Family Law Hub

Aspden v Elvy [2012] EWHC 1387 (Ch)

  • Case No: 1LS72368

    Neutral Citation Number: [2012] EWHC 1387 (Ch)




    The Court House

    Oxford Row

    Leeds LS1 3BG

    Date: 23/05/2012


    His Honour Judge Behrens

    sitting as a Judge of the High Court in Leeds

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    Sarah Greenan (instructed by Savage Crangle) for the Claimant

    Elizabeth Darlington (instructed by Lee & Priestley) for the Defendant

    Hearing dates: 23, 24 and 25 April 2012

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    Judge Behrens:

    1. Introduction

    1. This is a dispute between an unmarried couple as to the beneficial ownership of a property known as Outlaithe Barn, Lothersdale North Yorkshire. Outlaithe Barn formed part of a larger property known as Outlaithe Farm.

    2. On any view the facts are unusual. Furthermore there are significant disputes of fact. For the purpose of the Introduction they may be summarised.

    3. In September 1985 the parties met. In June 1986 Mr Aspden purchased Outlaithe Farm for £70,000. It comprised a farmhouse, a number of outbuildings, a derelict barn with planning permission for conversion to a dwelling and about 6 acres of land. Mr Aspden was registered as sole proprietor.

    4. Cohabitation began very shortly afterwards though there is a dispute as to whether there was a sexual relationship for about a year. There are 2 children from the relationship - Claire (d.o.b 7/10/1988) and Simon (d.o.b 3/4/1990).

    5. It is common ground that Ms Elvy was not working initially. She carried out some work to the property although there are disputes as to the extent of the work she carried out.

    6. From about 1988 Ms Elvy ran a cattery and dog kennels from the outbuildings under the name "Noah's Ark". Profits from the business were modest.

    7. Until 1988 Mr Aspden worked as a Manager for Webb's Poultry. In 1988 he suffered a heart attack at work. Soon after this he was dismissed. He has not worked since. He was thereafter involved in successful litigation against his former employers and unsuccessful litigation against his former solicitors and an accountant.

    8. The parties separated in late 1995 or early 1996. Ms Elvy left Outlaithe Farm with the 2 children and went to live nearby. There are disputed allegations of domestic violence on both sides. However Ms Elvy continued to run Noah's Ark and thus saw Mr Aspden on a daily basis.

    9. By a Transfer dated 21 January 2006 Mr Aspden transferred Outlaithe Barn to Ms Elvy. By that time the planning permission had lapsed. As a result Ms Elvy became registered proprietor of Outlaithe Barn which included almost the whole of the land which had been comprised in Outlaithe Farm save for the farmhouse itself.

    10. On 24 January 2006 Mr Aspden executed a home made will in favour of Ms Elvy.

    11. There is an acute conflict of evidence as to the circumstances in which the Transfer and the Will was executed and as to the parties' intentions at the time. The resolution of the conflict is central to the outcome of the dispute.

    12. Following the transfer Mr Aspden remained living at the farmhouse until it was sold in January 2008. The net proceeds of sale amounted to £373,000 of which £185,000 was needed to discharge creditors. Mr Aspden therefore received about £188,000. Thereafter Mr Aspden lived in a static caravan situated (without planning permission but with Ms Elvy's consent) on part of the land within the curtilege of Outlaithe Barn.

    13. Steps were taken to convert Outlaithe Barn into a dwellinghouse. There is a conflict of evidence as to whether this was a joint enterprise or whether the conversion was by Ms Elvy. It is, however, common ground that Mr Aspden did some labouring work and also used his JCB in respect of some of the outside work necessary for the conversion. There is a dispute as to how far this work was for the benefit of Outlaithe Barn or for his static caravan.

    14. It is common ground that Mr Aspden made a substantial financial contribution to the cost of the conversion works but the extent of the contribution is disputed. For much of the case there was a dispute as to the costs of the work. Although there was substantial documentation it was incomplete. However a careful analysis by Miss Greenan during the course of the trial showed that it was Mr Aspden's case that the works cost just over £90,000. In cross-examination Ms Elvy agreed with this figure. In those circumstances it is not necessary to set out the detailed analysis.

    15. There is, however, a substantial dispute as to the source of the £90,000. Mr Aspden contends that the majority of the £90,000 was provided by him. Miss Greenan's analysis suggests that at least £73,000 was provided by Mr Aspden. Ms Elvy does not accept this. She accepts that £20,000 in cash was provided between October 2006 and February 2007 and that cheques and/or cash totalling approximately £19,200 were paid between February and October 2008 but she disputes that any further sums were paid by Mr Aspden.

    16. There is also a dispute as to the reason why the payments were made and the work carried out. Mr Aspden contends that it was pursuant to a common intention that the parties would marry and cohabit as a family or a belief on his part that that was the position. Ms Elvy contends that there was never any common intention that they would marry or cohabit. She contends that the payments were gifts to her in recognition of her contributions to the family, and in respect of her interest in Outlaithe Farm.

    17. Mr Aspden puts his case on the basis of a constructive trust and/or proprietary estoppel. Ms Elvy contends that she is the absolute owner of Outlaithe Barn and denies that any proprietary estoppel arises.

    2. Witnesses

    18. The principal witnesses were, of course, Mr Aspden and Ms Elvy. They each gave evidence for approximately a day. It will, of course, be necessary to assess their evidence in order to resolve the case.

    19. Ms Elvy's case was corroborated by two short witnesses. One was their daughter, Claire, and the other a friend of her fathers who had some limited involvement in the building work to Outlaithe Barn. Neither of these witnesses added much to the dispute between the parties.

    3. The facts

    3.1 The parties

    20. Mr Aspden was born in 1938. In 1963 he married. The marriage lasted for 10 years. There were 2 children. According to Mr Aspden he was not involved in any other relationship until he met Ms Elvy in 1985.

    21. In 1985 Mr Aspden was employed as the factory manager at Webbs Poultry's Cullingworth plant. He was earning good money. He had a company car and limited expenses. He was or had been the owner of two properties - one in Wortwell, Norfolk and the other in Cullingworth. He sold the Norfolk property in April 1984. The net proceeds of sale amounted to £19,375. According to Mr Aspden he retained these moneys as savings. He told me he had other savings as well.

    22. Ms Elvy was born in December 1955. She was thus 18 years younger than Mr Aspden. Before she met Mr Aspden she had been involved in a lengthy relationship and had bought, together with her partner, a derelict property near Selby. She had been involved in the conversion works. That property was sold in 1985. As a result she received a cheque for £4,293. She was employed as an animal technician. In 1985 the job was temporary. It came to an end in November 1985. Thereafter she received unemployment benefit. She told me that she also made small amounts of money from horse dealing and making pottery.

