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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Lissimore v Downing [2003] EWHC B1 (Ch) (31 March 2003)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2003/B1.html
Cite as: [2003] Fam Law 566, [2003] 2 FLR 308, [2003] EWHC B1 (Ch)

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BAILII Neutral Citation Number: [2003] EWHC B1 (Ch)
Claim Number:BM230221

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

Birmingham
31 March 2003

B e f o r e :

HIS HONOUR JUDGE NORRIS QC
BETWEEN

____________________

SARAH LISSIMORE
Claimant
and

KENNETH DOWNING
Defendant

____________________

Ms Shanti Mauger (instructed by Benussi & Co) appeared on behalf of the Claimant.
Mr Peter Duckworth (instructed by Breakwells) appeared on behalf of the Defendant.

Hearing : 4-7 February and 11 February 2003

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. From about October 1993 until the middle of December 2001, Sarah Lissimore ("Miss Lissimore") was the live-in girlfriend of Kenneth Downing ("Mr Downing"). Mr Downing was a founder member of the heavy metal band "Judas Priest". He lived at Astbury Hall, Chelmarsh, Bridgnorth, Shropshire ('The Astbury Estate"). This consisted of a principal house, four cottages, sundry farm buildings and some 380 acres of mixed agricultural land. In addition Mr Downing had some Spanish properties.
  2. Millett J began his Judgment in Windeler -v- Whitehall [1990] 2 FLR 505 at 506 with the words:
  3. "If this were California, this would be a claim for palimony, but it is England and it is not. English law recognises neither the term nor the obligation to which it gives effect. In this country a husband has a legal obligation to support his wife even if they are living apart A man has no legal obligation to support his mistress even if they are living together. Accordingly, the Plaintiff does not claim to be supported by the Defendant but brings a claim to a proprietary interest in his business and his home."

    That is an apt description of the claims raised in this action. On 13 December 2001 Miss Lissimore registered a caution against the whole of the Astbury Estate. On 11 February 2002 (whilst she continued to live at Astbury Hall) Miss Lissimore issued an Originating Application (expressed to be brought under Section 17 of the Married Women's Property Act 1882 and under the inherent jurisdiction of the Court) seeking a declaration of ownership and an order for sale of the Astbury Estate and the Spanish properties. She did not claim the right to occupy any of the properties but sought an order that Mr Downing pay her "such sum in respect of the value of [her] interest therein as may be just".

  4. At the same time Miss Lissimore issued a Part 8 claim under the Trusts of Land and Appointment of Trustees Act 1996 seeking a declaration of the nature and extent of her interest in the Astbury Estate. In relation to Astbury Hall itself, she put her claim on two grounds:
  5. ".............Firstly, the Claimant has undertaken work on the property itself, painting it internally extensively and worked in the gardens of the property and on the surrounding land. That work has maintained and enhanced the value of Astbury Hall. Secondly, [Mr Downing] said and did things upon which [Miss Lissimore] relied to her detriment and that proprietary estoppel will prevent the Defendant from now relying on strict legal principles............."

    She made the same claim to the remainder of the Astbury Estate.

  6. On 31 July 2002 District Judge Cole ordered that the two actions should be heard together, that Miss Lissimore should serve Points of Claim and (in relation to each property) should identify what was relied upon as establishing a beneficial interest He directed the trial of a preliminary issue namely:
  7. "In relation to each property referred to in the claims, has the Claimant established a beneficial interest by virtue of a constructive trust or a proprietary estoppel and, if so, to what extent."
  8. The Points of Claim which were served in compliance with that order advanced the claim only in relation to the Astbury Estate, the claim to the Spanish properties being abandoned. The continuing claim is expressed in the following form:
  9. "The Claimant claims a beneficial interest in the Astbury Estate by the doctrine of proprietary estoppel. The Defendant made representations and/or promises to the Claimant, which she relied upon to her detriment, such that it would be inequitable for the Defendant to resile from the said representations and/or promises."
  10. The representations or promises fell into two categories, the second category itself containing two broad types. The first category consisted of specific representations. These were to the effect that Mr Downing had said "I bet you never thought ail of this would be yours in a million years" and that she was to be " Lady of the Manor". The second category consisted of unspecific representations. The first group of these consisted, typically, of indications that Miss Lissimore would never want for anything. The second group consisted, typically, of statements that Mr Downing had always looked after his girlfriends.
  11. The general nature of the detriment was that Miss Lissimore had given up her job and had turned down the offer of a better job, and had become dependent on Mr Downing. Further, she had not invested the modest sum that she received from her own divorce settlement (either in purchasing a property or otherwise investing it) but had spent it. Further, she had, for the time that she lived with Mr Downing, devoted herself to the maintenance, improvement and smooth running of the Astbury Estate.
  12. The relief she claimed was that she was a joint owner of the Astbury Estate or some part of it, and for consequential relief under Section 14 of the ToLATA 1996, and/or the declaration that the equity arising in her favour should be satisfied in some other way.
  13. The nature of this case was probed in the course of correspondence and Requests for Further Information, and this led to the explicit abandonment of some heads of claim. First, it was made absolutely clear that no claims were advanced to the Spanish properties. Second, it was made plain that Miss Lissimore did not pursue any claim in respect of the parts of the Astbury Estate that had been sold off in the course of the relationship. Third, the constructive trust claim was confirmed to be abandoned (as had appeared from the Points of Claim). At that point an attempt was made by Mr Downing to secure summary judgment in his favour on the remainder of the claim. I was on that occasion pressed with the submission that, looking at the evidence which Miss Lissimore advanced in support of her claim, it was possible, (without a trial) to see that it had no realistic prospect of success and that, accordingly, the remaining claim should be dismissed without the need for a trial. I rejected that submission. In doing so I gave a clear indication that, (having regard to the decision of the Court of Appeal in Jennings -v- Rice [2002] EWCA Civ 159 and its guidance on the need for a proportionate relationship between expectation, detriment and satisfaction of the equity) there was no realistic prospect of Miss Lissimore obtaining a declaration that she was entitled to joint ownership of the Astbury Estate (which had a value exceeding £2.5 million). I directed that Miss Lissimore should provide further information setting out her case as to how the equity claimed should be satisfied. Unrealistic claims impede the process of settlement, obscure a true comparison between what is genuinely at stake and the costs of resolving the issue, and can lead to the incurring of disproportionate trial costs. In further information provided on 11 December 2002 Miss Lissimore claimed that the most appropriate way to satisfy the equity would be by the payment of a lump sum sufficient to provide for the purchase of a modest rural property (priced at £150,000) plus living expenses until 2004, plus some capital to furnish such a property and provide a cushion for contingencies. The justification for this was that it would satisfy her expectation that she should have somewhere permanent to live, and would compensate her for the fact that she had given up her job prospects and the possibility of independence, affording her the chance to undergo training and to re-enter the job market. It is that re-defined issue that is before me for trial.
  14. The increasingly accepted starting point for a consideration of this type of proprietary estoppel claim is the judgment of Mr Edward Nugee QC in re Basham. deceased [1986] 1 WLR 1499. At the 1503H occurs the following passage:
  15. "The Plaintiff relies on proprietary estoppel, the principle of which, in its broadest form, may be stated as follows: where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person, B, that he either has, or is going to be given a right in or over B's property, B cannot insist on his strict legal rights if to do so would be inconsistent with A's belief. The principle is commonly known as proprietary estoppel, and since the effect of it is that B is prevented from asserting his strict legal rights it has something in common with estoppel. But in my judgment, at all events where the belief is that A is going to be given a right in the future, it is properly to be regarded as giving rise to a species of constructive trust, which is the concept employed by a Court of Equity to prevent a person from relying on his strict legal rights where it would be unconscionable for him to do so."

    I take that as a sufficient statement of the general law. It must now be read subject to the gloss added by Robert Walker LJ in Gillett v Holt [2001] Ch 210 at 225B that these are not entirely discrete elements, but are interrelated, and that the matter must be approached in the round. For the purposes of the issues I have to decide it is necessary to dwell a little on the nature of the representation, and the nature of the detriment.

