Stack v Dowden and Jones v Kernott failed to significantly influence the law on acquiring a beneficial interest?

Introduction

Jones v Kernott[1] concerned a property dispute between unmarried cohabitants upon the breakdown of their relationship.  For such disputes, English courts have traditionally applied resulting trusts which focus on contributions made to the purchase price, in order to determine how the home be divided between the parties[2]  The courts now have recourse to a more holistic solution when deciding how to allocate property on divorce.[3]  These different approaches for married and unmarried couples can be viewed as Parliament upholding the sanctity of marriage.  On the other hand, the Property Law solution available to unmarried couples has left the outcome of litigation so unsettled that there have been calls for Parliament to legislate in this field.[4] This dissertation addresses a very important question.  With more couples choosing not to marry on account of a misconceived belief in “common law marriage”,[5] it is paramount the law is modified to the extent it produces fair and consistent results.

When recognising the existence of a beneficial interest in land, Property Law subscribes to a formalist view which is clear from s.53(1) Law of Property Act 1925.   A proprietary interest in land is usually created through a written deed or declaration of trust.  This strict formality requirement is rooted in a belief that the law should respect the proprietary rights of the purchaser or someone who contributes to the purchase price.  A deed or declaration of trust provides property law with a desired level of evidential certainty.[6]  Nevertheless s.53(2) LPA 1925 allows courts may find a constructive or resulting trust already exists in law, despite formality requirements not being respected.  This is important as the law on constructive and resulting trusts currently regulates the proprietary rights of unmarried cohabitants. 

A constructive trust operates according to equitable principles and exists where it would be unconscionable for the legal owner to have absolute title to the property, regardless of the trustee’s intentions.[7]  The constructive trust recognised by English courts has an institutional basis as the court is simply acknowledging that a trust always existed in law.[8]  This is in contrast to the remedial constructive trust which permits courts to create equitable proprietary interests “whenever justice and good conscience require it”.[9]  This attempt by Lord Denning to bestow a greater level of discretion upon judges was rejected, as it was felt Parliament and not judges should have the power to vary property rights on the basis of what is fair.[10]  However, as the outcome of several litigations has veered closely to a remedial constructive trust, some have argued that the constructive trust has been stretched beyond its institutional parameters into a legal fiction incompatible with property law and equity.[11]

The common intention constructive trust (“CICT”) is applied by the courts when determining a beneficial interest in the family home.  Lord Diplock devised the CICT, which is established by the actual common intentions of the parties to share the property, as expressed by them or to be inferred from their conduct.[12]  In sole ownership cases, the property is held on constructive trust by the legal owner for the non-legal owner.  However, Glover and Todd reason that courts are not searching for a common intention, because evidentially a case will usually turn on what the legal owner intended.[13]  As a constructive trust is exempt from the formality requirements in s.53(1) LPA 1925, an oral agreement to share the property and conduct from which one could infer a common intention would be enforceable.  As such a constructive trust undermines certainty, a facet critical to the rule based nature of property law. Thus Lord Bridge in Lloyds Bank plc v Rosset[14] sought to limit the application of the CICT to offer a more certain outcome.  In the absence of express discussions which shaped the first limb of the CICT test, the court will only infer a common intention to share the property on account of contributions to the purchase price and it was “at least extremely doubtful whether anything less will do”.[15]  Such contributions shaped the second limb.

Some have submitted that Kernott and its predecessor Stack v Dowden[16] merely expand upon both of Lord Bridge’s limbs.[17]  Whilst the defendant in Rosset wished to acquire a beneficial interest in the first place, the claimant in Kernott who was registered with the defendant as a joint owner claimed a greater share of the property.  Throughout this research the Rosset scenario will be referred to as the acquisition question, while the Kernott scenario will be referred to as the joint-ownership question.  Although Kernott concerned the joint-ownership question, the majority attempted albeit unsuccessfully to extend their holistic reasoning to the acquisition question.[18]  Despite Stack and Kernott striving to treat non-legal owners in a similar fashion to married cohabitants; the law remains unchanged as non-legal owners must contribute to the purchase price to acquire property rights.  There are two aims to this dissertation, the first is to critically analyse acquisition cases subsequent to Kernott which gave it little effect.  The second is to evaluate how the Supreme Court may have given Kernott greater effect.  A question central to property law is addressed throughout, by considering how far judges can look beyond legal title when determining a proprietary interest. 

Chapter 2 analyses the law set out in Stack and Kernott, discussing the debate amongst the academy and judges over whether Kernott has influenced the acquisition question. Reference is made to the arguments of Sloan who concludes that courts have failed to move beyond the Rosset limbs.[19] Chapter 3 examines the ways in which subsequent cases have limited Kernott’s application to the acquisition question in light of the tension between property and family law.  Chapter 4 evaluates the controversial views espoused by Mostyn J in Bhura v Bhura[20] over the feasibility of the court imputing the existence of a proprietary interest.  These views are compared to those of Lord Neuberger who has vigorously argued against imputing.

It may be artificial to divide the study in this manner as the mechanics of Kernott, the limiting of Kernott by lower courts and the controversy over imputing have cumulatively influenced future decisions.  Yet, there is value in analysing each issue as it highlights Kernott’s shortcomings and its failure to provide judges with a novel way of creating property rights.  Though Kernott has undeniably been limited due to Chancery Courts preferring a more rule based approach, it will be concluded that the majority in Kernott would have improved the law by developing the concept of imputation.  Further, the courts have treated the acquisition and quantification questions so differently, that there are now two diverging bodies of law in this field.   

An analysis of the law

Stack

Stack concerned a dispute between cohabitants who had joint ownership of a property and had each contributed to the purchase price.  The House of Lords advanced the presumption that equitable interests replicate legal interests.  Thus joint ownership in law meant joint ownership in equity.[21]  This presumption was successfully rebutted by the claimant as she made a greater contribution to the purchase of the property and both parties kept their finances separate throughout the relationship.  Much of the criticism Stack and Kernott face, is rooted in the argument made by Lord Neuberger who strongly dissented over the validity of the CICT in Stack.   His Lordship adopting the resulting trust approach outlined in Gissing, arrived at the same result as the majority, but found that only contributions to the purchase price altered the above presumption.[22]  Nevertheless the resulting trust approach has been criticised for being inflexible and focussing solely on financial contributions.[23]

On a narrow reading similar to the interpretation of Kernott in the introduction, Stack offers an expansion of Rosset, since both concerned different stages.  Once a beneficial interest has been found according to either of the Rosset limbs, the beneficial interest must be quantified.  Yet Stack departs from Rosset as Lord Walker opined that the law should take “…a wide view as to what conduct is capable of counting…towards the acquisition of a residence”.[24]  Meanwhile Baroness Hale reasoned that Rosset set the “…hurdle rather too high…”[25]  The majority’s intentions were clarified upon Baroness Hale providing an inexhaustible list of non-financial conduct such as financial arrangements and whether the parties had children;[26] from which Courts may infer a common intention to acquire property held in the name of another.[27]  This directly conflicts with Lord Bridge only inferring a common intention when the non-legal owner contributes to the purchase price.  Therefore, a Court may reach different outcomes depending on whether Stack or Rosset is applied. 

Kernott

Here, the majority’s speech can be partly viewed as an attempt to correct Chadwick LJ’s findings in James v Thomas.[28]   In the latter, Chadwick LJ was unable to infer a change in common intention despite the “near Herculean” post-acquisition non-financial conduct of the claimant.  In spite of being concerned with a different question and hence its obiter status, Kernott was meant to change the law on the acquisition question; the disappointing reality resulted in Sloan surmising that the current “approach…is normatively problematic for cohabitants who make indirect or non-financial contributions…”.[29]

Both parties in Kernott lived together for several years.  As expenses were shared, there was inadequate evidence to rebut the joint ownership presumption.  The issue was whether the Supreme Court could rebut this presumption on account of the respondent leaving the property, making no further mortgage repayments and having nothing to do with its upkeep or his children for over fourteen years.  Whilst the Supreme Court was unanimous in its decision to award a greater share in the property to Ms Jones, there was disagreement as to how this result was arrived at.  Baroness Hale stated it was possible to infer a common intention to vary the shares from Mr Kernott’s conduct alone.[30]  However, Lords Kerr and Wilson arrived at the same result through imputing the beneficial shares the parties would have intended.[31]  There is a subtle distinction between inferring a common intention both parties always had from their conduct and imputing a common intention the parties never had, but would have if they actually thought about it. 

Although Lord Walker in Stack referred several times to Lord Diplock’s willingness in the minority to impute in Pettitt v Pettitt,[32] imputing was expressly prohibited in Gissing.[33]  This was confirmed in Rosset. Chancery Courts have traditionally been reluctant to create property rights through imputation as courts are artificially imposing a solution the parties never actually intended.[34]  Lord Neuberger concluded that imputing an intention was “heretical”.[35]  The cogency of these reservations is discussed in Chapter 4.  In Kernott the majority by widening the scope of inferring and the minority by imputing, have signalled a break from Rosset and permitted future courts to impute a common intention upon parties when quantifying shares. 

On the facts, inferring an actual common intention from the parties’ conduct was impossible as Mr Kernott and Ms Jones had not spoken to each other in fourteen years.  This subjective characteristic of imputing was of particular concern as attributing imaginary intentions to the parties potentially gave considerable power to judges when allocating property rights.  Kernott bore the full brunt of this tension and the law has suffered for it.  Given the difficulty of finding an actual common intention in Kernott, Mee concludes that such a common intention would be a legal fiction involving “…a “multi-hop” ambulation”.[36]  For the sake of future litigants, the minority were right to adopt a more realistic approach and be cautious of widening inferring to the extent it now engulfed imputation.  Critically, the approach of the majority ran the risk of misleading future appeal courts as to where inferring ended and imputing began, making the distinction nothing more than a facade.[37]  Given Chancery judge’s reluctance to weave discretion into their judgments; Kernott presented the majority with an opportunity “…to see a greater role for imputation”, which they failed to seize.[38]  Whilst it is accepted that the law must always be careful to discourage weak and acrimonious claims,[39] the majority failed to grasp the mettle in Kernott and properly validate imputing when faced with the acquisition question. 

The majority chose to enlarge upon inferring a change in common intention instead of imputing, as it did not unequivocally conflict with limb two of Rosset.  However, it is questionable whether such conduct would meet the stringent requirements of making direct contributions, outlined in Rosset.  There is a dearth of reasoning beyond deference to the findings of the trial judge in explaining why the majority found a 90-10 split in the beneficial interests.  From such a telling omission, one can conjecture that the majority aware of how controversial their conclusions were; decided to not only infer when they were in fact imputing but were deliberately frugal in outlining their reasoning.[40]  Kernott challenges the rule based mantra of property law, as it is an exercise of discretion influenced by “…Baroness Hale’s background in family law and her ideas of family property.”[41]  Imputing sits far better here than inferring since only the former is an exercise in fairness.  The latter was chosen to avoid family law beliefs seeping into property law doctrine, despite it being misleading.

