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Judicial Discretion in Ownership Disputes Over the Family Home Durham E-Theses Judicial Discretion in Ownership Disputes over the Family Home HAYWARD, ANDREW,PETER How to cite: HAYWARD, ANDREW,PETER (2013) Judicial Discretion in Ownership Disputes over the Family Home , Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/8489/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk Judicial Discretion in Ownership Disputes over the Family Home By Mr Andrew Hayward LL.B (ELS) (Dunelm) LL.M (Cantab) PGCAP Submitted to Durham University for the degree of Doctor of Philosophy Submitted 9th July 2013 Durham Law School The Palatine Centre Stockton Road Durham DH1 3LE 1 THESIS ABSTRACT The core focus of this thesis is on the exercise of judicial discretion in the resolution of ownership disputes over the family home. Drawing upon the academic scholarship on judicial discretion, this thesis evaluates how the exercise of discretion has been conceptualised and employed within this specific context. Focusing on both the exercise of judicial discretion in matrimonial property disputes prior to the House of Lords’ decision in Pettitt v Pettitt in 1969 and in the modern implied trust framework, it questions whether there is evidence of judges arrogating enhanced discretion to themselves and whether this is deployed in order to take account of ‘changing social and economic circumstances’ surrounding the ownership of family property. Having identified an increased visibility of discretion in modern family property cases, this thesis questions whether a greater use of discretion within the context of domestic property evidences a departure from traditional property law reasoning and represents a problematic development in the law requiring a return to orthodoxy. This thesis provides a more nuanced understanding as to the exercise of discretion within this context. The claim advanced by this thesis is that judges in this specific context have increased their use of discretion to enable greater sensitivity to the domestic context and, whilst this may appear a controversial move to some, it is a beneficial, principled and structured modification of the property law framework applicable in this area. 2 ACKNOWLEDGEMENTS I would like to thank Professor Lorna Fox-O’Mahony for her guidance, critical eye and support throughout the course of this project. Thanks also go to Dr Robin Hickey and Professor Helen Fenwick who read through several chapters, provided detailed feedback and were a constant source of support. Professor Erika Rackley and Professor William Lucy provided helpful guidance on judicial discretion and judicial reasoning. Thanks also goes to Professor John Mee, Dr Martin Dixon, Nick Piska, Dr Rob George, Dr Juanita Roche and Dr Brian Sloan for useful discussions and debates. I would also like to thank Dr Aoife O’Donoghue, Colin Murray, Dr Kevin Brown, Laura Graham and Hayley Wharton for their encouragement and guidance. Chris Bevan deserves my greatest thanks for his endless support, his patience and for just being there. This thesis is dedicated to my parents, Jackie and Tony. The copyright of this thesis rests with the author. No quotation from it should be published without the prior written consent and information derived from it should be acknowledged. 3 TABLE OF CONTENTS Introduction Overview of the Implied Trusts Framework 11 The Problems to be Addressed by this Thesis 13 The Failure of the Implied Trust Framework to Accommodate the Domestic Context 13 The Exercise of Judicial Discretion to Accommodate the Domestic Context 17 Judicial Discretion and Ownership Disputes over the Family Home: Research Questions in this Thesis 21 Methodology and Structure 22 Chapter One: Theoretical Perspectives on Discretion Introduction 25 Analysing Academic Scholarship on Discretion 26 Defining Discretion 29 Positive Definitions of Discretion 31 Negative Definitions of Discretion 34 The Relationship between Rules and Discretion 37 The Conferral of Discretion 41 Express Conferral of Discretion 42 Informal Discretion 44 The Utility and ‘Tyranny’ of Discretion 46 Conclusions 51 Chapter Two: The Use of Judicial Discretion in Ownership Disputes over the Matrimonial Home 1948-1958 Introduction 55 The Absence of Special Rules for Married Couples 56 The Presumed Intention Resulting Trust 58 The Presumed Intention Resulting Trust and Matrimonial Ownership Disputes 60 4 Judicial Discretion and the Married Women’s