Mr Justice Henderson:
Introduction and background
- The basic issue on this appeal from a decision dated 22 July 2010 ("the Decision") of Mr Simon Brilliant, sitting as a Deputy Adjudicator to HM Land Registry, is whether a beneficial joint tenancy of a dwelling house at 173 North Street, Coventry, CV2 3FR ("the house") had been severed before the death on 20 March 2009 of the late Mr Edward Pilkington, who was one of the two joint tenants. Mr Pilkington was 82 years old when he died, and a patient of the Court of Protection. One of his daughters, Mrs Angela Quigley, had been appointed as his deputy shortly before his death, with wide powers over his property and affairs; she is also the executrix of his will dated 12 March 2003, by which he left his entire estate to his seven grandchildren in equal shares.
- Mr Pilkington's marriage had already ended when in about 1978 he began to live with Mrs Violet Masterson, a lady some 16 years his junior who had herself been previously married and had a family. Mr Pilkington was then aged 51, and Mrs Masterson 35. They never married each other, but continued living together until 2001 when the relationship broke down.
- The first property which they lived in together was a former Council flat, which was apparently purchased in Mrs Masterson's sole name because bankruptcy proceedings were then pending against Mr Pilkington. In 1991 or 1992 this property was sold and the net proceeds of sale, after discharge of an outstanding mortgage, were applied towards purchase of the house. It is common ground that the house was conveyed into their joint names, as joint tenants both at law and in equity. They were registered as the joint proprietors, under title number WK87078, on 24 August 1992. Consistently with their beneficial joint tenancy and the right of survivorship which it entailed, no restriction was entered on the register in the familiar form where a property is beneficially owned by tenants in common, that is to say a restriction preventing any disposition by a sole proprietor of the registered estate under which capital money arises unless authorised by an order of the court.
- Mr Pilkington and Mrs Masterson then lived at the house, together with Mrs Masterson's daughter Charlotte, until 2001 when (following the breakdown of the relationship) Mrs Masterson and Charlotte left to live elsewhere.
- In 2002 the parties instructed solicitors, and as one might expect (in view of the breakdown in the relationship, and the disparity in their ages) efforts were made by Mr Pilkington's solicitors (Hammon Oakley), acting on his instructions, to sever the joint tenancy. The efforts took the form of the service, or attempted service, of a written notice of severance pursuant to the proviso to section 36(2) of the Law of Property Act 1925 which states, so far as material, that "where a legal estate (not being settled land) is vested in joint tenants beneficially, and any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire …". The main steps taken were:
a) on 21 December 2002, the sending by post of a written notice of severance, dated 16 December 2002 and signed by Mr Pilkington ("the December notice"), to the solicitors whom Mrs Masterson had previously retained, Drew Jones; and
b) the preparation in February 2003 of a further notice of severance ("the February notice"), which it was intended to send under cover of a letter dated 12 February 2003 to Mrs Masterson at her place of work. Mrs Masterson was employed at the time by the University of Warwick as a cleaner, and the letter was addressed to her, with her name mis-spelt as "Mrs Masterton", at the appropriate address for "Accommodation Services" at the University.
- These efforts, however, were unsuccessful. So far as the December notice is concerned, it was accepted by the date of the hearing before the Deputy Adjudicator that Drew Jones were no longer acting for Mrs Masterson at the time when it was sent, and that they had no authority to accept the notice on her behalf. Nor was there any evidence that Mrs Masterson had ever in fact received the notice. With regard to the February notice, the Deputy Adjudicator heard oral evidence from Mrs Masterson, Charlotte, Mrs Quigley and the solicitor who then had conduct of the matter on Mr Pilkington's behalf, Mrs Tucker. In the light of this evidence, he was not satisfied that the February notice was ever posted to Mrs Masterson, and (even if it was) he held, obviously correctly in my respectful opinion, that her workplace as an employee of the University could not possibly be treated as her "last-known place of business" in the UK within the meaning of section 196(3) of the Law of Property Act 1925. He also accepted the clear evidence of Mrs Masterson that she had never received the February notice, and he considered and rejected the various points relied upon as suggesting that she had. He took a dim view of Mrs Tucker's knowledge of the law and procedure relating to the giving of a notice of severance, and of the level of efficiency in the offices of Hammon Oakley at the relevant time.
