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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Churchill v Roach & Ors [2002] EWHC 3230 (Ch) (18 July 2002) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2002/3230.html Cite as: [2004] 2 FLR 989, [2004] 3 FCR 744, [2004] Fam Law 720, [2002] EWHC 3230 (Ch), [2003] WTLR 779

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IN THE BIRMINGHAM HIGH COURT
BIRMINGHAM DISTRICT REGISTRYY
CHANCERY DIVISION

		BM30078 Civil Justice Centre The Priory Courts 33 Bull Street Birmingham
		Thursday, 18th July 2002

JUDGE NORRIS: The parties will be anxious to know what the answer is, so I will give the answer first, and then explain my reasons for it.

The conclusion at which I have arrived is that Muriel Churchill shall be entitled to have Nos. 5 and 6 Ferry Lane on condition that she pays the estate the sum of £65,000.

I shall now give my reasons for that. Arnold Bursell ("Arnold") died suddenly on 15th April 2000, just short of his 72nd birthday. He left a wife, Marjorie, whom he had married in 1954 and from whom he had separated in 1987 and with whom he had entered into a separation agreement in May 1998. Marjorie was a Roman Catholic and as a Roman Catholic was opposed to divorce. Arnold respected her view. That is why a separation agreement was entered into. He also left two children, Nicola and Paul, both adult and embarked on their careers in life. This family lived in Scotland in and around Aberdeen. By a Scottish will dated 6th April 1979 Arnold had made provision for his family. Arnold also left Dr. Muriel Churchill, a professional colleague since 1989 and a social partner and lover since 1992. He had set up home with her in December 1998 at 5 and 6 Ferry Lane, Alveston. Of this relationship with Muriel Churchill the Scottish family knew nothing.

Muriel Churchill now advances two claims against Arnold's estate. In the first she seeks a declaration that the property, 5 and 6 Ferry Lane Alveston, is held by the estate upon trust for her absolutely. The basis of that claim is that she is the survivor of two joint tenants, herself and Arnold. Her claim is that in equity the property was held on a joint tenancy. In the second claim, which is brought under the Inheritance Provision for Family and Dependants Act 1975, she seeks as a supplementary or alternative claim that reasonable financial provision shall be made for her out of Arnold's estate.

The following are my findings of fact in relation to these claims. Arnold was an academic psychologist. Until some time in 1984 he taught at the University of Aberdeen. He established there an academic reputation for which he remained respected at his death. Between 1984 and 1986 he was the head of a mental health organisation in Glasgow. When he moved to Glasgow to take up that post he left his family in Aberdeen. It marks the beginning of the effective separation. Some time in 1986 or 1987 Arnold came down to Warwickshire. There he bought an ex-council house at 42 Shakespeare Avenue, Warwick. He continued a career both teaching and practising as a psychologist. The move to Warwickshire might in part have been prompted by a relationship with a woman named Alison which Arnold struck up whilst in Glasgow. This relationship ended and Alison married someone else, a matter which (according to Muriel Churchill) affected Arnold deeply.

In September 1989 Arnold was the head of Psychological Therapies for the South Birmingham Mental Health Trust and was working as an associate with a company called Human factors. Muriel Churchill took up employment with Human Factors and met Arnold. From then on they were work colleagues.

A friendship developed between Arnold and Muriel deepened by the death of Muriel's father. In January 1991 Muriel purchased her property at 7 Ferry Lane, Alveston for £66,500, funded with a mortgage in the sum of £60,000 from a local building society. The friendship between Arnold and Muriel blossomed, even though Arnold was then aged about 63 and Muriel 30 years his junior. It blossomed to such an extent that in December 1992 they became lovers and Muriel moved in to live with Arnold at Shakespeare Avenue. Arnold was not wholly committee to the relationship at that stage. There is one odd clue to this, and this is that in February 1993 Arnold renewed his passport. The person whom he asked to be notified in the event of an accident occurring to him was not Muriel, but his daughter Nicola. That degree of reservation was further exemplified when, in June 1993, Arnold asked Muriel to leave Shakespeare Avenue. This was not because of any difficulty in the relationship as such. The explanation that Arnold gave was that, if he lived with Muriel on a permanent basis seven days a week for more than six months, he thought that the law would consider Muriel to be his common law wife. He thought that that would entitle Muriel to an interest in his property. He felt that he was not ready for that degree of commitment. The result was that Muriel returned to 7 Ferry Lane, although she returned to Shakespeare Avenue to spend the weekends with Arnold.

During this period, that is from June 1993, the degree of contact between the two of them appears to have followed this pattern. For the core of the working week Muriel would work from 7 Ferry Lane and Arnold from Shakespeare Avenue. There would be occasions when Muriel would see clients at Shakespeare Avenue, but for the most part her visits there were of a social nature. She would come and stay the weekends, which may extend from Thursday through to Monday, or from Friday to Sunday, depending on the demands. For his part, Arnold would visit

7 Ferry Lane much less frequently, perhaps only once a month. Arnold kept all of his clothes and effects at Shakespeare Avenue. Muriel kept all of her clothes and effects at 7 Ferry Lane, except that she maintained a change of clothes for the weekends at Shakespeare Avenue. Visitors to Shakespeare Avenue, who used the spare room where Muriel kept her clothes, would not have been aware that she had clothes there. That is an indication of the quantity of clothing which she maintained at Shakespeare Avenue.

In the course of her evidence before the court, Muriel said that, between December 1992 and April 2003, if one took into account the periods that they lived together and took holidays together, she estimated that she spent approximately two-thirds of her time with Arnold. It is difficult to extract from that the true measure of the time spent together between June 1993 and December 1998, because from December 1992 until June 1993 and from December 1998 and April 2000 the parties were in fact living together. The impression, however, that I have from that evidence is that from June 1993 to December 1998 substantially less than two-thirds of their time was spent in one another's company, even including holidays.

Even after the separation in June 1993 the relationship between Arnold and Muriel continued to grow. There came a time in about 1996 where Arnold began to contemplate the possibility of spending more time with Muriel. This realisation may have dawned during a holiday that they spent together in Wales. But he appears to have taken the decision at that time that Muriel would occupy a more permanent place in his life than she hitherto had. Nonetheless, Arnold was still conscious of his responsibilities to his wife and to his family.

In December 1996 he sought financial advice about how he could provide for his wife and his children, including taking out a long term care policy to provide for his wife at the end of her days. In the material before me there is very little which provides a real insight into Arnold, his state of mind and his perspectives. I have to rely on clues such as his contacting a financial adviser in relation to such matters as I have outlined as providing me with some indicator as to Arnold's real concerns.

