244 All England Law Reports [1984] 1 AILER
Burns v Burns
COURT OF APPEAL, CIVIL DIVISION
WALLER, FOX AND MAY LJ
19, 25 MAY, 26 JULY 1983
‘Trust and trustee — Constructive trust — Unmarried couple — Principles applicable in determining
beneficial interests in property ~ Man acquiring house in his sole name - Mistress not directly
contributing to purchase price or mortgage instalments — Couple living in house with their children
{for 17 years ~ Mistress looking after well-being of family by performing domestic duties and
caring jor children ~ Whether mistress entitled to beneficial interest ~ Whether common intention
that mistress was to have beneficial interest.
In 1961 the plaintiff, who was then aged 20, began living with a married man, the
defendant, knowing that there was no prospect of his marrying her. Soon afterwards, she
gave birth to their first child and gave up her employment, changed her name to the
defendant’s and was held out to their friends as his wife. In 1963, when she was expecting
their second child, the defendant decided to buy a house in place of their rented
accommodation, partly because that would be better use of his money. The house was
purchased in his sole name and he provided the purchase price out of his own money
and by way of a mortgage. The plaintiff made no direct contribution cither to the
purchase price or to the mortgage instalments. The couple lived in the house with their
two children for 17 years. Until 1975 the plaintiff was unable to earn because she was
bringing up the children but during that period she performed the domestic duties in
the house as well as looking after the children. From 1975 she was able to take
employment and to earn. Although the defendant gave her a generous housekeeping
allowance and did not ask her to contribute to household expenses, she used her earnings
to contribute towards the housekeeping expenses and to buy fixtures and fittings and
consumer durables, such asa washing machine, for the house. She also redecorated the
interior of the house. In 1980 the plaintiff left the defendant and brought proceedings
against him claiming that she was entitled to a beneficial interest in the house by reason
of her contributions to the household over the 17 years they had lived there and sought a
declaration that the house was held by the defendant on a resulting trust for both parties
beneficially in such shares as the court might determine. The judge held that the plaintiff
was not entitled to any beneficial interest in the house. The plaintiff appealed.
Held — When an unmarried couple separated, the powers conferred by the Matrimonial
Causes Act 1973 in relation to the division of the property of married couples on divorce
did not apply, and accordingly the court had no jurisdiction to make an order on the
basis of the fair and reasonable division of property. Instead, where property had been
purchased in the man’s sole name without the woman making any direct contribution
to the purchase price or without the parties making an agreement or declaration
regarding the beneficial interest in the property, there was a prima facie inference that
the man was the sole legal and beneficial owner. That inference could only be displaced
if the court could impute, from the conduct of the couple down to the date of their
separation, a common intention that the woman was to have a beneficial interest in the
property, and chat in turn depended on whether the woman had made a substantial
financial contribution towards the expenses of the couple’s household which could be
related to the acquisition of the property, eg where her financial contributions to the
household expenses enabled the man to pay the mortgage instalments. The court would
not impute a common intention that the plaintiff was to have a beneficial interest in the
property merely from the fact that she had lived with the defendant for 19 years, had
looked after the family’s well-being by performing the domestic duties of the household
and had brought up their children, or from the fact that she had bought chattels for the
household out of her earnings and had redecorated the house. The plaintiff's appealCA Burns v Burns 245
would therefore be dismissed (see p 250 d to p 251 dand ftoj, p 252 fto p 253 bandg to
@ Pp254j,p 255d tof, p 256 abandh, p 257 cd, p 258 b toh, p 263 ef. p 264 hj and p 265
ctof, post).
Pettitt v Pettitt [1969] 2 All ER 385, Gissing v Gissing [1970] 2 All ER 780, Falconer v
Falconer [1970] 3 All ER 449, Hacell v Hazell [1972] 1 All ER 923 and Richards v Dove
[1974] 1 All ER 888 applied.
Hall v Hall (1981) 3 FLR 379 and Bernard v Josephs [1982] 3 All ER 162 considered.
b
Notes
For resulting trusts arising out of joint transactions by an unmarried couple, see 38
Halsbury’s Laws (3rd edn) 868-873, paras 1462-1469, and for cases on the subject, see 47
Digest (Repl) 127, 925-927.
For the Matrimonial Causes Act 1973, see 43 Halsbury’s Statutes (3rd edn) 539.
Cases referred to in judgments
Appleton v Appleton [1965] 1 All ER 44, [1965] 1 WLR 25, CA.
Balfour v Balfour [1919] 2 KB 571, [1918-19] All ER Rep 860, CA.
Bernard v Josephs [1982] 3 All ER 162, [1982] Ch 391, [1982]2 WLR 1052.
Button v Button [1968] 1 All ER 1064, [1968] 1 WLR 457, CA.
Cooke v Head [1972] 2 All ER 38, [1972] 1 WLR 518, CA.
Crisp v Mullings (1975) 239 EG 119, CA.
Davis Contractors Lid v Fareham UDC [1956] 2 All ER 145, [1956] AC 696, [1956] 3 WLR
37, HL.
Diwell v Farnes(1959] 2 All ER 379, [1959] 1 WLR 624, CA.
Evers’s Trust, Re, Papps v Evers [1980] 3 Ali ER 399, [1980] 1 WLR 1327, CA.
@ Eves v Eves(1975] 3 All ER 768, [1975] 1 WLR 1338, CA.
Falconer v Falconer [1970] 3 All ER 449, [1970] 1 WLR 1333, CA.
Gissing v Gissing [1970] 2 All ER 780, [1971] AC 886, [1970] 3 WLR 255, HL; rvsg [1969]
1 AILER 1043, [1969] 2 Ch 85, [1969] 2 WLR 525, CA.
Hall v Hall (1981) 3 FLR 379, CA.
Hagell v Hazell [1972] 1 All ER 923,[1972] 1 WLR 301, CA.
Pettitt v Pettitt [1969] 2 All ER 385, [1970] AC 777, [1969] 2 WLR 966, HL.
Richards v Dove [1974] 1 AIL ER 888.
Shirlaw v Southern Foundries (1926) Ltd [1939] 2 All ER 113, [1939] 2 KB 206, CA.
Tanner v Tanner [1975] 3 All ER 776, [1975] 1 WLR 1346, CA.
Ulrich v Ulrich and Felton [1968] 1 All ER 67, [1968] 1 WLR 180, CA.
Walker v Hall [1983] CA Bound Transcript 300.
a
~
Case also cited
Cantliff v Jenkins [1978] 1 All ER 836, [1978] QB 47, CA.
Appeal
fh By an originating summons dated 14 January 1981 the plaintiff, Valerie Burns, claimed
a beneficial interest in the property known as 142 Osidge Lane, Southgate, London, the
legal estate in fee simple in which was vested in the defendant, Patrick Burns, with
whom the plaintiff had lived as man and wife for 19 years. By a judgment given on 1
March 1982 Dillon J dismissed the originating summons. The plaintiff appealed seeking
an order that the property was held by the defendant on trust for the plaintiff and the
defendant in such shares as the court might determine. The facts are set out in the
judgment of Waller LJ.
Quintin Iv for the plaintiff.
‘The defendant appeared in person.
Cur ady vult246 All England Law Reports [1984] 1 AIlER
29 July. The following judgments were delivered.
WALLER LJ. This is an appeal from a decision of Dillon J given on 1 March 1982
when he found that the plaintiff, Mrs Burns, had no interest in the house in which she
and the defendant, Mr Burns, although not married, had lived together as man and wife
for 17 years.
‘The parties started living together in the summer of 1961. At that time the plaintiff
was aged 20 earning about {12 a week as a tailor. She left the accommodation of her
parents and went to live with the defendant in a rented flat where a boy was born on 29
April 1962. The plaintiff was known as Mrs Burns. In 1963 when she was again pregnant
she and the defendant decided to move to a house and the defendant bought the house
the subject of these procedings in July 1963. It was in his name and he obtained {4,500
out of the total purchase price of £4,900 by mortgage. The second child was born on 9
October 1963. The plaintiff made a statutory declaration of change of name, her passport
was in the name of Burns and their friends and acquaintances believed them to be
married. The parties lived together until 1980 when the plaintiff left although relations
had deteriorated in the previous two years. She could not earn any money when the
children were small and it was not until 1975 that she made any appreciable money.
When she did earn money she did not keep a separate account, it went in with her
housekeeping allowance from the defendant. She did purchase certain fixtures and
fittings for the house and material for sheets and bed covers and so on, and she also did
some decorating, including wallpapering the house completely in 1977 or 1978. She also
bought certain consumer durable goods such as a dishwasher, washing machine, tumble
drier, a bed and some other furniture. The plaintiff submitted that these facts alone
produced a resulting trust so that she is entitled to a share in the equity of the house and
that the courts should recognise the changes in custom which have taken place over the
Past 10 or 20 years.
We have had to consider this case in the light of Pettitt v Pettitt [1969] 2 All ER 385,
[1970] AC 777, a case concerning the interpretation of s 17 of the Married Women's
Property Act 1882, and Gissing v Gissing [1970] 2 All ER 780, [1971] AC 886, a case
concerning the application of s 53 of the Law of Property Act 1925. There have been
certain developments since those two cases were decided.
(1) The Matrimonial Proceedings and Property Act 1970, which was passed on 29 May
1970 and came into force on 1 January 1971, empowered the court to make property
adjustment orders. This power was re-enacted in the Matrimonial Causes Act 1973, $ 24.
