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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 >> Patrick v McKinley  EWCA Civ 2068 (08 December 2017)
Cite as:  EWCA Civ 2068
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ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HIS HONOUR JUDGE GERALD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVID RICHARDS
| JASON PATRICK
|- and -
William McCormick QC and Angus Gloag (instructed by Keystone Law) for the Respondent
Hearing dates: 21 and 22 June 2017
Crown Copyright ©
Lord Justice David Richards:
i) In May 2003, on a visit to the Cap d'Ail property, the Respondent was alleged to have said: "This is owned by Canterbury Properties Investments Limited. It's going to be ours soon. I'm pretty sure I'm going to get it in my divorce. Will you develop it with me when we get the company? We can either live here or rent it out for an income for us to live off when it's finished." The Appellant alleged that he agreed.
ii) On a holiday in Greece in June 2003, "it was cemented between them that they would develop properties together in order to secure a joint future for themselves and their children, and it was on this basis that the Claimant first believed that any work undertaken in this regard would be pursuant to his own beneficial interest in the properties that were to be developed".
iii) In September 2003, at Faylands, it was alleged that the Respondent had expressed her desire to start renovations on Faylands to develop a family home for the two of them but said she was nervous about taking the first step because she had never done anything like that before. The Appellant alleged that he picked up a hammer and removed the picture rails from the wall "proclaiming "there, now we have started", understanding that this would be the first step in commencing their joint property development enterprise".
"62. The first question, therefore, is whether or not on the basis of the circumstances which actually existed at the time the initial promises and assurances are said to have been made in 2003 and early 2004, there is any credible evidence that they were made. This is to be answered without the benefit of hindsight extrapolated from subsequent events in the parties' relationship. That said, subsequent events may shed light on whether or not those initial promises and assurances were in fact made: if the parties have at all times acted consistent with them, they will tend to support Mr Patrick's version of events.
63. The second question, it seems to me, is whether or not those initial promises and assurances, or ones tolerably similar to or consistent with them, were repeated during the currency of the parties' relationship. However, in this case, if Mr Patrick fails to establish that the initial promises and assurances were made it must follow that his claim fails because he is not to be believed about any subsequent repetition of them.
64. I say this because it is Mr Patrick's case that he was, virtually from the outset, to have a beneficial interest in the three properties as part of a joint property venture or partnership. It is not his case that the promises and assurances changed during the course of the relationship, although as a matter of logic it must be the case that 120 Carshalton Road was acquired as part of their joint business as it was not acquired until four or five years after the initial promises and assurances had allegedly been given.
65. Neither is it suggested that this is one of those cases where the common intention of the parties can be inferred from their conduct during the whole of the relationship. If there was no initial agreement, that is an end of it. For completeness, it should also be recorded that it is not Mr Patrick's case that Ms McKinley gave any promises and assurances about looking after him or his family in return for him working for her or such like. The case is based upon promises and assurances given relating to the beneficial ownership of the three properties."
"Mr Patrick was employed by Ms McKinley although they had started an intimate relationship. He did not believe, and had no reason to believe, that the work he had done during 2003 and was going to do and started doing would be anything other than under his contract of employment. Ms McKinley had made clear she did not want a committed relationship or marriage. She was a shrewd businesswoman who was in the midst of fighting hard for her and her children's due and had her own family to look after."
"113. There is nothing in the evidence relating to subsequent events which casts doubt upon these findings, much of which amounted to an attack on the integrity of Ms McKinley, asserting that it was she who had dishonestly manipulated Mr Patrick into making witness and other statements and claiming benefits in order to conceal the true nature of this business relationship and his interest in Faylands so as to protect it from the claims of others, particularly in respect of his bankruptcy.
114. If that were all true, it would indicate that Ms McKinley is a person who goes to extreme and dishonest measures [sic] to keep a tight grip on her own assets. If that were so, it militates against the kernel of Mr Patrick's evidence that within a few weeks or months of his being employed Ms McKinley so readily gave or agreed to give any interest in her properties to an essentially impecunious ill-qualified man to benefit him and also his children whom she barely knew.
115. Rather, the allegations regarding subsequent events serve to reinforce and confirm my findings, specifically, that at no material time did Ms McKinley give any promises and assurances that Mr Patrick would have any interest in any of her assets, or the three properties, and at no material time did Mr Patrick believe that he would have any interest in any way, shape or form in any of her assets, or the three properties, or that there was any form of business relationship or partnership with her or that he was, or is, entitled to anything more than what he has been paid and invoiced for."