It was Muriel's evidence that, following this acceptance by Arnold that she may have a more permanent place in his life than hitherto, she began to spend more time in Warwick than at Alveston. Arnold was at this stage beginning to organise the legal separation of himself and Marjorie. In December 1997 he had plainly sought advice from a Scottish solicitor as to the consequences of severing his relationship with Marjorie. Included amongst the matters under consideration was the question of making a new will. The proposal was that, if Marjorie's and his affairs were separated out, then the will should effectively make provision by way of capital for the children. Arnold did not act on this advice. But it is typical of him, from what I can gather, that he should have been concerned both for his wife and for the long term stability of his children.

By January 1998 matters had moved on so far that Muriel and Arnold were prepared to contemplate buying a single property between them in order to live together. This additional development in their relationship may have been prompted by Arnold's 70th birthday. He had apparently hitherto been convinced that, like his father and his brother before him, he would die in his mid-60s. The approach of the 70th birthday made him realise that that was not to be and that he did indeed have a future. It was a future that he contemplated spending with Muriel, hence the proposal that he might sell up his own establishment, she might sell up hers, and they could establish a jointly funded joint home. Both of them placed their properties on the market. It is Muriel's evidence, which I accept, that when they were talking about buying a property together they had, in view of the age difference between them, contemplated that the property would be jointly owned with a right of survivorship.

Whilst the proposal to purchase a joint property was under consideration, Arnold continued in correspondence with his Scottish solicitor to think about the terms of a separation deed. By a letter dated 6th March 1998 he received advice from his solicitor that such a separation deed would normally provide that each party would discharge any claims that they might have on the other party's estate in the event of death. In particular under Scottish law a spouse has a right to claim legal rights in the other spouse's estate. It is common in separation agreements to discharge this right. The solicitor advice in these terms:

"What I think you would wish to ensure is that once the various transactions have been carried out, then your wife is not to come back and seek further sums either due in your lifetime or on your death".

On 6th May 1998 just such a separation agreement was entered into. It had been the subject of legal advice and had been the subject of detailed consideration by Arnold. Marjorie's solicitor gave evidence at the trial before me, but he described the negotiation in the engaging phrase as being "reasonable hard-headedness on both sides". He told me that the detailed negotiations had begun in late 1997 and had resulted in the deed that was before me. By that deed the matrimonial home of Arnold and Marjorie at the Elms, in Bieldside, in Aberdeen, was to be sold as soon as reasonably practicable and the proceeds of sale divided between them equally. Marjorie was to receive the whole of the furniture and plenishings in the matrimonial home and she was also to receive a monthly pension of £478.94, being one half of the pension then being paid to Arnold in respect of his university superannuation. Arnold gave up whatever interest he had in an antiques business in Aberdeen which was in fact conducted by Marjorie, and in so doing expressed the view that the transfer was on the understanding that Marjorie would transfer the property to his son Paul on her retirement from the business. The deed concluded in this way:

"In implementation of the foregoing, both parties renounce and discharge all and any rights they have or may have against the other or against the executors and assignees of the other, now and in all time coming to any capital sum, property transfer order or element for him or herself or periodical allowance of whatsoever nature, whether under common law or statute, either on divorce or death. Both parties hereby renounce and discharge for all time his or her legal right and also any prior rights and other rights of succession".

Thus was achieved a clean break between Arnold and Marjorie.

Arnold and Muriel had begun to look for properties together. Whilst they were doing so, Arnold made the suggestion that any property they bought should be big enough also to accommodate Arnold's sister Drusila. Attempts were made to find such a property. It was Muriel's case that, when it was proposed that she and Arnold should purchase a property together, that property should be held on a joint tenancy. It was her evidence that, when Arnold suggested that Drusila be involved and that all three should contribute to the purchase price and live in the property, she left Arnold to discuss with Drusila how such an arrangement might be achieved. But it is, in my judgment, unlikely that a joint tenancy would have been in contemplation were such an arrangement to have been entered.

The proposal to purchase a property together with Drusila foundered because Drusila was unwilling to contemplate living in the same sort of property that appealed to Arnold and to Muriel. But Arnold and Muriel never did buy a property together. What happened was that Arnold's property in Shakespeare Avenue, Warwick, sold before Muriel's property in

7 Ferry Lane. At the same time as Arnold's sale was going through, the property adjoining 7 Ferry Lane, a combined cottage known as 5 and 6 Ferry Lane came on the market. The proposal was that Arnold should purchase this. It was that plan which was put into action. Arnold purchased 5 and 6 Ferry Lane on 14th December 1998. It was a purchase which proceeded in his name alone.

Muriel in evidence said that before he purchased the property they had talked about joint tenancies and tenancies in common with the conveyancing solicitor, and she understood that with a joint tenancy, if anything happened to either of them, the property would automatically belong to the other. Notwithstanding this clear advice, which both Arnold and Muriel plainly understood, Arnold chose not to act on it. He chose to purchase the property with his own money, in his own name. In my judgment, he knew exactly what he was doing when he took that step. Muriel explained in these terms to me:

"I believe that Arnold arranged for 5 and 6 to be placed in his name because he still did not feel totally secure and was still mindful of the failed relationship with his wife, and a highly significant relationship which had failed while living in Glasgow".

I interpose to say that that is a reference to his relationship with Alison.

"He still did not believe that I would stick by him. When he bought in December 1998, I think his view was that it was his money, the money coming from the house in Warwick and the house in Scotland, and his choice".

I accept that frank evidence from Muriel.

The proposal to purchase adjoining properties was not simply that Arnold and Muriel should live as close neighbours. The proposal was that they should knock through the two properties and turn them into one, albeit held under separate titles. That is indeed what happened by the end of February 1999. Arnold and Muriel set up home together in the combined property. Their financial arrangements during this time appear to have been as follows.

First, they maintained separate finances, in the sense that each had his or her money in his or her accounts. There was a degree of lending by Arnold to Muriel. It was Muriel's evidence that when Arnold gave this money he did not expect repayment, although from time to time when he was short she would repay him. One such particular transaction was where Arnold lent Muriel £1,500 some time in the autumn of 1998 and then, finding himself short of money having purchased the property, Muriel on 6th January 1999 repaid that £1,500 to Arnold. In the course of her claim Muriel relied on this payment as a direct contribution to the purchase price of

5 and 6 Ferry Lane. But I hold that it was not. I find that it was the repayment of an earlier advance by Arnold to Muriel.

Secondly, there was a sharing of domestic expenditure. Muriel told me:

"Our day to day finances were managed between us, but Arnold paid the larger share. Most of the time I paid any expenses incurred by our business in what had been No.7. The mortgage premium on No.7 was still paid by me, but Arnold paid the utility bills which came to Nos. 5 and 6, effectively all of the expenses of our domestic life. Arnold also paid the Council Tax."

