TOLATA: Common Misconceptions and Update Rhys Taylor Barrister and Arbitrator 30 Park Place 10 Common Misconceptions

TOLATA: Common misconceptions and update Rhys Taylor Barrister and Arbitrator 30 Park Place 10 Common misconceptions

Misconception 1 of 10

• It’s family law and the result needs to be fair (fairness only plays very limited role) – Touchstone – parties’ intentions 10 Common misconceptions

Misconception 2 of 10

• The importance of express declaration of trust. – Since April 1998 contained within the TR1 – ALWAYS get the TR1 in joint names case. – Very limited circumstances when you can depart from TR1 • Fraud, common mistake, undue influence. • Subsequent constructive trust/estoppel e.g. Clarke v Meadus [2010] EWHC 3117 (Ch) • “The beneficial interest under an express trust of a party who leaves the property on the breakdown of a relationship will not be affected merely because nothing is said or done about the beneficial interest at the time of departure, although the other arrangements then made by the parties may support the inference of a common intention that the beneficial interests should be varied. “ (Lewin on Trusts, 19th edition, paragraph 9-060)

10 Common misconceptions

Misconception 3 of 10

• The role of contributions. – They are merely evidence of what the parties’ may have intended, not an end in themselves. – Must be clear what is gift, loan or direct contribution to purchase or significant development. Often woolly/inconsistent thinking here.

10 Common misconceptions

Misconception 4 of 10

• What to ask the client?

– Who said what, where and when? – Get as much detail as possible (maybe need conference?) 10 Common misconceptions

Misconception 5 of 10

• The importance of consistency

– Need for clear letter before action – But beware of months of open correspondence – can be hostage to fortune 10 Common misconceptions

Misconception 6 of 10

• Need to prove detrimental reliance.

– What did claimant do in light of whatever was said? – Would they have done it anyway?

10 Common misconceptions

Misconception 7 of 10

• What discussions are admissible and what discussions are made “without prejudice.” 10 Common misconceptions

Misconception 8 of 10

• How to start proceedings. – Part 7 or Part 8? – Is there a substantial dispute of fact? – Order for sale only? – Need to line up your ducks in either event. – Part 8 – exhibit evidence which you are relying upon 10 Common misconceptions

Misconception 9 of 10

• Costs – The amount – Always ask – what are costs’ implications of this? – Need to be realistic about costs budgeting • Some family departments might require costs’ draughtsman 10 Common misconceptions

Misconception 10 of 10

• Complexity

– Far more complicated than is often given credit – When the work needs to be incurred. Frontloading. ADR of TOLATA disputes

• Problems with litigation – Time it takes to get to trial and lack of judicial resources – Costs: amount , budgeting, shifting – Publicity • Mediation – But what if parties have wildly differing views as to the merits? – Reluctance by mediators to “give a view” if does not settle. • Early Neutral Evaluation – See amendment to CPR 3(1)(m) from 1/10/15. – Statutory backing to Seals v Williams [2015] EWHC 1829 (Ch) and Briggs LJ’s recommendations in 2013. – Get ‘into the right parish’ Then for parties to finalise agreement? • Arbitration, quick, enforceable under s.9AA and no costs’ shifting. Case law update

Bagum v Hafiz & Hai [2015] EWCA Civ 801 • Wider family dispute. Mother + 2 x adult sons, TICs equal shares declared by parties when one son left. • Later dispute re sale – should there be sale or could one party buy the other out? • What is role of trustees? – s.6, have regard to rights of beneficiaries and not to act in contravention of equity, which arguably includes duty to get best price and not to favour one beneficiary over another. • What is role of court? – Can step into shoes of trustees (s.14) but range of matters to take into account at s.15 wider than s.6. • No power to order one party buys the other out, but (on facts of case including purpose of trust and good comparables) can give one party option of first refusal. Likely to be rare, but don’t overlook potential. • N.b. PD40D esp 3.1, permission to bid

Case law update

O’Kelly v Davies [2014] EWCA Civ 1606 • First instance finding that parties put property into the name of woman for purposes of benefit fraud. • Remember Tinsley v Milligan [1994] 1 AC 340. Fraud then did not matter as was not relied upon in context of resulting trust. • Trainspotters’ question post Stack v Dowden and Jones v Kernott – does this principle apply in context of constructive trust (which is used in preference to the resulting trust in ‘domestic consumer context.’) • Here the man’s interest was inferred from his actions in relation to dealing with the property. He did not need to plead fraud to explain his case. • Man therefore successful on facts of case • But beware of illegality issues Case law update

Curran v Collins [2015] EWCA Civ 404 • Full frontal challenge to Lloyds Bank v Rosset dropped (but leave to appeal to SC has been sought) • Difficulty of challenging first instance findings of fact. • “Excuse” cases (Eves v Eves & Grant v Edwards) reviewed and tightened up.

Capehorn v Harris [2015] EWCA Civ 955 • Appeal from decision of DJ Langley in Central London County Court • First instance judge wrong to say that court could “impute” (as opposed to infer) an agreement to co-own at “stage 1” in single legal owner case. Cf: imputation when it comes to quantification or “stage 2”. Case law update

Graham-York v Graham-York and others [2015] EWCA Civ 72

• Mortgage company seeking possession claim and equity asserted by way of defence. • 25% interest inferred from conduct, which included contributions to purchase. • Tomlinson LJ – in quantification exercise, where it is permissible for the court to impute rather than infer a common intention as to the parties’ respective shares, the court is nevertheless not concerned with ‘some form of redistributive justice.’ • The enquiry into fairness is limited to property issues. • Equity of exoneration – akin to a ‘whole course of dealing review’ when quantifying shares. Can’t take benefit and not burden. Case law update

Southwell v Blackburn [2014] EWCA Civ 1347 • Property bought in sole name of man who made promises, falling short of a promise to share the equity in the property, that woman would “always have a home and be secure in the property.” • In reliance on the assurance, woman gave up her AST which she had spent £20,000 setting up. • Lived as man and wife for a number of years. • Constructive trust claim failed. • Proprietary estoppel claim succeeded and woman got £28,500 lump sum (£20k adjusted for inflation). Assurance, Reliance, Detriment made out. • Assurance: – “clear and unequivocal” vs. “clear enough” – Property related? • Detriment: Not a narrow or technical concept, not an accounting exercise. Court dodged question of benefit and burden when living together. • Groundbreaking? Choosing between constructive trust and estoppel. Case law update

Davies v Davies & Davies [2015] EWHC 015 (Ch) • The well known dictum, coined in Crabb v Arun, that a remedy for proprietary estoppel must be “the minimum to do justice” for the claimant. • The value of the equity will depend upon (a) all the circumstances of the case, including (b) expectation and (c) detriment. • The court must balance the proportionality of the expectation with that of the detriment incurred. “Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application.” • When considering detriment this must be balanced against any relevant benefit enjoyed by the claimant. The court is not simply concerned with financial detriment but looks at all the circumstances in the round. • When there is a clear understanding between the parties, falling short of a contract, “In such a case the court’s natural response is to fulfil the claimant’s expectations. But if the claimant’s expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered the court can and should recognise that the claimant’s equity should be satisfied in another (and generally more limited) way.” • The question of preventing unconscionable conduct permeates all considerations . • The end result must be a just one having regard to the assumption made by the party asserting the estoppel and the detriment which he has experienced.

Case law update