Remote hand-down: This judgment was handed down remotely at 10.30am on Friday, 11th April 2025 by circulation to the parties and their representatives by email and by release to the National Archives.
Mr Justice Edwin Johnson:
Introduction
- This is an appeal against an order of His Honour Judge Gerald, made in the County Court at Central London on 2nd February 2024. By that order ("the Order") the Judge declared that the beneficial interest in a property known as 41 Newbury Avenue, Enfield EN3 6EF ("the Property") was held on trust by the Appellant and the Defendant for themselves as beneficial joint tenants. The Judge gave directions for the sale of the Property, together with directions for the distribution of the proceeds of sale, and awarded costs in favour of the Respondent.
- The Order was made, following the trial of this action, pursuant to two judgments delivered by the Judge. In the first judgment, delivered on the first day of the trial, the Judge decided that the Appellant and the Respondent were beneficial joint tenants of the Property by virtue of a transfer of the Property, dated 10th August 2018 and executed by the Appellant and the Respondent, in which they had declared that they were to hold the Property on trust for themselves as joint tenants. The Judge decided that the terms of the transfer left no room for the Appellant's argument that she was the sole beneficial owner of the Property by virtue of an implied, constructive or resulting trust.
- In the second judgment, delivered on the third and final day of the trial, the Judge dealt with the question of whether a sale of the Property should be ordered, and with the additional claims of the Appellant against the Respondent in unjust enrichment and for full payment of a credit card debt. The Judge decided that an order for sale should be made. The Judge also dismissed the claims in unjust enrichment, and for full payment of the credit card debt.
- In the second judgment the Judge also dealt with what he described as an additional point relating to the Property, which concerned exchanges of emails between the parties in May and June 2021. The point which the Judge was considering was whether these email exchanges constituted an acknowledgment by the Respondent that he had no beneficial interest in the Property or a release or gift of the Respondent's beneficial interest in the Property to the Appellant. The Judge decided that the email exchanges did not contain either an acknowledgment of no beneficial interest on the part of the Respondent or a gift or release of the Respondent's beneficial interest to the Appellant.
- The point, or more accurately claim which the Appellant seeks to pursue in this appeal is that the email exchanges did contain an effective disposition, by release, of the Respondent's beneficial interest in the Property to the Appellant, with the consequence that the Judge was wrong to decide that the parties hold the Property on trust for themselves as beneficial joint tenants and wrong to decide that the Property should be sold.
- The raising of this claim, which I shall refer to as "the Release Claim", has generated what are effectively two issues in the appeal. The first is whether the Appellant should be permitted to pursue the Release Claim in the appeal. Subject to my decision on this first issue, the second issue is whether the email exchanges do contain an effective disposition, by release, of the Respondent's beneficial interest in the Property to the Appellant.
- The appeal is made pursuant to a permission to appeal which I granted, by an order made on 18th June 2024. On the hearing of the appeal the Appellant was represented by Luke Barnes, counsel. The Respondent was represented by Miriam Shalom, counsel. Ms Shalom appeared for the Respondent at the trial before the Judge. Mr Barnes did not appear at the trial, where the Appellant was represented by Ms Ballard, solicitor advocate. I am most grateful to Mr Barnes and Ms Shalom for their assistance, by their written and oral submissions, in my determination of this appeal.
The relevant factual background
- The Property was originally purchased by the Appellant and her then husband in 2006. By the relevant form of transfer, the Appellant and her then husband declared that they held the Property on trust for themselves as beneficial tenants in common in equal shares.
- The Appellant and her husband then divorced. As part of the financial settlement it was agreed that the Appellant would acquire her former husband's interest in the Property. The Appellant could only afford to buy out her former husband with the assistance of a mortgage loan, secured against the Property. In order to obtain mortgage finance however, the Appellant was required to provide an additional person to join her as mortgagor of the Property. The Appellant's income was not sufficient to permit the Appellant, on her own, to take out a mortgage loan secured on the Property.
- This problem was solved by bringing the Appellant's sister on to the title to the Property. Pursuant to this arrangement the Property was transferred by the Appellant and her former husband to the Appellant and her sister, by a transfer executed on 16th August 2013. By this transfer the Appellant and her sister, as transferees, declared that they held the Property on trust for themselves as beneficial joint tenants.
- Around four or five years later the Appellant's sister was about to get married. The Appellant's sister and her partner wished to buy their own home. This required the removal of the Appellant's sister from the mortgage over the Property, so that she would be able to buy her own home with her partner. This in turn created the same problem as had existed in 2013, namely that the Appellant's income was not sufficient to enable her to maintain the mortgage over the Property in her own name alone.
- By this time the Appellant and the Respondent were in a relationship. The problem with the mortgage was resolved in the same way as previously. By the transfer of 10th August 2018, referred to above ("the 2018 Transfer"), the Appellant and her sister transferred the Property to the Appellant and the Respondent. As also referred to above, by the 2018 Transfer the Appellant and the Respondent declared that the Property was to be held on trust for themselves as beneficial joint tenants.
- In theory, the Appellant's sister might have made a claim, pursuant to the declaration of trust contained in the transfer of 16th August 2013, that she be paid out what she might have claimed to be her beneficial share of the Property, on the occasion of the 2018 Transfer. As I understand the position, there was no such claim.
- Most unfortunately, the relationship between the Appellant and the Respondent then broke down. I do not know much about the circumstances in which the relationship broke down. The Appellant's case in her Particulars of Claim in this action was that the relationship began to break down in 2018, with the Respondent becoming increasingly abusive towards the Appellant, culminating in his arrest and conviction for assaulting the Appellant in 2020. It is also apparent that the Appellant was obliged to obtain a non-molestation and occupation order, in order to protect herself against the Respondent.
- On or about 16th March 2022 the Appellant's solicitors wrote to the Respondent inviting him to consent to the transfer of the legal title to the Property into the sole name of the Claimant. The Defendant declined to do so. The result was this action, which came to the trial before the Judge ("the Trial") on 23rd January 2024.
- I have the advantage of a transcript of the Trial. References to extracts from the transcript in this judgment are given, by the day of the trial and the internal page number of the transcript, in square brackets and bold print. By way of illustration, [T1/1] refers to numbered page 1 of the transcript of the first day of the Trial.
The email exchanges
- The email exchanges which are at the centre of the appeal comprise a series of emails passing between the Appellant and the Respondent, between 31st May 2021 and 12th June 2021. Where I refer to specific emails within these email exchanges ("the Exchanges") I give the time of the relevant email in brackets, using a 24 hour clock. As in the remainder of this judgment, italics have been added to quotations.
- The Exchanges commence with an email from the Respondent to the Appellant, sent on 31st May 2021 (23:33). The relevant point to be made, in relation to this and subsequent emails from the Respondent in the Exchanges, is that the Respondent was seeking a reconciliation with the Appellant. In his submissions Mr Barnes was reluctant to concede that this was what the Respondent was seeking to achieve but, so far as it may matter, it is clear that the Respondent was seeking a reconciliation.
- It is equally clear that the Appellant did not want a reconciliation. The Appellant replied by an email sent on 2nd June 2021 (11:23). In this email the Appellant made it clear that she did not want a reconciliation, and that she was "not willing to discuss anything other than the house as this is what the non-molestation order states". The Appellant then made the following requests to the Respondent:
"In order to move forward with our lives, I am asking that if you are willing to be reasonable enough to provide consent to remove yourself from the mortgage so that you can no longer use this as a weapon to control me. I also ask that you pay off your 6K credit card debt which I have been covering."
- The Exchanges continued, with the Respondent seeking a reconciliation and the Appellant making it clear, on the basis of the Respondent's past conduct towards her, that she did not want a reconciliation. For present purposes I can pass on to an exchange of emails on 9th June 2021 (23:07) and 10th June 2021 (11:59) comprising an email from the Respondent, to which the Appellant replied by writing her replies into the Respondent's email. In particular, the Respondent made the following statement in this email:
"I don't want the house it's yours it's always been yours! Let me tell you something the only thing I enjoyed doing with the house was doing it up and seeing u smile. Every BODY knows this and was against what I was doing, no one even wanted
Me to be with you but I chose you, U made me happy my life was in your hands your control not for other ppls happiness or control!"
- The Respondent also made the following statement in this email, which I set out together with the Appellant's typed in response (shown by underlining):
"I hate that house I want nothing to do with it. I wish you sell it and get a new place cosy, not a house full of history. Like you got dead ppl walking around in there.
I would love to do that with u start fresh new area. - So why won't you come off the house if you want nothing to do with it? You attacked me, I don't want a future with a violent coward."
- The Exchanges continued on 10th June 2021. In an email sent that day (13:05), the Appellant put the following question:
"What do you want to come off the house?"
- The Respondent replied the same day, 10th June 2021 (14:01). His email included the following question:
"What do you want to come off the house?
(What)?"
- The Appellant replied almost immediately the same afternoon (14:10), posing the following question:
"Do you intend on removing your name off the house?"
- The Respondent replied later the same afternoon (15:34), saying this:
"I give my full consent to be removed of the mortgage at 41 Newbury avenue EN3 6EF.
I can be present to sign any documents needed.
Not seeking any financial interest in the property.
Give me till the end of the month I will transfer £6000 pounds to you."