When faced with materially communal relationships, the majority hoped future courts would infer if necessary so widely that they would in fact impute an outcome similar to when a marriage is annulled.[42]  Such a viewpoint is substantiated further by the majority claiming that whilst a theoretical distinction exists, in practice there is little difference between inferring and imputing.[43]  By merging inferring and imputing to the extent that in reality courts are imputing; Baroness Hale stated “appellate courts will be slow to overturn the trial judge’s finding”.[44]   Leaving the question as to how much can be inferred from conduct within the jurisdiction of the trial judge is a gamble and ignores the Supreme Court’s responsibility to coherently develop the law.[45]  Particularly as the trial judge is disappointingly left with no guidance over how to impute.  This gamble has rarely paid off; only HHJ Hodge QC inferred from the whole course of conduct by amalgamating inferring and imputing in Hapeshi v Allnatt.[46]  However, this pre-Kernott decision incorrectly interpreted Stack and overemphasised the precedential value of Abbott[47] given its Privy Council status.[48]

In one breath, Kernott widens the scope of inferring so greatly that it allows a court to extend the CICT beyond its usual vernacular and tenuously find a beneficial interest.  Paradoxically Kernott closes the door on imputing a common intention.  As the majority required future courts faced with the acquisition question to search for actual intentions,[49] it can be implied that imputing at this stage is forbidden.  Such reasoning appeased Chancery Judges such as Lord Neuberger and Rimer LJ [50] who clung firmly to the belief that it is outside the duties of a judge to consider non-monetary factors when finding an interest.  This resulted in the majority rather disingenuously broadening the scope of inferring to include imputing, because at face value this did not come into direct conflict with strict property law tenets.[51]  Though, it still assisted claimants who could only rely on non-financial conduct.  By misguidedly choosing to have it both ways, Kernott has been most ineffective.  A more definitive, yet controversial approach would have been to endorse the approach of the minority and expand imputing.[52] 

Though “the inferring/imputing distinction (is) a distinction without a difference”, [53] a court will always be hesitant to impute.  It is this apprehension that creates a fatal flaw with the majority’s findings whenever the controversial distinction above is interpreted literally.  Usually it is not only impossible to infer from conduct the exact share the parties intended; but a court can only identify the existence of a beneficial interest that rests upon how one party objectively construed the non-financial conduct of the other by imputing.[54]  As will be argued below, judges having seen past the majority’s attempt to shroud imputing within the language of inferring and for fear of imputing, are inclined to a more cautious approach which rarely goes beyond financial contributions.  This has proved most detrimental to Kernott influencing the acquisition question.   If a judge were to infer beyond financial contributions, he/she very quickly strays into the heretical territory of imputing.[55]  The conflation of inferring and imputing to potentially offer non-legal owners more solutions is almost wholly neutralised by preventing imputation.  In this regard, Kernott ironically ends up limiting itself. This literal interpretation has been widely applied by lower courts and has the opposite effect to what the majority in Kernott intended.

Has Kernott changed the law on acquisition?

Kernott attempted to address whether the framework for answering the acquisition question was different from finding a change in the parties’ respective shares.[56]  Their Lordships stated that as equity follows the law, the starting points would differ depending on whether the property was solely or jointly owned.  Yet continuing this theme of “undoubted ambiguity”[57] they referred to both questions being answered by a single regime: “the law of trusts”.[58]  Doyle and Brown criticise such reasoning as Rosset already affirms that the acquisition question is governed by the CICT framework.[59]  Instead one can only infer from Kernott that conduct relevant for displacing the joint ownership presumption applies to the sole ownership presumption.  The acquisition question obligated their Lordships to elucidate upon what conduct would be adequate. Their failure to do this, offers lower courts “the ability to retreat to a more certain approach which relies…upon direct financial contributions.”[60]

Whilst the lingering uncertainty over Kernott’s impact accounts for its limited effect on acquisition cases; the academics  assumed Kernott would influence both questions.  Gardner and Davidson later wrote that their question regarding acquisition cases had been answered to the extent that Kernott’s analysis could be applied to sole ownership cases.[61]  By cumulatively reflecting on the criticism of Rosset in Stack, Rosset’s absence in Kernott and references to objectively deducing common intention from the whole course of conduct; Sloan determines that Kernott was meant to apply to the acquisition question.[62]  Dixon who has written disapprovingly about Kernott being inconsistent with equitable doctrines, opines that Kernott influenced the acquisition question,[63] as evidenced by CPS v Piper.[64]  However, Sloan disputes this as Holman J could have determined the claimant in Piper had an interest by merely applying Rosset.[65]  Similarly Penner[66] writes that other factors were considered by Pitchford LJ upon finding a beneficial interest in O’kelly v Davies;[67] when in truth the claimant may have succeeded through Rosset as he made mortgage payments.  In fact, for most decisions post-Kernott a beneficial interest could be gained through applying Rosset.[68]

Recent case law largely conflicts with Dixon’s notion that the acquisition question now assesses non-monetary factors. The reality is more attuned to Rosset along with courts customarily referring to the Kernott.  With respect, there is a failure to fully understand how Kernott has been applied and the primacy of monetary contributions is overlooked.[69]  Dixon writes that Geary v Rankine[70] confirmed a new route was available to courts when identifying beneficial interests.  A court may now infer a common intention to share the property on account of non-financial factors.[71]   Lewison LJ concluding that Stack/Kernott now settled the law on the acquisition question applied Kernott literally in Geary.  His lordship held that a common intention to share property must be an actual intention whether express or inferred and affirmed that the role of imputation be confined to only determining quantum.[72]   Lees regards Lewison LJ’s judgment as turning point in moving the law on from a strict Rosset interpretation.  He states that “Geary…provides welcome clarification…that the acquisition stage is equally governed by Kernott principles.”[73] 

By accepting Lewison LJ’s speech, Dixon and Lees have succumbed to the error of arguing that Kernott has permanently altered the legal landscape that governs the acquisition question.  The reality is quite different.  Post-Kernott there has not been a high court decision where the courts have found that the non-legal owner has a beneficial interest in a property, solely on account of their non-financial conduct.  Though it is acknowledged Lees wrote his note shortly after Geary and was unable to consider more recent cases; Geary is the precursor to a plethora of cases considered below which adhere to principles enunciated in Rosset.  Notwithstanding the weak claim in Geary, lower courts customarily pay respect to the dicta, but conclude on the facts that the claimant’s conduct falls short of a common intention to share the property.  Interests are only found in cases where a contribution was made to the purchase price, leading Hudson to conclude “there is no meaningful change in practice”.[74]  Sloan surmises there could be several reasons for the law developing in this way; from the non-legal owner not suffering the requisite level of injustice to the Rosset criteria remaining embedded in the law.[75]

The most questionable submission Lees makes is that an expansion of Lord Bridge’s “extreme” doubt over whether anything less than contributing to the purchase price, is possible in light of Stack/Kernott.[76]  Sloan elucidates that even in Geary where Lewison LJ attempts to stretch the scope of inferring in a manner similar to that of the majority in Kernott and significantly apply its reasoning to acquisition cases; non-financial conduct is all too often an inadequate medium through which to infer a common intention to share property.[77]  In support of his contention, Lees points to Le Foe v Le Foe[78] relaxing the Rosset requirement for direct financial contribution.  However, subsequent to Rosset, Ivin v Blake[79] provided a particularly narrow reading of Rosset whilst other cases avowedly applied its requirements.  Furthermore, it is not unlikely that Lord Bridge would have upheld the claim in Le Foe as mortgage repayments were adequate conduct.  However, it is difficult to envisage judgments post-Kernott that go beyond the liberalising effect of Le Foe. 

Lees makes much of Lewison LJ not mentioning the restrictive Rosset criteria that prejudices non-financial conduct and instead chooses to expand on Kernott.[80]  In spite of this, if only inadvertently Lewison LJ reverts back to the Rosset criteria that appear engrained in the acquisition question, by clarifying that the court is searching for a genuine common intention and monetary contributions.[81]  The quasi-commercial element in Geary cannot detract from Lewison LJ’s failure to apply Kernott more purposively and depart from the liberal approach in earlier excuse cases discussed below.[82]  Such an approach consigned the claimant to failure as it would be difficult to infer that the claimant was entitled to a beneficial interest from simply running a business owned by the defendant.[83]

In Geary, imputation was explicitly forbidden at the acquisition stage as opposed to Kernott where the court was less decisive; with Lord Wilson stating the question “merit(ed) careful thought”.[84]  Therefore, Geary formally ushers in the limiting of Kernott considered below.  Lewison LJ at least considered the conduct of the claimant, finding it to be inadequate.  A literal application of Kernott that thus searches for a literal common intention, even “Herculean” levels of non-financial conduct are insubstantial for the court to infer a common intention to share the property.  Perhaps in recognition of this, there has been a move by the Courts in some instances to no longer consider the conduct of the parties.  To do so and find a purposive as opposed to literal common intention would require imputing, which is prohibited. 

Although Kernott made significant strides in modifying the law on joint ownership, notwithstanding encouraging rhetoric regarding Kernott found in acquisition cases, it has had negligible impact on the acquisition question.  Sloan submits that certain claimants have been deserving of the “novel outcome” Kernott offered on account of their non-financial conduct.[85]  To not properly engage with the level of “redistributive justice”[86] the majority were attempting to achieve by at least accounting for the factors in paragraph 69 of Stack suggests that Rosset remains firmly embedded in the acquisition question.  It is conceded that often the weak nature of the claim explains why the claim is unsuccessful.[87]  Finding for the claimant here would be returning to the maligned reasoning of Lord Denning and the forbidden remedial constructive trust.

