Fowler v Barron
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Toulson,Lord Justice Waller |
| Judgment Date | 23 April 2008 |
| Neutral Citation | [2008] EWCA Civ 377 |
| Docket Number | Case No: B2/2007/1014 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 April 2008 |
[2008] EWCA Civ 377
Lord Justice Waller
Vice-president Of The Court Of Appeal, Civil Division
Lady Justice Arden and
Lord Justice Toulson
Case No: B2/2007/1014
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHICHESTER COUNTY COURT
HIS HONOUR JUDGE BARRATT QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Dirk Van Heck (instructed by Messrs George Ide, Phillips) for the Appellant
Mr Marc Living (instructed by Messrs Staffurth & Bray) for the Respondent
Introduction
This is an appeal by Miss Fowler from the order of HHJ Barratt QC dated 19 April 2007 declaring that the property, which was registered in joint names and in which they had lived together for about seventeen years, belonged beneficially to Mr Barron, her former partner. The issue is whether the judge made any error of law. He sought to apply the judgment of this court in Stack v Dowden [2006] 1 FLR 254, which has since been affirmed on different grounds by the House of Lords in Stack v Dowden [2007] 2 AC 432.
Background
As often occurs in a case of this kind, the facts as found or appearing from the evidence in this case are not detailed, and in themselves raise many issues. The court however must just do the best it can on the evidence that the court has and the inferences that may properly be drawn therefrom.
The parties had had an unmarried relationship for 23 years from 1983 to 2005, when they separated. The relationship began when Miss Fowler was only seventeen. Mr Barron was then forty-seven years old. He was at that stage a fireman. In 1985, he retired on the grounds of ill-health and was subsequently in receipt of a pension.
In 1988, Mr Barron was discharged from the fire service for medical reasons and he and Miss Fowler decided to move to Bognor Regis. On 30 June 1998, they bought the freehold interest in 10 Arun Road, Bognor Regis, West Sussex (registered title no. WWS64761) (“the property”) for £64,950 to provide a home for themselves and their son, Nicholas, born 23 September 1987. The parties made a conscious decision to put the property into joint names but they did not take any legal advice as to the consequences of doing so. There was no discussion or agreement between them as to how the property should be held. On 23 September 1994, their daughter, Sarah, was born. It was also common ground before the judge (1) that Mr Barron paid the deposit on the property; (2) that a mortgage of £35,000 was taken out in the parties' joint names to help fund the balance of the purchase price and acquisition costs; (3) that Mr Barron paid the balance of the purchase price out of the proceeds of sale of his flat, where the parties had presumably been living prior to the move to Bognor Regis; (4) that Mr Barron paid the mortgage instalments out of his pension; (5) that the parties never had a joint bank account; and (6) that Mr Barron paid the direct fixed costs of the property such as the council tax and utilities' bills.
The transfer document dated 30 June 1988 did not contain any declaration of trust but stated that the survivor of Mr Barron and Miss Fowler could give a valid receipt for capital money arising on the disposition of the property. The transfer document was not signed by the parties though it clearly ought to have been as it contained an indemnity from them in the vendors' favour. On the face of it, the declaration confirmed that the parties intended that they should be joint tenants in equity. However, it was common ground before the judge that this declaration was not dispositive in this case. A similar declaration was present in Stack and the House of Lords held that it was of no significance unless the parties understood its effect.
The judge accepted the evidence of Mr Barron that, when he agreed to the property being registered in joint names, he intended that the property would become Miss Fowler's home and sole property by way of survivorship only in the event that he were to die before she did. He formed this intention on the footing that they would continue to live together, and indeed, at the time of giving evidence at least, he found it difficult to accept that she had decided that they should now part. The judge also accepted his evidence that the reason why the property was put into joint names was only so that she should benefit in the event of his prior death. The judge did not refer to the fact that, according to the evidence of Mr Barron, shortly after they bought the property, he and Miss Fowler executed mutual wills each leaving the interest in the property to the other. That evidence suggests that he did not think that she would otherwise inherit his share of the property and also that he thought that she also had a share of the property which she could devise by will in his favour.
Mr Barron paid the mortgage payments and the other outgoings out of his pension. Miss Fowler worked for much of the period of the parties' cohabitation although she did not work for some time after the birth of Sarah. She told the judge that Mr Barron paid for most things including the weekly shop. Mr Barron cared for the children while she was at work. The judge found that, with the exception of some money that she saved, she always spent her income on herself and the children. She met additional expenditure for such day-to-day costs as miscellaneous items of food, seasonal gifts, school clubs and trips, some personal clothing, holidays and special occasions as she deemed appropriate and necessary. These included items for the children as well as herself.
After the relationship broke down the parties continued living in different households in the property. In June 2006, the value of the property was estimated at £150,000 approximately.
Judgment of the judge
As regards Miss Fowler's income, the judge held at [11] of his judgment as follows:
“Because the respondent paid all the essential outgoings of his pension, the applicant kept all her net income, child benefits and other receipts to spend as she wished and when she chose.”
Miss Fowler contended that the fact that she paid these items enabled Mr Barron to build up savings and the judge recorded this submission without rejecting it (judgment, [17]).
The judge then directed himself in accordance with this court's decision in Stack and set out [25], [52] and [55] of the judgment of Chadwick LJ, with which both Carnwath LJ, who also gave a short concurring judgment describing recent work done by the Law Commission of England and Wales, and Smith LJ agreed. Of those passages, [55] concerns the declaration in the transfer, which the judge found had no bearing on this case (and the contrary has not been suggested on this appeal). In the earlier paragraphs cited by the judge, Chadwick LJ made a number of points but among them was a point taken from an important earlier decision of his in Oxley v Hiscock [2005] Fam 211 as follows:
“…in the case where the evidence is that there was no discussion [of the question as to the extent of the parties respective beneficial interests in the property] the question still requires an answer. It must now be accepted (at least in this court and below) that the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property…..”
In the House of Lords in Stack, Baroness Hale, with whom the Lords Hoffmann, Hope and Walker agreed, cited this passage but preferred the view that the search was to find what the parties, in the light of their conduct, were to be taken to have intended ([61]).
The judge then held as follows (italics added):
“22. I find myself in the light of the written submissions in this case driven to the conclusion the claimant is entitled to no beneficial interest in this case. Although where a property has been transferred into joint names, it can usually be taken for granted what each party intended, namely that they would have some beneficial interest in the property, in the absence of any express declaration of trust in this case, I have to concentrate on how the purchase money was actually provided.
The inference will be likely to be, where it is provided by the two parties in unequal amounts, the principles governing the creation or operation of resulting implied and constructive trusts apply and each legal owner should be beneficially entitled as between themselves in the proportions in which they provided the purchase money.
It may be deduced in a case where both names were on the mortgage deed that they were acting on an understanding at purchase that the applicant should become entitled to a share which would not be quantified immediately. The precise proportion it can be assumed by inference on all the facts would be left to be determined when the mortgage was paid or the property disposed of, if this preceded the death of one of them. It was agreed that the share would be determined on the basis of what would then be fair having regard to the total contributions direct and indirect, which each partner had made by that date (see Lord Diplock in Gissing 1971 AC 886 at 909D-E).
I am satisfied on the evidence in this case however and having regard to what occurred throughout their relationship that there was no actual common intention to share the property in equal beneficial shares. No such intention was expressed or ever communicated in this case. Whatever either of them thought about the issue at the time of transfer, nothing was ever said.
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Case Note
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