    3.2 The acquisition of Outlaithe Farm

    23. The parties met in September 1985 as they were both members of a flying club. It is clear that the relationship progressed though there are different versions of the speed at which it progressed. According to Mr Aspden by June 1986 he had met Ms Elvy a dozen times, had some meals together and been taken to see her brother's family. According to Ms Elvy the relationship became romantic within a week and that at that time they got on very well.

    24. Mr Aspden was living in a bungalow in Cullingworth and it made sense to look for somewhere bigger. It is not clear when he started looking for property. Ms Elvy said that he only started looking because she wanted somewhere to keep her horses.

    25. In any event it is common ground that they looked at some properties together including Outlaithe Farm. The Valuation report for Outlaithe Farm describes it as:

    An old stone built farmhouse together with several original outbuildings and also new pig breeding buildings. The house is in need of a damp proof course, a central heating system, a wiring check and serious consideration must be given to an early re-roofing of the property. Outside the whole yard area needs cleaning up. Your applicant should not attempt to proceed with the purchase of the property unless he is prepared to spend considerable money on bringing the property round to a better standard.

    26. It went on to refer to the barn with planning permission for conversion to a dwelling. The property included 61/2 acres of land.

    27. Mr Aspden purchased Outlaithe Farm on 23 June 1986. He instructed Savage Crangle to act on his behalf. The completion statement indicates that the price was £70,000 and that there was a mortgage of £37,500. After taking into account the net equity of the Cullingworth property, the deposit of £4,200 paid and other expenses Mr Aspden had to find a balance of £15,046.84. Amongst the expenses was stamp duty of £700. There is no dispute that the bulk of the £15,046.84 was provided by Mr Aspden. However Ms Elvy contends she paid the stamp duty in cash. There is no documentary evidence to support or refute Ms Elvy's claim. It is, however, pointed out by Miss Greenan that Mr Aspden had plenty of money following the sale of the Norfolk property his other savings. He had a good job and could well afford the stamp duty. Ms Elvy on the other hand was of far more limited means. When she gave evidence, however, Ms Elvy was adamant that she paid the £700. She said it was her "horse money"; the proceeds of horse dealing. She paid it in cash and did not expect it back.

    28. It is Ms Elvy's case that she had an interest in Outlaithe Farm right from the date it was bought. She made the point that they were partners, they were going to get married and have a family. She accepted, however, that there were no express discussions at that time as to any interest that she might have had in Outlaithe Farm. As she said - "you don't do that when you are getting on well". She said that Mr Aspden referred to it as "our house".

    29. On any view Ms Elvy had moved in to Outlaithe Farm by the end of June 1986, that is to say within 7 days of completion. It is Ms Elvy's case that she moved in with Mr Aspden. Mr Aspden says he invited her to move in shortly after completion. Mr Aspden also says that there was no sexual relationship for about a year. He says Ms Elvy initially had her own room. Ms Elvy strongly refuted this.

    3.3 Work done to Outlaithe Farm

    30. Although Mr Aspden described the condition of Outlaithe Farm as "liveable in" it is clear (and was common ground) from the valuation report that it needed a lot of work. Both of the parties have asserted that they carried out work. It has been a feature of the evidence in the case that each side tended to decry the work done by the other as minimal and by themselves as being substantial.

    31. I do not intend to lengthen this judgment by setting out all the work that Ms Elvy says she carried out. It is set out in detail in paragraph 34 of her first witness statement. Mr Aspden comments on this work in paragraph 11 of his second statement and in cross-examination. In cross-examination he accepted that Ms Elvy had carried out some of the work she alleged but with the exception of the construction of the two stone walls described them as "tiny little jobs". In some of the cases he accepted that the work was joint work though he suggested that his share was greater than that of Ms Elvy. He also made the point that he paid for any materials involved. He also said that as Ms Elvy was out of work until 1988 and not making any contribution to the outgoings of Outlaithe Farm.

    32. It is not necessary for me to make detailed findings on the work carried out by Ms Elvy. I am, however, satisfied that she did carry out and assist in substantial improvement work to Outlaithe Farm and that the work she carried out would have increased its value. In the absence of any expert evidence it is impossible for me even to guess on the extent of the increase in value.

    3.4 Noah's Ark

    33. After housing their dog at local kennels the parties decided that there was a demand for kennels and a cattery. The outbuildings at Outlaithe Farm were sufficient to accommodate such a business.

    34. Mr Aspden makes the point that he paid for the overheads in respect of the business and that he carried the necessary work to the outbuildings. There was a dispute as to the extent of the work necessary.

    35. In any event Noah's Ark started trading in June 1988. The licence was in Ms Elvy's name. For the first year she had the benefit of an Enterprise Allowance Grant of £45 per week. The business was profitable but profits were modest. The only evidence of those profits is contained in documents prepared by Mr Aspden. Those documents suggest that the turnover between 1989 and 1995 was between £5,000 - £8,000 p.a and that the profits were between £1,000 and £2,700. It was not clear where these figures came from. Mr Aspden said they came from Ms Elvy. Ms Elvy did not accept this. Ms Elvy also said that the figures did not include monies received from the RSPCA which were paid direct to Mr Aspden's bank account by cheque. Mr Aspden accepted that the RSPCA monies were received by cheque but contended he had paid them over in cash to Ms Elvy.

    3.5 Mr Aspden's employment

    36. As already noted Mr Aspden was employed by Webb's Poultry & Meat Group (Holdings) Limited ("Webb's Poultry") as the factory manager at the Cullingworth plant. He had been part of a management buy out and had acquired a modest shareholding.

    37. In June 1988 Mr Aspden collapsed at work having suffered a heart attack. He has not worked since though he has been in receipt of various benefits.

    38. In September 1988 Mr Aspden was dismissed. As a result he lost the right to make a claim under the Permanent Health Policy included within his employment. It also affected his pension.

    3.6 Mr Aspden's litigation against Webb's Poultry

    39. [Much of the detail in this section and section 3.8 is taken from the Particulars of Claim and the judgment of Judge Grenfell in the litigation between Mr Aspden , Birchall Blackburn and The Smith Partnership which was provided to me during the course of the closing submissions in this case]

    40. In October 1990 Mr Aspden commenced proceedings against Webb's Poultry. In the action he sought to recover damages for loss of earnings, PHI benefits and loss in value of his pension entitlement. The action came first before Sedley J (as he then was) on 16th 17th 20th and 27th November 1995. In what Judge Grenfell described as a ground breaking decision Sedley J implied a term in Mr Aspden's contract of employment which entitled him to benefit from the PHI scheme. He found for Mr Aspden on liability with damages to be assessed. Webb's Poultry was dissatisfied with this result and intimated an intention to appeal. However its solicitor's stated that it would not appeal until after the assessment of damages.

