Family Law Hub

O'Kelly v Davies [2014] EWCA Civ 552

Appeal against an order which declared that the applicant held a property on trust for herself and the respondent beneficially in equal shares. During the litigation, both parties had wished to conceal the fact that they had been involved in benefit fraud.

  • Neutral Citation Number: [2014] EWCA Civ 552




    His Honour Judge C. Vosper QC

    Claim No: 2SA00014

    Royal Courts of Justice


    London, WC2A 2LL

    Tuesday, 15 April 2014

    B e f o r e:





    - and -



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    Mr Graham Walters (instructed by Paton & Carpenter) appeared on behalf of the Applicant

    The Respondent did not appear and was not represented

    J U D G M E N T

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    LORD JUSTICE RIMER: This is a renewed application for permission to appeal. Patten LJ refused permission on the papers on 26 July 2013.

    The applicant is Jeanette O'Kelly who is the defendant to the claim. The claimant/respondent is Kenneth Davies, her former partner. The proposed appeal is against the order dated 14 March 2013 made by His Honour Judge C. Vosper QC in Swansea County Court by which he declared that the applicant holds a property at 74 Lon Olchfa, Sketty, Swansea on trust for herself and the respondent beneficially in equal shares.

    The judge's careful judgment records a story which does not make for edifying reading. It reflects extremely poorly on both parties to the litigation. Whilst the judge expressed himself in moderate terms, he was satisfied that neither of the parties was truthful in the evidence they respectively gave. The reason for their lack of frankness was, so the judge inferred, that they wished to conceal that they had both been parties to a benefit fraud.

    The bones of the case are that in 1987 the parties bought in their joint names a house at 42 William Street, Swansea. In May 1991, however, they transferred that house into the sole name of the applicant. The judge found that the purpose of that exercise was so that, contrary to the facts, the applicant could claim benefits as a single woman living alone whereas it was, in fact, the home of both of them and also became that of their child later born in 1996. He found that that was their joint purpose.

    In 2006, the applicant sold No 42 to the respondent for £155,000 and then purchased, again in her sole name, 74 Lon Olchfa for £130,000. The judge found that No 74 was also bought in her sole name so as to enable her to carry out the dishonest common purpose of claiming benefits, now as a single parent, although No 74 continued to be the family home.

    The respondent's claim was that immediately before his purchase in 2006 of No 42, he had a beneficial interest in that property under a common intention constructive trust and that that interest was transferred to No 74 upon its purchase. The judge agreed and held the share to be a half share.

    The applicant wishes to challenge that conclusion on appeal on the ground that a critical element of the judge's findings as to the existence of the common intention constructive trust was his finding that both properties were put in the sole name of the applicant for the purpose of achieving a benefit fraud. The judge would, I consider, properly disagree with that summary of his reasoning. Patten LJ, when refusing permission, also considered that the respondent had not needed to rely on his illegal conduct in making good the constructive trust that he asserted.

    I am, with respect, rather less confident than Patten LJ that the illegality that underpinned the parties' property transactions can simply be ignored in assessing the extent to which it was a feature upon which the respondent's claim succeeded. It appears to me to be repugnant to any ordinary concepts of justice that, having made what was plainly intended to appear as an outright disposition of No 42, so as to enable the applicant to engage in a benefit fraud for her and their and his joint benefit, the respondent should then be entitled to claim that he had a beneficial interest in it.

    It appears to me to be equally repugnant that the respondent should be entitled to agree to the vesting of No 74 in the sole name of the applicant for like dishonest purposes, and again be entitled to claim a beneficial interest in it. The applicant is herself in a no more virtuous position but, as they used to say, potior est conditio defendentis.

    In my judgment, this is a case in which permission to appeal ought to be given. I consider that at the very least an appeal would have a real prospect of success. Given the inequity of the parties' conduct, the court may also want to consider whether the case should be referred to the prosecuting authorities. I propose, therefore, to give permission to appeal.

Judgment, published: 01/05/2014


Published: 01/05/2014


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