Thirdly, in relation to financial arrangements at this time, during this period Muriel was refocussing her business. She had previously been working as an associate with Coutts Consulting. Arnold encouraged her effectively to branch out on her own and to work directly for clients. This inevitably involved a drop in income and meant that Muriel was from time to time short of money. It was Arnold who made up the shortfall.

Fourthly, whilst I have clear evidence showing Muriel's income and its decline in 1999 to 2000 (that is from 31st March in each of those years) to a figure of about £21,000, I have no clear evidence of Arnold's income during this period, save this. It is apparent that he was in receipt of a monthly pension of something over £1,000, half of which went to Marjorie. But I do not believe that that was his sole source of income. He seems to me to have continued to carry on a measure of practice using the premises at No.7 and also to have been collecting income from work that he had done earlier, but never got round to billing for. I therefore accept Muriel's evidence that he paid the larger part of their domestic expenses, even though I cannot identify the precise source from which his income must have come.

Having briefly recounted what appear to have been the financial arrangements from 1999 onwards in the new household and briefly recounted that the properties were physically joined in 1999, I should then identify certain high points in the following 15 months.

In February 1999 it appears from material before me that Arnold was actively pursuing an application for a long term care bond to secure his future needs in the event that he needed to go into residential or nursing home accommodation. In my judgment, this underlines Muriel's point that he was not wholly secure in the relationship with her and not entirely sure that she was fully committed to him, though there is no doubt in my mind that she was. In my judgment, he was taking this step because he did not feel at that stage that he could rely on Muriel to look after him in sickness or if he became increasingly infirm. He needed a secure fall-back and, in my judgment, he needed to retain ownership of Nos. 5 and 6 against the possibility that it might be needed to fund his care. As the relationship with Muriel in Nos. 5 and 6 proved secure, so his confidence in it grew and so his need to look elsewhere for other support diminished. It became increasingly easy for him to contemplate that Muriel should have, or should have some interest in, Nos. 5 and 6 Ferry Lane.

There are indications that this was his view as early as March 1999 and it is a fact that, although the papers show that Arnold had had at least one medical examination in connection with his application for a long term care bond, the bond was never purchased. The correspondence with the providers began in February 1999 simply peters out.

Professor Remington, who gave evidence through an agreed witness statement, states for the court that on 19th March 1999 he visited Arnold at 5 and 6 Ferry Lane, that he saw the recently joined properties and inquired whether the joint property was worth more than the two individual units. He says he received the reply that, although it was probably worth less, Arnold took the view:

"That Muriel would be able to decide what to do with the property if anything happened to him".

There are clear dangers in treating social chit-chat of this sort as equivalent to a declaration concerning the legal consequences of the property ownership as it stood in March 1999 and I do not so treat it. Nonetheless, I do accept that by March 1999 Arnold was contemplating that Muriel might well have some say in what was to happen to the property on his death.

By May 1999 this seems to have been the subject of active discussion. The witness statement of Pauline Parsons, which was also agreed, tells of a supper that was held in May 1999 at Pauline Parson's property in Romsey, Hampshire. It is apparently a topic of conversation over supper in Romsey as to the nature of the distinction between a joint tenancy and a tenancy in common. Pauline Parsons says that there was a discussion over the kitchen table, and I quote:

"Muriel explained the difference between a joint tenancy which they were intending to establish between themselves and tenancy in common, which would be the situation between Muriel and her sister in respect of a flat in New Milton".

It is again dangerous to draw from social chit-chat the conclusion that parties are making irrevocable declarations in relation to their legal interests. I accept that this was the subject of conversation and that Muriel and Arnold were both aware of the difference between the two. But I note that Pauline Parsons speaks of Muriel talking of a joint tenancy which she and Arnold were intending to establish between themselves. I draw from that confirmation of my view that certainly so far as Arnold was concerned a joint tenancy was not then a fact, but was something that was to be created.

I also have the evidence of John Ashworth, a family friend of Arnold and Muriel, to the effect that in conversations with both of them they said, and I quote:

"They intended to change the deeds to legally reflect their plan to make one jointly owned property out of the two houses. My wife and I were the first people to be invited to a meal in the combined property on 5th June 1999".

I regard this as confirming that, so far as Arnold was concerned, in June 1999 there was on foot a proposal to create one jointly owned property out of what had hitherto been two individually owned units.

By August 1999 Arnold was certainly of the view that this was about to be achieved. In that month he spoke to Muriel's nephew Sean and reassured Sean about Muriel's position now that the properties were secure.

The following month Arnold went north to Aberdeen to explain his new living arrangements to his family. In view of the evidence given by his family, I doubt that Arnold in fact did so. He nonetheless returned to Muriel, expressing the view that both Nicola and Paul were provided for and that she was the person that he regarded as dependant upon him.

The subject of Muriel's claims and of the family's claims appears to have arisen in further conversations between September 1999 and April 2000. But Arnold in fact made no will making provision for Muriel and left unrevoked his Scottish will which left his entire estate to his wife and his children. What he did do was to begin to take active steps to merge the two titles.

On 6th December 1999 Muriel wrote to her building society explaining that it was her intention and that of

someone she described as "my partner, Mr. Arnold Bursell" to join Nos. 5 and 6 and No.7. The work had, of course, already been done, but the building society was not aware of it. Muriel therefore presented the position to the building society as if it were a plan rather than an achieved reality. In its response the building society indicated that, if that were to be done, then the society would need to take a charge over all three units, that is 5, 6 and 7 Ferry Lane, that the mortgage would need to be in joint names and that there would need to be a revaluation, the cost of which would be down to Muriel Churchill. They also required that planning permission be obtained from the local authority. Although the letter is from Muriel Churchill and although the response is addressed to her, I am in no doubt that it was done with Arnold's knowledge. That is because at the selfsame time as Muriel was writing to the building society, she and Arnold were writing to their insurers indicating that the properties had been joined together and requiring an insurance policy which reflected that fact. The insurance application is signed by both Arnold and Muriel and the letter to the brokers is written on behalf of each of them. It is also the fact that certainly by this stage the Council Tax payable on Nos. 5 and 6 on the one hand and No.7 on the other had been merged into a single chargeable unit.

It is also the case that in February 2000, in response to the building society's requirement, Arnold and Muriel together instructed a valuer to prepare a valuation of the joint property, 5 6 and 7 Ferry Lane. That valuer's valuation is in evidence before me, as also is his witness statement which says in paragraph 5:

"It was my clear understanding, both from Arnold Bursell and Muriel Churchill, that the intention was that the property should be held as one unit, with them being joint tenants of that whole unit".

