Mr Kenneth Thomas v Ms Deborah Porter
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] EWHC 983 (KB) |
| Docket Number | Case No: QA-2021-BHM-000008 |
| Court | King's Bench Division |
[2023] EWHC 983 (KB)
Mr Justice Freedman
Case No: QA-2021-BHM-000008
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared without legal representation
Annie Townley (instructed by Rees Page Solicitors) for the Respondent
Hearing dates: 17 January 2023
Approved Judgment
This judgment was handed down remotely at 12noon on Friday 28 April 2003 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
I Introduction
Following a judgment of HH Judge Shetty dated 24 August 2021, Mr Kenneth Thomas (“the Appellant”) appealed against the rejection of his claim against his former partner Ms Deborah Porter (“the Respondent”), The claim in the Particulars of Claim was for a declaration that there was a trust in respect of a property [REDACTED] (“the Property”) owned in law by the Respondent by reason of an agreement, arrangement, or common understanding between the parties. There was no alternative plea in the prayer for relief for the repayment of a loan or for subrogation. There was an alternative claim for repayment of a loan or for subrogation in para. 9c of the Reply, but the Judge decided not to allow such claim because it was not a part of the Particulars of Claim, it was not adequately particularised and its admission at this stage would cause prejudice to the Respondent.
II Summary of claim
The parties were involved in a relationship. It began in November 2015. In December 2016, the Respondent moved into the Property. In January 2017, the Respondent made an application to buy the Property with a right to buy discount. She applied for a mortgage from HSBC in her sole name. In October 2017, the Respondent purchased the Property in her sole name, using the mortgage in her own name. In May 2018, the Appellant sold his home at [REDACTED] for a sum of £57,000 and also received a sum in settlement of an insurance claim in a further sum of £17,000 in connection with an adverse coal mining search. Upon receiving these moneys, the Appellant transferred to HSBC the sum of £40,373.01 with reference to the Respondent's mortgage, as a result of which the Respondent's mortgage was paid off.
In about late April 2019, the relationship of the Appellant and the Respondent broke down and the Appellant left the Property. On 20 December 2019, a letter before action was sent by George Green LLP solicitors on behalf of the Appellant to the Respondent claiming that the advance was repayable on demand on the termination of the relationship. On 19 June 2020, a claim was issued on the basis of a claim that there had been an express or a constructive trust as a result of which the Appellant had a proprietary interest in the Property.
At trial, a preliminary issue was raised by counsel for the Respondent in her skeleton argument that the claim was restricted to a claim for a declaration of trust. The Reply had referred to an alternative claim for subrogation and repayment of monies paid by way of a loan. The Respondent's counsel submitted that:
(i) This was an attempt to introduce claims against the Respondent by way of a reply and that that was not the correct vehicle: see CPR PD 16 para 9.2 which required such a claim to be in the Particulars of Claim in circumstances where they contradicted an earlier pleading;
(ii) The claim for a loan in the Reply contradicted the claim for a declaration of trust in the Particulars of Claim.
In the judgment, the Judge accepted that submission. He also said that the plea of a loan in any event contained inadequate particularisation of the claim such as would make it very difficult for the Court to consider the validity of the claims. The Judge therefore ruled that he would only consider the claim for a constructive trust: see the judgment at paras. 8–9.