(2) There has been an increase in the number of decisions involving a man and woman,
living together without getting married. In Cooke v Head [1972] 2 All ER 38, [1972] 1
WLR 518 the Court of Appeal considered the case of a bungalow built by such a couple
and considered what the interests of the woman were as against the man. There is also
Richards v Dove [1974] 1 All ER 888, a decision of Walton J against the mistress. In Eves v
Eves [1975] 3 All ER 768, [1975] 1 WLR 1338, where this court held that there was a
constructive trust in favour of the mistress, Brightman J, with whom Browne LJ agreed,
drew the inference that the plaintiff was entitled to have some beneficial interest in
return for her labour towards the reparation of a house and the considerable physical
work she had done when the house was being prepared. See also Tanner v Tanner [1975]
3 All ER 776, [1975] 1 WLR 1346, where this court held that there was a contractual
licence to the woman for so long as the children were of school age and reasonably
required the accommodation. See also Re Evers's Trust [1980] 3 All ER 399 at 4o1, [1980]
1 WLR 1327 at 1330, where, dealing with the case of an unmarried couple, Ormrod LJ
said:
‘This is a situation which is occurring much more frequently now than in the
past and is a social development of considerable importance with which the courts
are now likely to have to deal from time to time.’
There is also Hall v Hall (1981) 3 FLR 379 at 381, where Lord Denning MR said:CA Burns v Burns (Waller LJ) 247
“Then the question arose about the house, 6 Hammonds Close. She [the plaintiff]
claimed a share in the equity. She said that they had lived together for 7 years. The
judge found—and the man agreed—that they would not have been able to make
the moves and buy the house except for the fact that this couple had been living
together and they had both been earning. Her contributions paid for a great amount
of the furniture, equipment and fittings. She also bought a car. And she contributed
her earnings towards the housekeeping, So it is said that she is entitled to.a share in
the equity of the house: not on the matrimonial law which governs husband and
wife, but on the principle of a resulting trust. There have been a number of cases
recently in the courts where women in the position of this lady have been given
protection to this extent: if a man and a woman have been living together as
husband and wife, and the woman has been contributing towards the establishment
of the joint household, although the house is in the man’s name, there is a resulting
trust as a matter of ordinary common justice for her. The two cases in which that
principle has been settled are Cooke v Head ((1972] 2 All ER 38, [1972] 1 WLR 518)
and Eves v Eves ((1975] 3 All ER 768, [1975] 1 WLR 1338) to which I would add the
case of Tanner v Tanner ([1975] 3 All ER 776, [1975] 1 WLR 1346).’
Finally there is Bernard v Josephs [1982] 3 All ER 162, [1982] 1 Ch 391.
Although there was a difference of judicial opinion in Pettitt v Pettitt that case was
mainly concerned with s 17 of the Married Women’s Property Act 1882 whereas in the
present case we are concerned with two people living together as man and wife for 19
years as if they were married but not legally married. In Pettitt v Pettitt Lord Hodson and
Lord Upjohn disagreed with the approach of Lord Reid and Lord Diplock, but I do not
read the speech of Lord Morris as going quite so far. In the circumstances of this case I
find the observations of both Lord Reid and Lord Diplock helpful. Lord Reid said ((1969]
2 AIL ER 385 at 390, [1970] AC 777 at 794-795):
“We must first have in mind or decide how far it is proper for the courts to go in
adapting or adding to existing law. Whatever views may have prevailed in the last
century, I think that it is now widely recognised that it is proper for the courts in
appropriate cases to develop or adapt existing rules of the common law to meet new
conditions. I say in appropriate cases because I think we ought to recognise a
difference between cases where we are dealing with “lawyer's law” and cases where
we are dealing with matters which directly affect the lives and interests of large
sections of the community and which raise issues which are the subject of public
controversy and on which laymen are as well able to decide as are lawyers. On such
matters it is not for the courts to proceed on their view of public policy for that
would be to encroach on the province of Parliament. I would therefore refuse to
consider whether property belonging to either spouse ought to be regarded as family
property for that would be introducing a new conception into English law and not
merely developing existing principles. There are systems of law which recognise
joint family property or communio bonorum. I am not sure that those principles
are very highly regarded in countries where they are in force, but in any case it
would be going far beyond the functions of the court to attempt to give effect to
them here. But it is, I think, proper to consider whether, without departing from
the principles of the common law, we can give effect to the view that, even where
there was in fact no agreement, we can ask what the spouses, or reasonable people
in their shoes, would have agreed if they had directed their minds to the question of
what rights should accrue to the spouse who has contributed to the acquisition or
improvement of property owned by the other spouse. There isalready a presumption
which operates in the absence of evidence as regards money contributed by one
spouse towards the acquisition of property by the other spouse. So why should there
not be a similar presumption where one spouse has contributed to the improvement
of the property of the other? Ido not think that it isa very convincing argument to
say that, if,a stranger makes improvements on the property of another without any248 All England Law Reports [1984] 1 AIlER
agreement or any request by that other that he should do so, he acquires no right.
The improvement is made for the common enjoyment of both spouses during the
marriage. It would no doubt be different if the one spouse makes the improvement
while the other spouse who owns the property is absent and without his or her
knowledge or consent. But if the spouse who owns the property acquiesces in the
other making the improvement in circumstances where it is reasonable to suppose
that they would have agreed to some right being acquired if they had thought about
the legal position I can see nothing contrary to ordinary legal principles in holding
that the spouse who makes the improvement has acquired such a right.”
In Gissing v Gissing [1970] 2 All ER 780 at 783, [1971] AC 886 at 897 Lord Reid
summarised the situation in this way:
‘Returning to the crucial question there isa wide gulf between inferring from the
whole conduct of the parties that there probably was an agreement, and imputing
to the parties an intention to agree to share even where the evidence gives no ground
for such an inference. If the evidence shows that there was no agreement in fact
then that excludes any inference that there was an agreement. But it does not
exclude an imputation of a deemed intention if the law permits such an imputation.
If the law is to be that the court has power to impute such an intention in proper
cases then Iam content, although I would prefer to reach the same result in a rather
different way. But if it were to be held to be the law that it must at least be possible
to infer a contemporary agreement in the sense of holding that it is more probable
than not there was in fact some such agreement then I could not contemplate the
future results of such a decision with equanimity.’
In Pettitt v Pettitt [1969] 2 All ER 385 at 414-415, [1970] AC 777 at 824 Lord Diplock
said:
‘Ido not propose to examine in detail the numerous cases decided in the last 20
years and cited in the argument before your Lordships’ House in which in the
absence of evidence that spouses formed any actual intention as to their respective
proprietary rights in a family asset, generally the matrimonial home acquired as a
result of their concerted actions, the courts have imputed an intention to them. I
adhere to the view which I expressed in Ulrich v. Ulrich and Felton ((1968] 1 All ER
67, [1968] 1 WLR 180) in the passage which my noble and learned friend Loo
Hopson has already cited at length.”
The passage from Ulrich v Utrich and Felton [1968] 1 All ER 67 at 72, [1968] 1 WLR 180
at 188-189 cited by Lord Hodson reads as follows:
“When these young people pool their savings to buy and equip a home or to
acquire any other family asset, they do not think of this as an “ante-nuptial” or “post-
nuptial” settlement, or give their minds to legalistic technicalities of “advancement”
and “resulting trusts”. Nor do they normally agree explicitly what their equitable
interests in the family asset shall be if death, divorce or separation parts them.
Where there is no explicit agreement, the court’s first task is to infer from their
conduct in relation to the property what their common intention would have been
had they put it into words before matrimonial differences arose between them. In
the common case today, of which the present is a typical example, neither party to
the marriage has inherited capital, both are earning their living before marriage,
and the wife intends to continue to do so until they start having children. They pool
their savings to buy a house on mortgage in the husband’s name or in joint names
and to furnish and equip it as the family home. They meet the expenses of its
upkeep and improvement and the payments of instalments on the mortgage out of
the family income, to which the wife contributes so long as she is earning. In such a
case, the prima facie inference from their conduct is that their common intention is
that the house, furniture and equipment should be family assets .a [1970] AC 777 at 824-825:
i
CA Burns v Burns (Waller LJ) 249
And Lord Diplock then went on to say in Pettitt v Pettitt [1969] 2 All ER 385 at 415,
‘Ichink it fairly summarises the broad consensus of judicial opinion disclosed by
the post-war cases (none of which has reached your Lordships’ House), as to the
common intentions which, in the absence of evidence of an actual intention to the
contrary, are to be imputed to spouses when matrimonial homes are acquired on
mortgage as a result of their concerted acts of a kind which are typical of transactions
between husband and wife today. And I firmly think that broad consensus of
judicial opinion is right. The old presumptions of advancement and resulting trust
are inappropriate to these kinds of transactions and the fact that the legal estate is
conveyed to the wife or to the husband or to both jointly though it may be
significant in indicating their actual common intention is not necessarily decisive
since it is often influenced by the requirements of the building society which
provides the mortgage. In imputing to them a common intention as to their
respective proprietary rights which as fair and reasonable men and women they
presumably would have formed had they given their minds to it at the time of the
relevant acquisition or improvement of a family asset, the court, it has been
suggested, is exercising in another guise a jurisdiction to do what it considers itself
to be fair and reasonable in all the circumstances and this does not differ in result
from the jurisdiction which Lorp Dennine, M.R., in Appleton v. Appleton ((1965] 1
AILER 44 at 46, [1965] 1 WLR 25 at 28) considered was expressly conferred on the
court by s. 17 of the Married Women’s Property Act 1882. It is true, as Lop
RapcuirFe pointed out in Davis Contractors, Ltd. v. Fareham Urban District Council
((1956] 2 AIL ER 145 at 160, [1956] AC 696 at 728), that when the court imputes to
parties an intention on a matter to which they in fact gave no thought “In their [sc.
the parties] place there rises the figure of the fair and reasonable man. And the
spokesman of the fair and reasonable man, who represents after all no more than
the anthropomorphic conception of justice, is and must be the court itself.” The
officious bystander of MacKinnon, LJ. (see Shirlaw v. Southern Foundries (1926), Ltd.