The approach to appeals against findings of fact
"Held, allowing the appeal, that it was a long settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge's conclusions on primary facts unless it was satisfied that he was plainly wrong, that the reasons justifying that approach were not limited to witnesses' evidence, but also included the fact that trial judges possessed expertise in determining issues of fact, that duplication of the trial judge's efforts on appeal was undesirable and considerations of cost and delay; that each of the points which the Inner House considered undermined the pursuer's account had been expressly taken into account by the Lord Ordinary in reaching his conclusion as to the pursuer's credibility, which was an issue of primary importance and pre-eminently a matter for the Lord Ordinary; and that, having regard to all the circumstances, there was no proper basis for the Inner House's conclusion that the Lord Ordinary had gone plainly wrong, nor that a reconsideration of the evidence should lead to the opposite conclusion"
"It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion."
"It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
Grounds 3 and 4
"3. Concerning the parties' relationship, the judge:
3.1 significantly understated the true picture in his assessment that DM had probably "underestimated the amount of time JP spent at Faylands before it was sold as well as her feelings for him" (para 298);
3.2 wrongly failed to characterise this "underestimation" as DM being dishonest;
3.3 in wrongly failing to characterise this "underestimation" as DM being dishonest, failed to consider why it was that DM was choosing to lie about the parties' relationship;
3.4 wrongly accepted DM's characterisation of the relationship as on-off, and her assertion that she had other boyfriends in this time;
3.5 failed to properly consider the nature and extent of the parties' relationship in the critical period after the sale of Faylands, including failing to give due weight to the evidence of JP's mother concerning her conversations with DM at the time;
3.6 ignored or gave insufficient weight to swathes of evidence which frequently contradicted the evidence that DM gave about the relationship.
4. In relation to the question of the parties' cohabitation, the judge was wrong:
4.1 in not finding that the parties lived together at Faylands;
4.2 in not finding that the parties lived together at Cavaye Place;
4.3 in not finding that the parties lived together with their families in Hasker St and that it was purchased for this purpose;
4.4 in not finding that the parties were planning to live as a family in Queens Gate Lodge."
i) The Appellant's children came to stay with him at Fayland at weekends from soon after he started working and living there in March 2003.
ii) The Appellant spent most of his time at Faylands between March 2003 and November 2008.
iii) The parties, and in some cases all or some of their children, went on foreign trips and holidays together: the South of France for four days in May 2003; Greece for two weeks in June 2003; a month at the Appellant's house in Ireland in August-September 2003; Finland in December 2003; Brazil for three weeks in February 2004. The parties also went with the Respondent's daughter and her husband to stay at a friend's house in Antigua.
iv) The Respondent sent a Christmas card to the Appellant, in which she wrote: "Jason, on our first Christmas of many spent together. All my love to you. Dafs xxx".
v) The Respondent provided support to the Appellant in the proceedings under the Children Act relating to his children. In a witness statement made on 4 February 2004, she said: "My intentions towards the children are simply to continue to give them a happy, safe and secure family, to come to visit with their father. To care for them the same as my own children, and to be their friend." In a witness statement made by the Appellant in those proceedings on 23 March 2004, he said that his children enjoyed "staying overnight with Daphne and me".
vi) Dr Anwar Shea, a consultant psychologist and psychotherapist, provided a witness statement for the Appellant, on which he was not cross-examined, stating that both parties were patients of his for the majority of 2004 and that the treatment sessions were held at Faylands. It was his impression that Faylands was their family home. The Respondent referred to the Appellant as her "partner" or "boyfriend" and he concluded that they were living together as a family unit.
vii) In July 2004 (some considerable time after the last of the alleged promises or assurances had been given in early 2004), the Appellant bought the Respondent a ring for £470.
viii) In a witness statement made by the Respondent in the Children Act proceedings on 16 July 2004, the Respondent said: "I am currently domiciled in Monaco although I spend a lot of my time staying in this country at my property in Henley-on-Thames [Faylands]. Jason lives with me in this property and as such contact with his children often takes place at our home".