    41. Mr Aspden instructed Mr Hirst of Birchall Blackburn to act on his behalf in the litigation and had the benefit of public funding to pursue the claim. In 1996 Mr Hacking of The Smith Partnership were instructed to act for Mr Aspden as expert forensic accountants to assist in formulating his losses. Mr Hacking prepared a number of reports.

    42. The assessment of damages came before David Steele QC (as he then was) on 6th and 7th November 1997. Prior to the hearing the sum of £100,000 was paid into Court. The judge gave guidance on a number of matters but directed that the accountants should meet and attempt to agree figures failing which the matter would be referred to a District Judge.

    43. Between 7th November 1997 and 4th March 1998 there were settlement negotiations. These are summarised in Judge Grenfell's judgment and I shall not lengthen this judgment by repeating them. In the result the action was settled for £111,000 plus £75,000 costs. It was part of the settlement that Webb's Poultry would not appeal the decision of Sedley J. Later that year he received a further £112,000 from the sale of his shares in Webb's Poultry.

    3.7 Separation in 1996

    44. The parties separated in early 1996. It is common ground that Ms Elvy and the two children went to live in Lothersdale some 2 miles away. For 2 years she lived in a two bedroomed cottage. She then moved to a larger flat. There is some dispute as to the extent to which formal maintenance was provided. Ms Elvy was in receipt of state benefits and it is common ground that Mr Aspden was not making payments to the Child Support Agency. However he was contributing substantial sums each week for the children. He has a diary entry for 3 January 2006 which suggests that he paid over £100 per week to the children for pocket money, taxis piano lessons and other activities. Ms Elvy accepted that this was accurate.

    45. During the period of separation Ms Elvy continued to run Noah's Ark. She thus visited Outlaithe Farm twice a day. The children had the benefit of using the property. In cross-examination she said "We were friends".

    46. There are disputes as to why the relationship terminated in 1996. It is common ground that the parties considered marriage at the beginning of the relationship. However there is no agreement as to why marriage never took place.

    47. It is common ground that the relationship had been in difficulties for some time. The parties had not shared a bedroom since the birth of Simon in 1990. Ms Elvy attributes the breakdown to frequent incidents of domestic violence by Mr Aspden. There were 2 occasions prior to the separation when the police were involved - one in 1993 and the other in 1994. The second incident was more serious and resulted in Mr Aspden being charged with an offence of violence and appearing before the Magistrates Court. However Ms Elvy did not pursue the prosecution and it was dropped.

    48. Mr Aspden denied that he was guilty of any domestic violence, accused Ms Elvy of drunkenness but he did accept that he was tense and possibly difficult to live with during the period he was involved in the litigation.

    3.8 Mr Aspden's litigation against Birchall Blackburn and the Smith Partnership

    49. In October 2003 Mr Aspden commenced professional negligence proceedings against Birchall Blackburn and The Smith Partnership. In those proceedings he alleged that Birchall Blackburn was negligent in compromising the action against Webb's Poultry. In particular he alleged that he had not authorised the compromise. He contended that The Smith Partnership were negligent in calculating and advising on the settlement figure. The Particulars of Claim contains a number of detailed allegations including allegations relating to the treatment of the income support, the interest on the past loss of earnings and in the calculation of the pension loss. It is not necessary to go into the details.

    50. The action came on for hearing before Judge Grenfell on 17th 18th 19th and 20th January 2006. As will appear shortly these dates are significant in the context of the Transfer of Outlaithe Barn to Ms Elvy. At the hearing all parties were represented by Counsel.

    51. On 18th January 2006 Judge Grenfell ruled that The Smith Partnership enjoyed immunity from suit in that their advice had been given in its capacity as experts preparatory to giving evidence in court. He accordingly dismissed the claim against The Smith Partnership with costs. Judge Grenfell's decision was in accordance with long established authority. It is, however, right to comment that in Jones v Kaney [2011] 2 WLR 823 a majority of the Supreme Court have very recently held that an expert no longer enjoys immunity from suit and can be liable for breach of contract and/or negligence for work done under his retainer.

    52. In his diary Mr Aspden described the decision of Judge Grenfell as "the worst day in my life".

    53. In any event the action against Birchall Blackburn proceeded. On 20th January 2006 Judge Grenfell reserved judgment which was formally handed down on 15th March 2006. Between 20th January 2006 and 15th March 2006 Mr Aspden dispensed with the services of his lawyers and thereafter acted as a litigant in person.

    54. In his judgment Judge Grenfell carried out a careful analysis of the settlement negotiations and the subsequent correspondence leading to the claim. He concluded in paragraphs 64 and 65 of the judgment:

    64. I regret to have to make the finding which is inevitable on any proper analysis of the facts of the case, that Mr Aspden has deliberately misrepresented the truth as to the circumstances in which settlement of his claim against Webb's Poultry was achieved in late 1997 and early 1998. He has misconstrued the documentation in an attempt retrospectively to construct a case that was simply never there. In doing so he has attacked the credibility of a highly competent and thoroughly honest solicitor whose actions in negotiating the settlement were at all times carried out with the interests of Mr Aspden uppermost. It is quite clear to me that at the time, everyone professionally advising him genuinely believed that only a fool would have failed to agree to the settlement on the terms agreed.

    65. In my judgment not only must this claim be dismissed, but it was a claim that should never have been brought.

    55. Following the judgment Mr Aspden made intemperate threats to kill against both Mr Hirst and Mr Hacking which he refused to retract. In the result he was served with an injunction and was prosecuted for a criminal offence. He received a suspended prison sentence and was ordered to perform unpaid work in the community.

    56. It is plain from Mr Aspden's witness statement that he does not accept Judge Grenfell's judgment and is still prepared to accuse Mr Hirst of "corruption and dishonesty".

    3.9 The Transfer of Outlaithe Barn in 2006

    57. As already noted there is a complete conflict of evidence as to the circumstances in which the Transfer took place.

    Mr Aspden's case

    58. Mr Aspden's version is set out in paragraphs 27 - 37 of his witness statement. In summary:

    1. He describes Judge Grenfell's ruling on Wednesday 18 January 2006 as "the worst day of my life". He said that he contemplated suicide and that his emotional state was low.

