Family Law Hub

Slater v Condappa [2012] EWCA Civ 1506

  • In a tweet: A good illustration of the importance of credibility in ToLATA and similar cases

    Summary: Another case which we have previously covered in the last few months. You may recall that Ms Slater ("Ms S") successfully obtained permission to appeal a first instance decision that dismissed her claim to a beneficial interest in a property, 61 Dongola Road, London ("the property"). 

    To recap, the property had been purchased in October 1986 by Mr Condappa ("Mr C") and his then girlfriend as tenants in common with the help of an interest only mortgage. When their relationship ended two years later, Mr C borrowed £15,000 from the mortgage lender to buy out his ex-girlfriend's beneficial interest. As part of these arrangements, a friend of Mr C's became a joint legal owner of the property and a joint mortgagor; Mr C remained the sole beneficial owner though. 

    Mr C did not have much more luck with his next girlfriend; when their relationship ended, she sought to establish a beneficial interest in the property. Eventually those proceedings were discontinued. 

    Mr C and Ms S had known each other as teenagers. Their relationship began in 1994 and Ms S moved into the property with her daughter later that same year. They never married but were engaged; the first instance judge had accepted that they had lived as husband and wife as an established family unit.  In 1997, they had a son. 

    Aside from their personal relationship, Ms S helped Mr C in his computer business; this was run as a partnership in which they both had equal shares. It had been set up after they had started living together and it produced additional income for them over and above that which Mr C received from his regular employment. Ms S, whilst having no experience of working with computers, quickly gained the relevant qualifications and was found to have been an extremely capable administrator; Mr C came to rely on her to take care of the business side of the relationship. 

    Although Ms S was living full time at Mr C's property, she had not relinquished her tenancy of a council flat; in September 1995 she was granted a tenancy of a two-bed council house and in March 2010 she obtained a tenancy of a three-bed council house, where she now lives. 

    In January 2005, Mr C and Ms S's relationship came to an end. Ms S sought to establish a claim that she had been promised a 50% beneficial interest in the property by Mr C in 1995 and then again in 1997. She argued that, although they had not married, they had lived in and treated the property as if it were in their common ownership and they had paid for the expenses of their home and family life accordingly. She relied in particular on an occasion in 1997, after they had became engaged, when she said she asked Mr C whether the position about the title  to the property would change when they got married;she alleged that he had told her there was no need to change the paper title because they were already joint owners. 

    Her alternative claim to sole beneficial ownership of the property was based upon an alleged conversation in 1999 when she first discovered that Mr C was having an affair. Her evidence was that she had left with the children and gone to New York but that, on her return, Mr C had begged her not to leave him and agreed that if he ever betrayed her again or they separated, the property would be hers. She therefore claimed to be the sole beneficial owner following their separation in 2005.

    At first instance, the judge rejected both Ms S's claims. He described Ms S's evidence as fanciful and preferred Mr C's evidence that the issue of the beneficial ownership of the property had never been discussed. Given that the parties were the only witnesses and the claims depended upon alleged oral assurances, the credibility of Mr C and Ms S was an important matter for the court to assess. Neither party came to the court with "clean hands" but the  first instance judge nevertheless said: 

    "I have also, of course, had the opportunity of assessing both the Claimant and the Defendant whilst giving evidence and one thing which struck me about the Claimant was how she supposedly admitted her various deceits and perjuries and so on, but in so doing looked me straight in the eye without a flicker of regret, remorse or contrition about what she had done or, indeed, of what she was still doing In my view, she so-called came clean to this court but has not come clean to anybody else or any other agencies who, in fact, suffered a loss, and the reason she has done so to this court is because it suits her to do so to me but it does not suit her in respect of any other of these matters."

    One particular matter the first instance judge had taken into account when forming his low opinion of Ms S was Mr C's evidence that, in 1997, Ms S had forged some letters from a potential employer to bolster her claim for damages arising from a road traffic accident. The accident had occurred in February 1997; in subsequent proceedings, Ms S was awarded damages of over £30,000 which were paid in 2003.  part of the evidence she relied upon was correspondence from a potential employer suggesting that she had been considered favourably for a job with a starting salary of £30,000 but that because of the injuries she had sustained, she was now unable to work. There had been three letters from this potential employer all of which had at some stage been scanned on to and saved as files on the couple's business computer system. Mr C alleged that he had found a file on the computer containing three Word documents which he asserted must have been typed by Ms S as they were word-for-word the same as the letters addressed to her from the potential employer. To rebut the suggestion that he had created the Word documents himself in order to discredit Ms S, he produced copies of the properties box for each of the documents which recorded the dates on which they had been created and the dates of any modifications.  These indicated that the Word documents had all been created on the dates contained in the letters; Mr C expressed the opinion that it was not possible to retrospectively alter a creation date. Ms S argued that it was possible to do precisely this. 

    Ms S appealed the first instance decision on the following grounds:

    • the judge's finding that she had forged letters for the purposes of a road traffic claim had been based on an incomplete understanding of document creation dates stored on computers and that this had affected his overall assessment of her credibility - she submitted that the forgery allegation had had a significant effect on the judge early in the trial and had put her at a disadvantage in respect of her credibility throughout the trial;
    • the judge had failed to deal with the evidence of the 1997 conversation; and
    • the judge had been mistaken in his understanding of how the parties had allocated and spent the proceeds from their joint business.

    Held: On the issue of the forgery of the three letters, Patten LJ (who gave the leading judgment) said that the forgery allegations had not been critical to the first instance judge's assessment of Ms S's credibility; it was clear from the transcript that the judge's  findings had merely corroborated his impression of Ms S which had already been formed when she had admitted to being dishonest in her dealings with the local authority and the court. He was not persuaded that, had the judge formed a different view about the forgery of the letters, this would have caused him to re-assess Ms S's credibility. 

    The second ground of the appeal, Patten LJ said, was even more tenuous and the failure of the judge to mention expressly the 1997 conversation did not assist Ms S because he had already found there was no agreement in 1995. 

    On the third and final ground of appeal, however, Patten LJ found that the judge had been wrong to make the finding that he did in respect of how the joint business proceeds had been spent; he accepted Ms S's evidence that the money had simply come in, without being divided, and was then spent on family expenses as a shared fund. This though was not enough to establish Ms S's claim. Permission to appeal on all three grounds was therefore refused.

Case note, published: 05/12/2012

Topics

See also


Published: 05/12/2012

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item