Oxley v Hiscock

JurisdictionEngland & Wales
JudgeLORD JUSTICE JONATHAN PARKER,Lord Justice Chadwick,Lord Justice Mance,Lord Justice Scott Baker
Judgment Date06 May 2004
Neutral Citation[2003] EWCA Civ 1902,[2004] EWCA Civ 546
Docket NumberCase No: B2/2003/1222,B2/2003/1222
CourtCourt of Appeal (Civil Division)
Date06 May 2004
Elayne Marian Teresa Oxley
Allan George Hiscock

[2003] EWCA Civ 1902


Lord Justice Jonathan Parker






MR CHRISTOPHER WAGSTAFFE (instructed by The Parry Sharratt Partnership, Kent CT5 1DE) appeared on behalf of the Appellant

The Respondent did not attend and was not represented

(Approved by the Court)

Friday, 5 December 2003


This is an application by Mr Hiscock, the defendant in the proceedings, for permission to appeal against an order made by Her Honour Judge Hallon in the Bromley County Court on 16 May 2003 whereby she declared that Mr Hiscock and Mrs Elayne Oxley, the claimant in the proceedings, were equally beneficially interested in a property known as 35 Dickens Close, Hartley, Kent, and that Mrs Oxley was accordingly entitled to one half of the net proceeds of the sale of that property. The judge refused permission to appeal.


Mr Hiscock appears on this application by Mr Christopher Wagstaffe of counsel.


The factual background to the dispute is in summary as follows. In 1985 Mrs Oxley was living with her three young sons in local authority accommodation in Chatham. She had separated from her husband. Mr Hiscock, whose marriage had also come to an end, was living in Walderslade in a property which he owned.


In about March 1985 Mrs Oxley and Mr Hiscock met, and thereafter a relationship developed between them. In about May 1986 Mrs Oxley exchanged her tenancy in Chatham for a tenancy of another local authority property at 39 Page Close, Bean, near Dartford. In November 1986 Mrs Oxley initiated the procedure for exercising her statutory right to buy the last-mentioned property ("the Bean property"). Since she had been a local authority tenant for a number of years, she was entitled to a substantial discount on such a purchase. The purchase was completed in September 1987. The Bean property was valued at £45,000 on the open market, but the discounted purchase price was fixed at only £25,200; there was, therefore, a discount of almost £20,000. The Bean property was transferred into the sole name of Mrs Oxley, since it was she who was exercising the statutory right to buy. The purchase price, £25,200, was financed entirely by Mr Hiscock from the sale of his Walderslade property. He took a charge over the Bean property to secure that advance.


For most of the year 1990 Mr Hiscock was in Kuwait. However, he returned to the UK in December 1990 and thereafter lived with Mrs Oxley at the Bean property. He had lived with her at that property during his period of leave whilst working in Kuwait.


In 1991 the Bean property was sold for £65,000 and the whole of the net proceeds was invested in the Hartley property. The Hartley property was registered in Mr Hiscock's sole name and was subject to a commercial mortgage.


Thereafter Mr Hiscock, Mrs Oxley and her three children lived together at the Hartley property. In the early part of 2001 the Hartley property was sold for £232,000. The property was by that time free of mortgage. Shortly thereafter Mrs Oxley and Mr Hiscock separated.


In the action Mrs Oxley seeks a declaration that she is entitled to an equal half share in the Hartley property, on the basis that it was at all material times the joint intention of herself and Mr Hiscock that they should share equally in that property. As it is put in her summary of case:

"The Claimant's case is that during the period of cohabitation the parties pooled all their resources. This was done, the Claimant argues, because the parties intended that there would be a complete sharing of their financial circumstances."

For his part, Mr Hiscock contends that the parties' respective beneficial interest in the Hartley property —and he acknowledges that Mrs Oxley is entitled to such a beneficial interest —should be quantified on a resulting trust basis, that is to say by reference to their respective financial contributions towards the purchase of that property.


On that footing Mr Hiscock contends that Mrs Oxley is entitled to a beneficial interest of some 20 per cent in the Hartley property. There is, therefore, some £75,000 at stake in the action.