Burns v Burns[88] is the archetypal case where a “novel outcome” would be welcome as the claimant made significant but non-financial contributions to the property over many years.  Yet, the court held that Mrs Burns did not have a beneficial interest.  Despite suffering considerable detriment, the claimant was unable to meet limb one of Rosset as there were no discussions.  Given this unrealistic feature of limb one, Bray argues that Burns-type claimants should not be distinguished from their married counterparts to the extent that they have no legislative protection.[89]  The argument commonly raised by Burns-type claimants is that non-financial contributions such as looking after children enables the other cohabite to work and pay the mortgage.  Therefore, suffering a significant amount of non-monetary detriment still means the claimant should benefit from some level of redistributive justice.[90]   

In Stack, resources were not pooled together as both parties had separate accounts, and so the relationship was not communal.[91]  Though a beneficial interest was only found in subsequent cases where there was a contribution to the purchase price, Gardner reasons that the materially communal nature of the relationship rather than financial contributions was the decisive factor.[92]  Once a communal relationship is established, inferring is afforded a wide berth and the Court adopts holistic reasoning in the form of fairness.[93]  In a similar vein, Gardner asserts that the relationship in Geary far from being communal was “materially non-communal”; thus the decision rested on financial contributions.[94]  Such an analysis ignores the appellant’s contributions to the business, the 19 years they had been in a relationship and the child they had together early in their relationship, unsatisfactorily classing them as contributing to family life.  Gardner’s model is not all inclusive since it does not account for all the factors in paragraph 69.[95]  Gardner averred that faced with a “materially communal relationship”, [96] the court would find the parties held the property in equal shares.  However, the Courts did not implement such reasoning in Graham-York v York.[97]  Although Gardner maintains the relationship was materially communal, he concedes that when quantifying the court did not divide the property equally.[98]

Though it appears unjust that after considerable conduct the claimant’s interest remained zero, Probert writes the reality is post-Kernott, courts still adopt an approach focussed on monetary contributions.[99]  Warren J adheres to this viewpoint by espousing that even equity cannot create proprietary rights on account of domestic contributions.[100]  A concept as esoteric as fairness within the realms of property disputes must be encapsulated within statute and not judge-made law.  Miles writes that s.28 the Family Law (Scotland) Act 2006 in contrast to the CICT provides judges with an appropriate licence to exercise a level of discretion unavailable to English courts.[101]  It is reasonable to conceive a court post-Kernott not granting a Burns-type litigant a beneficial interest.  By focussing on the interactions between parties and not their elusive intentions such legislation assists claimants relying wholly on non-financial contributions.[102]  This is manifested further by the broad interpretation the Supreme Court afforded the act in Gow v Grant.[103]  A remedy was granted that fully compensated the claimant for the economic disadvantage that she suffered despite neither making any contribution to the purchase price nor substantial improvements.  Applying the legislation widely, resulted in a “novel outcome” that would be difficult for courts to achieve without legislation.[104]

Gardner contends that post-Kernott, the result in Burns would not happen.[105]  Disputing Miles’ proposals, Gardner points out that to restrict the law to the rule-based approach of a statute confines the law to a particular type of claim;[106] as courts are bound by the legislation.  Allied to this, the majority concentrate on the whole course of conduct.  Therefore, courts will follow the Supreme Court’s reasoning in Kernott and if necessary infer widely even if this means imputing.[107]   Gardner’s enthusiasm for Kernott is subdued by the apprehension appeal courts face when trying to reach a fair solution.  This is beyond a chancery court’s normal jurisdiction where the decision-making process must be devoid of uncertainty. 

The Limiting of Kernott

 The dichotomy between property law and family law

Property law through its adherence to principles of certainty and the protection of formal rights is founded upon “19th century…laissez faire thinking”, that sits well with respecting contractual obligations but uncomfortably with the role of women in modern society.[108]  Even a constructive trust that corrects unconscionability, is ill placed to cope with the level of redistributive justice that the MCA (1973) offers to married couples.[109]  Similarly, whilst equity traditionally affords judges greater discretion than the common law, the sheer amount of discretion that Stack potentially yielded was better understood by Family Courts.  Mee pontificates that Baroness Hale exceeded her judicial remit, as only legislation can instruct courts to find a fair solution.[110] 

In contrast to these views, Family Courts when faced with an inherently unfair result may look beyond the doctrinal purity of the trust and settlor’s intentions.[111]   Moylan LJ writes in the interest of justice Family Courts occasionally adopt a “Humpty Dumpty” stance that undermines trusts law; giving effect to what the court believes the law should be after assessing the case in the round.[112]  In his dissenting judgment in Petrodel Resources v Prest,[113] later endorsed by the Supreme Court, Thorpe LJ stated that matrimonial legislation offered family courts a wide discretion to prevent the money maker from wholly relying on financial contributions.  This reasoning is at significant odds with the second limb of Rosset that is grounded in financial contributions giving rise to a common intention.  The common arguments made by chancery lawyers revolve around the difficulties of quantifying non-financial contributions and such contributions are usually insufficient for the creation of proprietary interests.[114]  Secondly as home ownership is an essential ingredient of wealth accumulation; it is apposite that property be protected by certainty in the form of “hard-edged rules”.[115]  Following Rosset, a clear disjuncture existed between financial contributions corresponding to the beneficial interest and simply sharing the “practical benefits” of the home through non-financial endeavours.[116]  The latter refers to the whole course of dealing and mistakenly signifies a beneficial interest, when it actually remains extraneous to property law.

Contrary to property law reasoning and through a feminist approach Newnham compellingly submits that these arguments are archaic and value should be attached to certain non-financial contributions, such as raising children.[117]  Similar to married couples, one cohabitant remains at home to look after the children to allow the other to work.   It is unlikely the former cohabitant is conscious of “property law’s narrow referability rules”. [118]   Eekelaar states whilst only financial conduct satisfies a literal understanding of a common intention, as this requirement places undue emphasis on parties’ common rather than actual intentions it is alarmingly out of touch with the current mechanics of the family home.[119] 

Probert writes that whilst Burns underscores the competing interests of family and property law; it is an outlier as its facts are similar to the circumstances of married couples and unrepresentative of most cohabitants.[120]  However, Wong postulates that Stack/Kernott have also succumbed to a stereotypical interpretation of unmarried cohabitees being assimilated with married non-legal owners.[121]  Over 30 years ago, Burns was an outlier, however Stack/Kernott are testimony to a growing number of couples living as though they were married.  Rosset’s failure to assess post-acquisition conduct is underwhelming when couples have been together for decades.  Probert concludes whilst property principles reliant upon financial contributions must be safeguarded, there is scope for courts to survey the whole relationship, account for its length and quantifying domestic contributions.[122] 

Despite extensive criticism over Rosset’s lapidary “bright-line rules”[123] and Kernott’s effort to fuse its entrenched property-centric position with a family law-oriented solution; Rosset remains binding authority for a non-legal owner having an interest in the property.  Thus, tension between property and family law still exists.  Rosset’s resilience can be explained by the original “laissez faire” autonomy being continued through a neo-libertarian “political commitment to individualism”, predicated upon legislation that both encourages and protects wealth accumulation.[124]  By choosing to ignore non-monetary contributions the court in Burns veered too far towards the owner-occupier.  This is accentuated by the law not necessarily rewarding financial contributions as Mr Rosset’s propertied status was a result of unearned privilege “rather than endeavour”.[125] 

The acquisition question is answered wholly by “the unattainable precision of property law”[126] in the form of Rosset.  Even when this question is answered in the affirmative, at the following stage of quantification the courts have rarely ventured beyond financial contributions.  This is in spite of Kernott and Geary permitting the courts to impute and consider non-financial conduct at this stage.  In Aspden v Elvy, HHJ Behrens frustrated by the dearth of directions on imputation from non-financial factors and dissatisfied with its arbitrary characteristics, reluctantly calculated his valuation solely upon financial conduct.[127].  Lee comments that when judges construct decisions on the basis fairness, it is reasonable for financial contributions to be the crucial factor as other issues are often too ethereal for calculation.[128]  Indeed Barr and Pearce surmise that resulting trusts determined wholly from financial contributions are often “clothed in the language and trappings of common intention”.[129]

Conflicting precedent

Whilst the remarks made in Kernott about acquisition cases were obiter, Baroness Hale stated that Lord Bridge’s comments in Rosset were also obiter.[130]  Whilst technically correct, Sloan attests to the latter being imperative to understanding the law.[131]  In contrast, Probert commented that post-Stack “…any efforts to steer other aspects of the law in a different direction may be dismissed as merely obiter dicta.”[132] 

The issue in Curran v Collins,[133] fell upon whether the court could find an express common intention from an excuse made by the defendant as to why the disputed property could not be held jointly.  Curran is an illustration of both the confusing impact Kernott has on the acquisition question and the attempt made by the Court of Appeal to limit Kernott.  Arden LJ’s judgment is testimony to this as throughout her Ladyship does not explicitly refer to Kernott.  Gardner submits “there can be no excuse for failure…to cite the area’s dominant authority”:[134] Kernott.  Whilst contributions impact limb two of Rosset directly, Arden LJ held that for the claimant to rely on limb one and the excuse, she would have to contribute significantly to the property.[135]  As this was an appeal, Arden LJ was unwilling to consider the facts.  A major deficiency with imputing is despite it essentially being a fact-finding exercise, appeal court judges are constrained by the findings of the trial judge.[136]  However, the application of the law to the facts need not have been quite so strict.  McCue conveys that in the wake of Kernott criticising Rosset for setting too high a threshold, Curran presented the Court with an opportunity to sufficiently modify Rosset and at least recognise how Kernott applies to non-financial conduct regardless of the weak claim.[137]  Arden LJ did not apply Kernott’s invitation to reach a holistic outcome.

Though Arden LJ may have had Kernott in mind when attempting to deduce a common intention from the whole course of conduct, she held that the trial judge moved beyond assessing financial contributions and was justified in finding no common intention.[138]  Her previous judgments concerning the CICT intimate that Rosset and not Kernott influence how the courts answer the acquisition question.  Firstly, Arden LJ never refers to Kernott in Gallarotti v Sebastianelli,[139] an acquisition case.  Similar to Curran, Arden LJ declares that the court should look at the whole course of conduct.[140]  Yet Sloan construes that this willingness is somewhat undone by Arden LJ making no reference to Kernott and instead criticising the trial judge for referring to recent cases.[141]  Whilst Kernott need not be mentioned in Gallarotti on account of contributions to the purchase price, Arden LJ’s failure to acknowledge Kernott demonstrates her belief that Kernott has minimal influence when claiming a beneficial interest.  This is a questionable approach when compared to the treatment of Kernott by other judges.  Even, where a claimant would have succeeded on the basis of Rosset alone, lower courts usually refer to Kernott out of custom.[142]

Secondly, Arden LJ relied on Stack when deciding Fowler v Baron,[143] to such an extent that whilst the right outcome was achieved, the same problems with Stack remerge in Fowler over whether the court is searching for common intention or fairness.[144]  Arguably the CICT was extended beyond its usual vernacular; since the claimant contributing almost nothing to the purchase price and little to the mortgage was not enough to rebut a presumption of joint ownership.  In Fowler, Arden LJ placed considerable weight on the parties pooling their assets together in the manner explained by Gardner.[145]  Despite denying this, her comments were more eponymous with family law and manufactured to achieve a fair result.[146]  Yet, Arden LJ in Curran conversely attaches little importance to the parties using “a common pot… for …joint expenditure”.[147]  Crucially, Fowler was a joint ownership case and so it appears that Arden LJ’s reluctance to apply Kernott is confined to the acquisition question only and not the joint ownership question.  Piska notes that Arden LJ throughout Fowler asserts that the Stack ratio only refers to joint ownership cases.[148]  No reference is made to Kernott in Curran because there is no need to consider the joint ownership question.