& Federated Foundries, Ltd. ([1939] 2 All ER 113 at 124, [1939] 2 KB 206 at 227))
may pose the question, but the court, not the parties, gives the answer. Nevertheless,
there is a significant difference between applying to transactions between husband
and wife the general legal technique for imputing intention to the parties and
exercising a discretion such as that which Lop Denninc, M.R., suggested was
conferred on the court by s. 17 of the Married Women’s Property Act 1882. In
applying the general technique the court is directing its attention to what would
have been the common intention of the spouses as fair and reasonable husband and
wife at the time of the relevant transaction while they were still happily married
and not contemplating its break-down. The family asset might cease to be needed
for the common use and enjoyment of themselves and their children without the
marriage breaking down at all. The circumstances of the subsequent break-down
and the conduct of the spouses which contributed to it are irrelevant to this enquiry.
If these circumstances are such as to call for an adjustment of the spouses’ respective
proprietary rights which results from their previous transactions the court has
jurisdiction to make such adjustments under the Matrimonial Causes Act 1965 (see
Ulrich v. Ulrich and Felton ((1968] 1 All ER 67, [1968] 1 WLR 180). It has no such
jurisdiction under s. 17 of the Married Women’s Property Act 1882.’
While both Lord Reid and Lord Diplock expressed the view that the doctrine of family
property was no part of English law I do not read the speeches of either of them as ruling
out the possibility of applying what Lord Diplock described as the general legal technique
for imputing intention to the parties (see [1969] 2 All ER 385 at 389-390, 415, [1970]
AC 777 at 794, 825).
In Hall v Hall (1981) 3 FLR 379 this court held that there was a constructive trust. The
contributions of the plaintiff in the present case were not as great as they were in Hall250 All England Law Reports [1984] 1 AILER
Hall in financial terms but she had given up her work and was bringing up the two
children of the association. When she did earn some money some of it went towards the
running of the house and she did purchase the various things that I have already
mentioned. On the other hand the fact that the couple lived together for 19 years in this
case, of which 17 were in the house, is rather stronger than Hall v Hall where the total
time was seven years. There was, however, a concession made. Dunn LJ said (at 383):
‘It. was conceded before the judge, and conceded here, that in the events which
occurred there was a resulting trust of the third house, 6 Hammonds Close, Totton,
in favour of the plaintiff, so that the defendant held that house partly in trust for
her. The judge put it in this way: “The defendant says that he would not have been
able to make the moves and buy the homes except for the fact that both were living
together and both earning. I accept that she should have some contribution . .. Itis
clear that having lived together for nearly 7 years in many respects as husband and
wife, pooling their joint resources and the plaintiff applying substantially all her
earnings to the housekeeping and having done a good deal of work for nothing,
certainly the plaintiff is entitled to a proportion of the equity.””
Lord Reid in the passage I have quoted above drew attention to those matters on which
the courts should not proceed on their view of public policy and those where it is proper
to develop or adapt existing rules to meet new conditions, He refused to consider the
concept of family property and said that that was for Parliament. Parliament did deal
with matrimonial property in the Matrimonial Proceedings and Property Act 1970,
which became law in the year following that decision. This case is not covered by
matrimonial property legislation nor is it one which could readily be dealt with by
legislation. Therefore the facts have to be considered to see whether it is possible to do
justice between the parties, and more particularly in the light of Hall v Hall. In the
passage I have quoted above from Gissing v Gissing, Lord Reid considered the possibility
of imputing a deemed intention. If the law permits such an imputation, would the facts
of the present case justify it? The plaintiff was living with the defendant as man and
wife, was known to friends and relatives as a married couple, but she was not married.
The consequence was that she had no statutory protection once the boys had grown up.
The relationship lasted 19 years, during which time she brought up their two children.
She ran the house, even though the contribution to the fabric was minimal. In Hall v
Hall, although the relationship lasted only seven years and there were no children, there
was a concession because of the woman's contribution to the housekeeping. During the
first seven years of this relationship the plaintiff was looking after their children and had
had to give up her employment to do so. Save for the concession it is not easy to draw a
distinction between the two cases at the end of seven years and if this be right, in the
present case where the relationship continued for a further 12, the case would be very
much stronger.
If the law permits it a deemed intention between the parties would surely include
some provision to make up for the statutory rights which marriage would have given in
the event of a break up.
Thave, however, had the advantage of reading in draft the judgments of Fox LJ and
May LJ and, for the reasons they give, am reluctantly persuaded that the law does not
permit this court to impute a deemed intention on the facts of this case.
FOX LJ. The house with which we are concerned in this case, 142 Osidge Lane,
Southgate, was purchased in the name of the defendant and the freehold was conveyed
to him absolutely. That was in 1963. If, therefore, the plaintiff is to establish that she has
a beneficial interest in the property she must establish that the defendant holds the legal
estate on trust to give effect to that interest. That follows from Gissing v Gissing [1970] 2
AIL ER 780, [1971] AC 886. For present purposes I think that such a trust could only arise
(a) by express declaration or agreement or (b) by way of a resulting trust where theCA Burns v Burns (Fox LJ) 251
claimant has directly provided part of the purchase price or (c) from the common
intention of the parties.
In the present case (a) and (b) can be ruled out. There was no express trust of an interest
in the property for the benefit of the plaintiff; and there was no express agreement to
create such an interest. And the plaintiff made no direct contribution to the purchase
price. Her case, therefore, must depend on showing a common intention that she should
have a beneficial interest in the property. Whether the trust which would arise in such
circumstances is described as implied, constructive or resulting does not greatly matter.
If the intention is inferred from the fact that some indirect contribution is made to the
purchase price, the term ‘resulting trust’ is probably not inappropriate. Be that as it may,
the basis of such a claim, in any case, is that it would be inequitable for the holder of the
legal estate to deny the claimant's right to a beneficial interest.
In determining whether such a common intention exists it is, normally, the intention
of the parties when the property was purchased that is important. As to that agree with
the observations of Griffiths L] in Bernard v Josephs [1982] 3 All ER 162 at 170,[1982]Ch
391 at 4o4. As I understand it, that does not mean that for the purpose of determining
the ultimate shares in the property one looks simply at the factual position as it was at
the date of acquisition. It is necessary for the court to consider all the evidence, including
the contributions of the parties, down to the date of separation (which in the case of man
and mistress will generally, though not always, be the relevant date). Thus the law
proceeds on the basis that there is nothing inherently improbable in the parties acting on
the understanding that the woman—
‘should be entitled toa share which was not to be quantified immediately on the
acquisition of the home but should be left to be determined when the mortgage
‘was repaid or the property disposed of, on the basis of what would be fair having
regard to the total contributions, direct or indirect, which each spouse had made by
that date.”
(See Gissing v Gissing [1970] 2 All ER 780 at 793, [1971] AC 887 at 909 per Lord Diplock.)
That approach does not, however, in my view preclude the possibility that while,
initially, there was no intention that the claimant should have any interest in the
property, circumstances may subsequently arise from which the intention to confer an
equitable interest on the claimant may arise (eg the discharge of a mortgage or the
effecting of capital improvements to the house at his or her expense). Further, subsequent
events may throw light on the initial intention.
Looking at the position at the time of the acquisition of the house in 1963, I see
nothing at all to indicate any intention by the parties that the plaintiff should have an
interest in it. The price of the house was {'4,900. Of that, about £4,500 was raised by the
defendant on a mortgage. The mortgage was in his own name; he assumed responsibility
for the debt. The balance of the purchase price and the costs of the purchase were paid
by the defendant out of his own moneys. The plaintiff made no financial contribution;
she had nothing to contribute. As to the reason for buying the house the judge said that
he had no doubt that it was an important factor in the decision that the defendant realised
that it was much better use of money to buy an asset (a house) rather than rent a flat
(which was what he was doing previously).
It seems to me that at the time of the acquisition of the house nothing occurred
between the parties to raise an equity which would prevent the defendant denying the
plaintifi’s claim. She provided no money for the purchase; she assumed no liability in
respect of the mortgage; there was no understanding or arrangement that the plaintiff
would go out to work to assist with the family finances; the defendant did nothing to
lead her to change her position in the belief that she would have an interest in the house.
It is true that she contemplated living with the defendant in the house and, no doubt,
that she would do housekeeping and look after the children. But those facts do not carry
with them any implication of a common intention that the plaintiff should have an
interest in the house. Taken by themselves they are simply not strong enough to bear
such an implication.252 All England Law Reports [1984] 1 AILER
I come then to the position in the years after the house was purchased, I will deal with
them under three heads, namely financial contributions, work on the house and finally
housekeeping. There is some overlapping in these categories.
So far as financial contributions are concerned, the plaintiff's position really did not
change during the 1960s. She had no money of her own and could not contribute
financially to the household. All the mortgage instalments were paid by the defendant
alone. By the end of the 1960s as a result of qualifying as an instructor in flower
arrangement she was able to earn a little by giving lessons in flower arrangement. But as
Tunderstand the judgment, the amounts were small particularly since the lessons had to
be given in the evening with the result that the plaintiff had to have a baby sitter.