- In paragraph 25 of his witness statement for the Trial the Respondent gave evidence that the Appellant called him. The Respondent's account of this call is in the following terms (I quote the whole of paragraph 25 in order to set out the context of the Respondent's evidence):
"Dunya continued to manipulate me. Despite having obtained an injunction order against me she repeatedly contacted me, and I responded and also initiated contact. I made it clear to her I wanted a reconciliation. Following an exchange of e-mail on or about 10th June 2022 Dunya called me. She said if I agreed to come off the title to the Property she would consider giving us a second chance. She wanted it in writing stating she did not want me to be able to use ownership of the Property to be used as a weapon against her. I thought I would try. I e-mailed Dunya on 10th June stating that I consented to coming off the mortgage and that I would not seek a financial interest in the Property. I also said that I would pay her £600,000. This was on the Friday. On the Saturday I tried to call her and sent a text message. I received no reply. On the Sunday I tried again to contact Dunya by text message and by calling her. Again, I received no reply. I realised then that she had only said she would consider getting back together with me in order to get Property transferred into her sole name and so on 12th June 2022 I e-mailed Dunya retracting my consent to the transfer of the Property and my offer to pay her £6,000."
- The date given for this call is "on or about 10th June 2022". This was however effectively corrected in re-examination of the Respondent by Ms Shalom, when the Respondent confirmed that the exchange of emails referred to in paragraph 25 of his witness statement took place on 10th June 2021. As I understand the position, the Respondent's evidence of the telephone call was not the subject of any cross examination at the Trial, so that this evidence was not challenged or explored further. I am speculating, but it would appear that the email which the Respondent says that he sent, following this call, would have been the email sent on 10th June 2021 at 15:34. I am again speculating, but it would also appear that the call was made by the Appellant following the Appellant's email sent on 10th June 2021 at 14:10.
- The last email in what I am referring to as the Exchanges was sent by the Respondent on 12th June 2021 (23:15). It stated as follows:
"I retract my consent from removing my name of the mortgage and seek Financial interest in the property.
I am open to your offering and is willing to negotiate a fee to be removed.
I am lawfully within my rights to do so.
I also retract my offering from voluntarily paying you six thousand pounds."
- I understand that it cannot be confirmed that the emails in the Exchanges are a complete set of the emails passing between the Appellant and the Respondent between 31st May 2021 and 12th June 2021. An additional email, sent on 4th June 2021 (19.01) and forming part of the Exchanges, was found shortly before this hearing. It is possible that there may have been more emails in the Exchanges, which are now missing.
The claims in the action
- The Appellant commenced this action by claim form issued on 22nd November 2022. The Appellant was therefore the Claimant in the action, although I find it convenient to continue to refer to her as the Appellant.
- In her Particulars of Claim the Appellant pleaded the following claims:
(1) The principal claim was a claim that the 2018 Transfer had not had the effect of vesting the beneficial interest in the Appellant and the Respondent as joint tenants. It is not entirely clear to me on what basis this claim was made, but it appears to have been based on an alleged agreement/common intention that the Respondent should not have/retain any beneficial interest in the Property. I will refer to this claim as "the Principal Claim".
(2) By way of further or alternative claim it was alleged that any beneficial interest which the Respondent might have in the Property was held on resulting trust for the Appellant. The particulars pleaded in support of this claim disclose that the Appellant was alleging that she had been the sole beneficial owner of the Property when she and her sister owned the Property, and that the Respondent had provided no consideration in respect of the 2018 Transfer, nor had there been any gift of a beneficial interest to the Respondent. I will refer to this further or alternative claim as "the Resulting Trust Claim".
(3) There were also claims pleaded in unjust enrichment ("the Unjust Enrichment Claim"), for payment of the sum of £6,000 alleged to represent debts run up by the Respondent on the Appellant's credit card without her authority ("the Credit Card Claim"), and for damages for personal injury suffered as a result of the Respondent's violent conduct ("the Personal Injury Claim").
- The Respondent served a Defence and Counterclaim, denying the pleaded claims ("the Claims"). In relation to the Principal Claim and the Resulting Trust Claim, the Respondent relied, amongst other matters, on the 2018 Transfer as having had the effect that the parties held the Property on trust for themselves as beneficial joint tenants. The Respondent contended that this was what had been agreed between the parties when the Property was transferred into their joint names, and that he both lived in the Property with the Appellant and made substantial contributions to the Property. By the Counterclaim the Respondent sought an order for the sale of the Property. There was no Reply and/or Defence to Counterclaim served by the Appellant.
- I understand that there was a case and costs management hearing in the action, in addition to a further hearing of an application made by the Respondent arising out of alleged failures on the part of the Appellant to comply with the case management directions, and a pre-trial review. There was no application to amend the Particulars of Claim at any of these hearings or at the Trial. In her skeleton argument for the appeal Ms Shalom drew my attention to an extract from the skeleton argument filed on behalf of the Respondent for the case and costs management conference, which dealt with the required length of trial. The point made in that extract was that the Respondent was relying on the declaration of trust in the 2018 Transfer, and that the Appellant appeared to rely on a prior agreement that the Respondent would not acquire a beneficial interest in the Property. It was also recorded, in this extract, that "there is no assertion by the Claimant of a subsequent agreement or proprietary estoppel".
The Trial and the judgments
- The Trial took place over three days, commencing on 23rd January 2024 and concluding on 25th January 2024, although the actual argument and evidence occupied only the first two days of the Trial.
- The Judge delivered the first of his two judgments ("the First Judgment") at the end of the first morning of the Trial, just before lunch. The First Judgment is very short. Essentially, the Judge decided that the declaration of trust in the 2018 Transfer was conclusive, leaving no room for the Principal Claim. After citing Goodman v Gallant [1986] Fam 106, Stack v Dowden [2007] UKHL 17 [2007] 2 AC 232 and Kernott v Jones [2011] UKSC 53 [2012] 1 AC 776, the Judge stated his conclusion in the following terms, at paragraphs 6, 7 and 8 of the First Judgment:
"6. It is therefore clear beyond doubt that where there is an express declaration of trust in the form of this declaration of trust, the beneficial interest is exhaustively and comprehensively declared and, as I said at the very beginning of this extremely short judgment, there is no room for doubt that upon severance, the beneficial interest is held as joint tenants in common in equal shares. If there is no such severance, the survivor takes the whole.
7. I am simply unable to understand the claimant's submission that the authorities which I have referred to are applicable here because each of those authorities concerned cases where there was no express declaration of trust. Indeed, in referring to Kernott v Jones, the claimant's counsel referred me to paragraph 51 which summarises the applicable principles but with an initial introductory explanation saying that those principles only apply if there is no express declaration of beneficial interests. Therefore, it is explicit, clear and beyond doubt that the declaration of trust in this case is applicable.
8. There is no pleaded case for setting it aside, rectification or anything else. So the declaration of trust is binding."
- The Judge did not, in terms, express a conclusion on the Resulting Trust Claim in the First Judgment. In finding that the declaration of trust in the 2018 Transfer was binding upon the Appellant and the Respondent it seems to me that the Judge was, necessarily, dismissing both the Principal Claim and the Resulting Trust Claim. Both claims depended upon the Appellant establishing that the declaration of trust in the 2018 Transfer was not decisive, in terms of the ownership of the beneficial interest in the Property.
- Following delivery of the First Judgment, the solicitor advocate for the Appellant, Ms Ballard, raised the question of what remained for decision. In particular, Ms Ballard stated that the Appellant's application remained for equitable accounting. Ms Ballard sought to suggest that the process of equitable accounting required the court to consider the contributions of each party to the Property. This resulted in the following exchanges between the Judge and Ms Ballard [T1/14]:
"MS BALLARD: In every case, in the case of joint tenancy, the court has got discretion to look at the fairness, what is fair in the exercise of this (Inaudible), and for that reason, equitable accounting, it looks at each person's contribution to the property and therefore, that is what I call equitable accounting, which in this case, particularly, due to the facts of the case, is necessary for the court to make a decision.
JUDGE GERALD: Well, there is no such jurisdiction in relation to everything up until the declaration of trust, so what happened up until then is completely irrelevant for these purposes, because there is the declaration of trust. What equitable accounting means is not that. What it means is an inquiry as to who subsequently has discharged obligations, and that includes if one party has excluded the other from occupation, then they usually have to pay an occupation rent -- which would be your client, I think -- and that is done by a district judge."
- The Judge was concerned that no claim to equitable accounting had been pleaded. This resulted in the following exchange between the Judge and Ms Ballard [T1/15]:
"JUDGE GERALD: Okay. Let us just have a look at the pleadings and where the pleaded case is, please. We have got the correct bundles now, I think. Thank you for those. Where in the Particulars of Claim does it say the account and the basis upon which the account is sought, please. Which paragraph?
MS BALLARD: It does not specify the pleading as such, but the pleading is to do with TOLATA, section 14 and the resulting trust and unjust enrichment.
JUDGE GERALD: Well we have dealt with all the trust issues already, okay.
MS BALLARD: Yes.
JUDGE GERALD: So that is the end of that. But my question was where does it say that there should be some sort of equitable accounting?"