    2. On Friday 20 January 2006 he spoke to Ms Elvy on the telephone. She came to see him the following day (Saturday 21 January 2006). He told her that that if the worst came to the worst there would be a charge of the farm to cover any order for costs. He said he would ring fence the farmhouse which should be sufficient to cover both parties' costs and that he would draw out £60,000 in cash from his bank account to prevent it being used for costs.

    3. He said he thought he could convert the barn to be his new home. Ms Elvy said that she too would be losing her home because the child benefit would cease. That prompted Mr Aspden to say that Ms Elvy was welcome to come with the children and live with him in the barn. Ms Elvy accepted. He then proposed marriage suggesting a registry office. Ms Elvy did not accept at once. She said she would need time to think about it.

    4. Later on 21 January 2006 Ms Elvy suggested putting the remainder of the property in her name so as to make it more difficult for the creditors to recover it if the farmhouse was insufficient to pay the costs. There was a discussion about Inheritance Tax ("IHT"). Ms Elvy said that if everything was in her name there would not be an IHT bill if Mr Aspden died before her. Mr Aspden however was concerned that if he died first he would be left with an IHT bill on his own property. He suggested that it would not be in their interest to sign over all the property and he thus suggested dividing it into two parts. He says that they walked the boundaries to decide a suitable division of the remainder of the property.

    5. On Sunday 22 January 2006 Ms Elvy came to Outlaithe Farm before lunch. She was still keen that the whole of the remainder of the property should be put in her name. She said that because we were getting married IHT would no longer be an issue for either of them. She suggested that the parties make "back to back" wills.

    6. Mr Aspden accepted the suggestion. He told Ms Elvy that she was probably right and that it was best to put the remainder of the property in her name. Ms Elvy said that they ought to get a move on and invited Mr Aspden to give her the Deeds which she would take to a non-practising solicitor friend, Mr Tordoff.

    7. Ms Elvy took the Deeds and returned the same day. Mr Tordoff would do the conveyancing free of charge but required £220 for land registry fee. He gave her a cheque for £200.

    59. The following week he placed the farmhouse on the market. He went to the bank and withdrew £58,000 in cash. He obtained a home made will form and executed a will in favour of Ms Elvy. He subsequently visited Skipton Registry Office and obtained information about getting married. He contacted his ex wife who sent him a copy of his divorce certificate.

    60. In cross-examination Mr Aspden repeated this evidence and rejected Ms Elvy's case when it was put to him. He did however suggest that he signed the Transfer a week or so after the original conversation.

    61. He accepted that the parties never resumed cohabitation after 1996 and that they never slept in the same house. He did not mention marriage to Ms Elvy again whilst the conversion works were being carried out. He did not want to push her into marriage. He did not tell the children. He did show Ms Elvy the documentation from the Registry Office and he thought she was happy to want to get married. At no time did he provide her with a ring.

    Ms Elvy's case

    62. Ms Elvy's case is contained in paragraphs 61 to 69 of her witness statement and was amplified in the course of cross-examination. In summary:

    1. She describes Mr Aspden as becoming increasingly tense as the litigation against Birchall Blackburn and The Smith Partnership came to fruition. Some two weeks before the action was due to be heard he spoke to Ms Elvy at the kennels. He was in a state. He told her he was going to lose the farm. He would have to put the farmhouse up for sale so he could pay his debts.

    2. Ms Elvy had the Noah's Ark business there. In addition there were two elderly horses which would have to be put down. She suggested he did not have to sell the whole of the property He could split it to get the value from the house to pay the debts off.

    3. A day or two later Mr Aspden approached Ms Elvy and thrust the Deeds at her. He told her to take them and put the property into her name. She was surprised and queried his reasoning. He said the property was going to come to her anyway so she might as well have it then.

    4. Ms Elvy went to see Mr Tordoff. He advised her that she should not put the whole property into her own name as she would be party to a fraudulent transaction in an attempt to deprive the creditors of assets and funds. Mr Tordoff suggested that the property be divided so as to ensure that the value of Mr Aspden's part exceeded the amount due to creditors.

    5. Ms Elvy explained this to Mr Aspden who agreed. Ms Elvy returned to Mr Tordoff who agreed to draw up the plans for the Transfer and prepare any relevant Deeds. He said that it would take about a fortnight. Ms Elvy recalls that it did take about a fortnight. She also recalls that they walked the boundaries to identify the boundaries of the part to be sold off.

    6. Once Mr Tordoff had prepared the relevant documents she collected them and took them with the witness (her neighbour Mrs Leigh) to be signed. She then took them back to Mr Tordoff who informed her that he needed £220 for the Land Registry fee. The next day she went back to Mr Aspden who gave her a cheque for the £220 fee.

    63. In cross-examination she denied that she told Mr Aspden that she was going to lose her home. She was not. There was no question of her losing the housing benefit at that time. She denied that Mr Aspden said he would convert the barn. There was no suggestion that the family would go and live at the barn together under one roof and no proposal of marriage at the time. She agreed that there had been a suggestion of marriage when Claire was a baby and she also said that Mr Aspden proposed marriage some time between the Transfer and the 15th March 2006. She refused. She completely refuted that there was any conversation about IHT. She said she knew nothing about IHT. She never said "As we are getting married" on the Sunday morning. There was no question of marriage.

    64. She did not suggest that the parties make back to back wills. She did not know what it meant. Mr Aspden did offer to make a will in her favour and she was present when it was made. It was witnessed by her two neighbours.

    The documents

    65. A number of documents are relevant to the conflict:

    The Transfer

    66. The TP1 is dated 21st January 2006 (the Saturday). The date appears to be in Mr Tordoff's handwriting. It is signed by Mr Aspden and Ms Elvy and witnessed by Mrs Leigh. It contains a plan also signed by Mr Aspden and Ms Elvy.

    The Office Copy

    67. The Office copy of Outlaithe Barn (Title NYK 317246) shows Ms Elvy as the registered proprietor with effect from 25 January 2006. Thus the application for registration must have been received on that date. It also shows a minor amendment to the eastern boundary was registered on 20 February 2006.

    The cheque for the Land Registry Fee

    68. Mr Aspden's cheque book stubs show that the cheque in favour of the Land Registry was dated 22nd January 2006.

    Mr Aspden's Will

    69. The Will is dated 24th January 2006. It leaves Mr Aspden's entire estate to Ms Elvy. It is witnessed by Elizabeth Leigh and Denise Teal.