Then in 1972 the plaintiff took flying lessons and qualified as a pilot of light aircraft in
1973. But that was simply a pastime and neither produced nor was intended to produce
any addition to the family budget; it was, in fact, an expense.
The plaintiff's driving instruction business did produce an income. It started in 1972
and to begin with was on a small scale. The business increased and, after 1975, the
plaintiff ‘was earning a certain amount’ from it according to the judge's finding, By the
time she left the defendant in 1980 she was earning, in all, about 60 per week (which
we were told during the hearing was net of expenses). It looks as though she was earning
at this rate from about 1977 or 1978 onwards.
‘There was never any question of the plaintiff being asked by the defendant to apply
her earnings to household expenses so as to relieve him. She was free to do what she lil:ed
with her earnings.
‘The judge’s findings as to expenditure by the plaintiff was as follows. (i) She made gifts
of clothing and other things to the defendant and the children. (ii) She paid for the
housekeeping. The defendant allowed her, latterly, £60 per week for housekeeping. It
seems to be accepted that the defendant was generous with money and the plaintiff was
not kept short as regards housekeeping money. (iii) She paid the rates. The housekeeping
payments made by the defendant were, however, fixed at an amount which took account
of this. (iv) She paid the telephone bills. That was a matter of agreement between her
and the defendant because she spent a lot of time on the telephone talking to her friends.
(v) She bought a number of chattels for domestic use: a dishwasher, a washing machine,
a tumble dryer and either a drawing room suite or three armchairs and a bed for her
separate room. The bed, the dishwasher and the chairs she took with her when she left
in 1980. (vi) She provided some doorknobs and door furnishings of no great value.
None of this expenditure, in my opinion, indicates the existence of the common.
intention which the plaintiff has to prove. What is needed, I think, is evidence of a
payment or payments by the plaintiff which it can be inferred was referable to the
acquisition of the house. Lord Denning MR in Hagell v Hazell [1972] 1 All ER 923 at
926, [1972] 1 WLR 301 at 304 thought that expression, which appears in the speech of
Lord Diplock in Gissing v Gissing [1970] 2 All ER 780 at 793, [1971] AC 886 at 909, was
being over used. He said (quoting from Falconer v Falconer [1970] 3 All ER 449 at 452,
[1970] 1 WLR 1333 at 1336) that if there was a substantial financial contribution towards
the family expenses that would raise an inference of a trust. 1 do not think that
formulation alters the essence of the matter for present purposes. If there is a substantial
contribution by the woman to the family expenses, and the house was purchased on a
mortgage, her contribution is, indirectly, referable to the acquisition of the house since,
in one way or another, it enables the family to pay the mortgage instalments. Thus, a
payment could be said to be referable to the acquisition of the house if, for example, the
payereither (a) pays part of the purchase price or (b) contributes regularly to the mortgage
instalments or (c) pays off part of the mortgage or (d) makes a substantial financial
contribution to the family expenses so as to enable the mortgage instalments to be paid.
But if'a payment cannot be said to be, in a real sense, referable to the acquisition of the
house it is difficult to see how, in such a case as the present, it can base a claim for an
inter. st in the house. Looking at the items which I have listed above, and leaving aside,
for the present, the housekeeping which I will deal with separately, none of the itemsCA Burns v Burns (Fox LJ) 253
can be said to be referable to the acquisition of the house. The making of ordinary gifts
between members of a family certainly is not. Nor, in the circumstances as found by the
judge, are the payments of rates or the telephone bills, The provision of the door knobs
‘etc is of very small consequence. As regards the purchase of chattels for domestic use, the
plaintiff must, I think, have regarded at any rate some of these as her own property since
she took them away with her when she left, But quite apart from that I do not think that
the provision of chattels, by itself, is evidence of any common intention that the plaintiff
should have a beneficial interest in the house. In Gissing v Gissing [1970] 2 All ER 780 at
786, [1971] AC 986 at 900 Viscount Dilhorne, after referring to the requirement of a
common intention that the wife should have an interest in the house, said:
“To establish this intention there must be some evidence which points to its
existence. It would not, for instance, suffice if the wife just made a mortgage
payment while her husband was abroad. Payment for a lawn and provision of some
furniture and equipment does not itself point to the conclusion that there was such
an intention.’
Lord Diplock said ((1970] 2 All ER 780 at 794, [1971] AC 886 at 910):
“The court is not entitled to infer a common intention . . . from the mere fact that
she provided chattels for joint use in the new matrimonial home.’
It isto be borne in mind that the judge found that if the plaintiff wanted more money
at any time from the defendant she could have had it. She was, no doubt, happy to use
her own money to buy things for the house, but, against the financial background, such
purchases are no indication of a common intention that she was to have an interest in the
house.
As regards work on the house, in 1971 a fairly substantial improvement was made to
the house; the attic was converted into a bedroom with a bathroom en suite. That was
paid for wholly by the defendant.
In 1977 or 1978 the plaintiff decorated the house throughout internally because she
wished the house to be wallpapered and not painted. I do not think that carries her case
any further. Thus in Pettitt v Pettitt [1969] 2 All ER 385 at 416, [1970] AC 777 at 826
Lord Diplock said:
‘If the husband likes to occupy his leisure by laying a new lawn in the garden or
building a fitted wardrobe in the bedroom while the wife does the shopping, cooks
the family dinner and baths the children, | for my part, find it quite impossible to
impute to them as reasonable husband and wife any common intention that these
domestic activities or any of them are to have any effect on the existing proprietary
rights in the family home...”
Accordingly | think that the decoration undertaken by the plaintiff gives no indication
of any such common intention as she must assert.
There remains the question of housekeeping and domestic duties. So far as
housekeeping expenses are concerned, I do not doubt that (the house being bought in the
man’s name) if the woman goes out to work in order to provide money for the family
expenses, as a result of which she spends her earnings on the housekeeping and the man
is thus able to pay the mortgage instalments and other expenses out of his earnings, it
can be inferred that there was a common intention that the woman should have an
interest in the house, since she will have made an indirect financial contribution to the
mortgage instalments. But that is not this case.
During the greater part of the period when the plaintiff and the defendant were living
together she was not in employment or, if she was, she was not earning amounts of any
consequence and provided no money towards the family expenses. Nor is it suggested
that the defendant ever asked her to. He provided, and was always ready to provide, all
the money that she wanted for housekeeping. The house was not bought in the
contemplation that the plaintiff would, at some time, contribute to the cost of its254 All England Law Reports [1984] 1 AER
acy? —“n. She worked to suit herself. And if towards the very end of the relationship
she list money to spare she spent it entirely as she chose. It was in no sense ‘joint’ money.
It was her own; she was not expected and was not asked to spend it on the household.
I think it would be quite unreal to say that, overall, she made a substantial financial
contribution towards the family expenses. That is not in any way a criticism of her; it is
simply the factual position.
But, one asks, can the fact that the plaintiff performed domestic duties in the house
and looked after the children be taken into account? I think it is necessary to keep in
mind the nature of the right which is being asserted. The court has no jurisdiction to
make such order as it might think fair; the powers conferred by the Matrimonial Causes
‘Act 1973 in relation to the property of married persons do not apply to unmarried
couples. The house was bought by the defendant in his own name and, prima facie, he is
the absolute beneficial owner. If the plaintiff, or anybody else, claims to take it from
him, it must be proved the claimant has, by some process of law, acquired an interest in
the house. What is asserted here is the creation of a trust arising by common intention of
the parties. That common intention may be inferred where there has been a financial
contribution, direct or indirect, to the acquisition of the house. But the mere fact that
parties live together and do the ordinary domestic tasks is, in my view, no indication at
all that they thereby intended to alter the existing property rights of either of them. As
to that I refer to the passage from the speech of Lord Diplock in Pettitt v Pettitt [1969] 2
AILER 385 at 416, [1970] AC 777 at 826 which I have already mentioned and also to the
observations of Lord Hodson and of Lord Reid in the same case (see [1969] 2 All ER 385
at 403, 391, [1970] AC 777 at 811, 796). The undertaking of such work is, I think, what
Lord Denning MR in Button v Button [1968] 1 AILER 1064 at 1067, [1968] 1 WLR 457 at
‘462 called the sort of things which are done for the benefit of the family without altering
the title to the property. The assertion that they do alter property rights seems to me to
be, in substance, reverting to the idea of the ‘family asset’ which was rejected by the
House of Lords in Pettitt v Pettitt. The decision in Gissing v Gissing itself is really
inconsistent with the contrary view since the parties lived together for ten years after the
house was bought. In Hall v Hall (1981) 3 FLR 379 at 381 Lord Denning MR did say this:
‘It depends on all the circumstances and how much she has contributed—not
merely in money—but also in keeping up the house; and, if there are children in
looking after them.”
With respect I do not find support for that in the other authorities and I do not think
that it is consistent with principle, Iam not clear to what extent the matter was material
in Hall v Hall. So far as looking after children is concerned, it appears that there were no
children per Dunn LJ (at 382). The case seems to have proceeded on the concession made
by the man that the woman was entitled by way of resulting trust to share in the house.
The parties lived together for seven years and it was accepted by the man that they could
not have bought the house but for the fact that both were earning per Lord Denning MR
(at 381). The parties, in fact, pooled their resources, see the findings of the judge (at 383).
Accordingly, it seems to me that the case may well have been one where the woman,
through the pooling of their income, made a contribution, direct or indirect, to the
mortgage payments.