That is finally supported by the application that was made on 16th March 2000 to the Stratford-upon-Avon District Council for planning permission relating to the two properties. Over a signature of both Arnold Bursell and Muriel Churchill is the following text:

"Since my purchase of 5 and 6 Ferry Lane, Dr. Muriel Churchill and I have worked together to bring about the amalgamation of the two properties. We now wish to take the legal step of combining the deeds of the two properties. For the purpose of this exercise, we have been asked to provide written permission with respect to the joining of the two properties. We should be much obliged if you would furnish us with the necessary letter indicating your agreement".

I am therefore in no doubt that immediately before his death Arnold intended to place the property into joint names, in all probability as joint tenants. His death on 15th April 2000 intervened.

A grant of probate was obtained to his estate on 25th October. The grant was in favour of the executors named in the Scottish will, Mr. Roach and Mr. Carstairs. By his will Arnold provided for the payment of his just debts, then for the payment "equally between my two children of the pecuniary legacy of £10,000", but with a provision that it should not be paid until they were 21, which they both had attained at his death. Then, "The remainder of my said means and estate to my wife, Marjorie Bursell" residing with me".

The composition of Arnold's estate at his death, which is the only material I have before me as to its present constitution, was as follows. There were shares to the value of just under £13,000. There were bank accounts to the value of just over £45,500. There was an insurance policy which had yielded just under £45,000. There was his house at 5 to 6 Ferry Lane, which was entered in the estate account in the sum of £185,000. His total estate was sworn for probate at £291,000. That is the basic value with which I must work in relation to the claims now brought by Muriel Churchill. The only modification is that there is before the court an agreed valuation of 5 and 6 Ferry Lane, of 7 Ferry Lane, and of the combined property. In place of the figure of £185,000 which appears in the IHT return, the agreed open market value as at the date of the trial for Nos. 5 and 6 Ferry Lane is £175,000. The agreed value for No. 7 is £120,000. The agreed value for the combined units is £245,000.

Arnold's death was sudden and undoubtedly devastating for Muriel. She has told me of the physical and other treatment that she has required since Arnold's death and of the impact that his death had upon her ability to earn. I have no doubt that it also caused her a degree of panic in relation to her future. When Arnold's family came down from Scotland following his death, I am told by Arnold's son Paul that a conversation took place during the course of which Muriel offered him £100,000 in return for 5 to 6 Ferry Lane, an offer that she repeated the following day. It was suggested in cross-examination that Paul may have been mistaken as to what was said to him, but that cross-examination left me with the clear view that Paul's recollection was accurate. Nonetheless, I simply regard Muriel's offer as a demonstration of the anxiety which she felt in relation to the situation in which she then found herself. I do not treat it, as I suspect I was being invited to treat it, as in some sense an offer to buy off the family.

I have equally no doubt that the family was completely devastated. I have a great deal of sympathy with Marjorie Bursell's statement in her evidence that she finds it profoundly distressing to read some of Muriel Churchill's evidence and in particularly what Mrs. Bursell regards as Muriel's careless and superficial assumptions about the nature of Arnold's relationships with his children and with Mrs. Bursell, and with the notion that, because Arnold and Muriel enjoyed a relationship in the last few years of his life, this overshadows all previous relationships including that with his wife and his children. She says, and I quote:

"Arnold and I were together for 38 years, sharing a multitude of experiences of which Dr. Churchill can have no inkling".

It ought also to be recorded that in her evidence to the court Arnold's daughter Nicola said this:

"My parents had an unusual marriage. I think that it has to be remember that, although they were separated, they were never actually divorced. My father had a sense of duty and love towards my mother in his own way and she of him. Shortly before his passing they were talking regularly and had in fact settled any minor difference they had in the past. Throughout their relationship they had always been supportive of each other, my mother with her hard work in the antique shop and my father with the security of his university and hospital posts".

Any judge must be conscious in reviewing a deceased's relationship with his family and with those with whom he lived that he sees only a partial picture and a picture painted from a particular perspective. I console myself with the thought that my task is now, not to do what is fair, but to do what is right and just according to the application of settled legal rules to the facts as I have found them.

The first legal rule which is invoked in Muriel's favour is that relating to constructive trusts. In her case to the court Muriel has argued that in January 1998 she and Arnold decided to purchase a single home for the two of them to live in together; that 5 and 6 Ferry Lane were purchased in 1998 in the deceased's own name; that, following that purchase the deceased and she carried out works to the property, and that the use of the property jointly with No. 7, and that the works to join 5 and 6 and 7 and combine them as one house

"were carried out in accordance with an agreement either express or to be inferred from their conduct between the deceased and the claimant prior to the purchase of the property by the deceased to the effect that the claimant and the deceased would so act after the completion of the purchase of the property".

It is said on that basis that there has arisen a constructive trust.

The relevant legal rule is conveniently stated in Lewin on Trusts and is the rule which I shall apply. In paragraph 9/50 Lewin summarises the law in this way:

"Where the purchaser of a property shares a common intention with the claimant that the claimant is to have a beneficial interest in the property, even though not a legal owner, and the claimant so acts to his detriment on the basis of the common intention, a trust is imposed so as to give effect to the common intention".

This legal rule focuses at least initially on the time of acquisition of the property. It requires there to be at the time of acquisition either an express or an implied agreement that the claimant shall have a beneficial interest in the property acquired.

In Grant v. Edwards [1986] Ch.638 at page 647 Nourse L.J. summarised, in what is now a familiar passage, the relevant rules to which Lewin has referred. Lord Justice Nourse said:

"In most of the cases the fundamental, and invariably the most difficult, question is to decide whether there was the necessary common intention, being something which can be inferred from the conduct of the parties, almost always from the expenditure incurred by them respectively. In this regard the court has to look for expenditure which is referable to the acquisition of the house. If it is found to have been incurred, such expenditure will perform the twofold function of establishing the common intention and showing that the claimant has acted upon it".

That common intention may be express and may be established by direct evidence. In my judgment, there is no direct evidence which establishes an express agreement that Nos. 5 and 6 should be held by Arnold as trustee for Muriel and Arnold as joint tenants. I have no doubt whatever that that was the plan to be put into effect in relation to any jointly purchased property that was jointly funded. That was not the actual purchase that proceeded. The actual purchase that proceeded was one in Arnold's own name, funded entirely by him.

I therefore have to turn to whether there is an implied agreement to be inferred from conduct. It is the claimant's case before the court that (and I quote from her statement of case):

"Whilst there were no express discussions or agreements between the parties before the property and No. 7 were joined as to the manner in which the legal estates of either property would be held after acquisition, a beneficial joint tenancy is consistent with the agreement and understanding of the intended use of the property and No. 7 as one joint home and is not contradicted by any evidence to support a beneficial tenancy in common of the proceeds of sale rather than a joint tenancy".

