andrew Skelly (instructed by Drew Jones Solicitors) for the Respondent
Hearing date: 10 May 2011
Introduction and background
The basic issue on this appeal from a decision dated 22 July 2010 ("the Decision") of Mr Simon Brilliant, sitting as a Deputy Adjudicator to HM Land Registry, is whether a beneficial joint tenancy of a dwelling house at 173 North Street, Coventry, CV2 3FR ("the house") had been severed before the death on 20 March 2009 of the late Mr Edward Pilkington, who was one of the two joint tenants. Mr Pilkington was 82 years old when he died, and a patient of the Court of Protection. One of his daughters, Mrs Angela Quigley, had been appointed as his deputy shortly before his death, with wide powers over his property and affairs; she is also the executrix of his will dated 12 March 2003, by which he left his entire estate to his seven grandchildren in equal shares.
Mr Pilkington's marriage had already ended when in about 1978 he began to live with Mrs Violet Masterson, a lady some 16 years his junior who had herself been previously married and had a family. Mr Pilkington was then aged 51, and Mrs Masterson 35. They never married each other, but continued living together until 2001 when the relationship broke down.
The first property which they lived in together was a former Council flat, which was apparently purchased in Mrs Masterson's sole name because bankruptcy proceedings were then pending against Mr Pilkington. In 1991 or 1992 this property was sold and the net proceeds of sale, after discharge of an outstanding mortgage, were applied towards purchase of the house. It is common ground that the house was conveyed into their joint names, as joint tenants both at law and in equity. They were registered as the joint proprietors, under title number WK87078, on 24 August 1992. Consistently with their beneficial joint tenancy and the right of survivorship which it entailed, no restriction was entered on the register in the familiar form where a property is beneficially owned by tenants in common, that is to say a restriction preventing any disposition by a sole proprietor of the registered estate under which capital money arises unless authorised by an order of the court.
Mr Pilkington and Mrs Masterson then lived at the house, together with Mrs Masterson's daughter Charlotte, until 2001 when (following the breakdown of the relationship) Mrs Masterson and Charlotte left to live elsewhere.
In 2002 the parties instructed solicitors, and as one might expect (in view of the breakdown in the relationship, and the disparity in their ages) efforts were made by Mr Pilkington's solicitors (Hammon Oakley), acting on his instructions, to sever the joint tenancy. The efforts took the form of the service, or attempted service, of a written notice of severance pursuant to the proviso to section 36(2) of the Law of Property Act 1925 which states, so far as material, that "where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire …". The main steps taken were:
a) on 21 December 2002, the sending by post of a written notice of severance, dated 16 December 2002 and signed by Mr Pilkington ("the December notice"), to the solicitors whom Mrs Masterson had previously retained, Drew Jones; and
b) the preparation in February 2003 of a further notice of severance ("the February notice"), which it was intended to send under cover of a letter dated 12 February 2003 to Mrs Masterson at her place of work. Mrs Masterson was employed at the time by the University of Warwick as a cleaner, and the letter was addressed to her, with her name mis-spelt as "Mrs Masterton", at the appropriate address for "Accommodation Services" at the University.
These efforts, however, were unsuccessful. So far as the December notice is concerned, it was accepted by the date of the hearing before the Deputy Adjudicator that Drew Jones were no longer acting for Mrs Masterson at the time when it was sent, and that they had no authority to accept the notice on her behalf. Nor was there any evidence that Mrs Masterson had ever in fact received the notice. With regard to the February notice, the Deputy Adjudicator heard oral evidence from Mrs Masterson, Charlotte, Mrs Quigley and the solicitor who then had conduct of the matter on Mr Pilkington's behalf, Mrs Tucker. In the light of this evidence, he was not satisfied that the February notice was ever posted to Mrs Masterson, and (even if it was) he held, obviously correctly in my respectful opinion, that her workplace as an employee of the University could not possibly be treated as her "last-known place of business" in the UK within the meaning of section 196(3) of the Law of Property Act 1925. He also accepted the clear evidence of Mrs Masterson that she had never received the February notice, and he considered and rejected the various points relied upon as suggesting that she had. He took a dim view of Mrs Tucker's knowledge of the law and procedure relating to the giving of a notice of severance, and of the level of efficiency in the offices of Hammon Oakley at the relevant time.