This is an orthodox application of stare decisis.  With Curran only being concerned with the acquisition question, Arden LJ is unclear whether to apply the requisite precedent found in limb one of Rosset or the more holistic alternative in Stack.   Lee professes there has been a mistreatment of horizontal stare decisis by the Supreme Court in not referring to the Practice Statement[149] and thereby signalling a complete and unequivocal departure from Rosset.[150]  This procedural requirement is essential for good judicial practice since Judges are being honest about the direction the law is taking and lower courts are not confronted with precedential ambiguities.[151]  Whilst equity’s “tolerance of indeterminacy” is a major facet in allowing courts to look behind the legal title of the property and identify beneficiaries, this must be subject to the doctrine of precedent.[152]  Instead their Lordships in Stack held that the law had “moved on” and in Kernott spoke of a “single framework”, whilst implementing an even more unconvincing strategy of not mentioning Rosset.[153] 

As Rosset and Gissing in contrast to Kernott were single names cases, there was no absolute requirement to overrule them, but the reality is that Kernott signals a major shift in precedent on two counts.[154]  Firstly, by imputing imaginary intentions, Kernott runs contrary to the reasoning in Gissing which forbids courts from imputing.[155]  Secondly, Lee questions the robustness of a presumption that contrary to its application in James does not require particularly unusual facts to be rebutted.[156]  This signifies a clear shift in precedent.  The argument against Lee’s reasoning is that by requiring judges to explicitly overrule previous law, they are being held to an unnecessarily high standard.  Further with private law constantly mutating, judges cannot wait for Parliament to provide legislation required for achieving justice.[157]  Yet given the importance of judge-made law when Parliament does not legislate, judges must overrule previous law that no longer aligns with current social and economic conditions, rather than formulate hollow distinctions between cases.[158]  It would be incorrect to submit that requiring the majority to refer to the Practice Statement constrains them from actually moving the law on. 

James similar to Curran is another example of the Court being reluctant to go beyond Rosset.  James applies such a restrictive interpretation of the limbs that indirect financial contributions were deemed inadequate for granting the claimant an interest.[159]  Notwithstanding the fact that the cases concerned different questions, Chadwick LJ’s decision in James appears almost schizophrenic when compared to his earlier judgment in Oxley v Hisock.[160]  Here his Lordship referred to shares being determined on the basis of what was “fair having regard to the whole course of dealing”.[161]  This conclusion was criticised in Stack[162] and so may explain the drastic shift in Chadwick LJ’s reasoning in James away from a holistic analysis to the court being “slow to infer from conduct alone”.[163]  This illustrates just how far a judge’s decision-making can vary on the familial home. 

When deliberating whether to grant leave to appeal in Curran, Toulson LJ pointedly remarked on the unsatisfactory nature of the law that the trial judge correctly followed. However, his Lordship granted leave on an entirely separate ground, resulting in the Court of Appeal not considering the restrictive application of the CICT in detail.[164]  This is symptomatic of the uncertainty that is internalised within the acquisition question.  Kernott’s attempt to undermine Rosset has generated a paradox within the law.  With Kernott contradicting much of the law prior to Stack, Sloan opines that Kernott perhaps deliberately muddied the waters in order for an acquisition case to come before the Supreme Court.  However, according to a literal understanding, problems remain as Kernott need not be mentioned in such cases.  Rather incongruously Rosset’s absence in Kernott has permitted lower courts to not explicitly acknowledge Kernott. 

No excuses?

Lewison LJ, who also passed judgment in Curran approached the issue by actually referring to Kernott as he related the starting point and rebuttable presumptions outlined in Stack to Curran.[165]  Lewison LJ’s consideration of the acquisition question in light of Stack and Kernott compares favourably with the method of Arden LJ.  However, his application of the “single framework” only reinforces the assertion that lower courts have sought to limit the reach of Kernott.  Whilst Arden LJ rather openly limited Kernott to its joint ownership ratio, more judges have followed Lewison LJ’s approach.  With the latter, there is a conscious understanding of what Baroness Hale was trying to achieve; however lower courts have been unyielding in their determination to implement a traditional understanding of property law through the medium of Rosset. 

When the claimant in Curran enquired why the property was not held jointly, the defendant claimed this was too expensive as it involved paying for two life insurance policies.  Lewison LJ ascertained whether the claimant relied on the defendant’s “specious excuse”[166] to the extent that there existed a common intention to share the property.  His Lordship distinguished Curran from Eves v Eves[167] and Grant v Edwards[168] where in both instances the court of Appeal looked beyond such excuses and found beneficial interests.  Eves and Grant recognised the rights of claimants who made no financial contributions, yet to their detriment relied on an excuse made by the legal owner of the property.  Both cases are viewed as a liberalisation of the CICT in circumstances where an express common intention is found.[169] 

Contrary to the finding in James, Brightman J in Eves held that the claimant, on account of an excuse and in light of considerable non-monetary work undertaken in relation to the property, had detrimentally relied on the excuse.  Therefore, she was entitled to a beneficial interest in the property.[170]  Lord Browne-Wilkinson in Grant approved of such an attempt to move the law beyond considering purely financial contributions,[171] as the defendant’s excuse for not putting the property in joint names did not stand up to scrutiny.  This innovative approach was criticised for being both doctrinally unsound and deemed to be a judicial departure from the common intention analysis.[172]  It is questionable just how express the common intentions in Eves and Grant were.  Lawson advances that despite Lord Denning moving the law in the right direction, such an analysis was still encumbered by the stereotypical role of women.[173] 

Lord Bridge’s conclusion in Rosset that non-financial conduct was only permissible where there was an express common intention can be viewed as closing off or at least making it difficult to claim an interest in Eves-types cases.[174]  The tendentious application of the law by judges sympathetic to the circumstances of the claimant is rather ineffective when a higher court judge in Rosset narrows these creative attempts to find beneficial interests.  Both Stack and Kernott can broadly be assimilated with the attempt in Eves to move away from direct contributions.[175] 

Lewison LJ subtly differentiates between the excuse in Eves being a positive assertion and actual representation of the facts and an excuse that does not do this.[176]   Moreover, Hayward affirms that Curran’s strict interpretation of a common intention is maintained by “Lewison LJ calling Eves and Grant “fact sensitive””.[177]  In an attempt to realign the CICT within the boundaries set by Lord Bridge and limit the scope of Eves-type cases towards a genuine common intention, Lewison LJ arguably made the law more subjective and as a result more complex.  Distinguishing Curran on the ground that a negative assertion was made here has been criticised for being too simplistic as the defendant’s reason for making the excuse is not properly assessed and the excuse in Eves could easily be expressed in the negative.[178]  This only creates the spectre of a distinction.  Curran returns to the bright-line rules of Rosset after Stack and Kernott; generating more judicial interference. 

Another troubling development is how the Courts appear to differentiate cases on an arbitrary basis by punishing a defendant for lying in Eves and Grant, but failing to find an interest when the defendant has “evaded the (common intention) issue” as in James.[179]  This may be extended to Curran, with Stack and Kernott having the opposite effect to that intended by Baroness Hale; thereby making it harder for a party claiming a beneficial interest.[180]  This uncertainty in Curran is accentuated by Lewison LJ’s reasoning conflicting with Tomlinson LJ holding in Southwell v Blackburn that mere inaction from the defendant in making an assurance does not justify a court not finding for the claimant.[181]  Therefore a court should look beyond such omissions rather than allow a defendant to hide behind non-committal behaviour once the claimant has foregone substantial detriment.  Although the Court in Southwell preferred proprietary estoppel over the CICT, there is a divergence in thinking between their Lordships.

The weak case submitted by the claimant cannot detract from Lewison LJ preventing any noticeable foray being made on the acquisition question.  His Lordship refrained from embracing the more holistic aspects of Kernott, since both claimants in Curran and Geary had at least foregone something of a detriment in relying on the defendant’s promise.

The resurgence of detrimental reliance

Prior to Stack, detrimental reliance was perceived to be a key requirement of the CICT, particularly when relying on express discussions in limb one of Rosset.  Detrimental reliance is defined as sufficiently altering one’s position to their detriment in reliance of an agreement.[182]  Even if an express common intention had been found in Rosset; there was no detrimental reliance as the claimant made monetary contributions “so trifling as to be de minimis”.[183]  Similarly, Parker QC in Coombes v Smith indelicately held that it was natural for a female cohabitant in a relationship with the legal owner to undertake housework.[184]   These decisions have been criticised for highlighting the judiciary’s “institutional lack of empathy” towards female claimants.[185]  Barr and Pearce prefer Browne-Wilkinson V-C’s more liberal interpretation of detrimental reliance such that it need not relate to the property but more generally to the “joint lives of the parties.”[186]  Uneasiness has persisted over detrimental reliance, chiefly being that the claimant must surpass a particular threshold in order to suffer detriment.  Yet, the law remains frustratingly opaque as to where this threshold lies and fails to appreciate that a claimant may have multiple motivations for their actions.[187]

The absence of detrimental reliance in Stack prompted suggestions that it was no longer required, leading Etherton LJ to surmise “There is now a hair’s breadth between the CICT of the Stack kind and a remedial constructive trust.”[188]  At the very least detrimental reliance manifestly covered other forms of conduct beyond financial contributions.[189]   Although obiter, Arden and Lewison LJJ both declare that in Curran-type cases the claimant must show detrimental reliance to generate an equity.[190]   Interestingly counsel for the appellant originally submitted that following Kernott the appellant did not have to evince detrimental reliance.  However, she conceded on this point, perhaps accepting the difficulty of finding an equitable remedy where the claimant could not prove unconscionable conduct.    This approach clearly aided the claimants in Bhushan & Ors v Chand,[191] where the court relied heavily on the presence of detrimental reliance when finding an interest for the claimants, who had clearly contributed without actually benefitting from the contributions.[192] 

Sloan posits that unlike the majority’s tactic of not discussing Rosset which was an attempt to change the law; it is difficult to conclude the same for detrimental reliance as it is critical to the functioning of the CICT.[193]  However, this view ignores the modification and subsequent weakening detrimental reliance underwent in Stack with Baroness Hale advising lower courts to consider “the whole course of conduct”.   Virgo comments that the move to search for implied or imputed intentions underlines an approach that no longer entails searching for detrimental reliance.[194]  Furthermore, Bennett argues that although detrimental reliance may be found in Stack and Kernott; through imputing and taking a more holistic approach there is a departure from the language of detriment and contributions.[195]  Bennett concludes that Kernott is more akin to the reasonable expectations constructive trust (RECT) New Zealand courts followed rather than a CICT dependant on the defendant making a bogus representation.[196]  Similar to Kernott, an RECT focusses on the “whole course of dealings” and exists where a claimant reasonably expects an interest on account of their contribution.  Grant also embraced the reasonable expectations approach, since upon finding an agreement “any conduct sufficed which was to the woman’s detriment”.[197]  This view departs significantly form Arden LJ holding in Curran that only significant conduct would give effect to an agreement.