- There is no appeal against the Deputy Adjudicator's conclusions in relation to the February notice, and no attempt has been made to resurrect any argument based on the December notice. It follows that the appeal to this court has proceeded on the footing that neither notice was effective to achieve its purpose, and no valid notice of severance was given by Mr Pilkington to Mrs Masterson in 2002/3.
- Not long afterwards, Mr Pilkington's health began to deteriorate. By 2004, now aged 78, he had developed an incurable neurodegenerative dementia, and in the same year he also underwent surgery for bowel cancer. By 2008 his language was impaired by fluent dysphasia, and his state of health was such that he had to move from the house to a private residential care home. However, this deterioration in Mr Pilkington's health was accompanied by an improvement in his relationship with Mrs Masterson. The Deputy Adjudicator found that from late 2003 until Mr Pilkington had to leave the house in January 2008 he and Mrs Masterson appeared to have been on better terms, and she visited on a regular basis to care for him.
- As I understand it, there was no immediate need to sell the house in order to fund Mr Pilkington's care, because the local Council would meet the cost until the property could be sold; but in due course the Council would have to be repaid, and everybody proceeded on the footing that Mr Pilkington had a half share in the house (whether severable, or already severed) upon which the burden of the repayment would ultimately fall. As the Deputy Adjudicator records, Mr Pilkington was a retired steel contractor and a man of relatively modest means. Furthermore, the house was now empty, and there was no prospect of his ever returning to live there. It was therefore clear that the house would have to be sold, but achieving this was not going to be straightforward because of the deterioration in Mr Pilkington's mental capacity and the fact that he had unfortunately never granted an enduring power of attorney when he still had capacity to do so.
- On 20 March 2008 an assessment of Mr Pilkington's capacity was prepared by a consultant psychiatrist, Dr Karim Saad, on behalf of Mrs Quigley. Dr Saad found that Mr Pilkington had been suffering from moderately severe dementia since 2004, and that he was unable to manage his financial affairs or to make a lasting power of attorney. He was unable to tell Dr Saad the extent of his assets or property, and was markedly disorientated in time and place, with poor ability to retain or retrieve information.
- Armed with this assessment, Mrs Quigley made an application to the Court of Protection on 20 April 2008. In her application she asked the court to make a financial order, authorising her to apply her father's money for his benefit and to sell the house which he owned in equal shares with Mrs Masterson. In section 5 of the application form, headed "Other information", she said "It is intended to sell the house which is owned jointly with former partner, who also wishes to sell".
- I will need to trace some of the history of the Court of Protection proceedings later in this judgment, but for now it is enough to record that Mrs Quigley and Mrs Masterson were unable to agree who should be appointed as Mr Pilkington's deputy; that directions were given for resolution of the dispute; and that following a contested hearing on 3 February 2009 the court ordered that Mrs Masterson should have conduct of the sale of the house, subject to certain conditions, but that Mrs Quigley should be made the deputy for Mr Pilkington's property and affairs, with the exception of the sale of the house. A further more detailed order appointing Mrs Quigley as her father's deputy was then made on 13 March 2009, by the same district judge who had made the earlier orders. A week later, however, and before any action could be taken to sell the house, Mr Pilkington died on 20 March.
