IF YOU FIGHT AN “ALL OR NOTHING CASE” THEN YOU CAN’T COMPLAIN IF YOU GET NOTHING
In Amin v Amin & Ors  EWHC 2675 (Ch) Mr Justice Nugee made an important observation about the way in which parties present their case. It may benefit some litigants to put their case on an alternative basis.
The appellant was appealing against a decision that the defendants were the the beneficial owners of a house.
The appeal was dismissed. Mr Justice Nugee made one observation in relation to the appellant’s point that there had been an injustice. The trial judge had found 100% for the respondents. However this was a reflection of the way in which the case was run at trial.
THE JUDGMENT ON THIS ISSUE
Before leaving it, I would add one footnote. In his reply, Mr Arumugam eloquently submitted that the Judge had inflicted a surprising injustice on Mrs Amin by finding that 104 Gladstone Park Gardens was 100% beneficially owned by the defendants, which had the practical effect of leaving her without anything from her long relationship with Mr Amin. He also pointed out that she was still liable on the mortgage.
I agree that at first blush it is surprising that Mrs Amin, who was after all the legal owner, was found to have no beneficial interest in the property at all. One can see that a case might have been made, not least in the light of Mr Amin’s own evidence, that the original purchase of the house in joint names in 1995 gave rise to a presumption that they were intended to be joint beneficial owners, and that the subsequent dealings with the house – the transfer to Shahenaz to raise money on it, and retransfer to Mrs Amin in 2005 – were not intended to alter the beneficial ownership which remained one of joint ownership throughout.
But the Judge could only deal with the case as it was presented to him. As Mr Oakley pointed out, both sides ran an all or nothing case. Mrs Amin’s case was that the property was 100% owned by her. The defendants’ case was that it belonged 100% to them. Neither in the pleadings nor in anything else that I was shown is there any suggestion (on either side) of a fallback case that it was jointly owned, nor is there any trace of such an argument in the Judgment. (For the sake of completeness, there is a reference in the witness statements to certain discussions about dividing it up, but these came to nothing and it is not suggested that this was run as an alternative legal case). Mr Arumugam indeed accepted that joint ownership was neither his case nor the defendants’ case. It is understandable in those circumstances, once the Judge had found that he preferred the defendants’ case to Mrs Amin’s, as he so clearly did, that he reached the conclusion he did.
And as to her liability on the mortgage, I heard no argument on it but there would appear to be no reason why Mrs Amin should not have the normal rights of a bare trustee, including a right to indemnity from the defendants and a lien on the trust property. But these are not matters that arise on the appeal and are not matters for me.