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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Southwell v Blackburn  EWCA Civ 1347 (16 October 2014)
Cite as:  HLR 47,  EWCA Civ 1347
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ON APPEAL FROM WORCESTER COUNTY COURT
His Honour Judge Pearce-Higgins QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
LADY JUSTICE MACUR
| David Roy Southwell
|- and -
|Catherine Marie Blackburn
(Transcript of the Handed Down Judgment of
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Cheryl Jones (instructed by Quality Solicitors Parkinson Wright) for the Respondent
Hearing date : 29 July 2014
Crown Copyright ©
Lord Justice Tomlinson :
"8. Firstly as [sic] the circumstances and manner in which the property was bought. The parties met in early 2000. At that stage the Claimant was aged 40 years. She married in 1987 and was recently divorced with two young daughters, then aged 11 and 12. She had limited resources having left the marriage with about £25,000, but had secured for herself a rented house in Manchester, from a housing association, on which she had spent between £15,000 and £20,000 fitting out and furnishing. She had a full time job as a teaching assistance. She received no help from her ex-husband. It would appear they lived on a tight budget. She and her ex-husband had owned a property so she was not unfamiliar with the process of buying a house and raising a mortgage. She looked on her house as long term secure accommodation for herself and her two children. In her situation she was potentially vulnerable.
9. The Defendant was then aged 41 and unmarried. His CV (prepared I think in 2007) at 4/133 sets out his experience. In 2000 he was a claims manager working and living in the Portsmouth area. He said that he had no thought of getting married having seen friends' marriages breaking up.
10. The parties' relationship proceeded slowly. It was not until 2002 that they set up home together. 6 Charlotte Bronte Drive Droitwich was purchased in the Defendant's sole name. Agreement to buy was reached in June 2002. It was financed by the Defendant as to in round terms) £100,000 mortgage and £140,000 equity from his previous house. There was dispute as to how Droitwich was decided on. In my judgment it was a joint decision. It suited her because she had a brother close by and it suited him for his new job. I reject his evidence that effectively he made the decision on his own and she accepted it. It is clear to me from the evidence of the Claimant, which I accept, and Ms Savigar and Katie Blackburn (whose evidence I also accept) that the Claimant was involved in looking for houses and making the decision to buy this one. Her approval before purchase was import – see the note at page 4/96. His letter at 4/26 dated 10/5/02 makes reference to going house hunting.
11. The Claimant's evidence is that it was always intended that they would purchase the house together and she would be an equal owner with the Defendant. The only reason she says that the documents do not reflect that is because she being in Manchester it was inconvenient for her to sign the necessary documents. He signed them on the understanding that the necessary transfer to them jointly would follow soon thereafter. The Defendant denied that. He says it was always intended to be in his sole name and he made no promises to her at all about joint ownership. He was unable to say what discussion there was before moving. From his evidence it would appeal that it was almost by accident they both arrived to take up residence at the property together.
12. There was a considerable disparity in their income and assets. The Defendant did not envisage marriage because in my judgment he was aware that as a wife the Claimant might have a substantial claim against him in the event of breakdown. He was prepared to provide a home to the Claimant and her two daughters, but it was to be on his terms. In his evidence to me he came across as a man of few words, by nature shrewd, cautious and guarded. No doubt these were valuable characteristics in his work, which he also carried over into his private life. The Claimant makes certain comments about his character particularly in paragraph 16 of her statement which she told me she wished to withdraw because they were not really relevant. I agree. I did [ ] however from my own impression that the Defendant was quite detached in his approached.
13. Looking at the evidence as a whole I conclude that it is most unlikely that the Defendant would have or did ma[k]e any clear promise to the Claimant that she would become an equal owner in the house with him or that he promised her that she would at some future date. It would have been against his interest to do so. And in my judgment he was fully aware of that which is why he made no such promise or agreement.
14. Both the parties may have been "in love" as they claim, believing that their relationship would have no end, but I do not believe that either of them was blind to the realities. I do accept that for both of them (the Claimant in particular) moving and setting up home together was a major step and they discussed it together. I am satisfied that the decision to purchase this house was made jointly with the intention that it would become their home where they would live together effectively as man and wife. The claimant knew that she played no part in the purchase, financially or on the documents. He made sure that she was kept away from any paperwork that might suggest she had an interest. With the benefit of hindsight I conclude that the Claimant now realises she was too trusting and foolish and she likes to think she would have been more cautious and more aware of the need for proper documents and clear promises and firm agreements.
15. At the same time I am quite sure that there was discussion about her move and the consequences for her. He did reassure her that she would always have a home and be secure in this one. In evidence he accepted that he agreed to provide her a home, but he says only for so long as the relationship lasted. At the same time he never thought that the relationship would not last. He told that that he thought he was providing her with a home for life, but now the relationship has ended he has no legal obligation to her at all. In cross examination he had to resile from his assertion in the last sentence of paragraph 3 of his pleading. My judgment is that he thought he was taking on a long term commitment to provide her with a secure home, and said so to her. He made such reassuring promises as were necessary to persuade her to move (and thereby give up her own independence and security), in the knowledge and intention that she would rely on them.