- The procedural history which led to the hearing before the Deputy Adjudicator is briefly as follows. In February 2003 Hammon Oakley persuaded the Land Registry to enter a restriction on the title of the house, on the footing that a valid notice of severance had been given. Following Mr Pilkington's death, Mrs Masterson was entitled to be registered as the sole legal proprietor of the house, because the legal estate had passed to her by survivorship; but she also applied to the Land Registry in August 2009 to have the restriction removed, on the ground that the beneficial joint tenancy had never been validly severed by either the December notice or the February notice. By an unfortunate mistake, the Land Registry then gave effect to this application, and removed the restriction, without giving notice of the application to Mrs Quigley. Hammon Oakley promptly complained on Mrs Quigley's behalf, the Land Registry accepted that a mistake had been made, and the cancelled restriction was reinstated. It then gave Mrs Quigley notice of Mrs Masterson's original application, and Hammon Oakley objected to it by a letter dated 24 Agusut 2009. The dispute was then referred to the Adjudicator under section 73(7) of the Land Registration Act 2002 on 21 October 2009. The hearing before the Deputy Adjudicator took place on 3 and 4 June 2010, when the parties were represented by the same counsel who have appeared on the appeal to this court, Mr Andrew Skelly for the applicant (Mrs Masterson) and Mr Robert Sheridan for the respondent (Mrs Quigley).
The Decision of the Deputy Adjudicator
- At the hearing below the argument for Mrs Quigley that the joint tenancy had been severed was put in two ways. The first argument was that severance had been effected by the giving of the February notice. As I have already explained, the Deputy Adjudicator rejected that argument on the facts, and there has been no appeal against his decision. The second argument relied on the mutual conduct of Mr Pilkington and Mrs Masterson, and the third method specified by Sir William Page Wood V.-C. in his classic statement of the ways in which a joint tenancy of personal estate could be severed before 1926, namely "by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common" (Williams v Hensman (1861) 1 J. & H. 546 at 557, a statement of the law which "is always treated as authoritative: see Megarry & Wade, The Law of Real Property, 7th edition (2008), p.505, footnote 150).
- In paragraph 40 of the Decision the Deputy Adjudicator referred to the discussion of severance by mutual conduct in Gray's Elements of Land Law, 5th edition, paragraphs 7.4.89 to 7.4.97, and continued in a passage which both sides were content to accept as accurate:
"Mutual conduct has been taken to comprise any conduct of the joint tenants which falls short of evidencing an express or implied agreement to sever but which nevertheless indicates an unambiguous common intention that the joint tenancy should be severed. What is required is a consensus between the joint tenants, disclosed by a pattern of dealings with the co-owned property, which effectively excludes the future operation of the right of survivorship."
- Counsel for Mrs Quigley argued that the necessary mutual conduct was established by:
a) proposals for settlement suggested by Mrs Masterson's solicitors, Drew Jones, in a letter dated 15 May 2002, and subsequent correspondence;
b) the improbability that a couple no longer in a relationship would wish to benefit each other when the first of them died; and
c) the common understanding in the Court of Protection proceedings that each party had a 50% interest in the house.
The Deputy Adjudicator did not consider either of the first two ways of putting the case to be arguable. He said it was well established that negotiations falling short of an agreement cannot constitute a severance; and although he did not expressly comment on the second argument, it is clear that a mere generalised probability of that nature could not of itself form part of a pattern of dealings with the house or indicate an unambiguous common intention in favour of severance. Again, there is no appeal against the decision of the Deputy Adjudicator on either of these points. The third way of putting the case, however, did in his view raise a serious issue, and he set out the relevant facts, as he found them, in paragraphs 44 to 64 of the Decision before stating his conclusions in paragraphs 65 to 68.
- I have incorporated the Deputy Adjudicator's findings of fact in paragraphs 44 to 47 of the Decision in the introductory section of this judgment. I now need to record the main stages in the Court of Protection proceedings after Mrs Quigley made her application on 20 April 2008:
1) In her acknowledgement of service, dated 11 May 2008, Mrs Masterson (acting in person) asked for permission to be joined as a party to the proceedings. She said that she and Mr Pilkington had lived together as man and wife for at least 23 years before their separation, and "We each own a 50% share in [the house]". She said that she opposed Mrs Quigley's application, on the ground that there were ongoing disagreements between them and she felt that Mrs Quigley would
"… not dispose of the joint assets in a fair and reasonable manner. Mrs Angela Quigley has previously threatened to make sure that I do not get my fair share of the property …"
Mrs Masterson went on to propose that a court-appointed third party should deal with the sale of the joint assets, and that she (Mrs Masterson) should be authorised to deal with the day to day business of placing the house on the market.