There was an implicit move in Stack/Kernott towards recognising beneficial interests in Burns-type cases where the claimant has foregone work and financial remuneration to look after the home.  Yet, this clashes with a stricter application of detrimental reliance.[198] The principal aim of the majority in Stack was to achieve a level of redistributive justice.[199]  Detrimental reliance is a cumbersome instrument for achieving such a purpose.  Moreover, it departs from the context specific characteristic of interpersonal relationships.[200]  Both of these points cast doubt on Sloan’s assertion above, as not only is detrimental reliance not mentioned in Stack/Kernott, neither case is even considered within an understanding of detrimental reliance. 

The departure from detrimental reliance has been short-lived with its more robust application mentioned in Rosset applied to Walsh v Singh[201] and Thomson v Humphrey[202].  Both claimants argued detrimental reliance as that they had left jobs to assist their partners with their property and in Walsh the partner’s business.  The Courts held that the detrimental reliance threshold was not reached as both claimants had not suffered the requisite level.  It is arguable that an application of Grant reinforced by the dicta of the majority in Stack/Kernott to the facts may have resulted in successful claims.  This is particularly so in Walsh, where the claimant gave up a well-paid job to help the defendant.  Consequently, the dicta in Curran can again be viewed as re-asserting Rosset principles.

The inadequate attempt by the majority in Kernott to implicitly limit detrimental reliance can be seen in Smith v Bottomley.[203]  Here the claimant relied to her detriment on promises made by the defendant regarding marriage and a “half-share in the family home.”  Sloan contends that though Sales J attempted to go beyond Rosset, such an attempt was insubstantial.[204]  Similar to Arden LJ in Curran, Sales J relied on Rosset and not Kernott because the trial judge had been unable to infer from conduct, despite the claimant contributing to the relationship.[205]  Instead there was a rigid application of detrimental reliance and a noticeable reticence by Sales J to properly engage with the common intention question in the holistic manner that Kernott encourages.[206]  Sales J’s implemented a narrow view of detriment by holding the claimant to have merely changed her position by giving up rented accommodation to move into the defendant’s accommodation, which she did not pay for.[207]  Probert criticises this current modus operandi that is underpinned by the singular “but-for” test utilised in James, which unrealistically searches for the primary motivation behind the claimant’s conduct.[208]  This test is something of a blunt instrument since it is devoid of contextual understanding and is pervaded with value judgments about the role of women in the home; far more than Eves and Grant.[209]

The claim would have failed even if detrimental reliance were present, because the contested property was held by a company controlled and owned by the claimant.[210]  The Court held the company to be a separate legal entity incorporated after the promises had been made.[211]  Alardice has questioned whether it was reasonable for a claimant to appreciate that the creation of a company by a defendant, who had promised her joint ownership, would be fatal to her claim.[212]  Though it may be less certain than the high threshold Rosset sets for adequate detriment, an objective test formulated upon the parties’ reasonable expectations would be more appropriate here.

As with their approach of ignoring Rosset, the majority’s failure to refer to and grapple with detrimental reliance has undone many of their obiter statements in Kernott.   Lower courts remain faithful to Rosset principles and the threshold it sets for detrimental reliance; as opposed to ignoring it.  It is plain that lower courts have generally been resistant to engaging with the innovative dicta in Kernott.  This is largely down to Kernott being read according to a traditional understanding of common intention and where it sits in equity.  The alternative would be to impute at acquisition. 

 Why not impute?

The heresy of Bhura?[213]

Bhura[214] concerned a dispute between a married couple over two properties.  The wife claimed that her husband’s brother held the second property on a CICT for the husband.  Mostyn J ruled there was not common intention to share the property.[215]  Yet, Mostyn J’s analysis of the acquisition jurisprudence is striking and shares similarities with Baroness Hale’s dicta on imputation in Abbott, as he applies Kernott more explicitly than in any case considered above.[216]   As with many of these cases, a beneficial interest was not found on the facts and there is Court of Appeal precedent which exercises a more cautious approach.  Nevertheless, there is value in assessing Mostyn J’s reasoning; not least because his Lordship expanded upon limb two of Rosset in Le Foe,[217] by going beyond direct contributions and finding for the claimant who paid mortgage instalments.  Despite these payments amounting to only 10% of the property’s value, his Lordship inferred a common intention to equally share the property due to the claimant’s indirect contributions towards general outgoings.  Thompson concluded that this reasoning and the holistic analysis attached to contributions in Midland Bank v Cooke[218] “is at odds with”[219] Rosset. 

Though the marriage was not dissolved, Cooke has significant parallels with the “family assets” approach for dividing property encased in MCA (1973).[220]  Equally, Bhura and Le Foe involved married parties and were heard in Family Courts, which explains the more family law oriented reasoning.  Nonetheless, Mostyn J’s arguments cannot be dismissed; since Griffiths LJ remarked legal principles appropriate for married couples should be extended to their unmarried counterparts, when as with Burns the latter shares many of the formers’ characteristics.[221]

Gardner divides Mostyn J’s evaluation of Kernott into three parts.[222]  Most controversially, Mostyn J argued the two stage test that involved firstly whether there is a departure from the sole ownership presumption and if so how to quantify these interests should be collapsed into one question.  Where a court cannot find a genuine agreement nor infer a tacit agreement, the court may impute an intention upon the parties according to what is fair and reasonable in the circumstances.[223]  This is radical and irreconcilable with Lewison LJ confining imputation to only quantification in Geary.   Secondly, Gardner infers from Mostyn J’s absolute invocation of Kernott applying to acquisition cases, that acquisition and joint ownership questions can be integrated under a unified approach. Therefore, there is no detrimental reliance requirement and the courts consider the whole course of conduct in sole and joint cases.[224]  Finally, Mostyn J states that resulting trusts are still relevant to “family home” cases,[225] despite Kernott confining the resulting trust to a small band of cases.[226]  The resulting trust’s continued prevalence is clear from the analysis of Aspden/Graham-York above.

Mostyn J’s approach is inconsistent with the individualist and liberal attitude so salient within Rosset and property law more generally.  Following Bhura, Bailey-Harris commented that Kernott does not permit judges to impute at acquisition, which remains dependent upon actual intentions.[227]  In response, Mostyn J extra-judicially re-affirmed his commitment to imputing at acquisition in the midst of what he perceives to be equity’s failure to provide for unmarried couples.  His Lordship saw little reason for the legislator to ignore cohabitants, now civil partners were protected.[228]  Such analysis would necessitate a judge applying a purposive as opposed to the literal interpretation of Kernott seen in subsequent cases, in order to achieve a fair result.  A purposive approach is achieved by widening the breadth of inferring or imputing as the majority and minority respectively attempt in Kernott.  In spite of several reservations, Gardner deduces that in absence of legislation, Mostyn J’s method of reading “between the lines”[229] is justified in order to reach a simpler and potentially fairer result.   

Mee disapproves of this as judges cannot instigate a clean break from the Rosset test that was built upon legal doctrine; as it is outside the role of judges.[230]  Secondly, judges are unrepresentative of the legislature, who has consciously chosen not to legislate when Scotland has.[231]  However to cocoon judges into a static role would be to ignore social and economic change.  Parliament will not recognise the rights of Burns-type litigants for political reasons. Thus, it is prudent when faced with such inertia, for Courts to develop the law within reason in order to address public policy concerns and avoid future injustice.[232]  O’Mahony adds there is a tendency for exclusionary property law problems to be classified as insoluble.[233]  In this regard Mee’s argument is awkwardly rigid and excuses the unsatisfactory state of the law.  Mee fails to offer a robust solution for neglected non-propertied outsiders, instead holding them to impossible standards when Mostyn J’s purposive interpretation provides a solution.[234]

Sloan unconvincingly proposes that the claimant in Aspden benefitted from a “novel outcome”.[235]  This is questionable as a common intention existed due to substantial financial and physical improvements made by the claimant when renovating the property after he transferred it to the defendant.  Such an inference is not the mythical creature many believed Kernott created and was a “small step”[236] from an inferred common intention under Rosset, as it increased the property’s value.  In Bank of Scotland Plc v Brogan[237] Deeny J finding against the creditor, discovered a common intention that partly rested upon the defendant’s indirect work.  This suggests there is support from judges for a purposive and context heavy interpretation of Kernott, even when it is at the expense of creditors and “doctrinal specifics”.[238]  However the defendant’s’ married status combined with the importance Northern Irish courts idiosyncratically attach to marriage rather dilutes Brogan’s impact.[239]

Imputing at acquisition

To appreciate property law’s resistance to imputing, Piska writes that a “property paradigm” combined with trusts law vigorously protects individual rights.  Courts must always strive to give effect to the intentions of the settlor and are forbidden from constructing fictional intentions according to fairness.[240]  The court’s role is confined to one of corrective justice merely identifying the CICT as an institution of property.  Distributive justice concerned with notions of fairness can only be achieved through imputing, which is left to Parliament not judges.[241]

In Stack, Lord Neuberger vehemently rebuked the courts for imputing according to what was fair and reasonable, as it “…departed from well-established principles”.[242]  Lord Neuberger’s disapproval originated from his support for the resulting trust premised upon a belief that in the absence of legislation, judges cannot single out cohabitants and exercise discretion when allocating proprietary interests.[243]  Fundamentally, Lord Neuberger dissented against imputing on three broad grounds. 

Ground 1

Lord Neuberger was unconvinced there was enough evidence in reality to rebut the resulting trust presumption.[244]  His Lordship held for the presumption to be rebutted; only extremely significant factors applied.  In this regard, most home-sharing duties were unexceptional, meaning they were consigned to familial context.  Lord Neuberger surmised that parties by separating their assets as in Stack were simply organising their financial arrangements. For Lord Neuberger, the joint ownership of the property was all that mattered.[245]

In this respect Mostyn J’s argument that “presumptions are only presumptions”[246] and in the interest of fairness “actual facts” should rebut these presumptions requires further justification to be persuasive.  Lord Neuberger was frustrated by the majority’s failure to substantially explicate why the financial arrangements between the parties, which entailed assuming responsibility for different payments, were so exceptional that the presumption of joint ownership be rebutted.  In fact, Douglas, Pearce and Woodward, concluded from an empirical study that the financial arrangements in Stack were not unusual, as the majority of unmarried cohabitees have separate bank accounts.[247]  Wong construes it to be a normative misconception for courts to hold that cohabitees with children will endeavour to operate as a “single economic unit”, as this is not enough to displace the heavy presumption.[248]

Lord Neuberger rightly contended that the presumption was useless if “the only time you need it, it isn’t there.”[249]  Piska favours Lord Neuberger’s reservations over the presumption being rebutted too easily as one infers very little from separate financial arrangements besides personal independence.  Even more alarming is that the majority appear to throw too many factors in the mix.  Such an overly contextual approach risks appearing “subjective and arbitrary, ...not objectively justifiable.”[250]  This was in fact pretence for the majority’s actual findings which revolved around the defendant being uninvolved in the lives of his children and not contributing financially.  The real reason for rebutting the presumption rested on the claimant making a far greater contribution to the family life and home, with Baroness Hale glowingly acknowledging this.[251]  Therefore, Lord Neuberger is right to be dissatisfied with the grounds upon which the majority rebutted the presumption.  More weight would be added to Mostyn J’s submission if the majority had set out their actual reasons for rebutting the presumption, even if it was an exercise in judicial discretion.