That is the case which the claimant seeks to make.

There is in relation to an implied agreement the danger of treating subsequent events as proof of an earlier agreement. It is, of course, one of the standard ways in which these common intention trusts are proved. But it is a tool to be used with care. This was a relationship which, in my judgment, was not settled and set, but was growing. The fact that later on Arnold agreed that the property should be treated as if it were jointly owned does not mean that that was his intention at the time when he acquired it. The fact that he allowed the two properties to be joined and the fact that he allowed Muriel to undertake certain relatively minor expenditure on the property does not in my judgment demonstrate that from the outset it had been agreed that the property would be jointly owned. Against any evidence of that sort has to be placed what I regard as the crucial evidence that, before he bought Nos. 5 and 6, Arnold knew precisely the consequences of joint ownership and joint tenancy, but deliberately chose not to do it, for the reasons which Muriel frankly set out and which I have accepted. He was not secure in the relationship. It remained for him an adventure. I therefore do not find that at the time of the acquisition of the property there was any common intention as to Muriel having a beneficial interest in it.

Of course, there can be cases where there is a later expression of intention or where a later agreement is to be inferred from the conduct of the parties. But a mere statement of intention in relation to the legal ownership will never of itself suffice. Proprietary interests are fixed. They are not fluid. Once the beneficial ownership of 5 and 6 was in Arnold, the only way that Muriel could acquire an interest was by the creation or conveyance of an interest in the property, and for that there are formal requirements set out in the Law of Property Act 1925. If there is to be any alteration in those initial beneficial interests, that alteration must be brought about by the operation of the conventional mechanisms of implied resulting or constructive trusts, that is to say acting to detriment in reliance on a common understanding. This is made clear in Lewin at paragraph 9/70, where the following passage occurs:

"Under the principle so far considered, conduct taking place after the purchase is relevant only in establishing the common intention at the time of the purchase or the requisite detriment. However, if the parties reach a fresh agreement after the time of the purchase varying the initial original beneficial shares and the claimant acts upon the fresh agreement to his detriment, effect will be given to that agreement".

On the evidence before me, the common intention that Muriel should have a beneficial interest in the property arises in or around May or June 1999. But there thereafter occur no acts on Muriel's part which would make it unconscionable not to give effect to that understanding as to beneficial interests. All of Muriel's acts which are relied on as constituting detriment appear to me on the evidence to have occurred before June 1999. What happens thereafter is an attempt by the parties to give legal effect to the intention that Muriel should have an interest in the property by merging the titles, but those acts are not of themselves in any sense detrimental. I therefore dismiss the claim in relation to constructive trusts.

The second way the case is put is based on proprietary estoppel. The case so pleaded is that Arnold acted and conducted himself so as to represent by implication to Muriel that Arnold treated the property as the joint home of himself and Muriel and as a property in which she had a proprietary interest. The acts relied on in support of that contention are the fact that earlier Arnold had given as a reason for Muriel to move out of Shakespeare Avenue that, if the parties lived together for six months she would acquire an interest in the property. But in fact they did live together for more than six months in 5 and 6 Ferry Lane, and in the course of that passage of time Muriel undertook various acts to her detriment identified as follows. First, having a door knocked through between 5 and 6 and 7. Secondly, entering into correspondence with the building society and with the Planning Department, with a view to the merging of titles. Thirdly, Arnold's arranging for the payment of Council Tax to be treated as payment on one unit, not two separate units. Fourthly, the claimant spent her own money and time in decorating the property and in working in the garden in 5 and 6. She also purchased all of the white goods for the home. Fifthly, she continued in a relationship which she regarded as committed on both sides. On that basis the claimant contents that she is entitled to remain in the property rent free for life or, alternatively, to have a share in the proceeds of sale of the property.

In her witness statement Muriel identifies the costs to her of the DIY work which she undertook as being £1,328. She identifies the cost of the work she did in the garden, in particular the creation of a pond, in the sum of £955. She says that she spent some £2,300 on furnishings and £2,100 on electrical equipment.

The starting point for a consideration on proprietary estoppel may conveniently be found in the statement of Robert Walker L.J. in Yaxley v. Gotts [2000] Ch.162 at 176 in these terms:

"At a high level of generality, there is much common ground between the doctrines of proprietary estoppel and the constructive trust, just as there is between proprietary estoppel and part performance. All are concerned with equity's intervention to provide relief against unconscionable conduct, whether as between neighbouring landowners or vendor and purchaser, or relatives who make informal arrangements for sharing a home, or a fiduciary and a beneficiary or client to whom he owes a fiduciary obligation".

He said in relation to the two concepts of constructive trust and proprietary estoppel:

"... Plainly there are large areas where the two concepts do not overlap; when a landowner stands by whilst his neighbour mistakenly builds on the former's land the situation is far removed (except for the element of unconscionable conduct) from that of a fiduciary who derives an improper advantage from the client. But in the area of a joint enterprise for the acquisition of land (which may be but is not necessarily, the matrimonial home) the two concepts coincide".

Whilst it is true that the two concepts do coincide in large part in relation to the acquisition of property, there do remain distinctions. The constructive trust is concerned to focus on the intention of the parties at the time of the acquisition of the property, and the appropriate relief to be granted is to give effect without qualification to the agreement which it is found existed. Proprietary estoppel, by contrast, focuses on the time at which the assurance or agreement is withdrawn and the relief is a much broader discretion to satisfy the equity, in particular to create the minimum figure to satisfy the equity. The nature of the detriment, which must be proven as part of the establishment of a proprietary estoppel, was considered by Robert Walker L.J. in Gillett v. Holt [2000]

2 All E.R.289 at page 308, where he said this:

"The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.

"There are some helpful observations about the requirement for detriment in the judgment of Slade L.J. in Jones v. Watkins. There must be a sufficient causal link between the assurance relied on and the detriment asserted. The issue of detriment must be judged at the moment when the person who has given the assurance seeks to go back on it. Whether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded - that is, again, the essential test of unconscionability. The detriment alleged must be pleaded and proved".