- The exchanges between the Judge and Ms Ballard then continued. Ms Ballard made further attempts to persuade the Judge that it was still open to the court, pursuant to Section 14 of the Trusts of Land and Appointment of Trustees Act 1996, to consider the shares in which the parties held the beneficial interest in the Property. The Judge was not however persuaded of this. The upshot of these exchanges was the Judge reiterated his position that he had already determined, "exhaustively", the extent of the beneficial interests of the parties in the Property, leaving for decision the question of whether there should be an order for sale, and the determination of the remaining Claims, which the Judge identified as the Unjust Enrichment Claim, the Credit Card Claim and the Personal Injury Claim.
- The remainder of the Trial was therefore taken up with the question of whether an order for sale should be made in respect of the Property, and with the remaining Claims in the action. For that purpose the Judge heard the evidence of various witnesses, including the Appellant and the Respondent, and received the oral closing submissions of Ms Ballard, for the Appellant, and Ms Shalom, for the Respondent. The closing submissions were completed by the end of the second day of the Trial. The Judge delivered the second of his two judgments ("the Second Judgment") at 10:00am on the third day of the Trial.
- The Second Judgment is considerably more lengthy than the First Judgment. The Judge commenced the Second Judgment by identifying the matters he had to deal with in the following terms, at paragraphs 1 and 2 of the Second Judgment:
"1. By an express declaration of trust dated 10 August 2018 the claimant and the defendant hold 41 Newbury Avenue, Enfield, EN3 6EF on trust for themselves as beneficial joint tenants. Because that is an express declaration of trust, both parties are bound by it, as I held and explained and has long been the law in my judgment of a few days ago.
2. The question for me now to determine is whether or not there should be an order for sale in respect of that property, the claimant and the defendant now no longer living together, whether or not there has been any form of unjust enrichment by the defendant at the expense of the claimant and also liability for a credit card debt, the fourth claim for damages for personal injury no longer being pursued, not because there was no personal injury, but because there is no evidence before me which would enable the court to quantify or otherwise assess any appropriate damages to be awarded against the defendant."
- The Judge then proceeded to set out the background to the 2018 Transfer, before coming to the question of whether the Property should be sold. For the reasons which the Judge set out at some length, the Judge concluded that the Property should be sold and that he should make an order for sale.
- The Judge then dealt with the Unjust Enrichment Claim. The Judge concluded that there was no question of unjust enrichment on the evidence, and dismissed the Unjust Enrichment Claim. So far as the Credit Card Claim was concerned, the Judge concluded that the Respondent's position, namely that he was liable to pay a part of the credit card debt, was appropriate. The Judge also recorded that the Personal Injury Claim was no longer pursued, because there was no evidence before the court on the basis of which the court could properly reach a decision on the Personal Injury Claim.
- At paragraphs 53-55 of the Second Judgment, the Judge did make reference to the Exchanges, in the following terms:
"53. I should say, just one other point which I omitted to mention earlier, was that there was an exchange of emails between the parties back in June 2021 which on one view was the defendant acknowledging that he had no beneficial interest in the property.
54. However, again I accept that that is something which was not in any way a recognition that he did not have any such beneficial interest because, by reason of the declaration of trust he did, but it was written at a time when he was emotionally distressed.
55. Furthermore, it cannot amount to a release or gift of his beneficial interest. Not only is that not pleaded, but of course it does not comply with the relevant formalities. All it is is evidence of somebody (the defendant) trying to re-establish a relationship with somebody (the claimant) who presumably they loved, notwithstanding the rather disgraceful way in which he had physically abused her before the relationship came to an end."
- So far as the oral evidence at the Trial was concerned, the principal focus appears to have been investigation of the related questions of whether the Appellant and the Respondent had been in a committed relationship when they entered into the 2018 Transfer, whether the Appellant and the Respondent had been living together in the Property at that time, and whether the Appellant and the Respondent had entered into the 2018 Transfer with the intention that the Property should be their home. The Judge addressed these various questions in that part of the Second Judgment where he dealt with the issue of whether there should be an order for sale. The Judge's findings on these questions, on the evidence, were that the parties had been in a committed relationship when they entered into the 2018 Transfer, and had been living together in the Property at that time, and had entered into the 2018 Transfer with the intention that the Property should be their home.
- The Exchanges did feature, to a limited extent in the Trial. The Exchanges were part of the disclosure in the action, and were included in the trial bundle, although the copies of the emails appears to have been in a somewhat corrupted form. I also assume that the Exchanges did not include the email which has recently been located.
- The Appellant did not make reference to the Exchanges in her witness statement or in oral examination in chief, and was not cross examined on the Exchanges. As noted above, the Exchanges were referred to by the Respondent in his witness statement for the Trial. The Respondent was asked about his statements in the email of 9th June 2021 (23:07) in cross examination. The relevant passage of cross examination was fairly brief [T2/45-46]. The main question put to the Respondent was whether this email had changed the Respondent's previous view that he wanted to own 50% of the Property. The answer given was unclear. Neither the Appellant nor the Respondent was asked about the telephone call on 10th June 2021, as referred to by the Respondent in his witness statement.
- The email of 9th June 2021 did feature in Ms Ballard's closing submissions at the Trial. Ms Ballard was seeking to make the point that the Respondent never intended to create a trust to have any financial advantage. This submission ran into the difficulty, with the Judge, that it was not pleaded. The relevant exchange, in Ms Ballard's closing submissions, was in the following terms [T2/66-67]:
"MS BALLARD: 2021, your Honour. He said, "I don't want the house; it's yours, it's always been yours. Let me tell you something, the only thing I enjoyed …" Those words, your Honour, in my submission, are proof that he never intended to create a trust to have any financial advantage or, if he did at the time, this is the withdrawal of that trust, if he is cancelling what he intended to be as a trust by saying that, "I don't want the house."
JUDGE GERALD: Could you show me where that is pleaded, please?
MS BALLARD: It is not pleaded but it is within their evidence which I asked him and so therefore --
JUDGE GERALD: Well, when you say "withdrawal", that must mean that if it is on the basis that, by that stage, he was a beneficial owner by reason of the declaration of trust, you cannot just withdraw from something in law. You have to gift it. As far as I know, section 51C of the 1925 Law on Property Act, that has to be evidence in writing and it has to be pleaded as well, which it is not.
MS BALLARD: Well, your Honour, to my knowledge, as you said, it is because it is there. I am making a point on that. But, as far as my knowledge is concerned, we are talking about two lay people who are not lawyers, with no disrespect to them. They are not lawyers, they do not know how to draft a document to say that, but as far as I am concerned --
JUDGE GERALD: I appreciate that 100 per cent, but ultimately I have to decide a case on the basis of the pleadings because that is fair for both sides. If something is not pleaded, I would not decide something on an un-pleaded basis.
MS BALLARD: No, it was not pleaded. No, of course not. But it has come up within the course of these proceedings. That is why I am mentioning it. It was not pleaded but during the course of this, and especially when I put to the defendant this email, it did not deny that it was not him and he just said that he wanted to get her back or whatever, but it was not pleaded. But I am just mentioning it because it came up during the course of these proceedings."
- I assume that it was on the basis of this submission of Ms Ballard that the Judge included in the Second Judgment, at paragraphs 53-55 (as quoted above), reference to the Exchanges.
The Order
- The Order was made, consequential upon the First Judgment and the Second Judgment, on 2nd February 2024. By paragraph 1 of the Order the Appellant's "claim" was dismissed. By paragraph 2 of the Order the following declaration ("the Declaration") was made:
"2. IT IS DECLARED that the beneficial interest in the property situate at and knows as 41 Newbury Avenue Enfield EN3 6EF and registered under HM Land Registry under Title No MX183865 ("the Property") is held on trust by the Claimant and the Defendant for themselves as beneficial joint tenants."
- By paragraphs 3-5 of the Order, the Judge ordered that the Property be sold and gave directions for the conduct of the sale. So far as costs were concerned the Appellant was ordered to pay the Respondent his costs of the action, subject to a set off for the sum of £3,000 which the Respondent had acknowledged as due to the Appellant in relation to the Credit Card Claim. The Appellant was also required to make an interim payment of £25,000 on account of the Respondent's costs. Finally, the Judge refused permission to appeal.
The arguments in the appeal
- The Appellant's case is that the Judge was, by reason of the Release Claim, wrong to declare that the Appellant and the Respondent held the Property on trust for themselves as joint tenants. The Appellant's case is that by one or more of the emails sent by the Respondent to the Appellant on 9th and 10th June 2021, the Respondent released his beneficial interest in the Property to the Appellant. The emails in question, it is submitted, satisfied the requirement for signed writing contained in paragraphs (a) and (c) of Section 53(1) of the Law of Property Act 1925 ("Section 53").
- In support of this case the Appellant relies principally upon the decision of the Court of Appeal in Hudson v Hathway [2022] EWCA Civ 1648 [2023] KB 345. This decision was not cited to the Judge. The Appellant's case is that it was directly in point and an authority binding upon the Judge. As such, so the Appellant contends, the Declaration was both wrong and a decision given without awareness of a binding and directly relevant authority. The traditional Latin expression, which is used in circumstances of this kind, is that the decision of the Judge was given "per incuriam".