Ground 2

Property law’s overarching mantra respects certainty and proprietary rights.[252]  Equity dictates a level of doctrinal clarity always rooted in the intentions and potential agreements of the parties and not what the court believes is reasonable to conclude from surveying the whole relationship.[253]  Accompanying this is the unease over the court’s unshackled search for justice which relies on a judge’s own perceptions and causes the CICT to lose equitable weight.[254]  According to these conventional views, imputation is no more than a legal fiction that does not align with what the parties intended expressly or tacitly, and fails to establish clearly defined property rights.

Lord Neuberger distinguishes between judges creating imaginary intentions based on what reasonable parties would have hypothetically agreed and the actual intentions of the parties regardless of how unreasonable these intentions may be.[255]  Despite some dissatisfaction with the latter, his Lordship by electing for the resulting trust approach favours the certainty it provides even if it gives primacy to the party with unreasonable intentions.  With respect, there are two shortcomings with such reasoning.

Firstly, if the court decides a dispute purely upon financial contributions, even when confronted with the demonstrably unreasonable intentions of one party, Burns-type claimants will continue to be unsuccessful.  This was not the intention of the majority in Stack/Kernott, who infer a common intention from the whole course of dealing.  To criticise imputation for opening the door to unfettered fairness ignores equity’s principled yet purposive role in supplanting “rigid common-law rules.”[256]  Pawlowski argues contrary to Lord Neuberger that in the absence of express discussions or conduct, it is entirely logical for courts to impute an intention.[257]  Given this frequent absence, imputing rightly originates from considerations of fairness and bridges the gap between what the parties would have intended, and what could reasonably be intended.[258]  Thus, there is little chance of courts imposing a solution that is entirely at odds with what the parties would have intended and judges must be quick to avoid this.  The complex nature of relationships and absence of legislation suggests there is little sense for courts to only impute at the less controversial quantification stage.[259]  Lees goes one step further by explaining that the rules in Kernott are far better attuned to answering the singular acquisition question than to ascertain a multitude of factors at the quantification stage, where the result naturally appears more arbitrary and prone to unstructured discretion.[260]

Mee writes that Lord Neuberger’s contention respects reality as often one party is unreasonable and overbearing.[261]  There is value in the court accepting the autonomy of the parties and it is usually not the court’s prerogative to curb the intentions of one party no matter how unreasonable.  However, in Fowler Arden LJ did not respect the secret and unreasonable intentions of the defendant.[262]  The fact that the property in Fowler was jointly owned appears to be the main reason for the courts interfering with party autonomy here but not in acquisition cases.  Such a distinction appears arbitrary, as the courts should be consistent in their treatment of unreasonable intentions.

Lord Neuberger fails to give due weight to the division of labour in the household when it would be reasonable to do so.[263]  Gardner recognises how Bhura moves beyond the literal interpretation of Kernott and considers the very purpose of what Baroness Hale was trying to achieve.[264]  This was for non-financial conduct to be evaluated in both sole and joint ownership cases, not just the latter.  Waller LJ alluded to the possibility of imputation in Burns given the nature of the relationship between the parties.  This has led Pawlowski to conclude “the need for certainty ought not to be seen as an obstacle to providing a principled approach” for the acquisition question.[265]  Therefore, it is questionable for Lord Neuberger to confine courts to a declaratory role and fail to address the need for social justice.

The second argument against Lord Neuberger’s viewpoint enlarges upon the conclusion made in Chapter one that the majority in Kernott should have imputed and not inferred a common intention.  Like Lord Neuberger, Piska does not dispute that imputing is a legal fiction.[266]  However, Piska is not in agreement with Lord Neuberger holding there to be an important distinction between inferring and imputing in any practical sense.[267]   In the absence of financial contributions, it would be virtually impossible for courts to infer a common intention from the subjective intentions of parties.  It is a fallacy to say that certainty is at all achieved by respecting actual intentions. If imputing at acquisition was explicitly approved in Kernott, it would compel lower courts to undertake a more careful and objective assessment of the facts.[268]  

Piska takes issue with Lord Neuberger describing imputation as a “difficult, subjective and uncertain” exercise. [269] Having made the above distinction, Lord Neuberger has not appreciated that express declarations of trust are rarely made, and inferring from the course of conduct suffers from many of the same pitfalls as imputing.[270]  Whether inferring or imputing, a court’s primary search for the common intention is inextricably linked to a parallel search for what is fair on all of the facts.[271]  As mentioned earlier only imputation directly conflicts with the property paradigm and so the majority choose to infer[272].  Criticising the majority in Kernott, Piska propagates Fuller’s argument that a legal fiction is far less problematic when the court explicitly acknowledges it, as the minority do.[273]

This raises a broader issue over the cumbersome and artificial characteristics of common intention.  Gardner has commented how searching for intentions whether inferred or imputed is ultimately a fiction.[274]  Not only do the manufactured approaches in the excuse cases above illustrate the deficiencies with common intention; but following a strict interpretation even inferring an agreement from financial conduct is an invented fiction as the two are often unconnected.[275] Therefore, even when an actual common intention is found, the court is implementing some measure of fairness.  Dyson deduces that by constricting fact-sensitive claims which search for fairness within a rule-based framework, Stack is built upon multiple fictions that strive to make the law more complex, costly and “intellectually bankrupt”.[276] 

Gray and Gray advocate for courts to embrace a more flexible judicial application focusing on whether claimants have a reasonable expectation of acquiring an interest and other factors such as unjust enrichment.[277]  Whilst courts may not go so far as to utilise a remedial constructive trust,[278]  allowance should be made for some discretion.  In this respect, Gardner commends Mostyn J in Bhura for shining light upon the value of a trust evolving out of reasonable expectations since it interprets Kernott practically.[279]  This has the advantage of scrutinising what the parties think through the lens of reasonableness.  Though, this is a departure from equitable doctrine, it offers greater scope because a remedial instrument with redistributive qualities is more meritorious and consistent than the wildly manipulated subtleties of the CICT; particularly when judges find that neither express nor inferred agreement exists.[280]  Further, Eekelaar averred that proprietary estoppel was more conducive to a reasonable expectation analysis than the common intention framework;[281] Southwell suggest courts are moving in this direction. 

Whilst imputing has shortcoming, many of these problems are not related to ascribing intentions upon the parties.  Instead these problems are testimony to the majority not imputing in Kernott and hence there being very little guidance for trial judges over how to impute.[282]  Lord Neuberger drew attention to this in Stack and this remains the case nearly ten years on.[283]  It is applauded that the majority exercised a degree of flexibility in Kernott, however such laxity cannot come at the cost of outlining relevant factors.[284]  For example Behrens J provides little reasoning as to how he quantified the beneficial interests in Adekunle v Ritchie[285] beyond complying with a holistic approach.  Such “unconstrained discretionary justice” is harmful.

Ground 3

Lord Neuberger has extra-judicially commented that the majority in Kernott inferred a change in common intention.  Thus his Lordship believed his opposition to imputing had been justified and placated.[286]  However, chapters one and four illustrate that his Lordship was only correct in assuming that Kernott had practically closed the door on imputing if a literal and ultimately wrong interpretation is enacted.  It is respectfully submitted that these broad brush strokes are similar to the reasoning behind the cases discussed all of which fail to review either of the minority speeches in Kernott, which ratified imputing.  In Kernott, Lord Wilson did not prohibit imputing at the acquisition stage; instead espousing that imputation would “merit careful thought”.[287]  This comment deserved greater scrutiny, particularly as the majority did not oppose it.  Yet it is absent in Lord Neuberger’s speech and all of the subsequent cases.  Moreover, Gardner supports Mostyn J’s contrary opinion to Lord Neuberger’s on the ground that the majority indirectly admit to imputing by holding that there was little difference between imputing and inferring.[288] 

Mee pursues a similar approach to that of Lord Neuberger when analysing Lord Diplock’s speech in Gissing by roundly rejecting Lord Walker’s interpretation that “But for the substitution of the word infer for impute the substance of the reasoning is…essentially the same.”[289]  Mee instead submits that Lord Diplock was taking inferring to its limit in terms of genuine intentions but not imputing.[290]  The difficulty with this is that when inferring is stretched to its limit, the court is very likely imputing.  Cowan et al point to Lord Diplock championing the use of imputation previously in Pettit; thus in reality Lord Diplock nominally replaced imputing with the less controversial method of inferring.[291]  The reason Lord Neuberger and Mee choose to interpret the law in this literal manner is because it contradicts equitable doctrines less and limits Kernott’s reach. 

Assimilation of Joint and Sole ownership

Though Gardner acknowledges that the acquisition and joint ownership questions have different starting points, at its core a common intention must be deduced objectively in the round.[292]  This would suggest that similar to Abbott, certain non-financial conduct is appropriate to rebut not only the joint ownership presumption but also the sole ownership presumption.  Essentially the departure question needs to be asked prior to quantification in both sole and joint ownership cases; and is answered according to financial and non-financial conduct. Yip states that the failure to unify these two approaches in order to assist the home-maker partner lies with Parliament and not the CICT.[293]  Conversely, Sloan correctly simplifies “the essential question…(to be)…about the common intention of the parties”.[294]  The factors relevant for finding a common intention should be “analytically indistinguishable” from factors that show a change in common intention, as in both a constructive trust is found that differs from legal title.[295] 

In conflict with the “single framework” both questions originate from, two separate bodies of law have developed since Geary.  This is seen when comparing two contrasting Court of Appeal decisions: Barnes v Phillips[296] on the joint-ownership question and Capehorn v Harris[297] on the acquisition question.  The claimant in Barnes had the stronger claim; as in Kernott the defendant made no mortgage payments in seven years and solely benefitted from re-mortgaging the property earlier.[298]  In Capehorn, the trial judge found the claimant had acquired a beneficial interest in a farm on account of discussions he had with the legal owner that fell short of an agreement and contributions he made to the farming business.[299] 

The two decisions diverge on the issue of the existence or change in common intention to share the property.    At the departure stage of the joint-ownership question, it is not possible to literally impute a change in common intention.  Yet this is exactly what the trial judge did in Barnes, and was partly appealed on this basis.  Lloyd Jones LJ dismissed the appeal the trial judge could infer such a change.[300]  However, Hayward asserts that whilst the trial judge’s confused application of Kernott may be justified for reasons mentioned above; the same cannot be said for Lloyd Jones LJ, particularly given the overt references made to “shares” and “fairness” by HHJ Madge when imputing a change in intention.[301]  By extensively widening the scope for inferring, Lloyd Jones LJ is no longer distinguishing between inferring and imputing; instead choosing the closed off path of manufacturing intentions.[302]  Inferring such intentions is more problematic than imputing them, thus Barnes lacks credibility and falls into the trap enunciated by Piska where courts are not open about engaging in legal fictions.