    Mr Aspden's Bank Statement

    70. Mr Aspden's bank statement shows that £58,000 was transferred into his account on 23rd January 2006 and out of the account on 27th January 2006.

    Newspaper Advertisement.

    71. On 15 September 2006 an advertisement appeared in The Craven Herald for the sale of Outlaithe Farm. The advertisement states the instructions to the estate agent were new. If so it shows that Mr Aspden must be wrong when he suggested that he went to the agents within a week of the transfer in January 2006.

    3.10 The sale of Outlaithe Farm

    72. Mr Aspden completed the sale of Outlaithe Farm on 16th January 2008 for £385,000. Out of this sum a total of £185,574.80 was paid to his litigation creditors (i.e. Birchall Blackburn and The Smith Partnership). After paying the costs of the sale Mr Aspden received a total of £188,820.91.

    73. Mr Aspden lived in the farmhouse until it was sold. Thereafter he has lived in a static caravan situated on part of the remaining land. The static caravan was purchased in October 2006 at Ms Elvy's suggestion for about £10,000 and paid for out of the £58,000 which he withdrew from the Bank on 27th January 2006.

    74. Ms Elvy at no time objected to the siting of the caravan. However Mr Aspden is currently faced with enforcement procedures by the local authority and will have to move by the end of May 2012.

    3.11 Conversion of Outlaithe Barn

    75. It is common ground that Outlaithe Barn was converted to a dwellinghouse between 2006 and 2009. There are disputes between the parties both as to the extent of Mr Aspden's involvement and as to his financial contribution to the works.

    The works

    76. Ms Elvy employed an architect (Mr Gill) to prepare plans for the application of planning permission. Planning permission was applied for on 31st May 2006 and granted on 25th July 2006.

    77. In October and November 2006 Ms Elvy also organised structural and geological reports.

    78. Work commenced in October 2006 and (in effect proceeded in two phases). The first phase ended in early March 2007 when both Mr Aspden and Ms Elvy ran out of money. It recommenced in February 2008 after the completion of the sale of Outlaithe Farm.

    79. In paragraph 52 of his witness statement Mr Aspden describes the work he did. He says that he did labouring work to assist the builders; the drove his JCB. He did some tradesman's work. In the course of his evidence he produced a chronology in which he suggested that between January and October 2006 he did work on the kennels, he dug a watering/drainage system. Between October 2006 and March 2007 he assisted the builder often using his JCB. Thereafter he was involved in assisting the plasterer in respect of plastering and insulation to the walls and ceilings. In cross examination he denied that his contribution was minimal. In re-examination he gave further detail of the work he had carried out. He said he was involved with the tearing down of the lean to. He had to dig round the barn to its foundations to insert a new drainage system, he had to separate the kennels from the main farmhouse and to carry out road works. It was suggested that some of these works were for the benefit of the static caravan but he pointed out that they benefited the barn as well.

    80. Although there were disputes as to the extent of the work carried out by Ms Elvy Mr Aspden in fact conceded that she had done much of the work she said she had done. It is in my view not necessary to set out the work carried out by Ms Elvy in detail.

    The cost of the works

    81. As Ms Elvy was prepared to accept that the works cost about £90,000 it is not necessary for me to set out the rival contentions as to the overall costs.

    82. At C129 - C134 Mr Aspden has set out in Schedule Form what he describes as an incomplete list of the payments he has made. Including the cheque for £220 to the Land Registry he asserts that he made payments either in cash to Ms Elvy or cheque to suppliers totalling £30,078-04 between January 2006 and December 2006 and £12,146 between January 2007 and 2 March 2007. The majority of these were cash payments but there were cheque payments totalling £3,547. He points out that as he had spent the whole of the £58,000 he must in fact have spent rather more. However if one deducts the £10,000 cost of the caravan there is not a massive discrepancy between the two sets of figures. Amongst the cash payments are 6 payments for £5,000 all of which are corroborated by entries in Mr Aspden's diary.

    83. Ms Elvy accepted that 4 payments of £5,000 were made by Mr Aspden as these were corroborated by an entry in her "Red Book" but she denied that any other payments were made. In some cases she asserted that the payments were not made. For example she said that Mr Aspden did not pay £800 for the architect, (Mr Aspden's schedule shows a figure of £2,000 to include the architect), he did not buy blue Visqueen. In some cases she said that the moneys did not relate to the barn conversion. This included entries (£890) for the electrical supply for the kennels, or the stone that was needed for access to his caravan. She was unable to provide any other documentary evidence relating to the cash payments. She could not give details of when the £20,000 was paid. She however was adamant that she did not receive any more.

    84. Mr Aspden's schedule for 2008/2009 shows further cheques/cash for the period from February 2008 to June 2009 amounting to approximately £18,800 in respect of the project. There was very little challenge to these payments. In fact the only dispute seemed to be as to whether Mr Aspden paid £4,400 for the roofer in accordance with the schedule or £4,000 in accordance with Mr Aspden's diary entry. However the diary entry in fact suggests that the total payment was £4,600.

    85. If Mr Aspden's schedule is correct he paid at least £60,000. In fact he suggests he paid rather more than this. First he suggests he spent £48,000 in the first period rather than £42,000 in accordance with his Schedule. Second he suggests he spent pension moneys of £14,000of pension moneys in 2008 and 2009 whereas the cash payments in his schedule only amount to some £2,100.

    86. In cross-examination Ms Elvy described these payments as gifts. He made them because he expected the children to have a better home. Mr Aspden said he made them because he believed he had an interest in Outlaithe Barn and because the parties would live there together as a family home.

    87. There was considerable debate as to the source of Ms Elvy's funds. If, as she accepted the works cost about £90,000 and Mr Aspden only provided £38,500 (£20,000 in 2006/7 plus £18,500 in 2008/9) she had to find £51,500 of her own. She said she had £20,000 in cash, £10,000 in building societies and she inherited £14,000 in 2009 when Elizabeth Leigh died. She pointed out that she was working in the kennels in 2008. She had tax credit. She moved into Outlaithe Barn in May 2008 and thereafter had no rent to pay. She asserted that she sold things in 2006 to get the money.

    3.12 These proceedings

    88. The parties finally fell out in June 2009 when Ms Elvy informed Mr Aspden that she had formed another relationship. She also indicated that she was proposing to sell Outlaithe Barn. In October 2009 solicitors on behalf of Mr Aspden wrote to Ms Elvy setting out his case in some detail and asserting an interest and agreement as to the division of the proceeds of sale.