"She made it clear at the outset, and has always made it clear, that she was not interested in any sort of committed relationship or ever getting married again. Theirs was a relationship of employer-employee who became good friends and companions with the occasional intimacy, or sex. She took Mr Patrick on many trips and holidays within Europe and further afield, variously describing him as an employee, a companion, a friend and sometimes to provide security because she was a single, wealthy high profile woman travelling alone and sometimes to countries where it is not safe for a woman to travel alone, such as Brazil."
i) Emails to the Appellant from the Respondent which she signed as, for example, "Daphs xx".
ii) The evidence of telephone calls made almost every day by the Respondent to the Appellant while the former was in New York in December 2008.
iii) The evidence of the Appellant's mother, Mrs Powdrill. His daughters lived with Mr and Mrs Powdrill in Yorkshire for about three years from 2005. In October 2008, the Appellant was proposing to move them to London. Mrs Powdrill was looking for reassurance as to their living arrangements once in London and spoke to the Respondent, who told her that she and the Appellant were looking for a family home where they could all live together and that they were committed to each other.
iv) The parties continued to go on holiday together, sometimes on their own and sometimes with some or all of their children.
v) The Appellant took a lease of a house in Hasker Street, London SW3 as a home for the parties and their families, after she and the Respondent had viewed several properties. The tenancy agreement provided that it would be occupied by the Respondent, the Appellant and their immediate family. The Respondent's PA emailed both parties on several occasions about the arrangements for moving from Cavaye Place to Hasker Street. The PA gave evidence for the Appellant that Hasker Street was rented as a bigger property while they looked for a property to buy. The Respondent's pleaded case that she rented Hasker Street and that the Appellant and his daughters stayed there "because the [Respondent's] son Sean had been threatened by a stalker and the Claimant was employed as security to remain with him during this period" was clearly untrue.
vi) On 2 November 2009, the Respondent made a statement to the police in connection with a harassment complaint made by her against a third party, in which she described the Appellant as "my partner" and stating that "[w]e have been together for six years and sometimes we work on the same projects".
vii) Particular emphasis was laid on two text messages from the Respondent to the Appellant, concerning the Respondent's purchase of a property at Queens Gate Lodge in early 2010. In the first, dated 16 February 2010, the Respondent wrote: "In amongst all this I forgot to tell you I exchanged this morning on the lodge. Maybe we finally have a home where we can put our heads down and have a life after 10 years to the day since I filed for divorce". It was the Appellant's case that "we" in that text referred to the Appellant and Respondent. In the second, dated 31 March 2010, the Respondent wrote: "Completed on the lodge we'll soon have a home and it will be better than Elvaston I promise Happy days! X"
viii) Affectionate emails were exchanged in August 2010.
ix) The Appellant spent significant periods at the Cap d'Ail property from January to November 2009.
"I readily acknowledge that I did have a relationship with Mr Patrick. He is several years younger than me. He was, intermittently, my boyfriend. The relationship did not begin in early March 2003 as he suggests in paragraph 10 of his affidavit. It began in late 2003 or early 2004. The relationship, which can properly be characterised as "on/off", lasted until November 2008. So far as I am concerned, that was when it ended and that end coincided with the sale in November 2008 of the property known as Faylands. Thereafter I did for a while continue to associate with Mr Patrick by giving him work when I could (he seemed unable himself to find a job) and I would meet him socially for the odd meal or drink. The relationship was however over for me by November 2008. As to my own feelings concerning the relationship, at no time was I willing fully to commit myself. I became involved with him when I was at a particularly low ebb on account of the acrimonious divorce proceedings. I made plain to Mr Patrick time and time again that I would never live with him, marry him, or give him my commitment. He never accepted this and the disparity in our respective feelings was the cause of much friction between us."
"247. It is therefore likely that Ms McKinley downplayed, or understated, certain aspects of the intimate relationship during the course of these proceedings and in the witness box as well as the amount of time which Mr Patrick spent time at Faylands after he had rebased himself up in Driffield. The amount of gifts and helicopter flying lessons and foreign trips and so on which she paid for are of such a level as to be consistent with an at times strong albeit "on/off" relationship of "boyfriend/girlfriend". She also showed a very great interest in the girls' education and welfare, visiting their schools, Miss Robinson occasionally looked after the girls and so on.