The result, in my opinion, is that the plaintiff fails to demonstrate the existence of any
trust in her favour. The case is no stronger than that put by Lord Diplock in Gissing v
Gissing [1970] 2 All ER 780 at 793, [1971] AC 886 at 909-910:
“Where the wife has made no initial contribution to the cash deposit and legal
charges and no direct contribution to the mortgage instalments nor any adjustment
to her contribution to other expenses of the household which it can be inferred was
referable to the acquisition of the house, there is in the absence of evidence of an
express agreement between the parties, no material to justify the court in inferring
that it was the common intention of the parties that she should have any beneficialCA Burns v Burns (Fox LJ) 255
interest in a matrimonial home conveyed into the sole name of the husband, merely
a because she continued to contribute out of her own earnings or private income to
other expenses of the household. For such conduct is no less consistent with a
common intention to share the day-to-day expenses of the household, while each
spouse retains a separate interest in capital assets acquired with their own moneys or
obtained by inheritance or gift. There is nothing here to rebut the prima facie
inference that a purchaser of land who pays the purchase price and takes a conveyance
b and grants a mortgage in his own name intends to acquire the sole beneficial interest
as well as the legal estate; and the difficult question of the quantum of the wife's share does
not arise.’ (Lord Diplock’s emphasis.)
I should comment briefly on certain of the authorities to which we were referred by
counsel for the plaintiff.
In Falconer v Falconer [1970] 3 All ER 449 at 452, [1970] WLR 133 at 1336 Lord
Denning MR made it clear that where what is relied on is a financial contribution to
family expenses the contribution must be substantial to raise an inference of a trust.
In Cooke v Head [1972] 2 All ER 38 at 41, [1972] 1 WLR 518 at 520 the principle is
stated by Lord Denning MR, with whom the other members of the court agreed, that—
‘It is now held chat, whenever two parties by their joint efforts acquire property
qd to be used for their joint benefit, the courts may impose or impute a constructive or
resulting trust.”
In the present case, in my opinion, the facts do not justify the conclusion that the
property was acquired by the joint efforts of the parties.
Bernard v Joseph [1982] 3 All ER 162, [1982] Ch 391 is a quite different case to the
present. It was, it is true, a case of man and mistress, but the property was conveyed into
joint names and the parties assumed joint liability in respect of the mortgage. Part of the
house was let and the rents ‘helped greatly towards the mortgage instalments’ (see [1982]
3 AIL ER 162 at 165, [1982] Ch 391 at 396). In these circumstances, the plaintiff, Miss
Bernard, plainly was entitled to a substantial interest in the property. I do not think the
case is of assistance in relation to the present problem.
_ For the reasons which I have given I think that the appeal must be dismissed. I only
add this. The plaintiff entered on her relationship with the defendant knowing that there
was no prospect of him marrying her. And it is evident that in a number of respects he
treated her very well. He was generous to her, in terms of money, while the relationship
continued. And, what in the long term is probably more important, he encouraged her
to develop her abilities in a number of ways, with the result that she built up the
successful driving instruction business. Nevertheless, she lived with him for 19 years as
9 man and wife, and, at the end of it, has no rights against him. But the unfairness of that
is not a matter which the courts can control. It is a matter for Parliament.
MAY LJ. This appeal raises a question which arises nowadays with increasing frequency.
Ifa man and a woman marry, acquire a home, live in it together, bring up children, but
hy sadly sooner or later separate and divorce, the courts have a wide discretion to adjust their
subsequent respective financial situations under the provisions of the Matrimonial Causes
‘Act 1973. In particular, the court has power to determine the spouses’ respective rights
to the matrimonial home, which is usually the family’s main asset, and by virtue of
5 25(1) of the 1973 Act is given a wide discretion to exercise its powers to place the parties,
so far as it is practicable and just to do so, in the financial position in which they would
have been if the marriage had not broken down and each had properly discharged his or
her financial obligations and responsibilities towards the other.
However, it is becoming increasingly frequent that couples live together without
being married, but just as if they were so. They acquire a home for themselves and their
children, whom they bring up in the same way as the family next door. Nevertheless, it
also happens, just like their married friends, that differences do arise between the couple
and they separate. In some cases the man and the woman can agree what is to happen in256 All England Law Reports [1984] 1 AIER
those circumstances, for instance to their erstwhile joint home. But if they do not agree,
they come to the courts for the resolution of their dispute. In the case of an unmarried
couple in these circumstances there is no statute which gives a court similar power to
those which it has as between husband and wife. In these cases the question therefore
arises: what principles is the court to apply?
For my part, | agree that the principles which the courts must apply
down in Pettitt v Pettitt [1969] 2 All ER 385, [1970] AC 777 and Gissing v Gissir
All ER 780, [1971] AC 886. Those two cases concerned disputes between couples who
had in fact been married, where the claims were made under s 17 of the Married
Women’s Property Act 1882 and not under the matrimonial legislation. But it is quite
clear that the House of Lords decided that s 17 is merely a procedural section giving the
courts no overriding general discretion in such circumstances and that the principles to
be applied are in general the same whether the couple have been married or not. I
respectfully agree however with the warning expressed by Griffiths LJ in Bernard v
Josephs [1982] 3 All ER 162 at 169, [1982] Ch 391 at 4o2, where he said:
“.. but the nature of the relationship between the parties is a very important
factor when considering what inferences should be drawn from the way they have
conducted their affairs. There are many reasons why a man and a woman may
decide to live together without marrying, and one of them is that each values his
independence and does not wish to make the commitment of marriage; in such a
case it will be misleading to make the same assumptions and to draw the same
inferences from their behaviour as in the case of a married couple. The judge must
look most carefully at the nature of the relationship, and only if satisfied that it was
intended to involve the same degree of commitment as marriage will it be legitimate
to regard them as no different from a married couple.’
Further, in this particular field different people have very different views about the
problems and relationships involved. In my view, as Parliament has not legislated for the
unmarried couple as it has for those who have been married, the courts should be slow
to attempt in effect to legislate themselves. As Lord Reid said in Pettitt v Pettitt [1969] 2
AILER 385 at 390, [1970] AC 777 at 794-795:
“We must first have in mind or decide how far itis proper for the courts to go in
adapting or adding to existing law. Whatever views may have prevailed in the last
century, I think that it is now widely recognised that it is proper for the courts in
appropriate cases to develop or adapt existing rules of the common law to meet new
conditions. I say in appropriate cases because I think we ought to recognise a
difference between cases where we are dealing with “lawyer's law” and cases where
we are dealing with matters which directly affect the lives and interests of large
sections of the community and which raise issues which are the subject of public
controversy and on which laymen are as well able to decide as are lawyers. On such
matters it is not for the courts to proceed on their view of public policy for that
would be to encroach on the province of Parliament.”
It follows that in these disputes between unmarried couples who have broken up, the
courts do not have a general power to do what they think is fair and reasonable in all the
circumstances, as they have under the appropriate provisions of the Matrimonial Causes
Act 1973. In Pettitt v Pettitt [1969] 2 All ER 385 at 395,[1970] AC 777 at 801 Lord Morris
said:
‘It follows further, from my view, as I have expressed it above that with respect I
do not agree with the statement in Appleton v. Appleton ((1965] 1 All ER 44 at 46
[1965] 1 WLR 25 at 28) that if after a separation there is an application under s. 17
by a spouse who claims sole ownership of a house the test to be applied by the court
is: “What is reasonable and fair in the circumstances as they have developed, seeing
that they are circumstances which no one contemplated before?” In such a situation
the duty of the court is to decide whether the house was in the sole ownership of the
one spouse who claimed such ownership.’CA Burns v Burns (May LJ) 257
Lord Morris expressed the same view later when he said ([1969] 2 All ER 385 at 398,
[1970] AC 777 at 805):
“Nor is there power to decide on some general principle of what seems fair and
reasonable how property rights are to be re-allocated.”
In his speech in the same case Lord Diplock also disapproved of the decision in Appleton
v Appleton and thus of the suggestion that in circumstances such as those with which we
have to deal in this case the court has an overriding dispensing power (see [1969] 2 All
ER 385 at 416, [1970] AC 777 at 826).
The speeches in Pettitt v Pettitt and Gissing v Gissing also make it clear that there is no
general concept in English law of ‘family property’ or ‘family assets’: see Pettitt v Pettitt
[1969] 2 All ER 385 at 390, 403, 409, [1970] AC 777 at 795, 810, 817 per Lord Reid,
Lord Hodson and Lord Upjohn and Gissing v Gissing [1970] 2 All ER 780 at 785, [1971]
AC 886 at 900 per Viscount Dilhorne. Lord Diplock recognised in his speech in the latter
case that the view which he had expressed to the contrary in Pettitt v Pettitt had been
disapproved by the majority.
I think that one therefore reaches the position that the resolution of these disputes
must depend on the ascertainment according to normal principles of the respective
property rights between the man and the woman.
Further, two similar factors militate against and indeed prevent any application of
general principles of contract law to the problem. First, it is seldom if ever that the man
and the woman in these circumstances in fact come to any agreement between themselves
about what should happen to the matrimonial home if they were to part. As Lord Morris
said in Pettitt v Pettitt [1960] 2 All ER 385 at 394, [1970] AC 777 at 799-801:
‘In the lengthening line of cases in which questions between spouses have called
for adjudication under s. 17, the nature of the difficulties which arise is constantly
and recurringly made manifest. When two people are about to be married and
when they are arranging to have a home in which to live they do not make their
arrangements in the contemplation of future discord or separation. As a married
couple they do not, when a house is being purchased or when the contents of a
house are being acquired, contemplate that a time might come when [a] decision
would have to be made as to who owned what. It would be unnatural if at the time
of acquisition there was always precise statement or understanding as to where
ownership rested. So, if at a later date questions arise as to the ownership of a house
or of various things in it, though as to some matters no honest difference of view
will arise, as to others there can be such honest differences because previously the
parties might never really have applied their minds to the question as to where
ownership lay.”