Sales LJ concludes the opposite in Capehorn where DJ Langley imputed a common intention to share the property on account of the claimant’s conduct.[303]  With respect, Sales LJ’s speech is underwhelming as the conduct of the claimant is not even considered in the manner that Lewison LJ does in Geary.  In Capehorn, DJ Langley’s decision to impute was fatal to the claim, when Lloyd Jones LJ’s more lenient approach may have instead inferred a common intention from the conduct.  This inconsistent approach to answering the departure question for on the one hand sole and on the other joint-ownership questions stresses the “overly academic distinction between inference and imputation”, which is unhelpful for courts resolving familial disputes.  Following Capehorn family practitioners expressed bemusement as to how on account of a property being sole or jointly owned, they have to give such differing advice that rests upon an uncomfortable distinction between inferring and imputing.[304]   

Due to differing starting points, non-legal owners face a greater hurdle than a joint owner regardless of their non-monetary endeavours.[305]  Lord Neuberger stated that joint ownership says little about the parties’ intentions. This is compounded even further by both parties often agreeing to register property in joint names in order to gain a better mortgage or on their solicitor’s advice rather than take into account contributions made to the purchase price.[306] Further, there is little sense in factors considered worthy for quantifying not being applied to acquisition.[307]  Whilst the scope for inferring is extremely wide on the joint-ownership question, none of the Stack factors have been applied in sole acquisition cases leading to arbitrary reasoning that are the absolute converse to the answering joint-ownership questions. 

It may be argued that Sales LJ’s speech can be justified by avoiding the acquisition and quantification stages being elided together.[308]  This results in inferring and imputing being conflated together.    Lloyd Jones LJ in Barnes draws attention to a “critical step… simply not (being) addressed” by the trial judge.[309]  Yet his lordship argues that the trial judge was aware of this step by referring to the structure in Kernott.  Whilst, technically the two stages cannot be meshed together such reasoning is unconvincing as Kernott lacks any real clarity on how a judge applies the structure.[310]  This disguises a problem that only comes to the fore in harder cases that concern acquisition claims where claimants are afforded a more literal common intention which complies with Rosset. 

Hayward’s proclamation above that the law post-Stack/Kernott now tends towards an enhanced familialisation of property is founded upon courts overwhelmingly applying Stack/Kernott to join-ownership questions.  This was so even before Stack/Kernott.[311]  The acquisition question has correspondingly been left largely unanswered.  When deliberating Kernott in the Court of Appeal, Wall LJ was loathed to introduce family law thinking into cohabitee disputes.[312]  Despite the law on acquisition generally following this path; family courts increasingly evaluate non-financial factors when the marriage is not dissolved.[313]  Gardner approaches the matter differently, resisting the temptation to shoehorn the law on familial trust within the realm of either property or family law. [314] 

It is disingenuous for the courts to treat the same question differently as there is no real cohesion between the two bodies of law.  If there is a single framework and considering the suspect foundations of common intention, the court should be honest in Barnes and follow Mostyn J’s lead by allowing imputation for both questions and remove any ambiguity in the law.[315]  The court is not just imputing at quantification, but for the entire joint ownership, notwithstanding its serious ramifications/therefore in Burns-type scenarios courts should be permitted to impute at acquisition.

Conclusion

This study has illustrated how the majority in Kernott by inferring rather than imputing have prevented the Kernott CICT from being applied to the acquisition question in any meaningful manner.  This was confirmed in Geary with imputing at acquisition being officially forbidden.  The majority’s failure to ratify imputing has meant that much of the Stack/Kernott dicta revolving around paragraph 69 has no relevance when claiming a beneficial interest. 

However, recent judgments in Curran and Capehorn clearly support Sloan’s assertion that courts have been either unable or reluctant to apply Kernott at acquisition.  In view of Parliament’s unwillingness to legislate, Sloan concludes that it is left to the Supreme Court to clarify how exactly a judge can infer beyond financial contributions.  Though finding a suitable enough case will be problematic, given the Supreme Court refused leave to appeal in Curran.[316]

The rationale behind this was explained in Chapter 3, which broadly reflects McCue’s contention that far from liberalising the acquisition question, Kernott has in fact made it harder for claimants relying on non-financial contributions.  This is exemplified by Curran’s limiting of earlier excuses cases, which permitted a more holistic interpretation of detrimental reliance, by including non-financial contributions.  Irrespective of the criticism Rosset received from both Stack/Kernott and the academy, a failure to explicitly overrule Rosset and O’Mahony’s evaluation of Rosset’s political appeal in terms of providing legal certainty, suggests courts are still slow to look beyond the Rosset limbs.

Mostyn J’s departure from traditional thinking in Bhurra is welcome when judges are faced with hard cases and yet feel constrained in applying a level of discretion that would effect a just outcome.  In contrast applying Lord Neuberger’s strict understanding of imputation, Mrs Burns would still be left without a remedy.  This is in spite of inferring being more problematic as an unacknowledged legal fiction than imputing.  Whilst Lord Neuberger’s resulting trust approach may be certain, the same cannot be said for inferring.  Particularly when appeal courts permit trial judges to infer quite so widely as in Barnes.  This feeds into the problem addressed in the final section of two separate bodies of law being created.  Though the scope for inferring from all kinds of conduct remains extensive in joint-ownership dispute, it illogically remains very narrow for the acquisition question.  However, cases such as Brogan indicate that the purposive approach to finding a common intention so favoured by Mostyn J is not just a theoretical concept but can be applied in reality.  This may lead the courts to adopting a style concentrating on reasonable expectations of the parties; and is welcome as it will almost certainly lead to more just outcomes and does not create an artificial distinction between sole and joint ownership cases.

Footnotes

[1] [2012] 1 A.C. 776

[2] Gissing v Gissing [1971] A.C. 886

[3] s.25 Matrimonial Causes Act (MCA) 1973

[4] Wong, “Cohabitation Reform in England…” (2015) CJWL 112 116

[5] ibid.

[6] Ferris, “Reflection on Formalities” in Barr (ed) Modern Studies in Property Law- Volume 8 (Hart, 2015), 272.

[7] Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669, 705.

[8] ibid, 714.

[9] Hussey v Palmer [1972] 3 All ER 744, at 747

[10] Re Polly Peck (No. 5), [1998] 2 B.C.L.C. 185.

[11] Swadling, “The Fiction of the Constructive Trust”, (2011) CLJ 399

[12] n.2, 906

[13] “The myth of common intention” 1996 LS 325 328

[14] [1991] 1 AC 107

[15] ibid, 133

[16] [2007] 2 A.C. 432

[17] Lees, “Geary v Rankine:…”, (2012) Conv. 412

[18] n.1 [16]

[19] Sloan, “Keeping up with the Jones case” (2015) LS, 226

[20] [2014] EWHC 727 (Fam)

[21] Briggs, “Co-ownership…” (2012) LQR 183 questioned the validity of this starting point because after severance parties will always be tenants in common in equity.

[22] n.16, [146]

[23] Bray, “The financial rights…” (2009) Fam. Law 1151, 1154

[24] n.1, [34]

[25] n.1, [63]

[26] n.16, [69]

[27] Abbott v Abbott [2007] UKPC 53 [19]

[28] [2007] EWCA Civ 1212

[29] n.20, 227

[30] n.1 [48]

[31] n.1, [77]

[32] [1970] AC 777

[33] n.2, 898

[34] Burns v Burns [1984] Ch. 317, 336. 

[35]“The Conspirators, the taxman…”, CBA Lecture (2008) [16]

[36] “Ambulation, severance…”, (2012) LQR 500, 502

[37] Yip, “The rules applying to unmarried cohabitants…”, (2012) Conv. 159, 165

[38] Garner and Davidson “The Supreme Court on family homes”, (2012) LQR, 178, 180.

[39] Farooq, “The erosion of property law principles…” (2008) T&T, 120, 125-126

[40] n.40, 181

[41] Piska “Constructive Trusts and…”, in: Dixon ed. Modern Studies in Property Law Volume 5, (Hart 2009), 224

[42] ibid.

[43] n.1, [34]

[44] n.1, [36]

[45] McGhee, “Shifting the scales…”, (2012) OUULJ 19, 28.

[46] [2010] EWHC 392 (Ch)

[47] n.29. [6] for  acquisition Baroness Hale permitted courts to impute intentions from the parties’ conduct.

[48] Hawthorne, “Acquiring a beneficial interest…” (2010) T&T, 859, 861

[49] n.1 [31].

[50] Jones v Kernott [2010] EWCA Civ 578, the Court of Appeal was unable to infer a change in common intention.

[51] Mee “Jones v Kernott…” (2012) Conv. 167, 178

[52] Pawlowski, “Imputing beneficial shares…” (2016) T&T 377

[53] Piska, “Intention, fairness…”, (2008) MLR 120, 128.

[54] ibid.

[55] n.54, 379

[56] Gardner and Davidson, “The future of Stack v Dowden” (2011) LQR 13, 15

[57] Ibid

[58] n.1 [16]

[59] “Jones v Kernott?...” (2012) TLI 96, 99

[60] ibid, 100

[61] “The Supreme Court on family homes”, (2012) LQR, 178

[62] n.21, 233

[63] “Editor’s Notebook:…” (2012) Conv. 83, 84

[64] [2011] EWHC 3570

[65] n.21, 246

[66] The Law of Trusts (OUP, 2016) 10th edn. 120-121

[67] [2014] EWCA Civ 1606

[68] n.21

[69] n.21, Sloan:246.

[70] [2012] EWCA Civ 555

[71] Modern Land Law (Routledge2014,) 9th edn., 182

[72] n.72, [19]

[73] n.17, 417

[74] Great Debates in Equity and Trusts, (Palgrave, 2014) 182

[75] n.21, 251

[76] n.17, 418

[77] n.21 244-5

[78] [2001] 2 FLR 970.

[79] [1995] 1 FLR 70

[80] n.21, 240

[81] Gardner, “Problems in family property”, (2013) CLJ 301, 307

[82] n.21, 244

[83] ibid.

[84] n.2, [84].