  16. Mr Duckworth (who appeared for Mr Downing) submitted that the only relevant representations were those made in respect of specific property or in respect of ascertainable property. Miss Mauger (who appeared for Miss Lissimore) was prepared to concede that unspecific statements to the effect that Miss Lissimore "should want for nothing" or "would be treated like the other girlfriends" probably could not, of themselves, found a proprietary estoppel (unless they could be read as implicit references to the Astbury Estate). But when taken together with the specific representation that "all this will be yours" they reinforced the representation, defined the expectation and influenced the way the equity should be satisfied.
  17. In my judgment the basic rale is that representation made by A, or the assurance provided by A, or the expectation of B (known to and encouraged by A) must relate to some specific property, or to some part of A's property which is objectively ascertainable. It is difficult to conceive of an estoppel attaching to, or a constructive trust imposed upon, entirely unascertained and unascertainable property. That would make satisfaction of the equity the same process as identification of the equity.
  18. In Lavton -v- Martin [1986] 2 FLR 227 the deceased had written to the Plaintiff offering her "what emotional security I can give, plus financial security during my life, and financial security on my death". Scott J found as a fact that the Plaintiff had not relied on that representation: but he held (obiter) that this statement could not found either a constructive trust or a proprietary estoppel. He said (at the 238G):
  19. "The proprietary estoppel line of cases are concerned with the question whether an owner of a property can, by insisting on his strict legal rights therein, defeat an expectation of an interest in that property, it being an expectation which he has raised by his conduct and which has been relied on by the Claimant The question does not arise otherwise than in connection with some asset in respect of which it has been represented, or is alleged to have been represented, that the Claimant is to have some interest... A representation that "financial security" would be provided by the deceased to the Plaintiff... is not a representation that she is to have some equitable or legal interest in any particular asset or assets."

    Scott J said of the submission that the Claimant had acquired an interest in the deceased's assets for the time being that "The proposition has only ... to be put to be seen to be untenable".

  20. In re Basham. deceased (supra) Mr Edward Nugee QC was faced with the submission that proprietary estoppel must be related to a particular property and could not extend to property as indefinite and fluctuating as the whole of the deceased's estate. The learned Judge rejected that submission holding (at p1510D) that in other cases of constructive trust, such as those arising from mutual wills, the trust comprised the whole of the estate. Accordingly:
  21. "If the belief that B will leave the whole of his estate to A is established by sufficiently cogent evidence, as in my judgment it is in the present case, I see no reason in principle, or in authority, why the doctrine of proprietary estoppel should not apply so as to raise an equity against B in favour of A extending to the whole of B's estate."
  22. So it is clear the proprietary estoppel can attach to specific property, and also clear that it can attach to the whole of the representor's property. Sometimes on the facts it is possible to find the language that, on a superficial reading, appears to fall between those two categories, when properly understood, brings the case within one or other of those categories. So in Wayling -v-Jones [1995] 2 FLR 1029 the statement to the effect that "you'll get everything after I'm gone" was understood to mean that the representor was going to leave a particular hotel to the Claimant. In Jennings -v- Rice (Supra) statements by the deceased that she would "see to it" and that "this will all be yours one day" were understood to be references to the deceased's house and furniture. In Gillett v Holt (supra) statements by the Defendant that he would leave his whole estate or that "It's all yours" were read as references to a particular part of the farming enterprise. That is why Miss Mauger asks me to treat statements that Miss Lissimore "would never want for anything" or references to the provision made for former girlfriends as statements that Miss Lissimore would receive part of the Astbury Estate.
  23. In Orgee -v Orgee (unreported) (5 November 1997, CA) the Court of Appeal was considering a claim by a son that he was entitled to an agricultural tenancy of a farm owned by his father. The County Court Judge had held that a proprietary estoppel claim had been made out, and that the grant of an agricultural tenancy was the appropriate way of satisfying the equity. The Court of Appeal held (in summary) that the proprietary estoppel claim must fail because it was incumbent upon the Claimant:
  24. "......Not only to establish an expectation or belief that he would be granted a full agricultural tenancy, but also to show that such expectation or belief was of sufficiently concrete character to enable the Court to give effect to it when fixing the rent and the rent review regime, and making provision for dilapidations, for the repairing covenant, and for other crucial terms...."

    (The quotation is the Court's summary of Counsel's submissions, which the Court went on to accept). Mr Duckworth relies on this case as demonstrating the need for the equity to attach to a specific property interest. His submission was that certainty of expectation (which the decision in Orgee appears to require) pre-supposes certainty of property ie a clear identification of the property to which that certain expectation relates.

  25. This analysis does not sit easily with the observations of Robert Walker LJ in Jennings -v- Rice (supra) (in which Orgee was not cited). In paragraph 46 of his Judgment, Ronald Walker LJ said:
  26. "However, the Claimant's expectations may not be focused on any specific property. In re Basham the Deputy Judge... rejected the submission that there must be some clearly identified piece of property, and that decision has been approved more than once in this Court. Moreover (as the Judge's findings in this case vividly illustrate) the Claimant's expectations may have been formed on the basis of vague and inconstant assurances. The Judge said of Mrs Royal that she ".. .was prone to saying different things at different times and, perhaps deliberately, couched her promises in non specific terms." He made that observation in relation to the failure of the contract claim, but it is relevant to the estoppel claim also. ...If the Claimant's expectations are uncertain (as will be the case with many honest Claimants) then their specific vindication cannot be the appropriate test..."

    It is important not to divorce those observations from their context, which was a debate about what principles operated in the determination of how an established equity should be satisfied. He plainly disapproved the argument that the representation or assurance or expectation must relate to some specific item of property. He plainly approved the argument that the representation can relate to "my estate". But the area between those extremes was not the subject of detailed debate and I do not consider that those observations can be used to support an argument that any representations, however vague and unspecific, as to the representor's future intentions, can be used to subject his property generally (or some part selected by the representee) to a form of constructive trust or equitable obligation arising under a proprietary estoppel.

  27. It follows that I would accept Miss Mauger's concession that the alleged statements to Miss Lissimore by Mr Downing during the relationship (that "she would never want for anything", or that "he would take care of her", or that "she did not need to worry her pretty little head about money", or that "his other girlfriends had never wanted for anything", or that "he had looked after his other girlfriends and she would not be different") do not found a proprietary estoppel. Such statements do not on their face relate to any specific property, they plainly do not amount to a representation which binds the whole of Mr Downing's property, and they are not expressed in terms which enable any objective assessment to be made of what is being promised. In this last respect they are to be contrasted with statements made to unpaid or underpaid workers or business partners, encouraged to work on because they would be "treated right", and for whom a commensurate reward could be objectively assessed.
  28. This brings me to the second point on the formulation in re Basham (supra), which relates to detriment. The classic formulation requires that the person to whom the representation is made or assurance given (or in whom the expectation is encouraged) should have "acted to his detriment". In Wayling -v- Jones (supra) at p1031H Balcombe LJ referred to "the conduct which constitutes the detriment" which he characterised (at p1032B) as "conduct... of such a nature that inducement may be inferred". But the authorities show that detriment is not a narrow or technical concept, and need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement is to be approached as part of a broad enquiry as to whether repudiation of an assurance is, or is not, unconscionable in all the circumstances. (See the judgment of Robert Walker LJ in Gillett -v-Holt (supra) at 232D-E). Two points need to be drawn from this, relating to the nature of the conduct and the nature of the detriment.
  29. , First, the conduct must be in some sense prejudicial to the party relying on it, or of such a nature that it raises the inference that it must have been induced by some sort of promise. Thus, in Coombes -v- Smith [1986] 1 WLR 808 Jonathan Parker QC (as he then was) held on the facts of the case then before him that leaving one's husband and becoming pregnant by the Defendant, keeping house for the Defendant, not looking for a job and allowing the Defendant to pay all the household bills together with an allowance could not sensibly be regarded as "detriment." In Windeler -v- Whitehall (supra) the Plaintiff spent some of the legacy she received on living expenses and supervised minor building works. Millett J held that this did not constitute detriment, saying:
  30. "Any wife or mistress would do the same. Only a lawyer versed in the authorities but lacking all sense of proportion would consider that such conduct gave her any kind of proprietary interest in the house."

    These cases are in marked contrast to the types of service provided by the Claimants in re Basham, Wayling -v- Jones, Jennings -v- Rice, and Gillett -v-Holt

  31. However, the mere fact that certain types of conduct have, in other cases, been insufficient to found the claim, does not mean that in this case I must dismiss it from consideration. That is because, as Robert Walker LJ pointed out in Gillett -v- Holt at p232E:
  32. "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."

    I must therefore look for conduct which is in some sense detrimental or prejudicial, which goes beyond what might normally be expected of the relationship between the parties and which suggests that it was induced by some sort of assurance, and which (judged at the time when the representor wishes to go back on the assurance) can be seen to be sufficiently substantial to render it unconscionable for him to deal freely (and without any equitable restraint) with his property.

  33. Having now considered the law relevant to this application I turn to the facts. Mr Downing was born in October 1951 and was thus 41 years old when he met Miss Lissimore in May 1993. He had bought Astbury Hall itself in 1985, and the surrounding farmland in 1991 (so making up the Astbury Estate). His idea in purchasing the farmland was to convert Astbury Hall into a country club, and to develop the land as a golf course. He borrowed £1.1 million to fund the site assembly and some refurbishment works, embarked on a renovation of the farm cottages, and commissioned a feasibility study into the development. The plans were grandiose, including an 18 hole and a 9 hole golf course, a club house, a 50 bed hotel with restaurant and conference facilities, 20 letting lodges and additional gymnasium and sports facilities. The main feasibility study was concluded at the end of 1992, and a short supplemental study prepared in the Spring of 1993. Meanwhile, the Astbury Estate was run as a farming enterprise. It had a dairy quota (which was soon sold) thereafter it was run as a mixed livestock and arable unit (basically as a hobby farm rather than as a commercial unit). Eventually the business simply became that of letting for grass or root cultivation.
  34. Mr Downing had no skills as a farmer, nor had he any experience in estate management. So far as farming was concerned, he came to rely from about 1995 on the advice of Mr Michael Cavanagh-Thornhill, a farm consultant, who oversaw the management of the farming enterprise (finding agricultural tenants, engaging agricultural contractors, and supervising the production of crops and grass and the conservation of the land). So far as estate management is concerned, Mr Downing retained and relied on the advice of Messrs Doolittle and Dalley of Kidderminster. They saw to the lettings and maintenance of the five cottages (two of which were sold off) from the Autumn of 1994 onwards. The farming and letting of the Astbury Estate (and the engagement of professionals to oversee it) became a permanent feature because the economic climate was against the development of the Astbury Estate along the lines that Mr Downing hoped. The probability is that this decision was taken shortly after May 1994 (when Mr Downing succeeded in obtaining planning permission for the golf course). It is abundantly clear from the evidence that the decision was to postpone (not to abandon) the redevelopment. Astbury Hall itself had been partly converted from a family residence to its ultimate use and it remains in that condition today.
  35. So much for Mr Downing's business relationships. As regards his personal relationships, he had had (by May 1993) two former long-term live in girlfriends, and currently had at least one girlfriend with whom he did not live.
  36. His first long-term girlfriend was Carole. They shared life together when Mr Downing was starting out, and he told me that they had shared some very hard times, and that Carole had held down two jobs. When Mr Downing and Carole bought what he called "our little house in Bloxwich" he put Carole's name on the deeds because the man at the building society advised him to do so. By 1985 the relationship with Carole had foundered. Mr Downing (who was at the time buying the neo-Georgian mansion house at Astbury Hall) paid off the mortgage on the house at Bloxwich and transferred it to Carole. In his own estimation, this was a generous act on his part, and a proper recognition of the 13 years they had spent together.
  37. The second live in girlfriend was Kyme. She lived with Mr Downing in Spain until she went back to America in the late 1980s after an affair with another rock musician. She was a jeweller, and maintained her own business throughout the relationship. Mr Downing was smitten with her artistic ability, and spoke with genuine emotion of his devastation when she was killed in a car accident in California in the early 1990s. When Kyme left Spain to go to California to train as an actress, Mr Downing had "set her up in a flat" (though I was not told the details of the arrangement). He described her as a skilled and hard working woman, keen to improve her qualifications, and although she had her own money, Mr Downing plainly did subsidise her move the California, and strove to keep the relationship alive in some form or another.
  38. In May 1993 Mr Downing was spending some of his time with an air hostess called Julie. The relationship appears to have ceased developing when (over the summer of 1993) Mr Downing betrayed an interest in transvestism. Mr Downing ceased seeing her in about September 1993 (according to his account and Miss Lissimore's original account in evidence). Julie sent him a birthday card the following month asking whether he had "fallen off the planet".
  39. I have now provided the context for the meeting between Miss Lissimore and Mr Downing in May 1993. She was aged 25 (16 years younger than Mr Downing) and was working as a pharmacist's assistant earning about £9400 a year, and working for a pharmacist at Bradeley, Wolverhampton. She still lived with her husband in a small house in Bath Street in Sedgley, Wolverhampton which they had been trying to renovate, valued at £54,000 and subject to a £24,000 mortgage. But their four year marriage was at an end and divorce proceedings were imminent. They occupied separate rooms. One evening in May 1993 Miss Lissimore and a friend were on a "we hate men" evening at "The Fox" at Stourton. She and Mr Downing (whom she "understood to be a farmer) struck up a conversation, which led to their arranging a further meeting, which led to the development of a relationship. In no time at all Mr Downing's true identity was apparent. He took her back to Astbury Hall. Over the summer she began to stay overnight from time to time: and in October 1993 she moved in. Events preceding her moving in lie at the heart of Miss Lissimore's present application. I shall record the different versions of those events, then resume the narrative (deciding conflicting versions as I proceed) and then return in the light of all the evidence to the central dispute.
  40. First, Miss Lissimore's account, and the stages of its development. In the statement which she made on 8 February 2002 in support of the relief which she seeks, Miss Lissimore briefly explained how she and Mr Downing became close very quickly, that there was a fiat in Stourbridge which was on the market for £30,000 and which she thought of buying, but Mr Downing did not want her to buy a property when she got her divorce settlement, and at his request she moved into Astbury Hail. In her statement of 17 May 2002, Miss Lissimore confirmed this account, elaborating it to explain that she was going to rent the flat with an option to buy when her divorce settlement came through. In her Points of Claim (served in response to the order of District Judge Cole dated 24 July 2002) Miss Lissimore alleged that in August or September 1993 Mr Downing was driving her to Astbury Hall from her place of work, that he stopped in Astbury Lane and looked over a gate which afforded a view over the Astbury Estate and said "I bet you never thought all this would be yours in a million years", and calling her "The lady of the manor'." The pleading alleges that these statements were repeated on at least two further occasions in September and October 1993 from the same vantage point. In a statement dated 26 November 2002 Miss Lissimore confirmed that she distinctly remembered "the occasion" when these words were uttered, accepting that they were made "before I moved into Astbury Hall and ... very early on in the relationship". In her evidence in chief, Miss Lissirnore told me that she had paid a rental deposit on a flat, but when he saw it Mr Downing said "Why not come and live with me": and that late in the summer that the incident at the gate in Astbury Lane had occurred. She said that she found the whole idea "scary" because she would have to look after the Astbury Estate. She said, however, she did not go into the relationship thinking "this is going to go wrong", so she did not think deeply about what had been said by Mr Downing. In cross-examination Miss Lissimore told me that in the summer of 1993 she was expecting about £10,000 from her divorce settlement, that she was earning £9,400 a year, and had been told that she could borrow twice her earnings, and that she was accordingly looking for somewhere that would cost her about £29,000. The flat in Stourbridge was near the hospital (but she could not remember the address). She had been looking for somewhere to rent at £50 a week, and then became aware that the vendors of this flat were willing to rent it to her until such time as she could afford to buy it. She took Mr Downing to see it, but he thought it was in a poor area and no place for a woman to live. She then confirmed the conversations that had occurred in Astbury Lane, identifying the car in which they had occurred, and the precise location of the gate. In giving this detail she was careful in her evidence; in recounting the conversations she tended to repeat familiar phrases from her Points of Claim. Cross-examination elicited the detail that the conversation over the gate occurred at approximately the same time as looking at the flat in Stourbridge.
  41. Mr Downing's perspective and recollection was different. In his statement of 17 April 2002 Mr Downing explained that Miss Lissimore was going through a divorce, could not afford to buy anything, and so he invited her to live at Astbury Hall to "see if we could have some fun together". It was his case that he explained to Miss Lissimore that it was not going to be "conventional love and romance" and that there was going to be no commitment to a long-term relationship, or exclusivity, or anything like that. In his Defence, Mr Downing denied using the words attributed to him in the conversation over the gate in Astbury Lane, asserted that no reasonable person could, construe whatever he did say as the promise of a beneficial interest in the Astbury Estate, and alleged that Miss Lissimore herself did not so understand it. In the statement he made in December 2002, Mr Downing found it hard to think of any occasion when he had driven Miss Lissimore from her work to Astbury Hall (since she had a car of her own) and said that to the best of his knowledge he had never said anything that could lead Miss Lissimore to believe that he intended to part with a share in the Astbury Estate. He characterised this part of Miss Lissimore's case as "a work of fiction". The most he would acknowledge is that he may have said that she would have the run of the place. In his evidence in chief he confirmed that there was just such a gate as Miss Lissimore spoke of, saying:
  42. "I would stay at the gate to admire my achievements and to check on security."
    He remembered visiting the flat at Stourbridge, and expressing the view that it was not suitable. First, because he had spent most of his teenage years in cramped bedsitters, and this seemed no better. Second, because he had just bought a brand new Range Rover, and was worried about it being vandalised if he visited Miss Lissimore. In cross-examination Mr Downing told me that he only began a relationship with Miss Lissimore on the clear understanding that it would not be a "normal relationship" because they were "both exhausted by ordinary relationships, the congestion and the responsibility". What he offered was" two people enjoying freedom within a relationship" namely, that he would have a companion but would not have "the overburdening sense of responsibility of being in a relationship". It was his understanding that Miss Lissimore was on the same wavelength. He said that the suggestion that he would give a half share of the Astbury Estate to someone he had just met was "an insult to my intelligence". He said he had worked hard and achieved a lot, and that he was very proud of it:
    "Everything I do is for Astbury: it's my passion, my life and my pension."
  43. My findings on these events have assumed critical importance in this case.
  44. The constructive trust claim based on improvements to the Astbury Estate has been abandoned. The claim is now a proprietary estoppel claim focused on the Astbury Estate (albeit to be satisfied by the payment of a sum of money). The claim that the estoppel attaches to the Astbury Estate is dependent on some representation or assurance having been given which relates to the Astbury Estate, it being accepted that the other representations are either insufficient to found an estoppel case or to connect it to the property which is the subject of the claim (or the contrary only faintly being argued). These statements are the only ones directly referring to the Astbury Estate, and the case that other general statements are implicitly references to the Astbury Estate is heavily dependent on these statements having been made earlier. I should not make a finding on this issue in isolation. I shall therefore make short findings on the other extensive evidence canvassed before me. I will do so adhering to the basic chronology of events.

  45. Miss Lissimore moved in to Astbury Hall in October 1993. She did not tell her parents for another three months. In December 1993 she reduced the number of hours that she worked as a pharmacist's assistance from 45 to 25. Miss Lissimore says that she did so at the request of Mr Downing, because her work was interfering with their life together. Mr Downing said at trial that Miss Lissimore was thoroughly discontented with her job (in particular, the fact that some customers treated her badly), and that it made a lot of sense for her to reduce her hours over the winter, since she was not dependent on the job to provide her with food and accommodation, and that he had made quite plain that he would provide for her whilst her divorce went through and she sorted herself out. But in an earlier witness statement he had acknowledged making the suggestion to her. I find that he probably did suggest it, but not for his own advantage. I find that Miss Lissimore was not in any sense in love with her job at the pharmacy (which involved a 12 mile cross country commute) and that she had not the least regret at reducing her hours.
  46. Miss Lissimore told me at trial that from March 1993 she had been looking to change her job at the pharmacists and to become a medical representative, making several applications. She said that in January 1994 she had received the offer of a position as a pharmaceutical representative with the Wellcome organisation. In this particular she was supported by her distant cousin, Paul Bent (who also gave evidence). Mr Bent's oral evidence differed somewhat from that set out in his witness statement. The picture that emerged at trial was that in September 1993 Mr Bent had arranged for Miss Lissimore to have an interview as a medical representative selling over the counter medicines (an area of which her work as a pharmacist's assistant gave her some experience). She was selected as suitable, but there was a recruitment freeze in place. When that recruitment freeze was lifted (which Miss Lissimore put at January 1994) she did not pursue the opportunity. Mr Bent recalled being told that that was "because she did not need to work". (She was at this time still working part-time as a pharmacist's assistant in Bradeley). Miss Lissimore did not suggest that she had ever told Mr Downing of the job offer. I accept that there was some attempt by Mr Bent to get his relative a position in the organisation of which he was Regional Business Manager: in the absence of a single document to support the events recounted and weighing up the account of the recruitment process which I was given, I am not prepared to hold that Miss Lissimore had anything like a firm job offer. She may (having been through a recruitment process) been invited to apply (along with others) for an available position: but me fact that all mis was kept from Mr Downing (and that she continued to work at the pharmacy) means that it is irrelevant to any case on proprietary estoppel. Indeed, Miss Lissimore's explanation for the very late introduction into evidence of the Wellcome job offer is that it was not something that was in the forefront of her mind and was not something that she did.
  47. In March 1994 Miss Lissimore agreed the terms of the financial settlement on her divorce (although the divorce itself did not occur until July 1994). From then on she knew that she would be receiving £12,500 or thereabouts. The probability is that she received it in May 1994 (when she made the first big deposit into her bank account). With these monies Miss Lissimore repaid a loan due to her parents, bought a new car, and lent Mr Downing £2000 to assist in the purchase of a flock of sheep (which he later repaid). The purchase of the car is instructive. Mr Downing had paid for the repairs to Miss Lissimore's elderly Metro, but he thought it made a poor companion for his new Range Rover. He therefore suggested the purchase of a replacement. But he did not fund, or contribute to, that new vehicle. He was proud of his status, conscious of appearances, but not so open handed or generous himself to provide a new car. It was Miss Lissimore's case that she bought her new car because she felt secure, and that Mr Downing had promised to look after her. There is a measure of truth in this. She was at this time living in Mr Downing's house and being wholly supported (so far as her daily needs were concerned) by him. He was from time to time putting money into her bank account and he was paying her credit card bills. She was enjoying a lifestyle that must be, in comparison with what she had endured in the pharmacy in Bradeley and the house in Bath Street, unimaginably luxurious. She had a capital sum available to her, and no immediate demands upon it. I have not the slightest doubt that she felt free to spend it. But I am clear that there is no credible evidence to support the submission made in closing tha she could, and would, have used that capital sum as a contribution to the purchase of a flat aided by a mortgage obtained on the basis of her (now reduced) salary and used it as an investment whilst she continued to live with Mr Downing.
  48. In April 1994 Miss Lissimore completely gave up work at the pharmacists. Predictably, there were opposed views as to how this came about. Miss Lissimore told me that Mr Downing complained that her working at all interfered with his lifestyle and that the reduced hours (with her going into work at about noon) had not resolved the issue. She told me that she was a little nervous about giving up her job (which in one witness statement she had called "enjoyable and relatively well paid"), because she was totally giving up her independence and becoming totally reliant on someone else, and she did not cherish that. She described giving up her independence as "difficult", but said that she had been assured by Mr Downing that she had no need to worry, and that she was not to be silly. However, she acknowledged that they did not discuss any long-term repercussions. Mr Downing's evidence was that Miss Lissimore was forever whinging about her job, liking neither the job nor the journey. According to him, he suggested that she leave and look for something else (perhaps working for Boots at Bridgnorth) because it did not make sense to pay for petrol getting to and from a part-time job you did not enjoy at a place you did not like.. He said that he felt concerned for Miss Lissimore and wanted her to be happy and safe adding:
  49. "I am a good provider for those around me. I could fully understand her raising the question of independence, and I understood her concerns. By giving her some respite and a fresh opportunity, it made a lot of sense."

    At other points in his evidence he told me:

    "I felt I was a good Samaritan, and now I have been stabbed in the back... I threw her a lifeline and she is trying to hang me with it."

    He told me that he had tried to get her to go on a computer literacy course in Bridgnorth to help her get another job, but nothing really came of it and Miss Lissimore never did find another job.

  50. I find that Miss Lissimore gave up her job as a pharmacist's assistant without reluctance and with a degree of encouragement from Mr Downing, who wanted to spend more time with her. When the issue of her independence was raised he made clear to her that that course was open because he would provide for her daily needs. It was in that context he very probably said that she would want for nothing, that he would take care of her, and enquired what she could want that he could not provide. The relationship was still in its first flush and, as Mr Downing told me:
  51. "We had a lot of fun in all sorts of places that had nothing to do with Asthury Hall"

    But there was no sense in which Miss Lissimore was giving up "a career", no time at which the long-term repercussions of giving up this particular job were ever addressed, no sense in which Mr Downing ever assumed responsibility to make long-term provision for her after the end of the relationship (which neither contemplated). He was a man who had himself worked extremely hard, had shared his life with women who worked, who admired those who sought qualifications and built independent careers, and who would never have discouraged Miss Lissimore from finding another job or from developing her career if she had wished to do so. What he did do was make abundantly clear that there was no pressing need for her to take such steps. I do not believe he said (as Miss Lissimore told me) that "women shouldn't concern themselves about money matters".

  52. The fact that that state of affairs happened to endure for seven years cannot of itself impose on Mr Downing an obligation to transfer some of his property when he did not undertake such an obligation at the outset. There may be a promissory estoppel (e.g. a defence to a claim to leave the property before reasonable notice of the change in the nature of the arrangements has expired): but proprietary estoppel is different.
  53. At Christmas 1994 the Chelmarsh village band came to play at a function organised by Mr Downing. Ben Davies (who, as a 15 year old, started to work as Mr Downing's gardener daring the course of the following year) remembers the occasion. Mr Bent told me that on that occasion Miss Lissimore told him that she hoped to have some important news to announce about herself and Mr Downing. I find that that recollection is erroneous. Miss Lissimore's marriage had been dissolved in July 1994, but neither Miss Lissimore nor Mr Downing suggested that the occurrence of that event led to them re-assessing the permanence of their relationship.
  54. There is, however, no doubt in my mind that towards the end of 1994, or the beginning of 1995 (after the parties had been together for something over a year), there was a recognition on Mr Downing's part that this relationship was not simply a passing fad, with two unattached and emotionally bruised people having a bit of fun together. The relationship had taken on a degree of stability.
  55. That was reflected in the new will which Mr Downing made on 21 My 1995 with the assistance of a solicitor, Mr Fea, of Martineau Johnson. By that will he left substantial legacies to his accountant and to Carole, gave all his personal chattels to Miss Lissimore (with a request that she deal with specific items in accordance with a Letter of Wishes), gave an interest in a house to his mother, and otherwise disposed of his estate equally between his mother, his two sisters, his brother and Miss Lissimore. By a Letter of Wishes which accompanied his will he asked that Miss Lissimore should be allowed to live in Astbury Hall or one of the cottages until the Astbury Estate was sold by his executors in accordance with the trust for sale imposed in the will. Miss Lissimore told me that she knew of the will, of its terms and of the Letter of Wishes, and that she felt much more secure. She explained that until that time she had "not even thought about being booted out". I was not invited to treat the will as an indication of what Miss Lissimore had been promised or expected on a termination of the relationship, and Miss Mauger was clearly right in taking that course. This is not a case in which a gift in a will can be used as evidence that a promise in the same terms had been made. Miss Lissimore's case is not that she had been promised by Mr Downing that he would make provision for her in his will, and it is unconscionable for him to break that promise in his life time (as was the position in Gillet -v- Holt). The terms of this will do not represent the performance of a promise, but a pure gift. The question is whether that gift lends credence to or negates the case that Mr Downing promised to give Miss Lissimore a share of the Astbury Estate either immediately or on the break up of their relationship. In my judgement it cannot lend credence to the case, because the will addresses the fundamentally different situation that arises after Mr Downing's death, not that which would arise on the termination of the relationship during Mr Downing's life. The will can properly be relied upon in support of the submission in that it evidences a relation that is anticipated to continue into the foreseeable future, and that Mr Downing viewed Miss Lissimore in the same light as his close family.
  56. At Christmas 1995, Mr Downing gave Miss Lissimore a diamond solitaire ring, which he had selected from the Argos catalogue at a cost of about £400. Sharp battle lines were drawn around this incident, though both parties agreed that it could not create or confirm any relevant proprietary rights. It was treated, rather, as the central test of credibility. The conclusion I draw from it is that Miss Lissimore was, in her evidence, prone to put a gloss on events in order to suggest that Mr Downing was personally committed to her and more than ready to contemplate accepting legal responsibility for her: whereas Mr Downing put a gloss on events designed to underplay their significance in order to minimise a threat to the Astbury Estate.
  57. Miss Lissimore's account was that at Christmas 1995 Mr Downing first gave her a small, ring sized, box containing a miniature teddy bear. Having enjoyed her evident disappointment he then gave her the box containing the diamond ring saying:
  58. "I know you have had one before: but it is time you had another."

    She described herself as "gob smacked", and asked if she might wear it on the third finger of her left hand, which Mr Downing affirmed. She therefore said that she took it that they were engaged, because Mr Downing did not say mat they were not engaged. The following day she told her parents. That Boxing Day evening there was a dinner party at the home of Mr & Mrs Holyhead, attended by Mr & Mrs Kenward. At some point in the evening Miss Lissimore's ring was noticed, and congratulations were extended to Miss Lissimore and Mr Downing. This was confirmed by the evidence of Mr Kenward. Mr Downing did not deny that an engagement had taken place, though Mr Kenward told me:

    "Ken said nothing. He was very quiet. I was confused by that."

    In early January 1996 there was a wedding anniversary party for Mr Bent's parents to which Mr Downing and Miss Lissmore were invited. Mr Bent told me that the couple were congratulated on their engagement, and a toast was drunk. Miss Lissimore gave unchallenged evidence that various other friends were told of the engagement.

  59. It was common ground that the ring was flawed. It was therefore replaced by Argos. The replacement was also flawed. Argos therefore refunded the money. Mr Downing and Miss Lissimore then went to the Jewellery Quarter in Birmingham where Miss Lissimore selected a ring that was also diamond solitaire but which she did not thereafter wear as an engagement ring. It was also common ground that there was never at any time any discussion of a wedding date.
  60. It was Mr Downing's evidence that Miss Lissimore had asked for "rocks", the same as were worn by the partners of other rock stars. He had accordingly bought her (for Christmas 1993 or 1994) a pair of diamond stud earrings. The ring was a Christmas present to match them. He told me:
  61. '"If I was betrothing myself I would not go to Argos for a £400 ring."

    He acknowledged that she did ask if she could wear it as an engagement ring, to which he said his response was "whatever". He said he had no inkling that she thought she was engaged until Boxing Day, when Sarah's parents offered him their congratulations. He said that at that point he realised Miss Lissimore was trying to draw him into accepting the idea of an engagement, and that he and Miss Lissimore had words (to the effect that he did not know what game she was up to but if it continued she would be the one who was embarrassed). He remembered the incident at the dinner party on Boxing Day evening and said that he was not amused by it, thinking "here she goes again". He also recollected the incident at the wedding anniversary party in January 1996. He acknowledged he did not repudiate any "engagement" on that occasion either, saying:

    "Call it negligence or naivety, but Sarah knew and I knew. It was wrong of her."

    He told me that he "denied every minute of [his] engagement". But this was not strictly true. In a letter written on 16 October 1997 to the agent of the purchaser of a bungalow on the Astbury Estate with whom he had a boundary dispute Mr Downing himself wrote:

    "I would still like for you [the agent] on behalf of myself and my fiancée, Sarah, to extend our welcome to Astbury to [the purchasers]."

    Mr Downing's explanation was that he wanted to make an impression consistent with his being the owner of Astbury Hall on people with whom he had been in dispute.

  62. The parties do not differ greatly in their respective recollections of events: they differ widely in their interpretation of them. I find that Mr Downing knew what he was doing when he gave an engagement ring. It was to afford Miss Lissimore status within their friends' and family circle and a degree of respectability in the outside world There was an engagement. But Miss Lissimore also knew what Mr Downing was doing. He was not offering marriage. He was not promising himself to her. He was not suggesting that their relationship would ripen into a conventional "love and romance" that would lead to the permanence of marriage. He wanted, and she accepted, companionship without the commitment of marriage (though I have not the slightest doubt that she hoped for more).
  63. I have looked now at the specific events on which the trial focused, the parties considering these to be the principal indicators of whether or not a claim in proprietary estoppel could be made out. But before returning to the question of the assurances said to have been given over the gate I should consider and make findings upon the more general matters that form the background to these events.
  64. First, the nature of the relationship. I would make abundantly clear that Miss Lissimore is not to be regarded as a "gold-digger". I am completely satisfied that she did not go into this relationship with a view to what material advantage she could gain from it, either temporarily or permanently. She made certain lifestyle choices because she was in the relationship - about work, and about spending her divorce settlement - but she did not get into the relationship in order to be in a position to make those choices. She was genuinely attracted to Mr Downing, not simply to the things that surrounded him. To begin with, she thought he was a farmer, and he deliberately so presented himself in order to avoid what he himself called "the-occupational-hazard-of- the-money-grows-on-trees-rock-star". She passed that test. He was also genuinely attracted to her. She gave him fun and excitement and the kudos of a young and attractive partner at a time when his personal and professional life was at a low. He has perhaps forgotten the thrill of that She accommodated his ambivalence about his sexuality. She was willing to play her role as "the Lady of the Manor" and to support him in his role as "Squire Downing" without mocking his aspirations. She was willing to give him his own space (she never insisted that she accompany him on tour or at recording sessions). At the outset she did not exert any pressure upon him to enter any commitment to her. Even when, by the end of 1995, there was pressure of sorts from Miss Lissimore and her family (perhaps just the expectation that arises from the continuation of the relationship coupled with enquiry from her as the possibility of their having children) it seems plain that she did not harp on this theme, being content with her status as "fiancee" but with no wedding in prospect. It was only when (aged 30 in 1997) she began to talk seriously of a desire to have children (which both of them viewed as involving marriage) that tensions emerged. Having seen his own parents' unhappy marriage, that was a commitment Mr Downing did not want. Nor did he want children (for it would have been necessary for him to undergo some treatment before Miss Lissimore could conceive). She coped with this disappointment. That account needs to be given, because looking at the relationship after its dissolution and through the lawyer's lens of a proprietary claim can give a distorted view.
  65. Second, Miss Lissimore's role in the relationship. The advancing of a
  66. proprietary claim tends to require the claimant to list how much (s)he did, endowing small acts with a great significance whilst at the same time not recording that party's true contribution to the relationship. Much time was spent at trial examining schedules of work which Miss Lissimore did, testing the description of it to define its true extent. I do not intend to make detailed findings as to the staining of floorboards in one cottage, or the papering of the vestibule in another, or the painting of two doors in Astbury Hall, or the replanting of the shrubs, or the creation of a flower-bed (and who was responsible for its design). I have re-read my notes of all that evidence, and paid particular attention to the evidence of Nicholas Brookfield, (a former tenant of Mr Downing's who tenancy was terminated because he gave a statement in favour of Miss Lissimore). But my conclusions are

    (a) that Miss Lissimore did not "run the estate" for Mr Downing: she shared what he did, playing a full part in it, and occasionally being left in charge "on the spot" whilst he was away (but with all major decisions being left to the professionals or to await Mr Downing's return);
    (b) that whatever Miss Lissimore did, she volunteered, and it was not required or requested of her;
    (c) that Miss Lissimore did contribute ideas and display an artistic flair in the garden, but in conjunction with the gardener who always reported to Mr Downing;
    (d) that the work undertaken in the garden was not of lasting permanence, much of it being done on land earmarked for development of the country club, but it undoubtedly year by year made the garden beautiful;
    (e) that Miss Lissimore did share with Mr Downing the minor rectification and repair works required to the properties between tenancies, but the principal works were undertaken by Ben Davies and his uncle, and (in part) by Martyn Harris (Mr Bent's brother-in-law, and so a distant connection of Miss Lissimore's);
    (f) that Miss Lissimore did play a very full part with Mr Downing in coping with those situations that required (as Mr Downing put it) "all hands on deck";
    (g) that Miss Lissimore did cope with occasional emergencies in Mr Downing's absence, properly discharging the role of the Lady of the Manor, and personally undertaking the urgent clearing up; but in this she was supported by the estate's handyman, and by the jobbing builders who were called in;
    (h) that when the nature of the farming business was such that invoices needed to be prepared (or collated for Reg Oerton, the book-keeper) it was Miss Lissimore that undertook that task, but the volume of such work was never great, and in later years Miss Lissimore was paid by one of Mr Downing's companies;
    (i) that both Mr Downing and Miss Lissimore worked hard on the Astbury Estate because they shared his view that "it was great work-out and therapy";
    (j) that there probably was an occasion when (after some back-breaking digging in the garden) he said to her that she should not complain to him "because it is for us", but Mr Downing meant only that they would Together enjoy the result of the work, not that he was then giving her or had given her a share in the Astbury Estate;
    (k) that Miss Lissimore was entirely accurate when she told me that she did not do any of this work as a "thank you" to Mr Downing, but simply did what was necessary to maintain the property - "the normal things you do, but exaggerated because there was so much to do on the estate".

    She played a full part in the relationship, doing what anyone in such a relationship would do. She is now deeply hurt, and feels cast off and devalued: it has been made clear to her in stark (and she finds, humiliating) fashion that she comes (and he says, always has come) a distant second to the Astbury Estate in Mr Downing's affections.

  67. Third, Mr Downing's role in the relationship. He was the provider. He met all living expenses. He paid money into Miss Lissimore's bank account He paid her credit card bill. He allowed her to draw cash from his own personal account He took all decisions in relation to the Estate and at all times acted as owner. The decision to pursue and then to postpone the re-development was entirely his, taken without any consultation. When he decided to refurbish a cottage, he did so and used his own money to pay the builders. When he decided to sell a bungalow or a cottage he did so, and dealt with the proceeds entirely as he wished. He engaged professionals, and they reported to him. He never held himself accountable to Miss Lissimore. He ran his music affairs (with aid of a separate set of professionals and assistants) entirely on his own and without consulting or informing Miss Lissmore. He was domesticated, and did much of the cooking. He was very active on the estate, and enjoyed learning the different skills. He was enthusiastic and as involved as he could be. It was the principal focus of his life and the thing that he regarded as his achievement. He thought that any self-respecting man would treat those close to him with what they deserved in life, that he should please them as they pleased him - not in an overgenerous way, but as he could afford. In that sense he thought himself generous, and he was not reticent to say so. I have little doubt that at some stage in the relationship he told Miss Lissimore in general terms what he had done for Carole and Kyme. He is now deeply angered and hurt, and extremely worried at what he thinks was an outright attempt to take from him his main achievement (Astbury Hall) and to use his passion for it as a lever to secure an unjustified payment.
  68. Having now examined the specific events on which the parties relied and endeavoured to place them in the context of the relationship overall I can now return to the alleged representations made in the late summer of 1993 and make my findings, taking into account my assessment of Miss Lissimore and Mr Downing derived from a consideration of ail those matters.
  69. First, I find that Mr Downing did not make any statement that he intended to mean that Miss Lissimore was to have a share of the Astbury Estate.
  70. (a) It is extraordinary that he should give away an interest in the asset he prized above all, that was the focus of his life and in many ways defined him, to a young woman he had met in a pub 3 months earlier, who was still living in her matrimonial home with her estranged husband;
    (b) It is equally extraordinary that Mr Downing should make a commitment of such nature when Miss Lissimore was making no commitment whatsoever: the idea of her moving in had been mooted, but the event was not to occur for another one or two months, and when it did occur it involved Miss Lissimore in taking no irrevocable step;
    (c) It is most surprising that Mr Downing should relinquish absolute control of the estate at the very time he was pursuing a grandiose redevelopment plan for which he had borrowed £lm.
    (d) It is equally surprising that if these extraordinary events occurred then Miss Lissimore should not have placed them in the forefront of the case when it was first advanced. I do have some sympathy with Miss Mauger's submission that witnesses sometime only recollect events when specific issues are raised by a party's lawyers: but in the instant case, from the outset part of Miss Lissimore's claim was based on things done by her in reliance on things said by Mr Downing, and it is only very late in the day that the central event comes to be told. There must be a very great risk that the recollection is shaped by the legal context which produces it.
    (e) Nothing emerged at trial to render the apparently extraordinary in the event, credible: on the contrary, the picture that emerged at trial was not of a relationship born of mad infatuation, but of a relationship that arose out of the practical need for Miss Lissimore to find suitable accommodation pending her divorce settlement, and the desire of two bruised people to have some fun and see what happened;
    (f) Further, at trial I received the evidence of Mr Fea (Mr Downing's solicitor). He was, to my mind, of the classic type of "family solicitor". By 1993 he had some 30 year's experience as a solicitor, and specialised in private client work with a prominent Birmingham firm. Mr Downing had been a client of the firm since 1985 (about the time of the break-up with Carole). Mr Fea knew that Mr Downing had been deeply hurt by the break-up of that relationship, and was thereafter anxious to protect his estate from claims by co-habitees. He told me that some time in 1993 Mr Downing telephoned him to say that Miss Lissimore would be moving in. and asking for advice as to how he could protect the Astbury Estate from claims: he was told not to touch the deeds and not to give Miss Lissimore the impression that she had any claim on his assets. Mr Downing confirmed that he had sought and received such advice. In a sense this evidence is almost too good to be true, and I have scrutinised it, especially since there is no attendance note of the conversation and no letter of advice (each of which I would have expected since the matter was of known concern). But Mr Fea was a transparently honest witness, rueful in his acknowledgement that he did not make a note of the telephone call, and frank in his admission that he could not remember when in 1993 he had received the call. He is a prominent member of his profession, and Deputy Registrar of the Birmingham Diocese. Miss Mauger very wisely did not suggest that he had fabricated the evidence, or that his imagination had supplied advice he wished he had given, or that he was mistaken with some other occasion. Further, Mr Downing's seeking advice is entirely consistent with his wariness of the "occupational hazard" and with his attitude to professional advice generally. I accept this evidence. In my judgement it conclusively disposes of any suggestion that Mr Downing said anything by which he intended to give Miss Lissimore a share in the Astbury Estate.
  71. Second, I find that Miss Lissimore did not (until the formulation of her present claim) understand Mr Downing to say that he had given hear a share in the estate, nor did she ever suggest to him that she entertained that belief (for example, by calling the Astbury Estate "ours" or by dealing with it as owner). It would be easy to say that the conversation over the gate is an invention; but that would not be a fair assessment of the evidence. Having assessed Miss Lissimore's evidence on a number of points, I do not think that she invents entire incidents. Her evidence always has a grain of truth; but that grain of truth is distorted by its presentation in support of a particular legal claim. The grain of truth here is that Mr Downing did probably drive down Astbury Lane with Miss Lissimore, he probably did stop at the gate to take pride in his achievements, he probably did articulate that pride to Miss Lissimore, he probably did say something to the effect that he bet that she never in a million years thought she would live in somewhere like Astbury Hall. But he talked of, and she heard him talk of, "enjoyment" not "ownership". Equally he probably at some stage did call her "the Lady of the Manor". But he meant that (and she heard it) as a reference to her role, not to her entitlement Indeed her evidence tended to suggest that she thought that whatever it was she heard was "scary" and imposed on her responsibilities, rather than conferring on her some sort of rights. It was never explained to me why, if she thought that she had been given a share in a £2 million estate, Miss Lissimore continued for another month or so to live with her estranged husband in a small house in Bath Street, or why she bargained for the next eight months to receive a £12,000 share of that house. Nor do I understand the excitement of "the engagement" if Mr Downing had already made the far more concrete commitment of sharing his fortune with her. A £400 engagement ring was a shallow thing compared with a share in a £2 million estate. Nor was it explained to me why (in 1995) she did not express surprise at the fact that in his will Mr Downing was apparently dealing with the whole of the Astbury Estate, not simply his share, or surprise that she was not being advised to make her own will relating to her share. I do not believe that Miss Lissirnore ever thought that Mr Downing had made any commitment to her about the Astbury Estate.
  72. Third, I find that none of the conduct relied on by Miss Lissimore was induced by any assurance made by Mr Downing. She moved in with Mr Downing because it represented an exciting opportunity not because the change was underwritten by a commitment from him. She was a free and intelligent woman who made a choice that involved risk but offered the prospect of reward and fulfilment, and that in any event immediately lifted her out of a humdrum life. Her position at the end of what might have been a very short-lived fling did not concern her. The present advantage hugely outweighed the prospective detriment: and accordingly the role of any "promise" that may have been made to her would have been minimal.
  73. Fourth, I hold that, divorced from a direct assurance about the Astbury Estate, the other statements made from time to time by Mr Downing during the relationship cannot sustain a proprietary estoppel claim. They are completely general in nature. It is not possible to identify from them what property interest is being promised or what property is being subjected to a constructive trust, or what expectation is being created; nor is there any objective reference point by which that deficiency can be supplied. There is no ground for treating them in any way as implicit references to the Astbury Estate. Even references to what had been done for former girlfriends could not possibly be so read, since the provision for them did not in any way relate to the Estate. On a proper reading they relate almost entirely to the currency of the relationship.
  74. In reaching that conclusion I have borne in mind that part of Miss Lissimore's evidence in which she told me :-
  75. "Ken was Astbury. Ken was me. I was Ken. I was Astbury"

    But such mysticism is not a substitute for the elements identified by Edward Nugee QC in Re Basham decd (supra). I do not find that any sufficient assurance was made. I do not find that any sufficient assurance was acted on. Had it be required of me, I would have held that, looking at the position in the round, balancing the burdens assumed in the relationship against the benefits derived from it, and making the assessment after the breakdown of the relationship, no substantial detriment had been suffered.

  76. I must dismiss this claim. What I am being invited to do is to make a property adjustment order on the termination of the relationship, not to define what property rights were created during the relationship. That is a view on the law. It should not be taken that I share Mr Downing's own estimate of himself that he is generous, or that he treats people as they deserve. Perhaps if his view had not been clouded by the lodging (in secret) of a caution against the whole of the Astbury Estate his estimate of what generosity meant might have been different
  77. There remains a further issue to be determined at this hearing (quite apart from the remainder of Miss Lissimore's claim to certain scheduled chattels, and Mr Downing's Part 20 claim for possession and damages). Part way through the trial Mr Duckworth made a "without notice" application seek a permanent injunction restraining Miss Lissimore from publishing or delivering to third parties documents belonging to Mr Downing which have been disclosed by him in the course of proceedings or were removed by Miss Lissimore at any time since October 2001, or from publishing or delivering copies or transcripts of tapes of conversations with Mr Downing since January 2002. The application itself was disposed of upon undertakings readily offered until the conclusion of the trial. No application was made to amend the Part 20 claim, but I was invited to rale on the application notice and grant final relief upon it (which Miss Mauger did not oppose). A short break in the trial enabled submissions in support and in opposition to be prepared, but the matter was not fully argued on either side.
  78. First, the disclosure documents. The terms of CPR 31.22 are clear, as are the consequences of a breach of the implied undertaking as to confidentiality: see, for example, Watkins v A J Wright (Electrical) Ltd [1996] 3 All ER 31. What is not clear is the basis for saying that Miss Lissimore intends to breach the undertaking, and in relation to what. The case advanced seems to be that Mr Downing is famous, that there are matters about his life and affairs that would interest the public, that Miss Lissimore has reason to make public such matters and that therefore an injunction should issue. Many people would think that one answer would be to make Miss Lissimore feel grateful rather than aggrieved and thereby remove the perceived risk. But feelings are high on both sides and the matter is being dealt with strictly according to law. Strictly according to law Mr Downing has not specified any document or class of document in relation to which the risk arises, nor has he produced any credible evidence that Miss Lissimore intends to publish such identified parts of Mr Downing's disclosure. I have seen a transcript of a telephone conversation (made, as I understand it, from a tape recorded by a machine in Miss Lissimore's part of Astbury Hall) in which Mr Holyhead (the host of the Boxing Day party that Mr Downing has regularly attended for years) can be heard saying that he has something on offer for £6000 and telling the caller '"You want something. I can give it" It is submitted that this constitutes evidence that Mr Holyhead is negotiating a media deal on Miss Lissirnore's behalf. It only does so if an assumption is made about the subject of the deal, the identity of the caller, and the capacity in which Mr Holyhead is acting. This essentially assumes what has to be proved. It is not sufficient to support a permanent injunction in general terms. Mr Downing must rely on the general rules governing disclosed documents.
  79. Second, the "Hilldebrand documents"- (see Hilldebrand (1992) 1 FLR 244). In November and December 2001 "Judas Priest" went on a short tour to Australia and Japan. It was in Mr Downing's absence that Miss Lissimore consulted solicitors and, on 13 December 2001 (two days before his return), lodged the caution against the Astbury Estate. Mr Downing says that in this period Miss Lissimore had free access to and went through his papers to extract any documents that might support her case, and copied them. Miss Lissimore admits having copies of certain documents: the initial list she supplied was set out in a letter from her solicitors dated 14 January 2002, though her subsequent disclosure statement demonstrates that this list was not complete. Her case is that she has not rifled through private papers, and that in the past she had "arranged for copies of key documents". The documents relate to Mr Downing's financial affairs (excluding his music business interests) down to the termination of the relationship. It is difficult to see why copies of some of them should have been taken and retained by Mr Downing (who also had the originals). (Save for a copy will) it is very difficult to see why copies should have been taken and provided by Mr Downing to Miss Lissimore for her own use (for she had no interest in his finances). It is clear to me that whenever the copies were created and for whatever purpose, Miss Lissimore went through Mr Downing's papers and extracted these documents for the purpose of mounting a claim against him. It is also clear to me (from the course that disclosure has taken) that she has not fully appreciated what documents in her possession she is obliged to disclose. By her present undertaking she promises not to publish or deliver to third parties any document which has been removed by her from Astbury Hall at any time since October 2001 and which belongs to Mr Downing. If a perpetual undertaking in that or similar form (but going back to July 2001) is not forthcoming I will grant an injunction in terms to be discussed with Counsel.
  80. Thirdly, the tapes. Since January 2002 Miss Lissimore has had in the part of Astbury Hall occupied by her a voice-activated tape recorder. This has recorded conversations between herself and Mr Downing. I have heard none of the seven tapes and seen no transcripts (save for the very short Holyhead conversation). My findings in relation to the tapes are as follows. Mr Downing was selling 11 acres of the Astbury Estate. He returned from his Australia and Japan tour. Miss Lissimore did not tell him that she thought the relationship at an end and that she had applied to register a caution against the whole of the Astbury Estate. Mr Downing discovered the caution when he went to his solicitors in Bridgenorth in connection with his sale. He exploded. He went straight back to Astbury Hall and confronted Miss Lissimore. He was verbally very abusive, but not physically violent. Thereafter Miss Lissimore had the tape recorder available to record any further such incidents. Mr Downing suspected in due course that there was such a machine, certainly by 6 September 2002, and on 14 September 2002 he removed it from Miss Lissimore in a violent incident. The tape recorder was there for Miss Lissimore's protection in relation in relation to domestic violence proceedings, not to obtain material for use in this action. Although the tapes have (eventually) been disclosed, not attempt has be made to use them in this action, and nobody has suggested that they have any relevance.
  81. They feature in this case because Mr Downing fears that in the course of an argument Miss Lissimore or Mr Downing may have said something about his sexual preferences or adventures that could be used to his disadvantage. He has had all of the tapes since shortly before the trial and no such passage has been drawn to my attention. Mr Duckworth submits that, nonetheless, as a matter of principle (and without reference to the contents) I can order the delivery up of tapes belonging to Miss Lissimore, of conversations to which she was a party, in a property occupied by her, to the other party to the conversations, because they must be confidential and because his privacy has been invaded. I do not consider that it is a breach of confidence for one party to disclose (or even publish) the content of a conversation with another. Something more than those bare facts is required.
  82. What that "something more" is may now be found by reference to the decision of the Court of Appeal in A v B plc [2002] 3 WLR 542 at 550ff.
  83. (a) The claimant (A) must have some interest of a private nature worthy of protection; examples of such interests are health, personal relationships, finances, behaviour that a reasonable person would understand was meant to be unobserved;
    (b) There must be some duty of confidence to which the defendant (B) is subject, and such a duty will arise whenever B is in a situation where he knows or ought to know that B can reasonably expect his privacy to be respected;
    (c) If there is an intrusion (e.g by the use of surveillance techniques) in a situation where A reasonably expects his privacy to be respected then that intrusion will be capable of giving rise to liability to an action for breach of confidence, but the publication of the information will not necessarily be injuncted;
    (d) Between sexual partners outside marriage there is an especially acute conflict between the claims of privacy and the claims of freedom of expression. Where there is a shared confidence which B does not wish to preserve, A's right to have the confidence respected is not extinguished, but it is undermined: the extent to which it is undermined will vary with the nature (particularly stability) of the relationship.
    (e) A public figure is entitled to a private life, but his actions will be more closely scrutinised by the media: and if he has courted publicity has less ground for objection to the intrusion.
    (f) In drawing up the balance sheet between the respective interests the Court does not act as an arbiter of taste; and it may often not be required to adopt a technical approach.
    (g) Once the balance sheet is drawn, it may not point clearly in either direction, and if this is the position interim relief should be refused.
  84. Conducting the balancing exercise I have decided to refuse the injunction
  85. sought. First, nothing on the tapes themselves has been drawn to my attention as harmful. This relief is being sought more to "gag" Miss Lissimore and to warn her what to expect if she tells her story to the press, than to restrain any genuine breach of confidence. Second, the tapes themselves do not constitute a particular intrusion into privacy: Miss Lissimore was taping a conversation occuring in her own space or shared space. She was doing so for the purpose of providing evidence in the event of domestic violence, Mr Downing having been very abusive (verbally) to her. She has not sought to use the tapes in any other way. Third, it is Mr Downing who has introduced the issue of his sexuality into this action. Miss Lissimore was advancing a claim arising out of an eight year relationship between an engaged couple. In their first letter Mr Downing's solicitors denied that the parties were ever engaged. In virtually their next they said "their respective sexuality is destructive to (sic) any prospect that either party would ever marry". In his first witness statement (the whole of which was put in evidence) Mr Downing said that he had explained to Miss Lissimore that he was bi-sexual and had even had an affair with a transsexual man, and asserted that their relationship was neither long-term nor exclusive. It is he (not Miss Lissimore) who raised the issue. Public disclosure of what would otherwise have been confidential was a price worth paying to make sure he kept the Astbury Estate (and it has played its part). Fourth, it was Mr Downing who was at pains to point out that the relationship was not like marriage and did not involve commitment. I regard it as quite wrong that he now seeks to say, as a matter of principle and without reference to any particular, that what occurred within the relationship should be treated almost as if it were confidences passing between husband and wife. Fifth, if Miss Lissimore did want to publish the tapes (or part) then, as one party to a relationship that did not create ongoing responsibilities which survived its termination, I think her desire for freedom of expression must be given great weight. Sixth, the principle that if the balance sheet does not clearly come down in favour of restraint then publication should be permitted seems to me as applicable to final relief (at least in the circumstances before me) as to interim relief. For all these reasons I shall refuse the injunction. If such relief is to be sought it must be put on better grounds.

  86. For these reasons I dismiss the claim to which the preliminary issue is directed, and the application made the course of the trial. I am indebted to Counsel for the thoroughness and quality of argument, reflected in the length of this judgement.
  87. 31 March 2003

    HHJ Norris QC


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