- The Release Claim was not pleaded by the Appellant in the Particulars of Claim and was not raised, at least in explicit terms, at the Trial. Nor was Hudson v Hathway cited to the Judge. The Release Claim is therefore, as it seems to me, a new point which the Appellant is seeking to raise in the appeal. The Appellant's case is that if permission is required to raise the Release Claim, it should be granted. The Release Claim is characterised by the Appellant as a pure point of law, which does not require any further evidence or factual investigation. The Appellant's case is that, as in Hudson v Hathway, the Release Claim is one which can be raised and considered in the appeal, without causing prejudice to the Respondent.
- In oral submissions Mr Barnes conceded that he did not seek a reversal of the costs order made by the Judge, if the appeal was successful. I understood this concession to be made on the basis that, in terms of the costs below, the Respondent should not lose the advantage of the costs order made by the Judge, in circumstances where the Release Claim was not pursued before the Judge. This struck me as a sensible and realistic concession to make, on the hypothesis that the appeal is successful.
- The Respondent's position is that the Appellant does require the permission of the court before she can be permitted to pursue the Release Claim in the appeal. The Respondent's case is that such permission should not be granted. The Respondent says that Hudson v Hathway is distinguishable in the present case, and that the Release Claim requires investigation of factual matters which should have been, but were not investigated at the Trial. On this basis the Respondent contends that the appeal should be dismissed.
The Release Claim
- In considering the issues raised the appeal it is helpful to have in mind the legal basis on which the Appellant seeks to pursue the Release Claim.
- On the findings of the Judge, which the Appellant does not seek to challenge in the appeal, the consequence of the 2018 Transfer was to vest the beneficial interest in the Property in the Appellant and the Respondent as joint tenants. It was open to either party to sever that joint tenancy, if either party chose to do so, by giving notice of severance to the other party, thereby rendering the parties tenants in common of the beneficial interest in the Property. A further option, if one party wished to relinquish their interest under the beneficial joint tenancy, was for that party to release their interest in the joint tenancy to the other party. This is permitted by Section 36(2) of the Law of Property Act 1925, which provides, in its material part, as follows:
"(2) No severance of a joint tenancy of a legal estate, so as to create a tenancy in common in land, shall be permissible, whether by operation of law or otherwise, but this subsection does not affect the right of a joint tenant to release his interest to the other joint tenants, or the right to sever a joint tenancy in an equitable interest whether or not the legal estate is vested in the joint tenants:"
- As the release of an interest in a joint tenancy of the beneficial interest in land does not involve the legal estate in the relevant land, it is not necessary for such a release to be made by deed. Instead, there is only a requirement for signed writing, as set out in paragraphs (a) and (c) of Section 53(1):
"(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;"
"(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will."
- The difference between assignment and release was explained by Lord Millett (in a dissenting speech) in Burton v Camden London Borough Council [2000] 2 AC 399, at 408E-H, in the following terms:
"A purported assignment of the interest of one joint tenant to the other joint tenant does not constitute an assignment, because each of the joint tenants is already the owner of the whole. The so-called assignor has no separate interest of his own which is capable of being transferred to the other and which the other does not already own. None of this, of course, applies to a tenant in common, because he has a separate and distinct interest of his own which he can assign either to a third party or to his co-owner.
Before 1926, therefore, one joint tenant could not assign his interest to the other. But he could achieve much the same result by releasing his interest. The release operated to extinguish his interest and not to assign it. The difference, though technical, was not a formality. Since a release did not operate by way of assignment or conveyance, it required no words of limitation. Moreover, where there were three or more tenants, a release by one joint tenant did not destroy the unity of title of the others and so sever their interests, for they did not acquire any interest by the release which they did not already own.
No particular form of words was required for a release. Even if it was drafted as any assignment, it still took effect as a release. The difference was one of substance, not form; it was not merely a matter of language. The ability of one joint tenant to release his interest to the other has been preserved by section 36(2) of the Law of Property Act 1925. It is still not possible for one joint tenant to assign his interest to the other."
- As Lord Millett noted, no particular form of words is required for a release to be effective. All that is required is that it is clear, on an objective reading of the relevant signed writing, that the relevant words were intended by their author immediately to divest themselves of their interest in the relevant joint tenancy, in favour of the other joint tenant.
- Equally, an email can constitute the required signed writing, provided that it can be demonstrated that the name of the party making the release has been deliberately subscribed to the email, either by the name of that party having been added to that particular email or as a consequence of a general rule having been set up to add that party's name to emails sent by that party; see the judgment of Lewison LJ in Hudson v Hathway at [55]-[67].
- The Appellant's case is that the relevant emails sent by the Respondent on 9th and 10th June 2021, or one or more of them, satisfied all of the above requirements and thereby constituted a release by the Respondent, to the Appellant, of his interest in the joint tenancy of the beneficial interest in the Property.
Hudson v Hathway
- The decision in Hudson v Hathway was central to the Appellant's case and the submissions in the appeal. In these circumstances I find it helpful, before coming to my analysis and determination of the issues raised by the appeal, to identify what was decided in Hudson v Hathway.
- The claimant and the defendant in Hudson v Hathway purchased a house in their joint names, with no declaration of trust. The parties were at the time in a relationship, but were not married. On acquisition of the house the parties were joint tenants, both in law and in equity. The relationship broke down in 2009 when the claimant left the defendant and moved in with another partner, whom he later married. The defendant and the two sons from her relationship with the claimant remained in the house. The claimant continued substantially to pay the mortgage on the house. In 2011 the house was blighted by an oil spill, which caused extensive damage and rendered the house difficult to sell. Following this environmental disaster, as it was described by the trial judge, the claimant and the defendant engaged in sporadic email communications, over a lengthy period, concerning their financial arrangements. In particular, the claimant sent two emails, subscribed with his first name, in which the claimant disclaimed an interest in the house. Subsequently the claimant became frustrated with the lack of progress in relation to the problems caused by the oil spill and with the lack of progress in relation to the sale of the house. Ultimately, the claimant commenced proceedings under the Trusts of Land and Appointment of Trustees Act 1996, seeking an order for the sale of the house with equal division of the proceeds of sale. The defendant claimed that she was entitled to the entire beneficial interest in the house under a constructive trust. The defendant's case was that there had been a common intention and agreement to this effect, as evidenced by the email communications, in reliance upon which she had acted to her detriment.
- The defendant succeeded in this case before the trial judge. The trial judge made a declaration that the defendant was the sole beneficial owner of the house, concluding that the parties had clearly reached an agreement to that effect in the email communications and that, although it was necessary for the defendant to have relied on the agreement to her detriment in order for it to give rise to a constructive trust, she had relied on the agreement to her detriment by giving up potential or perceived claims that she had against the claimant's shares and pension. The claimant appealed against the decision of the trial judge. This first appeal, to the High Court, was dismissed. Kerr J held that there was no requirement for the defendant to show that she had acted to her detriment in order to make good her claim for a constructive trust, but that if detriment was required the trial judge had been entitled to find that that requirement was satisfied. The claimant made a further appeal to the Court of Appeal. In that second appeal the defendant contended, for the first time, that the email communications between the parties had been sufficient to satisfy the statutory formalities in Section 53(1), with the result that the claimant had made a disposition, by release, of his interest in the property to the defendant.
- The appeal to the Court of Appeal was dismissed. The Court of Appeal decided both that the defendant should be permitted to raise the point that the relevant email communications had constituted a release by the claimant to the defendant of his interest in the joint tenancy of the beneficial interest in the house, and that the relevant email communications which had constituted such a release had satisfied the requirements of Section 53(1). The Court of Appeal also decided, overruling Kerr J on this point, that, in the absence of signed writing, detrimental reliance was a key component in establishing a common intention constructive trust. The Court of Appeal also decided that on the facts of the case the trial judge had been entitled to find detrimental reliance, with the consequence that Kerr J had been right to dismiss the appeal against the trial judge's decision on that ground.
- The principal judgment in the Court of Appeal was given by Lewison LJ. Andrews LJ agreed with Lewison LJ. Nugee LJ gave a short judgment also agreeing with Lewison LJ. In his judgment Lewison LJ started by considering the new point which had been raised by the defendant; namely that the relevant email communications had constituted a release of the claimant's interest in the beneficial joint tenancy to the defendant. As he noted, this issue logically came before the questions of whether detrimental reliance was required in order to found a common intention constructive trust and, if so, whether the trial judge had been right to find that detrimental reliance had been demonstrated.
- Lewison LJ commenced his consideration of the new point by setting out the relevant background, including the key email communications. Given the importance of these communications, it is essential to set them out in full. The first of these emails were sent in 2011 and 2012, as recorded by Lewison LJ at [8]-[12]:
"8 On 9 November 2011 Ms Hathway emailed Mr Hudson. Her email read in part:
"Your shares are the main matter outstanding. You have told me that they are not worth anything. Whether or not that is the case, they form part of what was our collective assets at the time we split. I imagine that you feel that I should have no call on them, you earned them, from all the hours of effort you put in at work - my position is, of course, different - you earned them while we were together, your career advancement was part of our relationship, as was the building of pension funds etc. I hope we are both adult and reasonable enough to reach some sort of compromise?"
9 The email was subscribed "Jayne Hathway".
10 Mr Hudson replied on the same day: "My thoughts on this are that anything accrued while we were together is for us to come to an agreement on, which I think fits with what you are saying."
11 The email was subscribed "Lee"; and his full name given. On 24 August 2012 Mr Hudson wrote:
"We'll sort who deserves what in regards to our joint assets (house, shares, savings etc) when we're in a position to liquidate it all, which obviously depends on when you are ready."