The judge began her judgment, after reciting the non-contentious background as I summarised it, by referring to authority. She referred first to the Court of Appeal decision in Springette v Defoe [1992] 2 FLR 388 at 395, where Steyn LJ emphasised that an inferred intention as to ownership would have to be communicated at the time of the acquisition of the property in question. He stressed that the law must concentrate on manifested and communicated intentions. The judge then referred to another Court of Appeal decision, Midland Bank Ltd v Cooke [1995] 2 FLR 915. She quoted passages from the judgments of Waite LJ in that case. Having done so, she said this, at the conclusion of paragraph 17 of her judgment:

"It could not be clearer therefore that the proper approach of a court to a dispute of this nature is that when there is no express agreement between the parties the court must look to the whole course of dealings to infer what the agreement between those parties was."

Mr Wagstaffe, in his helpful submissions this morning, has referred me to the judgment of Waite LJ in Midland Bank v Cooke (at page 926F-G) where Waite LJ says, after referring to Gissing v Gissing and Grant v Edwards:

"… the duty of the judge is to undertake a survey of the whole course of dealing between the parties relevant to their ownership and occupation of the property and their sharing of its burdens and advantages." [emphasis supplied]

The judge then turned to the evidence which she had heard, concluding that on matters of disputed fact she preferred the evidence of Mrs Oxley to that of Mr Hiscock. In paragraph 23 of her judgment she found that Mrs Oxley had allowed the property to be transferred into Mr Hiscock's sole name since she trusted him, believing that:

"…despite what was shown on the face of the conveyance, that in no way actually altered the reality of the situation and their sharing of the property."

The judge went on to say in paragraph 26 of her judgment:

"…the transfer of the tenancy from Chatham to Bean was the beginning of putting into effect a long-term plan. That is not simply to live together, but to acquire a property through purchase with the advantageous discount available to a council tenant, with a view subsequently to moving on to better accommodation. Each made substantial contributions to the purchase of the Bean property, and it is clear that the long-term plan had been for selling and upgrading, because the sale of Bean and the purchase of Hartley happened very, very soon after the defendant's return from Kuwait; in other words, at a time when the family would in the future be living on a permanent basis all together. Thus, Hartley was as much a joint property as Bean had been…"

Later in her judgment the judge referred a number of times to this long-term plan.


She then turned to the reasons for the breakdown in the relationship between the parties. She concluded as follows (in paragraph 31 of her judgment):

"But from the analysis of the law and the facts in this case, it is clear that the order which the claimant sought in her notice of application is the only one that can properly be made, namely to declare that the claimant is equally entitled, with the defendant, to a half share in the proceeds of sale of the Hartley property…"

The judge ordered accordingly.


Mr Wagstaffe submits that the judge adopted a wrong approach to the factual investigation which she had to undertake in addressing the issue as to the relative beneficial interest of the two parties in the Hartley property. She submits that the approach which the judge took was far too wide, being consistent more with an approach to be adopted in matrimonial proceedings than in proceedings concerning property rights.


Mr Wagstaffe submits that the judge misinterpreted the judgment of Waite LJ in Midland Bank v Cooke in that she gave no weight to the words which I placed in italics in the quote which I gave earlier from that judgment. He pointed to various extracts of the judgment in the instant case in which the width of the judge's approach can clearly be seen. He directed me, in particular, to observations which the judge made as to the development of the law in this area in the latter part of paragraph 14 of her judgment, where she said this, with reference to Springette v Defoe:

"… Springette v Defoe quite clearly does not fit happily into the reported authorities which have developed this area of the law quite considerably from the early days, and when I say early days I am taking as a starting point Gissing and Pettitt (which were early 1970s the development of the law from then on, and as it even) [probably a mistake but the bracket closes after the word 'even'] with some tweaks and alterations, continues to develop even up to very recent times."

Mr Wagstaffe submits that in that passage the judge fails to pay due recognition to the legal principles established by the House of Lords in relation to property rights. Indeed he submits that if there is a disparity between two lines of authority, one exemplified by Springette v Defoe and the other by Midland Bank v Cooke, then it is the Midland Bank v Cooke line of authority which is at odds with the Springette v Defoe line rather than vice versa.


At all events Mr Wagstaffe...

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