The Crown Prosecution Service v Graham Piper Janet Piper (Intervener)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE HOLMAN
Judgment Date07 December 2011
Neutral Citation[2011] EWHC 3570 (Admin)
Docket NumberDTA/25/1999
Date07 December 2011

[2011] EWHC 3570 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Holman

DTA/25/1999

Between:
The Crown Prosecution Service
Applicant
and
Graham Piper
Respondent

and

Janet Piper
Intervener

Mr J Dennison (instructed by the Crown Prosecution Service) appeared on behalf of the Applicant

The Respondent represented himself

Mr M Warwick (instructed by Hughmans Solicitors) appeared on behalf of the Intervener

The issues

1

I will call Graham Jason Piper "Graham" or "the husband", and Janet Elizabeth Piper "Janet" or "the wife".

2

On 19 December 2008, a criminal confiscation order was made against the husband in the sum of £690,000, none of which has been paid. With interest, the amount now owing exceeds £825,000.

3

On 16 December 2010, on the application of the Crown Prosecution Service, this court appointed a receiver over the assets of the husband to collect and sell enough of the assets to pay the confiscation order. The only known remaining asset is a mortgage-free property known as Heathfields Farm, near Wickford in Essex. Its value has declined and it was most recently valued in March 2011 at £580,000, which is of course now nowhere near enough to satisfy the confiscation order. Heathfields Farm is registered in the husband's name alone. The wife, who remains married to the husband and lives with him at Heathfields Farm, claims that she is beneficially entitled to one half.

4

On 16 December 2010, at the same time as making the receivership order, this court gave directions for a trial of the issue raised by the wife and meantime stayed the power of sale in the receivership order. This is that trial. I have to decide three issues: (i) does the wife have any beneficial interest in Heathfields Farm? If so, (ii) what is the present size of that interest? And also, (iii) should the power of sale be postponed for a further short period to enable the wife to buy out the husband's interest? I will consider issue (iii) after hearing further submissions after this judgment, when the size of her existing interest, if any, is known.

5

Unsurprisingly, the husband, who has acted in person at the present hearing, fully supports the application and position of his wife. It is obvious that they both strongly hope that I will hold that the wife already has a 50 per cent interest; that she will able to buy his interest out; and that they will both be able to continue living there as their home and as the place where they continue to conduct an equestrian business.

6

The husband was convicted of grave drug dealing, and lied throughout not one, but two long trials, in which he gave evidence and throughout which he maintained his complete innocence. These facts, coupled with the fact that the spouses make common cause, mean that I need to scrutinise their accounts and the evidence with particular care. It would be so easy for them now to concoct a common story as to their intentions and understandings now many years ago in the early to mid-1990s. What might in other circumstances be against the interests of the husband now serves him well. That consideration, however, affects only the scrutiny of the evidence. I agree with Mr Mark Warwick, who appears on behalf of the wife, that the answer to issues (i) and (ii) above is the same whatever the context in which the issues arise for determination. The answer is the same whether the husband and wife are pitted against each other in bitter conflict, or are ranged together in opposition to the CPS. As Mr Warwick said, the CPS can only make a claim against what the husband now has, and the legal analysis, including any consideration of what is the fair size or percentage of any interest to which the wife is entitled, must be the same however the question arises.

The legal framework

7

In the last 40 years or so since Pettitt V Pettitt [1970] AC 777 this area of our law has been the subject of a long stream of authority, much of it from the very highest level. Every time lawyers may think they have heard the last and definitive word on the topic, another major authority seems to emerge. Most recently the Supreme Court has spoken in Jones v Kernott [2011] UKSC 53, in which judgments were given only a month ago on 9 November 2011. That being so, both counsel have been very sparing in their reference to earlier authority and indeed have agreed upon the following framework, which it is convenient to state at the outset. I will not keep repeating much reference to the law. The following are the principles which I have firmly in mind throughout, and which I will apply:

8

(1) The starting point is that equity follows the law, and that the beneficial interest is held by the husband who is the sole registered owner of Heathfields Farm. The burden of proof is upon the wife to displace that presumption or starting point on the balance of probability.