248. However, none of that, in my judgment, is inconsistent with the findings I have made. Ms McKinley had made it clear at the outset that she was not interested in a committed relationship, and there was no question of any sort of joint business venture or partnership. Her downplaying of certain aspects of the relationship is in my judgment more consistent with a woman who has been abused and now, in the cold light of day and over the years having ignored the advice of her friends such as Miss Gadoni and Miss Hastings, feels shame and remorse for maintaining the relationship for as long as she did, and making excuses for Mr Patrick in the way in which she did to her friends and also to herself rather than someone who is seeking to cover up the true nature of the relationship and mislead the court."
"Read in context, Ms McKinley's explanation that Queen's Gate Lodge was to provide a London home for herself and her children, she having realised when getting divorced that she would have to sell Faylands, which would provide a better "showcase" than 5 Elvaston Mews for her company's work is plausible. She was communicating to a friend and employee, sharing her excitement at the next stage of her and her company's development projects. The reference to ten years could not have been to Mr Patrick because they had only known each other for seven years."
"The judge was not entitled, given the way the case was put to him, and the evidence he heard, to assert as he did during submissions that DM stayed with JP because JP was violent to her, and to state as he did at paragraph 296 of his judgment that there were "further bouts of violence from Mr Patrick", and at paragraph 284, that DM "was in an abusive relationship" with JP."
"Recognising that this evidence contradicted what he is now saying, Mr Patrick stated, after the usual perjury warning had been administered, that he had lied in two respects. First, he was not in fact an employee because he had ceased being an employee within a few weeks or months of being first employed. He had lied because his solicitors had advised him that it would look better to the court if he was in employment. Ms McKinley was complicit in these lies because she had said the same in her witness statements. Secondly, he had not moved back to his parents but remained firmly in Faylands. In that regard, his mother confirmed that her son did not move to live with her up in Driffield not least because the house was too small to accommodate all and when he did visit he did not, or virtually never, stayed with her"
"To deal with this most damaging evidence Mr Patrick said that the Declaration was all made up and was not his document and that Mrs Casey had lied as he was not working for Ms McKinley at all, he being her business partner. Miss Robinson, he said, would not have known anything about it:
"I was not receiving wages. I only received what looked like wages. Then they stopped."
He was, he said, not entitled to claim benefits at all. It was all Ms McKinley's idea, to make it appear that he was on a very low wage and entitled to benefits and also so that he could demonstrate to the Official Receiver that he was not able to pay off his debts to his lawyers Dawsons who had bankrupted him"
"151 None of this was put to Mrs Casey in cross-examination. Mrs Casey and Miss Robinson were emphatic that he was paid wages, and had never been given any impression that he was Ms McKinley's business partner. Indeed, it was their unchallenged evidence that it was Ms McKinley's clear instructions that Mr Patrick was not allowed in the estates office at Faylands, and he did not even have his own desk there – somewhat odd if they were a "husband and wife" business team.
152 Mrs Casey, as I have said, I found to be an honest and straightforward witness. She attested to how she had prepared a schedule made from the cheque stubs detailing the payments made to and on Mr Patrick's behalf which is exhibited to Ms McKinley's evidence. She specifically recalled remembering Mr Patrick telling her that he was looking into claiming child benefit and, when told what the minimum wage was, required that his wages be recorded at the approximate level and that it was he who told her what his home address was for the Declaration. Although requested by Mr Patrick, she was instructed by Ms McKinley to prepare the Declaration as Mr Patrick had requested because she was her boss. I also found Miss Robinson to be an honest and straightforward witness.
153 I am unable to accept Mr Patrick's evidence. This provides an illustration of Mr Patrick coming up with a dishonest scheme – fraudulently claiming benefits – which he then inveigles Ms McKinley into by getting her to instruct Mrs Casey to inaccurately complete the Declaration. It was not, however, the other way around. Whilst Ms McKinley should not, acting honestly, have complied with Mr Patrick's request it is Mr Patrick who was primarily at fault."
"102 Mr Patrick would have told his mother Marilyn about it, to whom he was according to her very close especially as she said she had met Ms McKinley just after Easter 2004. He did not tell her. But he did try to recruit her to his cause. I say this because on Friday 2nd May 2014 I warned Mr Patrick in the clearest of terms not to talk to anyone about the evidence he was giving over the bank holiday weekend. When she gave evidence the following week, Mrs Powdrill said that she had been phoned by her son over the weekend and asked whether she remembered them being engaged, whether she recalled the Claddagh ring being described as an engagement ring. She could not.