2) On 29 May 2008 Mrs Quigley served her deputy's declaration.
3) On 12 June 2008 the Court of Protection wrote to Hammon Oakley, asking whether Mrs Quigley accepted that Mrs Masterson owned 50% of the house. Hammon Oakley apparently replied in the affirmative.
4) By an order made on 19 August 2008, upon consideration of the documents and apparently without attendance of the parties, District Judge Keeley Bishop ordered that a panel deputy should be approached by the court to act as Mr Pilkington's deputy. Her reason for making this order was the ongoing conflict between Mrs Masterson and Mrs Quigley, which had led in the past to police involvement. In those circumstances the district judge considered that it would not be in Mr Pilkington's best interests for either of them to be appointed as his deputy.
5) On 19 September 2008 (not 19 August as stated in paragraph 52 of the Decision) Mrs Masterson filed a witness statement in which she repeated that she and Mr Pilkington had lived together as man and wife for at least 23 years before their separation, and again said "We each own a 50% share in [the house] …".
6) On 11 November 2008 Mrs Quigley made an application for reconsideration of the district judge's order of 19 August. She explained why she wished to be appointed as her father's deputy, and in a witness statement in support said:
"I acknowledge the rights Mrs Masterson has in the property and I do not have any dispute with her being entitled to a half share of the property …"
7) On 4 December 2008 Mrs Masterson served a further witness statement, in which she asked the court to uphold the ruling of the district judge and appoint a panel deputy.
8) On 5 January 2009 Mrs Masterson, still acting in person, made an application of her own in the following terms:
"I ask that the court grant me … permission to seek a valuation on [the house] and to instruct an estate agent to market the property in order to find a buyer. If permission is given and a buyer is found before the appeal is heard I also ask that the court give me permission to sell the property and sign all required paperwork …
… Given the current situation in the housing market the longer the house is left empty and is not available for sale the more the property is being devalued and as a result losing Mr Pilkington money that is required to pay for his long term care. Also the longer the house remains empty the more likely it is that the cost of maintaining the property will increase. Resulting in Mr Pilkington being responsible for 50% of all costs involved in any such maintain [sic] work …"
9) On 7 January 2009 the district judge made an order for directions, including directions for the service of documents and evidence and authority for each side to obtain an estate agent's valuation of the house. The matter was listed for an attended hearing on 3 February 2009, with a time estimate of two hours; the witness statements would stand as evidence in chief, but cross-examination would be permitted.
10) On 3 February 2009 the contested hearing took place and the district judge made the order to which I have already referred in paragraph 12 above. She varied her earlier order of 19 August 2008 by directing that Mrs Masterson should instruct a named firm of estate agents to conduct the sale of the property, subject to certain conditions about the price, but
"(b) Mrs Quigley shall be made deputy for the Mr E Pilkington property & Affairs (other than the sale of the property …)"
11) Finally, on 13 March 2009 a formal order was made, again by District Judge Keeley Bishop, appointing Mrs Quigley as her father's deputy in relation to his property and affairs, but with an express saving that pursuant to the order of 3 February her authority did not extend to the sale of the house. Paragraph 5 of the order dealt with the giving of security, and was in the following terms:
"(a) The deputy is required forthwith to obtain and maintain security in the sum of £40,000 in accordance with the standard requirements as to the giving of security.
(b) To enable the deputy to give security, this order becomes effective one calendar month from the date it was made.
(c) The deputy must not discharge any functions until the security is in place."
- As the Deputy Adjudicator records in paragraph 64, fate then intervened. There is no evidence that Mrs Quigley did anything in the week following her appointment. On 20 March 2009, Mr Pilkington died.
- Against this background, the Deputy Adjudicator stated his conclusions as follows:
"65. I have set out a number of acts of Mrs Quigley prior to her appointment as a deputy which indicated, in my view, that as far as Mrs Quigley was concerned the joint tenancy of the house was severed. These acts were communicated to Mrs Masterson. But at the relevant times not only did Mr Pilkington lack capacity, but Mrs Quigley had no authority in law to act on his behalf. I cannot see how any of these acts of Mrs Quigley can be attributed to Mr Pilkington when considering whether the co-owners had severed the joint tenancy by mutual conduct.
