Feeney v Rix
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE WINN,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 29 May 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0529-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1965. F. No. 551. |
| Date | 29 May 1968 |
[1968] EWCA Civ J0529-4
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Cross J. 10th April, 1968.
Revised
Lord Justice Willmer
Lord Justice Winn and
Lord Justice Edmund Davies
Mr ISRAEL FINESTEIN {instructed by Messrs John Wood & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr IAN M. McCULLOCH (instructed by Messrs Lovell, White & King) appeared on behalf of the Respondent (Defendant).
In my Judgment this appeal fails, and fails for the reasons given by the learned judge himself. If it were not for the respect which I think is due to the argument to which we have listened, I should have been disposed to say no more. As it is, I will endeavour briefly to state in my own words my reasons for coming to this conclusion.
The appeal is from an order made by Mr Justice Cross on the 10th April 1968 requiring the plaintiff to deliver further and better particulars of an allegation in the statement of claim. In doing so he was taking a view different from that of the master, who had adjourned the summons to him.
It is necessary to describe briefly the subject-matter of the action so as to understand the allegations in respect of which further and better particulars have been ordered. The plaintiff and the defendant apparently lived together as man and wife for a numberof years although they were never married. They lived together at a house in Hollingbourne Gardens, London, W.13, a property which was in the name of the defendant, but was subject to a mortgage. The plaintiff alleges that he and the defendant contributed in equal shares to the original deposit for obtaining the mortgage. He further alleges that both of them made regular contributions to a bank account at Lloyds Bank, Camden Town, which was an account in the name of the defendant. He says that that account was used for paying the periodic instalments under the mortgage.
In those circumstances the subject-matter of the section is the beneficial interest in the House. The plaintiff alleges that he is beneficially entitled to a half interest in the house. That is put in issue by the defendant, who claims to be solely entitled to the house. It is in that context that the plaintiff alleges in paragraph 3 of the statement of claim: "The plaintiff never intended or proposed that any contribution by him to the said joint account or fund or to any of the transactions or matters referred to in paragraph 1 hereof should be a gift and none of his contributions was or ever became a gift". It seems to me, if I may say this in passing, that it is at least questionable whether that is a necessary averment for the plaintiff to make, or whether it would not rather have been for the defendant to allege. If she so intended, that the payments made to her were intended as gifts. But I pass over that point, which is not relevant for present purposes. The plaintiff has in fact taken upon himself to allege that he never intended that his payments should be a gift.
The learned Judge has made an order very nearly, but not quite, in the terms of the summons before him as follows: "Further and better particulars particularising any overt acts of the plaintiff and any other facts relied upon to show that the contributions (if any) of the plaintiff when made by the plaintiff (if at all) were made with the intention of being made as a gift to the defendant", and the learned Judge drew attention to the fact that the rules with regard to furnishing further and better particulars of a pleading were altered in 1963. Whereas under the old rules, as they werebefore that date, there was no requirement that particulars should be furnished of an allegation relating to the condition of mind of any person, that was altered when the new rules were introduced. The relevant rule now la Order 18, rule 12, which provides: "Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words", I miss out (a) and go on to (b): "Where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies".
The learned Judge took the view that the plaintiff's...
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Ho Kui Wah v Yu Chow Say Mui
...condition of mind and points out that it has been held that particulars may be ordered of an intention: O.18 r.12(1)(b) and Feeney v. Rix 1968 Ch. 693. In the case referred to one issue was whether any contribution which might have been made by the plaintiff to the purchase of a house in th......