12 The email was subscribed "Lee Hudson"."
- There were then further communications in 2013, as recorded by Lewison LJ at [13]-[19]:
"13 In July and August 2013,Mr Hudson and Ms Hathway agreed terms set out in emails. In an email of 30 July (but not sent to Ms Hathway until the following day) he said:
"So here it is. We were never married. You have no claim over what is mine. What I consider ring-fenced is what I get from my years of personal graft. They are not up for discussion. I'm not agreeing to give you any . . . The liquid cash, you can have. Savings in the bank, other plans, take it all. Physical property, the contents of the house . . . again I don't want it; keep it. Which leaves the house, a bad asset which is preventing all of us [from] . . . moving on with our lives . . . You know what, I want none of the proceeds of that either. Take it. Buy yourself somewhere you can afford to live . . .
"As for a will, if I were to die before this financial mess is sorted, Heidi [his wife] will have no rights to Picnic House . . .
"What I want is an end to it. So have everything that's available to have now and when the house is sold."
14 The email was subscribed "Lee".
15 Ms Hathway replied on the same day. She said:
"Can't see any point in putting "my side" of the argument. Not because I don't feel that I have a valid case to make, but because it is clear that it would be pointless."
16 On 12 August 2013 she emailed again:
"So that we can move forward and get to a point of completely severing our financial connections, your suggestion, as I understand it, is you get sole ownership of your shares and pension, I get the equity from the house, the house contents, savings and income from endowments. Is that right? If so, then I will accept this and will do everything I can to get the house ready for sale as soon as the situation with the oil spill is resolved."
17 He replied on 9 September: "Yes, that's right . . . Under this arrangement, I've no interest whatsoever in the house, so whilst I will continue to contribute, I won't do so forever."
18 This email was subscribed "Lee".
19 In the autumn and winter of 2013 there was some discussion about Mr Hudson's buying the house. But as his email of 15 December 2013 made clear what was under discussion was his purchase of the whole house and not simply a half share in it."
- Finally, there were the following communications, in 2014, again as recorded by Lewison LJ at [20]-[21]:
"20 Time passed and Mr Hudson became impatient with a lack of progress in resolving the oil spill clean up, the insurance claim and the sale of Picnic House. In May and July 2014 he referred in emails to how much time had passed "since we came to a deal". In his email of 2 July 2014 he added:
"If you want to continue to "wait" on the house to maximise your gain (means nothing to me if it sells for a pound or a million) then that needs to be your decision and your responsibility."
21 On 24 August 2014 he wrote:
"Remember the House is of no value to me: the deal from one year ago which was supposed to be finalised six months ago gave you all liquid assets, including the proceeds of the house sale. I don't care what it sells for."
- These email communications had been considered by the trial judge, who found that the parties had clearly reached a deal in relation to the house; see the judgment of Lewison LJ at [23]. It was however accepted before the trial judge, by the defendant, that the deal did not satisfy the formalities either for transferring the legal title to the house, or for disposing of an equitable interest in the house or for a declaration of trust. The circumstances in which the defendant came to raise the point that the deal did in fact satisfy the requirements of Section 53 were recorded by Lewison LJ in the following terms, at [33]:
"33 For reasons which are difficult to understand, whether section 53(1) of the Law of Property Act 1925 was satisfied was not argued either at trial or on the first appeal. But at our prompting Mr Horton KC applied to amend the respondent's notice to take the point that Mr Hudson's emails of 31 July 2013 and 9 September 2013 complied with the statutory formalities."
- Lewison LJ then went on to consider the question of whether the Court of Appeal should entertain this new point. Lewison LJ decided, for the reasons set out at [34]-[42], that permission to amend the respondent's notice should be granted. It is not necessary to set out all of the reasoning of Lewison LJ. For present purposes I would highlight three aspects of this reasoning.
- First, Lewison LJ noted, at [36], that the case was different to other cases in which new points were raised, in the sense that the defendant was seeking to raise the new point as part of her defence of the two judgments in her favour, at trial and on first appeal, which she had already obtained:
"36 In these (and all the other cases) that we were shown, it has been the appellant who wished to raise the new point. In other words, it is the party seeking to overturn the judgment who wishes to do so on the basis of a point not argued below. The effect of that would be to deprive the respondent of a judgment in their favour. Here, by contrast, it is the respondent (who already has two judgments in her favour) who wishes to raise the new point. CPR r 52.13 simply says that a respondent's notice must be filed where a respondent "wishes to ask the appeal court to uphold the decision of the lower court for reasons different from or additional to those given by the lower court". Whether precisely the same principles apply in such a case is not entirely clear. It is, however, fair to say that in an interlocutory appeal in Riley v Sivier [2021] 4 WLR 84, where the respondent wished to raise a new point, Warby LJ said that this court does not usually allow new points to be taken on appeal although he also rejected the new points on their merits. On the other hand, in Golding v Martin [2019] Ch 489 this court permitted a respondent to raise a new point which had not been argued below."
- Second, Lewison LJ was not persuaded by the argument that the case had not been advanced as it was now being advanced, either at trial or at first instance. As Lewison LJ explained, at [37], he regarded the new point as a pure point of law:
"37 Mr Learmonth KC objected to the new point on the ground that the case had not been advanced in that way either at trial or on the first appeal, and that the decision not to argue that point had been deliberate. There is, of course, force in that objection. He pointed out that it had been accepted both at trial and on the first appeal that the email traffic did not amount to a contract compliant with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. So indeed it was, but it is not sought to argue that the email in question did comply with section 2. The argument now sought to be advanced is a different one. The argument depends on the legal effects of the relevant emails, which is a question of law. In those circumstances the court is not bound by one party's concession (Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514, where a point was raised for the first time in the House of Lords), or the positions taken by the parties on a question of interpretation (Teesside Gas Transportation Ltd v CATS North Sea Ltd [2019] EWHC1220 (Comm) at [119])."
- Third, Lewison LJ was not persuaded by the argument that further evidence might have been called at trial, if the new point had been taken at trial. As Lewison LJ explained, at [40], the question of the effect of the relevant emails was a question of interpretation of the relevant emails, in respect of which evidence of subjective intention was not permitted:
"40 Mr Learmonth also submitted that if we allowed the point to be taken there would have been further evidence that might have been called at trial. That evidence would, in effect, have consisted of what the parties' subjective understanding of the documents was, and further amplification of the background. Although he suggested that in some circumstances subjective evidence is admissible on a question of contractual interpretation (e g to identify the subject-matter of a contract or to demonstrate that the parties had their own private dictionary), that argument erroneously conflates extrinsic evidence and evidence of subjective intent. In my judgment the point is a pure point of law, which depends on the interpretation of the relevant emails. As with any question of interpretation of a written document, the test is an objective one; and I am unable to see how the course of relevant evidence might have been affected. Mr Learmonth also said that if the point had been taken, Mr Hudson might have applied to rectify the email. In view of Judge Ralton's finding of fact about the parties' intentions, that seems to me to be purely theoretical."
- Lewison LJ then proceeded to consider the new point. Lewison LJ set out his interpretation of the relevant emails at [50]:
"50 In my judgment Mr Hudson's emails of 31 July and 9 September 2013 are sufficient in point of form to amount to a release of his equitable interest in the house. They evince a clear intention to divest himself of that interest immediately, rather than a promise to do so in the future. His email of 30 July 2013 said in relation to the house, "Take it"; and in his follow up on 9 September he disavowed any interest in it. Further emails, with which Mr Learmonth supplied us at the end of the hearing (and in particular those of 2 July 2014 and 25 August 2014) confirm the finality of that decision. Does that amount to the disposition of an interest in land or an equitable interest?"
- In answer to the question posed at the end of [50] Lewison LJ concluded, for the reasons set out in [51]-[54], that the relevant emails clearly constituted dispositions, for the purposes of Section 53.
- This then left the question of whether the emails were signed, as required by Section 53. Lewison LJ proceed to review the authorities on the question of when an email can be treated as having been signed. Following this review Lewison LJ concluded that the relevant emails were signed, for the purposes of Section 53. As he concluded this part of his judgment, at [67]-[68]:
"67 There is, therefore, a substantial body of authority to the effect that deliberately subscribing one's name to an email amounts to a signature. Given that so much correspondence takes place nowadays by email rather than by letters with a "wet ink" signature, it is, in my judgment, entirely appropriate that the law should recognise that technological developments have extended what an ordinary person would understand by a signature. I would hold, therefore, that Mr Hudson's emails of 31 July and 9 September 2013 were "signed" for the purposes of section 53(1)(a) and (c) of the Law of Property Act 1925.
68 It follows, therefore, that by those emails Mr Hudson released his beneficial interest in Picnic House to Ms Hathway."
- The remainder of Lewison LJ's judgment was concerned with the question of whether the defendant could rely on the constructive trust which had been found by the trial judge and upheld by Kerr J. While it was not strictly necessary to deal with the constructive trust dispute, in circumstances where he had already decided that there had been a release of the claimant's interest, Lewison LJ considered that it was appropriate to decide this question, which had been fully argued and had been the basis of the grant of permission to the claimant make the second appeal to the Court of Appeal. The analysis of this question by Lewison LJ is an immensely valuable statement of the law in this area, but for present purposes it is not directly relevant to what I have to decide in this appeal. As explained above, Lewison LJ concluded that detrimental reliance was an essential element of a common intention constructive trust, but also decided that the trial judge had, on the facts of the case, been entitled find such detrimental reliance.