66. Equally, there is no evidence of any act by Mrs Quigley after she was clothed with authority prior to Mr Pilkington's death whereby she communicated to Mrs Masterson or anyone else an intention to sever the joint tenancy. I cannot find an unambiguous common intention demonstrated during that crucial week, when there was no communication from Mrs Quigley during that week. It was not suggested to me that on being appointed deputy the previous acts of Mrs Quigley, indicating that the joint tenancy was severed, were retrospectively ratified and clothed with authority.
67. I therefore find that there had been no severance of the joint tenancy by mutual conduct at the time of Mr Pilkington's death.
68. It was no part of Mrs Quigley's case that any court order had in itself effected a severance. This is understandable as no order had been made dealing with the distribution of any net proceeds of sale."
- The essence of the Deputy Adjudicator's reasoning was accordingly that no course of dealing or common intention in favour of severance could be spelt out from the Court of Protection proceedings, because Mr Pilkington himself lacked capacity and Mrs Quigley had no authority in law to speak or act on his behalf until her appointment as his deputy. She would then have had authority to decide on his behalf how the proceeds of sale of the house should be divided, and the Deputy Adjudicator had already found (in paragraph 63) that in those circumstances she would probably have agreed on an equal division of the net proceeds with Mrs Masterson, as she had already indicated she would do. But unfortunately Mr Pilkington's death intervened before this could happen, and Mrs Quigley's inactivity in the week between her appointment and his death could not by itself demonstrate the necessary common intention.
The issues on the appeal
- The Deputy Adjudicator granted Mrs Quigley permission to appeal limited to the issue of whether there had been severance of the joint tenancy by mutual conduct. In his written directions dated 15 October 2010 he said he had been unable to accept the argument "that the appointment of Mrs Quigley in itself converted what had been ineffective conduct into effective conduct", but he had found it "an interesting, novel and difficult point to decide" and was satisfied that it should be considered at a higher level.
- The argument which the Deputy Adjudicator had rejected is reflected in Mrs Quigley's grounds of appeal, and in Mr Sheridan's succinct skeleton argument in support. The point is put in various ways, but in essence the contention is that once Mrs Quigley had been appointed her father's deputy, her inactivity reinforced the parties' common assumption that the tenancy had already been severed, and far from there being any requirement for her to state an intention to sever the joint tenancy, it would have been necessary for her to state the contrary in order to negate the existence of a consensus in favour of severance.
- In his written directions the Deputy Adjudicator referred to a suggestion made by Mrs Masterson, in response to a request by him for her comments on the application for permission to appeal, to the effect that Mrs Quigley never became Mr Pilkington's deputy because he died before the order appointing her became effective. The Deputy Adjudicator observed that this argument had not been advanced at the hearing, and he also said that it was not correct because the order was plainly dated 13 March 2009. It is true that the argument was a new one, but the force of the point lies not in the date of the order itself but rather in the conditions relating to security in paragraph 5 (quoted in paragraph 17(11) above) which provided in terms that the order would become effective one calendar month from the date when it was made, and that the deputy must not discharge any functions until the security was in place.
- In February 2011 I had to deal with various paper applications concerning the appeal, and in my order dated 2 February I said that if Mrs Masterson wished to raise this point she would need to file a respondent's notice and apply for permission to argue it. I also said that the appeal bundle should in any event contain all the relevant material that was before the adjudicator, including the order of 13 March 2010, because the appeal court would plainly need to consider the implications for Mrs Quigley's argument of paragraph 5 of that order. In the light of these observations, it seems that a respondent's notice was issued, although it never found its way into the bundle, and in his skeleton argument for Mrs Masterson Mr Skelly sought permission to argue that Mrs Quigley was never effectively appointed as her father's deputy by the order of 13 March 2009, or by the earlier order of 3 February 2009. Mr Sheridan then filed a short supplemental skeleton argument which did not object to the point being raised but argued, for various reasons, that there was nothing in it. I therefore heard argument on the issue from both sides. I would observe, however, that the question does not need to be decided if Mrs Quigley's primary ground of appeal fails. If, on the assumption that she was validly appointed and able to act on her father's behalf, the necessary course of dealing cannot be found, there is then no need to go on to consider the correctness of the assumption.