103. By so doing Mr Patrick demonstrated that he well-understood the significance of his evidence the previous week, and that there was nothing "holistic" about what he had said. When recalled into the witness box, Mr Patrick was unable to give a straight answer as to why he had disobeyed my warning, saying that it had been an accident or such like. This I cannot accept. The purpose of telephoning his mother was to forewarn her of a likely line of cross-examination in the hope that she would be prepared to back him up. Mr Patrick realising that he had gotten himself into a serious problem having been caught "red handed" exaggerating and making up his evidence on the hoof. I regard this as a very serious matter which cannot just be shrugged off. It was a blatant attempt to interfere with and influence the evidence to be adduced to court in support of his case. The fact that it was unsuccessful does not alter the gravity of this conduct. It seriously undermines the reliability of his evidence."
Grounds 9 and 10
Grounds 1 and 2
"at least 2 computers that hold relevant evidence on the hard drives. This is because these were the computers that Daphne and I used at the family home. Further documentary and physical evidence relevant to these proceedings including personal correspondence, greeting cards, photographs, and bank statements are also held at the facility. I believe that the contents therein may prove, amongst other things, that Daphne was living in the property with me between November 2008 and October 2009, that we used to live together at Faylands, that I worked alongside her on an equal footing in our business, and generally speaking that we were in a long term relationship and lived as a family with our children."
"We are instructed that neither our client nor any of her representatives have visited the Revival Company and removed certain items. Would you be kind enough please in the first instance to confirm when your client says the alleged attendance occurred. We will then take our client's instructions. We have sent you a copy of the inventory prepared by the Revival Company which appears to make no reference to any computer towers. We are of the view that in the first instance (because of the discrepancy between the inventories that have been prepared by the Revival Company) the Revival Company should confirm what computers it has in its possession (if any) and the state and condition of those computers."
"Now my recollection is that the hard drives would have been removed by members of staff at that time [when Faylands was sold] and destroyed. I wouldn't have a clue how to remove a hard drive from a computer and if that is what happened at the material time (I am not sure) it would have been dealt with by members of my staff."
"A. Well I was being asked all the time were there any computers from the office… from the Fayland's office with all the office information on them and I kept saying that as far as I was concerned there was no computers from the office there; that those computers had been transferred into the private office with Taryn. And I do recall at the time all material being wiped which is normal…what we do at the end of each year.
Q. I am sorry; say that again; that it's normal to wipe the computers at the end of each year?
A. It's normal in all our businesses to wipe computers – they've just done it now actually – and then retain any information, so whatever –
Q. Retain any information where?
A. They would retain information on hard disk, then transfer it into the new computer or wipe the computer and put it back in. And with these computers I remember there was a guy in the office with Taryn – Taryn got a specialist in – because I think we got new computers or new laptops and everything was transferred over to them, so as far as I was concerned the office computers that I was being asked about were not in storage, but they were actually in the office."
"275. Whilst I did not find Ms McKinley's evidence relating to the alleged removal of the hard drives to be particularly satisfactory, I am reluctant to find that she did in fact remove them on the 24th February 2012. There are three specific reasons. First, there was no direct evidence that the computers contained the hard drives on that date. I do not see that it is necessarily odd to store computers without their hard drives.
276. Had the computers been removed and returned, I would have expected, in the absence of any evidence of Revival's procedures, that to be separately recorded rather than for the computers to be listed and then deleted on the same list. The computers were not little lap tops which can be easily shifted, but four quite big towers. This would tend to indicate the computers were not removed on this occasion. Thirdly, had the hard drives been "ripped out in a hurry" or whatever as Miss Vella described, that should have been part of the expert's opinion and not in a covering email but was not.
277. Overall, I have found Ms McKinley to be an honest witness who has given evidence which is broadly consistent with contemporaneous documentation although she has at times for example understated the nature of the intimate relationship with Mr Patrick and the amount of time spent at Faylands. I have taken that into account in relation to this aspect of the evidence. I also accept that it would have been in Ms McKinley's interest to track down the hard drives as they would have contained information supportive of her case. For example, as Mrs Casey said, the Quickbook files showing how much Mr Patrick had in fact been paid would have been on them."