    89. Ms Elvy's solicitors replied on 17 November 2009. They alleged that the relationship was ended in 1996, that there was never any intention of converting Outlaithe Barn into a home for both of them. It was accepted that Mr Aspden made some payment by way of gift but denied that those gifts created any interest in the property. In a letter dated 11 January 2010 they put the matter thus:

    There was never any understanding or intention that there would be any continuing interest in favour of [Mr Aspden] in the property. It is accepted that your client made further small gifts of money when our client began renovating the barn but not specifically for this purpose. To suggest that the gifts amounted to £100,000 is fanciful and we question whether your client would e able to provide evidence of such payments.

    90. After further correspondence proceedings were eventually commenced in March 2011 in the County Court. They were transferred to the High Court and eventually were tried over 3 days in April 2012.

    4. The Law

    91. I am grateful to Miss Greenan and Miss Darlington for the helpful submissions of law in their respective skeleton arguments. I also note that in her closing submissions Miss Greenan accepted that there was no difference between Counsel as to the relevant law. However as there is considerable recent authority on both the beneficial entitlement to a shared home and proprietary estoppel it is in my view necessary for me to summarise the legal principles to be applied.

    4.1 Beneficial Entitlement1

    92. The two recent House of Lords/Supreme Court cases of Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2011] 3 WLR 1121 both deal with a situation where the legal title to the property by two persons. There are however passages in the speeches which refer specifically to the situation where the legal title is vested in one person.

    93. The Stack v Dowden approach applies in a domestic context where two people buy property together and there is no express declaration of trust. As explained in Jones v Kernott the approach may be summarised as follows:

    1. The starting point or presumption is that the parties hold the property as beneficial joint tenants. The presumption is difficult to displace or rebut. It can be rebutted where it is established that the parties actually intended at the time of acquisition of the property to hold in equity otherwise than as joint tenants. Guidance is given in paragraph 69 of the speech of Baroness Hale as to the factors necessary to rebut the presumption.

    2. At the first stage the intention is to be deduced objectively - it is the intention which was reasonably understood by the other party to be manifested by that other party's words or conduct. If the intention so deduced indicates in what shares the property was to be held the court gives effect to that intention.

    3. If the intention so deduced does not indicate in what shares the property was to be held then (at this stage) the court is obliged to decide upon their respective entitlement by reference to what is fair having regard to the whole course of dealing in relation to the property

    4. If the parties' intention changes subsequently the court is obliged to give effect to the changed intention. In such a case the court must first seek to ascertain the changed intention objectively and where possible give effect to that intention. Where that search proves fruitless the court is entitled to decide upon that intention by reference to what is fair.

    94. In paragraphs 63 and 69 of Stack v Dowden Baroness Hale said:

    63. ...There are differences between sole and joint names cases when trying to divine the common intentions or understanding between the parties. I know of no case in which a sole legal owner (there being no declaration of trust) has been held to hold the property on a beneficial joint tenancy. But a court may well hold that joint legal owners (there being no declaration of trust) are also beneficial joint tenants. Another difference is that it will almost always have been a conscious decision to put the house into joint names. Even if the parties have not executed the transfer, they will usually, if not invariably, have executed the contract which precedes it. Committing oneself to spend large sums of money on a place to live is not normally done by accident or without giving it a moment's thought.

    69. ...When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties' individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.

    In paragraphs 16 and 17 of the judgments of Lord Walker and Baroness Hale in Jones v Kernott they said:

    16. ...To the extent that we recognise that a "common intention" trust is of central importance to "joint names" as well as "single names" cases, we are going some way to meet that hope. Nevertheless it is important to point out that the starting point for analysis is different in the two situations. That is so even though it may be necessary to enquire into the varied circumstances and reasons why a house or flat has been acquired in a single name or in joint names...

    17. The starting point is different because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally what is now termed a "common intention" constructive trust. The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.

    95. Miss Greenan also referred me to the approach of Warren J in Thomson v Humphrey [2009] EWHC 3576 who made much the same point about the necessity to establish some sort of implied trust. He went on to state that to establish the implied trust it was necessary to go back to Lloyds Bank v Rossett [1991] 1 AC 107. It is, however to be noted that in paragraph 26 of his speech in Stack v Dowden Lord Walker expressed the view that the law had moved on since Lord Bridge's speech in that case.

    96. Whilst it is clear that the parties intentions (objectively ascertained) can change Miss Darlington drew my attention to the decision of the Court of Appeal in James v Thomas [2007] EWCA Civ 1212. In particular she referred me to paragraph 24 of the judgment of Sir John Chadwick where he said:

    "... if the circumstances so demand, a constructive trust can arise some years after the property has been acquired by, and registered in the sole name of, one party who (at the time of the acquisition) was, beyond dispute, the sole beneficial owner: Gissing v. Gissing [1971] AC 886 901 D-E and Bernard v. Josephs [1982] Ch 391, 404 E-F. But, as those cases show in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition."

    97. Jones v Kernott was, however, a case where such an intention was inferred by the county court judge whose decision was upheld by a deputy high court judge, one member of the Court of Appeal and five members of the Supreme Court.

    4.2 Proprietary Estoppel

    98. It is now clear that whilst there are similarities between the principles necessary to establish an estoppel and a constructive trust the principles are not identical. In Thorner v Major [2009] 1 WLR 776 Lord Scott identified the ingredients necessary to establish proprietary estoppel in paragraph 15 of his opinion:

    [15] Lord Walker, in para 29 of his opinion, identified the three main elements requisite for a claim based on proprietary estoppel as, first, a representation made or assurance given to the claimant; second, reliance by the claimant on the representation or assurance; and, third, some detriment incurred by the claimant as a consequence of that reliance. These elements would, I think, always be necessary but might, in a particular case, not be sufficient. Thus, for example, the representation or assurance would need to have been sufficiently clear and unequivocal; the reliance by the claimant would need to have been reasonable in all the circumstances; and the detriment would need to have been sufficiently substantial to justify the intervention of equity.

    99. It is clear from the opinions that these elements are fact sensitive and hugely dependent on the context. The assurance can take a number of different forms including an express representation, passive or active encouragement of expenditure of money or alteration of legal position.

    100 The Court has a discretion as to how the equity is to be satisfied in any particular case. It has been said that this is an area where equity is displayed at its most flexible; however it has also been said that the court must take a principled approach and cannot exercise a completely unfettered discretion according to the individual judge's notion of what is fair in any particular case.