Property Act 1882 64 Re Rogers’ Question 66 Rimmer v Rimmer 71 Cobb v Cobb 77 Fribance v Fribance 81 Conclusions 85 Chapter Three: The Use of Judicial Discretion in Ownership Disputes over the Matrimonial Home 1958-1969 Introduction 89 Delimiting the Scope of Judicial Discretion Conferred by Section 17 90 Expansive Interpretation of the Scope of Section 17: Hine v Hine 100 Section 17 and Improvement Cases 105 Structuring the Exercise of Judicial Discretion and the Development of the ‘Family Assets’ Approach 113 Conclusions 117 Chapter Four: The Use of Judicial Discretion after Pettitt v Pettitt and Gissing v Gissing Introduction 123 Pettitt v Pettitt 125 The Interpretation of Section 17 in Pettitt v Pettitt 129 Gissing v Gissing 136 Criticisms of Pettitt v Pettitt and Gissing v Gissing and the Role of Discretion 141 Judicial Discretion in post-Gissing v Gissing Case Law 149 Conclusions 153 Chapter Five: Judicial Discretion and the Common Intention Constructive Trust: Acquisition Introduction 158 Judicial Discretion and Express Common Intention 159 Judicial Discretion and Inferred Common Intention 168 Judicial Discretion and the House of Lords’ Decision in Lloyds Bank v Rosset 172 5 Challenges to Lloyds Bank v Rosset 179 Conclusions 187 Chapter Six: Judicial Discretion and the Common Intention Constructive Trust: Quantification Introduction 192 Judicial Discretion in Midland Bank v Cooke and Oxley v Hiscock 193 Stack v Dowden 203 Judicial Discretion and the Use of Context in Stack v Dowden 207 Judicial Discretion and Fact-Sensitivity in Stack v Dowden 211 Jones v Kernott 217 The Structured Use of Judicial Discretion in Jones v Kernott 221 Judicial Discretion and Fairness in Jones v Kernott 222 Conclusions 226 Conclusions: Judicial Discretion in Ownership Disputes over the Family Home Judicial Discretion in Ownership Disputes over the Family Home 250 Bibliography 253 6 TABLE OF CASES A Abbott v Abbott [2007] UKPC 53, [2007] All ER (D) 432 (PC) Adekunle v Ritchie [2007] EW Misc 5 Ali, Re [2012] EWHC 2302 (Admin) Allen v Allen [1961] 3 All ER 385 (CA) Appleton v Appleton [1965] 1 All ER 44 (CA) Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 11, [2009] 2 All ER 1127 (PC) B Balfour v Balfour [1919] 2 KB 571 (CA) Bedson v Bedson [1965] 3 All ER 307 (CA) Bendall v McWhirter [1952] All ER 1307 (CA) Bernard v Josephs [1982] Ch 391 (Ch) Bramwell v Bramwell [1942] 1 KB 370 Buggs v Buggs [2003] EWHC 1538 Burns v Burns [1984] 1 All ER 244 (CA) Butler v Butler (1884-85) QBD 831 C Carly v Farrelly [1975] 1 NZLR 356 Caribbean Products (Yam Importers) LtD, Re [1966] 1 All ER 181 Chapman v Chapman [1969] 3 All ER 476 (CA) Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 4 All ER 677 (HL) Cobb v Cobb [1955] 2 All ER 696 (CA) Cooke v Head [1972] 2 All ER 38 (CA) Cowcher v Cowcher [1972] 1 All ER 943 Crossco No 4 v Jolan LtD [2011] EWCA Civ 1619 Curley v Parkes [2004] EWCA Civ 151, [2004] All ER (D) 344 (CA) Curran v Collins (Permission to Appeal) [2013] EWCA Civ 382 D Diwell v Farnes [1959] 2 All ER 379 (CA) Drake v Whipp [1996] 2 FCR 296 (CA) Duport Steels Ltd and others v Sirs and others [1980] 1 All ER 529 Dyer v Dyer (1788) 2 Cox 92 Dyson Holdings Ltd v Fox [1976] QB 503 (CA) E Eykyn’s Trust Re (1877) 6 ChD 115 Eves v Eves [1975] 3 All ER 768 (CA) 7 F Falconer v Falconer [1970] 3 All ER 449 (CA) Fender v St John-Milday [1938] AC 1 Fowler v Barron [2008] EWCA Civ 377, [2008] All ER (D) 318 Fribance v Fribance [1957] 1 All ER 357 (CA) G Gammans v Ekins [1950] 2 KB 328 (CA) Gaynor v Gaynor [1901] IR 217 Geary v Rankine [2012] EWCA Civ 555 (CA) Gissing v Gissing [1971] AC 886 (HL), [1969] 1 All ER 1043 (CA) Goodman v Gallant [1986] 1 All ER 311 (CA) Gottliffe v Edelston [1930] 2 KB 378 Gow v Grant [2012] UKSC 29 Grant v Edwards [1986] 2 All ER 426 (CA) H Halifax Building Society v Brown [1995] 3 FCR 110 Hammond v Mitchell [1992] 2 All ER 109 Hanlon v The Law Society [1981] AC 124 (HL) Hapeshi v Allnatt [2010] EWHC 392 Hargrave v Newton [1971] 3 All ER 866 (CA) Harwood v Harwood [1992] 1 FCR 1 (CA) Hawes v Evenden [1953] 2 All ER 737 (CA) Heseltine v Heseltine [1971] 1 All ER 952 (CA) Hichens v Hichens [1945] P 23 (CA) Hine v Hine [1962] 3 All ER 345 (CA) Hoddinott v Hoddinott [1949] 2 KB 406 (CA) Hofman v Hofman (1965) NZLR 795 Holman v Howes [2007] EWCA Civ 877, [2007] All ER (D) 449 Huntingford v Hobbs [1993] 1 FCR 45 (CA) Hussey v Palmer [1972] EWCA Civ 1, [1972] 3 All ER 744 (CA) Hutchinson
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