[85] n.21, 227

[86] Cloherty and Fox “Proving a trust…” (2007) CLJ 517, 519-520.

[87] ibid

[88] n.36

[89] n.25, 1156

[90] ibid.

[91] n.58, 17

[92] n.83, 304-305

[93] ibid

[94] n.83, 307

[95] Virgo, The Principles of Equity and Trusts (2016, OUP), 2nd edn 358

[96] n.83, 304.

[97] [2015] EWCA Civ 72

[98] “The ongoing evolution…” 2016 LQR 373, 377

[99] Garton, Moffat, Bean & Probert Moffat’s Trusts Law…, (2015, CUP), 6th edn 638

[100] Thomson v Humphrey [2009] EWHC 3576, [29]

[101] Miles, “Cohabitation:…”, (2013) CLJ 492, 493

[102] ibid, 494

[103] [2012] UKSC 29

[104] ibid, [33]

[105] n.83

[106] n.83, 302-303

[107] n.83, 306-7

[108] Newnham, “Common Intention Constructive Trusts…” (2013) Fam. Law, 718-719

[109] n.41, 122

[110] “Burns v Burns…” in Probert, Herring and Gilmore (eds.) Landmark Cases in Family Law (Hart, 2011)

[111] n.80.

[112] “Trusts in the family courts” (2013) T&T 322.

[113] [2012] EWCA Civ 1395 [63]

[114] n.39, 162-3

[115] Rose, “Crystals and Mud…” (1987) SLR 577

[116] O’Mahony, “The Politics of Lloyd’s Bank v Rosset” in Douglas, Hickey & Waring (eds.)  Landmark Cases in Property Law (Hart, 2015) 188-90

[117] n.110, 719

[118] ibid.

[119] “A woman’s place…”, [1987] Conv. 93, 101

[120] “Family law and…” in Hudson(ed.) New perspectives on property law (Cavendish, 2004) 44-5.

[121] “Sharing homes by…” FamPra.ch 2/2016

[122] n.122

[123] n.118, 179

[124] n.118, 183

[125] n.118, 187

[126] n.23

[127] Aspden v Elvy [2012] EWHC 1387 (Ch) 128

[128] “And the waters…”, (2012) Conv. 421, 428

[129] Trusts and Equitable Obligations (OUP, 2015) 6th edn 324.

[130] n.16 [63]

[131] n.21, 232-3

[132] Probert, “Cohabitation:…”, (2009) CLP 316, 336

[133] [2015] EWCA Civ 404

[134] n.100.

[135] n.138, [41]

[136] n.47.

[137] “Constructive Trust Claims…” (2016) 178 TELTJ 14

[138] n.127, [44-9]

[139] [2012] EWCA Civ 865

[140] ibid, [5]

[141] n.21, 240

[142] n.21, 246

[143] [2008] EWCA Civ 377

[144] Hayward “Family values in…” (2009) CFLQ 242, 254

[145] ibid, 250-1

[146] ibid, 252

[147] n.138 [48]

[148] Piska, “Two recent reflections…”, (2008) Conv. 441, 462

[149] [1966] 1 W.L.R. 1234                                                                                                                                

[150] Lee, “Fides et Ratio” http://ssrn.com/abstract=2609013, 1

[151] Paterson, “Lord Reid’s Unnoticed Legacy”, (1981) OJLS 375, 390

[152] Harding, “Equity and the rule of law” (2016) LQR, 278, 290

[153] Glister and Lee, Modern Equity, (Sweet & Maxwell, 2015) 20th edn., 305 mention that Baroness Hale continued with this strategy in Southern Pacific Mortgages Ltd. v Scott [2015] A.C. 385.

[154] n.155, 20-1

[155] ibid

[156] ibid.

[157] Burrows, “The relationship between…” (2012) LQR, 232, 258

[158] Paterson, Final Judgment (Hart, 2013), 265-266.

[159] n.30

[160] [2004] EWCA Civ 546

[161] ibid, [69]

[162] n.16, 465

[163] n.30, [24]

[164] [2013] EWCA Civ 382 [14]

[165] n.138, [61]

[166] n.131, [74]

[167] [1975] 1 WLR 1338

[168] [1986] Ch 638

[169] n.133, 268-269

[170] n.172, 1345

[171] n.173 654-655

[172] Riniker, “The fiction of Common Intention...”, (1998) Conv. 202, 208

[173] Lawson, “Detrimental reliance in…”, (1996) LS 218, 225-226

[174] Gardner, “A woman’s work…”, (1991) MLR 126, 127-8.

[175] Hayward, “Cohabitants, detriment…”, (2015) CFLQ 303, 314

[176] n.131 [71]

[177] n.183,

[178] Cowan, O’Mahony & Cobb, Great Debates in Land Law, (Palgrave, 2016) 2nd edn. 229

[179] Greer “Back to the Bad…” (2008) NLJ 174

[180] McCue, “Cohabitee Benfical Interests…” (2015) Fam Law 1079, 1082

[181] [2014] EWCA Civ 1347 [10]

[182] n.14, 132

[183] ibid, 131

[184] [1986] 1 WLR 808, 820

[185] Gray and Gray, Elements of Land Law (OUP, 2009), 5th edn. 894

[186] n.173, 324

[187] n.186, 233-4

[188] “Constructive trusts…” (2009) Conv. 104, 125

[189] Harpum, Wade and Dixon, The Law of Real Property, (Sweet and Maxwell, 2012) 8th edn., [11-026]

[190] n.138, [2] & [77]

[191] [2015] EWHC 1298 (Ch)

[192] ibid, [135]

[193] n.21, 228-9

[194] n.97, 348.

[195] Bennett, “Harvey v Beveridge:…?”, (2015) VUWLR 959, 963

[196] ibid,

[197] Wilson, Cohabitation Claims: Law… (Lime Legal Limited, 2015), 4.149

[198] Huws, Equity and Trusts (Pearson, 2014). 345

[199] n.88

[200] n.183, 316

[201] [2009] EWHC 3219 (Ch)

[202] [2009] EWHC 3576 (Ch)

[203] [2013] EWCA Civ 953

[204] n.21, 241

[205] n.212, [19]

[206] n.21, 241

[207] n.212, [63]

[208] n.101, 633

[209] ibid

[210] n.212 [60]

[211] Sales J having distinguished the facts from Prest v Petrodel Resources Ltd [2013] UKSC 34, was unwilling to pierce the corporate veil, as the company was set up for legitimate purposes. 

[212] “Cohabitants and Constructive Trusts”, (2015) PCB 105, 113.

[213] Gardner “Heresy or not?”, (2015) Conv. 332,

[214] n.22

[215] ibid, [52]

[216] ibid, [8]

[217] n.80

[218] [1995] 4 All E.R. 562

[219] “An holistic approach…” (2002) Conv. 273, 284

[220] Hudson, Equity and Trusts (Routledge, 2015) 8th edn.740-2

[221] Bernard v Josephs [1982] Ch 391, 402

[222] n.223

[223] n.22 [8.(vii)]

[224] n.223, 335-337

[225] n.223, 335

[226] n.1 [31]

[227] “Property”, (2014) Fam. Law, 1116

[228] "¡Viva el loro!" (2015) Fam. Law 41-42

[229] n.229, 336

[230] n.112, 187

[231] ibid, 189

[232] Leckey, “Cohabitants, Choice…”, http://ssrn.com/abstract=2695146, 19

[233] n.118, 198

[234] ibid

[235] n.21, 248-250

[236] McFarlane, Hopkins and Nield, Land law…, (OUP, 2015), 3rd edn., 552

[237] [2012] NICh 21

[238] Conway, “Constructive Trusts…”, 2013 Conv. 538, 542

[239] ibid, 544

[240] n.43, 205-9

[241] ibid,

[242] n.16 [106].

[243] n.16, [104-10]

[244] n.16 [141]

[245] n.38 [15-17]

[246] n.22 [8 (vii)]

[247] “Cohabitants, property and…”, (2009) MLR 24, 37-8

[248] n.118, 454-455

[249] n.38, [15]

[250] n.43, 226

[251] n.43, 225

[252] n.16 [127]

[253] Lee “Stack v Dowden…” (2008) LQR 209, 212

[254] Mee, The Property Rights of Cohabitees, (Hart, 1999), 178-180.

[255] n.16 [127]

[256] Halliwell, “Equity as injustice…” (1991) Anglo-Am L.Rev. 500, 518

[257] “Imputing a common intention…” (2015) TLI, 3.

[258] ibid, 5

[259] ibid, 13

[260] n.17, 420

[261] “Pettitt… and Gissing…” in Mitchell & Mitchell eds. Landmark Cases in Equity, (Hart, 2012), 621

[262] n.148, [37]

[263] Tatersall, “Imputing an intention”, (2008) Fam. Law 249, 250

[264] n.223, 339

[265] n.267, 14

[266] n.43, 220

[267] n.56, 127

[268] ibid

[269] n.56, 128

[270] n.43, 221-2

[271] n.56, 128

[272] n.43, 222

[273] ibid

[274] “Rethinking family property”, (1993) LQR, 263, 264-5

[275] ibid

[276] “All’s fair in…”, (2008) CSLR, 149, 155-156

[277] n.194, 909-11

[278] Lower “The Constructive Trust…”, (2011) Conv. 515, 519. 

[279] n.223, 337

[280] n.121, 99-102

[281] ibid

[282] Bogusz, “The relevance of “Intentions and wishes”…” (2014) Conv. 27, 38

[283] n.16 [144]

[284] n.292

[285] [2007] WTLR 1505

[286] “The remedial constructive trust” (2014) Queenstown, [17]

[287] n.1 [84]

[288] n.223, 336

[289] n.16 [20]

[290] “Pettitt… and Gissing…” in Mitchell & Mitchell eds. Landmark Cases in Equity, (Hart, 2012), 634

[291] n.186, 232.

[292] n.223, 335-336

[293] n.39, 163

[294] n.21, 234

[295] n.50, 860

[296] [2015] EWCA Civ 1056

[297] [2015] EWCA Civ 955

[298] n.307, [18]

[299] n.308 [20]

[300] n.307 [21]

[301] “Common intention constructive trusts…”, (2015) Conv. 233, 237.

[302] ibid, 238

[303] n.308 [21]

[304] Williams, “TOLATA 1996…”, (2016) FLJ 2.

[305] Tucker, le Poidevin & Brightwell, Lewin on Trusts, (Sweet and Maxwell, 2015), 19th edn. 9-072

[306] n.16, [113]

[307] n.286, 161

[308] n.308, [18]

[309] n.307 [29]

[310] n.312, 237

[311] “’Family property’…” (2012) CFLQ, 284

[312] n. 52 [55]

[313] AI v MKI [2015]

[314] n.223, 340.

[315] n. 312, 238-239

[316] UKSC 2015/0157