    101. In Jennings v Rice [2003] 1 P & C R 8 Aldous LJ put the matter thus at paragraph 36

    There is a clear line of authority from at least Crabb to the present day which establishes that once the elements of proprietary estoppel are established an equity arises. The value of that equity will depend upon all the circumstances including the expectation and the detriment. The task of the court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.

    5. Findings of Fact/ Conclusions .

    102. I regret to say that I did not find either Mr Aspden or Ms Elvy to be wholly reliable witnesses. As will appear below Mr Aspden's account is difficult to square with the contemporaneous documents. He persisted in making serious unwarranted allegations against his former solicitor and forensic accountant notwithstanding the clear findings of Judge Grenfell. Whilst he was prepared to make some concessions in the course of his evidence as to the work carried out by Ms Elvy on Outlaithe Farm these were not concessions that he made in his witness statement. Furthermore notwithstanding the concessions he still significantly underplayed Ms Elvy's role in the improvements to Outlaithe Farm and in the conversion of Outlaithe Barn.

    103. Ms Elvy gave her evidence very forcefully. She made few (if any) concessions during the course of her evidence and treated many of Miss Greenan's questions as if they were preposterous. Her evidence as to the financing of the conversion was particularly unreliable. Initially she described Mr Aspden as making small gifts of money. It was only when she came to her second witness statement that she asserted that she had provided £20,000 in cash towards the cost of the works. The sources of this £20,000 are particularly difficult to ascertain. Furthermore as Miss Greenan pointed out in her closing submissions it is by no means clear that the whole of the inheritance that Ms Elvy received from Mrs Leigh was spent on the improvements.

    104. In those circumstances it is not possible to resolve the disputes of fact simply by preferring the evidence of either Mr Aspden or Ms Elvy. It is necessary to look at individual issues so as to see which of the two accounts is the more probable.

    105. I do not intend to make findings on all of the factual issues between the parties but it is necessary to make findings on a number of issues.

    5.1 Acquisition of Outlaithe Farm

    106. I am not satisfied that Ms Elvy paid any part of the purchase price when Outlaithe Farm was acquired in 1986. I accept Mr Aspden's evidence that he had more than sufficient funds to pay the stamp duty. Ms Elvy was out of work and there was no reason for her to pay the £700.

    107 I am equally not satisfied Ms Elvy has established that it is possible to infer a common intention that she should have an interest in Outlaithe Farm at the date of its acquisition. It was vested in Mr Aspden's sole name. He paid all of the outgoings including the mortgage. The fact that the parties started cohabitation at the end of June 2006 and may (if Ms Elvy is correct) have referred to it as "our house" is to my mind insufficient. As she said there were no express discussions as to any interest she might have.

    It follows that in my view Mr Aspden was entitled to Outlaithe Farm both at law and in equity at the time of its acquisition in 1986.

    5.2 Work carried out by Ms Elvy on Outlaithe Farm.

    109. I have already expressed the view that Ms Elvy carried out substantial work on Outlaithe Farm. I do not regard her work as trivial and I have little doubt that her work contributed to an increase in value of Outlaithe Farm. However there is no direct evidence of the extent to which that work contributed to its value.

    110. I accept that it is at least arguable that the work carried out by Ms Elvy gives rise to an inference that the common intention of the parties had changed so that it was intended that Ms Elvy should have some interest in Outlaithe Farm.

    111. However it is equally arguable that there was no such change. I note the caution expressed by Sir John Chadwick in the passage in James v Thomas to which I have referred. Furthermore any interest acquired by Ms Elvy would be likely to be relatively modest.

    112. In the end, as I indicated in the course of argument, I do not find it necessary to determine whether Ms Elvy did in fact acquire such an interest or the extent of any such interest.

    5.3 Domestic Violence

    113. I am unable to make any findings on the allegations of domestic violence. The incidents took place a long time ago. The fact that Ms Elvy withdrew the prosecution makes it difficult for me to make an adverse finding against Mr Aspden. On the other hand it does not prove that the incident did not happen in the way Ms Elvy suggests. As is well known there are many reasons why allegations of domestic violence are not pursued. It is, however, clear that Ms Elvy suffered quite serious injuries as a result of the incident. Furthermore the fact that she involved the police on at least 3 occasions (there was a third disputed incident in 2002) is, as Miss Darlington pointed out, an indication that Ms Elvy believed that she was the victim of violence at the hands of Mr Aspden.

    114. Furthermore as is accepted by Mr Aspden he threatened violence against Mr Hirst and Mr Hacking and refused to withdraw the threat when invited by Judge Grenfell to do so.

    5.4 The Transfer of Outlaithe Barn

    115. There are to my mind considerable difficulties with Mr Aspden's account of the circumstances in which the Transfer took place.

    1. The Transfer is dated 21 January 2006, yet on Mr Aspden's account he did not agree to the transfer until the following day. It is, of course, possible that the Transfer has been misdated by Mr Tordoff but there is no reason why he should have put the wrong date on it.

    2. Mr Aspden's chronology gives a very short timescale for the preparation of the Transfer by Mr Tordoff. The 22 January 2006 was a Sunday. It is, of course possible that Mr Tordoff could have drawn up the Transfer (including the plan) on the 22 January 2006 but it is inherently unlikely. In evidence Mr Aspden thought that there was about a week between the agreement and the date when it was signed but this is not possible on Mr Aspden's account. First it is common ground that Mr Aspden wrote the cheque to the Land Registry on 22 January 2006. There is no reason why he would have done that before the transfer was executed. Second it is clear that the Land Registry received the application on 25 January 2006. It must therefore have been sent by 24 January 2006 at the latest.

    3. If, as Mr Aspden asserts, the parties agreed make back to back wills why did Ms Elvy not make such a will on 24 January 2006? Mr Aspden purchased a will form from W H Smith. Why did he not purchase two forms? Ms Elvy was present at and organised the execution of Mr Aspden's will. It would have been the simplest thing for her to execute her will at the same time.

    4. If, as the advertisement in the Craven Herald suggests the instructions were "New" Mr Aspden must be wrong when he says he put Outlaithe Farm on the market in January 2006.

    5. Mr Aspden's account is extremely complicated and convoluted involving a number of different proposals and discussions including discussions about disposals aimed to defeat creditors and involving spouse exemptions for IHT. It did not surprise me in the least when Ms Elvy said she knew nothing about IHT.

    6. If, as Mr Aspden asserts Ms Elvy agreed to marry him it is somewhat surprising that he did not mention marriage again to her during the course of the conversion works and did not tell the children.

