Taking a Witch's Brew and Making a Consommé Lord Neuberger's Dissent in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432

AuthorChristopher Kirkbride

Lord Neuberger’s Dissent in

Stack v Dowden [2007] UKHL 17, [2007] 2 AC 4321 Christopher Kirkbride

12.1 Introduction and background 214
12.2 Facts 216
12.3 Course of the litigation 217
12.4 Decision of the majority 217
12.5 Lord Neuberger’s dissent 222
12.6 Presumption of a resulting trust 228
12.7 Express, inferred and imputed 231
12.8 Conclusion 235

Offset against the value of certainty, the dissent can be regarded in a positive light as being not merely a matter of personal choice but of great institutional significance encapsulating as it does fundamental political values associated with democracy.2

1 The inspiration for this chapter’s title comes from the judgment of Carnwath LJ when Stack v

Dowden visited the Court of Appeal ([2005] EWCA Civ 857). The full quote is illustrative of, first, judicial frustration, but also the lamentable lack of clarity in this area of law. It reads, ‘To the detached observer, the result may seem like a witch’s brew, into which various esoteric ingredients have been stirred over the years, and in which different ideas bubble to the surface at different times. They include implied trust, constructive trust, resulting trust, presumption of advancement, proprietary estoppel, unjust enrichment, and so on. These ideas are likely to mean nothing to laymen, and often little more to the lawyers who use them’, at [75].

2 Alder, J, ‘Dissents in Courts of Last Resort: Tragic Choices?’, (2000) 20(2) Oxford Journal of

Legal Studies 221, at p 222.

214 Part III – Equity and Property Law


English law makes clear provision for the resolution of disputes as to ownership of the family home if one falls into a category of relationship recognised by the state as being worthy of special treatment. Married couples, when divorcing, may appeal to the extensive powers under the statutory scheme provided by the Matrimonial Causes Act 1973, s 23, and civil partners enjoy a similar provision on the dissolution of their partnership under the Civil Partnership Act 2004, Sch 5, para 2. But for those who fall into neither category, meaning the parties are unmarried heterosexuals or same-sex without civil partnership,3 any division of the principal asset, the joint home, falls to be considered by the evolved principles of the English law of real property, supplemented by the law of trusts. However, even within this area of law, there are things that this category of people could have done to formalise their relationship.

For example, where a conveyance is accompanied by an express declaration of trust,4 such declaration is ‘conclusive unless varied by subsequent agreement or affected by proprietary estoppel’.5 Further, as indicated by Baroness Hale in her speech in Stack v Dowden, the TR1 conveyancing form has been amended to include a declaration that the parties, where property is jointly conveyed, hold the property as joint tenants, as tenants in common in equal shares, or as tenants in common in unequal shares, a space being provided for a statement as to the division of beneficial ownership.

But for parties falling outside the statutory schemes, or for those who have either not been advised to turn their mind to a declaration of an express trust, nor advised to tick the appropriate box on the TR1 form since its completion is

3 These are not the only fact patterns which might fall outside the statutory schemes, but are to be treated as the primary forms of relationship for the purposes of this chapter.

4 Complying as it ought with the Law of Property Act 1925, s 53(1)(b), which requires that a declaration of a trust of land must be evidenced (‘manifested and proved’) in writing and signed by ‘some person who is able to declare’ it, failure to do so rendering the declaration unenforceable, i.e. where it is an oral declaration. Although, for an interesting discussion of the effect of the wording of the sub-section, and the case of Gardner v Rowe (1828) 5 Russ 258, see Penner, J, The Law of Trusts (Oxford University Press, 7th edn, 2010), paras 6.8–6.10.

5 Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 at [49], per Baroness Hale, citing

Goodman v Gallant [1986] Fam 106.

not mandatory,6 there remains only the option of establishing an interest by means of informal acquisition. This informal acquisition might take many forms, namely the presumption of a resulting trust, the type 1 and 2 constructive trusts,7 or the doctrine of proprietary estoppel.