The assurance alleged is either that Muriel would from the outset be a joint tenant of Nos. 5 and 6, which was to be their joint home. Alternatively, that she would become entitled to an interest in the property once six months of cohabitation had elapsed. I do not find that any clear assurance was given to Muriel, at the time when Arnold alone bought No. 5 and 6 with his own money, that she would immediately have an interest in that property, or that she would do so if it was knocked together with No. 7. I do not find that any clear assurance was given to Muriel at the time when 5 and 6 was acquired by Arnold that, if she lived with him for six months, she would obtain an interest in the property. That may well have been her understanding based on what Arnold had said to her in 1993. But I am not on the evidence satisfied on the balance of probabilities that Arnold made that assurance to her or knew that she was relying on any such believed legal rule. In my judgment, when these two parties set up home together in December 1998, they were each concerned to try and build a stable and secure relationship, each hoping that it would ripen to the stage at which a merger of financial interests could take place. It was in that hope that Muriel undertook the work that she did in creating a pond at the property and in undertaking or underwriting some of the DIY work which had to be done in relation to the property, whether it was plumbing or rewiring or excavating a cellar. In my judgment, the time at which the interests in the property were thought to be held jointly and were so thought to be held on both sides did not arise until May or June 1999. In the ascertainment of proprietary interests, the death of Arnold is not logically relevant to whether interests have been created in equity, though it might well be relevant to whether and how any equitable interest could be satisfied.

I therefore ask: if Arnold had not died in April 2000, but the relationship had come to an end in some other way, would I have regarded it as unconscionable (on the basis that Muriel had allowed No. 7 to be knocked through by means of an easily reversible doorway being created and had spent limited time and money on 5 and 6) for Arnold to say that she did not have any proprietary interest in the property? I have to answer that question in the negative. I do not consider that this is a case of proprietary estoppel. The detriment is insufficient. The assurance has not been specifically pleaded or proved to my satisfaction.

Muriel, however, has a second limb to the claim and that relates to the 1975 Act and provision to be made under it. She puts this claim in two different ways. First, she says that she is a cohabitee with Arnold and is thereby entitled to claim under the amended Act. By section 1(1A) of the Act a person may make a claim against the estate of the deceased if:

"during the whole period of two years ending immediately before the date when the deceased died, the claimant was living -

(a) in the same household as the deceased; and

(b) as the husband or wife of the deceased".

The two year proviso begins in April 1998. I am in not the slightest doubt that from 14th December 1998 Arnold and Muriel lived together in the same household and lived together as husband and wife. The key issue under this head of claim is: what of the preceding seven months? In relation to that seven months, "were they living in the same household"? Were they, to the extent that it is a separate requirement, living "as husband and wife"?

This section has received consideration, so far as I am aware, only by Neuberger J. in Re Watson (Deceased) [1999]

1 F.L.R. 878 at 883 amongst the reported cases. In the course of his judgment, Neuberger J. held, when considering the question of whether the statutory test is satisfied as follows:

"... It seems to me that, when considering the question, the court should ask itself whether, in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife; but, when considering that question, one should not ignore the multifarious nature of marital relationships".

In that case he was concerned to consider the question whether the absence of sexual relations meant that two people living together were not thereby living as husband and wife. In the instant case I have no doubt that Arnold and Muriel did enjoy sexual relations. The question in this case, it seems to me, is whether they were living in the same household and living as husband and wife, whatever the state of their sexual relations. It is, of course, dangerous to try and define what "living in the same household" means. It seems to me to have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes, and to involve an element of community of resources. None of these factors of itself is sufficient, but each may provide an indicator. If I adopt that approach in relation to what was happening between Muriel and Arnold in the seven months preceding December 1998, I would reach the conclusion that they were essentially maintaining two separate households. I do not regard it as fatal that two separate properties were involved: Shakespeare Avenue and 7 Ferry Lane. It is perfectly possible to have one household and two properties. But what does seem to me to be the case is that there were two separate establishments with two separate domestic economies. There was, of course, a degree of sharing when the two met at weekends and some of those weekends were long. But that does not mean that they lived in one household. On that ground I reject the claim under this head, because the claimant cannot satisfy the two year requirement.

This brings me to the final limb of the claim and the one which, in my judgment, succeeds. Muriel claims also as a dependant, that is to say a person who immediately before the death of the deceased was being maintained, either wholly or partly (words I emphasise) by the deceased. The requirement of "maintenance" which is elaborated in section 1(3) of the Act is that the deceased should have been making a substantial contribution in money or monies worth towards the reasonable needs of the claimant, and should have been doing so otherwise than for full valuable consideration.

I have some sympathy with the view expressed by a witness on behalf of the family, who was a woman of 53 and a working single parent with two children. That witness said:

"From my understanding, Muriel Churchill feels herself to be in a parlous financial state, but my view is that I wish I had her financial problems".

It is true that Muriel Churchill is not now and never has been subject to serious financial pressures, but that is not the inquiry which this section requires the court to make.

As Mr. Campbell (who appears for Muriel) submitted to me, it is not a question of whether she could have survived without whatever support Arnold gave to her. The question is whether Arnold made a substantial contribution to that support. In my judgment, the essential inquiry is to look at the standard of living enjoyed by Muriel immediately before Arnold's death and to inquire as to the extent to which Arnold had contributed to that standard of living. In the pursuit of that inquiry there are certain landmarks to note. First, I am concerned with the position immediately before the death, a period which does not mean the days or weeks immediately preceding death, but looked at more broadly as the period leading up to death. Secondly, I am concerned to identify "maintenance". I was referred, as one might expect, to the familiar words of Browne-Wilkinson L.J. in Re Dennis (Deceased) [1981] 2 All E.R.140 at 145h where occur these familiar words:

"... The word 'maintenance' is not as wide as [meaning wellbeing or benefit of the applicant]. The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant to discharge the cost of his daily living at whatever standard of living is appropriate to him".

It is to be noted that in looking at the element of maintenance the court is concerned to see whether the applicant was wholly or partly maintained. I therefore ask: was there a substantial contribution by Arnold in money or monies worth to Muriel's maintenance in the period immediately before death? This third question must be answered unhesitatingly in the affirmative. Muriel was provided with accommodation in Nos. 5 and 6, which was the joint home. Cases from Harrington v. Gill onwards have identified the provision of accommodation as a significant contribution in money or monies worth to the maintenance of the claimant. She was also, in my judgment, provided with financial assistance. That financial assistance consisted partly in Arnold underwriting the larger share of the joint domestic bills and partly from Arnold making cash advances to Muriel to discharge her pressing needs.

I turn therefore to the fourth landmark: was that contribution otherwise than for full valuable consideration?

On this question I was directed to Bishop v. Plumley [1991]

1 W.L.R. 582 at 587 where the following passage occurs. Lady Justice Butler-Sloss said:

"... If the flow of benefits from the one to the other is broadly commensurate, full valuable consideration will be demonstrated; but if there is an obvious imbalance in favour of the applicant, he or she will have surmounted the first hurdle".

After citing a quotation from Griffiths L.J. in Jelly v. Iliffe [1981] 1 Fam. 128 Butler-Sloss L.J. continued:

"In determining whether or not the deceased was making a substantial contribution, one must look at the problem in the round, apply a common sense approach, avoid fine balancing computations involving the value of normal exchanges of support in the domestic sense".