- Finally, in the course of the hearing I raised with counsel the question whether Mrs Masterson's own application to the Court of Protection on 5 January 2009 could itself have been effectual to sever the joint tenancy, by analogy with the decision of Plowman J in In Re Draper's Conveyance  1 Ch. 486, where it was held that a severance had been effected by the service of a summons under section 17 of the Married Women's Property Act 1882 and an affidavit in support, asking for an order that the former matrimonial home be sold and the proceeds of sale distributed in accordance with the parties' respective interests therein. Since counsel had not come prepared to argue this point, and it only occurred to me when reading the papers on the eve of the hearing, I gave permission for written submissions on it to be lodged after the hearing had ended. This invitation was accepted by Mr Sheridan, who adopted the suggestion made by the court and argued that Mrs Masterson's application not only constituted a notice pursuant to section 36(2) of the Law of Property Act 1925 but also operated on her own share as a severance of the tenancy. Mr Skelly then responded, taking issue with Mr Sheridan's submissions.
The first issue: severance by conduct
- I have already indicated the essential nature of Mr Sheridan's argument in support of the appeal, which proceeds on the footing that Mrs Quigley was effectively appointed as her father's deputy by the orders of 13 March and/or 3 February 2009. In a little more detail, he submits that the reasoning of the Deputy Adjudicator was wrong in one key respect: he held that it was necessary for Mrs Quigley, when she became her father's deputy, to state an intention to sever the joint tenancy. In circumstances where she had already made it abundantly clear, before her appointment, that she regarded the tenancy as severed, and she accepted that Mrs Masterson was entitled to a half share in the house, there was no such requirement, says Mr Sheridan, and her silence after her appointment should be regarded as an adoption by her, on Mr Pilkington's behalf, of an unqualified intention to sever the tenancy.
- In support of this argument Mr Sheridan proffered two supposed analogies, drawn from the law of proprietary estoppel and the law of misrepresentation, where in certain circumstances silence or inaction on the part of a property owner or representor can be tantamount to a positive representation. He referred to the well established principle that a pre-contractual inducement which is true when made, but which ceases to be true to the knowledge of the representor before the contract is concluded, is treated as a misrepresentation unless the representor informs the representee of the change in circumstances: see With v O'Flanagan  Ch.575 (CA).
- Despite Mr Sheridan's best efforts, I have to say that I find this argument wholly unconvincing. The basic problem, as the Deputy Adjudicator rightly appreciated, is that before her appointment Mrs Quigley had no authority to act for, or speak on behalf of, her father. She was not the holder of an enduring power of attorney, and any authority which Mr Pilkington might have given her while he still had capacity to manage his affairs must have terminated when he lost that capacity. Thus there is no way in which Mrs Quigley's words or actions before her appointment can be attributed to her father. Nor is there any way, in my judgment, in which the mere fact of her appointment could without more have led to her previous words or actions now being treated as spoken or made on her father's behalf. Furthermore, it was her duty under the Mental Capacity Act 2005 to make decisions in her father's best interests (see section 1(5)), having regard to all the relevant circumstances and to the other factors set out in section 4 of the Act. In order to fulfil this statutory duty, it would have been necessary for Mrs Quigley to consider the whole matter afresh and to make a positive decision, probably with the benefit of legal advice from her solicitors, on how the proceeds of sale of the house should be dealt with. It may be that in the circumstances of the present case the answer would have been fairly obvious, but that cannot detract from the basic point that it was necessary for Mrs Quigley to consider the matter in her new capacity as her father's deputy. There can be no room for an automatic attribution to her in her new capacity of views which she had previously expressed in her personal capacity.
