Family Law Hub

Llewelyn v Rickard [2013] EWCA Civ 1677

Appeal against a ruling that the appellant had no beneficial interest in the family home. The family home had been bought partly with the proceeds of a former home which was initially held in joint names. After the appellant was declared bankrupt, the trustee-in-bankruptcy transferred his beneficial interest to the respondent for a nominal consideration and the present family home was also in her sole name. The defendant helped to pay the mortgage. The appeal was allowed and the judge concluded that the inference in those circumstances was that he should have some beneficial interest in what was intended to be a family home for both parties and their 3 children.

  • B2/2013/1382

    Neutral Citation Number: [2013] EWCA Civ 1677

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM SLOUGH COUNTY COURT

    (DISTRICT JUDGE PARKER)

    Royal Courts of Justice

    Strand

    London WC2A 2LL

    Tuesday, 5 November 2013

    B e f o r e:

    LORD JUSTICE PATTEN

    Between:

    LLEWELYN (Appellant)

    v

    RICKARD (Respondent)

    DAR Transcript of

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    Mr K Knight (instructed by Charley Harrison LLP) appeared on behalf of the Appellant

    The Respondent did not appear and was not represented

    J U D G M E N T

    LORD JUSTICE PATTEN:

    1. This is a renewed application for permission to appeal against the decision of District Judge Parker made in the Slough County Court on 25 April 2013 in proceedings which concern the beneficial ownership of a property at 39 St Luke's Road, Windsor. That property is registered in the sole name of the defendant, Miss Rickard, who is the former partner of the claimant, and has been so registered since its purchase in 1999.

    2. The judge dismissed Mr Llewelyn's claim to a half interest in the property because he said he was not satisfied on the evidence that the parties had at any material time the requisite common intention that the claimant should have a beneficial interest in the property. He directed himself in paragraph 96 of his judgment to a paragraph of the judgment in the Supreme Court's decision in Jones v Kernott, where it is said that:

    "The primary search must always be for what the parties actually intended to be deduced objectively from their words and their actions. If that can be discovered, then it is not open to a court to impose a solution upon them in contradiction to those intentions merely because the court considers it fair to do so."

    3. But of course there are other statements of principle in that judgment, which include in paragraph 34 of the joint judgment of Lord Walker and Baroness Hale a statement to the effect that the law recognises that a legitimate inference may not correspond to an individual's subjective state of mind, and a reminder by Lady Hale that, as she puts it:

    "In family disputes, strong feelings are aroused when a couple split up. This often leads the parties, honestly but mistakenly, to reinterpret the past in self exculpatory or vengeful terms."

    4. In this particular case, the property was purchased in 1999 to provide a home for the parties and their family. The parties' relationship had begun back in 1982, and in 1988 they purchased their first home at 63 Gray's Place, Slough, which was purchased in joint names. Their first child was born in 1990, but in 1995 Mr Llewelyn was made bankrupt. He was discharged from bankruptcy in 1997 about the time that a second child was born. In 1998 he began working for a company called Textile Holdings Limited which I will come back to in a moment and he remained in employment there until 2001.

    5. In 1999, the trustee-in-bankruptcy transferred his beneficial interest, that is to say Mr Llewelyn's former beneficial interest, to Miss Rickard for a nominal consideration. As part of those arrangements, she became the sole legal owner and, I think, it is accepted also the sole beneficial owner.

    6. The judge was asked to consider as part of these proceedings whether or not it was possible to impute to the parties a common intention to, so to speak, reverse the process occasioned by his bankruptcy so that he became once again a beneficial owner in Gray's Place prior to its sale, but the judge rejected that and, as I understand it, that is not challenged as part of this appeal.

    7. The position, therefore, at the time that 39 St Luke's Road was purchased in 1999 was that the net proceeds of 63 Gray's Place that were used in part to purchase that property belonged to the defendant, Miss Rickard. The purchase price was about £155,000, and there was a mortgage loan of £127,000 to fund the balance of the purchase.

    8. The purchase of 39 St Luke's Road was again in the sole name of Miss Rickard and the property became their family home throughout the remainder of their relationship.

    9. In 2000, a third child was born and between, as I have said, 1998 and 2001 it appears from the judge's findings of fact that Mr Llewelyn's salary provided the bulk of their joint earnings and were needed in order to pay the mortgage; although it is accepted that neither then nor at any subsequent time did he make direct payments of the mortgage to the bank or building society. It was simply a matter of his pooling his income which was then used by Miss Rickard to make the mortgage repayments.

    10. The judge in his judgment goes on in some detail to examine the subsequent relationship of the parties. He finds that there was no subsequent agreement that there should be shared beneficial ownership of the property. He records the evidence of Mr Llewelyn that he did not press Miss Rickard to put the property in joint names because he was anxious to avoid any unpleasantness between them. In particular, he records the evidence of Mr Llewelyn, as he puts it in his witness statement, that:

    "Throughout the relationship the defendant could be most unreasonable if I did not agree with her opinion. I believe that she accepts that I did have an interest in the properties, but whenever the question came up for discussion as to whether or not my name could be placed on the deed, she was always very reluctant, saying she did not trust me."

    11. The judge also found that Mr Llewelyn's income continued throughout the period of his cohabitation to be used to meet family expenses, including the mortgage, even after a time when a company had been set up from which Miss Rickard also derived an income. He also found that when the property was subsequently extended, Mr Llewelyn made no identifiable financial contribution to that extension, although when some additional land was purchased that was put into joint names and it is accepted that he does have a beneficial interest in that.

    12. The judge's conclusion that it is not possible from these facts to infer an intention that the property should be owned by both parties is challenged on this application, principally on the basis that although it was open to the judge to find as he did that Mr Llewelyn did not ultimately press Miss Rickard in discussions to have his name put on the title for the reasons which I have just described, and that there was no express agreement that he should have a beneficial interest, the most obvious, and indeed I think it is said almost the only realistic inference to draw from the fact that in 1999 the property was bought with a significant mortgage which both parties at that time must have contemplated that Mr Llewelyn would pay as part of his contribution to the family, the only reasonable inference to draw from that was that he should have an interest in the property, even if his name was not put on the title.

    13. It is said also that the subsequent acrimony that may have occurred between the parties was to some extent due to the subsequent break down of their relationship rather than to any accurate recollection by Miss Rickard's of what the parties must be taken to have intended when they purchased 39 St Luke's Road in rather happier circumstances.

    14. Lord Justice Lloyd refused permission on the basis that the judge had made findings of fact which justified his not drawing an inference of a common intention to share a beneficial ownership, and correctly directed himself as to the law, but I think that it is at least arguable for the purposes of granting leave, which I propose to do, to say that the judge did not fully analyse the circumstances in which the property came to be purchased.

    15. Nor did he properly ask himself the question of what was the correct inference to draw by reference to the position as it actually stood in 1999, rather than with the benefit, so to speak, of hindsight extrapolated from subsequent incidents in the parties' relationship.

    16. I think it is at least arguable that a strong inference to be drawn from the fact that this house was bought as a family home, against a background where the claimant had originally, prior to his bankruptcy, an undoubted interest in the first family home, and where his income was to be used to pay the mortgage on this second property, then the inference in those circumstances is that he should have some beneficial interest in what was intended to be a family home for them all.

    17. In those circumstances, I think that the case does pass the necessary hurdle and, for that reason, I give permission to appeal.


Judgment, published: 18/12/2013

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Published: 18/12/2013

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