Second, even if it be shown in any particular case that the parties had reached some
agreement between themselves, there is I think real doubt whether this can be said to
have been intended to create enforceable legal relations between them: cf Balfour v Balfour
[1919] 2 KB 571, [1918-19] All ER Rep 860. There is in any event a very real evidentiary
difficulty to which, for instance, Lord Reid referred in Pettitt v Pettitt [1969] 2. AI ER 385
at 391, [1970] AC 777 at 796, where he said
“The real difficulty is in inferring from some vague evidence of an arrangement
what in fact the arrangement was. There is often difficulty in determining what
were the terms of a commercial contract because the parties did not apply their
minds to central matters. It has often been pointed out that spouses living happily
together rarely apply their minds to matters which must be determined if their
arrangement is to be given contractual force. So it is extremely difficult at a later
date to determine what if any contractual effect can be given to some rather
indefinite arrangement which preceded the expenditure of money by one of the
spouses, and it is hardly possible to apply the ordinary rule that the essential terms
ofa contract must be sufficiently clearly established before it can be enforced. I do258 All England Law Reports [1984] 1 ANER
not think that there is much to be said for a rule of law if one finds the judges are
constantly doing their best to circumvent it by spelling out contractual agreements
from very dubious material.”
Further, as their Lordships pointed out in the two leading cases, if the only realistic
conclusion on the material before the court is that the parties in fact never made any
agreement binding at law between them, then it necessarily follows that it is impossible
to imply such agreement or, which comes to much the same thing, to imply more
precise terms where any existing arrangement is imprecise.
In the result, my opinion is that the correct and general approach to these cases should
be that summed up in a passage from Lord Pearson’s speech in Gissing v Gissing [1970] 2
All ER 780 at 787-788, [1971] AC 886 at 902 where he said:
‘I think it must often be artificial to search for an agreement made between
husband and wife as to their respective ownership rights in property used by both
of them while they are living together. In most cases they are unlikely to enter into
negotiations or conclude contracts or even make agreements, The arrangements
which they make are likely to be lacking in precision and finality which an
agreement would be expected to have. On the other hand, an intention can be
imputed; it can be inferred from the evidence of their conduct and the surrounding
circumstances. The starting point, in a case where substantial contributions are
proved to have been made, is the presumption of a resulting trust, though it may be
dlgplaced by rebutting evidence, It may be sad thatthe imputed intent doesnot
differ very much from an implied agreement. Accepting that, I still chink itis better
to approach the question through the doctrine of resulting trusts rather than
through contract law. Of course, if an agreement can be proved it is the best
evidence of intention.”
Where the legal estate to the family home had been taken in joint names then
generally the beneficial interests will depend on the respective contributions of the parties
to the acquisition of the property: see Crisp v Mullings (1975) 239 EG 119 and the recent
decision of this court in Walker v Hall [1983] CA Bound Transcript 300.
Where the legal estate in the family home has, however, been taken in the name of
one of the parties only, then prima facie it will carry with it the whole of the beneficial
interest. But for the reasons to which I have briefly referred, a claim to a beneficial
interest in land made by a person in whom the legal estate is not vested can in certain
circumstances be made by resorting to the doctrine of resulting trusts. Where the legal
estate to the family home is in one name only, which is usually the male member of the
couple, and the parties to the acquisition of the house have not expressed their common
intention that the beneficial interest should be shared between them, it may nevertheless
be possible to infer that common intention from their conduct and thus give rise to a
resulting trust to which the courts will give effect. It may be demonstrably inequitable
to permit the legal title holder to retain the whole of the beneficial interest in the
property. The inference about the parties’ common intention to which the court will
give effect in this way is that which objectively a reasonable man would draw from their
words and conduct at the relevant time.
Ac the hearing of this appeal our attention was drawn to a number of authorities, to
some of which I shall briefly refer, and thereafter state what I think is the general
approach adopted by the courts to these disputes which can be deduced from the two
leading cases in 1970 and 1971 and those which have followed them.
In Falconer v Falconer [1970] 3 All ER 449, [1970] 1 WLR 1333 the couple were
married in 1960. About a year later a building plot was bought in the wife's name as a
site for a house. Part of the purchase price was provided by the wife's mother and the
balance was borrowed on mortgage in which the husband joined as surety. A house was
then built on the plot with money raised by another mortgage of the plot with the
partially erected house on it. As the plot was in the wife’s name she was the mortgagor.
However her husband again stood surety. The husband’s father also guaranteed theCA Burns v Burns (May LJ) 259
repayments under the mortgage. After they moved into the house, the husband paid his
wife a regular sum by way of housekeeping money. The wife herself went out to work
and paid the mortgage instalments out of the total of her own earnings and her
housekeeping money. About 18 months later the marriage began to go wrong and the
husband moved out of the house. From that time and for two years thereafter he paid
one half of the mortgage instalments and the rates on the property. Subsequently the
wife formed an association with another man and the husband stopped his payments.
The marriage was ultimately dissolved. On the husband's summons under s 17 of the
Married Women’s Property Act 1882, the county court judge held that the land itself
belonged to the wife but that the husband had a half interest in the house. The wife’s
appeal to the Court of Appeal was dismissed and in the course of his judgment Lord
Denning MR referred to the decision in Gissing v Gissing and said ({1970] 3 All ER 449 at
452, [1970] 1 WLR 1333 at 1336):
‘Ie stated the principles on which a matrimonial home, which stands in the name
of husband or wife alone, is nevertheless held to belong to them both jointly (in
equal or unequal shares). It is done, not so much by virtue of an agreement, express
or implied, but rather by virtue of a trust which is imposed by law. The law imputes
to husband and wife an intention to create a trust, the one for the other. It does so
by way of an inference from their conduct and the surrounding circumstances, even
though the parties themselves made no agreement on it. This inference of a trust,
the one for the other, is readily drawn when each has made a financial contribution.
to the purchase price or to the mortgage instalments. The financial contribution
may be direct, as where it is actually stated to be a contribution towards the price or
the instalments. It may be indirect, as where both go out to work, the one pays the
housekeeping and the other the mortgage instalments. It does not matter which
way round it is. It does not matter who pays what. So long as there is a substantial
financial contribution towards the family expenses, it raises the inference of a trust.
But where it is insubstantial, no such inference can be drawn, see the cases collected
in the dissenting judgment of Edmund Davies LJ ((1969] 1 All ER 1043 at 1049,
[1969] 2 Ch 85 at 97), which was upheld by the House. The House did, however,
sound a note of warning about proportions. It is not in every case that the parties
hold in equal shares. Regard must be had to their respective contributions. This
confirms the practice of this court. In quite a few cases we have not given half-and-
half but something different.’ (Lord Denning MR’s emphasis.)
Megaw LJ ((1970] 3 All ER 449 at 454, [1970] 1 WLR 1333 at 1338) in his judgment
quoted a passage from Lord Pearson’s speech in Gissing v Gissing [1970] 2 All ER 780 at
788, [1971] AC 886 at 903 which was to this effect:
‘I think also that the decision of cases of this kind has been made more difficult
by excessive application of the maxim “Equality is equity”. No doubt it is reasonable
to apply the maxim in a case where there have been very substantial contributions
(otherwise than by way of advancement) by one spouse to the purchase of property
in the name of the other spouse but the proportion borne by the contributions to
the total price or cost is difficult to fix. But if it is plain that the contributing spouse
has contributed about one-quarter, I do not think it is helpful or right for the Court
to feel obliged to award either one-half or nothing.’
In the next case, Hazell v Hazell [1972] 1 All ER 923, [1972] 1 WLR 301, the couple
were again husband and wife. They bought a house for the matrimonial home which
was conveyed into the husband’s name. The purchase price was obtained in part by a
loan from the husband's parents and the remainder by a mortgage from a building
society. In order to meet the increased expenditure involved it was agreed between the
parties that the wife should go out to work and she used her earnings to supplement the
limited housekeeping moneys which her husband gave her, including clothing for
herself and the children. The top floor of the house was let and the rent was received by260 All England Law Reports [1984] 1 AIlER
the husband. After 15 years the wife left the husband who stayed on in the house and
continued to pay the outgoings. Four years later the parties were divorced. The wife
applied under the 1882 Act claiming that she was entitled to a share in the matrimonial
home. The deputy county court judge found that she had indeed made substantial
contributions to the family expenses but decided that she was not entitled to any share of
the house because there was no express or implied agreement to give her one. He went
on, however, to hold that if he was wrong in so deciding on that basis, then the wife
should have a share amounting to one-fifth. On the wife’s appeal, this court held that she
was entitled to a share in the ultimate value of the matrimonial home by virtue of the
contributions which she made to supplement the housekeeping expenses. On the facts,
her earnings had helped her husband to pay the mortgage instalments. In his judgment
Lord Denning MR referred to what he had said in Falconer v Falconer and his reference
there to indirect contributions by one member of a couple to the purchase price of the
matrimonial home, and a little later said ([1972] 1 All ER 923 at 927, [1972] 1 WLR 301
at 305):
‘Stephenson Lj suggested that it might be inferred that [the wife's) contributions
were referable to the acquisition of the house. That seems to be sufficient ground
from which the court could and should impute a trust. It would be inequitable for
the husband to take the whole when she has helped him so much to acquire it. So I
would reverse the decision of the judge and hold that the wife is entitled to a share
in the house.’