9

(2) The court should first ask: was it intended by the husband and the wife, as a common intention, that the wife should have any beneficial interest in Heathfields at all? ( Jones v Kernott, paragraph 52, third sentence).

10

(3) Their common intention is to be deduced objectively from their conduct ( Jones v Kernott, paragraphs 51(3) and 52, sixth sentence). The short passage from Gissing v Gissing quoted with approval in Jones and Kernott at paragraph 51(3) applies, and paragraph 69 of Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 is also illuminating.

11

(4) In answering the question identified at (2) above, if the wife has made some financial contribution referable to the transfer of Heathfields Farm to the husband, it can readily be inferred that it was intended that the wife should have a beneficial interest in that property ( Stack v Dowden, paragraph 61, fourth sentence).

12

(5) If it is decided that the wife does have a beneficial interest in Heathfields, and the court can also deduce a common intention as to the size of that interest by direct evidence or by inference, then that is the wife's interest.

13

(6) If it is not possible to ascertain by direct evidence or by inference what the common intention as to the size of that interest is, then the size of that interest is that which the court considers fair having regard to the whole course of dealing between husband and wife in relation to Heathfields Farm. The whole course of dealing in relation to that property is to be given a broad meaning ( Jones v Kernott, paragraphs 52, seventh sentence, and 51(4)) and the law has moved on from what Lord Bridge of Harwich said in Lloyds Bank v Rosset [1991] 1 AC 107 at 132-133 (see Abbott v Abbott [2007 UKPC 53, paragraphs 5,6 and 19).

14

In relation to proposition (6) in particular (if I reach that point), that which is "fair" does not depend on the context in which the court is required to determine it. Consideration of what is fair cannot depend on whether this was contested litigation between the husband and the wife, or between the husband and the wife on the one hand and the CPS and the interests of the state in confiscating the proceeds of crime on the other.

The essential facts

15

The essential and factual framework, which is either agreed or not disputed by the CPS, is as follows. The husband was born in 1948 and is now aged 63. He is a shrewd, intelligent and dynamic man who ultimately squandered his talent. He has had a varied career, first as a police officer; then in international haulage and trade; then, with considerable success, in racehorse ownership and training, and in gambling; and finally (before his arrest and imprisonment) in attempted drug importation.

16

In 1982, he married, as his second wife, a lady called Suzanne. In September 1986, the property at Heathfields Farm, Wickford was purchased. It consisted of a bungalow and about 10 to 12 acres of land. It cost £175,000. The husband paid the whole of the purchase price but the transferee who was registered as the legal owner was Suzanne Piper. The husband and Suzanne lived there together as their home.

17

In October 1987, the husband first met Janet Garwood. Janet was born in 1956 and is now aged 55. They had a common interest in horses, but there is no evidence of any romantic or intimate relationship at that time. Janet and her then husband, Peter Garwood, separated in about June 1989 and were later divorced in 1991. The relationship between Graham and Janet did become romantic during 1990, and the marriage between Graham and Suzanne, already rocky, completely broke down in 1991 or 1992. Graham moved out from Heathfields Farm and went to live with Janet.

18

In 1993, the husband did a deal with Suzanne whereby he was to produce money for her with which to buy a new home for herself, and he was to acquire Heathfields Farm. Suzanne found a house called Peacehaven in Ulverston Road, Ashingdon in Essex. After a great deal of confusion in the early stages of this hearing and the subsequent production of more documents, I am now satisfied that Suzanne actually bought from the vendors the house and site known as Peacehaven and also a separate but neighbouring piece of land (which she hoped might have development potential) on the other side of Ulverston Road.

19

Suzanne (now Miss Suzanne Sheldrake) attended this hearing and gave oral evidence, which I considered to be entirely truthful, as best as she can remember details from so relatively long ago. In the upshot, I am satisfied that she paid altogether a total of £125,000 or thereabouts for both the Peacehaven site and the neighbouring land. She borrowed £25,000 on a mortgage...

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