If I avoid such fine balancing computations and look at the matter in the round, I am in no doubt that the flow of benefits was from Arnold to Muriel. It is true that she provided in return for accommodation and in return for financial assistance the business premises from which Arnold practised (his desk and papers being in No.7 and No.7 being treated as the consulting room available to Arnold and to Muriel). But that was more than counterbalanced by Arnold's direct contributions to Muriel's maintenance by way of accommodation and financial assistance.

The fifth landmark to note in the consideration of this head of claim is whether or not Arnold assumed any responsibility in making that provision for Muriel. Once again I have no doubt that he did so. As was pointed out by Griffiths L.J. in Jelly v. Iliffe at page 142:

"In practice, the evidence of the applicant will reveal the relationship with the deceased and if it also shows an arrangement subsisting at the time of death under which the deceased was making a substantial contribution in money or monies worth for the reasonable needs of the applicant, it will as a general rule be proper to draw the inference that the deceased has undertaken to maintain the applicant and thus has assumed responsibility for maintenance within the meaning of section 3(4)".

That is a precise description of the situation which obtains here. I am satisfied that immediately before his death Arnold was partly maintaining the claimant by the provision of accommodation, by the provision of financial assistance, and by the discharge of domestic bills which more than outweighed what Muriel was contributing in financial terms. The foundation for exercising the jurisdiction is, therefore, established.

The next question is: was the fact that no provision was made for Muriel reasonable in all the circumstances? I unhesitatingly answer that question in the negative. Muriel's and Arnold's lives were inextricably intertwined at the time when he died. By that stage he was wholly committed to the relationship, as was she. Their properties had been physically joined. They were in the course of attempting to merge the legal titles to the properties. There was at that stage a common understanding that on Arnold's death Muriel would be provided for. In those circumstances, the failure to make provision for the continued discharge in some way of the obligations for which Arnold had assumed responsibility is a failure to make reasonable provision.

I therefore turn to the final stage of the inquiry: what would be reasonable provision? The resources of the applicant are sufficient, though modest. Her income may be assumed to be of the order of £30,000-£35,000 when she is able to work as a psychologist full-time and without the debilitating effect of the continuation of this action. That has been her earnings from 1995 through to date for the periods when she was able to work full-time. The needs of the claimant are set out in her witness statement and show a total need of just under £28,000 for expenditure, none of which was challenged in cross-examination. In my judgment, her income is sufficient to meet her financial needs, but it is not sufficient to meet her need for housing. Given that for the 15 months preceding Arnold's death she and Arnold had lived together in a house which effectively had five bedrooms, two bathrooms, commodious reception rooms and a separate facility for carrying on a professional practice, it seems to me reasonable to describe the requirement to have similar accommodation as a "need" for these purposes.

I am directed by section 3 of the Act to consider also the resources of the beneficiaries. On this I have no material. So far as the window is concerned, I know that a separation agreement was entered into in May 1998 which effected a complete separation of their respective interests. That agreement had been toughly negotiated and I have no reason to think that it did not reflect a fair allocation of resources as they were then available. However, I do not regard it as completely excluding any need on the part of the widow. That division was undertaken on the assumption that Arnold needed to be housed and needed to be maintained. Thus the removal of Arnold's requirements does mean that a more generous view might be taken of what the widow can properly describe as her needs and I am prepared to take a broader view.

So far as the resources and needs of the children are concerned, the evidence before me is extremely scant. I take the view that, in the absence of them having put in specific evidence as to their needs and as to the resources available to them to satisfy those needs, I should not give great weight to that consideration.

With the size and nature of the estate I have already dealt. It derives wholly from Arnold's entitlement to the proportion of the matrimonial assets which came his way on the separation and from his own earnings and savings. Muriel contributed nothing to it.

So far as other matters are concerned, I pay particular regard to the following factors. First, it is legitimate in my view under this head to bring into play the undoubted intention of Arnold to make provision for Muriel. The fact that the doctrine of constructive trust and the doctrine of proprietary estoppel do not enable her to claim a proprietary interest does not mean that I must be blind to what Arnold's intentions were. The 1975 Act provides a vehicle which enables me to give some effect to those intentions. Secondly, I take into account that there was a complete separation of Arnold's and his wife's affairs. Thirdly, I take into account the fact that Arnold did acknowledge a responsibility to his children and always did so. It is true that he did not give effect to that by making a new will, but once again the fact that he did not make a will does not mean that I must be blind to what the evidence says was Arnold's view of his responsibilities.

This is a case where, in my view, the claimant ought to be given the right to live in Nos. 5 to 6 for the rest of her life, that interest terminable on marriage or on taking up permanent cohabitation. That would, in my judgment, be the natural order to make in the circumstances of this case. But it has four undesirable consequences. First, it means that there will be needed continued contact with a family to whom Muriel Churchill is a stranger and with whom relationships are strained, a contact which Arnold was studious to avoid in his lifetime. Secondly, the creation of such a long-running trust arrangement is costly. Thirdly, to create such an arrangement would leave the oddity of separate titles, but united occupation. That is both inconvenient in legal terms and practically difficult when trying to administer a trust of one part only of that conjoined property. Fourthly, to create a life interest of that sort would be to deprive Arnold's family of any real benefit from a substantial part of his estate. Muriel is only in her mid-40s. She has a long expectation of life. The widow has a much shorter expectation of life. Arnold's children are much of an age with Muriel. In these circumstances the principle which I have adopted is, first of all, to fix in my mind what would be the appropriate nature of the provision to be made for Muriel. I have then sought to put a value on the family's reversionary interest in Nos. 5 to 6. That reversionary interest is expectant on the life of a woman in her mid-40s, but with the contingency that the interest may be brought to an end earlier should she marry or permanently cohabit with somebody else. Nonetheless, it seems to me that her actuarial interest in the fund is substantial. Doing the best I can, I assess the family's interest in the fund as being £65,000, that is to say just over one-third of the entire capital value. I have assessed it at £65,000 rather than £60,000, which was my first inclination, because I propose that the property shall be transferred to Muriel, charged with the payment to the estate on or before 30th June 2003 of the sum of £65,000. The estimate of £65,000 includes an element of interest for the postponement of the estate's entitlement to 30th June 2003. My hope is that, with an order in that form, Muriel will be able to raise the sum charged on the interest transferred to her and pay it to the estate on 30th June, substituting for the charge in favour of the estate a mortgage in favour of a building society.

Since I have not had the opportunity to canvas this solution with Counsel, I will give permission to apply lest it appear that my proposal is not one which is practically workable for some reason which has escaped me. But, subject to that, that is the order I make and those are the reasons why I make it.