    116. Ms Elvy's account has the merit of being far more straightforward and being consistent with the available documents. It is true that on her case Mr Aspden approached her some two weeks before Mr Aspden's case against Birchall Blackburn and The Smith Partnership was due to be heard and he did not at that time know that he faced an adverse order for costs. However he did know that there was a risk that he would face such an order. Furthermore by the time Mr Aspden signed the Transfer he knew that he had lost his action against The Smith Partnership and may well have realised that the case against Birchall Blackburn had not gone well. Ms Elvy's account gives a reasonable amount of time for Mr Tordoff to prepare the Transfer incorporating the plan of the boundaries, explains why the Land Registry cheque was dated 22 January 2006 and also accounts for the fact that she did not make a will on 24 January 2006.

    117. I accept that Mr Aspden made some enquiries relating to a possible marriage to Ms Elvy in 2006. Those steps are equally consistent with a proposal of marriage in March 2006 and a refusal by Ms Elvy.

    118. In all the circumstances I prefer the evidence of Ms Elvy on this crucial issue. It follows in my view that the Transfer of Outlaithe Barn by Mr Aspden was and was intended to be an outright transfer of his legal and beneficial interest in it. In my view there was nothing in Mr Aspden's words or conduct that would entitle me to infer that there was any common intention that he should retain any interest in Outlaithe Barn.

    119. In my view Ms Elvy became the legal and equitable owner of Outlaithe Barn following the completion of the registration on 25 January 2006.

    5.5 Conversion of Outlaithe Barn

    The work carried out by Mr Aspden

    120. I accept the evidence of Mr Aspden as to the extent of the work he carried out. I also accept that the work substantially increased the value of Outlaithe Barn (which of course included the outbuildings and the kennels). Just as Mr Aspden sought to underestimate the value of the work carried out by Ms Elvy, Ms Elvy sought to underestimate the value of Mr Aspden's work. There is no valuation evidence which enables me to form any view of the extent to which his work enhanced the value of Outlaithe Barn. On any view, however, Mr Aspden saved substantial costs in labouring and in the hire of a JCB.

    The financial contribution of Mr Aspden

    121. In general I prefer the evidence of Mr Aspden to that of Ms Elvy on this aspect of the case. Ms Elvy's case has changed since the dispute began. Initially she said that Mr Aspden had only made "small gifts". Later she acknowledged that Mr Aspden had provided some £15,000 in cheques as well as the £20,000 in cash she had acknowledged. At the trial it was clear that she accepted nearer £19,000 in cheques. It is extremely difficult to understand how Ms Elvy could have found the funds. Her evidence on this aspect of the case was, for the reasons set out above, unsatisfactory. With the exception of the £14,000 allegedly paid from his pension Mr Aspden's evidence was supported to a large extent by entries in his diary or cheque book stubs. It is true that in one sense of the word these entries may be regarded as self serving but I did not form the view that Mr Aspden would place entries in his diary simply for the purpose of bolstering his case.

    122. Doing the best I can with the figures in Mr Aspden's schedule and accepting that Mr Aspden did in fact make some payments not in his schedule I hold that Mr Aspden's financial contribution towards the conversion was between £65,000 and £70,000.

    5.6 Interest acquired by Mr Aspden

    123. This is not a case where there were any express discussions that Mr Aspden should obtain an interest in Outlaithe Barn. Thus in order to succeed in establishing an implied trust Mr Aspden must establish that the common intention of the parties (objectively ascertained) was that he should have an interest as a result of the substantial contributions both in financial and physical terms that he made to the works. Mr Aspden's case is that he was because he was expecting to be able (at some time in the future) to move back in to Outlaithe Barn. Ms Elvy's case is that the contributions were simply gifts to her made no doubt in recognition of the relationship, and the fact that she as the mother of his two children.

    124. I have not found the resolution of this question easy. In the end I cannot accept that the proper inference is that the contributions were intended to be gifts. The moneys involved represented a very substantial part of Mr Aspden's assets after he had paid off his creditors. If they were intended as gifts he would in effect leave himself with nowhere to live except the caravan. I think that Mr Aspden did hope and expect to be able to live in and have an interest in Outlaithe Barn when it was complete and that Ms Elvy was fully aware of it.

    125. I think that the proper inference from the whole course of dealing is that there was a common intention that Mr Aspden should have some interest in Outlaithe Barn as a result of the very substantial contributions made to the conversion works. I am fortified in this by observations of Griffiths LJ in Bernard v Joseph [1982] 3 AER 162, 171

    It might in exceptional circumstances be inferred that the parties agreed to alter their beneficial interests after the house was bought; an example would be if the man bought the house in the first place and the woman years later used a legacy to build an extra floor to make more room for the children. In such circumstances the obvious inference would be that the parties agreed that the woman should acquire a share in the greatly increased value of the house produced by her money ...

    126. It seems to me that the contributions made by Mr Aspden are akin to the case envisaged by Griffiths LJ.

    127. Valuation of Mr Aspden's interest is also difficult. There were no express discussions and the only valuation I have is that the current value of Outlaithe Barn is of the order of £400,000. In those circumstances I have to impute an intention by reference to what is fair having regard to the whole course of dealing between the parties. The submissions of Counsel suggested wildly different results. Miss Darlington suggested that the interest should be limited to the expenditure itself or at most be 10%. Miss Greenan suggested (probably on the basis of the primary case) that it should be 75%.

    128. In the end I have decided that the appropriate fair assessment of the interest is 25%. To my mind that represents a fair return for the investment of £65,000 to £70,000 and the work carried out by Mr Aspden in a property now worth £400,000. The figure is somewhat arbitrary but it is the best I can do with the available material.

    129. In these circumstances it is not necessary to consider in detail the claim based on proprietary estoppel. In my view the result would be the same. There were no express representations but Ms Elvy stood by and encouraged Mr Aspden to carry out the work and invest £65,000 - £70,000 in it knowing, as I infer, that the investments were not intended to be gifts and that Mr Aspden did hope and expect to be able to live in and have an interest in Outlaithe Barn. In those circumstances an equity arises. The valuation of the equity requires me to do justice having regard to the proportionality between the expectation and the detriment. I think that a 25% share in Outlaithe Barn satisfies that test.

    6. Conclusion

    130. I would declare that Outlaithe Barn is held by Ms Elvy as to 75% for herself and 25% for Mr Aspden.

    1 Much of this part of the judgment is derived from an extra judicial lecture given by HH Judge Stuart Bridge to the Judicial College and for which I am greatly indebted.

Judgment, published: 24/05/2012


See also

Published: 24/05/2012


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