The application for permission was first considered by Mr Justice Cotter on 1 April 2022. He considered that a transcript of the proceedings should be filed, and then that the papers should be placed before a High Court Judge for consideration of permission. The Judge in his observations said that having considered the central dispute of fact, the Judge decided that the payment was a gift. He then considered the matters of complaint, namely (a) not allowing the Appellant to adduce a non-molestation order (not relevant to the pleaded issues), (b) not treating the Appellant as a victim of “financial abuse” (no case advanced of duress, undue influence or lack of capacity, and so mental impairment was not relevant, (c) lack of evidence from Mr Sheldon (the Judge was entitled to consider the matter on the evidence before him), (d) the relevance of the visit to the solicitors (this was relevant to the respective cases of the parties), (e) comments about costs (this had no impact on the parties' findings), (f) the Respondent's evidence said to be protracted, irrelevant, hurtful and aggressive (no arguable ground of appeal), and (g) a capricious change of mind on the part of the Judge in sending the parties out to consider settlement on the basis that the Appellant was going to get his money back and/or on the basis of comments that the mortgage redemption was not a gift (Mr Justice Cotter said that this was to be considered in the light of the transcript, to which this judgment will return). Mr Justice Cotter found that the first six points were not arguable, and that the seventh point could not be decided without the transcript. In the event, Mr Justice Cotter made no decision in respect of any of the points canvassed on permission, but simply expressed his views at that point in time.
The transcript was obtained. Mr Justice Ritchie considered permission. With his permission dated 23 July 2022, the Appellant has permission to appeal the judgment “in relation to the decision to exclude the loan claim and repayment thereof and any evidence relating to that”. In his reasons, Mr Justice Ritchie (at [11]) said as follows. “I am troubled by excluding a litigant in person from running his alternative case just because it is in the wrong document when counsel (maybe instructed by solicitors or maybe on DPA) put it there in the first place not the litigant and as far as I can tell the point was only raised at trial. The defendant was aware of the alternative claim from the date of service of the reply. [29 August 2020 almost a year prior to trial on 16 and 17 August 2021]”
Mr Justice Ritchie added at [12–13]:
“[12] Having refused to hear evidence relating to a loan the judge only heard evidence relating to the asserted express or constructive trust (the Claimant's case) or gift (the Defendant's case).
[13] I am concerned that this was potentially procedurally unfair and despite the high threshold I grant permission to appeal on the basis of exclusion of the claim for the payment loan being potentially unfair.”
Although Mr Justice Ritchie believed that the decision on the ‘preliminary issue was made at the outset of the trial in the usual way, in fact, the decision not to permit the loan claim to proceed was made after the conclusion of the evidence. Although the point had been raised in the Respondent's skeleton written argument, it was the subject of oral submission only after the evidence had been heard, and the ruling was in the final judgment at paras. 8–9. It follows that the Court did hear all the evidence and then only ruled thereafter to exclude the loan claim.
The extent of permission was not entirely clear, given the decisions of Mr Justice Cotter and Mr Justice Ritchie. The latter decision did not refer to the former decision or to the transcript. Confirmation was sought promptly on 25 July 2022 by the Respondent's solicitors as to how the two documents were to be treated. Having communicated with Mr Justice Ritchie, it was confirmed by the Court on 12 August 2022 that the operative document was the permission granted by him. It was at this point that the Respondent was able to consider the extent of the permission, and it has treated that date as the operative date for the 14 day period for service of a Respondent's Notice. No point has been taken about that, and if it had been necessary to seek relief from sanctions for delay in the Respondent's Notice, I should have held that there was no serious or significant breach and/or that there was a good excuse.
It is still not clear what was the extent of the permission granted. Permission was granted in respect of the exclusion of the loan claim. There was nothing wrong found about the encouragement of the Judge to the parties to settle at the late stage. The various grounds in the skeleton argument were held not to focus on the issues: they were confused and unclear: the vulnerable adult point had not much or any relevance. The complaint was that the Appellant wanted his money back. At [22], Mr Justice Ritchie said: “I grant permission on the basis set out above in relation to the decision to exclude the loan claim and repayment thereof and any evidence relating to that”.
That appears to be the full extent of the permission granted, and there does not appear to have been permission granted in respect of the decision to reject the proprietary claim.
III The pleadings
It is necessary to consider the pleadings in some detail. The Particulars of Claim contain various formulations giving rise to a proprietary interest in the appellant. They comprise an express trust (para. 18), an implied constructive trust (para. 19) and a proprietary or other estoppel (para 20). Although there was no express plea of an agreement of loan, para. 11 did plead the following:
“The agreement between the parties was that the mortgage would be...
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