- In summary therefore, the defendant succeeded in the Court of Appeal on two grounds, both based upon the email communications between herself and the claimant. The defendant succeeded on the ground that the claimant had, by the relevant emails, released to her his interest in the beneficial joint tenancy. The defendant also succeeded on the ground that the same emails had given rise to a constructive trust in her favour, by which she was entitled to the entire beneficial interest in the house.
Should the Appellant be permitted to pursue the Release Claim in the appeal? – analysis and determination
- I now come to the first of the two issues raised in the appeal, which is whether the Appellant should be permitted to pursue the Release Claim in the appeal.
- I should start by making it clear that, in my judgment, the Release Claim constitutes a new point, which the Appellant seeks to raise for the first time in the appeal. As such, it seems to me that the Appellant requires my permission to pursue the Release Claim in the appeal. It is not open to the Appellant simply to pursue the Release Claim in the appeal. As I understood Mr Barnes' position in his oral submissions, he accepted, correctly in my view, that this was the position.
- I make this position clear however because, as I have explained earlier in this judgment, the Exchanges did feature, to a limited extent, in the Trial. It might also have been said that the Judge made a decision on the effect of the Exchanges, in paragraphs 53-55 of the Second Judgment. I do not think that these features of the Trial render tenable an argument that the Release Claim was raised and was the subject of a decision by the Judge. The Release Claim was never pleaded in the action and, as is clear from the transcripts of the Trial, the Release Claim was not put before the Judge. The Exchanges played only a limited part in the Trial, and were not relied upon for the purposes of advancing the Release Claim or any comparable case. It is clear from the relevant part of the Second Judgment that the Judge, in addressing the Exchanges, did not have in mind the Release Claim or any comparable case. The principal question addressed by the Judge in this part of the Second Judgment was the question of whether the Respondent was admitting, in the Exchanges, that he had never had any beneficial interest in the Property. As I have said, I assume that the Judge addressed the Exchanges in the Second Judgment because they had been relied upon by Ms Ballard in an attempt to support her case that there had never been an intention that the Respondent should have a financial interest in the Property. That case, it is clear, was concentrated on what the intention of the parties had been at the time of the 2018 Transfer. It is true that the Judge went on, at paragraph 55 of the Second Judgment, to consider whether the Exchanges contained a release or gift of the Respondent's beneficial interest in the Property. It seems clear to me however that the Judge dealt with this point because he considered it to have a bearing on the question of what the Respondent had acknowledged or admitted in the Exchanges.
- If the Release Claim can be pursued in the appeal, it seems to me that the strict position is that the Appellant is obliged to challenge what was decided by the Judge in paragraph 55 of the Second Judgment. This does not however seem to me to mean that the Release Claim has been decided by the Judge. The conclusions expressed by the Judge in paragraphs 53-55 of the Second Judgment, and in particular the conclusion expressed in paragraph 55 of the Second Judgment were not conclusions expressed on the Release Claim, because the Release Claim was not before the Judge.
- This brings me to the question of whether permission should be granted for the pursuit of the Release Claim in the appeal. A number of authorities were cited to me in this context. The first of these, in time, is Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376 [2017] 1 WLR 4031. In this case the Court of Appeal were confronted with a situation where it was apparent that there was disagreement between the parties as to the scope of the trial and the issues which the trial judge had had to decide. The situation was trenchantly described by Lewison LJ, in giving the judgment of the Court of Appeal, at [22]-[23]:
"22 As Mr Ewart QC for HMRC opened the appeal to us it soon became clear that the lack of pleadings meant that the parties disagreed about what was the scope of the trial; what were the issues that the judge had to decide; whether points had or had not been raised; whether or not they could be raised on appeal; and even what the judge had decided. This is no way to conduct litigation involving millions of pounds. We were told that this unacceptably cavalier approach to pleadings was a common feature of this kind of litigation. It must stop.
23 In our procedural law a trial is intended to be the final resolution of all matters in dispute between the parties. Although a party who is dissatisfied with the outcome of a trial may appeal to this court (usually with permission) the appellate process is, in general, limited to a review of the first instance decision. It is thus the starting point that parties are expected to put before the trial judge all questions both of fact and of law upon which they wish to have an adjudication."
- Immediately prior to this part of their judgment, the Court of Appeal set out the correct approach to late amendments to statements of case in the following terms, at [20]-[21]:
"20 Although the underlying claims depend on EU law, procedural questions are (at least in general) governed by national law. Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party's case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case. We were told that by the time that skeleton arguments for trial were served each party would know what points were in issue. We do not regard that as sufficient. In this case, for example, HMRC's skeleton argument was served about ten days before the trial started. If (as in fact happened in this case) HMRC wished to argue that the evidence proposed to be called by Prudential was directed at the wrong issue (being an issue that had not been raised before) ten days' prior notice was manifestly inadequate.
21 Although in days gone by the court would routinely allow late amendments to statements of case, in more recent time attitudes have changed. It is now the case that the court requires strong justification for a late amendment. This is not only in the interest of the opposing party but also consonant with the interests of other litigants in other cases before the court and the court's duty to allocate a proportionate share of the court's resources to any particular case. Where a new issue arises which is not foreshadowed in a statement of case, a party needs the court's permission to advance it. The court is then faced with a discretionary case management decision, to be exercised in accordance with the overriding objective."
- Moving specifically to the raising of new points on appeal, Haddon-Cave LJ identified the following principles in his judgment in Singh v Dass [2019] EWCA Civ 360 (with which Moylan and McCombe LJJ agreed), at [15]-[18]:
"15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.
16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29])."
- These principles were amplified by Snowden J (as he then was) sitting in the Court of Appeal in Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337. The appeal in this case was against a possession order and money judgment made against the defendant mortgage borrower. The claim had been brought using the procedure in CPR Part 55. The hearing before the district judge was effectively a summary hearing, which lasted only a very short time and in which the defendant was represented by a duty solicitor. On appeal to the circuit judge, the defendant was permitted to take a new point to the effect that the default interest rate in the mortgage loan agreement was a penalty and unenforceable. The defendant was also permitted to raise a point on the Consumer Credit Act 1974. The circuit judge allowed the appeal on the penalty point. The claimant appealed to the Court of Appeal, on the basis that the circuit judge had been wrong to permit the penalty point to be taken on the first appeal.
- The appeal was dismissed by the Court of Appeal. The principal judgment was given by Snowden J, with whom Peter Jackson and Longmore LJJ agreed. After reviewing the relevant authorities, including the principles stated by Haddon-Cave LJ in Singh v Dass, Snowden J explained, at [26], that a case need not be exceptional before a new point is allowed to be taken on appeal:
"26 These authorities show that there is no general rule that a case needs to be "exceptional" before a new point will be allowed to be taken on appeal. Whilst an appellate court will always be cautious before allowing a new point to be taken, the decision whether it is just to permit the new point will depend upon an analysis of all the relevant factors. These will include, in particular, the nature of the proceedings which have taken place in the lower court, the nature of the new point, and any prejudice that would be caused to the opposing party if the new point is allowed to be taken."
- Snowden J went on, at [27]-[28], to identify the spectrum of cases in which the question may arise as to whether to permit a new point to be taken on appeal:
"27 At one end of the spectrum are cases such as the Jones case in which there has been a full trial involving live evidence and cross-examination in the lower court, and there is an attempt to raise a new point on appeal which, had it been taken at the trial, might have changed the course of the evidence given at trial, and/or which would require further factual inquiry. In such a case, the potential prejudice to the opposing party is likely to be significant, and the policy arguments in favour of finality in litigation carry great weight. As Peter Gibson LJ said in the Jones case (at para 38), it is hard to see how it could be just to permit the new point to be taken on appeal in such circumstances; but as May LJ also observed (at para 52), there might none the less be exceptional cases in which the appeal court could properly exercise its discretion to do so.
28 At the other end of the spectrum are cases where the point sought to be taken on appeal is a pure point of law which can be run on the basis of the facts as found by the judge in the lower court: see e g Preedy v Dunne [2016] EWCA Civ 805 at [43]–[46]. In such a case, it is far more likely that the appeal court will permit the point to be taken, provided that the other party has time to meet the new argument and has not suffered any irremediable prejudice in the meantime."
- In setting out his reasons for concluding that the circuit judge had been right to allow the new points to be taken, Snowden J laid emphasis on the fact that the original hearing before the district judge was not, in any real sense, a trial at which any disputed factual evidence was led or tested by cross examination. The initial hearing was very limited, being in the nature of a summary hearing. The options for the district judge, in a hearing of this kind, were either to grant the relief sought, if the position was clear, or to adjourn the case with directions for a full trial of the issues raised in the case. The litigation itself was also limited. As Snowden J commented, at [32]:
"32 Accordingly, given the very limited nature of the initial hearing and the binary decision to be made at it, the most weighty reason identified in the authorities as to why a new point should not be permitted to be advanced on appeal—namely that it would subvert an evidential process which has already taken place at a full trial in the lower court—is simply not present in the instant case."
