Family Law Hub

Woodward v Ashmore [2014] EWCA Civ 1200

Application to appeal a finding that there was a constructive trust based upon the common intention of the cohabiting parties and that under that constructive trust, each party had a 50 per cent share in the property. Permission to appeal was granted.

  • Neutral Citation Number: [2014] EWCA Civ 1200






    Royal Courts of Justice


    London, WC2A 2LL

    Thursday, 10 July 2014

    B e f o r e:



    WOODWARD (Appellant)


    ASHMORE (Respondent)

    DAR Transcript of the Stenograph Notes of

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    Mr M Wilkinson (instructed by Peter & Wright) appeared on behalf of the Appellant

    The Respondent did not appear and was not represented

    J U D G M E N T

    (As approved)

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    LORD JUSTICE JACKSON: This is an application for permission to appeal to the Court of Appeal. The appellant and the respondent began a relationship in 1985 when the appellant was aged 36 and a lecturer at an art college and the respondent was a 19 year old student at that college. They started living together at the appellant's cottage in Teffont, Wiltshire in 1989. In 1991, the appellant had brought a property called Higher Farmhouse to which the parties moved. In 1993, they had a son, Jack. In 2001, the appellant sold Higher Farmhouse and after a period during which the family lived in rented accommodation, he purchased Leworthy Barton at Bideford in Devon to which the family moved. The parties separated in March 2010. The final property in which they lived was a four bedroomed farm house with some 50 acres of land.

    In 2012, the respondent commenced proceedings in the Barnstaple County Court claiming an interest in Leworthy Barton pursuant to section 14 of the Trusts of Land and Appointment of Trustees Act 1996. The action was tried before District Judge Bull in December 2013. Both parties gave oral evidence. As far as their evidence conflicted, the judge for the most part, but not entirely, preferred the evidence of the respondent. The judge held that the respondent had made substantial direct and indirect contributions to the purchase of Higher Farmhouse and Leworthy Barton. The judge found that there was a constructive trust based upon the common intention of the parties. Under that constructive trust, each party had a 50 per cent share in Leworthy Barton. Accordingly, in the exercise of his statutory powers, the judge ordered that Leworthy Barton be sold and the proceeds be divided between the parties.

    The appellant is aggrieved by the decision of the Barnstaple County Court. He today renews at an oral hearing his application for permission to appeal to the Court of Appeal following the refusal of such an application upon the papers.

    The grounds of appeal really fall into two parts. The first ground of appeal is a challenge to the judge's finding of fact that the respondent made a financial contribution to the purchase of the latter two properties at Higher Farmhouse and Leworthy Barton. The second, third and fourth grounds of appeal are all challenges to inferences which the district judge drew from the facts which he found to be proved.

    Mr Wilkinson who appears today on behalf of the applicant submits that the judge fell into error in paragraph 11(s) of his judgment. In that paragraph, the judge found that £20,000 of the purchase monies for Higher Farmhouse came from the funds of a company called Design Plant Limited which the appellant and respondent had operated jointly. The judge noted the work which the respondent had done for Design Plant Limited and he took the view that £20,000 was a financial contribution made by the respondent to the purchase of Higher Farmhouse. Mr Wilkinson submits that the judge was not entitled to reach that conclusion on the evidence before him. In support of that submission, Mr Wilkinson has taken me to the accounts of the company and to some of the evidence which was before the court.

    I am extremely loathe to grant permission to appeal against a finding of fact in the circumstances of this case. The district judge heard the evidence given by the two key witnesses; namely, the appellant and the respondent. The district judge had a grasp of the details. This court does not normally interfere with findings of primary fact made by the court below.

    Nevertheless, since I am minded to give permission to appeal on other grounds, I have come to the conclusion that I should not fetter the matters of which the full court hearing the appeal may wish to consider. Accordingly, I shall adjourn to the full court the applicant's application for permission to appeal on ground one.

    I turn now to grounds two, three and four. Mr Wilkinson argues in these grounds that even accepting the district judge's findings of fact, the district judge erred in concluding that there was a constructive trust based upon common intention. Alternatively, if there was such a constructive trust, the district judge erred in concluding that the effect of that constructive trust was that each party should have a 50 per cent interest in Leworthy Barton.

    In his skeleton argument and more briefly orally, Mr Wilkinson has referred me to the relevant authorities, including, of course, in particular Stack v Dowden [2007] UKHL 1; [2007] 2 AC 432. It can be seen from that case that the starting point for a court's consideration is that the legal interests represent the beneficial interests of the parties and there was an onus on the party who submits that the beneficial interests differs from the legal interests to establish the requisite common intention. There is much guidance in Stack v Dowden and in the subsequent authorities as to how common intention may be established.

    I have come to the conclusion that the points which Mr Wilkinson raises on grounds two, three and four are matters which are properly arguable. I do not say he will necessarily win the appeal, but these are matters which properly merit full argument on appeal.

    In the result, therefore, I grant permission to appeal on grounds two, three and four and I adjourn to the full court hearing that appeal the applicant's application for permission to appeal on ground one.

Judgment, published: 03/09/2014


Published: 03/09/2014


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