Anthony Keiron Clough Downes v Peter Robert Downes (1) and Angela Downes (2)
| Jurisdiction | England & Wales |
| Judge | David Cooke |
| Judgment Date | 13 March 2019 |
| Neutral Citation | [2019] EWHC 491 (Ch) |
| Date | 13 March 2019 |
| Docket Number | Case No: D30BM177 |
| Court | Chancery Division |
[2019] EWHC 491 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
Property Trusts and Probate List (ChD)
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: D30BM177
Noel Dilworth (instructed by Birkett Long) for the Claimant
Helene Pines Richman (directly instructed) for the First Defendant
The Second Defendant appeared in person
Hearing dates: 4–7 December 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ David Cooke
The claimant Mr Anthony Downes (known as Tony) claims that he is the sole beneficial owner of three properties and seeks declarations to that effect, orders that they be transferred into his sole name and consequential relief. The properties in issue are:
i) A house at 33 Victoria St Lincoln (“33 VS”), presently registered in the sole name of the first defendant, Mr Peter Downes, who is the claimant's brother
ii) A house at 35 Victoria St Lincoln (“35 VS”), presently registered in the joint names of the first defendant and his wife Angela Downes, who is the second defendant, and
iii) The Old Rectory, 19 Newport, Lincoln (“TOR”), presently registered in the joint names of the claimant and the first defendant.
It is the defendants' position that the present registered legal ownership reflects the true beneficial ownership. If however Tony would otherwise be entitled to any relief, it should be refused on grounds of delay or laches. By counterclaim the first defendant seeks a declaration that he is the sole owner of a vintage Armstrong Siddeley Hurricane motor car and an order that the claimant, who is presently the registered keeper, transfer that registration to him. The claimant's case is that he is a joint owner of the car.
As this case involves a number of members of the Downes family I will generally refer to them by their first names, as they were during the trial. Mr Dilworth appeared for the claimant. The defendants act in person, though Mrs Pines Richman appeared at trial, as she has at earlier hearings, instructed on a direct access basis for the first defendant (who is a solicitor). She was not instructed by the second defendant, though Mrs Downes' interests are aligned with those of her husband.
I heard witness evidence from the parties themselves. In addition Mr David Markham (a cousin of Tony and Peter) and Mrs Beatrice Bell (a friend of Tony and former employee at the guest house) gave evidence on behalf of Tony, and Mrs Erica Frost (a sister of Angela) gave evidence for the defendants. A witness statement by Mrs Angela Finn (sister of David Markham) was served for the defendants, but she declined to attend the trial.
Relevant Legal Principles
There was little between counsel as to the relevant law to be applied. In general, it is to be presumed that the beneficial interest in land follows the legal estate, and the onus is on a party who claims that this is not so in a particular case to establish the facts necessary to make out that claim ( Stack v Dowden [2007] 2 AC 432). In this case, the nature of the allegations on both sides is of express common intention constructive trusts. Mostly these are said to have come about at the time of acquisition of the legal estate, ie an agreement or understanding expressly discussed and reached at the time that notwithstanding transfer of a property to one person it would be beneficially owned by (or jointly with) another. In relation to 35 VS Peter alleges an express agreement in 1994 that the beneficial interest in that property, which he acknowledges was previously held by Tony, would be transferred to him.
In all such cases therefore the onus is on the person propounding the alleged agreement to prove it, on the balance of probabilities. In the absence of any contemporary documentary evidence referring to such agreements, or evidence of witnesses other than the parties present at any such discussion (and there is none in this case) the court may have regard to evidence of how the property has been dealt with, at the time of acquisition or subsequently, and how its ownership has been subsequently presented to others, for the purposes of assessing the relative credibility of the oral evidence of the parties as to whether the agreement alleged was or was not made.
In some circumstances, such evidence (particularly if it relates to contributions to the purchase price) may support an inference of an intention that a person should have a beneficial interest, even if the parties have not expressly discussed or agreed that he should. But that is not in issue here; both sides contend that there was express discussion and agreement about the beneficial ownership, though they differ radically on what terms were agreed. The court's task is to make findings between their respective contentions, and in doing so it may rely on circumstantial evidence to support or undermine those contentions.
In considering such evidence, particularly in relation to transactions with third parties and events after the purchase or alleged change of beneficial ownership, the court must bear in mind that if the parties had reason to agree that beneficial ownership would not be reflected in, or would depart from, the apparent position shown by the legal title, they may also have had reason not to reveal that to third parties, or not to wish to explain their private arrangements to others. A significant consideration for the court therefore in evaluating evidence of events subsequent to the alleged agreement is whether those events are likely to show the true understanding between the parties or perhaps simply that they were content for whatever reason to allow those events to follow through the course dictated by the apparent position.
For completeness, I should note that in order to establish a common intention constructive trust, the person propounding it must in addition to proving the relevant common intention show that he relied on it to his detriment, but neither counsel has made any case that, if I found the relevant common intention, the trust alleged would nevertheless not arise for lack of reliance.
General background
None of the properties in issue is occupied by any of the parties. 33 VS and 35 VS have at all material times been let to various tenants. TOR was acquired with a sitting tenant in a ground floor flat and has otherwise been converted into a guest house, which was run by the claimant, originally with the brothers' mother, Mrs Norah Downes. Norah Downes is now quite elderly and infirm to the point that she was not considered capable of giving evidence by any of the parties.
Tony is the elder of the brothers by two years. They grew up in Lincoln with their parents Robert and Norah. It is common ground that the parents owned a number of properties in Lincoln that were let to tenants, and that much of the work in managing those properties, dealing with the tenants and particularly keeping financial records was done by Norah, especially after her husband died in 1974. Both brothers say they were encouraged by their parents to invest in properties for letting on a similar basis, and were interested in doing so from an early age.
Tony went to university in 1973, studying materials processing, and afterwards worked for a period as an engineer and later as a part time lecturer. He owns and runs a business renting out canal narrowboats. He has also derived an income from letting properties; in addition to 33 and 35 VS there have been various others, some held in his own name and others from time to time in the names of other family members. He also earned an income from the guest house business at TOR.
For much of the time since university Tony lived with Norah at her home (after her husband died) at Arch Cottage, a historic property in Lincoln also known as 52 Bailgate. His evidence was that he also from time to time lived with various girlfriends at their houses, though using 52 Bailgate and/or TOR as correspondence addresses. Tony married his wife Mo (formerly Wotke) in November 2011.
Peter studied law at university and became a solicitor, undertaking Articles and later practising at various firms in Lincoln. He too has owned and let out a number of properties in addition to those now in issue.
It is common ground that for many years the brothers got on well and helped each other out in relation to their various properties and business affairs. Peter has performed legal work free of charge for Tony and other family members. Both brothers are clearly very practical and have performed a great deal of building and maintenance work on the various properties, whether or not in their own names. Both undertook restoration work on the Armstrong car, as well as on other cars and narrowboats, although they now disagree on their respective levels of contribution.
More recently however they have seriously fallen out. Much of their disagreement seems to centre on how best to look after Norah, who is now in her nineties and suffering from dementia. This has led to counter accusations and arguments between themselves and their respective wives about Norah's treatment and other related matters. I do not have to resolve these disputes, and although some evidence was devoted to them, including a video recording of a disputed incident, I do not consider it will assist me to seek to do so.
In the following section I summarise the factual background in relation to each of the properties in dispute, so far as is agreed or apparent from the documentary evidence, and the parties' respective...
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