- In the course of his oral submissions Mr Sheridan was constrained to accept that the necessary course of conduct could not be presumed to exist from the moment Mrs Quigley was appointed, and that there had to be a period for her to reflect and consider the position before she could be taken to have adopted her previous views in her new capacity. But Mr Sheridan's acceptance of this proposition seems to me to show that his whole argument is unsustainable. What is the length of the requisite period, and how could one hope to identify a point at which mere silence and inactivity on her part could be transmuted into positive evidence that she had reached a considered decision in accordance with the requirements of the 2005 Act? The truth is that this is not an area where mere silence or inactivity can somehow be elevated into, or constitute evidence of, a course of conduct, and certainly not over a period as short as that between Mrs Quigley's appointment and her father's death. The Deputy Adjudicator was therefore correct to find that no unambiguous common intention to sever the joint tenancy had been demonstrated during the last week of Mr Pilkington's life. I would only add that, on the available evidence, the position must be the same even if Mrs Quigley's appointment is properly to be regarded as having taken effect from the date of the earlier order on 3 February 2009. There is still no evidence of any relevant conduct on the part of Mrs Quigley during the six and a half weeks between the date of that order and her father's death.
- For these reasons I consider that the Deputy Adjudicator came to the correct conclusion on this issue, and subject to consideration of the third issue below the appeal would have to be dismissed.
The second issue: when did Mrs Quigley's appointment as her father's deputy take effect?
- As I have already explained, it is unnecessary for the court to resolve this issue if the appeal on the first issue does not succeed. Since the point is a new one, which was not argued below, and since it is not clear to me that the court has all the material needed for its fair resolution, I prefer to leave it open.
The third issue: Mrs Masterson's application to the Court of Protection
- I have already quoted the relevant part of Mrs Masterson's application to the Court of Protection which was signed by her and dated 5 January 2009: see paragraph 17(8) above. It needs to be read in the context of the two earlier documents in the proceedings in which she had expressly accepted that she and Mr Pilkington each owned a 50% share in the house, namely her acknowledgement of service dated 11 May 2008 and her witness statement dated 19 September 2008. So read, the application in my opinion made it clear that Mrs Masterson was seeking authority to obtain a valuation of the house and place it on the market for sale, so that the proceeds could be equally divided between herself and Mr Pilkington, and his share could then be used to pay for his long term care. I agree with the Deputy Adjudicator's comment in paragraph 56 of the Decision that the application "is the clearest evidence that Mrs Masterson was treating the joint tenancy as severed, and expecting the net proceeds of sale to be divided up between the co-owners".
- In terms of its content, therefore, I see no reason why the application should not qualify as a notice of severance under section 36(2) of the Law of Property Act 1925. Read in the context of the proceedings, it gave unambiguous notice of Mrs Masterson's present desire to sever the joint tenancy. I do not agree with Mr Skelly's submission that the application related only to the future and did not necessarily entail a severance. In support of this submission he relied on Harris v Goddard  1WLR 1203 (CA) where it was held, distinguishing In Re Draper's Conveyance, loc.cit, that a mere request to the court in a divorce petition to exercise its jurisdiction to make a property adjustment order under section 24 of the Matrimonial Causes Act 1973 did not operate as a notice of severance: see in particular the judgment of Lawton LJ at 1209B-F. In the present case, by contrast, Mrs Masterson's acceptance that Mr Pilkington was entitled to a half share in the house would in my judgment have been reasonably understood by Mrs Quigley, or any other person upon whom the application was served, as present, unconditional and unambiguous.
- The next question is whether the notice can be treated as having been "given" to Mr Pilkington, that being the sole further requirement for its efficacy under section 36(2). It is important to remember at this point that the giving of a notice of severance is essentially a unilateral act, which does not depend in any way on the agreement of the recipient. As Lawton LJ said in Harris v Goddard at 1209B, "[w]hen a notice in writing of a desire to sever is served pursuant to section 36(2) it takes effect forthwith". It is also material to bear in mind the well established principle that "[t]he policy of the law as it stands today, having regard particularly to section 36(2), is to facilitate severance at the instance of either party": see Burgess v Rawnsley  Ch. 429 (CA) at 448B per Sir John Pennycuick, and compare Harris v Goddard at 1211B per Dillon LJ (with whose judgment Kerr LJ agreed at 1210C).