MR. CAMPBELL: I am much obliged. My Lord, I am very conscious of the time.

JUDGE NORRIS: I am sorry the judgment has taken so long; the arguments were very thorough.

MR. CAMPBELL: Very thorough indeed. It leaves the question of costs, but there was a payment in in June last year, a fixed sum in fact of £30,000 and I anticipate my learned friend will ask your Lordship for an order that that should be paid out to the executors.

JUDGE NORRIS: Yes.

MR. CAMPBELL: The proceedings, of course, were consolidated, as your Lordship knows, in July last year and they have been trundling along together since then.

JUDGE NORRIS: Yes.

MR. CAMPBELL: In effect the result of your Lordship's judgment is that my client has lost in the action, if I can put it that way, but prevailed in the 1975 Act claim.

JUDGE NORRIS: Yes.

MR. CAMPBELL: But, as your Lordship has seen, there is a considerable continuity of evidence in both of the matters, the witness statements were driven to address both and the proceedings have proceeded as one since that time last year.

I wonder whether the appropriate here would be for an order along these lines. I should, in my submission, have my costs of the 1975 Act claim out of the estate on the standard basis.

JUDGE NORRIS: Yes.

MR. CAMPBELL: And this might be a case where your Lordship would think it was appropriate only to give me a percentage of them, perhaps, say, four-fifths of the costs and leave the costs of the action to lie where they fall, bearing in mind the linkage between the two sets of proceedings. I bear in mind particularly in making that submission the point your Lordship made as to the intentions of Arnold which came out as part and parcel of the consideration of the claims for equitable relief. But there was a Part 36 offer from my client, but it is a relatively late one, on 3rd July. What it sought was a life interest, and there is a lengthy covering letter that goes with it. I am happy to pass it up to your Lordship, it will give you some idea of negotiations that took place along with my learned friend's instructing solicitors' response.

JUDGE NORRIS: I will just have a look at the Part 36 offer, because you did not get a life interest, but I will have a look at the terms in which it was offered. Yes, I see. How interesting, someone has been down the actuarial valuation route before.

MR. CAMPBELL: Indeed, my Lord, yes.

JUDGE NORRIS: Yes, I see. That gives some encouragement, my figure is not that far off, if one allows for the additional contingencies of re-marriage or co-habitation. Right. I do not think the Part 36 offer is going to affect me.

MR. CAMPBELL: No, my Lord. Thank you.

MR. McCONVILLE: My Lord, my only observation is that, of course, this is a difficult jurisdiction in which to make offers of settlement. In the early part of this case, actually the payment into court was made on 17th May 2000, which was very shortly after the proceedings were started, and at that time we were facing a claim, not only under the Act but a claim for the whole property to be transferred.

JUDGE NORRIS: So it is £30,000 you paid in.

MR. McCONVILLE: Yes. But as against that the claimant was claiming the whole property, which was £175,000. It was not until a month ago that the pleadings were amended to ask in the alternative for a right of occupation. The Part 36 offer came on 3rd July this year. I think your Lordship has to take into account some sort of reasonableness in attempts by the parties to settle the matter and what they were facing. I submit the fact the defendants have succeeded on quite a number of points that were in evidence and in issue ought to be reflected in the order for costs which your Lordship will make.

JUDGE NORRIS: Part 44 confers upon me a discretion as to the costs payable by one party to another and as to the amount of those costs. Part 44.3 directs me as to the considerations I must take into account. Amongst those considerations is the conduct of the parties, including whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and whether a claimant who has succeeded in his claim in whole or in part exaggerated his claim.

The claim in the instant case fell under two heads. First of all, there was the claim under the 1975 Act on which the claimant has succeeded. In relation to that there was a payment into court in the sum of £30,000, but the amount recovered by the claimant far exceeds that sum.

The claim in the action for a proprietary interest in the property was, until a very late amendment, a claim to the entirety of the property on the basis the claimant was a surviving joint tenant. But that is a claim which has wholly failed.

I see no point in ordering a detailed assessment of both the costs of the 1975 Act claim and the costs of the proprietary action and then some form of set-off between the two. That, in my view, is needless expense. Therefore, I shall take account of the claimant's substantial failure in the property action by reducing the amount of the recoverable costs under the 1975 Act. I shall order that the claimant shall have 75% of her costs of the 1975 Act claim, those costs to be the subject of a detailed assessment on the standard basis in default of agreement, and I shall make no order as to the costs of either party in relation to the property action.

I shall order the payment out of court to the defendant executors of the sum of £30,000 together with accrued interest.

Mr. Campbell, will you draw a minute of order?

MR. CAMPBELL: My Lord, yes.

JUDGE NORRIS: Mr. McConville?

MR. McCONVILLE: My Lord, I think it is incumbent on Counsel to mention the question of appeal, even if we have no instructions.

JUDGE NORRIS: Yes.

MR. McCONVILLE: My Lord, on the question of er -- I am sorry, I had something in mind ----

JUDGE NORRIS: Do not worry. The answer is no.

MR. McCONVILLE: Yes.

JUDGE NORRIS: I understand you have to ask, but I will refuse permission to appeal, and I will explain why.

The jurisdiction which I have to exercise under the 1975 Act is a discretionary one. I believe, unless you can identify something, that I have taken into account all proper factors in the exercise of that discretion. I do not consider, unless you can point to something, that I have omitted anything material; and, whilst I can see that there is a broad range of view where different people might reach different views, that will not be the question on appeal. It will be a question of whether I have improperly exercised my discretion.

MR. McCONVILLE: Yes. I was going to point out -- Yes, I have done my duty in making the application.

JUDGE NORRIS: Yes. That is perfectly all right, but I will refuse permission on the ground that I do not think there is a sufficient prospect of success since I have exercised a discretion.

MR. McCONVILLE: If your Lordship pleases.

MR. CAMPBELL: My Lord, I will prepare a minute of order. But there is one point which I think I ought to mention, which is the question of an order on the indemnity basis for the executor defendants. I am minded to think that should go in the order. It does not really concern me directly, but I am assuming my learned friend would want payment out of the estate.

MR. McCONVILLE: The executors are not separately represented here, my Lord. I do not ----

JUDGE NORRIS: They will presumably rely for the benefit of their indemnity on the fact that all the adult beneficiaries have joined with them in defending the claim. They do not need a special order, do they?

MR. McCONVILLE: No, my Lord. I very grateful.

MR. CAMPBELL: Thank you, my Lord, I am obliged.

JUDGE NORRIS: Thank you both very much for a thorough argument.

I will hand back your bundles. If there, on consideration, a problem with the order I have made, I have given permission to apply and you can do it in writing if you want to.

MR. CAMPBELL: Thank you, my Lord. I am obliged.

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