- The question of whether the defendant could take the new point on appeal was also considered in Hudson v Hathway. I have already quoted from that part of his judgment where Lewison LJ dealt with this question. The essence of Lewison LJ's reasoning on this question was that the new point was a pure point of law, which lay at the end of spectrum, identified by Snowden J, occupied by cases where the point sought to be taken on appeal is a pure point of law which can be run on the basis of the facts as found by the judge in the lower court.
- In the present case Mr Barnes submitted that the Release Claim lay on the same end of the spectrum as the new point in Hudson v Hathway. The present case was, he submitted, on all fours with Hudson v Hathway, both in the sense that the Release Claim was a pure point of law which could be raised on appeal without causing prejudice to the Respondent, and in terms of the substantive merits of the Release Claim.
- Ms Shalom submitted that the Release Claim was at the other end of the spectrum, falling into that category of case in which there has been a full trial involving live evidence and cross-examination in the lower court, and in which there is an attempt to raise a new point on appeal which, had it been taken at the trial, might have changed the course of the evidence given at trial, and/or which would require further factual inquiry.
- In deciding between these rival submissions the starting point is to identify an obvious difference between the present case and Hudson v Hathway. In Hudson v Hathway the defendant was the respondent to the action brought by her former partner, the claimant. When, at the prompting of the Court of Appeal, the defendant's counsel applied to amend the respondent's notice, the defendant was effectively seeking to add an additional string to her bow, in terms of defending the decisions of the trial judge and Kerr J that she was entitled to the entire beneficial interest in the house. The claim that the relevant email communications had constituted a release was added to the defendant's existing claim of a constructive trust, as an additional ground of defence to the claimant's action. In the present case, by contrast, the Appellant is seeking to introduce a new claim into the action, as claimant in the action.
- This difference may be said to be immaterial. In Hudson v Hathway it is not clear that Lewison LJ attached particular importance to this difference, as it existed between Hudson v Hathway and other cases where the appellant was seeking to raise the new point; see the judgment of Lewison LJ at [36]. The difference leads on however to a more substantial point of difference with Hudson v Hathway.
- In Hudson v Hathway it is clear that the email communications between the parties were examined by the trial judge, and were the subject of findings by the trial judge. This is clear from the judgment of Lewison LJ at [23]:
"23 The trial judge found that the parties had clearly reached a deal, but at that stage it was accepted that the deal did not satisfy the formalities for transferring legal title, an equitable interest or a declaration of trust."
- What is also clear is that the email communications were examined by the trial judge in Hudson v Hathway for the purposes of determining whether they constituted an agreement between the parties that the defendant was to have the entire beneficial interest in the house. The trial judge found that the relevant communications did constitute "a deal" to this effect. It is important to keep in mind that this finding was essential to the case of the defendant which was put to the trial judge. At the trial, the defendant relied upon a common intention constructive trust, based upon the agreement which she said had been reached between herself and the claimant in the email communications. The trial judge found that this agreement had been reached. The parties had done a deal. This was sufficient to get the constructive trust claim off the ground. It appears however to have been common ground before the trial judge that an agreement of this kind was not enforceable unless the defendant could demonstrate that she had acted to her detriment in reliance upon the agreement. It was only in the Court of Appeal that it was appreciated that the agreement might also be enforceable as a release of the claimant's interest in the joint beneficial tenancy. In these circumstances, and for the purposes of considering the claim of a release, all that the Court of Appeal had to do was to read the relevant emails, and decide what effect they had. There was no need for further investigation of the factual context in which the email communications took place.
- In the present case the position is different. The Exchanges were not examined at the Trial. They featured only peripherally, in the evidence, in the submissions, and in the Second Judgment. Equally, to the extent that the Exchanges were the subject of evidence and submissions at the Trial, they were not considered for the purposes of determining whether the Respondent had made a release to the Appellant of his interest in the joint beneficial tenancy.
- The answer of Mr Barnes to this point was that the question of whether the Exchanges contain a release in the present case is, in common with the position in Hudson v Hathway, a pure point of law. The question is one which can be determined simply by reading the relevant emails and deciding that effect they had. As in Hudson v Hathway the question is one of contractual interpretation, in respect of which evidence of the subjective intentions of the parties, in the Exchanges, is inadmissible. The test of what effect the relevant emails had is an objective one, depending upon interpretation of the relevant emails.
- While I accept that evidence of subjective intention is inadmissible, in determining the meaning and effect of the relevant emails, and while I also accept that the meaning and effect of the relevant emails is to be determined on an objective basis, I am not persuaded that the present case is on all fours with Hudson v Hathway in this respect. Nor am I persuaded that the Release Claim constitutes a pure point of law. My reasons for these conclusions are as follows.
- The authorities cited to me in the appeal included a decision of the House of Lords and two decisions of the Supreme Court on the correct approach to contractual interpretation. They are Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, Rainy Sky SA v Kookmin Bank [2011] UKSC 50 [2011] 1 WLR 2900, and Wood v Capita Insurance [2017] UKSC 24 [2017] AC 1173. The principles of contractual interpretation established by these and other recent decisions are well-known, but for present purposes I go back to three of the principles set out by Lord Hoffmann in his speech in Investors Compensation Scheme, at 912H-913B:
"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them."
- The relevant point here is that the process of interpretation of a document takes place against the matrix of fact; meaning all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. That matrix of fact can include "absolutely anything" which would have affected the way in which the language of the document would have been understood by a reasonable person, subject to the requirement that the relevant facts were reasonably available to the parties and also subject to the requirement that the law excludes from the background the previous negotiations of the parties and their declarations of subjective intent.
- In Hudson v Hathway the context in which the email communications were sent was clear. Following the breakdown in their relationship the parties were engaged in negotiations over the division of their assets. One of those assets was the house. As the claimant made quite in the email communications, he was prepared to surrender his interest in the house, while preserving for himself those assets which he considered should be ring-fenced for himself. The defendant made it quite clear that she accepted what she understood to be the claimant's proposed division of the assets, including that she would "get the equity from the house". The claimant confirmed that the defendant's understanding of what she was accepting was correct, in particular in relation to the house.
- In the present case there has been no investigation of the context and circumstances in which the Exchanges took place or, in particular, the context and circumstances in which the critical emails of 9th and 10th June 2021 came to be written. In particular, there has been no investigation of the telephone call which was made by the Appellant to the Respondent on 10th June 2021. It is no answer to this latter point to say that the Respondent had the opportunity to say what he wanted to say about this telephone call in paragraph 25 of his witness statement. The witness statement was prepared, and put in evidence at the Trial without the Respondent knowing, or having any reason to know of the Release Claim.
- It is instructive to consider what would have happened in this case if the Release Claim had been pleaded from the outset of the action. In those circumstances it seems to me inevitable that both parties would have directed their evidence to the circumstances in which the Exchanges took place, and to the telephone call on 10th June 2021. It seems to me equally inevitable that the Trial would have taken a very different course, with both the Appellant and the Respondent being examined at some length in relation to the Exchanges, followed by extensive submissions on that evidence and on the meaning and effect of the Exchanges.
- I do accept that the extent to which the admissible factual matrix is relevant to the construction of a document varies from case to case. I also accept that there are cases where the reality is that the admissible factual matrix is effectively irrelevant. The court simply has to read the relevant document and decide what it means. I also accept that in some cases, it becomes apparent that the evidence called by the parties, in relation to a question of contractual interpretation, amounts to not much more than an attempt by the parties to get before the court inadmissible evidence of what they intended the relevant document to mean. In such cases it may be possible for the trial judge to cut short the evidence, on this basis. In other cases the trial judge may regard it as essential to have a complete understanding of the admissible factual matrix before deciding what the relevant document means.
- I am not persuaded that the present case is one where, if the Release Claim had been pleaded, it would have been clear that the task of the Judge was simply to read the relevant emails and decide what they meant. As I have said above, I would have expected the Trial to take a very different course. I would have expected the Judge to have wanted to examine the context and circumstances in which the critical emails were sent, and to have a fuller account of what was said and by whom in the telephone call on 10th June 2021.
- The conclusions are fortified by my own consideration of the critical emails relied upon by Mr Barnes. While it is not my task, at this stage of my analysis of the appeal, to reach a conclusion on the meaning and effect of those emails, their meaning and effect does not seem to me to be anywhere near as clear as the relevant emails in Hudson v Hathway. As I understood Mr Barnes' submissions, he relied upon the statements made in the emails sent on 9th June 2021 (23:07) and 10th June 2021 (15:34).
- I start with the email sent on 9th June 2021. As Mr Barnes pointed out, this email was sent before the telephone call was made the next day, and could not therefore have been affected by whatever was said in the telephone call. The Respondent first said "I don't want the house it's yours it's always been yours!". The Respondent then went on to say "I hate that house I want nothing to do with it. I wish you sell it and get a new place cosy, not a house full of history.", to which the Appellant replied "So why won't you come off the house if you want nothing to do with it?". These statements seem to me to raise some difficult questions of interpretation. What did the Respondent mean by these statements? What did the Appellant mean by her response, and was her response relevant? Were these statements of the Respondent or either of them effective words of release? I would be uncomfortable in trying to answer these questions without evidence of the admissible factual matrix and without submissions on that evidence.