- I accept Mr Skelly's submission that Mrs Masterson's application was not served on Mr Pilkington (as I think in principle it could have been) in any of the ways permitted by section 196 of the Law of Property Act 1925. I also agree with him that it cannot be treated as having been served on Mr Pilkington when it was first served on, or otherwise came to the attention of, Mrs Quigley, because she did not at that stage have any authority to act on her father's behalf. But the position changed, in my view, when the court ordered on 3 February 2009 that Mrs Quigley should be made her father's deputy for his property and affairs. That decision was made after a contested hearing, and must have reflected a decision in principle by the court that Mrs Quigley should be her father's deputy, even if it was envisaged that a formal order appointing her to act as such would still need to be drawn up (as of course happened on 13 March 2009). In my judgment it is right to regard Mrs Quigley as having had sufficient authority to receive a notice of severance on her father's behalf from 3 February 2009 onwards, and since she plainly already knew about Mrs Masterson's application, and Mrs Masterson had taken no steps to withdraw or modify it, the notice can and should be treated as having been "given" to her at this point for the purposes of section 36(2). I am not deflected from this conclusion by the requirement for Mrs Quigley to obtain security in paragraph 5 of the order of 13 March 2009, and the fact that this requirement was still unsatisfied when her father died, because the giving of a notice under section 36(2) did not require her to do anything, or discharge any function, on her father's behalf. All that was necessary was that she should be a person who could properly be treated as the passive recipient of a unilateral notice given to her father. To allow this commonsense conclusion to be defeated by the technicalities of the requirements for security in the March order, which had an entirely different function and looked to her future conduct as her father's deputy, would in my opinion be contrary to the trend of the recent authorities and the policy that the court should lean in favour of severance when it properly can.
- Nor am I deterred by the express saving in both the February and the March orders for the conduct of the sale of the house, which was entrusted to Mrs Masterson. The mechanics of selling the house were an entirely different matter from the question of entitlement to the proceeds of sale, and I agree with the Deputy Adjudicator (paragraph 63 of the Decision) that her authority clearly extended to how the net proceeds of sale should be dealt with.
- It may perhaps be objected that there is no formal evidence of service of the application on Mrs Quigley having been effected, and no explicit finding by the Deputy Adjudicator to this effect. If it were strictly necessary to do so, the matter could I suppose be remitted to him to make further findings of fact on the point, if the parties were unable to reach agreement. But I do not think it is necessary to take that step. The only reasonable inference, it seems to me, is that the application must either have been formally served on Mrs Quigley, or at least come to her attention, well before the hearing on 3 February 2009. Directions had been given on 7 January 2009 for Mrs Quigley's solicitors to prepare and serve on Mrs Masterson an indexed and paginated bundle "of all documents filed", and Mrs Masterson herself had been ordered to serve all the evidence that she had filed at the Court of Protection, if she had not already done so. As I understand it, her application of 5 January 2009 was included in the bundle before the court at the hearing on 3 February, and the order made by the court on that date reflected the relief which she had sought in her application.
- Finally, and in any event, even if reliance cannot for any reason be placed on the application of 5 January 2009, I would if necessary be prepared to hold that Mrs Masterson's witness statement of 19 September 2008, including the statement that she and Mr Pilkington each owned a 50% share in the house, could itself be treated as a notice of severance under section 36(2); and there can be no doubt that this document was served on Mrs Quigley, because it plainly fell within paragraph 3 of the directions order of 7 January 2009.
- For these reasons, I have come to the conclusion that this appeal must succeed. The Deputy Adjudicator was in my view right to reach the conclusion which he did on the basis of the arguments advanced to him, but I am satisfied that there is an alternative route by which it may properly, and without any unfairness to Mrs Masterson, be held that severance of the joint tenancy was duly effected.