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Holman v Howes [2006] EWCA Civ 589

This was an application for permission to appeal an order in a case concerning the beneficial ownership of a property in which the applicant and her former husband had lived for a short while. The application was granted.

The appeal was from a decision in the High Court of the Chancery Division (see The applicant sought to challenge that decision on two grounds: firstly through proprietary estoppel which would give the claimant some right of occupation by way of an interest in the land; secondly, that the trial judge had only taken into account the dealings before purchase of the property and not any subsequent dealings. With some misgivings, the appeal judge conceded that an appeal, on Gissing v Gissing principles, had some prospect of success.



Neutral Citation Number: [2006] EWCA Civ 589





Royal Courts of Justice


London, WC2

Tuesday, 28th March 2006

B E F O R E:



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(DAR Transcript of

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MR C WAGSTAFFE (instructed by Messrs Manches) appeared on behalf of the Appellant.


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(As Approved by the Court)

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Crown copyright©

1. SIR MARTIN NOURSE: This is a renewed application for permission to appeal by Mia Holman in a case concerning the beneficial ownership of a house in which she and her former husband, the defendant, Graham Anthony Kingston Howes, lived together for a short while in 1979 to 1980 after they had been divorced. In a long and careful judgment reserved after a five day trial in October 2005, Mr Alan Steinfeld QC sitting as a deputy High Court judge in the Chancery Division held on Gissing v Gissing principles that the defendant, in whose sole name the property is registered, held it in trust for himself and the claimant in equal shares, but on the basis that the claimant was exclusively entitled to live there and occupy the property for so long as it remained unsold. By his order made on 11 November 2005, the judge made a declaration accordingly. He also ordered that the defendant's application that the property be sold forthwith be refused "for the time being".

2. The judge refused the claimant permission to appeal and on 13 February 2006 it was refused again by Carnwath LJ on consideration of the documents. The application is now renewed on the claimant's behalf by Mr Wagstaffe, who did not appear in the court below. Two separate issues are raised by the proposed appeal with which, like Mr Wagstaffe, I will deal in the reverse order. First, it is proposed to invoke the doctrine of proprietary estoppel to the extent that the defendant is estopped from seeking to deny the claimant's entitlement to remain in the property indefinitely. In other words, so as to give her some right of occupation by way of an interest in the land. I should state here that it is not proposed to invoke that doctrine as an alternative basis for contending that the claimant has a beneficial interest in property greater than 50 per cent.

3. As to that issue, the claimant is dissatisfied with the order made by the judge, which she maintains does not give her adequate security of occupation. I very much doubt whether this ground would on its own be a sufficient ground for granting permission to appeal. What the judge said about that part of his order, paragraph 71(B) was this:

"I direct that the property should not for the time being be sold without the consent of the claimant. I say, 'for the time being', because it is conceivable that circumstances could arise in the future which would make the sale of the property more compelling than it appears to me at the moment. Accordingly, my judgment does not preclude the defendant on proof of new facts from coming back to the court asking for further directions in relation to a sale of the property."

4. I have suggested to Mr Wagstaffe this morning that reading that passage in the light of the judge's judgment as a whole, the circumstances which would make a sale of the property more compelling than it appeared to him at the moment would have to be pretty drastic. Mr Wagstaffe says: maybe, but the door should not have been left open at all. I will revert to this point at the end of this judgment.

5. The second proposed issue relates to the Gissing v Gissing claim. As to that claim, the material passage in the judge's judgment for today's purposes is in paragraph 58:

"I am not sure that I can find on the evidence that there was any express agreement between the parties that their shares were to be equal. On the other hand, it seems to me from their course of dealings that the parties were indifferent to precisely who paid what for the property. Hence the fact that no note detailing their respective contributions was ever drawn up in accordance with Mr Prentice's advice and why neither of the parties has taken the trouble to preserve documents in the shape of paid cheques or bank statements indicating what the extent of those respective contributions was. This is despite the fact that the potential dispute as to ownership of the property arose not long after the purchase itself and when it would obviously have been possible to obtain from the relevant banks, if necessary, copies of the relevant statements and paid cheques."

6. Mr Wagstaffe submits, and he may be right, that the judge was there dealing only with the parties' contributions to the acquisition of the property and not to their other dealings, the whole course of which he submits must in accordance with the judgment of Chadwick LJ in Oxley v Hiscock [2005] Fam 211, 246 include:

"The arrangements which they make from time to time in order to meet the outgoings, for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping, which have to be met if they are to live in the property as their home."

7. Mr Wagstaffe's general point here is that the judge did not, in considering the course of dealings between the parties, consider any of the dealings post-completion of the purchase and in addition to relying on that passage in the judgment of Chadwick LJ, he refers to the claimant's skeleton argument in the court below, paragraph 16, in which she drew attention to a number of matters, including her refraining from pursuing maintenance payments or any payments towards Jasmine's education, she being the daughter of the claimant and the defendant, or any property adjustment order in relation to the house under matrimonial law. Mr Wagstaffe has formulated the question which he says will have to be answered if this appeal goes ahead. He puts the question in this way in his skeleton argument in support of this application:

"Where the court is satisfied that: (a) being the legal owner of property and (b) claiming a beneficial interest are both beneficially entitled to some beneficial interest in the property, but the court is not satisfied that the parties expressly agreed what the extent of their respective shares should be, is the court in quantifying those shares required to have regard to the whole course of dealings between the parties in relation to the property, where it considers that at the time of purchase the parties have the same unspoken intention as regards the complication of their respective interests, albeit that the parties never communicated such intention to each other."

8. Mr Wagstaffe submits, of course, that that question should be answered in the affirmative and further, as I have indicated, that the judge wrongly confined himself to dealing before completion of the purchase, ignoring those which took place afterwards. Bearing in mind, as Fox LJ first pointed out in Burns v Burns [1984] 1 Ch 317, 328 that the general rule is that the court looks for expenditure which is referable to the acquisition of the property, and despite Chadwick LJ's general statement, I am myself doubtful whether the post-completion dealings relied on in this case would be matters which the judge necessarily had to take into account assuming, as I do for this purpose, that he did not take them into account.

9. Here I must point out, as I have pointed out to Mr Wagstaffe, that it is very difficult for judges in this type of case to mention everything which they have taken into account. In the end, though with some misgivings, I have come to the conclusion that it cannot be said that an appeal under Gissing v Gissing has no real prospect of success. I think that Mr Wagstaffe has raised an arguable case on behalf of the claimant.

10. I would therefore grant permission to appeal on the Gissing v Gissing point and having done so, would not think it right to restrict permission to that point but would extend it to the proprietary estoppel point as well.


Order: Application granted.