- Turning to the email sent on 10th June 2021 the problems are, subject to one additional point, essentially the same. The Respondent gave his "full consent to be removed of the mortgage". Again, this gives rise to difficult questions of interpretation. What did this statement mean? Did this statement encompass the beneficial interest in the Property? The Respondent then said that he could "be present to sign any documents needed". What did this statement mean? Did the indication of willingness to sign documents extend to a willingness to sign a release of his interest in the beneficial joint tenancy? If so, how could the statement itself function as a release of the interest, if it was contemplated that a further signed document would be required? The Respondent then said that he was not "seeking any financial interest in the property". It is not immediately obvious to me how this statement could have constituted a release of an existing financial interest in the Property. As with the email of 9th June 2021, I would be uncomfortable in trying to answer these questions without evidence of the admissible factual matrix and without submissions on that evidence.
- The additional point, in relation to the email sent on 10th June 2021, is that by the time that email was sent the telephone call had been made. To repeat the point I have already made, I would have expected the Judge to have wanted to have a fuller account of what was said and by whom in the telephone call on 10th June 2021.
- Returning to the authorities cited to me on the question of when an appeal court should permit a new point to be taken, and drawing together all of the above analysis, my conclusions are as follows.
- First, and so far as the question of permission to pursue the Release Claim is concerned, I do not accept, for the reasons which I have given, that the present case is on all fours with Hudson v Hathway. It seems to me that there are significant differences, including important differences in the email statements which were under consideration in Hudson v Hathway and the email statements which are under consideration in the present case.
- Second, it seems to me that Ms Shalom was right in her identification of where this case lies, on the spectrum explained by Snowden J in Notting Hill Finance. If the Release Claim had been raised at the Trial it would (not might) have changed the course of the Trial significantly, in terms of the evidence and the submissions on that evidence, and would have required further factual enquiry. I do not accept that the Release Claim qualifies or comes anywhere near qualifying as a pure point of law which can be run on the basis of the facts as found by the Judge.
- Third, and turning to the principles identified by Haddon-Cave LJ in Singh v Dass, it seems to me that the present case falls into that category of cases where, as a general rule, the appeal court should not permit a new point to be raised because the new point either necessitates new evidence or, if the point had been run before the trial judge, would have resulted in the trial being conducted differently.
- Fourth, Snowden J did admit the possibility, in Notting Hill Finance at [27], that there might be exceptional cases in which the appeal court could properly exercise its discretion to allow a new point to be taken, notwithstanding that the case was on the wrong end of the spectrum, as a case where the course of the evidence at trial would have been different if the point had been taken at the trial. I cannot see that the present case falls into that category of exceptional cases. To the contrary, it seems to me that it would be both unfair and to the prejudice of the Respondent if I was to permit the Release Claim to be pursued now, in circumstances where the Respondent successfully resisted the Principal Claim and the Resulting Trust Claim, with no inkling, at the Trial, that what he had said in the Exchanges would turn out to be at the centre of the case.
- The conclusions which I have just set out seem to me to be reinforced by this point. In the course of argument I canvassed with counsel what course I should take if I was minded to permit the Release Claim to be pursued in the appeal. My use of the word "pursued", in my references in this judgment to the raising of the Release Claim in the appeal, is not an accident. It reflects the fact that the Release Claim is not, as it seems to me, aptly described as a "point". It seems to me that it is a distinct claim, separate to the Claims which were pleaded in the action. As such, the Release Claim required to be pleaded, and the Respondent was entitled to plead his case in response to the Release Claim, with the possibility, if required, of a reply from the Appellant. In the present case this has not happened. The Release Claim was not pleaded and remains unpleaded.
- If the Release Claim constituted a pure point of law this might not matter. The absence of a pleaded case might be considered not to matter. This is not however the position. In my view, even if I was minded to permit the Release Claim to be pursued, it seems to me that it would need to be pleaded to, by both parties. In practical terms, this would mean that I would not be able to determine the Release Claim for myself. Instead, it seems to me that the Release Claim would have to be remitted to the County Court, for the Release Claim to be pleaded to by the parties, and then heard at trial, for which appropriate directions would have to be given. I cannot see how it could possibly be right to condemn the parties to this course. Not only would it amount to giving the Appellant an effective second attempt at the action. It would also condemn the parties to further expense and delay, in a case where, it seems clear, resources are limited and it is in the best interests of the parties that this very unfortunate litigation is brought to a conclusion as soon as possible.
- All this, as I have said, seems to me to reinforce my conclusion that it would neither be appropriate nor just to allow the Release Claim to be raised in this appeal.
- There is one other point which I should mention before I come to my decision on the question of whether the Appellant should be permitted to pursue the Release Claim in the appeal. In the course of his oral submissions Mr Barnes invited me to infer that the failure of the Appellant to pursue the Release Claim at the Trial was because the point was missed by her solicitor advocate at the Trial. In making this submission Mr Barnes drew my attention to what was said by Nourse LJ in Pittalis v Grant [1989] QB 605, at 611 (quoted by Snowden J in Notting Hill Finance at [23]):
"The stance which an appellate court should take towards a point not raised at the trial is in general well settled: see Macdougall v Knight (1889) 14 App Cas 194 and The Tasmania (1890) 15 App Cas 223. It is perhaps best stated in Ex parte Firth, In re Cowburn (1882) 19 Ch D 419, 429, per Sir George Jessel MR: 'the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence.' Even if the point is a pure point of law, the appellate court retains a discretion to exclude it. But where we can be confident, first, that the other party has had opportunity enough to meet it, secondly, that he has not acted to his detriment on the faith of the earlier omission to raise it and, thirdly, that he can be adequately protected in costs, our usual practice is to allow a pure point of law not raised below to be taken in this court. Otherwise, in the name of doing justice to the other party, we might, through visiting the sins of the adviser on the client, do an injustice to the party who seeks to raise it."
- Mr Barnes referred me to the concluding part of this extract from the judgment of Nourse LJ, in which reference was made to doing an injustice to the party seeking to raise the new point "through visiting the sins of the adviser on the client".
- I do not think that this reference is relevant in the present case, for at least three reasons.
- First, Nourse LJ was referring to a situation where the new point was a pure point of law and the conditions for raising the new point, as identified by Nourse LJ, were satisfied. In such a case the usual practice should be to allow the new point to be taken. Not doing so would risk the party seeking to raise the new point being held responsible for a failure by their advisers to take the point at first instance. The present case does not fall into this category of case. The Release Claim is not a pure point of law.
- Second, it is clear that Nourse LJ did not mean to say that permission to take a new point of law should be granted in all cases where the failure to take the point at first instance was the fault of an adviser. All that Nourse LJ was doing, as I read this extract from his judgment, was identifying a possible injustice which might result from refusing permission for a new point of law to be taken in an appeal.
- Third, what was by Nourse LJ assumes that the failure to take the relevant point at first instance was the result of a failure on the part of the relevant adviser. I am not persuaded that it is appropriate for me to speculate on why the Release Claim was not pursued in the action or at the Trial. There has been no waiver of privilege by the Appellant, and I do not consider that it would be appropriate or fair to infer or assume that the failure to pursue the Release Claim at first instance was the fault of the Appellant's then solicitor advocate or, for that matter, the firm of solicitors then acting for the Appellant.
- Drawing together all of the above analysis, and for the reasons which I have set out and applying the guidance in the authorities cited to me on this question, I conclude that the Appellant should not be permitted to pursue the Release Claim in the appeal.
The substance of the Release Claim
- The above conclusion renders it unnecessary, and inappropriate for me to consider or to attempt to decide the second issue raised by the appeal; namely the question of whether the Exchanges do contain an effective disposition, by release, of the Respondent's beneficial interest in the Property to the Appellant. In circumstances where I am firmly of the view there would have been the need for further evidence and further factual inquiry, if the Release Claim had been pursued at the Trial, I am in no position to address the substance of the Release Claim in this appeal.
- The only point I would repeat, and stress, is that the question of whether the critical emails in the present case did contain statements which, individually or collectively, constituted a release of the Respondent's interest in the Property seems to me to be a considerably less straightforward question than it was in Hudson v Hathway. How the Judge would have answered this question, if the Release Claim had been before him in the Trial, is not a question to which I can or should seek to second guess the answer.
The outcome of the appeal
- For the reasons which I have set out in this judgment, the appeal is dismissed.
Postscript
- This is a most unfortunate case. It is very much to be regretted that the breakdown in the relationship between the Appellant and the Respondent has resulted in this litigation, the expense of which I suspect neither party can easily afford.
- I can readily understand the disappointment which the Appellant will feel, both in relation to the failure of the Claims and in relation to my refusal to permit the Appellant to pursue the Release Claim in the appeal. I also understand that the Appellant may find it hard to accept that the Respondent, who I understand to have a conviction for assault against the Appellant, should be entitled to a share in the Property. Ultimately however, and if one is looking at this case in the round, it seems to me that it is important to keep in mind the Judge's findings in the Second Judgment. In particular, the Judge correctly decided that there was no escape for the Appellant from the declaration of trust which she and the Respondent executed in the 2018 Transfer. The Judge also found, and his findings in this respect have not been challenged, that the circumstances in which the Appellant and the Respondent acquired the Property were not consistent with the argument that the Respondent got something for nothing by the 2018 Transfer. Viewed in this light, and while this is not directly relevant to the decision which I have made on the appeal, the ultimate outcome of the Trial and the appeal does not seem to me to be an unfair one.