Lord Denning MR then upheld the deputy county court judge's assessment of one-
fifth. Megaw LJ agreed and in the course of his judgment, dealing with the question of
contributions, said [1972] 1 All ER 923 at 928, [1972] 1 WLR 301 at 306):
‘In my judgment it is sufficient if as a matter of common sense the wife's
contribution ought to be treated as being a contribution towards the expenses of the
acquisition of the matrimonial home.’
In Cooke v Head [1972] 2 All ER 38, [1972] 1 WLR 518 the couple were not married.
They planned to build a bungalow in which they could live after the man’s wife had
divorced him and they were able to get married. A plot of land was purchased in the
man’s name and he paid the deposit and arranged the mortgage. Both the man and the
woman helped to build the bungalow, the woman's part of the work including
demolishing a building, removing hard core and rubble, working a cement-mixer and
painting. They both saved each week as much as they could from their earnings. They
pooled their savings and used these for mortgage repayments and buying furniture.
However, theirs was a relatively short-lived association, for when the bungalow was near
completion but not entirely finished they separated and the man alone continued to live
in it repaying the mortgage. It seems that the parties lived together for between two and
three years. On an application by the woman for a declaration that the bungalow was
‘owned jointly by herselfand the man, Plowman J held that she had a one-twelfth interest
in the property. She was dissatisfied and appealed. 1 quote brief passages from the
judgment of Lord Denning MR, again with which Karminski and Orr LJJ agreed:
“The particular case of man and mistress came before the Court of Appeal in
Diwell v Farnes [1959] 2 All ER 379, [1959] 1 WLR 624. The court was divided in
opinion. The majority thought that a mistress was not in the same position as a
wife. She could recover her actual contributions to the purchase price, but could not
claim any part of the windfall on resale. Willmer LJ approached the case much as
we approach cases between husband and wife. He would have given the mistress
one-half. His approach is more in accord with recent development (see [1959] 2 All
ER 379 at 389, [1959] 1 WLR 624 at 638)... In the light of recent developments, I
do not think it is right to approach this case by looking at the money contributions
of each and dividing up the beneficial interest according to those contributions. The
matter should be looked at more broadly, just as we do in husband and wife cases.CA Burns v Burns (May LJ) 261
We look to see what the equity is worth at the time when the parties separate, We
assess the shares as at thar time. If the property has been sold, we look at the amount
which it has realised, and say how it is to be divided between them. Lord Diplock
in Gissing v Gissing [1970] 2 All ER 780 at 793, [1971] AC 886 at 909 intimated that
it is quite legitimate to infer that “the wife should be entitled to a share which was
not to be quantified immediately on the acquisition of the home but should be left
to be determined when the mortgage was repaid or the property disposed of”.
Likewise with a mistress.’
(See [1972] 2 All ER 38 at 42, [1972] 1 WLR 518 at 520-521.)
Lord Denning MR then considered the various matters which should be taken into
account in assessing the parties’ share in the family home in these circumstances and
ultimately held that the woman plaintiff was entitled to one-third of the net proceeds of
sale, instead of the one-twelfth found by the judge at first instance.
Richards v Dove [1974] 1 All ER 888 also concerned an unmarried couple. They first
lived as man and mistress in rented accommodation and then in a house which was
bought and taken in the man’s name. He paid £350 by way of deposit, of which £150
had been lent to him by his mistress. The balance of {(3,150 was obtained by a mortgage
to the man from the local authority. After the couple moved in, as had been the situation
in their earlier rented accommodation, the mistress continued to pay for the household
food and gas; the man paid all other bills including the mortgage repayments. Walton J
dismissed the woman's application for a declaration that the house was vested in the man
on trust for both of them. In his view it did not follow that the application of the relevant
principles produced the same result whether the parties were married or not, because it
was impossible to leave out of the picture the fact that as between husband and wife the
former has certain legal duties relating to the maintenance of his wife, whereas between
man and mistress the whole relationship is consensual, with no legal obligations imposed.
In his view all that the mistress had done in the case before him was to provide the loan
of £150 towards the deposit and then to carry on as they had for a number of years in
rented accommodation, with the man paying off the mortgage. In truth, as the judge
held, this mistress made no ‘real’ or ‘substantial’ contribution to the acquisition of the
matrimonial home and accordingly was not entitled to any share of it.
Eves v Eves [1975] 3 All ER 768, [1975] 1 WLR 1338 also concerned an unmarried
couple living together. They bought a house in the man’s name partly by the sale of his
previous house and partly by a mortgage which he obtained. At the time of the purchase
the man told his mistress that if she had been 21 years of age he would have had the
house put into their joint names as it was to be their joint home. At the subsequent trial
he said that he had used the plaintiff’s age as an excuse for not having had the house put
into joint names. At the outset the house was in a very dirty and dilapidated condition
and the couple each worked hard to improve it. Ultimately, some three years later, the
man left the house and married another woman. Pennycuick V-C held that the plaintiff
woman had not established a claim to be entitled to any share of the property and
dismissed her application. She successfully appealed. On my reading of the judgments
in this court the basis for Lord Denning MR’s view that the woman was entitled to a
declaration was that the untrue statement by the man that but for her age he would have
put the house into their joint names amounted to a recognition by him that, in all
fairness, she was entitled toa share in the house, equivalent in some way to a declaration
of trust. He went on to say that the declaration was not for a particular share but for such
share as was fair in view of all that she had done and was doing for the man and their
children and would thereafter do. In his judgment, however, Brightman J, with whom
Browne LJ agreed, referred to Gissing v Gissing and expressed his view that the actual
decision in that case was that the wife had made no contribution to the acquisition of the
title to the matrimonial home from which it could be inferred that the parties intended
her to have any beneficial interest in it. He went on to hold that the case then before his
court was different: the man clearly led the plaintiff to believe that she was to have some
undefined interest in the property. That, of course, he said, was not enough by itself to262 All England Law Reports [1984] 1 AER
create a beneficial interest in his favour but if it was part of the bargain between the
parties, expressed or to be implied, that the plaintiff should contribute her labour towards
the reparation of a house in which she was to have some beneficial interest, then in his
view the arrangement became one to which the law could give effect. Although
Pennycuick V-C had been unable to find any link in the evidence, Brightman J disagreed
and found it in these circumstances ((1975] 3 All ER 768 at 774, [1975] 1 WLR 1338 at
1345):
“The house was found by them jointly. It was in poor condition. What needed to
be done was plain for all to see, and must have been discussed. The plaintiff was to
have some interest in the house, or so she was led to believe, although her name
would not be on the deeds. They moved in. They both set to and put the house to
rights. I find it difficult to suppose that she would have been wielding the 14-pound
sledgehammer, breaking up the large area of concrete, filling the skip and doing
other things which were carried out when they moved in, except in pursuance of
some expressed or implied arrangement and on the understanding that she was
helping to improve a house in which she was to all practical intents and purposes
promised that she had an interest.”
In the result the court held that the woman was entitled to a one-quarter share in the
family home.
Ofall the authorities to which our attention was drawn, I think that the facts of Hall v
Hall (1981) 3 FLR 379 are the closest to those of the instant case. In Hall’s case the couple
were unmarried. The woman left her husband and went to live with the man, who was
divorced. They bought a flat in the man’s name, the woman contributing to the
furnishings and the general household expenses. Subsequently a house was bought in
the man’s name, the purchase money coming partly from the proceeds of the sale of the
flat, partly from the man’s savings and partly by way of mortgage. Within a year the
couple separated. On the woman's application to the county court for a share in the
family home, she was awarded one-fifth and her appeal to the Court of Appeal against
this award was dismissed. At first sight the decision in Hall v Hall might not seem to be
in accord with the principles applied in the earlier authorities. However, having read the
judgments in the case it is clear that the decision proceeded on a concession by counsel
for the man, both before the county court and in the Court of Appeal, that in the events
which had occurred there had been a resulting trust of the family house in favour of the
woman. In these circumstances, save to the extent that the members of the Court of
Appeal in Hall’s case did not expressly say that they thought that this concession had been
wrongly made, | think that one should be careful about reaching the conclusion that
Hall's case extended the basis of the woman's entitlement in man/mistress cases of the
type with which we are concerned. With the greatest respect and particularly having
regard to the reference to Falconer v Falconer in the judgments, I think that the concession
in Hall v Hall was wrongly made.
Be that as it may, in the course of his judgment Lord Denning MR said (at 381):
‘So it is said that she is entitled to a share in the equity of the house: not on the
matrimonial law which governs husband and wife, but on the principle of a
resulting trust. There have been a number of cases recently in the courts where
women in the position of this lady have been given protection to this extent: if a
man and a woman have been living together as husband and wife, and the woman
has been contributing towards the establishment of the joint household, although
the house is in the man’s name, there is a resulting trust as a matter of ordinary
common justice for her. The two cases in which that principle has been settled are
Cooke v Head ([1972] 2 All ER 38, [1972] 1 WLR 518) and Eves v Eves ([1975] 3 All
ER 768, [1975] 1 WLR 1338) to which I would add the case of Tanner v Tanner
((1975] 3 All ER 776, [1975] 1 WLR 1346). It is quite clear from the authorities
that, although a couple are not husband and wife, the woman can—because of her
contributions to the joint houschold—after a time obtain a share in the house byCA Burns v Burns (May LJ) 263
way ofa resulting trust. But what should that share be? That is always the difficulty.
It is not always one half. It may be a good deal less. It depends on the circumstances
and how much she had contributed—not merely in money—but also in keeping
up the house; and, if there are children, in looking after them.’