Many of the cases which developed the law over the last 30 or so years were often concerned with those situations where there was one legal owner (having both legal and beneficial ownership), and a non-legal owner – who was more often than not, female – seeking to establish an interest in equity under an implied trust. Where Stack v Dowden differed was that the case concerned two legal owners and a dispute as to the proper assessment of their respective beneficial ownership.

6 Judicial desperation in this respect is acutely demonstrated in the judgment of Ward LJ in

Carlton v Goodman [2002] EWCA Civ 545 at [44], ‘The conveyancer who acted for these parties thought at one time that she had discussed with Mr Goodman whether or not he wished to declare their beneficial interest in the conveyance and record that they held as joint tenants, the rules of survivorship having been explained to him. When she gave evidence she eventually concluded that she did not have any such discussion with Mr Goodman and the judge had no hesitation in concluding that no such discussion had taken place … I ask in despair how often this court has to remind conveyancers that they would save their clients a great deal of later difficulty if only they would sit the purchasers down, explain the difference between a joint tenancy and a tenancy in common, ascertain what they want and then expressly declare in the conveyance or transfer how the beneficial interest is to be held because that will be conclusive and save all argument. When are conveyancers going to do this as a matter of invariable standard practice? This court has urged that time after time. Perhaps conveyancers do not read the law reports. I will try one more time: ALWAYS TRY TO AGREE ON AND THEN RECORD HOW THE BENEFICIAL INTEREST IS TO BE HELD. It is not very difficult to do’. Further, and more recently, to compound Ward LJ’s frustration, Wall LJ in Kernott v Jones [2010] EWCA Civ 578 at [61], ‘I described this case as a cautionary tale. So, in my judgment, it is. The purchase of residential accommodation is perhaps the single most important financial transaction which any individual transacts in a lifetime. It is therefore of the utmost importance, as it seems to me, that those who engage in these transactions, and those who advise them, should take the greatest care over such transactions, and must – particularly if they are unmarried or if their clients are unmarried – address their minds to the size and fate of the respective beneficial interests on acquisition, separation and thereafter. It is simply impossible for a court to analyse personal transactions over years between cohabitants, and the costs of so doing are likely to be disproportionate in any event. Cohabiting partners must, it seems to me, contemplate and address the unthinkable, namely that their relationship will break down and that they will fall out over what they do and do not own’.

7 For the formulation, see the speech of Lord Bridge in Lloyds Bank plc v Rosset [1991] 1 AC


216 Part III – Equity and Property Law

12.2 FACTS8

Barry Alan Stack and Dehra Ann Dowden began a relationship in 1975. The respondent purchased a house in her sole name in 1983 (‘the 1983 property’). She paid the deposit from her savings, and made the mortgage repayments out of her income. However, the parties made joint improvements and alterations to the property such that when it was sold in 1993, it reached a value three times the original purchase price.9 With the proceeds of sale, a second house purchase was made (‘the 1993 property’). On this occasion, the property was conveyed into their joint names, but there was no accompanying declaration of trust. A deposit of approximately 67% of the purchase price came from Dowden’s savings, which included the profits made on the 1983 property, while the balance was secured by a mortgage and two endowment policies, one in their joint names and the other in Dowden’s sole name. The mortgage interest and joint endowment payments were made by the appellant. The capital of the mortgage was repaid by a series of joint lump sum payments, Stack contributing £27,000, Dowden £38,435. Although joint owners of the home, they maintained separate bank accounts, investments and savings. By the time the parties separated in 2002, the relationship had produced four children. The family home (the 1993 property), the parties’ principal asset, was sold in November 2005 for £750,000. The legal issue, as framed by Baroness Hale, was as follows:

... whether a conveyance into joint names indicates only that each party is intended to have some beneficial interest but says nothing about the nature and extent of that beneficial interest, or whether a conveyance into joint names establishes a prime facie case of joint and equal beneficial interests until the contrary is shown.10

The difficulties which gave rise to the litigation could easily have been settled had the parties, at the date of the conveyance in 1993, turned their minds to the issue of what would happen in the event of relationship breakdown. As this was not done, and the conveyance silent on the issue, the question for the court, a very narrow one, was whether ownership of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT