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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kotke v Saffarini [2005] EWCA Civ 221 (09 March 2005)
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Cite as: [2005] EWCA Civ 221, [2005] 2 FLR 51

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Neutral Citation Number: [2005] EWCA Civ 221
Case No: B3/2004/0804 PTA

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (HEPPLE HHJ)
CLAIM NO.SE330027

Royal Courts of Justice
Strand, London, WC2A 2LL
9 March 2005

B e f o r e :

LORD JUSTICE POTTER
LORD JUSTICE BUXTON

____________________

Between:
KOTKE
Appellant
- and -

SAFFARINI
Respondent

____________________

Miss Elizabeth Gumbel QC and Mr Henry Witcomb (instructed by Messrs Irwin Mitchell) for the Appellant
Mr Oliver Ticciati (instructed by Messrs Keoghs) for the Respondent
Hearing date : 16 December 2004

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Potter:

    Introduction

  1. This is the judgment of the court. This application for permission to appeal, listed with the appeal to follow, relates to a judgment of His Honour Judge Hepple QC sitting at Kingston-upon-Hull and dated 1 March 2004 in respect of a preliminary issue in litigation between the claimants as administrators of the estate of Trevor Noel Snowdon the deceased and the defendant. The deceased and the first claimant Ms Kotke were walking on a pavement across a bridge in Bath on the evening of 4 March 2000 when they were struck by the defendant's car of which he had lost control and hurled over the parapet wall of the bridge into the river Avon below. The deceased was killed. Ms Kotke was severely injured. However, she managed to swim to a barge in the river and thus survived the accident. In subsequent proceedings, the claim of the administrators included a claim on behalf of Ms Kotke for loss of dependency under section 1(3)(b) of the Fatal Accidents Act 1976, as amended ("the Act"). We shall refer to Ms Kotke hereafter as 'the claimant'. The defendant denied her entitlement to claim as a dependant on the grounds that, not being the spouse of the deceased, she had not lived together with him in the same household as his wife for a period of at least two years before the date of his death. That objection was the subject of the preliminary issue tried before Judge Hepple.
  2. The relevant definition of dependant appears in paragraph (b) of s.1(3) of the Act as follows:
  3. "Any person who:
    (1) was living with the deceased in the same household immediately before the date of the death and;
    (2) had been living with the deceased in the same household for at least two years before that date and;
    (3) was living during the whole of that period as the husband or wife of the deceased."
  4. The evidence in relation to the issue before the judge was not in dispute. There was no doubt that the claimant and the deceased were living together in the same household effectively as husband and wife at the date of his death. The issue was whether, on the basis of the undisputed evidence, it could be shown that they had been so living for at least two years before that date; i.e. since March 1998.
  5. The facts

  6. The state of the evidence was as follows.
  7. In the summer of 1995, the parties having been friends for several years, that friendship ripened into a sexual relationship. At that time the claimant and the deceased owned and lived in separate properties at 306 Crookesmoor Road, Sheffield and 7 Woodley Grove, Doncaster respectively. The deceased's property in which he had resided for some years was worth less than he had paid for it and he had to buy out his former partner with a loan from his father. It required substantial renovation and was in a position of negative equity. At that stage the position, as stated by the claimant, was that although they lived in their respective houses they would stay together each weekend at one or other of the houses for one or two nights. The deceased had toiletries and some casual clothes with a couple of spare work shirts and ties at the claimant's house. At the beginning of 1996, when the claimant was at work, a regular weekday would involve the deceased leaving his own home in Doncaster on each day and driving to Sheffield to pick up the claimant to go to work together.
  8. In early 1996, he began to spend most weekends and stay two or three weekday nights with the claimant. However, in July 1996, he started to work for a computer company called Oracle. His pattern of life was to travel to London by train on Monday, from his house in Doncaster, having stayed there on Sunday night, to stay away all week, and to return on Friday evening. If he was late back he would stay in Doncaster that night. If not, he would go to the claimant's house. He would spend most of his weekend with the claimant, but occasionally they would spend it together at Doncaster.
  9. Later in 1996 the claimant described how "the possibility of getting a house together was discussed between us". She said that, as there was some negative equity in the deceased's Doncaster house, "We decided to wait a while before selling the house in Doncaster and buying our own house together. Trevor was still paying his dad back for the loan to buy out Mandy" (his former partner). With his increase in income from Oracle, the deceased set up a direct debit payment of 40 per month into the claimant's account.
  10. In summer 1997, at the time of her fortieth birthday, the claimant said she did not wish to get married. However the claimant was getting established at work and "He wanted to look forward to our future together We did speak about marriage but he said he was more concerned about living together and cementing our commitment towards a long-term future together. I never really wanted to get married." At that time there was a discussion between them about the prospect of having children. The claimant was reluctant to do so but aware that the deceased wanted to have children of his own. She told him she would understand it if as a result they could not have a future together but the deceased " was quite clear in his intentions and he stated that he had made his choice to be with me, that he wanted to be with me regardless".
  11. In the light of her statement that in summer 1997 she did not wish to get married, at the completion of the claimant's oral evidence, the judge asked and the claimant answered as follows:
  12. "Q. Can I ask you this. Many people choose not to marry and that is their business, and many people have difficulty with regard to properties when relationships split up and so on, and I understand that. When did you regard yourself as living as Trevor's wife?
    A. Trevor the time that Trevor spent with me was whilst he worked at Oracle. It just built up over a period of time
    Q. Yes. When did you regard yourself as living with Trevor as his wife?
    A. I would say during the period 1997, the time he started to spend at my house. It just increased and we just tried to spend as much time as we could together, bearing in mind that often his job took him away to other locations.
    Q. Was there anything to stop him giving as his address your address?
    A. No other than I guess the Woodley Grove thing, because it was like an official thing because he was still registered for council tax, stuff like that, but I think if anyone were to ask him where he lived, he would say in Sheffield with me, but he had a house in Doncaster."
  13. The claimant's sister, who gave evidence, said that "By the time of Linda's fortieth birthday [i.e. Summer 1997] it was quite clear to me that Linda and Trevor were living as a couple and that Trevor was very committed to Linda".
  14. The claimant stated that, if the deceased had been asked where he lived, he would, when he had first changed his employment (i.e. July 1996), have said that he lived in Doncaster but that, as time passed, this would have changed to saying that he lived in Sheffield.
  15. The deceased's work for Oracle involved travelling all over the country. The claimant stated:
  16. "When Trevor had a contract in London he would mainly travel by train from Doncaster. The train service from Doncaster to London is quicker and more convenient than the train service from Sheffield. When he began this contract he did travel from Sheffield at first but then he realised it was better to go from Doncaster. He would therefore stay in Doncaster on Sunday evenings and return there on Friday evenings. He would stay at his property in Doncaster on some of those nights so the house didn't look empty, for security reasons."
  17. During summer 1997 the claimant described the position as follows in relation to the work of the deceased at a time when, in the course of his employment with Oracle he was acting as a consultant to the Halifax Building Society:
  18. "If the company or business was based in the north he would commute daily and travel to Doncaster to pick up post and check his house over a couple of nights a week. If he was not staying in Sheffield overnight, we would have tea together at my house or nearby at a restaurant and he would leave after tea. If we were going out we would have tea and he would drop me off home before travelling to Doncaster Some weekends we would stay in Doncaster."
  19. Early in 1998, the claimant and the deceased looked at a house in Oughtibridge with a view to purchasing it as a home together; however it was not suitable. The claimant said she wished to find a way of keeping her Crookesmoor Road property as a potential source of pension funds. They went and looked at other houses.
  20. It is important to note that 5 March 1998 (i.e. during this period) marked the beginning of the period of two years immediately before the death of the deceased.
  21. In June 1998, when the deceased was working in Edinburgh, the claimant became pregnant. She so discovered in July on their return from a holiday in Crete. The claimant said that the deceased and she were shocked at first. During that period the deceased would fly to Edinburgh on Monday morning and return on Friday night, spending most of the weekend with the claimant, but returning to his house in Doncaster for visits in order to check the post and ensure the safety and security of the house. The claimant said that, having had a blood test in order to ensure that the baby was fine, "It was then really that I guess we began to make plans".
  22. In February 1999 the deceased bought the claimant a car as a surprise. He also paid the sum of 650 for medical expenses and other expenses in connection with the impending birth. The baby (Alexander) was born on 14 March 1999. The birth was registered on 3 April 1999, the deceased's address being given on the birth certificate as 7 Woodley Grove, Doncaster (i.e. his own house).
  23. In April 1999 the deceased completed for his employers a form setting out what was described as his expression of wish in the event of death benefit being payable were he to die whilst in service. His wish was that 80% of the benefit should go to Alexander, 10% to the claimant and 5% to each of his brothers.
  24. In September 1999, the claimant returned to work. In that month the deceased let his Woodley Grove property to a Mr Bates and in October 1999 he notified his employers that his address had changed from Woodley Grove to Crookesmoor Road. The claimant stated that, at that time, she continued to pay the mortgage and council tax on her property stating that "We made the decision not to change that until we had decided precisely what our intentions were".
  25. Two months later on 2 December 1999 the deceased executed a standing order from his bank in favour of the claimant for 390 a month, the statement showing his address as Crookesmoor Road.
  26. On Christmas Day 1999 the deceased gave the claimant 2,000 in cash so that she could pay off a loan which she had got for other purposes. On New Year's Eve he said to her "I don't suppose there is any point in asking you to marry me?". The claimant said she deflected the question and did not give him an answer. Just over two months later, Mr Snowdon was killed.
  27. The judgment below

  28. The judge stated that he regarded the claimant as an accurate and frank historian. He said that in response to a question from him she had said she regarded herself and the deceased as a couple from some time in 1997 which, as the judge noted, was how they appeared to her sister (see paragraphs 9 and 10 above). As the judge rightly observed, however, it was for the court to decide whether the claimant had proved that that was the case to the extent necessary to satisfy the statute by early March 1998 and carefully to consider what inferences should be drawn from his findings of fact in the light of the law as stated in the authorities.
  29. He carefully set out the relevant authorities which are to be found in relation to analogous provisions of the Divorce Reform Act 1969 (see Santos v Santos 1972 Family Reports 247) and the Inheritance Provision for Family Dependants Act 1975 as amended by the Law Reform Succession Act 1995 (see Gully v Dix, 21 January 2004 [2004] EWCA Civ 139). He also referred to Pounder v London Underground Ltd [1995] PIQR P217 (QBD) a decision of Sir Michael Davis in relation to s.1(3) of the Act. He extracted from those authorities the following propositions: (1) that each case is fact sensitive (i.e. dependent upon its peculiar facts); (2) the relevant word for consideration is 'household' and not 'house'; (3) 'living together' is the antithesis of living apart; (4) parties will be in the same household if they are tied by their relationship; (5) the tie of that relationship may be manifest by various elements, not simply living under the same roof, but the public and private acknowledgement of their mutual society and the mutual protection and support which binds them together i.e. the whole of the consortium vitae. No one factor is necessarily more important than any other or determinative of the issue. He also observed that the reasons why parties do not live together in a given case may be an important factor in deciding whether they live in the same household. Similarly the reasons one party may have for not wishing to marry may be of importance.
  30. Turning to the factors which the judge found to be of importance, he made the point that the claimant was over 10 years older than the deceased, a significant age difference at the time when they had first met, and that, before the start of their sexual relationship nine years later, each had been in relationships with others, describing themselves simply as good friends. He said it was plain in his judgement that they lived not only in separate houses but in separate households throughout 1995 and 1996, and this at a time when each was free from any relationship with any other person. They could have lived together had they chosen to do so, but they did not.
  31. The judge stated that he formed the impression that the deceased wanted the relationship to move more quickly than the claimant and was aware of her reticence, citing as examples the conversation at the time of her fortieth birthday so far as having children was concerned and the deflected proposal of marriage on New Year's Eve 1999.
  32. He stated that it was also plain that until September 1999 the deceased was maintaining Woodley Grove as his own house, being there registered as an elector and having given it as his address on Alexander's birth certificate in April 1999. Nor did he inform his employers of any change of address until October 1999.
  33. In relation to co-habitation at Crookesmoor Road, the judge then said this:
  34. "He kept, as I have observed, the odd change of clothes at Crookesmoor Road but there is no evidence that he kept any substantial amount of possessions there. The inference that I draw from all that is that the Woodley Grove house was not only his house but also his home until at least after the pregnancy was discovered.
    True it was that he contributed 40 a month by direct debit to Miss Kotke, but there were no substantial contributions to her income until after the pregnancy was discovered.
    It is submitted on behalf of Miss Kotke that there might be explanations for the parties maintaining separate addresses. For example, the convenience of travelling up to Edinburgh; not wanting to leave the house unoccupied; demands of the mortgagees that the house be occupied or, perhaps, of insurance companies with regard to household and contents insurance, but really Miss Kotke has given no evidence about any of this when one would expect her to be able to give it, the matters having been discussed between the parties.
    This keeping not only of separate houses but also separate homes was not, in my judgment, consistent with the parties living in the same household. Mr Snowden's centre of gravity had not shifted by March 1998 and, in my judgment, did not start to shift until after the pregnancy was discovered.
    That event inevitably drew the couple more closely [together] because there was now a third person potentially to consider, rather than two. From July 1998 onwards, the couple became increasingly closer. It is not necessary for me to make a finding as to whether they were living in the same household from September 1999 [the date contended for by the defendant] or from an earlier date, but I do not find that Miss Kotke has proved that that was the case by the first week in March 1998.
    I take into account modern lifestyles. Acts of Parliament, to use a phrase that was referred to more than once during the course of these proceedings, are always speaking. I think it may have been the case that Mr Snowden was committed to the claimant and wanted to live with her but I am not satisfied that this wish was reciprocated by Miss Kotke until the pregnancy was discovered.
    I accept that in 1997 [the deceased] said that he was concerned that the parties should be living together, but this does not mean that they in fact were. There is a distinction in my judgment to the drawn between wanting to live in the same household, intending to do so, making plans to do so and actually doing so.
    Accordingly, on the construction of the Fatal Accidents Act as amended, I do not find that Miss Kotke has discharged the burden of proof on her to prove that the parties were living together as man and wife in the same household by early March 1998."

    The Law

  35. Before turning to the grounds of appeal, we pause to consider the meaning of the word 'household'. Use of that word embodies a concept somewhat elusive of definition, combining as it does both the physical connotation of a place i.e. a particular house or home and personal connotations of association i.e. the family or household resident within it. Both aspects are covered by the various dictionary definitions available. Dr Johnson concentrated upon the latter aspect, defining a household as "A family living together". However, the Concise Oxford Dictionary (9th ed) covers both aspects. It defines household as being "(1) the occupants of a house comprising a unit (2) a house and its affairs". In that context of insurance law, it was observed in Muir v Royal Insurance Co (1981) 125 DLR (3d) 172 at 175, per Phelan J:
  36. "It therefore appears that while 'household' has a broad meaning such as 'the inmates of a house' it also has in some of the dictionary definitions a narrower meaning such as a 'domestic establishment', 'the home and its affairs', 'a place where one holds house, his home'."
  37. In the context of matrimonial law, and in particular the phraseology of s.2(5) of the Divorce Reform Act 1969 ("For the purposes of this Act a husband and wife shall be treated as living apart unless they are living with each other in the same household") it has been said:
  38. "First, it does not use the word 'house', which relates to something physical, but 'household', which has an abstract meaning. Secondly, that the words 'living with each other in the same household' should be construed as a single phrase On the contrary, use is again made of words with a well settled matrimonial meaning 'living together', a phrase which is simply the antithesis of living apart, and 'household', a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated " (per Sachs LJ in Santos v Santos)
  39. In Gully v Dix [2004] EWCA Civ 139, 21 January 2004, the Court of Appeal was concerned with the question whether the claimant fell within s.1A of the Inheritance (Provision for Family and Dependants) Act 1975 as amended by the Law Reform (Succession Ac)t 1995 which applies to a person who:
  40. " during the whole of the period of two years immediately before the date when the deceased died was living
    (a) in the same household as the deceased, and
    (b) as the husband or wife of the deceased "
  41. The issue in the case was whether Mrs Gully, who, without marrying the deceased, had co-habited with him for many years, but had left the deceased and lived apart from him for the last three months of his life, was yet able to demonstrate that she was living in the same household as the deceased during the whole of the period of two years immediately before the date of his death. The judgment of Ward LJ, with whom Mummery LJ and Rix LJ agreed, referred at paragraph 23 to the observations of Sachs LJ in Santos v Santos quoted above and stated:
  42. "24. In my judgment, similar considerations must apply to the meaning to be given to the statute with which we are presently concerned. Thus the claimant may still have been living with the deceased in the same household as the deceased at the moment of his death even if they had been living separately at that moment in time. The relevant word is 'household' not 'house', and 'household' bears the meaning given to it by Sachs LJ. Thus they will be in the same household if they are tied by their relationship. The tie of that relationship may be made manifest by various elements, not simply their living under the same roof, but the public and private acknowledgment of their mutual society, and the mutual protection and support that binds them together. In former days one would possibly say one should look at the whole consortium vitae."
  43. Ward LJ went on to hold that the judge had been right to examine the question whether the relationship of the parties had ended prior to the death of the deceased and observed (at paragraph 25):
  44. "In deciding whether or not Mrs Gully was still living in the same household, the judge correctly had to ascertain her intentions and his.
  45. Of the other cases to which we have been referred, we have derived some assistance from Crake v Supplementary Benefits Commission [1982] 1 All ER 498 and Kimber v Kimber [2000] 1 FLR 383. In the former case, Woolf J was concerned with the question whether a man and woman were 'living together as husband and wife' for the purposes of para 3(1)(b) of Schedule 1 to the Supplementary Benefits Act 1976.
  46. He commended as 'admirable signposts' the criteria set out in the Supplementary Benefits handbook then issued for the guidance of claimants. He said:
  47. "They are: whether they are members of the same household; then there is a reference to stability; then there is a question of financial support; then there is the question of sexual relationship; the question of children; and public acknowledgement."
  48. In Kimber v Kimber His Honour Judge Tyrer referred to those six factors and, in relation to the first helpfully observed:
  49. "Generally this means that the parties live under the same roof, illness, holidays, work and other periodical absences apart."
  50. Whereas in the context of supplementary benefits, the six factors identified were separately stated, it seems to us that in any case where it falls to be decided whether two people are living together as husband or wife in the same household, factors 2 5 equally fall to be considered in relation to the question whether a household itself exists.
  51. We have been referred to only one reported decision upon section 1(3)(b) of the Fatal Accidents Act (1976) namely Pounder v London Underground Ltd [1995] PIQR P217 (QBD). The judge is not named and it is a short report of a preliminary issue decided entirely as a matter of fact in relation to the question of whether brief absences during the two year period prior to the death of the deceased were sufficient to break the period of two years living together prior to his death. It is of no assistance in this case.
  52. It seems to us that the various passages which we have quoted from the authorities are all of relevance in this case. Despite the division of the two year requirement set out in sub-paragraphs (2) and (3) of s.1(3)(b) of the Act, the court is concerned with the compendious question whether the claimant and the deceased lived in the same household as husband and wife during the whole of the two year period prior to the death of the deceased. That involved the claimant in proving that by March 1998 that position was established.
  53. We are also satisfied that, in examining that question, the propositions which the judge extracted from the authorities were correct. Indeed, Miss Gumbel QC for the claimant does not seek to suggest that the judge misstated the law which he was obliged to apply in reaching his decision. It is her case that, having stated the law correctly, he reached the wrong conclusion on the facts.
  54. It will be immediately apparent that, in challenging the conclusions of a judge who heard and gave a careful account of the evidence of the witnesses against a correct appreciation of the relevant law, the claimant faces an uphill task in applying for permission to appeal. This court will only interfere if it can be shown that the judge plainly misunderstood part of the evidence; or failed to make findings on crucial issues; or made findings which no reasonable tribunal could reach. The complaints raised by the claimant do not in our view come near to meeting those requirements. In these circumstances, it would be open to the court to dismiss the application in brief terms. However, we are cognisant of the difficult circumstances of the claimant and the history of the matter and, in deference to those considerations, we propose to address the points made on her behalf in some detail.
  55. Before doing so, we would only add that, unlike those authorities to which we have referred, the issue before the judge in this case was not whether a clearly established period of cohabitation had been suspended or come to an end, but when cohabitation of the nature and quality required by the statute first started, it being accepted that, once it had started, it continued to the date of the deceased's death. In particular, the question was whether by March 1998 it could be demonstrated that, albeit retaining a separate domestic establishment in the house in which he had lived for some years, the deceased had effectively 'moved' to live under the same roof as the claimant, 'illness, holidays, work and other periodical absences' apart. It is clear from the authorities that in principle a person may be a member of household A, albeit he has a second house or home elsewhere at B to which he departs temporarily from time to time. Thus, if he had made the move to which we have referred, the retention of the deceased's house/home in Doncaster pending its planned disposal was not, in itself, a barrier to establishing the ingredients of the statute in respect of the claimant's house/home in Sheffield. It could only be regarded as having that effect in so far as the fact, and the extent to which, the deceased maintained and made use of it and treated himself as still resident there, indicated that he and the claimant had not yet reached the position of treating Crookesmoor Road as their mutual home.
  56. The grounds of appeal

  57. The first ground of appeal is that the judge failed to make the finding which he was required to make in order to determine the preliminary issue, namely whether, and if so when, the claimant and the deceased were living together as husband and wife in the same household. It is said that a proper analysis of the evidence ought to have led the judge to a finding that the claimant and the deceased were so living from the summer of 1997. It is submitted that the judge's failure to find any specific date as to when the claimant and the deceased first satisfied that requirement is a fundamental flaw in his decision. It would have been helpful if the judge had sought to define with more precision the point at which he considered the statute satisfied, rather than simply finding that at some point after the pregnancy occurred the centre of gravity of the deceased 'began to shift' to the home of Miss Kotke. If the judge had been more precise, it would have enabled one to identify properly that feature of the situation and relationship, apart from the pregnancy itself, which he considered made a material difference to the position as it existed in summer 1997, the date proffered by the claimant, so that the requirements of the statute later became satisfied. However we do not consider the judge's approach to be fatal to his decision; the cases which Miss Gumbel has cited to justify that submission relate to defective findings of fact in wholly different fields of the law, and do not in our view assist her.
  58. The judge made clear that the crucial question was whether or not the statutory condition was satisfied by 5 March 1998 which date marked the starting date of the two year period required. The evidence was fluid for the purposes of pinpointing a date, in conditions where the deceased was usually away during the working week, had a weekend presence at Crookesmoor Road together with the 'odd change of clothes' kept there, but coupled this with the continuing maintenance of his own house, possessions and wardrobe at Woodley Grove as a separate residence; he continued to stay overnight there on occasions during the week and at weekends, and continued to treat it both as his electoral address and his home address so far as his employers were concerned. The judge found that the 'centre of gravity' of the deceased (i.e. the household in which he lived) did not shift until after the pregnancy was discovered (by which time it was too late for the two year test to be satisfied). It is noteworthy in that connection that the claimant had stated that it was really at that point that she and the deceased 'began to make plans' (see paragraph 16 above).
  59. The second ground of appeal is that, in the course of his judgment, the judge failed to set out correctly the evidence in a number of important respects and therefore the inferences which he drew were incorrect. It is submitted that:
  60. (1) The judge failed to have regard to the claimant's evidence that by summer 1997 she considered herself to be in a position equivalent to the deceased's wife (see para 9 above).
    (2) He disregarded the evidence of the claimant's sister to the same effect (see para 10 above).
    (3) He inferred without evidence that the claimant was not committed to the relationship in the same way as the deceased was.
    (4) Having accepted that the deceased could not sell his property because of negative equity and that a number of unsuccessful attempts were made to sell in 1997, the judge failed to infer that the only reason the deceased owned a separate property from that time was his difficulty in disposing of it and that, but for this difficulty, he would have maintained one house with the claimant. It is said the judge confused the maintenance of two houses with the maintenance of two separate households, whereas in reality there was only one household, which by then was Crookesmoor Road.
    (5) The judge failed to acknowledge the claimant's evidence that she made some financial contributions to Mr Snowdon. He failed to take into account both these payments and the 40 a month contribution of the deceased from 1996.
    (6) The judge, having accepted that there was a sexual relationship between the claimant and the defendant, failed to take it into account as an indication that they were living together as husband and wife in the same household.
    (7) It is submitted that the judge misunderstood the claimant's evidence about her reluctance to have children as an indication of lack of commitment, whereas their continued relationship illustrated the commitment of the deceased to living with her regardless.
  61. As to point (1), we do not accept that the judge failed to have regard to the claimant's evidence that, by the summer of 1997, she considered herself to be in a position equivalent to the wife of the deceased. He plainly referred to it at the point in his judgment where he accepted the claimant as an accurate and frank historian and stated:
  62. "When asked by the court, she said that she regarded herself and Mr Snowden as a couple from some time in 1997 and that was, as I have said, how they appeared to Miss Jane Kotke, the Claimant's sister, to whom she is undoubtedly very close."
  63. Similarly, so far as (2) is concerned, again the judge expressly referred to the sister's evidence. The sister's evidence, reflected in the judgment, was that by the time of the claimant's fortieth birthday (i.e. July 1997) it was clear to her that the claimant and the deceased "were living as a couple and that [the deceased] was very committed to [the claimant]". It seems to me clear that the judge accepted that evidence; certainly he had no basis on which to reject it. However, it is clear that he put his ultimate judgment upon the failure to establish that Miss Kotke and the deceased lived as a couple (i.e. man and wife) in the same household by March 1998, in the sense that his 'centre of gravity' had not moved there until after the pregnancy. The key to his decision in this respect is the passage where he stated:
  64. "There is a distinction in my judgment to be drawn between wanting to live in the same household, intending to do so, making plans to do so and actually doing so."
  65. In relation to point (3), it is certainly true that the judge found that the deceased wanted the relationship to move more quickly than the claimant, citing in that regard the 40th birthday conversation in the summer of 1997 and the deflected proposal of marriage in 1999. We do not read the judge as suggesting that either party was not 'committed' to a loving and potentially lasting relationship at the time. It is not clear why the judge stated he was not satisfied that the deceased's wish to live with the claimant was not reciprocated by Miss Kotke until the pregnancy was discovered, when she had clearly stated that in the summer of 1997 they were trying to spend as much time as they could together, bearing in mind that the job of the deceased took him away to other locations. However, that does not bite on the central aspect of the judge's decision that the effort to spend more time together had not yet reached the point where the deceased was living in Crookesmoor Road as his home.
  66. As to point (4), it is correct that, in referring to the submissions made on her behalf as to the various explanations there might be for the parties maintaining separate addresses, and in observing that Miss Kotke had given no evidence about any of this when one would have expected her to be able to do so, the judge did not refer to the evidence of Miss Kotke and the submission on her behalf that the reason for maintaining, rather than disposing of, the property was that the deceased and the claimant wanted to let the property and attempted to do so on a number of occasions after 1997, but were unable to achieve this for reasons beyond their control. The claimant had stated in evidence that there was a negative equity of about 4,000 in the property which was "a joint problem, because it stopped us from having a property together sooner". She said the negative equity "was not a lot but we decided to wait a while before selling the house in Doncaster and buying our own house together ...". It is submitted that, had the judge taken that evidence into account, he would, or at any rate should, not have regarded the deceased's maintaining a separate house and home in Doncaster as inconsistent with the parties living in the same household in Sheffield.
  67. We do not think that the point made is a substantial one. The judge was well aware of the negative equity situation. In setting out the history, he referred to it and to the unsuccessful attempts at sale. In the paragraph of his judgment focused upon by Miss Gumbel (the third paragraph of that section of the judgment quoted at paragraph 27 above), the judge was commenting upon the maintaining of a separate address in Doncaster in the sense of the deceased maintaining a separate home at that address (as the next paragraph makes clear), rather than moving in wholesale with the claimant. It could equally be said that, albeit it was the negative equity which stopped the claimant and the deceased getting a property together sooner, the intention which appeared to prevail, at least prior to the pregnancy, was to delay setting up a common household together until they were able to buy a house together for that purpose.
  68. It is complained that the judge did not refer in his judgment to a passage in the claimant's evidence when she said that, if Mr Snowden had been asked where he lived by a new acquaintance,
  69. "When first at Oracle [i.e. July 1996] Trevor would have said he lived in 'Doncaster'. As time passed this would have changed to 'Sheffield'."
  70. As the claimant did not further specify at what time the change would have occurred, that answer does not on the face of it advance matters much further. It is clear from the context of the claimant's detailed statements that she was referring to a time which had been reached before summer 1997. Nonetheless, it is right to observe that she was answering a hypothetical question and that the acceptance of the judge that she was an honest witness did not require him to accept the correctness of what was no doubt an honest answer. It was the submission of the defendant, and it is implicit in the judge's findings that the deceased was more likely to have said "I live in Doncaster, but spend most of my time in Sheffield with my girlfriend. We plan to set up home together when I am able to sell my house."
  71. As to point (5), it is correct that the judge failed expressly to acknowledge the evidence of the claimant to the effect that from time to time she made financial contributions to Mr Snowdon and vice-versa in the shape of grocery and household purchases, referring only to the monthly financial contribution of Mr Snowdon made from 1996. That contribution (10 per week) did not, even on the claimant's case, amount to sufficient to demonstrate a joint household. Because the deceased was staying regularly with the claimant at her house, he no doubt felt some contribution for his own keep was appropriate. However, the claimant also stated that later she and the deceased would take it in turns to pay for groceries for their meals with no hard and fast rule about who paid for what or when, the money being 'pooled' in that respect. In the course of her oral examination she elaborated by saying that, right from the start of their relationship, it was never "what's mine is mine and what's yours is yours". She described the deceased as a generous man who had borrowed a substantial amount of money from his father to buy his former partner out of his property, which did not leave him with much money whilst he was still working for Doncaster Council. Thus, prior to the move to Oracle she had tended to pay for things when they went out, the deceased putting in whatever he could. After the move and at the start of the contribution of 10 per week, the claimant said in evidence:
  72. " he would also in addition to that sometimes pick up the shopping on a Friday evening on his way back from work. He always brought me a bunch of flowers. Then there was other times he had some kind of bonus scheme at work and when he did really well the consultants were rewarded with a bonus and, depending on how much, he would either buy me a gift or just put more cash into the household. It just depended. As I say, there was no hard and fast rules. We just shared what we had."
  73. Miss Gumbel submits that this provides evidence of a sense of mutual obligation and commitment between the claimant and the deceased which grew into a sharing arrangement so far as everyday expenses were concerned. The fact that the mortgage and her own household expenses continued to be paid by Miss Kotke while the deceased was economically obliged to retain his house in Doncaster, did not, as Miss Gumbel submits, detract from the joint living arrangement which existed in Miss Kotke's household by March 1998 both as a matter of fact and perception.
  74. It is unfortunate that the judge did not mention the joint contribution to grocery and other purchases when the claimant and the deceased went shopping together. However, it is not clear that the deceased's contribution was on any larger scale than one might expect of someone in his position who was staying regularly in the claimant's household and causing her expense. Again, given that the point was eventually reached when the deceased's centre of gravity shifted, the evidence before the judge was broadly of an increasing presence and participation in the household over a continuum; as it seems to us, it was open to the judge to find that it was not one which, prior to the pregnancy, established a joint household as opposed to the contributions of a frequent guest.
  75. As to point (6), we do not think it can be said that the judge failed to take into account the sexual relationship between the claimant and Mr Snowdon. He recounted it as having started in 1995 and the entire history followed in that context. It was implicit in the judge's consideration of the claimant's and her sister's evidence as to the point at which the claimant and the defendant were to be regarded as a couple, as well as in his consideration of the importance of the pregnancy in the context of their relationship. As already indicated, the claimant's case did not founder upon the question of whether she and the deceased were living together as husband and wife so much as upon the question of whether, prior to the pregnancy, the deceased had become resident within her household.
  76. Finally, so far as point (7) is concerned, it is not apparent to me that the judge misunderstood the claimant's evidence about having children. The judge correctly summarised the evidence of the claimant as to a discussion between her and the deceased about the prospect of having children. He said this:
  77. "Miss Kotke, given her age, was reluctant to do so but aware that Mr Snowden would have loved to have children of his own. Miss Kotke told him and this is her evidence that she would understand it if as a result they could not have a future together, but, according to her "Trevor" Mr Snowdon "was quite clear in his intentions and he stated that he had made his choice to be with me, that he wanted to be with me regardless"."
  78. There is some force in the submission that the judge treated this as an indication of lack of commitment to the relationship on the part of the claimant prior to her pregnancy; we have already touched on this at paragraph 47 above. The fact that the claimant may have expressed understanding of possible reservations on the part of the deceased did not in itself amount to lack of commitment on her part, at any rate once she had received the assurance which she said was given.
  79. The question remains whether on the totality of the judge's findings and on application of the relevant law, the judge was correct in the conclusion to which he came, namely that he was not satisfied that the requirements of the statute were satisfied prior to the pregnancy.
  80. We are not persuaded that the judge's decision was wrong, or that what we regard as certain minor omissions picked up by Miss Gumbel invalidate his reasoning or findings. We consider the judge was correct in drawing a distinction between wanting and intending to live in the same household, planning to do so, and actually doing so. It was the judge's decision that, on all the evidence before him, the relationship of these parties did not cross the statutory threshold into the final stage. The evidence showed that the deceased retained his home in Doncaster, leaving there his wardrobe and possessions, and living out of an overnight bag (as it were) at Sheffield until such time as he could dispose of his own house and purchase a new home with the claimant. That situation, coupled with the claimant's acknowledgment that it was only after the pregnancy that they really began to plan a life together, was sufficient to justify the judge's finding that the situation only changed after the pregnancy when, as the judge held, the deceased's centre of gravity began to move and they really began to make plans. The mere sharing of the shopping expenses when the claimant and the deceased were together at Crookesmoor Road was evidence of a sharing relationship, but one which fell short of the establishment of a joint household.
  81. Conclusion

  82. We consider that the issues raised and argued merit the grant of permission to appeal. Nonetheless, and with considerable regret for the situation of the claimant, we dismiss the appeal.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/221.html