Thompson v Foy

JurisdictionEngland & Wales
JudgeTHE HONOURABLE MR. JUSTICE LEWISON
Judgment Date20 May 2009
Neutral Citation[2009] EWHC 1076 (Ch)
Docket NumberCase Nos: 7BM305000
CourtChancery Division
Date20 May 2009
Between:
Mrs Marion Mary Thompson
Claimant
and
Mrs Julie Ann Foy
Defendant
And Between:
The Mortgage Business
Claimant
and
(1) Mrs Julie Ann Foy
(2) Mrs Marion Thompson
Defendants

[2009] EWHC 1076 (Ch)

Before:

The Honourable Mr. Justice Lewison

Case Nos: 7BM305000

7PC06111

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BIRMINGHAM DISTRICT REGISTRY

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Soofi Din (instructed by Bryan & Armstrong) for the First Claimant.

Mr Benjamin Wood (instructed by Drydens) for theSecond Claimant.

Mrs Julie Anne Foy the First Defendant appeared in person.

Hearing dates: 23, 24, 25, 26, 27 March and 22, 23 April 2009

Approved Judgment

THE HONOURABLE MR. JUSTICE LEWISON

Mr Justice Lewison:

Introduction

2

Early years

3

Mr Thompson's death

5

A move to Spain?

6

A re-think

11

Legal advice

13

New instructions

21

Waiting for the mortgage

23

The mortgage comes through

24

The Spanish purchase

28

The issues

30

Mrs Foy's interest in Valley View

31

Undue influence

34

The law

34

Does a presumption arise?

36

Was there actual undue influence?

39

Overriding interest

42

Estoppel and consent

48

A charge over Mrs Foy's beneficial interest

49

The loan of £20,000

50

Introduction

1

On 22 January 2007 Mrs Julie Foy was registered as proprietor of Valley View, Hillside, Stretton, Alfreton in Derbyshire. On 5 April 2007 she granted a mortgage over the property to The Mortgage Business plc (“TMB”) which was in turn registered as proprietor of the charge on 10 April 2007. Mrs Foy's mother, Mrs Marion Thompson, claims that she is entitled to set aside the documents by which Mrs Foy came to be registered as proprietor of the property and that her right to do so has priority over the registered charge because it is an overriding interest.

2

Mr Soofi Din represented Mrs Thompson. Mr Benjamin Wood represented TMB. Although Mrs Foy had the benefit of lawyers in the early stages of the action, by the time of the trial (and for some months beforehand) she conducted her case in person.

3

The dispute to which the events have given rise has divided the family. Passions run high and emotions run deep on both sides. Resolution of the dispute depends to a large extent on resolving conflicts of evidence between the witnesses. Before embarking on the narrative I should say something about my approach. First, I have paid particular attention to contemporaneous documents. Where disputed oral evidence conflicts with contemporaneous documents I have tended to prefer the contemporaneous documents. There is one qualification to this. Mrs Thompson has for many years kept a diary. Most of what she records in it is relatively mundane. She records the daily weather and some of her domestic activities (washing, ironing, watching television) together with birthdays of family and friends. Sometimes she records visits and other appointments. Those are not always accurately dated, as has appeared from other written records. It does not purport to be a detailed record of her life. Indeed it records very little about the essential matters in dispute. Only a few pages of Mrs Thompson's diaries were disclosed initially, and those related only to the early part of 2007. However, when the original diary was produced part way through the trial, it became obvious that the entries in the original differed from those in the photocopy pages in the trial bundle. The only credible explanation (which Mrs Thompson refused to accept) was that she had gone over the diary after the relevant pages had been disclosed and copied and had altered some of the entries. Naturally this undermined to some extent the value of the diary as a contemporaneous written record. But Mrs Thompson did not rely on the alterations. A diary for 2006 was also produced for the first time during the trial. It is not possible to determine the extent to which it has been retrospectively altered. However, since it was not disclosed before trial, and was not something on which Mrs Thompson relied, there is less reason to treat it with suspicion. Second, I have placed weight on the evidence given by disinterested witnesses. Among these I single out for special mention Mr Mark Bilton. He is a solicitor who tried his best to get to the bottom of what it was that Mrs Thompson wanted to do and to ensure that she understood the consequences of the various options available to her. He was meticulous in his record keeping, and gave his evidence with authority. Third, I have had regard for what I believe to be the inherent probabilities. It is against this background that I have tested the disputed oral evidence.

4

Since much depends on the oral evidence I should also say something about the main witnesses:

i) Mrs Thompson was frequently belligerent and hostile. She was sometimes reluctant to answer straightforward questions. At times she became very angry in her answers. But equally she was at times overcome with emotion, particularly when speaking about her late husband. There were also occasions (such as the episode relating to the alteration of her diaries) when she adamantly refused to accept the obvious. She did not strike me as a person who would have been bullied or easy to dominate.

ii) Mrs Foy was an unimpressive witness. Her evidence was frequently contradicted by contemporaneous documents, and where that happened she was quick to accuse others of having misunderstood the reality of the situation. She too became very emotional at times.

iii) Mrs Swanborough's witness statement was relatively brief. She was willing to accept that there were inaccuracies in it. She gave her evidence well, although it is clear that she has taken her mother's side in this family dispute and has a very poor opinion of her sister.

5

I have approached the evidence of all these witnesses with caution. The narrative that follows contains my findings of fact and my more detailed observations about the evidence where the resolution of conflicts of evidence has been necessary.

Early years

6

Valley View was the family home. Mrs Thompson's late husband Frank had lived there since his childhood and when they married in 1957 it became their matrimonial home. Their two children, Mrs Foy and her elder sister Mrs Diane Swanborough, were born there, and spent their own childhoods there. Shortly after Mrs Foy herself got married she and her husband Steven Foy came to live at Valley View. The house had only two bedrooms, and they lived in a mobile home (or static caravan) on the site.

7

In 1996 Mr Thompson suffered a stroke which deprived him of the power of normal speech. He was still able to understand what was going on and remained mobile. Those who were close to him (including both Mrs Thompson and Mrs Foy) were able to understand him; and even though Mr Thompson used gestures and drawings as an aid to communication it often took a great deal of effort. Mr Thompson granted an enduring power of attorney in favour of Mrs Thompson. She used it to deal with matters such as Mr Thompson's pension and his disabled driver's licence.

8

While the caravan was used as an annexe to the main dwelling the local planning authority turned a blind eye. But as time wore on the caravan became a separate dwelling and in July 1997 the local planning authority issued an enforcement notice alleging a breach of planning control. Mrs Thompson filled in the form of appeal notice. She said in her grounds of appeal that Mrs Foy helped to look after her father and her grandmother who was then 93.

9

As a result of the issue of the enforcement notice the caravan had to be removed. By now Mr and Mrs Foy had four children. In order for Mr and Mrs Foy and their children to continue to live at Valley View different arrangements had to be made. After a discussion with Mr and Mrs Thompson it was decided that an application would be made for the building of a three-storey extension to the original house to accommodate Mr and Mrs Foy and their children. It was agreed between Mr and Mrs Foy on the one hand and Mr and Mrs Thompson on the other that the land on which the extension was built and the extension itself would belong to Mr and Mrs Foy. There was no formal agreement to this effect; nor any written record of it. But Mrs Thompson agreed in the course of her oral evidence that this agreement had been made. Her evidence was that Mr and Mrs Foy had been given the extension. Mrs Swanborough also agreed in her oral evidence that it was well understood in the family that the “bricks and mortar” of the extension belonged to Mr and Mrs Foy. With the help of Mr Austin, an architectural surveyor and family friend, plans were drawn up and submitted to the council for approval on 7 September 199Mrs Foy said that the agreement also included allocating to her and her husband a considerable quantity of the land comprised within Valley View in addition to the site of the extension. These claimed areas included the sites of a garage/workshop and a store. In my judgment it is inherently improbable that Mr and Mrs Thompson would have agreed this, and it is inconsistent with Mr Foy's subsequent conduct and with Mr and Mrs Thompson's wills. I do not accept Mrs Foy's evidence on this point; and I prefer that of Mrs Thompson and Mrs Swanborough.

10

On 21 October 1999 both Mr and Mrs Thompson made wills. Each was a mirror image of the other. Mr Thompson left his entire estate to Mrs Thompson and vice versa. Each will also dealt with the position in case there was no surviving spouse. Each will dealt with Valley View by providing that it was to be valued excluding the...

To continue reading

Request your trial
27 cases
2 books & journal articles
  • CONSTRUCTIVE TRUSTS AND DISCRETION IN AUSTRALIA: TAKING STOCK.
    • Australia
    • Melbourne University Law Review Vol. 44 No. 3, April 2021
    • 1 Abril 2021
    ...LJ); Liden v Burton [2016] EWCA Civ 275, [35] (Hamblen LJ); Davies vDavies [2015] EWHC 1384 (Ch), [55] (Jarman J); Thompson v Foy [2009] EWHC 1076 (Ch), [98] (Lewison J). In Jennings vRice [2002] EWCA Civ 159, Robert Walker LJ suggested in obiter that courts could take into account '(to a l......
  • The Role and Meaning of 'Occupation' in Schedule 3, Paragraph 2 of the Land Registration Act 2002
    • United Kingdom
    • Southampton Student Law Review No. 11-1, January 2021
    • 1 Enero 2021
    ...Mervyn Davies to be in 9 ibid. 10 Bustard (n 2). 11 [1981] AC 487 [504] (Lord Wilberforce). 12 Cann (n 1) [71] (Lord Oliver). 13 [2009] EWHC 1076 (Ch) [349] (Lewison J). 14 [2012] 5 EG 82; Margaret Wilkie, Peter Luxton, Rosalind Malcolm, Land Law (10 th edn, OUP 2015) [80]. 15 Boland (n 11)......

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