As will have been apparent, in some of the earlier decisions before Pettitt and Gissing,
Lord Denning MR had held that the court did have power ‘to do what is fair and
reasonable in all the circumstances’. In both Pettitt and Gissing the House of Lords made
it quite clear, in my view, that no such general power exists. In all the decisions prior to
Hall’s case in which the wife or woman was held to be entitled to a share in the family
home, on the evidence she had made a ‘real’ or ‘substantial’ contribution either to the
deposit paid for the acquisition of the family home or to the instalments of the mortgage
with the assistance of which it was bought. In Pettitt v Pettitt [1969] 2 All ER 385 at 416,
[1970] AC 777 at 826 Lord Diplock, whose speech was the most favourable to the
applicant's case, said:
‘It is common enough nowadays for husbands and wives to decorate and make
improvements in the family home themselves, with no other intention than to
indulge in what is now a popular hobby, and to make the home pleasanter for their
common use and enjoyment. If the husband likes to occupy his leisure by laying a
new lawn in the garden or building fitted wardrobes in the bedroom while the wife
does the shopping, cooks the family dinner or baths the children, 1, for my part,
find it quite impossible to impute to them as reasonable husband and wife any
common intention that these domestic activities or any of them are to have any
effect on the existing proprietary rights in the family home on which they are
undertaken. It is only in the bitterness engendered by the break-up of the marriage
that so bizarre a notion would enter their heads.”
In these circumstances, I respectfully think that the dictum of Lord Denning MR that
the woman's contribution to the family well-being by keeping the house and looking
after the children can be taken into account in assessing the extent to which a resulting
trust has arisen in her favour was wrong.
On the other hand it would appear from a passage from the judgment of the county
court judge quoted by Dunn LJ in the Court of Appeal that in Hall’s case (1982) 3 FLR
379 at 384 the woman had been working and had been applying substantially all her
earnings towards the housekeeping. In these circumstances it may have been argued that
the woman had made an actual financial contribution to the acquisition to the family
home, in that her pooled earnings had at the least made it easier for the man to pay the
mortgage instalments.
Finally, | curn to Bernard v Josephs [1982] 3 All ER 162,[1982]Ch 391, to which I have
already referred. That was again a case concerning an unmarried couple who lived in a
family home which was taken in joint names. The couple assumed joint liability under
a local authority mortgage for the whole of the purchase price. Each of them contributed
to the initial expenses of the acquisition of the house. While they were living together
the man spent some £/2,000 on decoration and repairs and then they let off part of the
house to tenants. After the relationship had ceased and the parties had separated the
woman claimed under s 30 of the Law of Property Act 1925 for an order for the sale of
the house and a declaration that she was entitled to a half share. She succeeded both at
first instance and in the Court of Appeal. In view of the fact that in Bernard v Josephs the
family house had been taken in joint names, I do not think that the broad approach
referred to by Lord Denning MR in his judgment, in which he also mentioned both the
earlier decisions in Cooke v Head and Hail v Hall, is necessarily equally appropriate where
the legal estate to the family home has been taken in the name of only one of the man
and woman concerned.
Griffiths L] in his judgment first referred to s 17 of the 1882 Act and s 30 of the 1925
Act, stressing that both of these are essentially procedural and that neither gives the court
a wide discretion to decide the question of ownership of the house in accordance with its264 All England Law Reports [1984] 1 AER
idea of what would be ‘fair’ in all the circumstances. He said ([1982] 3 All ER 162 at 169,
[1982] Ch 391 at 402): ‘The respective interests of the parties must be determined by the
application of the law relating to trusts.’ A little later in his judgment he said ((1982] 3
All ER 162 at 170, [1982] Ch 391 at 403): ‘The starting point of any inquiry into the
beneficial ownership of a house in joint names must be the conveyance,’ He then held
that in the absence of any express declaration about the beneficial interest at the time of
the acquisition of the family house, the court must look to see the respective contributions
of the parties towards the purchase price. Griffiths LJ continued ((1982] 3 All ER 162 at
170, [1982] Ch 391 at 404):
‘In such a case the judge must look at the contributions of each to the “family”
finances and determine as best as he may what contribution each was making
towards the purchase of the house. This is not to be carried out as a strictly
mathematical exercise; for instance, if the man was ill for a time and out of work so
that the woman temporarily contributed more, that temporary state of affairs should
not increase her share, nor should her share be decreased if she was temporarily
tunable to work whilst having a baby. The contributions must be viewed broadly by
the judge to guide him to the parties’ unexpressed and probably unconsidered
intentions as to the beneficial ownership of the house. There is of course an air of
unreality about the whole exercise, but the judge must do his best and only as a last
resort abandon the attempt in favour of applying the presumption of equality,
which may so often give an unfair result.”
In my view Griffiths LJ was here clearly referring to the parties’ respective financial
contributions to the acquisition of the matrimonial home, even though these must be
looked at in the round.
Kerr LJ in his judgment also considered the respective contributions of the man and
woman to the acquisition of the house, on the broad lines indicated by the earlier
authorities distinguishing the parties’ contributions to the ordinary everyday expenses of
living and keeping up the family home. He contrasted the two types of contributions
and in relation to the second said ((1982] 3 All ER 162 at 172, [1982] Ch 391 at 406):
‘They also both contributed to their living expenses during this period. [The
woman] paid for their food and household necessities, and [the man] paid the
electricity and other bills. I only mention the latter contributions in passing, since
the judge rightly took no account of these domestic arrangements, which might
appiy equally to any people living together in, for instance, rented accommodation,
and which throw no light on what should be their shares in the property in which
they live.”
In the light of all these cases, I think that the approach which the courts should follow,
be the couples married or unmarried, is now clear. What is difficult, however, is to apply
it to the facts and circumstances of any given case. Where the family home is taken in
the joint names, then unless the facts are very unusual I think that both the man and the
woman are entitled to a share in the beneficial interest. Where the house is bought
outright and not on mortgage, then the extent of their respective shares will depend on
a more or less precise arithmetical calculation of the extent of their contributions to the
purchase price. Where, on the other hand, and as is more usual nowadays, the house is
bought with the aid of a mortgage, then the court has to assess each of the parties’
respective contributions in a broad sense; nevertheless the court is only entitled to look
at the financial contributions, or their real or substantial equivalent, to the acquisition of
the house; that the husband may spend his weekends redecorating or laying a patio is
neither here nor there, nor is the fact that the woman has spent so much of her time
looking after the house, doing the cooking and bringing up the family.
The inquiry becomes even more difficult when the home is taken in only one of the
two names. For present purposes I will assume that it is the man, although the same
approach will be followed if itis taken in the name of the woman. Where a matrimonial
or family home is bought in the man’s name alone on mortgage by the mechanism ofCA Burns v Burns (May LJ) 265
deposit and instalments, then if the woman pays or contributes to the initial deposit this
points to a common intention that she should have some beneficial interest in the house.
If thereafter she makes direct contributions to the instalments, then the case is a fortiori
and her rightful share is likely to be greater. If the woman, having contributed to the
deposit, but although not making direct contributions to the instalments, nevertheless
uses her own money for other joint household expenses so as to enable the man the more
easily to pay the mortgage instalments out of his money, then her position is the same.
Where a woman has made no contribution to the initial deposit, but makes regular and
substantial contributions to the mortgage instalments, it may still be reasonable to infer
a common intention that she should share the beneficial interest from the outset or infer
a fresh agreement after the original conveyance that she should acquire such a share. It is
only when there is no evidence on which a court can reasonably draw an inference about
the extent of the share of the contributing woman, that it should fall back on the maxim
“equality is equity’. Finally, when the house is taken in the man’s name alone, if the
woman makes no ‘real’ or ‘substantial’ financial contribution towards either the purchase
price, deposit or mortgage instalments by means of which the family home was acquired,
then she is not entitled to any share in the beneficial interest in that home even though
over a very substantial number of years she may have worked just as hard as the man in
maintaining the family, in the sense of keeping house, giving birth to and looking after
and helping to bring up the children of the union.
On the facts of the instant case, which Waller LJ has outlined, | think that it is clear
that the plaintiff falls into the last of the categories to which I have just referred and
accordingly 1 too would dismiss this appeal. When one compares this ultimate result
with what it would have been had she been married to the defendant and taken
appropriate steps under the Matrimonial Causes Act 1973, I think that she can justifiably
say that fate has not been kind to her. In my opinion, however, the remedy for any
inequity she may have sustained is a matter for Parliament and not for this court.
WALLER LJ. This appeal is dismissed, for the reasons which have been handed down.
Appeal dismissed with costs but order for costs not to be enforced without leave. Application for
leave to appeal to the House of Lords refused.
17 November. The Appeal Committee of the House of Lords (Lord Diplock, Lord Scarman and
Lord Brightman) dismissed a petition by the plaintiff for leave to appeal.
Solicitors: Boyes Sutton & Perry, Barnet (for the plaintiff).
Sophie Craven Barrister.
AvB
(QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
LEGGATT J
27, 28 JUNE 1983
Solicitor ~ Lien ~ Retaining lien — Solicitor discharging himself in course of action ~ Non-payment
of costs ~ Solicitor entering default judgment for amount of unpaid costs ~ Solicitor arresting
client's vessel to secure payment of costs ~ Client applying for order that papers in action be
handed over to new solicitor instructed by client — Whether arrest of vessel providing alternative
security to lien — Whether solicitor waiving lien — Whether exceptional circumstances existing
justifying court in refusing to order solicitor to hand over papers to new solicitor.
In late 1981 the plaintiffs’ vessel was blacked by port labour at the instigation of an
international federation of transport workers unions. The plaintiffs instructed a firm of
solicitors in the matter, and in due course obtained an injunction against the federation’s