16. She was taking a big risk, moving from a secure rented house on which she had spent a lot of money, leaving her job and moving her children; and without trust in the Defendant and reassurances from him would not have moved as she did. The documents that she saw at the time (4/95 and 96, dated October 2001) which provided for her to receive a lump sum and pension in the event of the Defendant's death, suggest a real commitment from the Defendant and were intended to, and did, encourage and reassure the Claimant. I accept as she says that he talked of engagement, but he never took it further and for reasons I set out above I do not think he intended to pursue this. There were of course potential advantages for her if the relationship lasted) with the financial and other support the Defendant could give to her and her daughters. There were likewise the potential benefits to him of having in effect a wife, but without full legal responsibilities. The discussions they had were not specific as to ownership of the home they were moving into. They were specific as to the nature and extent of his commitment to her and the provision of secure accommodation for her. He promised her secure rights of occupation at the house that they were in effect buying together, although in his sole name. He led her to believe that she would have the sort of security that a wife would have, in terms of accommodation at the house, and income. And she relied on that. Without such promise and assurance she would not have given up her house and moved in with him.
17. The second area of dispute is as the nature of the relationship while it lasted. She soon secured full time employment. I do not have the figures but it seems clear to me that the relative disparity in income remained. I accept that she made a contribution to joint expenses and some accounts were in her name (4.154), but to a lesser extent than he did. He was able to pay the major share. I also accept her evidence that the relationship changed, but the reassurances continued see for instance the wills in 2008 at 3.102. In 2007 she began (and completed) a three year course to qualify as a Speech and Language therapist. Although she took out a loan and had family support, the support of the Defendant must have helped her considerably. It has increased her earning ability. She did support him in his work activities and generally, as she asserts."
". . . requires a . . . broad[er] approach which is directed at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to enquiring whether circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour."
It is plain that the promise must be of a right in relation to identified land, and that element is here satisfied. Further, we are I think bound by the decision of this court in Greaseley v Cooke  WLR 1306 to hold that a promise that a person may be allowed to stay in a house for as long as he/she wishes raises, or as I would prefer to put it, potentially raises, an equity in his/her favour – see per Lord Denning MR at page 1311. Lord Denning put the proposition in the way he did because of an argument about the onus of proof concerning detriment, which again does not here arise. Given that binding decision I do not think it necessary to attempt further juristic analysis of the proprietary interest promised.
". . . that it is most unlikely that the Defendant would have or did make any clear promise to the Claimant that she would become an equal owner in the house with him or that he promised her that she would at some future date. It would have been against his interest to do so. And in my judgment he was fully aware of that which is why he made no such promise or agreement."
I cannot accept this submission either. Just because the Appellant avoided any assurance as to equal ownership it does not follow that he could not have given an assurance as to security of rights of occupation in the house that they were in effect buying together, as the judge put it at paragraph 16. The two are not inconsistent.
"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 LJ in Jones v Watkins 26 November 1987. There must be 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."
"21. But none of this reasoning applied to equitable estoppel, because it does not look forward into the future and guess what might happen. It looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept."
It follows that detriment must here be assessed and evaluated over the course of the relationship.
"The promise made was not of a half share in the house, but it was of security. His promise has not been fulfilled. What has she lost? And how is it to be quantified? In my judgment it would be unconscionable for the Defendant to do anything other than to seek to put her back in much the same position as she was before she gave up her own house. In my judgment an award of money must seek to do that. In 2002 she gave up her own house, on which she had spent about £15,000 and she spent the remaining £4,000 - £5,000 she had as her contribution to the setting up of the new house with the Defendant. She also bought a car but still has a car, so that does not fall into account. I have no evidence of the current cost of setting herself up and leaving something over as it was in 2002. In my judgment the fairest approach is to take the 2002 figures and updated them for inflation. Allowing for inflation (Prof. Neg. Bar Association: Facts and Figures 2013.14 at page 165 gives the RPI multiplier for 2002 to date at 1.42) £20,000 now represents £28,400. Since we are dealing with approximations I shall call that £28,500. I note that that is about one quarter of her notional half share in the house. That figure should allow her to set herself up in much the same way as she was in 2002 before she moved in with the Defendant. That is the best I can do to quantify the measure of the prejudice to her by the Defendant's failure to honour his promise."
Then he went on:-
"I have in mind the benefits that she obtained during the course of the relationship. But the benefits flowed both ways. I do not think she needs give credit for them."
Lord Justice McFarlane :
Lady Justice Macur :