There is no appeal against the Deputy Adjudicator's conclusions in relation to the February notice, and no attempt has been made to resurrect any argument based on the December notice. It follows that the appeal to this court has proceeded on the footing that neither notice was effective to achieve its purpose, and no valid notice of severance was given by Mr Pilkington to Mrs Masterson in 2002/3.
Not long afterwards, Mr Pilkington's health began to deteriorate. By 2004, now aged 78, he had developed an incurable neurodegenerative dementia, and in the same year he also underwent surgery for bowel cancer. By 2008 his language was impaired by fluent dysphasia, and his state of health was such that he had to move from the house to a private residential care home. However, this deterioration in Mr Pilkington's health was accompanied by an improvement in his relationship with Mrs Masterson. The Deputy Adjudicator found that from late 2003 until Mr Pilkington had to leave the house in January 2008 he and Mrs Masterson appeared to have been on better terms, and she visited on a regular basis to care for him.
As I understand it, there was no immediate need to sell the house in order to fund Mr Pilkington's care, because the local Council would meet the cost until the property could be sold; but in due course the Council would have to be repaid, and everybody proceeded on the footing that Mr Pilkington had a half share in the house (whether severable, or already severed) upon which the burden of the repayment would ultimately fall. As the Deputy Adjudicator records, Mr Pilkington was a retired steel contractor and a man of relatively modest means. Furthermore, the house was now empty, and there was no prospect of his ever returning to live there. It was therefore clear that the house would have to be sold, but achieving this was not going to be straightforward because of the deterioration in Mr Pilkington's mental capacity and the fact that he had unfortunately never granted an enduring power of attorney when he still had capacity to do so.
On 20 March 2008 an assessment of Mr Pilkington's capacity was prepared by a consultant psychiatrist, Dr Karim Saad, on behalf of Mrs Quigley. Dr Saad found that Mr Pilkington had been suffering from moderately severe dementia since 2004, and that he was unable to manage his financial affairs or to make a lasting power of attorney. He was unable to tell Dr Saad the extent of his assets or property, and was markedly disorientated in time and place, with poor ability to retain or retrieve information.
Armed with this assessment, Mrs Quigley made an application to the Court of Protection on 20 April 2008. In her application she asked the court to make a financial order, authorising her to apply her father's money for his benefit and to sell the house which he owned in equal shares with Mrs Masterson. In section 5 of the application form, headed "Other information", she said "It is intended to sell the house which is owned jointly with former partner, who also wishes to sell".
I will need to trace some of the history of the Court of Protection proceedings later in this judgment, but for now it is enough to record that Mrs Quigley and Mrs Masterson were unable to agree who should be appointed as Mr Pilkington's deputy; that directions were given for resolution of the dispute; and that following a contested hearing on 3 February 2009 the court ordered that Mrs Masterson should have conduct of the sale of the house, subject to certain conditions, but that Mrs Quigley should be made the deputy for Mr Pilkington's property and affairs, with the exception of the sale of the house. A further more detailed order appointing Mrs Quigley as her father's deputy was then made on 13 March 2009, by the same district judge who had made the earlier orders. A week later, however, and before any action could be taken to sell the house, Mr Pilkington died on 20 March.
The procedural history which led to the hearing before the Deputy Adjudicator is briefly as follows. In February 2003 Hammon Oakley persuaded the Land Registry to enter a restriction on the title of the house, on the footing that a valid notice of severance had been given. Following Mr Pilkington's death, Mrs Masterson was...
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